(Supreme Court, Appellate Division, First Department.
December 3, 1915.)
Stbeet Railboads <S=»114—Injuby on Tback—Basis of Action—Negligence.
Where there is no evidence that decedent was killed through defendant street railroad’s negligence, or as to how the accident happened, or that defendant’s employés had any knowledge that decedent was in a position of danger, judgment for plaintiff is improper.
[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. <®=114.]
Laughlin and Smith, JJ., dissenting. •
<§E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Trial Term, New York County.
Action by Lucy F. Prince, as administratrix, against the New York Consolidated Railroad Company, impleaded with others. Judgment for plaintiff. From it, and an order denying its motion for new trial defendant Railroad Company appeals. Judgment and order reversed, and complaint dismissed.
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and SMITH, JJ.
Thomas L. Hughes, of New York City, for appellant.
Sydney A. Syme, of Mt. Vernon, for respondent.
There is no evidence that the deceased came to his death by reason of any negligence on the part of the defendant. There is no credible evidence as to how the accident happened, or of any fact which justified a finding that the defendant’s motorman or employé had any knowledge that the deceased was in a position of danger.
The judgment and order appealed from must be reversed, with costs, and the complaint dismissed, with costs. Order filed.
LAUGHLIN and SMITH, JJ., dissent.
155 N.Y.S. 1086
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