182 A.D. 528 | N.Y. App. Div. | 1918
The plaintiff, driving an automobile laden with milk in cans, collided with defendant’s train at Tidd’s Crossing. The young woman sitting at his right was killed, and for his injuries he received a verdict of $5,000, which the court set aside and thereupon dismissed the complaint, upon the ground, I assume, that plaintiff’s negligence contributed to the injury. The double tracks ran somewhat diagonally across the highway, and as plaintiff, from the south, approached the east-bound track on a road upgrade to within some ten feet of it, his view to the west, whence the train came, was somewhat obscured, or, as plaintiff stated, practically obstructed. The plaintiff testified to a rather absorbed looking alternately towards the west and east for several hundred feet from the track. Such search on the part of one very familiar with the road and its environment may suggest improbable anxiety. But it is not necessary to examine critically what he did until he was within some forty-five feet of the first rail of the eastbound track. He testified that about thirty-five or forty feet from it he stopped his car and looked in each direction and listened, and started forward only after discovering no evidences of an approaching train. Accepting his statement that his car was thirty-five feet from the track, and that he was four feet from the front of his car, his position was thirty-nine feet from the track. From the position where his car was at rest he estimates that he could see to the west two rods, and from that point, proceeding at a speed of about five miles per hour, he continued until the front wheels of the car had crossed the first rail, when the car, but not its engine, stopped,
The judgment and order should be affirmed, with costs.
Present — Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ.
Judgment and order unanimously affirmed, with costs.