Opinion
November 9, 1949.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ. [See post, p. 944.]
Judgment reversed on the law and a new trial granted as to defendants Howard Sober, Inc., and William Wawrzycki, with costs to appellant to abide the event. Appeal as to the Ford Motor Company dismissed on the ground that the action as to said Ford Motor Company was dismissed upon the trial by consent of all parties. Memorandum: The action arises from a collision of plaintiff's railroad train and a trailer-tractor owned by one of the defendants, which occurred upon a railroad grade crossing. The Trial Justice in his charge read that portion of section 21 R.R. of the Railroad Law, providing that where a railroad crosses a highway at grade the railroad company shall construct and maintain a roadway at least sixteen feet wide. He refused a request by plaintiff's counsel to charge that the obligations relative to grade crossings imposed by section 21 R.R. of the Railroad Law do not include the duty to keep its crossings free from ice and snow. We think this was error and requires a reversal of the judgment in favor of Howard Sober, Inc., and William Wawrzycki and a new trial. ( Ego v. Erie R.R. Co., 234 App. Div. 649.) All concur. (The judgment is for defendants in an automobile negligence action.)