Opinion
May 3, 1939.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The defendant stipulated that its train was traveling thirty-five miles an hour as it approached the crossing. There was proof that the defendant's train, at the rate and under the conditions it was traveling, could have been stopped in a distance of 350-400 feet. There was evidence that the decedent's truck was stalled on the track for a period of ten seconds or more. There was evidence that there was a continuous blowing of the whistle for a distance of 1,150 feet before the train reached the crossing and collided with the truck and that the blowing continued to the instant of the impact. There was no direct evidence that the defendant's engineer saw the truck on the track before the collision. The view of the engineer, however, as he approached the crossing was unobstructed for at least one-fourth of a mile. The weather was clear and the rails were dry. From these circumstances and the fact that the whistle was blown constantly for a distance of 1,150 feet before the collision occurred, we think the jury might reasonably have inferred that the engineer knew the truck was stalled upon the track when the engine was 1,150 feet from the crossing. Under these circumstances the defendant might have obviated the decedent's peril by a timely stopping of its train. Knowledge may be established by circumstantial evidence. ( Bragg v. Central New England R. Co., 228 N.Y. 54.) The evidence in the record before us differs materially from the evidence on the previous trial where we reversed a judgment for the plaintiff. ( 247 App. Div. 95.) The case was for the jury and the granting of the nonsuit was error. All concur, except Lewis and Taylor, JJ., who dissent and vote for affirmance. (The judgment is for the defendant in an automobile negligence action.)