Montgomery, J.
The question of most importance involved in this case is that of the contributory negligence of the driver' of plaintiff’s vehicle when they approached the crossing where the accident occurred. The scene of the accident is indicated by the diagram appended to the opinion of Mr. Justice Grant. The highway and the railroad do not meet at right angles, so that in traveling from the east towards the railway track the view would not be directly in the face of an approaching train. The night when the injury occurred was very dark. The evidence shows that when approaching the crossing the horses were on a walk. No stop was made for the purpose of listening, but the driver and those in the vehicle testified that they looked for an approaching train, but saw none, and that they listened and did not hear any signal. The engine was running backward, and the testimony is conflicting as to whether there was any light at the rear end of the cab. The question presented is whether it was the duty of the driver, under the circumstances, to bring his team to a stop in order to listen for an approaching train.
Our decisions have settled the law as follows:
First. A railroad track is, in and of itself, a warning of danger, calling upon one about to cross to use his senses, and to look and disten for approaching trains. Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274,
Second. It is not incumbent in all cases for the driver to stop his team, if. the track is clear, and he can safely rely on his sense of sight. Guggenheim v. Railway Co., [309]*30966 Mich. 158; Thomas v. Railway Co., 86 Id. 504; Richmond v. Railway Co., 87 Id. 380.
Third. As to whether, in a particular case, the driver is justified in relying upon his sense of sight alone, must, we take it, depend upon the circumstances of the case presented.
No ease precisely analogous to the one under consideration has heen decided by this Court. In Mynning v. Railroad Co., 64 Mich. 93, it appeared that on a dark and stormy night the deceased was killed while crossing the track, under circumstances which showed conclusively the negligence of the railroad company; that he was acquainted with the railroad crossing at the street in question; that he walked at a rapid pace towards and upon the railroad track, without checking his speed, or stopping or looking or listening, or taking any precaution whatever, to ascertain whether a train was about to pass; that others who were about to cross, whose opportunities for observation were no better than those of deceased, saw and heard the train. Mr. Justice Ciiahpijn, in rendering the opinion of the Court, said:
“ Ordinary care would have required him to at least look up and down the track before crossing; and, if the night was so dark as to make it difficult to distinguish a train approaching, then ordinary care would have called upon him to resort to his sense of hearing, and to pause, if need be, and listen, before entering upon the place of danger."
In Brady v. Railroad Co., 81 Mich. 616, it appeared that the driver of the vehicle was familiar with the crossing; that the railroad track, for some distance before crossing the highway, runs through an orchard; that the trees coming near the surface of the ground, together with other trees and bushes there, partly obscured the view of persons going southward of any train going to the southeast. The track crosses the highway obliquely. The highway extends from north to south, and the track runs in a [310]*310north-westerly and south-easterly direction. It appeared that the plaintiff, sitting on the hounds of his wagon between the two hind wheels, drove upon the track without stopping, although he testified that he looked in both directions. The Court held as matter of law that he was guilty of contributory negligence. In the opinion Mr. Justice Long states:
“The circumstances stated by the plaintiff himself show conclusively that he was not using ordinary care in approaching the crossing. Here was a crossing so much obstructed ■ by intervening objects that, according to his testimony, he could not see a train coming- from that direction — riding, as he was, upon the hounds of his wagon — until he was within 20 or 25 feet of the crossing, and then only a little distance up the track, — some few rods. He was riding with his back turned in the direction from which the train was approaching, and he knew that it was about time for its approach; and yet he drove along and upon the track without stopping; and even when his horse halted on reaching the track he urged her forward with the lines. * * * It was shown further that there was a mill near the crossing, which was in operation, and creating some noise and confusion. Others standing near there saw. the train approaching, and had heard the sounding of the whistle at the crossing above. Some of them attempted to call the attention of the plaintiff to the train's approach, but were unable to do so, as he appeared to take no note of what was passing. As the facts are presented by this record, it was the duty of the plaintiff to have stopped his team, and to have taken some precaution to ascertain if the train was approaching, which he knew was about due.''
And further, it was said:
“A greater duty was imposed upon the plaintiff in.the present case by the fact that he knew the crossing to be a dangerous one. He knew its condition, and that he would be unable to see the train until arriving .at the crossing. He had no right to close his ears, and drive along without stopping, when he must have known that the noise of his wagon and of the mill would shut off the sound from the approaching train.''
