The evidence as to whether the signals required by the statute were given was conflicting, but it cannot be said as matter of law that it did not justify the jury in finding for the plaintiff on that issue. See Dalton v. New York, New Haven, & Hartford Railroad, 184 Mass. 844, and cases cited; also McDonald v. New York Central & Hudson River Railroad, 186 Mass. 474. If the signals were not sounded, the jury under the circumstances might infer that the absence of them contributed to the injury. Doyle v. Boston & Albany Railroad, 145 Mass. 386.
The burden was upon the defendant to prove that the plaintiff’s intestate was grossly negligent, McDonald v. New York Central & Hudson River Railroad, ubi supra, and it is vigorously contended that as matter of law the evidence shows that he was. Although there are cases in which it has been adjudicated as matter of law that under the circumstances gross negligence was proved, (Debbins v. Old Colony Railroad, 154 Mass. 402, Emery v. Boston & Maine Railroad, 173 Mass. 136,) still, speaking generally, the question whether a particular fact is proved by oral testimony depends largely upon the view taken by the jury as to the credibility of the witnesses, and hence it is comparatively seldom that, in the absence of binding admissions or agreements as to facts, a ruling that as matter of law a material fact has been proved can be given. The evidence in this *86case tended to show that the plaintiff’s intestate was sober, was driving a quiet and gentle horse, at a moderate speed; that in his wagon there were bottles which rattled; that when near the crossing he shouted “ whoa ” to his horse ; that the wagon cover extended over the whole side of the wagon; that there was no bell or whistle to warn him ; that for some few minutes before reaching the crossing he had been travelling on a street parallel with and near to the railroad location; that as he turned into Sawyer Street and approached the crossing his view of the track upon which the train was coming was obstructed by freight cars standing near Sawyer Street; that the gates seemingly intended to warn travellers of approaching trains were up, and that the night was somewhat foggy. The evidence tended further to show that he was awake and guiding his horse. It was not shown that he observed the absence of the gateman, or that he knew that none was usually kept there at night, or that he was not listening for the train. It was near midnight, and from the absence of the signals and the fact that the gates were not lowered he had some reason to believe that no train was approaching, and that it was safe to cross. His ability to hear may have been affected by the rattling of the bottles and by the noise of the team. It is true that the evidence was conflicting as to many of the circumstances above named, especially with reference to the giving of the signals required by statute, and a verdict for the defendant reasonably might have been expected; but without rehe'arsing the evidence further in detail, it is plain that the question whether the plaintiff’s intestate was guilty of gross negligence was not a question of law for the court but of fact for the jury, and that the case was rightly submitted to them.
Judgment on the verdict.