Pennewill, C. J.
delivering the opinion of the court:
This action was brought in the court below to recover damages for the plaintiff’s personal injuries, for injury to his wagon and for the death of his horse, all alleged to have been caused by the defendant’s negligence.
A verdict was rendered at the trial in favor of the plaintiff, and the case is here upon writ of error.
There were eight assignments of error filed, but at the argu[236]*236ment the fifth, sixth, seventh and eighth were abandoned. Those relied upon, therefore, are the first, second, third and fourth.
The particular assignment of error that was argued at length, and relied upon, apparently, with much confidence, was the first, viz.:
That the court below erred in refusing to instruct the jury to find a verdict for the defendant.
The position taken by the plaintiff in error upon this assignment of error is “that, admitting the negligence of the railroad company, yet from all the evidence, giving it the most favorable construction to the plaintiff below, it clearly appears that there was such contributory negligence as will bar recovery in this case.”
The proper understanding and decision of the question thus presented requires that the pertinent facts shall be stated, and with sufficient fullness for the court to determine whether the plaintiff below was guilty of such negligence as would defeat recovery.
It is not controverted that on the second day of June, A. D. 1908, the horse and wagon, driven by the plaintiff were going easterly on the public highway, and a special freight train of the defendant was going southerly, on the westerly south-bound track of the defendant’s railroad, when a collision occurred between the horse and train, at a place known as Stewart’s Crossing, which is between Porter and Kirkwood stations in New Castle County.
The railroad at Stewart’s Crossing consists of two tracks. The south-bound track is the track first crossed by travelers on the public highway coming from the west. Porter’s Station is the railroad station immediately north of Stewart’s Crossing and about three-quarters of a mile away. The view toward the north of a traveler on the public road coming from the west, approaching Stewart’s Crossing, is obstructed by the elevation of the ground, crops, trees and buildings. The public road makes a slightly acute angle with the railroad.
The plaintiff was a butcher living at Kirkwood and had been passing over Stewart’s Crossing once or twice a week for about nine months prior to the accident. On the second day of June, the day of the accident, the plaintiff arose at four or half-past four in the morning. The day was clear and warm. He was on his route [237]*237from six o’clock in the morning until one o’clock in the afternoon, when on his way'home he drove wéstwardly along" the public road toward Stewart’s Crossing. He was seated in his butcher wagon, upon which the front side curtains were up. He could see right out on either side and did not have to lean forward or lean out. His feet were on the footboard of the wagon. Several hundred feet back from the crossing the view of the railroad toward the north is broken by an apple orchard, so that south-bound trains are obscured. At a point about two hundred and twenty-eight feet from the crossing a private lane opens off the public road, through which a view of the railroad can be had for a length thereon of about thirty feet at a point about five hundred or six hundred feet north of Stewart’s Crossing. After leaving this lane the view of the railroad towards the north is obscured by the elevation of the ground, crops, fences, trees and buildings.
On the south side of the road the view of the railroad is obstructed by a high hedge running from the private lane above mentioned down to the right of way of the railroad company.
As the plaintiff passed the entrance of the private lane, he looked through and saw the railroad track, but saw no train coming.
The plaintiff testified that he walked his horse down the road until he was just close enough to the track to be safe, and stopped and looked and listened. This distance he says would not be more than forty feet from the track. He stayed there ‘ ‘ just long enough to listen and see that there was nothing coming; a reasonable length of time.” He was familiar with the fact that trains ran both ways on the tracks of that railroad. He then spoke to the horse and the horse started to walk.
The obstruction to the view of the railroad toward the north ended at a point west of the southbound track (so as to allow a view of the railroad tracks northward as far as Porter’s) at a distance, measured in the middle of the public road, of nineteen feet (according to the plaintiff’s testimony) and of twenty feet (according to the defendant’s testimony). These distances are measured in the middle of the public road westward from the westerly rail [238]*238of the southbound track. The testimony of the plaintiff is to the effect that at a point nineteen feet west of the first rail of the railroad track you can see up the railroad track toward Wilmington.
