
    Thomas Fiddler, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence — when a nonsuit is improper, although a verdict for the plaintiff would be set aside —a traveler who does not look for a train at a crossing is guilty of negligence — what evidence does not justify a finding of freedom from contributory negligence.
    
    Where the evidence given in an action to recover damages for personal injuries presents a question of fact, as to the defendant’s negligence and the plaintiff's freedom from contributory negligence, it is improper to grant a nonsuit even though the evidence is of such a character that the trial j udge would have been required to set aside a verdict rendered in the plaintiff’s favor as being against the weight of evidence.
    A traveler on a highway before crossing a railroad track must look and listen for the approach of trains and, if he omits to do so and suffers injury, he cannot maintain an action against the railroad company even though it were guilty of negligence.
    
      In an action to recover damages for personal injuries sustained' by the plaintiff, in consequence of being struck, at daybreak when a little snow was falling, while walking in a southerly direction along a highway, by a train moving in an easterly direction upon the southerly track of the defendant railroad, evidence that when the plaintiff reached a point ten feet north of the northerly track he waited until a freight train going west on that track liad passed him • and then walked to the southerly track, a distance of twénty-two feet, for the last twelve feet of which distance he had an unobstructed view to the west for two miles, is insufficient to raise an issue of fact or furnish any evidence upon which a finding of freedom from contributory negligence may be based, where it appears that the plaintiff’s eyesight and hearing were perfect; that he was expecting the approach of the train; , that the locomotive drawing the train had ' its headlight burning, and that there was nothing to distract the plaintiff’s attention.
    Adams, P. J., dissented.
    Appeal by the plaintiff, Thomas Fiddler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 22d day of October, 1900, upon a nonsuit granted after a trial at the. Onondaga Trial Term.
    The action was begun on the 1st day of June,, 1899, to recover damages for injuries sustained -by the plaintiff oii the 19th day of February, 1898, while walking south on a highway near the village of Weedsport, in the county of ■ Cayuga, N. Y., and in attempting to cross defendant’s double-track railroad, which extends east and west and is crossed by said highway at substantially a right angle, by being run over by an engine drawing a train approaching said crossing from the west on the southerly track, alleged to have been caused through the negligence of the defendant and without any negligence on the'part of the plaintiff.
    
      Henry E. Miller, for the appellant.
    
      Frank Hiscock, for the respondent.
   McLennan, J.:

There is no conflict in the evidence in this case, and the court - having directed a verdict for the defendant, the plaintiff “is entitled to the most favorable inferences deducidle from the evidence, and all disputed facts ¡are to be treated as established in (his) favor.” (McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66, 68; Bank of Monongahela Valley v. Weston, 159 id. 201, 208.)

If the evidence thus interpreted presents a question of fact, tends to establish negligence on the part of the defendant and freedom from contributory negligence on the plaintiff’s part, the injury having been proven, the judgment must be reversed, even if the evidence was of such a character that the learned justice presiding at the trial would have been required to set aside the verdict as being against the weight of evidence, if one had been rendered in plaintiff’s favor by the jury. (McDonald v. Metropolitan Street Railway Co., supra.)

If, however, the evidence was not sufficient to raise such an issue, nr did not tend to establish those two propositions, then the nonsuit was right and the judgment should be affirmed.

It is elementary that a traveler upon a highway who, while attempting to cross the tracks of a steam, railroad company, sustains injury by being struck or run over at such crossing by its locomotive or cars, because of its negligence, must, in order to entitle him to recover from the railroad company the damages sustained, prove that he used ordinary care and prudence to avoid such injury, and that his conduct was such as to relieve him from the charge of •contributory negligence.

In defining the duty of a traveler under such circumstances the ■Court of Appeals, in a case recently decided, reiterated the rule which has been in force ever since the organization of the court, and said : “ The law requires a traveler on a highway, before crossing a railroad track, to look and listen for the approach of trains, and if he omits to do so and suffers injury, he cannot maintain an action against the railroad company, although it was guilty of negligence.” (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.)

In the case at bar there was proof tending to show that the bell or -whistle upon the locomotive which came in collision with the plaintiff was not rung or sounded as it approached the crossing, and thus tended to establish defendant’s* negligence, and made it a question of fact for the jury.

So that we need only inquire whether or not there was any evidence which tended to prove plaintiff’s freedom from contributory negligence, and such as to require the submission of that question to the jury, within the rule laid down by the courts of this State.

