Bowie, J.,
delivered the opinion of the Court,
The cause of action in this case is the death of the appellee’s son by collision with the cars of the appellant. The appellee offered evidence tending to prove that his son, a lad about twelve years of age, on the 19th of June, 1816, whilst sitting or lying down with a companion, on the edge of the embankment of the appellant’s railroad, “just at the end of the cross-ties,” watching the cows of his father, was struck by the engine of a train of the appellant, without warning and killed; that no notice was given of the approach of the train by blowing the whistle; that the railroad passes through the land of the appellee, who was engaged in the milk business, and the boy who was killed drove his wagon, and when at home watched the cows grazing in the meadow of his father adjoining the railroad, to keep them off of it, and was so engaged when the accident occurred.
It was further proved, that the railroad track at the place of the accident and for the distance of half a mile, was perfectly straight, open and unobstructed in view; that the grade was upward, the hour about three p. m.; the boy was intelligent, and capable of managing a horse and wagon.
On the part of the appellant, evidence was offered tending to prove that the train was an express, running at the rate of thirty-five miles per hour; that the engineer was on the look-out, that he blew the whistle at the signal post as they approached the Sulphur Spring Station (near which the accident occurred) and did not see the children until it was too late to stop the train; when he saw them, the one killed was on his hands and knees moving towards the track.
From this synopsis it is apparent the liability of the appellant depends upon the question whether the injury was caused by the want of due care upon the part of the appellant or by the negligence of the son of the appellee?
[654]*654The prayers submitted on the part of the appellee maintained substantially the following propositions:
1st. If the death of the boy resulted directly from the want of ordinary care and prudence on the part of the defendant’s agents, and not from the want of care and prudence on the part of the deceased, directly or indirectly, contributing to the misfortune, then the verdict must be for the plaintiff.
2ndly. If the deceased was guilty of the want of such care as ought under all the circumstances of the case to have been expected of him, still, if the agents of the defendant did not keep a reasonable look-out, and did not give the usual and reasonable signals of the train’s approach, and did not exercise ordinary care in the running of the train, by the use of wffiich the accident would not have occurred or might have been avoided, the verdict must be for the plaintiff.
The appellant’s prayers virtually affirmed,
1st. That there was such contributory negligence on the part of the deceased as deprived the appellee of all right of recovery.
2nd. That there -was no legally sufficient evidence to be submitted to the jury that the injury was caused by the negligence or want of ordinary care of the defendant’s agents.
The effect of these prayers, if granted, would have been to withdraw the case from the consideration of the jury, and to decide it by the Court, as upon a demurrer to evidence.
The refusal of the prayers of the defendant, and the granting of those of the plaintiff, is the ground of this appeal.
There are two classes of cases of. negligence, in one of which the question is submitted to the jury, and in the other, it is decided by the Court.
It is difficult in many cases to determine to which tribunal the question of negligence belongs, so close is the [655]*655resemblance in many of tbeir features and so minute the difference of circumstances; yet the distinction is well established, and the most recent decisions of this Court, sustained by the authority of other tribunals, English and American, seem to include the present, as a question of law.
What constitutes negligence is generally a question ■of fact, and as such is usually submitted to the jury; the Courts being reluctant where the facts are complicated •and inferences to be drawn and the evidence contradictory to withdraw such questions from their decision. Price’s Case, 29 Md., 420; Fryer’s Case, 30 Md., 47; Trainor’s Case, 33 Md., 542; Mulligan’s Case, 45 Md., 486.
But it being the province of the Court to determiue the legal sufficiency of evidence, it sometimes becomes their duty (where the main facts are uncontroverted) to decide whether the facts offered in evidence-are such as would constitute such negligence in law as would debar the plaintiff’s right to recover. Wilkinson’s Case, 30 Md., 224; Andrews’ Case, 39 Md., 329. In Fitzpatrick’s Case, 35 Md., 32, it was said by this Court that many cases could be suggested where the question of negligence-(of a railroad ■company sued for damages for injuries sustained by its alleged negligence) could properly be one of law for the Court, though they are not of frequent occurrence; such cases always present some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ.
Again, in 38 Md., 588, it was held, that legal insufficiency of evidence to prove negligence “is a question of law of which the Court is the exclusive judge; and cases do ■occur where the proof of negligence is so slight and inconclusive in its nature as to demand from the Court an instruction as to its legal insufficiency to prove negligence in order to prevent the jury from indulging in wild speculation or irrational conjecture.” Lewis’ Case, 38 Md., 588; Andrews’ Case, 39 Md., 329.
