Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of the Supreme Court, Greene County, denying appellant's motion to set aside the verdict and for a new trial. Lucille Burns was fatally injured on October 13, 1955 as the result of an accident when the car which she was driving was struck by a New York Central Railroad train as she crossed respondent's tracks at a private crossing called "Post Crossing" in Greene County. The crossing involved, until shortly before the accident herein, was used to provide access from a farm on the easterly side of the tracks to the main road. In late 1954 one Post established a "junk yard" on the easterly side of the tracks and the testimony indicated that at the time of the accident approximately 50 cars a day were using the crossing. There were no signals or other warning devices present at the crossing and the train gave no warning of its approach. Appellant contends that because the crossing existed either by express grant or as an easement by necessity a greater duty was owed by the respondent to those using the crossing, citing Harriman v. New York, C. St. L.R.R. Co. ( 253 N.Y. 398). We find this case inapposite. Under the facts herein, how this private crossing was created has no significance in weighing the common-law duties of the parties. In our view the court correctly left to the jury the question of whether this private crossing was used extensively and notoriously and for such a length of time that the railroad knew or should have known it and further charged that if they so found, the railroad was required to use due care in warning motorists of the approach of its trains. In essence the court said that the duty of care is commensurate with the use as established and the facts and circumstances existing in connection with the particular crossing involved. We agree. Additionally the jury could well have found appellant's intestate contributorily negligent. She had just driven from the west to the east over the crossing and was thus fully aware of its presence. Returning westerly, she had not only traversed the distance between the right of way fence and the tracks but also had to cross the northbound tracks before colliding with the train on the southbound tracks. The jury could well have found under these circumstances that she failed completely to use her senses of sight and hearing. The questions of negligence and contributory negligence were for the jury and we see no reason to disturb their verdict. Judgment and order unanimously affirmed, without costs.