Vaughn v. Glens Falls Portland Cement Co. — 119 A.D. 923

Majority

p. 923

Third Department,

May, 1907.

Albert A. Vaughn, Appellant, v. The Glens Falls Portland Cement Company, Respondent.

Headnote

Trial — erroneous construction by trial court of decision made on a former appeal —• negligence — assumption of risk for jury.

This is an appeal by the plaintiff from a judgment in favor of the defendant, rendered upon a nonsuit upon trial before the court and jury.

This case is reported upon a former appeal in 105 Appellate Division, 136. There the court set aside a verdict in favor of the plaintiff, saying in substance that the plaintiff should have been nonsuited. This court affirmed the-order setting aside the verdict, holding that under the Employers’ ' Liability. Act^[1] it was a question of fact for the determination of the jury in the first instance whether the plaintiff understood and assumed the risk which the service then required. Upon this trial the trial court’erred in assuming that this court approved of the grounds upon which the trial judge set aside the former verdict and granted a nonsuit. Upon the former appeal this court, while intimating that the evidence tended to show that the defendant had assumed the risk, decided that that was a question of fact to be determined in the first instance

* See Laws of 1903, chap. 600, § 3.— [Rep.

p. 924

. by the jury. The nonsuit was improper. The judgment is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed-"and new trial granted, with costs-to appellant tó . abide event.. . . • • .