Majority
p. 290WEILL v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. January 26, 1912.) . Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
Headnote
On motion to resettle an order reversing judgment in favor of plaintiff.Motion denied.
For former opinion, see 132 N. Y. Supp. 609 .
Adam K. Strieker, for the motion.
Clarence L. Barber, opposed.
Plaintiff’s motion to resettle the order reversing the judgment in her favor and the order denying defendant’s motion for a new trial, by incorporating therein the words “upon questions of law only, the facts having been examined and no error found therein,” is based upon a misapprehension of the opinion of the majority of this court. Nowhere therein is it expressly stated that plaintiff was guilty of contributory negligence as matter of law. The evidence offered upon her behalf, that the place where she alighted from
p. 291
the coach was dark, is contradicted by facts and circumstances rendering it improbable. The undisputed evidence concerning the construction of the deck and of the wheel guard and coaming surrounding the coal chute presents facts and circumstances tending to establish that the dangers of the situation were apparent to one exercising reasonable care. In the opinion of some of the members of this court, within the doctrine of McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66 , 60 N. E. 282 , the learned trial justice was justified in submitting to the jury the question of plaintiff’s freedom from contributory negligence; but the jury was not justified in finding as a fact that she had sustained the burden of proof in this regard. The verdict of the jury should have been set aside by the trial court upon this ground.
The motion to resettle the order is denied.
Cases cited
- McDonald v. Metropolitan Street Railway Co. 167 N. Y. 66 p. 291