
    Helen Bruce, as Administratrix, etc., of Millburn Bruce, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence—injury to a passenger on the front platform of a street car from his being thrown therefrom while passing round a curve.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, who was thrown from the front platform of one of the defendant’s street cars while it was rounding an approximately thirty-three-degree curve, having a radius of from 185 to 200 feet, a majority of the court considered that a judgment entered upon a verdict in favor of the plaintiff should be reversed, Goodrich, P. J., and Woodward, J., basing their decision on the ground that the plaintiff had failed to establish that her intestate was free from contributory negligence, and Jenks and Bartlett, JJ., on the ground that the verdict was against the preponderance of the evidence.
    Hírsohberg, J., dissented,
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of May, 1900, upon the verdict of a jury for $5,000* and also from an order entered in said clerk’s office on the 1st day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      Gilbert D. Lamb, for the respondent.
   Woodward, J.:

This action was brought to recover damages for personal injuries resulting in the death of plaintiff’s intestate, through the alleged negligence of the defendant.

We apprehend that it is not the law of this State that a street surface railway must be built upon a straight line, after the manner said to have been directed by the Czar of Russia in the construction of a transcontinental railroad, or that, in the practical operation of the cars, they shall be so handled as never to sway or vibrate. We shall assume that such corporations may construct their lines upon approved engineering plans, with such grades and curves as shall be necessary in the practical accomplishment of the .purpose for which they are created, and that in the operation of the cars they may, subject to the liability for the negligent injuring of passengers or persons lawfully upon the highways with their property, run them in such a manner as to meet the requirements of transportation. In other words, it is not required that in the operation of street railway cars there shall be no swaying of the cars, no jars or jolts; these are reasonably to be expected in the practical discharge of the duties which are assumed by the corporation in accepting its franchise, and it is the duty of passengers to take notice of the obvious fact -that a car weighing from four to ten tons, running at a practical rate of speed, will be subject to the laws of applied mechanics, and will be swayed with greater or less violence in passing around curves, and will be jolted to some extent in passing over other tracks at street intersections. This does not give the street railway company a license to operate its cars without regard to the safety of passengers • it owes them the duty of carrying them in safety over its lines, provided, always, that the passenger has been guilty of no neglect contributing to the accident. For instance, if a passenger is occupying a seat in a car and voluntarily.leaves that seat and steps down upon the running board of an open car, and, without taking hold of any thing, relies upon his being able to keep his balance, and the car in passing around a curve should throw him off, the company would not be liable, even if it were negligent in the operation of the car; and the burden of proving lack of contributory negligence is upon the plaintiff at all times. It is true, of course, if the injury happened to the passenger while occupying a seat' provided by the company, the presumption of lack of contributory negligence would at once arise, but it is none the less proved by the plaintiff by establishing the facts which made it impossible for the passenger' to contribute to the accident, as in the case of a collision or the. derailing of a car.

There are no presumptions that a man has been free from contributory negligence; the plaintiff ,must affirmatively show, either by direct proof, or by facts and circumstances from which the inference may be properly drawn, that the plaintiff has been guilty of no act directly contributing to the accident (Chisholm v. State, 141 N. Y. 246, 249, and authorities there cited), and this court, in the case of Brainard v. Nassau Electric R. R. Co. (44 App. Div. 613), recognized no new rule of law. It was there said : It is fair to assume, we think, that the deceased, as he stood upon the running board of the car, was using such means as were furnished for security to a person standing thereon,” but the court did not assert that this assumption would be justified in all cases, for it continued: He had ridden some distance and maintained his position, and the language of one of the witnesses who saw him is that as the jerk came * * * JVIr. Brainard was knocked off.’ The language of the other witnesses, and the fact that a person must use a support to remain upon the running ' board while a 'car is in motion, justify the inference that it was the sudden jerk which caused the fall and not any lack of making use of the supports. The car was crowded with passengers, and riding upon the running board' was not per se negligence.”

It thus appears that the facts as they were established by the evidence were the basis for the assumption that the deceased had made Use of the opportunities for holding on while in a position of danger, and not any presumption which arises that a man has been free from contributory negligence; it simply stands at the commencement of the trial at zero, and the plaintiff is called upon to establish affirmatively that the deceased was not guilty of acts contributing approximately to the accident. This may be done by showing facts from which the inference may be fairly drawn, as well as by direct proof. (Thomp. IS!eg. 359, and authorities cited.)

