Holt, J.
At about 3:30 p. m. on January 3, 1923, while driving his Ford automobile in an easterly direction over defendant’s surface railroad crossing at Twenty-third avenue north, Minneapolis, Roy E. Turner was struck and killed by one of defendant’s south-bound passenger trains. His administratrix brought this action to recover damages under the death statute and has appealed from a denial of her motion for a new trial after a directed verdict for defendant.
Twenty-third avenue runs east and west and crosses 7 railroad tracks. The 3 westerly tracks belong to the defendant and the 4 easterly to the Northern Pacific Railroad Company. The first track, as one approaches from the west, is known as the “industry track” and the next is defendant’s south-bound main track, on which the train was running. It is 18.8 feet, measuring from center to center, between these two tracks. A picket fence about 7J feet high is located on the north side of Twenty-third avenue and extends to a point about 6¿ feet from the industry track. It incloses piles of
lumber and a sash and door factory. A lumber shed on the south side of Twenty-third avenue is near the industry track. Plaintiff introduced evidence from which the jury might find that at the time of the accident two box cars coupled together were on the industry track, that the south end of the southerly car extended into Twenty-third avenue from 6 to 8 feet, and that Turner’s view of the tracks was obstructed by the cars. The exact distance from the southbound main to the point where he could first get an unobstructed view of the tracks, is in dispute.
Twenty-third avenue ends just east of the tracks. It leads to the shops of the Omaha Railroad Company, where many men are employed who cross the tracks daily on their way to and from work. There are 60 or 70 train movements over the crossing every 2á hours. No flagman is stationed there and there are no gates.
Turner was an employe of the Omaha Road and, at the time of the accident, was on his way to work, accompanied by a fellow employe named Madzey. Turner was an experienced driver and was familiar with the crossing.
The day was clear, with a light wind from the north. Turner was driving slowly, the roadway was not slippery, and he could have stopped his car in a space of 7 or 8 feet. Madzey estimated the speed of the car as they approached the crossing at 8 or 9 miles an hour, and testified that before the tracks were reached it was reduced to about 6 miles an hour. The speed of the train was variously estimated at 10, 12 and 15 miles an hour. The side curtains were not on the car. Madzey testified that he looked both ways before the industry track was reached and that he first saw the engine when it was only 6 or 8 feet away; that Turner also looked both ways when he was on or near the first track, and that just before the collision Turner got up and tried to get out over the south side of the car.
Turner 'had formerly worked at the Omaha shops, but had been employed elsewhere for
i
or 5 years, returning to the shops as an employe 10 or 15 days before the accident. While employed there he crossed the tracks twice every working day.
There was evidence from which the jury might find that no warning signal was given of the approach of the train and that it was running at a rate of speed in excess of that permitted by an ordinance of the city of Minneapolis.
The foregoing statement of facts is as favorable to plaintiff as the evidence warrants. It makes no mention of a great deal of contradictory evidence which the defendant introduced. For the purposes of this discussion we assume that the evidence made the issue as to defendant’s negligence one for the determination of the jury. At the close of the evidence defendant’s motion for a directed verdict was granted because the court was of the opinion that Turner was chargeable with contributory negligence as a matter of law. In granting the motion the court said that, if the box cars were where plaintiff’s witnesses said they were, that “would put the deceased more on his guard to obey the stop, look and listen rule,” and that “it appears conclusively that he was in his machine and driving less than the rate of 6, 7 miles per hour straight through at that rate without reducing his speed.”
The only question we consider is whether the evidence shows conclusively that Turner was negligent.
Plaintiff’s counsel asserts that the trial court erroneously assumed that there is a -rule of law in Minnesota which makes it the duty of a traveler on a public highway, on coming to a railroad crossing, to stop, as well as look and listen, before he drives across.
A brief resume of what this court has said in other cases may help to clear up doubts on this subject:
In Shaber v. St. P. M. & M. Ry. Co. 28 Minn. 103, 9 N. W. 575, Gilfillan, C. J., said:
“With respect to the degree of care with which a person traveling on a highway should approach a railroad crossing, the court below was right in its instruction to the jury that it is not, in all cases, his duty to stop and listen to ascertain if a train may be coming; that Ms duty in that regard must depend on the circumstances of the case, of which the jury are to judge.”
In Kelly v. St. P. M. & M. Ry. Co. 29 Minn. 1, 11 N. W. 67, Dickinson, J., said:
“Since, to one approaching a crossing like that in question, the danger is obvious and great, the law holds it negligence for him to do so without the vigilant exercise of his senses of sight and hearing. * * * He was not required to use every precaution which might have contributed to his safety, but only such as common prudence dictated. We cannot say, as a matter of law, that it was negligence not to have entirely stopped his team, * * * or that common prudence required him to get down from his wagon, and go forward on foot to look along the line of the track. * * * Such precaution is believed to be extraordinary, and to exceed the strict measure" of common prudence.”
