
    RICCA, Respondent, v. THIRD AVE. R. CO., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    January 24, 1899.)
    Action by Joseph Ricca, Jr., an infant, by Joseph Ricca, his guardian ad litem, against the Third Avenue Railroad Company. Herbert R. Limburger (Henry L. Scheuerman, on the brief), for appellant. John B. Shanahan (James W. Ridgway, on the brief), for respondent.
   PER CURIAM.

We doubt whether the evidence in this case, even construed most liberally in favor of the plaintiff, is sufficient to charge the defendant with negligence, or to save the plaintiff from the charge of contributory negligence. Nor do we intend to conclude ourselves as to these propositions. But. if it be conceded that there was evidence sufficient to justify the submission of the case to the jury, we are still of opinion that even then the verdict was against the clear weight of evidence. In view of the very confused picture which the evidence in this record presents to us,—a confusion that may not exist on another trial,—we think it wiser to grant a new trial on this last ground than to pass definitely on the questions involved in the motion for a nonsuit.  