The plaintiff testified, as follows:
“Q. After you leave the bam, or lane, where is the first point you can see a train coming from the north as you are driving from the west? A. Your horse would be about on the track. Q. Do you mean when you could see to the north on the railroad at all? A. Yes, sir. Q. Could you see anywhere else than directly in front of you? A. On the right-hand side, do you mean? Q. Yes; looking towards Kirkwood. A. No, sir. Q. Why not? A. Because the hedge shut off the view.” * * *
“Q. After you come to this lane going into Mrs. McMullen’s, where you say you looked for a train, what did you do after that? A. I walked the horse down until I was just close enough to the track to be safe and I stopped and looked and listened. Q. About what distance, if you can tell, was that from the track? A. I could not say exactly, but I know it would not be more than forty feet. Q. Could you give us some idea as to how long you stayed there ? A. Just long enough to listen and see that there was nothing coming; a reasonable length of time. Q. Then after you say you had stopped long enough to know that, what did you do ? A. I spoke to the horse and he started to walk, and when I got to where I could see, the train was right there, and the first thing I saw was the train. Q. About how far was the train away from you when you saw it? A. A very little distance. It was right on me. Q. How far out, if you know, in the open space, had you gotten when you first saw this train coming? A. I don’t know— well, it was just when the horse stepped on the track the train was there; just far enough so that I could see. That is all I can say. Q. Then what happened — what did you do? A. I gave the horse a sudden jerk with my right hand. Q. Do you know what happened then? A. No, sir; I don’t.” * * *
“Q. Do you know what the distance was from your horse’s head back to your seat in the wagon? A. I measured a horse similar to the one I drove, and it was sixteen feet. Q. To what part of the seat? A. To the front of the seat where I was sitting. Q. [239]*239You measured that to a butcher wagon similar? A. Yes, sir. Q. And it was a distance of sixteen feet? A. Yes, sir.”
Wilmer J. Falls, a witness produced on behalf of the plaintiff, a surveyor by occupation, testified “ that he made a test as to what point on the public highway, approaching from the west, you would first come to a clear view of a train coming from the north, and found that it was about twenty feet from the center of the southbound track (which, of course, was the track on the west side of the railroad and the one upon which the train came).”
Harry A. Cramer, a witness produced on behalf of the defendant, and a civil engineer, testified that he made tests on the twentieth day of September, 1908, at the crossing and at a point nineteen feet from the first rail of the southbound track, and that he had a clear view to the northwest of any approaching train for 3,000 feet.
Frank J. O’Neill, a witness for the defendant, and the engineer of the train, testified as follows:
“Q. Where were you looking then? A. Looking south. Q. Could you see the public road? A. Yes, sir. Q. Did you see any one on the crossing? A. No, sir. Q. Did you see Mr. Buchanan at all on that day? A. No, sir — I did after he was hurt; yes, sir. Q. Did you see him before he was hurt? A. No, sir; only when we struck the wagon. ” * * *
In cross examination:
“X. How far were you away from the crossing when you first saw Mr. Buchanan’s wagon? A. I should judge maybe two hundred feet.” * * *
“X. Where was his wagon at that time? A. I only saw his horse at that time. X. And you were two hundred feet north of the crossing? A. As near as I can judge.” * * *
“X. Where was his horse, on the highway? A. His horse then seemed to be where the telegraph pole now is; about the end of the hedge or telegraph pole. X. The telegraph pole is right at the end of the hedge is it not? A. Close to it.” * * *
“X. How much of the horse at that time did you see? A. I just saw his head, going up, like as if a man pulled his horse back right quick. That was the first of my seeing the horse. Of [240]*240course, afterwards I saw more of it. X. He came right on out, did he? A. Yes, sir; he got further than that. X. That was the time you saw him snatch his horse’s head up? A. His horse’s head went up like as if a man would pull on the lines to stop his horse. X. Did the horse stop? A. I could not say — no, sir; I suppose he did not. X. Then the horse kept on coming? A. Yes, sir; I suppose he could not stop the horse right on the spot. X. You were there on this engine that was drawing these twenty-eight cars, and in charge of the same; don’t you know whether the hoyse did stop or not? A. You know how a thing like that happens; the time is so short and the rate I was running, you may know how long a time I would have to look and see whether the horse stopped or not. X. Why could you not see the rest of the horse and wagon? A. On account of the embankment there.” * * *
“X. When you saw the horse, why didn’t you then sound your alarm whistle? A. Because I thought he would stop. As I said before, you understand in that time a man ain’t got much time to think, and does the first thing I suppose he thinks of. And then I think maybe about the same time I saw him my first thought was to stop, and I put the brake on just as hard as I possibly could. X. You did that when the man’s horse was practically on top of you? A. I don’t think so. X. You told us a little while'ago that you could not see anything except the head of the horse when you first noticed it, on account of the bank? A. Yes, sir; and I think the man saw me at the same time I saw it, on account of his pulling the horse’s head up. X. You at that time did not see the man at all? A. No, sir.” * * *
“X. Do you prefer to put your emergency brake on rather than sound your alarm whistle when you see a thing like that? A. The first thing I thought of was to put the brake on, because it was done that quick (witness indicates by snapping his fingers), and I did not have time to stop and think of these things. X. As a matter of fact, you saw it back two hundred feet from the crossing and went on sounding no alarm, but put your brake on? A. I put the brake on, but I never thought of the alarm. In fact, I did not think anything about it, it was done.so quickly.”
