Spila v. New York Central & Hudson River Raliroad

147 A.D. 666, 132 N.Y.S. 151, 1911 N.Y. App. Div. LEXIS 2943

Opinions

Jenks, P. J.:

The respondent’s intestate, a man of mature years, and a companion, both riding on bicycles in a highway,-approached a place where the highway crossed at grade the tracks of. the defendant. The intestate attempted to .pass over the tracks, but was struck and killed by a south-bound train of the defendant. The companion, who rode back of the intestate, saved himself .by turning his vehicle into a telegraph post. -. This companion, the sole witness of the casualty called by the plaintiff, testifies that the two men looked for any possible danger first when they were, sixty feet away, and again when five feet away, but that at the time -— 5 p. M. on a cloudy and rainy June day-—their view was obscured wholly by the smoke emitted by the locomotive engine of a recent north-bound train, which smoke, still hung heavy and low over the tracks. And he admits that, regardless of any permanent physical obstrugtion to a view, they could not have seen the oncoming train because of this dense smoke. This testimony indicates contributory negligence as matter of law, for, to quote the language of Gray, J., in Heaney v. L. I. R. R. Co. (112 N. Y. 122), applicable to the intestate, “it was unquestionably his duty to await the disappearance of the smoke, and thus to be reasonably sure that he had a clear crossing.” (See, too, Keller v. Erie R. R. Co., 183 N. Y. 67.)

The judgment and order must be reversed and a new trial must-be granted, costs to abide the event.

Thomas, Carr and Rich, JJ., concurred; Woodward, J., read for affirmance.