Gordon v. Ellenville & Kingston Railroad , 104 N.Y.S. 702 ( 1907 )

Smith, P. J.

(concurring):

I concur in the,conclusion reached by Mr. Justice Sewell and in his opinion, and wish simply to add that the appellant cannot claim upon this appeal that negligence was shown because of the position taken by him-upon the trial. There was apparently no claim upon his part that he had proven "negligence.' His position was that the defendant was liable without proof of negligence. This would appear at the close of the plaintiff’s case where the defendant moved for a nonsuit upon the "ground, among others, that there had been ho negligence shown and no evidence of negligence. The plaintiff’s counsel then stated: “ I oppose this as it is not a question of negligence, it is a, question for trespass.” After this declaration the defendant was not called upon to disprove negligence and might assume that no liability was claimed by reason of any negligence upon its part in the construction of its road, or in providing for the. flow of the stream.