| N.Y. App. Div. | Dec 30, 1943
Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs. Memorandum: Proof that there was a path across defendant’s tracks sufficiently used by the public to cast upon defendant the duty of giving warnings to users of the path is vague and indefinite. But, taking the most favorable view of plaintiff’s own testimony, he was not injured while crossing the defendant’s tracks on the path, but he was injured while a trespasser along and upon the tracks at some distance from the path. All concur, except Harris and MeCurn, JJ., who dissent, and vote for reversal and for granting a new trial on the ground that the verdict is against the weight of evidence. (The judgment is for plaintiff in a railroad negligence action. The order denies defendant’s motion to set aside the verdict and for a directed verdict for defendant, or for a new trial.) Present —■ Crosby, P. J., Taylor, Dowling, Harris and MeCurn, JJ.