Kelly v. Murray

Appellate Division of the Supreme Court of New York

Kelly v. Murray

257 A.D. 863, 12 N.Y.S.2d 696, 1939 N.Y. App. Div. LEXIS 8199

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

DecidedMay 29, 1939

StatusPublished

Cited by2 cases

This text of 257 A.D. 863 (Kelly v. Murray) 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

Kelly v. Murray, 257 A.D. 863, 12 N.Y.S.2d 696, 1939 N.Y. App. Div. LEXIS 8199 (N.Y. Ct. App. 1939).

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Opinion

Action for wrongful death as a consequence of plaintiff’s decedent being run over by a subway train of the defendant while it was entering a subway station. Judgment dismissing the complaint reversed on the law and a new trial granted, with costs to abide the event. Under the facts of this case the doctrine of “ the last clear chance ” is not available to the plaintiff as there is no proof that the defendant’s motorman had actual knowledge of decedent’s peril; nor was there proof of negligence so reckless as to betoken indifference to such knowledge. However, there was prima facie proof which made a jury question as to negligence of the motorman because of his failure to heed the signal of the witness Adickes, and to stop the train before it ran over the body of plaintiff’s decedent. A jury could find defendant negligent if it believed (a) that the signal was given; (b) that the motorman saw or should have seen the signal; (c) that the signal was an intelligible indication that conditions existed which required the stoppage of the train, and (d) that the signal was given at a time which, in the [864]*864exercise of ordinary care, would ¡have enabled the motorman to stop the train before it reached the body of the decedent, then lying on the. tracks. (Brophy v. Murray, 255 App. Div. 838.) Lazansky, P. J., Carswell and Close, JJ., concur; Hagarty and Adel, JJ., dissent and vote to affirm the judgment.

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Action for wrongful death as a consequence of plaintiff’s decedent being run over by a subway train of the defendant while it was entering a subway station. Judgment dismissing the complaint reversed on the law and a new trial granted, with costs to abide the event. Under the facts of this case the doctrine of “ the last clear chance ” is not available to the plaintiff as there is no proof that the defendant’s motorman had actual knowledge of decedent’s peril; nor was there proof of negligence so reckless as to betoken indifference to such knowledge. However, there was prima facie proof which made a jury question as to negligence of the motorman because of his failure to heed the signal of the witness Adickes, and to stop the train before it ran over the body of plaintiff’s decedent. A jury could find defendant negligent if it believed (a) that the signal was given; (b) that the motorman saw or should have seen the signal; (c) that the signal was an intelligible indication that conditions existed which required the stoppage of the train, and (d) that the signal was given at a time which, in the [864]*864exercise of ordinary care, would ¡have enabled the motorman to stop the train before it reached the body of the decedent, then lying on the. tracks. (Brophy v. Murray, 255 App. Div. 838.) Lazansky, P. J., Carswell and Close, JJ., concur; Hagarty and Adel, JJ., dissent and vote to affirm the judgment.

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Bluebook (online)

257 A.D. 863, 12 N.Y.S.2d 696, 1939 N.Y. App. Div. LEXIS 8199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-murray-nyappdiv-1939.

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