Shechter v. Erie Railroad

Appellate Division of the Supreme Court of New York

Shechter v. Erie Railroad

14 A.D.2d 901, 1961 N.Y. App. Div. LEXIS 8029

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1961

StatusPublished

This text of 14 A.D.2d 901 (Shechter v. Erie Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shechter v. Erie Railroad, 14 A.D.2d 901, 1961 N.Y. App. Div. LEXIS 8029 (N.Y. Ct. App. 1961).

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Opinion

No opinion. Beldock, Acting P. J., Ughetta, Kleinfeld and Brennan, JJ., concur; Pette, J., concurs in the affirmance of the judgment with respect to the defendant Erie Railroad but dissents as to the affirmance of the judgment with respect to the defendant Banta, and votes to reverse the judgment insofar as it dismissed the complaint against defendant Banta, to sever the action against said defendant, and to grant a new trial as between him and the plaintiff, with the following memorandum: In my opinion, plaintiff made out a prima facie case. Giving plaintiff the benefit of every favorable inference reasonably to be drawn from the evidence (Andersen v. Bee Line, 1 N Y 2d 169, 172), I believe the jury should [902]*902have been permitted to determine whether the obstruction of view (caused by the tree foliage which is evident from the photographs) made the grade crossing unusually hazardous for a motorist like the deceased who was approaching from the south and who was unfamiliar with the grade crossing. If this question had been decided favorably to plaintiff, then the issue as to whether the warning given was adequate and timely under the circumstances, and the issue as to whether the deceased had been guilty of contributory negligence under the circumstances, would clearly have been presented for the jury’s determination.

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No opinion. Beldock, Acting P. J., Ughetta, Kleinfeld and Brennan, JJ., concur; Pette, J., concurs in the affirmance of the judgment with respect to the defendant Erie Railroad but dissents as to the affirmance of the judgment with respect to the defendant Banta, and votes to reverse the judgment insofar as it dismissed the complaint against defendant Banta, to sever the action against said defendant, and to grant a new trial as between him and the plaintiff, with the following memorandum: In my opinion, plaintiff made out a prima facie case. Giving plaintiff the benefit of every favorable inference reasonably to be drawn from the evidence (Andersen v. Bee Line, 1 N Y 2d 169, 172), I believe the jury should [902]*902have been permitted to determine whether the obstruction of view (caused by the tree foliage which is evident from the photographs) made the grade crossing unusually hazardous for a motorist like the deceased who was approaching from the south and who was unfamiliar with the grade crossing. If this question had been decided favorably to plaintiff, then the issue as to whether the warning given was adequate and timely under the circumstances, and the issue as to whether the deceased had been guilty of contributory negligence under the circumstances, would clearly have been presented for the jury’s determination.

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Bluebook (online)

14 A.D.2d 901, 1961 N.Y. App. Div. LEXIS 8029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shechter-v-erie-railroad-nyappdiv-1961.