Barker v. New York Cent. & H. R. R. — 155 N.Y.S. 596

Majority

p. 596

BARKER v. NEW YORK CENT. & H. R. R. CO. (two cases).

(Supreme Court, Appellate Division, Second Department.

November 5, 1915.)

Headnote

Railboads <@=>348—Injuby to Persons Ceossing Track—Imputed Negligence—Liability—W abnings—Effect.

Where, in an action against a railroad company for death, alleged to have been inflicted through its negligence, it appeared decedents received their fatal injury by being struck by a train while being driven across the track by a third person, to whom timely warnings were given by flagmen on each side of the track and by outcries of other people, plaintiff could not recover, even though such third person’s contributory negligence was not imputed to decedents, since, under the evidence of warnings, there was no negligence on the part of defendant.

[Ed. Note.-—For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. <@=>348.]

Stapleton, J., dissenting.

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p. 597

Appeal from Trial Term, Richmond County.

Separate actions by Lewis W. Barker, as administrator of Mary E. Reynolds, deceased, and as administrator of Gertrude M. Barker, deceased, against the New York Central & Hudson River Railroad Company. From judgments in favor of plaintiff, defendant appeals. Reversed.

Argued before JENKS, P. J., and THOMAS, STAPLETON, MILLS, and RICH, JJ.

Robert A. Kutschback, of New York City, for appellant.

Henry F. Cochrane, of Brooklyn, for respondent.

The decedents were not accountable for the conduct of Scully, nor was he amenable to their advice or command. They, unfamiliar with the system of tracks and the related ways and structures, were justified in respecting in a degree his judgment, and if, amidst the warning shouts, they did not, in the few available seconds, interrupt his hasty and unexpected attempt to contest with the train in the matter of crossing, it cannot be decided by the court that they were negligent in doing so. The evidence preponderatingly shows that the collision was caused by Scully’s negligent attempt to pass before the train in the face of warnings timely given by the flagman on the easterly side, as well as by the flagman on the westerly side, and by outcries by several other persons, which were given in time to enable him to avoid the train.

The judgment and order in each case should be reversed, and a n’ew trial granted; costs to abide the event.

STAPLETON, J., dissents.