*641Dissenting Opinion.
Hadley, J.— I cannot agree with the majority in the result reached in the decision of this ease. I am unable to believe that this court is warranted in ruling upon the answers to interrogatories, that, as a matter of law, appellee’s intestate was guilty of contributory negligence.
The interrogatories were all propounded by the defendant. We must approach the question under the guidance of the well established rule, that all reasonable presumptions must be indulged against the special answers and in support of the general verdict, and if the general verdict, thus aided, is not in irreconcilable conflict with the answers, it must stand. Louisville, etc., Co. v. Schmidt, 134 Ind. 16; Consolidated Stone Co. v. Summit, 152 Ind. 297.
The rule is a most reasonable one. The jury is required to pronounce upon all the issuable facts proved in the case. The court in testing the force of isolated facts disclosed by answers to interrogatories does not know, and can not know, what other facts touching the same matters were rightfully before the jury to justify their verdict. Therefore in conceding to the jury the presumption of right judgment, to overthrow its general verdict the special facts returned should be of such a nature as to exclude the possible existence of other controlling, consistent facts provable under the issues, relating to the same subject.
In this case the jury has said by its general verdict that under all the facts proved the deceased was free from contributory fault, and a few segregated facts, selected by the defendant from the mass of established facts, should not be permitted to prevail over the verdict without reasonable certainty that the jury acted solely upon, or in disregard of the facts returned.
This action having been commenced prior to the act of 1899 (Acts 1899, Ch. 41) it was incumbent upon appellee to show afiirmatively that his decedent was in the exer*642cise of due care. The exercise of due care at a railroad crossing, requires the traveler to look and listen before going upon the track. This is undoubtedly the general rule. There are exceptions. The law requires no foolish thing. That which will be ineffectual is excused. Therefore, if Platt by looking could not have seen, or by listening he could not have heard the approaching train in time to have avoided the accident, neither was required. He was only called upon to employ such agencies of information as the perils of the place fairly demanded, and as were calculated to disclose such danger as might be reasonably apprehended from the situation as it then and there appeared. Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357.
As set forth in the main opinion the answers to interrogatories show that Platt from the point where he sat on his sled in conversation with another south of the south sidetrack, could not have seen a train approaching from the east until it reached.the crossing. This on account of obstructions consisting of Fee’s sawmill, 100 feet long north and south, the dock forty feet long, with two or three car loads of lumber thereon, the freight car, and piles of lumber between the main and south side-track. It is also found (number forty-eight) that if Platt had looked eastward from a point in the center of the space between the main and south side-track, he could not have seen a train approaching from the east far enough to have avoided the accident by remaining where he was until it had passed. And by number fifty-one, that from a point in the center of the space between the main and south side-track, one with ordinary visual organs could have seen a train approaching from the east a distance of 350 feet. And by number forty-nine, that if Platt had looked eastward from said center point he could have seen a train (not the train) approaching from the east at a rate of thirty to forty miles per hour, far enough so that he might have driven across the main track before it reached the crossing. This means that when *643Platt reached this first point of possible observation, and when he, seated on the front bench of his sled would have been within twelve feet of the main track, and his horses actually entering upon it, if the approaching train had been at the remotest point of view, to wit, 350 feet, he could have escaped by driving over the track. He could not have remained where he was and escaped. Having reached this first point whence he could have seen up the track so far as 350 feet his only safety was in going forward. And this is precisely what he was trying to do. To have stopped his team at this point to look and listen with his horses on the track, would have been positive negligence. Having entered within the line of danger due care required him to pass speedily out of it. It is suggested that he should have left his team and gone forward to the main track and made careful investigation before attempting the crossing. How would that have aided him ? If he had left his team south of the south siding and gone to the main track, and no train appearing within the limit of his view, or being within 1,000 feet for that matter, which latter distance would have been covered by a train running forty miles per hour, in about seventeen seconds, and 350 feet in less than six seconds, could he have returned to his team, gotten upon his sled, started his horses and driven over the main track before the train had reached the crossing ?
