Thompson v. Western Union Telegraph Co.

261 A.D. 994 | N.Y. App. Div. | 1941

In an action to recover damages for the death of the plaintiff’s intestate, an infant, who was struck by a bicycle ridden by the defendant’s employee, judgment was rendered in favor of the defendant on the merits, after trial by the court without a jury. Judgment reversed on the facts and a new trial granted, with costs to appellant to abide the event. The finding of the trial court that plaintiff failed to establish negligence on the part of the respondent is against the weight of the evidence. Lazansky, P. J., Carswell and Johnston, JJ., concur; Hagarty and Adel, JJ., dissent and vote to affirm.