LURTON, Circuit Judge,
after stating the facts as above, delivered the opinion of the court.
The only question arising upon the errors assigned is as to the contributory negligence of the defendant in error. Were the circumstances so clear, and the inference of law so plain, that the court should have instructed for the plaintiff in error? That the defendant in error did not stop for the purpose of looking and listening was an admitted fact. If the omission of that precaution was negligence per se, then the instruction asked for at the conclusion of thje evidence should have been granted. To have given the instruction in the language of the request respecting the duty to stop if the view was obstructed would have been equivalent to an instruction for (he plaintiff in error, for there was no dispute as to the fact that Mrs. Farra's view of the track was obscured from a point 400 feet back on the road until her horse was upon the trade, and in danger from a passing train. The request to charge as to the duty of stopping was rested upon the single fact that the view was obstructed. Tbe learned trial judge thought that there were circumstances in evidence entitled to consideration in the determination of that question which were eliminated by the form in which.tbe request was made. The case of Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, iu most respects was like the one at bar. The decedent in that case was run over at a public street crossing. The view of the tracks to be crossed was obscured by houses and standing cars for several hundred feet before reaching the'crossing. The contention of (he railroad company was that when the deceased reached a point within 15 or 20 feet he had a clear view of the track to be crossed, and that it was his duty to have stopped there for tbe purpose of looking and listening, and the court was requested to so charge. This was declined, the court saying that “it is too much on the weight of the evidence, and confines the jury to the particular circumstance narrated, without notice of others that they may think- proper.” “This reason is a [500]*500sound one,” said the supreme court when called upon to review the ruling of that trial judge. 144 U. S. 433, 12 Sup. Ct. 679.
The charge in that case was identical in substance with the one delivered by Judge Barr, and submitted to the jury the question as to whether, under all the circumstances, the conduct of the decedent had been that of a reasonably prudent and cautious man. “There is,” said the supreme court in the case last cited, “no fixed standard in the law by which a court is enabled to arbitrarily say in. every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care under all circumstances. * * * It is only where facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is even considered as one of law from the court.” 144 U. S. 417, 12 Sup. Ct. 679. It is true that in the Ives Case it did appear that the deceaséd had stopped some 80 feet before reaching the track, “presumably to listen.” But it was also shown that -from that place he had no view of the railroad, and could not get a view until he was within 15 or 20 feet of the track. He did not, therefore, avail himself of an opportunity to stop and look and listen at the only place near the crossing, familiar to him, which was available for observation. But where was Mrs. Farra to stop? An observation made from the top of the hill, 400 feet before she reached the crossing, would have been of no practical value. The train approaching, according to the contention of defendant in error, was traveling at the rate of 50 miles per hour. When she passed the brow of the hill it must have been a mile or more away, and the view from that point to the north is not shown to have extended beyond the whistling post, some 1,200 or 1,300 feet north of the crossing. It is not shown that she knew the obstructed condition of the right of way by undergrowth and weeds. Non constat but that for the negligent condition of that right of way she might have had a view of the approaching train without being obliged to drive her horse onto the track before getting a view of the track; and that, in reliance upon the absence of such obstruction, she continued to drive until she found she had reached the track before getting a view. To stop before actually reaching the track, with a view of looking, would have been idle, as the facts turned out, unless she got out and walked nearer the track. But she was a woman, and incumbered with a sleeping babe and another small child. Such a course, to say the least, would have been very inconvenient and quite extraordinary. Of course, there may be circumstances when ordinary prudence would demand even so unusual a precaution. But in this case were there circumstances w’hich made that course imperative? She knew the running schedule of the regular trains, and says that no train was due at that hour from the north. The train with which she did collide turns out to have been a special train, moving at extraordinary speed. There was therefore no special reason to apprehend a train from the north at that hour. But it is said that the noise of her own vehicle impeded her hearing, and that by stopping her sense of hearing would have been more acute. She [501]*501was traveling at a walk. Tlie curtains of tier barouche were rolled up. She was conscious of the dangerous character of the crossing she was approaching, and listening for a train. Under all the circumstances, was she guilty of negligence per se in not stopping before she reached the track to listen? Was the omission of that precaution so culpable, under all the surroundings, “that all reasonable men must draw the same conclusion”? or was the question one which admitted of such different judgments as to her conduct as Unmake it a proper question to go to a jury? Under all these circumstances, was it the duty of the court to say that the single fact that her view of the railroad was obstructed made it her duty to stop, or might the court say, as in effect it did, “look to all the circumstances surrounding this plaintiff at the time, and say whether her failure to stop was such an omission Jo£ that care and prudence which an ordinarily careful and prudent person should have exercised under like circumstances”?