Having these fundamental principles of the law of negligence in mind, we will look at the- facts developed by the evidence in the case now before us. The accident producing the injuries complained of occurred at what is known as Rapelyea’s curve in Grand street, Brooklyn. This is approximately a tliirty-three-degree curve, with a radius of from 185 to 200 feet, and is described by one of the witnesses as a “ wide curve,” as distinguished from a right-angle curve along ordinary highways, and while it is not to be doubted that a car approaching this curve at a high rate of speed would be swayed sufficiently to disturb the equilibrium of persons standing up without support, there is nothing in the evidence to indicate that the car in use at the time of this accident was swayed enough to cause more than a momentary disturbance of the equilibrium of the passengers seated in the car, or that it would have been remembered by any of them, except for the accident which occurred at about the same time. The plaintiff’s intestate was a policeman, and two of his brotlier officers, who were in the car at the time of the accident, and who were called by the plaintiff, testify that there was nothing in the movement of the car on this occasion of which they complained. One of them says: “ I was perfectly satisfied to have the ear going as it was,” and the other says: “ Hone of us made any complaint concerning the speed that the car was going. There was nothing in the way that the car was going that appealed to us as police officers that seemed to demand our interference, so that none of us spoke to either the motorman or conductor.' So that for all practical purposes I and my brother officers were satisfied with the way the car was going. We were not making any complaint.”

The evidence is uncontradicted that Hr. Bruce, plaintiff’s intestate, entered the car of the defendant about half a mile from the scene of the accident, and occupied a seat inside of the closed car; that he was in the habit of riding in the cars of the defendant in coming home from his beat, and that he usually left the car about 300 feet beyond the curve where this accident occurred, the car running out from Brooklyn toward Newtown; that when about 500 or 600 feet from the curve Hr. Bruce left his seat inside of the car and went out upon the front platform at the left of and behind the motorman, and stood with his back against the front of the car. Only two persons claim to have been eye-witnesses of the . accident. One of these was a boy about seventeen years old at the time, who testifies that he saw Hr. Bruce upon the front platform, and that when the car struck the curve it was running at the rató of about twenty miles per hour, and that Mr. Bruce was thrown over the chain which was placed across' the entrance to the front platform on the left-hand side, striking upon his head, producing the injuries resulting in his death.

This witness testifies that this chain was about three feet and a half high; that he saw this chain at a distance of about 1,400 feet though at the time he was where he would have to look over the gate upon the right-hand side of the car, past the motorman and the plaintiff’s intestate, in order to see this chain. The evidence is overwhelming that there was no chain in use upon this car, the entrance on the left-hand side being guarded by an accordeon or folding gate. The evidence is that Mr. Bruce was not a tall man, a little taller than counsel for the plaintiff, and that he weighed about 165 to 170 pounds. He was standing, or had been standing, the last time he was seen alive by plaintiff’s witnesses, inside of the car, upon the front platform back of the motorman-, with his back against the front of the car, and to the left of the motorman, so that he must have been within two feet of the alleged chain, if there was a chain, which the witness says was three and one-half feet high, and this witness testifies: I seen, just as the car come around the curve and-hit the curve, Bruce was lifted off his feet and thrown over the chain,” and that his head struck the pavement first.

Assuming that Bruce.was six feet tall, and the evidence would not support such an assumption, and that the chain was three and one-half feet high, and this is the evidence, about three foot and a half,” and that Bruce was two feet from the chain, does airy one believe that a man weighing 165 pounds could be thrown over this chain in the manner described by the witness, particularly if we take this evidence in connection with the evidence that the passem gers within the car were not seriously disturbed by the lurching of the car as it reached the curve ? If this is not a physical impossibility, it is certainly highly improbable, and when we remember that it rests wholly upon the testimony of this boy, who swears that he saw this chain at a distance of about 1,400 feet, when the evidence is overwhelming that there was no chain upon the car, and that he did not, after witnessing the accident, remain to see whether the man was killed or not, and that he did not report the accident at home, or tell any one of the fact that he had seen the accident up to within a few weeks of the trial, the whole case seems so unworthy of credence that if the testimony was wholly undisputed we should feel that injustice would result from an affirmance of the judgment.

