Liebowitz v. Long Island Railroad , 157 N.Y.S. 1132 ( 1916 )

Laughlin, J.:

The cause of action as alleged is on an implied license, which was not proved, but the case was left to the jury upon the claim of an express invitation, which was not alleged. I am also of opinion that the findings of the jury that the plaintiff was free from contributory negligence, and that the defendant was negligent, are against the weight of the evidence. The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. Clarke, P. J., concurred; Smith, J., concurred, being further of the opinion that the proof of the defendant’s negligence was not sufficient to go to the jury; Dowling and Davis, JJ., dissented and voted for affirmance. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.