14 RailroadsSs^ronteibu" tory negligence, — Appellant’s petition for rehearing challenges the conclusion reached in the opinion that the evidence was sufficient to carry the issue as to contributory negligence to the jury, and counsel argue that it is in conflict with Beemer v. Chicago, R. I. & P. R. Co., 181 Iowa 642, where, 90 to 100 feet from the crossing, a view of the railway track 800 to -1,100 feet toward the west could be had, and this increased as the crossing was neared. Neither the driver nor his wife looked, within 40 feet from the track. The speed of the train through the town was limited by ordinance. The facts bring the case within the line of authorities holding that, where the view of an approaching train for 100 or more feet from the crossing is clear, so that, had one looked, he must have seen, and there were no diverting or emergent circumstances, there can be no recovery. See Williams v. Chicago, M. & St. P. R. Co., 139 Iowa 552, where the general rule is clearly stated .-
“Nor is it held to be incumbent on the highway traveler to continue to scan the track in either direction at each successive step until the crossing is accomplished; but, on the other hand, he must not forget that he is endowed with senses of sight and hearing, the reasonable use of which is, in a great majority of cases, his sufficient protection against injury of this nature. ■ There are not wanting many cases where the traveler, having once looked for approaching trains when at a suitable distance from a crossing, is held not to be negligent, as a matter of law, because he failed to look again. In these cases, however, we invariably find circumstances reasonably excusing the exercise of such vigilance, — as, for instance, intervening obstructions to *526the view, necessary attention to a frightened or nervous team, multiplicity of tracks and moving trains, calculated to confuse or distract the attention, open crossing gates, giving implied assurance of safety, or some fact other than his own forgetfulness or mental abstraction, which might fairly lead a reasonably prudent person to omit such precaution.”
In Anderson v. Dickinson, 187 Iowa 572, also relied upon by defendant, the complainant’s view was- obstructed up to 55 feet from the track, where, notwithstanding denial, the court held that, in the nature of things, the approaching train must have been seen. Numerous other cases so holding are cited. Another case, Sackett v. Chicago G. W. R. Co., 187 Iowa 994, seems to be relied on. There, the plaintiff was riding on the back seat of a motor cycle, with his back in the direction of an approaching train. At the distance of 48 feet from the crossing, he could have seen up the track 208 feet; and, when the train reached the street, the motor cycle was about 60 feet from the point of collision. Neither the driver nor the plaintiff saw it, and the latter at no time looked in the direction from which the train came, though he claimed to have listened. In none of these decisions was the complainant’s right to rely on the railroad company’s obedience to law involved. The law does not specify precisely what a person about to pass over a railroad crossing must do. The only test to be applied is that, in so doing, he must exercise ordinary care. If the view of the track on which a train is approaching is clear all the way for 100 or more feet to the crossing, from the time it first comes in view, and there are no circumstances excusing the exercise of vigilance, in event of a collision the traveler is held to have been negligent. The trouble is in ascertaining whether there are intervening circumstances, and whether they are sufficient to excuse a more vigilant lookout than was kept.
In Winey v. Chicago, M. & St. P. R. Co., 92 Iowa 622, the court, speaking through Deemer, J., remarked that:
“The rule, no doubt, is that, if the traveler, having looked and listened without seeing or hearing an approaching train within a reasonable distance of the crossing, is, by reason of a neglect of the railroad company to blow the ‘statutory’ whistle, run upon and injured, liability attaches therefor.”
*527In Mackerall v. Omaha & St. L. R. Co., 111 Iowa 547, 548, the traveler stopped, looked, and listened, at 100 feet from the crossing. From there to 14 feet from the center of the track was an embankment, obstructing his view, and, in driving down a descent, his attention was diverted by the gullies, and he did not notice the track until the forefeet of his team were on the track. To the contention that he should have been adjudged guilty of contributory negligence, it was said:
“Not so because of sitting down, as possibly this may have been a matter of precaution, for the management of his team in going down grade, and to avoid the ruts and side ditches. Nor can it be stated, as a matter of law, that he should have stopped again to look and listen” (citing Winey v. Chicago, M. & St. P. R. Co., supra).
