Reversible error was committed in the refusal to charge as requested, that if the jury find “ that the flagman, after the No. 1 train passed over, walked away from the crossing and failed to guard the crossing with sufficient care to warn the decedent’s automobile of the dangers of the approach of train No. 2, and that the failure on the part of the flagman caused the plaintiff’s automobile to cross over the railroad tracks, then negligence could be predicated against the defendant on that point.”
The majority of the court are of opinion that chapter 96 of the New Jersey Laws of 1909, with reference to railroad crossings protected by flagmen, was not required to be pleaded in "the complaint. Courts in New York do not nonsuit a plaintiff injured at a crossing for not stopping at such crossing. It is a question of fact, since a jury may consider the reliance on a stationed flagman there in deciding whether the injured person used reasonable care. This New Jersey statute, declaring that in any action, brought for injuries to person or property, pr for death caused at any crossing protected as aforesaid, *529a plaintiff shall not be barred because of the failure of the person injured or killed to stop, look and listen before passing over the crossing, is only to settle the point that the issue of contributory negligence is for the jury. That has now become the rule also in New York. (Elias v. Lehigh Valley R. R. Co., 226 N. Y. 154.) Obviously such a regulation, prescribed for the conduct of a trial, binds only the courts within the enacting State .(New York, S. & W. R. Co. v. Thierer, 209 Fed. Rep. 316), and does not go to the foundation of the cause of action.
The judgment and order appealed from are, therefore, reversed and a new trial granted, with costs to abide the event.
Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ., concur; Kelly, J., however, holds that the New Jersey statute is substantive, and, therefore, should have been pleaded.
Judgment and order reversed and new trial granted, with costs to abide the event.