delivered the opinion of the Court:
It is the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony. The court can only withdraw a case from their consideration when, conceding the truth of the testimony offered by the party having the burden of The issue, and giving effect to every legitimate inference that may be deduced therefrom, it is plain that the party has not made out a case sufficient in law to‘entitle him to a verdict. If fair-minded men might honestly draw different conclusions from the evidence, it must be submitted to their consideration under proper instructions as to the law governing the case. These principles are so well settled that no citation of authority is necessary. Tested by them, we are of the opinion that it' was error to direct the verdict for the defendant. The question, as it arises here, must be determined by the testimony of the plaintiff alone, in the light of the necessarily assumed truth, and every legitimate inference that may be deduced from it. Without reviewing that testimony, we shall content ourselves with a general statement of the surrounding circumstances as testified to by the plaintiff.
The accident occurred late in the afternoon. The defendant, having the reports of its employees respecting the occurrence, and a knowledge of the facts relating to its liability, upon which it admitted negligence at the trial, sent its claim agent, early the next morning, to obtain plaintiff’s release. She was in bed suffering great pain from the injuries received. Her med*178ical adviser had not then paid his daily visit. 'She was not able to judge the extent of her injiiries. She could neither read nor write. No relative, friend, or adviser was present. The instrument was-not read or explained to her. The inquiries and statements of the claim agent led her to believe that the release and the money received were for the purpose ■ of preventing the discharge of the conductor whose negligence caused her injuries. Considering those injuries and the admitted negligence of the conductor, the amount offered her was ridiculously small. She was in such pain that she did not remember touching the pen when her mark was made. If the jury should believe all of her statements, notwithstanding the facts and circumstances that may be offered in rebuttal, we are not prepared to say that they could, as fair-minded men, come to no other conclusion than that there had been a meeting of the minds of the contracting parties at the time, and that the plaintiff had executed the reléase without deception and mistake of its true character and effect.
In view of the new trial that may be had, the foregoing statement is sufficient. Though none of the following decisions is directly in point, they discuss the applicable principles, and support thq conclusion. Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, s. c. 178 U. S. 153, 167, 44 L. ed. 1015, 1020, 20 Sup. Ct. Rep. 880; Rockwell v. Capital Traction Co. 25 App. D. C. 98, 116, 4 Ann. Cas. 648; Baltimore & O. R. Co. v. Morgan, 35 App. D. C. 196, 205; Washington R. & Electric Co. v. McLean, 40 App. D. C. 465, 471.
It has been argued that the failure of the plaintiff to call her daughter, who was present in court, as a witness, raises a strong presumption of law against the plaintiff. The daughter’s name appears as a witness to the release. Plaintiff undertakes to excuse this failure on the ground that her testimony shows that the daughter was not present during the interview; and further argues that it was for the defendant to call the witness to contradict plaintiff, and corroborate the claim agent.
It would be more satisfactory had the plaintiff.-introduced the daughter’s evidence; but be this as it may, the question that *179we have to determine turns upon the legal sufficiency of the testimony actually produced before the jury, and not upon what might have been produced.
Any inference of fact that may be deduced from the circumstance is for the jury, and not for the court.
For the reasons given, the judgment is reversed, with costs, and the cause remanded for another trial. Reversed.