Flynn v. Long Island Railroad

Appellate Division of the Supreme Court of New York

Flynn v. Long Island Railroad

263 A.D. 1011, 33 N.Y.S.2d 924, 1942 N.Y. App. Div. LEXIS 7881

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 1942

StatusPublished

This text of 263 A.D. 1011 (Flynn v. Long Island Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flynn v. Long Island Railroad, 263 A.D. 1011, 33 N.Y.S.2d 924, 1942 N.Y. App. Div. LEXIS 7881 (N.Y. Ct. App. 1942).

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Opinion

The action is to recover damages for the death of plaintiff’s intestate, who was killed when a motor truck which he was operating was struck by respondent’s train at an unguarded crossing. Judgment dismissing the complaint on the merits at the close of plaintiff’s case unanimously affirmed, with costs. The evidence shows that the train was running at a high rate of speed; that the whistle was not blown at the whistling post, which was 1,327 feet from the crossing, but was first blown when the train was only 400 feet from the crossing. This proof would justify a finding that the defendant was negligent in not giving timely and adequate notice of the approach of the train. But the proof also discloses that plaintiff’s intestate was guilty of contributory negligence as matter of law. As he approached the crossing he had an unobstructed view of the track at least as far east as the whistling post, and if he had looked he would have seen the approaching train in time to avoid the accident. The evidence shows a total lack of care on the part of the deceased. (Crough v. New York Central R. R. Co., 260 N. Y. 227; Schrader v. N. Y., C. & St. L. R. R. Co., 254 id. 148, 150.) Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.

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The action is to recover damages for the death of plaintiff’s intestate, who was killed when a motor truck which he was operating was struck by respondent’s train at an unguarded crossing. Judgment dismissing the complaint on the merits at the close of plaintiff’s case unanimously affirmed, with costs. The evidence shows that the train was running at a high rate of speed; that the whistle was not blown at the whistling post, which was 1,327 feet from the crossing, but was first blown when the train was only 400 feet from the crossing. This proof would justify a finding that the defendant was negligent in not giving timely and adequate notice of the approach of the train. But the proof also discloses that plaintiff’s intestate was guilty of contributory negligence as matter of law. As he approached the crossing he had an unobstructed view of the track at least as far east as the whistling post, and if he had looked he would have seen the approaching train in time to avoid the accident. The evidence shows a total lack of care on the part of the deceased. (Crough v. New York Central R. R. Co., 260 N. Y. 227; Schrader v. N. Y., C. & St. L. R. R. Co., 254 id. 148, 150.) Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.

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Bluebook (online)

263 A.D. 1011, 33 N.Y.S.2d 924, 1942 N.Y. App. Div. LEXIS 7881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flynn-v-long-island-railroad-nyappdiv-1942.

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