Opinion of the Court by
Judge Hobson
-Reversing.
Bessie Kay Engleman, while driving a phaeton across the Louisville & Nashville railroad track at a private crossing known as “Woods’ crossing,” about 2i/2 miles north of Stanford, Ky., was struck by the north-bound passenger train and killed. This action was brought by her administrator to recover for her [519]*519death, and, a recovery having been had in the sum of $10,000, the railroad company appeals.
The pike ran on the opposite side of the railroad from the home of the decedent. To get out to the pike from her home, she used a private road, and was struck where this road crossed the railroad. The road was used as an outlet by persons living on the farms of Samuel Harris and Eph Woods, including their tenants and persons going to or from their places on business or pleasure. There was a gate’ at the edge of the railroad right of way, 62 feet from the track. The private road passed through a cut just before it reached the railroad, so that a person driving a vehicle could not see an approaching train until he was within a few feet of the track, and those in charge of the train would be equally unable to see him until about the same time, unless the top of the vehicle was high enough to be visible above the cut as it approached the track. The evidence for the plaintiff tended to show that the crossing was especially dangerous, that the railroad trains were accustomed to give signals of their approach to the crossing, and that no warning of the approach of this train was given. There was also much evidence tending’ to show that the trains sometimes gave signals of their approach, and sometimes did not, although the engineer of this train testified that he regarded it a dangerous crossing and always gave the usual'crossing signals as he approached it. The evidence for the defendant tended to show that the decedent drove on the crossing without looking or listening when the train was very close to it, and when it was too late for those in charge of the train to avert the injury to her. It also showed that the train gave the usual crossing signals as it approached.
[520]*520■ On this evidence, the court) refusing to instruct the jury peremptorily to find for the defendant, gave the jury the following instructions:
“No. 1. If you believe from the evidence that the railroad crossing, over the private passway, known and spoken of in the testimony as the ‘Woods crossT ing,’ is a dangerous crossing for persons traveling thereover in buggies in an ordinarily prudent manner, then it was the duty of the employes of defendant in control of the train that struck the deceased, when moving the train on that part of the track approaching said crossing, to keep a lookout for persons traveling over same in a vehicle or vehicles, and to give reasonable signals and warnings of the movement of its train when approaching said crossing, and if you believe from the evidence that the defendant’s employes in charge of said train negligently failed to perform any of these duties in the movement of said train, and that by reason thereof the plaintiff’s intestate while crossing, or attempting to cross, said crossing, was run against and killed by said train, and that the deceased was at the time using ordinary care for her own safety, then you will find for the plaintiff in damages such a sum as you believe from the evidence will reasonably compensate the estate of the decéased for the destruction of her power to earn money, not exceeding the sum of $30,000.
“No. 2. Although you, may believe from .the evidence that the employes on the train gave reasonable signals of the approach of the train to the Woods crossing, yet if you further believe from the evidence that the employes in charge-of the movements of the train discovered the peril of the deceased in time to have avoided the collision by the use of the available [521]*521means and appliances at hand, then you should find 1‘or .the plaintiff.”
“No. 5. Unless the defendant’s employes in charge of the train were negligent as defined in instruction No. 1 then you will find for the defendant; and although you may believe from the evidence that there was such negligence on the part of said employes, yet, if, in going on the track as she did, the deceased failed to use ordinary care for her' own safety, and but for this would not have been injured, then you will find for the defendant, notwithstanding such negligence on its part. ’ ’
It has been held by this court in a number of cases ihat the railroad company may run its trains at such speed as it pleases over private crossings, and that if is not required to give notice of the approach of the i rains to such crossings, unless it has been customary for the signals to be given, and they were relied on by persons using the crossing. Johnson v. L. & N. R. R. Co., 91 Ky. 651, 25 S. W. 754; 10 R. 227, 11 R. 118 Louisville, etc., R. R. Co. v. Survant, 96 Ky. 197, 27 S. W. 999, 16 Ky. Law Rep. 545; Davis v. C. & O. Ry. Co., 116 Ky. 114, 75 S. W. 275; Hoback v. Louisville, etc., R. R. Co., 99 S. W. 241. On the other hand, it has been held that where it has been customary for signals to be given of the approach of trains to a private crossing, and these were relied on by persons using the crossing, and a traveler on the crossing was struck by reason of a failure to' give the customary signals, a recovery may be had. L. & N. R. R. Co. v. Bodine, 109 Ky. 509, 59 S. W. 740, 23 Ky. Law Rep. 147, 56 L. R. A. 506; Early’s Adm’r v. Louisville, etc., R. R. Co., 115 Ky. 13, 72 S. W. 348, 24 Ky. Law Rep. 1807. There was some evidence here that the trains were accustomed to give the usual signals of their ap[522]*522proach to this crossing, and that persons using the crossing relied thereon. This evidence was sufficient to submit the case to the jury under the rule referred to. No one saw the decedent as she approached the crossing. No one knows whether she stopped, looked, or listened, or what precautions she took. This being true, under a long line of decisions of this court, it is not presumed that she was guilty of contributory negligence, and the question is for the jury. The court therefore did not err in refusing to instruct The jury peremptorily 'to find for the defendant.
