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Wilund v. New York Cent. & H. R. R.

139 N.Y.S. 1071 Court N.Y. App. Div. Decision date 1913-02-07 English

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p. 1071
WILUND v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, Appellate Division, Second Department.
February 7, 1913.)

Headnote

Appeal and Erbob (§ 1003[1] )—Verdict—Evidence.
Where, in a negligence case, the verdict is against the weight of evidence on questions of negligence and contributory negligence, a judgment for plaintiff will be reversed.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*]
Appeal from Trial Term, Kings County.
Action by Anna Wilund, as administratrix of Charles Wilund, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and an order denying new trial, defendant appeals.
Reversed, and new trial granted.
Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.
Robert A. Kutschback, of New York City, for appellant.
Prank W. Holmes, of Brooklyn, for respondent.

We think that the judgment and order should be reversed, and a new trial granted, costs to abide the event, on the

p. 1072
ground that the verdict is against the weight of evidence on the questions of the defendant’s negligence and the decedent’s freedom from contributory negligence. We think, also, that the evidence on the question of negligence on the part of Johnson was not sufficient to require submission of said question to the jury, and that it was likewise serious error to submit to the jury the question of wanton and reckless conduct on the part of the motorman.

JENKS, P. J., and THOMAS, CARR and RICH, JJ., concur. WOODWARD, J., concurs, on the ground that the verdict was against the weight of the evidence.