83 N.Y.S. 827 | N.Y. App. Div. | 1903
The plaintiff’s husband, James Westervelt, while endeavoring to cross defendant’s railroad at Yonkers, on the morning of Sunday, May 4, 1902, was struck by one of the defendant’s trains running south, and almost instantly killed. This action was brought under the statute to recover damages for wrongfully causing his death. At the close of the evidence for the plaintiff a motion to dismiss the complaint was denied and the defendant rested without putting in any proof. The motion to dismiss was then renewed, and a motion was also made to direct a verdict for the defendant. The decision of these motions was reserved until after the verdict, and the jury found for the plaintiff, awarding her damages in the sum of $5,000. The learned trial judge subsequently set aside the verdict, stating that he did so not on the facts but. solely on the ground that the defendant was entitled to have a verdict rendered in its favor at the close of the evidence. There is a short opinion in the record, but it does not disclose what particular reasons influenced the court in thus setting aside the verdict.
Upon the present appeal the learned counsel for the respondent argues in support of the action of the court below that there, was
It thus appears that the deceased was warned by the flagman on duty not to attempt to cross further when he was upon the second track, but that he continued on his way notwithstanding the warning and crossed the third track and even got over the fourth track upon which the approaching train was coming before he was struck. The testimony of Larkin indicates that he may have supposed that he was sufficiently far across to avoid contact with the train when he turned around and was hit. I do not see how we can very well avoid the conclusion that he was guilty of contributory negligence under the circumstances disclosed by this testimony. The proof shows that from the time when he first got within the gates on the east side of the railroad he could have seen a train approaching from the north when it was about a quarter of a mile distant if he had looked in that direction. It is true there is evidence'that some cars were standing upon the tracks in a position where they would have hidden an approaching train from view at some points in his progress westerly across the railroad, but the deceased was chargeable with knowledge of the fact that the presence of these cars would thus obstruct his vision, and his conduct must be judged accordingly. The circumstances are quite different from those presented in Noble v. N. Y. C. & H. R. R. R Co. (20 App. Div. 40 ; affd., 161 N. Y. 620), where the approach of the train was in fact concealed by intervening cars, but the presence of those cars was also concealed from the deceased by a heavy fog.
I think the proof on the subject of contributory negligence justified the disposition of the case which was made by the court below and that the judgment and order should, therefore, be affirmed.
Present — Goodrich, P. J., Bartlett,. Jenks and Hooker, JJ.
Judgment and order una-mmously affirmed, with costs.