Opinion
December, 1915.
Upon this third trial (See 150 App. Div. 761; 161 id. 949) the evidence showed a use of these inclined planks, not only by employees of the contractor, but also by employees of defendant, including other track-walkers besides deceased. And this use was testified to as frequent, and participated in by track-walkers, both by night and openly in the daytime. The issue whether defendant had actual or imputable knowledge that its track-walkers actually used these planks in going about their duties upon this elevated structure, was fairly before the jury. While it is urged that three juries having found for plaintiff must carry special weight, and even imports a finality, such cumulative verdicts do not relieve this court from a careful scrutiny of the testimony to ascertain whether this judgment now under review is sustainable. Upon such examination of the present record we find no reversible error in course of the trial, and in view of the later and ampler proofs, we cannot pronounce the verdict against the weight of the evidence. Therefore, the judgment and order are affirmed, with costs. Carr, Stapleton, Mills and Putnam, JJ., concurred; Jenks, P.J., dissented. Judgment and order affirmed, with costs.