I have decided to grant this motion, being led especially so to do by a review and consideration of the evidence given and offered upon three points.
First. The plaintiff put upon the stand one Bander, an engineer, who produced a map of the crossing where the accident happened purporting to show correctly the line of the highway and railroad. He testified upon his direct examination that it ivas correct. It appeared upon his cross-examination that his map greatly exaggerated the extent and sharpness of the curve above referred to. The exaggeration was in the direction of making it appear more difficult for the intestate to see the approaching train than it really was. This ivas the point upon which more than any other plaintiff’s case labored. Another prior map had been prepared for plaintiff by another reputable engineer, which was not produced upon the trial. It is difficult to believe that the error referred to in the map in evidence was accidental. This map was subsequently excluded from the case. It cannot, therefore, strictly be regarded as a basis for granting this motion. But it is referred to in this connection as throwing light upon the plaintiff’s case and the efforts which were made by her to secure a verdict.
*693, Second. The only eye witness of the accident was' a young man named Sherwood. He was sworn by plaintiff to show that her intestate used proper care and caution in approaching the crossing, and incidentally in that connection, that the intelligence of his movements were not impaired by drunkenness," as was indicated by a large amount of opposing testimony. It would have been impossible under the rulings of the court for plaintiff to reach the jury at all except for the assistance of this witness in testifying to the efforts of Mr. Martin to detect the approach of a train.
The evidence of this witness upon the stand was uncertain, contradictory and evasive. I doubt if any careful referee would have accepted it as a sufficient basis for a large judgment. But in addition to those vices inherent in his testimony tested simply by itself, he had long before the trial made a written statement over his own signature which absolutely and unqualifiedly contradicted his evidence in all of its vital features. He accounts for this contradiction with an explanation which I regard as entirely unreasonable and unworthy of belief. The history of his connection with the case, his appearance upon the stand, and his evidence, lead one rather to believe that there is some other explanation of his change.
Third. A large amount of evidence was addressed to the specific issue already referred to whether the curve in defendant’s road so obscured the approaching train that plaintiff’s intestate was not to be charged with notice of its coming.
Plaintiff swore some witnesses to sustain the affirmative of this issue. They were in the main at least two or three persons who lived in the neighborhood and some former employees of the defendant. As against these persons defendant called a multitude of witnesses who gave evidence to show that intestate could not have failed to see this train in time to avoid it if he had used proper care. These witnesses of defendant were composed of three classes — employees, persons living in the vicinity of the crossing, and people who made observations at the crossing for the express purpose of determining the facts upon this issue. Outside of the employees these witnesses were entirely disinterested, and as a class very reputable and entitled to belief. I am forced to the conclusion that in disregarding their testimony and finding the verdict which it did, the jury either acted arbitrarily, or was influenced by some fundamental error or misconception. I, of course, do not lose sight of the principle that the range of vision attained by a person going *694to a railroad crossing for the express purpose of making an experiment is not necessarily the measure of what a traveller approaching in the ordinary way is hound to see. Making all due allowance for this, however, it still appears to me that when the jury in this case said in effect that the deceased could not have seen this train in time to avoid it, a conclusion was reached which was opposed to the overwhelming preponderance of evidence.
The case, in my judgment, comes clearly within the principles which not only authorize hut direct the verdict to he set aside.
In accordance with decisions of the appellate courts, which control rather than appeal to my judgment, the order setting aside the verdict and granting a new trial is upon the condition that defendant pay the costs of the trial, instead of leaving the same to abide the final event of the action.
Ordered accordingly.