[656]*656The Supreme Court of Massachusetts in the case of Butterfield vs. Western Railroad Corporation, 10 Allen, 532, commenting on the facts of that case, and the province or duty of the Court in such cases remarks:
“ By due care is meant reasonable care adapted to the circumstances of the case. The crossing of a place known to be dangerous, as a railroad track frequently is, by reason of the passing trains, reasonably requires a high degree of watchfulness and attention. Before attempting to cross, a man should make a reasonable use of his sense of sight as well as of hearing, in order to ascertain whether he will expose himself to a collision. If he fails to use his senses without reasonable excuse, he fails to use reasonable care,” and in support of this position, refers to Shaw vs. Boston & Worcester R. R., 8 Gray, 73; Warren vs. Fitchburg R. R., 8 Allen, 227; Commonwealth vs. Fitchburg R. R., Ibid., 189; Stevens vs. Oswego R. R., 18 N. Y., 422.
Referring to the submission of the evidence to the jury, the Court declares, that “in Toomey vs. The London, etc. Railroad, 3 C. B., (N. S.)
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Bowie, J.,
delivered the opinion of the Court,
The cause of action in this case is the death of the appellee’s son by collision with the cars of the appellant. The appellee offered evidence tending to prove that his son, a lad about twelve years of age, on the 19th of June, 1816, whilst sitting or lying down with a companion, on the edge of the embankment of the appellant’s railroad, “just at the end of the cross-ties,” watching the cows of his father, was struck by the engine of a train of the appellant, without warning and killed; that no notice was given of the approach of the train by blowing the whistle; that the railroad passes through the land of the appellee, who was engaged in the milk business, and the boy who was killed drove his wagon, and when at home watched the cows grazing in the meadow of his father adjoining the railroad, to keep them off of it, and was so engaged when the accident occurred.
It was further proved, that the railroad track at the place of the accident and for the distance of half a mile, was perfectly straight, open and unobstructed in view; that the grade was upward, the hour about three p. m.; the boy was intelligent, and capable of managing a horse and wagon.
On the part of the appellant, evidence was offered tending to prove that the train was an express, running at the rate of thirty-five miles per hour; that the engineer was on the look-out, that he blew the whistle at the signal post as they approached the Sulphur Spring Station (near which the accident occurred) and did not see the children until it was too late to stop the train; when he saw them, the one killed was on his hands and knees moving towards the track.
From this synopsis it is apparent the liability of the appellant depends upon the question whether the injury was caused by the want of due care upon the part of the appellant or by the negligence of the son of the appellee?
[654]*654The prayers submitted on the part of the appellee maintained substantially the following propositions:
1st. If the death of the boy resulted directly from the want of ordinary care and prudence on the part of the defendant’s agents, and not from the want of care and prudence on the part of the deceased, directly or indirectly, contributing to the misfortune, then the verdict must be for the plaintiff.
2ndly. If the deceased was guilty of the want of such care as ought under all the circumstances of the case to have been expected of him, still, if the agents of the defendant did not keep a reasonable look-out, and did not give the usual and reasonable signals of the train’s approach, and did not exercise ordinary care in the running of the train, by the use of wffiich the accident would not have occurred or might have been avoided, the verdict must be for the plaintiff.
The appellant’s prayers virtually affirmed,
1st. That there was such contributory negligence on the part of the deceased as deprived the appellee of all right of recovery.
2nd. That there -was no legally sufficient evidence to be submitted to the jury that the injury was caused by the negligence or want of ordinary care of the defendant’s agents.
The effect of these prayers, if granted, would have been to withdraw the case from the consideration of the jury, and to decide it by the Court, as upon a demurrer to evidence.
The refusal of the prayers of the defendant, and the granting of those of the plaintiff, is the ground of this appeal.
There are two classes of cases of. negligence, in one of which the question is submitted to the jury, and in the other, it is decided by the Court.
It is difficult in many cases to determine to which tribunal the question of negligence belongs, so close is the [655]*655resemblance in many of tbeir features and so minute the difference of circumstances; yet the distinction is well established, and the most recent decisions of this Court, sustained by the authority of other tribunals, English and American, seem to include the present, as a question of law.
What constitutes negligence is generally a question ■of fact, and as such is usually submitted to the jury; the Courts being reluctant where the facts are complicated •and inferences to be drawn and the evidence contradictory to withdraw such questions from their decision. Price’s Case, 29 Md., 420; Fryer’s Case, 30 Md., 47; Trainor’s Case, 33 Md., 542; Mulligan’s Case, 45 Md., 486.