The fundamental rule concerning the care to be exercised at a public railroad crossing by a traveler is that he must exercise that degree of caution usually exercised by prudent persons, conscious of the danger to which they are exposed at such crossings. If a crossing is peculiarly dangerous, a corresponding increase of caution is required. The general rule would, of course, demand that a vigilant use should be made of the eye in looking and of the ear in hearing. The failure to exercise these faculties by one approaching a crossing would be such a departure from the observance of that degree of caution exercised by prudent persons at such crossings as to raise, under ordinary circumstances, an inference of negligence, about which reasonable men would not disagree. Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct 1125; Horn’s Adm’x v. Railroad Co., 6 U. S. App. 381, 4 C. C. A.
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LURTON, Circuit Judge,
after stating the facts as above, delivered the opinion of the court.
The only question arising upon the errors assigned is as to the contributory negligence of the defendant in error. Were the circumstances so clear, and the inference of law so plain, that the court should have instructed for the plaintiff in error? That the defendant in error did not stop for the purpose of looking and listening was an admitted fact. If the omission of that precaution was negligence per se, then the instruction asked for at the conclusion of thje evidence should have been granted. To have given the instruction in the language of the request respecting the duty to stop if the view was obstructed would have been equivalent to an instruction for (he plaintiff in error, for there was no dispute as to the fact that Mrs. Farra's view of the track was obscured from a point 400 feet back on the road until her horse was upon the trade, and in danger from a passing train. The request to charge as to the duty of stopping was rested upon the single fact that the view was obstructed. Tbe learned trial judge thought that there were circumstances in evidence entitled to consideration in the determination of that question which were eliminated by the form in which.tbe request was made. The case of Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, iu most respects was like the one at bar. The decedent in that case was run over at a public street crossing. The view of the tracks to be crossed was obscured by houses and standing cars for several hundred feet before reaching the'crossing. The contention of (he railroad company was that when the deceased reached a point within 15 or 20 feet he had a clear view of the track to be crossed, and that it was his duty to have stopped there for tbe purpose of looking and listening, and the court was requested to so charge. This was declined, the court saying that “it is too much on the weight of the evidence, and confines the jury to the particular circumstance narrated, without notice of others that they may think- proper.” “This reason is a [500]*500sound one,” said the supreme court when called upon to review the ruling of that trial judge. 144 U. S. 433, 12 Sup. Ct. 679.
