Beckwith v. New York, Ontario & Western Railway Co. — 99 N.Y. Sup. Ct. 605

Majority

p. 605

Mary E. Beckwith, as Administratrix, etc., of James S. Beckwith, Deceased, Respondent, v. New York, Ontario and Western Railway Company, Appellant.

Headnote

Judgment and order affirmed, with costs.—

When before this court on a former appeal it was held in this case that the questions whether the plaintiff’s intestate was free from contributory negligence, and whether the defendant was guilty of negligence which caused the plaintiff’s intestate’s injury, were questions of fact which should have been submitted to the jury. As on the last trial the evidence on the part of the plaintiff was essentially the same as on the former trial, and as the evidence given by the defendant was not controlling upon those questions, the former decision was followed and they were properly submitted to the jury. After a careful perusal of the evidence contained in the record nowbefore us, we again reach the conclusion that the questions whether the defendant was negligent, whether such negligence caused the injury which resulted in the death of the plaintiff's intestate, and whether the plaintiff’s intestate was free from contributory negligence, as well as the question of damages, were all

p. 606

questions of fact and properly submitted to the jury. We have examined the various exceptions to which our attention has been called by the appellant’s brief, but have found none that would justify us in disturbing the judgment or that requires special consideration. Judgment and order affirmed, with costs.

Present — Hardin, P. J., Martin and Merwin, JJ.