23 N.Y.S. 193 | N.Y. Sup. Ct. | 1893
On the 28th of June, 1891, John H. Austin, the husband of the plaintiff, was killed by a train upon the defendant’s railroad. The accident happened about midday, and near Woodhaven Junction, in Queens county. The- deceased was on a street called “Ocean Avenue,” but which appears not to be a public highway, but one commonly used by pedestrians as a place of crossing the tracks of the Long Island Railroad Company. The train Which struck the deceased comes from the east. It was proven that, when the deceased and his companions got within about 50 feet of the crossing, he looked east. They saw nothing; but, in point of fact, there was a train coming east, which was hidden by a signboard, with two sides at right angles, each arm being about 12 or 13 feet long. This sign hid from view about 850 feet of the defendant’s track, giving only about 125 feet actual view of the track west of the signboard. The deceased started rapidly to cross the road of the defendant, and was hit and killed. While it was a question upon the trial whether the bell and whistle were sounded on approaching Ocean avenue, it was found by the jury that no alarm was given. Without the signboard, an unobstructed view of about a mile would have been given eastward from Ocean avenue. This proof was sufficient proof of negligence to go to the jury. The signboard was on defendant’s right of way, and it was so placed that a traveler across the avenue could infer from the view of the track that he had a mile in which to go 50 feet, while, in point of fact, he might have but a little over 100 feet. The proof established that the westward view was obstructed, calling for vigilant attention upon the part of deceased to avoid danger from that quarter; that he had protected himself from the east by a view which did not- protect him, by reason of defendant’s signboard. Whether the deceased looked at the right moment exactly, and in the right direction successively, is a question of fact. Greany v. Railroad