The testimony bearing upon that proposition, so far as material, may be briefly summarized as follows : The plaintiff, who was thirty-eight years of age, in good health and strength, his eyesight and hearing being in perfect condition, and in the full possession of all his faculties, on the morning in question, just as it was breaking day, approaching' on the highway from the north, walked to a point ten-feet distant from the northerly rail of defendant’s double-track railroad, on the northerly track of which a freight train was going west. He waited at that point until the hind end of such freight train, which he swears, he saw and was in plain sight, reached a point thirty or forty feet west of the ’highway on which he was standing; Between him and the hind end of such moving train, which he says he plainly saw, and of the southerly track, ■ there was absolutely nothing to obstruct his view. He then walked .southerly, his line of vision to the west constantly increasing, until -when he reached the northerly track his view to the west was entirely unobstructed for a distance of two miles, which view continued absolutely unobstructed while he walked across the northerly track, the distance between the two tracks, and onto the southerly track, where he was struck by the engine of a train approaching on such southerly track from the west, and upon which engine a headlight was lighted and burning, and received the injuries for which he seeks to recover in this action. The plaintiff had in mind that the train from the west was due, and was watching for it. There was nothing to distract his attention; there was no storm which could interfere with his seeing the train, there being only three or four inches of snow on the ground, and at the time it was snowing “ just a little,” and “the wind was coming from the southeast.” There was no smoke, no .unusual' noise; no other train to the east; no confusion of lights. After he reached the north rail of the northerly track, which was at least twelve feet from the north rail of the southerly track where the collision occurred, his view to the west was absolutely unobstructed for a distance of two miles, and the approaching engine with its headlight burning was in full and plain view from the crossing while it traversed that entire distance.

■ The plaintiff testified that while standing at the point ten feet north of the north rail of the northerly track, and while traversing the distance between there and the southerly track where he was struck, lie looked to the west to see the approaching train, which he was expecting, but that he did not see it and did not know that the train approaching from the west was there or in-that vicinity until it struck him.

This is all the evidence, given on the part of the plaintiff tending to establish freedom from contributory negligence, and the pre'cise question presented by this appeal is, does the plaintiff’s sworn statement that he looked for but did not see the approaching train, under the circumstances of this case, raise an issue of fact, or furnish any evidence upon which a finding of freedom from contributory negligence might be found ?

There must be cases where mere words, even if spoken under oath upon the witness stand, do not raise an issue of fact as so their verity. Suppose a person who was injured at a railroad crossing in the city of Albany in the month of August should testify upon the trial of an action brought against a railroad company to recover for such injuries, that he looked for the approaching train which struck him, but was unable to see it because a snow bank fifty feet high was alongside the railroad track and obstructed his view of the train, would the trial justice presiding in such a case be required to gravely submit to the jury the question as to whether or not a snow bank in fact obstructed the plaintiff’s view, as claimed by him?

If it should appear that the Empire State Express was approaching a highway crossing in broad daylight, at the rate of sixty miles an hour, the view of the entire train from the highway being absolutely unobstructed for the entire distance of five miles before reaching the crossing, would the testimony of a traveler upon the highway, given in an action brought by him to recover damages for being run over by such train, to the effect that he looked diligently to see the approaching train, which he was expecting, and that he looked exactly where the train was, but that he did not see it, although his eyesight was perfect, and without any explanation as to why he did not see it, be sufficient to raise an issue of fact as to whether or not he had discharged the duty imposed upon a traveler approaching a railroad crossing ?

Again, if a train of cars should be negligently left standing entirely across a highway, and a pedestrian with perfect eyesight, in broad daylight, with nothing to distract his attention, should walk against it and bump his head, would the question of his contributory negligence be one of fact for the jury, in case he should testify that he expected the train was there, that he had it in mind, and that he looked for it, but did not see it, without in any manner explaining why he failed to discover it ?

• If hot, then quite as clearly, not in the case at bar. The train in • question was in plain sight of the plaintiff for such length of time as give him ample opportunity to see it, and to have avoided collision with it, and it cannot be of importance that the train was in plain sight at one side, rather than directly in front of him.

