Serina v. New York Railways Corp.

O'Malley, J. (dissenting).

Upon the argument respondent’s counsel conceded that a question for the jury was presented unless the triers of the fact were bound to accept respondent’s claim that *305the wheels of the rear truck of the east-bound car remained on the rails of the east-bound track. The plaintiffs’ evidence tended to show that the wheels of the rear truck of the defendant’s east-bound car not only failed to take the curve, but in fact left the rails of the track. This being so, the jury were justified in finding that the rear of the east-bound car at the time of the accident had reached a point much nearer the westerly crosswalk of Fourteenth street than contended for by the defendant. In addition, the testimony of the motorman of the west-bound car tended to support the plaintiffs’ claim that the accident happened at or near the westerly crosswalk of Fourteenth street.

It follows, therefore, that the judgments should be reversed and new trials granted.

McAvoy, J., concurs.

Judgments affirmed, with costs.