Hauff v. New York Central Railroad

255 A.D. 925, 8 N.Y.S.2d 799, 1938 N.Y. App. Div. LEXIS 5868

Opinion

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action to recover damages for the death of plaintiff’s intestate which is alleged to have resulted from defendant’s negligence, plaintiff — at the close of his ease — was nonsxiited upon the ground that his intestate, a boy fifteen years of age, was guilty of contributory negligence. We are not satisfied, from the record before us, that no “ possible hypothesis based on the evidence forbids the imputation of fault to the deceased ” (Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233, 235) and are of the opinion that taking into consideration all conditions sxirrounding the accident, the question of decedent’s contributory negligence was for the jxny to determine. (Carr v. Pennsylvania R. R. Co., 225 N. Y. 44, 47; Schrader v. N. Y., C. & St. L. R. R. Co., 254 id. 148, 150; Crough v. New York Central R. R. Co., 260 id. 227.) All concxrr, except Crosby, J., who dissents and votes for affirmance on the ground that the record shows that the decedent was guilty of contributory negligence as matter of law. (The judgment is for defendant in a railroad negligence action.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.