This is an action by an employee against his employer to recover damages for a discharge, which defendant sought to justify on the ground that the plaintiff had been guilty of culpable negligence in conducting defendant’s business resulting in a substantial loss of property.
The plaintiff had a verdict, which necessarily involved a finding by the jury that he had not been negligent as charged. Upon appeal to this court we were of opinion that the undisputed evidence had clearly established the fact of plaintiff’s negligence and that the finding of the jury that he had not been negligent was against the evidence and dismissed the complaint. (162 App. Div. 513.)
On appeal to the Court of Appeals that court considered that there was a question of fact in the case, in that, although there was no question as to the facts, they were such that different inferences might be drawn therefrom. (221 N. Y. 38.) Consequently the cause was remitted to this court for consideration of the weight of the evidence.
Unless we are required by the Court of Appeals to draw different inferences from the facts than those which we drew upon the former appeal, which I do not understand to be the effect of the decision of that court, there is nothing left for us to do except to order a new trial.
On the former appeal we were of the opinion that the ver-.
It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event, the finding that the plaintiff was not negligent in the conduct of defendant’s business being reversed as against the weight of the evidence.
Clarke, P. J., Page and Shearn, JJ., concurred; Smith, J., concurred in result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.