Opinion
June, 1915.
Present — Ingraham, P.J., Clarke, Scott, Dowling and Hotchkiss, JJ.
Under the charge of the court the jury were instructed that the plaintiff could not recover unless they found that the defendant left a plank that was so defective or broken that her foot and leg went through it. "It was a defective plank and her leg went through the hole or she is not in court." That, therefore, is the law of the case. The finding of the jury that there was such a defective plank and that the accident occurred in the way described by the plaintiff is against the overwhelming weight of the evidence. Such finding and the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.