Mary McKeever, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent

Mary McKeever, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. (Argued February 6, 1882; decided April 11, 1882.) This was an action to recover damages for alleged negligence causing the death of plaintiff’s intestate, who was killed at a highway crossing. The alleged negligence was the omission to ring a bell or sound a whistle on the engine which struck the deceased. The plaintiff was nonsuited on the authority of Galha/ne v. W. T. G. da U. R. R. R. Go. (60 N. Y. 133). The court here agreed as to the rule laid down in that case, i. e., that as against positive affirmative evidence by credible witnesses, to the ringing of a- bell or sounding of a whistle, there must be something more than tíie testimony of one or more witnesses that they did not hear it, to authorize the submission of that question to the jury. The disagreement was as to the facts, the majority holding that the evidence of plaintiff’s witnesses simply amounted to statements that they did not hear, without having their attention called, at the time, to the fact; while on the other side were four witnesses who swore positively to the ringing of the bell. The judges dissenting held that the evidence of some of plaintiff’s witnesses showed that their (attention was called, at the time, to the fact of the non-ringing of the bell; and that the witnesses for defendant, all being its employes, two of whom were guilty of the negligence, if it existed, could not be pronounced, as a matter of law, credible, but it was a question for the jury. Francis C. Devlin for appellant. Frank Loomis for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for affirmance; Sapallo, Miller and Earl, JJ., concur; Danforts, J., reads for reversal, Andrews, Oh. J., and Traoy, J., concur. Judgment affirmed.