Charles H. Jordan, as Administrator, etc., of Samuel J. Armstrong, Deceased, Respondent, v. Erie Railroad Company, Appellant

Charles H. Jordan, as Administrator, etc., of Samuel J. Armstrong, Deceased, Respondent, v. Erie Railroad Company, Appellant. Negligence — collision with train at crossing in city—evidence of caution — effect cf ordinance as to speed of trains on care required. Appeal from a judgment entered in the Erie county clerk’s office on the 21st day of January, 1908, and also from an order entered on the same day denying a motion for a new trial. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Held, that the plaintiff failed to establish freedom from contributory negligence on the part of the deceased. All concurred, except Kruse, J., who dissented in a memorandum. [DISSENT — Kruse, J. (dissenting):] Kruse, J. (dissenting): The jury was warranted in finding from the circumstances that the deceased and his associate stopped, looked and listened before attempting to cross the railroad, and that the train was not then within sight or hearing; and further, that from their stopping place they could see far enough up the track so that a train not then in view, going at the usual and ordinary rate of speed as regulated by the city ordinance, would not reach the crossing until they had passed over. It cannot be said as matter of law that the deceased was required to anticipate that a train which is prohibited from running more than six miles an hour at the given point, then out of his sight and hearing, will run at the rate of twenty-five or forty miles an hour, approach the crossing without warning and overtake and collide with him at the crossing, when he has no knowledge of the approaching train or reason to expect that one will be run at such excessive rate of speed. There being no eye-witness to the accident, the jury was warranted, from these and other circumstances, in finding the deceased free from contributory negligence. I, therefore, vote for affirmance of the judgment and order appealed from.