The opinion of the court was delivered by'

While the face of the record and the requests for instructions-made by the railway company show that it denies the negligence imputed to it, yet. in the argument this point is not seriously contested.. It may therefore be assumed that the railway company was guilty of negligence by failing to sound a whistle, or bell while passing through the town and when approaching the crossing where the accident in question, occurred. The real controversy arises, therefore, upon, the question whether or not Arthur Assman was guilty of contributory negligence which bars a recovery.

The time when the train arrived at the crossing was. about 9 o'clock on a moonlight night in August. There was a mill near the crossing in operation, which would to some extent» deaden the sound of an approaching train. Assman was driving a team of young horses, and hauling a load of coal. He was seated in a spring-seat, which was on the top of double sideboards. He expected a train. He was familiar with the crossing- and had passed over it several times that day. His team traveled in a rapid walk. When at a curve in the road 107 feet from the crossing he stopped, looked and listened for a train; observing nothing, he proceeded,, looking and listening as he went. When fifty feet from the crossing he again stopped and looked and listened' for a train, and not hearing or seeing any again moved ^forward toward the crossing. At a point nineteen feet from the crossing there is a culvert. When within six feet of the culvert Assman looked first to the west for a train, then to the east, and when his horses reached the culvert they began to jump, and were at the crossing *429when Assman first saw the train, which rushed by and inflicted the injuries of which complaint has been made. The train was running at the rate of from fifty to sixty miles an hour. It was a freight-train, about 500 feet long. Trees, section-house and box cars on the side-track obstructed the view west of the crossing. The box cars were standing on the east end of the ■ side-track so they would just clear the main line. Two witnesses, Ed Assman and George Scheiderman, testified that they located themselves in a buggy, with the horses on the culvert, nineteen feet north of the crossing where the plaintiff’s horses began to jump, when box cars were on the side-track as at the time the accident occurred, and saw, while in that situation, a train come in from the west, and it could not be seen by them until it had passed the east end of the sidetrack, and the main line could not be seen west of the switch. This shows that when Arthur Assman crossed the culvert, and just before his horses began to jump, no train was visible from his location.

Against these facts stand the findings of the jury founded upon measurements made after the accident. It will be seen that the points in Assman’s line of travel from which the measurements were made cover only nine feet. Three points were selected: one eighteen feet, another twenty-one feet, and the last twenty-seven feet from the crossing. No estimates are given from points where it appears that he looked or anywhere else from which it is claimed that he might have seen the approaching train. These findings are not inconsistent with those which show that a train could not be seen from the several points where Assman is found to have looked and listened. It is urged, however, that had Assman looked from either of the points fixed by the measurements he must have seen the train, and could have avoided the injury, and therefore must be held to have been guilty of contributory negligence which will bar a recovery. These three points are the *430only places at which it appears that a train could have been seen. They are found within a space of nine feet. It appears that Assman looked to the west just before his horses were on the culvert, which is nineteen feet from the crossing. He must have been very close to one or more of these points when he looked. The burden of proof is upon the railway company to establish the alleged contributory negligence.

It does not appear that Assman knew on the night of the injury where the points were from which an approaching train could be seen, as subsequently discovered by the engineer who made the measurements. He was generally familiar with the crossing, it is true, but the box cars on the side-track were an obstruction to the view, and it does not appear that they had been in that exact location for such a time that he would be familiar with their effect upon observations from near the crossing, as if they had been a permanent object, like a house or hedge fence. It should not be assumed, therefore, that his failure to find these points of view and his omission to look therefrom were due to indifference or negligence. It has been shown that he expected a train, and stopped, looked and listened several times. His conduct throughout was that of a cautious and careful traveler in the exercise of at least ordinary vigilance to avoid injury. The fact that he did not look after his horses began to jump was due to the necessity of managing his team. He was then within nineteen feet of the crossing, and it was important to be in control of the horses if possible. Nor should he be held to the exercise of such care in looking and listening or in the management of his team, without warning, as would be exercised by a person who was. expecting a train running at such a high rate of speed. He had a right to assume that an approaching train would comply with the law by sounding the required signals at the crossing, and would run at an ordinary speed.

*431The jury, upon consideration of all the circumstances, have found that Assman was in the exercise of ordinary care. This finding has been approved by the trial court. We think the finding should not be disturbed. The judgment of the district court is affirmed.

(dissenting) : I dissent for the reason that the findings show such contributory negligence on the part of Arthur Assman as, in my judgment, prevents recovery by either plaintiff. Besides being familiar with the crossing for fifteen years, he had driven over it several times the day of the accident, and knew all the surroundings. He stopped and looked on the curve fifty feet from the crossing, at a point where obstructions to some extent prevented him from seeing a train approaching from the southwest. He looked again in that direction at a distance of twenty-five feet. After that he kept his gaze to the southeast, where his view of the track for half a mile or more was, and had been, unobstructed, and where there was no danger of a surprise. He drove upon the crossing without looking again in the direction in which his view had been up to that time obstructed and from which the train came. The finding of the jury that he was not guilty of contributory negligence can not, in my judgment, stand against the findings showing the actual conditions.