Opinion
Argued January 11, 1960
Decided January 22, 1960
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, CARLTON A. FISHER, J.
Ogden R. Brown and Thomas E. Hagmeir for appellant.
Donald C. Brandt for respondent.
Judgment affirmed, with costs.
Concur: Chief Judge DESMOND and Judges DYE, FULD and BURKE. Judge FOSTER dissents in the following opinion in which Judges FROESSEL and VAN VOORHIS concur.
At the crossing where plaintiff's truck was demolished when struck by a train there are four sets of tracks. The jury could find that the inner tracks over which trains run are a foot higher than the outside tracks, but there is no proof that the crossing was not planked, in fact the proof is to the contrary. The front wheels of plaintiff's truck became caught in a deep rut of snow, at the most southerly center track, that was formed by the passage of trains. The rear wheels were on an incline and hence the truck became stalled.
The defendant railroad company had no duty to remove snow and ice from the crossing ( Silberstein v. Houston, West St. Pavonia Ferry R.R. Co., 117 N.Y. 293; Baltimore Ohio R.R. Co. v. Howard Sober, Inc., 276 App. Div. 818). The testimony in this record does not show the angle of elevation between the outer and center tracks, or that the crossing was constructed in an unusual or dangerous manner, or not in accord with approved railroad practice.
The judgment should be reversed and a new trial granted.
Judgment affirmed.