Clarkson v. Smith

Judgment and order reversed upon the law and a new trial granted, with costs to the appeUant to abide event, on the ground that upon the evidence the acts of the defendant’s employee in the emergency presented were not negligent. A new trial is, however, granted, because other allegations of negligent conduct on the part of defendant’s employee are set forth in the complaint and the plaintiff may be able on the new trial to establish negligence in accordance with such other allegations. AH concur. Present — Hubbs, P. J., Sears, Crouch, Taylor and Sawyer, JJ.