The action was brought for damages for personal injuries which the plaintiff claims to have received while a passenger in a street car upon one of the defendant’s railways. No evidence was given on the part of the defendant, but the complaint was dismissed at the close of the plaintiff’s case. As stated by the plaintiff she was a passenger in an open car of the defendant, riding along on Fifty-ninth street easterly. Near the corner of Third avenue and Fifty-ninth street a truck, with a horse or. horses attached, was standing in the street by the side of the track. The plaintiff was sitting on the same side of the car as that on which the truck and horse stood. She said that the car passed the truck but struck the horse, whereupon the horse began to jump and sprang into the car and sat down on the plaintiff, causing her very serious injuries. • Upon her direct examination she gave no reason why the car which had passed the truck without difficulty should have struck the horse, but upon her cross-examination, when asked how she explained that' apparent discrepancy, she stated that the truck was near the track, but the horse stood on the track. This was substantially all the evidence as to the way in which the accident occurred. The jury might have' inferred from this testimony that the horse was standing upon the track at the time when the driver attempted to pass; and if that be so it was probable that the horse would have been struck, and it would have been proper for them to infer that the attempt of the driver of the car to pass the horse standing upon the track was negligence, and for that'reason it was error to dismiss the complaint, but the case should have been submitted to the jury.
The judgment, therefore, must be reversed, with costs to the appellant to abide the event.
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., ■ concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.