[241]*241From the foregoing statement of the testimony, the following may be taken to be true and undisputed:
1. That the plaintiff’s view of the railroad tracks north of Stewart’s Crossing was wholly obstructed except at McMullen’s lane, and at a point nineteen or twenty feet from the crossing.
2. That the plaintiff looked through the lane as he passed it and saw the railroad for the length of about thirty feet, but did not see any train.
3. That he proceeded very slowly, his horse in a walk, and at a point about forty feet from the crossing stopped and listened, but heard nothing.
4. That he then continued on, his horse still in a walk, and did not stop until the horse was struck by the engine.
5. That after he had passed McMullen’s lane it was not possible, because of the obstruction, to see the train until he, sitting in the wagon, was about 19 feet from the nearest track.
6. That when the seat of the wagon was nineteen feet from the track the horse’s head was not more than three feet from the track, according to the plaintiff’s testimony, which for the purposes of the question we are now considering we must assume to be true.
7. That at a point nineteen feet from the westerly rail of the southbound track an unobstructed view of the railroad in a northerly direction could be had for a distance of 3,000 feet or more.
Should the court below, upon the testimony, have directed the jury to return a verdict for the defendant ? That is the important question to be decided in this case.
From such facts does it clearly appear that the plaintiff's own negligence proximately contributed to his injuries?
The following principles of law are so well settled in this state that they need only to be stated. They are fully recognized and affi-rmerl in the well-considered opinion delivered in this court in the case of Queen Anne’s Railroad Company v. Reed, 5 Penn. 226, 59 All. 860, 119 Am. St. Rep. 301.
"If there is any evidence of negligence, upon which the jury can properly find a verdict, ot if the conclusion to be drawn there[242]*242from is debatable, or rests in doubt, though the facts are undisputed, or if the evidence is conflicting in regard to any material fact, it becomes a question of fact for the determination of the jury.”
“Although the plaintiff may show that the injury complained of was in consequence of the negligence of the defendant, yet it does not conclusively determine that the injury was legally attributable to such negligence, because it may equally appear that the injury was due to the fault or negligence of the person injured. * * * The burden of establishing contributory negligence, whenever it is relied upon in defense of the action, rests upon the defendant; proof of such negligence may,, however, arise out of the testimony of the plaintiff in the first instance.”
“It is quite impossible to lay down any definite rule by which to determine whether the question of contributory negligence is to be found, under the evidence, as a conclusion of law, or should be submitted to the jury as a question of fact. The determination of the question must necessarily be controlled by the facts and circumstances of the particular case. And the court will not decide it as one of law, although the weight of the evidence may seem to be on one side or the other, if the testimony be conflicting, or if the conclusion to be drawn therefrom is doubtful and uncertain. In such a case the court will not, and should not, attempt to weigh and determine the effect of the evidence involved in the issue of fact. For under such circumstances the question clearly falls within the province of the jury.
“If, however, it clearly appears from the evidence that there was contributory negligence, proximately entering into and contributing to the accident, at the time of its occurrence, it is the duty of the court to so find, as a matter of law.”
Ordinarily in actions for personal injuries, the cases in which the court is warranted in ordering a nonsuit, or directing a verdict for the defendant, “are confined to those where it is clearly manifest as a conclusion of fact, or by necessary exclusive inference, that those acts which the law regards as negligent have not been shown", or to those in which contributory negligence has been shown.”