The charge in that case was identical in substance with the one delivered by Judge Barr, and submitted to the jury the question as to whether, under all the circumstances, the conduct of the decedent had been that of a reasonably prudent and cautious man. “There is,” said the supreme court in the case last cited, “no fixed standard in the law by which a court is enabled to arbitrarily say in. every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care under all circumstances. * * * It is only where facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is even considered as one of law from the court.” 144 U. S. 417, 12 Sup. Ct. 679. It is true that in the Ives Case it did appear that the deceaséd had stopped some 80 feet before reaching the track, “presumably to listen.” But it was also shown that -from that place he had no view of the railroad, and could not get a view until he was within 15 or 20 feet of the track. He did not, therefore, avail himself of an opportunity to stop and look and listen at the only place near the crossing, familiar to him, which was available for observation. But where was Mrs. Farra to stop? An observation made from the top of the hill, 400 feet before she reached the crossing, would have been of no practical value. The train approaching, according to the contention of defendant in error, was traveling at the rate of 50 miles per hour. When she passed the brow of the hill it must have been a mile or more away, and the view from that point to the north is not shown to have extended beyond the whistling post, some 1,200 or 1,300 feet north of the crossing. It is not shown that she knew the obstructed condition of the right of way by undergrowth and weeds. Non constat but that for the negligent condition of that right of way she might have had a view of the approaching train without being obliged to drive her horse onto the track before getting a view of the track; and that, in reliance upon the absence of such obstruction, she continued to drive until she found she had reached the track before getting a view. To stop before actually reaching the track, with a view of looking, would have been idle, as the facts turned out, unless she got out and walked nearer the track. But she was a woman, and incumbered with a sleeping babe and another small child. Such a course, to say the least, would have been very inconvenient and quite extraordinary. Of course, there may be circumstances when ordinary prudence would demand even so unusual a precaution. But in this case were there circumstances w’hich made that course imperative? She knew the running schedule of the regular trains, and says that no train was due at that hour from the north. The train with which she did collide turns out to have been a special train, moving at extraordinary speed. There was therefore no special reason to apprehend a train from the north at that hour. But it is said that the noise of her own vehicle impeded her hearing, and that by stopping her sense of hearing would have been more acute. She [501]*501was traveling at a walk. Tlie curtains of tier barouche were rolled up. She was conscious of the dangerous character of the crossing she was approaching, and listening for a train. Under all the circumstances, was she guilty of negligence per se in not stopping before she reached the track to listen? Was the omission of that precaution so culpable, under all the surroundings, “that all reasonable men must draw the same conclusion”? or was the question one which admitted of such different judgments as to her conduct as Unmake it a proper question to go to a jury? Under all these circumstances, was it the duty of the court to say that the single fact that her view of the railroad was obstructed made it her duty to stop, or might the court say, as in effect it did, “look to all the circumstances surrounding this plaintiff at the time, and say whether her failure to stop was such an omission Jo£ that care and prudence which an ordinarily careful and prudent person should have exercised under like circumstances”?
The fundamental rule concerning the care to be exercised at a public railroad crossing by a traveler is that he must exercise that degree of caution usually exercised by prudent persons, conscious of the danger to which they are exposed at such crossings. If a crossing is peculiarly dangerous, a corresponding increase of caution is required. The general rule would, of course, demand that a vigilant use should be made of the eye in looking and of the ear in hearing. The failure to exercise these faculties by one approaching a crossing would be such a departure from the observance of that degree of caution exercised by prudent persons at such crossings as to raise, under ordinary circumstances, an inference of negligence, about which reasonable men would not disagree. Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct 1125; Horn’s Adm’x v. Railroad Co., 6 U. S. App. 381, 4 C. C. A. 346, and 54 Fed. 301; Blount v. Railroad, 9 C. C. A. 526, 61 Fed. 375.
We are not prepared to say that ordinarily it would not be the duty of one approaching a crossing to stop and look and listen, if the view of the crossing was obstructed and the sense of hearing was materially affected by the noise of the vehicle in which the person was traveling. The Pennsylvania rule, which seems to make it the duty to stop under all circumstances, regardless of obstructions to the view or obstacles to the hearing, has not met with general acceptance, and seems much calculated to condone carelessness and recklessness by railroad companies at: public crossings, where the rights and duties of the public and of the company are reciprocal. Neither are we prepared to say that the duty of stopping is imperative in all cases where the track is obscured. There may be circumstances, as in the lyes Case and in the cast1 at bar, where the duty is debatable and proper for the consideration of the jury. Mrs. Farra’s case presented quite as many circumstances calculated to modify the duty of stopping as were presented in the Ives Case, and we think should be controlled by that case. Nothing decided by this court in the case of Horn’s Adm’x [502]*502v. Railroad Co., cited above, conflicts in any way with the Ives Case, or the application of the Ives Case to the one now decided. It is true that the district judge who tried that case in the circuit court had charged that it was the duty of the deceased to have stopped and looked and listened. But the plaintiff had a verdict, and the writ of error was sued out by the railroad company. It could not and did not assign error upon that charge, and the propriety of the charge was not involved in the opinion of this court. The judgment must be affirmed.