In Beanstrom v. N. P. R. Co. 46 Minn. 193, 48 N. W. 778, Mitchell, J., said:
“While the decisions of this court are uniform to the effect that, under ordinary circumstances, it is the duty of a person to look and listen for approaching trains before venturing to cross a railroad, yet we have never held that having done so, he is bound, as a matter of law, to stop his team in order to ascertain if possibly a train is approaching, which he had not seen or heard. * * * It would only be under very peculiar and special circumstances that reasonable care would require so unusual a precaution. Having looked and listened for a distance of several hundred feet, and having checked up his horses to a walk for that purpose, on approaching the track, we think it was a question for the jury to say whether, under all the circumstances, plaintiff ought to have taken any additional precaution before attempting to make the crossing.”
and in Newstrom v. St. P. & D. R. Co. 61 Minn. 78, 63 N. W. 253, that
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Holt, J.
At about 3:30 p. m. on January 3, 1923, while driving his Ford automobile in an easterly direction over defendant’s surface railroad crossing at Twenty-third avenue north, Minneapolis, Roy E. Turner was struck and killed by one of defendant’s south-bound passenger trains. His administratrix brought this action to recover damages under the death statute and has appealed from a denial of her motion for a new trial after a directed verdict for defendant.
Twenty-third avenue runs east and west and crosses 7 railroad tracks. The 3 westerly tracks belong to the defendant and the 4 easterly to the Northern Pacific Railroad Company. The first track, as one approaches from the west, is known as the “industry track” and the next is defendant’s south-bound main track, on which the train was running. It is 18.8 feet, measuring from center to center, between these two tracks. A picket fence about 7J feet high is located on the north side of Twenty-third avenue and extends to a point about 6¿ feet from the industry track. It incloses piles of
lumber and a sash and door factory. A lumber shed on the south side of Twenty-third avenue is near the industry track. Plaintiff introduced evidence from which the jury might find that at the time of the accident two box cars coupled together were on the industry track, that the south end of the southerly car extended into Twenty-third avenue from 6 to 8 feet, and that Turner’s view of the tracks was obstructed by the cars. The exact distance from the southbound main to the point where he could first get an unobstructed view of the tracks, is in dispute.
Twenty-third avenue ends just east of the tracks. It leads to the shops of the Omaha Railroad Company, where many men are employed who cross the tracks daily on their way to and from work. There are 60 or 70 train movements over the crossing every 2á hours. No flagman is stationed there and there are no gates.
Turner was an employe of the Omaha Road and, at the time of the accident, was on his way to work, accompanied by a fellow employe named Madzey. Turner was an experienced driver and was familiar with the crossing.
The day was clear, with a light wind from the north. Turner was driving slowly, the roadway was not slippery, and he could have stopped his car in a space of 7 or 8 feet. Madzey estimated the speed of the car as they approached the crossing at 8 or 9 miles an hour, and testified that before the tracks were reached it was reduced to about 6 miles an hour. The speed of the train was variously estimated at 10, 12 and 15 miles an hour. The side curtains were not on the car. Madzey testified that he looked both ways before the industry track was reached and that he first saw the engine when it was only 6 or 8 feet away; that Turner also looked both ways when he was on or near the first track, and that just before the collision Turner got up and tried to get out over the south side of the car.
Turner 'had formerly worked at the Omaha shops, but had been employed elsewhere for
i
or 5 years, returning to the shops as an employe 10 or 15 days before the accident. While employed there he crossed the tracks twice every working day.
There was evidence from which the jury might find that no warning signal was given of the approach of the train and that it was running at a rate of speed in excess of that permitted by an ordinance of the city of Minneapolis.
The foregoing statement of facts is as favorable to plaintiff as the evidence warrants. It makes no mention of a great deal of contradictory evidence which the defendant introduced. For the purposes of this discussion we assume that the evidence made the issue as to defendant’s negligence one for the determination of the jury. At the close of the evidence defendant’s motion for a directed verdict was granted because the court was of the opinion that Turner was chargeable with contributory negligence as a matter of law. In granting the motion the court said that, if the box cars were where plaintiff’s witnesses said they were, that “would put the deceased more on his guard to obey the stop, look and listen rule,” and that “it appears conclusively that he was in his machine and driving less than the rate of 6, 7 miles per hour straight through at that rate without reducing his speed.”
The only question we consider is whether the evidence shows conclusively that Turner was negligent.
