(dissenting). I cannot concur in the view of this case taken by the majority of the court. A careful reading of the record and consideration of all the proof satisfies me fully that the trial judge presented the matter fairly to the jury both in his statement of the testimony and in his suggestion to the jury of inferences that might be drawn from it. So, far from undertaking to conclude the jury, or to exclude from them, a consideration of the proof, he said in apt terms:
“Now, as to how the accident happened, I want to say that you, gentlemen of the jury, are the solo judges. 1 call your attention to some of the evidence, but you are to disregard anything that seems a comment or expression of opinion on my part as to the effect of that evidence. It is for you to judge from the evidence before you how the accident did occur. Plaintiff has sworn positively how it occurred. He was the only eyewitness to the accident.”
And in the conclusion of the charge he used this language:
“Now in instructing you, gentlemen of the jury, that you are to consider and determine the damages, and in calling your attention to what you must consider in determining the damages, T do not moan to intimate in the slightest degree that it is incumbent on .you to find, for the plaintiff. Í simply instruct you how to assess his damages if you find for the plaintiff, but if *348you are satisfied either that the plaintiff has not proved his case, or that the-defendant has shown that the accident resulted from the cause which the defendant set up in its answer, then you won’t assess any damages for the' plaintiff.”
I have not been able to find in the charge anything that is obnoxious to the ruling of the Supreme Court in the case of Quoclc Ting, or in the language of Mr. Justice Fields, who announced the opinion of the court in that case. The holding of the court in that case as correctly stated in the syllabus is only to the effect that uncontradicted evidence of interested witnesses to an improbable fact does no require judgment to be rendered accordingly, in support of which Mr. Justice Fields cited Koehler v. Adler, 78 N. Y. 287, and quoted a paragraph from the syllabus of the report of that case. To show the application of that language to this case it is only necessary to quote the last paragraph of the opinion in Koehler v. Adler, supra, as follows:
“It may be that the evidence of these two witnesses ought to outweigh all the circumstances referred to. All that we intend to decide is that it was a question of fact for the jury, and not one of law for the court, and that the rule invoked is not applicable to the case.” .
The rule invoked was that the positive testimony of an unimpeach-ed, uncontradicted witness cannot be disregarded by the court or jury arbitrarily or capriciously, but in applying this rule great care should be exercised. In Kavanagh v. Wilson, 70 N. Y. 177, the holding of the court was “that the case was a proper one for the jury, and that a refusal to submit the question to the jury, and a direction of a verdict for the amount claimed was error.” To this effect and only to this effect is the case of Wait v. McNeil, 7 Mass. 261, referred to in one of the excerpts embraced in the opinion of the majority.
In my judgment none of these authorities reflect in the least upon the soundness of the action and views of the trial judge in the case before us in his instruction to the jury. I think the judgment should be affirmed.