This boy, Benjamin Coordes, is the only witness who places the speed of the car at twenty miles per hour, the others ranging from nine to fifteen miles per hour, and it is the defendant’s witness, the motorinan who "was running the car, who mentions this speed as having been attained before reaching the curve, though he says the ■car was running up a slight grade, and that the power was turned off, so that the speed was somewhat reduced at the moment of the ■accident. This witness, who appears singularly frank and straightforward, and who was the only other eye-witness of the accident who was produced upon the trial, says that he had' been running the car at the rate of about fifteen miles per hour; that he does not know when Mr. Bruce came out on the platform; that the first intimation of his presence was when he was just about to enter the ■curve; that at that time deceased “ raised his right hand partly at my side. * * * He did not touch me nor he did not speak; he raised the hand so I took that as a signal that he wanted to get •off, and whether I had thrown off my power before that or not I don’t know, but I threw off the power about that time anyhow, as I would have done whether there was a person getting off there ■or not in order to round the curve. So I proceeded to stop the car, and just simultaneously with his signaling me he caught the bolt of the gate, drew it up, pushed the gate towards the dashboard ■and stepped down on the step of the car. I shouted to him to hold on, or some words to that effect,, but he didn’t. He stepped right down in the street, and although I won’t state positively, I believe lie didn’t have hold of anything when he did step.”

There is no evidence to dispute the statement of the motorman that he did not know that Bruce was upon the platform until the latter signaled. The evidence is overwhelming that the car was. ■ equipped with the kind'of a gate which the motorman describes as-being opened by plaintiff’s intestate, and the boy who tells the story on which the plaintiff relies not only contradicts himself, refusing-to answer pertinent questions, but not one of the witnesses who were concededly on the ground was able to say that they had' any recollection of seeing him anywhere in the vicinity. The boy himself' makes no mention of any one with the exception of the motorman. and Mr. Bruce, and he says ujdoií cross-examination : All I seen was Mr. Bruce; that was all. I saw Mr. Bruce. He'was lying-right between the two tracks straight up and down. The car had come to a stop by that time. I did not see people get out of the car. I did not see any officers get out of the car at all. I didn’t-see- any officers- there at all.” 1

Yet the evidence is undisputed that the two officers were there that they got out of the car as soon as it stopped and ran to the man who had been injured, and it is also undisputed that the conductor and motorman were there and rah to the assistance of Mr. Bruce, while two or three other passengers disappeared in the excitement. This all occurred in a thinly settled district where it would be Very strange if seven or eight people could, congregate around a man who had been thrown from a street car and seriously injured without their being seen by the person who witnessed the accident, and the car stopped as appears from the evidence within ' thirty feet of' where Mr. Bruce was lying, and at least three or four-persons must have been near Mr. Bruce within á few seconds of the-time that he received the injury.

But assuming that this witness, Benjamin Coordes,- was not discredited, and that the jury was bound to believe that Mr. Bruce was thrown over the alleged chain, there is no evidence that plaintiff’s intestate was free from negligence contributing to the accident. Coordes does not mention any act on the part of Mr. Bruce or anything from which such an inference may be drawn, and no one else,, with the exception of the motorman, pretends to have seen him at the time of the accident. All that is established by the evidence . is that Mr. Bruce left the interior of the car, where it is not to be doubted lie was perfectly safe, and took a place upon the platform of the car. Conceding that it was not negligence per se to occupy a place upon the front platform of a car, it is equally certain that it is not evidence of lack of contributory negligence. No legitimate inference may be drawn from the fact that a man leaves the interior of the car, where he is not crowded and where the defendant has afforded accommodations for its passengers, and goes out on the front platform, that he is free from contributory negligence at a time when he reaches the platform. It is undisputed that he gave no sign to the, motorman that he was present upon the platform until just at the moment of entering upon the curve; and if it be held that it was negligent upon the part of the defendant not to operate its cars in such a manner as not to injure one who had quietly taken a place upon the platform without the knowledge of the defendant’s servants, it cannot be said that it is evidence of a lack of contributory negligence on the part of plaintiff’s intestate, and without such evidence the .plaintiff cannot recover. It should be remembered that the defendant is not called upon to prove that the plaintiff’s intestate is guilty of contributory negligence. The burden is upon the plaintiff to show that the deceased did no act approximately contributing to the accident (Riordan v. Ocean Steamship Co., 124 N. Y. 655), and we search the record of 'this case in vain for such evidence.

