On Petition for Rehearing.
Goss, J.Defendants petition for rehearing and state that we have overlooked an assignment of error taken in their brief in the following • language: “The undisputed testimony shows that plaintiff was guilty of contributory negligence in that knowing the crossing he travelled up to it at a speed of five miles an hour or more and for a distance of from two hundred seventy-five to five hundred feet with both his sense of sight and sound obstructed and interfered with.” This was thought to have been sufficiently discussed wherein the whole general situation was treated. As this necessarily included the approach to the danger area, which began at the point of emergence from behind the box cars obstructing vision to the northwest and twenty-three to twenty-seven feet from the main line track, it was inferentially covered in the main opinion. As counsel is insistent, however, it may be stated that it is difficult to conceive how as a matter of law plaintiff could be held to be guilty of contributory negligence at this point of entrance into the danger zone when he was then traveling but five or six miles per hour and in control of his machine and able to stop within a foot and a half from where the brakes might be applied. This is the testimony and the jury had a right to believe it. On this assumption plaintiff could have stopped as quickly as a pedestrian if emerging from behind the box car. It is evidence that whatever basis there is upon which to charge plaintiff with contributory negligence that charge must be placed upon the failure of plaintiff to observe the oncoming train or hear it during his entire approach and particularly from where the scope of his vision would have permitted and not in his advance merely to the edge of what has been termed the danger zone.
*495Defendants declare this case to be controlled by Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997; Christopherson v. Minneapolis, St. P. & S. Ste. M. R. Co. 28 N. D. 128, L.R.A.1915A, 761, 147 N. W. 791, and Gast v. Northern P. R. Co. 28 N. D. 118, 147 N. W. 793. The facts in these cases discriminates them from this. In Hope v. Great Northern E. Co. the statement of facts is quoted as follows-: “The main railroad track is the most northerly of three parallel tracks. South of it and about ten feet distant is a passing track and south of this passing track and about twenty-two feet distant from it is the elevator or side track. . . . Both the passing track and the side track were well filled with freight cars on both sides of the crossing.” Thus the opening between the cars through which the highway ran, opened immediately upon the main track. The passing track which was covered with cars on both sides obscuring vision, was but ten feet from the main track. The situation was such that plaintiff’s team was upon the main track at the instant when the driver’s range of vision would open to enable him to see the oncoming train or for any distance to either side of him. He exercised no care whatever under this situation demanding it but on the contrary he recklessly drove his team on a trot or gallop over the crossing where the accident . occurred. That situation was worse than this one in the instant case would have been had the passing track in addition to the third and fourth tracks also been covered with freight cars, which would have left but about fourteen feet to travel to reach the main line and within which distance only plaintiff could have seen the approach of the train. Counsel could then have more strongly contended that to approach such crossing.at even six miles an hour would have been contributory negligence per se.
Perusal of Christopherson v. Minneapolis, St. P. & S. Ste. M. R. Co. shows an entirely different situation to this one.. That crossing was an extremely dangerous one, almost a veritable man trap, and known to be such, and necessarily so by the contour of the surrounding country. Likewise, in Gast v. Northern P. R. Co. the facts disclose that the driver of a four horse team, one team ahead of the other, drove over a crossing between cars obscuring his vision on either side, under circumstances in which the lead team must have been very close to or almost upon the main line track at tire instant when plaintiff, the *496driver, emerged from between or behind the box cars and was enabled for tbe first time to see any approaching train. No such situation is here disclosed.
It may well be said, as intimated in the main opinion, that the facts in this case present a close issue of law on whether plaintiff should be charged with contributory negligence as a matter of law. Doubt must be resolved in favor of the plaintiff and in favor of the findings of the jury by their verdict. It may be added that this case marks about the limit at which negligence should not be imputed to a plaintiff under circumstances. Another assignment on admission of testimony as to train’s speed not particularly ruled upon and re-urged on petition for rehearing, we held not well taken. The petition is denied.