Lewin v. . Lehigh Valley Railroad Company

59 N.E. 1118, 165 N.Y. 667, 1901 N.Y. LEXIS 1529

Opinion

Per Curiam.

In this action, which, was brought by the plaintiff, as administrator, etc., to 'recover damages for the alleged negligence of the defendant in causing the death of his infant son, we think that the evidence was such as to make it a question of fact whether the plaintiff was guilty of contributory negligence or not. It was possible, upon the evidence, for the jurors to draw the inference that he had acted as prudently and vigilantly as was reasonably to be expected of him, and that question was specifically submitted to and passed upon by them. The judgment upon the verdict, which the jury rendered in favor of the plaintiff, has been affirmed by the Appellate Division, although by a divided court, and, therefore, the interesting question as to the effect of the plaintiff’s contributory negligence upon his right to recover, discussed in the opinion rendered at the Appellate Division, is not before us. For these reasons the judgment should be affirmed, with costs.

Parker, Ch. J., Gray, Bartlett, Martin, Vann, Cullen and Werner, JJ., concur.

Judgment affirmed.