As I view it, this is the ordinary highway crossing case where, by reason of the obstructed view of the traveler, the question of the exercise of due care on his part becomes one of fact.
The plaintiff, a bricklayer, was going to his work at the cement plant where he had been employed four or five days, and had never seen .a train when passing over these tracks. About 1,000 men were there employed, and this was the only road leading to the plant. No question is raised by defendant as to its duty to give warning signals at this crossing; and it is not now disputed that such signals were not given on this occasion.
The road to the plant turned off the improved highway and followed a winding course to the railroad crossing, a distance (as it scales» on the map) of about 450 feet. This was a rough dirt road covered with loose crushed stone, and it was dowm grade from the main highway to the crossing. The plaintiff was naturally required to give some attention to driving his car on this kind of a road. Although a majority of my associates attach little or no importance to audible signals as a warning to the wayfarer, I think in this case at least, sharp blasts of the whistle or the ringing of the bell would have been of great value to plaintiff who was listening as he drove along this crooked road, with his view of the track largely obscured. !
Such attempts as could be made to use what is regarded by the majority as the more valuable protective sense, were in fact made. As plaintiff turned into the road about 400 feet from the crossing, he looked and had a view of the tracks to the south (from which direction the train came) for a distance from one-half to three-quarters of a mile. He saw nothing and proceeded on his way. After he passed the “ bunk house ” and was about 75 feet from the track, he had another view and looked. Here he could see to the south about 700 to 800 feet, and to the north 500 to 600 feet. He saw no train and had heard no signals. He then pro*210ceeded through a cut where his view in both directions was entirely obstructed. In this short cut there was a sharp down grade. When he came out he was about 26 feet from the nearest rail of the northbound track. The first danger he would encounter was from a train on the south-bound track, so he looked north. Then he looked south and the train “ loomed on top ” of him. Since emerging from the cut he had reduced his speed to twelve miles an hour, but had passed over the space in less than two seconds. The train was approaching at 90 feet a second. It is perhaps significant as bearing on the opportunity to see, that neither the engineer nor firemen saw plaintiff or his car before the accident occurred.
Under the circumstances just-detailed, based on what the jury must have found to be the true facts, it is quite clear to me that reasonable minds might differ in their conclusions concerning the proper degree of care to be exercised under the circumstances; and, therefore, the question of plaintiff’s contributory negligence in this case is peculiarly one for the jury. (Massoth v. D. & H. Canal Co., 64 N. Y. 524, 529; Dolan v. D. & H. Canal Co., 71 id. 285, 288; Skelton v. Lehigh Valley R. R. Co., 171 App. Div. 91; Ticknor v. Pennsylvania R. R. Co., 208 id. 461.) The plaintiff was not bound to see at his first opportunity to look, nor was he required at his peril to look in the right direction at the right time. If the jury was satisfied that he made the reasonable efforts to ^discover and avert the danger that a prudent man would have made in like circumstances, it is sufficient and we should not disturb the verdict. (Greany v. Long Island R. R. Co., 101 N. Y. 419; Smith v. N. Y. Central & H. R. R. R. Co., 177 id. 224, 229.) And if plaintiff approached the crossing with his car under control and his mind on the danger, and had looked once from a proper viewpoint, we may not say as a matter of law he was bound to look again at any particular time or place which we point out as prudent to avoid the accident. (Carr v. Pennsylvania R. R. Co., 225 N. Y. 44; Chamberlain v. Lehigh Valley R. R. Co., 238 id. 233; Horton v. N. Y. Central R. R. Co., 237 id. 38; Maiorano v. Long Island R. R. Co., 244 id. 387.)
The fact that no signals were given by the .train was a circumstance that could have been considered by the jury in determining the question of plaintiff’s contributory negligence. Despite this new doctrine that “ hearing is an indifferent guard to safety,” there is an unbroken line of authorities to the effect that a traveler depends for protection upon his ears as well as his eyes, and that signals must be given to warn him of danger and that failure to give such signals may furnish a reason for relaxation of vigilance and care on the part of the traveler who has a right to rely on *211the performance of duty by those in charge of the train. (Beisiegel v. New York Central R. R. Co., 34 N. Y. 622, 624; Ernst v. Hudson River R. R. Co., 35 id. 9, 27; Wall v. International R. Co., 233 id. 309, 312; Spitzer v. N. Y. Central R. R. Co., 211 App. Div. 332; Salt City Express & T. Co. v. N. Y. Central R. R. Co., 213 id. 371.)
The cases in which the courts have determined that the plaintiff was guilty of contributory negligence as a matter of law, are those presenting unusual or exceptional facts and leaving nothing in doubt either of inference or fact. In such cases reasonable minds can reach but one conclusion. (Massoth v. D. & H. Canal Co., supra, 529.) In my judgment, this case does not fall within that class. Unless we say the plaintiff was bound to stop, or to look in a particular direction at some definite place or time, it was a question for the jury to determine whether he exercised the reasonable care the circumstances demanded of a prudent man. The question has been answered in plaintiff’s favor; and I vote for affirmance.
Hill, J., concurs.
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs.