
    (50 Misc. Rep. 625)
    ROBBINS v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    March 26, 1906.)
    Negligence — Action—Question fob Jury.
    Where there is any evidence from which defendant’s negligence or plaintiff’s freedom from contributory negligence can be inferred, the questions are for the jury.
    - [Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 279-353.]
    Appeal from Municipal Court, Borough of Manhattan, Eighth District.
    Action by David Robbins against the New York City Railway Company. From a judgment in favor of defendant, plaintiff appeals.
    Reversed.
    Argued before SCOTT, P. J., and O’GORMAN and NEWBURGER, JJ.
    Watts & Merrill, for appellánt.
    William E. Weaver, for respondent.
   PER CURIAM.

Under the rule laid down in McDonald v. Met. St. Ry. Co., 167 N. Y. 66, 60 N. E. 383, if there be any evidence at all from which defendant’s negligence or the plaintiff’s freedom from contributory negligence can be inferred, the question becomes one .of fact, and must in the first instance be submitted to the jury, leaving to the court, if it finds the verdict unsupported by the evidence, only the power to set aside the verdict and order another trial. There was some evidence in this case from which inferences as to the respective negligence of plaintiff and defendant might have been drawn in plaintiff’s favor, and it was therefore error to have dismissed the complaint. Whether upon the evidence a verdict in favor of plaintiff would have been sustained is another question, with which we are not concerned on this appeal.

Judgment reversed and new trial granted, with costs to appellant to abide the event.  