Opinion
October, 1908.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event. McLennan, P.J., and Williams, J., voted for reversal on the ground that as matter of law the evidence fails to establish that the appellant was guilty of negligence, which was the proximate cause of the accident, and also because the evidence fails to identify the deceased as the person who fell from the bridge. Kruse and Robson, JJ., voted for reversal on the ground that although there is evidence upon which the jury might have found that the defendant was negligent, yet, in view of the charge of the trial court which became the law of the case, "that there is no evidence in the case that even if there had been a guard rail there it would have prevented the rider from falling into the river," the finding of the jury that the defendant was negligent cannot be sustained. Spring, J., dissented and voted for affirmance.