205 A.D. 157 | N.Y. App. Div. | 1923
An appeal involving injuries arising out of this accident was before this court at a previous term. (Baesens v. New York Central Railroad Company, 201 App. Div. 191.) While the judgment given plaintiff was reversed we found affirmatively that upon the question of defendant’s negligence it was properly sent to the jury. Upon the trial of this case the plaintiff made out a stronger case. We have left the question of plaintiff’s contributory negligence. At the crossing where the accident occurred the railroad runs east and west and the highway crosses it at grade, running north and south. It was on the 16th day of January, 1921, at seven-thirty-four p. m. The plaintiff was in a touring car with curtains down, and sat on the right-hand side in the back seat. The curtains had isinglass windows in each about three inches by twelve inches. The auto was one that he had hired. A chauffeur of the man from whom he hired the car was sitting in the front seat driving. He was going in a southerly direction. The auto collided with a passenger train going west at sixty miles an hour. Plaintiff was a passenger in the automobile. There is no evidence that the chauffeur was incompetent or that plaintiff could, in any way, interfere with his operation of the car. The rule applicable here is different from that which would prevail if the driver were the plaintiff. The trial court charged the jury properly when he said that the negligence of the driver was not imputable to the plaintiff;
The judgment should be affirmed, with costs.
Present — H. T. Kellogg, Acting P. J., Kiley, Van Kirk, Hinman and Hasbrouck, JJ.
Judgment and order unanimously affirmed, with costs.
