Herke v. South Buffalo Railway Co.

Headnote

Herke v. South Buffalo Railway Co., 185 App. Div. 945 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 29, 1918, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that on the 27th day of November, 1917, plaintiff’s intestate was in the employ of the Lackawanna Steel Company, as a switch and track cleaner, within the plant of the said steel company, and that while in the discharge of his duties as such switch and track

cleaner a train of the defendant was negligently, carelessly and without warning backed against him, causing injuries which resulted in his death. The answer admitted plaintiff’s intestate’s employment as alleged, but denied that defendant was negligent in any of the manners or respects set forth in the complaint, and set up as affirmative defense that plaintiff’s intestate came to his death through his own negligence and want of care, and not through any negligence or want of care on the part of the defendant.