The plaintiff’s intestate met his death in a rear-end collision on the defendant’s road. The evidence as to the defendant’s negligence and the intestate’s freedom from contributory negligence is satisfactory. The collision was caused by the negligence of a signalman at Crawford’s grade, or of a signalman at Eotterdam Junction, or of the engineer upon the engine which collided with the intestate’s train. Perhaps the negligence of more than one of these vice-principals brought about the result. The court refused to charge, at the defendant’s request, that the jury must be satisfied which one of these vice-principals committed the negligent act and caused *197the injury. The court charged, in substance, that a recovery could be had if any one of them committed the negligent act, and that it was not necessary for all of the jurors to agree as to which one of the vice-principals caused the injury. If the defendant is right in its contention it would be almost impossible to recover in this case. It is clear that the defendant is liable for the negligence of any one of the three persons, but it is very difficult from the record to determine which one caused the injury. If a defendant negligently pulls the wrong lever and thereby causes an injury, and some witnesses think he pulled it with the right hand and others think he pulled it with the left hand and others think that his foot caused the lever to move, it is entirely immaterial which is right so long as it is clearly established that the negligent act of the defendant caused the injury. I favor an affirmance.
All concurred, except Smith, P. J., and Woodward, J., dissenting, the latter in opinion.