Love v. Baltimore & Ohio Railroad

248 A.D. 672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1936
• Status: Published

Opinion

Judgment affirmed, with costs. All concur, except Sears, P. J., and Thompson, J., who dissent and vote for reversal on the law and for granting a new trial in the following memorandum: The essential difference between the record in this ease and the record on the former appeal is that there is now evidence lacking in the former appeal upon which a jury would be entitled to find that the decedent went down from the platform and took a position between the cars in order to adjust the coupler. This being so, the circumstances are such as to entitle the jury to find that there was negligence on the part of the railroad company in backing the train to make the second attempt to couple before the deceased had left the position between the cars and reached a place of safety. (The judgment is for defendant in an action to recover damages for death of plaintiff’s intestate caused by being crushed by moving freight car.) Present — Sears, P. J., Taylor, Bdgeomb, Thompson and Lewis, JJ. [See 244 App. Div. 72.]