The plaintiff’s testimony that he looked but did not see the train is in such contradiction of matters of common knowledge or the laws of nature, as to. be incredible as a matter of law ” (Fealey v. Bull, 163 N. Y. 397; Matter of Harriot, 145 id. 540); and, therefore, it presented no question for the determination of the jury. Any other ruling applied to the facts of this case would lead to results most unfortunate in the administration of justice.

If it shall be held that every statement of a witness or interested party made upon the trial of an action, no 'matter how inconsistent or absurd, and even if in conflict with common knowledge or with the laws of nature, may be made the basis of a recovery in an action, and must be left to the determination of a jury, there will be left hardly any means which will afford protection to a large class of litigants, especially those against whom there may be popular prejudice, and rank injustice in ■ many cases will almost necessarily result.

We think such a rule has not received the sanction of the Court of Appeals in this State, but, on the contrary, that that court has consistently and uniformly held, almost since its organization, that in order to warrant the trial court in submitting a question to the jury, there must be some evidence that ought reasonably to satisfy a jury that the fact sought to be proved is established.

In Pollock v. Pollock (71 N. Y. 137), where'the chief question discussed was whether or not a finding of fact by a referee was supported by evidence, the finding was reversed and the court said, Judge Folger writing the opinion (p. 153): “ Insufficient evidence is * * * no evidence,” and the learned judge quoted with approval the language of Maule, J., in Jewell v. Parr (13 C. B. 916; 76 Eng. C. L. 916), as follows: “ When we say that there is no evidence to go to a jury, we do not mean that there is literally none, but that there is none which ought reasonably to satisfy a jury that the fact sought to be proved is established.”

The language of Judge Folger and the language of Maulé, J.,, quoted by him, was also quoted with approval by Cullen, J., in Fealey v. Bull (163 N. Y. 397, 402).

In Matter of Harriot (supra) the question under consideration! was whether or not the finding of a surrogate that appraisers were; entitled to $250 each for their services, being $5 a day for fifty-days, which finding was based upon their testimony that they spent; fifty days in doing the work charged for, was ■ supported by sufficient evidence to sustain such finding. The court said, per Haight,, J.: “ As we have seen, the inventory was prepared by others. The only thing left for the appraisers to do was to examine the furniture, compare it with the list made, examine the securities entered in the inventory and attach thereto the values, which could have been ascertained in a day’s time in any stockbroker’s office in the city of New York. Upon these undisputed facts we cannot sustain, the finding that the appraisers each actually and necessarily occupied fifty days in making their inventory.”

• ■ And the court further said in that case: “ Should a person affirm that black was white or white was black, or, being in the full possession of his faculties and having the unrestricted use of his limbs,, should testify that he actually and necessarily occupied a year in walking a mile, his statements would be- so in conflict with recognized possibilities as to be entitled to no credit or character as. evidence.”

If the learned judge in his illustration had referred to the recognized possibilities of eyes instead of legs, it would have exactly fitted-the case at bar.

In the Harriot case the claimants testified that they were actually occupied fifty days in doing the work charged for, but the amount of work being conceded, and it being within common experience and knowledge that such work could all have been done in a day or two, their evidence that such work took fifty days was held to be no evidence, and not sufficient upon which to base a finding of fact.

So in the case at toar, it being within the experience and common knowledge of men that a person with good eyesight, when his attention was called to a particular object in plain view, must have seen it if he had looked, we think the evidence of the plaintiff, unexplained, that he did look but did not see the train, was not sufficient to raise a question of fact, or such as to require its submission to a jury.. .

In Hudson v. R., W. & O. R. R. Co. (145 N. Y. 408) the question at issue was whether or not the crown sheet of a boiler collapsed, which concededly was caused by being scorched, when covered with six inches of water. The engineer testified that it did, the jury by their verdict found the fact to be so, and judgment for the plaintiff was entered thereon. The Court of Appeals, however, reversed the judgment, holding that there was no evidence to support the finding, because that given by the engineer was in conflict with well-recognized and well-known scientific facts, about which there is no conflict,-and that a nonsuit should have been granted. The court said (at p. 412): “ All questions as to the weight of evidence are .final in the General Term, and this court has no power to review the determination of that court with reference thereto But where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts about which there is no conflict, this court will still exercise jurisdiction to review and reverse, if justice requires.”

