I concur with Mr. Justice Clark in his opinion upon the question of the defendant’s negligence, holding the evidence sufficient to warrant a finding against the defendant upon that question. But, in view of the rule that in a death case like this the burden of proof is imposed upon the defendant to establish contributory negligence, I think we cannot hold as a matter of law that the deceased was guilty of such negligence.
This is not a case of failure to look and listen for trains approaching a highway crossing. The deceased, as well as the driver, saw the street car approaching. The fact that no one was waiting at the usual stopping place to take the car did not indicate that none would get off there. The usual stop signal had been given and the city ordinance required the street car to slow down to twelve miles an hour in passing over the crossing. Whether the deceased could have done anything to prevent the accident after it became apparent that there was danger in crossing, was, I think, a question of fact for a jury. (Ward v. Clark, 189 App. Div. 344.)
I am of the opinion that the case was properly submitted to the jury upon the question of contributory negligence, as well as the negligence of the defendant, and that the judgment and order should be affirmed, with costs.
All concur, except Lambert and Clark, JJ., who dissent in an opinion by Clark, J.