(dissenting). Plaintiff recovered a judgment for personal injuries received at a certain public highway crossing on defendant’s railroad in Oakland county, known as “Gardner’s Crossing.” The injury occurred on the evening of Octobor 23, 1903, between 6 and 7 o’clock. It was after lights were lighted in the houses in the vicinity; but was not so dark that one could not see where he was. It was quite cold, and the wind was blowing from the north. Plaintiff with her husband, who was driving, were on their way home from the village of Oxford. They were riding in a single buggy with the top up and the side curtains on. There was a glass in the back curtain. Both plaintiff and her husband were well acquainted with this crossing, having passed over it very many times, and knew it was a dangerous one. The highway runs north and south and the railroad crosses it at a very acute angle, being located quite near on the east side of the highway for a considerable distance south of the crossing. These parties were driving north. On the right hand side of the highway going north there are two houses with outbuildings and orchards, which at places obstruct the view to the railroad. Between these premises going north from the one farthest south of the crossing, is an open unobstructed space of about 100 feet, giving clear view of the railroad. After passing this space the ground rises up to the house nearest to the crossing, and then descends about 4 feet gradually to the crossing. This house with shed and orchard occupies the narrow triangular piece of land between the railroad and highway with the point where they intersect each other. These premises are higher than the highway, and with buildings and orchard obstruct the view of the railroad entirely in some places, and at others to a greater or less extent — whether completely or not up to defendant’s right of way is in dispute. As these parties approached the crossing, and when within from 35 to 40 feet of it, they stopped, looked, and listened. The testimony of the plaintiff and her husband shows that she looked through *353the glass in the back of the buggy top, and her husband looked out of the side, putting his head and shoulders out, looking toward the southeast for any train that might be coming. They did not look in any other direction. They knew it was about time for the train to go north, but thought it had passed. Not hearing or seeing anything, they proceeded with the horse at a walk, continuing to look all the time in the direction and manner described, the husband rising somewhat out of the seat; neither of them saw or heard anything until the horse was on the track, when the headlight flashed in the man’s face and they were struck and injured. No other person saw the accident. The train which caused the injury was the regular evening passenger train going north, which was about 8 minutes late at the village of Oxford, and was running about 45 miles an hour. The negligence charged against defendant is in operating a train at a high rate of speed; and failure to give any warning of its approach; also in maintaining the crossing in a dangerous condition on account of the obstructions caused by the adjoining property and the buildings and trees thereon. Much of the evidence offered by both parties in the case was upon the question of the nature and extent of the obstructions to the view of the railroad south of the south line of defendant’s right of way. There was no serious claim made that these obstructions extended farther north than that point. Plaintiff’s husband, after the accident, when the leaves were on the trees, made a test as to where the view became unobstructed, and testified that he found ain open view for at least 40 rods at a point 21 feet south of the south rail. The record shows that this point is about at the line of the right of way.
Defendant requested the court to direct a verdict on the ground that the failure to see the approaching train was due to plaintiff’s negligence and the negligence of her husband which contributed to the accident, and also that the testimony that the required signals were given was conclusive.^ This request was refused. After this mo*354tion was denied, at defendant’s request the court charged the jury:
‘ ‘ The testimony of the plaintiff’s husband is that there was an unobstructed view of the track for at least 40 rods at a point about 21 feet south of the south rail on the occasion he made a test after the accident while the leaves were still on the trees and if you find from this testimony and the other evidence in the case that the plaintiff’s husband could have seen the train at the point of the accident if he had looked for it, then your verdict must be for the defendant of no cause of action.”
This request was given, being included in the general charge of the court, and the case was submitted to the jury. Two motions for a new trial were made and denied. The grounds for said motions were that the verdict was against the weight of evidence; that the court erred in submitting the question of the plaintiff’s contributory negligence to the jury; and on account of newly discovered evidence. The material errors assigned are based upon the refusal to instruct a verdict for defendant on the ground of contributory negligence of plaintiff and the refusal to grant a new trial for the reasons stated.
This case depends solely upon the question as to whether there was contributory negligence on the part of the plaintiff, as a matter of law. All the other questions were disputed questions of fact, and were properly submitted to the jury by the trial judge in an admirable charge. As stated by the court, plaintiff’s husband testified that, in a test made by him after the accident, while the leaves were still on the trees, at a point 31 feet south of the south rail of the track, there was‘an unobstructed view of the track, in the direction from which this train approached, of at least 40 rods. His testimony is as follows:
“ Q. Did you measure 31 feet along the track in the traveled roadway ?
“A. We did.
