Opinion
July, 1921.
Judgment and order reversed and new trial granted, with costs to appellant to abide event, on the ground that there is no legal evidence of permanent injury, and that the court should have so charged, as requested, and that it was error to permit the witness to swear that there was a reasonable probability that the injury was permanent. All concur, except Kiley, J., dissenting. Woodward, J., concurs and votes for reversal on the further ground that the verdict is against the clear weight of evidence as to the negligence of the defendant and the freedom from contributory negligence of the plaintiff. Kiley, J., dissents and votes for affirmance on the ground that there was negligence of the defendant, but the questions referred to were not error, and that the plaintiff's contributory negligence is not a defense in this action. ( Magar v. Hammond, 183 N.Y. 387; Mapes v. Union R. Co., 56 App. Div. 508; Remer v. Long Island R.R. Co., 48 Hun, 352.)