(concurring). I concur in the reversal of this judgment for error in the charge. The language, taken by the trial court, from the opinion rendered in Lawson v. Union Ry. Co., 40 App. Div. 312, was evidently used by Mr. Justice Rumsey, not as a complete statement of the *243relative rights and duties of the operators of cars and of persons crossing the tracks, but simply as bearing upon the matter of contributory negligence. That this was the meaning of the court and that there was no intention to depart from the well settled rules of law applicable to the subject, is rendered quite clear from the case cited by the writer of the opinion (Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30) as authority for the proposition stated.
The words thus used by the Appellate Division, when employed verbatim for an instruction to the jury in the case at bar, necessarily prejudiced the defendant; since the fact of the operation of the plaintiff’s mind as to the reasonableness of his attempt to cross the track was made to measure the duty of the defendant’s servant, whether the latter had reasonable ground to expect the attempt, or not.
Gildersleeve, J., concurs.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.