
    SKINNER v. ERIE R. CO.
    (Supreme Court, Appellate Division, Second Department.
    June 6, 1913.)
    Appeal from Trial Term; Orange County. Action by Frances Skinner, as administratrix of John A. Skinner, deceased, against the Erie Railroad Company. From a judgment for plaintiff, and from an order denymg defendant’s motion for a new trial it appeals. Affirmed. John Bright, of Middle-town, for appellant. Rosslyn M Cox of Middletown (Abram F. Servin, of Middletown, on the brief), for respondent.
   PER CURIAM.

Judgment and order affirmed, with costs.

JENKS, P. J., and RICH and STAPLETON, JJ., concur.

BURR, J.

I vote to reverse, upon the ground that the verdict is against the weight of the evidence. Defendant is not liable unless the “pusher engine” moved forward. All of the direct evidence given by every witness called by the plaintiff or by the defendant is to the effect that it did not move. As against this, plaintiff contends that if the head of the train stopped exactly where the witnesses say that it did, and if the pusher engine stopped in the first instance exactly where some of the witnesses say it did, and if the body was found exactly where Taylor and Cook say that it was, the pusher engine must have moved, since otherwise the rear of the caboose and the front of this engine could not have come in contact. The measurement of distances by witnesses under such circumstances, and the exact location of a body after an accident resulting in death, are circumstances about which witnesses may be both honestly and easily mistaken. On the other hand, the engineer and fireman .and the other employés of the railroad company eould not be mistaken as to whether the engine moved or not. Either it did not move, or they deliberately testified falsely. Positive evidence of a certain character like this, not improbable, and where the witnesses are neither impeached nor their testimony shaken on cross-examination, is not overcome by evidence so uncertain and liable to error as that upon which plain-tiff must depend to sustain her verdict,

THOMAS, J., concurs with BURR, J.  