William Lewin, as Administrator of Herbert Lewin, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant

William Lewin, as Administrator of Herbert Lewin, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant. Lewin v. Lehigh Valley R. R. Co., 52 App. Div. 69, affirmed. (Argued January 31, 1901; decided February 8, 1901.) Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 7,1900, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. George F. Yeoman for appellant. Thomas Raines for respondent. [MAJORITY — Per Curiam.] Per Curiam. In this action, which, was brought by the plaintiff, as administrator, etc., to 'recover damages for the alleged negligence of the defendant in causing the death of his infant son, we think that the evidence was such as to make it a question of fact whether the plaintiff was guilty of contributory negligence or not. It was possible, upon the evidence, for the jurors to draw the inference that he had acted as prudently and vigilantly as was reasonably to be expected of him, and that question was specifically submitted to and passed upon by them. The judgment upon the verdict, which the jury rendered in favor of the plaintiff, has been affirmed by the Appellate Division, although by a divided court, and, therefore, the interesting question as to the effect of the plaintiff’s contributory negligence upon his right to recover, discussed in the opinion rendered at the Appellate Division, is not before us. For these reasons the judgment should be affirmed, with costs. Parker, Ch. J., Gray, Bartlett, Martin, Vann, Cullen and Werner, JJ., concur. Judgment affirmed.