THAYER, District Judge.
This was a suit for personal injuries which the defendant in error sustained at a railroad crossing in the suburbs of the town' of Purcell, in the Indiari Territory, on March 4, 1891. The -record discloses that on that day he started home from Purcell, in company with a neighbor of his by the name of Wear, who owned and was driving the team behind which they were riding. The road taken to get out of town lay for some distance along the west side of tlie railroad company's main and side tracks, leading north from its depot in Purcell, but at a point about 950 feet north from the depot the road turned east, at right angles, and crossed the tracks. When they reached this crossing on their way home, a switch engine approached from the south, which was pushing in advance of it three box cars and a coal car. Anticipating a collision from the proximity of the train and its rapid approach, the defendant in error leaped from the wagon when it was about on the crossing, and was run over and seriously injured. A number of exceptions that were taken on the trial have been argued in this court, but the view that we have taken of the case only renders it necessary to consider two questions. The first is whether the lower court should have declared, [861]*861as a matter of law, that the defendant in error was guilty of contribuí oiy negligence, and the second is whether the lower court properly charged the jury that it was the duty of the defendant railway company to exercise a high degree of care in propelling its engines and cars over the crossing in question. We are of the opinion that the question of contributory negligence was properly submitted to the jury. There was the usual conflict of evidence touching the conduct of the defendant in error and his companion as (hey approached the crossing. The testimony for the railroad company tended sirongly to show that as McClurg and Ms neighbor drove northwardly from the depot along the railway track, and as they turned east to cross the track, they took no precautions, such as prudent men ought to have taken, to discover approaching trains; that at several places between the depot and the crossing, if they had turned their heads slightly to look in the direction of (he depot, (hey must have seen the approaching switch engine; that other persons saw it approaching, and tided to warn them of the impending danger by loud outcries, because (hey seemed utterly unaware of the» presence of the train, and apparently indifferent to dangers of that character. Undoubtedly, there was considerable testimony before the jury which tended to show that Mc-Clurg and Wear, who was driving (he team, were both guilty of gross carelessness. On the other hand, the testimony of both of these parlies tended to show (and this fact seems to he conceded) that (he switch engine gave no signals, either with the bell or whistle, to warn people of its coming. They further testified that their view of the track on which the train was moving was obstructed by a long row of box cars standing on an intermediate side track, and that it was obstructed, when they turned east to cross the track, by a tool house which stood at the angle of the road, so that they were in fact unable to see down the track towards the approaching engine until they were nearly on the crossing, and the train was upon them. Both witnesses gave evidence tending to show that they made every reasonable effort, by looking and listening, to ascertain the presence of any moving train in time to avoid it. We think, therefore, (and we are all agreed on this proposition,) that it was fairly within the province of (he jury io settle the question of contributory negligence.
With respect to the second question above stated, it is to be observed that the lower court charged the jury in the following language: “A railway company is held to a high degree of care in propelling its engine's and cars over a public crossing in a town or city.” An exception was duly taken to this instruction, and it is criticised for the following reasons: First, because it does not prescribe the degree of care that a railway company is bound to exercise, whether the crossing be in a city or town, or in the country; second, that the direction was,inapplicable in the present ease, because the crossing in question was outside of the corporate limits of the town of Pure ell; and, lastly, because the court thereby imposed a higher degree of care on the railway company than it exacted of the defendant in error by its other instructions. We [862]*862will not stop to inquire whether the evidence showed that the crossing now in question was within or outside of the town of Purcell, for, if the direction would have been proper with respect to crossings within the town, then we have no doubt, under the testimony in the case, that it was equally proper with respect to the crossing where the accident happened. It was evidently a crossing in the suburbs of the town, which was much frequented by teams entering and leaving the place, and whether it was a hundred yards outside of the corporate limits, or an equal distance within the outboundaries of the town, cannot alter the degree of care that the railway company ought to have exercised, inasmuch as there was no local law or ordinance defining its duty in the premises. In the absence of any such law or ordinance imposing special duties upon the railway company within the corporate limits, it cannot be maintained, with any show of reason, that the obligation of the company with respect to the exercise of care was altered when it crossed an imaginary line separating the town from the country. The truth is that it was bound, in any event, to exercise a degree of watchfulness commensurate with the character of the crossing and the amount of travel over the same. It. was required to take such precautions as a prudent person would have taken under like condi I ions and circumstances, As is well known, some crossings are comparatively safe, while others are exceedingly dangerous; and the degree of care to be exercised by a railway company, or a traveler upon the highway, should be graduated to suit the exigences of each particular case. Improvement Co. v. Stead, 95 U. S. 161, 165. We are persuaded that the vice of the instruction now under consideration lies in the fact that, when read in connection with other parts of the charge, it imposed upon the railway company a higher degree of care and diligence than the plaintiff was required to exercise. The trial court instructed the jury that “a person approaching a railroad crossing is bound to look and listen, and to use ordinary care, to ascertain if there is a train approaching.” In at least five other paragraphs of the charge the same thought was repeated, — that the plaintiff, on his part, was only bound to exercise ordinary care in endeavoring to discover whether any train was nearing the crossing. On the other hand, in defining the duty of the railway company by the instruction .heretofore quoted, the trial coui't seems to have assumed that the crossing in question was within the corporate limits of the town of Purcell, and that in approaching that crossing it was the duty of the employes of the railway company to exercise a high degree of care. It is evident, we think, that the charge was erroneous, and well calculated to mislead the jury, in that it did not correctly define (lie relative degree of care that the respective parties were required to exercise.
