172 N.E. 272 | NY | 1930
This is an action for causing death by negligence at a railroad crossing. Deceased, traveling on the highway, approached the crossing in a Chevrolet automobile at a slow rate of speed, and drove onto the tracks without looking in either direction. Taking the credible evidence most favorable to plaintiff, deceased could not, within the range of safety, have an unobstructed view of the tracks for any considerable distance to the east until he came within twelve to fifteen feet of the rails when he would have to look over his shoulder to see them. He was struck by a west-bound train which gave no signal warning of its coming. The complaint has been dismissed on the ground that deceased was guilty of contributory negligence as matter of law.
The burden of proof of contributory negligence in death cases is and has been since September 1, 1913 (Sackheim v.Pigueron,
As a person approaches a railroad crossing in a vehicle he must reduce his speed to a limit which is reasonably safe under the circumstances and conditions and then proceed cautiously and carefully with the vehicle under complete control; and he mustemploy his senses of hearing and sight to avoid danger.
(Horton v. N.Y.C.R.R. *151 Co.,
Each case is governed by its own conditions and circumstances. No two crossing accidents are identical. In the ChamberlainCase (supra) the driver was unfamiliar with the crossing and the angle of approach on the highway made it difficult for him to look for trains in both directions on two double-tracked roads. He was held only to the duty of doing the best he could and he was looking and listening. In other cases, deceased looked as best he could and could see but a short distance. (Horton v.N.Y.C.R.R. Co., supra.) No change in the law was made but well-understood principles were applied in these cases.
This court has never adopted or been influenced by the "stop, look and listen" rule which was carried to such an extreme in B. O.R.R. Co. v. Goodman (
Deceased plainly took no precautions adequate for his protection at the crossing where he was struck.
The judgment should be affirmed, with costs.
CARDOZO, Ch. J., POUND, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; CRANE and HUBBS, JJ., dissent.
Judgment affirmed.