In the present case there was no obstruction other than [311]*311the darkness, which, of course, would not have prevented the plaintiff and her companions from seeing a headlight. The sense of sight was therefore as safe a guide as in the daytime, unless it be held that travelers are guilty of contributory negligence as matter of law in not anticipating that trains will be run in the open country without headlights. We think the law ought not to be so. It is most unusual and. extraordinary for this to occur. And we think it should be at least a question for the jury as to whether a traveler is in fault in failing to anticipate and guard against such an unusual thing as the running of a train without a headlight. The case might be different in a yard where switching is done, and where cars are switched in the nighttime without the use of a headlight, as was the fact in the Mynning case.
Exception is taken to the language of the court in that portion of the charge where it is said:
“ The blowing of the whistle and the ringing of the bell a mile away from a crossing would, of course, give no warning to people about to cross a railroad track.”
The court added this :
“The object of it is to warn people who cross the railway track that a train is approaching, so that the warning should be given within such a reasonable distance as would fairly notify people who are about to cross the track of the approach of a train.”
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Montgomery, J.
The question of most importance involved in this case is that of the contributory negligence of the driver' of plaintiff’s vehicle when they approached the crossing where the accident occurred. The scene of the accident is indicated by the diagram appended to the opinion of Mr. Justice Grant. The highway and the railroad do not meet at right angles, so that in traveling from the east towards the railway track the view would not be directly in the face of an approaching train. The night when the injury occurred was very dark. The evidence shows that when approaching the crossing the horses were on a walk. No stop was made for the purpose of listening, but the driver and those in the vehicle testified that they looked for an approaching train, but saw none, and that they listened and did not hear any signal. The engine was running backward, and the testimony is conflicting as to whether there was any light at the rear end of the cab. The question presented is whether it was the duty of the driver, under the circumstances, to bring his team to a stop in order to listen for an approaching train.
Our decisions have settled the law as follows:
First. A railroad track is, in and of itself, a warning of danger, calling upon one about to cross to use his senses, and to look and disten for approaching trains. Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274,
Second. It is not incumbent in all cases for the driver to stop his team, if. the track is clear, and he can safely rely on his sense of sight. Guggenheim v. Railway Co., [309]*30966 Mich. 158; Thomas v. Railway Co., 86 Id. 504; Richmond v. Railway Co., 87 Id. 380.
Third. As to whether, in a particular case, the driver is justified in relying upon his sense of sight alone, must, we take it, depend upon the circumstances of the case presented.
No ease precisely analogous to the one under consideration has heen decided by this Court. In Mynning v. Railroad Co., 64 Mich. 93, it appeared that on a dark and stormy night the deceased was killed while crossing the track, under circumstances which showed conclusively the negligence of the railroad company; that he was acquainted with the railroad crossing at the street in question; that he walked at a rapid pace towards and upon the railroad track, without checking his speed, or stopping or looking or listening, or taking any precaution whatever, to ascertain whether a train was about to pass; that others who were about to cross, whose opportunities for observation were no better than those of deceased, saw and heard the train. Mr. Justice Ciiahpijn, in rendering the opinion of the Court, said:
“ Ordinary care would have required him to at least look up and down the track before crossing; and, if the night was so dark as to make it difficult to distinguish a train approaching, then ordinary care would have called upon him to resort to his sense of hearing, and to pause, if need be, and listen, before entering upon the place of danger."
