Truly, L,
delivered the opinion of the court.
The facts as determined by the finding of the jury are these: On the morning of the accident, at the populous, but unin[129]*129•corporated, village of Fernwood, J. W. Bethea was struck and killed at a public crossing by train No. 1, a vestibuled or cannon-ball train of appellant company. At the time the train ■causing the death was late and running fifty to sixty miles an hour, and crossed the highway without the ringing of a boll ■or the blowing of a whistle. Bethea drove his buggy over the public highway, in obedience to a signal of some character made by the flagman of a local freight train, which was then engaged in switching at Fermvood. The question presented by the record, and the only important question in our opinion, is whether, under the circumstances, Bethea was guilty of negligence proximately contributing to his own injury. That the railroad company was guilty of negligence, in so far, at least, •as applies to the employes in charge of the train causing the injury, is manifest. In truth, upon this point, there is no conflict of testimony worthy of any consideration. That it was the duty of the flagman of the local freight train to “protect the crossing” under the rules of the company, is perfectly plain. The train to which he was attached was then engaged in switching, and had been for some time previously. In making the switching necessary for the prosecution of its business as a local freight train, the train repeatedly crossed the public highway, obstructing travel and passage. At the time of the accident the work of the local train had not been completed. There still remained, according to the testimony of'the employes, some switching to be done before the train could leave the station. It appears probable, at least, that the local freight train cleared the crossing for the purpose of permitting Bethea to drive across. If this be not true, there is no explanation of why the conductor, engineer, and flagman of the local train should have suspended their swdtching operations before they were concluded.. However this may be, and for -whatever purpose the temporary suspension of work was made, certain it is that Bethea did not drive on the track or attempt to pass over the crossing [130]*130until the engine of the local freight train had pulled north of and cleared the crossing and had come to a full stop. Until the time when the crossing was perfectly clear of the local train, and until the engineer of that .train had stopped his engine, Bethea had made no effort to drive on the railroad track; but, according to some.of the testimony, had himself come to a full stop. At this time, and under these circumstances, according to the preponderance of the testimony, the flagman, who was in charge of the crossing for the purpose of warning and protecting travelers, gave a signal to his engineer to bring his engine to a stop. When the engineer of the local train obeyed this signal, the flagman then made another signal, and in obedience to that signal Bethea drove upon the track, and was struck, without warning, by the cannon-ball train. There’ is considerable conflict as to the exact character and description of the signal given by the flagman. He himself denies giving any signal. Some witnesses testify that the signal given was one of warning. Others testify, with equal directness, that it was one’of invitation, conveying the idea that the crossing was clear and safe. It was at least a question of doubtful fact, and as such was submitted to the jury under proper instructions upon each side.
We think the assignment of error based upon the admission of the rule defining the duties of the flagman of a switching train regarding a public crossing untenable. It manifestly appears that the train was then engaged in switching; that the flagman was then engaged in guarding the crossing, and was operating under the rule in question. But, even if this were not true, the admission of the rule would not constitute reversible error. The flagman was an employe of the appellant. He was acting as a watch. He did make a signal, and that signal Bethea construed, the jury found rightfully, as an invitation to cross — as an assurance of safety.- It is useless to contend that a flagman in charge of a crossing, who signals a traveler [131]*131to pass over, must be considered as simply signifying tbe attitude of bis own train, and not as evidencing tbe safety of tbe crossing generally. Tbe reason why a flagman is kept at a crossing is not alone to protect travelers from bis own train, but to prevent, by Ms watchfulness, the happening of accidents from the approach of any train whatsoever. Upon this point the appellant has no ground of complaint, because the instruction granted covering this phase of the case was extremely liberal. Instruction No. 9 charged the jury that if they believed that Bethea was signaled “not to drive across the track,” or that signals were made “trying to warn him against the approaching train,” and that for any reason Bethea “misconstrued the signal for one to cross the track, or that he ignored the signals,” then the jury should find for the defendant. Upon this fair submission of the conflict in the evidence as to the character, effect, and purpose of the signal given, the jury solved the issue in favor of the appellee, deciding that the signal made was one, not of warning, but of invitation; not signifying danger, but promising safety. We cannot say that there was no evidence on which this conclusion could be based. On the contrary, the testimony of the witness Dread is direct on this point, while that of other witnesses is reasonably susceptible of like construction.
