63 Misc.2d 766, Neumeier v. Keuhner

Citation:63 Misc.2d 766, 313 N.Y.S.2d 468
Party Name:Neumeier v. Keuhner
Case Date:August 04, 1970
 
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Page 766

63 Misc.2d 766

313 N.Y.S.2d 468

Joan NEUMEIER, as Administratrix of the Estate of Aime Neumeier, Plaintiff,

v.

Irene KUEHNER, as Administratrix of the Estate of Arthur Kuehner, and CanadianNational Railway, Defendants.

Supreme Court, Erie County.

Aug. 4, 1970.

Page 767

Ohlin, Damon, Morey, Sawyer & Moot, Buffalo (James S. McAskill, Buffalo, of counsel), for plaintiff.

Smith, Murphy & Schoepperle, Buffalo (Frank G. Godson, Buffalo, of counsel), for Irene Kuehner, as Administratrix of the Estate of Arthur Kuehner.

Moot, Sprague, Marcy, Landy & Fernbach, Buffalo (Courtland R. LaVallee, Buffalo, of counsel), for Canadian National Railway.

MEMORANDUM

WALTER J. MAHONEY, Justice.

The pertinent facts, insofar as the pending motions now before the Court are concerned, would not appear to be in serious dispute. On or about May 7, 1969, a collision occurred between the engine of a train owned and operated by Canadian National Railway Company and an automobile owned and being operated by one, Arthur Kuehner, at the Holloway Bay Road grade crossing in the Town of Sherkston, Province on Ontario, Canada. Aime Neumeier, plaintiff's intestate, was a passenger in the Kuehner vehicle at the time of the accident in which both the owner-driver and the passenger were instantly killed.

[313 N.Y.S.2d 469] On the morning of the fatal day, Arthur Kuehner, a New York State resident operating his own automobile registered and insured in the State of New York, crossed the International border into Canada and stopped at the home of Aime Neumeier, who there resided with his wife, Joan Neumeier, a niece of Mr. Keuhner, and their children in the City of Ft. Erie, Ontario, Canada. The two men then proceeded in the Kuehner vehicle, being driven by Arthur Kuehner, destined for Long Beach, Ontario, Canada, where Mr. Kuehner owned certain real property on which were situated various cottages normally rented by him to summer vacationists. The ostensible purpose of the trip was to perform various preparatory work at the cottages for the coming rental season. It would also appear that there was to be no payment of consideration for the work to be performed by Mr. Neumeier.

While proceeding on the Holloway Road, the vehicle entered upon a railroad grade crossing where it came in collision with

Page 768

a west bound train owned and operated by Canadian National Railway Company, fatally injuring both the driver-owner, Kuehner and passenger, Neumeier.

The Canadian National Railway Company is a Canadian corporation operating primarily in Canada but authorized to do business in the State of New York. The train involved in the fatal accident, it would appear, commenced its trip at Ft. Erie, Ontario, Canada, and was destined to another point in the Province of Ontario, Canada, with all members of the train crew being Canadian domiciliaries.

The Kuehner vehicle was owned, registered and insured in New York State. Kuehner himself was a permanent resident of New York State although owning real property in Ontario, Canada.

Neumeier was a lifelong resident of Canada and employed in Canada. His wife, originally a New York resident, moved to Canada upon her marriage in 1960, having a status of a 'landed immigrant' and living in Ontario, Canada continuously to the time of the accident.

A wrongful death action has been commenced in this Court by the Neumeier Estate against the Kuehner Estate and Canadian National Railway Company, based upon negligence.

Defendant Keuhner Estate, by its answer has pleaded as an affirmative defense, (Paragraph 'Sixth'), the so-called vehicle guest statute enacted in the Province of...

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