{dissenting). The facts of this case are fully, and fairly stated by the court, but I cannot agree in the conclusions drawn therefrom. To say that plaintiff “blindly proceeded on the railroad track,” or that he exercised “no precaution whatever,” seems to me to quite ignore the facts. The situation was' exceptional. The plaintiff drove his auto along the walled-in, narrow alley very slowly and cautiously, listening attentively, and looking to the full extent of his vision. The railroad track was within six and one-half feet of the building line, and the auto front wheels would be within the line of the overhang of the tender before plaintiff could see up and down the track. Here was a dangerous situation on the property of the defendant, which it had leased to be used as a coal yard with this identical roadway, and the crossing prepared and maintained by it for use by the lessee and its customers. The narrow alley, inclosed by buildings up to six and one-half feet of the track, made a dangerous trap for travelers thereon, unless *586defendant should use extra precaution in operating its trains over the driveway. Under the circumstances plaintiff had every reason to expect the cars would move slowly over the crossing and that timely wanning- would be given by ringing the bell of the engine. The defendant did neither. On the contrary, it ran its cars at an unlawful rate of speed and failed to ring the bell or give any other warning. The plaintiff was further trapped into the danger by the open gate, which was an implied invitation to proceed.
I think this was a case which clearly called for the exercise of the functions of jurors, whose judgment and experience especially qualify them to determine the care ordinarily exercised by careful and prudent men under all the circumstances of the case.
Many cases are cited by the court as sustaining the decision, but they are all easily distinguished from this case. Many cases might be cited to uphold these views, and they could likewise be distinguished on the facts. After all, the law of negligence is based on common sense applied to human experience. Where the facts are such that reasonable men may draw different conclusions therefrom, the question of negligence becomes a question of fact for the jury. The trial court and a fair and impartial jury who viewed the premises and saw the dangerous trap where plaintiff was caught, concluded that the plaintiff exercised the care that the majority of careful men would have used under the circumstances, and I fully agree with that view.
I therefore respectfully dissent.