Krauss v. Wallkill Valley Railroad

PER CURIAM. We think plaintiff failed to show the absence ■of contributory negligence on the part of the deceased, the testimony in the case rather tending to establish his carelessness. The train was backing slowly. Krauss was walking across the track. There were but two box cars between him and the slowly moving train. He could see down the track two or three hundred feet. Had he looked before he stepped onto the track between the two cars, it is difficult to understand how he could have failed to see, at least, the nearest end of the approaching train. All the evidence given in the case indicates negligence on the part of the deceased. If, however, .the testimony does not absolutely show the contributory negligence of Krauss, it certainly fails to establish his freedom from negligence. Hence, we think, the case should not have been submitted to the jury. “In the absence of evidence •exonerating the deceased from contributing by his own negligence to the accident, no case was made for submission to the jury.” Borden v. Railroad Co., 131 N. Y. 671, 30 N. E. Rep. 586; Wiwirowski v. Railway Co., 124 N. Y. 425, 26 N. E. Rep. 1023. It is well settled that the omission of a railroad company to give statutory or other signals, or exercise proper care, does not excuse one crossing a track from observing care on his own part. Cullen v. President, etc., 113 N. Y. 667, 21 N. E. Rep. 716. This view of the case renders it unnecessary to discuss the other •questions raised. Judgment reversed; new trial granted; costs to abide the event.