Plaintiff’s intestate was struck by a train operated by the defendant at a grade crossing in the village of Mount Kisco on the 5th day of June, 1910, and instantly killed. Decedent was riding a bicycle and was accompanied by one Fedele, the latter being a few feet behind decedent and escaping his fate by running his bicycle into a telegraph post. The evidence is conflicting upon the material issues, but I am of the opinion that there was evidence in the case from which the jury might properly find that the defendant was guilty of negligence in the operation of its train, and that the decedent exercised that reasonable degree of care which the occasion would suggest to men of ordinary prudence. The decedent’s view of the track was obscured until quite near by a -factory building, and after that by two lines of telegraph poles, and it appears from the testimony that a train passing in an opposite direction had left a cloud of smoke behind it, so that the track for a distance of 200 feet or more from the crossing was obscured so that decedent and his • companion could not see the approaching train, and, if plaintiff’s witnesses are to be believed, the defendant on a dark, rainy day operated its train at the rate of forty miles an hour over this crossing and through this cloud of smoke without sounding a whistle or ringing a bell, or giving any warning of its approach. This is not a case of the dece*668dent riding into the cloud of smoke; the evidence is .that the smoke was so dense 200 feet away from the crossing that the approaching train could not be seen, and the jury might properly have found that it was negligent on the part of the defendant to come out of this cloud of smoke within 200 feet of a grade crossing, running at a high rate of speed, without giving timely warning, and that the decedent was not to be charged with contributory negligence for passing over' an unobstructed crossing, where he had a view for 200 feet, and where he had' a right to rely in some measure upon the defendant exercising some degree of care for his protection.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order reversed and new trial granted, costs to abide the event.