Albring v. New York Central

46 A.D. 460

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1899
• Status: Published

Opinions

Adams, J.:

If, as stated by the defendant’s witness Aiken, the plaintiff’s intestate was upon one of the gondola cars when his train passed under the_ telltale, the defective condition of that appliance could not by any possibility have been the proximate cause of his coming into contact with the bridge. If, on the other hand, he was upon the top of a box car and walking leisurely towards the bridge and telltale, as we are asked to infer from the evidence of Longyear and Phelps, he must have seen both the telltale and bridge in time to have avoided contact with the latter, and consequently he was guilty of contributory negligence.

It follows that in either event the plaintiff ought not to recover, and, therefore, I vote for reversal.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.