I dissent. The majority opinion, with a partial recitation of the facts in the record, demonstrates its own error. It is quite necessary to protest concerning the manner in which this case was submitted to the jury for a special verdict upon interrogatories, and concerning the evident mistrial that has resulted by reason thereof. It is necessary again to protest against the evident recognition given by the majority opinion to the propriety of interrogatories framed and submitted to the jury as they were in this case. The majority opinion has set forth these interrogatories in full. On their face, in connection with the record, they demonstrate that issues of law were submitted to the jury and issues of fact in reality reserved for the court. That, in a manner, the jury became the judge of the law, and the court, of the facts, thereby directly interfering and disturbing the constitutional and statutory functions of both the court and the jury. In this case, the majority opinion states that the trial court exercised its discretion against the plaintiff, and therefore the plaintiff cannot complain. Nevertheless, the trial court denied a new trial upon grounds of procedure, and for the further specific reason that the deceased was guilty of contributory negligence as found by the jury. The majority opinion abandons, apparently, both of these grounds, so asserted by the trial court as reasons for denying a new trial, and bases its holding upon the ground that the jury found that the defendant was not negligent. By such reasoning does it assert that the discretion of the trial court should not be disturbed ?
Then, again, the jury, in an answer to the direct question so propounded, found that the defendant was negligent. Perhaps the major*80ity opinion so states, like Antony spoke at the funeral of Julius Caesar, that “Brutus was an honorable man.” No quarrel is to be had with the authorities cited in the majority opinion. The pertinent point is the method of their application. It may not be doubted that, if the defendant, through the failure to exercise reasonable care at the time of this accident, frightened the .horse and proximately occasioned tiro injuries and resultant death of the deceased, it is liable; and, vice versa-, if the injuries resulted through the fright of the horse upon the sight of the moving locomotive through the usual noises or incidents of its ordinary operation without defendant’s negligence, it is not liable. In the ease at bar the locomotive of defendant’s freight train was engaged in switching at a local town. The freight train was standing on the main track, at or near one of the crossings involved. There were three different tracks crossing the highway involved, in rather close proximity. The locomotive, at the time of the accident, was proceeding on a so-termed house track towards the highway. Its view by the traveler on such highway was excluded by a coal shed, fencing and piles of wood and brick, and by another building. At that time the deceased was riding in a buggy towards this crossing upon the highway. The horse was then being driven by another person. It was 35 feet from the crossing when the accident occurred. At that time it was the duty of the defendant to give a warning of the approach of the locomotive, by blowing the whistle or ringing the bell. This was a statutory duty. Comp. Laws 1913, § 4642. And, regardless of the statute, it was its duty, in any event, to give notice of the approach of the locomotive at all points of known or reasonably apprehended danger. Coulter v. Great Northern R. Co. 5 N. D. 568, 578, 67 N. W. 1056. It was its duty to keep a proper lookout to avoid inflicting injury. Rober v. Northern P. R. Co. 25 N. D. 394, 142 N. W. 22. It was also its duty in this case to flag this crossing. The defendant’s brakeman, Louis Larson, testified that it was a part of his duty while the train was working to flag the crossing, and he stood there for the purpose of protecting the crossing. It was also its duty to refrain from creating and continuing the usual noises incident to the ordinary operations of its service, if in the exercise of reasonable care and ordinary prudence, it might thereby avoid fright in a horse and consequent injuries to a traveler upon the highway. 33 Cyc. 936; Carraher v. San Francisco *81Bridge Co. 100 Cal. 177, 34 Pac. 828; Williams v. Chicago, B. & Q. R. Co. 78 Neb. 695, 14 L.R.A.(N.S.) 1224, 111 N. W. 596, 113 N. W. 791; Louisville & N. R. Co. v. Penrod, 24 Ky. L. Rep. 50, 66 S. W. 1012. The driver, a witness for the plaintiff, testified that this brakeman was not there at the crossing ivlien she started down the road to the crossing; other witnesses similarly testified; she never saw the brakeman before that she knew of; that after she and the deceased got hurt some man asked them if they Acre hurt; she would not recognize the man. She testified that just previously at the lumber yard (this is about 200 feet distance from the crossing) she got some molding. She then turned around and went towards the south on a slow trot; there was a farmer driving in front on a lumber wagon; all at once the farmer, ahead, waved. She stopped the horse. Immediately, the train went by; the horse got scared and turned; she jumped out, her aunt was thrown out and the horse ran away. Just previously the farmer, his horses, and wagon, escaped the. engine close to him by slapping the lines, the horses jumping, jerking to the side of the track, and going on. The brakeman, in addition to the testimony stated in the majority opiniou, further testified that he was the rear brakeman on the freight train; the train stopped east of this street after he unloaded and loaded freight; he walked around the train to look over hot boxes. During this time the other brakeman had uncoupled the engine and some cars, and pulled over upon the house track (where this accident occurred). That he was about five minutes unloading the freight and six to eight minutes walking around the train; that after he got through looking over the train he stopped right on this crossing, between the passing track and the house track; that the engine was then east of this house track. It was backed up west of the crossing to spot some cars; this was their second trip on the house track. He remained where he was; that he was watching the engine and looking up the road; that there were some wagons going across the track while he was standing there; he did not see this witness, the farmer, coming along with the wagon; he saw a rig with the two women in it some 200 feet, or such a matter, north of this north track (the house track) ; that he held up his hand for them to stop because he saw that they were getting too close to make the crossing; that he saw the horse start to *82turn, a,nd he ran over ahead of the engine to the north side, and that he crossed the house track ahead of the engine to see what had happened. That the rig then was some 50 or 60 feet from the center of the north track.
