Bleichman v. Coney Island & B. Railroad

130 N.Y.S. 595

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 29, 1911
• Status: Published

Opinion

SEABURY, J.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servants. The learned trial court charged the jury that:

“ 6 * * if you find from the evidence in this case that this car slowed down to, as has been testified, a walk of a child or a person, then I charge you that as a matter of law he is not guilty of contributory negligence. * * *

To this part of the charge the defendant duly excepted. The evidence in this case presented a sharp conflict of fact, and we think that the charge of the learned trial court was erroneous and prejudicial.

. Under the facts of this case, it was for the jury to determine as a matter of fact from the evidence presented whether the plaintiff was or was not guilty of negligence which contributed to the accident. Upon this question presented by the evidence, the defendant was entitled to the judgment of the jury.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.