And his ability to hear the noise of the approaching train seems quite as impossible. Let us see. Eee’s milling house two stories high, the lumber on the dock, Wilkinson’s sawmill, the freight car on the south siding, the piles of lumber between the main and south side-track, constituted an unbroken, intervening obstruction to sound. Eee’s sawmill was running, it was snowing, the wind blowing from the west, a locomotive standing on the first siding north of the main track was blowing off steam and on the locomotive drawing the approaching train neither the bell was being rung, nor the whistle sounded, and from these conditions *644the jury answered (number ninety-three) that a person of ordinary hearing, listening at Lee street crossing (that is from the center of the main track) could have heard the noise of the approaching train ten or fifteen rods (160 or 247 feet). What use then of listening south of the south siding or at any other place while behind Pee’s mill or the other obstructions extending south from the main track 165 feet ? Under the special facts disclosed, so far as serving him in learning the real danger was concerned, Platt might as well have been without eyes or ears until he reached such relation to the main track that his only possible safety was to hasten over it.
The failure to look and listen before entering upon a railroad crossing, when the eye and ear may clearly be useful in discovering the approach of trains in time to avoid injury, is negligence per se and belongs exclusively to the court to characterize, but when extraordinary conditions exist to make the question of effective seeing and hearing doubtful; and when unusual and unexpected appearances suddenly arise at a crossing either of safety or peril, which are naturally inclined to control differently the conduct of equally prudent persons in like place, so that ordinary conduct in such situation may be subject to more than one inference and to an honest difference of opinion among men of equal intelligence and prudence, then in such cases the question of negligence or due care is not one of law but one of fact for the jury. Baltimore, etc., R. Co. v. Walborn, 127 Ind. 142, and cases cited; Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426; Cincinnati, etc., R. Co. v. Grames, 136 Ind. 39; Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147, 34 L. R. A. 141; Grand Rapids, etc., R. Co. v. Cox, 8 Ind. App. 29; Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357, 373; French v. Taunton Branch Railroad, 116 Mass. 537; Huckshold v. St. Louis, etc., R. Co., 90 Mo. 548, 2 S. W. 794; Missouri Pac. R. Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Teipel v. Hilsendegen, 44 Mich. 461, 7 N. W. 82.
*645In the last case cited, Judge Cooley says: “If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts.”
In the Harrington case, 131 Ind. 426, the plaintiff was forty years old, well acquainted with the crossing, and of good sight and hearing. There were four tracks at the crossing over one of which, as she approached on foot, a freight train was passing north. When at a distance of thirty-seven feet from the track, she could see north up the track, upon which she was injured, 400 feet. At this point she looked, and, seeing no train, continued her course over the tracks looking in a southwest direction and was caught and injured by a train from the north. The train was running at a greater rate of speed than was allowed by city ordinance and no bell was being rung. With respect to these facts, the court says: “In our opinion the decided weight of authority is that under the facts and circumstances in this ease, the question of contributory negligence was a questiop for the jury under proper instructions from the court.”
The situation at the crossing at the time of the accident was extraordinary, and abounded in conditions unusual, unexpected and deceptive. It was in the dusk of the evening, and snowing and wind blowing from the west; there was the noise of Eee’s mill, of the steaming locomotive, the obstructions to sight and sound, the total absence of the usual signals of an approaching train — a warning required by law, and which the decedent had the right to believe would be given, — coupled with the reasonable right to believe that the sounding whistle and ringing bell could be heard above the din existing at the crossing, and for the want of it, the right to believe that no train was near. Thus confronted he was called upon to act, or abandon the use of the highway. He was entitled to its use. His right to use it was equal to thq right of appellant and it seems to me a harsh rule that will require of him the absurd, or the impossible — made so *646largely by the appellant itself — as a condition, of exoneration from fault. Such a rule is a practical denial of the right to use a crossing at all in eases of this sort.
It seems to me most probable that all men of equal prudence and intelligence, in like place, would not act in the same way, and, therefore, under the weight of authority, the conduct of the decedent with respect to negligence, or due care, under the circumstances surrounding him, was properly submitted to the jury.