Lyon, J.
In the consideration of the present case it will be assumed that there was sufficient evidence to send the question of the negligence of the defendant company to [220]*220the jury. The only question to be determined is, Does the uncontradicted evidence prove conclusively that the plaintiff was guilty of negligence which contributed directly to the injuries of which he complains? The circuit judge was of the opinion that, under the peculiar circumstances of this case, it was the duty of the plaintiff to have stopped his team while he could do so, that he might the better hear the approach of the train.
It is undisputed that, for almost 150 feet before he reached the spur track, and until he had passed that track, where it was too late to avoid a collision with the train, the plaintiff could not see a train on the main track approaching from the north. Driving as he was between two other teams, upon a plank road, the leading wagon and his own being heavily loaded, the conclusion is irresistible that there must have been sufficient noise in his immediate vicinity seriously to interfere with his hearing the train as it approached the crossing. Besides, the wind blew from the south, which wTould be another obstacle to his hearing the train. He was well acquainted with the crossing, and is chargeable with knowledge of all the circumstances of danger which surrounded him. Moreover, the important fact is undisputed that he knew and remembered that the train was due and should pass the crossing just about the time he reached it. The train was absolutely hidden from his view, and his vision was of no service whatever to him in detecting its presence. So far as seeing the train is concerned, he might as well have been blind. The onty sense which could enable him to learn of the presence of the train was that of hearing, and because of the circumstances just mentioned, that was liable to be entirely insufficient for the purpose while his team was in motion. Had he stopped his team as he approached the spur track, which he might easily have done, it is highly probable that he would have heard the train. At any rate, a delay of a few seconds would [221]*221have avoided the collision and the injury. In view of these conditions, considering that the crossing was a very dangerous one at best, and that the peril was imminent because the train was then due there, of which fact the plaintiff was conscious at the time, is it not reasonable to hold that it was his duty to employ his hearing to the best advantage to discover the approach of the train? And to listen effectually, was it not necessary that he should stop his team?
Many adjudications by this and other courts, claimed to be in point on these questions, were cited by the respective counsel in their very able arguments. While such adjudications are valuable in determining the general principles of law on the subject of negligence, yet, inasmuch as no two cases are exactly parallel in their facts, they do not always, or often, furnish sufficient or safe guides for applying those principles correctly to the facts of any given case. Such application must necessarily be made in each case in the light of its own facts. Thus, for example, the. rule of law is that the negligence of the plaintiff, or his want of ordinary care, which contributed proximately to the injury of which he complains, defeats an action predicated upon a charge of negligence against the defendant. But whether the plaintiff was guilty of such negligence must be determined from the facts of the particular case. Again, if the testimony relating to such negligence is conflicting or, not being conflicting, if the inferences to be drawn therefrom are doubtful or uncertain, the question of negligence is for the jury. But if the evidence is undisputed and the inferences therefrom plain and certain, the question is one of law for the court.
The cases cited on behalf of the defendant to show that plaintiff should have stopped his team and listened for the expected train, seem to us to come nearer this case in their facts than those cited to sustain the opposite view. Those cases on behalf of the defendant, or some of them, are here [222]*222cited, but will not be discussed. Mantel v. C., M. & St. P. R. Co. 33 Minn. 62; Haas v. C. R. & I. R. Co. 47 Mich. 401; Griffin v. C., R. I. & P. R. Co. 68 Iowa, 638; Schaefert v. C., M. & St. P. R. Co. 62 Iowa, 624; Tucker v. Duncan, 9 Fed. Rep. 867; Connelly v. N. Y. C. & H. R. R. Co. 88 N. Y. 346; Wilds v. H. R. R. Co. 24 N. Y. 430; Merkla v. N. Y., L. E. & W. R. Co. 9 Atl. Rep. (N. J.), 680; N. P. R. Co. v. Holmes, 14 Pac. Rep. (Wash. T.), 688; Kennedy v. C. & N. W. R. Co. 68 Iowa, 559. See, also, the late case of Jepson v. C., M. & St. P. R. Co. in United States circuit court of Minnesota (unreported).
The rule to be deduced from these cases is this: If the view of a traveler on the highway approaching a railroad crossing is so obstructed that he cannot see ail approaching train in time to stop his team before colliding with it, if he knows that a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direction of the wind or of noises in the vicinity, whether made by his own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train.
