Muscarella v. New York Central Railroad

Per Curiam, The husband of the plaintiff was struck by a train of the defendant when he was crossing one of its tracks, and was instantly killed. The jury found that he was struck at a permissive crossing, and, on this appeal by the defendant company from the judgment recovered against it, two questions are raised: (1) Was the evidence sufficient in the case to establish a permissive crossing? (2) Was the plaintiff’s decedent guilty of contributory negligence? That each question was for the jury clearly appears from the following extracts from the opinion of the learned court below discharging the rules for a new trial and for judgment non obstante veredicto: “The evidence supporting the contention that there was a permissive crossing, briefly summarized, was to the effect: That everybody goes across there; that there was a beaten path on the tracks that had been there for from eight to twelve years; that it could be seen plain enough until the stone ballast was put in; that some foot travelers went to the Nickel Plate tool house over this path; some to the grape juice plant, and some to the New York Central tool house; that forty or fifty people at a time went through morning, noon and night; that there was no objection made; that after the stone ballast was put in, the path showed plainly up to the stone on both sides of the tracks and that the paths on each [122] side of the tracks are directly across one from the other, that most people who live in the lower end of the town on the west side go over this path and that they went over it morning and night; that there was a pathway all the way across before the ballast was pnt in; that stone or cinders would not show a path as gravel or dirt would, but that before the stone and cinders were put in there was a definite path crossing the tracks; and that when snow was on the ground there was a definite path at this place all the way over the tracks......The evidence relied upon to rebut the charge of contributory negligence on the part of the deceased was to the effect that the deceased stopped and looked before he committed himself to the crossing;' that there was no warning given; that at the time it was a little dark (that the sun did not rise till 7:31 and the accident happened at 7:02 a. m.), foggy and beginning to rain; that the train could not be seen further than fifty feet; that the wind was blowing; that the train was not making much noise — ■ ‘running quietly’; and that the deceased was struck in half a second — snap of a finger — after the train was visible.” The assignment of error is overruled and the judgment is affirmed.