Cardwell, J.,
delivered the opinion of the court.
This is an action of trespass on the case, brought in the Circuit Court of Shenandoah county, by Few’s Ex’or against the B. & O. B. B. Co., to recover damages for the death of the plaintiff’s testator, caused, as alleged, by the negligence of the defendant company.
New was killed by one of the defendant company’s freight trains on the morning’of October 19, 1892, while attempting to drive his cow across the defendant company’s road at North street crossing in the town of Woodstock.
At the first trial of the case the declaration contained no allegation that the crossing was defective, and that by reason of its defective condition New lost his life, but the verdict of .the jury was for the plaintiff, and damages assessed at $1,500, which verdict the court below set aside on the motion of the defendant company, as contrary to the law and the evidence; whereupon the plaintiff twice amended his declaration, alleg[87]*87ing that the proximate and immediate cause of Few’s death was the defective condition of North street crossing, w hich it was the duty of the defendant company to keep in good and safe condition; and a second trial of the case resulted also in a verdict for the plaintiff, assessing damages at $2,250. This verdict the court refused to set aside on the motion of the defendant company, and a writ of error was awarded by this court. At the trial the defendant com pany took four bills of exceptions to the rulings of the court.
We will consider first the exception to the introduction in evidence, by the plaintiff, of an ordinance of the town of Woodstock in relation to the speed of trains running through the town, and a copy of a notice of the mayor of September 29, 1892, to the supervisor of the Yalley Division of the defendant company’s road, calling his attention to the ordinance, epecially in view of the then approaching fair to be held at Woodstock October 4th, 5th, 6th, and 7th, 1892. The contention is that the ordinance is invalid; that the council of Woodstock had no authority in law to make such an ordinance. We deem it unnecessary, however, to pass upon the validity of the ordinance, as the evidence is wholly inadequate to show that its violation was the proximate cause of the accident resulting in the death of Few. The introduction of this evidence could not, therefore, have been at all damaging to the defendant company, especially in view of instruction No. 5, as given by the court for the plaintiff.
At the conclusion of the testimony in the case, the court, at the instance of the plaintiff, gave to the jury eleven instructions, to all of which the defendant company objected, and, at the instance of the defendant company, gave five instructions, to which the plaintiff made no objection, so far as the record discloses.
The instructions asked for by the plaintiff and given, when read in connection with the instructions given for the defend[88]*88ant company, submitted, we think, the issues fairly and rightly to the jury, with the exception of plaintiff’s instruction Fío. 3, which is as follows:
“The court instructs the jury that if they believe from the evidence that W. U. Few, through the negligence of the defendant, was in terror of an emergency for which he was not responsible and for which the defendant was, he acted wildly and negligently and lost his life in consequence, said negligent conduct, under such circumstances, is not contributory negligence. In such case the negligent act of the defendant is the proximate cause of the injury.”
There may be a state of facts under which this instruction, as given, would be good law, but upon the evidence set out in this record, its tendency was to mislead the jury. There is not the slightest evidence to sustain a conclusion that the plaintiff’s testator, through the negligence of the defendant company, was placed “in terror of an emergency,” and by reason thereof lost his life, and this instruction should not therefore have been given.
After the instructions asked for by both the plaintiff and the defendant company had been given, and the jury had viewed the grounds and surroundings where the accident occurred, the defendant company presented the following instruction:
“The court further instructs that it was the duty of W. H. Few, in approaching the crossing on the 19th of October, 1892, before going upon the track or attempting to cross it, to use his eyes and ears for the purpose of avoiding danger, and if the jury believe from the evidence that he neglected to do so, and attempted to cross the track in front of a rapidly moving train, in full view and hearing, and was killed in so doing, and that his own act, his own negligence, was the proximate and immediate'cause of his death, or contributed to it, they should find for the defendant.” But, the court declined to give the instruction as offered, and added thereto [89]*89the following qualification, viz: “provided the jury further believe from the evidence that after said New was seen by the defendant’s servants in charge of the train to be in a position of danger, or might by due diligence have been seen, it was impossible to stop the train, or otherwise prevent the train from striking and killing said Few.” To the action of the court in so modifying the instruction the defendant company excepted, and took its bill of exceptions thereto.
