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HAYES v. CITY OF NEW YORK

277 A.D. 762 (1950)

Arlie E. Hayes, Respondent, v. City of New York, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

May 23, 1950.

Judgment affirmed, with costs.

COHN, J. (dissenting).

Plaintiff failed to established negligence on the part of defendant. There is no evidence as to the position of plaintiff on the roadbed immediately before the accident from which a jury could find without surmise or speculation that in the exercise of ordinary prudence his position of danger could have been observed by one operating an approaching train. It is only where there is proof of...

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