Spalding, Ch. J.
(after .stating the facts). The evidence, of which we have stated what we consider the material parts, may be resolved into a showing that there was no material physical obstruction to the view of the train for nearly a mile from any point in the highway between the north house and the track, a distance of over 277 feet; that although stormy, the storm was not severe enough to prevent anyone looking down the track to the east from seeing the train nearly or quite a" mile; that the deceased’s team was proceeding, during the distance mentioned, at a slow walk, and that he was observed by at least four witnesses part of the way from the house to the track, and at all [49]*49times when so observed had bis fur coat collar turned over his ears, and was looking to the northwest.
One witness saw him from the time he passed the house until he reached the crossing, and stated that he seemed to be looking toward the northwest all the time. It is thus clear that he made no observation calculated to inform himself of the approach of the train from the east. Presumably his attention was attracted by the blowing off of steam of the train standing back and west of the depot. There were two tracks, so it was possible for a train to approach the station from each direction, east and west.
For the purposes of deciding this appeal it must be assumed that no signal was given from the approaching train. Whatever the personal views of the members of this court may be regarding the contributory negligencé of the deceased, the rule on the subject has been firmly established in this state, and we do not feel justified in departing from it, especially in view of its being supported by the great weight of authority from other courts, although counsel for appellant cites a few very respectable authorities which might seem to justify a reversal.
We first proceed to consider the law with reference to the facts, and later shall briefly consider the assignments regarding the admission and rejection of evidence.
The driver of a team about to cross a railroad track at a public crossing in the country is charged with knowledge that such crossing is a dangerous place; that it cannot be assumed that cars are not approaching from either direction, or that there is no danger therefrom. He is bound to assume that cars are coming until satisfied by direct evidence to the contrary, and to that end he must vigilantly use his senses of sight and hearing in endeavoring to avoid injury, and to do all that ordinary care and prudence would dictate to avoid injury, having in view all the surrounding circumstances; and this whether or not any signal is given by an approaching train. Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997, and authorities cited; West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254, and authorities cited; Pendroy v. Great Northern R. Co. 17 N. D. 433, 117 N. W. 531; 23 Am. & Eng. Enc. Law, 765.
Where the exercise of the ordinary precautions of looking and listening, and making an intelligent use of one’s faculties to inform him[50]*50self as to tbe approach of a train, are neglected, and when the exercise of snch precautions would have avoided the accident, negligence is conclusively established. It is apparent in the case at bar that Sherlock would have seen the train had he looked to the east or listened for it any time in the 277 feet between the north house and the crossing, and without much doubt he could have seen it had he looked toward the east at any time after crossing the Sheyenne river, 1,700 feet south of the railroad crossing. Had he looked and seen it, or listened and heard it, after passing the houses, the natural instinct of self-preservation would most certainly have caused him to avoid it. The evidence fails to show that he changed the speed of his team while passing that distance. In fact, it was, as has been stated, proceeding but very slowly and must have been under his control at all times.
If the failure to give a signal from the train was negligence on the part of the defendant, the negligence of the deceased contributed to the accident, and the case, therefore, comes under the rule that where an injury is due to the negligence of both parties no recovery can be had. West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254.
The deceased was not excused hy the weather from the exercise of ordinary care, even if it was sufficiently thick to render it difficult to observe the train or to hear its approach. The greater the danger the greater the care necessary for him to exercise, and the greater the caution necessary to constitute ordinary care. Pendroy v. Great Northern R. Co. 17 N. D. 433, 117 N. W. 531; West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254; Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997.
It it argued that the law of self-preservation must be taken into consideration by this court as an element of great importance, and that the presumption is that the deceased would, in the observance of that law, have stopped had it been possible for him to see the train, and that therefore he did not knowingly and recklessly attempt to cross the track. This law is entitled to great weight in a proper case, and usually may be considered in instances where doubt exists as to one’s ability to see the train or hear it, but no such doubt is disclosed by the record in this case. See supplemental opinion in Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. D. 382, 121 N. W. 830. And the law of self-preservation, as above observed, would have worked in the deceased’s favor, [51]*51and could not well have done otherwise, had he used his senses as he might and should have done. Where all the evidence shows that the deceased was not in the exercise of ordinary care, no inference arising from the instinct of self-preservation is applicable in his favor. Gahagan v. Boston & M. R. Co. 70 N. H. 441; 55 L.R.A. 426, 50 Atl. 146; Baker v. Chicago, R. I. & P. R. Co. 95 Iowa, 163, 63 N. W. 667.
