Under the rule laid down in McDonald v. Metropolitan St. R. Co., 167 N. Y. 66, if there be any evidence at all from which defendant’s negligence or the plaintiff’s freedom from contributory negligence can be inferred, the question becomes one of fact and must, in the first instance, be submitted to the jury, leaving to the court, if it finds the verdict unsupported by the evidence, only the power to set aside the verdict and order another trial. There was some evidence in this case from which inferences as to the respective negligence of plaintiff and defendant might have been drawn in plaintiff’s favor; and it was, therefore, error to have dismissed the complaint. Whether, upon the evidence, a verdict in favor of plaintiff would have been sustained is another question, with which we are not concerned •on this appeal.
Present: Scott, O’Gorman and Newburger, JJ.
Judgment reversed and new trial granted, with costs to appellant to abide event.