Ellers v. Erie Railroad

Headnote

Ellers v. Erie R. R. Co., 178 App. Div. 298 , affirmed.

Appeal from a judgment entered May 15, 1917, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the

death of plaintiff’s intestate alleged to have been occasioned through the alleged negligence of defendant. The intestate, an intending passenger by one of defendant’s local trains, in crossing the tracks to reach the station was struck by an express train, which was late and running on the time of the local, and received the injuries causing his death. It was shown that the whistle of the express train sounded one long blast as it approached the station such as was given by the local train. Plaintiff contended that this deceived the intestate into believing that the approaching train was the local which would have stopped at the station. The Appellate Division held that intestate was guilty of contributory negligence and that in any event the plaintiff had failed to make out a case of actionable negligence; that there is no rule of law that requires a railroad company to give a peculiar warning whistle or signal to apprise the public as to the character of the train, it being enough if it gives a sufficient and timely warning signal of its approach.