Opinion
April, 1907.
This is an action by the father for loss of services and expenses incurred by reason of an injury received by his son, Abraham, through the alleged negligence of one of defendant's cab drivers. The son recovered a judgment for his injuries, and on appeal to this court ( Polsky v. New York Transportation Co., 96 App. Div. 613) it was determined that the verdict in plaintiff's favor was against the weight of evidence, both as to the negligence of the defendant's servant and absence of contributory negligence on the part of the person injured. The evidence in the present case fails to disclose any greater negligence on the part of defendant's driver or any greater care on the part of the injured boy than appeared in the former case. In some respects the evidence is more favorable to defendant than on the trial of the other action. For example, the speed at which the automobile was being run is now put at a less rate and less congestion of traffic appears. On the authority of the former case, and on the opinion therein, the present judgment and order must be reversed on the same grounds and a new trial granted, with costs to the appellant to abide the event. Ingraham, Clarke and Lambert, JJ., concurred; Patterson, P.J., dissented. Judgment and order reversed, new trial ordered, costs to appellant to abide event.