La Rocco v. Penn Central Transportation Co.

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court, Albany County, for a new trial, with costs to abide the event. It was error for the trial court to charge repeatedly that the jury could

*530find negligence if the railroad crossing, where plaintiff’s decedent was struck by a train, was improperly maintained. There was no evidence of improper maintenance, let alone that it was the proximate cause of the fatal accident. Indeed, plaintiff conceded on appeal that there was no independent ground for recovery based on the physical or static…