Most of the cases cited by counsel for plaintiff to sustain the opposite view, seem to lack some of the conditions just specified. In some of them the view of the railroad’track in the direction of the approaching train was not entirely cut off. In others the travelers did not know that a train was then due at the crossing. Because of these features it may well be held that the rule above stated is inapplicable to those cases.
Some decisions of this court which it is claimed relieve the plaintiff of the obligation to stop his team, require brief notice. These are Duffy v. C. & N. W. R. Co. 32 Wis. 269; Urbanek v. C., M. & St. P. R. Co. 47 Wis. 59; Eilert v. G. B. & M. R. Co. 48 Wis. 606.
[223]*223In the first of these cases, as in this case, the plaintiff, a traveler on the highway, could not see the approaching train until too near the railroad track to avoid a collision. But, unlike the present case, there is no suggestion that he knew or had reason to believe that a train was about to pass or would probably pass the crossing at or about the time he attempted to do so. It was held, not to be his duty to stop his team, leave his wagon, go upon the railroad track and look along the same for a train. In Urbanek v. C., M. St. R. R. Co., the question we are here considering was not made or considered. In the remaining case of Eilert v. G. B. & M. R. Co., the jury found, presumably on sufficient proof, that had the plaintiff stopped within a reasonable distance of the crossing and listened, he could not have heard the rumbling of the train. If this finding is true, it would have been fruitless for the plaintiff in that case to have stopped his team. It is very obvious that neither of these cases conflict with the rule above stated, requiring the traveler under certain circumstances to stop and listen for an expected train before going upon the railroad track.
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Lyon, J.
In the consideration of the present case it will be assumed that there was sufficient evidence to send the question of the negligence of the defendant company to [220]*220the jury. The only question to be determined is, Does the uncontradicted evidence prove conclusively that the plaintiff was guilty of negligence which contributed directly to the injuries of which he complains? The circuit judge was of the opinion that, under the peculiar circumstances of this case, it was the duty of the plaintiff to have stopped his team while he could do so, that he might the better hear the approach of the train.
It is undisputed that, for almost 150 feet before he reached the spur track, and until he had passed that track, where it was too late to avoid a collision with the train, the plaintiff could not see a train on the main track approaching from the north. Driving as he was between two other teams, upon a plank road, the leading wagon and his own being heavily loaded, the conclusion is irresistible that there must have been sufficient noise in his immediate vicinity seriously to interfere with his hearing the train as it approached the crossing. Besides, the wind blew from the south, which wTould be another obstacle to his hearing the train. He was well acquainted with the crossing, and is chargeable with knowledge of all the circumstances of danger which surrounded him. Moreover, the important fact is undisputed that he knew and remembered that the train was due and should pass the crossing just about the time he reached it. The train was absolutely hidden from his view, and his vision was of no service whatever to him in detecting its presence. So far as seeing the train is concerned, he might as well have been blind. The onty sense which could enable him to learn of the presence of the train was that of hearing, and because of the circumstances just mentioned, that was liable to be entirely insufficient for the purpose while his team was in motion. Had he stopped his team as he approached the spur track, which he might easily have done, it is highly probable that he would have heard the train. At any rate, a delay of a few seconds would [221]*221have avoided the collision and the injury. In view of these conditions, considering that the crossing was a very dangerous one at best, and that the peril was imminent because the train was then due there, of which fact the plaintiff was conscious at the time, is it not reasonable to hold that it was his duty to employ his hearing to the best advantage to discover the approach of the train? And to listen effectually, was it not necessary that he should stop his team?
Many adjudications by this and other courts, claimed to be in point on these questions, were cited by the respective counsel in their very able arguments. While such adjudications are valuable in determining the general principles of law on the subject of negligence, yet, inasmuch as no two cases are exactly parallel in their facts, they do not always, or often, furnish sufficient or safe guides for applying those principles correctly to the facts of any given case. Such application must necessarily be made in each case in the light of its own facts. Thus, for example, the. rule of law is that the negligence of the plaintiff, or his want of ordinary care, which contributed proximately to the injury of which he complains, defeats an action predicated upon a charge of negligence against the defendant. But whether the plaintiff was guilty of such negligence must be determined from the facts of the particular case. Again, if the testimony relating to such negligence is conflicting or, not being conflicting, if the inferences to be drawn therefrom are doubtful or uncertain, the question of negligence is for the jury. But if the evidence is undisputed and the inferences therefrom plain and certain, the question is one of law for the court.
