Polsky v. New York Transp. Co. — 103 N.Y.S. 1138

Majority

p. 1138

POLSKY, Respondent, v. NEW YORK TRANSP. CO., Appellant.

(Supreme Court, Appellate Division, First Department.

April 19, 1907.)

Headnote

Appeal from Trial Term, New York County. Action by Solomon Polsky against the New York Transportation Company. Prom a judgment for plainti~, defendant appeals. Reversed, ~nd new trial granted. Arthur K. Wing, for appellant. Joseph Rosenzweig, for respondent.

This is an action by the father for loss of services and expenses incurred by reason of an injury received by his son Abraham through the alleged negligence of one of defendant's cab drivers. The son recovered a judgment for his injuries, and on appeal to this court (Polsky v. New York Transportation Company, 96 App. Div. 613 , 88 N. Y. Supp.

p. 1139

1024 ) It was determined that the verdict in plaintiff's favor was against the weight of evidence, both as to the negligence of the defendant's servant and absence of contributory negligence on the part of the person injured. The evidence in the present case fails to disclose any greater negligence on the part of defendant's driver or any greater care on the part of the injured boy than appeared in the former case. In some respects the evidence is more favorable to defendant than on the trial of the other action. For example, the speed at which the automobile was being run is now put. at a. less rate, and loss congestion of traffic appears. On the authority of the former case, and on the opinion therein, the present judgment and order must be reversed on the same grounds, and a new trial granted, with costs to the appellant to abide the event. All concur, except PATTERSON P. J., who dissents.