Hartwell v. Navin

268 A.D. 939, 51 N.Y.S.2d 193, 1944 N.Y. App. Div. LEXIS 4321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1944
• Status: Published

Opinion

Appeal from a judgment of the Trial Term entered upon the verdict of a jury in the Clinton County clerk’s office on November 16, 1943, in favor of plaintiff against defendant for $43,699.73 and from an order entered December 9, 1943, denying, a motion to set aside the verdict and for a new trial. The action is for conscious pain and suffering and death of plaintiff’s intestate, Harold Hartwell. His death occurred on January 18, 1943, as the result of a collision with a train at a railroad crossing located near the station of defendant at Forest, New York. Decedent was crossing the tracks of defendant in his automobile. It was snowing and the snow was blowing and drifting. The highway approached the tracks on a downgrade through a cut about four feet deep, and the snow was piled high on the sides of the highway. His view was obscured in both directions. The train was two hours and twenty minutes late and traveling at forty miles per hour. Visibility was bad and the engineer did not see the automobile until the engine was about fifty feet from the crossing, and at that time the front wheels of the automobile were on the track. There is proof both ways by both interested and disinterested witnesses as to whether the engineer gave the usual warning by blowing his whistle and ringing the bell. Judgment and order affirmed, with costs. All concur. [See 269 App. Div. 720.]