Oldenburg v. New York Central & Hudson River R. R. , 33 N.Y. St. Rep. 663 ( 1890 )

Titus, J.

This is an appeal from an order denying a motion for a new trial and from a judgment entered on the verdict of a jury. We think the questions raised in this case were properly disposed of by Judge Beckwith in his opinion on the motion for a new trial. The question of the negligence of the plaintiff’s intestate, and whether, under all the circumstances of the case he acted as a reasonably prudent man would have done, was properly left to the jury. It is manifest that by reason of the dead cars standing on the middle track, close up to the sidewalk, his view of the approaching engine was obstructed, and he could not with safety have stopped, after passing these cars,., to look. The space between the standing cars and the cross-bar of the tender was little " more than two feet, and whether, in the confusion caused by the noise of passing trains and the hallooing of the gateman, not knowing from whence the immediate danger could be expected, he acted with due care, was a question for the jury to determine.

The judgment should, therefore, be affirmed, with costs.

Hatch, J., was for affirmance for reason stated as above, and upon the opinion of Beckwith,'Ch. J., in denying motion for new trial. Beckwith, Oh. J., did not sit.

1 Affirming 29 N. Y. State Rep., 836.