Plaintiff’s counsel asserts that the trial court erroneously assumed that there is a -rule of law in Minnesota which makes it the duty of a traveler on a public highway, on coming to a railroad crossing, to stop, as well as look and listen, before he drives across.
A brief resume of what this court has said in other cases may help to clear up doubts on this subject:
In Shaber v. St. P. M. & M. Ry. Co. 28 Minn. 103, 9 N. W. 575, Gilfillan, C. J., said:
“With respect to the degree of care with which a person traveling on a highway should approach a railroad crossing, the court below was right in its instruction to the jury that it is not, in all cases, his duty to stop and listen to ascertain if a train may be coming; that Ms duty in that regard must depend on the circumstances of the case, of which the jury are to judge.”
In Kelly v. St. P. M. & M. Ry. Co. 29 Minn. 1, 11 N. W. 67, Dickinson, J., said:
“Since, to one approaching a crossing like that in question, the danger is obvious and great, the law holds it negligence for him to do so without the vigilant exercise of his senses of sight and hearing. * * * He was not required to use every precaution which might have contributed to his safety, but only such as common prudence dictated. We cannot say, as a matter of law, that it was negligence not to have entirely stopped his team, * * * or that common prudence required him to get down from his wagon, and go forward on foot to look along the line of the track. * * * Such precaution is believed to be extraordinary, and to exceed the strict measure" of common prudence.”
In Beanstrom v. N. P. R. Co. 46 Minn. 193, 48 N. W. 778, Mitchell, J., said:
“While the decisions of this court are uniform to the effect that, under ordinary circumstances, it is the duty of a person to look and listen for approaching trains before venturing to cross a railroad, yet we have never held that having done so, he is bound, as a matter of law, to stop his team in order to ascertain if possibly a train is approaching, which he had not seen or heard. * * * It would only be under very peculiar and special circumstances that reasonable care would require so unusual a precaution. Having looked and listened for a distance of several hundred feet, and having checked up his horses to a walk for that purpose, on approaching the track, we think it was a question for the jury to say whether, under all the circumstances, plaintiff ought to have taken any additional precaution before attempting to make the crossing.”
and in Newstrom v. St. P. & D. R. Co. 61 Minn. 78, 63 N. W. 253, that
“This court has endeavored to" hold travelers, when about to go upon a railroad crossing, to the absolute duty of exercising their senses to the extent of their reasonable opportunities in looking and listening for approaching trains. But every case must depend, to
a certain extent, upon its own peculiar facts; and we have never laid down a hard and fast rule that, under all circumstances, they must secure a view of the track before attempting to cross, as, for example, by getting out of a vehicle and walking ahead of it in order to look up and down the track.”
In Campbell v. C. G. W. Ry. Co. 108 Minn. 104, 121 N. W. 429, 28 L. R. A. (N. S.) 346, 133 Am. St. 417, Jaggard, J., said:
“Plaintiff was within the rule of law requiring one who goes near enough to a railroad track as to be in danger from any cause to exercise due care to avoid harm. That obligation must, however, vary with circumstances. It does not amount to a hard and fast requirement that such’persons must stop, look and listen, and continue to look at all times and under all circumstances.”
In Jenkins v. M. & St. L. R. Co. 124 Minn. 368, 145 N. W. 40, Philip E. Brown, J., said:
“A railway grade-crossing is a place of danger, and the track itself a warning. It must be approached circumspectly by persons purposing to cross, and they are charged with- notice of probability of approaching trains at all times. If the crossing may properly be termed ‘dangerous’ and they áre familiar with the surroundings, additional care is required. One about to drive a team across must look and listen for approaching trains, but need not necessarily halt when none are seen or heard. Yet he must alertly use his sight and hearing to discern their approach, and special and peculiar circumstances may require a stop.”
In Brown v. C. & N. W. Ry. Co. 129 Minn. 347, 152 N. W. 729, Brown, C. J., said:
“The fact that decedent did not stop his horse before attempting to cross the track is not conclusive against him.”
In Rintala v. D. W. & P. Ry. Co. 159 Minn. 499, 199 N. W. 562, Stone, J., said:
“Whether in a given case there was a duty to stop in order to look and listen, must depend upon the circumstances. Certainly, ob
structions to vision, such as the cars on the spur track in this case, do not excuse lack of care. Rather they require extra care. When there is added to serious obstruction of vision an equally serious impediment to hearing, imposed not by the railway company but by the autoist himself, the least that due care requires is that he take such steps as will enable him to use eyes and ears in the best fashion reasonably permitted by existing conditions. * * * If stopping is necessary, then he must stop.”
