Opinion
November 13, 1961
In an action against defendant Erie Railroad Co., the owner of a railroad train, and against defendant Banta, trustee of the New Jersey New York Railroad Co., the lessee and operator of the train, to recover damages for the wrongful death of plaintiff's intestate who was killed when her automobile was struck by the train at a grade crossing, the plaintiff appeals from a judgment of the Supreme Court, Rockland County, dated and entered March 30, 1961, dismissing the complaint on the merits against both defendants at the close of plaintiff's case during a jury trial. Judgment affirmed, without costs. No opinion. Beldock, Acting P.J., Ughetta, Kleinfeld and Brennan, JJ., concur; Pette, J., concurs in the affirmance of the judgment with respect to the defendant Erie Railroad but dissents as to the affirmance of the judgment with respect to the defendant Banta, and votes to reverse the judgment insofar as it dismissed the complaint against defendant Banta, to sever the action against said defendant, and to grant a new trial as between him and the plaintiff, with the following memorandum: In my opinion, plaintiff made out a prima facie case. Giving plaintiff the benefit of every favorable inference reasonably to be drawn from the evidence ( Andersen v. Bee Line, 1 N.Y.2d 169, 172), I believe the jury should have been permitted to determine whether the obstruction of view (caused by the tree foliage which is evident from the photographs) made the grade crossing unusually hazardous for a motorist like the deceased who was approaching from the south and who was unfamiliar with the grade crossing. If this question had been decided favorably to plaintiff, then the issue as to whether the warning given was adequate and timely under the circumstances, and the issue as to whether the deceased had been guilty of contributory negligence under the circumstances, would clearly have been presented for the jury's determination.