This case was before the court upon a former appeal, 39 Hun, 430, when all the questions now presented for our consideration were decided as appears by the opinion of Mr. Justice Martin. The new evidence presented upon the present trial in our opinion does not affect the principles of law applicable, or obviate in any respect the former decision of this court. It was then held that (under the evidence as then presented, and not now modified in any essential particular) it was a question of fact whether the defendant, was guilty of negligence in maintaining so low a bridge; that it was a question of fact whether plaintiff knew or ought to have known its position and danger; that it was a question of fact whether the plaintiff was guilty of contributory negligence, and finally that all these questions of fact were properly submitted to the jury. The law of the case had been adjudged in this court, and the defendant must resort to a higher court, for a further consideration of its exceptions.

The judgment and order appealed from must be affirmed, with costs, upon the opinion of Mr. Justice Martin, in 39 Hun, 430.

Follett, J., not sitting.