Josephine Trudell, as Administratrix, etc., of Wilbur Trudell, Deceased, Respondent, v. New York Rapid Transit Corporation, Appellant

Josephine Trudell, as Administratrix, etc., of Wilbur Trudell, Deceased, Respondent, v. New York Rapid Transit Corporation, Appellant. [MAJORITY] In an action brought to recover damages resulting from the death of plaintiff’s intestate, a twelve-year old boy, who fell from the rear platform of one of defendant’s elevated trains, judgment in favor of plaintiff unanimously affirmed, with costs. The evidence taken at the second trial differed in no important respect from that taken at the first. The Court of Appeals has held that the evidence taken at the first trial was sufficient to create issues of fact for the jury and that it was error to direct a verdict for the defendant. (Trudell v. N. Y. Rapid Transit Corp., 281 N. Y. 82.) On substantially the same evidence the court at the second trial was obliged to submit the issues to the jury, and we cannot say that the verdict was against the weight of the evidence. Present — Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ.