HOLMES, Circuit Judge.
This is an action ex delicto for damages sustained by appellee when his automobile, driven by him, collided with a freight train at a street crossing in the town of Plain Dealing, Louisiana.
Issues as to negligence and contributory negligence were submitted to the jury. The decisive question before us is whether the appellant was guilty of contributory negligence as a matter of law. The burden of proving that he was so contributorily negligent was on the defendant. The verdict of the jury necessarily implies a finding that the defendant failed to meet this burden. Also implicit in the verdict is a finding that, as the plaintiff approached the crossing, the train was not visible to him while there was still time to stop.
The plaintiff was a farmer, fifty-three years of age, and a man of good sight and hearing. His automobile and its brakes were in good condition. The windows of the car were open at the time of the accident. The crossing at which the collision occurred was in the business district of the town; and there were a warehouse and three storage tanks within twenty-eight feet of the tracks that obscured the vision of a person approaching the crossing while travelling toward it in a southeasterly direction.
The court below first thought that the plaintiff had a reasonable time in which to stop and avoid the collision, even though the train was running at a reckless rate of speed and failed to give any warning; but on further consideration, it held that the plaintiff’s alleged contributory negligence was an issue for the jury. In its opinion, the court said:
“It appears that the front end of the plaintiff’s car had to travel approximately six of the twenty-eight feet before he could see the approaching train, and the latter’s engine protruded about two feet off the west rail, leaving only 20 feet intervening between the front of his car and the side of the train at the point of collision. Plaintiff testified that he was traveling between 10 and 12 miles an hour or some 15 to 16 feet a second. When he hit the point where he could see, the rapidity of his physical reactions depended to a considerable extent on the individual, who was a small farmer living a few miles from the point of the peril and excitement into which he was led if the jury found that the train gave no warning.
“The evidence is conflicting as to the speed of the train and the giving of signals, which, of course, was a matter for the jury to determine. The defendant owed a duty to those crossing a street such as the one involved here in a town of some 1400 people, not to approach it at a great speed and without warning, as some witnesses testified. The burden was on the defendant to prove the contributory negligence by a fair preponderance of the evidence. Can it be said, as a matter of law, that the circumstances above described show contributory [265]*265negligence, regardless of the fault of the defendant?”
The question before this court, on appeal, is not what we would have done if we had been members of the jury, or what a Louisiana trial court, sitting without a jury, would or should have done, or even what the Supreme Court of Louisiana would do in reviewing the case upon both the law and the facts. The question before us is whether, after an examination of the entire record, we are able to say that the substantial rights of the defendant were prejudicially affected by the submission to the jury of the issue as to contributory negligence.1 This issue, in turn depends upon whether there was substantial evidence from which a fair jury might reasonably infer that the plaintiff, at the time of the injury, was exercising the care that an ordinarily prudent person would use for his own safety in similar circumstances.
It is conceded that the law of Louisiana governs, and that, under such law, contributory negligence is a complete bar to recovery; but it is contended that the Louisiana Highway Regulatory Act of 19382 repealed the stop-law act of 19243 and governs the issue as to appellee’s alleged contributory negligence. We do not concur in this contention. We find no inconsistency in the two acts, and none has been pointed out to us. The state courts of Louisiana have not held that the former was repealed by the latter, but have dealt with them as if one supplemented the other. Different portions of one or the other of these acts are invoked by each of the parties to this suit; but we are unable to find in either statute anything determinative of the crucial question before its. The legislature was careful to provide in the act of 1924 that its violation should not affect the recovery of damages or the question of negligence, and that whether or not said violal ion was the sole and proximate cause of the injury should be for the jury to determine.
We must he careful to distinguish between the substantive and procedural enactments of these statutes. The provisions of the act of 1924 as to what questions shall be for the jury to determine deal with the essential functions of the judge and jury, and are not binding on a federal court. They interfere with the rights at common law by which a defendant may obtain a decision of the court where the facts are undisputed and there is an absence of conflicting inferences. State laws cannot restrict this function of a trial judge in the federal court.4
The substantive provisions of the statutes, above cited, require a motorist, on approaching a railroad crossing, to stop, look, and listen for trains before going upon the tracks. The failure to stop does not absolutely preclude recovery unless it appears that the failure to stop was a proximate cause of the accident.5 The provision of the act of 1924, that the contributory negligence statutes of Louisiana shall apply in these cases as in other cases of negligence, is legislation affecting substantive rights, and governs federal as well as state-court decisions. The same is true as to the provision that violation of the act “shall not affect recovery for damages.” The federal courts are bound by state-court decisions construing these parts of the law.
