Bambace v. Interurban St. Ry. Co.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including interest and costs, to the sum of $2,917.44, in which event the judgment, as so modified, and the order appealed from, are affirmed, without costs.

I dissent, upon the ground that the court erred in refusing to charge the ninth request presented by the defendant. I am of opinion that there was evidence to warrant the jury in finding the facts recited therein, and that on those facts the defendant could not be charged with negligence, as there was no evidence that the car could have been stopped within five or six feet, and, furthermore, that the decedent would in such circumstances be deemed guilty of contributory negligence as matter of law.