[243]*243“The law regards a railroad crossing as a place of danger. The very presence of such a crossing is notice to the person, approaching or attempting to cross it, of the danger of colliding with a passing engine or train. And because of the danger, there is imposed upon such person the duty of reasonable care and caution, and the reasonable and ordinary use and exercise of his senses of sight and hearing for his own and others’ safety and protection; and he is required, at least, to look and listen for an approaching engine or train before venturing to cross the track. And, if, as it has been said, he fails to exercise such ordinary care, whatever danger he could thereby have discovered and avoided, he incurs the peril of, if he proceeds, and for an injury arising under such fault, he is left without remedy.”
“One about to cross a railroad track by the public highway, where the liability to the collision is great, will be held precluded, by his contributory negligence, from a recovery for an injury, if he drives upon the track without looking for an approaching train, even though the railway company has neglected to sound the alarm which the statute requires of it at such places.”
“Although the view of the road is obstructed, that fact does not relieve the traveler from the obligation to look and listen for an approaching train. And the observance of this legal duty applies as well to a special as a regular train. The very fact of the existence of such obstruction, and particularly when it is known to the traveler, imposes additional care and caution upon him on approaching the track.
“Both the traveler and the company are charged with the same degree of care, the one to avoid being injured, and the other to avoid indicting injury. The care of each must be commensurate with the risk and danger involved. And when it is known to the traveler and servants of the company that a crossing is very dangerous by reason of its surroundings, it is incumbent upon both parties to exercise additional care and caution.”
It appears from the testimony in this case, and it is uncontradicted, that the plaintiff’s view of the railroad in a northerly direction was obstructed for a distance of nearly six hundred feet before reaching a point about nineteen feet from the crossing, so [244]*244that it was practically impossible for him to see the approaching train until he reached such a point. It is admitted by the plaintiff that he was very familiar with the obstructions and other conditions existing near the crossing and along the highway leading to it. It was, therefore, obligatory upon him, because of such conditions, and his familiarity therewith, to use a higher degree of care and caution than would have been necessary in traveling upon a highway approaching a railroad where the view to an approaching train was clear and unobstructed.
While there can be no question about the law applicable to this case, which differs not at all from that which governed and controlled the court in the Reed case, supra, there may be some difficulty in applying the law to the facts of this case.
And, inasmuch as the Reed case was frequently referred to during the argument, it may be as well to say here that the facts in that case upon which contributory negligence was predicated, were not at all similar, or even analogous to those of the present case. In the course of the opinion in the former case the court said:
‘ ‘ The reasonable explanation of the increase of speed when the deceased was within one hundred feet of the railroad crossing is that he then became conscious of the fact that a train was approaching, and that he attempted thereby to clear the crossing before the train reached that point. If this was so, it was a clear case of negligence. He might have stopped and turned aside; but if, instead of doing so, he attempted to race with a locomotive, he did so at his own risk, and the defendant company is not responsible for the consequences of such conduct. Whether the speed at which he is proved to have approached the crossing did or did not indicate an intention to cross ahead of the train, it certainly shows a lack of that care and caution which were obligatory upon him under the circumstances at that time. Indeed, it seems quite inevitable from the evidence that there was a total absence of reasonable care and caution on the part of the deceased in approaching the crossing, in that he made no effort whatever to ascertain whether a train was approaching, or to avoid the danger imminent at the time he attempted to make the crossing.”
[245]*245Obviously, a decision based upon the evidence in that case cannot be expected to control this court in determining the case at bar, where the evidence is essentially different, upon the question of contributory negligence. '
We can see no reason for commenting upon, or even referring to the many cases cited by counsel in their briefs, because there can be no dispute about the law, and, moreover, whenever the question to be determined involves contributory negligence,the decision must depend upon the facts of the particular case. It is impossible to find two cases so similar in their facts, in this regard, as that the decision of the one will necessarily control the decision of the other.
It is probably true, as counsel for the defendant stated, “that the difficulty in this case seems to grow out of the fact that the point at which the plaintiff was able to use his sense of sight was much closer than that in any case where the duty of the traveler has been considered by the courts of our state.”
There is one case cited by the defendant to which we desire briefly to refer. It is undoubtedly the strongest authority cited on that side, and the one more nearly approaching in its facts, the case before the court, than any of the others.
It is the case of P. & R. R. Co. v. Peebles, 67 Fed. 591, 14 C. C. A. 555. We will not attempt to give the material parts of the testimony, other than that “there was a clear view to the cut at a point twenty feet back from the track.”
