McLemoee, J.,
delivered the opinion of the court.
This was an action at law brought in the Circuit Court of Appomattox county for damages for personal injuries as a result of the car in which plaintiff was riding being in collision with defendant’s train. At the trial, defendant demurred to the evidence which the court sustained, and entered judgment for the railway company. Plaintiff brings error.
The parties in this court occupy the same positions [832]*832as in the court below and will be referred.to as they appeared there.
Plaintiff was injured on July 11, 1925, at a highway crossing in the corporate limits of the town of Pamplin, when the open Ford “runabout” in which she was riding came in collision with the east bound passenger train No. 8 of the defendant company, in the afternoon of that day.
There were in the ear at the time two men and. Martha Hancock, the plaintiff. The highway crosses the railway at right angles and runs north and south, and the car in which plaintiff was riding was traveling north. Frizzell Cole was driving the car and Sampson Madison was on his right, with the plaintiff, Martha Hancock, sitting across his lap, with her face turned, toward the east.
The plaintiff’s contention is that the defendant was negligent in approaching the crossing without giving timely warnings to travelers on the highway and particularly at this place which was permitted to be- and remain in a dangerous condition as a direct result-of which she was injured.
The position of the defendant company may be best-understood by a reading of its demurrer to the evidence,, which follows:
“1. Because the plaintiff’s negligence in going on. the crossing without looking in a westerly direction from which train No. 8 was coming is the sole proximate-cause of her injury.
“2. Because plaintiff’s evidence shows that the defendant’s train crew performed the duties required of' those in charge thereof in the matter of giving the-warning signals demanded by law in approaching said. crossing.
“3. Because the evidence shows the defendant was-[833]*833not guilty of any negligent act which was the sole proximate cause or the proximate cause of the injury complained of.
“4. Because the plaintiff’s negligence contributed to and caused the injury complained of and bars her right to recover in this case irrespective of the alleged negligence of the defendant.
“5. Because plaintiff admits that she went on the crossing without giving the train a thought, without asking the driver to stop before going on the crossing and without looking in both directions, although she admits she had seen the tracks and knew the railroad was in front of her, having been to Sizemore’s store before and over this crossing, and this conduct was negligence on her part which bars her right to recover.
“6. Because plaintiff’s evidence shows that there was a space of ten feet or more south of the south rail of this crossing at which an automobile could be stopped and the occupants see a train approaching from the west for a considerable distance, and plaintiff could likewise have seen had she looked.
“7. Because plaintiff having accepted the invitation to ride in the automobile cannot fail to look and listen and shut her eyes to danger, and then claim that the driver is negligent and that because she could not operate the car or handle the control thereof she is no way responsible for his negligence, because her failure to look and listen under these circumstances is also negligence which bars her right to recover.
“8. Because plaintiff and Cole, the driver, were engaged in a joint enterprise and the negligence of the driver bars plaintiff’s right to recover.
“9. Because the evidence fails to show any negligent act of the defendant, or its agents, which was the sole proximate'cause of the plaintiff’s injury, the defendant having performed every act required of it.”
[834]*834The accident having occurred within the corporate limits of the town of Pamplin, although practically in the country, about 550 yards west of the station, and no ordinance having been enacted regulating the signals or warnings to be given by railway trains in approaching crossings therein, it is conceded that the common law duty to give reasonable and timely warnings controls, and section 3958 of the Code has no application.
It would seem unnecessary to restate the law which controls the courts in determining whether or not a demurrer to the evidence should be sustained. This being before us upon a demurrer, the well known principles applicable in such cases must apply and be determinative of the conclusions that should be reached.
The major portion of the testimony taken by the .plaintiff was offered for the purpose of proving the negligence of the defendant in approaching the crossing where the collision occurred.
In our view of the case this question becomes unimportant, because we are of the opinion that the right of recovery must turn upon the question of the plaintiff’s contributory negligence, which for the purpose of this discussion pre-supposes the primary negligence .of the defendant, and is quite independent of the negligence of the driver of the ear which could not under the facts of this case be imputed to the plaintiff.
The law in this State defining the duty of a passenger or invited guest while riding in a vehicle which collides with a locomotive, has been declared in the case of Southern Railway Company v. Jones' Admr., 118 Va. 685, 88 S. E. 178, wherein Judge Keith says:
[835]*835“The negligence of the driver is not to be imputed to a passenger, but it is the duty of a traveler to use ordinary care for his own safety. The railroad track is to him, as to others, a signal of danger, and his failure to exercise reasonable precaution for his own protection is contributory negligence, and bars a recovery.”
