Buckin v. Long Island R. Co.
| Decision Date | 29 July 1941 |
| Citation | 286 N.Y. 146,36 N.E.2d 88 |
| Parties | BUCKIN v. LONG ISLAND R. CO. (two cases). BRANDI v. LONG ISLAND R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Two separate actions by Joseph Brandi, an infant, by Filomona Brandi, his guardian ad litem, and by Joseph Buckin, Jr., an infant, by Joseph Buckin, Sr., his guardian ad litem, against the Long Island Railroad Company, for personal injuries sustained in a collision between an automobile and a train, and another action by Joseph Buckin, Sr., against the Long Island Railroad Company to recover for damage to the automobile. From judgments in the actions by the infants entered January 21, 1941, upon orders of the Appellate Division of the Supreme Court, Second Judicial Department, 260 App.Div. 1049, 24 N.Y.S.2d 501, reversing on the law and the facts the judgments of the County Court in favor of the plaintiffs entered upon a verdict and directing a dismissal of the complainants on the law, the plaintiffs appeal, and from a judgment of the same court affirming a judgment of the County Court in favor of Joseph Buckin, Sr., entered upon a verdict, wherein reargument was denied, 261 App.Div. 835, 25 N.Y.S.2d 1001, the defendant appeals.
Judgments in the actions brought by the infants affirmed, and the judgment in the other action reversed and the complaint dismissed.
LEHMAN, C. J., and CONWAY and RIPPEY, JJ., dissenting. LeRoy E. Raynor, of Greenport, L. I., for plaintiffs-appellants and plaintiff-respondent.
William McNamara and Louis J. Carruthers, both of New York City, for defendant, respondent and appellant.
An automobile, owned by the plaintiff Buckin, Sr., and driven with his consent by the infant plaintiff Brandi, in the company of the infant plaintiff Buckin, Jr., collided with the defendant's train. The second and third of the above-entitled actions are for damages for personal injuries suffered by the infant plaintiffs. The first action is for the property damage to the owner's car. The three actions were tried together. Judgments were entered upon the jury's verdict in favor of the plaintiff in each action. The Appellate Division (260 App.Div. 1049, 24 N.Y.S.2d 501, 503) reversed the judgments in favor of the infant plaintiffs on the ground that they were guilty of contributory negligence as matter of law, but affirmed the judgment in favor of the owner on the ground that ‘since the automobile was being operated with the owner's permission, but in his absence and not upon his business, the negligence of the operator may not be imputed to the owner.’ Citing Mills v. Gabriel, 259 App.Div. 60, 18 N.Y.S.2d 78, affirmed, 284 N.Y. 755, 31 N.E.2d 512.
In the two personal injury actions, we agree with the Appellate Division that the infant plaintiffs were guilty of contributory negligence as matter of law. Their testimony as to the precautions taken by them and as to their failure to see the approachingtrain, although they looked, is incredible.
In the action brought by Joseph Buckin, Sr., however, we reach a different result than did the Appellate Division. This court has recently held that the negligence of the driver of an automobile driven with the owner's permission but in his absence and not on...
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