Kipp v. New York Central & Hudson Railroad

Hirscbherg, J. (dissenting):

I dissent. I think the language tif the learned trial justice could liardly be misconstrued by the jury, viz., that the defendant would be equally liable for the obstruction, if there be an obstruction, whether there was negligence in the actual work of constructing the bridge or whether the bridge was constructed with care. As the gist o'f the suit was for the obstruction of the stream on the ground that the openings in the bridge were not large enough to allow the . free flow, it could make no difference whether the openings were made small with care or otherwise. In either case it would be negligence in a legal sense.

Judgment and order reversed and new trial granted, costs to •abide the event.