Ward v. Brooklyn Heights Railroad

115 A.D. 104, 100 N.Y.S. 671, 1906 N.Y. App. Div. LEXIS 3629

Opinion

Gaynor, J.:

I do not see how the judgment can be sustained. There was really no obstruction to the .view down the track as the automobile came along to it proved, except the real estate sign; but it was only 16 long, and was 30 feet from the track. Before reaching it there was ample view'down the track, and also after passing it. Any one looking from the automobile with the care required by 'law on approaching a railroad crossing could not help seeing the train in time to avoid getting dangerously in front of it without knowing it. The evidence of obstruction of the view of the deceased is very obscure, and may be cleared up on a new trial.

Moreover, there is no evidence of. any care whatever by. the ■ deceased. • - -

The judgment and order should be reversed.

Woodward and Jenks, JJ., concurred; Hooker and Miller, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the-event.