(dissenting). I am constrained to disagree with the court’s decision.
Although there was evidence from which a jury could have found that defendant railroad was negligent, I believe that plaintiff’s intestate was contributorily negligent as a matter of law and that the complaint was therefore properly dismissed in the courts below. Regardless of the testimony of distances and measurements given by the railroad employees, the nature of the terrain at the crossing — permitting one to see to the east and west for a considerable distance — was such that plaintiff’s intestate could not have failed to observe the westbound train which hit her if she had used her “ senses of hearing and sight and proceeded cautiously and carefully ”. (Crough v. New York Central R. R. Co., 260 N. Y. 227, 231.) Her negligence consisted either in crossing before the eastbound train had progressed far enough to give her an unobstructed view of the tracks to the east, whence the westbound train was coming (see Zaun v. Long Island R. R. Co., 201 N. Y. 599, affg. 139 App. Div. 719; Daniels v. Staten Island R. T. Co., 125 N. Y. 407, 410; Heaney v. Long Island R. R. Co., 112 N. Y. 122, 128), or, if the tracks in front of her were clear at the time, in failing to look toward the east before crossing. (See Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206, 213; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148, 150-151; Miller v. New York Central R. R. Co., 252 N. Y. 546; Horton v. New York Central R. R. Co., 237 N. Y. 38, 47.)
*110The judgment of the Appellate Division should be affirmed, with costs.
Conway, Desmond and Dye, JJ., concur with Loughran, Ch. J.; Fuld, J., dissents in opinion in which Lewis and Froessel, JJ., concur.
Judgments reversed, etc, [See 301 N. Y. 677.]