
    McGrath v. New York Central and Hudson River Railroad Company, appellant.
    
      Negligence—flagman at railway crossing—Excessive damages—Evidence.
    
    In an action against a railroad company to recover damages for an injury caused by negligence, evidence that there was usually a flagman at the crossing where the injury occurred, but that there was none there at the time of the injury, is competent as bearing on the question whether the plaintiff was chargeable with negligence.
    A verdict for $3,000 damages in such an action held not to be so great as to impute passion, prejudice, partiality or improper influence.
    This case has been twice tried. On the first trial the plaintiff recovered a verdict. On appeal from the judgment entered thereon, the general term granted a new trial (see S. O., 1 N. Y. Sup. 243). On the sécond trial the plaintiff recovered a verdict for $2,000 damages. Exceptions were taken on the trial by the defendant, which were ordered to be heard at a general term. A motion was made for a new trial, on the ground that the verdict was excessive and against evidence, which was denied, and the defendant appealed from the order.
    
      
      Matthew Hale, for appellant.
    
      Amasa J. Parker, for respondent.
   Memorandum by the court. — The court held that the questions presented were substantially the same as on the former appeal, and that the decision at that time (see 1 N. Y. Sup. 243) must control.

Order affirmed and judgment for plaintiff.  