In Bagley v. Bowe (105 N. Y. 171, 179) substantially the same rule- is reiterated. Judge Andrews, in writing the opinion of the court in that case, said: “ The question whether the judge was authorized to take from the jury the question of fraudulent intent, arising upon the extrinsic facts, is to be determined in view of the settled rule that to justify the court in directing a verdict in any case upon the facts the evidence must be undisputed, or so certain and convincing that no reasonable mind could come to but one concision. If there is ground for opposite inferences, and a conclusion either way would not shock the sense ~of a reasonable mcm, then the case is for the jury, although the judge may entertain a clear arid decided conviction thatthe truth is on this or that side of the controversy.” - - : .

We think the ease at bar falls clearly within the exception pointed out by the learned jurist, to wit, that the statement of the plaintiff that he looked at the approaching engine, which was in plain view, expecting to see it, but that he did not see it, although his eyesight was good, would shock the sense of a reasonable, man, and that no reasonable man could come to but one conclusion, to wit, either that he did not look, or that he did look and did see the approaching train.

Substantially all the cases to which we have thus far called attention are referred to in the opinion of the court in Fealey v. Bull (supra), and, as we understand it, the doctrine of those cases was fully approved. In concluding the discussion of the question Judge Cullen (at p. 402) says : There must be not only some evidence,, but the evidence must be sufficient in its nature to warrant the court in submitting a cause to the jury. In nearly all the cases where it has been held that a scintilla of evidence was not sufficient to uphold the verdict, the proof has been a matter of inference. But the rule also applies to cases of direct evidence. The testimony of a witness may be in such contradiction of matters of common knowledge or the laws of nature as to be incredible as a matter of law. (Matter of Harriot, 145 N. Y. 540.) A witness may be so discredited by his own confession that his uncorroborated testimony is insufficient in law to justify a verdict. * * * We do not assume to enumerate all the cases where a verdict or a nonsuit should be properly directed. Where, however, the right to a verdict depends on the credibility to be accorded witnesses, and the testimony is not incredible nor insufficient as a matter of law, the question of fact is for the jury to determine.”

If this language, which was so recently approved by a unanimous court, is to be given its ordinary significance and meaning, we must conclude that the learned court considered that although there may be some evidence of a fact, it is not necessary in all cases that such evidence should be passed upon by a jury, and that it is not necessary unless the evidence be sufficient in its nature to warrant the court in submitting a cause to the jury.” We think it is clearly held by the language quoted that the sufficiency of the evidence — and we must assume the court was speaking of legal and material evidence — in some cases at least is to be determined by the trial court.

In McDonald v. Metropolitan Street Railway Co. (supra), .which, is the latest case, as far as we know, where the question at issue has been discussed by the Court of Appeals, the case of Fealey v. Bull (supra) is cited with approval, and, as we understand the decision in the McDonald case, it is not in conflict with any ■ of the cases, referred to, or with any of the prior decisions of the learned court upon the precise question here involved. ■ In that case the court, per Martin, J., says : So long as a question of fact exists it is for the-jury and not for the court. If the evidence is insufficient, or if that ■ which has been introduced is conclusively answered, so that as a matter of law no question of credibility or issue of fact remains, then the question being one of law it is the duty of the court to determine it.”

The meaning of the language cannot be in doubt. In speaking of evidence the learned jiidge must have preferred to legal and material evidence, and precisely the same meaning would have been conveyed if the court had saidIf legal and material evidence offered upon a trial to prove a particular fact is insufficient, or if that which has been introduced has been- so conclusively answered - by other legal and material evidence, so that as matter of law no-question'of credibility or issue, of fact remains, then it is the duty of the court to determine it. To determine what ? Clearly, as to-the insufficiency of evidence, and as to whether or not that which has been introduced has been conclusively answered. And the: court further says : “ The credibility of witnesses, the effect and • weight of conflicting and contradictory testimony, are all questions of fact and not question's of law.”

Thus interpreted the decision is in complete harmony with the-prior decisions of the court which hold that where the evidence is not sufficient to warrant a verdict for the plaintiff it is the duty of the trial judge to decide the question as one of law. Certainly so-interpreted the case cannot be regarded as authority for the proposition that a trial jud'ge must ask a jury to determine a proposition which is conclusively settled by the experience and common knowledge of men, or which is established by the laws of nature, simply because some witness has -given - testimony in conflict therewith. ' We think it is not the law that an issue of fact would be raised' as. to the color of the sun or of the moon, even if a witness should testify that one was black and the other green. Or, in the case at bar, that an issue of fact was raised as to whether or not the plaintiff looked to see the approaching train, because he testified that he did, but did not see it, when conceded'ly his eyesight was good, the train was in plain view, and he had it in mind and was looking for its approach.

