
    John E. Luther, Respondent, v. Fonda, Johnstown and Gloversville Railroad Company, Appellant.
    Third Department,
    January 21, 1914
    Railroad—negligence—failure of trolley car to stop at station—injury to former passenger while walking upon right of way—liability of defendant.
    The plaintiff, a passenger upon a trolley car, was carried past his station owing to delay in paying his fare, which the conductor did not attempt to collect until the car had nearly reached the station. According to the plaintiff’s testimony the car stopped several hundred feet short of the next station. The plaintiff alighted and while attempting to walk back on the defendant’s right of way, in the night time to his own station, fell into a culvert. The defendant’s testimony was to the effect that the car had reached the next station, so that the plaintiff could have taken the public highway. On all the evidence, held, that a verdict for the plaintiff was not against the weight of evidence and that a judgment in his favor should be affirmed.
    Under the circumstances the defendant was liable for any injuries resulting to the plaintiff while exercising care in an endeavor to reach a place of safety.
    Smith, P. J., and Kellogg, J., dissented.
    Appeal by the defendant, Fonda, Johnstown and Grloversville Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 5th day of June, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 9th day of June, 1913, denying the defendant’s motion for a new trial made upon'the minutes.
    
      Charles S. Nishet, for the appellant.
    
      Samuel Levy [Charles G. Fryer and Edgar T. Brackett of counsel], for the respondent.
   Woodward, J. :

The plaintiff in this case became a passenger upon the defendant’s interurban trolley car at Schenectady, about nine o’clock in the evening of July 14, 1912, his destination being a place known as Eector’s Station. The night was dark, the car was crowded, and the plaintiff, with a companion, went into the smoking compartment, and the conductor does not appear to have applied for his fare until about the time they reached Eector’s Station. The plaintiff’s version is that when about 400 feet from the station he signaled to the conductor to stop, but that the conductor looked out of the window, and when the plaintiff handed him a two-dollar bill from which to take the fares the conductor told him they had already passed the station; that the conductor rang the bell and the car came to a standstill at a point several hundred feet short of the station known as the Washout, and which was about a quarter'of a mile beyond Bector’s Station, the running time between the two stations being one minute. The plaintiff says that the conductor told him to get out of the car; that he did so, and that the car immediately proceeded on its way; that the plaintiff and his companion looked around them but could see no station, no highway, no signs or anything to indicate their position, and that they determined to return to Bector’s Station by way of the defendant’s right of way; that plaintiff walked in the space between the double-track railroad, while his companion walked between the rails, and that after coming in contact with the trolley poles, etc., he suddenly fell into a culvert and received the injuries for which the jury has awarded him $3,000. The accident happened about 400 or 500 feet from the point where the plaintiff alighted from the car, but we are of the opinion that, under the circumstances narrated by the plaintiff, the defendant was liable for any injury resulting to the former while exercising reasonable care in his progress in reaching a place of safety.

The defendant’s conductor and motorman both testified positively that the car stopped at the Washout station, and that the station was lighted, and that the plaintiff and his companion alighted at this station, and they are corroborated in this by a passenger who appears to have been entirely .disinterested. Of course, if this was true, and the plaintiff was properly landed at a station connecting with a highway, and he voluntarily attempted to return to Bector’s Station by way of the defendant’s right of way, there would be no liability on the part of the defendant, for the latter does not invite persons to use its right of way in this manner, and the Bailroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], § 83) forbids persons making such use of it; but the difficulty is that the plaintiff and his companion testify to a different state of facts, and one which involves liability. Mere numbers of witnesses, even where some of them are entirely disinterested, from a legal standpoint are not controlling upon the weight of evidence, and where there is nothing inherently improbable in the facts and circumstances narrated, it is usually safe to rely upon the determination of the triers of fact. Either story is entirely probable; there is no particular reason why the facts may not have been as the plaintiff and his companion narrate them; the jury has accepted this version, and we are not disposed to hold that the determination is against the weight of evidence.

The judgment and order appealed from should be affirmed, with costs.

All concurred, except Smith, P. J., and Kellogg, J., dissenting.

Judgment and order affirmed, with costs.  