We agree with the learned counsel for the defendant that no question of judicial discretion is here involved. The only question presented by this appeal is, Was or was not the nonsuit properly granted ? If it was, the order setting it aside and granting a new trial is erroneous and should he reversed; if it was not, the order should be affirmed. Unless it was conclusive^7 proved, either that the defendant was not guilty of any negligence which caused the injury complained of, of that the plaintiff himself was guilty of negligence which contributed thereto, the nonsuit should not have been ordered. The question to be determined is, Were ■either of these propositions so established ?
On the one hand, the failure of the defendant to place a light upon the forward gravel car, to indicate the presence •of the gravel cars ahead of the locomotive, is alleged as negligence of the defendant. On the other hand, it is claimed that the head-light of the locomotive rendered those cars visible to persons at the street crossing, and that had the plaintiff used proper care when he saw the head-light he would have seen the gravel cars in advance of the locomotive. Had the locomotive been at the head of the moving train, it Avill *34scarcely be claimed that the plaintiff was negligent in attempting to cross the track before it, for the proof shows, that he had ample time in which to cross before the locomotive reached the crossing. At least, it could not be held, as a proposition of law, that his attempt so to cross the track was negligence. It would be for the jury to say whether it was or not. Had the plaintiff known that over one hundred feet of the track in advance of the approaching locomotive was occupied by the gravel cars, it seems clear that he would have been chargeable with negligence in attempting to cross the track ahead of the moving train; especially so when there is no pretense of the existence of any emergency which required him to cross before the train passed or stopped. If by the exercise of proper care and scrutiny the plaintiff would or might have seen the gravel cars, his failure to discover them was, in like manner, negligence. If the plaintiff is chargeable with negligence because he failed to see the gravel cars, he is so because the head-light sufficiently disclosed their presence. It is not in proof that cars are usually propelled in advance of regular trains,— presumably they are not, especially in the night-time,— and no means other than the head-light is suggested by which the plaintiff might have informed himself that such cars preceded the locomotive.
On the other hand, it is not unlawful for railway companies to propel cars by pushing them in advance of the locomotive by which they are propelled when the exigencies of their business require it to be done: If they do so under circumstances which increase the risks of injury to persons or property, the law places them under obligation to.give timely and suitable notice or warning, in some manner, of what they are doing. In this case it does not appear that the gravel cars could be distinguished or their presence discovered by persons at the street crossing, when the plaintiff attempted to cross the track, unless by aid of the head-light. *35If, therefore, the head-light did not disclose to persons at, that point, using proper care and watchfulness, that the locomotive was preceded by the gravel cars, the defendant company was negligent in not furnishing some other and, more effectual signal or notice of the fact. Hence, the case seems to turn upon the question of the sufficiency of the head-light to enable the plaintiff to discover the gravel cars by exercising due care and scrutiny. If it was sufficient, the plaintiff was negligent and the defendant was not. If it was not sufficient, the result is reversed — the defendant, was negligent and the plaintiff was not.
All of the witnesses who testify on the subject say that they saw the head-light of the locomotive, but did not see the gravel cars which preceded it until the moment the-plaintiff was struck. The gravel upon the cars probably gave to them, to some extent, the color or appearance of the road-bed; and this might have interfered with seeing the cars from the crossing readily. Besides, it is testified that the glare of the light had a tendency to obscure the vision of persons at that point. There was no structure' upon the platforms of the cars to arrest observation. There-is no evidence of the height of the head-light from the ground or from the top of the gravel on the cars. We merely know from the evidence that there was- a head-light ■ on the locomotive plainly visible from the crossing, and that all of the witnesses who testify they saw it when the train was approaching the crossing, state that they did not see. the gravel cars.
We fail to find in this testimony, or in any of the testimony, anything which will authorize us to hold it conclusively proved that the head-light was sufficient to enable the plaintiff, had he exercised reasonable and proper care and scrutiny, to see the gravel cars and thus become aware of the peril of crossing the track when he attempted to do so. Whether the head-light was sufficient for that purpose is a *36question, the answer to which must depend largely upon the inference which may properly be drawn from a variety of facts and circumstances constituting the res gestae. The questions are, really, Did the negligence of the defendant cause, or that of the plaintiff contribute to, the injury complained of? and' from their very nature can only be answered by drawing the proper inferences from established facts. To do this is peculiarly the function of the jury. This is the doctrine of Langhoff v. M. & P. du C. R'y Co., 9 Wis., 489, and is believed to be the doctrine of all the cases in this court which involve the question.
It follows that the nonsuit was improperly ordered, and that the circuit court properly vacated it and ordered a new trial.