Barry v. Rutland Railroad

Headnote

Negligence — railroads — wagon struck by train, at railroad crossing — contributory negligence.

Barry v. Rutland Railroad Co., 203 App. Div. 287 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 24, 1922, affirming a judgment in favor of defendant entered upon an order of the Trial Term setting aside a verdict in favor of plaintiff 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 negligence of defendant. On the morning of July 8, 1921, at about eight-forty-five

a. m., intestate was proceeding westerly along a highway which ran parallel with the Rutland railroad, and about sixty-six feet southerly therefrom, for a distance of upwards of a quarter of a mile. He was riding on the seat of an open milk wagon drawn by a horse which he was driving. Forty-four and one-half feet southerly from the crossing upon which the accident occurred, the road upon which he was traveling runs into another road running from the south to the north and over the crossing. At this corner he turned to the right and proceeded toward the crossing, where the wagon was struck by one of defendant’s trains and intestate was killed. The complaint was dismissed on the ground that plaintiff was guilty of contributory negligence as matter of law.