D'Auria v. Rodgers — 119 N.Y.S. 1122

Majority

p. 1122

D’AURIA v. RODGERS.

(Supreme Court, Appellate Term.

November 30. 1909.)

Headnote

Appeal from Municipal Court, Borough of the Bronx, First District. Action by Cosino D’Auria against John P. Rodgers, Jr. From a Municipal Court judgment for plaintiff, defendant appeals.

Reversed, and new trial ordered.

Frank Y. Johnson (Thomas P. Dunphy, of counsel), for appellant.

Robert O. Burlando, for respondent.

The plaintiff has recovered a judgment-awarding him damages for an injury he. claims to have sustained through the negligence of the defendant. He was engaged in dumping dirt from dirt cars, which he attempted to stop by putting one end of a stick on the track as a block to the wheels. The evidence is unsatisfactory, and gives but a scant idea of the circumstances under which the cars were being operated and the manner in which they should have been stopped. The record now before us does not establish negligence on the part of the defendant. The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event.