Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury, in the sum of $25,000; and from the order denying defendant's motion to set aside the verdict and for a new trial. The action arose out of a collision between the trucks of the parties which happened on a State highway, known as route 9W, about two miles north of the village of Catskill, N.Y., at about six o'clock in the afternoon of February 11, 1942. The evidence indicates that it was dark at the time. The metal part of the highway consisted of three strips of concrete and defendant's trailer truck was standing on the westerly strip of concrete. There were no lights on it, or flares lighted about it to indicate its presence. Plaintiff was driving south in his vehicle, which was a small truck, and ran into the rear of defendant's trailer. The only issue raised on appeal is the question of plaintiff's contributory negligence. Defendant claims that plaintiff was guilty of contributory negligence as a matter of law in failing to have proper headlights in accordance with the statute (Vehicle and Traffic Law, § 15, subd. 3; Cons. Laws, ch. 71), and in travelling too fast under the circumstances. The case was properly submitted to the jury and the issue of plaintiff's alleged negligence was one of fact and not of law. Judgment and order affirmed, with costs. Hill, P.J., Bliss, Schenck and Foster, JJ., concur; Crapser, J., dissents and votes to reverse the judgment appealed from and to dismiss the complaint on the ground that the plaintiff is guilty of contributory negligence as a matter of law.