This action was instituted by Annie T. Murray, as administratrix, etc., against the defendant to recover damages for causing the death of the intestate by its negligence. Upon the trial it appeared that plaintiff’s intestate, was struck by one of defendant’s cars on the Western boulevard, between Sixtv-fourth and Sixty-fifth streets, at a quarter to twelve o’clock on the night of July 29, 1893, and sustained injuries that caused his death, on the following day. The manner in which these injuries were received was detailed by two witnesses produced by the plaintiff, who claimed to have seen the accident, one being a saloon keeper and the other his assistant. They testified that, while sitting on the saloon steps, about 150 feet from the place of the accident, their attention was attracted by a cry, and they ran toward a car which was coming north; that they saw the driver put on his brake and bring the car to a stop within its length, and when they reached the car the intestate was lying with most of his body under the car, between the front and rear wheels; that his legs were separated, the feet pointing to the front of the car, the front wheel between his legs close up to his body, and that at this time he was uninjured ; that while they were trying to get Murray from under the car, the passengers and bystanders pushed the car back a few inches, the forward wheel running up on Murray’s body, thus inflicting the injuries which caused his death.
With this account of the accident the plaintiff seemed satisfied *612and rested, and thereupon a motion was made to dismiss the complaint, which was denied. As there was. nothing in this evidence tending tó show negligence upon the part of the driver, or freedom from contributory negligence upon the part of the injured man, the motion should have been granted. This is practically conceded- by the resjiond'ent, because on this appeal lie abandons the story of version given by his own witnesses, and insists that, upon the evidence adduced by the defendant,, there was sufficient to present the question of defendant’s liability to the jury. This reliance is mainly upon the evidence of the witness Meisner, which may be briefly summarized : He testified that on the night in question he Was standing on the front platform 0f the car, smoking a cigar, and that though it had been raining that day, the evening was pretty clear, but lie saw along the boulevard in different places small pools of water, the result of the rain; that after passing Sixty-fourth, or Sixty-fifth street he saw a dark object lying between the car tracks and thought it was water, but upon getting closer, he saw it was the form of a man; that he was lying with one leg on the outside of the track, the body and one leg on the inside of the track, and the head towards the upper part of the street; that the horses shied as they got within a few feet of the object, and as the horses got to one side lie noticed what it was; that he. cried out,. “'There- is¡ a man, but not exactly hollered, but I spoke to the driver; ” that the gentleman who was on the platform with him.noticed it .at the same, time. “ As far as I can recollect the driver put down his brake immediately, but'had not time enough to stop the car in running lip against the body. I don’t know whether the car, at least the Wheel, passed over' his body or not; to that I cannot swear. . As far as I can remember the body lay in front of the front Wheel. * * * Beyond putting on the brake and holding the horses in check I-could not exactly say what the driver did. He was on-the car when I got off. He was holding the brake himself. The words were given, push the car back. . It was pushed back. I can’t, remember .exactly whether the man was taken out * * * after or before the car was pushed back. * * * I saw the man lying, on the track before the wheel struck him. I can’t say whether it was the car struck the body or whether it was the motion of the brake that gave the car’ a jerk.”
*613This witness was unable to determine just how far the car was from Murray when he first observed him lying upon the track; but his testimony can be read so as to make it consistent with that of the driver and another witness examined by the defendant,, that by reason of the trees that skirt the boulevard and throw a shadow upon the track, and the condition of light that prevailed on that •evening at the time the accident occurred, neither he nor the driver nor the other witness saw or could see the object until the horses-were almost to it, when they shied, and the driver immediately put on his brake and checked the speed of the car. And while the car reached Murray, it is doubtful whether the wheels or any portion of the car had then- struck him, none of the witnesses testifying positively as to that fact, and there being. testimony from which the inference could be drawn that the car ran to the place where the body was lying without the wheels having touched him. But whether the wheels touched him or not, or whether the injuries were caused by the passengers and others subsequently pushing back the car upon Murray as he lay on the track, is entirely immaterial, because, taking the testimony of the witness Meisner upon whom the respondent relies, it is shown beyond question that the driver was not guilty of negligence Which in any way caused the injuries. He could not have anticipated that at that time of night any one would be lying upon the track; and all agree that as soon as his attention was called to that fact, whether by the voice of Meisner or by the shying of the horses, he did all that lay in his power to avert the injury by putting on the brake and stopping the car within its own length.
The theory upon which the learned trial judge seemed to proceed was that, while there was no negligence in the fact that the driver did not sooner see Murray lying on the track ; as soon as he did or should have seen him, he was bound to use every reasonable effort to prevent injury to him. But the uncontradicted evidence is that this is just what he did, and there is no evidence from which a contrary inference can be drawn. This theory upon which to predicate the defendant’s liability must, therefore, equally with the others advanced, be disregarded; for the reason that, reading the record, we find an entire absence of any evidence to justify the jury in inferring that the negligence of defendant’s driver was the sole *614cause of the, injuries from which Murray died. This being the:condition of the record, the motion made at the end of the entire case to dismiss the complaint should have been granted.
"We thinkj therefore, that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred. '
Judgment reversed, new trial ordered, costs to appellant to abide event. ■ !