The defendant had erected gates or a chain for the purpose of guarding the entrance to the front platform. There was no invitation, express or implied, for passengers to occupy a place upon this platform, which, it may be assumed (for it is in accord with public policy and the safety of passengers and those occupying the highways), was reserved for the use of the motorman, whose duty it is to keep a lookout ahead and to get his instructions from the signals given by the conductor as to matters which are not within the scope of his vision, and if the plaintiff’s intestate went, out there and stood up, when there was no occasion for his leaving the interior of the car, without giving the motorman any intimation of his presence, it may be that the defendant owed him no higher duty than it owed to passengers who were inside' of the car and occupying the seats provided for them. It is not, however, necessary to determine this point.

. The plaintiff has failed to establish by evidence that her intestate was free from contributory negligence, or to bring forward any facts from which such an inference may be legitimately drawn, and the weight of evidence is clearly with the defendant, not only that the accident was not due to the negligence of the defendant, but that the injury resulted solely from the negligence of the plaintiff’s intestate.

Under such circumstances it only remains to say that the judgment should bo reversed and a new trial granted, with costs to abide the event.

Goodrich, P. J., concurred; Hirsohberg, J., read for affirmance.

Jerks, J.

(concurring):

I concur with my brother Woodward, in his conclusion that the judgment and order should be reversed, but I express no opinion on the question of the failure of the plaintiff to prove the absence of contributory negligence on the part of her intestate. I thus vote for the reason, that I am dissatisfied with the verdict, in that I think it is against the weight or the preponderance of the evidence. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66, 70.) I cannot accept the verdict as the final determination of a jury when it is based upon the testimony of a single and, to me, an unsatisfactory witness, who saw the accident from a distance, and who testifies that the lurch of this car while going around the curve threw an adult over a chain, which guarded the front platform, at an approximate height of three or three and a half féet. If such a story does not tell of an occurrence physically impossible, it seems to me that such an accident is inherently improbable. Moreover this witness is not only contradicted by the motorman, but his statement of such an exhibition of centrifugal force is utterly irreconcilable with testimony of the character of the lurch and of the comparative slightness of its effects given by several disinterested witnesses called by the plaintiff. There is another version which accounts for the accident without casting any liability on the defendant. I do not pretend to say that, it is the truth, but I make this mention in order that it may appear that there are two versions of the occurrence.

The fact that a jury has given credit to the version of the plaintiff does not foreclose us from a decision that the record does not satisfy us that she has made out a case, and that, therefore, justice will be promoted by a submission of the issue to another jury.

Bartlett, J., concurred.

Willard Bartlett, J. (concurring) :

I concur in the foregoing opinion of Mr. Justice Jerks.

Hirsohberg, J.

(dissenting):

I cannot concur in either of the opinions for reversal, each of which is supported by only two votes, and the new trial must, therefore, be without the settlement by a majority vote of the law applicable to the case. I cannot concur in the two main points which make up. the opinion of Mr. Justice Woodward, because I regard them as not only without justification upon .the facts, but as inherently inconsistent. He states that the accident as testified to by the plaintiff’s witnesses, if “ not a physical impossibility,” is certainly highly improbable; ” and to this point he adds another, suggesting but without deciding, that the plaintiff’s decedent was guilty of contributory negligence in leaving a place of safety and going out upon the platform. While the opinion avoids the expression of any positive conclusion upon this latter point, it does state as ground of reversal that there is no evidence of a lack of contributory negligence upon the part of the deceased; that is, no evidence that he took any precaution to guard against the assumed dangers of the position which he had chosen voluntarily to occupy. It is obvious that, if the platform was so securely guard’ed that the accident which is alleged to have occurred was highly improbable or physically impossible, it was not a place of danger or one where any unusual precautions would be required. Precaution is only required in the presence of possible danger. It seems to be fairly settled that the question whether the proof establishes freedom from contributory negligence, where the accident could occur without fault on the part of a deceased person, is for the jury to determine, while the assumed improbability or impossibility of the occurrence in this case finds so little support in the evidence that neither on the first argument of- the appeal, nor on the reargument afterwards directed by the court, did counsel for the defendant venture to either urge or suggest it. Indeed, it can hardly be doubted that a car driven around a thirty-three degree curve at the rate of even fifteen miles an hour, could throw a man over either a gate or a chain, and the fact that it actually did do so in this particular instance, if the witnesses for the plaintiff are believed, as they were believed by the jury, certainly furnishes some corroboration of the existence of the physical possibility.

