216 A.D. 623 | N.Y. App. Div. | 1926
Order and judgment unanimously affirmed, with costs, on the opinion of Whitmyer, J., at Trial Term.
The following is the opinion of the court below:
The action is negligence. The case was submitted to the jury pending the determination of defendant’s motion for a nonsuit and dismissal, made and reserved at the end of plaintiff’s case and at the end of the evidence, with the result that plaintiff obtained a verdict for $15,000, whereupon defendant moved to set that aside on the several grounds specified in section 549 of the Civil Practice Act, and that motion was also reserved. Whether or not the evidence shows that defendant was negligent is the question. Plaintiff’s intestate was a passenger on the Empire State Express, west bound, on June 6, 1924, on his way from Albany, N. Y., to his home in Malone, N. Y. He fell or was thrown from the southerly side of "the train, while it was passing through Fort Plain, at upwards of fifty miles an hour, and was killed. He had been in Albany for a medical examination. A Malone doctor had treated him for about two Weeks before that for some stomach trouble. He was thirty-three years of age, had been married about four years, and had a wife and a boy who Was about three years old. He was a carpenter foreman and earned fifty dollars a week. From what car he came does not appear. The only eye witness Was an employee at a milk station near by, who was standing just southerly of the main tracks, and suddenly saw “ soi lething being hurled through the air.” Looking more closely, before the object struck the ground, he saw that it Was a man “ in kind of a doubled up position, facing towards the train,” knees close to the body, arms out straight, elbows against the sides, and fists