The court in concluding their opinion said:
“If he attempted to cross the track under these circumstances, without taking any precaution for his own safety, he certainly took the risk of his life in his own hands; and from the proofs but one satisfactory conclusion results- — that he did not look or listen for the train. As we have seen, others, under less favorable conditions, heard it; and the presumption is overpowering that, if he had listened for it (waiving the question whether the whistle was blown in time), he could have heard the rumble and roar of the train, which the plaintiff’s witnesses all heard; and, if he could not see it while his vision was obstructed by the toolhouse, he certainly had the opportunity of looking for it before he reached [246]*246the track. To our nrnd it is clear that the accident would not have happened had the decedent observed the due measure of care which the situation demanded of him. There was contributory negligence, and the defendant was entitled to binding instructions.”
But in that case there were two circumstances that distinguish it from the present one: (1) It does not appear that the deceased stopped and listened at any point near the crossing; and (2) it does appear “that he had the opportunity of looking for the train before he reached the track,” and it was therefore clear to the court that the accident would not have happened if the decedent had observed due care. The following are some of the other cases cited by the defendant, but we think none of them are so close to the one at bar as that to which we have referred: Railroad Co. v. Lacey, 94 Va. 460, 26 S. E. 834; McClure v. Railroad Co., 41 Pa. Super. Ct. 227; Shufelt v. Railroad Co., 96 Mich. 327, 55 N. W. 1013; Railroad Co. v. Righter, 42 N. J. Law 181; Walsh v. Pa. R. R. Co., 222 Pa. 164, 70 Atl. 1088; Leithead v. Railroad Co., 78 N. J. Law 148, 72 Atl. 453; Weiss v. Railroad Co., 76 N. J. Law 348, 69 Atl. 1087; Railroad Co. v. State, 104 Md. 659, 65 Atl. 434; Southern R. R. v. Jones, 106 Va. 412, 56 S. E. 155; Stokes v. Southern R. R. Co., 104 Va. 819, 52 S. E. 855; Smith v. Railroad Co., 137 Wis. 97, 118 N. W. 638; Railroad Co. v. Ackerman, 144 Fed. 959, 76 C. C. A. 13; Smith v. Railroad Co., 87 Me. 343, 32 Atl. 967; Mankewicz v. Railroad Co., 214 Pa. 387,63 Atl. 604, and many other Pennsylvania cases.
There is one case cited by the plaintiff below to which we wish to make particular reference, and that is Winstanley v. Chicago etc., R. R. Co., 72 Wis. 375, 39 N. W. 856. In the course of a very clear and able opinion the court said:
“The only remaining error complained of is the refusal of the court to direct the jury to render a verdict for the defendant. This brings us to a consideration of the facts and the merits of the case. The main reasons given why the court should have taken this case from the jury, and directed a verdict, are that the deceased, when his team was about four feet from the rail of the track, could have seen, had he looked in that direction, the [247]*247approaching train in time to have stopped his team; and he did not look, or he would have stopped his team before they got so near the track.
“That a person approaching a railroad crossing should look and listen, if looking and listening would do him any good in protecting him from injury, before attempting to cross over, has been as persistently insisted upon by this court as by any court in the country or in England. It is not common care and prudence for such a person to drive on heedlessly, without taking such reasonable and natural precautions to secure his safety. If, for a considerable distance from the crossing, his view towards an approaching train is cut off by buildings, embankments, or other obstructions, greater caution should be used, by listening or by doing other things which a reasonably prudent man would be likely to do, in order to ascertain whether a train was so near the crossing as to make dangerous or hazardous his attempt to cross over in front of it. What such other things are must be determined by the facts of that particular case, and they cannot be classified by any general rule. If the view.of such a person is cut off until he is near the crossing, and he could then, by looking, see the danger in time to stop or in any way avoid a collision with the train, he should do so, and as a general rule it would be such a want of common care and prudence as to preclude his recovery of damages resulting from such a cause if he does not do so. In any case, it would be heedless and reckless to drive or go on without any precautions for his safety. These principles have been urged and made espedally emphatic, and carried to the utmost extent consistent with reason, in many cases in this court.
