McIvor v. New York, New Haven & Hartford Railroad , 10 A.D.2d 961 ( 1960 )

In an action by an infant to recover damages for personal injuries and by his father for loss of services and medical expenses, the defendant appeals from a judgment of the City Court of Mount Vernon, entered January 19, 1959 on a jury’s verdict in favor of the infant plaintiff. It appears that the infant was injured when he fell from the bottom step of a railroad car upon which he was standing as the train was pulling into a station. The testimony is that the infant was pushed off the step by his fellow high-school students who were anxious to get to a waiting school bus. The complaint alleges that defendant’s negligence consisted of permitting its train to become, and to remain, dangerously overcrowded. The evidence establishes that toe infant could have remained in a safe place and that the alleged crowd did not force him to take a position on the bottom step of the railroad car. Judgment reversed on the law and the facts, with costs, and complaint dismissed. The evidence is insufficient to support a finding that the injury was caused by defendant’s negligence, or that the crowd was so large and unmanaged that the infant was restricted and unable to protec1 himself. (Cross v. Murray, 260 App. Div. 1030; Hanshew v. Lehigh Val. R. R. Co., 247 App. Div. 784; Commerford v. Interborough R. T. Co., 199 App. Div. 852.) Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.