Gombert v. . Niagara Junction Railway Company , 217 N.Y. 635 ( 1916 )

This is an action for damages for personal injuries. The plaintiff recovered a verdict upon which judgment was entered. Upon appeal the Appellate Division reversed the judgment and dismissed the complaint "upon the merits," and by a divided court held "That the uncontradicted evidence shows that the plaintiff was guilty of contributory negligence as a matter of law." It is not necessary to set forth the facts or to point out the inferences which a jury would have been justified in drawing from them. We think it is sufficient to announce the conclusion at which we have arrived, viz., that upon the facts proved the issue as to contributory negligence was for the jury.

The Appellate Division held the judgment erroneous as a matter of law, and have not yet passed upon the weight of the evidence. The case must, therefore, be remitted to the Appellate Division for its consideration of the facts. (Junkermann v. TilyouRealty Co., 213 N.Y. 404, 410.)

The judgment should be reversed, with costs to the appellant in this court, and the case remitted to the Appellate Division for its consideration of the facts.

WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY and POUND, JJ., concur.

Judgment reversed, etc.