The accident out of which this action arose happened on defendant’s railroad where it crosses the highway at grade near the village of Van Etten, Chemung county, N. Y. On the 1st day of November, 1920, about one-twelve p. m., the plaintiff’s intestate was driving a truck loaded with household furniture belonging to one Wilson, who was with him on the truck, when the collision occurred. He, Chamberlain, was so badly injured that he died on November sixth thereafter. At the trial of the action the plaintiff had a verdict. On this appeal but a single question is presented, viz., that “ plaintiff’s intestate was guilty of contributory negligence as a matter of law.” That the defendant was chargeable with negligence, as found by the jury, is not questioned. Plaintiff is entitled to the most favorable construction that can be put upon the evidence to sustain the verdict. Some of the elements constituting the negligence of the defendant must be considered on the question presented here. The highway upon *396which the accident occurred approximately parallels the railroad-from Van Etten to Waverly, a distance of about fourteen miles. The evidence does not disclose that plaintiff’s intestate • had ever been over this highway before this trip in question. • Two lines of defendant’s railroad system converge hear this point, the main line, double tracked, from ¡Buffalo to New York, and what is called the Ithaca branch, also double tracked. Plaintiff’s intestate and' the train with which he collided were-each traveling in a southerly direction. The evidence indicates that plaintiff’s intestate was driving his truck toward the crossing at the speed of about eight miles an hour, and- that the train was coming on toward the same crossing at a rate of speed from thirty-five to forty-five miles an hour. North of this crossing there was another crossing known as the Westbrook crossing; this crossing was between 1,000 and 1,100 feet north. The first whistling post was 2,300 feet north of the crossing in question. The lay of the land inclined toward the south until within a few feet of the tracks where it was leveled up for the -tracks and some little distance north on the highway. The train in-question was the Black Diamond Express, the fastest train in-defendant’s system. It was coasting down through this valley; it did not stop at the Van Etten station. The first place plaintiff’s intestate could- have seen the train as he approached this crossing after he had made the Westbrook crossing was a point 600 feet to the north. It then came around a curve and from behind a red barn standing near the track. ‘ If the train was traveling forty-five miles, an hour, as the jury must have found by its verdict, it was nine and two-tenths seconds, time distance, from the point of the accident. The fair inference from the evidence, which discloses that the'deceased and Wilson did look, is that they looked just before the train came around the curve and the red barn which is near the track at that point. The jury has found that no warning was given and that the train was "■gliding.” After looking back the. plaintiff’s intestate had something to occupy his attention; he had to look up and down four converging tracks and onto the highway running in a southerly, direction ahead. The highway crosses the tracks at an oblique-angle and to cross the rails carefully with his load he had to swerve to the left and bring his wheels both against and over- the rail at the same time; he had eight- of those rails to cross. The photographs disclose considerable obstruction to the view as the crossing is approached. Defendant’s- engineer testified he could not see the crossing until he .was about upon it; Under all of the circumstances appearing here I do not think that the. question of deceased’s contributory negligence was one that" .could be decided *397as a matter of law. The defendant had the burden of proof on that question. (Code Civ. Proc. § 841-b, as added by Laws of 1913, chap. 228.) Mr. Justice Tuthill heard the evidence and saw the witnesses; he reserved the motion for nonsuit, received briefs and heard argument; ho reached the proper conclusion when he domed defendant’s motion. It was a question of fact for the jury. (Friess v. N. Y. C. & H. R. R. R. Co., 67 Hun, 206; affd., without opinion, 140 N. Y. 639; Massoth v. Delaware & Hudson Canal Co., 64 id. 524; Salter v. Utica & Black River Railroad Co., 88 id. 42; Greany v, Long Island Railroad Co., 101 id. 419.) The court says in the last cited case: “ He could probably have avoided the accident by stopping before he passed upon the track. But that is a degree of care not usual even with very prudent persons. It has not been decided by the courts of this State that a person approaching a railroad is bound as matter of law to stop, to avoid the imputation of negligence.” Carr v. Pennsylvania R. R. Co. (225 N. Y. 44) is a case, the vital features of which, on the question of contributory negligence, are not unlike the case at bar. It is a late expression of the Court of Appeals, and is controlling" here. This being a death case a different rale of consideration is required than if the injured party had lived and was able to testify. In Harrison v. N. Y. C. & H. R. R. R. Co. (195 N. Y. 86) the court, having found that the question of contributory negligence was properly submitted to the jury, said: “ The deceased having been killed, less evidence was required from his persona! representative to establish his freedom from negligence than would have been required from him had he survived and bean able-to-testify.” In Braun v. Buffalo General Electric Co. (200 N. Y. 484), at top of page 498, Judge Hiscock said: “ It has often been said that where the injured person is dead wider latitude should be allowed to the jury in passing on this question of contributory negligence, and this case seems to come well within those where it has been decided on meagre evidence that the care of the deceased person was a question for the jury.”
The judgment should be affirmed, wibh costs.
Judgment and order reversed upon the law and complaint dismissed, with costs.