Pratt, J.
The appellants concede that as one action based on this accident was determined in favor of the plaintiff, and the recovery sustained in the court of appeals, (see Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. Rep. 378,) the same result must follow in the present case, unless variations can be found in the testimony given in the actions sufficiently serious to prevent a recovery. Comparing the testimony given upon the two trials, we discover that the engine-driver produced by defendants upon the former trial, and upon whose testimony the plaintiff’s recovery may wrell háve been
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based, was not produced upon the present trial; and two witnesses whose testimony upon the former trial supported that of the engineer, being called upon this trial by the plaintiff, were stricken with a loss of memory. And on the former trial the engineer testified that he did not blow the whistle until the engine struck the plaintiff, while on this trial a police officer testified it was blown much earlier. After making all due allowance for these changes, we are of the opinion that the testimony warranted the verdict. The plaintiff testified, and her evidence, if believed, was ample to sustain the verdict. It is suggested that her injuries have enfeebled her mind, and therefore detract from the weight to be given to her testimony. That is a matter peculiarly within the province of the jury; and, as her testimony on the second trial was in harmony with that previously given, the jury may have considered that she compared favorably with the other witnesses. It is plain that they believed her testimony, and we cannot say they were wrong in so doing. We find no errors in the admission of evidence, and the judgment must be affirmed, with costs. All concur.