In re Commissioners of Highways of Islip , 74 Hun 48 ( 1893 )

BARNARD, P. J.

The county court of Suffolk county made an order, upon the application of the commissioners of highways of Islip, Suffolk county, that the Long Island Railroad station a flagman at the intersection of their road with Second avenue, Bay Shore, and that they erect and maintain a signal electric bell at the intersection of the railroad with Fifth avenue in the village. The proof shows that, as to the Fifth avenue crossing, the first sight of the railroad train coming from the west by a highway traveler coming from the north is about 80 or 90 feet from the track. North, of the track there are maple trees. There are buildings on Fifth avenue on three of the corners made by the railroad intersection with the avenue. There is a curve in the railroad track. The track is sunken some .two feet. There is á high board fence near the crossing. One witness testifies that the prevailing condition at the crossing “obstructs the view entirely.” The trains, in summer, pass at a high rate of speed, and about 300 vehicles a day cross the track at this point. There is no proof returned as to the crossing at Second avenue. The right to the order in both cases is assailed upon the ground that the railroad company is ordered to give signals at railroad crossings of highways on grade. Such a view cannot be upheld. By section 33 the legislature intended to provide for further ■security to the public traveler upon highways as against railroad crossings then on grade in cases of peculiar danger. The section providing for signals in all cases was a general rule in all cases, but in peculiar cases of danger additional security should be afforded by the railroad. This was to be secured by application by those whose duty it was to keep the highways safe, and upon notice to the railroad. If the appellant’s view is right, section 33 is nugatory. The order should be affirmed, with costs and disbursements on each appeal All concur.