Capitelli v. Brooklyn & Queens Transit Corp.

258 A.D. 889, 16 N.Y.S.2d 44, 1939 N.Y. App. Div. LEXIS 7456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1939
• Status: Published

Opinion

Action for damages for wrongful death of plaintiff’s deced-

ent, as a consequence of decedent being struck by defendant’s trolley car on Grand avenue, at the intersection of Eighty-second street, in the borough of Queens. Judgment in so far as it dismissed the complaint as to the defendant railroad company, reversed on the law and a new trial granted, costs to abide the event. Judgment in so far as it dismissed the complaint as to the defendant Gorenstein, unanimously affirmed, with costs. The plaintiff’s evidence presented questions of fact for the jury as to the corporate defendant’s negligence and as to freedom from contributory negligence on the part of plaintiff’s decedent. (Mullen v. Schenectady R. Co., 214 N. Y. 300; Brott v. Auburn & Syracuse El. R. R. Co., 220 id. 92; Fagan v. Atlantic Coast Line R. R. Co., Id. 301, 311; Hart v. Hudson River Bridge Co., 80 id. 622; Hoyt v. Metropolitan Street R. Co., 73 App. Div. 249; affd., 175 N. Y. 502.) Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.