The opinion of Mr. Justice Jbnks rests chiefly upon the statement that he is “ dissatisfied ” with the verdict as against the weight of evidence. This, conclusion, as will be seen, differs from the view of the evidence which I have adopted. I cannot see how the verdict' can be fairly regarded as against the weight of evidence. Aside from the physical conditions, the only evidence on the defendant’s, part consists in the testimony given by the motorman who was in charge of the car, and as'his credibility was a question for the jury upon well-established principles, I cannot see how evidence which the jury is at liberty to reject can ever assume the dignity of preponderance.

As the court has divided into three distinct parts upon the decision of this appeal, it seems to me that there should be union upon . one point at least, viz., that the case presents facts from which intelligent. men may draw different inferences, and is, therefore, one peculiarly within the province of a jury, whose conclusion when fairly reached, in the absence of legal error, should not be lightly overthrown.

The facts, as the jury^ must have found them, are of the essence .of simplicity. The plaintiff’s intestate, Millburn Bruce, a policeman, after his night’s work w;as done, boarded one of the defendant’s closed cars at about eight o’clock in the morning of December 16, 1899, at the car stables at Maspeth, L. I., .to go to his home on the North Hempstead road. The distance is about a half mile and the running time two minutes, the average running time being fifteen miles an hour, including stops, for the round trip to and from Flushing. The accident occurred on Grand street, while rounding a very sharp curve, known as Rapelyea’s curve. The North Hempstead road intersects Grand street with Maiden lane at a point 600 feet distant from this curve on. the Maspeth side, but Bruce was in the habit of leaving the car at a point about 300 feet beyond the curve on the Flushing side, where a path through Teeve’s lot led directly to his house. There was evidence tending to show that it was customary to slow up in going around Rapelyea’s curve, -and the conductor in charge of the car on the occasion in question frankly admitted that he had never gone around the curve at a higher rate of speed than nine, or ten miles an hour, always going perfectly easy and gentle and without any jolt. The motorman, however — this being the first time he had operated the.car — testified- that he approached the curve at the rate of fifteen miles an hour; that it was customary to go rownd on full speed ; that he considered fifteen miles an hour safe to go around it, and that he would not consider it necessary to slow up if he was going at the rate of fifteen miles an hour. There was abundant other evidence tending to show that on this occasion the car was not slowed up at all on the curve and that its speed was as great as twenty miles an hour. •

