delivered the opinion of the court.
No evidence whatever was presented to support those counts of the declaration which charge as negligence of the appellant a defective condition of brake, cable or sand box. Upon the charge of negligence in failing to ring a bell upon the grip car as it approached the Thirty-fifth street crossing, set up by the second count, there was some evidence on behalf of the appellee, but it was very slight, and in comparison the contradictory evidence presented by appellant ivas overwhelming. Nelson and Minard Maloney each testified that they heard no bell. The gripman and five other witnesses testified positively that the bell upon the oar was ringing. One of the witnesses called by appellee testified that at the precise moment when the car struck ¡the boy he heard no bell; but in this he agrees with the gripman, who testified that he rung the gong up to the instant of the collision, when he released the bell to grasp the levers.
A still greater preponderance existed in favor of the appellant upon the .charge of excessive speed, as presented by the third and fourth counts. Nelson alone testified as to speed of the train on behalf of appellee. He said that it was going fast. Against this uncorroborated testimony is the testimony of the gripman and the corroborating testimony of seven apparently disinterested witnesses, that the train had slackened its speed in approaching Thirty-fifth street, and at the time in question was moving slowly. These various witnesses fixed the distance within which the train was brought to a standstill after the boy was struck, at from five to ten feet. Under the general charge of negligence in moving and managing the train, as set out by the first count, it was sought to show by Minard Maloney’s testimony that the south-bound train was standing upon the Thirty-fifth street crossing to discharge its passengers, when the north-bound train ran by it without stopping. But upon this theory of fact the appellee’s case was as sadly lacking in weight of evidence as upon the other grounds just noted. For Minard alone testified to the fact that the south-bound train was standing. Nelson, appellee’s witness, testified that he saw no south-bound train standing or moving. Eight witnesses, six of whom were apparently in no manner interested or concerned in the outcome of the trial, testified positively that the south-bound train did not stop, but that it and the north-bound train passed each other, while both were moving, at Thirty-fifth street.
If there were any ground whatever upon which the testimony of these many witnesses could be discredited, it might be said that a mere comparison of numbers is not conclusive as to preponderance of conflicting evidence. But there is no such ground apparent upon this record. One of the apparently disinterested witnesses was a commercial traveler; another an official of a lumber company; another, superintendent of a teaming company; another a train porter on a railroad; another a newspaper vender; another a railroad switchman; another a laborer and another a real estate dealer. No one of them was in any manner impeached. How it can be in reason held by court or jury that the uncorroborated statement of Nelson upon the proposition of speed, or the equally uncorroborated statement of Minard Maloney upon the question of the standing train, or the negative testimony of each that he heard no bell, overcomes and creates a preponderance over the united testimony of the conductor and gripman and these many disinterested and unimpeached witnesses, surpasses comprehension.
If it should be said that the duty of a court to set aside a verdict which is manifestly against the clear preponderanee of the evidence, does not apply here, then it would be difficult to imagine a case where it ever could apply.
It is contended by the learned counsel for appellee that the jury might have found that the mere fact of two of appellant’s trains passing while each was in motion, constituted actionable negligence. By this same reasoning a jury might have declared by their verdict that to operate any train upon the surface of a city is actionable negligence, but no court would sustain such a finding.
What constitutes negligence is primarily a question of fact for determination by jury. Nevertheless, jurors can not be permitted to arbitrarily declare any act to constitute actionable negligence, as they may capriciously elect, without foundation therefor. It is only where the facts would authorize a jury to find negligence that it can be said to be a question for the jury. Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243.
We do not regard the decision in Roberts v. Spokane St. Ry. Co., cited and relied upon by counsel for appellee, as in point. In that case the court found that the controller upon the electric car was out of repair, and that “ with the controller in good condition (the motorman stated) the car could have been stopped under the circumstances, considering the place and rate of speed, very nearly instantly. He also said that the plaintiff would not have gone under the front end of the car had the controller been in sound condition.” It is true that the question of negligence in the passing of cars upon a crossing did become subject of comment in the decision. But there was clearly good ground for sustaining the judgment there upon the negligence predicated upon the defective controller. And of the two cars in question there, one was standing at the public crossing. If there were here any facts showing that by reason of the peculiar surroundings it was more perilous to pedestrians upon the street to permit one train to pass another while each was moving, than it is to permit trains to pass each other generally in surface transit, then perhaps a question might be presented as to actionable negligence in this case. Upon such grounds it has been held to be negligence in certain cases to move one train by while another train was discharging its passengers upon an adjacent track. But here there are no such facts or circumstances established. The very great preponderance of the evidence discloses that this accident occurred by reason of the young lad heedlessly running into a moving train. Pague, Mc-Clelland, Opfer, Byrne and Bulfer, as well as the gripman, agree in testifying that the boy was not upon the track at all, but that he suddenly ran from the west from behind the train moving south, into the projecting northwest corner of the north-bound train. Pague testified : “ I say ran into the car’ because he wasn’t looking where he was going. The car did not run into him. He ran into the car.” McClelland testified: “ He was looking back over his shoulder at the south-bound train, and he ran almost directly against our grip car, the northwest corner of it.” Opfer testified: “ The boy ran right from behind the south-bound car and dashed right into the northwest corner of the north-bound car, and it knocked him to one side; it knocked him to the west side.” Byrne testified: “ Just as we were coming to the crossing of Thirty-fifth street there was a south-bound train passing, and just as we got to the crossing, just at the cross-walk, a boy dashed out from behind that car and bumped against ours.” Bulfer testified : “The first 1 saw the boy coming on the crossing on the south side of the street, going, he was going toward the east, and there was another boy running after him at the time, and when I saw him he was right into the grip car. There was another train, south-bound train passing just before; bad passed just before he ran into the car.”
It is obvious that the verdict can not be permitted to sustain this judgment, because it is manifestly against the clear preponderance of the evidence.
Appellant’s counsel ask that the cause -be reversed without remanding. This we can not do, for there is some evidence tending to establish the charge of the declaration as to failure to ring a bell, some evidence tending to show that the south-bound train was standing at the crossing discharging its passengers when the north-bound train went by, and some evidence tending to show that the north-bound train was moved at this crossing at a high rate of speed. Although upon each of these several charges the manifest weight of the evidence is against the sustaining of the charge, yet in view of such evidence the trial court could not, nor can this court, make a, final disposition of the cause, and it must be remanded for another trial. A very decided preponderance of the evidence goes to establish contributory negligence of Minard Maloney as the cause of the accident, but in view of his age, the question of his exercise of care was, we think, a question for the jury, and not, in the first instance, for the court. The judgment is reversed and the cause is remanded.