Villanacci v. Harding

It cannot be determined from the record that plaintiffs intestate was guilty of contributory negligence as matter of law. Therefore, the complaint should not have been dismissed. However, we are of the opinion that the verdict was against the weight of the credible evidence and, consequently, the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. Judgment and order unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. Present —■ Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.