Opinion
October, 1924.
Present — Hubbs, P.J., Clark, Davis, Sears and Crouch, JJ.
The complaint does not allege that the Erie Railroad Company ran its trains over the New York Central tracks or that the Erie track ran parallel to the New York Central track. There is no allegation from which it can be inferred that there was any duty resting upon the Erie Railroad Company to keep a flagman at the crossing, neither is there an allegation that the deceased knew that the Erie Railroad Company had theretofore kept a flagman at the crossing. In the absence of such allegations, we think the complaint fails to state a cause of action against the Erie Railroad Company. All concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended answer within twenty days, upon payment of the costs of the motion and of this appeal.