(dissenting):
This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The accident occurred at a grade crossing in Mechanicville on the evening of January 25, 1913, at which point the defendant maintains a flagman. The plaintiff, with his wife, approached this crossing on the evening in question, and they were detained by a passing freight train. When this train had passed the plaintiff stepped forward, looking in both directions, as he testifies, and seeing no train approaching, told his wife to come on, and an instant later was struck by the engine of a passenger train passing over this grade crossing at the rate of twenty to twenty-five miles per hour, and was carried on the pilot of the engine a distance of twenty-one miles before he was discovered and taken from his position. The plaintiff testified that the flagman, standing near his shanty, swung his lantern and told him to go ahead at the time of the accident, and the evidence,.while conflicting, was sufficient to go to the jury upon the issues presented, and, the jury having found for the plaintiff, there is evidence sufficient to support the judgment. No question of the defendant’s negligence is suggested by the appeal, and we are clearly of *199opinion that it cannot he said as a matter of law that the plaintiff was guilty of contributory negligence under the facts as the jury might properly have found them under the evidence.
I think the jury was properly instructed as to the law, and that the contention of the defendant that the court erred in refusing to charge the jury “ that if the flagman at the crossing shouted to Mr. Kratka when he started to cross, and warned him not to cross, that the flagman did his whole duty,” is without force. It is the province of the jury to determine upon all of the evidence whether the defendant’s servant has performed his duty, and it cannot be presumed that the jury bad any difficulty upon this point. There was a direct and irreconcilable conflict of evidence upon the question of what the flagman did; that was the crucial point in the litigation. The plaintiff contended that the flagman stood near his shanty at the side of the street, instead of in the center where he could observe the whole situation, and that the flagman told him to go ahead after the freight train had passed, and that he acted upon this assurance, in connection with his own observations, and met with the accident. On the'other hand the flagman testified that he shouted at the plaintiff and warned him not to cross, and the jury certainly needed no instruction that if they accepted the flagman’s testimony the plaintiff could not recover. Obviously the plaintiff, if he had warning, was not entitled to recover, and it was only in the event .that the jury accepted his version of the facts, rather than those of the flagman, that the jury were warranted in giving him a verdict, and this was made entirely clear by the charge of the court.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event. The finding of fact disapproved of is that the plaintiff was not guilty of contributory negligence, and that the defendant was negligent.