This court ha§, recently held that a recovery is not impossible because it can be shown that a traveler, upon a highway ought to have discovered an approaching train in time to have avoided coming into-collision with it, if he had been upon the lookout for it (Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 402), and this decision was followed with approval in Turell v. Erie R. R. Co. (49 App. Div. 94).
In the prevailing opinion it is said that the plaintiff must have seen the train which struck him if he looked at the time and in the direction testified to by him. This assertion is no more true of this than of many other cases in which verdicts on behalf of the plaintiff have been upheld.
The case of Zwack v. N. Y., L. E. & W. R. R. Co. (160 N. T. 362) is one in which the undisputed evidence seemed to make it perfectly clear that the locomotive which struck- the plaintiff must have been seen by any one looking in the direction from which it was approaching, and in considering this feature of that case the Court of Appeals said : “ But it may be asked, if he (the plaintiff) looked towards the east at all why did he not see the coming train and avoid it? That question may be asked, and generally.iss in every case of this character. It is an argument to he addressed to the jury and not to a court dealing with questions of law only.” So, also,in the case of Greany v. L. I. R. R. Co. (101 N. Y. 419), which, in its main features, is not unlike the one now under consideration, it was said by Danfobth, J.,.that he knew of “ no exception to the doctrine that where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question whether it was in compliance with that rule (that a party is only bound to make all reasonable efforts to see that a careful, prudent man would make in like circumstances) is for the jury.”
To my mind, it is not so clear that the plaintiff must necessarily have seen the approaching train, if he took the precautions he declares that he did. The accident, it must be -remembered, occurred early in the morning of February 19, 1898,. while it was yet dark, and at a time when it was snowing. When the plaintiff was eight or ten feet from the north track a freight train passed west Upon that track with lights upon the rear end. This train was between *109the plaintiff and the one coming from the west on the next track south. When the caboose of this freight train was forty or fifty feet west of the plaintiff he looked and listened, but neither seeing nor hearing the approach of the train from the west, he stepped upon the second track and was struck. ■ These circumstances are singularly like those of another case with which this court not long since had to deal, in which it was held that the question of contributory negligence was for the jury, and this view was subsequently affirmed by the Court of Appeals. (Pruey v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 158; affd., 166 N. Y. 616.)
In both the Zwack and Pruey cases it seemed to me that the evidence of contributory negligence was too clear to admit of that question being submitted to the jury; but having been admonished that my position in those cases was untenable, I do not see how it is possible to sustain the decision of the trial court in this case, in which the evidence of contributory negligence is certainly no more convincing than that in the cases referred to, without disregarding the rule established by the court of last resortj that in cases of this character the argument of “ incredibility ” is one “ to be addressed to the jury, and not to a court dealing with questions of law only.” (Zwack v. N. Y., L. E. & W. R. R. Co., supra; McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66.)
I am, therefore, constrained to dissent from the prevailing opinion in this case.
Judgment affirmed, with costs.