Hyperlawhypertext legal database Denton v. Brooklyn Heights R. 78 N.Y.S. 157

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Denton v. Brooklyn Heights R.

78 N.Y.S. 157 Court N.Y. App. Div. Decision date 1902-10-17 English

Judges Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

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p. 157
DENTON v. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department.
October 17, 1902.)

Headnote

1. Railroads — Injuries to Persons on Track — Negligence—Question for Jury.
The fact that defendant’s car was run through a fog, at the rate of 18 miles an hour, when injuring plaintiff on the track, is sufficient to present, for determination by the jury, the question of defendant’s negligence.
Appeal from municipal court of New York.
Action by Charles E. Denton against the Brooklyn Heights Railroad Company. From a judgment of dismissal, plaintiff appeals.
Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Thomas C. Whitlock, for appellant.
I. R. Oeland, for respondent.

The minutes show conclusively that this judgment was based upon a motion granting a nonsuit. As there was evidence tending to establish the fact that the defendant’s car was run through a fog at the rate of 18 miles an hour, it cannot be said as matter of law that there was no question of negligence on the part of •the defendant to be determined. The question of the plaintiff’s con-

p. 158
tributary negligence was also one of fact. For these reasons the judgment must be reversed, and a new trial ordered.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event. All concur.