(dissenting). We would reverse and order a new trial, on the ground that the trial court committed reversible error in charging the jury that plaintiff could recover even if it found that plaintiff was on the train car platform in violation of section 83 of the Railroad Law and that such violation was the proximate cause of his injuries. (Bunt v. New York Cent. R.R. Co., 244 N. Y. 594; same case, 281 N. Y. 756; Kettel v. Erie R.R. Co., 176 App. Div. 430, affd. 225 N. Y. 727.) In our opinion, the exception taken sufficiently called the error to the trial court’s attention, but even if it did not, the error was such a fundamental one that we would take cognizance of it in the exercise of our power to reverse and to grant a new trial in the interests of justice. (Bulat v. O’Brien, 13 A D 2d 904; Be Joseph v. Gutekunst, 13 A D 2d 223; 4 Weinst&m-KornMiller, N. Y. Civ. Prac., par. 4017.09.)
Eager, J. P., Rabin and Wither, JJ., concur in Per Curiam opinion; Steuer and McNally, JJ., dissent in opinion.
Judgment affirmed, with $50 costs and disbursements to the respondent.