Messaro v. Long Island Rail Road Co.

274 A.D. 939, 83 N.Y.S.2d 527, 1948 N.Y. App. Div. LEXIS 4175

Opinion

In an action to recover damages for injuries sustained in a collision between the automobile of the defendant-appellant, in which plaintiff was a passenger, and a railroad train of the defendant-respondent, the latter cross-complained for indemnity from the defendant-appellant upon the allegation that the negligence of the defendant-appellant was primarily responsible for the accident. This appeal is from the order denying appellant’s motion to dismiss the cross complaint. The order, insofar as appealed from, is reversed on the law, with $10 costs and disbursements, and appellant’s motion to dismiss the cross complaint is granted, with $10 costs. Under the allegations of the complaint the defendant-respondent railroad company can be held liable to plaintiff only if its own active negligence is shown to be a proximate cause of plaintiff’s injuries. (Wineck v. Yanoff, 265 App. Div. 835; Rosenman v. Detz, 259 App. Div. 911; Secor v. Levine, 273 App. Div. 899; Wolf v. La Rosa & Sons, 272 App. Div. 932, affd. 298 N. Y. 597.) Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.