Devine v. County of Westchester

In an action to recover damages for personal injury, loss of services, etc., the defendants, the New York Central Railroad Company and Berlanti Construction Co., Inc., appeal from a judgment of the Supreme Court, Westchester County, entered July 8, 1963 after trial, upon a jury’s verdict against them in favor of the plaintiff Mary Ellen Devine. (The cross appeals from the judgment which had been taken by both of the named plaintiffs were withdrawn by stipulation of the parties, dated Aug. 24, 1964.) Judgment affirmed, with one bill of costs to plaintiff Mary Ellen Devine, payable jointly by the said two defendants. No opinion. Beldoek, P. J., Brennan, Hill and Hopkins, JJ., concur; Ughetta, J., dissents and votes to reverse the judgment and to dismiss the complaint as against said two defendants, with the following memorandum: The critical issue is whether the plaintiff, Mary Ellen Devine, should have seen the oncoming train. Although the jury was permitted to infer that her view was obstructed by a truck and other equipment, her own testimony was to the contrary. She testified that, before she crossed the first track, she looked and could see up to the bend; she saw no train and crossed the first set of tracks; looked again when she was between the two sets of track but saw no train. There could have been no obstruction from that vantage point. The witness Carolyn Carbone saw the train at the bend before Mary crossed the first track; and the witness Kelly saw the train at the bend before Mary had crossed the first track. Under all the circumstances, it is my opinion that the injured plaintiff was contributorily negligent as a matter of law.