Austin v. Long Island Railroad

New York Supreme Court

Austin v. Long Island Railroad

23 N.Y.S. 193, 69 Hun 67, 76 N.Y. Sup. Ct. 67, 52 N.Y. St. Rep. 746

CourtNew York Supreme Court

DecidedMay 8, 1893

StatusPublished

Cited by3 cases

This text of 23 N.Y.S. 193 (Austin v. Long Island Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Austin v. Long Island Railroad, 23 N.Y.S. 193, 69 Hun 67, 76 N.Y. Sup. Ct. 67, 52 N.Y. St. Rep. 746 (N.Y. Super. Ct. 1893).

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Opinion

BARNARD, P. J.

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 midday, 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 50 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 signboard, with two sides at right angles, each arm being about 12 or 13 feet long. This sign hid from view about 850 feet of the defendant’s track, giving only about 125 feet actual view of the track west of the signboard. 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 signboard, 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 signboard 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 50 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 signboard. Whether the deceased looked at the right moment exactly, and in the right direction successively, is a question of fact. Greany v. Railroad [194]*194Co., 101 N. Y. 419, 5 N. E. Rep. 425; Oldenbery v. Railroad Co., (N. Y. App.) 26 N. E. Rep. 1021. 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 to the east 50 feet from the crossing, and not afterwards,— if they should so find the fact to be,—was for the jury. Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. Rep. 378. The judgment and order denying new trial should be affirmed, with costs. All concur.

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BARNARD, P. J.

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 midday, 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 50 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 signboard, with two sides at right angles, each arm being about 12 or 13 feet long. This sign hid from view about 850 feet of the defendant’s track, giving only about 125 feet actual view of the track west of the signboard. 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 signboard, 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 signboard 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 50 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 signboard. Whether the deceased looked at the right moment exactly, and in the right direction successively, is a question of fact. Greany v. Railroad [194]*194Co., 101 N. Y. 419, 5 N. E. Rep. 425; Oldenbery v. Railroad Co., (N. Y. App.) 26 N. E. Rep. 1021. 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 to the east 50 feet from the crossing, and not afterwards,— if they should so find the fact to be,—was for the jury. Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. Rep. 378. The judgment and order denying new trial should be affirmed, with costs. All concur.

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Bluebook (online)

23 N.Y.S. 193, 69 Hun 67, 76 N.Y. Sup. Ct. 67, 52 N.Y. St. Rep. 746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-long-island-railroad-nysupct-1893.

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