Burke v. New York Central & Hudson River Railroad

Majority

p. 946

David E. Burke, an Infant, by Frank Burke, His Guardian ad Litem, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

Headnote

Defendant's exceptions sustained. Order denying motion to set aside the verdict reversed, verdict set aside and verdict directed for the defendant, with costs in this court and the trial court. Held, defendant owed no duty to the plaintiff to mark the rear end of its train

p. 947

with lights, and was not guilty of negligence as to the plaintiff if it failed to do so. Plaintiff was guilty of contributory negligence as matter of law.

All concurred, except Kruse, P. J., who dissented upon the ground that the defendant’s negligence, as well as the plaintiff’s contributory negligence, were questions of fact under the evidence.