
    Pablo Calcerrada, Plaintiff and Appellant, v. American Railroad Company, Defendant and Appellee.
    No. 3766.
    Argued January 13, 1926.
    Decided July 22, 1926.
    
      E. Martinez Aviles for the appellant. Mariano Acosta Velarde for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the court.

After the plaintiff had introduced his evidence and rested the court, on motion by the defendant for nonsuit, ruled that the evidence was not sufficient to support a judgment for the plaintiff and dismissed the case. That ruling of the court is one of the errors assigned by the appellant in his Appeal.

The action was for damages claimed by the plaintiff because while a truck belonging to him was discharging its cargo at the station of the defendant Railroad Company in the city of Arecibo, the said truck being on the railroad track, some cars of the defendant company suddenly arrived without control and loose from their engine, through the carelessness and negligence of the company’s employees, and collided, with the said truck and injured it to the extent of the amount claimed.

There was no discrepancy in the testimony of the witnesses for' the plaintiff with respect to the occurrence of the fact in the manner stated, but there was some contradiction as to whether or not the truck was on the track with the consent of the defendant’s employees, for while the chauffeur of the plaintiff testified that it was the custom to put the trucks there and nobody objected to it, and that the defendant’s employees authorized their standing there, another witness for the plaintiff, station agent Rafael Torres, said that he did not authorize the putting of the truck at that place, as it was prohibited, and that though some people want to discharge cargo there, their attention is called to the fact that that is no place for discharging cargo.

The judgment on a motion of nonsuit must rest on the lack of evidence for the plaintiff to sustain his complaint, but no weighing of the evidence is made. Gonzáles v. González, 30 P.R.R. 765. In this present case there was some evidence to the effect that the defendant permitted trucks taking cargo to the station to stand on the railroad track, and although this was contradicted by another witness for the plaintiff, the court can not, on a motion for nonsuit, decide the .question of a conflict in that evidence.

Therefore the judgment appealed from should be reversed and remanded.  