Judgment and order reversed and new trial granted, costs to abide the event, upon the ground that there is no evidence that the. decedent either looked or listened before he went upon the railroad track, and that it affirmatively .appears'that if he had so looked or if he had so listened-he.might have seen or heard the approaching train and avoided the accident which resulted in his death. ,(Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 90; Wieland v. Delaware & Hudson Canal Co., 167 id. 26.) Burr, Thomas, Rich and Carr, JJ., concurred; Hirschberg, P. J., dissented.