(concurring):
I concur with my brother Woodward, in his conclusion that the judgment and order should be reversed, but I express no opinion on the question of the failure of the plaintiff to prove the absence of contributory negligence on the part of her intestate. I thus vote for the reason, that I am dissatisfied with the verdict, in that I think it is against the weight or the preponderance of the evidence. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66, 70.) I cannot accept the verdict as the final determination of a jury when it is based upon the testimony of a single and, to me, an unsatisfactory witness, who saw the accident from a distance, and who testifies that the lurch of this car while going around the curve threw an adult over a chain, which guarded the front platform, at an approximate height of three or three and a half féet. If such a story does not tell of an occurrence physically impossible, it seems to me that such an accident is inherently improbable. Moreover this witness is not only contradicted by the motorman, but his statement of such an exhibition of centrifugal force is utterly irreconcilable with testimony of the character of the lurch and of the comparative slightness of its effects given by several disinterested witnesses called by the plaintiff. There is another version which accounts for the accident without casting any liability on the defendant. I do not pretend to say that, it is the truth, but I make this mention in order that it may appear that there are two versions of the occurrence.
The fact that a jury has given credit to the version of the *251plaintiff does not foreclose us from a decision that the record does not satisfy us that she has made out a case, and that, therefore, justice will be promoted by a submission of the issue to another jury.
Bartlett, J., concurred.
Willard Bartlett, J. (concurring) :
I concur in the foregoing opinion of Mr. Justice Jerks.