Flynn v. Long Island R. Co.

• Decision Date: 03 December 1942
• Court: New York Court of Appeals Court of Appeals
• Parties: FLYNN v. LONG ISLAND R. CO.

289 N.Y. 283

45 N.E.2d 445

FLYNN

v.LONG ISLAND R. CO.

Court of Appeals of New York.

Dec. 3, 1942.

Appeal from Supreme Court, Appellate Division, Second Department.

Death action by Maria L. Flynn, as administratrix of John E. Flynn, deceased, against the Long Island Railroad Company. From a judgment of the Appellate Division of the Supreme Court, 263 App.Div. 1011, 33 N.Y.S.2d 924, unanimously affirming a judgment in favor of defendant entered on a dismissal of the complaint by the court at Trial Term, Kadien, J., at close of plaintiff's case, the plaintiff appeals by permission after leave to appeal had been denied by the Appellate Division, 264 App.Div. 779, 35 N.Y.S.2d 726.

Reversed and new trial granted.

LEHMAN, C. J., and LEWIS, J., dissenting. Samuel Sumner Goldberg, of New York City, for appellant.

Ralph E. Hemstreet and Louis J. Carruthers, both of Brooklyn, for respondent.

FINCH, Judge.

This is an action for wrongful death of plaintiff's intestate resulting from a railroad crossing accident. The complaint was dismissed at the close of plaintiff's case, presumably upon the ground of contributory negligence on the part of the intestate, and the Appellate Division has unanimously affirmed.

On the morning of September 29, 1939, John E. Flynn, the deceased, was driving his employer's truck westeward along Long Island avenue or Brentwood road, as it is also known, near Bayshore, Long Island. This road runs parallel to a track of the Long Island Railroad, easterly and westerly, for about one mile, and then turns at an angle of about ninety degrees and crosses the track. In the truck with the deceased was his helper, one Scheer, who was sitting on the deceased's right, which was the side nearest the track. The truck was twenty-seven feet long. The cab of the truck was smaller than the body, so that the body of the truck overhung the cab by about twenty inches. When deceased began to make the turn, his truck was only fifty feet from the center of the track. Eyewitnesses to the accident testified that as the deceased's truck proceeded westerly along Brentwood road and came near to the turn, a westbound train approached, going at a very fast rate of speed. Defendant's engineer had failed to signal at the whistling post, located more than 1,300 feet east of the crossing. There is testimony that the engineer did not sound the whistle until the train was only 400 feet from the crossing, at which time the deceased's truck was already at the crossing. Both occupants of the truck was killed in the resulting collision.

The deceased has been held guilty of contributory negligence as a matter of law upon the ground that, as he approached the crossing, he had an unobstructed view of the track at least as far east as the whistling post and that, if he had looked, he would have seen the approaching train in time to avoid the accident. Since the burden of proving contributory negligence in a death action is upon the defendant, and the complaint herein was dismissed at the end of plaintiff's case, we must reverse if any possible...