The specific questions submitted to the jury were as follows:
1. Was the death of the plaintiff’s intestate occasioned by collision with one of the defendant’s trains in the city of Oswego, on July 22, 1899 ?
2. Did such collision occur as the plaintiff’s intestate was crossing Utica street, at a point where such street is intersected by East Willow street?
3. Was such collision caused by the negligence of the defendant ?
4. Was the plaintiff’s intestate free from negligence which caused or contributed to cause such collision ?
Each of these questions was answered in the affirmative, and the fifth, which related entirely to the question of damages, was answered by assessing the amount thereof at the sum of $2,000.
It was conceded on all hands that the death of the plaintiff’s intestate was caused by a collision with one of the defendant’s trains at the time and place specified in the first question, and it, therefore, *412follows that no exception can be taken by either party to the finding of the jury in respect thereto; but as to the matters, involved in the three succeeding questions a sharp issue of fact was presented to the jury. Upon the part of the plaintiff it was contended, and evidence to support such contention was. given by at least three witnesses, that when the plaintiff’s intestate reached East Willow-street he found a freight train passing to the east; that he stood ■upon the crosswalk near a telegraph pole until this train had passed, and then, after looking in both' directions, proceeded to cross the defendant’s tracks, when he was struck by a passenger train, which was proceeding at a comparatively high rate' of speed in a westerly direction, upon the track north of the one upon which the -freight train was moving to the east. These same witnesses also gave evidence tending to prove that no bell was rung or whistle sounded upon the locomotive attached to the passenger- train until it reached the crossing in question.
Upon the other hand, a large array of witnesses testified that Howell was walking easterly upon the defendant’s tracks between West and East Willow streets; that lie was about midway between these two streets when the freight train overtook him; that he thereupon stepped onto the adjoining track,, apparently for the purpose of allowing the freight train to pass by, and that while so standing upon that track he was struck by the passenger train coming from the east. Many of these witnesses likewise testified that the bell of the locomotive was ringing and had been ringing ever since the train left the Oswego station, but it seems to be conceded by all the defendant’s witnesses, including the engineer of the passenger train, that no whistle was blown until the danger or emergency signal was given at the crossing.
The learned trial justice, in granting the motion for a nonsuit, placed his decision, in so far as at least two of .the questions submitted to thé jury were concerned, upon the ground that the verdict was against the weight of evidence, and with'this conclusion we have no fault to find'
The plaintiff’s principal witnesses were not, by their own admissions, of such a character as to commend them to very favorable consideration, and the evidence given by them- was, much of it, so improbable and so contrary to some of the established facts and cir*413cumstances of the case as to render it well nigh incredible. ¡Nevertheless, if that evidence can be believed, it establishes the plaintiff’s cause of action and supports the verdict of the jury. It follows, therefore, that however improbable it may have seemed to the learned trial justice, it was for the jury, in the first instance, to determine what reliance, if any, should be placed upon it. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158.)
It is true that even in a case where the evidence is sufficient to sustain it, a verdict may be set aside and a new trial ordered where the court is satisfied that the verdict is against the weight of evidence, yet it has been recently decided, and the rule, as at present settled, seems to be that where there is any conflict whatever in the evidence a verdict cannot properly be directed, the reason for this rule being that the direction of a verdict determines substantive and existing rights, while the granting of a new trial involves merely a matter of remedy or procedure, which rests very largely in the discretion of the court. (McDonald v. Met. St. Ry. Co., 167 N. Y. 66.)
In view of the decision last referred to, which has been rendered since the trial of this action, we feel constrained to reverse the judgment and order appealed from, but inasmuch as we are by no means satisfied with the verdict of the jury, we do not deem it proper to reinstate the same, preferring rather to avail ourselves of the power which resides in this court to direct a new trial. (Code Civ. Proc. §1317.)
The judgment and order should be reversed and new trial ordered, with costs to appellant to abide the event.
McLennan, Spring and Hiscock, JJ., concurred; Williams, J., dissented.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.