
    Stephen H. Grogan, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence — injury to a passenger on a railway from, being kicked by a person entering the car by the window —it presents a case for the jury, as to- the proper inferences to be drawn from the fads —failure to move for judgment is a waiver of objection to the submission of the case to the jury.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff while a passenger upon one of the defendant’s cars, in consequence of the fact that, while he was seated in the car at a station a person, who had undertaken to enter the car through the window, kicked the plaintiff in the face, there was evidence tending to show that at the station in question people had frequently entered the defendant’s cars by climbing through the windows, and it did not appear that the defendant took any measures to prevent the practice,, although one of the defendant’s employees testified that he .knew of its existence.
    At the close of the evidence the defendant moved for the direction of a verdict, and upon the court asking the plaintiff’s counsel if he joined in the motion the latter replied that he would prefer to go to the jury. The case was submitted to the jury in a charge, to which no exception was taken and in which the following questions were submitted: First, -whether the practice, of passengers, of entering the cars through the windows was so common that the defendant either knew or in the exercise of reasonable care should have known of it; and,second, if the defendant knew or should have known of it, whether, in the exercise of a reasonable degree of foresight, it should have foreseen the likelihood of injury to passengers from such a way of ingress.
    The jury rendered a verdict in favor of the defendant, which was set aside by the trial court.
    Held, that the order setting aside the verdict should be reversed and such verdict be reinstated;
    
      That the plaintiff having declined to join in the motion for the direction of a verdict, and having expressed a desire to go to the jury, he could not be heard to contend that the evidence established that the defendant was guilty of negligence as matter of law and that the case should have been disposed of as one of law;
    That while the case was one in which the facts were not disputed, yet reasonable minds might differ as to the inferences to be drawn therefrom;
    That the case was, therefore; properly submitted to the jury and that the court was not j ustifled in setting aside their verdict simply because, in his judgment, the jury should have drawn a different inference.
    Hibschbbbg, P. J., and Rich, J., dissented.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 7th day of December, 1904, setting aside the verdict of a jury in favor of said' defendant.
    
      I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
    
      Sanders Shanks, for the respondent. |
   Miller, J. :

The plaintiff was a passenger of the defendant, seated' in one of its cars. A person undertaking to enter the car through the window in some manner undisclosed by the record kicked the plaintiff in the face, breaking his nose. It appeared that at the station where the accident occurred during rush hours people had frequently gained'ingress to the cars by climbing through the windows, and it does not appear that the defendant took any measures to prevent the practice. One witness, an employee of the defendant, called by it, testified that he had seen people climbing'in through the windows four or five times during the six months prior to the accident. The other employees at this station testified that they had never seen or heard of any one doing it. All testified that they had never heard of an accident from that cause.

At the close of the evidence the defendant moved for a direction of a verdict, whereupon the court asked the plaintiff’s counsel if he joined in the motion, to which he replied : I should prefer to go to the jury.” The case was submitted to the jury in a charge free from error, to which no exception was taken. Two questions were submitted to the jury, first, whether the practice was so common that the defendant either knew or in the exercise of reasonable care should have known of it; and, second, if the defendant knew or should have known of it, whether, in the exercise of a reasonable degree of foresight, it should have foreseen the likelihood of injury to passengei’s from such a way of ingress; and upon a verdict being rendered in favor of the defendant, the court set it aside as against the weight of evidence. From the order setting aside the verdict this appeal is taken.- On a former appeal to this court from a judgment entered upon a nonsuit, the judgment was reversed and it was held that a question of fact was presented for the jury. (Grogan v. Brooklyn Heights R. R. Co., 97 App. Div. 413.)

The respondent.urges that the evidence establishes negligence as matter of law, but having declined to accept the invitation of the court to join in the motion for a direction of a verdict, and having expressly requested to go to the jury, he cannot now be heard to say that the case should have been disposed of as one of law; and in any view it is clear that the evidence did present the two questions of fact which were clearly presented to the jury'in the charge of the learned trial justice. Appellate courts properly exercise great caution in interfering with orders of the trial courts setting aside verdicts as against the weight of evidence, because the exercise of that power is frequently necessary to prevent injustice, and the trial court has the advantage of a personal observation of the witnesses to judge their credibility. In this case, however, there is no conflict in the testimony. The question is what inferences are to be drawn from the undisputed evidence, and the facts from which these.inferences are to be drawn are contained in the record before us. The mere fact that the trial justice thought the jury drew the wrong inference did not warrant him in setting aside the verdict as against the weight of evidence in case the inference adopted by the jury was fairly warranted by tlie evidence. "Where the facts are undisputed, unless reasonable minds could draw different inferences therefrom, the question should be disposed of as one of law, and it would seem, therefore, that the submission of the question to the jury involved a determination that reasonable minds might differ on the question. Reasonable minds might easily differ as to whether an ordinarily prudent person in the exercise of reasonable care should have apprehended that in jury was likely to result to some passenger from the custom disclosed in this case. The learned justice before whom the case was first tried thought that there was not even a question for a jury and nonsuited the plaintiff; twelve jurors who were probably not predisposed to favor the defendant have said that the evidence does not warrant the inference of negligence. Unless the judgment of the court is to be substituted for that of the jury the verdict of the jury should be permitted to stand. The plaintiff had an opportunity to take the judgment of. the court, but having determined to take his chances with the jury in a case which must be disposed of upon evidence from which reasonable men would be as likely to draw one inference as the other, he should be content with the verdict thus rendered.

The order should be reversed and the verdict reinstated, with costs.

Bartlett and Woodward, JJ., .concurred; Hirsohbero, P. J., and Rich, J., voted for modification of the order by requiring the plaintiff to pay within twenty days the costs of the trial and all disbursements in the action to the date of the order, and as modified for affirmance, without costs, upon the opinion of Mr. Justice Dickey at Trial Term.

Order reversed, with costs, and verdict reinstated, with costs. 
      
      The following is the opinion of Mr. Justice Dickey:
      Dickey. J.:
      It seems to me that to allow the plaintiff to go out of court with a broken nose and with a bill of costs to pay without any redress would be a miscarriage of justice. He was in nowise at fault, but was sitting in his seat as a passenger when a person at the Thirty-sixth street station climbed through the window of the car head first and struck plaintiff a violent blow on the nose with his foot, because he was getting in the car by the window instead of the orderly way by the door. Such a way to gain access to cars carries with it, necessarily, some discomfort and damage to people already in the cars. The proof was that the railroad company permitted it from time to time, immediately before this occasion, without any effort to stop it while it was being done or after they knew it was being done. In this case it was done apparently in the sight of their one station man, without any hindrance on his part or on the part of any of the trainmen.
      Defendant, should be held to pay some damages. Unless there is some redress, such as by recoveries in actions of this kind, it will not be safe for people to ride on the cars at the times that crowds are allowed by the railroad company to gather ai, its station platforms and climb in windows.
     