As to the rule prior to the act of 1924, see Holstead v. Vicksburg, S. & P. Ry. Co., 154 La. 1097, 98 So. 679, 680, wherein the Supreme Court of Louisiana said: “If one can see that the way is clear sufficiently, under reasonably normal circumstances, to pass without danger, he is justified in going ahead; or if, as in this case, the view is obstructed, he should approach cautiously until a view may be had.” This indicates that the law of Louisiana prior to said act was not different from that which obtained generally throughout the country, [266]*266and which was applied in the federal courts prior to the Erie Railroad decision, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1478.6
We cannot agree that the rule in Louisiana upon the subject of contributory negligence was made more stringent by the acts above cited, because they have not been so construed by the appellate courts of Louisiana, and the act of 1924 expressly enacted a contrary rule.
Since the Pokora case has been cited with approval by the Court of Appeal of Louisiana in the Robertson case, post,
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HOLMES, Circuit Judge.
This is an action ex delicto for damages sustained by appellee when his automobile, driven by him, collided with a freight train at a street crossing in the town of Plain Dealing, Louisiana.
Issues as to negligence and contributory negligence were submitted to the jury. The decisive question before us is whether the appellant was guilty of contributory negligence as a matter of law. The burden of proving that he was so contributorily negligent was on the defendant. The verdict of the jury necessarily implies a finding that the defendant failed to meet this burden. Also implicit in the verdict is a finding that, as the plaintiff approached the crossing, the train was not visible to him while there was still time to stop.
The plaintiff was a farmer, fifty-three years of age, and a man of good sight and hearing. His automobile and its brakes were in good condition. The windows of the car were open at the time of the accident. The crossing at which the collision occurred was in the business district of the town; and there were a warehouse and three storage tanks within twenty-eight feet of the tracks that obscured the vision of a person approaching the crossing while travelling toward it in a southeasterly direction.
The court below first thought that the plaintiff had a reasonable time in which to stop and avoid the collision, even though the train was running at a reckless rate of speed and failed to give any warning; but on further consideration, it held that the plaintiff’s alleged contributory negligence was an issue for the jury. In its opinion, the court said:
“It appears that the front end of the plaintiff’s car had to travel approximately six of the twenty-eight feet before he could see the approaching train, and the latter’s engine protruded about two feet off the west rail, leaving only 20 feet intervening between the front of his car and the side of the train at the point of collision. Plaintiff testified that he was traveling between 10 and 12 miles an hour or some 15 to 16 feet a second. When he hit the point where he could see, the rapidity of his physical reactions depended to a considerable extent on the individual, who was a small farmer living a few miles from the point of the peril and excitement into which he was led if the jury found that the train gave no warning.
“The evidence is conflicting as to the speed of the train and the giving of signals, which, of course, was a matter for the jury to determine. The defendant owed a duty to those crossing a street such as the one involved here in a town of some 1400 people, not to approach it at a great speed and without warning, as some witnesses testified. The burden was on the defendant to prove the contributory negligence by a fair preponderance of the evidence. Can it be said, as a matter of law, that the circumstances above described show contributory [265]*265negligence, regardless of the fault of the defendant?”
The question before this court, on appeal, is not what we would have done if we had been members of the jury, or what a Louisiana trial court, sitting without a jury, would or should have done, or even what the Supreme Court of Louisiana would do in reviewing the case upon both the law and the facts. The question before us is whether, after an examination of the entire record, we are able to say that the substantial rights of the defendant were prejudicially affected by the submission to the jury of the issue as to contributory negligence.1 This issue, in turn depends upon whether there was substantial evidence from which a fair jury might reasonably infer that the plaintiff, at the time of the injury, was exercising the care that an ordinarily prudent person would use for his own safety in similar circumstances.
It is conceded that the law of Louisiana governs, and that, under such law, contributory negligence is a complete bar to recovery; but it is contended that the Louisiana Highway Regulatory Act of 19382 repealed the stop-law act of 19243 and governs the issue as to appellee’s alleged contributory negligence. We do not concur in this contention. We find no inconsistency in the two acts, and none has been pointed out to us. The state courts of Louisiana have not held that the former was repealed by the latter, but have dealt with them as if one supplemented the other. Different portions of one or the other of these acts are invoked by each of the parties to this suit; but we are unable to find in either statute anything determinative of the crucial question before its. The legislature was careful to provide in the act of 1924 that its violation should not affect the recovery of damages or the question of negligence, and that whether or not said violal ion was the sole and proximate cause of the injury should be for the jury to determine.
