While the evidence tending to establish negligence upon the part of the defendant was quite conflicting and not altogether satisfactory, that question was fairly and properly submitted to the jury by the learned trial court, and inasmuch as the evidence of the plaintiff •and his witnesses, if believed, was sufficient to support the conclusion reached by the jury, I do not very well see how their verdict can be disturbed, so far as this branch of the case is concerned. I ' pass, therefore, to a consideration of the more difficult proposition, involved in the defendant’s contention, that the plaintiff was,.as a matter of law, guilty of contributory negligence in his manner of ' approaching the crossing in question.
- It appears that the plaintiff was entirely familiar with this crossing'; that he passed over it frequently, and that because of liis. familiarity with his surroundings he looked in both directions as soon as he passed the house of Mr. Howland, which stood upon the west side of the highway, and some 500 feet north of the defendant’s track. He further, testified that he then proceeded on his way until he reached the hedge, when, as he couldn’t see to the west,” he looked towards the east and saw no train; that immediately upon passing the south end of the hedge he again looked towkrds the west; that he could see the track up to and through the cut, but that the sun shone in his eyes in such manner as to prevent his seeing anything west of the cut; .that he saw nothing of the train and ■ that he then looked to the. east and saw a handcar some distance-'east of the crossing; that he looked long enough to determine the direction in which this car was going, by which time his horse was upon the track; that he then looked west again and saw .the train - close upon him, and ■ that. he recollected nothing further until he ■ found- himself in his bed at home. He also testified that he listened - for signals and heard none. This evidence,, if it is. to be believed,, *409indicates that the plaintiff not only took such precaution as the law requires of a person situated as he was, but also that he manifested more than ordinary concern for his self-preservation. It is urged, however, that his testimony is absolutely incredible, and in support of this contention attention is called to the evidence of two men who were driving north upon this same highway, both of whom testified that they met the plaintiff north of the crossing and that they saw the train while they were between the crossing and the south end of the hedge; also to the evidence of one of the men upon the handcar that he had no difficulty in seeing the train as it approached the crossing, and to ’ that of the fireman and another man upon the locomotive, each of whom testified that the plaintiff was seen by him from the time the horse emerged from the south end of the hedge until the collision occurred.
It is also made to appear by the plaintiff’s own admission that up to the time he passed the Howland house he had been engaged in reading a book of some kind as his horse jogged along, although he insisted that from that point on he did not look at the book, notwithstanding it lay open in his lap.
It is not to be denied that the circumstances above detailed lend considerable force to the defendant’s contention that the plaintiff either did see the approaching train and. endeavored to cross the tracks in advance of it, or else that he testified to that which was absolutely untrue, and-the theory first advanced is somewhat fortified by the evidence of the fireman and his companion upon the locomotive, who testified that when the horse’s head was ten or twelve feet from the track the plaintiff pulled upon the reins as if intending to stop, and that he then apparently changed his mind, and loosened up on the horse which thereupon started ahead and jumped in front of the engine. But while this inference might be reasonably deducible from the evidence, it cannot be said that it is necessarily so, and it is but fair to suggest that there are some' additional circumstances in the case which the jury had a right to take into consideration in determining the credibility of the plaintiff’s story. In the first place, he says that at the time of the accident the foliage was upon the hedge, which rendered it impossible to see through it; and this fact is apparently undisputed. Then again, the distance between the hedge and the defendant’s track was but *410twenty-four or twenty-seven feet at the most, and the defendant’s fireman testified that when he first saw the plaintiff the hind wheels of the wagon were hidden by the hedge, and the horse’s head was but ten or twelve feet from the track. This certainly did bring the plaintiff’s opportunity for observation within rather narrow limits, and when due consideration is given to his statement that his attention was attracted to the handcar at the east, and that he was more or less blinded by the setting sun as he looked to the west; it must be conceded I think that a question of fact was presented for the jury which could not be taken from them by the court (and this in effect is what the order appealed from accomplished), without running counter to the rule laid down by a recent decision of the Court of Appeals. (McDonald v. M. S. R. Co., 167 N. Y. 66.)
This court has taken occasion to say in a comparatively recent case (Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 406) that where a party testified that he looked and listened before attempting to cross in front of an approaching train of cars, a recovery is not impossible because it can be shown that the train might and ought to have been discovered by one who was upon the lookout-for it. This case was cited with approval and followed by the second department in Turell v. Erie R. R. Co. (49 App. Div. 94) and again by this court in Branch v. N. Y. C. & H. R. R. R. Co. (39 App. Div. 438), which was a cáse strikingly similar in many of its circumstances to the one now under consideration.
In a still more recent case, in which it was made to appear with quite as much certainty as in the present one that the party injured might have seen the locomotive which struck him had he taken the slightest pains to look for it, this significant language was used by the Court of Appeals in affirming a judgment in favor of the plaintiff : “ 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 is, in every case of this character. It is an argument 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., 160 N. Y. 362.)
In view of this decision, which apparently goes to a much greater length than did this court in the Seeley and Branch cases, it is difficult to see how the direction of a verdict in favor of the defendant, *411in the circumstances which have been detailed, can be sustained, whatever view may be entertained as to the real merits of the case.
I have not deemed it necessary to advert to the fact that the plaintiff was but fifteen years of age at the time of receiving his injuries, for the case seems to have been tried upon the theory that he was sui juris, although the jury were very properly instructed that they might take the plaintiff’s age into consideration in determining whether or not he exercised such precautions for his own protection as might reasonably be expected of a person of his years and experience.
Upon a careful review of all the facts of the case, I am led to the conclusion that it was error for the trial court to direct a verdict, and consequently am constrained to dissent from the prevailing opinion.
Judgment and order affirmed, with costs.