Kelly v. Long Island Railroad

-Judgment and order reversed upon the law and the facts, and new trial granted, costs to appellant to abide the event. We are of opinion that the learned trial court erred in charging the jury that the order of the Public Service Commission, plaintiff’s Exhibit 2, did not require the defendant railroad company to have a guard stationed between each two adjoining cars of the train, and in refusing to allow the jury, in reaching their verdict, to consider the absence of a guard. Whether or not the absence of a guard in the circumstances was a proximate cause of the accident was a question of fact. We also reach the conclusion that it was error for the court to charge the jury that the order of the Public Service Commission stated that “ there was no duty imposed upon the railroad company to have a guard there, or to have the trap door down.” Such construction of the order was prejudicial to the plaintiff, for, under the charge as made, the jury were prevented from considering, as evidence of negligence, any violation of the order. Kelly, P. J., Manning, Young, Kapper and Hagarty, JJ., concur.