The question in this case was one of fact, depending upon conflicting evidence, and deductions to be drawn from the facts as they should be determined from the evidence. That question was determined adversely to the defendant. The jury have found that the plaintiff was placed by the reckless or careless act of the servants and agents of the defendant, in such a position as compelled her to choose upon the instant, and in the face of an apparently great and impending peril, between two hazards, a dangerous leap from the moving car, or to remain in the car at certain peril. They have also found that her action was such as might have been taken by any one of ordinary prudence, placed in the same situation, and was not the result of an unreasonable alarm, and that the injury was the result of such enforced action. The verdict was that the misconduct of the persons in charge of the car was the proximate cause of the injury, without concurrent negligence on the part of the plaintiff. The peril of remaining in the car was properly judged by the circumstances as they then appeared to the passengers, and not by the result. The fact that the car did pass over safely cannot reflect upon the action of the plaintiff, and does not prove that she was imprudent or negligent in jumping from the car; she was compelled to act, and chose the hazard which appeared to be the least, that is, to act upon the probabilities as they appeared at the time.

The liability of the defendant, upon the facts, is well established by authority. (Jones v. Boyce, 1 Stark., 493;Stokes v. Saltonstall, 13 Peters, 181; Buel v. TheN YC.R.R. Co., 31 N.Y. 314; Filer v. Same deft. 49 id. 47.) The evidence in the case is fully reviewed by Ch. J. DALY, in his opinion, and it is made very plain that a case was made for the jury and that a nonsuit would have been improper. The question was very fairly submitted to the jury in a charge that could not have been mistaken, and the whole case was given to the jury with proper instructions as to the law. The charge is not subject to criticism as taking any question of fact from the jury, and the requests to charge so far as was *Page 161 proper were complied with. The evidence objected to was admissible. The evidence of the aunt of the plaintiff of the condition of the plaintiff was not objected to on the ground that the witness was incompetent, which was the position taken in this court; the fact proved was material, and the witness was abundantly corroborated, and the same fact proved by the testimony of the surgeons, to which no objection was taken.

Evidence of the action of the other passengers was competent as a part of the res gestæ, and also as evidence of what was deemed prudent by those in the same situation, having an interest to take the least and avoid the greater hazard.

The only question was one of fact, and the judgment must be affirmed.

All concur.

Judgment affirmed.