
    Paolo Sacco, as Administrator of the Estate of Luigi Sacco, Deceased, Appellant, v. Delaware and Hudson Company, Respondent.
    
      Negligence — master and servant — railroads — trackman struck by train while in performance of his duties.
    
    
      Sacco v. D. & H. Co., 213 App. Div. 471, affirmed.
    (Argued October 20, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 14, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term 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 defendant, his employer. The complaint alleged that while plaintiff’s intestate was engaged in the performance of his duties as a track, hand and was picking up tools which had been left upon the tracks by defendant’s section gang near Unadilla, he was struck without warning by one of defendant’s southbound milk trains proceeding at an excessive rate of: speed and received injuries which resulted in his death. The answer was a general denial and alleged contributory negligence.
    
      Walter A. Fullerton for appellant.
    
      Lewis E. Carr and N. P. Willis, for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: McLaughlin, Crane, Andrews and Lehman, JJ. Dissenting: Hiscock, Ch. J., Cardozo and Pound, JJ.  