Doshe v. Village of Batavia

Appellate Division of the Supreme Court of New York

Doshe v. Village of Batavia

84 N.Y.S. 1123

Appellate Division of the Supreme Court of the State of New York·Decided October 27, 1903·Published

Opinion

PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, upon questions of fact. Held that, without passing upon the correctness of the rule laid down by the trial justice, to the effect that plaintiff was chargeable with any negligence of the driver, still upon the theory upon which the case was submitted, it was against the weight of the evidence for the jury to find, in effect, that the plaintiff and the driver did not, and were not bound to, see the roller in time to have avoided the accident.

SPRING, J., dissents. STOVER, J., not voting.

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PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, upon questions of fact. Held that, without passing upon the correctness of the rule laid down by the trial justice, to the effect that plaintiff was chargeable with any negligence of the driver, still upon the theory upon which the case was submitted, it was against the weight of the evidence for the jury to find, in effect, that the plaintiff and the driver did not, and were not bound to, see the roller in time to have avoided the accident.

SPRING, J., dissents. STOVER, J., not voting.

Doshe v. Village of Batavia, 84 N.Y.S. 1123 (N.Y. Ct. App. 1903).

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