“ Q. You were measuring the distance, you were out in the highway where you could see up the track, weren’t you P
*355“A. Why, yes, sir.
“ Q. You made a test of it ?
A. Yes, sir. * * *
“ Q. At the time you made the test as to how far you could see up the track there, what is the shortest distance you are willing to say you could see up the track from the crossing ?
“A. I don’t understand. (Question repeated.)
“A. How many rods up the track ? I couldn’t say.
“ The Court: Standing 19 or 20 feet away from the -rail.
“A. I just said, I was unable to say.
“ The Court: Can’t you give some idea whether it was •one rod or 100 ?
“A. Possibly you could see 100 rods up there.
‘ ‘ The Court: He is asking you for the shortest distance, you feel safe, you could see.
“A. I possibly could see 40 rods up there and possibly more.
“ Q. Is it your best judgment that you could see 40 rods up the track from a position 19 or 20 feet south of the south rail in the traveled portion of the highway at Gardner’s crossing ?
“A. I thought that I might. That would be my judgment.” ®
This is an intelligent witness. He was the husband of ■plaintiff, and was driving the horse at the time of the accident. He testified that he was leaning with his head and •shoulders out all the time from the time they started up after stopping until they were struck, looking in the direction from which this train was coming. The horse was proceeding at a slow walk. The headlight on the engine was burning brightly. He knew the crossing to be difficult and dangerous. He had crossed there numerous times, and knew all the surroundings. The testimony of this witness, above quoted, and its bearing upon the question of plaintiff’s contributory negligence, is not considered in appellee’s brief; but the claim is that, having performed the duty, of stopping, looking, and listening at a point 40 feet from the track, and seeing and hearing nothing, these parties then proceeded as they had a right to do under numerous decisions of this court, which *356are cited, and the question of contributory negligence is one of fact and not of law. The cases relied upon are: Potters. Railroad Co., 140 Mich. 363; Monroe v. Railway Co., 129 Mich. 309; McDuffie v. Railway Co., 98 Mich. 356; Richmond v. Railway Co., 87 Mich. 374; Haines v. Railway Co., 129 Mich. 475; Hintz v. Railroad Co., 140 Mich. 565. These cases are all easily accessible and it will not be necessary to - digest them in this opinion. It will be sufficient to say that all of them are distinguishable from the case at bar in that as to all the vital questions at issue there was either a dispute as to the facts, or where an opportunity was offered for the injured party to discover and avoid a train it was so limited that a failure to do so was not held to be negligence as a matter of law.
In the case at bar at a point 19 or 30 feet from the rail there was at least 40 rods of unobstructed view up the track upon which this train was approaching with a brilliant headlight towards which plaintiff’s husband says he was looking all the time, and saw nothing. The conclusion is irresistible that he was not looking as he claims. In an Iowa case the court uses this language:
“But it is urged by the appellee’s counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not, and that this testimony shows that he was not guilty of contributory negligence, or, at the very least, it made that a question of fact for the jury. The difficulty, however, with the position is that the conceded or undisputed facts being true this testimony cannot, in the very nature of things, be also true. It constitutes, therefore, no conflict.” Artz v. Railroad Co., 34 Iowa, 153.
In a recent Wisconsin case that court said :
“Where a physical situation renders the right of a matter clearly beyond all reasonable controversy, there is no accounting for testimony to the contrary, except upon the theory of mistake or willful false swearing, and in such circumstance the more positive and definite the testimony the greater the indication of fault, greater than can *357be reasonably attributed to mere mistake. In such a case, regardless of the amount of evidence from the mouths of witnesses, there is no conflict to be solved by a jury, because no just verdict can ever be rendered contrary to all reasonable probabilities.” Marshall v. Railroad Co., 125 Wis. 96, 100, and cases cited.
The facts in this last case are very similar to those in the case at bar, the material difference being the greater distance from the track the view was unobstructed. This case can be, and is, determined upon the testimony of plaintiff’s husband, without taking into consideration all of the other corroborating testimony in the case upon the physical conditions as to the view at the crossing. With the unobstructed yiew of at least 40 rods, and, from his testimony, probably much farther, at a point where from his familiarity with the crossing he must have known he could get this view, we cannot say, as was said in the case of Hintz v. Railroad Co., supra, he had a very limited opportunity to discover the approaching train. He would have seen the train had he used ordinary prudence and caution and avoided the accident. Not to do so was negligence, and his negligence must be imputed to the plaintiff.' The court erred in not instructing a verdict for defendant. This disposes of All the other errors assigned in the case.
The judgment of the circuit court should be reversed, and a new trial ordered.
Grant and Blair, W.- concurred with McAlvay, J.