Substantially the same rule is laid down in both the McDonald and Fealey cases. In the Fealey case (at p. 403) it is stated as follows : “ Where, however, the right to a verdict depends on the credibility to be accorded witnesses, and the testimony is not incredible nor insufficient as a matter of law, the question of fact is for the jury to determine.”

Under that rule it is clear that if one witness should testify to a fact, and a dozen or fifty witnesses should testify to the contrary, it would be for the jury to determine where the truth of the matter was, and the determination of such fact by the court would be error.

So, too, where a witness or interested party gives evidence of a material fact, and it appears that the witness is discredited by reason of having sworn to a contrary state of facts upon a prior trial or trials, the credibility of such witness is for the jury, and it must determine whether the fact is as then stated by the witness, or as previously stated by him. ( Williams v. D., L. & W. R. R. Co., 155 N. Y. 158.)

If the plaintiff in the case at bar had testified that there was a growth of underbrush at the side of the highway which obstructed his view of the approaching train, and prevented him from seeing it, it would have been the duty of the trial judge to have submitted such question to the jury, even if forty other witnesses had sworn that no underbrush was there, and equally so if it had been shown that plaintiff’s reputation for truth, and veracity was bad, or that he had given testimony upon a previous occasion which was in conflict with the testimony given by him upon the trial. This would be so under the rule above referred to, because the testimony of the plaintiff so given would not have been inherently incredible, and in contradiction of matters of common knowledge or the laws of nature, and so as to be incredible or insufficient as a matter of law.

Since the decision of the McDonald case it seems to have been generally understood by the profession that the rule laid down in Linkhauf v. Lombard (137 N. Y. 417) and in Hemmens v. Nelson (138 id. 517) has been repudiated or overruled. Such does not seem to have been the intention or understanding of the learned Court of Appeals. In the McDonald case Judge Martin, in •speaking of those' cases, says: “ The learned judge who delivered the opinion in that case (Fealey v. Bull), plainly demonstrated that the doctrine enunciated by the court below has no actual support in Linkhauf v. Lombard (137 N. Y. 417) and Hemmens v. Nelson (138 N. Y. 517). He shows that in. those eases there was no sufficient evidence to sustain the.verdicts, and that if there had been this court would have had no jurisdiction to reverse. His examination further discloses that the reversal in the Linkhauf case was upon the ground that the proof amounted at most to a mere surmise, ■and that in the Semmens case the principle that if there is any evidence upon a question of fact it should be submitted to the jury, was .asserted. The clearness and ability with which the question was discussed by him render it unnecessary to further consider it at this time.”

In Fealey v. Bull (supra) J ndge Cullen said (at p. 402): “ Even ,a casual reading of the opinion in the Linkhauf case shows that it is but an authority for the doctrine that, as to the submission of a cause to the jury,- the question is not whether there is any evidencé to make out a case of liability, but whether there is sufficient evidence to establish that fact, and evidence which rests in mere surmise •or speculation is insufficient to present an issue as against the positive evidence of a defendant, or the reasonable and legal inference from facts conceded or established upon the trial. In that case it is :said, referring to the evidence: At most, it was only open to a rsurmise that the defendants were individually concerned in running ■this steamship line, and that was not enough to justify the trial judge in letting the case go to the jury. To permit a jury to speculate and surmise upon a question of responsibility is to withdraw -from the litigant a safeguard intended for the protection of his .rights.’ So, also, in the Semmens case, referring to a .question of fact in the case, the opinion says: Still, however improbable it m.ay appear, if there was any evidence, the question was doubtless for the jury.’ The doctrine of both cases is the same. There must ■be not only some evidence, but the evidence must be sufficient in its nature to warrant the court in submitting a cause to the jury.”

And then the learned judge proceeds as before quoted.

But, assuming that it is now definitely settled by the decision in the McDonald case that “ so long as a question of fact exists it is for the jury and not for the court. * * * The credibility of witnesses, the effect and weight of conflicting and contradictory testimony, are all questions of fact and not questions of law. If a court of review, having power to examine the facts, is dissatisfied with a verdict because against the weight or preponderance of evidence, it may be set aside, but a new trial must be granted before another jury, so that the issue of fact may be ultimately determined by the tribunal to which those questions are confided.”

