(dissenting.)
I dissent.
The jury might have found facts about as follows:
The train of 17 cars was headed south and the crew were switching cars from the south across Lake street. They kicked two across and the train then went south until the cars cleared the street, the engine then being some 600 feet further south. Leo Hoyez came *50in his auto on Lake street from the west while the switching was going on and stopped perhaps 40 feet west of the track. Behind him came Earl Wietmeier in his auto. He stopped behind Hoyez. Frank H. Brown, the cashier of the bank, rode with Wietmeier and got off, without the auto stopping, some 225 of 250 feet west of the track in front of the Martin Lumber Company office. As he got off he saw the Engstrom car coming from the west a few hundred feet away, perhaps 300 or 400 feet. Wietmeier, while behind Hoyez, both awaiting an opportunity to cross, heard an auto approach from the west and stop behind him without shutting off the engine. He did not look back. The brakeman at the crossing signaled to cross and Hoyez and Wietmeier crossed in safety. Hoyez stopped at the bank, some 350 feet east of the railroad track, and when he looked back the accident was just occurring. Wietmeier went to the War-road Mercantile Company store some 125 feet further on. When he got out the train had stopped and the accident had happened. By an experiment made afterwards Hoyez fixes the likely time taken in getting from where he started west of the track to the bank at 30 seconds. Very soon after Brown went into the lumber office, almost immediately, his attention was attracted to the crossing and he saw Engstrom approach it. The cars were not then moving. The jury might find from the testimony of Hoyez and Wietmeier and Brown that the three cars were in close proximity at the railroad crossing. They could find that Engstrom saw the signal upon which Hoyez and Wietmeier acted and started to cross in reliance upon it, and was on his way when Brown saw him.
Under such facts the case is not a look-and-listen case such as Anderson v. Great Northern Ry. Co. 147 Minn. 118, 179 N. W. 687, cited by the defendant. To some reasonable extent Engstrom might rely upon the action of the two autos in crossing in front of him. Brown v. Chicago & Northwestern Ry. Co. 129 Minn. 347, 152 N. W. 729. It is evident that the train commenced backing when the auto was very near the track. If Engstrom started to cross in reliance upon a signal, or followed close after Hoyez and Wietmeier while the train was standing, it cannot be held as a matter of law that he was negligent.
*51I readily concede that a different view of the evidence might be taken, for this recited is not all; bnt it seems to me that the one suggested might well enough be taken and to my mind it is likely the true view. That evidence is in the case and along with the other evidence was for the jury. The witnesses throughout, so far as the record shows, were candid. There was excitement. Looking at the same things they did not see alike. Their attention was attracted to one thing within their scope of vision and other things there made no impression upon their minds. Everything happened within the limits of a few seconds. Their estimates of time and changing distances as the different occurrences happened are likely inaccurate. The cars may have started when Engstrom was close to the track, and he may have become excited, and he may not have done the most prudent thing; but if he was not in a place of peril through his negligence, but through the negligence of the defendant, the law does not require of him the safest action.
The appeal is from the judgment entered after the denial of the motion for judgment notwithstanding the verdict. There was no motion for a new trial. The only question is whether the evidence is conclusive against the verdict. National Cash Register Co. v. Merrigan, 148 Minn. 270, 181 N. W. 585. This is the effect of the reversal. I dissent upon the ground that the question was for the jury.
In October 6, 1922, the following opinion was filed:
Per, Curiam.1. A reargument was granted and the case was resubmitted on oral arguments. Upon a renewed consideration a majority of the court are of the opinion that the case was for the jury upon the question whether there was negligence of the defendant proximately causing the death of the decedent in failing to maintain gates or a flagman or other appliance to warn travelers at the crossing, and that the question of the contributory negligence of the deceased was for the jury.
*522. The order of reversal is set aside and the judgment from which the appeal taken stands affirmed.
Judgment affirmed.