
    Margret Noakes, an Infant, by George Noakes, Her Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    November 8, 1907.
    Negligence — injury to passenger in automobile—.contributory negligence of driver — when passenger not negligent as mattér of law — . charge.
    The contributory negligence of tile driver or operator of a vehicle which collides with a train at a railroad crossing is not chargeable to a passenger. ;
    But the rule that one approaching a railroad track is hound before crossing to use both eyes and ears to discover, if possible, whether a train is approaching, applies to a passenger as well as to the driver of a vehicle.
    In determining whether a failure of such' passenger to look and listen at a rail- ■ .road crossing is contributory negligence as matter of law, existing -circdm-’ stances and conditions áre to he considered, including the age and sex of the passenger. . . ’ . .
    A female passenger, sixteen years, of age, on the "rear seat of an automobile-which, was being driven by an experienced chauffeur under the direction of the owner, her father, seated by his side, and who is in no position, to -give - orders to either, and- is not -responsible for the management or control of the vehicle, is not guilty of contributory negligence as matter of law in failing to look and listen at a railroad crossing, where trains" were accustomed to stop, the crossing being blocked, by a dense crowd of people. Under such conditions the passenger’s contributory negligence is for tlié jury.
    When the failure of the passenger to look and listen at a railroad crossing, is not contributory negligence as matter of law, it is not error for the court,- having so charged, -to refuse to charge that a failure to look for an approaching train' - and warn the chauffeur is negligence which bars a recovery.
    4- verdict for §35,000 for injuries resulting in the amputation of the leg of a woman sixteen'years of age is excessive, and should be reduced to §25 Ó00.
    Houghton and Clarke, JJ., dissented, with opinion..
    ■ Appeal by the defendant, Tim New York- Central and Hudson Eiver Eailroad Company, from a judgment-of the'Supreme Court in favor of'the .plaintiff, entered in, the office of the clerk of the county of -New York on the-Í7th day of May, 1907, upon the verdict of a jury for $35,000.,. and also from an order entered in' said clerk’s office on the 15th day of May, 1907, denying the defendapt’s motion for a new trial made upon the minutes.
    
      
      Robert A. Kutschbock, for the appellant.
    
      Stephen C. Baldwin, for the respondent.
   Ingraham, J.:

The plaintiff received serious injuries which resulted in the amputation of her leg, by a collision between one of the trains upon the defendant’s road and ail automobile in which th'e plaintiff was a passenger on the 12th day of-June, 1904. The jury rendered a verdict in favor of the plaintiff for $35,000, and from the judgment entered upon that verdict the defendant appeals.

