Marshall v. Auburn & Northern Electric Railroad — 108 N.Y.S. 1140

Majority

p. 1140

MARSHALL, Respondent, v. AUBURN & NORTHERN ELECTRIC R. Co., Appellant.

(Supreme Court, Appellate Division, Fourth Department.

January 8, 1908.)

Headnote

Appeal from Special Term. Action by John S. Marshall against the Auburn & Northern Electric Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment and order affirmed, with costs.

McLENNAN, P. J., dissents, upon the ground that the omission by the defendant to erect a barrier such as would prevent a runaway horse from running upon and over the portion of the street in question did not establish negligence upon the part of the defendant; that the barrier contemplated in the franchise was such as would warn persons driving upon the street in question, rather than protect them from any accident resulting from the occupation of such street.

WILLIAMS, J., concurs.