Knapp v. New York, N. H. & H. Railroad — 122 N.Y.S. 1133

Majority

p. 1133

KNAPP, Respondent, v. NEW YORK, N. H. & H. R. CO., Appellant.

(Supreme Court, Appellate Division, Second Department.

April 22, 1910.)

Headnote

Action by Coleman J. Knapp, as administrator, etc., against the New York, New Haven & Hartford Railroad Company.

Judgment and order reversed, and new trial granted, costs to abide the event, upon the ground that there is no evidence that the decedent either looked or listened before he went upon the railroad track, and that it affirmatively appears that if he had so looked, or if he had so listened, he might have seen or heard the approaching train and avoided the accident which resulted in his death. Harrison v. N. Y. C. H. R. R. Co., 195 N. Y. 90 , 87 N. E. 802 ; Wieland v. Delaware & Hudson Canal Co., 167 N. Y. 26 , 60 N. E. 234 , 82 Am. St. Rep. 707 .

HIRSCHBERG, P. J., dissents.