The rule that where it lids been customary to give signals at a private crossing, and persons using the crossing have come to rely upon them, the signals may not he omitted without notice, obtains in other jurisdictions. Westaway v. Chicago, etc., R. R. Co., 56 Minn. 28, 57 N. W. 222; Nash v. N. Y. Cent. R. R. Co., 117 N. Y. 628, 22 N. E. 1128; 33 Cyc. 946, and cases cited. But there was in this case evidence that the train failed to whistle or give any signals for the ero.ssing as often as they gave such signals. In view of this evidence, it was a question for the jury whether the custom of giving signals for this crossing prevailed to such an extent .that persons using the crossing had a right'to rely on the signals being given. It is not material that some trains passed this crossing without giving .the usual signals, for some trains fail to give signals at public crossings. The case turns on whether there was such a custom to give the signals that persons using the crossing had the right to rely on it.. In lieu of instruction No. 1, the court should have told the jury, in substance, that if it had been customary for trains to give signals of their approach to the Woods crossing, and this custom had prevailed to such an extent that'persons using the crossing had
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Opinion of the Court by
Judge Hobson
-Reversing.
Bessie Kay Engleman, while driving a phaeton across the Louisville & Nashville railroad track at a private crossing known as “Woods’ crossing,” about 2i/2 miles north of Stanford, Ky., was struck by the north-bound passenger train and killed. This action was brought by her administrator to recover for her [519]*519death, and, a recovery having been had in the sum of $10,000, the railroad company appeals.
The pike ran on the opposite side of the railroad from the home of the decedent. To get out to the pike from her home, she used a private road, and was struck where this road crossed the railroad. The road was used as an outlet by persons living on the farms of Samuel Harris and Eph Woods, including their tenants and persons going to or from their places on business or pleasure. There was a gate’ at the edge of the railroad right of way, 62 feet from the track. The private road passed through a cut just before it reached the railroad, so that a person driving a vehicle could not see an approaching train until he was within a few feet of the track, and those in charge of the train would be equally unable to see him until about the same time, unless the top of the vehicle was high enough to be visible above the cut as it approached the track. The evidence for the plaintiff tended to show that the crossing was especially dangerous, that the railroad trains were accustomed to give signals of their approach to the crossing, and that no warning of the approach of this train was given. There was also much evidence tending’ to show that the trains sometimes gave signals of their approach, and sometimes did not, although the engineer of this train testified that he regarded it a dangerous crossing and always gave the usual'crossing signals as he approached it. The evidence for the defendant tended to show that the decedent drove on the crossing without looking or listening when the train was very close to it, and when it was too late for those in charge of the train to avert the injury to her. It also showed that the train gave the usual crossing signals as it approached.
[520]*520■ On this evidence, the court) refusing to instruct the jury peremptorily to find for the defendant, gave the jury the following instructions:
“No. 1. If you believe from the evidence that the railroad crossing, over the private passway, known and spoken of in the testimony as the ‘Woods crossT ing,’ is a dangerous crossing for persons traveling thereover in buggies in an ordinarily prudent manner, then it was the duty of the employes of defendant in control of the train that struck the deceased, when moving the train on that part of the track approaching said crossing, to keep a lookout for persons traveling over same in a vehicle or vehicles, and to give reasonable signals and warnings of the movement of its train when approaching said crossing, and if you believe from the evidence that the defendant’s employes in charge of said train negligently failed to perform any of these duties in the movement of said train, and that by reason thereof the plaintiff’s intestate while crossing, or attempting to cross, said crossing, was run against and killed by said train, and that the deceased was at the time using ordinary care for her own safety, then you will find for the plaintiff in damages such a sum as you believe from the evidence will reasonably compensate the estate of the decéased for the destruction of her power to earn money, not exceeding the sum of $30,000.
“No. 2. Although you, may believe from .the evidence that the employes on the train gave reasonable signals of the approach of the train to the Woods crossing, yet if you further believe from the evidence that the employes in charge-of the movements of the train discovered the peril of the deceased in time to have avoided the collision by the use of the available [521]*521means and appliances at hand, then you should find 1‘or .the plaintiff.”
