
    Luella Swartwood, as Administratrix of the Estate of Harleigh Swartwood, Deceased, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    (Argued May 21, 1917;
    decided June 5, 1917.)
    
      Swartwood v. Lehigh Valley R. R. Co., 169 App. Div. 769, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 27, 1915, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action under the Federal Employers’ Liability Act to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant, his employer. Plaintiff’s intestate, a freight conductor, was called upon to take out a train. He took charge of it, checked up the cars upon his train-book and the train pulled out. Subsequently he was missed and his body was discovered near the starting point of the train upon one of the sidings used in shifting cars in making up trains. The circumstantial evidence pointed to the fact that he had been struck while between the rails of this siding by cars which were being “kicked” in upon such siding in the regular course of making up the • outgoing trains. There was an entirely safe point outside of these particular tracks on either side of the same. The Appellate Division reversed upon the ground that to charge defendant with responsibility for the accident would require indulgence in speculation rather than in established facts or legitimate inferences.
    
      Charles C. Annabel and James O. Sebring for appellant.
    
      Riley H. Heath for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Collin, Cuddeback, Hogan, Cardozo, McLaughlin and Andrews, JJ.  