(dissenting). I agree with the admirable statement of the law in this opinion. I differ in its application to the facts of the case, and therefore record my dissent.
Under the law of New York, as stated in the court’s opinion, the burden Was on this plaintiff to affirmatively show his freedom from contributory negligence. Contributory negligence being that lack of care which contributed to the aeeident, and the presence of this truck on the track when it was struck being the cause of this accident. I inquire whether the plaintiff has shown affirmatively, as he is bound to do, that his presence on the *61track at that time, was not due to lack of care on his part. To my mind, it clearly was. The young driver was attempting to drive a slow-moving, heavily loaded truck up a grade and across tracks where track vision was restricted. With the work of managing the truck on his hands, with his restricted range of vision, he had a very difficult, individual task, and a situation where, as the event proved, he was trusting to chance and not to vision for his safe passage. Assuming he, personally, did all he could, the question still remains: Has he affirmatively shown that he used due care under the circumstances of the situation? He had beside him on the seat a young companion, who had accompanied him on the trip. He had a right, and an obligation, to avail himself of the vision of the man beside him, of his watchfulness, and of sending this companion across the tracks to signal a safe passage for his truck — a common and universal safety precaution, which the conductor of a street car takes time to do. Had the plaintiff done so, it is clear this accident would not have happened, and because he has not shown that he availed himself, in any way, of the helpful aid of his companion, and bearing in mind his affirmative duty, under the law, to show his freedom from contributory negligence, I feel that he has not only failed to do so, but that his failure to avail himself of the means of safety he had on the truck, beside him, in his fellow-passenger, affirmatively shows such lack of due care, under the circumstances, that if this heavily-loaded truck had wrecked the train and killed the passengers, as it might well have done, he would have rightly been held responsible for criminal negligence.
Taking the whole situation in view, I think the trial judge had before him a situation where there can be no doubt that the contributing cause of this accident was the heedless, careless indifference to danger of this young driver and. his companion. For these reasons, I record my dissent.