The judgment appealed from is the result of a third trial of this case. All the trials have terminated in plaintiff’s favor. The first two were held by a judge without a jury, and judgments for the plaintiff were reversed in this court. 134 N. Y. Supp. 734.
It is needless to discuss the weight to be accorded to the evidence, by an appellate court, after three successive trials — a point on which respondent lays some stress —■ since the third trial presents the same situation- as the first two, namely, an absence of evidence on which may be predicated either material negligence of the defendant or freedom from contributory negligence on the part of the plaintiff. Meinrenken v. N. Y. C. & H. R. R. R. Co., 103 App. Div. 319; Adams v. New York City R. Co., 125 id. 551.
Indeed, plaintiff’s counsel does not indicate in his brief what the negligence may be upon which he- thinks the recovery is based. He says: “ The only plausible explanation of the accident is that the chauffeur of the automobile truck, relying upon the speed which the automobile had attained going down grade, estimated *153that he could pass in front of the horse by turning slightly to the east, and he succeeded in drawing the front part of his automobile in front of the horse, but that the rear wheels of the automobile slid in the tracks, a usual occurrence, thereby striking the horse’s head, and the passing over his left foreleg.” I find in this statement nothing to indicate negligence on the part of the defendant’s chauffeur, but, on the contrary, only an intimation of plaintiff’s belief that defendant erred in estimating that he could pass in front of plaintiff’s horses. But, even assuming that negligence may be predicated on such a state of facts, it is quite clear that plaintiff’s driver, who continued his course uninterruptedly, was equally and pari passu at fault.
As all possible evidence upon the issues involved in this case seems to have been exhausted and defendant duly moved for a verdict in his favor, the judgment will be reversed and judgment absolute rendered for defendant, with costs in this court and in the court below.
Gerard, J., concurs; Seabury, J., dissents.
Judgment reversed.