269 A.D. 1057 | N.Y. App. Div. | 1945
Judgment affirmed, with costs. No opinion. Carswell, Adel and Lewis, JJ., concur; Hagarty, Acting P. J., and Johnston, J., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: The action is for wrongful death. Plaintiff’s intestate was a passenger on a Seventh Avenue subway train owned and operated by defendant. He, together with about ten other passengers, was standing in the front vestibule of the rear car. While the train was proceeding from the Park Place to the Chambers Street station and around a curve, it swayed and the storm door opened and plaintiff’s intestate was precipitated through the doorway and fell between the last and next to the last cars to the tracks. Plaintiff’s sole witness as to the happening of the accident testified that he was thrown against another passenger, but no one was thrown against him, and one passenger was thrown a little off balance, but no one was thrown to the floor. There was no evidence that the train was travelling at an excessive or unreasonable-speed. In fact, the uncontroverted proof is that the speed was only six to eight miles an hour. In our opinion no