Opinion
November 15, 1944.
Appeal from Clinton County.
The action is for conscious pain and suffering and death of plaintiff's intestate, Harold Hartwell. His death occurred on January 18, 1943, as the result of a collision with a train at a railroad crossing located near the station of defendant at Forest, New York. Decedent was crossing the tracks of defendant in his automobile. It was snowing and the snow was blowing and drifting. The highway approached the tracks on a downgrade through a cut about four feet deep, and the snow was piled high on the sides of the highway. His view was obscured in both directions. The train was two hours and twenty minutes late and traveling at forty miles per hour. Visibility was bad and the engineer did not see the automobile until the engine was about fifty feet from the crossing, and at that time the front wheels of the automobile were on the track. There is proof both ways by both interested and disinterested witnesses as to whether the engineer gave the usual warning by blowing his whistle and ringing the bell. Judgment and order affirmed, with costs. All concur.