The Court below set aside the verdict of the jury and granted the defendant a new trial, because, in its opinion, the evidence was insufficient to justify the verdict. It is apparent, on looking more fully into the record, and indeed was quite apparent at the argument, that in the conflict of evidence upon the question of negligence involved, the action of the Court below in granting a new trial cannot be disturbed here. Nor is the case of the appellant aided by *409reference to the pleadings; mere criticisms upon the form in which denials or defenses are couched should be presented first in the trial Court, where amendments may be allowed in furtherance of substantial justice; where, however, the case has been tried as though at issue upon all its material points, the plaintiff is not to be permitted for the first time to assume the insufficiency of the answer in this Court.

Order affirmed.