The nine instructions granted the appellant presented the divers theories of its defense in every legal phase. The jury were instructed that, if Bethea “by a careful and cautious use of his eyes or ears could and should have seen or heard train No. 1 before he reached the track at the crossing, then as a matter of law he did see or hear said train”; further, that if Bethea “voluntarily chose a dangerous way, when there was an obviously safe.one which could have been chosen,” in neither instance could there be a recovery for plaintiffs. The jury were further charged, by sundry instructions on behalf of appellant, that as between Bethea and the train “the train was [132]*132entitled to precedence and had the right of way,” and even though “signals were not given and the train was running at a high rate of speed,” and even though the train was late and passed at an unusual time, that none of these things relieved Bethea from the duty of looking and listening and using every reasonable precaution to protect himself, and that failure on his part in this regard would defeat recovery by the plaintiffs. So the question of what was the proximate cause of the injury, the defense of any lack of care and caution on the part of Bethea, and the defense of'contributory negligence arising out of the conduct of Bethea, even though the employes of the railroad company were negligent in any of the several matters of alleged negligence placed in proof, were all fairly submitted to the consideration of the jury.
The instructions refused for the defendant were either attempts to impose limitations and ingraft modifications upon the general principles applicable to and controlling the several issues arising out of the evidence, or were upon the weight of the evidence, or were fully covered by the charges granted. The refusal of the third instruction is earnestly urged as constituting reversible error. We think not. The instruction is erroneous as written.
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Truly, L,
delivered the opinion of the court.
The facts as determined by the finding of the jury are these: On the morning of the accident, at the populous, but unin[129]*129•corporated, village of Fernwood, J. W. Bethea was struck and killed at a public crossing by train No. 1, a vestibuled or cannon-ball train of appellant company. At the time the train ■causing the death was late and running fifty to sixty miles an hour, and crossed the highway without the ringing of a boll ■or the blowing of a whistle. Bethea drove his buggy over the public highway, in obedience to a signal of some character made by the flagman of a local freight train, which was then engaged in switching at Fermvood. The question presented by the record, and the only important question in our opinion, is whether, under the circumstances, Bethea was guilty of negligence proximately contributing to his own injury. That the railroad company was guilty of negligence, in so far, at least, •as applies to the employes in charge of the train causing the injury, is manifest. In truth, upon this point, there is no conflict of testimony worthy of any consideration. That it was the duty of the flagman of the local freight train to “protect the crossing” under the rules of the company, is perfectly plain. The train to which he was attached was then engaged in switching, and had been for some time previously. In making the switching necessary for the prosecution of its business as a local freight train, the train repeatedly crossed the public highway, obstructing travel and passage. At the time of the accident the work of the local train had not been completed. There still remained, according to the testimony of'the employes, some switching to be done before the train could leave the station. It appears probable, at least, that the local freight train cleared the crossing for the purpose of permitting Bethea to drive across. If this be not true, there is no explanation of why the conductor, engineer, and flagman of the local train should have suspended their swdtching operations before they were concluded.. However this may be, and for -whatever purpose the temporary suspension of work was made, certain it is that Bethea did not drive on the track or attempt to pass over the crossing [130]*130until the engine of the local freight train had pulled north of and cleared the crossing and had come to a full stop. Until the time when the crossing was perfectly clear of the local train, and until the engineer of that .train had stopped his engine, Bethea had made no effort to drive on the railroad track; but, according to some.of the testimony, had himself come to a full stop. At this time, and under these circumstances, according to the preponderance of the testimony, the flagman, who was in charge of the crossing for the purpose of warning and protecting travelers, gave a signal to his engineer to bring his engine to a stop. When the engineer of the local train obeyed this signal, the flagman then made another signal, and in obedience to that signal Bethea drove upon the track, and was struck, without warning, by the cannon-ball train. There’ is considerable conflict as to the exact character and description of the signal given by the flagman. He himself denies giving any signal. Some witnesses testify that the signal given was one of warning. Others testify, with equal directness, that it was one’of invitation, conveying the idea that the crossing was clear and safe. It was at least a question of doubtful fact, and as such was submitted to the jury under proper instructions upon each side.
We think the assignment of error based upon the admission of the rule defining the duties of the flagman of a switching train regarding a public crossing untenable. It manifestly appears that the train was then engaged in switching; that the flagman was then engaged in guarding the crossing, and was operating under the rule in question. But, even if this were not true, the admission of the rule would not constitute reversible error. The flagman was an employe of the appellant. He was acting as a watch. He did make a signal, and that signal Bethea construed, the jury found rightfully, as an invitation to cross — as an assurance of safety.- It is useless to contend that a flagman in charge of a crossing, who signals a traveler [131]*131to pass over, must be considered as simply signifying tbe attitude of bis own train, and not as evidencing tbe safety of tbe crossing generally. Tbe reason why a flagman is kept at a crossing is not alone to protect travelers from bis own train, but to prevent, by Ms watchfulness, the happening of accidents from the approach of any train whatsoever. Upon this point the appellant has no ground of complaint, because the instruction granted covering this phase of the case was extremely liberal. Instruction No. 9 charged the jury that if they believed that Bethea was signaled “not to drive across the track,” or that signals were made “trying to warn him against the approaching train,” and that for any reason Bethea “misconstrued the signal for one to cross the track, or that he ignored the signals,” then the jury should find for the defendant. Upon this fair submission of the conflict in the evidence as to the character, effect, and purpose of the signal given, the jury solved the issue in favor of the appellee, deciding that the signal made was one, not of warning, but of invitation; not signifying danger, but promising safety. We cannot say that there was no evidence on which this conclusion could be based. On the contrary, the testimony of the witness Dread is direct on this point, while that of other witnesses is reasonably susceptible of like construction.
