Snodgrass, J.
This action for damages for the negligent killing of Isaac R. Seaborn was brought by his widow for use of herself and children against the Nashville, Chattanooga & St. Louis Railroad Company. Seaborn was killed by a train on the road of plaintiff' in error on the 22d November, 18*79, at the crossing of said road and the Stewart’s Eerry Turnpike, in Davidson County.
At the time of the accident Seaborn, with three others, was in a wagon returning from Nashville on said pike. The other occupants were two men and a boy, the latter driving.
About 4:30 i>. m. of the day mentioned they arrived at the crossing. It was a clear evening, but no one of the party appears to have seen or heard the train until the moment of the collision. They had approached the crossing in a walk, without thinking of -or noticing for the train. Just as they reached the crossing, and before the mules they ivere driving had stepped upon the track, Seaborn said, “ Look out, Leivis! ” speaking to the driver. The other tivo occupants of the Avagon, A\rhose backs Avere turned in the direction from Avhich the train came (Seaborn’s face having been in that direction), looked around and saAV the cowcatcher of the train in front of the mules. The [393]*393mules drew back. The end of the tongue struck and caught in the engine, the wagon was drawn alongside of it, and Seaborn .killed, being found, after the1 train had passed, in the stock-gap mortally injured, of which injuries he died that night.
The three survivors of the accident testified that no whistle was sounded or bell rung on the engine as it approached, and that they did not see or hear the train until near the moment of the collision.
On the other hand, the engineer, firemau, front brakeman, and conductor testify that the whistle was sounded and the bell rung for the crossing, the bell one fourth of a mile and the whistle a hundred yards before reaching it; that the danger signal was given and the engine reversed as ' soon as the danger appeared, forty or fifty feet from the crossing. Other witnesses, passengers on the train, testify to the same effect.
These are the substantial facts, as reported by the Commission of Referees, to which there is no exception on either side. Plaintiff in error excepts to some omissions and erroneous conclusions, but no question is well made upon the correctness of the facts detailed, and they are the facts of the record upon which this Court therefore acts.
The Commission further reports, and the fact is, that all the persons in the Avagon were well acquainted with the road and the crossing, and it is further reported that there were many other facts and circumstances tending 'to sIioav gross negligence [394]*394on the part of the plaintiff in error, and gross contributory negligence on the part of the deceased.
To this part of the report plaintiff in error alone excepts, and by some specific exceptions brings out other parts of ' the record for consideration; but in the view we have taken of the case this need not be noticed, as the part referred to as reported is sufficient to determine the error of the judgment.
There was a verdict for plaintiff of $10,000, and judgment accordingly. Motion for a new trial being overruled, defendant appealed in error.
To the report of the Commission of Referees, which was in favor of affirmance, many exceptions besides those already noticed are taken, addressed to errors in the charge of the Court and to ex-cessiveness of the verdict.
The errors principally complained of in the charge are those resulting from the attempted application of the statute requiring the observance of certain duties on the part of railroad companies to prevent accidents, as set forth in § 1298 of the new Code. After explanation of the pleadings, and charging in reference to the statute of limitations, not now material to be quoted, the Court said:
“The laws of Tennessee have prescribed certain rules to be . observed by railroad agents in the running of trains, which, if observed, protects the road against damages for injuries occurring on the road. On the other hand, if the agents fail to comply with the requirements of the statute, and [395]*395to use all reasonable means in their power to prevent accidents, the road will he held responsible for such damages as may occur from the wrongful acts of its agents.”
Then follows a quotation of the four sub-sections of the section referred to, with two following sections, making the company liable when these precautions are neglected, and excusing it from liability when they are. observed. To this the Court adds:
“If you find from the proof , that the agents of the company were iu the performance of the duties required of them by law, your verdict should be for the defendant. But if the agents of the defendant were neglecting any of the duties required of them by sub-section 4, § 1298 (of the new Code) at the time of the accident, your verdict should be for the plaintiff,” etc.
Further on the Court instructs the jury that “it' is conceded on both sides that the crossing where the accident occurred was at a turnpike, and not at a public or county road, and that there was no sign up, ‘Look out for the cars!’ etc. If you find the facts as conceded, * * the statute requiring the whistle or bell to be sounded one-fourth of a mile before reaching the crossing, and continuing it at short intervals to the crossing, would have no application to this case, and would leave the parties to their common law rights, so far as regards the ringing the bell and sounding" the whistle.”