It by no means follows that the rule laid down by a unanimous court in Fealey v. Bull, only eight months before, has been abrogated, and that it is now the law that the verity of every statement of' a witness, if in form it tends to establish a material issue, must be submitted to a jury for its determination, no matter if such statement be opposed to all experience, common knowledge, the laws of nature and of scientific facts.

We think at least the doctrine stated by Judge Cullen in Fealey v. Bull (supra), and which is but a reiteration of the rule which has prevailed for more than fifty years, is still in force, to wit, that “ there must be not only some evidence, but the evidence must be sufficient in its nature to warrant the court in submitting a cause to the jui’y.” and that “ the testimony of a witness may be in such contradiction of matters of common knowledge or the laws of nature as to be incredible as a matter of law,” and that whether the evidence is “ sufficient in its nature,” or so in “ contradiction ” must be determined by the court.

We think the case at bar falls within the rule thus laid down, and the conclusion is reached that the evidence in this case, offered for the purpose of establishing freedom from contributory negligence, was of a character which did not make that question an issue of fact, and thau, therefore, the learned.trial justice was right in granting defendant’s motion for a nonsuit.

It follows that the judgment appealed from should be affirmed, with costs.

Spring and Rumsey, JJ., concurred; Williams, J., concurred in result; Adams, P. J., dissented in opinion.

Adams, P. J. (dissenting):

This court ha§, recently held that a recovery is not impossible because it can be shown that a traveler, upon a highway ought to have discovered an approaching train in time to have avoided coming into-collision with it, if he had been upon the lookout for it (Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 402), and this decision was followed with approval in Turell v. Erie R. R. Co. (49 App. Div. 94).

In the prevailing opinion it is said that the plaintiff must have seen the train which struck him if he looked at the time and in the direction testified to by him. This assertion is no more true of this than of many other cases in which verdicts on behalf of the plaintiff have been upheld.

The case of Zwack v. N. Y., L. E. & W. R. R. Co. (160 N. T. 362) is one in which the undisputed evidence seemed to make it perfectly clear that the locomotive which struck- the plaintiff must have been seen by any one looking in the direction from which it was approaching, and in considering this feature of that case the Court of Appeals said : But it may be asked, if he (the plaintiff) looked towards the east at all why did he not see the coming train and avoid it? That question may be asked, and generally.iss in every case of this character. It is an argument to he addressed to the jury and not to a court dealing with questions of law only.” So, also,in the case of Greany v. L. I. R. R. Co. (101 N. Y. 419), which, in its main features, is not unlike the one now under consideration, it was said by Danfobth, J.,.that he knew of no exception to the doctrine that where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question whether it was in compliance with that rule (that a party is only bound to make all reasonable efforts to see that a careful, prudent man would make in like circumstances) is for the jury.”

To my mind, it is not so clear that the plaintiff must necessarily have seen the approaching train, if he took the precautions he declares that he did. The accident, it must be -remembered, occurred early in the morning of February 19, 1898,. while it was yet dark, and at a time when it was snowing. When the plaintiff was eight or ten feet from the north track a freight train passed west Upon that track with lights upon the rear end. This train was between the plaintiff and the one coming from the west on the next track south. When the caboose of this freight train was forty or fifty feet west of the plaintiff he looked and listened, but neither seeing nor hearing the approach of the train from the west, he stepped upon the second track and was struck. ■ These circumstances are singularly like those of another case with which this court not long since had to deal, in which it was held that the question of contributory negligence was for the jury, and this view was subsequently affirmed by the Court of Appeals. (Pruey v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 158; affd., 166 N. Y. 616.)

In both the Zwack and Pruey cases it seemed to me that the evidence of contributory negligence was too clear to admit of that question being submitted to the jury; but having been admonished that my position in those cases was untenable, I do not see how it is possible to sustain the decision of the trial court in this case, in which the evidence of contributory negligence is certainly no more convincing than that in the cases referred to, without disregarding the rule established by the court of last resortj that in cases of this character the argument of “ incredibility ” is one to be addressed to the jury, and not to a court dealing with questions of law only.” (Zwack v. N. Y., L. E. & W. R. R. Co., supra; McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66.)

I am, therefore, constrained to dissent from the prevailing opinion in this case.

Judgment affirmed, with costs.  