In Brady v. Railroad Co., 81 Mich. 616, it appeared that the driver of the vehicle was familiar with the crossing; that the railroad track, for some distance before crossing the highway, runs through an orchard; that the trees coming near the surface of the ground, together with other trees and bushes there, partly obscured the view of persons going southward of any train going to the southeast. The track crosses the highway obliquely. The highway extends from north to south, and the track runs in a [310]*310north-westerly and south-easterly direction. It appeared that the plaintiff, sitting on the hounds of his wagon between the two hind wheels, drove upon the track without stopping, although he testified that he looked in both directions. The Court held as matter of law that he was guilty of contributory negligence. In the opinion Mr. Justice Long states:
“The circumstances stated by the plaintiff himself show conclusively that he was not using ordinary care in approaching the crossing. Here was a crossing so much obstructed ■ by intervening objects that, according to his testimony, he could not see a train coming- from that direction — riding, as he was, upon the hounds of his wagon — until he was within 20 or 25 feet of the crossing, and then only a little distance up the track, — some few rods. He was riding with his back turned in the direction from which the train was approaching, and he knew that it was about time for its approach; and yet he drove along and upon the track without stopping; and even when his horse halted on reaching the track he urged her forward with the lines. * * * It was shown further that there was a mill near the crossing, which was in operation, and creating some noise and confusion. Others standing near there saw. the train approaching, and had heard the sounding of the whistle at the crossing above. Some of them attempted to call the attention of the plaintiff to the train's approach, but were unable to do so, as he appeared to take no note of what was passing. As the facts are presented by this record, it was the duty of the plaintiff to have stopped his team, and to have taken some precaution to ascertain if the train was approaching, which he knew was about due.''
And further, it was said:
“A greater duty was imposed upon the plaintiff in.the present case by the fact that he knew the crossing to be a dangerous one. He knew its condition, and that he would be unable to see the train until arriving .at the crossing. He had no right to close his ears, and drive along without stopping, when he must have known that the noise of his wagon and of the mill would shut off the sound from the approaching train.''
In the present case there was no obstruction other than [311]*311the darkness, which, of course, would not have prevented the plaintiff and her companions from seeing a headlight. The sense of sight was therefore as safe a guide as in the daytime, unless it be held that travelers are guilty of contributory negligence as matter of law in not anticipating that trains will be run in the open country without headlights. We think the law ought not to be so. It is most unusual and. extraordinary for this to occur. And we think it should be at least a question for the jury as to whether a traveler is in fault in failing to anticipate and guard against such an unusual thing as the running of a train without a headlight. The case might be different in a yard where switching is done, and where cars are switched in the nighttime without the use of a headlight, as was the fact in the Mynning case.
Exception is taken to the language of the court in that portion of the charge where it is said:
“ The blowing of the whistle and the ringing of the bell a mile away from a crossing would, of course, give no warning to people about to cross a railroad track.”
The court added this :
“The object of it is to warn people who cross the railway track that a train is approaching, so that the warning should be given within such a reasonable distance as would fairly notify people who are about to cross the track of the approach of a train.”
We think there was no error in this part of the charge, when read in connection with the whole charge, and when it is considered in the light of the request of defendant’s counsel which had been given by the court immediately preceding, as follows:
“ The law requires of a railroad company that it cause the whistle to be blown not less than 40 rods from the crossing. It is not required to be blown within 40 rods of the crossing, nor within any other distance except a reasonable distance.”
[312]*312The court added to this :
<fThe law does not require ‘the whistle to be blown within the 40 rods, nor does it specify the exact distance at which the whistle shall be blown and the train hands begin ringing the bell. That distance, however, should be a reasonable one. It must be more than 40 rods, but it would have to be a reasonable distance.”
It must be remembered that preceding this charge the court had already directed the jury that, if the whistle was sounded at St. John's crossing, and the plaintiff and her party could have heard it by remaining quiet and listening, and they were at such a point that it was their duty to remain quiet and listen at the time, they would be guilty of contributory negligence if they did not hear it. It is evident from this that the court was calling the attention of the jury merely to what would be a reasonable distance under the statute which requires the whistle to be sounded. We see no error in that part of the charge. • ,
Counsel for defendant requested the court to charge as follows:
ifIt does not appear from the testimony of the plaintiff herself that she looked and listened for a coming train when the vehicle in which she was riding was approaching the track; and, as she was more familiar with the locality than her driver, and as she has the burden of proving her personal freedom from contributory ’negligence, and as she was bound herself to look and listen for a coming train, she has not shown her personal freedom from contributory negligence, and she cannot recover in this action.”
