Kelly v. Delaware, Lackawanna & Western Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, John G. Kelly, as administrator, etc., from a judgment of the Supreme Court in favor of the .defendant,' entered in the office of the clerk of the county of Chemung on the 12th day of September, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 12th day of September, 1906, denying- the…
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Appeal by the plaintiff, John G. Kelly, as administrator, etc., from a judgment of the Supreme Court in favor of the .defendant,' entered in the office of the clerk of the county of Chemung on the 12th day of September, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 12th day of September, 1906, denying- the plaintiff’s motion for a new trial made upon the minutes. The action is pne for damages for the death of plaintiff’s intestate…
1Dissent
Cochrane, J. (dissenting):
The reversal is based on the authority of Bernardi v. N. Y. C. & H. R. R. Co. (78 Hun, 454). In that case the explosive was conveyed on a flat car so near to the locomotive as not to be protected from the sparks therefrom, and it was held that *436it was a question for the jury whether the defendant exercised due care to furnish safe means for the transportation of this explosive. Assuming in the case before us that the car on which the dynamite was being transported did not comply with the defendant’s rule that it should be “first-class in every respect” for the reason…
2Cases cited1 opinion
- Bernardi v. New York Central & Hudson River RailroadNew York Supreme Court · 1894