Falin v. Lyford

267 A.D. 931, 46 N.Y.S.2d 823, 1944 N.Y. App. Div. LEXIS 5570

Opinion

Appeal by plaintiff from a judgment of nonsuit rendered by the Supreme Court, entered in Madison County (Personius, J.) June 19, 1943, upon the ground that the evidence failed to establish any actionable negligence on the part of the defendant and that plaintiff was free from contributory negligence as a matter of law. Plaintiff sued to recover for personal injuries he sustained when he drove his automobile onto a grade railroad crossing over a public highway and collided with the forty-seventh freight car of a train which defendant was then moving over it. Plaintiff was wholly familiar with the crossing. The night was -foggy. Plaintiff testified he saw the pavement marking, warning of the crossing, which was fourteen feet therefrom and as well previous warning signs; that his visibility ahead of his vehicle was about five feet and that the sight of one .eye, was seriously impaired. Judgment affirmed, without costs. AE concur. [See post, p. 1008.]