This is what is known as a negligence action. (See Code Civ. Proc. § 1902 et seq.; now Deceden,Estate Law, § 130 et seq., as *429added by Laws of 1920, chap. 919.) The appellant owns and operates a branch of its system from Troy to Schenectady and was so operating it on the 29th day of May, 1921. It runs in an easterly and westerly direction, it is crossed at grade, at Dunsbach Ferry station, by a highway running in a northerly and southerly direction from Cohoes to Dunsbach Ferry. Dunsbach Ferry is a summer resort. On May 29,1921, the plaintiff’s intestate was killed at this station by a freight train going east, at about nine-fifteen o’clock a. m. standard time. He approached the crossing in his five-passenger Essex automobile, from the north toward the south. The complaint is the usual complaint in negligence actions and charges that defendant’s negligence was the sole cause of plaintiff’s death. Defendant denies the charge of negligence and alleges, as a separate defense, that the deceased received the injuries from which he died by reason of his own negligence. The trial of the action, upon the issues thus presented by the pleadings, resulted in a verdict of $12,000 for plaintiffs, which includes funeral expenses and the value of the automobile which was totally destroyed. That the location of this accident is very dangerous is not denied by the appellant. On the north side of this railroad the high embankment, the bushes, grass and weeds growing thereon, and other obstruction cut off the view of one approaching from the north for a considerable distance and to within ten or twelve feet of the northerly rail of the said road. On the question of warning (blowing of whistle) the plaintiffs swore fourteen witnesses and the defendant swore fifteen witnesses; five of these had such relation to the defendant that they might be considered interested as that term is used in the trial of cases. The examination of the evidence given by plaintiffs’ witnesses on that subject shows that at least half was negative in character, and appellant urges that if such a condition was created, a finding by the jury in favor of the respondents was against the weight of the evidence. The evidence in this case on the question of signal or whistle blowing differs materially from the evidence on that subject in Matutinovich v. N. Y. C. R. R. Co. (182 App. Div. 451) and Capitula v. N. Y. C. R. R. Co. (200 id. 247) in that some of the witnesses for the plaintiff gave positive testimony that the whistle did not blow, and that they were in a position to hear if it had been blown. The jury was charged fully as to the force to be given to negative testimony, and under the circumstances obtaining here, and above referred to, I think the question was for the jury. (Henavie v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 280; Hintze v. N. Y. C. & H. R. R. R. Co., 149 App. Div. 217.) The evidence in this case does not justify a finding that the rate of speed was over twenty-five miles an hour. Negligence cannot be imputed to the *430defendant on that feature alone. The holding in Phelps v. Erie R. R. Co. (134 App. Div. 729) and Young v. Erie R. R. Co. (158 id. 14) to the effect that “It is not of itself a negligent act to drive a train over an ordinary highway crossing in the open country at full speed, be it ever so great,” has coupled with it the assumption that the required warning was given. The question of defendant’s negligence was properly submitted to the jury and properly decided by the jury. The defense of contributory negligence, the injury having resulted in death, must be alleged and proved by the defendant. (Code Civ. Proc. § 841b, as added by Laws of 1913, chap. 228; now Decedent Estate Law, § 131, as added by Laws of 1920, chap. 919.) That question was submitted to the jury and would have been considered properly submitted and the verdict of the jury thereon sustained by the evidence under conditions heretofore prevailing; but in this case, so far as I can find, for the first time, it is urged that the proper construction of section 53a of the Railroad Law will compel the holding that it was violated by plaintiffs’ intestate and that such violation is a complete defense to this action. That section was added by chapter 438 of the Laws of 1919 and took effect May 5,1919. Said section provides for the erection and maintenance, at a distance of 300 feet each way from a railroad grade crossing, of warning signs of specified design and dimension. Those signs were erected as required by statute near the approach to this crossing. It is then provided in and by the same section, rules for the use of the streets, highways and crossings by drivers of vehicles as follows: “ It shall be the duty of the driver of any vehicle using such street or highway and crossing to reduce speed to a safe limit upon passing such sign and to proceed cautiously and carefully with the vehicle under complete control.” The argument of the defendant that this section should be construed as it contends, and the reason for the law itself, is that the advent of automobiles has introduced into public travel, on streets and highways, a hazard that has not heretofore existed; that the property damage and loss of human life, with the advent of the automobile, have enormously increased over that of damage and death from any other kind of accident; that the rules making for safety on railroads are stringent within their field of operation; that it has to run its powerful engines and heavy cars on fixed rails in a fixed location; and that those approaching the crossing, in vehicles not so restricted, should be held to the strictest accountability in approaching such crossing. If the rule sought for by appellant is to obtain, the driver of a vehicle would have to stop at each crossing. Had the Legislature intended such result it would have said so in language that would not admit of any .doubt or confusion. It could and would have said “ and *431stop before proceeding,” or would have incorporated words of the same import into the section; in any event it is not the province of courts to legislate, thereby inserting into the section a vital provision it does not now contain. On the other hand, if the contention of the respondent is to prevail, viz., that this section is simply a codification of previously existing law, it serves no useful purpose; it would not change the rule nor the law for either the plaintiff or defendant in crossing cases founded upon negligence. It does change both the rule and the law from that which has heretofore existed; it provides for a greater degree of care in approaching grade crossings than has heretofore obtained. The trial court in submitting this case to the jury read the paragraph of section 53a above quoted, and specifically limited the care required of plaintiffs’ intestate to the “ exercise of ordinary care.” This section calls for more than ordinary care on the part of the driver of a vehicle approaching a crossing. The jury should have been instructed that more than ordinary care was required. Appellant duly excepted to this charge; such exception presents reversible error. The judgment should be reversed and a new trial granted, with costs to abide the event.