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Rosenthal v. New York, S. & W. R.

98 N.Y.S. 479 Court N.Y. App. Div. Decision date 1906-04-20 English

Judges Argued before O’BRIEN, P. J., and INGRAHAM, McRAUGHLIN, CEARKE, and HOUGHTON, JJ.; All concur.

Delivered by McLAUGHLIN, J.

Contents

Majority

p. 479
(112 App. Div. 436)
ROSENTHAL v. NEW YORK, S. & W. R. CO.
(Supreme Court, Appellate Division, First Department.
April 20, 1906.)

Headnote

.Appeal — Arguing Several Cases as .One.
Where, on appeal, two cases are argued together as one, it is proper for the court to consider the facts appearing in each to apply to both.
[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3197.]
Appeal from Trial Term, New York County.
Action by Pauline Rosenthal against the New York, Susquehanna & Western Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.
Affirmed.
Argued before O’BRIEN, P. J., and INGRAHAM, McRAUGHLIN, CEARKE, and HOUGHTON, JJ.
T. B. Chancellor, for appellant.
Frederic B. Jennings, for respondent.

The plaintiff in this action was the companion of plaintiff’s intestate in Rosenthal, Adm’r, v. New York, Susquehanna & Western R. R. Co. (decided herewith) 98 N. Y. Supp. 476 , and she was injured under the circumstances detailed in the opinion in that case. She was nonsuited at the close of her own testimony, and some of the facts developed by the defendant in that case do not appear in this. The two cases, however, were argued together as one, and it would be quite proper for the court to consider the facts appearing in,each.to apply to both. It is not, however, necessary to do this, because the plaintiff testified she did not think the engineer started the engine on purpose, and in a colloquy with the defendant’s counsel her attorney stated that he had her correct her testimony by having her testify to that effect. In addition, she testified that other cars ran into

p. 480
the train, and pushed it ahead. It thus appears, in substance, that, while the plaintiff was on the track and about to board the engine, the train suddenly started, not by any act of the engineer, but because moving cars ran into the standing train, and pushed it ahead. The developed facts, therefore, as well as the claim and attitude of the plaintiff upon the trial, show substantially the same situation as appears in the companion case, and the rules there stated apply with equal force to. this case, and show, if our conclusion in the other case be correct, that the nonsuit in the present one was properly granted.

The judgment appealed from, therefore, should be affirmed, with costs.

All concur.