The serious question presented is whether the evidence justified the jury in finding that the plaintiff was free from contributory negligence. ,We are all agreed that the'evidence justified a finding that the defendant was negligent, and I shall confine myself to a discussion of the plaintiff’s contributory negligence. The accident occurred at Van Cortlandt avenue contiguous to a station on the defendant’s road know-n as Van Cortlandt station. Van Cortlandt avenue runs parallel with the railroad tracks on the easterly side of the tracks. Close to the depot there is a road crossing the track from the west and on the east of-Van Cortlandt avenue is Van Cortlandt park. On Sunday, June 12, 1904, at about five o’clock in the afternoon there were two trains due at this station, one going north and the other south to New York, and a large number of people were gathered about the station waiting to take these trains. The father of the plaintiff on that afternoon had visited Van Cortlandt park in his automobile. This automobile had two seats. The seat-in front was occupied by the chauffeur who was operating the machine and the plaintiff’s father. On the back seat was the plaintiff’s mother, a Mr. Beid and the plaintiff who was seated in the middle between her mother and Mr. Beid. The chauffeur was an experienced operator of automobiles and there is no question but that he was competent, and the plaintiff’s father was seated by his side upon the front seat. The party had been on Van Cortlandt avenue on the east side of the railroad tracks watching a golf game. They then crossed the railroad track through Mansion street to look at some other games on' the west side of the tracks when the plaintiff’s father directed the chauffeur to return to the east side of the tracks opposite the golf grounds. The chauffeur -testified that he proceeded along Mansion road very slowly; that there was a mass of people all. along the road who were hollowing and hooting, boys slinging bats and balls and making a great deal of noise; that there was a slight hill as he approached the track up which the automobile was proceeding slowly; that the chauffeur looked towards the north and south for trains upon the defendant’s road, but failed to see any ; that when he got near to the road he heard a noise and looked and saw a ‘train stopping near a water tank on the west track; he was then twenty-five or thirty feet from the track, and he looked and saw no train coming in the opposite direction on the east track; that the street and the tracks were full of people, and he had to proceed slowly making his way through the crowd; that ■lie crossed the westerly track -in safety and just as he was crossing the first rail of the easterly or north-bound track he heard a shriek and the people appeared to scatter; that he then turned his head and saw a train 'approaching from the south; that the front wheel of the automobile was .then on the first rail of the north-bound track ; that the train then appeared to be about two blocks or 400 feet away; that he immediately put on all his power to try and get across in time, and he almost got over the track when the locomotive struck tlie rear end of the automobile, severely injuring the chauffeur,- killing Mr. Beid; who was seated on the rear seat, severely injuring Mrs. Boakes (plaintiff’s mother) and the plaintiff. The plaintiff’s father, who was upon the front seat, testified that lie was looking straight ahead and did not notice a train on either track; that the . first he knew of the. collision was when he recovered consciousness after-wards. The plain tiff’s mother, who was seated upon the rear seat alongside of the plaintiff, testified that the first she knew of the accident was that she felt herself going through the air; that she saw the engine when it was about ten feet away; that she started to tell the chauffeur to stop, but before she could tell- him the collision happened. The plaintiff testified that she was at the time of the accident sixteen years of age; that she remembered going down the Mansion House road just before the accident; that the machine was going very slowly at the time; that as they approached the tracks she was seated in the back of. the automobile doing nothing, not looking at anything at all, but was watching the people; that as the automobile 'was crossing the track it was going very slowly and she did not remember seeing the train at all; that she remembered seeing a number on an engine right beside her and that was all she remembered, and the next recollection came when she regained consciousness after the accident. Upon cross-examination she said that she remembered the locomotive just upon her; that there was no opportunity for her to do anything and she could not and did not do anything, there was no time" to speak to the chauffeur. She was also asked whether she did not look either' to the right or to the left along the railroad tracks, to which she answered that she did not remember. The evidence is that from this station the track towards the south upon which this train that collided with the automobile was proceeding was visible for a distance of 2,000 feet from the station, and the objection to the plaintiff’s recovery is based upon the fact that as it does not appear that the plaintiff had looked before crossing the track she was as a matter of law guilty of contributory negligence which jd reel tides a recovery.

The duty which is .imposed upon a passenger in a vehicle crossing a'steam railroad track and the question as to the extent that d passenger in a vehicle is precluded from recovering by reason of the negligence of the driver or person operating the motive.power of the vehicle have been much discussed, but it is settled in this State that the contributory negligence of the driver or operator of the vehicle is not chargeable against a passenger, but that in such a case the passenger is to be judged by the duty that the law imposes upon him under the circumstances existing at the time of the accident. There is no doubt but that a traveler approaching a railroad track is bound before crossing the track to use both his eyes"and his ears to discover if possible whether a train is approaching. As said by the Court of Appeals in Gorton v. Erie Railway Company (45 N. Y. 660): lie may not shut his eyes and stop his ears; and rush on regardless of the peril, and hold the railroad company as the insurer of his life, not "only against the acts of its servants, but against his own suicidal negligence. The doctrine has been declared by this court, and reaffirmed, that a traveler approaching a railroad track is bound to use his eyes and ears so far as there is an opportunity, and when, by the use of those senses, danger may be avoided, notwithstanding the neglect of the railroad servants to give signals, tlie omission of the plaintiff to use liis senses and. avoid the danger^ is concurring negligenCé, entitling the defendant to a nonsuit.” -

