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Orafina v. New York State Rys.

Supreme Court of New York, Appellate Division

December 29, 1911

ANGELLO ORAFINA, as Administrator, etc., of CONGETTA ORAFINA, Deceased, Respondent,
v.
NEW YORK STATE RAILWAYS, Appellant.

Page 418

APPEAL by the defendant, the New York State Railways, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 21st day of March, 1911, upon the verdict of a jury for $900, and also from an order entered in said clerk's office on the 30th day of March, 1911, denying the defendant's motion for judgment on the verdict and the special findings therein contained; also from a second order entered on the 14th day of April, 1911, denying the defendant's motion for the same relief, and also from an order entered on the 28th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.

The action was commenced on the 30th day of July, 1910, to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence.

COUNSEL

Frank Rice, for the appellant.

Salvatore M. Vella, for the respondent.

MCLENNAN, P. J.:

Plaintiff's intestate, a child four years and four months of age, was struck and almost instantly killed by one of defendant's cars at about one-thirty P. M. on May 10, 1910, at a highway crossing in the town of Victor, Ontario county.

The defendant owned and operated a suburban electric railroad, extending from Geneva to Rochester, a distance of about forty-five miles, passing through Victor and Canandaigua.

The crossing in question is 1,917 feet along the highway from the east corporation line of Victor, and 1,492 feet along defendant's tracks from the east corporation line. Victor is an incorporated village of 881 inhabitants.

At the crossing the railroad runs nearly east and west and the highway nearly north and south. The parents of the deceased occupied a house on the highway about 245 feet south of the crossing. Between this house and the railroad track is

Page 419

another house 150 feet distant from the track, and the only other house in sight to the south is more than 1,000 feet from the track. On the north side of the track there is but one house on the highway between the crossing and the east corporation line. The defendant's track is perfectly straight for more than 1,500 feet in each direction from the crossing, and nothing obstructs the view except the trolley poles and the wing fences at the crossing. The day of the accident was a bright, clear day.

Shortly before the accident the intestate was in the yard at her home, with her mother and other children, and in some manner, unnoticed by her mother, the child made her way to the crossing, and, with a short stick in her hand, was playing about the tracks when defendant's car came in sight. The car was traveling west at the rate of about forty-five miles per hour, and the motorman, after he saw the child upon or near the track, was unable ...


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