
    JORDAN v. ERIE R. CO.
    (Supreme Court,. Appellate Division, Fourth Department.
    May 20, 1908.)
    Action by Charles H. Jordan, administrator, against the ■ Erie Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.
   PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to. appellant to abide event. Held, that the plaintiff failed to establish freedom from contributory negligence on the part of the deceased.

KRUSE, J.

(dissenting). The jury was warranted in finding from the circumstances that the deceased and his associate stopped, looked, and listened before attempting to cross the-railroad, and that the train was not then within sight or hearing, and, further, that from their stopping place they could see far enough up" the track so that a train not then in view, going at the usual and ordinary rate of speed as regulated by the city ordinance, would not reach the crossing until they had passed over. It cannot be said as matter of law that the-deceased was required to anticipate that a train which is prohibited from running more than 6 miles an hour at'the given point, then out of his sight and hearing, will run at the rate of 25 or 40 miles an hour, approach the crossing without warning, and overtake and collide with, him at the crossing, when he has no knowledge of the approaching train, or reason to expect that one will be run at such excessive rate of" speed’. There being no eyewitness to the accident, the jury was warranted, from these and other circumstances, in finding the deceased free from contributory negligence. I therefore-vote for affirmance of the judgment and order-appealed from.  