Flynn v. Long Island Railroad , 33 N.Y.S.2d 924 ( 1942 )

The action is to recover damages for the death of plaintiff’s intestate, who was killed when a motor truck which he was operating was struck by respondent’s train at an unguarded crossing. Judgment dismissing the complaint on the merits at the close of plaintiff’s case unanimously affirmed, with costs. The evidence shows that the train was running at a high rate of speed; that the whistle was not blown at the whistling post, which was 1,327 feet from the crossing, but was first blown when the train was only 400 feet from the crossing. This proof would justify a finding that the defendant was negligent in not giving timely and adequate notice of the approach of the train. But the proof also discloses that plaintiff’s intestate was guilty of contributory negligence as matter of law. As he approached the crossing he had an unobstructed view of the track at least as far east as the whistling post, and if he had looked he would have seen the approaching train in time to avoid the accident. The evidence shows a total lack of care on the part of the deceased. (Crough v. New York Central R. R. Co., 260 N. Y. 227; Schrader v. N. Y., C. & St. L. R. R. Co., 254 id. 148, 150.) Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.