
    VANDERBILT v. CITY OF GENEVA.
    (Supreme Court, Appellate Division. Fourth Department.
    May 19, 1909.)
    Appeal from Trial Term. Ontario County. Action by Lillian M. Vanderbilt against the City of Geneva. From a judgment in favor of plaintiff, from an order denying a motion for a new trial on the minutes, and from an order denying a similar motion on the ground of newly discovered evideuce. Defendant appeals. Reversed.
    W. Smith O’Brien, for appellant. E. A. Griffith, for respondent.
   WILLIAMS, J.

The judgment and orders should be reversed, and a new trial granted, with the costs of these appeals to the party finally successful in the action. The action was brought to recover damages for personal injuries alleged to have resulted from defendant’s negligence. The plaintiff slipped and fell upon ice on the sidewalk, and claimed to have sustained therefrom such serious injuries that the jury gave her, a verdict of $3,500. Without going into details, we think the jury was justified in finding the defendant guilty of negligence, which caused the accident, and that the plaintiff was free from contributory negligence. We would not want to reverse upon either of these questions as matter of fact. The troublesome questions arise with reference to the extent of the injuries caused by her fall; that is, whether plaintiff’s condition after the accident was the result of the fall, or of a diseased condition existing before that time. To the mind of those not skilled in medical science, it seems as though a fall such as the plaintiff had would hardly result, so soon after, in the condition she was found to be in when the several surgical operations were performed. There was serious controversy as to this question on the trial, and then upon the motion for another trial, on the ground of newly discovered evidence, further evidence was given in affidavits. I do not think it well to enter upon a discussion of the evidence in detail. I am not satisfied the verdict was right, or that justice was done thereby. I think there should be a new trial, and the defendant should have another chance to submit the case to a jury. Judgment and orders reversed, and new trial ordered, with costs to abide event, upon questions of law and fact.

SPRING and KRUSE, JJ., dissent.  