Opinion
September 26, 1945.
Present — Taylor, P.J., Dowling, Harris, McCurn and Love, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within ten days, stipulate to reduce the verdict to the sum of $45,779.90, as of the date of the rendition thereof, in which event the judgment is modified accordingly and as so modified is, together with the order, affirmed, without costs of this appeal to either party. All concur, except Harris, J., who dissents and votes for affirmance on the ground that on the question of damages the record shows no reason to substitute the judgment of this court for that of the jury. (The judgment is for plaintiff in a railroad negligence action. The order denies defendant's motions for a new trial.)