
    DOSHE, Respondent, v. VILLAGE OF BATAVIA, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    October 27, 1903.)
    Action by Charles Doshe against the village of Batavia.
   PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, upon questions of fact. Held that, without passing upon the correctness of the rule laid down by the trial justice, to the effect that plaintiff was chargeable with any negligence of the driver, still upon the theory upon which the case was submitted, it was against the weight of the evidence for the jury to find, in effect, that the plaintiff and the driver did not, and were not bound to, see the roller in time to have avoided the accident.

SPRING, J., dissents. STOVER, J., not voting.  