(dissenting).
On the plaintiff’s proof (the facts as stated in the prevailing opinion) the trial judge was warranted in submitting the question of contributory negligence of the deceased to the jury as a question of fact. Thé opinion concedes that there is enough proof as to the negligence of the defendant justifying its submission to the jury. Therefore, as the jury found when the deceased approached the crossing he was not advised or informed in any way of the coming of the train by those in charge of its operation nor by a signal at the crossing, for there was none there. It was a single track roadbed. The deceased had the obligation of looking both ways. The night was foggy; the immediate locality was enveloped in a heavy fog; it was misty; visibility could not be had for more than 100 feet at the crossing and about 50 feet from the bridge. The deceased was shown to have exercised care, for he stopped when about 20 feet from the west end of the bridge.
A mother with her three young children, whose maternal care required the exercise of vigilance, saw him stop, look and listen. He was seen to look in the direction from which the train came. Both windows of his automobile were open. His ear remained in a stationary position long enough for this exercise of care. The witness then saw him proceed in his effort to cross the track. She had proceeded but 15 or 20 feet, when she heard a crash at the crossing. The train was proceeding at a speed of -50 or 60 miles an hour, and approached the crossing without ringing a bell or blowing a whistle. This was in violation of the custom and practice of the road and statutory duty as imposed by the state of New Jersey. After the crash, the locomotive proceeded a thousand feet before it was stopped.
What more could the decedent have done under the circumstances? After exercising the care demanded of him under Baltimore & O. R. R. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645, he was justified in going forward as best, he could, obligated to operate and manage his automobile in starting and steering, having due regard for the possibility of trains ..coming in the opposite direction, enveloped in fog and mist. No one contends that he speeded unduly in crossing. If we compare the measurement of decedent’s travel by the pedestrian Mrs. Swift with that of the motorcar, he was proceeding slowly and with care. No one can say whether or not he took another look in the direction from which the train came, nor can one say how far he may reasonably have been expected to see under the conditions which prevailed. The burden of proof of establishing (contributory negligence rested upon the defendant, and freedom from contributory negligence might be proved by the circumstances alone. Where the collision has resulted in death, the same degree of proof to sustain a plaintiff’s verdict is not required as where the plaintiff survives. Noble v. N. Y. C. & H. R. R. Co., 20 App. Div. 40, 46 N. Y. S. 645, affirmed 161 N. Y. 620, 55 N. E. 1098; Kavanagh, Adm’x, v. N. Y., O. & W. R. R., 196 App. Div. 384, 187 N. Y. S. 859, affirmed 233 N. Y. 597, 135 N. E. 933.
*974The ruling of this court in Kinghorn v. Penn. R., 47 F.(2d) 588, and Lehigh V. R. R. v. Quereau, 289 F. 767, required the trial judge to submit the issue of contributory negligence to the jury, and we should not disturb the jury’s finding.
Therefore I dissent.