
    Philomena Gentile, an Infant, by Nicholas Gentile, Her Guardian ad Litem, Respondent, v. Boston and Maine Railroad, Appellant.
    
    
      
       Affd., 249 N. Y. 587.
    
   Van Kirk, P. J. (dissenting).

The judgment should be reversed and a new trial granted. There is not evidence to support a finding by the jury that defendant was negligent. Under the circumstances existing no reasonable person would have foreseen that such an accident would or might happen to a passerby on the street; to fail to foresee and guard against such an accident is not negligence. This was one of the class of unavoidable accidents. The judgment should not be affirmed on the theory of trespass. (See Sullivan v. Dunham, 161 N. Y. 290.) The complaint states a cause of action in negligence only and the case was tried as such. The court refused plaintiff’s request that the case be submitted to the jury as in trespass. Hinman, J., concurs.  