Phelps v. Erie Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 28th day of October, 1908, setting aside the verdict of a jury in favor of the defendant and granting the plaintiff’s motion for anew trial.
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Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 28th day of October, 1908, setting aside the verdict of a jury in favor of the defendant and granting the plaintiff’s motion for anew trial. This action was brought to recover damages for causing the death of the plaintiff’s intestate which is alleged to have been caused by the neglect of the defendant. About nine o’clock in the morning of March 19, 1906, the deceased was riding in a cutter drawn by a horse…
1Opinion of the Court
Sewell, J.:
It appears from the opinion of the justice who presided at the trial that the ground upon which he granted a new trial was errors of the court in charging certain propositions in compliance with the .requests of the defendant’s counsel. Were it necessary to determine these questions I would not hesitate in holding, as did the learned justice, that it was error to say to the jury that if the deceased “ could have seen the approaching train had she looked when approaching the crossing, and failed to warn the driver, Hemstraught, the plaintiff is not entitled to recover.” But it is…
2Cases cited4 opinions
- Wiwirowski v. Lake Shore & Michigan Southern Railway Co.New York Court of Appeals · 1891
- Chrystal v. . Troy Boston R.R. Co.New York Court of Appeals · 1887
- Baldwin v. . BurrowsNew York Court of Appeals · 1872
- Hunt v. Fitchburg RailroadAppellate Division of the Supreme Court of the State of New York · 1897
3Cited by6 opinions
- McKelvey v. Delaware, Lackawanna & Western RailroadAppellate Division of the Supreme Court of the State of New York · 1937
- Horton v. New York Central RailroadAppellate Division of the Supreme Court of the State of New York · 1922
- Kozlowski v. Rochester, Syracuse & Eastern RailroadAppellate Division of the Supreme Court of the State of New York · 1911
- Young v. Erie RailroadAppellate Division of the Supreme Court of the State of New York · 1913
- Kulp Transportation Lines, Inc. v. Erie RailroadNew York City Court · 1928
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