Trudell v. New York Rapid Transit Corp.

248 A.D. 787

Opinion

In an action to recover damages for the death of plaintiff’s intestate due to the alleged wrongful act or neglect of the defendant, it appeared that the decedent, with other boys, went on the back platform of the defendant’s elevated railroad train; and that he was thrown or fell through a gate that became opened in some manner not described. The gate would open only if a lever was pulled up by the hand — otherwise the gate is locked, and cannot be opened. At the close of the evidence the defendant’s motion for a directed verdict was granted, evidently on the grounds that the decedent was on the rear platform in violation of statute and ordinance and the rules of defendant, and that there was failure of proof of negligence as a proximate cause of the accident. The account of the accident given by the witnesses is against the probabilities as well as contrary to prior statements made by them to the district attorney when the accident was investigated. Judgment for defendant affirmed, with costs. (See Scott v. New York Central Railroad Co., 216 App. Div. 623.) Hagarty, Davis, Adel and Taylor, JJ., concur; Lazansky, P. J., dissents and votes for reversal and a new trial upon the ground that there was proof for submission to the jury as to negligence and contributory negligence.