
    Harry Shapiro, Respondent, v. New York Central Railroad Company, Appellant.
    
      Negligence — railroad — crossing accidents — automobile truck struck by train at grade crossing — when driver not chargeable as matter of law with contributory negligence.
    
    
      Shapiro v. N. Y. Central R. R. Co., 209 App. Div. 850, affirmed.
    (Argued October 17, 1924;
    decided December 2, 1924.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 23, 1924, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries and loss of property alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while driving his automobile truck on the State highway between Fulton and Oswego, and while crossing defendant’s tracks at Tucker’s crossing about two miles north of the city of Fulton, was struck by one of defendant’s trains causing the injuries complained of. The plaintiff, as he approached the crossing, was driving in the middle of the road at about eight miles an hour, having reduced the speed of his truck from fifteen miles to eight miles an hour at a point about one hundred feet southwesterly of the crossing, and then further reduced it to four miles an hour at about twenty-five feet from the crossing, and during the last twenty-five feet before being struck the truck was moving four miles an hour. At the point about twenty-five feet from the track, one approaching the track on. the highway from the southwest, as the respondent was, could see a train approaching from the south from a point about four hundred and twenty-five feet from the crossing, but not further because of a bank with trees and bushes upon it, located on the west side of the track and four hundred and twenty-five feet south of the crossing. The plaintiff looked to the south at a point about twenty feet from the tracks, and listened, and then looked to the north, and seeing no approaching'train, and hearing no whistle or other signal, proceeded to cross and was struck by a train approaching from the south.
    
      Francis E. Cullen for appellant.
    
      Francis D. Culkin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Pound, Crane and Lehman,. JJ. Dissenting: McLaughlin and Andrews, JJ. Absent: Hiscock, Ch. J.  