Assuming that the jury did not believe the motorman's story, there was no testimony as to the decedent's movements between the Bernstein house and the place of the accident. There was testimony that the track was commonly used as a foot path; that it was considered unsafe to walk in the traveled roadway because of the density of traffic, and that the path north of the track was rough. This testimony may afford some uncertain basis for inference as to the probable *Page 448 conduct of a foot passenger traveling along the highway; but it affords no basis for inference as to the probable conduct of the decedent who was coming from the Bernstein house north of the track. The only testimony bearing on the probable conduct of foot passengers going west from the Bernstein house is that of Mrs. Bernstein, who testified that she usually followed the path north of the track.
While there was sufficient evidence that the motorman was negligent in not seeing and warning the decedent, there was no evidence that the decedent was in the exercise of due care. Hence the verdict cannot be upheld except upon the theory which the trial court adopted in denying the motion to set the verdict aside; namely, that the jury might reasonably have found that the decedent continued to walk on or close to the track in front of the overtaking trolley-car for such a time and distance that the motorman ought to have seen her and to have become aware that she was not going to save herself, while there was still time for him to have stopped the car or otherwise to have avoided injuring her. Mullen v. Mohican Co., 97 Conn. 97, 115 A. 685;Fine v. Connecticut Co., 92 Conn. 626, 103 A. 901.
The burden of proof being on the plaintiff, we are of opinion that the jury could not have found that such a state of facts existed, without indulging in surmise and conjecture, and that the court erred in denying the motion to set aside the verdict.
There is error and a new trial is ordered.