[396]*396“At such crossings,” be adds, “each must respect the rights of the other, and use due caution to prevent accidents to persons traveling upon the other, and also to avoid accidents to themselves as passengers over the track. When a railroad company or its agents are running a train in violation of the statutory provisions, as set forth in § 1298, sub-section 4, and an accident occurs to another during said period, the injured party is entitled to recover, although guilty of negligence at the time which may have greatly contributed to the accident. Such negligence is proper, and should be looked to in mitigation of damages, but not as an answer to the action.
“But a different rule prevails where the road or its agents are not running in violation of some one .or more of said statutory requirements. In such case, if the accident was the result of the plaintiff’s negligence, he cannot recover; for if the accident was caused ljy the gross negligence of the plaintiff, he is considered the author of his own misfoi'tune. If a party is guilty of some negligence, and is injured by the wrongful act of another, such negligence will not prevent a recovery unless the damage could have been avoided by ordinary prudence; but if the party could with ordinary prudence have prevented the accident, but did not use that prudence, and his want of care and his negligence caused the damages, the plaintiff should not recover unless the ■ act was willfully done on the part of defendant.”
[397]*397There are several objections made to this charge which are well taken. The first, that the statute should not have been given in charge at all, as it had nothing to do as a whole with the case, is proper to be first disposed of.
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Snodgrass, J.
This action for damages for the negligent killing of Isaac R. Seaborn was brought by his widow for use of herself and children against the Nashville, Chattanooga & St. Louis Railroad Company. Seaborn was killed by a train on the road of plaintiff' in error on the 22d November, 18*79, at the crossing of said road and the Stewart’s Eerry Turnpike, in Davidson County.
At the time of the accident Seaborn, with three others, was in a wagon returning from Nashville on said pike. The other occupants were two men and a boy, the latter driving.
About 4:30 i>. m. of the day mentioned they arrived at the crossing. It was a clear evening, but no one of the party appears to have seen or heard the train until the moment of the collision. They had approached the crossing in a walk, without thinking of -or noticing for the train. Just as they reached the crossing, and before the mules they ivere driving had stepped upon the track, Seaborn said, “ Look out, Leivis! ” speaking to the driver. The other tivo occupants of the Avagon, A\rhose backs Avere turned in the direction from Avhich the train came (Seaborn’s face having been in that direction), looked around and saAV the cowcatcher of the train in front of the mules. The [393]*393mules drew back. The end of the tongue struck and caught in the engine, the wagon was drawn alongside of it, and Seaborn .killed, being found, after the1 train had passed, in the stock-gap mortally injured, of which injuries he died that night.
The three survivors of the accident testified that no whistle was sounded or bell rung on the engine as it approached, and that they did not see or hear the train until near the moment of the collision.
On the other hand, the engineer, firemau, front brakeman, and conductor testify that the whistle was sounded and the bell rung for the crossing, the bell one fourth of a mile and the whistle a hundred yards before reaching it; that the danger signal was given and the engine reversed as ' soon as the danger appeared, forty or fifty feet from the crossing. Other witnesses, passengers on the train, testify to the same effect.
These are the substantial facts, as reported by the Commission of Referees, to which there is no exception on either side. Plaintiff in error excepts to some omissions and erroneous conclusions, but no question is well made upon the correctness of the facts detailed, and they are the facts of the record upon which this Court therefore acts.
The Commission further reports, and the fact is, that all the persons in the Avagon were well acquainted with the road and the crossing, and it is further reported that there were many other facts and circumstances tending 'to sIioav gross negligence [394]*394on the part of the plaintiff in error, and gross contributory negligence on the part of the deceased.
To this part of the report plaintiff in error alone excepts, and by some specific exceptions brings out other parts of ' the record for consideration; but in the view we have taken of the case this need not be noticed, as the part referred to as reported is sufficient to determine the error of the judgment.
There was a verdict for plaintiff of $10,000, and judgment accordingly. Motion for a new trial being overruled, defendant appealed in error.
To the report of the Commission of Referees, which was in favor of affirmance, many exceptions besides those already noticed are taken, addressed to errors in the charge of the Court and to ex-cessiveness of the verdict.
The errors principally complained of in the charge are those resulting from the attempted application of the statute requiring the observance of certain duties on the part of railroad companies to prevent accidents, as set forth in § 1298 of the new Code. After explanation of the pleadings, and charging in reference to the statute of limitations, not now material to be quoted, the Court said:
“The laws of Tennessee have prescribed certain rules to be . observed by railroad agents in the running of trains, which, if observed, protects the road against damages for injuries occurring on the road. On the other hand, if the agents fail to comply with the requirements of the statute, and [395]*395to use all reasonable means in their power to prevent accidents, the road will he held responsible for such damages as may occur from the wrongful acts of its agents.”
