The opinion of the court was delivered by
Garrison, J.
The charge of the trial court io the jury, as applied to the concrete case before it, was that the rail had been provided by the defendant for the protection of the *28plaintiff from accidents such as that by which he was injured. The questions left to the jury were whether the rail was in good condition; whether the defects in it, if any, were latent, and whether a proper inspection had been made; but at no time was it left to the jury to say whether the rail had been provided to secure the plaintiff in case of accidents such as that which occurred, or whether its construction indicated that it was apparently designed to withstand such violent impacts. An affirmative answer to one or the other of these propositions was essential to the plaintiff's right of recovery. Upon this review of the trial, the question is whether such answer must come from the jury, or whether it is enough if it comes from the court, and this depends in turn upon whether the protection the rail was apparently designed to furnish was a matter about which reasonable minds could not honestly differ. If the question was of this indisputable character, the trial judge was right in treating it as a court question.
In the case of Saunders v. Eastern Hydraulic Bride Co., 34 Vroom 554, the question whether a mullion in a skylight was apparently designed to withstand the weight of the plaintiff was held to be of this indisputable character, and a nonsuit based upon the trial court's determination .of such question was sustained.
Between those cases, however, where a fact that is essential to the plaintiff's recovery is so plainly lacking that a nonsuit should be ordered and those in which such fact is so indisputably established in the plaintiff’s favor that the jury should be so instructed lies the great mass of what are significantly called disputed matters of fact. Such disputed matters need not consist of contradictions in the testimony. If opposite inferences may reasonably be drawn from uncontradicted testimony, a substantial dispute is presented. It is needless to say that all such disputes are for the jury. In the present case the nature of the protection the rail was designed to afford seems to me to lie within this debatable area, so that it was no more competent for the trial court to decide that it *29was unquestionably provided to withstand violent impacts of the servant’s body than it would have been for the court to decide that it was obviously not constructed to withstand such impacts, and hence to have nonsuited the plaintiff. Either of these decisions of this question of fact must rest upon the inferences to be drawn from the construction of the railing, its size and supports, the length of its span, its uses in connection with other parts of the defendant’s plant. A good deal might be said on each side of the question, so that, while not suggesting for a moment that the trial judge reached an erroneous conclusion upon this question, I am satisfied that he should not have reached any conclusion that resulted in withholding from the jury the determination of a debatable question of this fundamental character, for it will not be contended that, if the appearance of the rail and its construction indicated that it was not designed to withstand violent impacts or to afford protection in such cases, the plaintiff had a right to rely upon such protection. Such a situation would in principle be indistinguishable from the decision above cited where the man relied upon the strength of the mullion to support his weight. If the inadequacy of the railing in this case had been as clear as the inadequacy of the mullion in that case, the plaintiff should have been non-suited. We do not think that such inadequacy incontestably appeared, but neither do we think that it incontestably appeared that the railing was provided to withstand the shock resulting from accidents such as the plaintiff’s. If neither of these facts were placed by the testimony beyond reasonable dispute, the question should have been left to the jury, and for the failure of the trial court so to leave it the verdict in this ease must be set aside.
The defendant’s rule is made absolute.