274 A.D. 818 | N.Y. App. Div. | 1948
In an action to recover damages for the wrongful death of respondent’s intestate, as a result of appellant’s train running into and striking a truck driven by the intestate, at appellant’s grade crossing in Bellmore, Long Island, judgment in favor of respondent and against appellant, reversed on the facts and a new trial granted, with costs to abide the event. Appeal from order denying appellant’s motions to dismiss the complaint, for a directed verdict, to set aside the verdict and for a new trial, dismissed, without costs. In our opinion the finding implicit in the verdict of the jury that the decedent was free from contributory negligence is against the weight of the evidence. Adel, Nolan and Sneed, JJ., concur; Johnston, Acting P. J., and Wenzel, J., dissent and vote to affirm the judgment and order. [See post, p. 852.]
