Murphy v. Long Island Rail Road

273 A.D. 913, 77 N.Y.S.2d 435, 1948 N.Y. App. Div. LEXIS 5255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1948
• Status: Published

Opinion

Action to recover damages for the death of plaintiff's intestate in a grade crossing accident. Judgment in favor of plaintiff reversed on the law and the facts, and a new trial granted, with costs to abide the event. A new trial is required because of the erroneous admission of. testimony that operators of automobiles were accustomed to cross the tracks at the intersection involved herein despite the fact that the warning signal lights were flashing. Carswell, Johnston and Sneed, JJ., concur; Lewis, P. J., and Adel, J., concur for reversal of the judgment hut as to granting a new trial they dissent and vote to dismiss the complaint with the following memorandum: The proof conclusively established that the decedent was guilty of contributory negligence as a matter of law. (Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206, and cases cited therein.)