
    James M. Hyde, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.
    
      Hyde v. N. Y. C. & H. R. R. R. Co., 173 App. Div. 990, affirmed.
    (Argued January 10, 1919;
    decided January 28, 1919.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 22, 1916, unanimously affirming a judgment in favor of defendant entered upon a verdict in an action to . recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while walking on one of defendant’s tracks in the village of Chatham was struck by one of defendant’s engines and received the injuries complained of. The complaint alleged that the engine passing easterly on the west-bound track was proceeding without the blowing of the whistle, ringing of the bell, or giving the least warning of its approach, although the plaintiff could have been seen and was seen by the defendant’s servants, but the said servants recklessly, willfully, negligently and carelessly ran upon the plaintiff, without any negligence or carelessness on his part, and that he was rightfully at the place where he was struck and received his injuries. The issue submitted to the jury by the trial justice was, whether the servants of the defendant, in reckless disregard of the rights of the plaintiff, had operated the train so as to cause the accident to the plaintiff.
    
      Leonard F. Fish and Thomas J. 0’ Neill for appellant.
    
      William L. Visscher for respondent.
   Judgment affirmed, with costs, under the provisions of section 1317 of the Code of Civil Procedure; no opinion.

Concur: Hiscock, Ch. J., Chase, Cuddeback, Cardozo, Pound, McLaughlin and Andrews, JJ.  