Smith v. Lehigh Valley Railroad — 188 N.Y. 545

Majority

p. 545

Porter D. Smith, as Administrator of the Estate of Amy A. Smith, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant.

(Argued February 22, 1907;

decided March 5, 1907.)

Headnote

Smith v. Lehigh Valley R. R. Co., 113 App. Div. 903 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 23, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence.

James McCormick Mitchell for appellant.

Thomas Raimes for respondent.

Inasmuch as the plaintiff, individually, is only entitled to a share of the proceeds of the recovery, the case is distinguishable from that of O'Shea v. Lehigh Valley R. R. Co. ( 79 App. Div. 254 ), and the question as to whether there could be a recovery for the benefit of the other members of the decedent’s family is not raised by the request to charge “ that if the carelessness or negligence of the plaintiff contributed in any degree, however slight, to cause the accident, the jury must find a verdict for the defendant of no cause of action.” As to the question discussed in the O'Shea case we express no opinion.

The judgment should be affirmed, with costs.

Cullen, Ch. J., Gbay, Edwabd T. Babtlett, Haight, Vann and Chase, JJ., concur; Webneb, J., not sitting.

Judgment affirmed.