When Bruce boarded the car he sat down in company with two other officers and remained seated until after the car had passed the junction of Grand street with the street on which he lived, that is, until after it had passed Maiden lane. He then stepped out upon the front platform with the view of leaving the car in accordance with his invariable habit when it reached his path, 300 feet beyond the curve. But when the car struck the curve, as it must have done almost as soon as Bruce got iipon the platform, instead of going around easy and gentle,” as customary, it struck the curve with a violent jolt, and Bruce was thrown over the gate or chain at the side of the platform, striking his head upon the roadway and being instantly killed. The highest estimate given as to the length of time he was on the front platform is five seconds. The time must have been very short. One of the officers testified: A sudden jolt of the car and I looked forward and he was gone. I looked over the side and he was lying in the street behind the car. * * * The car jolted and I looked forward and Bruce was gone. * * * I missed him as soon as the car jolted, then I missed Bruce; I looked forward and he was gone.” The inference from this evidence is a natural one, that the sudden jolt and Bruce’s disappearance were coincident, and this inference is greatly strengthened by the evidence as to the nature and extent of the jolt and its effect upon those inside the car. The officer above quoted testified : “ Q. What sort oí a jolt was there immediately preceding the accident when •you" observed that he was gone ? A. It was a jolt pretty near enough to throw me on the floor. Q. And how did you have your feet placed ? A. I sat this way in the car [illustrating]. Q. With your face in which direction ? A. I was sitting about, like that, you know ; my body was a little towards the rear, just about the position that I am sitting now, and the car went this way.' Q. How strong a movement was that.?- A. The car was going along, I should judge, at about twelve miles an hour or more ; ten miles anyhow. Q; Twelve miles an hour or mofe ? A. Yes, sir. Q: Was it going* at that rate of speed as it rounded Rapelyea’s Curve? A. Yes, sir. Q. Was there any slackening of the speed as it approached the curve ? A. No, sir, not as I know of; not to the best of my knowledge.” He further testified that as the car approached the curve the conductor was engaged in an attempt to fix the fare register, but “ before he got a chance to do anything the lurch came,” and threw him. into the corner of the car against the side and door. It is true that this officer admitted on cross-examination that he made no complaint of the speed of the car, and'that he and his brother officers were satisfied with its speed, etc., and some significance appears to be attached to these very natural and proper statements as though they tended in some way to impair the plaintiff’s claim, or to weaken the overwhelming evidence that the speed of the car was dangerous upon the- curve. But there was certainly no obligation imposed by law or otherwise upon this witness requiring him to make a complaint; the time and place were not propitious for filing complaints; the commotion and disturbance in the car naturally absorbed the passengers in the necessary bracing of themselves for safety, and abovesail the speed of the car furnished no just cause of complaint inasmuch as it was only in accord with the average running time, and was entirely safe where the track was straight. The fact seems to be overlooked that there was no just reason for any complaint until the car struck the curve without slackening' speed. Up to that point the conditions were entirely normal; But at that point there is scarcely a pretense that the car was slowed down at all as on previous occasions; if it was slowed down it was not done to an appreciable extent according to the testimony either of the motorman himself, as will be seen hereafter, or of the passengers; and the result was (and this is the cause of the present complaint) that when Bruce stepped out upon the platform to prepare himself for getting off the car, as was his custom when he reached Teeve’s lane, instead of encountering an easy and safe glide around the curve in accordance with his former experiences, and upon the reasonable expectation of a repetition of which the jury might have concluded that he was entitled to rely, he met his death as the almost inevitable consequence of the car striking the sudden curve at a rate of speed which was extremely dangerous there however safe it may have been theretofore.

The other officer also testified that the car was going “ pretty fast,” between ten and twelve miles an hour, and that he noticed no difference in the speed of the car as it approached the curve, and he likewise illustrated to the jury the manner in which his feet were braced and the effect which the jolt, nevertheless, had upon his body, head and shoulders, to the probable understanding of the jury, although difficult to reproduce in the printed record. He was asked : “ Q. What sort of a.movement of the car was there as it struck the curve ? Did you notice anything ? A. Well, what I got myself. As soon as it struck the curve, I went that way (illustrating) and went back again. I was not lifted from my seat at all. The forward part of my body and my head and shoulders went that way and then went back. I had my feet that way in that position (illustrating). My heels were like that. Q. Where were they placed in the floor ? A. Well, they generally stick in the grating, you know, slightly, like that.” From all this evidence there is no" difficulty in realizing how the occupants of the car were affected by the violent lurch necessarily incident to the striking of such an abrupt curve at such a high rate of speed, and also how little chance of safety there could be for any one upon the platform, unprepared for danger and unwarned of the motorman’s intention to go around the curve at a reckless and unslackened pace.

There was also an eye-witness upon the highway, a lad then of seventeen, who chanced to be within 100 feet of the occurrence at the time. He testified that the car was running very fast, at the rate of twenty miles an hour, and to quote his language: I seen just as the car come around the curve and hit the curve Bruce was lifted off his feet and thrown over the chain.” His testimony is criticised because he insisted that it was a chain instead of a gate over which the unfortunate officer was flung to his death, but even if it be conceded that the evidence of defendant’s employees preponderates in establishing that it really was a gate, this should not so far militate against the truthfulness of this disinterested youth as to make the question presented one of law instead of fact, or to remove its solution from the province of the jury, who saw and heard him, and could well weigh his evidence as men of sound; practical common sense. So, too, his evidence is criticised because he did not tell the story that day at home. But his father testified that the boy commenced to tell it but was interrupted by him with ■the brutal threat, “ don’t you dare say a word about it, if you do I will throw you out of the house.” This was accompanied by. other threats which served to silence him until the trial. Upon the trial he was subjected to every artifice of cross-examination, and although manifestly nervous and confessedly sick and frightened, his testimony, corroborated as it was in every essential particular, was not shaken in the least. He stated the number of the car accurately, as it afterward turned out., He saw the man thrown out and saw him strike his head upon the pavement at the precise time and place and in the manner testified to by the others. He was sure the man was not on the step of the car and that he did not step off. On the contrary, he testified the car made a sudden jerk and he went off.” The facts that the witness was young and sick and frightened ; that the effect of the awful sight was to make him sick at his stomach; that when he went home he was there terrified into silence ; that he was confined in a hospital for troubles of the heart and kidneys, and that he was clearly no match for brilliant counsel in an intellectual contest on the subjects of measurements, distances and the' nicer points of the compass, do not necessarily and as a matter of law prevent a jury from believing him. His story is inherently credible, and, in its main features, is fully corroborated by the other witnesses as well as by the mute testimony of the dead body. The whole presents a case clear ■ and convincing, such as is rarely found in litigation, of this character.

