McCowan v. Lehigh Valley Railroad

238 A.D. 763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1933
• Status: Published

Opinion

Judgment and order affirmed, with costs. All concur, except Edgcomb, J., who dissents and votes for reversal on the law, and for dismissal of the complaint, on the ground that plaintiff’s intestate has been shown guilty of contributory negligence as matter of law. The present record shows that the physical surroundings, as shown on the photographs, were the same as those which existed on the day of the accident, and that there was nothing to divert the attention of either decedent from the crossing, with which both were familiar. That being so, the objection to the former judgment, as indicated in the concurring opinion in McCowan v. Lehigh Valley R. R. Co. (232 App. Div. 446, 449), has been overcome, and for the -reasons therein stated I think that there can be no recovery here. (See, also, Crough v. N. Y. C. R. R. Co., 260 N. Y. 227; Schrader v. N. Y. C. & St. L. R. R. Co., 254 id. 148; Cassidy v. Fonda, Johnstown & Gloversville R. R. Co., 200 App. Div. 241; affd. on opinion of Kellogg, J., in 234 N. Y. 599; Miller v. N. Y. C. R. R. Co., 226 App. Div. 205; affd., 252 N. Y. 546; Fitch v. N. Y. C. R. R. Co., 233 id. 356; Castle v. Director-General of Railroads, 232 id. 430; Behrens v. N. Y. C. R. R. Co., 218 App. Div. 446; Allen v. Erie Railroad Co., 244 N. Y. 542.)