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speed and received the injuries for which he seeks compensation in this action.

At the close of the plaintiff's case, and again when the proofs were in, the defendant moved for a nonsuit upon the ground (1) that no negligence upon the part of the defendant had been established, and (2) that it appeared affirmatively that the plaintiff was guilty of contributory negligence.

Charles A. Pooley, for the appellant.

O. P. Stockwell, for the respondent.

ADAMS, J.:

Upon the facts above narrated, as to which there was not much controversy, we are unable to discover how it can be successfully contended that the question of the defendant's negligence was not properly submitted to the jury. The train which struck the plaintiff was at least half an hour behind time and running at a rate of speed which no witness places at less than twenty miles an hour, between the Attica train and the depot, at a time when the latter train had just arrived at the station and was about to discharge its passengers. This was not only gross negligence, but it was in direct violation of one of the defendant's rules, and the fact that the engineer of the express train was endeavoring to pass the other before it had come to a full stop does not lessen the degree of the defendant's negligence nor relieve it from the consequences which ensued. (Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & II. R. R. R. Co., 84 id. 241; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 355.)

But in this, as in ali similar cases, the negligence of the defendant is but one of the essential elements of a recovery, and, when we come to consider the equally important question of the plaintiff's freedom from contributory negligence, the case is not altogether free from embarrassment.

From the situation of affairs at the Batavia depot, it is a little difficult to understand how the plaintiff could have come into contact with the train which struck him had he taken the pains to look in the direction from which it was coming before attempting to

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cross the intervening track. That he did not look is pretty evident and is not seriously denied. This omission would, in most instances, establish contributory negligence per se; but the facts of this case call for the application of a somewhat different rule from that which ordinarily obtains.

The plaintiff was a passenger upon one of the defendant's trains. As his train approached the depot the trainman announced the station, and the plaintiff thereupon proceeded to leave the car in which he was riding. In doing so he had the right to assume that the defendant would afford him a safe exit from the car and a free and clear passage to the depot; and if, in acting upon this assumption, he failed to observe the approaching train, which he might have seen had he looked, this fact, while material and important for the consideration of the jury, did not necessarily preclude a recovery. (Brassell v. N. Y. C. & II. R. R. R. Co., supra.)

But it is urged that the plaintiff would not have been injured had he not alighted from his train before it came to a full stop, and here arises the serious question in the case. That the plaintiff did step down on to the ground while the train was in motion is conceded, and that in doing so he was guilty of a negligent act, which, if it in any manner contributed to the accident which followed, would defeat his right of action, is not to be denied. (Solomon v. Manhattan Ry. Co., 103 N. Y. 437.)

The important inquiry, therefore, which we have to consider is to what extent, if at all, did the plaintiff's manner of alighting from the train operate to produce the injury of which he complains? because, while his alighting may in itself have been negligent to the last degree, yet, unless it can be demonstrated that the accident would not have happened but for such negligent act, or, in other words, unless that act was the proximate and concurrent cause of the plaintiff's injuries, it does not constitute contributory negligence as a matter of law. (Distler v. L. I. R. R. Co., 151 N. Y. 424; Me Keon v. The Steinway Ry. Co., 20 App. Div. 601.)

"

In considering this aspect of the case it may be said that if the plaintiff had remained on his train until the eastward-bound train had passed, no accident would have occurred. This, of course, is a self-evident fact, but was the plaintiff bound to do this? He had frequently come to Batavia on this same train and had never before

FOURTH DEPARTMENT, MARCH TERM, 1898.

[Vol. 27. scen a train passing upon the intervening track. Upon this particu lar occasion the station was called out by the trainman and no warning was given to the passengers in the forward coach of the approaching train, although it appears that the conductor who was in the rear car saw it coming and went to the door to prevent the passengers in that car from alighting until it had passed. Notwithstanding all this, however, if the plaintiff, in alighting from his car while it was in motion, had come into immediate collision with the other train the defendant's counsel would be entirely correct in his contention that the relation of cause and effect was established with sufficient certainty to constitute the plaintiff's negligence a question of law and not of fact. But this contention is weakened by the testimony of the plaintiff, which was to the effect that although he alighted from the train while it was in motion, it nevertheless came to a full stop before the collision occurred, and in this statement he was corroborated by two or three other witnesses who were in the rear coach, who say that their train ceased to move just as the other train caught up with it.

