William E. Tanner, Respondent, v. William Schoenbeck, Appellant

William E. Tanner, Respondent, v. William Schoenbeck, Appellant. [MAJORITY] Judgment reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event, upon the ground that the verdict is against the weight of the evidence. Plaintiff claimed that he was standing between the north-bound and south-bound car tracks when he was struck, but had no knowledge of what struck him. Defendant’s car was coming in a southerly direction, and defendant and a witness testified that as they were passing plaintiff he retraced his steps and ran into the car. PlaintiS’s testimony indicates that at the time of the trial he did not know whether or not he did step back. Under these circumstances the conclusion of the jury is against the weight of the evidence. Lazansky, P. J., Kapper, Scudder and Tompkins, JJ., concur; Hagarty, J., dissents and votes to affirm.