Legal Opinion

Utess v. . Erie R.R. Co.

New York Court of Appeals

Decided February 2, 1912PublishedCited by 5 opinions

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in permitting the plaintiff to recover upon a cause of action not pleaded in the complaint. (Schradin v. N. Y. C. & H. R. R. R. Co., 124 App. Div. 705; P., C., C. & S. L. Ry.

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Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in permitting the plaintiff to recover upon a cause of action not pleaded in the complaint. (Schradin v. N. Y. C. & H. R. R. R. Co., 124 App. Div. 705; P., C., C. & S. L. Ry. Co. v. Rogers, 87 N. E. Rep. 28; Bertolami v. U. E. &. C. Co., 125 App. Div. 584; Gmaehle v. Rosenberg, 178 N. Y. 147;…

1Opinion of the CourtCollin, J.

The action is by an employee against employer to recover damages for personal injuries. The plaintiff was a switchman in the yard of the defendant at Rochester, New York. He was injured, as the verdict of the jury established, November 3, 1906, without negligence on his part, through being struck by a piece of coal which fell from the locomotive tender of the passenger train he had signaled, as it passed him. The action was at common law, and the trial justice based the liability of the defendant, if any, upon certain of the provisions of section 42a of the Railroad Law (L. 1906, ch. 651) —…

2Cited by5 opinions

  1. Hart v. . N.Y.C. H.R.R.R. Co.New York Court of Appeals · 1912
  2. Kent v. . Erie R.R. Co.New York Court of Appeals · 1916
  3. Hart v. New York Central & Hudson River RailroadNew York Court of Appeals · 1912
  4. Utess v. . Erie R.R. Co.New York Court of Appeals · 1914
  5. Utess v. Erie R.Appellate Division of the Supreme Court of the State of New York · 1913

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