Wise v. D., L. & W. R. R. Co. 81 N. J. L. was the side from which it happened that the train was coming. In the other direction (as is particularly mentioned in the opinion) there were "neither fences, houses nor trees to intercept the vision;" therefore Righter's servant had ample opportunity to first completely safeguard himself and his fellow passengers from danger of any train coming from the left, and was then at liberty to devote his entire attention to looking out for dangers from the right; and on the right there were only a few trees to intercept his view, and, after passing these, he had a clear space of over thirty feet before reaching the track upon which the train was approaching. It is true that the first track to be crossed was much nearer, but of this track and its probable freedom from danger he was already advised. In Pennsylvania Railroad Co. v. Leary, 27 Vroom 705, the plaintiff had been driving for a half mile or more along a turnpike road that ran nearly parallel to and a short distance from the railroad. When within fifteen or twenty yards of where the road turned and crossed the railroad he merely turned his head, and "knowing that it was not train time," looked in the direction from which a train was in fact approaching. The opinion mentions that "there was nothing to distract his attention, and he had ample opportunity to view the road for over half a mile and see the approaching train, and avoid the danger." It is quite plain that this case has nothing in common with the present. In Winter v. New York and Long Branch Railroad Co., 37 Vroom 677, plaintiff contented himself with listening and looking only once toward a quarter from which a train might approach, and then when at a distance of about three hundred and sixty-eight feet from the crossing. He was struck by a train that he would readily have seen had he not confined his attention to looking in the other direction while going this entire distance of over three hundred feet. In VanRiper v. New York, Susquehanna and Western Railroad Co., 42 Vroom: 345 (a Supreme Court decision), the plaintiff's view of the track upon which the train that struck him was approaching was somewhat obscured by a row of trees 52 Vroom. Wise v. D., L. & W. R. R. Co. that stood about forty-five feet from the first rail of that track, and as the plaintiff drew near to the crossing his view was obstructed to some extent by telegraph poles; but upon reaching a point thirty-two feet from the first rail of the track he had an unobstructed view, which continued to be uninterrupted until the crossing was reached. So far as the report shows, there was no obstruction to the view of the plaintiff in the other direction. We are not called upon to either approve or disapprove of the decision (which was to set aside a verdict on the ground of plaintiff's contributory negligence), but will content ourselves with saying that the case is not at all parallel to the one we have before us. It seems to us that where a traveler, driving his horse upon the highway, approaches a single-track railroad crossing, as the present plaintiff did, with his view obstructed in both directions, with reason to believe from observations already made in one direction that no train is coming from that side, and with reason to expect a scheduled train from the other direction, he is not indisputably guilty of contributory negligence if at earliest opportunity after passing the obstructions he first makes an attentive observation in the direction of the apprehended danger, even though he is thereby prevented to some extent from looking as carefully as otherwise he might for trains from the other direction. We do not mean to intimate that plaintiff's knowledge or supposed knowledge of the train schedule, or the observation he had made of the track towards Augusta before he entered the cut, warranted his omitting any precaution that an ordinarily careful man would employ after emerging from the cut and coming to the immediate neighborhood of the crossing. But when the evidence shows (or so the jury might find) that he employed every moment after passing the obstructions in looking and listening for danger upon the rail, it cannot be said as matter of law that he was guilty of contributory negligence because he looked in one direction. rather than the other, when it may well be that he had not time to properly examine the track in both directions. The question whether he was negligent should have been submitted to the jury. Coles & Son Co. v. Lothridge. 81 N. J. L. The judgment under review will be reversed, and a venire de novo awarded. For affirmance-THE CHIEF JUSTICE, BERGEN, MINTURN, SULLIVAN, JJ. 4. For reversal-THE CHANCELLOR, GARRISON, SWAYZE, PARKER, VOORHEES, KALISCH, BOGERT, VREDENBURGH, CONGDON, JJ. 9. C. B. COLES & SON COMPANY v. LOUIS H. LOTHRIDGE. Argued November 29, 1910-Decided June 28, 1911. 1. A building contract which is altered in a material part after it is filed will not protect the building against the claim of a laborer or materialman for work done or materials furnished after such alteration, unless the contract, as altered, is filed in the office of the county clerk. 