Thomson v. Baumann

We think that, because of errors in the charge, whereby the jury might have been led to conclude that as matter of law they must find the servant of defendants negligent, and because we think the damages awarded were excessive under the proofs, the appeal should be sustained. We decide under authority of Devine v. Railroad Co., 34 App. Div. 248, 54 N. Y. Supp. 626, and Lawson v. Railway Co., 40 App. Div. 307, 57 N. Y. Supp. 997. The question is, had the parties exercised ordinary care of reasonably prudent persons?

*1150“In the nature of things, that question must always be submitted to the jury.” See, also, Rottenberg v. Segelke, 148 N. Y. 734, 42 N. E. 725, to the same effect. We think that the learned trial court practically found facts in its charge in respect of the opinion thereon, and that the jury was led to believe that they were charged to find the same facts as matter ■of law. Judgment and order should be reversed, and a new trial granted, with costs to appellants to abide the - event. Judgment and order reversed, and new trial granted, with ■costs to appellants to abide event.

O’DWYER, J., concurs in result.