Allen v. Erie Railroad — 244 N.Y. 542

Majority

p. 542

Lida M. Allen, as Administratrix of the Estate of Thomas G. Allen, Deceased, Respondent, v. Erie Railroad Company, Appellant.

Headnote

Negligence — railroads — crossing accident — driver of automobile killed by train while crossing tracks — when guilty of contributory negligence.

Allen v. Erie R. R. Co., 217 App. Div. 714 , reversed.

(Argued November 30, 1926;

decided December 31, 1926.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 8, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover

p. 543

for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate was killed as a result of a collision between one of defendant’s locomotives and an automobile which he was driving across the defendant’s tracks at the Tifft street crossing in the city of Buffalo. It appeared from the evidence that observation as intestate approached the tracks should have disclosed to him the on-coming train.

John W. Ryan for appellant.

Hamilton Ward for respondent.

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

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