Opinion
December 27, 1939.
Present — Sears, P.J., Crosby, Lewis, Taylor and Dowling, JJ.
Judgment affirmed, with costs. Memorandum: We find that the trial court was right in holding, on plaintiff's own showing, that defendant gave timely and adequate warning of the approach of the train to the crossing. It was not error for the court, under the circumstances, and as a matter of discretion, to refuse to permit the plaintiff to reopen his case in order to swear defendant's fireman in the hope that he would testify that he saw decedent approaching the crossing, for, after giving proper warning, defendant owed no duty to anticipate that decedent would dispute the right of way with the defendant. ( Kawacz v. Delaware, L. W.R.R., 259 N.Y. 166.) All concur. (The judgment dismisses the complaint in a railroad negligence action.)