This instruction, as modified by the court and given to the jury, is in totidem verbis as instruction Ho. 8 already asked for by the defendant company, and given by the court; and were it not improper for this court to seemingly sanction an instruction that is erroneous, the defendant company would not be heard to object to an instruction that it had asked for and obtained. The error in the instruction as given is in the use of the word “impossible” in the addendum made thereto by the court. Had the word “impossible” been omitted, and the addendum made to read: provided the jury further believe from the evidence that after said New was seen by the defendant’s servants in charge of said train to be in a position of danger, or might by due diligence have been seen, they exercised proper care and due diligence to stop the train and prevent it from striking said New — the instruction would have been without objection.
What is proper care and due diligence is to be determined by reference to the surrounding circumstances, and the instruction as given was calculated to mislead the jury, as the proof does not show, nor even tend to show, that the servants of the defendant company in charge of the train discovered, or could have by due diligence discovered, Few’s peril, and failed to exercise proper care and due diligence to stop the train and prevent its striking him. Seaboard, &c., R. Co. v. Joyner's adm'r, 92 Va. 354.
This brings us to the consideration of the only remaining bill of exceptions taken to the ruling of the court below, and [90]*90this is to the refusal of the court to set aside the verdict of the jury as contrary to the law and the evidence, and grant the defendant company a new trial. An extended examination of the evidence would serve no good purpose, as we are of the opinion that the case is controlled absolutely by the decision of this court in Johnson's adm'r v. Chesapeake, &c., R. Co., 91 Va.
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Cardwell, J.,
delivered the opinion of the court.
This is an action of trespass on the case, brought in the Circuit Court of Shenandoah county, by Few’s Ex’or against the B. & O. B. B. Co., to recover damages for the death of the plaintiff’s testator, caused, as alleged, by the negligence of the defendant company.
New was killed by one of the defendant company’s freight trains on the morning’of October 19, 1892, while attempting to drive his cow across the defendant company’s road at North street crossing in the town of Woodstock.
At the first trial of the case the declaration contained no allegation that the crossing was defective, and that by reason of its defective condition New lost his life, but the verdict of .the jury was for the plaintiff, and damages assessed at $1,500, which verdict the court below set aside on the motion of the defendant company, as contrary to the law and the evidence; whereupon the plaintiff twice amended his declaration, alleg[87]*87ing that the proximate and immediate cause of Few’s death was the defective condition of North street crossing, w hich it was the duty of the defendant company to keep in good and safe condition; and a second trial of the case resulted also in a verdict for the plaintiff, assessing damages at $2,250. This verdict the court refused to set aside on the motion of the defendant company, and a writ of error was awarded by this court. At the trial the defendant com pany took four bills of exceptions to the rulings of the court.
We will consider first the exception to the introduction in evidence, by the plaintiff, of an ordinance of the town of Woodstock in relation to the speed of trains running through the town, and a copy of a notice of the mayor of September 29, 1892, to the supervisor of the Yalley Division of the defendant company’s road, calling his attention to the ordinance, epecially in view of the then approaching fair to be held at Woodstock October 4th, 5th, 6th, and 7th, 1892. The contention is that the ordinance is invalid; that the council of Woodstock had no authority in law to make such an ordinance. We deem it unnecessary, however, to pass upon the validity of the ordinance, as the evidence is wholly inadequate to show that its violation was the proximate cause of the accident resulting in the death of Few. The introduction of this evidence could not, therefore, have been at all damaging to the defendant company, especially in view of instruction No. 5, as given by the court for the plaintiff.
At the conclusion of the testimony in the case, the court, at the instance of the plaintiff, gave to the jury eleven instructions, to all of which the defendant company objected, and, at the instance of the defendant company, gave five instructions, to which the plaintiff made no objection, so far as the record discloses.
