Barthel v. International Railway Co.

Judgment and order affirmed, with costs. All concurred, except Lambert, J., who dissented in a memorandum.

For the present I dissent. We may assume that the contributory negligence of the intestate was a question of fact. But I can see no basis for a finding of defendant’s negligence. Upon the facts proven, the failure to stop the ear was not the proximate cause of the accident. The speed of the car did not increase its overhang and whether it was running slow or fast her position was equally dangerous. It does not appear that she changed her position by reason of the manner in which the car was operated. Negligence cannot be found, except upon the inference that she was led to assume a more dangerous position. That fact not being proven, and not being a necessary inference from the facts established, it cannot be indulged in to sustain this recovery.