The cases cited on behalf of the defendant to show that plaintiff should have stopped his team and listened for the expected train, seem to us to come nearer this case in their facts than those cited to sustain the opposite view. Those cases on behalf of the defendant, or some of them, are here [222]*222cited, but will not be discussed. Mantel v. C., M. & St. P. R. Co. 33 Minn. 62; Haas v. C. R. & I. R. Co. 47 Mich. 401; Griffin v. C., R. I. & P. R. Co. 68 Iowa, 638; Schaefert v. C., M. & St. P. R. Co. 62 Iowa, 624; Tucker v. Duncan, 9 Fed. Rep. 867; Connelly v. N. Y. C. & H. R. R. Co. 88 N. Y. 346; Wilds v. H. R. R. Co. 24 N. Y. 430; Merkla v. N. Y., L. E. & W. R. Co. 9 Atl. Rep. (N. J.), 680; N. P. R. Co. v. Holmes, 14 Pac. Rep. (Wash. T.), 688; Kennedy v. C. & N. W. R. Co. 68 Iowa, 559. See, also, the late case of Jepson v. C., M. & St. P. R. Co. in United States circuit court of Minnesota (unreported).
The rule to be deduced from these cases is this: If the view of a traveler on the highway approaching a railroad crossing is so obstructed that he cannot see ail approaching train in time to stop his team before colliding with it, if he knows that a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direction of the wind or of noises in the vicinity, whether made by his own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train.
Most of the cases cited by counsel for plaintiff to sustain the opposite view, seem to lack some of the conditions just specified. In some of them the view of the railroad’track in the direction of the approaching train was not entirely cut off. In others the travelers did not know that a train was then due at the crossing. Because of these features it may well be held that the rule above stated is inapplicable to those cases.
Some decisions of this court which it is claimed relieve the plaintiff of the obligation to stop his team, require brief notice. These are Duffy v. C. & N. W. R. Co. 32 Wis. 269; Urbanek v. C., M. & St. P. R. Co. 47 Wis. 59; Eilert v. G. B. & M. R. Co. 48 Wis. 606.
[223]*223In the first of these cases, as in this case, the plaintiff, a traveler on the highway, could not see the approaching train until too near the railroad track to avoid a collision. But, unlike the present case, there is no suggestion that he knew or had reason to believe that a train was about to pass or would probably pass the crossing at or about the time he attempted to do so. It was held, not to be his duty to stop his team, leave his wagon, go upon the railroad track and look along the same for a train. In Urbanek v. C., M. St. R. R. Co., the question we are here considering was not made or considered. In the remaining case of Eilert v. G. B. & M. R. Co., the jury found, presumably on sufficient proof, that had the plaintiff stopped within a reasonable distance of the crossing and listened, he could not have heard the rumbling of the train. If this finding is true, it would have been fruitless for the plaintiff in that case to have stopped his team. It is very obvious that neither of these cases conflict with the rule above stated, requiring the traveler under certain circumstances to stop and listen for an expected train before going upon the railroad track.
The material facts in the present case affecting the question of the alleged contributory negligence of the plaintiff are undisputed, and they admit of no doubtful or opposing inferences. Hence, whether or not those facts establish the negligence of the plaintiff is a question of law for the court. The inference which the circuit court deduced from the facts was that the plaintiff, by failing to stop his team so that he might listen for the expected train most effectually, failed to exercise that reasonable and proper care and caution to avoid injury which the law exacts of him as a condition precedent to his right to recover in this action. We are satisfied that this is the only inference which can properly be deduced from the facts proved:
We hold, therefore, both on principle and authority, that [224]*224because the plaintiff, when traveling on Bridge street towards the crossing, could not see a train approaching from the north until it was too late for him to avoid a collision therewith should it pass when he reached the crossing, because he did nob hear the train, and there were noises near him and an unfavorable wind which necessarily interfered with his hearing it while his team was in motion, and because he knew that a train was due at the crossing at about the time that he reached there, and expected it would then pass the crossing, the law required him to place himself in a more favorable situation to hear by stopping his team and again listening for the expected train before going upon the railroad track. Failing in this, he is chargeable with negligence which contributed proximately to the .injuries of which he complains, and cannot recover damages for such injuries. We conclude that the circuit judge properly directed the jury to return a verdict for the defendant.
See note to this case in 35 N. W. Rep. 278. — Rep.
By the Court.- — Judgment affirmed.
TayloR, J., dissents.