Plaintiff was an experienced motorman, having been in defendant’s employ for twenty years. He was injured when *15the car he was operating left the track at a sharp curve at the junction of Clarissa street and Mount Hope avenue in the city of Rochester. After leaving the track, the car' ran along the pavement and struck a tree with such force that a space the width of the tree was cut completely through the front vestibule.
He has recovered a verdict upon the theory that the accident was due to a defective truck under the car. It was defendant’s claim at the trial that the derailment was caused by plaintiff’s negligence in running the car around this curve at a greater rate of speed than its rules permitted. There was evidence from which the jury might have found plaintiff negligent in this respect, but plaintiff’s testimony was to the effect that he used the usual means to control the speed of the car, such as has always before proved sufficient at this curve. We think the question of plaintiff’s negligence in this respect was one of fact for the jury, and that we should not disturb the verdict on that question.
Several months after the accident one of the trucks of the car was found to be defective in that the frame and pedestal were bent and twisted. This had a tendency to cause the car to leave the rails and not to take the switches properly. The question in the case was whether this defect existed prior to the accident. It appeared that the accident itself might have produced this condition. The jury found by answering specific questions that the car was not equipped at the time of the accident in a reasonably safe manner as to its wheels or trucks, and that it ran off the track owing to defective and unsafe equipment. Appellant claims that there is no evidence sufficient to support these findings; that the finding that the wheels or trucks were defective is based solely upon inference from the happening of the accident, and that the finding that the accident was due to these defects is a second inference based upon the first.
We think there was sufficient evidence to support the first finding, irrespective of inferences arising from the accident itself. The defective condition of the truck which was found to exist after the accident was of a character likely to cause such an accident, and the jury were instructed to determine *16whether it was caused by the accident or whether it existed previously.
There was no direct evidence that the truck was not in this defective condition when defendant first placed it in use some twenty days prior to the accident. Defendant’s foreman, Cunningham, who assembled this truck and placed it under the car, testified that when he “put this up, it was all in good shape; it went together, the parts, all in good shape,” but he did not say that the frame was not bent or the pedestal twisted. There was also evidence of tests made by running the car over several lines before it was put in use, which tests did not indicate any defects in this truck. Representatives of the manufacturers of the truck were witnesses at the trial, but did not testify that the frame was not bent or the pedestal twisted at the time the truck was delivered to defendant. While in use during those twenty days, trouble was experienced in operating this car at switches out of proportion, as the jury may have found, to similar trouble experienced on defendant’s railway with its other cars. The average number of such troubles was shown to be only two per day on the whole system. This car during this time failed to take switches properly on at least five different occasions, or on an average of once each four days. Plaintiff’s witnesses testified that there were seven such occasions, but as to two of them the witnesses were not certain whether they were before or after the accident. Assuming that they occurred on an average of once in four days before the accident, and that the general average of such occurrences on defendant’s whole system was two per day, then unless defendant had only eight cars in use on its whole system, it appears that this particular car, which was numbered 400, had some defect which interfered with its running over switches as successfully as defendant’s other cars. It is true that the evidence does not show the total number of cars operated on defendant’s system, but from the number which this car bore and such general facts as appeared in the testimony in reference to defendant’s railway system, without reference to the knowledge possessed by the court and jury sitting in the same city in which the system was in operation, we think the jury were justified in find*17ing that there was a defective truck upon this car solely from its performance in operation before the accident, and that such finding does not rest for its support entirely upon inference from the accident itself. Moreover, plaintiff testifies that he had operated other cars around this same curve at a greater rate of speed than the car in question was running at the time of the accident, without difficulty and without having such cars leave the track. The jury were at liberty to conclude from this testimony, if they accepted it as true, that the car in question would have made this curve successfully at the time of the accident, notwithstanding the rate of speed, if there had been no defect in the truck. .
If this truck had a bent frame and twisted pedestal at the time defendant received it and placed it under the car, it was a defect which, according to the testimony, reasonable inspection would have disclosed, although ordinary inspection after the truck was put under the car would not. There is no claim, however, that prior to the accident anything had happened to this car which might have produced the bending of this truck frame or the twisting of the pedestal.
We think a question of fact was presented for the jury by all the evidence as to whether there was a bent frame and twisted pedestal on this truck at the time it was installed by defendant under this car, which defendant was negligent in failing to discover by reasonable inspection, and that the verdict of the jury upon this question is not so decidedly against the weight of the evidence as to justify setting it aside upon that ground.
We think the judgment and order appealed from should be affirmed, with costs.
All concurred, except McLennan, P. J., and Kruse, J., who dissented in an opinion by McLennan, P. J.