Majority
p. 24Eliza J. White, Adm’rx, App’lt, v. The New York Central & Hudson River R. R. Co., Resp’t. (Supreme Court, General Term, Second Department, Filed December 14, 1891.)
Headnote
Negligence—Railroads.Plaintiff’s intestate was at defendant’s station and attempted to cross the tracks immediately after a train passed, when he was killed by a train passing in the opposite direction which was behind time. The regular crossing was blocked by a train. The trains did not stop but passed at a high rate of speed, and there was proof that no warning was given. Feld, that the question of negligence was one for the jury.
Appeal from judgment in favor of defendant dismissing the complaint.
This action was brought to recover $5,000 damages for the alleged negligent killing of plaintiff’s intestate, her husband, John White, at the Woodlawn station on the Harlem division of the defendant’s railroad, on the 3d day of October, 1889.
Norman A. Lawlor, for app’lt; Frank Loomis (D. W. Tears, of counsel) for resp’t.
The evidence shows that the plaintiff’s intestate was standing on the platform of the defendant’s railroad at Woodlawn in Westchester county, with milk cans in his hand.
p. 25
The platform, was crowded, and a train on the New Haven road passed south. Immediately after the passage of this train a train on the New York & Harlem railroad passed in an opposite direction. The deceased attempted to pass over the track as soon as the New Haven train passed, and was killed by the Pawlings express on the Harlem road. There was a regular railroad crossing over a highway at the end of the station, but that was blocked by one of defendant’s trains standing still. Neither of the trains stopped, but went through the station grounds at a high rate of speed. There was proof given tending to show that the bell of the engine was not sounded on either train, nor whistle blown. The place where White, the deceased, crossed was one sometimes used and was the most available when the' highway crossing was blocked up. The case was one for the jury. The rate of speed through the village, the crowded station, the blocked highway, the failure to give any warning of the approach of the trains, the fact that the Pawlings express train was ten minutes late, are facts to go to a jury upon the question of the defendant’s negligence. The case is not so strong as the case of Thompson v. The New York Central & Hudson River R. R. Co., 110 N. Y., 636 ; 16 St. Rep., 869 .
.The exceptions should be sustained and a new trial granted, costs to abide event.
Dykmah and Pratt, JJ., concur.