On the 23d of August, 1891, the plaintiff with her father was riding on a horse car of the defendant. That car was a summer car with side curtains, which, as the day was rainy, were down. Just before they reached the place of their destination, the father notified the conductor to stop the car and himself alighted. The plaintiff then attempted to get out of the car, when'she fell and received the injury of which she complains and to recover for which she brings this action.
The case was ’tried in March, 1896. At that time the plaintiff’s father was dead and the driver and conductor of the car had left the employ of the defendant, so that no witnesses could be produced upon either side to testify as to the manner in which the accident occurred, save the plaintiff herself. Consequently, there was no testimony given by the defendant as to the manner in which the accident happened, except a declaration in writing of the plaintiff, made shortly after the occurrence, which will be referred to later.
The plaintiff had a verdict for a small amount, and after a motion for a new trial had been made and denied at the Trial Term, this appeal was taken. The defendant does not rely upon any excep*450tion. taken upon the trial, but based its motion, and bases this appeal,, solely upon the ground that the evidence was not sufficient to war^ rant the verdict, and that is the only question presented upon this hearing. ¡
It is ¡undisputed that the plaintiff was a passenger upon the ■defendant’s railroad; that she was about to alight from the car, and fell either just after she had stepped off of the car or while she was in the act of stepping from it. Her story of the transaction is not perfectly clear, and it is claimed by the defendant that it is so com tradictory that the jury are not justified in believing it.
Upon her direct examination, after stating some few preliminary facts, the plaintiff testified that her father notified the conductor to stop. . “ My father gave the signal to the conductor. to stop. I could not tell whether the conductor stopped the car. Q. Don’t you know whether the car was stopped when you tried' to get off ? A. He stopped, 'and as I was getting out •*— ” Then came a question which was objected to. Then the court asked the witness: “What were you going to say as you got out? A. The car was getting in motion, and as I was getting out the car got in motion- and I fell.' Q. It started? A. Ves, sir.”- Then in answer to the plaintiff’s counsel,she stated again: “ My father went out first. It was a rainy • day. There were no curtains up; they were down. * * * The car was in motion, and as I was trying to get out the curtain was lifted on the side, and I slipped and fell down-as the car was in motion.” . By the Court: “ Q. Was the car in motion as you were alighting ¡to get out ? A. Yes, sir: Q. It was moving as' you were trying-to get out? A. Yes, sir. Q. Had it stopped at all ? A. No. Q. Never stopped ? A. It stopped, and as I was trying to get out it got in motion. The car was in motion. Q. Had it stopped before that ? A. I could not tell.”
In answer to her counsel she testified again : “ Q. You said just-now that .¡it stopped, and you said you Could not tell. Now, which is it. ' Had the car ever stopped before you fell ?■ Just think it over. Had the car stopped at all before you fell ? A. The car stopped. It stopped as soon as. father gave the motion to the conductor. That was before-1-fell. The car stopped before I fell, and then it started up again, aftér. that, just before I fell, Q, I want you to. tell thei jury whether the car was at a full stand still when you attempted to get *451out ? A. My father gave the signal; yes, sir.” The witness was then told to tell the jury all that happened from the' time her father gave the signal to the conductor to stop until she fell off, to which she replied by telling the streets over which the car had gone after she boarded it. Then she proceeded : “ My father, I think, gave the "signal to stop. As he was giving the signal to stop, the car stopped as I was getting out. Father went out first. As father got out first, he stepped out and gave the signal, and as soon as he gave the signal he got out and the car stopped, and as soon as I got out the car got into motion and I fell down, and I don’t know anything more about it. After I fell down I was unconscious.”
She was then asked by the court: “ Q. I did not understand what you said a minute ago. Did the car stop before you started to get down? A. Yes, sir. Q. Or not? A. Yes, sir. Q. The car stopped first? A. Yes, sir. Q. Then you tried to get out? A. Yes, sir. Q. And fell down ? A. Yes, sir. Q. How did you come to fall ? A. As I was getting out the car stopped and I made a mistake. The car was slippery. It was raining, and as I was getting out I slipped. The car gave a jerk and I fell down, and I don’t know anything more about it. Q. What happened first, your slipping or the car starting ? * * * A. As I was slipping — as I was getting out I slipped, and the car was in motion and I fell. * * * Q. Did you slip before the car started off ? A. I slipped. Q. Yon slipped first? A. Yes, sir; as I was getting out of the car, it was in motion and I fell. * * * Q. Did tlie car stop before you slipped, or when you slipped, or did you slip at the same minute? A. I slipped at the same minute.” This last question was asked by the court.
