Opinion
January 16, 1951.
Appeal from Supreme Court, St. Lawrence County.
Deceased was killed when his automobile, which he was driving across a grade crossing, was struck by defendant's train. The principal issue litigated was whether or not the defendant gave adequate and timely warning of the approach of its train. Upon conflicting testimony this question was submitted to the jury, as was the question of the contributory negligence of the deceased. On a previous appeal a majority of this court reversed a judgment in favor of the defendant and ordered a new trial, saying: "we are of the opinion that the weight of the credible evidence supports plaintiff's view." ( Miller v. New York Central R.R. Co., 276 App. Div. 795, 796.) This record not only contains substantially the same evidence as at the previous trial, but in addition thereto the testimony of two additional witnesses who were employees of the defendant and who were riding on the train involved in the collision. Each testified that he heard no whistle prior to the collision. The record discloses no substantial error, and the verdict of the jury is amply supported by the evidence. Judgment and order affirmed, with costs. Foster, P.J., Heffernan, Bergan and Coon, JJ., concur; Deyo, J., concurs with the following separate statement: I concur in the result solely on the ground that the previous decision of this court ( Miller v. New York Central R.R. Co., 276 App. Div. 795) is the law of this case in this court. [See post, p. 727.]