
    Ferdinand Gombert, Appellant, v. Niagara Junction Railway Company, Respondent.
    Negligence — when question of contributory negligence for jury.
    Upon examination of the evidence in an action for personal injuries, held, that upon the facts proved the issue as to contributory negligence was for the jury.
    
      Gombert v. Niagara Junction Ry. Co,, 156 App. Div. 924, reversed.
    (Argued January 19, 1916;
    decided February 4, 1916.)
    Appeal from a judgment, entered May 3, 1913, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict, and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through his being struck by one of defendant’s trains while he was crossing its right of way.
    
      Eugene M. Ashley and Augustus Thibaudeau for appellant.
    S. Wallace Dempsey for respondent.
   Per Curiam.

This is an action for damages for personal injuries. The plaintiff recovered a verdict upon which judgment was entered. Upon appeal the Appellate Division reversed the judgment and dismissed the complaint “upon the merits,” and by a divided court held ‘ ‘ That the uncontradicted evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.” It is not necessary to set forth the facts or to point out the inferences which a jury would have been justified in drawing from them. We think it is sufficient to announce the conclusion at which we have arrived, viz., that upon the facts proved the issue as to contributory negligence was for the jury.

The Appellate Division held the judgment erroneous as a matter of law, and have not yet passed upon the weight of the evidence. The case must, therefore, be remitted to the Appellate Division for its consideration of the facts. (Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 410.)

The judgment should be reversed, with costs to the appellant in this .court, and the case remitted to the Appellate Division for its consideration of the facts.

Willard Bartlett, Ch. J., Hiscock, Collin, Cuddeback, Hogan, Seabury and Pound, JJ., concur.

Judgment reversed, etc.  