Nicholas Blaiser, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent

Nicholas Blaiser, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent. (Argued June 21,1888; decided June 26, 1888.) Appeal from judgment of the General Term of the Superior Court of the city of Buffalo in favor of defendant, entered upon an order made at the December Term, 1884, which overruled plaintiff’s exceptions and ordered judgment on an order nonsuiting plaintiff on trial. The nonsuit was upon the ground of. contributory negligence. The following is the mem. of opinion: “We are of opinion that contributory negligence could not, ■as matter of law, be asserted of the plaintiff’s conduct upon -the facts disclosed by the evidence. The nonsuit was, therefore, improper and the case should have been submitted to the jury. “ The judgment should be reversed and a new trial granted.” Arthur W. Hickman for appellant. E. C. Sprague for respondent. [MAJORITY — Per Curiam mem.] Per Curiam mem. for reversal and new trial. All concur. • Judgment reversed.