Anna M. Brick, as Administratrix, etc., of Thomas Brick, Deceased, Appellant, v. Long Island Railroad Company, Respondent

Anna M. Brick, as Administratrix, etc., of Thomas Brick, Deceased, Appellant, v. Long Island Railroad Company, Respondent. [MAJORITY] Judgment reversed upon the law, and a new trial granted, with costs to appellant to abide the event. The trial justice was not warranted in dismissing the complaint. There were facts and circumstances presented from which it might be fairly inferred that decedent was precipitated from the upper deck of the tug, when the tug lurched in rounding a light, and that the absence of a rail was a proximate cause of decedent’s being thrown overboard. Rich, Young and Lazansky, JJ., concur; Kelly, P. J., and Maiming, J., dissent, and vote to affirm. Aside from lack of evidence as to how the decedent met his death, we think that the absence of a rail completely encircling the so-called upper deck, which was really the roof of the deck-house, would not justify a finding of negligence on the part of the defendant.