Opinion
April 29, 1946.
In an action to recover damages for personal injuries suffered by reason of defendant's alleged negligence, plaintiff had a verdict. From the judgment entered thereon, and from an order denying a motion to set aside the verdict and for a new trial, defendant appeals. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. Appeal from order dismissed, without costs. The verdict in favor of plaintiff is contrary to the weight of the credible evidence. We are also of opinion that the trial court erred in refusing to grant the motion of defendant, made at the trial, for permission to plead section 83 R.R. of the Railroad Law as a defense, since plaintiff did not make objection, there was evidence in the record on the subject, and plaintiff made no claim of surprise or prejudice. ( Goldstein v. Schleifer, 209 App. Div. 899; Fitzpatrick v. Rogers, 214 App. Div. 800; Road Garage Corporation v. Marcus, 229 App. Div. 150.) Lewis, P.J., Hagarty, Carswell, Aldrich and Nolan, JJ., concur.