The principle is well expressed in Platter v. Minneapolis & St. L. R. Co., 162 Iowa 142:
“A traveler upon a public highway is not bound to look or listen at any particular place, nor is he bound, as a matter of law, to look, especially where his view is obstructed at any given point, as he passes along the highway. The obstructions to his view are to be taken into account, and he also has the right to rely upon the railway operating its trains in accord with the law and ordinances of the city. If failure to do these things is calculated to mislead a traveler, the company cannot complain of his conduct when acting in reliance upon the performance thereof. He has the right to rely upon a burning headlight, when such headlights should be lighted; on the ringing of the bell; and, in exceptional cases, within a town, especially where the crossing is a dangerous one, upon the blowing of the whistle or some other warning: and, if he does so, and at the same time exercises the ordinary precautions of sight and hearing, he cannot be held guilty of contributory negligence, as a matter of law. In such circumstances, the question is one of fact for a jury.”
In Davitt v. Chicago G. W. R. Co., 164 Iowa 216, the driver of the team approaching the track looked and listened when 150 feet distant, and again when 100 feet from the crossing, and did not see the train; but, had he looked at a distance of 50 feet, the jury might have found that he would have seen it, and, *528had he kept a continual outlook, he must have seen. The court held that:
“He had the right to expect a compliance with the custom of giving signals at that crossing; and, if he- listened and heard nothing, there was presented a question for the jury to determine whether he was, at the time, exercising due care. ’ ’
See, also, Brossard v. Chicago, M. & St. P. R. Co., 167 Iowa 703, where it is said that the law does not fix any, point at which a traveler should look and listen, but does exact of him the exercise of ordinary care, in passing over the crossing.
It will be recalled that, Reinig driving and Berger at his side, the automobile came down Fourth Street in a westerly direction, and, as it approached Seigel Street, they might have seen the defendant’s track near the interlocking switch; and that, as they turned north on Seigel Street, they could have seen defendant’s track at an increasing distance west of the crossing; when 85 feet south of the south rail, 175 feet of the track west; when 64 feet south of the south rail, 220 feet of the track west. The jury might have found that the train had not reached either point, when the automobile was 64 feet south of the south rail, and decedents are presumed to have known that defendant’s train was required not to move at a greater speed than 6 miles an hour. Moreover, there were no witnesses to what they did after turning north, until observed within 20 feet from the south rail, — giving effect to the presumption that, in the meantime, they were exercising due care. •
We meet the inquiry whether Berger is to be conclusively adjudged to have been guilty of contributory negligence, or was that issue for the jury ? The additional facts should be stated: (1) The train was moving at a speed of 20 to 35 miles an hour; the automobile, 10 to 15 miles an hour. (2) One Oswald drove over the crossing, about 15 feet ahead of decedents, and, after crossing, motioned in warning. If the automobile was moving at 15 miles an hour, this would be 66 feet in 3 seconds; if at 10 miles an hour, 14.6 feet a second, — 65.7 feet in áy2 seconds. This is mentioned to indicate how brief a time the automobile required in moving to the crossing, after decedents might have looked up the track 220 feet, and have seen no train approaching. Might they have taken into consideration, then, that a *529train, if approaching, might not lawfully exceed in speed 6 miles an hour ? The court has repeatedly so held, as seen; and, if that might be so done, what weight is to be given this .circumstance? Are former decisions to rule, especially Davitt v. Chicago G. W. R. Co., 164 Iowa 216, where reliance on warnings required by law, not sounded, was held to excuse for not looking within 100 feet ? Might decedents have proceeded for 3 or even 4y2 seconds, without looking for a train again ? Or, if they did so, must they be denounced as conclusively negligent, or should that issue be left to the jury? Reasonable minds might differ in answering this inquiry, and for this very reason this court ought not to assume to say that the issue is not fairly debatable, under the evidence in this ease. The opinion, as the writer thinks, correctly ruled that the issue of contributory negligence was for the jury to pass on, and he would overrule the petition for rehearing.
Weaver, C. J., Evans, Preston, Stevens', and Arthur, JJ., concur. Salinger, J., dissents.