Wieland, V. President of Delaware & H. Canal Co.

PER CURIAM. Upon the granting of the nonsuit in this case, the trial court held that upon the question of the negligence of the defendant the plaintiff was entitled to have the case go to the jury, but that the evidence was not sufficient to take to the jury the question of contributory negligence. In this latter respect we think that the trial court erred. The evidence in some respects varied from that given on the former trial, which was the subject of the former review by this court, (30 App. Div. 85, 51 N. Y. S. 776); but there was not. in effect, we think, such a difference as to require a rule different from the one laid down on the former appeal. We therefore conclude that a new trial should be granted. Judgment reversed, and new trial granted; costs to abide the event. All concur, except PARKER, P. J.. [1118] dissenting in opinion, and PUTNAM, X, not sitting.