The same doctrine is announced in Atlantic & D. R. Co. v. Ironmonger, 95 Va. 629, 29 S. E. 319; Virginian R. Co. v. Skinner, 119 Va. 843, 89 S. E. 888. These cases are in accord with the views expressed by the courts of last resort in a large majority of the States of this country.
“An automobile passenger is bound to exercise ordinary care for his own safety, without which the injury received in a collision is attributable to his own negligence.” Carpenter v. Atchison, 51 Cal. App. 60, 195 Pac. 1073.
“All that can be required of a guest in an automobile, who has no control over it, is to look and listen and warn the driver of approaching danger at a crossing.” Parker v. S. A. L. Ry. Co., 181 N. C. 95, 106 S. E. 755.
“A guest riding in the front seat with the driver of an automobile is required, in the exercise of ordinary care, to keep a vigilant lookout for trains when approaching a railroad crossing.” Barrett v. Chicago M. & St. Ry. Co., 190 Iowa 509, 175 N. W. 950, 180 N. W. 670.
“Though a passenger in automobile was merely a guest, it was his duty, on approaching a railroad crossing, to look and listen according to his opportunity, and, if he did not, he assumed the risk.” Robison v. Oregon-Washington R. & Nav. Co., 90 Or. 490, 176 Pac. 594.
“One riding with another driving an automobile over a railroad crossing must exercise due care for his own safety by looking and listening, whether he is a [836]*836guest or otherwise.” Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S. W. 437.
“Passenger in automobile who did not request driver to stop or take necessary precautions while approaching dangerous railway crossing was guilty of contributory negligence barring recovery for personal injury from collision, though no signal was given.” Morris v. Chicago, B. & Q. R. Co., 101 Neb. 479, 163 N. W. 799.
Berry on Automobiles (4th ed.), section 590 states the law as follows:
‘ ‘Collisions with railroad trains — Duty of occupant. It is the duty of one who is riding in an automobile as a passenger, when about to cross a railroad track, to look and listen for approaching trains, and to warn the chauffeur of the near approach of a train, and prevent him from attempting to cross the tracks close in front of the train, and a failure to perform this duty amounts to negligence.
“He must use reasonable care to learn of the approach of a train and to keep out of its way.”
These authorities leave nothing to be supplied by this court in fixing the degree of care for his own safety to be observed by a passenger or guest riding in an automobile, when approaching a railroad crossing.
Did the plaintiff observe that care immediately prior to the injury which the law imposes upon her?
From the photographs filed in the record, and the undisputed testimony of the witness who took the pictures,' it appears that in "approaching the east bound track of the railroad, and thirty-three feet from its center, a man can be seen on the south track 297 feet west of the crossing, and when twenty-one and one-half feet from the center of the east bound track, he can be seen a distance of 934 feet west from the crossing. [837]*837An approaching engine could be seen as far, perhaps considerably further.
It seems obvious, therefore, that had the plaintiff looked for the on-coming train, as was her duty to do, it could have been seen in ample time for her to have cautioned the driver of the impending peril.
“This court has repeatedly held that the duty of looking and listening for approaching trains before crossing a railroad track must be discharged in a way to make looking and listening effectual.” U. S. Spruce Lumber Co. v. Shumate, 118 Va. 471, 87 S. E. 723; Southern Railway Company v. Jones, 106 Va. 412, 56 S. E. 155; Murden v. Virginia Railway and Power Company, 130 Va. 449, 107 S. E. 660.
“It is the duty of a traveler, before attempting to cross a railroad track at a crossing, to look in both directions and to listen for approaching trains.” Norfolk, etc., R. Co. v. Sink, 118 Va. 439, 87 S. E. 740.
A very able discussion of the law on this general subject has been contributed by Judge Kelly in Washington, etc., Ry. Co. v. Zell, 118 Va. 755, 88 S. E. 309.
In the very recent cases of Virginian Railway Company v. Farr, 147 Va. 217, 136 S. E. 668, and Norfolk and Western Railway Company v. James, 147 Va. 178, 136 S. E. 660, the court dealt with the rights of a passenger to recover from a railway company for injuries received while riding in an automobile. In both eases verdicts for the plaintiffs were sustained, but the reasons given by the court are quite sufficient to justify this court in reaching the opposite conclusion in this case.
