Meddaugh v. New York, O. & W. Railway Co. , 93 N.Y. Sup. Ct. 620 ( 1895 )

PUTNAM, J.

This case is a close one, but I am inclined to think that the trial judge properly submitted the question of contributory negligence to the jury. As the deceased approached the railroad crossing, his view to the east was cut off by the Wilkinson store, 28 feet wide and 70 feet deep, and only 7 feet from the track. He was sitting on the rear end of the wagon, 18 or 20 feet from the head of the horses. When the horses went onto the railroad track he was prevented from looking to the east by the store. He could not look down the track until he was 12 feet from it, and when his horses must have crossed. As the witness Leroy testified:

“At the time Meddaugh drove on the track he could not have seen this engine if he had looked. I think that as soon as it was possible for him to see the engine he made actions to get off. He looked around as soon as he could see. * * * In going from where he stopped to wait for this freight engine he did not have any opportunity to see the railroad until he got down to Wilkinson’s store, and then could not see it except beyond the switch. If the train was behind the store, or between the switch and the store, he could not see it looking through there.”

I think this evidence raised a question of fact as to the contributory negligence of deceased that was properly submitted to the jury. Cook v. Railroad Co. (Sup.) 15 N. Y. Supp. 45; Id., 128 N. Y. 635, 29 N. E. 147. I am therefore in favor of affirming the judgment. All concur.