The instructions asked for by the plaintiff and given, when read in connection with the instructions given for the defend[88]*88ant company, submitted, we think, the issues fairly and rightly to the jury, with the exception of plaintiff’s instruction Fío. 3, which is as follows:
“The court instructs the jury that if they believe from the evidence that W. U. Few, through the negligence of the defendant, was in terror of an emergency for which he was not responsible and for which the defendant was, he acted wildly and negligently and lost his life in consequence, said negligent conduct, under such circumstances, is not contributory negligence. In such case the negligent act of the defendant is the proximate cause of the injury.”
There may be a state of facts under which this instruction, as given, would be good law, but upon the evidence set out in this record, its tendency was to mislead the jury. There is not the slightest evidence to sustain a conclusion that the plaintiff’s testator, through the negligence of the defendant company, was placed “in terror of an emergency,” and by reason thereof lost his life, and this instruction should not therefore have been given.
After the instructions asked for by both the plaintiff and the defendant company had been given, and the jury had viewed the grounds and surroundings where the accident occurred, the defendant company presented the following instruction:
“The court further instructs that it was the duty of W. H. Few, in approaching the crossing on the 19th of October, 1892, before going upon the track or attempting to cross it, to use his eyes and ears for the purpose of avoiding danger, and if the jury believe from the evidence that he neglected to do so, and attempted to cross the track in front of a rapidly moving train, in full view and hearing, and was killed in so doing, and that his own act, his own negligence, was the proximate and immediate'cause of his death, or contributed to it, they should find for the defendant.” But, the court declined to give the instruction as offered, and added thereto [89]*89the following qualification, viz: “provided the jury further believe from the evidence that after said New was seen by the defendant’s servants in charge of the train to be in a position of danger, or might by due diligence have been seen, it was impossible to stop the train, or otherwise prevent the train from striking and killing said Few.” To the action of the court in so modifying the instruction the defendant company excepted, and took its bill of exceptions thereto.
This instruction, as modified by the court and given to the jury, is in totidem verbis as instruction Ho. 8 already asked for by the defendant company, and given by the court; and were it not improper for this court to seemingly sanction an instruction that is erroneous, the defendant company would not be heard to object to an instruction that it had asked for and obtained. The error in the instruction as given is in the use of the word “impossible” in the addendum made thereto by the court. Had the word “impossible” been omitted, and the addendum made to read: provided the jury further believe from the evidence that after said New was seen by the defendant’s servants in charge of said train to be in a position of danger, or might by due diligence have been seen, they exercised proper care and due diligence to stop the train and prevent it from striking said New — the instruction would have been without objection.
What is proper care and due diligence is to be determined by reference to the surrounding circumstances, and the instruction as given was calculated to mislead the jury, as the proof does not show, nor even tend to show, that the servants of the defendant company in charge of the train discovered, or could have by due diligence discovered, Few’s peril, and failed to exercise proper care and due diligence to stop the train and prevent its striking him. Seaboard, &c., R. Co. v. Joyner's adm'r, 92 Va. 354.
This brings us to the consideration of the only remaining bill of exceptions taken to the ruling of the court below, and [90]*90this is to the refusal of the court to set aside the verdict of the jury as contrary to the law and the evidence, and grant the defendant company a new trial. An extended examination of the evidence would serve no good purpose, as we are of the opinion that the case is controlled absolutely by the decision of this court in Johnson's adm'r v. Chesapeake, &c., R. Co., 91 Va. 171, unless differentiated by the proof as to the condition of North street crossing, and unless it be shown that the proximate and immediate cause of the accident, resulting in the death of Few, was the defective condition of the crossing.
