(dissenting):
I cannot concur in either of the opinions for reversal, each of which is supported by only two votes, and the new trial must, therefore, be without the settlement by a majority vote of the law applicable to the case. I cannot concur in the two main points which make up. the opinion of Mr. Justice Woodward, because I regard them as not only without justification upon .the facts, but as inherently inconsistent. He states that the accident as testified to by the plaintiff’s witnesses, if “ not a physical impossibility,” is “ certainly highly improbable; ” and to this point he adds another, suggesting but without deciding, that the plaintiff’s decedent was guilty of contributory negligence in leaving a place of safety and going out upon the platform. While the opinion avoids the expression of any positive conclusion upon this latter point, it does state as ground of reversal that there is no evidence of a lack of contributory negligence upon the part of the deceased; that is, no evidence that he took any precaution to guard against the assumed dangers of the position which he had chosen voluntarily to occupy. It is obvious that, if the platform was so securely guard’ed that the accident which is alleged to have occurred was highly improbable or physically impossible, it was not a place of danger or one where any unusual precautions would be required. Precaution is only required in the presence of possible danger. It seems to be fairly settled that the question whether the proof establishes freedom from contributory negligence, where the accident could occur without fault on the part of a deceased person, is for the jury to determine, while the assumed improbability or impossibility of the occurrence in this case finds so little support in the evidence that neither on the first argument of- the appeal, nor on the reargument afterwards directed by the court, did counsel for the defendant venture to either urge *252or suggest it. Indeed, it can hardly be doubted that a car driven around a thirty-three degree curve at the rate of even fifteen miles an hour, could throw a man over either a gate or a chain, and the fact that it actually did do so in this particular instance, if the witnesses for the plaintiff are believed, as they were believed by the jury, certainly furnishes some corroboration of the existence of the physical possibility.
The opinion of Mr. Justice Jbnks rests chiefly upon the statement that he is “ dissatisfied ” with the verdict as against the weight of evidence. This, conclusion, as will be seen, differs from the view of the evidence which I have adopted. I cannot see how the verdict' can be fairly regarded as against the weight of evidence. Aside from the physical conditions, the only evidence on the defendant’s, part consists in the testimony given by the motorman who was in charge of the car, and as'his credibility was a question for the jury upon well-established principles, I cannot see how evidence which the jury is at liberty to reject can ever assume the dignity of preponderance.
As the court has divided into three distinct parts upon the decision of this appeal, it seems to me that there should be union upon . one point at least, viz., that the case presents facts from which intelligent. men may draw different inferences, and is, therefore, one peculiarly within the province of a jury, whose conclusion when fairly reached, in the absence of legal error, should not be lightly overthrown.
The facts, as the jury^ must have found them, are of the essence .of simplicity. The plaintiff’s intestate, Millburn Bruce, a policeman, after his night’s work w;as done, boarded one of the defendant’s closed cars at about eight o’clock in the morning of December 16, 1899, at the car stables at Maspeth, L. I., .to go to his home on the North Hempstead road. The distance is about a half mile and the running time two minutes, the average running time being fifteen miles an hour, including stops, for the round trip to and from Flushing. The accident occurred on Grand street, while rounding a very sharp curve, known as Rapelyea’s curve. The North Hempstead road intersects Grand street with Maiden lane at a point 600 feet distant from this curve on. the Maspeth side, but Bruce was in the habit of leaving the car at a point about 300 feet beyond *253the curve on the Flushing side, where a path through Teeve’s lot led directly to his house. There was evidence tending to show that it was customary to slow up in going around Rapelyea’s curve, -and the conductor in charge of the car on the occasion in question frankly admitted that he had never gone around the curve at a higher rate of speed than nine, or ten miles an hour, always going perfectly easy and gentle and without any jolt. The motorman, however — this being the first time he had operated the.car — testified- that he approached the curve at the rate of fifteen miles an hour; that it was customary to go rownd on full speed ; that he considered fifteen miles an hour safe to go around it, and that he would not consider it necessary to slow up if he was going at the rate of fifteen miles an hour. There was abundant other evidence tending to show that on this occasion the car was not slowed up at all on the curve and that its speed was as great as twenty miles an hour. •
