Opinion
June, 1920.
This was a very close case upon the facts. In submitting to the jury as a question of negligence the motorman's failure to sound bell or gong upon approaching the middle of the block where the accident happened, we think the court erred, although no exception thereto was taken. We, therefore, in our discretion reverse the judgment and grant a new trial, with costs to abide the event, since the above submission, though not excepted to, deprived the defendant of a fair trial. Jenks, P.J., Mills, Rich, Kelly and Jaycox, JJ., concur.