Opinion
January 18, 1952.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Wheeler, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The question of whether defendant's train was standing upon the crossing as the plaintiff's automobile approached was sharply contested. The evidence disclosed that the crossing was provided with the warning signs required by sections 53 R.R. and 53-a R.R. of the Railroad Law. Under such circumstances, we feel the court was in error in refusing to charge, at defendant's request, "that if the jury found that the defendant's train was standing on the Columbus Street crossing at the time of the accident and was occupying the crossing at that time for a lawful purpose, then their verdict must be one of no cause of action". (See Pascal v. Pascal, 254 App. Div. 807.) All concur. (Appeal from a judgment for plaintiff in a railroad negligence action. The order denied a motion for a new trial.)