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THAYER, District Judge.
This was a suit for personal injuries which the defendant in error sustained at a railroad crossing in the suburbs of the town' of Purcell, in the Indiari Territory, on March 4, 1891. The -record discloses that on that day he started home from Purcell, in company with a neighbor of his by the name of Wear, who owned and was driving the team behind which they were riding. The road taken to get out of town lay for some distance along the west side of tlie railroad company's main and side tracks, leading north from its depot in Purcell, but at a point about 950 feet north from the depot the road turned east, at right angles, and crossed the tracks. When they reached this crossing on their way home, a switch engine approached from the south, which was pushing in advance of it three box cars and a coal car. Anticipating a collision from the proximity of the train and its rapid approach, the defendant in error leaped from the wagon when it was about on the crossing, and was run over and seriously injured. A number of exceptions that were taken on the trial have been argued in this court, but the view that we have taken of the case only renders it necessary to consider two questions. The first is whether the lower court should have declared, [861]*861as a matter of law, that the defendant in error was guilty of contribuí oiy negligence, and the second is whether the lower court properly charged the jury that it was the duty of the defendant railway company to exercise a high degree of care in propelling its engines and cars over the crossing in question. We are of the opinion that the question of contributory negligence was properly submitted to the jury. There was the usual conflict of evidence touching the conduct of the defendant in error and his companion as (hey approached the crossing. The testimony for the railroad company tended sirongly to show that as McClurg and Ms neighbor drove northwardly from the depot along the railway track, and as they turned east to cross the track, they took no precautions, such as prudent men ought to have taken, to discover approaching trains; that at several places between the depot and the crossing, if they had turned their heads slightly to look in the direction of (he depot, (hey must have seen the approaching switch engine; that other persons saw it approaching, and tided to warn them of the impending danger by loud outcries, because (hey seemed utterly unaware of the» presence of the train, and apparently indifferent to dangers of that character. Undoubtedly, there was considerable testimony before the jury which tended to show that Mc-Clurg and Wear, who was driving (he team, were both guilty of gross carelessness. On the other hand, the testimony of both of these parlies tended to show (and this fact seems to he conceded) that (he switch engine gave no signals, either with the bell or whistle, to warn people of its coming. They further testified that their view of the track on which the train was moving was obstructed by a long row of box cars standing on an intermediate side track, and that it was obstructed, when they turned east to cross the track, by a tool house which stood at the angle of the road, so that they were in fact unable to see down the track towards the approaching engine until they were nearly on the crossing, and the train was upon them. Both witnesses gave evidence tending to show that they made every reasonable effort, by looking and listening, to ascertain the presence of any moving train in time to avoid it. We think, therefore, (and we are all agreed on this proposition,) that it was fairly within the province of (he jury io settle the question of contributory negligence.
