
    WILLIAM BUNN, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.
    
      Negligence — duty of person crossing raibroad track —contributory negligence.
    
    This action was brought to recover damages, for injuries sustained by the plaintiff, in consequence of a collision with atrain on defendant’s road. Upon the trial, the defendant’s counsel requested the court to charge, “ that aperson who attempts to cross a railroad track, is required to make a vigilant use of his eyes and ears in looking and listening to ascertain whether a train is approaching, and if he does not do so, he is guilty of negligence.” The court declined so to charge, and charged instead, “that the omission to use eyes and ears is negligence.” Eeld, that it was error to refuse to charge as requested (Weber v. N. T. G. and E. B. B. Go., 58 N. Y., 451); that the refusal to charge, that the plaintiff was bound to make a “ vigilant” use of his senses, to ascertain if there were any signs of the approaching train, was calculated to mislead the jury into the belief that no especial vigilance was required.
    The defendant’s counsel also requested the court to charge, that if the plaintiff was guilty of any fault or negligence whatever, which, in any manner, contributed to his injury, he could not recover. The court refused so to charge, but charged that if the plaintiff was guilty of negligence he could not recover. Eeld, that the refusal to charge as requested was .error; that the refusal might induce the jury to believe, that although the plaintiff had been guilty of a “fault” which immediately conduced to the injury, yet, if the fault did not consist of mere negligence, then the plaintiff would be entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made at the Special Term.
    
      Hamilton Odell, for appellant. H. H. Olement, for respondent.
   Opinion by

Talcott, J.

Present — Barnard, P. J., and Talcott, J.; Tappen, J., not sitting.

Judgment and order denying new trial reversed, and new trial granted, costs to abide the event.  