Fearman v. New York Central Railroad

231 A.D. 794

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1930
• Status: Published

Opinion

Judgment affirmed, with costs. All concur, except Crouch and Taylor, JJ., who dissent and vote for reversal on the law in a memorandum, as follows: The jury could have found that this train was standing still upon the grade crossing for a considerable period of time before the automobile collided with it; that prior to the mishap the train had been severed at the crossing to permit a vehicle to pass through; that the night was dark and foggy; that the train was not lighted and that no precautions were taken by defendant to warn travelers on the highway of the presence of the standing train; that the crossing gates at the crossing were fully raised up and upon the arm of one of them was a lighted lantern having a red globe; that the driver of the automobile in which plaintiff was riding saw the up-raised gate arms and the lantern and placed reliance for safety upon that circumstance; and that neither the plaintiff nor the driver of the automobile saw the train in time to avoid the collision. We are of the opinion that Killen v. N. Y. C. R. R. Co. (225 App. Div. 8) and Scott v. D., L. & W. R. R. Co. (222 id. 409) are not controlling authorities, that negligence in the defendant might be predicated upon this particular state of facts and that the judgment of nonsuit should be reversed and a new trial granted. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Thompson, J.J.