As against this mass of evidence the defendant had but the. testimony of the motor man. He represented the defendant at the time of the accident, and whatever blame there was, was his. He had the highest interest in negativing the theory of the plaintiff’s witnesses to the effect that he came upon the curve so swiftly and recklessly that his passenger was powerless to resist the sudden lurch, and, as I have said, it is well settled that whatever his story may be, it goes to the jury on the question of credibility, if nothing else, and, therefore, it cannot, of itself, so overpower the combined evidence of several disinterested witnesses as to justify either a non-suit or a reversal. Aside from this feature his story is vague, shadowy and unsatisfactory. He says “ the car glided around the curve smoothly,” although all he says on the question of speed is that the car was not going guite as fast as fifteen miles an hour just at the moment the man fell. He did not know whether Bruce came on the platform just then, or whether he had already been there some time, but however that may be, Bruce just then raised his right hand, apparently as a signal that he wanted to get off, and simultaneously, without waiting for the speed of the car to slacken and in spite of warning shouts from the motorman for him to hold on, opened the gate and “ stepped right down in. the street.” This story, while of course proper for the consideration of the jury, is certainly not devoid of elements of improbability. The conduct of the motor man, according to his own story, indicates that it was hazardous in the extreme to attempt to get off the car at. the time and place, or why did he shout a warning ? He testified : “ I shouted to him to hold on, or some words to that effect, but he didn’t. He stepped right down in the street, and, although I won’t state positively, I believe he didn’t have hold of anything when he did step. As soon as his foot touched the ground his body swung around and he fell, and he seemed to me on the back of his head.” As soon as the car was stopped the motorman got off, and the first question he asked was, “ is he killed ? ” In view of the facts that Bruce did not want to get off at that point, not having yet reached his path by some hundreds of feet; that it was broad daylight; that the speed of the car, whatever the number of miles per . hour, if obviously dangerous to the motorman, must have been equally so to Bruce; that the curve was equally visible and known to both, so that no possible reason exists to justify the theory that the deceased supposed that to be a safe act which to the motorman was so imminently hazardous that he immediately anticipated death as a result; that no circumstances in the case suggest suicide; that the senses of the deceased, so far as appears, were normally susceptible to the surroundings, and especially to the shouted warning, and that, although several persons aided in carrying the body to the car, no one testified that the' gate was found open, it cannot be said that this story of a deliberate step to certain death was either plausible or convincing. If there was a gate at the platform instead of a chain, it may, of course, be true that the deceased opened it and. stepped down upon the step in readiness to get pif when he reached the lane, and in reliance upon the usual slackening of speed which would have made that act safe. The car then striking the curve at a high rate of speed, would .sufficiently account for the result, without necessarily involving contributory negligence as matter of law, and such a story would not be condemned as unlikely. But the one herein adverted to as told by the motorman, to the effect that the deceased stepped off the swiftly-moving car before reaching his destination and in spite of warning, seems under all the circumstances to be opposed to ordinary experience, and at variance with the natural instincts of self-preservation, and that conflicting story must be unreasonable, indeed, which a jury of average intelligence would reject in order to give this one credence. Under these circumstances the learned trial justice very properly left to the jury the task of deciding between the two opposing theories, in a charge so lucid and fair that no exception was taken, charging,, indeed, every request made by the defendant’s counsel, and I am unwilling to say that the conclusion reached is so irrational in itself,/ or' so feebly supported by the evidence, as to require or justify another trial.

I, therefore, vote for affirmance;

Judgment and order reversed, and new trial granted, costs to abide the event.  