Dissenting Opinion.

[47 App. safety proceed in the decision of questions of this kind, is to collect the testator's intention from the words which he has used in his will, and not from conjecture." Kinney v. Kinney. 34 Mich. 250-253. That language, supported by many other authorities cited by the learned jurist, forbids me to follow the course pursued by the majority in the present case. See also Story, Const. p. 383; People v. New York C. R. Co. 24 N. Y. 485-488; Mayo v. Whedon, ante, 138; United States ex rel. Parish v. MacVeagh, 214 U. S. 124-135, 53 L. ed. 936-940, 29 Sup. Ct. Rep. 556; Beyer v. Le Fevre, 186 U. S. 114, 46 L. ed. 1080, 22 Sup. Ct. Rep. 765. I think the language of the court in the Beyer Case is peculiarly applicable here; namely, "the express intentions of the testator should not be thwarted without clear reasons therefor."

Would the construction for which I contend, if adopted, leave Hopkins without anything under the will? No. Mrs. Marden was given the choice between $25,000 in cash and the stock. She could not have both. Therefore the money by necessary intendment was to take the place of the stock and to go to the person from whom the stock was taken by the exercise of the wife's election. Unless this be true, the $25,000 would go into the residue and in that way reach Mrs. Marden, and thus she would get not only the stock, but also the $25,000. Clearly it was not the intention of her husband that she should have both. He said she was to have the money or the stock. By giving effect to this intention, the $25,000 would go to Earl P. Hopkins, who is entitled to receive it.

In my judgment the decree should be modified so as to permit Mrs. Marden to select the stock in question and give Mr. Hopkins, in lieu thereof, the $25,000.

D. C.]

Syllabus.

WASHINGTON RAILWAY & ELECTRIC COMPANY v. UPPERMAN.

RAIL ROADS; NEGLIGENCE; INSTRUCTIONS; LAST CLEAR CHANCE; RIGHT OF WAY; EXCESSIVE VERDICT; APPEAL AND ERROR.

1. A prayer on behalf of the plaintiff, in an action for the death of his intestate from being struck by a street car, to the effect that if the motorman failed to sound his gong and the circumstances were such that ordinary prudence demanded it, or failed to have his car under proper control, and the accident resulted from such negligence, without negligence on the plaintiff's part, the jury should find for plaintiff, is within the pleadings and the evidence, where the declaration charges, among other things, that defendant's agents and employees failed to maintain a proper lookout to avoid injury to the plaintiff's intestate, and failed to sound a gong or other signal to apprise him of his danger, and there was proof that the motorman was not attending to the proper control of the car when the accident occurred.

2. Where counsel for defendant, by requesting and receiving an instruction on the doctrine of the last clear chance, adopts such theory of the case, he is estopped to object to its being properly presented to the jury. (Citing Washington R. & Electric Co. v. Clarke, 46 App. D. C. 88.)

3. The preferential right of way of a street car company over its tracks is limited to a lawful and prudent operation of its cars. (Following Capital Traction Co. v. Apple, 34 App. D. C. 559.)

4. A prayer for an instruction that a street railway has a preferential right of way over its tracks, and its employees have a right to assume that this right will be respected until the contrary is indi

NOTE. On application of doctrine of last clear chance in case of imputed negligence, see note in 26 L.R.A. (N.S.) 309.

For authorities passing on the question as to whether one is guilty of contributory negligence, as a matter of law, in walking with due care upon a street railway track laid in a public street, see note in 9 L.R.A. (N.S.) 244.

The question of duty to look and listen before crossing tracks of an electric road is discussed in notes in 15 L.R.A. (N.S.) 254, and 23 L.R.A, (N.S.) 1224.

cated, is properly rejected where there is evidence of a negligent operation of a car at the time of an accident.

5. Prayers for instructions are properly refused where the points have been amply covered in other prayers granted.

6. A prayer in respect of contributory negligence, basing the negligence of plaintiff's intestate upon the fact of his going on the defendant's tracks without effectually looking or attempting to look or listen, is defective where there was no evidence that he failed to look or listen.

7. A prayer on behalf of defendant as to concurring negligence which leaves out the question of last clear chance is defective, where the issue of last clear chance has been brought into the case by counsel for defendant himself.

8. Refusal to set aside a verdict on motion for a new trial will not be reviewed on appeal. (Citing Columbia R. Co. v. Cruit, 20 App. D. C. 521; Woods v. Richmond & D. R. Co. 1 App. D. C. 165; and District of Columbia v. Wilcox, 4 App. D. C. 90.)

9. It is not within the province of this court to reverse a judgment for the reason that the verdict is excessive. (Citing American Secur.

