Sykes v. City of New York

Appellate Division of the Supreme Court of New York

Sykes v. City of New York

269 A.D. 1057, 58 N.Y.S.2d 918, 1945 N.Y. App. Div. LEXIS 5253

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

DecidedDecember 17, 1945

StatusPublished

This text of 269 A.D. 1057 (Sykes v. City of New York) 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.

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Sykes v. City of New York, 269 A.D. 1057, 58 N.Y.S.2d 918, 1945 N.Y. App. Div. LEXIS 5253 (N.Y. Ct. App. 1945).

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Opinion

Judgment affirmed, with costs. No opinion. Carswell, Adel and Lewis, JJ., concur; Hagarty, Acting P. J., and Johnston, J., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: The action is for wrongful death. Plaintiff’s intestate was a passenger on a Seventh Avenue subway train owned and operated by defendant. He, together with about ten other passengers, was standing in the front vestibule of the rear car. While the train was proceeding from the Park Place to the Chambers Street station and around a curve, it swayed and the storm door opened and plaintiff’s intestate was precipitated through the doorway and fell between the last and next to the last cars to the tracks. Plaintiff’s sole witness as to the happening of the accident testified that he was thrown against another passenger, but no one was thrown against him, and one passenger was thrown a little off balance, but no one was thrown to the floor. There was no evidence that the train was travelling at an excessive or unreasonable-speed. In fact, the uncontroverted proof is that the speed was only six to eight miles an hour. In our opinion no [1058]*1058actionable negligence on the part of the defendant was shown. (Ayers v. Rochester Railway Co., 156 N. Y. 104; Bockhaus v. Interborough Rapid Transit Co., 167 App. Div. 927, affd. 220 N. Y. 774.)

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Judgment affirmed, with costs. No opinion. Carswell, Adel and Lewis, JJ., concur; Hagarty, Acting P. J., and Johnston, J., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: The action is for wrongful death. Plaintiff’s intestate was a passenger on a Seventh Avenue subway train owned and operated by defendant. He, together with about ten other passengers, was standing in the front vestibule of the rear car. While the train was proceeding from the Park Place to the Chambers Street station and around a curve, it swayed and the storm door opened and plaintiff’s intestate was precipitated through the doorway and fell between the last and next to the last cars to the tracks. Plaintiff’s sole witness as to the happening of the accident testified that he was thrown against another passenger, but no one was thrown against him, and one passenger was thrown a little off balance, but no one was thrown to the floor. There was no evidence that the train was travelling at an excessive or unreasonable-speed. In fact, the uncontroverted proof is that the speed was only six to eight miles an hour. In our opinion no [1058]*1058actionable negligence on the part of the defendant was shown. (Ayers v. Rochester Railway Co., 156 N. Y. 104; Bockhaus v. Interborough Rapid Transit Co., 167 App. Div. 927, affd. 220 N. Y. 774.)

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Bluebook (online)

269 A.D. 1057, 58 N.Y.S.2d 918, 1945 N.Y. App. Div. LEXIS 5253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sykes-v-city-of-new-york-nyappdiv-1945.

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