I assume that this rule applies to a passenger in a vehicle approaching a railroad as well as to the person in cl large of the motive power of the vehicle. But it seems- to me evident that in determining in each particular casé .whether or not a failure to' look .or listen- was negligence that contributed to the accideht-'the age, condition and situation of the plaintiff, the' existing circumstances and the condition in which the plaintiff was as .she approached the track are to be considered in determining whether under the particular-circumstances of the case a failure -to look and listen was as a matter of law contributory negligence. It.is clear that it is uot in every case that a failure to -look or listen would.be .negligence,-.as in the case of a passenger in. a street car approaching a railroad track where the car is entirely under tlie control and management of those chargéd with its management, or in the case of a very young child in a conveyance approaching the track.. For, as I view it, it' must not^only appear that-there ivas a failure to look and listen to constitute contributory .negligence as a matter of law, but it: -must also' appear that there was nothing in the age of condition of the person injured or in the attending circumstances which excused' or would have rendered unavailing any knowledge that-was acquired by the person injured.. The plaintiff, a girl sixteen years of age, was riding in an automobile owned by her father and controlled by her father’s servant. ' Ro relation--of master and Servant or principal and agent existed between either the chauffeur who had the control of the machine or her father under whose, direction it was being operated. She was not in a position that she could give orders to either, and she Avas not responsible for the "management .or control of-'the conveyance.

'. An examination of a'few of the many cases which "have discussed this subject will I think make -it plain,'considering the age and sex of the plaintiff and the circumstances under which she was riding in this automobile, that it was a question for the jury as to whether she was guilty of negligence which contributed to the accident.

In Robinson v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 11) the couft charged the jury that if the defendant was negligent, and the plaintiff was. free from negligence, she Avas entitled to. recover, although the driver might be guilty of negligence which contributed to the injury. In discussing the question as to whether this was error, the court said : “ In determining this question it is important to first ascertain the relation which existed between "the plaintiff and Oonlon the driver. It is very clear, and was found by the jury, that the relation of master and servant did not exist. * * * It is, therefore, the case of a gratuitous- ride by a female upon the invitation of the owner of a horse and carriage. The plaintiff had no control of the vehicle, nor of the driver in its management. * * * Upon what principle is it that his negligence is imputable to the plaintiff ? It is conceded that if by his negligence he had injured a. third person, she would not be liable. She was hot responsible for his acts, and had no right and no power to control them. True, she had consented to ride with him, but as he was in every respect competent and suitable she was not negligent in doing so.” In Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199) a . husband and wife were riding in a wagon, and were both killed in crossing the defendant’s track. The husband was driving, and his wife, for whose death this action whs brought, was riding with him on the way to their .home. Nothing was known of the manner of the accident, except that the horse was seen- jumping to get across, and did, in fact, escape. ■ The plaintiff was nonsuited. In reversing the nonsuit the court said: “ Her husband seems to have been ordinarily a careful man. Having his wife with him, one would think, would make him more so. He stopped twice before he crossed the freight tracks. She was hardly blamable, when both saw the coming train, for thinking and expecting that he would stop again. When she saw that instead of stopping he meant to cross, she should have spoken, perhaps, but she may have been so near the engine as to have scarcely'had time, or so paralyzed with fright at the impending danger as to have lost'her judgment and prudence for the moment. The degree of care to be exercised varies with circumstances and emergencies. If the deceased was silent it does not follow as-matter of law that she was negligent. Which of the two inferences we have named should be drawn, and, if the latter, whether the surrounding circumstances sufficiéntly show that the deceased was not in fault, were questions which, .we think, should have gone to the jury.” In Brickell v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 290). it was- said : “ The "rule that the driver’s negligence may not be imputed-to the pdaintiff should Jiave no application to this case. Such rule is only applicable to cases where the relation of master and servant or principal and agent does not exist, or where the passenger is seated away from the driver or is separated from the driver by an enclosure and is without opportunity to discover danger and to' inform the driver of it:”

We have it thus established that neither the negligence of the. chauffeur nor of. the- plaintiff’s father on the front seat could,, under the facts as they here exist, be chargeable tq- the plaintiff; and the question of Contributory negligence must be' determined entirely upon the question as to the duty imposed .upon the plaintiff, and. whether, as matter of law, it can be said she failed to perform that duty. There is also to be considered the age' and sex "of .the plaintiff, considerations that were for the jury in relation to the degree of cafe with which she was chargeable.' Thus it was said in' the case of McGovern v. N. Y. C. & H. R. R. R. Co. (67 N. Y. 417): “The rule which requires persons before crossing a .railroad track to look to see whether trains-are approaching, and that, if they , "omit to do so, .alnd are injured by a collision, which, if they had looked' would-have been avoided,, are to be deemed guilty of negligence, is not to be applied inflexibly, and in all cases, without - "regard to age or other circumstances." The "law is not so unreasonable as to expect" or require the sanie maturity of, judgment, or the same degree of care or circumspection in a child of tender years as in an adult:”

