Corbett v. Brooklyn, Bath & West End Railroad — 91 N.Y. Sup. Ct. 375

Majority

p. 375

Mary A. Corbett, as Administratrix, etc., of Thomas Corbett, Deceased, Appellant, v. The Brooklyn, Bath and West End Railroad Company, Respondent.

Headnote

■Negligence —proof as to, where no one witnessed the accident.

In an action brought to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, no one testified who had witnessed the accident which resulted in the death of the plain-' tiff’s intestate, and there was no proof from which any inference could be drawn respecting the manner in which the deceased met his death, further than that he was killed outside of a train and between a platform and one of the cars on the defendant’s railroad. •

Held, that there was no proof of negligence on the part of such railroad company, and that there could be no recovery against it.

Appeal by the plaintiff, Mary A. Corbett, as administratrix, etc., of Thomas Corbett, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of August, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Kings County Circuit.

Thomas F. Magner, for the appellant.

Morris & Whitehouse, for the respondent.

This is an appeal from a judgment dismissing the plaintiff’s complaint.

The action was brought to recover damages resulting from the death of Thomas Corbett, the plaintiff’s intestate.

The deceased was killed at the Coney Island station on the defendant’s road.

No one witnessed the occurrence, and there is no proof from which any inference can be drawn respecting the manner in which the deceased met his death further than that lie was killed outside of the train and between the platform and one of the cars.

There is no proof of negligence on the part of the company, and under such circumstances there .can be no recovery.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.