INGRAHAM, J.
This verdict should have been set aside on the ground that it was .against the weight of evidence. There is no direct evidence that the defendant’s car ran into the carriage at all. The evidence produced by the plaintiff to prove that’ fact was the testimony of two women who were in the carriage.. One of these women testified that the first that she knew of the accident was “the shock of the trolley car knocking into the carriage. It came from towards the rear; and then we heard the sound of the car going alongside of the carriage for an instant; and then the horses took fright and ran. I saw the trolley car. The trolley car was going the same way the carriage was going. And it came up from behind us. It struck the right side of the carriage. * i:" * It seemed to hit the carriage first, and then it went along the wheel. We could feel the trolley.” The other woman in the carriage testified: “I felt the shock of .the car striking the carriage. The car struck the carriage on the right wheel; the rear wheel. It struck the carriage in the back. The part of the carriage I say it struck was the rear; the rear part of the wheel. Yes, the rear wheel. The right-hand rear wheel.” On the part of the defendant the only passenger in the car testified that he saw the carriage as the car approached, and that the carriage was on the side of the track, and not upon the track. “When I was looking at this coach, it appeared to me to be far enough away from the tracks upon which
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our car was running for our car to pass without collision. As we got towards the coach,—we possibly were about ten or fifteen feet behind the coach,—when he turned his horses. When the horses turned into the track, we were' moving down, and the motorman rang his bell very violently.” The witness testified that the coach wras running “on a parallel line with the car until the car got within fifteen feet of the coach, and then the horses moved around to the right; whether of their own volition or the driver’s I don’t know. I saw the man fall off his coach. To the best of my opinion, he fell between the tracks, or, it might be, on the other side of the track. He fell about midway between the line of the car and the gutter.” The witness further testified that it was impossible for the motorman to stop the car from the time that the plaintiff’s intestate’s horses turned to the time of the accident. This testimony was corroborated by the testimony of the motorman, who expressly swears that the horses turned upon the track in front Of the car, and that the car struck the horses. Now, assuming that there was evidence to justify the denial of the motion for a non-suit, we think, upon the whole case, the preponderance of evidence was so strongly in favor of the defendant that the verdict is against the weight of evidence. The only evidence that the car ran into the coach was the inference drawn from the testimony of the women in the coach, neither of whom saw the collision. If the horses did turn in front of the car, as testified to by the passenger, it is quite possible that the car did strike one of the wheels of the coach, and that that was the shock which the occupants of the coach felt. It is entirely consistent with the story as told by the persons in the coach, and it is sworn to by a disinterested witness, and corroborated by the motorman, without any fact appearing to discredit it. There is another consideration that seems to indicate that this carriage was not struck by the car from behind. The women in the carriage testify that the shock of the collision threw them on the front seat of the carriage. If the carriage had been struck from behind it would have been thrown forward, and the occupants against the back seat of the carriage. On the other hand if the carriage had been suddenly stopped by running into the car, or by the horses running into the car, those in the carriage would have been thrown forward just as the women testified that they were thrown.
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
VAN BRUNT, P. J., and McLAUGHLIN, J., concur.