Dolfini v. Erie R. Co.

• Citation: 178 N.Y. 1,70 N.E. 68
• Parties: DOLFINI v. ERIE R. CO.
• Decision Date: 04 March 1904
• Court: New York Court of Appeals

178 N.Y. 1

70 N.E. 68

DOLFINI

v.ERIE R. CO.

Court of Appeals of New York.

March 4, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Peter D. Dolfini against the Erie Railroad Company. From a judgment of the Appellate Division (81 N. Y. Supp. 1124) affirming a judgment for plaintiff, defendant appeals. Reversed.

Henry Bacon and Joseph Merritt, for appellant.

Edwin S. Merrill, for respondent.

CULLEN, J.

On the record before us, we think that the plaintiff was clearly guilty of contributory negligence, precluding a recovery for his injuries, and that the motion of the defendant made on the trial to dismiss the complaint should have been granted. On a clear summer's afternoon, between 4 and 5 o'clock, the plaintiff was driving along a public highway in Orange county towards the intersection of such highway with the Erie Railroad, known as ‘Ryan's Crossing.’ The plaintiff was approaching the railroad from the south. When he had arrived in the vicinity of the crossing, there was a freight train going east on the track nearest to him. He testified that he waited until this train disappeared from his view towards the east, and thereupon started to cross the railroad; that when 20 feet distant from the near track he looked to the right or east and saw that nothing was on the tracks; that he continued across the railroad, and that, as he was passing over the northerly or west-bound track, his vehicle was struck by a passenger train coming from the east, and he received the injuries for which he brought the action. The horse was going ‘on a good, fair walk.’ At the scene of the accident the highway intersects the railroad at an acute angle. There was a much greater space than usual between the two tracks, in consequence of there having formerly been another track between them. The distance between the first or nearest rail of the east-bound track and the nearest rail of the west-bound track was 33 feet, and 11 feet further would carry any object clear of a train moving on the lastnamed track. The railroad crossed the highway on a straight course, which continued to the east for a distance of 1,050 feet, where it curved to the right. While the view of a traveler approaching from the south of this portion of the railroad was somewhat obstructed by a wall and trees until he reached a point 75 feet from the west-bound track, from that point the view was entirely clear. He could there see the railroad to the east for a distance of 800 feet. At 50 feet from the crossing he could see the road for 900 feet, and at 25 feet from the crossing for 1,000 feet. The grade of the railroad from the east to the crossing was...