& T. Co. v. Kaveney, 39 App. D. C. 223.)

10. Quere, whether an appellate court may review a refusal of a trial court to set aside an excessive verdict, in case of a gross abuse of its discretion.

No. 3054. Submitted November 8, 1917. Decided January 7, 1918.

HEARING on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on verdict in an action to recover damages for the death of plaintiff's intestate. Affirmed.

The COURT in the opinion stated the facts as follows:

This suit was brought in the supreme court of the District of Columbia by appellee, Samuel K. Upperman, plaintiff below, to recover damages for the death of his father, Horace W. Upperman, who was struck and killed by one of defendant company's cars while crossing defendant's tracks at the intersection of Ninth and E streets, northwest, in this city. From a verdict and judgment in favor of plaintiff, the case comes here on appeal.

D. C.]

Argument of Counsel.

Mr. John S. Barbour, for the appellant:

1. Was there credible testimony that the defendant was guilty of negligence in any of the particulars alleged in the declaration?

(D. C.) "The testimony of one in a position to hear or see a thing if it had occurred, and who might, under all the circumstances, with the same degree of reason have heard or seen it in that event, is not so strong or so satisfactory as that of one who says that he did hear or see it." Le Cointe v. United States, 7 App. D. C. 21.

(D. C.) "The law is, that positive testimony uncontradicted, and not inherently improbable, is prima facie evidence of the fact which it seeks to establish, and the jury is not at liberty to disregard it." Brown v. Peterson, 25 App. D. C. 359, 363, citing a number of United States Supreme Court cases.

(Md.) Testimony of witnesses that they did not hear the bell of an engine ring as it approached a crossing is not of such probative value as positive affirmative evidence that it was so rung. Northern C. R. Co. v. State, 100 Md. 404, 108 Am. St. Rep. 439, 60 Atl. 19.

(Md.) The affirmative testimony of one credible witness as to a fact in issue must outweigh a dozen equally credible witnesses whose testimony is merely negative. Longley v. MeGeoch, 80 Atl. 843.

(U. S.) Statements of witnesses that they did not hear sounds are negative testimony and must be weighed with cantion. Long Island R. Co. v. Darnell, 136 C. C. A. 1, 221 Fed.

191.

(La.) "In the analysis and construction of testimony, it is elementary that, all other things being equal, positive testimony on a given point must always predominate over negative testimony on the same point." Guesuard v. Bird, 33 La. Ann.

799.

(Del.) Testimony of witnesses that they heard the bell of an electric car ringing as it approached a crossing is of more weight than the testimony of others who say that they did not hear it

ring. While v. Wilmington City R. Co. 6 Penn. (Del.) 105, 63 Atl. 931.

(Ga.) The affirmative and positive testimony of witnesses as to the actual facts of a particular occurrence cannot be overcome by testimony which is negative in character, or consists of mere opinions. Hambright v. Western & A. R. Co. 112 Ga. 36, 87 S. E. 99.

(Idaho) Where witnesses are otherwise equally credible, and their testimony entitled to equal weight, greater weight and credit should be given to those who swear affirmatively or positively to a fact, rather than those who swear negatively or to a want of recollection. Idaho Mercantile Co. v. Kalanquin, 8 Idaho, 101, 66 Pac. 933.

(II.) The law makes a distinction between what is called "affirmative testimony" and "negative testimony;" and the rule is that greater weight should be attached to affirmative than to negative testimony. Grabill v. Ren, 110 Ill. App. 570.

2. The decedent's negligence contributed to his injury.

(N. Y.) A person is not at liberty to take even doubtful chances of being able to cross a street in front of an approaching car, or to assume that the motorman will be successfully able to stop it. Harvey v. Nassau Electric R. Co. 35 App. Div. 307, 55 N. Y. Supp. 20.

(N. Y.) While it is the duty of a street car motorman to have his car under reasonable control on approaching a street crossing, a pedestrian has no right to assume that, because a car has slowed up, it will stop, or its speed be so controlled as to give him time to cross the track in safety. Thomason v. Met. St. R. Co. 89 App. Div. 10, 85 N. Y. Supp. 181; McEntee v. Met. St. R. Co. 110 App. Div. 678, 97 N. Y. Supp. 476.

(N. Y.) The mere fact that at the time a pedestrian left the curb he thought he had time to cross ahead of a street car did not relieve him of the obligation to again look for the ear after he left the curb and before he reached the track.

A pedestrian who, after he leaves the curb and before he reaches the track, does not again leok for a car, is guilty of contributory negligence as a matter of law. Glynn v. New York City R. Co. 110 N. Y. Supp. 836.