Action to recover damages for negligently -causing the death" of plaintiff’s intestate, a-child four years -of age. Plaintiff had a verdict, and defendant appeals from the judgment entered thereon and the Order denying motion for a new trial.
The learned counsel for the appellant contends- that the "motion to - dismiss the complaint should have been granted, on the grounds, jvrst, that plaintiff failed to prove any negligence on the part of defendant’s servants, and, second, that. plaintiff failed to prove freedom from contributory negligence on the part of the parents of the deceased child.
On a previous, appeal in this case (10 Misc. Rep. 543) this court held, on substantially the same evidence on the part of the plaintiff, that neither of thesepoints was well taken. A careful examination of the evidence adduced on behalf of the defendant on this trial affords no ground; for altering the "former decision. The questions as to negligence of defendant and freedom from contributory negligence on the part of the child’s parents were properly left to the jury to decide, and "the verdict is well sustained by the evidence. .......
Judgment' and order denying motion for a new trial •affirmed, with costs.
Present: Osborne and Van Wyok, JJ.
Judgment and order affirmed, with costs.