Kate Ward, as Administratrix, etc., of Morris Ward, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Kate Ward, as Administratrix, etc., of Morris Ward, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Second Department, October 17, 1906. Hegligence — collision between automobile and electric car at crossing— failure to show freedom from contributory negligence. The plaintiff’s intestate was riding in his employer’s automobile, the' employer driving. On approaching the crossing of an electric railway there was an unobstructed view down the track save for a signboard sixteen feet in length, located thirty feet from the track. Although there was evidence that before reaching the signboard the driver had looked and seen no car, there .was no evidence that either he or the intestate had looked again on passing the sign. Held, that a judgment for the plaintiff must be reversed, there being no evidence of freedom from contributory negligence by the intestate or liis employer.' Hooker and Miller, J,T., dissented. Appeal by the defendant,. The Brooklyn Heights Railroad-Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of December, 1905, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 14tli day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes. The plaintiff’s intestate was killed by a collision between an elec, trie train of defendant’s cars and an automobile which was crossing the car tracks and in which the deceased was riding with his employer. The latter was going about in the automobile on business, and took the deceased along with him as a helper-arid protector against accidents as he testified. The employer was operating the automobile and they sat on- the same seat side by side. The accident happened in a suburb of the borough of Brooklyn which is sparsely built up. The automobile was going from east to west in approaching and crossing the railroad. The train which came in collision was coming from Coney Island, i. e., going north. To the left of the automobile as it came along there was a real estate sign, - ¡sixteen feet long and nine feet high, placed lengthwise with the ¡street the automobile was on, and about twenty-nine feet in from it in the lots. The end of the sign nearest the railroad track was thirty feet from the track, and anywhere in that space the view down the track was unobstructed. Before getting to the sign the view down the track for at least four hundred and fifty feet, i. <?., toward Coney Island, was unobstructed after the vision ceased to be in any way obstructed by a house on another street, and which was one hundred and thirteen feet away from the street the automobile was on. The employer testified that after passing the line of this house he looked down the track and saw no car coming; that he did not look again in that direction until his automobile was on the first track, i. e., the one on which the collision occurred, and that then the train was only ten to twenty feet away. He gave no evidence that the deceased looked or did anything at all at any point, and there was no other evidence on that head. I. R. Ocland [George D. Yeomans with him on the brief], for the appellant. No brief submitted for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: I do not see how the judgment can be sustained. There was really no obstruction to the .view down the track as the automobile came along to it proved, except the real estate sign; but it was only 16 long, and was 30 feet from the track. Before reaching it there was ample view'down the track, and also after passing it. Any one looking from the automobile with the care required by 'law on approaching a railroad crossing could not help seeing the train in time to avoid getting dangerously in front of it without knowing it. The evidence of obstruction of the view of the deceased is very obscure, and may be cleared up on a new trial. Moreover, there is no evidence of. any care whatever by. the ■ deceased. • - - The judgment and order should be reversed. Woodward and Jenks, JJ., concurred; Hooker and Miller, JJ., dissented. Judgment and order reversed and new trial granted, costs to abide the-event.