Opinion
July 11, 1961
In two consolidated actions: one, by the administratrix Born against the Long Island Rail Road Company, to recover damages for the wrongful death of her divorced husband who was killed when the truck which he was operating collided with a train locomotive at a railroad crossing (Action No. 1); and one, by the Rail Road Company against the truck owner, Martinek Trucking Corporation, to recover for the damage to the locomotive, in which the Trucking Corporation counterclaimed for the damage to its truck (Action No. 2), the administratrix and the Trucking Corporation appeal from a judgment of the Supreme Court, Suffolk County, entered September 23, 1959, after a jury trial, which: (a) dismissed the administratrix' action at the end of her case; (b) dismissed the Trucking Corporation's counterclaim at the end of the entire case; and (c) awarded $7,469.87 (plus costs) to the Rail Road against the Trucking Corporation upon the jury's verdict in that amount in favor of the Rail Road for its property damage. Judgment affirmed, with costs. No opinion. Beldock, Ughetta and Christ, JJ., concur; Pette, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: In my opinion, the testimony of the administratrix' witness Cobb that he did not hear the train whistle sounded for the crossing and that he would have heard it if it had been sounded, coupled with the testimony of the locomotive engineer, an interested witness called by the administratrix, that he sounded the whistle for the crossing, presented a question of fact which should have been determined by the jury and not by the court (cf. Flynn v. Long Is. R.R. Co., 289 N.Y. 283, 286; Ferris v. Erie R.R. Co., 275 App. Div. 771; Hiscock v. Long Is. R.R. Co., 280 App. Div. 809; Culhane v. New York Cent. Hudson Riv. R.R. Co., 60 N.Y. 133, 137; Latourelle v. New York Cent. R.R. Co., 301 N.Y. 103, 107-108; George v. Long Is. R.R. Co., 273 App. Div. 787, affd. 297 N.Y. 934; Mitchell v. Smucker, 281 App. Div. 988). Nor may the dismissal of the administratrix' complaint and the Trucking Corporation's counterclaim be sustained on the basis of contributory negligence. In my opinion the evidence is insufficient to establish that the deceased was contributorily negligent as a matter of law (see: Flynn v. Long Is. R.R. Co., supra; Chamberlain v. Lehigh Val. R.R. Co., 238 N.Y. 233, 235). The exhibits show that a nearby station building obstructed the view to the east of one approaching the crossing from the south (cf. Massoth v. Delaware Hudson Canal Co., 64 N.Y. 524, 529-531). Under the circumstances here, whether the deceased's failure, if any, to stop at the stop sign contributed to the happening of the accident was for the jury to say ( Tedla v. Ellman, 280 N.Y. 124, 134). Nolan, P.J., concurs with Pette, J.