Bulger v. . the Albany Railway

42 N.Y. 459, 1870 N.Y. LEXIS 67

Opinion

By the Court—Lott, J.

The child was killed while in the street unprotected, and the court nonsuited the plaintiff. I find nothing in the case to charge either the conductor or driver with negligence. Assuming that the child was off the sidewalk, and as far into the street as the west rail of the east track, there is nothing to show that there was any necessity at that point to stop the car, as the child was not then in a position of danger from the car. The evidence leads to the conclusion, and the only one warranted by the evidence is, that the fore part of the car passed the child safely, and the child must have then run or fell under. For this, under the circumstances, the defendants are not responsible.

The nonsuit was right, and judgment must be affirmed.

For affirmance, Earl, Ch. J., Lott, Grover, Foster and Smith, JJ.

For reversal, Hunt and Sutherland, JJ.

Judgment affirmed.