Then follows a quotation of the four sub-sections of the section referred to, with two following sections, making the company liable when these precautions are neglected, and excusing it from liability when they are. observed. To this the Court adds:
“If you find from the proof , that the agents of the company were iu the performance of the duties required of them by law, your verdict should be for the defendant. But if the agents of the defendant were neglecting any of the duties required of them by sub-section 4, § 1298 (of the new Code) at the time of the accident, your verdict should be for the plaintiff,” etc.
Further on the Court instructs the jury that “it' is conceded on both sides that the crossing where the accident occurred was at a turnpike, and not at a public or county road, and that there was no sign up, ‘Look out for the cars!’ etc. If you find the facts as conceded, * * the statute requiring the whistle or bell to be sounded one-fourth of a mile before reaching the crossing, and continuing it at short intervals to the crossing, would have no application to this case, and would leave the parties to their common law rights, so far as regards the ringing the bell and sounding" the whistle.”
[396]*396“At such crossings,” be adds, “each must respect the rights of the other, and use due caution to prevent accidents to persons traveling upon the other, and also to avoid accidents to themselves as passengers over the track. When a railroad company or its agents are running a train in violation of the statutory provisions, as set forth in § 1298, sub-section 4, and an accident occurs to another during said period, the injured party is entitled to recover, although guilty of negligence at the time which may have greatly contributed to the accident. Such negligence is proper, and should be looked to in mitigation of damages, but not as an answer to the action.
“But a different rule prevails where the road or its agents are not running in violation of some one .or more of said statutory requirements. In such case, if the accident was the result of the plaintiff’s negligence, he cannot recover; for if the accident was caused ljy the gross negligence of the plaintiff, he is considered the author of his own misfoi'tune. If a party is guilty of some negligence, and is injured by the wrongful act of another, such negligence will not prevent a recovery unless the damage could have been avoided by ordinary prudence; but if the party could with ordinary prudence have prevented the accident, but did not use that prudence, and his want of care and his negligence caused the damages, the plaintiff should not recover unless the ■ act was willfully done on the part of defendant.”
[397]*397There are several objections made to this charge which are well taken. The first, that the statute should not have been given in charge at all, as it had nothing to do as a whole with the case, is proper to be first disposed of.
There was no part of this statute, except that providing for keeping the “engineer, firemen, or some other person upon the locomotive always upon the lookout ahead,” which had any application to the ease, and its use, and the attempt to apply Section 4 from it is done in a manner well calculated to mislead the jury. The whole of Section 4 applied by the Court Avas not applicable, as it clearly appears that these animals and wagon tongue struck had not appeared upon the track until the very instant the tongue caught in the engine, and hence no question about an appearance upon the track, and the observance or nonobservance of statutory precautions, when such appearance is made, should "have been alloAvcd to enter into the consideration of the jury.
If any negligence existed, it was not the nonobservance of these statutory duties, but the. nonobservance of the common laAV obligations of the company to haAre the lookout watch for, and all hands prevent, the occurrence of any accidents about to happen from some other cause than an object already on the track. The jury should have been told nothing about the statute further than is suggested, or further than to be told that it had no application.
[398]*398There was, besides, positive error in the instruction against allowing a recovery in plaintiff's favor “unless the act was willfully done on the part of defendant.”
This left the jury to conclude that upon the facts proven they would have the right to find that the act was willfully done, when nothing in the record would justify the conclusion, and nothing in it called for the charge.
The charge is also objectionable in stating the positions insisted upon by plaintiff, .and the denials of defendant, in this, that the positions of plaintiff are enumerated, and it is then added, “the most of these propositions are denied by the defendant;” and then to several of them counter positions of defendant are stated, in which defendant is limited to a special denial, among other things, of the rapid speed rate urged by plaintiff as negligence, to about twelve miles .an hour.
This charge left the *jury to infer that the Court did not understand all of plaintiff’s positions or claims for recovery to be denied, and that defendant, instead of being allowed to controvert plaintiff's position, “that the train was running at a too rapid rate of speed,” by any denial, was limited to an issue of about twelve miles an hour, tendered in this proposition.
It was not incumbent on the Circuit Judge to repeat the positions of parties, but if he sees fit to do it, in the vital form attempted, he must not so state them as to leave the jury to suppose [399]*399the case conceded away, unless that concession appears otherwise in the record.
No other objection to the,charge need be noticed. It is obvious that it, or something else, misled the jury, as indicated by the amount of the verdict. There is nothing, in this case justifying the amount given. The deceased was grossly negligent, and whatever may have been the negligence of the defendant, a proper consideration of the contributory negligence of the deceased should have caused' a different verdict.
The report of the Commission is disapproved, judgment reversed, and case remanded. Defendant in error will pay cost of appeal.