Draper v. Interborough Rapid Transit Co.

Ingraham, J. (concurring): -

I concur, in the reversal of this judgment, because I do not think that the evidence justified a. verdict that the defendant or its employees were negligent The tunnel was not in operation except for the transportation of material used in! the construction, of the *357road. The appellant was doing work in the tunnel, was justified in making such use of it as was necessary for the proper completion of the work, and its employees had the right to assume that before any of these irregular trains were operated some notice would be given. Under such circumstances it was not negligent to place a ladder upon the track, especially where it appeared by the undisputed evidence that a red lantern Was placed at some distance from where the men were at work. I think, therefore, that a verdict against this appellant was against the weight of evidence, and for that reason the judgment should be reversed.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.