I am unable to agree with a majority of the court to an affirmance of this judgment. I am of the opinion that the plaintiff failed to establish either the negligence of the defendant or the intestate’s freedom from negligence.
The only witness produced by the plaintiff as to how the accident occurred was Conklin, and his testimony will be read in vain to discover any fact which tends to show that the intestate exercised any care whatever, or that he lost his life by any negligent act of the defendant. He testified that he saw the car that struck the deceased and waited until it went by. He said : “ I saw the east-bound car stop *605and the motorman and conductor get off, * * * and I finally walked over and found that a man had been hit. That is about all I know of it. * * * I cannot say that I saw the man leave. I saw a man coming around the end of the west-bound car. He was between the tracks —- between the east and west-bound car, coming south.” The motorman testified that the first he saw of the intestate was that he came from the rear of the west-bound car and stepped directly in front of the east-bound; that the corner of the car •struck him.
There is nothing to show, and to permit the jury to find is to permit them to guess, that the deceased exercised any care whatever for his own safety, and it is obvious that he did not, and if he had done so his life would have been saved. The general rule is that when the circumstances connected with an accident of this kind point as much to the negligence of the deceased as to its absence, or point in neither direction, then a refusal to nonsuit is error. (Wieland v. D. & H. C. Co., 167 N. Y. 19; Fejdowski v. D. & H. C. Co., 168 id. 500; Wiwirowski v. L. S. & M. S. R. Co., 124 id. 420.) Applying this rule to the undisputed facts of this case, it at once became apparent that the trial court erred in refusing to grant the motion for a nonsuit.
Nor do I think there is any evidence of the defendant’s negligence. It is true Conklin testified that in his opinion the car which struck the deceased was at the time going at fifteen miles an hour, but there are no facts given from which a jury could find that his estimate was anything more than a guess. He also gave some testimony to the effect that he did not hear any signals given. The question of signals is of no importance, inasmuch as there is nothing to show that the deceased was over on the track a sufficient distance ahead of the car to enable the motorman to warn him by signals, or to have checked the car and prevented the accident, so that the entire basis for a claim of negligence on the part of the defendant is the statement of Conklin as to the speed of the car. and this, under the circumstances, was insufficient. •
I think the judgment should be reversed and a new trial ordered, • with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
*606Upon plaintiff stipulating to reduce judgment as entered to the sum of $10,620.80, judgment as so reduced - affirmed, without costs; unless such stipulation he given, judgment reversed, new trial ordered, costs to appellant to abide event.