Emma Corcoran, as Administratrix, etc., of Margaret Corcoran, Deceased, Appellant, v. The City of New York, Respondent

Emma Corcoran, as Administratrix, etc., of Margaret Corcoran, Deceased, Appellant, v. The City of New York, Respondent. Negligence ■&emdash;occupant of automobile killed by running over embankment at end, of a closed, city street, whei'e a bridge formerly stood, and falling upon railroad tracks &emdash; compl-iint dismissed&emdash;sufficiency of barrier and lights&emdash;presumption as to street being open. Appeal from a judgment dismissing the complaint at the close of the plaintiff’s case. [MAJORITY] Judgment affirmed, with costs. - No opinion. O’Brien, P. J., and Laughlin, J., dissenting; dissenting opinion by O'Brien, P. J. Present &emdash; O’Brien, P. J., McLaughlin, Laughlin, Clarke and Houghton, JJ. [DISSENT — O’Bimsií, P. J. (dissenting):] O’Bimsií, P. J. (dissenting): This action is brought for damages sustained by plaintiff by reason of the death of her intestate alleged to have been caused by the negligence of the defendant in not erecting a sufficient barrier across the foot of Jerome avenue at the place where the old McComb's Dam bridge formerly was and in not having that place sufficiently well lighted to give the plaintiff notice of the dangerous character of the place. The foot of Jerome avenue is a cul-de-sac by reason of the removal of the old bridge, it being necessary for one coming down Jerome avenue to take a sharp turn to the left at Ogden avenue in order to reach the new McComb’s Dam bridge; At the time of the accident that part of Jerome avenue below Ogden avenue was paved and guttered; there were trolley tracks clear to the end of the avenue and there were sidewalks. From Ogden avenue to the embankment at the end of Jerome avenue is a little over 300 feet and there is, or rather was at the time of the accident, an electric light at about half way. There seems to be, since the removal of the old bridge, no use for this cul-de-sac except that it is used as a terminal for a trolley line, There was at.the end of Jerome avenue within a few feet of the embankment an unpainted and weather-beaten picket fence and a few feet in front of this fence was a low guard rail. The new bridge is almost directly in front of one coming down Jerome avenue and is lighted at night.' The plaintiff with several others came down Jerome avenue in an automobile. They failed to take the turn at Ogden avenue and the machine crashed through the picket fence, went over the embankment ami plaintiff's intestate was thrown upon the New York Central railroad tracks and killed by a passing train. The complaint was dismissed below by Justice Truax upon the ground that there was no evidence to show that the defendant had been negligent. I think the dismissal of the complaint was error. The position of the electric light, together with the paved and guttered condition of tile street, would tend to lull the occupants of the automobile into a feeling of security and mislead them into thinking that the street was then as formerly a street approach to the bridge. Paving and electric lights are the ordinary accompaniments of an open and used street. The new bridge was directly in front of the occupants of the automobile and was lighted. All around the point of danger the land was vacant and would disclose no reason for a blind street. I think there was a question for the jury as to the negligence of the defendant in leaving the street in this condition without lighting the obstruction at the'end or drawing attention in some way to the fact that the ‘use of this street as an approach to a bridge had been discontinued. There was some evidence fending to show that the occupants of the automobile were guilty of contributory negligence, but this also, I think, was a question for the jury because it cannot be concluded as matter of law that deceased was guilty of contributory negligence especially as the deceased was not driving the automobile and no_ relationship of master and servant existed between the deceased and the driver. I dissent, therefore, from the conclusion reached by the majority of the court, thinking as I do that the judgment should be reversed and a new trial ordered. Laughlin, J., concurred.