45 N.Y.S. 147 | N.Y. App. Div. | 1897
This action was brought to recover damages for negligently causing the death of the plaintiff’s wife. On the night of the 8th of May, 1895, the plañí tiff’s intestate, Mrs. Hennessy, aged sixty-five years, in good health, left her house on the south side of Fourth street, 250 feet east of defendant’s railroad in the village of Watkins, to go to a grocery store upon the northerly side of the same street, about the same distance west of the railroad. The defendant’s railroad mosses Fourth street at about right angles; the street is sixty-six feet wide and runs about east and west, and the railroad north and south. There are three tracks at the crossing, the main track upon the west, a siding eight or nine feet" east of it, and a switch track about four feet east of the siding, the latter diverging to the east so as to be twenty-four feet from the siding on the north side of f the street. The main track and the switch track curve sharply toward the west, north of the street. Mrs. Hennessy approached the crossing upon the south side of the street, and waited there as a freight train passed north on the siding east of the main track and as a pusher engine followed it on the same track, i As the freight train and pusher had passed she was seen, going further west, but was not further seen alive. . Just after the freight train and pusher engine behind it had passed north, and as the rear end of the pusher engine stood still, either upon or just north of the north cross or sidewalk of Fourth street, the passenger train due at that time passed south on the main track going from eight to ten miles an hour. Mrs. Hennessy was afterwards found dead twenty-five feet south of the south side of Front street near the main track. No one saw the train strike her. The fair inference from the facts is, that after the pusher engme following the freight train had passed north, she walked upon the south side of the street over the switch and side tracks upon the main track, and was there struck and killed by the passenger train.
There is no direct evidence that she looked or listened for an a])proaching train before she stepped upon the main track, and we must have recourse to whatever circumstances throw light upon the
We, therefore, without being brought' to the consideration of the evidence adduced in support of the charge of negligence against the defendant, must reverse the judgment.
All' concurred.
Judgment and order reversed and a néw trial granted, costs to abide the - event. ■