Guido v. Delaware, Lackawanna & Western R. Co.
| Decision Date | 25 June 1958 |
| Citation | 177 N.Y.S.2d 503,4 N.Y.2d 981,152 N.E.2d 527 |
| Parties | , 152 N.E.2d 527 Patrick GUIDO, Plaintiff-Respondent, v. THE DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY, Defendant-Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Fourth Department, 5 A.D.2d 754, 168 N.Y.S.2d 517.
Motorist brought action against railroad for damages sustained when motorist's station wagon was struck by train at crossing.
The Oswego Trial Term, Henry A. Hudson, J., 8 Misc.2d 168, 165 N.Y.S.2d 373, entered judgment for railroad for no cause of action on a directed verdict after setting aside verdict in favor of the motorist, and the motorist appealed.
The Appellate Division, 5 A.D.2d 754, 168 N.Y.S.2d 517, reversed the judgment and order on the law and the facts, reinstated verdict, and held that where trial court dismissed the complaint without specifically passing on motion for new trial, Appellate Division could pass on the weight of the evidence and reinstate the verdict, if Appellate Division should find that the verdict was not against the weight of the evidence.
The Appellate Division, 5 A.D.2d 803, 170 N.Y.S.2d 48, modified its prior order nunc pro tunc so as to indicate that the Appellate Division had in fact passed on alleged errors raised by railroad in its motion.
The railroad appealed to the Court of Appeals, contending that motorist failed to sustain his burden of proof that he was free of negligence contributing to the accident, and that errors prejudicial to the railroad were committed.
Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse (Raymond W. Hackbarth, Syracuse, of counsel, on the brief), for defendant-appellant.
Richard C. Mitchell, Oswego, for plaintiff-respondent.
Judgment affirmed, with costs.
All concur.
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Shoifet v. NEW YORK CENTRAL RAILROAD COMPANY
...the New York attitude on this subject and we cite only a few more as further illustrations. Guido v. Delaware, Lackawanna & Western R. Co., 1958, 4 N.Y.2d 981, 177 N.Y.S.2d 503, 152 N.E.2d 527; Cabri v. Long Island R. Co., 1954, 306 N.Y. 765, 118 N.E.2d 475; Latourelle v. New York Central R......
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