
    David Pliss, Appellant, v. Erie Railroad Company, Respondent.
    
      Negligence — railroads — ■truck employed on highway construction work slopped vñth front wheels on railroad track in order to dump load —■ damage from being struck by train — contributory negligence of driver question for fury.
    
    
      Pliss v. Erie R. R. Co., 207 App. Div. 46, reversed,
    (Argued May 16, 1924;
    decided June 3, 1924.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 14, 1923, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial. The action was to recover for damage to plaintiff’s truck through its being struck by one of defendant’s trains. At the time of the accident a highway which crossed the defendant’s right of way in the village of Gowanda between the stations of Gowanda and Collins, was being improved under a State contract. The plaintiff’s truck was being used to haul gravel in connection with the construction work. In order to dump a load of gravel near a concrete mixer it was necessary to stop the truck with the front wheels on the railroad tracks and it was in that position when the accident happened. There was evidence that defendant had notice of the conditions at the crossing. The Appellate Division held that plaintiff was guilty of contributory negligence in stopping the vehicle upon the railroad track for the purposing of unloading.
    
      Hamilton Ward and Dana L. Spring for appellant.
    
      John S. N. Sprague for respondent.
   Order of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division. Held, that the question of plaintiff’s contributory negligence was one of fact for the jury.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  