Mishkin v. Pennsylvania Railroad

The parties having stipulated in writing that this case may be decided by a court of four justices, the decision is as follows: Judgment dismissing complaint on the opening reversed upon the law and the facts and new trial granted, costs to abide the event. It was stated upon the opening that the missile is in defendant’s possession and that the window opened through defendant’s negligence. It may appear that che missile was defendant’s property and that its negligence was the proximate cause of plaintiff’s injury. In such circumstance we believe it cannot be said as matter of law that plaintiff has no cause of action. We are of opinion that, in the interests of justice, all the facts in this case should be adduced from witnesses. Young, Rich, Kapper and Lazansky, JJ., concur.