I dissent. The evidence produced by the plaintiff is: That the train was traveling at an excessive rate af speed; that when the plaintiff was within twenty-eight feet of the track he looked to the left and to the right and on the left, from whence the train *Page 753 came, he could see down the track for seventy-five to one hundred feet; that he saw no train; that he listened for a bell or whistle and did not hear either; that no bell was rung nor was any whistle blown; that he then proceeded at a slow speed over the crossing, which was not paved, but was rough and contained ruts and puddles of water; that it was a dark, cloudy day and had been raining; that the plaintiff was unfamiliar with the crossing in question and had never been over it before; that he was familiar with the other main crossings in Healdsburg and knew that they were equipped with signaling devices and because of the lack of such equipment at the crossing in question, plaintiff believed it was not the main-track, but a side-track.
With all these facts and circumstances before the jury, I think the question of contributory negligence was one for its determination, and I do not think that under the circumstances narrated above it was negligence, as a matter of law, for the plaintiff, when within twenty-eight feet of the track, to divert his attention to his driving and not to look further for the train.
The question of contributory negligence having been submitted, properly, to the jury by the trial judge, the verdict should be binding upon appeal.
Richards, J., and Shenk, J., concurred.
Rehearing denied.
Richards, J., Shenk, J., and Langdon, J., dissented.