The nine instructions granted the appellant presented the divers theories of its defense in every legal phase. The jury were instructed that, if Bethea “by a careful and cautious use of his eyes or ears could and should have seen or heard train No. 1 before he reached the track at the crossing, then as a matter of law he did see or hear said train”; further, that if Bethea “voluntarily chose a dangerous way, when there was an obviously safe.one which could have been chosen,” in neither instance could there be a recovery for plaintiffs. The jury were further charged, by sundry instructions on behalf of appellant, that as between Bethea and the train “the train was [132]*132entitled to precedence and had the right of way,” and even though “signals were not given and the train was running at a high rate of speed,” and even though the train was late and passed at an unusual time, that none of these things relieved Bethea from the duty of looking and listening and using every reasonable precaution to protect himself, and that failure on his part in this regard would defeat recovery by the plaintiffs. So the question of what was the proximate cause of the injury, the defense of any lack of care and caution on the part of Bethea, and the defense of'contributory negligence arising out of the conduct of Bethea, even though the employes of the railroad company were negligent in any of the several matters of alleged negligence placed in proof, were all fairly submitted to the consideration of the jury.
The instructions refused for the defendant were either attempts to impose limitations and ingraft modifications upon the general principles applicable to and controlling the several issues arising out of the evidence, or were upon the weight of the evidence, or were fully covered by the charges granted. The refusal of the third instruction is earnestly urged as constituting reversible error. We think not. The instruction is erroneous as written. It is not true that, when some degree of negligence by both parties combine to cause an injury, as a matter of law no recovery can under any circumstances be had. If in an accident both parties be guilty of negligence, then the question of what was the proximate cause of the injury is a question of fact, to be submitted to the decision of a jury. The defense of contributory negligence presupposes, and in the eye of the law concedes, the existence of negligence on the part of the party interposing the plea. One may be injured by his own negligence, when the other party is innocent of all negligence. In such state of case no recovery can be had, because the injury is attributable solely to the negligence of the party injured. So, again, the party causing the injury may be guilty [133]*133of negligence, and yet the party injured not be entitled to recover in a case where be, too, is guilty of negligence, and the negligence on his part directly contributes to the injury. But it is also true that both parties to an accident may be guilty of negligence, and yet the party injured be entitled to recover. It is not negligence in any degree that prevents a recovery, but such negligence as proximately contributes to or causes the injury. The instruction under review does not -measure up to this requirement of the law. The refusal of the other instructions for the defendant was manifestly correct. Nor do we think the instructions granted the appellees justly subject to the criticism attempted to be made upon them. Considered from the point even of verbiage or correct phrasing, we think they stand the test. Certain it is that they are substantially in approved forms which have heretofore been adopted by the courts and text-writers of accepted authority. No instruction was granted appellees of which the converse was not embodied in some charge on behalf of appellant.
Taken as a whole, in view of all the surrounding conditions, we think the jury eminently warranted in deciding that the carelessness and want of ordinary regard for the rights of the public and disregard for the safety of travelers, evinced by the operatives upon train No. 1 in passing through a populous community and over a frequented thoroughfare, which the testimony shows was in constant use by travelers, without signaling and at a high rate of speed, was the proximate cause of the sad accident which terminated this useful life. Had the employes-in charge of train No. 1 been more solicitous for the welfare of pedestrians and travelers generally, and mindful of the possibility of inflicting injury or death, and given the warnings and signals of the approach of the train which the law requires, it is probable that the accident would not have occurred. The fact that, after the engineer discovered the dangerous position of Bethea, he was powerless to do anything to prevent the accident, [134]*134does not alter the fact that the duty imposed by statute of sounding the signals was disregarded; or, had the flagman discharged his duty under the rules of securing the safety of travelers by guarding and watching over the crossing, Bethea might not have been brought into a place of danger. It is certainly time that some action was being taken to prevent the constant recurrence of accidents and fatalities at highway crossings, caused mainly by the failure of train operatives to comply with statutory requirements. It is to be hoped that this extremely sad occurrence, where the life of a useful citizen was sacrificed, will cause some plan to be devised whereby employes in charge of trains may be brought to a due regard for the rights and safety of the public and induced to pay more strict attention to those duties, made mandatory by the express language of the statute.
The judgment is affirmed.