When Bruce boarded the car he sat down in company with two other officers and remained seated until after the car had passed the junction of Grand street with the street on which he lived, that is, until after it had passed Maiden lane. He then stepped out upon the front platform with the view of leaving the car in accordance with his invariable habit when it reached his path, 300 feet beyond the curve. But when the car struck the curve, as it must have done almost as soon as Bruce got iipon the platform, instead of going around “ easy and gentle,” as customary, it struck the curve with a violent jolt, and Bruce was thrown over the gate or chain at the side of the platform, striking his head upon the roadway and being instantly killed. The highest estimate given as to the length of time he was on the front platform is five seconds. The time must have been very short. One of the officers testified: “ A sudden jolt of the car and I looked forward and he was gone. I looked over the side and he was lying in the street behind the car. * * * The car jolted and I looked forward and Bruce was gone. * * * I missed him as soon as the car jolted, then I missed Bruce; I looked forward and he was gone.” The inference from this evidence is a natural one, that the sudden jolt and Bruce’s disappearance were coincident, and this inference is greatly strengthened by the evidence as to the nature and extent of the jolt and its effect upon *254those inside the car. The officer above quoted testified : “ Q. What sort oí a jolt was there immediately preceding the accident when •you" observed that he was gone ? A. It was a jolt pretty near enough to throw me on the floor. Q. And how did you have your feet placed ? A. I sat this way in the car [illustrating]. Q. With your face in which direction ? A. I was sitting about, like that, you know ; my body was a little towards the rear, just about the position that I am sitting now, and the car went this way.' Q. How strong a movement was that.?- A. The car was going along, I should judge, at about twelve miles an hour or more ; ten miles anyhow. Q; Twelve miles an hour or mofe ? A. Yes, sir. Q: Was it going* at that rate of speed as it rounded Rapelyea’s Curve? A. Yes, sir. Q. Was there any slackening of the speed as it approached the curve ? A. No, sir, not as I know of; not to the best of my knowledge.” He further testified that as the car approached the curve the conductor was engaged in an attempt to fix the fare register, but “ before he got a chance to do anything the lurch came,” and threw him. into the corner of the car against the side and door. It is true that this officer admitted on cross-examination that he made no complaint of the speed of the car, and'that he and his brother officers were satisfied with its speed, etc., and some significance appears to be attached to these very natural and proper statements as though they tended in some way to impair the plaintiff’s claim, or to weaken the overwhelming evidence that the speed of the car was dangerous upon the- curve. But there was certainly no obligation imposed by law or otherwise upon this witness requiring him to make a complaint; the time and place were not propitious for filing complaints; the commotion and disturbance in the car naturally absorbed the passengers in the necessary bracing of themselves for safety, and abovesail the speed of the car furnished no just cause of complaint inasmuch as it was only in accord with the average running time, and was entirely safe where the track was straight. The fact seems to be overlooked that there was no just reason for any complaint until the car struck the curve without slackening' speed. Up to that point the conditions were entirely normal; But at that point there is scarcely a pretense that the car was slowed down at all as on previous occasions; if it was slowed down it was not done to an appreciable extent according to the testimony either of the *255motorman himself, as will be seen hereafter, or of the passengers; and the result was (and this is the cause of the present complaint) that when Bruce stepped out upon the platform to prepare himself for getting off the car, as was his custom when he reached Teeve’s lane, instead of encountering an easy and safe glide around the curve in accordance with his former experiences, and upon the reasonable expectation of a repetition of which the jury might have concluded that he was entitled to rely, he met his death as the almost inevitable consequence of the car striking the sudden curve at a rate of speed which was extremely dangerous there however safe it may have been theretofore.
The other officer also testified that the car was going “ pretty fast,” between ten and twelve miles an hour, and that he noticed no difference in the speed of the car as it approached the curve, and he likewise illustrated to the jury the manner in which his feet were braced and the effect which the jolt, nevertheless, had upon his body, head and shoulders, to the probable understanding of the jury, although difficult to reproduce in the printed record. He was asked : “ Q. What sort of a.movement of the car was there as it struck the curve ? Did you notice anything ? A. Well, what I got myself. As soon as it struck the curve, I went that way (illustrating) and went back again. I was not lifted from my seat at all. The forward part of my body and my head and shoulders went that way and then went back. I had my feet that way in that position (illustrating). My heels were like that. Q. Where were they placed in the floor ? A. Well, they generally stick in the grating, you know, slightly, like that.” From all this evidence there is no" difficulty in realizing how the occupants of the car were affected by the violent lurch necessarily incident to the striking of such an abrupt curve at such a high rate of speed, and also how little chance of safety there could be for any one upon the platform, unprepared for danger and unwarned of the motorman’s intention to go around the curve at a reckless and unslackened pace.
