Benedict v. Andrews — 240 N.Y. 638

Majority

p. 638

Harold S. Benedict, as Administrator of the Estate of Marian H. Benedict, Deceased, Appellant, v. Arthur M. Andrews, Defendant, and United Traction Company, Respondent.

(Argued April 9, 1925;

decided May 12, 1925.)

Headnote

Negligence — railroads — automobile struck from behind by trolley car and forced over body of plaintiff’s intestate lying in street — insufficient proof that death was caused by passage of automobile over body.

Benedict v. Andrews, 210 App. Div. 816 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 24, 1924, unanimously affirming a judgment in favor of defendant entered upon an order of the court at a Trial Term, setting aside a

p. 639

verdict in favor of plaintiff and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Defendant Andrews while driving his automobile along Fifteenth street in the city of Troy observed the intestate lying motionless in the roadway and stopped his automobile within a few feet of her.' Immediately after one of defendant, respondent’s trolley cars, approaching from the rear, struck the automobile and forced it forward over the body of intestate. She died of a fractured skull. The trial court dismissed the complaint on the ground that there was no' sufficient proof that the injury causing death was produced by the passage of the automobile over the body of deceased.

John F. Murray and William H. Murray for appellant.

John T. Norton and John E. MacLean for respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.