
    Jennie P. Skelton, as Administratrix, etc., of Chester Skelton, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    Fourth Department,
    November 11, 1914.
    Negligence —contributory negligence—burden of proof—Code of Civil Procedure, section 841b, not retroactive.
    Section 841b of the Code of Civil Procedure, which went into effect September 1, 1913, providing that “On the trial of any action to recover damages for causing death, the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant, ” is not retroactive. Hence, where a person was killed before said section took effect, his administratrix is under the burden of showing his freedom from contributory negligence, although the action was tried after the statute went into effect.
    Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on .the 27th day of October, 1913, upon the verdict of a jury for $5,325, and also from an order entered in said clerk’s office on the 30th day of October, 1913, denying defendant’s motion for a new trial made upon the minutes.
    The appeal was transferred from the Third Department to the Fourth Department. (See 164 App. Div. 917.)
    
      A. D. Jenney, for the appellant.
    
      Albert E. Campbell [Campbell & Woolsey, attorneys], for the respondent.
   Per Curiam :

The death of plaintiff’s intestate was due to injuries he received as a result of one of defendant’s trains colliding with a wagon driven by him, along a public highway where the same crosses defendant’s line of railway at grade. The question whether or not the accident was due, in part at least, to his contributory negligence was a close one. The court, declined to charge defendant’s request that plaintiff had the burden of proving that her intestate “was free from carelessness or negligence which caused or contributed to the accident in question.” The further request to charge “that section 841b of the Code of Civil Procedure is not applicable to this action” was also declined. Exception was in each instance duly noted in defendant’s behalf.-

Section 841b, above referred to, provides that “ On the tria of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant.” This section was added by chapter 228 of the Laws of 1913. As provided by the terms of the enactment it went into effect September 1, 1913. (It may be noted that another section, designated also as 841b, was added at the same legislative session by chapter 395 of the Laws of that year. This latter section concerns a subject other than that presented in the present action; and it is not possible that the court was misled by the failure of defendant’s counsel to call attention more specifically to the exact provision to which he sought to direct the court’s attention by the second request to charge above referred to.) The injury to plaintiff’s intestate and his death caused thereby both, occurred some months before the section, quoted above, became a law. Unless this law is retrospective in operation and effect, defendant was entitled to have both requests charged. That it is not retrospective has been held in Sackheim v. Pigueron (163 App. Div. 180). That case was decided on the authority of Greif v. Buffalo, Lockport & Rochester R. Co. (205 N. Y. 239), in which case it was held that section 202a of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), added by chapter 352 of the Laws of 1910, by which the contributory negligence of an employee in an action brought by him or his personal representative against his employer to recover damages, for negligence, arising out of and in the course of his employment, was declared to he a defense to be pleaded and proved by the defendant, was not retrospective. Tn the case of Clancy v. New York, New Haven & Hartford R. R. Co. (157 App. Div. 337) the Second Department cites and follows the Greif case. ' In view of the restricted application of the section, above referred to, as determined by the decisions in the cases hereinbefore cited, we must hold that the-refusal of the trial court to charge defendant’s requests was error; and for that reason the judgment and order should be reversed and a new trial directed, with costs to appellant to abide event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  