Opinion
July 7, 1955.
Appeal from Supreme Court, Columbia County.
Present — Foster, P.J., Coon, Halpern, Imrie and Zeller, JJ.
While operating his auto near the City of Hudson, plaintiff was seriously injured when it collided with the second car behind the locomotive of a train proceeding across a single track railroad crossing. In describing the happening of the accident we shall summarize the testimony of plaintiff; it was dark at the time and raining; plaintiff knew of the location of the track and, as he approached, listened for warning signals but did not hear any; he looked to his right and left but saw no train; he then entered a thick patch of fog which extended to a point forty-five to fifty feet from the crossing obscuring it; he estimated his speed at fifteen to twenty miles per hour as he entered the fog where he could see no more than ten feet ahead of him; he continued to look and listen but neither saw nor heard any train; while in the pocket of fog, he increased the speed of his auto by approximately five miles per hour and when he got ten feet from the track, saw the train but could not avoid colliding with it. Upon a motion for a nonsuit, the truth of the evidence presented by the plaintiff should be assumed and all reasonable inferences should be drawn therefrom. ( Sagorsky v. Malyon, 307 N.Y. 584.) Nevertheless, in our opinion plaintiff was guilty of contributory negligence as a matter of law. ( Falin v. Lyford, 267 App. Div. 931; Proefrock v. Denney, 258 App. Div. 5, affd. 283 N.Y. 648; Pascal v. Pascal, 254 App. Div. 807.) Judgment and order unanimously affirmed, without costs.