Order reversed and a new trial granted, with costs to abide the event, in the following memorandum: Viewing the evidence in the light most favorable to appellant, we find an issue of fact as to defendant's actual knowledge of plaintiff's peril presented by the testimony of plaintiff's wife that she saw him lying on the tracks with the train approaching two city blocks away, coupled with the motorman's testimony that he observed plaintiff while he was still on the platform. Accordingly, the complaint should not have been dismissed. The order of the Appellate Division should be reversed, with costs to abide the event, and the matter should be remanded to the trial court for a new trial.
Concur: Judges BERGAN, KEATING, BREITEL and JASEN. Chief Judge FULD and Judges BURKE and SCILEPPI dissent and vote to affirm on the opinion at the Appellate Division.