
    Mary Astheimer, Resp’t, v. Patrick J. O’Pray, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Civil damage act—Cause oe intoxication.
    In an action under the civil damage act, the proof showed that plaint-iS’s husband took two drinks of lager in defendant’s saloon the afternoon before his death ; that later he was seen coming out of another saloon intoxicated, and that he slept on the steps of the latter saloon; that early in the morning he was at defendants saloon and poured out a drink of whiskey, and two hours later was run over by a train. Held, that a refusal to non-suit was proper, and that the jury were justified in finding that the liquor drank at defendant’s saloon was in part the cause of the intoxication of the deceased.
    Appeal from judgment in favor of plaintiff, entered on a verdict for $500.
    Action under the civil damage act to recover for the death of plaintiff’s husband, alleged to have been caused by intoxication produced in whole or in part by liquor furnished by defendant.
    
      E. S. Wood, for app’lt; G. D. B. Hasbrouck, for resp’t.
   Learned, P. J.

The only question in this case is whether there was enough to go to the jury on the question whether the deceased drank intoxicating liquor at the defendant’s saloon, which produced in whole or in part the intoxication under which he came to his death. He was killed by a train of cars about half-past eight in the morning of May 26th. The afternoon previous, about five o’clock, he had been at defendant’s saloon. There he drank lager beer. There is some evidence that such lager beer was intoxicating. The next morning about half-past five or six o’clock he was also at defendant’s saloon. He poured out a drink from a bottle like a whiskey bottle behind the bar which Kenipf, the witness, declined to take, because, as he said, he didn’t wish to get drunk again. Eempf took a glass of beer and paid for the drink which deceased took, although he said that he did not see deceased drink it. The whole transaction is plain enough.

The deceased is shown to have been drunk before ten o’clock the evening previous as he came out of Ludwig’s saloon and to have been asleep on Ludwig’s stoop about five o’clock the morning of his death.

Ho question is raised on the appeal except that the evidence was not sufficient for the jury. Ho alleged errors as to the admission of evidence are pointed out in the defendant’s brief.

We have given a brief outline of the evidence, and it seems to us that it would have been improper to grant a non-suit. The jury were justified in their conclusion that the liquor drunk by the deceased at the defendants saloon was in part the cause of his intoxication. That such intoxication was the cause of his death is not disputed.

Judgment and order affirmed, with costs.

Landon, J., concurs; Mayham, J., not acting.  