Opinion
May, 1935.
The actions were brought to recover damages arising from the death of plaintiffs' intestates, claimed to have been occasioned by the negligent operation of one of defendant's trains at a highway grade crossing. A nonsuit was granted at the close of all the evidence. No witness upon the trial gave affirmative evidence that the locomotive whistle was not blown. Upon the motion for the new trial, made before the Special Term presided over by the same justice who presided at the Trial Term whereat the nonsuit was granted, it appeared that three new witnesses had been found, and that each would give affirmative evidence that the whistle was not blown. The attorneys for the plaintiffs seemed to have exercised reasonable diligence in preparation for the original trial, and their failure to find these witnesses was excusable. Order affirmed, with ten dollars costs and disbursements. Hill, P.J., Rhodes, McNamee and Crapser, JJ., concur; Bliss, J., dissents.