Indence v. Long Island Railroad , 225 N.Y.S.2d 231 ( 1962 )

In our opinion, on the proof adduced, there was considerable dispute as to the precise place where the testatrix was injured — whether at the broken curbing as alleged in the bill of particulars, or on the unbroken threshold, as claimed by defendant. Under these circumstances, it could not be properly held that the evidence preponderated so greatly in favor of plaintiffs as to establish that the jury’s verdict for the defendant could not have been reached upon any fair interpretation of the evidence (Areson v. Hempstead Bus Corp., 14 A D 2d 790; Herman v. Hubert, 12 A D 2d 767; Holpp v. Carafa, 8 A D 2d 617). In any event, upon the facts adduced, the jury was free to find that testatrix was guilty of contributory negligence which barred plaintiffs from any recovery. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.