(dissenting). — The car in which the plaintiff was injured was one of a peculiar, cheap class, run for the accommodation of persons who did not wish to pay the usual first-class passenger rates; and it was understood that passengers traveling in it were to serve themselves, at least so far as taking care of the sleeping berths provided were concerned. It was not the duty of any railroad employé either to raise, lower or secure the berths. Therefore, the *392fact that the berth in question fell carries with it no presumption that any agent of the company was the cause of its falling, in the absence of any showing that its construction was faulty. Therefore, I dissent from the opinion of the majority of the court in this case, because it seems to me that, considering the instructions of the lower court as on the whole harmonious, and therefore not objectionable in those parts wherein it instructed the jury as to the facts necessary to constitute negligence towards the defendant, the jury by their foldings seem to have entirely disregarded the charge, and to have rendered a verdict not justified under its instructions. The testimony was not brought up to this court, but the evidence is here in the form of a narrative statement of facts. This statement shows very clearly that the plaintiff below, shortly after the accident to her, wrote a letter to an agent of the railroad company, and complained that she had been injured by the negligence of one of the company’s employés. The agent to whom she wrote immediately requested further particulars. Whereupon she replied, stating the manner of her injury, and that it was a newsboy who had raised the berth, and left it either not fastened at all, or insufficiently ¡fastened. Upon the trial she did not state with any degree of positiveness, or to the best of her knowledge and belief, that it was a brakeman who so insufficiently raised the berth, but simply that she thought so; and, upon her attention being called to the letter she bad written in which she stated that it was a newsboy, she admitted having written the letter, and stated that her recollection as to who it was that raised the berth would probably have been better when she wrote the letter than at the time she was testifying. This, it seems to me, left the matter substantially as though the plaintiff had not testified at all on the subject. When she wrote the letter, she had no definite knowledge, and she stated nothing which could have warranted the jury in supposing *393that she had been better informed since; and, therefore, her testimony as to the person whose act indirectly caused the accident was entirely worthless. In such case, under the charge of the court, it was for the plaintiff to make out with reasonable certainty, by a preponderance of the evidence, that it was an agent of the company whose negligent act caused her injury. This she failed to do, and I think the court should have set aside the verdict upon that ground. This court, in its opinion, says that the jury might have believed the testimony of the plaintiff wherein she stated it was' a brakeman who raised the berth. If she had stated that, perhaps the jury might have been warranted in doing so, but she did not so state. She simply stated she thought so, which, in the presence of her earlier —and, as she admitted, better — statement, carried no force with it. The jury had no right to disregard her admittedly better statement, and base their verdict upon the inferior one. The court charged the jury over and over again that if the berth, the falling of which caused the injury complained of, was loosened or negligently pushed up by some person not an employé of the defendant, and over whom the defendant had no authority or control, then, in that case, the plaintiff had failed to establish her allegation; and it also charged that a news agent was not an employé of the railroad company, or a passenger thereof, and that if it appeared from the evidence that the berth was pushed up by a news agent at his own motion, or at the request of some person not in the employ of the defendant, then their verdict should be for defendant. When a jury thus disregards the law as given to it by the court, the latter should instantly set its verdict aside.
Anders, C. J., concurs.