Hayes v. City of New York

Full title: ARLIE E. HAYES, Respondent, v. CITY OF NEW YORK, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 23, 1950

277 App. Div. 762 (N.Y. App. Div. 1950)

Opinion

May 23, 1950.

Appeal from Supreme Court, New York County.

Judgment affirmed, with costs.

COHN, J. (dissenting).

Plaintiff failed to established negligence on the part of defendant. There is no evidence as to the position of plaintiff on the roadbed immediately before the accident from which a jury could find without surmise or speculation that in the exercise of ordinary prudence his position of danger could have been observed by one operating an approaching train. It is only where there is proof of circumstances to establish that the person injured was in such a position as to be in plain view of the motorman of an approaching train who is operating it that an issue of fact as to negligence on the part of the motorman's employer arises ( Mikorski v. City of New York, 270 App. Div. 769; Clarke v. City of New York, 295 N.Y. 861; Noseworthy v. City of New York, 298 N.Y. 76; Rand v. City of New York, 270 App. Div. 996).

Accordingly, I dissent and vote to reverse and dismiss the complaint.

Peck, P.J., Glennon, Dore and Van Voorhis, JJ., concur in decision; Cohn, J., dissents and votes to reverse and dismiss the complaint in opinion.

Judgment affirmed, with costs. No opinion.