We must he careful to distinguish between the substantive and procedural enactments of these statutes. The provisions of the act of 1924 as to what questions shall be for the jury to determine deal with the essential functions of the judge and jury, and are not binding on a federal court. They interfere with the rights at common law by which a defendant may obtain a decision of the court where the facts are undisputed and there is an absence of conflicting inferences. State laws cannot restrict this function of a trial judge in the federal court.4
The substantive provisions of the statutes, above cited, require a motorist, on approaching a railroad crossing, to stop, look, and listen for trains before going upon the tracks. The failure to stop does not absolutely preclude recovery unless it appears that the failure to stop was a proximate cause of the accident.5 The provision of the act of 1924, that the contributory negligence statutes of Louisiana shall apply in these cases as in other cases of negligence, is legislation affecting substantive rights, and governs federal as well as state-court decisions. The same is true as to the provision that violation of the act “shall not affect recovery for damages.” The federal courts are bound by state-court decisions construing these parts of the law.
As to the rule prior to the act of 1924, see Holstead v. Vicksburg, S. & P. Ry. Co., 154 La. 1097, 98 So. 679, 680, wherein the Supreme Court of Louisiana said: “If one can see that the way is clear sufficiently, under reasonably normal circumstances, to pass without danger, he is justified in going ahead; or if, as in this case, the view is obstructed, he should approach cautiously until a view may be had.” This indicates that the law of Louisiana prior to said act was not different from that which obtained generally throughout the country, [266]*266and which was applied in the federal courts prior to the Erie Railroad decision, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1478.6
We cannot agree that the rule in Louisiana upon the subject of contributory negligence was made more stringent by the acts above cited, because they have not been so construed by the appellate courts of Louisiana, and the act of 1924 expressly enacted a contrary rule.
Since the Pokora case has been cited with approval by the Court of Appeal of Louisiana in the Robertson case, post, it is reasonable to conclude that the law of Louisiana is in harmony with the Pokora doctrine. Even under the act of 1938 there is no absolute command to stop, look, and listen in the event it is impossible to do so. When the appellee found that his view was tut off, the statute authorized him to proceed with the greatest caution and at his peril. This is what the plaintiff testified he did. The words of the statute, “at their peril,” have no reference to the risk of being held guilty of contributory negligence, because the history of the statute refutes such legislative intent. If this were not true, then a motorist who failed to stop would be guilty of contributory negligence as a matter of law, and the Louisiana courts would doubtless have said so instead of saying that if his view is obstructed he may proceed cautiously until a view may be had. We have been cited to no “contributory negligence statutes of Louisiana,” referred to in said act of 1924 (section 8138 of Dart’s General Statutes), but in any event we presume the legislature intended by the last sentence in this section that the contributory negligence law of Louisiana “shall apply in these cases as in other cases of negligence.”
So far as we can find, neither the act of 1924 nor of 1938, supra, changed the duty of one approaching a railroad crossing to stop, look, and listen, except in respect to making it a misdemeanor to fail to observe this general rule. In Robertson v. Missouri Pac. R. Co., La.App., 165 So. 527, at page 530, the court said:
“Reference is made to the law regulating traffic on the highways, rule 17, § 3, tit. 2, Act No. 21 of 1932,7 as strengthening the rule requiring a motorist to stop, look, and listen before attempting to cross a railroad track at a crossing and placing responsibility on him for the failure to do so. Our opinion is that this rule of traffic is only expressive of the law as it has heretofore existed. This law was . passed in the light of the decisions of the courts of this state, as well as of other states, and it must be assumed that there was no intention to change the interpretation of the law on this point unless the Legislature clearly intended to change that interpretation, which we do not find to be the cáse.”
On petition for rehearing in the same case, the court said, La.App., 167 So. 165, [166]:
“Act No. 21 of 1932 was passed in the light of Act No. 12 of 1924, and we see no reason to infer that the legislature intended to change the rule on that point.”
There was evidence to warrant the jury in finding that at the time of the accident the speed of the train was as high as sixty miles per hour, and that no bell was rung or whistle blown. This evidence bears directly on the inherent probability of plaintiff’s testimony that the train came upon him so fast that he did not see or hear it before it struck him. As he approached the crossing, the plaintiff slowed down to ten miles an hour, threw his car into neutral gear until he came from behind the tanks, and then, dropping into second, moved slowly toward the track, looking and listening as he went.8
The judgment appealed from is affirmed.