Colombo v. New York Central Railroad , 234 A.D. 820 ( 1931 )

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event, upon the grounds: 1. That the finding of negligence on the part of the defendant based upon the lowering of the gate and striking the deceased with the arm is against the weight of the evidence. 2. That the mere fact that the gate struck the deceased, which is all that appears in this record in that respect, is not a sufficient basis for a finding of negligence. 3. That the evidence is not sufficient to make a prima facie case in reference to the negligence of the employees of the defendant who were operating the train. All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.