Ida M. Boice, Appellant, v. Ulster and Delaware Railroad Company, Respondent

Ida M. Boice, Appellant, v. Ulster and Delaware Railroad Company, Respondent. Third Department, June 25, 1907. Negligence — fall of car window — defect in catch. — evidence—the word “think” defined. When a car window which fell and injured plaintiff's hand is shown to have heen raised to its full height before she entered the car, and there is evidence that other windows in the car were provided with two fasteners, so as to raise the presumption that all the windows were so equipped, the question as to whether "the construction "of the fasteners was faulty should be left to the jury. Although the plaintiff testifies that she thought that the window was raised about two feet, the statement should not be construed as a mere conjecture'or guess, for the word “think” is often equivalent to recollect or recall; especially should the latter construction be given when the - testimony was admitted without objection and *the" complaint has been dismissed) for under such circumstance the plaintiff is entitled to the most favorable meaning of which her language is susceptible. Appeal by the plaintiff, Ida M. Boice, from a judgment of the Supreme Court in favor of the defendant, entered in the ofBce of the clerk of the county of Ulster on the 19th day of December, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Ulster Trial Term. John De Witt Warner, for the appellant. Amos Van Etten, for the respondent. [MAJORITY — Cochrane, J.:] Cochrane, J.: Plaintiff was a passenger on, one of defendant’s trains. The day being warm the window opposite which she wás seated was open. As the train started on leaving one of the stations along the line of the journey the window fell and injured her hand which was resting on the sill. The window was open when she entered the car and according to her testimony was not manipulated by her. From the testimony of one of the passengers in the same car that the window opposite which he was sitting was provided with two catches or fasteners it may be assumed that all of the windows in the same car were similarly equipped. From plaintiff’s testimony the. jury might have been permitted to infer that the window was up all the way. Her .testimony on this point it must be admitted is not very • convincing. It is expressed as follows,: “I think the one. where we were sitting was tip all the way. It was up about two feet. The bottom of- the-sash was two feet from the sill of the window.” Had the trial justice been asked, to do so he would doubtless have stricken out the first sentence of' this testimony on the ground of its vagueness and conjectural character, and would have required the plaintiff to express herself more definitely. But such testimony having, been permitted to remain in the case without objection and' the complaint having been dismissed plaintiff is entitled to the-most favorable meaning of which her language is properly susceptible. Many definitions are given by the various lexicographers of the word “ think.” Among such definitions the .-Century Dictionary gives the following: “ To cognize; apprehend; grasp intellectually; ” and also states “ often, equivalent to recollect; recall.” The Standard Dictionary has the following among other definitions : “■ To call to mind; remember; recollect,” and “ to recall anything to mind; exercise recollection; have remembrance.” Webster defines the word as meaning among other things “to recollect or call to mind.” So that it is impossible to say that the plaintiff in giving the testimony above quoted' was merely giving her conjecture or guess that the window was up all- the way. ' If the window were provided with. two fasteners and were raised to its extreme height, both of which facts as we have seen might have been properly inferred by the jury, it follows that the jury might also have properly inferred that., such fasteners were either improperly constructed or were out of. repair because the window probably would not have fallen past them had they properly performed their functions. The case of Strembel v. Brooklyn Heights Railroad Company (110 App. Div. 23) is not in point. There was no' evidence in that case that the mechanism of the Window was out- of order, and it-was expressly stated in the opinion that the fall of the window, could not “ be attributed to defective construction any more than1 to the failure .of the last passenger who raised it to put it all the way up, so as to have it engage the catch, or to see that it did engage the catch firmly.” ■ That was also the difficulty in Voorhees v. Kings County Elevated Railroad Company (3 Misc. Rep. 18), cited with approval in the Strevnbel case. The windows of a can are to a large extent under the control of passengers, and in an accident like the one-iu question a person injured must undoubtedly prove faulty construction or equipment. But if this window were.raised to its full height, its fall was not due to any act of a passenger, but might well have been due to imperfect mechanism. While the case as left by the plaintiff when she rested was weak and unsatisfactory, I - think it was sufficient to require its'submission to the jury. * The judgment must be reversed and a new trial granted, with costs to' the appellant to abide the event. All concurred'; Smith, P,- J., and Chester, J., in.result. Judgment reversed and new trial granted, with costs to.appellant to abide event. ''