I think that th'e circumstances which are disclosed in this, case justified the 'court in submitting the question as to the plaintiff’s contributory negligence to the jury; She was a girl, sixteen years, of age, riding upon the back seat of an automobile slowly approaching a railroad track, the automobile in charge of a competent chauf-. feur and her father, the owner of the automobile, on the seat alongside of him and directing its movements, the automobile proceeding very slowly up an incline towards the track, working . its way" through a crowd of - people who were almost, touching it in all directions, alongside of a depot at which trains on; the- road stopped. The plaintiff on the back seat of this automobile, distracted by the attention of the crowd in the street, was without authority to eontrol the acts of either of the persons who were upon the front $eat who were controlling the machine and was justified in relying upon the vigilance and care of those in control of thé machine. The age, sex and surrounding circumstances of the plaintiff presented a question for the jury to say whether it was negligence for the jffaintiff not to look and remove this case from the class of cases which impose an absolute duty upon a passenger in such a vehicle of looking and listening for an approaching train, a violation of which duty is, as as matter of law, contributory negligence.

I think, therefore, that this question of contributory negligence was properly 1‘eft to the jury.

The plaintiff also insists that it was error for the court to refuse to charge several requests which were refused except as already charged. I think these requests to charge were properly refused if a failure'tó look and listen was not, as matter of law, contributory negligence. The court charged the jury that the plaintiff was bound to use all the diligence that was reasonably to be expected from a young woman under the'circumstances and in the condition and situation in which the . evidence shows her to have been placed; that the jury were to say whether or not she did use such ordinary prudence as is to be expected from' a person of her age under the circumstances,- or even of a mature person, or any person, riding in an automobile, saying, “ If you find that she omitted to do what should be expected from an ordinarily prudent person at that time, if you find-that she should have looked down that track, that she should have seen that train,, and that she omitted any of these precautions, then she cannot recover in this case, because the accident would at least have been Contributed to by her own fault or negligence ; she might have avoided it- and did not, and if you find that, why, then, that will end the case then and there.” The jury were, therefore, instructed as a matter of law that if they found that the plaintiff should have looked down the track, and should have seen "the train, and that she omitted any of these'precautions, then she could not recover. At'the end of the charge, at the request of the defendant, the court again charged the jury that they could not find a verdict for the plaintiff. •unless they first found- that the plaintiff exercised all reasonable care on her part. The' defendant’s counsel then requested the court to charge that if the jury found that if the plaintiff had looked-along the north-bound.track she would llave seen the approaching train, and that if she had then warned the chauffeur, óf the coming of the. train he would have stopped the automobile before it had reached a position of peril, from which it could not be removed, such failure to look and warn him constituted negligence onher part' which barred her from a recovery in the action. Assuming that our conclusion is correct, that it was a question for the jury as to -whethe}, ilnder all' ¡the circumstances, her failure to look was contributory negligence, this "request was erroneous,-as it in substance instructed the. jury that a failure- to look and warn the chauffeur constituted negligence on her part' which barred a recovery. This request was in substance a request to" find, for the defendant.

"We have examined the other requests to charge which were refused,, but we think, in view of the actual instructions by the court to the jury, that -there was no-error which would justify a reversal of the judgment. Getting back to the real proposition in the case, it is whether the evidence of a failure of the plaintiff -to look up" and down the track, considering her age" and sex, and the surrounding circumstances at the time of the accident, it was,, as a matter of law, contributory negligence. If it was "not, then I- think the casé was: properly submitted to the jury, and the recovery should be sustained.

. The jury found a verdict for the plaintiff for $35*000, and after serious, consideration, á majority of the court has come" to the conclusion that this verdict was excessive, and that it should not be sustained for more than $25,000.

Our conclusion, therefore, is that the judgment and -order shduld be reversed and a new trial ordered, with .costs to the appellant tf abide the event, unless tlie plaintiff stipulates to reduce the recover to $25,000, in which event the judgment as so. reduced- and the order appealed from will be affirmed, without costs of this appeal.

