Opinion
April 22, 1946.
Present — Hagarty, Acting P.J., Carswell, Adel, Aldrich and Nolan, JJ.
In an action to recover damages for alleged wrongful death of plaintiff's intestate, who fell or jumped from an elevated railroad station platform to the rails and was run over by defendant's train, order setting aside the verdict of the jury in favor of the plaintiff and granting defendant's motion for a directed verdict in its favor, modified on the law and the facts by striking out everything following the words "and the same hereby" and by adding in place thereof the following "are granted to the extent of setting aside the verdict of the jury and granting a new trial, and in all other respects are denied." As thus modified, the order is unanimously affirmed, with costs to abide the event. In view of the decision on the appeal from the order herein, the judgment is vacated, without costs. The verdict of the jury may not be sustained on the theory upon which the trial was had. On a new trial facts supporting the applicable theory may be developed.