In both of these cases the plaintiffs were traveling in the night. Knew nothing of the perils of the road, had no opportunity of knowing, and, therefore, no reason to remonstrate with or warn the driver of dangers unseen and unknown.
[838]*838In the case in judgment, plaintiff in the day time was riding on the lap of one of the occupants of the front seat, which placed her farther to the front of the car than either of her companions. Had she looked she could have seen the engine further up the track than the driver. Sitting across the lap of Sampson Madison furnished no excuse for not looking both ways when about to cross a railroad track with the location of which she was familiar.
A person cannot disqualify themselves from observing the ordinary rules of prevision for their safety and then plead the self imposed conditions as an excuse for failure to exercise vigilance. To have turned her head, and her body if necessary, was a simple and easy movement in her position on this ill-fated ear.
Our attention has been called to the topography of the surroundings at the point where the highway and tracks of the railroad cross, and the difficulty of seeing an approaching train at the place where the collision occurred.
The facts as to this question have been heretofore adverted .to, and a careful consideration of the evidence and the photographs of the important points referred to therein demonstrate that vigilance on the part of the plaintiff would have presumably avoided the injury.
Whatever may have been the difficulties in the way of a clear vision, they could not have contributed to the accident in so far as the plaintiff is concerned. She admittedly made no effort to overcome the difficulties or to observe the dangers toward which they recklessly rushed. “Thoughtlessness is negligence.” Southern Railway Co. v. Mauzy, 98 Va. 692, 37 S. E. 285.
There are eases in which the question as to [839]*839•whether the traveler was guilty of negligence in going on the track without looking and listening is one for the jury. This class of cases is discussed and the distinction applicable here, indicated by Judge Buchanan in Boyd v. Southern Railway Co., 115 Va. 11, 78 S. E. 548; Chapman’s Admr. v. Hines, 134 Va. 287, 115 S. E. 373.
In giving the exceptions to the general rule in Boyd v. Southern Railway Company, supra, the court says:
“ ‘In the case of Kimball & Fink v. Friend, 95 Va. 125, 27 S. E. 901, where there was a silent gong, and in Southern Railway Co. v. Aldridge, 101 Va. 142, 43 S. E. 333, where the watchman failed to perform his duty, it was held that the question of negligence on the part of the travelers in going upon the crossing where injured, was a question of fact for the jury, under all the facts of those cases, and not a question of law for the court.’ Judge Buchanan further says:
“ ‘It has also been held that the traveler’s negligence is a question for the jury where he attempts to cross a railway track immediately after one train has passed and another follows so quickly as to mislead or confuse him and he is injured. And in cases of flying switches, where the train has been severed and the traveler goes upon the crossing after the first section has passed and is struck by the second; and also where a traveler seeing a train pass on or towards the main line of the railroad, goes upon the track and is injured by the train immediately returning.’ ” Chapman’s Admr. v. Hines, 134 Va. 274, 281, 115 S. E. 373. See also Etheridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S. E. 680.
It is urged by plaintiff’s counsel that the negligence of Martha Hancock should have been submitted to a jury.
There are opinions without number dealing with this [840]*840question, and. the language used in many instances, if disassociated with the circumstances of those particular cases, would appear to sustain that contention, but it is axiomatic that expressions of the courts must be interpreted as applying to the facts of the case with reference to which they are used, and, therefore, cannot always be relied upon to establish the law in cases of the same general character but with material differences as to the facts.
What issue has the jury to determine in the instant ease? The facts are undisputed and unequivocal.
The law in Virginia requires a passenger or guest in an automobile to use ordinary care for his safety in approaching and crossing a railroad track. This law she confessedly ignored and was immediately in collision with the locomotive. Under this state of facts the law fixes negligence upon her, and there is no issue for the jury to determine. U. S. Spruce Lumber Co. v. Shumate, 118 Va. 471, 87 S. E. 723; Norfolk Southern R. Co. v. Sink, 118 Va. 439, 87 S. E. 740; Southern Railway Company v. Vaughan, 118 Va. 692, 88 S. E. 305, L. R. A. 1916E, 1222, Ann. Cas. 1918D, 842; Virginia and Southwestern Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887; and Murden v. Va. Ry. & Pow. Co., 130 Va. 449, 107 S. E. 660.
There is a class of cases of which Virginia Railway and Power Co. v. Gorsuch, 120 Va. 655, 91 S. E. 632, Ann. Cas. 1918B, 838, is a type, where the wife of a careful driver is not required to be on guard for her own safety. These are usually cases where the accidents occur on city streets between an automobile and a street car.
