Keeler v. Long Island Railroad — 299 N.Y. 621

Majority

p. 621

Lansing H. Keeler, as Administrator of the Estate of Lansing J. P. Keeler, Deceased, Appellant, v. Long Island Rail Road Company, Respondent.

Argued October 13, 1948;

decided April 20, 1949.

p. 622

Reuben L. Hashell for appellant.

Andrew F. Van Thun, Jr., Ralph E. Memstreet and William J. 0 ’Bfien for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Fuld and Bromley, JJ. Conway and Dye, JJ., dissent and vote to reverse and grant a new trial upon the following grounds: (1) that there was a question of fact presented as to whether the accident was one which should reasonably have been foreseen by the defendant, (2) that there was a question of fact as to whether the covering of the third rail was adequate in view of the fact that plaintiff’s intestate was crossing from a path closely paralleling this dangerous death-dealing instrumentality alongside railroad tracks in which grass and weeds had been permitted to grow, and (3) that it was error to exclude proof of a prior similar accident within 300 feet of the place of the instant accident in which another boy had been injured under similar circumstances.