Opinion
May, 1936.
Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The overwhelming weight of evidence is to the effect that defendant's train gave adequate warning of its approach to the crossing; that the planking of the crossing was not out of repair, and that the red blinker light was working. The only evidence of defendant's negligence is found in a rate of speed in excess of that permitted by a city ordinance. The undisputed evidence is to the effect that plaintiff's intestate approached the crossing with a clear view of defendant's tracks for 600 or 800 feet in the direction from which the train was approaching, with no congestion of traffic to distract attention, and with no railroad cars or other obstructions to prevent seeing the train. It was a clear day. A finding that the driver of the truck was free from contributory negligence is against the weight of the evidence. The negligence of the driver is chargeable to plaintiff's intestate, who owned the truck, and was riding with the driver and in control of the truck's operation. ( Gochee v. Wagner, 257 N.Y. 344.) All concur. (The judgment awarded damages for death of plaintiff's intestate when riding in an automobile owned by him which was struck by one of defendant's trains. The order denied a motion for a new trial on the minutes.)