Opinion
November 14, 1960
In an action to recover damages for the wrongful death of plaintiff's intestate, a pedestrian, who was struck at a grade crossing by a train, operated by defendant, defendant appeals (1) from a judgment of the Supreme Court, Westchester County, entered October 6, 1959 in favor of plaintiff, after a jury trial; and (2) from the denial of a motion to set aside the verdict and for a new trial. Judgment reversed on the facts and a new trial granted, with costs to abide the event. Appeal from denial of motion to set aside the verdict and for a new trial dismissed. No such order is printed in the record. Intestate and a companion, walking easterly, were stopped on the westerly side of defendant's north and southbound tracks, by its watchman who was standing on the easterly side, in the center of the street constituting the crossing. After a southbound train had passed and from a position 10 feet west of the tracks, the intestate proceeded toward and across the southbound rails and the intervening space, to the northbound rails. He was there killed by a train which had traversed a long straightaway immediately to the south. During this entire period an automatic bell at the scene was sounding and the watchman was holding aloft a "stop" sign. The defendant adduced proof that the intestate ignored a warning from the watchman and, instead, ran across the tracks. In our opinion, the jury's verdict, apparently based on evidence designed to show that defendant had lulled intestate into a sense of security, was against the weight of the credible evidence. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur.