Halstead v. Westchester Electric Railroad

Judgment and order reversed upon the law, with costs, and complaint unanimously dismissed, with costs, on the ground that the case is barren of evidence from which a finding could be made that the motorman was guilty of a willful or wanton act, that being the sole theory on which the plaintiff tried the cause with a view of eliminating what otherwise would palpably have been the contributory negligence of the deceased. We are also constrained to disapprove of the direction of a verdict when it was plainly evinced that the defendant had no intention to submit the questions of fact to the trial justice. (See O’Connor v. Webber, 239 N. Y. 191 , 198.) Kelly, P. J., Jaycox, Manning, Kelby and Kapper, JJ., concur. "