“The deceased and his fellow workman jumped into the wagon, headed towards the crossing, only about twenty-six feet away. He drove upon a walk — probably a fast walk. Had he looked or listened he could not have seen or heard the train until his horses’ heads were within about four feet of the rail on the crossing. Had he looked then, instantly, he would have seen the front box car within a very few seconds from the crossing. It was almost right upon him. It is quite too strict a duty to have required him to look instantly, when he could have first seen the first [248]*248comer of it, as it appeared, moving in sight, just past the corner of the building, and here an instant counts much. The horses, after that could take but a step to bring their heads over the track and feet near the rail, where the car caught upon the collar of the nearest horse. The team could scarcely have been said to be on the track. They did stop; at least, they did not go further forward. The lips of the driver are sealed in death, and we cannot tell what he saw or when he looked, or how the circumstances of this most critical situation and condition of danger appeared to him. He evidently saw his danger, and it would be natural that he would make every effort to escape it. Did he see the train before his horses’ heads were over the track, and while they were within those four feet of the rail? Did he look? Did he stop his team as soon as he could after seeing the train, or try to do so? Who can say? Who knows? We cannot know that he did not try to stop his team, and that he did not look as soon as he could reasonably, after looking would be of any use. The emergency is too great and the danger too sudden for deliberation, and for aught we know he did make every reasonable effort to stop bis team in time. His culpable negligence under such circumstances must be clearly shown to defeat his action. Does it clearly appear, or was it clearly shown by the evidence we have? We think not. The peculiar circumstances of this emergency are too much shrouded in doubt and uncertainty to now cooly sit in judgment over the deeds of omission or commission of the unfortunate driver of that team, and determine with any certainty whether he did too little or too much within such narrow limits of time and space.
“This is very far from such a case of clear culpable negligence as the court, as a matter of law, would be warranted in so declaring, and no case has been cited of sufficient analogy in its facts to be authority for so holding. On the question of the contributory negligence of the deceased in such a case the verdict of a jury ought to be taken as conclusive. ‘ If the inferences to be drawn from the testimony are doubtful or uncertain, the question of negligence is for the jury’.”
It will be observed that in the Wisconsin case the driver of the wagon did not look or listen at all until his horses’ heads were [249]*249within four feet of the rail; and moreover, he was killed, and could not testify as to what he did or how the accident happened. It was, therefore, not so strong a case for the plaintiff as the case here, where the plaintiff testified that he stopped about forty feet from the track and looked and listened, and did not, and could not, see the train in time to avoid the accident.
In Guhl v. Whitcomb, 109 Wis. 75, 85 N. W. 144, 83 Am. St. Rep. 889, the court said:
“The rule stated in these decisions is that the duty to look and listen is absolute where the opportunity exists. In most of these cases the exception in favor of reasonable diversion of attention was urged, and its applicability was apparent if those words be used in the sense now contended for by respondent. It is considered, therefore, that all exception to the duty to look and listen at a railroad crossing resulting from diversion of attention has been repudiated by this court except in cases where the attention is so irresistibly forced to something else as to deprive the traveler of the opportunity to perform that duty. This rule is general, and applies as well to the driver of a team as to the foot passenger, with the difference, however, that it is much more difficult to conceive circumstances surrounding the latter which can at once deprive him of the opportunity to observe and the ability to stop short of the actual peril. With him a single step, wholly under his control, crosses the danger line. With the driver, many things may complicate the situation — momentum, conduct of horses, multiplication of perils, and the like.”
It would extend this opinion beyond reasonable limits if we should comment upon, or quote from, other cases so carefully and industriously collected and briefed by counsel on both sides.
The following are some of the many cases cited by the plaintiff: Smith v. Chicago, etc., R. R. Co., 137 Wis. 97, 118 N. W. 638; Kenney, v. Hannibal, etc., Railroad Co., 105 Mo. 270, 16 S. W. 837; Penna. R. R. Co. v. Righter, 42 N. J. Law 180; Plummer v. Eastern R. R. Co., 73 Me. 591; Chicago R. R. Co. v. Hedges, 105 Ind. 398, 7 N. E. 801; Chicago & N. E. R. Co. v. Miller, 46 Mich. 532, 9 N. W. 841; Pearce v. Humphreys (C. C.) 34 Fed. 282; Kellogg v. Railroad Co., 79 N. Y. 72; Hubbard v. Boston & Albany R. R. Co., [250]*250162 Mass. 132, 38 N. E. 366; Hicks v. Railroad Co., 164 Mass. 424, 41 N. E. 721, 49 Am. St. Rep. 471; Elston v. Railroad Co., 196 Pa. 595, 46 Atl. 938; Cromley v. Pa. R. R. Co., 208 Pa. 445, 57 Atl. 832, and other cases.
