Ami De Witt Mitchell, Administrator, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent

Ami De Witt Mitchell, Administrator, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. (Argued March 24, 1876 ; decided April 4, 1876.) This action was brought, to recover damages for the alleged negligent killing of plaintiff’s intestate. The deceased was walking northerly on the east sidewalk of Broadway, the main street of the village of Greenbush ; the defendant’s road passed northerly at some distance east of the street. When plaintiff came to a certain street, crossing Broadway, she found some box cars standing there upon a railroad track, partly crossing the street, and obstructing her view of the railroad tracks toward the north and east; about this time an engine, with five box cars, was coming from the south upon the westerly one of the main tracks of the defendant’s road. About 300 feet south-easterly of Broadway there was a switch, and there that train made a running switch — the engine passing on and the cars running off upon another track. As deceased passed the box cars, which were standing still, partly across the street, she emerged into a clear space of six feet before she came to another track. She passed over that track into a space of twenty feet, between the second and third tracks, and as she stepped upon the third track she was struck by the engine and killed. The cars switched off, passed northwestly on the second track, after the deceased had passed that track, and, probably after she was struck by the engine. The engine, in order that the running switch could be made, moved at a greater rate of speed than the cars detached from it. There was nothing to obstruct her view of the second and third track after she passed the first; there appeared to have been nothing to distract her attention. As she stepped upon the third track she was struck by the engine and killed. Plaintiff was nonsuited on the trial. jHeld, no error; that it was clear from the circumstances that if the deceased had used her senses of sight and hearing she must have seen the engine in time to have avoided the collision, and that but for her carelessness no accident would have happened. The court cite Johnson v. Hudson River Railroad Company (20 N. Y., 65) ; Reynolds v. Hew York Central and Hudson River Railroad Company (58 id., 248) ; Davis v. Hew York Central and Hudson River Railroad Company (47 id., 400) ; Wilcox v. Rome, Watertown and Ogdensburgh Railroad Company (39 id., 358). Amasa J. Parker for the appellant. Ezek Cowen for the respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur, except Allen, J., not voting. Judgment affirmed.