The plaintiff was called as a witness, and testified that she could remember nothing except going to Hartford and .starting homeward. She was injured in her back, and her limbs paralyzed, so that she was unable to walk, and a .■great share of the time since the injury she had been ■entirely helpless. The last recollection, she testifies, she .has was the party leaving Hartford going towards home, [313]*313and that it was a dark night. The witnesses called in her behalf/ who were her companions in the buggy in which •she was riding, however, testified that before they reached the crossing, and at some point which is not very definitely fixed, the plaintiff did look, and was apparently listening to see if she conld hear the approach of a train. We think there was some evidence from these witnesses proper to he submitted to the jury upon the question of her due care in approaching the crossing, and that the jury, under the general charge of the court, were fully and fairly instructed upon this branch of the case, and the rights of the defendant fully guarded.
Counsel for the defendant requested the court to submit the following special questions of fact to be found by the jury:
1. Did the train in question make a rumbling noise as it passed over the bridges before reaching the place of the accident?
2. If the driver, Cavanaugh, had been listening for the coming train as he drove towards the track, could he have heard the train in question as it crossed the bridges?
3. Was there any noise which prevented plaintiff and her party from hearing the approaching train when they were within 100 feet from the track?
4. Was the whistle blown at all after leaving Hartford, and before the place of the accident?
The court submitted the first three questions. To the fii-jt the jury answered, “Yes;” and to the second and third answered, “No.” The fourth question the court refused to submit to the jury, but directed them to answer “Yes,” which they did. It is contended upon the part of defendant that the direction of the court to answer “ Yes ” was prejudicial to the rights of the defendant, for the reason that it had a right to know whether the jury were finding the facts in accordance with the evidence, or whether the jury entirely overlooked and ignored the evidence upon a given point when it was all one way; and [314]*314whether the jury were applying the law as given by the court to the facts as they found them.
The court was not in error in directing the answer to-this question, for, as was well said by the court in directing the answer, “the testimony was all one way.” It was shown by witnesses both for plaintiff and defendant, and not - disputed, that the whistle was blown after the train left Hartford and before it reached the crossing, and there-was no testimony tending in any degree to contradict this. Whether it was blown soon after the train left Hartford, at St. John’s crossing, or at some other point on the road, is in dispute; but the question was not directed as to the point where it was blown, but whether it was blown at all after the train left the village. These special questions to the jury are intended for the purpose of a finding upon some particular question of fact in dispute on the trial. Fowler v. Hoffman, 31 Mich. 215; Pigott v. Engle, 60 Id. 221. There could have been but one answer to the question, and that was the affirmative one, which the court properly directed.
Defendant further requested the court to charge as follows:
“It appears by the testimony on the part of the plaintiff that at the time of the accident the plaintiff was engaged in an unlawful occupation, in that she was driving from a railroad station on Sunday, for pleasure, and not in any work of charity or necessity, and for this reason the defendant is not liable to the plaintiff for injuries resulting from the negligence of its employés.”
This question was not presented by the oral argument, but we pass upon it because it is insisted upon in the brief of counsel. How. Stat. § 2015, provides:
“No person shall keep open his'shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take part in any sport, game, or play, on the first day of the week. The [315]*315foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor the solemnization of marriages. And every, person so offending shall be punished by fine not exceeding ten dollars for each offense."
It cannot be said that under the testimony in this case the plaintiff was engaged in any unlawful enterprise, even within the terms of this statute, in riding from the railway station to her home in a peaceable and quiet manner on a Sabbath evening. If she had been engaged in an unlawful enterprise within the meaning of the statute, she would be subject to the penalty fixed by the statute. In nearly all the states it has been held under quite similar statutes that a party traveling upon the highway upon a Sabbath, either from necessity or for pleasure or business, who is injured by a collision with a railway train at a crossing, is not barred from recovery against the railroad company for its negligence from the fact that the injury occurred on Sunday. Knowlton v. Railway Co., 59 Wis. 278 (18 N. W. Rep. 17); Jacobus v. Railway Co., 20 Minn. 130; Railway Co. v. Frawley, 110 Ind. 18 (9 N. E. Rep. 594); Smith v. Railroad Co., 46 N. J. Law, 7; Carroll v. Railroad Co., 58 N. Y. 126. It was held in Sharp v. Township of Evergreen, 67 Mich. 443, that—
“A person has the right to travel on a public highway on Sunday for any lawful purpose, and the township charged with the duty of keeping such highway in repair is liable for injuries received under such circumstances, the same as if received on a week-day."
The request was properly refused.
Judgment is affirmed, with costs.
McGrath, J., concurred with Montgomery, J.