
    Louis Colucci, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    
      Negligence — railroads — trial in this Stale of action to recover for injuries received in New Jersey by being struck by train at railroad crossing — motion to dismiss complaint for failure of plaintiff to show freedom from contributory negligence — New Jersey statute providing that question of contributory negligence should be left to jury properly disregarded by court in passing upon motion.
    
    
      Colucci v. Lehigh Valley B. B. Co., 214 App. Div. 722, affirmed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment entered June 5, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, and directing a dismissal of the complaint upon the judgment at the Trial Term. The action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. While crossing the defendant’s railway tracks after dark, at a grade crossing of a highway in the State of New Jersey which was unguarded by lights, gates or flagman, he was struck by a freight car which had no light upon it and which was being pushed by an engine which was between it and other freight cars, and received the injuries complained of. The trial court dismissed the complaint at the close of plaintiff’s case on the ground that he had not shown that he was free from contributory negligence. Appellant contended the court might not determine the question as a matter of law but was bound to leave it to the jury in accordance with the law of New Jersey where the accident happened.
    
      Lyman A. Spalding, Edward W. Norris and Theodore H. Lord for appellant.
    
      Clifton P. Williamson' and Edward W. Bourne for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., McLaughlin, Crane and Lehman, JJ. Dissenting: Pound and Andrews, JJ. Not voting: Cabdozo, J.  