Foley v. New York Cent. & H.R.R. Co.

CourtNew York Court of Appeals
Writing for the CourtHISCOCK
Citation197 N.Y. 430,90 N.E. 1116
PartiesFOLEY v. NEW YORK CENT. & H. R. R. CO.
Decision Date08 February 1910

197 N.Y. 430
90 N.E. 1116

FOLEY
v.
NEW YORK CENT.
& H. R. R. CO.

Court of Appeals of New York.

Feb. 8, 1910.


Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Anna A. Foley, administratrix of Harold Foley, deceased, against the New York Central & Hudson River Railroad Company. From a judgment of the Appellate Division (132 App. Div. 506,117 N. Y. Supp. 956), affirming by divided court a judgment of the Supreme Court for plaintiff, defendant appeals. Reversed, and new trial granted.

The action was brought to recover damages for the death of plaintiff's intestate, a boy between the age of eight and nine at the time of his death, claimed to have been caused by the negligence of the defendant.

Defendant's main four tracks run through the village of Oriskany substantially on an easterly and westerly line. In said village a switch track diverges from one of the main tracks, and runs in a southeasterly direction several hundred feet to a foundry. Between the point of divergence and the foundry and between the switch track and the main tracks at and for some time before the date of the accident, there was situated a coal shed which was supplied with coal by the defendant, and from which one Sweet drew and distributed coal to his customers in the coal business. The only way to reach this coal shed from the nearest public highway was by a private passageway which ran for some distance southeasterly on a line practically parallel with the switch track, and when about opposite the coal shed turned easterly over said latter track to said shed. This passageway had been used for some time by Sweet in procuring and delivering coal from the shed above mentioned and also at times prior to the accident had been used by people going to a milk depot situate on the same side of the switch track as the coal shed and beyond the latter towards the foundry. On the occasion of the accident, which was in daylight, the intestate, under a permission given by his mother to ride in one of Sweet's coal wagons, was riding in an open wagon with one Gardner, who on plaintiff's theory was driving to the coal shed. Intestate had no purpose except that of pleasure, and had no relation to Sweet or the driver except the apparent permission to ride as above stated. As Gardner drove across the track to the coal shed the wagon was struck by a locomotive backing at a slow rate from the main track over the switch track to the foundry and the intestate was killed.

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20 practice notes
  • Columbus & G. Ry. Co. v. Robinson, 34134
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...v. Penn. R. Co., 25 A. 256; Lonzer v. Lehigh Valley R. R. Co., 46 A. 937; Horandt v. Central R. Co., 73 A. 93; Foley v. N.Y.C. R. Co., 90 N.E. 1116; Banister v. R. Co. (Iowa), 202 N.W. 766; Longley v. McGroch (Md.), 80 A. 844; Long v. McCabe (Wash.), 100 P. 1016; Reed v. Flynn (Ky.), 266 S.......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...the positive testimony of the host of credible witnesses that the bell did ring at the time in question. Foley v. N. Y. C. & H. R. R. Co., 197 N.Y. 430, 90 N.E. 1116, 18 Ann. Cas. 631; 10 R. C. L. 1011; 9 Encyc. Ev., pages 867, 868; 23 C. J. 42, 45; Jones on Evidence (3 Ed.), sec. 898; 2 Mo......
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...63 N.Y. 622; 21 N.W. 241; Artz v. Railroad Co., 34 Ia. 154; Gunby v. Colo. & S. R. R. Co., 235 P. 556; 78 A. 1048; 69 A. 1087; 61 A. 903; 90 N.E. 1116. The fact that the witness did not hear crossing signals will not avail, as against the positive testimony that the [149 Miss. 547] signals ......
  • Rau v. N. Pac. Ry. Co., No. 6583.
    • United States
    • Montana United States State Supreme Court of Montana
    • June 12, 1930
    ...Cas. 935;Holmes v. Pennsylvania R. Co., 74 N. J. Law, 469, 66 A. 412, 12 Ann. Cas. 1031, and note; Foley v. N. Y. Cent., etc., R. Co., 197 N. Y. 430, 90 N. E. 1117, 18 Ann. Cas. 631, and note; Keiser v. Lehigh Val. R. Co., 212 Pa. 409, 61 A. 903, 108 Am. St. Rep. 872;Anspach v. Philadelphia......
  • Request a trial to view additional results
20 cases
  • Columbus & G. Ry. Co. v. Robinson, 34134
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...v. Penn. R. Co., 25 A. 256; Lonzer v. Lehigh Valley R. R. Co., 46 A. 937; Horandt v. Central R. Co., 73 A. 93; Foley v. N.Y.C. R. Co., 90 N.E. 1116; Banister v. R. Co. (Iowa), 202 N.W. 766; Longley v. McGroch (Md.), 80 A. 844; Long v. McCabe (Wash.), 100 P. 1016; Reed v. Flynn (Ky.), 266 S.......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...the positive testimony of the host of credible witnesses that the bell did ring at the time in question. Foley v. N. Y. C. & H. R. R. Co., 197 N.Y. 430, 90 N.E. 1116, 18 Ann. Cas. 631; 10 R. C. L. 1011; 9 Encyc. Ev., pages 867, 868; 23 C. J. 42, 45; Jones on Evidence (3 Ed.), sec. 898; 2 Mo......
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...63 N.Y. 622; 21 N.W. 241; Artz v. Railroad Co., 34 Ia. 154; Gunby v. Colo. & S. R. R. Co., 235 P. 556; 78 A. 1048; 69 A. 1087; 61 A. 903; 90 N.E. 1116. The fact that the witness did not hear crossing signals will not avail, as against the positive testimony that the [149 Miss. 547] signals ......
  • Rau v. N. Pac. Ry. Co., No. 6583.
    • United States
    • Montana United States State Supreme Court of Montana
    • June 12, 1930
    ...Cas. 935;Holmes v. Pennsylvania R. Co., 74 N. J. Law, 469, 66 A. 412, 12 Ann. Cas. 1031, and note; Foley v. N. Y. Cent., etc., R. Co., 197 N. Y. 430, 90 N. E. 1117, 18 Ann. Cas. 631, and note; Keiser v. Lehigh Val. R. Co., 212 Pa. 409, 61 A. 903, 108 Am. St. Rep. 872;Anspach v. Philadelphia......
  • Request a trial to view additional results

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