Depew v. Erie Railroad — 79 N.Y.S. 1130

Majority

p. 1130

DEPEW, Appellant, v. ERIE R. CO., Respondent.

(Supreme Court, Appellate Division, Fourth Department.

December 16, 1902.)

Headnote

Action by Jennie. A. Depew, as administratrix, etc., against the Erie Railroad Company.

Order affirmed, with costs. Held that, under the circumstances of this case, it was error in the trial court to submit to the jury the question of defendant’s negligence, based upon its omission to formulate and promulgate a rule requiring the placing of lights upon the dead engine; also held that, even as

p. 1131

suming that the question of the assumption of the risk of a collision with this engine should have been pleaded as a defense, evidence thereof ivas admitted without objection upon the part of the plaintiff, in consequence of which that question was properly in the case.