BRANTLY, C. J.
1. Plaintiffs except to the ruling of the [530]*530court in refusing to permit the witness Reed to answer the -question, “What have you to say as to whether or not, under the circumstances, it was the best thing to do ?” The purpose -of the question was to draw out the opinion of the witness as to the propriety of putting the team over in front of the train. There was no error in this ruling. This witness had already stated that, in his opinion, this was the only thing to do to avoid a collision. Wallace and Chestnut also testified to the same effect. Nothing was to be gained by a repetition.
2. The answer of the defendant, as it was originally made, contained allegations of contributory negligence on the part of Hunter (the deceased) and his companions broad enough to cover the matter alleged in the amendment. The amendment was, therefore, immaterial; but the error in permitting it to be filed resulted in no prejudice to the plaintiffs. The judgment cannot be reversed on this account.
3. The gravest question presented .by this appeal is predicated upon the action of the trial court in directing a verdict for the defendant. The Civil Code (Section 908) provides that any railroad corporation in this State which ‘ ‘shall permit any locomotive to approach any highway, road or railroad crossing, without causing the whistle to be sounded, at a point between fifty and eighty rods from the crossing, and the bell to be rung from said "point until the crossing is reached, * * * shall be deemed guilty of a misdemeanor, ’ ’ etc. As to whether the required warning of the approach of the train was given on the evening in question there, was sharp conflict in the evidence. The court, in directing the verdict for the defendant, assumed that none was given. The jury were told that the defendant had been guilty of negligence in its failure to do this (the court holding, on this issue, for the plaintiffs), but that Hunter, the deceased, and Wallace, the driver, had been guilty of contributory negligence in failing to “stop, look, or listen for an approaching train;” and that, therefore, defendant was entitled to a verdict. This assumption was correctly made; for the court could not pass upon the credibility of the witnesses, and, as the proof tended to establish this fact, [531]*531it was assumed as proven. The legal conclusion drawn from the fact thus assumed to he proven was also the correct one. The failure on the part of a railroad company to observe these precautions enjoined by statute is negligence. (Elliott on Railroads, Sec. 711; Beach on Contrib. Neg. Secs. 185, 186; Missouri Pac. Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Harty v. Central Railroad Co., 42 N. Y. 468; Ransom v. C. St. P. Railway Co., 62 Wis. 178, 22 N. W. 147; Pittsburg C. C. St. L. Railway Co. v. Burton, 139 Ind. 357, 37 N. E. 150; 1 Thompson on Neg. p. 419.) This is the general rule. And, even where there is no statutory requirement upon the subject, it is held that it is still the duty of the company to use such care and precaution upon approaching a crossing, and to give such signals as, at least, ordinary prudence and diligence would require. (Harty v. Central Railroad Co. supra; 1 Thompson on Neg. p. 419; Louisville & N. R. Co. v. Com., 13 Bush. 388, s. c. 26 Am. Rep. 205; Beach on Contrib. Neg. Sec. 186.)
These requirements are for the benefit of the public, and persons traveling upon the public highways have a right to expect a compliance on the part of the railroad company. But failure of obedience on the part of the railroad company to the requirements of the statute does not excuse the citizen from the use of at least ordinary diligence and prudence; so that if one, upon approaching a railroad crossing intending to pass over it, fails to make a vigilant use of his senses, — that is, to look or listen, and to stop for this purpose, if necessary, to learn if there is danger, — and by reason of this failure to exercise this precaution he is injured, then he contributes directly to such injury, and cannot be heard to say that the railroad company did him the injury, and should compensate him for its wrong. The injury in such case is attributable to the recklessness and want of care in the person himself; for if he had performed the duty he owed himself, and taken the necessary precaution,. he would not have been injured. The amount of care to be exercised depends somewhat upon the special circumstances of each case. In general, the more ob[532]*532structed the view, and the narrower and more difficult the crossing, the greater is the duty to use watchfulness and care. Justice Field, in discussing a case similar to the present one, says: “The failure of the engineer to sound the whistle or to 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 employes 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 the 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. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet- undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. ” (Railroad Co. v. Houston, 95 U. S. 697.) This language is quoted with approval by Justice Blatchford in Schofield v. C. M. & St. P. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125. (See, also, Dascomb v. Railroad Co., 27 Barb. 221; Haas v. C. R. & I. Railroad Co., 47 Mich. 401, s. c. 8 Am. and Eng. R. R. Cases, 268, 11 N. W. 216; Schaefert v. C. M. & St. P. Railroad Co., 62 Iowa 624, s. c. 14 Am. & Eng. R. R. Cases, 696, 17 N. W. 893; Taylor v. Missouri Pac. Railway Co., 86 Mo. 457; Pepper v. Southern Pac. Railway Co., 105 Cal. 389, 38 Pac. 974; Union Pac. Railway Co. v. Adams, 33 Kan. 427, s. c. 19 Am. & Eng. R. R. Cases, 376, 6 Pac. 529; Beach on Contrib. Neg. Sec. 185; 1 Thompson on Neg. p. 430; Hearne v. Southern Pac. Railroad Co., 50 Cal. 482.)