2. A reduction in the contract price is a material alteration of a building contract. So, too, is a change made in the times of payment which are specified in the contract. On error to the Camden Circuit Court. For the plaintiff in error, Bleakly & Stockwell. For the defendant in error, William Early. The opinion of the court was delivered by GUMMERE, CHIEF JUSTICE. This is an action brought upon a mechanics' lien against the United States Engineering Company, builders, and Lothridge, owner, for materials furnished in the erection of a house belonging to Lothridge. Before the commencement of the building a contract for its erection was 52 Vroom. Coles & Son Co. v. Lothridge. entered into between the company and Lothridge, and was regularly filed. The price to be paid to the engineering company, as fixed by the contract, was $4,600. The first payment was to be one-third of the total amount, and was due when the concrete walls were finished to the roof, and the door and window frames set in the wall. The second payment was for a like sum, and was due when the roof was completed, and the frame work for the inside partitions, and the joists and flooring were installed. The third payment was for the remainder of the contract price, and was to be made within twenty days after the house was finished in accordance with the plans and specifications. The contract was executed on the 1st day of June, 1908, and was filed on the 3d of that month in the Camden county clerk's office. On the 3d of July the engineering company wrote Lothridge as follows: "Dear Sir: In consideration of you making payments to us on account of our contract with you for concrete house at Merchantville, as outlined below, we hereby agree to allow you a discount of $200 on the entire contract. It is further understood that your making payments in this matter does not affect the validity of the original contract. Payments as follows: July 3, $300; July 17 or July 24, balance of first payment if walls are completed. Two weeks after first regular payment $300, and $300 each week thereafter until second payment is due. Balance on contract to be paid as specified in original contract. It is further understood that this company will complete each week work to a value greater than the amount of weekly payments in the judg ment of the architect and yourself. Payments made in advance must be covered by bills for labor, material and subcontracts on this house only; and the receipts for such bills must be shown before the next payment is made, or same will not have to be made. Yours truly, etc." There was evidence that this letter was delivered to Lothridge on the day of its date, at the company's office, and also that it was then agreed between the parties that the contract should be altered in accordance with the suggestions contained in the letter. Coles & Son Co. v. Lothridge. 81 N. J. L. It was also shown that the greater part of the materials, to recover the price of which this suit was brought by the plaintiff, were furnished after this alteration in the original contract. When the case came on to be tried the court, at the close of the testimony on both sides, directed a verdict in favor of the defendant, Lothridge, upon the ground that the building was not liable for the plaintiff's claim. The propriety of this direction is now challenged by the plaintiff in error. The object of the Mechanics' Lien law, as expressed in its title (Pamph. L. 1898, p. 538), is the securing to mechanics and others payment for their labor and materials in erecting any building. This object is sought to be accomplished (section 1) by making every building erected in the state, including the curtilage upon which it stands, liable for the payment of any debt contracted and owing to any person for labor performed, or materials furnished in its erection and construction, unless (section 2) it is erected by contract in writing, and the contract, or a duplicate thereof, together with the specifications accompanying it, is filed in the office of the county clerk. The effect of these provisions of the statute is to give to the laborer and materialman a lien upon the building, unless the contract under which the building is erected, or a duplicate of it, is filed. The filing of a contract which falsely states the consideration to be paid to the contractor for the erection of the building, will not operate to relieve the building and curtilage from the lien of the laborer or materialman (MurpheyHardy Lumber Co. v. Nicholas, 37 Vroom 414), nor will the filing of a contract which is afterwards superseded by a new and different agreement, protect against such liens (Buckley v. Hann, 39 Id. 624); and the reason is that, in neither of such cases, is the contract which is filed the real agreement of the parties governing the erection of the building. An important purpose to be accomplished by requiring the filing of the very contract under which the building is erected, is to enable intending laborers and materialmen to ascertain whether its provisions are sufficiently favorable to the contractor to justify the conclusion that the job will be a fairly |