Stevens v. South Bay Consolidated Water Co. ( 1930 )

Judgment affirmed, with costs. The failure to move to dismiss at the end of the plaintiff’s case and at the end of the whole case, or to move for the direction of a verdict, was a concession that there was a question of fact involved as to negligence and contributory negligence. There was ample proof of negligence. Defendant did not maintain its burden of proof that decedent was guilty of negligence, for there were hypotheses which would indicate the absence of such negligence. There was a question of fact for the jury and its verdict was not against the weight of the evidence. (Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345.) Lazansky, P. J., Young and Scudder, JJ., concur; Carswell and Tompkins, JJ., dissent upon the ground that the decedent was guilty of contributory negligence as a matter of law and, therefore, the verdict was contrary to the evidence.