In this case, the deceased and two of his companions lived in the vicinity of this crossing. Their hired driver passed it frequently. He had passed it once before on that day. He was an experienced driver. His team was gentle. He and [533]*533they were familiar with the crossing, from living in its vicinity, and, presumably, with the passage of' trains. They knew that the vision was more or less obstructed at that point, and that they would be within 45 feet of the track before they could see a passing train. They knew there was no opportunity to turn out at this point. And yet, in the face of all this, they trotted the team up to within 30 feet, at most (to take the driver’s account), before their attention was given to the probable danger.
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BRANTLY, C. J.
1. Plaintiffs except to the ruling of the [530]*530court in refusing to permit the witness Reed to answer the -question, “What have you to say as to whether or not, under the circumstances, it was the best thing to do ?” The purpose -of the question was to draw out the opinion of the witness as to the propriety of putting the team over in front of the train. There was no error in this ruling. This witness had already stated that, in his opinion, this was the only thing to do to avoid a collision. Wallace and Chestnut also testified to the same effect. Nothing was to be gained by a repetition.
2. The answer of the defendant, as it was originally made, contained allegations of contributory negligence on the part of Hunter (the deceased) and his companions broad enough to cover the matter alleged in the amendment. The amendment was, therefore, immaterial; but the error in permitting it to be filed resulted in no prejudice to the plaintiffs. The judgment cannot be reversed on this account.
3. The gravest question presented .by this appeal is predicated upon the action of the trial court in directing a verdict for the defendant. The Civil Code (Section 908) provides that any railroad corporation in this State which ‘ ‘shall permit any locomotive to approach any highway, road or railroad crossing, without causing the whistle to be sounded, at a point between fifty and eighty rods from the crossing, and the bell to be rung from said "point until the crossing is reached, * * * shall be deemed guilty of a misdemeanor, ’ ’ etc. As to whether the required warning of the approach of the train was given on the evening in question there, was sharp conflict in the evidence. The court, in directing the verdict for the defendant, assumed that none was given. The jury were told that the defendant had been guilty of negligence in its failure to do this (the court holding, on this issue, for the plaintiffs), but that Hunter, the deceased, and Wallace, the driver, had been guilty of contributory negligence in failing to “stop, look, or listen for an approaching train;” and that, therefore, defendant was entitled to a verdict. This assumption was correctly made; for the court could not pass upon the credibility of the witnesses, and, as the proof tended to establish this fact, [531]*531it was assumed as proven. The legal conclusion drawn from the fact thus assumed to he proven was also the correct one. The failure on the part of a railroad company to observe these precautions enjoined by statute is negligence. (Elliott on Railroads, Sec. 711; Beach on Contrib. Neg. Secs. 185, 186; Missouri Pac. Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Harty v. Central Railroad Co., 42 N. Y. 468; Ransom v. C. St. P. Railway Co., 62 Wis. 178, 22 N. W. 147; Pittsburg C. C. St. L. Railway Co. v. Burton, 139 Ind. 357, 37 N. E. 150; 1 Thompson on Neg. p. 419.) This is the general rule. And, even where there is no statutory requirement upon the subject, it is held that it is still the duty of the company to use such care and precaution upon approaching a crossing, and to give such signals as, at least, ordinary prudence and diligence would require. (Harty v. Central Railroad Co. supra; 1 Thompson on Neg. p. 419; Louisville & N. R. Co. v. Com., 13 Bush. 388, s. c. 26 Am. Rep. 205; Beach on Contrib. Neg. Sec. 186.)
