The complaint herein, was dismissed at the close of the plaintiff’s proofs. The action was brought to recover damages, for injuries sustained by the plaintiff through the 'alleged negligence of the «defendant’s servants. The accident occurred while the plaintiff was going from a bridge to a t>oat belonging to the defendant. She *561showed by her own testimony that she entered the ferry house of the defendant at Greenpoint, Long Island, and, having paid her fare, passed through to take the boat to New York. Walking .along the bridge she observed, on reaching the boat, that it was a little higher than the bridge, but nothing else. While in the act of stepping from the bridge to the boat, one of her feet was caught and pulled down. “ The boat went to and fro. As the boat took this •action my left foot came from the boat; my foot had gone in * * * between the boat and the bridge.” She sustained some injury to her foot. The testimony of the plaintiff, therefore, in effect indicates that the boat was not properly secured to' the bridge, and that there was a space in which it played to and fro as well as rose and fell with the action of the tide. From her statement the inference ,is to be drawn that as she looked at the boat she observed nothing but the difference in height between it and the bridge, which observing .she could regulate her step to meet. It is a rule constantly referred to that in determining the propriety of the dismissal of a complaint we must accept and act upon the inference most favorable to the plaintiff; and here the testimony is sufficient to allow the inference that there was negligence on the part of the defendant’s servants in failing properly to secure the boat to the bridge, and the plaintiff’s freedom from contributory negligence may also be inferred from her own testimony.
It is claimed, however, that she called as a witness^ Daly, who testified that the boat, at the time this accident is said to have •occurred, was securely fastened to the bridge, and that it did not and could not move. This raised an issue between the plaintiff and Daly, who testified to those matters on his cross-examination. He was called by the plaintiff for the purpose of giving a description of the mechanism used by the defendant, and as to certain technical matters which it was appropriate for the plaintiff to .give in evidence. But what was testified to by this witness in his cross-examination is not to be regarded as conclusive upon the plaintiff. Daly was an adverse witness, for he was in the employ •of the defendant. The questions asked on his cross-examination did not relate to his direct examination. He was made the defendant’s ■own witness to prove the defendant’s own case under the objection *562of the plaintiff’s counsel. Doubtless the court could, for purposes of convenience, permit that course to be pursued, but the plaintiff could not be bound by that testimony, nor be precluded from showing or contending that the witness was mistaken. To iise the language of Finch, J., in People ex rel. Phelps v. Oyer & Terminer (83 N. Y. 459), as to the new matter, the witness became the defendant’s witness, and in substance and effect the cross-examination ceased. And so in Green v. Metropolitan St. R. Co. (42 App. Div. 163) the-gripman operating the defendant’s car was called by the plaintiff for a particular purpose, but was examined by the defendant as to-other matters, and it ivas held that as to all such other matters he was the witness for the defense and the plaintiff was not concluded by his testimony. The discrepancy in the statements of the plaintiff and the witness Daly Should have been submitted to the jury to-determine which they would believe.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred; Ingraham, J., dissented'