Majority
p. 137Charles Leopold, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.
Headnote
Damages for personal injuries — when a case is properly submited to the jury.In an action to recover tlie damages resulting from injuries occasioned by the defendant’s alleged negligence, there was a conflict of evidence in regard to the plaintiff's freedom from contributory negligence and the defendant’s negligence. Held, that the case was properly submitted to a jury.
Appeal by the defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 2d day of February, 1S93, upon the verdict of a jury rendered at the Saratoga Circuit, and also from an order entered in the said clerk’s office on the 2d day of February, 1893, denying the defendant’s motion for a new trial made upon the minutes. ‘
W. F. Rathbone and Lewis E. Carr, for the appellant.
J. W. Houghton, for the respondent.
This case arises out of the same accident as did the case of Fanny Leopold against the defendant (reported in 66 Hun, 628 ; 49 N. Y. St. Repr. 459 ), and, while some additional witnesses testified in this case, T do not see that the facts are substantially different from what they were in the case of Fanny Leopold. In this case, as in that, there ivas a conflict of evidence both upon the question of the plain
p. 138
tiffs freedom from contributory negligence and upon the question as to whether the defendant was guilty of negligence, and there was evidence in the case from which the jury might infer the plaintiff’s freedom from contributory negligence and the defendant’s negligence. The case was fairly submitted to the jury by the court. I can see no error.in the charge calculated to prejudice the rights of' the defendant.
Judgment should be affirmed, with costs.
Mayham, P. J., and Putnam, J., concurred.
Judgment affirmed, with costs.