The statement in Akerson v. G. N. Ry. Co. 158 Minn. 369, 197 N. W. 842, that “a pedestrian or the driver of a vehicle is ordinarily guilty of contributory negligence if he violates the stop, look and listen rule” was not intended to modify or enlarge the scope of the rule announced in the earlier cases. Designating it as the stop, look and listen rule is merely a convenient way of referring to it.
The foregoing statement of the facts and of law applicable to persons about to cross railroad tracks, meets the approval of all the members of the court, but a majority of the court are of the opinion that plaintiff’s contributory negligence does not appear as a matter of law, hence the trial court erred in directing a verdict in favor of defendant.
It must be admitted that the crossing was dangerous, and that Turner was familiar witk it. He must also be held to have seen the position of the box cars on the side track, if they were where plaintiff’s witnesses' placed them, and to have realized that they made it impossible for him to see a train coming from the west until he passed them. As above stated the track on which the box cars were placed and the one on which the locomotive approached were close together, 18.8 feet from center to center. Taking into account the overhang of the cars and the locomotive, it is now apparent that when Turner, from the driver’s seat, could see the locomotive, his car was either in position to be hit or within a loot or two of so being. Even considering that this was in broad daylight and that there is no evidence of distracting circumstances, we, nevertheless, have a case where the distance between danger and safety is to be measured by perhaps less than a foot and by time
of less than a second. It seems to us that when such is the situation created by defendant’s negligence, as the jury could find, the question of contributory negligence of plaintiff’s decedent is one of fact and not of law. Not only did defendant violate the speed ordinance at this dangerous crossing, but its negligence created a new danger by the placing of the box cars so as to unnecessarily obstruct the view of those about to use the crossing. It does not appear that Turner was ever before confronted with box cars in this position when about to cross. The negligence of the railroad company did not excuse Turner from using due care, but such negligence is a circumstance favorable to him and to be considered in determining his contributory negligence. Beulow v. C. R. I. & P. Ry. Co. supra. Turner is dead and the presumption is that he exercised due care. It is true that plaintiff proved by Mr. Madzey, the one riding with him, the circumstances of the collision, but Madzey’s testimony is that Turner drove slowly and that he looked and listened. We do not think Madzey’s testimony shows Turner’s negligence conclusively within the rule of Carlson v. C. & N. W. Ry. Co. 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 Am. St. 655. This last case states the rule as to the point where a view can be had: “If that point be so far distant from the track as to enable the person injured or killed to know of the approaching train in due season to avoid the collision with it, he is guilty of contributory negligence as a matter of law and there is nothing for a jury to pass upon.” In the present case the point of view was through the negligence of defendant made a negligible distance from the track. There was present in all the recent cases where contributory negligence has been held to appear as a matter of law, this opportunity, spoken of in the Carlson case, to see the approaching train a sufficient distance away to avoid a collision. We refer to Anderson v. G. N. Ry. Co. 147 Minn. 118, 179 N. W. 687; Jensen v. M. St. P. & S. St. M. Ry. Co. 154 Minn. 414, 191 N. W. 908; Rintala v. D. W. & P. Ry. Co. 159 Minn. 499, 199 N. W. 562; Buelow v. C. R. I. & P. Ry. Co. supra, page 52; Richter v. C. R. I. & P. Ry. Co. supra, page 284. In the Anderson case the crossing
was in the open country with an unobstructed view of the track for 1,320 feet at any point within 58 feet of the crossing, and practically the same was the situation in the Jensen case. In both the obstructions to a view of the trains were trees, obstructions that did not shift place. In the Rintala case the plaintiff was in an inclosed cab where he did not hear the warnings of the train which the jury found were given, and he also drove quite a distance after looking without further attempt to use his sight in the direction from which the train was coming before driving onto the crossing.' In the Buelow case it was demonstrable from the comparative speed of his auto and the train that if he had looked with any degree of care when he said he did, 45 to 50 feet from the track, the train was in plain view. Moreover, the rumbling of the train when it came upon the bridge just before reaching the crossing must have notified him of its approach in time to stop the auto, had he been at all attentive to the dangers of a railroad crossing. In the Richter case, because of the embankment upon which the railroad track was laid, it was concluded! that it clearly appeared that, at any time after Richter was within 100 feet of the track, he could have seen the train that struck him had he looked in that direction. Defendant makes much of Roth v. C. M. & St. P. Ry. Co. 185 Wis. 580, 201 N. W. 810, but the fact that one justice vigorously dissents from the proposition that contributory negligence appeared as a matter of law, tends to weaken that decision, and it may also be said that the instant case is distinguishable therefrom in that the jury might find that defendant here created the obstruction by negligently encroaching on the crossing with the box cars. We are of the opinion that the evidence made the issue of Turner’s negligence one of fact and not one of láw The order is reversed.