Barker v. New York Central & Hudson River Railroad

The decedents were not accountable for the conduct of Scully, nor was he amenable to their advice or command. They, unfamiliar with the system of tracks and the related ways and structures, were justified in respecting in a degree his judgment, and if, amidst the warning shouts, they did not in the few available seconds interrupt his hasty and unexpected attempt to contest with the train in the matter of crossing, it cannot be decided by the court that they were negligent in doing so. The evidence preponderatingly shows that the collision was caused by Scully’s negligent attempt to pass before the train in the face of warnings timely given by the flagman on the easterly side, as well as by the *919flagman on the westerly side, and by outcries by several other persons, which were given in time to enable him to avoid the train. The judgment and order in each case should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Thomas, Mills and Rich, JJ., concurred; Stapleton, J., dissented. Judgment and order reversed and new trial granted, costs to abide the event.