Dowd v. Brooklyn Heights Railroad , 12 Misc. 647 ( 1895 )

Per Cwriam.

Action to recover damages for negligently causing the death of plaintiff’s intestate. On the first trial of this cause the complaint was dismissed on the ground that deceased was negligent, and that no negligence was shown on the part of the defendant. On appeal to the General Term we reversed the judgment of the Trial Term, holding that a prima facie case of negligence had been made out against the defendant, and that the question of contributory negligence was for the jury to determine. Vide opinion, 9 Misc. Rep. 279. On the second trial the jury, on all the evidence, found a verdict for the plaintiff. We are now asked to reverse the judgment entered thereon on the ground that “ plaintiff failed to prove that the death of his intestate was due to any negligence on the part of defendant’s servants, and without negligence on his own part.”

The evidence on the second trial presented a sharp conflict between the plaintiff’s and defendant’s witnesses as to the facts and circumstances which resulted in the killing of plaintiff’s intestate; the jury have determined the issues in favor of the plaintiff, and there is nothing in the case which would justify us in interfering with the verdict.

Judgment and order denying new trial affirmed, with costs.

Present: Clement, Ch. J., and Osborne, J.

Judgment and order affirmed, with costs.