The Royal Indemnity Company, which had issued a policy of workmen’s compensation insurance to one Morgan Belmont, instituted this action under the provisions of section 29 of the Workmen’s Compensation Law. It is alleged that the death of Mr. Belmont’s chauffeur, one Carl Danielson, was caused by the negligence of the defendant herein.
The deceased was killed when the automobile he was driving was struck by one of the trains of the defendant railroad company. The uncontradicted testimony established that two warning signals, known as blinker or alternating lights, were operating in full view of the deceased as he approached the railroad tracks. These lights flashed red at the rate of thirty-eight flashes per minute when set in motion by a train approaching from either the east or the west. Despite this warning signal the deceased proceeded to drive his car onto the tracks, and it was struck and he was killed. If the deceased did not see the warning signals he was guilty of contributory negligence. If he saw them but proceeded onto the tracks in the mistaken belief that the lights were set in motion by the east-bound train, then at a standstill in the station, instead of by the west-bound train which struck his automobile, he was also guilty of contributory negligence. In addition, all the affirmative evidence in the case discloses that the west-bound train gave the usual and customary warning signal by whistle as it approached the crossing.
I dissent and vote to reverse the judgment and dismiss the complaint.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the judgment as entered to the sum of $28,948.51; in which event the judgment, as so modified, and the order appealed from are affirmed, without costs. Settle order on notice.