There was also an eye-witness upon the highway, a lad then of seventeen, who chanced to be within 100 feet of the occurrence at the time. He testified that the car was running very fast, at the rate of twenty miles an hour, and to quote his language: “ I seen just as the car come around the curve and hit the curve Bruce was *256lifted off his feet and thrown over the chain.” His testimony is criticised because he insisted that it was a chain instead of a gate over which the unfortunate officer was flung to his death, but even if it be conceded that the evidence of defendant’s employees preponderates in establishing that it really was a gate, this should not so far militate against the truthfulness of this disinterested youth as to make the question presented one of law instead of fact, or to remove its solution from the province of the jury, who saw and heard him, and could well weigh his evidence as men of sound; practical common sense. So, too, his evidence is criticised because he did not tell the story that day at home. But his father testified that the boy commenced to tell it but was interrupted by him with ■the brutal threat, “ don’t you dare say a word about it, if you do I will throw you out of the house.” This was accompanied by. other threats which served to silence him until the trial. Upon the trial he was subjected to every artifice of cross-examination, and although manifestly nervous and confessedly sick and frightened, his testimony, corroborated as it was in every essential particular, was not shaken in the least. He stated the number of the car accurately, as it afterward turned out., He saw the man thrown out and saw him strike his head upon the pavement at the precise time and place and in the manner testified to by the others. He was sure the man was not on the step of the car and that he did not step off. On the contrary, he testified the car “ made a sudden jerk and he went off.” The facts that the witness was young and sick and frightened ; that the effect of the awful sight was to make him sick at his stomach; that when he went home he was there terrified into silence ; that he was confined in a hospital for troubles of the heart and kidneys, and that he was clearly no match for brilliant counsel in an intellectual contest on the subjects of measurements, distances and the' nicer points of the compass, do not necessarily and as a matter of law prevent a jury from believing him. His story is inherently credible, and, in its main features, is fully corroborated by the other witnesses as well as by the mute testimony of the dead body. The whole presents a case clear ■ and convincing, such as is rarely found in litigation, of this character.
As against this mass of evidence the defendant had but the. testimony of the motor man. He represented the defendant at the *257time of the accident, and whatever blame there was, was his. He had the highest interest in negativing the theory of the plaintiff’s witnesses to the effect that he came upon the curve so swiftly and recklessly that his passenger was powerless to resist the sudden lurch, and, as I have said, it is well settled that whatever his story may be, it goes to the jury on the question of credibility, if nothing else, and, therefore, it cannot, of itself, so overpower the combined evidence of several disinterested witnesses as to justify either a non-suit or a reversal. Aside from this feature his story is vague, shadowy and unsatisfactory. He says “ the car glided around the curve smoothly,” although all he says on the question of speed is that the car was not going guite as fast as fifteen miles an hour just at the moment the man fell. He did not know whether Bruce came on the platform just then, or whether he had already been there some time, but however that may be, Bruce just then raised his right hand, apparently as a signal that he wanted to get off, and simultaneously, without waiting for the speed of the car to slacken and in spite of warning shouts from the motorman for him to hold on, opened the gate and “ stepped right down in. the street.” This story, while of course proper for the consideration of the jury, is certainly not devoid of elements of improbability. The conduct of the motor man, according to his own story, indicates that it was hazardous in the extreme to attempt to get off the car at. the time and place, or why did he shout a warning ? He testified : “ I shouted to him to hold on, or some words to that effect, but he didn’t. He stepped right down in the street, and, although I won’t state positively, I believe he didn’t have hold of anything when he did step. As soon as his foot touched the ground his body swung around and he fell, and he seemed to me on the back of his head.” As soon as the car was stopped the motorman got off, and the first question he asked was, “ is he killed ? ” In view of the facts that Bruce did not want to get off at that point, not having yet reached his path by some hundreds of feet; that it was broad daylight; that the speed of the car, whatever the number of miles per . hour, if obviously dangerous to the motorman, must have been equally so to Bruce; that the curve was equally visible and known to both, so that no possible reason exists to justify the theory that *258the deceased supposed that to be a safe act which to the motorman was so imminently hazardous that he immediately anticipated death as a result; that no circumstances in the case suggest suicide; that the senses of the deceased, so far as appears, were normally susceptible to the surroundings, and especially to the shouted warning, and that, although several persons aided in carrying the body to the car, no one testified that the' gate was found open, it cannot be said that this story of a deliberate step to certain death was either plausible or convincing. If there was a gate at the platform instead of a chain, it may, of course, be true that the deceased opened it and. stepped down upon the step in readiness to get pif when he reached the lane, and in reliance upon the usual slackening of speed which would have made that act safe. The car then striking the curve at a high rate of speed, would .sufficiently account for the result, without necessarily involving contributory negligence as matter of law, and such a story would not be condemned as unlikely. But the one herein adverted to as told by the motorman, to the effect that the deceased stepped off the swiftly-moving car before reaching his destination and in spite of warning, seems under all the circumstances to be opposed to ordinary experience, and at variance with the natural instincts of self-preservation, and that conflicting story must be unreasonable, indeed, which a jury of average intelligence would reject in order to give this one credence. Under these circumstances the learned trial justice very properly left to the jury the task of deciding between the two opposing theories, in a charge so lucid and fair that no exception was taken, charging,, indeed, every request made by the defendant’s counsel, and I am unwilling to say that the conclusion reached is so irrational in itself,/ or' so feebly supported by the evidence, as to require or justify another trial.
I, therefore, vote for affirmance;
Judgment and order reversed, and new trial granted, costs to abide the event.