These requirements are for the benefit of the public, and persons traveling upon the public highways have a right to expect a compliance on the part of the railroad company. But failure of obedience on the part of the railroad company to the requirements of the statute does not excuse the citizen from the use of at least ordinary diligence and prudence; so that if one, upon approaching a railroad crossing intending to pass over it, fails to make a vigilant use of his senses, — that is, to look or listen, and to stop for this purpose, if necessary, to learn if there is danger, — and by reason of this failure to exercise this precaution he is injured, then he contributes directly to such injury, and cannot be heard to say that the railroad company did him the injury, and should compensate him for its wrong. The injury in such case is attributable to the recklessness and want of care in the person himself; for if he had performed the duty he owed himself, and taken the necessary precaution,. he would not have been injured. The amount of care to be exercised depends somewhat upon the special circumstances of each case. In general, the more ob[532]*532structed the view, and the narrower and more difficult the crossing, the greater is the duty to use watchfulness and care. Justice Field, in discussing a case similar to the present one, says: “The failure of the engineer to sound the whistle or to 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 employes 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 the 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. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet- undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. ” (Railroad Co. v. Houston, 95 U. S. 697.) This language is quoted with approval by Justice Blatchford in Schofield v. C. M. & St. P. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125. (See, also, Dascomb v. Railroad Co., 27 Barb. 221; Haas v. C. R. & I. Railroad Co., 47 Mich. 401, s. c. 8 Am. and Eng. R. R. Cases, 268, 11 N. W. 216; Schaefert v. C. M. & St. P. Railroad Co., 62 Iowa 624, s. c. 14 Am. & Eng. R. R. Cases, 696, 17 N. W. 893; Taylor v. Missouri Pac. Railway Co., 86 Mo. 457; Pepper v. Southern Pac. Railway Co., 105 Cal. 389, 38 Pac. 974; Union Pac. Railway Co. v. Adams, 33 Kan. 427, s. c. 19 Am. & Eng. R. R. Cases, 376, 6 Pac. 529; Beach on Contrib. Neg. Sec. 185; 1 Thompson on Neg. p. 430; Hearne v. Southern Pac. Railroad Co., 50 Cal. 482.)
In this case, the deceased and two of his companions lived in the vicinity of this crossing. Their hired driver passed it frequently. He had passed it once before on that day. He was an experienced driver. His team was gentle. He and [533]*533they were familiar with the crossing, from living in its vicinity, and, presumably, with the passage of' trains. They knew that the vision was more or less obstructed at that point, and that they would be within 45 feet of the track before they could see a passing train. They knew there was no opportunity to turn out at this point. And yet, in the face of all this, they trotted the team up to within 30 feet, at most (to take the driver’s account), before their attention was given to the probable danger. They then found it upon them (if the story of the survivors is to be taken as true), and were compelled to make the dash over to save themselves. They neither stopped, nor looked, nor listened. In fact, they made no use of their senses. It seems that they might have checked their team with safety. All of these precautions were omitted. The attention they should have given to their own safety they doubtless gave to the skating party; and now it is sought to have the railroad company compensate the brothers and sisters for the death of their brother, when he and his companions, by the most ordinary care, could have avoided it. We do not think the blame for the loss thus occasioned should be cast upon the defendant. Under the assumption of the trial court that it had failed in its duty, it was guilty of negligence, and subject to punishment. But that is no sufficient reason why the deceased and his companions should be held blameless. It does not alter the case that the deceased endeavored to save himself by leaving the carriage, and thus fell before the train. The determining fact in the case is that the party went recklessly and heedlessly into the danger from which he thus sought to escape. The District Court committed no error in directing a verdict for the defendant.
But the plaintiffs insist that it is the rule adopted by this Court that he who relies upon contributory negligence as a defense must allege and prove it, and that therefore the action of the lower court was wrong, in view of the fact that the defendant offered no proof of negligence on the part of deceased. This rule is well settled by several decisions of this Court, as plaintiffs contend. (Higley v. Gilmer, 3 Mont. 90; Wall v. [534]*534Helena Street Railway Co., 12 Mont. 44, 29 Pac. 721; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Mulville v. Pac. Mut. Life Insurance Co., 19 Mont. 95, 47 Pac. 650.) But it is a corollary to that rule, also recognized by this Court, as is well said by Justice De Witt in Nelson v. City of Helena, supra, “that whenever the plaintiff’s own case raises a presumption of contributory negligence the burden of proof is immediately upon him. In such a case it devolves upon the plaintiff, as of course, to clear himself of the suspicion of negligence that he has himself created. He must make out his case in full; and, where the circumstances attending the injury were such as to raise a presumption against him in respect to the exercise of due care, the law requires him to establish affirmatively his freedom from contributory fault.” The case at bar, in our opinion, comes squarely within the principles here announced.
The judgment and order appealed from will therefore be affirmed.
Affirmed.
Hunt and Pigott, JJ., concur.