The evidence of the defendant’s negligence was not altogether satisfactory, and as the law was understood at the time of the trial the learned trial justice was doubtless justified in pursuing the-course he did, provided he was convinced that he would be compelled to set aside a verdict if perchance one were rendered in-favor of the plaintiff. Nevertheless it cannot be said that there-was no evidence of any negligence upon the part of the defendant.. The witness June testified that he saw the accident and that he-observed the defendant come “ straight out of the bicycle path and cut right across the road right in front of the horse so he hit the horse and the horse threw up his head;” that the horse then reared and broke the whiffletree and ran until he reached the culvert, when the occupants of the wagon were thrown out.
Upon his cross-examination this witness admitted that before the trial he had told the defendant’s counsel that he knew nothing-about "the accident, and his evidence was so contradictory and unsatisfactory that the learned trial judge obviously gave' it no-credence whatever. "While we are not prepared to take issue with the trial court upon this particular feature of the case, it is but fair to say that there was some other evidence given which it is claimed tended to support that of this witness.
The plaintiff testified that the defendant left the cinder path, and! while he does not claim that he ran into the horse, he does say that he came in front of him upon his wheel without any warning and so close to his head as to frighten him; and it is conceded that after the accident the defendant voluntarily handed the plaintiff his card, telling him to have his wagon and harness repaired and he would pay for the same.
We think that, however the trial court may have been impressed with the unreliability of the witness June, the jury were entitled to-consider his testimony and in connection with the other evidence in the case to give it such weight as they might deem proper (People v. Chapleau, 121 N. Y. 267; Williams v. D., L. & W. R. R. Co., 155 id. 158; Ten Eyck v. Whitbeck, 156 id. 342); and that, *591in view of the rule which has been recently established by the decision of the Court of Appeals in the case of McDonald v. M. S. R. Co. (167 N. Y. 70), it was error to withhold the question of the defendant’s negligence from the. jury. This much was expressly conceded by the learned counsel for the defendant upon the argument, but it is now claimed that, even admitting the defendant’s negligence, there is no evidence that it in any wise caused the death of' the plaintiff’s intestate.
This contention, in our judgment, cannot be sustained; for it; appears that the night after the accident Mrs. Shortsleeve suffered pain in her head, neck and shoulders; that her husband bathed the-sore parts with witch hazel; that this treatment was continued night, and morning for some time thereafter without relieving the pain ; that while attempting to perform her customary household duties, Mrs. Shortsleeve suffered much pain; that in three or four weeks after the accident she was compelled to take to her bed; that on the-third day of November a physician was called, who attended her from that time until the day of her death; that shortly after the-physician was called she gave premature birth to a child which was deformed, and that subsequently she went into convulsions, in one. of which she died early in January. These convulsions her physician testified resulted, in his opinion, from an injury to her spine, and in answer to a hypothetical question he also expressed the-opinion that the condition in which he found Mrs. Shortsleeve was. due to the injury she received at the time of the accident.
In view of this evidence we fail to see how it can be claimed that the cause of her death was not a question of fact for the jury, and, therefore, it follows that a new trial must be granted.
Judgment and order reversed upon questions of law only and a new trial ordered, with costs to the appellant to abide the event, this, court having examined the facts and found no error therein.
McLennan, Seeing and Williams, JJ., concurred; Davy, J., not sitting.
Judgment and order reversed and new trial ordered, with costs to-the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.