Upon her cross-examination the witness stated nothing that was material as to the way in which the accident occurred. She was, however, upon her cross-examination, confronted with a paper which she signed, which contained printed questions and answers written by a physician. So far as material, these questions and answers were as follows : “ Q. What day and what hour did this accident occur ? A. Sunday, August 23rd, 1891, at 11:10 p. m. Q. Where were you when it occurred ? A. Getting off the car. Q. Was the car standing or moving ? If moving, about how fast ? A. The car was standing, Q. Give full account as to accident as witnessed by *452you ? A. I do not know how I happened to fall. I think I must have slipped off the step of the ear, as it was raining and the car step was very wet. The curtains of the car' were hanging and I could not see very well where I was stepping. When I fell I landed on my side with my foot, under me.” That is substantially all the evidence which was produced by the plaintiff or against her as to the manner in which this accident happened.
One observation at once occurs to one examining this evidence, and that is that it was susceptible of a construction that the witness either started to get off the car when it was in motion, after it liad been stopped for her father, or that the car started with a jerk as she was getting off. If the latter was the fact, that the car started as she was getting off, it must be conceded that it was negligence on the part of the defendant for which it would be liable. (Roberts v. Johnson, 58 N. Y. 613.) If the other hypothesis be the correct one, that the car had stopped, but started before the plaintiff had gotten off of the car, and while she was attempting to do so, and she fell because of the unexpected start, still the question whether the accb dent was: caused by the defendant’s negligence and the question whether the plaintiff was guilty of contributory negligence- was a question for the jury. (Eppendorf v. Brooklyn City & Newtown R. R. Co., 69 N. Y. 195.) Either of these hypotheses might have been adopted by the jury upon the testimony as it stood. It must, be remembered that the ease could not have been taken away from the jury by the court. If a motion for a nonsuit had been made, the plain tiff,,upon the decision of that motion, was entitled to have all the evidence construed in the manner most favorable to her contention, and every inference drawn in her favor which could be thus drawn^ and if, upon that construction of the evidence, the jury would have been warranted in giving her a verdict, the court would not be justified in taking the case from the jury. (McPeak v. N. Y. Central & Hudson R. R. R. Co., 85 Hun, 107; Harris v. Perry, 89 N. Y. 308, 311; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 653, 656.) If a motion for a nonsuit had been made, or the court had been asked to direct a verdict for the defendant, the plaintiff would be entitled to insist that the evidence should be so construed in passing upon that question as to establish that she was thrown down by a jerk given to the car as she was getting out. Therefore, we *453must start in the examination of this testimony with the proposition that the case must have been sent to the jury.
There was no evidence directly contradicting the plaintiff, except the written paper which was produced, even if that paper had that effect. It appeared from the testimony of the plaintiff that when that paper was written she was under the influence of ether which had been given to her to relieve the severe pain from which she sufered because of the accident. This was not disputed. The weight to be given to that paper, therefore, was solely a question for the jury. They might well have found that, under the circumstances, the statements in the paper were not to be accepted as contradicting the plaintiff’s testimony. But that paper does not necessarily contradict the story told by plaintiff upon the trial. It is evidently incomplete, and as she says it was what “ she thinks ” must have happened. Such a story told while she was under the influence of ether might well have been disregarded by the jury. Her testimony given upon direct examination, while it was halting and not at all' clear, as might well be the case so long a time after the accident occurred, was not so inconsistent or contradictory as to deprive her of credit. As to the main facts, that the car was in motion or started with a jerk, when she attempted to get out, there was no uncertainty in her testimony. She reiterates that fact every time she tells how the accident happened. In either case it was negligence for the defendant to start the car as the witness was about to get out, and the jury might have found that such negligence caused the accident. We are, therefore, confronted with this condition of affairs : The case was one in which a motion for a verdict for the defendant could not be granted because the most favorable construction reasonably to -be given to the evidence would warrant a recovery by the jflaintiff. Whether the alleged contradictory evidence was of sufficient weight to contradict the plaintiff’s testimony, was purely a matter for the jury, because of the circumstances under which it was given. Contradictory inferences might have been drawn from the testimony given upon the plaintiff’s direct examination, and where such inferences are to be drawn they must be drawn by the jury. There is no aspect of the Case in which it can be said that the evidence could be taken away from the jury and the question passed upon by the court. It must not be forgotten that questions of this *454kind are¡ peculiarly questions for the decision of [he jury. That rule has never been questioned. The question for the jury arises not only when there is a conflict of testimony -between witnesses, but when varió us inferences may be drawn from undisputed testimony. The jury must settle the dispute or they must decide which inferences they will draw. There is"no rulé which requires -more evidence in a case of; this kind than in any other civil case. All that is necessary in any case is that the plaintiff should establish hy a preponderance of evidence the facts which -she alleges. In this case there was no testimony against her, and the- casé could only he taken from the jury, if the court is able to say, as a matter of law, that her testimony is so contradictory and inconsistent as to be wholly incredible,. No such conclusion can he- reached. The most -that can he said is that the evidence -was weak; that the conclusions to he drawn from it were doubtful. But when that is said the necessity of referring these thijigs to the jury cannot be denied. Upon the whole case there cari, he no doubt that the evidence was properly submitted to the jury,, and that their verdict should not be set aside.
Pattersoít, L, concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event, i ' ■