Torts · MBE-tested
James Cahill, as Administrator, etc., of Margaret Cudney, Deceased, Appellant, v. The Delaware and Hudson Company, Respondent
219 A.D. 843·New York Supreme Court, Appellate Division·1927·NY
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Opinion
Third Department,
March, 1927.
James Cahill, as Administrator, etc., of Margaret Cudney, Deceased, Appellant, v. The Delaware and Hudson Company, Respondent.
Appeal from a judgment of the Supreme Court in favor of the defendant, entered in the Saratoga county clerk’s office on June 18, 1926, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.
[MAJORITY — Per Curiam.]
Per Curiam.
There was evidence on which a jury could have found that the defendant was negligent. The vital question in the case is whether or not the deceased was guilty of contributory negligence. This presented a question of fact for the jury and not a question of law for the court. Van Kirk, Acting P. J., Hinman, McCann, Davis and Whitmyer, JJ., concur. Judgment reversed on the law and facts, and new trial granted, with costs to the appellant to abide the event.