PORTER, J.
The questions raised on this appeal were substantially disposed of in the case of Frances A. Brown, who was injured on the same occasion with the plaintiff. ( 32 N.Y., 597.) The material facts are identical; and it was held that the evidence raised a question of fact as to the negligence of the plaintiff or the driver, which it was the province of the jury to decide.
The appellant seeks to distinguish this case from the other, on the ground of a declaration imputed to the plaintiff's wife. There was no proof of this declaration until after the decision of the motion for a nonsuit. No question was made in regard to it when the judge charged the jury. Her declaration was not evidence against him of the truth of the fact alleged, and the proof was admissible only as affecting the credit of the plaintiff and the driver, who testified that she made no such declaration to the conductor. Whether she made it or not, was a question of fact, depending on conflicting evidence. The conductor and two other employees of the defendant affirmed it, and four witnesses denied it.
The exception to the charge raises the precise question discussed and decided in the case of Brown. ( 32 N.Y., 603.)
The judgment should be affirmed.