Everett

Upon further consideration of this cause in Bank, we adhere to the views expressed in the opinion filed in Department One, and, for the reasons therein given, the judgment and order are reversed.

*111 Temple, J., dissenting.—I dissent. This action was for damages for the death of Charles E. Everett, which was caused by a car of defendant. The main question presented on this appeal is whether this court can say, as matter of law, that the deceased was guilty of negligence which contributed proximately to his injury, in the face of the verdict of the jury, which is in favor of the plaintiffs, who are heirs at law of the deceased.

This is not a question as to what the evidence taken as a whole may be considered fairly to establish, or whether the facts, which we think plainly established by the evidence, show such negligence on the part of the deceased, but whether the conclusion of the jury could be rationally drawn from the evidence. And this must be determined, also, in view of the exclusive province of the jury to pass upon the credibility of the witnesses.

The facts may be stated thus: Deceased was an experienced bicycle rider about forty years old, in the possession of all…