Opinion
May 17, 1939.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment and order affirmed, with costs. Memorandum: Taking into consideration the fact that the decedent's view to the west, whence the train came, was to a great extent, obstructed until he had reached a point forty-four feet from the place of collision, that the train approached the crossing at a speed ranging from eighty to eighty-five miles per hour, that the engineer blew the whistle as the train approached the crossing, that the flagman stationed at the crossing failed to give decedent any warning of the approach of said train, that the decedent had used the crossing frequently and knew that a flagman was stationed there, we are unable to say that the findings of the jury that the defendant was negligent in failing to give to the decedent adequate and timely warning of the approach of its train to the crossing and that the decedent was free from contributory negligence are not supported by the weight of the evidence. (See Elias v. Lehigh Valley R.R. Co., 226 N.Y. 154, 158.) All concur. (The judgment is for plaintiff in a railroad negligence action. The order denies a motion for a new trial.)