Chet R. Scheel Et Al. v. Long Island Rail Road Company

Under these circumstances, it is our opinion that plaintiff was guilty of contributory negligence as a matter of law (Cote v. Boston & Maine R. R., 278 N. Y. 78; Miller v. New York Cent. R. R. Co., 226 App. Div. 205, affd. 252 N. Y. 546; Crough v. New York Cent R. R. Co., 260 N. Y. 227; Schrader v. New York, Chicago & St. Louis R. R. Co., 254 N. Y. 148). In any event, if we did not dismiss the complaint, we would have reversed the judgment and granted a new trial by reason of the erroneous admission of the motion pictures in evidence. Such motion pictures were taken from a fixed position through the front window of the photographer's automobile as it moved along the Meadow Road in an easterly direction up to the grade crossing in question. However, the pictures did not show everything that a driver could, for example, see by peripheral vision or by turning his head momentarily. Therefore, the pictures could not be relied upon as representing all that plaintiff saw before the accident (cf. State v. United R. & Elec. Co., 162 Md. 404; 83 A. L. R. 1315). Nor did the pictures show whether plaintiff should have seen the train approaching the crossing from the west when he allegedly brought his automobile to a stop 20 feet from the northerly rail and looked to the west.