Rosenthal v. New York, Susquehanna & Western Railroad

112 A.D. 436, 98 N.Y.S. 479, 1906 N.Y. App. Div. LEXIS 699

Opinion

McLaughlin, J.:

The plaintiff in this action was the companion of plaintiff’s intestate in Rosenthal v. New York, Susquehanna & Western R. R. Co., decided herewith (112 App. Div. 431), and she was injured under the circumstances detailed, in the Opinion in that case. She was nonsuited at the close of her own testimony, and some of the facts developed by the defendant in that casé do not appear in this. The two cases, however, were argued together as one, and it Would be quite proper for the court to consider the facts appearing in' each to apply to both. It is not, however, necessary to do this because the plaintiff testified she did not think the engineer started the engine: on purpose, and in a colloquy with the defendant’s counsel her attorney stated that, he had-her correct her testimony by having her testify to that effect.

In addition, she testified that other cars ran into the train and pushed it ahead. It thus appears, in substance, that while the plaintiff was on the track and about to board the engine, the train suddenly started, not by any act of the engineer, but because moving cars ran into the standing train and pushed it ahead. The developed facts, therefore,, as well as the claim and attitude of the plaintiff upon the trial, show substantially the same situation as appears in the companion case and the rules there stated apply with equal force to this case and show, if our conclusion in the other case be correct, that the nonsuit in the present one was properly granted.

The judgment appealed from, therefore,.should be affirmed, with costs.

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Judgment affirmed, with costs. Order filed.