In re Commissioners of Highways — 56 N.Y. St. Rep. 148

Majority

p. 148

In the Matter of the Petition of COMMISSIONERS OF HIGHWAYS of Islip.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Railroads—Street crossings. •

Obstruction of the view of trains approaching the street crossing is sufficient to iustifv the county court in directing the company to keep a flagman at such crossing.

2. Same.

The right to such order is not defeated by the fact that the company is directed to give signals at railroad crossings of highways on grade.

Appeal from an order that the Long Island Railroad Company station a flagman at the intersection of its road with Second avenue, Bay Shore, and that they erect and maintain a signal electric bell at the intersection of the road with Fifth avenue in this village.

William J. Kelly, for app'lt; Timothy M. Qriffing, for resp’t.

The county court of Suffolk county made an order upon the application of the commissioners of highways of Islip,-Suffolk county, that the Long Island Railroad station a flagman at the intersection of the road with Second avenue, Bay Shore, and that they erect and maintain a signal electric bell a# the intersection of the railroad with Fifth avenue in this village. The proof shows that as to the Fifth avenue crossing, the first sight of the railroad train coming from the west by a highway traveller coming from the north is about eighty or ninety feet from the track. North of the track there are maple trees. There are buildings on Fifth avenue on three of the corners made by the railroad intersection with the avenue. There is a curve in the railroad track. The track is sunken some two feet. There is a high board fence near the crossing. One witness testifies that the prevailing condition at the crossing “ obstructs the view entirely.” The trains, in summer, pass at a high rate of speed, and about three hundred vehicles a day cross the track at this point. There is no proof returned as to the crossing at Second avenue; The right to the order in both cases is assailed upon the ground that .the railroad company is ordered to give signals at railroad cross

p. 149

ings of highways on grade. Such a view cannot be upheld. By section 33 the legislature intended to provide for further security to the public traveller upon highways as against railroad crossings then on grade, in cases of peculiar danger. The section providing for signals in all cases was a general rule in all case; but, in peculiar cases of danger, additional security should be afforded by the railroad. This was to be secured by application by those whose duty it was to keep the highways safe and upon notice to the railroad. If the appellant’s view is right, section 33 is nugatory.

The order should be affirmed, with costs and disbursements on each appeal.