Opinion
May, 1907.
This case is reported upon a former appeal in 105 Appellate Division, 136. There the court set aside a verdict in favor of the plaintiff, saying in substance that the plaintiff should have been nonsuited. This court affirmed the order setting aside the verdict, holding that under the Employers' Liability Act it was a question of fact for the determination of the jury in the first instance whether the plaintiff understood and assumed the risk which the service then required. Upon this trial the trial court erred in assuming that this court approved of the grounds upon which the trial judge set aside the former verdict and granted a nonsuit. Upon the former appeal this court, while intimating that the evidence tended to show that the defendant had assumed the risk, decided that that was a question of fact to be determined in the first instance by the jury. The nonsuit was improper. The judgment is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.