Pauline H. Fey, as Administratrix, etc., of Frederick Fey, Deceased, Respondent, v. New York Dock Company, Appellant

Second Department, June, 1913. Pauline H. Fey, as Administratrix, etc., of Frederick Fey, Deceased, Respondent, v. New York Dock Company, Appellant. Negligence—injury by fall of gate. Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 18th day of December, 1912, in favor of the plaintiff, and from an order bearing date the 13th day of January, 1913, and entered in said clerk’s office, denying its motion for a new trial. [MAJORITY — Per Curiam:] Per Curiam: In this action, which was tried subsequently to the case of Fogarty v. New York Dock Co. (post, p. 924), decided herewith, evidence was given as to the cause of the fall of the gate. The absence of such evidence in the Fogarty case constrained us to hold that a nonsuit was properly granted. Upon the evidence here presented, we think that it was a question of fact for the jury whether defendant was negligent in leaving the gate in the position in which it was just before it fell. Although there is a conflict of evidence as to its exact position and as to the length of time in which it had there remained prior to the date of the accident, these disputed questions of fact were properly submitted to the jury, and their verdict thereon should not be disturbed. The judgment and order denying motion for new trial should be affirmed, with costs. Present— Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ. Judgment and order unanimously affirmed, with costs.