Keeley v. Erie Railway Co.
New York Supreme Court
Exceptions ordered to be first heard at general term. The action was brought under the statute for the negligent killing the plaintiff’s intestate.
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Exceptions ordered to be first heard at general term. The action was brought under the statute for the negligent killing the plaintiff’s intestate. The deceased was a passenger on a freight train upon the defendant’s railroad going west, and was killed at Tioga Centre in a general smash up of the train caused by the displacement of the switch rails, which occurred July 30, 1870. The answer alleges, as a defense, “that the injury mentioned in the complaint as having occurred to the plaintiff’s intestate was occasioned by the willful and wrongful act of some third goer son, and not by any…
1Opinion of the CourtMiller, P. J.
The plaintiff made out a case presumptively after he had proved that the intestate was a passenger, and that the accident was caused by the displacement of- the switch. The burden of showing a want of responsibility then rested with the defendant; and the allegation of criminality, on the part of some’ one not connected with the defendant, by intentionally deranging the switch and thus causing tlie disaster, should have been satisfactorily established to justify a nonsuit, and to authorize the court to take the case from the jury.
The plaintiff’s counsel insists that the criminality of a…
2Cited by2 opinions
- East Tenn., Va. & Ga. Railway Co. v. KaneSupreme Court of Georgia · 1893
- Noe v. Rapid Railway Co.Michigan Supreme Court · 1903