It is also urged that because deceased’s attention appeared to have been diverted by the train standing opposite and west of the depot, the circumstances are rendered exceptional, and that therefore the general rule relating to contributory negligence is not applicable, and that the case, therefore, became one for the jury. Numerous authorities may be found holding that extraordinary conditions and circumstances take cases out of the general rule. See Davy v. Great Northern R. Co. 21 N. D. 43, 128 N. W. 311. But we do not consider this case as coming within such an exception, the rule applicable being rather as laid down by many authorities that it is the plaintiff’s duty to look in both directions for trains. It is obvious that this rule must be emphasized rather than relaxed where there are two tracks at the crossing, rendering it possible for trains to approach from each direction, or to pass each other; and the only diversion of attention, excusing the failure to look and listen, is where the attention is so irresistibly forced to something else as to deprive a traveler of the opportunity to look and listen. Guhl v. Whitcomb, 109 Wis. 69, 83 Am. St. Rep. 889, 85 N. W. 143. The facts in the above cited case are very similar to those of the case at bar. Hain v. Chicago, M. & St. P. R. Co. 135 Wis. 303, 116 N. W. 20; Smith v. Chicago, M. & St. P. R. Co. 137 Wis. 97, 118 N. W. 638; Clemons v. Chicago, St. P. M. & O. R. Co. 137 Wis. 387, 119 N. W. 102; Grimm v. Milwaukee Electric R. & Light Co. 138 Wis. 44, 119 N. W. 833; White v. Minneapolis, St. P. & S. Ste. M. R. Co. 147 Wis.
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Spalding, Ch. J.
(after .stating the facts). The evidence, of which we have stated what we consider the material parts, may be resolved into a showing that there was no material physical obstruction to the view of the train for nearly a mile from any point in the highway between the north house and the track, a distance of over 277 feet; that although stormy, the storm was not severe enough to prevent anyone looking down the track to the east from seeing the train nearly or quite a" mile; that the deceased’s team was proceeding, during the distance mentioned, at a slow walk, and that he was observed by at least four witnesses part of the way from the house to the track, and at all [49]*49times when so observed had bis fur coat collar turned over his ears, and was looking to the northwest.
One witness saw him from the time he passed the house until he reached the crossing, and stated that he seemed to be looking toward the northwest all the time. It is thus clear that he made no observation calculated to inform himself of the approach of the train from the east. Presumably his attention was attracted by the blowing off of steam of the train standing back and west of the depot. There were two tracks, so it was possible for a train to approach the station from each direction, east and west.
For the purposes of deciding this appeal it must be assumed that no signal was given from the approaching train. Whatever the personal views of the members of this court may be regarding the contributory negligencé of the deceased, the rule on the subject has been firmly established in this state, and we do not feel justified in departing from it, especially in view of its being supported by the great weight of authority from other courts, although counsel for appellant cites a few very respectable authorities which might seem to justify a reversal.
We first proceed to consider the law with reference to the facts, and later shall briefly consider the assignments regarding the admission and rejection of evidence.
The driver of a team about to cross a railroad track at a public crossing in the country is charged with knowledge that such crossing is a dangerous place; that it cannot be assumed that cars are not approaching from either direction, or that there is no danger therefrom. He is bound to assume that cars are coming until satisfied by direct evidence to the contrary, and to that end he must vigilantly use his senses of sight and hearing in endeavoring to avoid injury, and to do all that ordinary care and prudence would dictate to avoid injury, having in view all the surrounding circumstances; and this whether or not any signal is given by an approaching train. Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997, and authorities cited; West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254, and authorities cited; Pendroy v. Great Northern R. Co. 17 N. D. 433, 117 N. W. 531; 23 Am. & Eng. Enc. Law, 765.
Where the exercise of the ordinary precautions of looking and listening, and making an intelligent use of one’s faculties to inform him[50]*50self as to tbe approach of a train, are neglected, and when the exercise of snch precautions would have avoided the accident, negligence is conclusively established. It is apparent in the case at bar that Sherlock would have seen the train had he looked to the east or listened for it any time in the 277 feet between the north house and the crossing, and without much doubt he could have seen it had he looked toward the east at any time after crossing the Sheyenne river, 1,700 feet south of the railroad crossing. Had he looked and seen it, or listened and heard it, after passing the houses, the natural instinct of self-preservation would most certainly have caused him to avoid it. The evidence fails to show that he changed the speed of his team while passing that distance. In fact, it was, as has been stated, proceeding but very slowly and must have been under his control at all times.
If the failure to give a signal from the train was negligence on the part of the defendant, the negligence of the deceased contributed to the accident, and the case, therefore, comes under the rule that where an injury is due to the negligence of both parties no recovery can be had. West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254.
The deceased was not excused hy the weather from the exercise of ordinary care, even if it was sufficiently thick to render it difficult to observe the train or to hear its approach. The greater the danger the greater the care necessary for him to exercise, and the greater the caution necessary to constitute ordinary care. Pendroy v. Great Northern R. Co. 17 N. D. 433, 117 N. W. 531; West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254; Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997.