- Patterson, P. J., and Laughltn, J., concurred ; Houghton and -Clarke, JJ., dissented. .

Houghton, J.

(dissenting):

I dissent from an affirmance of this judgment.

It is upon their application to this case rather than. upon'the existence of the rules of law -themselves- -that the court differs.. It is well" enough, however, to state such rules as are necessarily involved on this appeal.

No rule, I apprehend, is better settled than the one that a single traveler on a highway, whether on foot or in an open vehicle, who seeks damages for injuries from a collision at a railroad crossing, must prove, if of sufficient age and understanding so to do, that as he approached the crossing he looked and listened for approaching trains.

This rule is so strict that where a temporary obstruction to vision arises, as from smoke and steam, he must wait until such obstruction has ceased. (Keller v. Erie Railroad Co., 183 N. Y. 67.) And the law is so careful that so reasonable a rule shall be observed, that when a traveler could have seen an 'approaching train if he had looked, and testifies that he looked and did not see it, it will deem his testimony incredible, and hold him guilty of contributory negligence as matter of law in failing to exercise ordinary caution. (Dolfini v. Erie R. R. Co., 178 N. Y. 1.) The requirement of proof of looking and listening is such that where one is killed in such an accident the testimony of his companion that he himself looked and listened and did not hear or see the approaching train does not establish the fact that the deceased person would have failed also, had he looked and listened. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 424.) .

Nor is one relieved from' this duty to look and listen because he. is riding in a vehicle as the guest of another where he has the opportunity so to do. Such is, the express holding of Brickell v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 290), and I know of no decision overturning the rule there laid down or questioning its correctness. Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199) is not to the contrary or less stringent. In that case the wife was 'riding with her husband, who was driving, and both were killed. The husband had stopped his horse twice before attempting to cross the tracks, and the presumption was indulged in from that and other facts, that both saw the approaching train, and that the wife had no reason to suspect that her husband.was about to cross in front of it, and hence was not called upon to warn him, and, therefore, that the question of her contributory negligence was one for the jury. Finch, J., says: “ The deceased and her husband either saw the passenger train approaching as they neared the track, or they did not. ..If they did not see it, or, at least the deceased did not see it, she jvas negligent, for- she was bound to look and listen, and the facts show that if she had looked she could have seen, and would have seen the approaching train. She' had no right, because her husband was driving,, to omit some reasonable and prudent . effort -to see for herself that the crossing was safe. But the .strong-' probability is -that she did see the- train, and her. husband.'did álso,' and that he, for some reason, undertook to cross in its front,- miscalculating, perhaps,, its distance and speed and liis opportunity. She was not hound to .suspect that purpose until she saw it being executed. Before that she might i-easonably expect him to stop and-wait. When she saw. that he was about to make the attempt they must have been very' close to the track. -She was not bound to jump from the wagon:- That might seem to her as dangerous as to-' sit still. She could not be required to seize the reins or interfere with the driver.. That is almost allways dangerous and imprudent. She might -have begg.ed her husband to stop, and we do not know-that she did not, but if she did not and sat silent it does not follow, as matter of law, that she was negligent.”

This ’ carefully chosen language cannot he interpreted as holding that the wife was under, no obligation to look and listen for approaching trains. On the contrary, it is expi-essly said -that such -was her .duty, and that, presumably, she had done so- because-the lioi'se had .been twice stopped apparently for no other purpose than observation.- Having, performed her-duty in this- respect, and having reason to believe that her husband would not attempt.to cross’ in front of the approaching train, or having no reason to apprehend that he was about to do so, manifestly she was not hound,, as matter of law, to - jump from the vehicle or to interfere with his driving, or to do anything further to prevent his sudden and; unexpected act.

