Rindfleisch v. Kelsey 274 A.D. 951

Appeal by plaintiff from judgments in favor of defendants dismissing his complaint, entered upon a no cause of action verdict by a trial jury, at a Canton Trial Term [St. Lawrence Co.], and from an order denying his motion to set the verdict aside and for a new trial. The action is in negligence. Implicit in the verdict are findings either, or both, that there was a failure of proof as to plaintiff’s contributory negligence or that defendants were not shown guilty of any negligence which caused the plaintiff’s injuries. If the latter was the jury’s finding it was without sufficient support in the evidence. If the verdict was based upon a finding of proof as to plaintiff’s freedom from contributory negligence we consider that it was against the weight of the credible evidence, and upon the foregoing grounds and in the interest of justice the verdict should have been set aside. Judgments and order reversed on the facts and a new trial ordered, with costs to appellant to abide the event. Hill, P. J., Heffernan, Brewster and Foster, JJ., concur; Deyo, J., dissents on the ground that the record presented purely questions of fact for the jury.