As I read the opinion of my brother Sears, reversal is based on the ground that the weight of evidence indicates that plaintiff was guilty of contributory negligence in not observing the warning signals on the northerly or far side of the tracks some fifty or sixty feet away.
The hour was about eleven p. m. Visibility was low because *18of the darkness, fog and the heavy smoke. We may assume from the verdict that the signals on the southerly side of the track and near to plaintiff, particularly intended as a warning to those approaching from that side, were motionless and silent. He may not have seen or heard the northerly signals in the condition of smoke and the noise of the passing Central train, or his vision may have been so imperfect that in his position he may have thought the “ wig-wag ” stationary, though others nearby could see it swinging. He says he did not see it.
Plaintiff says that being familiar with the crossing and with the wig-wag signals, and noting that the one on his side of the track was still, and the gong there not ringing, he looked in both directions and proceeded on his way. If he had once looked properly he is not guilty of contributory negligence if he failed to look again or in any particular place. (Carr v. Pennsylvania R. R. Co., 225 N. Y. 44.) His alertness and vigilance must depend upon the conditions present. As we have said in another case: “ This rule of due care is often determined in particular cases by the dangers that exist and the opportunities afforded him, not only by physical conditions present, but by his reliance on timely warnings he has a right to expect.” (Salt City Express & T. Co. v. New York Central R. R. Co., 213 App. Div. 371, 373.) The warnings he had a right to expect were those on his side of the track, close at hand, and signals from the approaching train. These were not given.
Just beyond the New York Central tracks were the single track of the Erie railroad and the double “ high speed ” tracks of the International Railway. These also he was about to cross. His duty of vigilance was not limited to any particular signal but he was required to be alert to all possible dangers as he proceeded, and give attention to observe whether trains were approaching on other tracks.
Here we do not say there was contributory negligence as a matter of law. It was admittedly a question of fact for the jury to determine under the facts as stated in the prevailing opinion and the additional facts I have mentioned. I do not regard the verdict on the question of contributory negligence as against the weight of evidence, and, therefore, vote to affirm.
Judgment and order reversed on the facts and new trial granted, with costs to appellants to abide the event.