Citations
- 156 A.D. 394
Full opinion text
Kruse, J.:
The plaintiff’s intestate was struck by the Twentieth Century Limited at a street crossing in the city of Dunkirk and was ‘killed. The collision occurred at night. The train was going at the rate of fifty to seventy miles an hour. It approached the crossing with headlight out or dim and whistle and bell silent, so the jury could find from the evidence. But there was also evidence tending to show that the man who thus lost his life went upon the tracks after the gates were lowered.
The evidence tends to show that after the gates went down a freight train from the west passed over -the crossing; at the same time the west-bound Twentieth Century Limited was approaching from the east; that the decedent went upon the . tracks while the freight train was passing or after it had passed and while the gates were down, and before the Twentieth Century Limited had reached the crossing. Evidently the man was looking- out for the freight train and was unaware of the approaching passenger train which struck him.
While I think the evidence justifies the finding that the engineer of the colliding train. was negligent in running his train as he did, and that if the defendant is liable at all the ver-, diet is not excessive, I am not persuaded that the defendant is liable if the man went upon the tracks while the gates were down.
I am not aware that the precise question has ever been decided by the appellate courts of this State; The rule as laid down in the Cyclopedia of Law and. Procedure (33 Cyc. 999) is as follows: