MacCormick v. New York, Westchester & Boston Railway Co.

Majority

p. 603

Hannah MacCormick, as Administratrix of the Estate of Gerard MacCormick, Deceased, Respondent, v. New York, Westchester and Boston Railway Company, Appellant, Impleaded with Another.

Headnote

Negligence — railroads — when person killed while crossing railroad tracks guilty of contributory negligence as matter of law.

MacCormick v. N. Y., N. H. & Hartford R. R. Co., 209 App. Div. 821 , reversed.

(Argued December 11, 1924;

decided December 19, 1924.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 6,- 1924, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, while crossing defendant’s tracks on foot was struck by one of its trains and killed. The evidence showed that he waited until a freight train passed and then proceeded to cross the next track when he was struck by a passenger train travelling in the opposite direction to the freight. It was claimed that he looked in the direction from which the train approached, having a clear view of not less than. 300 feet and that no train was in sight:

Edward Ward MacMahon and Ralph P. Buell for appellant.

Frank C. Laughlin for respondent.

Judgment reversed and complaint dismissed, with costs in all courts, on ground that plaintiff’s intestate was guilty of contributory negligence as matter of law.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.