It is rather difficult to discover the harmony that the majority opinion finds in the jury’s answers to interrogatories Nos. 10 and 11. It attempts to harmonize such answers because, forsooth, the jury would not have found that Larson went north across the track in front of the engine, warning the two women of danger if they had believed that he was not in fact stationed at the crossing, and had not in fact given the warning he claimed to have given. It arrives at harmony accordingly by the finding as a fact, that this engine was ringing the bell as it approached the crossing at the rate of 6 miles per hour; that the brakeman did signal the women by holding up his hand (presumably in time to avoid the accident) ; that the horse then became frightened at the engine and started to turn, with the result that the deceased fell out of the buggy and was injured. The opinion underscores the word “appear” in the 10th interrogatory, and gives to it, by definitive meaning, a status like unto the vision of Banquo’s ghost. In question 30, the jury directly and incontrovertibly stated and found that this brakeman, when the engine was approaching the crossing, did not appear on such crossing warning the women to stop in the street north of such crossing. In question 11 the jury found that this brakeman did go north across said trades (tracks in the plural) in front of the engine, entering upon Fourth avenue, warning the women of danger. The brakeman did testify that he went north of the tracks as hereinbefore recited, but the question is, When? The answer, perhaps, might be, “Not \mtil the women and the horse were in a position of danger and at a time when acts of aid, not of warning, were necessary.
Assuredly, if the interrogatories can be made consistent it may not bo upon the theory asserted in the majority opinion. Again, the majority opinion upholds the affirmative answer of the jury to the 9th question, “Was the bell being rung or the whistle blown ? ” It disapproves of the submission of such question in the alternative or disjunctive, but condones the offense in this case by showing that there was no evidence of the whistle being blown, and, therefore, the answer of the jury must have concerned the bell. Even so, the vice of the *83question is not alone therein. It was the duty of the defendant to keep a lookout and give warning of its approach, by ilie ringing of the bell, if such warning was proper, prior to the approach, as a warning to the occupant, and not, after the approach, as an occasion of fright for the horse.
The pertinent question was, in this regard, and the one necessary to be answered by the jury, “When was the bell being rung?” and, “To what extent prior to the approach upon the crossing?” From such premises, the majority opinion deduces the conclusion that the jury found no negligence on the part of the defendant. The elements of negligence, if any, in this record are failure to exercise reasonable care concerning lookout, warning, and flagging. It is manifest that the jury, by the questions propounded, did not find upon the questions, as issuable facts, whether or not the defendant exercised due care in these respects. The fact that the engine did not make undue noise, or that there was nothing unusual in its incidental and ordinary operation, did not absolve it from care in respect to the matters mentioned. See cases cited, supra. The brakeman, through his own' testimony, apparently left his post as flagman after discovering the horse and women in difficulty, without any attempt to flag or stop the engine. But the error in the questions submitted are to be further discussed. The jury found, pursuant to interrogatory 1Y, that the defendant was negligent, at this time and place, in handling its railway and train. This was a question of law for the court. This question was improperly submitted to the jury. The majority opinion recognizes this by disregarding the answer of the jury in that respect, and by controlling and superseding such answer through the other specific findings made by the jury. In interrogatories 19 and 20 the jury found that the deceased was negligent in her manner of driving toward the engine and crossing, or, by failing to look and listen for the train, and in interrogatory 20, that such negligence contributed to her own injury. Interrogatory 19 is a double question. No one can tell whether the deceased was held guilty of negligence in her manner of driving or in her failing to look and listen for the train. Furthermore, the evidence is undisputed that the deceased was not driving the horse; and so, the trial court denied the motion for a new trial upon the ground that the deceased was guilty of contributory negligence although, in interroga*84tory 16, the jury found that the women, by the exercise of reasonable caro and ordinary care, could not have seen or heard the engine approaching, and have stopped their horse and prevented the accident. Perhaps, this is not “confusion worse confused,” but, at least, it has some of the elements of it. Perhaps, the trial court did, and possibly, the majority opinion may by reasoning similar to that applied to questions No. 10, 11, and 17, harmonize the apparent contributory negligence found in questions 19 and 20 and the absence of it in question 16. This court has repeatedly held that, pursuant to the statute, tho special verdict must present conclusion of evidence as established by the evidence, and not the evidence to prove it; that the questions for a special verdict should be plain, single, and direct; that they should contain only the ultimate conclusions of facts in controversy. Nygaard v. Northern P. R. Co. 46 N. D. 1, 178 N. W. 961, and cases cited. Comp. Laws 1913, § 7632. As this court has heretofore hold, questions should not be submitted that call for conclusions of law Nygaard v. Northern P. R. Co. supra. It is apparent that the questions submitted do violence both to the statute and the repeated holdings of this court. They have served, as is apparent in this case, to mislead and confuse the jury; to submit to the jury an issue of law and plainly, as has been observed, to submit to the court an issue of fact. Por it is evident that the trial court, particularly, this court in its majority opinion, determines the facts in this record, by interpretation, and after such interpretation, by answering the interrogatories submitted to the jury, and in direct opposition to the jury’s direct findings upon questions of law submitted to it. The evident result is a mistrial. It may be that this is a close case, and that the right of plaintiff’s recovery is a close question both of law and of fact. However that may be, close cases are those which give rise to acts of in-, justice, and close cases upon the law and tho fact are particularly entitled to a fair and legal trial. It has not been accorded, in my opinion, in this case, and a new trial should be granted by reason thereof..