(dissenting). The plaintiffs once having a general verdict in their favor are here with their complaint dismissed upon the merits. (Civ. Prac. Act, § 482.) To justify such dismissal there must be no evidence which presented a question of fact. (Carlisle v. Norris, 215 N. Y. 400, 403.)
The verdict and the rule to be applied on the dismissal of a complaint require us to give plaintiffs the most favorable consideration of every fact established on the trial and the benefit of every fair inference drawn from those facts. (Foulke v. New York Consolidated R. R. Co., 228 N. Y. 269, 271.)
Plaintiffs’ intestate was waiting at a hotel for the arrival of a train at the station diagonally across the street and tracks. At about the time the train was due he heard a locomotive whistle and started across the street toward the station. It turned out *396that the approaching train was not the one he expected to take, although coming from the same direction.- It did not slow up and stop, as he might have expected, but ran by the station at a high rate of speed. However, he crossed the tracks and had turned to go toward the end of the station platform when he was struck and killed.
As I read the record he was within the boundaries of the highway at the time the accident occurred. He was following what appeared to be a way provided to reach the end of the station platform abutting on the street. The bank of snow which prevented his escape was one created in part at least by the railroad company in throwing away the snow from the tracks. It cannot be assumed that he knew the amount of overhang of the locomotive, and it appears that he made an effort to avoid the danger by leaning over as far as possible against the snow bank. These facts and the fair inferences to be drawn therefrom do not seem to me sufficient to warrant a determination that the decedent was guilty of contributory negligence as a matter of law. I think,the negligence of the defendant and the contributory negligence of the decedent were questions of fact upon which the jury have passed (Mullen v. Schenectady R. Co., 214 N. Y. 300; Chamberlain v. Lehigh Valley R. R. Co., 238 id. 233), and that the judgment should be reversed and the verdict reinstated.
Judgment and order affirmed, with costs.