Brennan v. City of New York

277 A.D.2d 854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1950
• Status: Published

Opinion

Before falling from the subway platform and becoming unconscious, according to plaintiff’s testimony, he looked along the track toward the south and saw no train. The nature of his injuries was such as to create a question of fact concerning whether he was struck by the northbound train operated by the witness Cahill, which a jury could have found rounded the loop at the Brooklyn Bridge Station and struck plaintiff a sufficient time after he had fallen from the platform to have enabled the accident to be avoided in the exercise of reasonable care. The testimony of this motorman is that the space was well lighted where plaintiff lay between the west rail and the platform, that his train was proceeding slowly and could readily have been stopped if he had observed plaintiff. Without intimating how the action should be decided on the facts, we think that there was sufficient evidence to have justified submission of the issue to a jury. Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event. Present — Peck, P. J., Glennon, Cohn, Van Voorhis and Shientag, JJ.; Cohn, J., dissents and votes to affirm.