33 N.Y.S. 952 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment for the defendant, entered on a nonsuit at circuit. The action is to recover damages for causing the death of plaintiff’s testator. The facts attendant on the accident are within a very brief compass. The station of the West Shore Railroad at Haverstraw lies to the east of the road, which there runs north and south. At the station are three tracks. The easterly track, and one nearest the station, is a siding; the next is the north-bound track; and the third, and most westerly, is the south-bound track. At a distance of 139 feet to the north of the station is the road crossing at which the deceased was struck. The siding to the north of the crossing was occupied by freight cars. Except as obstructed by the cars, the view to the north along the track was clear for over 2,000 feet. The plaintiff and her husband and testator were residents of Haverstraw, and familiar with the crossing. On the day of the accident they came from the city to Haverstraw, arriving there about 5 o’clock in the afternoon. They alighted from the cars at the station, and walked north to the road crossing. The train on which they had traveled was at this time passing the crossing. They waited for the train to clear the crossing. After the train had passed, they started to cross the tracks. When they arrived at the westerly track, or close to it, the deceased was struck by the engine of a south-bound train, and received injuries from which he died. The plaintiff testified that before starting to cross any of the tracks they looked to the north, and saw no train approaching, the view in this direction being obstructed by the standing freight cars; and that they did not discover the south-bound train until it was upon them. That the view to the north of a person close to the track would be obstructed by the freight cars is unquestionable. It would be also obstructed by the north-bound train till that had passed out of sight. How far that train had passed beyond the crossing when the plaintiff and her husband started to cross the tracks the plaintiff cannot say. The question of the contributory negligence of the deceased presented by this evidence is a narrow one,—was the deceased, as a matter of law, on arriving at the north-bound track, bound to await the movement of the train on that track sufficiently far to the north to give a view of the further track, so that he might discover whether any train was approaching on that track?» It is plain that if he had taken this precaution he would have avoided the injury, for when he reached the first of the main tracks the freight cars no longer interfered with his view. This questipn seems settled by the later decisions of the