“No. 5. Unless the defendant’s employes in charge of the train were negligent as defined in instruction No. 1 then you will find for the defendant; and although you may believe from the evidence that there was such negligence on the part of said employes, yet, if, in going on the track as she did, the deceased failed to use ordinary care for her' own safety, and but for this would not have been injured, then you will find for the defendant, notwithstanding such negligence on its part. ’ ’
It has been held by this court in a number of cases ihat the railroad company may run its trains at such speed as it pleases over private crossings, and that if is not required to give notice of the approach of the i rains to such crossings, unless it has been customary for the signals to be given, and they were relied on by persons using the crossing. Johnson v. L. & N. R. R. Co., 91 Ky. 651, 25 S. W. 754; 10 R. 227, 11 R. 118 Louisville, etc., R. R. Co. v. Survant, 96 Ky. 197, 27 S. W. 999, 16 Ky. Law Rep. 545; Davis v. C. & O. Ry. Co., 116 Ky. 114, 75 S. W. 275; Hoback v. Louisville, etc., R. R. Co., 99 S. W. 241. On the other hand, it has been held that where it has been customary for signals to be given of the approach of trains to a private crossing, and these were relied on by persons using the crossing, and a traveler on the crossing was struck by reason of a failure to' give the customary signals, a recovery may be had. L. & N. R. R. Co. v. Bodine, 109 Ky. 509, 59 S. W. 740, 23 Ky. Law Rep. 147, 56 L. R. A. 506; Early’s Adm’r v. Louisville, etc., R. R. Co., 115 Ky. 13, 72 S. W. 348, 24 Ky. Law Rep. 1807. There was some evidence here that the trains were accustomed to give the usual signals of their ap[522]*522proach to this crossing, and that persons using the crossing relied thereon. This evidence was sufficient to submit the case to the jury under the rule referred to. No one saw the decedent as she approached the crossing. No one knows whether she stopped, looked, or listened, or what precautions she took. This being true, under a long line of decisions of this court, it is not presumed that she was guilty of contributory negligence, and the question is for the jury. The court therefore did not err in refusing to instruct The jury peremptorily 'to find for the defendant.
The rule that where it lids been customary to give signals at a private crossing, and persons using the crossing have come to rely upon them, the signals may not he omitted without notice, obtains in other jurisdictions. Westaway v. Chicago, etc., R. R. Co., 56 Minn. 28, 57 N. W. 222; Nash v. N. Y. Cent. R. R. Co., 117 N. Y. 628, 22 N. E. 1128; 33 Cyc. 946, and cases cited. But there was in this case evidence that the train failed to whistle or give any signals for the ero.ssing as often as they gave such signals. In view of this evidence, it was a question for the jury whether the custom of giving signals for this crossing prevailed to such an extent .that persons using the crossing had a right'to rely on the signals being given. It is not material that some trains passed this crossing without giving .the usual signals, for some trains fail to give signals at public crossings. The case turns on whether there was such a custom to give the signals that persons using the crossing had the right to rely on it.. In lieu of instruction No. 1, the court should have told the jury, in substance, that if it had been customary for trains to give signals of their approach to the Woods crossing, and this custom had prevailed to such an extent that'persons using the crossing had [523]*523reason to rely on suck signals being given, 'and the train in question failed to give reasonable signals of its approach to the crossing, and by reason of such failure the decedent was struck and hurt, they should find for .the plaintiff as set out in the instruction; otherwise for the defendant.
There was no evidence in the case to warrant the giving of instruction No. 2. It was not incumbent upon the engineer to look across the cut to 'See the tops of vehicles. It was his duty to watch the track. L. & N. R. R. Co., v. Onan, 110 S. W. 381, 33 Ky. Law Rep. 462. An instruction of this sort should never be given unless there is evidence to warrant it. L. & N. R. R. Co. v. Joshlin, 110 S. W. 383, 33 Ky. Law Rep. 513.
In Southern R. R. Co. v. Winchester, 127 Ky. 154 105 S. W. 167, where we had before us an instruction similar to No. 5, we said: “In lieu of the third instruction on another trial, the court will tell the jury that it was the duty of the intestate, on approaching the crossing, to use such care as may be usually expected of an ordinarily prudent person to learn of the approach of the train and keep out of its way; that, if the crossing was especially dangerous, it was incumbent on him to exercise increased care commensurate with the danger; and that if he failed to exercise such care, and but for this would not have been injured, then the law is for the defendant, and the jury should so find, even though they may believe from the evidence that the defendant or its employes were negligent as set out in No. 1 and No. 2.” Instruction No. 6 given by the court, practically conformed to the rule thus laid down, but, for brevity, on another trial the court will give the one instruction indicated.
[524]*524The two instructions we have outlined, with instruction Nos. 4 and 8, given by the court defining “reasonable signals” and “ordinary care,” cover the whole law of the case. The other matters complained of will not, perhaps, occur on another trial.
Judgment reversed, and cause remanded for a new trial.
Nunn, C. J.
I agree to the reversal, but do not assent to the opinion wherein it relieves the appellant from giving warning of the approach of the train to a. known unusually dangerous private crossing. As decided by this court in the case of L. & N. R. R. Co. v. Bodine, 109 Ky. 509, 59 S. W. 740, 23 Ky. Law Rep. 147, 56 L. R. A. 506, the effect of the opinion is to give notice to railroad companies to cease to give warnings of the approach of their trains in such cases.