It follows, therefore, that it cannot be said with any degree of certainty that the accident would have been avoided if the plaintiff had waited until his train had stopped before alighting. For if his evidence and that of his witnesses is to be credited, there was time for him to have alighted from his train after it had come to a full stop, before the other train had reached a point opposite the end of the car from which he alighted. And we are consequently of the opinion that his alighting at the time and in the manner he did was properly regarded by the trial court as a circumstance to be considered by the jury in connection with the other evidence in the case in determining whether or not it contributed to produce the accident which subsequently occurred. The learned trial justice instructed the jury fully and carefully respecting this feature of the case and stated with emphasis and iteration that if the plaintiff's injuries were the natural and proximate result of his alighting while the train was in motion, he could not recover in the action. We are inclined to think, after a careful perusal of the record and a consideration of the somewhat peculiar circumstances of this case, that no error was committed in treating the question of contributory negligence as one of fact, and that the charge of the learned trial

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justice upon this subject was as favorable to the defendant as the facts and circumstances of the case warranted.

But having thus disposed of the questions arising upon the defendant's exceptions to the refusal to nonsuit, we find ourselves compelled to grant a new trial by reason of the admission of evi dence which was not only improper, but in all probability highly prejudicial.

The plaintiff called as a witness in his behalf a certain Dr. Morse, who it seems had attended him professionally, but not until about a year after the accident. This witness testified to the plaintiff's physical condition at the time when he saw him, and stated that he discovered, among other things, that he was suffering from a purulent inflammation of the middle ear, which was attended with a discharge of offensive matter. This difficulty was one which did not make its appearance until long after the accident occurred, and it was a matter of very grave doubt whether it was not attributable to a catarrhal affection rather than to the accident. But however that may be, the jury were permitted to consider this as one of the elements of damage for which they might award the plaintiff compensation.

During the progress of Dr. Morse's examination he described the condition in which he found the plaintiff's ears, and then, of his own volition, added that such condition indicated "a state of chronic inflammation of the middle ear, extending in many cases to the brain." The defendant's counsel asked to have this evidence stricken out, which request was refused and an exception followed. Up to this point in the trial of the case it had not been claimed or even hinted that the plaintiff's brain was in any danger of becoming affected in consequence of the injuries which he had received, and this witness only spoke of such a result as a remote possibility not likely to occur in this case, but one which sometimes happened "in many cases."

We think this evidence was purely speculative and conjectural and as such it was directly within the condemnation of the rule laid down in the Strohm Case (96 N. Y. 305) and in the Tozer Case (105 id. 617). That it was prejudicial to the defendant cannot be doubted, for the other injuries of which the plaintiff complains would hardly have warranted the large verdict which the jury renAPP. DIV.- VOL. XXVII. 64

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dered. We do not, therefore, feel at liberty to disregard it, or to relegate it to that very convenient receptacle of questionable rulings which is usually denominated "harmless error."

The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except WARD, J., dissenting.

Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide event.

In the Matter of the Probate of the Last Will and Testament of HENRY BALDWIN, Deceased.

In the Matter of the Application of JAMES H. TIBBITTS to be Relieved from Stipulation and for Letters Testamentary on the Will of HENRY BALDWIN, Deceased.

In the Matter of the Application of OSCAR B. STRATTON and Others for the Appointment of said OSCAR B. STRATTON as Administrator with the Will Annexed of HENRY BALDWIN, Deceased.

JAMES H. TIBBITTS, Appellant; OSCAR B. STRATTON, Respondent. Executors - an oral renunciation of an executorship, made in open court, is valid — review by the Appellate Division of a surrogate's exercise of his discretionary power to permit its retraction - oral retraction, when permissible.

Where, upon a contested proceeding for the probate of a will, the executor named in the will declares in open court that if the objections to the probate of the will are withdrawn he will renounce as executor and consent that letters of administration, with the will annexed, be issued to himself and another, and such statement is accepted and at a later date acted upon by the surrogate and all the interested parties, the renunciation is as effective as though it had been evidenced by an instrument signed and acknowledged by the executor in strict accordance with the statute. (Code Civ. Proc. § 2639.)

The Appellate Division will not interfere with the exercise by a Surrogate's Court of the discretionary power conferred upon it by section 2639 of the Code of Civil Procedure, relative to the acceptance of a retraction of a renunciation by an executor, unless it appears that the power was exercised in some improper way.

Circumstances considered by the Appellate Division which justify a surrogate in declining to accept a retraction.

Semble, that where a renunciation is oral a retraction of it may be.

GREEN, J., dissented.