William H. Downs, Respondent, v. The New York Central Railroad Company, Appellant

William H. Downs, Respondent, v. The New York Central Railroad Company, Appellant. (Argued April 17, 1874; decided May 26, 1874.) This was an action to recover damages for injuries alleged to have been occasioned by defendant’s negligence. The case, upon a former appeal, is reported in 47 New York, 83. The plaintiff, a lad twelve years old, was traveling with his mother; mot having a seat he asked permission of his mother to go forward to the smoking car. His mother consented, carefully directing and cautioning him, and requesting him to return to her at noon. He went forward; and some hours after that, on the arrival of the train at Rome, in attempting to leave the smoking car to return to his mother, was thrown under the cars and hurt. The case turned upon the question of fact as to whether the train had stopped before he attempted to leave. Plaintiff’s evidence tended to show that it had, and as he got out upon the platform started up with a sudden jerk, which threw him off. The evidence of the conversation between plaintiff and his mother before he went to the smok. ing car was received, under objection. Held, that the conversation had no bearing upon the question as to whether the cars were stopped when he left the smoking car; and this having been fairly submitted to the jury their finding could not have been affected by the conversation. The only other question was as to whether the verdict was against the weight of evidence. Held, that there being some evidence and the General Term having refused to set aside the verdict as against the weight of evidence, its decision could not be reviewed. Cox & Avery for the appellant. J. H. Maritindale for the respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for affirmance. All concur. Judgment affirmed.