Opinion
December 23, 1955
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
This is a proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles revoking petitioner's chauffeur's license. The determination followed a hearing at which evidence was taken, and made upon a finding that petitioner drove his motor vehicle at such a rate of speed that he was unable to stop without causing property damage or personal injuries, in violation of subdivision 1 of section 56 Veh. Traf. of the Vehicle and Traffic Law. Petitioner was driving a concrete mixer truck, loaded to a capacity of fifteen tons, in the city of Oneonta, and proceeding south toward an unguarded one-track railroad crossing on a spur of the Southern New England Railroad. He admitted that he approached and entered the crossing at a speed of between twenty-five and thirty miles an hour. At the same time a diesel electric locomotive pulling one car backed into the crossing at a speed of three or four miles an hour. A collision resulted with disastrous consequences. The conductor riding on the locomotive sustained injuries from which he died. Petitioner's truck tipped over on an automobile and injured the occupant. No regularly scheduled trains used the spur over which the crossing ran, but petitioner was thoroughly familiar with the place and knew the spur was used intermittently for freight purposes. He claimed that his view was obstructed by another truck. If that is true his duty to proceed carefully and slowly was just as strong as though he actually saw the locomotive. It seems obvious that the commissioner had substantial evidence to sustain his determination that petitioner violated the statute. Determination unanimously confirmed, without costs.