#### BOSKO v. DELAWARE, L. & W. R. CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Railroad Companies—Accidents at Crossings—Negligence.

In an action against a railroad company for personal injuries, it appeared that, at a crossing, plaintiff’s foot caught in the track, and he was unable to extricate it; that he was struck by a passing train; and that the only thing that would have saved him would have been to stop the train. *Held,*that defendant was not negligent, even if no signal were given of the approach of the train.

3. Same—Action for Injuries—Sufficiency of Evidence.

In an action against a railroad company for personal injuries, it appeared that plaintiff was a roving man, whose character was unknown, whose testimony was unsupported, and who, according to the testimony of a number of witnesses, had given an account of the manner in which he was injured entirely inconsistent with that given by him on the trial, and that his testimony was outweighed by that introduced by defendant. *Held,*that a verdict in favor of plaintiff would be set aside on appeal.

Appeal from circuit court, Queens county.

Action by Steven Boslto against the Delaware, Lackawana & Western Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Hamilton Odell, for appellant.

Gatlin & Nekarda, for respondent.

DYKMAN, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury, after trial at the circuit, and from an order denying the motion of the defendant for a new trial upon the minutes of the court. The facts were furnished by the plaintiff in his testimony as follows: He says that on the 10th day of October, 1894, he was a passenger on one of the cars of the defendant from Scranton to Washington; that he took the train from the former to the latter place between 3 and 4 o’clock in the afternoon, and arrived at Washington about 7 o’clock in the evening; that he left the train at Washington, and he says he saw a man at the station, and inquired if he could remain there over night; that he followed the road the way the man told him, and went towards Port Golden; that he came to a crossing upon the public highway, and followed the road for a while, and looked up and down the rails, and *262did not see or hear any train; that he saw a path going down the beaten way, and went down, and when he crossed the east-bound track, going towards the west-bound track, he was stuck in the switch somewhere in the space there, and could not pull his foot out; that the train came, and struck him, and carried him about 10 or 15 feet distant from the place where he was struck. His left leg' was broken and subsequently amputated. On his cross-examination he said: “1 came to the track after the beaten path, and then I stepped on a sort of a plank, or a sort of a bridge there crossing the roadway. There were four tracks,—two tracks there. I had crossed the first two east-bound tracks before I was struck.” He further said he was advised there was a crossing, and he wanted to cross that place; that there were some people crossing it, and he thought he would cross it himself. “Question. Was this a common road? Answer. No, sir; it was just a path going down, and a straight way going on the other side of the fence. This was a path—a regular beaten path—• about 4 feet wide, that led from Washington down to the place where I was hurt.” The crossing in question was to and from the turnpike leading to Washington and the public road on the opposite side of the railroad. A witness for the plaintiff, who was familiar with the locality, said he knew the highway, and had used the crossing for years, and had seen other people use it, and that the place was used as a public crossing by people going from Port Golden to the public highway; that it was not a road crossing, but just a beaten path that went down to the switch. The main defense to the action was that the accident did not happen as the plaintiff said it did, but that he was injured by falling from the platform of a freight train which he was trying to board to steal a ride to New York; and six witnesses testified to admissions made to them by the plaintiff substantially to that effect. The defense of contributory negligence was also interposed. The case was tried at the circuit before a jury, and the plaintiff recovered a verdict for $5,000. The defendant has appealed from the judgment and order denying a motion for a new trial.

The plaintiff is the only person who witnessed the accident, and his evidence is the only proof in the case respecting the unfortunate occurrence. There was no motion for a nonsuit, and no exception to the charge of the trial judge, but at the close of the testimony the counsel for the defendant moved for a direction of the verdict for the defendant. The appeal from the order denying the motion for a new trial on the minutes of the court entitles the defendant to an examination of the evidence in the case. While the evidence respecting the crossing where the plaintiff was injured may be sufficient to justify him in his effort to pass over the track at that place, yet we find the testimony insufficient to charge the defendant with negligence. The foot of the plaintiff was caught in the track, and he was unable to extricate it. No signal from the train, and no notice of its approach, could have been of any avail to him. There was no obligation to stop the train, and that was the only thing that would have saved the plaintiff. If there was no signal given of the approach of the train, that neglect did not cause the injury, and is insufficient to sustain the *263action. It is only negligence which results in damages that will render a defendant responsible therefor. As, therefore, the evidence fails to show any want of care in the operation of the train which caused the injury to the plaintiff, it is insufficient to sustain the verdict. Moreover, the jury was not at liberty to disregard the proof introduced by the defendant of the statements of the plaintiff respecting the manner in which he received his injuries. The testimony of the witnesses was clear and explicit that the plaintiff admitted that he was endeavoring to board a freight train which was in motion to steal a ride, and in that effort fell under the wheels of the car. The statement was natural, and the evidence of its utterance was strongly preponderating. We have had occasion at this term of the court in the case of Nutting v. Railroad Co. (Sup.) 36 N. Y. Supp. 142, to notice the disposition of juries to give verdicts against railroad corporations upon insufficient evidence, and this case is another illustration of that inclination. Here is a roving man, whose character is entirely unknown, whose testimony is entirely unsupported, who, according to the testimony of a number of witnesses, had given an account of the manner in which he was injured entirely inconsistent with that given by him in his testimony upon the trial, and yet the jury disregarded all the other evidence, and based a verdict upon his testimony alone. Instead of a preponderance of proof, which every plaintiff is bound to make, the testimony of the plaintiff was outweighed by the evidence introduced by the defendant. Under such circumstances it is our duty to interfere.

The judgment and order denying the motion for a new trial must be reversed, and a new trial granted, with costs to the defendant to abide the event. All concur.