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LA ROCCO v. PENN CENT. TRANSP. CO.

29 N.Y.2d 528 (1971)

Florence I. La Rocco, as Administratrix of The Estate of Pasquale J. La Rocco, Also Known as Patrick J. La Rocco, Deceased, Respondent, v. Penn Central Transportation Company, Appellant.

Court of Appeals of the State of New York.

Decided June 10, 1971.

Attorney(s) appearing for the Case

Earl H. Gallup, Jr. for appellant.

Daniel H. Mahoney for respondent.

Judges SCILEPPI, BREITEL, JASEN and GIBSON concur in a memorandum; Chief Judge FULD and Judge BURKE dissent and vote to affirm on the opinion at the Appellate Division; Judge BERGAN taking no part.

MEMORANDUM.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court, Albany County, for a new trial, with costs to abide the event. It was error for the trial court to charge repeatedly that the jury could find negligence if the railroad crossing, where plaintiff's decedent was struck by a train, was improperly maintained. There was no evidence...

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