(dissenting). The narrow rule as to contributory negligence which the majority ip attempting to establish In this case is contrary to .the present day decisional law. The majority takes the position that “ he [plaintiff] could not or at least did not counter the damaging evidence suggesting contributory negligence on his part ” and, therefore, he has not sustained the burden of proving freedom from contributory negligence. The court is deciding, as a matter of law, a tenuous question which was within the province of the jury. The court and jury observed the witnesses and from the present record it would not have been difficult for the jury to find that the negligence of the defendants was the sole cause of the accident, i.e., Orwat v. Kawecki (22 N Y 2d 869). The case was tried before an experienced and competent Trial Judge; there were no exceptions to the charge and the request to charge by the defendants was granted. Under the circumstances, the judgment should be affirmed. (See Mann v. Hunt, 283 App. Div. 140, 142.)