Polk v. New York Cent. R. Co.
| Decision Date | 29 March 1960 |
| Citation | 10 A.D.2d 703,198 N.Y.S.2d 84 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Henry C. POLK, as Administrator of the Goods, Chattels and Credits of Henry C. Polk, Jr., Deceased, William Taylor, an infant, by his Guardian ad Litem, William H. Taylor and William H. Taylor, individually, Plaintiffs-Respondents, v. NEW YORK CENTRAL RAILROAD COMPANY and The New York, New Haven & Hartford Railroad Company, Defendants-Appellants. |
J. D. Fuchsberg, New York City, for plaintiffs-respondents.
J. H. Shapiro, R. M. Peet, New York City, for defendants-appellants.
Before RABIN, J. P., and M. M. FRANK, VALENTE, McNALLY and STEVENS, JJ.
Judgment unanimously reversed, on the law and on the facts, and the complaints dismissed with costs to defendants. In this consolidated action a jury has rendered a verdict in favor of the plaintiffs for the wrongful death of an infant, Henry C. Polk, Jr., and for personal injuries sustained by, and for the loss of services of, the infant William Taylor. The accident occurred on May 25, 1954, at about 5:00 p. m. on the tracks of the New York Central Railroad Company about 350 feet south of the Morrisania Station located at Park Avenue and East 168th Street, Bronx County. Just prior to the accident, Central's train was proceeding north and a New Haven train was proceeding south on an adjacent track. The distance between the two tracks is about six feet and, in that space, there is a third rail for power purposes. In all there are four tracks in the area, one on each side of the two tracks on which the trains were operating at the time of the occurrence. All of the tracks are in a cut with an 18 foot retaining wall on each side. It appears also that a number of boys were on the tracks before the accident happened. The Central engineer placed the number at three, four or more boys while the New Haven engineer estimated the number at six or seven. The other boys, apart from Polk and Taylor, evidently moved out of the area of danger as the trains approached. The case was submitted to the jury under the doctrine of last clear chance. The Trial Judge correctly charged the jury that the boys were trespassers and were guilty of contributory negligence. Of course, the doctrine of last clear chance does not come into operation unless there is contributory negligence (Lee v. Pennsylvania R. R. Co., 269 N.Y. 53, 55, 198 N.E. 629, 630). But as pointed out in Kumkumian v. City of New York, 305 N.Y....
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