O'Shea v. Lehigh Valley Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal from trial term, Courtland county. Action by Daniel O’Shea, as administrator of the estate of Dennis O’Shea, against the Lehigh Valley Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.
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Appeal from trial term, Courtland county. Action by Daniel O’Shea, as administrator of the estate of Dennis O’Shea, against the Lehigh Valley Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed. On the evening of the 17th day of March, 1901, the plaintiff, with his son, the decedent, who was then between eight and nine years of age, and one F., were riding in an open sleigh drawn by one horse; and when crossing the tracks of the defendant’s railroad they were struck by an engine, and F. and the…
1Opinion of the CourtChase, J.
The plaintiff, as the sole next of kin of the deceased, is entitled to any recovery obtained in this action. Code Civ. Proc. § 1903. The question is here fairly presented whether a person who would be entitled to the entire recovery can, as administrator of a decedent, recover damages from another for negligence by which the decedent’s death was caused, where such person’s own negligence contributed to such death. This case is not governed by the much-discussed rules relating to imputed negligence. It is a simple question as to whether a person shall profit by his own wrong. The common-law…
2Cases cited15 opinions
- Riggs v. . PalmerNew York Court of Appeals · 1889
- City of Pekin v. McMahonIllinois Supreme Court · 1895
- Atlanta & Charlotte Air-Line Rwy. Co. v. GravittSupreme Court of Georgia · 1894
- Westerfield v. Levis Bros.Supreme Court of Louisiana · 1891
- Wymore v. Mahaska CountySupreme Court of Iowa · 1889
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