Van Houten v. New York, New Haven & Hartford Railroad

286 A.D. 875, 142 N.Y.S.2d 178, 1955 N.Y. App. Div. LEXIS 4408

Opinion

In an action to recover damages for personal injuries, medical expenses, and loss of services, it appears that the infant plaintiff, a nine-year-old boy, crawled along the top of appellant’s freight car and was injured when he came into contact with an overhead wire which carried current for operation of electric locomotives. The boy testified that while he and his companion were atop a freight car two men on the ground yelled “ Get off ” in a “ mad voice ” and one waved a hand or a fist; that thereafter the boys ran along the tops of two or three cars, then crawled along the top of one car, under a bridge, and that upon emerging the infant plaintiff was about to stand when the train moved and caused him to fall into contact with the wire. Judgment entered on the verdict of a jury in favor of plaintiffs reversed on the law, with costs, and the complaint dismissed. The findings implied by the verdict, that the two men were employees of the appellant, and that their conduct caused the injuries, are not affirmed. There is no evidence which identifies the two men or shows that they acted on behalf of appellant. Nor does the evidence support a finding that there was a causal connection between the acts of the two men and the injuries suffered by the infant plaintiff. Concededly, the infant plaintiff was a trespasser. (Van Houten v. Long Island B. B. Co279 App. Div. 1099, motion for leave to appeal denied 304 N. Y. 990.) Wenzel, Acting P. J., Schmidt, Beldock, Murphy and Ughetta, JJ., concur.