Jones v. Brooklyn Heights Railroad , 36 N.Y.S. 1127 ( 1895 )

Per Curiam.

Action to recover damages for negligently -causing the death" of plaintiff’s intestate, a-child four years -of age. Plaintiff had a verdict, and defendant appeals from the judgment entered thereon and the Order denying motion for a new trial.

The learned counsel for the appellant contends- that the "motion to - dismiss the complaint should have been granted, on the grounds, jvrst, that plaintiff failed to prove any negligence ■on the part of defendant’s servants, and, second, that. plaintiff failed to prove freedom from contributory negligence on the part of the parents of the deceased child.

On a previous, appeal in this case (10 Misc. Rep. 543) this court held, on substantially the same evidence on the part ■of the plaintiff, that neither of thesepoints was well taken. A ■careful examination of the evidence adduced on behalf of the ■defendant on this trial affords no ground; for altering the "former decision. The questions as to negligence of defendant ■and freedom from contributory negligence on the part of the ■child’s parents were properly left to the jury to decide, and "the verdict is well sustained by the evidence. .......

Judgment' and order denying motion for a new trial •affirmed, with costs.

Present: Osborne and Van Wyok, JJ.

■Judgment and order affirmed, with costs.