#### Sara F. De Baud, as Administratrix, etc., of Halsey H. De Baud, Deceased, Respondent, *v.*The Long Island Railroad Company, Appellant.

First Department,

July 10, 1914.

Railroad — death of pedestrian at railroad crossing — evidence — contributory negligence — Code of Civil Procedure, section 841b, not retroactive.

In an action to recover for the death of the plaintiff’s intestate, it appeared that the deceased, upon approaching a crossing over the defendant’s double tracks, seeing a freight train standing on the farther track, crossed the first track without looking in the direction from which a train might be expected thereon, and while standing between the tracks was hit by the steps of an express train approaching on the first track.

*Held,*on all the evidence, that the plaintiff failed to sustain the burden of proving the deceased free from contributory negligence and that the accident was solely due to the negligence of the defendant.

*601Section 841b of the Code of Civil Procedure, providing that on the trial of an 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.

Appeal by the defendant, The Long Island 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 Hew York on the 6th day of February, 1914, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 29th day of January, 1914, denying defendant’s motion for a new trial made upon the minutes.

*Alfred A. Gardner of*counsel *[Matthew J. Keany*with him on the brief], *Joseph F. Keany,*attorney, for the appellant.

*Raymond D. Fuller*of counsel *[William F. Fowler,*attorney], for the respondent.

Clarke, J.:

The accident in which the plaintiff’s intestate lost his life occurred on the afternoon of July 5, 1909, at. a grade crossing at Earl avenue, Lynbrook, L. I. The defendant’s line of railroad at the *locus in quo*runs east and west. There were four tracks; 449 feet to the west at about Washington avenue the tracks begin to curve towards the north and northwest at a radius, at that time, of six degrees. Some little time before the accident a fire had occurred south of the line of track and a number of people, including the intestate, had gone down to witness it. Coming back from said fire and at about half-past four in the afternoon was a party of girls and following them was the intestate accompanied by two men friends. A freight train running west on the northerly or west-bound track while passing over the crossing blocked the way. Two girls stopped near the south rail of the east-bound or southerly track. The three men, who had been behind, proceeded past them to the north rail of the east-bound track and stood there waiting for the freight train to pass. An express passenger train running east was discovered by the girls and they jumped back to safety; one of them, however, returning to the track calling *602and poking one of the men with her long-handled parasol and then again jumping back to safety on the south side. The three men stepped off the track to the north which put them between the freight train running west and the passenger train running east. The intestate was hit by the steps of the second or third car, knocked down and killed.

It is established by the great weight of evidence that the whistle was blowing and the automatic bell of the engine of the express train was ringing. A careful examination of the whole record convinces us that the verdict was against the weight of the evidence; that plaintiff did not sustain the burden of proving her intestate free from contributory negligence and that the accident was solely due to the negligence of the decedent. If the decedent in waiting for the freight train to pass had stopped a few feet south of the east-bound track he would have been in a position of entire safety. Instead of that he chose to stand upon the northerly rail of this track, close to a rumbling and noisy freight train, and was so indifferent to his situation and so careless of his surroundings that he did not look in the direction from which a train was to be expected, and so did not discover it in time to get to the south side of the track, as did the young ladies, or else made the choice of stepping between the east and west-bound tracks, a place of obvious and immediate danger.

Respondent urges upon this appeal that as the action was tried on November 24, 1913, section 841b of the Code of Civil Procedure (added by Laws of 1913, chap. 228), in effect September 1, 1913, which provides: “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,” was applicable. The action was not tried upon that theory. The court charged clearly that the burden was upon the plaintiff of showing the absence of contributory negligence, to which no exception was taken by the respondent and no suggestion was made throughout the case that any other rule applied. Further, this court has recently held in *Sackheim*v. *Pigueron*(163 App. Div. 180), upon the authority of *Greif*v. *Buffalo, Lockport & Rochester Railway Company*(205 N. Y. 239), that the provisions of this section of the Code *603are not retroactive. It follows, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Tíattght,in and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.