Gibbs v. Lehigh Valley Railroad

235 A.D. 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1932
• Status: Published

Opinion

Judgment affirmed, with costs. (See Castle v. Director-General of Railroads, 232 N. Y. 430; Allen v. Erie R. R. Co., 244 id. 542; Schrader v. N. Y. C. & St. L. R. R. Co., 254 id. 148.) AE concur, except Thompson and Crosby, JJ., who dissent and vote for reversal on the law and for granting a new trial on the ground that this is a death ease where the burden of proving contributory negHgenee rests upon defendant. There is no proof that decedent did not look and listen. There is proof that defendant’s train gave no signal, and, therefore, Estening would have availed nothing. There is proof that looldng might have led to decedent’s confusion, due to electric lights of various kinds competing with the locomotive light. Under the conditions existing because of these confusing cross lights, decedent had a right to expect a signal by beE or whistle. At least the jury could have found that defendant’s faEure to sound beE or whistle, coupled with the difficulty decedent met in identifying the locomotive Eght, reEeved decedent of the imputation of negHgenee. He cannot be said to be guüty of negligence as a matter of law. The cases rehed on for the decision made herein were dayhght cases, without any confusing Eghts, where it was not so necessary to rely on the signal by beE or whistle.