With respect to the second question above stated, it is to be observed that the lower court charged the jury in the following language: “A railway company is held to a high degree of care in propelling its engine's and cars over a public crossing in a town or city.” An exception was duly taken to this instruction, and it is criticised for the following reasons: First, because it does not prescribe the degree of care that a railway company is bound to exercise, whether the crossing be in a city or town, or in the country; second, that the direction was,inapplicable in the present ease, because the crossing in question was outside of the corporate limits of the town of Pure ell; and, lastly, because the court thereby imposed a higher degree of care on the railway company than it exacted of the defendant in error by its other instructions. We [862]*862will not stop to inquire whether the evidence showed that the crossing now in question was within or outside of the town of Purcell, for, if the direction would have been proper with respect to crossings within the town, then we have no doubt, under the testimony in the case, that it was equally proper with respect to the crossing where the accident happened. It was evidently a crossing in the suburbs of the town, which was much frequented by teams entering and leaving the place, and whether it was a hundred yards outside of the corporate limits, or an equal distance within the outboundaries of the town, cannot alter the degree of care that the railway company ought to have exercised, inasmuch as there was no local law or ordinance defining its duty in the premises. In the absence of any such law or ordinance imposing special duties upon the railway company within the corporate limits, it cannot be maintained, with any show of reason, that the obligation of the company with respect to the exercise of care was altered when it crossed an imaginary line separating the town from the country. The truth is that it was bound, in any event, to exercise a degree of watchfulness commensurate with the character of the crossing and the amount of travel over the same. It. was required to take such precautions as a prudent person would have taken under like condi I ions and circumstances, As is well known, some crossings are comparatively safe, while others are exceedingly dangerous; and the degree of care to be exercised by a railway company, or a traveler upon the highway, should be graduated to suit the exigences of each particular case. Improvement Co. v. Stead, 95 U. S. 161, 165. We are persuaded that the vice of the instruction now under consideration lies in the fact that, when read in connection with other parts of the charge, it imposed upon the railway company a higher degree of care and diligence than the plaintiff was required to exercise. The trial court instructed the jury that “a person approaching a railroad crossing is bound to look and listen, and to use ordinary care, to ascertain if there is a train approaching.” In at least five other paragraphs of the charge the same thought was repeated, — that the plaintiff, on his part, was only bound to exercise ordinary care in endeavoring to discover whether any train was nearing the crossing. On the other hand, in defining the duty of the railway company by the instruction .heretofore quoted, the trial coui't seems to have assumed that the crossing in question was within the corporate limits of the town of Purcell, and that in approaching that crossing it was the duty of the employes of the railway company to exercise a high degree of care. It is evident, we think, that the charge was erroneous, and well calculated to mislead the jury, in that it did not correctly define (lie relative degree of care that the respective parties were required to exercise. We should have no doubt on this point if it were a question of first impression, for a person may reasonably be expected and required to take as great precautions to avoid getting hurt as others are required to take to avoid injuring him. But, be this as it may, it has been expressly ruled that “the obligations, rights, and duties of railroads, and [863]*863travelers upon highways crossing them, are mutual and reciprocal, and that no greater degree of care is required of the one than of the other.” Improvement Co. v. Stead, 95 U. S. 163, 164. See, also, Railroad Co. v. Goetz, 79 Ky. 442, and Willoughby v. Railroad Co., 37 Iowa, 432. And in the case of Railroad Co. v. Converse, 139 U. S. 469, 473, 475, 11 Sup. Ct. 569, which is cited by counsel, with apparent confidence, in support of the proposition that under some circumstances it is the duty of a railway company at a crossing to exercise a high degree of care, the rule was fully recognized that in every case a traveler upon the highway must exercise the same degree of caution which the law in the particular case exacts of the railway*company. The error thus noted was called to the attention of the lower court by an exception taken on the trial to instructions given in behalf of plaintiff, on the ground that they required of him a less degree of care than had been imposed on the railway company; and the error in question is apparent from a casual reading of the charge. It has been suggested, however, that it was not a prejudicial error, nor of sufficient importance to warrant a reversal. With respect to that suggestion, it is sufficient to say that the very reverse of this proposition seems to us to be ¡rue. In a case of this character, where the facts all lie within a narrow compass, and a jury is required to fix the responsibility for the accident by nicely balancing the actions and conduct of one party against those of the other, it is not improbable that the fact that one; of the parties was required to exercise a higher degree of care than the other may have had a controlling influence. We must presume from the fact that the court used the expression “a high degree of care” with respect to the railway company, and repeatedly used the phrase “ordinary care” in defining the duty of the plaintiff, that the jury attached some importance to the distinction thus drawn. Moreover, unless it clearly appears from the face of the record that tire error was harmless, we are not allowed to speculate as to its probable consequences.
The judgment of the lower court will therefore be reversed, and the cause remanded, with directions to grant a new trial.
SAAEOEA, Circuit Judge, concurs.