A majority of the court is of the opinion that the question whether the plaintiff, or Mellen who was driving for him, used due care in crossing the railroad track, was properly submitted to the jury. The evidence as to how far the view of the track towards the south was obstructed by buildings and fences was conflicting. - The evidence tended to show that, before crossing, both the plaintiff and Mellen looked up the track towards the south; that the track was obscured by the smoke of a train which had just passed the crossing going south; that they listened for the whistle of any train going north, and could hear no whistle or other signal of its approach. It cannot, upon the evidence, be held, as matter of law, that they were guilty of negligence, but the question is one of fact for the jury.

Exceptions overruled.