Gillespie v. Heverin

Order reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. At the close of the plaintiff’s case, the learned trial court dismissed the complaint on the ground that the plaintiff had not established a prima facie case of defendant’s negligence and plaintiff’s freedom from contributory negligence. A motion for a new trial upon the minutes and exceptions was denied by order from which the plaintiff appealed. Plaintiff did not appeal from the judgment. The appeal from the order sufficiently raises the questions submitted. (Civ. Prac. Act, §§ 549, 609; Callahan v. Munson Steamship Line, 141 App. Div. 791; Collier v. Collins, 172 N. Y. 99; Snelling v. Yetter, No. 1, 25 App. Div. 590.) We are of opinion that upon the proof adduced, unexplained, the plaintiff was entitled to have the case submitted to the jury. The jury would have been justified in finding the defendant negligent in backing his car into the path of the sled upon which the plaintiff, with many others, was coasting down the hill. Contributory negligence, upon his part, if any, was properly for the jury. Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ., concur.