Lo Casto v. Long Island Rail Road , 181 N.Y.S.2d 121 ( 1958 )

In an action by an infant to recover damages for personal injuries and by his father to recover incidental damages for medical expenses and loss of services, the appeal is (1) from a judgment entered on a jury verdict in their favor and (2) from an order denying motions to dismiss the complaint, for a directed verdict, and to set aside the verdict and for a new trial. Judgment reversed on the law, without costs, and complaint dismissed. The findings of fact are affirmed. The infant was a trespasser who was injured when he slipped and fell from a moving freight car. There was no affirmative act of negligence on the part of the appellant which caused the injury (Ralff v. Long Is. R. R. Co., 266 App. Div. 794, affd. 292 N. Y. 656; Nilsen v. Long Is. R. R. Co., 268 App. Div. 782, affd. 295 N. Y. 721; Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Van Houten v. New York, New Haven & Hartford R. R. Co., 286 App. Div. 875; Scholl v. New York Cent. R. R. Co., 2 A D 2d 989, affd. 3 N Y 2d 989). Appeal from order dismissed, without costs, as academic. Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.