Enders v. Brooklyn Union Elevated Railroad — 131 A.D. 170

Majority

p. 170

Hugo Enders, Respondent, v. Brooklyn Union Elevated Railroad Company, Appellant.

Second Department,

March 5, 1909.

Headnote

Railroad — negligence — collision at grade crossing contributory . negligence.

A plaintiff whose vehicle was struck by a train while attempting to drive over a grade crossing is under the burden of showing due.care on his part. Proof that he stopped, iñ the middle of the block before reaching the tracks and

p. 171

looked and listened is insufficient. I£ the view of the track was obscured by buildings at some places, he was required to exercise more than usual care by looking at other places.

Appeal by the defendant, the Brooklyn Union Elevated Railroad Company, from a judgment of the Municipal Court of the city of Rew York in favor of the plaintiff, rendered on the 26th day of June, 1908, in an action to recover damages for negligently injuring the plaintiff and his property.

Francis R. Stoddard, Jr., for the appellant.

Harry C. Underhill, for the respondent.

The defendant’s tracks cross Prospect street in the borough of Queens at grade. The plaintiff was driving a horse, hitched to a covered milk wagon, along Prospect street, and, on attempting to cross said tracks, was struck by one. of the defendant’s trains consisting of a motor and three or four passenger cars. The horse was killed. The plaintiff testified that he stopped in the middle of the block before reaching the defendant’s tracks and looked and listened for a train. Rot hearing or seeing anything he then proceeded to drive on a walk to where the accident occurred, without, so far as appears, paying any further heed to discover the approach of a train. There is evidence tending to show that' no signal was given of the approach of the train, and-that at some places the plaintiff’s view of the track in the direction fi’om which the train came was obstructed by buildings, but it does not appear precisely where arid to what extent the view was thus obstructed, nor does it appear whether it was obstructed at the place where the plaintiff says he stopped' and looked.

The burden was on the plaintiff affirmatively to show the exercise of due care on his own part. Proof that he looked in the middle of the block before reaching the crossing, and then proceeded without taking further heed fails to satisfy this rule: If the view of the track was obscured at some places he was required to exercise greater care to see at other places. If the view was obscured at all points, he had to listen more intently. It does not suffice that

p. 172

the plaintiff looked and listened at; a given point.. He should have looked to see. The plaintiff was familiar with that crossing. ,

The judgment is reversed.'

'Woodward, ¿Tenes, Ga.ynok and Rich, JJL, concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.