Dissenting Opinion by
Kephart, J.:Two witnesses testified that no whistle was blown, nor bell rung. However much we may wish to modify that testimony by other parts of their evidence, as this is a motion for binding directions the appellee is entitled to all inferences' reasonably deduced from the evidence, and, when this is done, this evidence would take the case to the jury. That another of plaintiff’s witnesses said he heard a whistle blown two thousand feet away would merely amount to a contradiction in plaintiff’s evidence, the truth of which the jury would determine. Plaintiff’s husband was not familiar with the neighborhood and the railroad was very rarely used, is now torn up and taken away, and was not easily discernible from the highway; no warning post was placed to notify the traveling public of the railroad’s presence, and, while the chauffeur might have been guilty of the worst of *271contributory negligence, here is an effort to impute this negligence to a passenger in the rear seat of an automobile who knows nothing of the railroad, is not warned of its presence, and whose widow is prevented from recovery because the chauffeur did not use due care in handling his machine. Had deceased known of the railroad or seen á warning sign post, or even if he should have known that the whistle two thousand feet away referred to a railroad over which they were about to pass, then he should have warned the driver; but how could this duty be exacted under the facts? It is not shown the deceased knew such railroad was in existence. The woods stood close around it and the public road, and the engine could only be seen just as it emerged from behind the trees along the public highway.
Taking everything into consideration, it was one of those peculiar eases which a jury should have passed upon. I would therefore affirm the judgment.