The judgment here is in negligence and rests upon a jury’s verdict awarding plaintiff a considerable sum in damages. Two prior trials resulted in disagreements. We are now asked to direct a fourth trial. Plaintiff’s witnesses, so it is claimed, have testified to details contradictory of earlier versions. Plaintiff himself did not testify. These circumstances, it is said, taint the verdict, demonstrate that the believable evidence points to a conclusion favorable to defendants and require a new trial. That a question of fact exists which must be resolved by a jury is conceded.
*329Defendants do not dispute the serious injuries to plaintiff, which affected his mind and speech mechanism through brain hemorrhages and paralyzed him in several respects, apparently constituting a valid reason for the failure to call him as a witness. In any event, such failure of the plaintiff to take the witness chair might be a proper subject of comment to the jury; it does not, however, supply any basis for the reversal of the verdict by this court, when the facts of the accident are described by other eye-witnesses.
About dusk, while plaintiff was walking across the plaza made by the intersection of three streets, Southern boulevard, Prospect avenue and East One Hundred and Forty-ninth street, in the Bronx, he claims to have been struck by appellants’ automobile. Two lines of street car tracks unite where East One Hundred and Forty-ninth street runs into Southern boulevard. Plaintiff, an elderly man, was crossing from the southwest comer of One Hundred and Forty-ninth street and Southern boulevard to the southeast corner; his course was no other than the customary one pursued by pedestrians and it involved his traversing the plaza for a distance of about seventy-five feet from the sidewalk to the place where he was injured. There is ample evidence that the traffic lights were in his favor when he set out to walk across that space. All agree that he reached what is termed a “ safety zone ” marked by three stanchions, close to and paralleling the tracks on Southern boulevard. This space was one of safety, provided vehicles traveled in the car tracks, but was not such if an approaching south-bound auto straddled the westerly rail of the south-bound track. Plaintiff attempted to cross the tracks and was struck by the defendants’ automobile while on the easterly rail of the south-bound tracks, which he had very nearly crossed, as shown by the fact that he fell in the “ dead space ” between the two tracks according to the uncontradicted evidence.
The theories presented at trial are in direct conflict, defendants claiming now that plaintiff walked into the side or rear of the car after it had passed him, and plaintiff’s witnesses asserting that he was struck by the front of the car just as he had nearly completed passing over the south-bound track. The jury have rejected defendants’ version and accepted plaintiff’s, as they had a right to do.
Although witnesses on either side seem to have modified or changed their testimony in certain respects (to relate which in detail would unduly lengthen this opinion), it was for the jury to say whether or not such contradictions were indicative of falsehood or were due to confusion and misunderstanding such as might have *330arisen during their examinations and cross-examinations upon three trials.
The testimony of the driver of the auto and of the two passengers who sat on the rear seat was to the effect that the car had actually passed plaintiff, who was seen by them to be standing erect in the “ safety zone.” Those in the rear seat assert that they looked through the rear right-hand window and saw him so standing erect as the car passed. Their testimony indicated that there was no contact and that this auto was not the cause of the injury. After these three witnesses had testified, the driver was recalled and confronted with the report made by him to the Motor Vehicle Bureau in which the injury to plaintiff was mentioned and it was stated that he had walked into the rear right side of the car.
An appellate court cannot say that the jury should have accepted the defendants’ present contention that plaintiff actually walked into the rear of the car, in preference to that presented by plaintiff, which indicated that plaintiff was in full view of the chauffeur of the approaching car, so that it might have been reasonably controlled in such a way as to have avoided knocking him down upon the further rail of the car track upon which the automobile was proceeding. There is, moreover, evidence that the defendants’ car in approaching the safety zone had at first appeared to be headed to the west of the stanchions, when it sharply turned upon the car track to proceed to the east of the so-called safety zone, straddling the westerly rail, swerving, and thereby causing the accident. Much of this indeed appears in the testimony adduced by defendants, who admit that the car swerved to the left. These and other circumstances, such as the speed of the car, are present, and warranted the jury in exonerating plaintiff from contributory negligence, and convicting defendants of negligence.
The solution of the controversy was clearly for them and their verdict may not be disturbed where there is nothing to indicate that they were actuated by passion, prejudice or improper appeal.
The charge of the court was lengthy. Some parts now claimed to be erroneous, in point of fact, were not even excepted to. Many requests made by defendants, corrective of statements claimed to be erroneous, were charged by the court, so that the charge, when read as a whole, correctly defined the issues of fact and stated the applicable law.
The judgment appealed from should be affirmed, with costs.
Finch, P. J., and O'Malley, J., concur; Merrell and Martin, JJ., dissent and vote for reversal and a new trial.