We think that, because of errors in the charge, whereby 'the- jury might have been led to conclude that, as matter of law, they must find the servant of defendants negligent, and because we think the damages awarded were excessive, under the proofs, the appeal should be sustained. We decide under authority of Devine v. Brooklyn H. R. R. Co., 34 App. Div. 248, and Lawson v. Metropolitan St. R. Co., 40 id. 307. The question is, had the parties exercised ordinary care of reasonably prudent persons? “ In the nature of things that question must always be submitted to the jury.” See also Rottenberg v. Segelke, 148 N. Y. 734, to the same effect.
We think that the learned trial court practically found facts in its charge in respect of the opinion thereon, and that the jury was led to believe that they were charged to find the same facts as matter of law.
Judgment and order should be reversed and a new trial granted, with costs to appellants to abide the event.
O’Dwyer, J., concurs in result.
Judgment’ and order reversed and new trial granted, with costs to appellants to abide event.