The distinction between collisions of this character, where there is ceaseless commotion and the crossing of car tracks at every city block, and those occurring [841]*841upon the rural highways where they intersect railway main line tracks, are quite obvious. We are of the opinion that the Got such Case was not intended to overrule the doctrine stated by Judge Kelly in the Zell Case to be “settled law in this jurisdiction” and is not controlling of the case in judgment. Campion v. Eakle, 79 Colo. 320, 246 Pac. 280, 47 A. L. R. 289; Hunsavage v. Rocek, 74 Colo. 163, 219 Pac. 1080.
The precautions taken by the plaintiff just prior to the accident may best be gleaned from her own language:
“Q. You were in the car you say because who asked you?
“A. Frizzell Cole.-
“Q. Was Sam Madison in the car also?
“A. Yes, sir; he was in there also.
“Q. And you were sitting in his lap?
“A. I was sitting on his lap.
“Q. You don’t know how fast the ear was traveling before it got to this crossing?
“A. I really don’t know.
“Q. You were sitting facing towards the station at Pamplin?
“A. Yes, sir.
“Q. When you went over the track?
“Q. So that you neither stopped nor looked towards the west, from which this train was coming, before you went upon that crossing?
“A. Only slowed up.
“Q. You did not look towards the west at all?
“A. No, sir.
“Q. You were looking to the east in the direction of the station at Painplin?
“A. That is where I was looking.
[842]*842“Q. And you never gave a single look towards the west, from which this train was coming?
“Q. Now you being in Sam Madisoii’s lap were nearer the front of the car than either Madison or Cole, weren’t you?
“Q. So that if you had turned your head and looked towards the west you would have been in the best position to see the train coming of any of the three in the car, you being- out nearer the front of the car and sitting up higher than they, weren’t you?
“Q. I also understood you to say that you were a little deaf and couldn’t hear good anyhow; you said that when Mr. Howard asked you the question.
By Mr. Howard: “No, she didn’t say that.
By the court: “Yes, she did say that, Mr. Howard.
By Mr. Gravatt:
“Q. I am correct in that; you cannot hear very good, can you?
“Q. And the car you were in did not stop before going on the track?
“Q. And you did not look in the direction in which the train was coming before the ear got to the crossing. Now did you ask Frizzell Cole to stop or say to him ‘let’s look and see if the train is coming?’
“A. No, sir; I didn’t; I didn’t think anything about the train at all.
“Q. You didn’t pay any attention to it?
********
“Q. And No. 8 was an eastbound train and you knew that, didn’t you?
[843]*843“A. Yes, sir.
“Q. And you knew about what time that was due too, in the afternoon, didn’t you?
“A. Yes, sir; I knew it was in the afternoon.
“Q. And you knew it had not run this afternoon when you were up there, didn’t you?
“A. No, sir; I didn’t know.
“Q. You had been over to Mr. Sizemore’s store before, hadn’t you?
“A. I had been a long time ago.
“Q. When you were sitting in Sam Madison’s lap, riding up towards that crossing, facing down towards the depot at Pamplin, you could see the railroad tracks in front of you, couldn’t you, before you got up to the crossing?
“A. Yes, sir; I could have seen them.
“Q. They were there in plain view?
“A. Yes, sir; I could have seen them if I had been taking notice.
“Q. There was no reason why you couldn’t see the crossing and the tracks and look out if you had wanted to?
“A. If I had been thinking anything about the train, but I didn’t have any thought about the train; I didn’t know it was train time at all.
“Q. But there was no reason in the world why you couldn’t look out there, or have made Frizzell Cole stop that car so you could see if you wanted to. He would have stopped if you had asked him?
“A. I reckon so, if I had asked him, but it was his business, he was driving.
“Q. But if you had asked him to stop and look for a train at the crossing, he would have stopped?
“A. Yes, sir; but I never had any thought about the [844]*844crossing whatever. I hadn’t been used to the crossing and I hadn’t thought about the crossing.
“Q. Before you got up there you did see the Norfolk and Western tracks up there west of the Norfolk and Western station?
“A. I knowed the Norfolk and Western track run down there.”
The plaintiff was heedless of those rules for her safety, declared necessary by the great majority of the courts of this country as prerequisites to a recovery. She was clearly guilty of concurring negligence, without which in all probability she would not have sustained the injuries complained of, and we are therefore of opinion that the demurrer was rightly sustained, and the judgment must be affirmed.
Affirmed.