Austin v. Long Island Railroad — 52 N.Y. St. Rep. 746

Majority

p. 746

Edith W. Austin, Adm'rx, Resp't, v. The Long Island Railroad Co., App'lt.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Negligence—Railroad crossing.

Plaintiff’s intestate, when about to cross defendant’s tracks at the crossing of a street which was not a public highway, but was largely used by

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pedestrians for that purpose, looked to the east and saw no train; on then attempting to cross, he was struck by a train coming from that direction. It appeared that there was a sign board on defendant’s right of way that obstructed the view except for 125 feet, while without it the track could be seen for a mile. There was a conflict of evidence as to whether the bell was rung or whistle sounded. Held, that there was sufficient evidence to submit to the jury on the questions of negligence and contributory negligence.

Appeal from judgment in favor of plaintiff, entered on verdict.

E. B. Hinsdale, for app’lt; L. C. Whiton, for resp’t.

On the 28th of June, 1891, John H. Austin, the husband of the plaintiff, was killed by a train upon the defendant’s railroad. The accident happened about mid-day, and near Woodhaven Junction, in Queens county. The deceased was on a street called Ocean avenue, but which appears not to be a public highway, but one commonly used by pedestrians as a place ■of crossing the tracks of the Long Island Railroad Company. The train which struck the deceased comes from the east. It was proven that when the deceased and his companions got within about fifty feet of the crossing, he looked east They saw nothing ; but, in point of fact, there was a train coming east which was hidden by a sign-board with two sides at right angles, each arm being about twelve or thirteen feet long. This sign hid from view about 850 feet of the defendant’s track, and giving only about 125 feet of actual view of the track west of the sign-board. The deceased started rapidly to cross the road of the defendant, and was hit and killed. While it was a question upon the trial whether the bell and whistle were sounded on approaching Ocean avenue, it was found by the jury that no alarm was given. Without the sign-board, an unobstructed view of about a mile would have been given eastward from Ocean avenue.

This proof was sufficient proof of negligence to go to the jury. The sign-board was on defendant’s right of way, and it was so placed that a traveler across the avenue could infer.from the view of the track that he had a mile in which to go fifty feet; while, in point of fact, he might have but a little over 100 feet.

The proof established that the westward view was obstructed, calling for vigilant attention upon the part of deceased to avoid danger from that quarter. That he had protected himself from the east by a. view which did not protect him by reason of defendant’s sign-board.

Whether the deceased looked at the right moment exactly, and in the right direction successivelv, is a question of fact. Greany v. L. I. R. R. Co., 101 N. Y., 419 ; Oldenberg v. N. Y. Central R. R. Co., 36 St. Rep., 402 .

If there was enough evidence to go to the jury on the question of the negligence of defendant, there was also sufficient to submit to them the question as to the freedom of deceased from any contributory negligence on his part. If the defendant had not obstructed his view from the east, he could have saved his life; and the question whether he was careless in looking

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to the east fifty feet from the crossing, and not afterwards, if they should so find the fact to be, was for the jury. Swift v. Staten, Island R. R. Co., 123 N. Y., 645 ; 33 St. Rep., 604 .

The judgment and order denying new trial should be affirmed, with costs.

Dtkman and Pratt, JJ., concur.