Corriera v. Third Avenue Transit Corp. , 277 A.D.2d 82 ( 1950 )


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  • Peck, P. J.

    (dissenting). It seems to me that plaintiff, riding on the back of a trolley car, was chargeable with contributory negligence as a matter of law (Jennings v. Delaney, 255 N. Y. 626). I do not regard the case of Neary v. Middlesex Transp. Co. (270 App. Div. 912, mod. 296 N. Y. 818) as overruling or departing from the Jennings case. The cases are distinguishable, as the Appellate Division in the Neary case pointed out, in that the plaintiff in that case was not in a position inherently dangerous. On the facts of the instant case, however, I think plaintiff is entitled to advance the contention that the action of defendant’s motorman was wanton or a reckless disregard for plaintiff’s safety, as to which contributory negligence would not be a defense. The judgment in my opinion should be reversed and a new trial ordered.

    Glennon, Van Voorhis and Shientag, JJ., concur in Per Curiam opinion; Peck, P. J., dissents in opinion.

    Judgment affirmed, with costs.

Document Info

Citation Numbers: 277 A.D.2d 82

Judges: Peck

Filed Date: 6/13/1950

Precedential Status: Precedential

Modified Date: 1/13/2022