Haynes v. Long Island Railroad , 52 A.D.2d 589 ( 1976 )

In an action to recover damages for wrongful death, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered March 17, 1975, in favor of defendant, upon the trial court’s dismissal of the complaint at the close of plaintiffs’ case, at a jury trial. Judgment affirmed, without costs or disbursements. The record on this appeal reveals that, on January 26, 1970, plaintiffs’ intestate, a motorman for the New York City Transit Authority, was found sprawled near the Long Island Railroad tracks, with fatal injuries, which were presumably sustained in a fall. It can be deduced from the testimony that he left his train, which was located on the elevated tracks directly above the Long Island Railroad tracks, in order to locate or retrieve a brake handle which he had dropped. There were no eyewitnesses to the occurrence. The record reveals insufficient evidence of defendant’s negligence to make out a prima facie case. Accordingly, the complaint was properly dismissed. Cohalan, Acting P. J., Margett, Damiani, Rabin and Titone, JJ., concur.