Hiscock v. Long Island Rail Road

Appellate Division of the Supreme Court of New York

Hiscock v. Long Island Rail Road

280 A.D. 809, 113 N.Y.S.2d 705, 1952 N.Y. App. Div. LEXIS 3782

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 1952

StatusPublished

Cited by1 cases

This text of 280 A.D. 809 (Hiscock v. Long Island Rail Road) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hiscock v. Long Island Rail Road, 280 A.D. 809, 113 N.Y.S.2d 705, 1952 N.Y. App. Div. LEXIS 3782 (N.Y. Ct. App. 1952).

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Opinion

In an action to recover damages for the death of plaintiff’s intestate by reason of the claimed negligence of the defendants in the operation of one of the trains of the defendant railroad at a crossing, plaintiff appeals from a judgment dismissing the complaint at the end of the plaintiff’s case. Judgment reversed on the law and new trial granted, with costs to appellant to abide the event. It was for the jury to say whether the defendants were negligent. (Latourelle v. New York Central B. B. Co., 301 N. Y. 103.) It was for the jury to appraise the positive and negative testimony. Contributory negligence was not pleaded as a defense (Decedent Estate Law, § 131), and was not established as matter of law. Whether the whistle was blown, or when and how often, could not be determined as matter of law. Aside from the statement of the infant, no one at this trial testified that the bell was ringing. There was negative testimony from which the jury could say it was not. The witnesses who testifed at the coroner’s inquest as to the ringing of the bell were not asked at this trial if it was a fact that the bell was ringing, nor did they so testify. It should be noted that if the bell was ringing the jury could not have found it was not a warning because it may have rung needlessly on a prior date. Nolan, P. J., Carswell, Johnston, MacCrate and Schmidt, JJ., concur.

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In an action to recover damages for the death of plaintiff’s intestate by reason of the claimed negligence of the defendants in the operation of one of the trains of the defendant railroad at a crossing, plaintiff appeals from a judgment dismissing the complaint at the end of the plaintiff’s case. Judgment reversed on the law and new trial granted, with costs to appellant to abide the event. It was for the jury to say whether the defendants were negligent. (Latourelle v. New York Central B. B. Co., 301 N. Y. 103.) It was for the jury to appraise the positive and negative testimony. Contributory negligence was not pleaded as a defense (Decedent Estate Law, § 131), and was not established as matter of law. Whether the whistle was blown, or when and how often, could not be determined as matter of law. Aside from the statement of the infant, no one at this trial testified that the bell was ringing. There was negative testimony from which the jury could say it was not. The witnesses who testifed at the coroner’s inquest as to the ringing of the bell were not asked at this trial if it was a fact that the bell was ringing, nor did they so testify. It should be noted that if the bell was ringing the jury could not have found it was not a warning because it may have rung needlessly on a prior date. Nolan, P. J., Carswell, Johnston, MacCrate and Schmidt, JJ., concur.

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Bluebook (online)

280 A.D. 809, 113 N.Y.S.2d 705, 1952 N.Y. App. Div. LEXIS 3782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hiscock-v-long-island-rail-road-nyappdiv-1952.

Opinion

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