We have examined all of the authorities cited, but such examination has not been helpful in the decision of this case, for the reason that such decision depends so largely upon the facts in the case. We have not, of course, found any exactly like the one before us.
It may be said, however, as a result of such examination, that we have found practically all of the cases cited by the defendant below to have one feature which distinguishes them from the case we are considering, and that is: the clear conviction or belief of the court that the plaintiff had the opportunity or ability to see the approaching train in time to avoid the accident if he had exercised due care in the use of his senses.
Such a feature may be a very proper test in deciding whether in cases like this, the question of contributory negligence should be determined by the court as a matter of law, or by the jury as a question of fact.
This court in the Reed case above referred to, when speaking of contributory negligence said: “And the court will not decide it as one of law, * * * if the conclusion to be drawn from the evidence is doubtful and uncertain.” It must clearly appear before the court can so find, as a matter of law.
We will endeavor to apply this rule, or test,to the present case.
In the first place, it is manifest from the evidence that the plaintiff was not proceeding rapidly and recklessly before he reached the crossing. Neither was he “racing with the locomotive” as the court suggested in the Reed case. On the contrary it is undisputed that the plaintiff stopped his team about forty feet from the crossing and listened, his view being entirely obstructed. He heard nothing, and continued on — his horse in a walk. Forty feet is a very short distance along the highway, and the place where the plaintiff stopped and listened, therefore, was very near the crossing. And he was in a wagon and not on foot. Certainly it could not be contended that the plaintiff was clearly negligent [251]*251before he had reached the point where the obstruction ended, and he could see the tracks north of the crossing.
Then the question is, was he clearly negligent after he reached such point? Unquestionably he was, if he could, by the exercise of due care and caution, have looked and seen the train in time to avoid the accident. It was his duty, before driving upon, or attempting to cross, the tracks, to look and see if a train was coming , if he had the opportunity to do so, and if by so doing he could have protected himself from injury. And, as was said in the Reed case, if he failed to exercise such ordinary care, that is, to look and listen, whatever danger he could thereby have discovered and avoided, he incurred the peril of, if he proceeded, and for an injury arising under such fault, he was left without remedy. He cannot recover for injuries to which his own negligence proximately contributed, or which, by the exercise of due and ordinary care he could have avoided.
Is it clear that the plaintiff could, by the exercise of ordinary care, have seen the train as he approached the crossing, in time to have avoided the accident?
He testified as follows: “When I got to where I could see, the train was right there, and the first thing I saw was the train. It was right on me, when I saw it. It was just when the horse stepped on the track the train was there; it was just far enough in the open space so that I could see. That is all I can say. I gave the horse a sudden jerk with my right hand. ’' In reply to the question, “Do you know what the distance was from your horse’s head back to your seat in the wagon?”, the plaintiff said: “I measured a horse similar to the one I drove, and it was sixteen feet, to the front of the seat where I was sitting.”
The testimony of the plaintiff was very materially corroborated by the engineer of the train, a witness called by the defendant, who testified that he did not see the plaintiff, “only when he struck the wagon.” He saw the horse only when the train was about two hundred feet from the crossing, the horse being then about the end of the hedge or at the telegraph pole. He just saw his head at that time going up like as if a man pulled his horse back right quick, and could not see the body of the horse, the [252]*252wagon or the driver on account of the obstructions. “The horse kept on coming. I suppose he could not stop the horse right on the spot.”
It appears, therefore, from the testimony of these two witnesses that when the plaintiff reached a point where he could see the train it was right there — the head of his horse within less than three feet of the nearest rail, for the side of the engine projects somewhat beyond the rail. It also appears that the plaintiff jerked his horse’s head, his purpose presumably being to stop him. The horse did not stop, but we do not know whether it was because of fright, and the plaintiff’s inability to control him, or not.
We do not think it is clear from the testimony that the plaintiff could, under the conditions and circumstances existing at the time, by the exercise of reasonable and due care,have avoided being injured.
