Majority
Judgment and order affirmed, with costs.—
This is an appeal from a judgment entered upon the verdict of a jury and from the order denying the defendant’s motion for a new trial on the minutes of tho court. The action is based upon negligence, and the facts are these: On the 12th day of April, 1893, the plaintiff was riding on a truck along Flafbush avenue in the city of Brooklyn. At the corner of Dean street tho driver of the truck slackened its speed to almost a standstill to allow the plaintiff to alight. The plaintiff stepped down upon the ground on his right loot, at the same time holding on to the rung of the truck with his right hand. He had reached the ground and turning around he stepped into a hole in the crosswalk with his left foot, causing him to fall down and break his leg. The hole was about two feet long, nine inches wide and eight or nine inches deep, and had been there for a year or more. As a result of these injuries the plaintiff was confined to the hospital and to his house, and was unable to engage in his work for a period of about four months. The injury to his leg had the effect to shorten it an inch or more, making it weak, and rendering him unable to earn the same wages that he did before he received the injury. In tiiis class of cases the plaintiff is bound to show by a preponderance of evide2ice the negligence of the defendant and his own freedom therefrom as a contribution to the result. The plaintiff in this case, sustained the burden which the law cast upon him and the charge of the trial judge submitted the question involved to the jury. The verdict in favor of the plaintiff under the charge establishes the facts in favor of the plaintiff, and the record presents no errors of law. The judgment and order denying the motion for a new trial should be affirmed, with costs.
Brown, P. J., and Pratt, J., concurred.