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Hauff v. New York Central Railroad Company

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1938
255 App. Div. 925 (N.Y. App. Div. 1938)

Opinion

November 16, 1938.

Present — Sears, P.J., Crosby, Lewis, Cunningham and Taylor, JJ.


Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action to recover damages for the death of plaintiff's intestate which is alleged to have resulted from defendant's negligence, plaintiff — at the close of his case — was nonsuited upon the ground that his intestate, a boy fifteen years of age, was guilty of contributory negligence. We are not satisfied, from the record before us, that no "possible hypothesis based on the evidence forbids the imputation of fault to the deceased" ( Chamberlain v. Lehigh Valley R.R. Co., 238 N.Y. 233, 235) and are of the opinion that taking into consideration all conditions surrounding the accident, the question of decedent's contributory negligence was for the jury to determine. ( Carr v. Pennsylvania R.R. Co., 225 N.Y. 44, 47; Schrader v. N.Y., C. St. L.R.R. Co., 254 id. 148, 150; Crough v. New York Central R.R. Co., 260 id. 227.) All concur, except Crosby, J., who dissents and votes for affirmance on the ground that the record shows that the decedent was guilty of contributory negligence as matter of law. (The judgment is for defendant in a railroad negligence action.)


Summaries of

Hauff v. New York Central Railroad Company

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1938
255 App. Div. 925 (N.Y. App. Div. 1938)
Case details for

Hauff v. New York Central Railroad Company

Case Details

Full title:JOHN HAUFF, as Administrator, etc., of HAROLD HAUFF, Deceased, Appellant…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 16, 1938

Citations

255 App. Div. 925 (N.Y. App. Div. 1938)

Citing Cases

Hauff v. New York Central Railroad Company

Present — Sears, P.J., Crosby, Cunningham, Taylor and Dowling, JJ. Judgment and order affirmed, with costs.…