I am not in accord with the decision about to be made. The point where a railroad right of way crosses an improved highway at grade is a place where danger from traffic may be apprehended. (Barnett v. New York Central R. R. Co., 227 App. Div. 636.) In this instance a five-passenger inclosed automobile was overturned upon defendant’s north-bound track where it remained across the rails for at least five minutes before the accident and in such a position that its black top was toward the oncoming train. It thus presented to the view of a vigilant engineer a sizable black object, provided his vision was not obscured. Concededly the track south of the crossing was through open country; it was built upon a raised roadbed and was straight for several miles. The accident occurred at an early hour on a clear, August morning when visibility was reasonably good. There was testimony from several witnesses, some of whom were disinterested, from which the jury might have found that as one approached *565from the south along defendant’s track the crossing was visible for at least a mile. Upon the record of proof before us, I believe there was a question of fact for the jury whether defendant’s engineer, in the exercise of reasonable care — which required of him both vigilance and alertness — should not have seen the imperiled object when his train was at a greater distance south of the crossing than the minimum distance in which it was proved the train could be stopped. Stated otherwise, it was a question of fact, under all the circumstances, whether the engineer should not have acted sooner in the presence of what he saw, or should have seen, before him.
Sears, P. J., concurs.
Judgment reversed on the law, with costs, and complaint dismissed, with costs.