At the time of the accident a highway which crossed the defendant’s right of way in the village of Gowanda between the stations of Gowanda and Collins, was being improved under a State contract. The plaintiff was the owner of a truck which was driven by his employee and was being used to haul gravel in connection with the construction work. The practice had been to back the truck up to the concrete mixer and then dump the load onto the ground as near the mixer as possible. The gravel was then shoveled directly into the mixer. Whenever the gravel was not dumped so that it could be shoveled into the mixer, it had to be carried to a place near the mixer in wheelbarrows. It was, therefore, more convenient to dump the truck in the immediate vicinity of the mixer. As the work progressed the mixer was moved and *47on the day before the accident it was apparent that the mixer would on the day in question approach very close to the track.
On the morning of the accident the driver of the truck on one of his trips between the place where he got the material and the place where the work was being done, stopped at the defendant’s Gowanda station and told the telegraph operator to give a “ slow order ” to Collins, that being the next station north from Gowanda. The answer of the telegraph operator was excluded from the evidence.
During the morning of the day of the accident the concrete mixer was gradually moved nearer and nearer to the defendant’s track until at the time of the accident the mixer was within ten feet. To reach as near as he could to the mixer at this point the driver backed the truck across the track, bringing the rear of the truck close to the mixer, but leaving the front part of the truck on the track. This position was taken by order of the man who had the State contract.
With the truck in this position, the front end being on the track, the load was dumped. The bottom of the body of the truck was V-shaped, and the dumping was done by raising the sideboards so that the contents of the truck would slide out. When the gravel was almost entirely unloaded and the box of the truck was being scraped out by the driver in order that the sideboards might be replaced in the closed position, and while eight or ten men were shoveling the gravel away, the crossing bell started ringing and one of the men present started to run up the track to flag the train. The track is substantially straight to the north for a distance of 700 or 800 feet where it curves, and the man saw the train just as he was starting up the track to flag it. He ran about 200 feet waving his hands and by that time the train was close to him. The engineer leaned out of the cab and motioned with his hand to the man. The man got off the track and the train passed him without slowing down until the truck was struck and then ran a further distance of about 300 feet before it stopped. The train was a freight train with empty cars and its speed was estimated at from ten to twenty-five miles an hour.
When the train came around the curve the whistle was blown and the driver of the truck jumped to his seat and tried to move the truck by its own power but could not do so because the wheels spun around in the gravel, which had been dumped from the truck. The driver called to the men who were shoveling the gravel to get behind and push. Some started to push the truck when someone called to the driver to jump out, which he did just before the train struck the truck.
*48On previous occasions the same difficulty in moving the truck after the gravel had been dumped had been experienced for the gravel fell from the truck all about the rear wheels. At the time of the accident the truck had been in the same position for at least three minutes.
There was a failure to show freedom from negligence on the part of the plaintiff. To stop a motor vehicle upon a railroad track and then unload the contents so that they would fall about the rear wheels and fasten the vehicle in that position, as experience had shown to be the effect of their practice, was clearly negligence. The railroad had a paramount right of way and the truck driver, in the exercise of care, could not stop his truck so that an accident could be avoided only by the stopping of an approaching train. It was not a case of necessity. Other methods of doing the work, though less convenient, were thoroughly practicable.
The plaintiff also seeks to support the judgment in his favor on the theory that the failure to stop the train was the sole proximate or legal cause of the accident. His contention is that the negligence of the plaintiff, if any, was complete, and that a new situation was presented upon which the defendant’s locomotive engineer was called upon to act after the negligence of the plaintiff had spent its force, and, therefore, that the negligence of the plaintiff was not the proximate or legal cause of the accident. (Feldman v. N. Y. C. & H. R. R. R. Co., 142 App. Div. 339; affd., 205 N. Y. 553; Bragg v. Central N. E. R. Co., 228 id. 54; Davies v. Mann, 10 M. & W. 546.)
It is unnecessary to consider the application of the principle of the cases cited to the facts in the record here for the reason that the questions of fact which such a theory presents were not submitted to the jury for decision. The charge of the court was in general terms, although the court did say that to find a verdict for the plaintiff the jury must find not only that the defendant was negligent but also that “ the plaintiff and his servant operating that truck were entirely free from any negligence that helped to bring about this injury,” and again that, “ if the plaintiff or his servant operating that truck were guilty of negligence in any degree however slight that contributed to this injury without which the injury would not have happened notwithstanding the defendant’s negligence, then the plaintiff cannot recover.” The balance of the charge, however, shows that these statements, in relation to proximate cause, were but the conventional phrases used in defining contributory negligence. This becomes clear when the whole charge is considered, for the court finally said, “ if you find that the plaintiff, acting through his servants and these *49men in control of the truck — if you believe that he did not act as a prudent man would act under the circumstances; then he is chargeable with negligence, and the plaintiff cannot recover. Put yourselves right in the place of those tnen, and as prudent men, would you have backed your truck onto a railroad track and left it there under those circumstances? If a prudent man would have done that, then they were justified in doing it; if a prudent man would not have done it, under the circumstances, then they were not justified in doing it. That is about all there is to it.” There is in this no intimation of any theory that the plaintiff could recover in spite of the negligence on the part "of the driver in placing his truck on the track and there unloading it. But the question was whether such acts were or were not negligent, and the finding of the jury is to the effect that these acts were not negligent, a finding which is contrary to the law.
The judgment should be reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event.
All concur, except Davis and Crouch, JJ., who dissent in an opinion by Davis, J.