Majority
p. 439Michael McNamara, Adm’r, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt. (Supreme Court, General Term, Fifth Department, Filed June 23, 1892.)
Headnote
Negligence—Contributory.A person who enters upon a railroad crossing at a time when it is enveloped in smoke so that approaching engines cannot he seen «is guilty of contributory negligence.
(Heaney v. Long Island R. R. Co., 112 N. Y., 122 ; 20 St. Rep., 296 , followed.)
Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Erie circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.
J. F. Gluck, for app’lt; John Laughlin, for resp’t.
The action was for the alleged negligent killing of the plaintiff’s intestate, Margaret McNamara, at the grade crossing, by the defendant’s road, of Hamburg street, in the city of Buffalo.
The evidence was amply sufficient to support the verdict of the jury on the question of the defendant’s negligence. But the
p. 440
undisputed facts presented a strong case for the application of the rule laid down in Heaney v. The Long Island R. Co., 112 N. Y., 122 ; 20 St. Rep., 296 , which has already been followed by us in Whalen v. The N. Y. C. & H. R. R. R. Co., 40 St. Rep., 566 . The doctrine referred to is that a case of contributory negligence is made out by evidence which shows that the deceased entered upon the crossing at a time when it was so enveloped by clouds of smoke as to hide or so to obscure near and approaching objects as to render him less able to protect himself by the use of his senses. In this case the sole witness, from whose testimony the facts of the occurrence are to be derived, testified in answer to questions by counsel for defendant that at the time the deceased went upon the track the smoke of a train which had just passed had settled down on the street so that she could not have seen the approaching engine if she bad looked; that the whole place was enveloped in smoke; that there was a thick veil of smoke between her and where the engine came from, which settled right down on the track, so that when she looked down that way she could not see the engine. The case could scarcely be made stronger as an illustration of the • rule declared in the case of Heaney, supra. On the authority of that case it was error to den.y the motion for a nonsuit, and the judgment and order appealed from should be for that reason reversed.
Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.
Macomber and Lewis, JJ., concur.