Neary v. Citizens' Railroad, Light & Power Co.

110 A.D. 769, 97 N.Y.S. 420, 1906 N.Y. App. Div. LEXIS 73

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1906
• Status: Published

Opinion

Gaynor, J.:

The case was for the;jury. The deceased had the right to walk along the track, but with that right went by laW_a duty "-for him to be ordinarily vigilant with eye and ear to kno.iy when a car was coming, and to be out .of the way hefore.it got to him, so. as not to stop it, or even make it slow up, for it had the light of way. But considering that the electric cats ran only about once an hour, and the distraction of the passing steam freight train along the side of the highway about sixteen feet away,'it was too'much to say as matter of law that the deceased was negligent in mot knowing the electric car was coming up so close behind him, especially as' no hell, was rimg or warning given on it. •.-■■';

The judgment should be reversed.

Jbnks, Hooker, Rich and Miller, JJ-, condürréd.

Judgment reversed and new trial granted, costs to abide the event. ’ ‘