
    Ellen A. Scheer, as Administratrix, etc., of Irwin Scheer, Deceased, Appellant, v. The Long Island Railroad Company, Respondent.
   The action is to recover damages for the death of plaintiff’s intestate, who was killed when a motor truck upon which he was riding as a helper, and which was operated by his fellow employee Flynn, was struck by defendant’s train at an unguarded crossing. Judgment dismissing the complaint on the merits at the close of plaintiff’s case reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. For the reasons stated in Flynn v. Long Island R. R. Co. (ante, p. 1011), decided herewith, the evidence would justify a finding that the defendant was negligent. The evidence, however, does not show that deceased did not exercise care for his own safety. There is no evidence “ which speaks one way or the other ” with reference to deceased’s contributory negligence, and in view of the fact that the burden of proof on the issue of contributory negligence was on the defendant, it was error to dismiss the complaint. (Crough v. New York Central R. R. Co., 260 N. Y. 227; Baker v. Lehigh Valley R. R. Co., 248 id. 131; Lamberton v. Delaware & Hudson Co., 232 App. Div. 390.) Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.  