We do not say the plaintiff below was not guilty of contributory negligence which proximately contributed to his injuries, but we do say it was not so clearly shown by the evidence as to justify the court in holding as matter of law that there was such negligence. Whether there was or not was a question proper to be submitted to and determined by the jury under all the evidence in the case.
There are three other assignments of error to be considered, although they were not strongly insisted upon or argued. They are the second, third and fourth. The second is: That the court erred in refusing to instruct the jury as follows:
“If, as a person approaches a railroad crossing his line of vision is obstructed, he is bound to look for approaching cars in time to avoid collision with them, and if he does not look ánd for this reason does not see an approaching train until it is too late to avoid a collision, and he is thereby injured, he is guilty of negligence and could not recover therefor.”
The prayer upon which this assignment of error is based is taken from a charge delivered in the case of Knopf v. Railroad Co., 2 Penn. 392, 46 Atl. 747, and the instruction given was a very proper and appropriate one under the evidence in that case. It [253]*253would not have been improper or inappropriate in the present case.
The question is was it reversible error-for the court to refuse or fail to charge the jury in the very language embodied in the prayer?
We think it was not error if the court charged substantially as the defendant requested. Did they so charge?
The court said: “If a person drives up to a railway crossing and upon it, not only without stopping but without looking out and listening to ascertain if any cars are approaching, and a collision and injury occurs to him from a passing train, which would have been prevented had the person so injured exercised the proper and ordinary prudence, care and caution mentioned, su,ch person would be guilty of contributory negligence and could not recover.” * * * “If the negligence of the plaintiff contributed to or entered into the accident, at the time of the injury the plaintiff would be guilty of contributory negligence and could not recover.” * * * “If you shall believe that the negligence of the plaintiff himself contributed to the injuries complained of, your verdict should be for the defendant.”
And the court below further instructed the jury as follows:
“It has been held by the courts of this state that the law regards a railroad crossing as a place of danger. The very presence of such a crossing is notice to the person, approaching or attempting to cross it, of the danger of colliding with a passing engine or train. And because of the danger, there is imposed upon such person the duty of reasonable care and caution, and the reasonable and ordinary use and exercise of his senses of sight and hearing for his own and others’ safety and protection; and he is required, at least, to look and listen for an approaching engine or train before venturing to cross the track; and if, as it has been said, he fails to exercise such ordinary care, whatever danger he could thereby have discovered and avoided, he incurs the peril of if he proceeds, and, for an injury arising under such fault, is left without remedy.”
The court, therefore, charged the jury that it was the duty of the plaintiff to “look and listen;” that he was guilty of contributory negligence if he failed to perform such duty, and that for any [254]*254injury he received, which he could have avoided by the performance of such duty, he would be left without remedy — he could not recover.
Manifestly this means the same as the defendant’s prayer. It is just as favorable to the defendant, and must have been clear to the jury.
The defendant’s third and fourth assignments of error are the same in principle, and will be considered together.
The error assigned in the third, is that the court belowadmitted the testimony of a witness with respect to points in the public road at which a train could be seen approaching the crossing, when it appeared that the witness, at the time he made the examination was on foot and not in a wagon, and no train was approaching the crossing.
The error assigned in the fourth, is that the plaintiff was permitted to testify respecting certain tests made by him as to points in the public road at which a train could be seen approaching the crossing, when it appeared that at the time of making said test no train was in fact approaching the crossing.
The defendant’s contention is that at the time of such examination and tests the conditions were different from those that existed at the time of the accident, and that the testimony was therefore inadmissible, and prejudicial to the defendant. It is not claimed, however, that there was any change in those things that obstructed the view of the railroad to the north of the crossing. Conditions were the same in that regard. The witness who was on foot when he made his examination testified that nineteen feet west of the track he would have a clear view of a train approaching the crossing from the north. He said in cross examination that there was no train approaching at the time, but he could see up the track.
It seems to us to be quite immaterial whether a train was approaching or not, because if there was a clear view up the track, there would necessarily be a clear view of a train when approaching from that direction.
And, when the examination or tests were made in the' open, that is, at a point nineteen feet west of the track, which was [255]*255between the obstruction and the nearest rail, it could make no difference whether the observer was on foot or in a wagon. The view would be just as clear to a person in an open wagon as to a person on foot.
The evidence was clearly admissible, subject of course to proper cross examination and comment.
The judgment of the court below is affirmed.