
    Fred A. Potruch, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    First Department,
    March 18, 1932.
    
      
      H. S. Ogden of counsel [Alexander & Green, attorneys], for the appellant.
    
      H. H. Nordlinger of counsel [Jacob M. Dinkes with him on the brief; Nordlinger & Riegelman, attorneys], for the respondent.
   Per Curiam.

This action was brought to recover damages for

injuries claimed to have been sustained by the plaintiff in a collision between two trains operated by the defendant, on one of which plaintiff was a passenger. The complaint alleges, and the answer admits by faffing to deny, that “ solely by * * * the negligence * * * of the said defendant * * * a collision occurred between said train [the one on which the plaintiff was a passenger] and another train operated * * * by defendant * * *.” The court at Special Term by the order appealed from has directed judgment in favor of the plaintiff and ordered the case placed upon the Trial Term calendar, for an assessment of damages suffered by the plaintiff. The court, in making this disposition, wholly overlooked the issue of contributory negligence and the question whether plaintiff sustained any damage. The admission contained in the pleadings was limited to the defendant’s negligence. There was no admission relieving the plaintiff from the obligation to establish his own freedom from contributory negligence, and no admission which would deprive ‘the defendant of the privilege of offering proof on such issue. In an action for negligence the burden is always upon the plaintiff to establish that he did not cause or contribute to the injury. (Lee v. Troy Citizens’ Gas-Light Co., 98 N. Y. 115.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Finch, P. J., McAvoy, Martin, O’Malley and Townley, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  