Confessedly, the Hoag case is on the border line. with respect 'to proof of lack of contributory negligence. Applying its liberal rule, however,, in the .case at bar,- I think- the plaintiff failed to prove freedom.from contributory negligence and that, the judgment •in -her favor must -be reversed." '

The plaintiff was sixteen years'of age, strong, bright, alert, and' with good .eyesight. .'She was sitting in the rear seat .of .¿n open automobile which was approaching the track at an extremely slow rate of speed. At a point thirty feet distant from the track the train with which the collision occurred could be seen a distance of two thousand feet. -The plaintiff did not make any attempt to ascertain whether the train was approaching or not, for she neither looked nor listened for that purpose, but looked only ahead and around the machine. If she or' any occupant of the vehicle had looked they could have seen the train, and the automobile was going so slowly that the chauffeur could have stopped it within a few feet at any moment, and thus averted the horrible catastrophe which occurred. The fact that her father sat in the front seat with the driver of the machine, and that her mother and Mr. Beid sat in the back seat with her, does not and cannot, it seems to me, relieve the plaintiff from proving that she exercised the reasonable and ordinary precaution of looking and listening before she can ask the defendant to respond in damages. Of course, she was not called upon to interfere with the driver in the running of the machine, or to touch any of the levers or springs or to attempt to do so. But it was her duty to look and listen, and if she saw danger to warn the driver of the fact. Having done this, it might well be said that her duty was ended and that she was not called upon to do more, even if the driver persisted in crossing after being warned. But she neither looked and saw the danger of the approaching train, nor attempted to do so to enable her to give a word of warning’if necessary. Conceding, however, that the plaintiff was not guilty of contributory negligence as matter of law, I think there was error in the refusal to charge which requires a reversal of the judgment.

By its various requests the defendant, in substance, asked the court to charge that in view of the distractions to the chauffeur and his difficulty in threading his way through the crowd-v^ith his machine, it was the duty of plaintiff and the occupants of the car to be on the lookout for an approaching train, and not to rely wholly upon his vigilance in that respect. These specific requests were refused, except as already charged.

• While the court in its main charge did instruct the jury with respect to the general duty of plaintiff to avoid the accident, he failed to instruct them in the specific manner requested by the defendant, and I think, under the circumstances disclosed, the defendant was entitled to have these Specific requests charged. '

The difficulties under which the chauffertr was laboring in the guiding of his machine were apparent to the occupants of the car. They knew that he was about to cross the railway track upon which ' a train was likely to be approaching. They saw. that his attention was necessarily confined ■ to the ..propelling and guiding; of his car and the avoiding of the'pedestrians which surrounded it.- Under such circumstances, it became peculiarly the duty of the occupants of*the car, who had nothing else to do, to he vigilant in the- use of. their senses with respect to approaching trains. While-under many " circumstances it might be unwise and -even -da-ngero.us. to interfere, even by suggestion,, with the driver of an automobile, there are times .and .circumstances under which it becomes the duty of occupants -and guests in such a vehicle to remonstrate with the driver. The danger attendant upon the careless and reckless driving of such a; vehicle is great, and there manifestly comes a time when it becomes the duty of the occupants of the. machine to protest against reckless speed or heedless guidance under penalty of becoming a party to such recklessness and heedlessness. Such is thé rule with respect . to the driving of a horse and carriage in a heedless manner. (Meenagh v. Buckmaster, 26 App. Div. 451.) So,, too,, it becomes at times the duty of a passenger tp warn the driver of an automobile of approaching outside danger. Especially .is this so when it is apparent that his attention is necessarily distracted from the observation oE one danger by his attempt to avoid another. While the chauffeur may know much more about managing the machine than the passenger, his vision is usually no better and his opportunity-for observation not.so good as that of the occupants of his car. It is at times difficult to -start or stop an automobile and to guide it-in a, proper course; and frequently the driver -must- give his entire attention to these matters. Under such circumstances the occupant of the vehicle cannot sit supinely and trust to the vigilance of the dliver to observe and avoid all outside danger.

■ A situation was proven upon the trial to which! the requests to charge particularly applied, and which the.charge as given did not meet, and I think it was error for the court to refuse the requests.

The injuries of the.-plaihtiff were very serious and excité extreme sympathy and the defendant was clearly negligent, but I see no way of affirming the judgment in her favor except by the ignoring of well-settled rules of law;' and' I, therefore, vote for a reversal and the granting of a new trial.

Clarke, J., concurred.

Judgment and order reversed and new trial ordered, with costs to.appellant to abide event, unless plaintiff stipulates to reduce recovery to $25,000, ip. which event judgment as so .reduced and order affirmed, without costs. ' Settle order on notice.  