But it being the province of the Court to determiue the legal sufficiency of evidence, it sometimes becomes their duty (where the main facts are uncontroverted) to decide whether the facts offered in evidence-are such as would constitute such negligence in law as would debar the plaintiff’s right to recover. Wilkinson’s Case, 30 Md., 224; Andrews’ Case, 39 Md., 329. In Fitzpatrick’s Case, 35 Md., 32, it was said by this Court that many cases could be suggested where the question of negligence-(of a railroad ■company sued for damages for injuries sustained by its alleged negligence) could properly be one of law for the Court, though they are not of frequent occurrence; such cases always present some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ.
Again, in 38 Md., 588, it was held, that legal insufficiency of evidence to prove negligence “is a question of law of which the Court is the exclusive judge; and cases do ■occur where the proof of negligence is so slight and inconclusive in its nature as to demand from the Court an instruction as to its legal insufficiency to prove negligence in order to prevent the jury from indulging in wild speculation or irrational conjecture.” Lewis’ Case, 38 Md., 588; Andrews’ Case, 39 Md., 329.
[656]*656The Supreme Court of Massachusetts in the case of Butterfield vs. Western Railroad Corporation, 10 Allen, 532, commenting on the facts of that case, and the province or duty of the Court in such cases remarks:
“ By due care is meant reasonable care adapted to the circumstances of the case. The crossing of a place known to be dangerous, as a railroad track frequently is, by reason of the passing trains, reasonably requires a high degree of watchfulness and attention. Before attempting to cross, a man should make a reasonable use of his sense of sight as well as of hearing, in order to ascertain whether he will expose himself to a collision. If he fails to use his senses without reasonable excuse, he fails to use reasonable care,” and in support of this position, refers to Shaw vs. Boston & Worcester R. R., 8 Gray, 73; Warren vs. Fitchburg R. R., 8 Allen, 227; Commonwealth vs. Fitchburg R. R., Ibid., 189; Stevens vs. Oswego R. R., 18 N. Y., 422.
Referring to the submission of the evidence to the jury, the Court declares, that “in Toomey vs. The London, etc. Railroad, 3 C. B., (N. S.) 146, it was said, that a mere scintilla of evidence, is not sufficient to authorize a Judge to submit the question of the defendant’s negligence to a jury; but there must be evidence upon which a jury may reasonably and properly infer that there was negligence on his part.” In the latest case upon this subject, this Court held “ it was incumbent on the plaintiff to prove that the injury was caused entirely by the negligence or default of the defendant’s agents, and it must not appear from the evidence that want of ordinary care and prudence on the part of the deceased directly contributed to the cause of death,” citing Foy’s Case, 47 Md., 76; Lewis’ Case, 38 Md., 599; Northern Central R. Co. vs. State, use of Burns, ante 113. The uncontroverted evidence in this case proves that the deceased was improperly on the track of the defendant, that he voluntarily exposed himself to the peril, with full [657]*657knowledge of the risk, and might, if he had used his ears and eyes, have heard and seen the approaching train, long before it struck him; thus directly contributing to his •own death.
The only material conflict of evidence in the present instance is as to the giving of the signals upon the approach of the cars, as to which the language of the Supreme Court, in the case of Houston, 95 U. S., 701, is very pertinent and conclusive.
Mr. Justice Field, delivering the opinion of the Court, says: “ If the positions most advantageous for the plaintiff be assumed as correct, that the train was moving at an unusual rate of speed, its bell not rung, and its whistle not sounded, it is still difficult to see on what ground the ■accident can be attributed solely to the c negligence, unskilfulness, or criminal intent’ of the defendant’s engineer. Had the train been moving at an ordinary rate of speed, it would have been impossible for him to stop the engine when within four feet of the deceased. And she was at the time on the private right of way of the company, where she had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle ■or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety.”
“ Negligence of the company’s employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into a place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming.”
The language above quoted is adopted and incorporated by this Court in its opinion in Burns’ Case, above cited. Much as we lament the melancholy event which deprived the father of an intelligent, industrious, and estimable son, [658]*658we are compelled by the current of authorities to decide-that the deceased, having directly contributed to his own death, the appellee has no cause of action, and the Court below, having rejected the appellant’s prayer to that effect,, the judgment below must be reversed.
(Decided 29th October, 1880.)
Judgment reversed.