Roberts v. Rutland Railroad

249 A.D. 905 | N.Y. App. Div. | 1937

Defendant has appealed from judgments in favor of the administrator of Virginia Roberts and the coplaintiffs except Joseph L. Roberts. Joseph L. Roberts and the coplaintiff Bertha Roberts are husband and wife. They are the parents of the other plaintiffs and were also the parents of the deceased daughter, Virginia. On the morning of April 16, 1933, Joseph L. Roberts was operating his car, which was equipped with two-wheel brakes, in which the other members of his family were riding westerly from Pittsfield to Albany over a concrete highway eighteen feet wide. That highway is crossed at grade at Brainard by defendant’s railroad, which runs substantially in a northerly and southerly direction. As the car approached the railroad rain was falling. The windows of the car, with the exception of the one on the left of the driver, were closed. There is evidence from which the jury might have found that on the trip from Pittsfield the automobile was being operated at between thirty and thirty-five miles per hour. When at a distance of about 325 feet east of the crossing the driver observed a diamond-shaped warning signal, and he then knew he was approaching a railroad crossing. He stated that he then slowed his ear down to about twenty to twenty-five miles an hour, and that he continued at that speed and looked and listened for signals of an approaching train. He testified he did not know that a train was approaching until he was forty feet from the tracks. There was proof that the mechanical warning signals were working and that the locomotive bell was ringing. When the driver saw the train he applied his brake and turned his car to the left. He then observed a ditch on that side and swung the car back to his right. The car then skidded and stalled within a foot of the east rail in a diagonal position. The front right pilot beam of the locomotive struck the rear left side of the car and injured the occupants. The daughter, Virginia, died as the result of her injuries. Plaintiffs brought actions to recover damages, charging defendant with negligence. In the case of the operator of the car the jury returned a verdict of no cause. Favorable verdicts were rendered in favor of the other plaintiffs. Judgments and orders reversed on the facts, with one bill of costs to the appellant to abide the event, and new trial granted, upon the ground that the verdicts are against the weight of evidence. Rhodes, Crapser and Bliss, JJ., concur; Hill, P. J., and Heffernan, J., dissent, upon the ground that disinterested witnesses testified that no signals were given.