The only witnesses introduced by the plaintiff who testify at all as to the condition of the crossing are John Glower, a youth about sixteen years of age, Isaac Lewis, and A. S. Parker. All that Glower says as to this is: “there was a hole at the south end of the crossing, midway between the rails at the end of the planks, and that was the only place I noticed. The hole was there when he was struck and big enough to get his (Few’s) boot in.” The witness does not say that New caught his foot in the hole described, or that there were any indications that he did. He only says: “Mr. New started towards me across the track, and was about the center of the track when he was hit, and it looked to witness either as if he caught his foot or stumbled.” Parker says: “The wood work in the crossing was a little rotted, and there was a hole in it which had a board nailed over it; that crossing is kept in repair by railroad people, and new crossing made since last trial of this cause was made by the railroad people.” Lewis says: “When New was struck he was about the center of tbe track in a stooping position, and that, when he went on the track, he made no halt and was going pretty fast; witness thought New was under excitement and lost his presence of mind when he went on.” This witness also says the crossing was good. There is no such conflict in the evidence as to the condition of the crossing, which, under the [91]*91rule applicable to its consideration, would exclude the defendant company’s evidence on this point, and its evidence is clear and conclusive that the crossing was in good condition, and that the accident could not have been caused by its defective condition. The witness Eamey says that he examined the crossing on the day of the accident, and before the body of New was removed, and found it in perfect condition. Witness Morrison states that he was the first person to get to Few, and, because of his bare foot, thought he might have gotten his foot caught, and he walked to the crossing, examined it carefully, found it in good condition and found no place where his (witness’) foot could get caught; that he tried to see if he could get his foot in any place and could not “crossways or lengthways of the crossing.” If, therefore, the hole in the end of the plank described by Glower, was in fact there, and the witness Morrison be in error in saying that there was no place “crossways or lengthways in the crossing” into which he could get his foot, it is clear that if New caught his foot in this hole he was not in the crossing as used by the public in passing over the track, but in his reckless effort to cross the track in front of the rapidly approaching engine he had borne to the south end of the crossing, and gotten off the crossing proper, and it was not then in the power of those in charge of the train to avoid striking him, even if they had discovered his peril.
. It was argued with earnestness by counsel for the defendant in error (the plaintiff in the court below) that the facts shown in the record that one of Few’s shoes was off and lying on or near the track after he was killed, and that the big toe of his foot had been torn from its socket, was sufficient to sustain a finding by the jury that he was killed by reason of having gotten his foot hung in the crossing, but we do not so understand the testimony. It is true that one foot was shown to be bare, but it does not appear that the big toe was torn out. The only proof on this point is the testimony [92]*92of the witness Fravel, who was the undertaker, and prepared Few’s body for burial. In describing the condition of the body, witness says: “The big toe was cut off and hanging by a thread, and the next toe bent back, shoe off one foot.”
The day on which the accident occurred was clear, the view of the track, certainly for fifteen feet from the crossing, was unobstructed at least a thousand feet, the whistling of the engine, ringiug of the bell, and the noise of the approaching train had attracted the attention of á number of persons, all of whom were more distant from the track than Few, who, though a man advanced in years (sixty-eight years of age), was in the possession of all his faculties. His sight and hearing were unimpaired, and that he, in fact, saw the approaching train does not admit of a doubt, for plaintiff’s own witnesses say that it was in full view. The fireman, who was the only person on the train who did or could have seen him, saw him v hen within fifteen feet of the track, had every reason to suppose that he (Few) would stop when he reached the track, and not attempt to cross it in front of the approaching train. Though New halted, he did not stop, and failing to heed the warnings that had been given him, stepped on the track and was struck by the engine; all of which occurred in a moment of time. The engineer was at his post on the right of the engine, while New approached the track from the left side and went upon it in front of the train, that the engineer was unable to see him until he was struck and thrown from the track.
It may, therefore, be said that, upon the face of the evidence, under the strict rule applicable to its consideration, it conclusively appears that the deceased, by his own negligence and recklessness, directly and proximately contributed to the act which caused his death.
For these reasons we are of opinion that it was error in the court below to overrule the motion of the defendant company [93]*93to set aside the verdict of the jury as contrary to the law and the evidence, and its judgment must be reversed and annulled, and the cause remanded for a new trial, to be had in accordance v¡ ith the views expressed in this opinion.
Reversed.