I have carefully examined this case, in connection with the grounds assigned for dismissal of the plaintiff’s complaint. I find myself in disagreement with Mr. Justice Van Kirk. There is no question but what the defendant’s negligence was properly submitted to the jury, and that it was properly decided. On the question of deceased’s contributory negligence it must be borne in mind that death ensued, and that the representative of his estate is not held to that strict rule which obtains when there is a survival of the injured party. (See Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86, 90.) That decision was rendered in 1909, and to make the rule more equitable, by chapter 228 of the Laws of 1913 section 841-b was added to the Code of Civil Procedure which has been adopted and incorporated in the Civil Practice Act, section 265. The burden of proving contributory negligence is now borne by the defendant. I do not think this defendant so met *290this burden of proof as to make it a question of law for the court. If this train was coming through this cut or depression at the rate of forty-five miles an hour it was covering three-fourths of a mile a minute. Plaintiff’s intestate looked when he got by the bushes where he could look, at least the jury must have so found. He was not called upon to keep looking; that has been repeatedly held. The evidence shows that the defendant proved a clear view up the track for one-fourth of a mile, and if the plaintiff’s intestate looked just before the engine came in sight, and did not see it, it would only be a matter of about ten to fifteen seconds before the enginé was upon him. Whether he should have looked again, or, under the circumstances, should have done anything more than he did do, was a question of fact for the jury, and in this case there is evidence to sustain the verdict. Again, that the defendant did not give the required warning when approaching the crossing must have been found by the jury. The absence or presence of warning and its sufficiency is an element to be considered when the contributory negligence of the deceased is the sole ground of objection. If he had sufficient warning and then drove upon the track a very different slant would have to be given to the evidence on that question. The question should not be decided as one of law. It was for the jury. The decision of the jury is not so against the weight of evidence as to make it a question of law.
I dissent and favor reversal of the judgment dismissing the complaint, and the restoration of the verdict of the jury.
Hasbrouck, J., concurs.
Order and judgment affirmed, with costs.