
    Fanny Leopold, Resp’t, v. The President, etc., of The Delaware & Hudson Canal Co., Appl’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    1. Negligence—Nonsuit.
    Where there is evidence of defendant’s negligence and of plaintiff’s freedom from negligence, a denial of a motion for non-suit is proper.
    2. Same—Conflicting evidence.
    The court will not disturb the determination of a jury on a controverted question of fact, although it might have come to a different conclusion if acting in the place of the jury.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from an order denying motion for a new trial on the minutes.
    Action for injuries alleged to have been received by plaintiff through the negligent act of defendant’s gateman in letting the gate fall upon a horse which was driven by a friend with whom she was riding, which threw the driver out and frightened the horse so that he overturned the carriage.
    
      Edwin Young, for app’lt; J. W. Houghton, for resp’t
   Herrick, J.

It seems to me that the questions in this case are ones of fact; the principles of law applicable to such cases are pretty well settled, and do not appear to have been violated upon the trial. The plaintiff submitted evidence tending to prove, and from which the jury might infer, that she was free from contributory negligence, also evidence tending to prove negligence on the part of the defendant, so that there was no error in denying the motion for a non-suit

The evidence on the part of the defendant contradicted in many respects that offered on the part of the plaintiff, thus raising issues of fact which it was peculiarly the province of the jury to determine, and with that determination I can see no sufficient reason to interfere although the court might have come to a different conclusion if acting in the place of the jury; the judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.  