Legal Opinion · Concurrence

DiCaprio v. New York Central Railroad

Appellate Division of the Supreme Court of the State of New York

Decided November 12, 1919Published

Appeal by the plaintiff, Tony DiCaprio, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 15th day of March, 1919, upon a dismissal of the complaint at the close of plaintiff’s case, and also from the order directing a nonsuit.

1Concurrence

Cochrane, J. (concurring):

Section 52 of the Railroad Law (as amd. by Laws of 1915, chap. 281) requiring the railroad company to maintain fences has this provision: “ No railroad need be fenced, when not necessary to prevent horses, [cattle, sheep and hogs from going upon its track from the adjoining lands.” The boy lived on a farm of about 100 acres on which horses and cattle were kept. It appears that some time before this accident a cow had been killed apparently because it strayed from the farm onto the railroad. It would seem, therefore, that a jury might properly have been permitted to…

2Cases cited5 opinions

  1. Union Pacific Railway Co. v. McDonaldSupreme Court of the United States · 1894
  2. Amberg v. . KinleyNew York Court of Appeals · 1915
  3. Donnegan v. . ErhardtNew York Court of Appeals · 1890
  4. Kelley v. New York State RailwaysNew York Court of Appeals · 1913
  5. Knight v. New York, Lake Erie & Western RailroadNew York Court of Appeals · 1885

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