It it argued that the law of self-preservation must be taken into consideration by this court as an element of great importance, and that the presumption is that the deceased would, in the observance of that law, have stopped had it been possible for him to see the train, and that therefore he did not knowingly and recklessly attempt to cross the track. This law is entitled to great weight in a proper case, and usually may be considered in instances where doubt exists as to one’s ability to see the train or hear it, but no such doubt is disclosed by the record in this case. See supplemental opinion in Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. D. 382, 121 N. W. 830. And the law of self-preservation, as above observed, would have worked in the deceased’s favor, [51]*51and could not well have done otherwise, had he used his senses as he might and should have done. Where all the evidence shows that the deceased was not in the exercise of ordinary care, no inference arising from the instinct of self-preservation is applicable in his favor. Gahagan v. Boston & M. R. Co. 70 N. H. 441; 55 L.R.A. 426, 50 Atl. 146; Baker v. Chicago, R. I. & P. R. Co. 95 Iowa, 163, 63 N. W. 667.
It is also urged that because deceased’s attention appeared to have been diverted by the train standing opposite and west of the depot, the circumstances are rendered exceptional, and that therefore the general rule relating to contributory negligence is not applicable, and that the case, therefore, became one for the jury. Numerous authorities may be found holding that extraordinary conditions and circumstances take cases out of the general rule. See Davy v. Great Northern R. Co. 21 N. D. 43, 128 N. W. 311. But we do not consider this case as coming within such an exception, the rule applicable being rather as laid down by many authorities that it is the plaintiff’s duty to look in both directions for trains. It is obvious that this rule must be emphasized rather than relaxed where there are two tracks at the crossing, rendering it possible for trains to approach from each direction, or to pass each other; and the only diversion of attention, excusing the failure to look and listen, is where the attention is so irresistibly forced to something else as to deprive a traveler of the opportunity to look and listen. Guhl v. Whitcomb, 109 Wis. 69, 83 Am. St. Rep. 889, 85 N. W. 143. The facts in the above cited case are very similar to those of the case at bar. Hain v. Chicago, M. & St. P. R. Co. 135 Wis. 303, 116 N. W. 20; Smith v. Chicago, M. & St. P. R. Co. 137 Wis. 97, 118 N. W. 638; Clemons v. Chicago, St. P. M. & O. R. Co. 137 Wis. 387, 119 N. W. 102; Grimm v. Milwaukee Electric R. & Light Co. 138 Wis. 44, 119 N. W. 833; White v. Minneapolis, St. P. & S. Ste. M. R. Co. 147 Wis. 141, 133 N. W. 148.
That the deceased did not exercise the care with which he is charged in law, under the authority of the foregoing, and numerous other cases, is clear. The minds of reasonable men could not disagree on this. It is consequently apparent that, in the absence of reversible error on questions of evidence, the court did not err in directing a verdict for the defendant.
Begarding the errors assigned relating to the admission and rejection [52]*52of evidence, most of such assignments relate to questions concerning the probability or possibility of witnesses hearing the locomotive bell ring or its whistle blow just prior to the accident. As to these assignments, in view of our conclusion that it was the duty of the deceased to make use of his senses by looking and listening for the approach of trains, and regardless of whether signals were given or not, it is apparent that they were immaterial, and if their rejection was error at the time it occurred, it was error without prejudice.
Error is assigned on the overruling of an objection to the admission of the photographic exhibits in evidence, on the ground that there was no evidence that they were true pictures of the situation at the time of the accident. This court held in Higgs v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 446, 15 L.R.A.(N.S.) 1162, 114 N. W. 722, 15 Ann. Cas. 97, that, if properly verified, photographs may be received in evidence to show locations and conditions.
In the case at bar there can be no question of the photographs being correct representations of the place of the accident and its surroundings when taken in the following June. The only ground for the contention that they are inadmissible would seem to be that the accident occurred in .December, when the ground was covered with snow, and that one building' had been removed between the date of the accident and the date of the photographs. The evidence is clear and definite that, except in these two particulars, conditions were the same. We are unable to see how the snow on the ground and the absence of snow can constitute a material difference or have any material bearing on the issues. If it has it is in favor of the plaintiff, because with a foot of snow on the highway, and the wagon of the deceased elevated accordingly above the surface of the dirt road, and the train on the rails not correspondingly raised, the power of observation of the deceased would have been greater when the accident occurred than is shown by the photographs after the snow had disappeared. The removal of the building on the west side of the highway in no manner affected the accuracy of the photographs as to the location of the houses and the track to the east, and the ability of the deceased to perceive a train coming from the east from any point between the houses and the crossing. We are not unmindful of the fact that great care should be exercised in receiving photographic exhibits showing elevations. Much of the power to judge of distances from the [53]*53pictures depends upon the kind of camera used, its focus, and its elevation ; but the photographic exhibits in this case are of such a nature that they do not, we think, misrepresent the situation in the respects for ■which they were offered in evidence. Other assignments are without merit. The judgment is affirmed.
BuRke, J., being disqualified did not participate.