Ockerman v. Johnson

272 A.D.2d 846

Opinion

Plaintiff appeals from a judgment of nonsuit and dismissal of her complaint. The action is for the wrongful death of plaintiff’s testate who was killed by being run over by defendant’s motor-truck milk-tank combine operated by defendant’s employee at a rural milk plant. Defendant’s employee died prior to the trial and the accident which caused the death was not otherwise witnessed. Plaintiff’s evi denee failed to afford a legally permissible inference that a cause of the death was negligence on the part of defendant’s employee. The evidence easily afforded an inference of the accidental means but any inference as to what put the means in motion must necessarily be drawn from other inferences and assumptions equally capable of deductions not incompatible with the absence of such negligence. (Ford V. McAdoo, 231 IT. Y. 155; Francey v. Rutland R. R. Co., 222 IT. Y. 482; Ruback v. McCleary, Wallin & Crouse, 220 IT. Y. 188; White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Scharff V. Jackson, 216 IT. Y. 598; Lopez V. Campbell, 163 N. Y. 340; Ruppert v. Brooklyn Heights R. R. Co., 154 IT. Y. 90; Searles v. Manhattan Railway Co., 101 IT. Y. 661.) Judgment affirmed, without costs. All concur.