Kelly v. Delaware, Lackawanna & Western Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, John G. Kelly, as administrator, etc., from a judgment of the Supreme Court in favor of the .defendant,' entered in the office of the clerk of the county of Chemung on the 12th day of September, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 12th day of September, 1906, denying- the…
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Appeal by the plaintiff, John G. Kelly, as administrator, etc., from a judgment of the Supreme Court in favor of the .defendant,' entered in the office of the clerk of the county of Chemung on the 12th day of September, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 12th day of September, 1906, denying- the plaintiff’s motion for a new trial made upon the minutes. The action is pne for damages for the death of plaintiff’s intestate…
1Opinion of the Court
Chester J.:
While it is not-so stated in the record it is evident that the decision of the trial justice in dismissing the complaint was placed outlie ground that the accident was caused solely by the negligence of a coemployee. The respondent claims this, and the appellant concedes that the evidence shows that the collision was caused either by the negligence of the engineer of the leading engine on- the “ wild cat ” train in- not seeing the train on the track in front of -him or by the negligence of the crew of the train 61 in failing to send back a flagman the proper distance to warn the…
2Cases cited3 opinions
- In Re the Probate of the Will of SmithNew York Court of Appeals · 1884
- Strauss v. New York, New Haven & Hartford RailroadAppellate Division of the Supreme Court of the State of New York · 1904
- Bernardi v. New York Central & Hudson River RailroadNew York Supreme Court · 1894