the company from the use of care and prudence in other respects. That it is not necessarily enough to excuse the company, that they pursued the usual course adopted by engineers in such The question of negligence is one of fact, in such cases, to be *submitted to the jury, under all the circumstances of the case, and to be determined by them, upon their view of what prudence and skill required. cases. 3. But when the statute requires certain precautions against accidents, and its requirements are disregarded, the party suffering damage is not entitled to recover, if he was himself guilty of negligence which contributed to the damage. And where the * Parker v. Adams, 12 Met. 415; post, § 177; Macon & W. Railw. v. Davis, 18 Georgia R. 679, where the question of negligence in the conductors of a railway train in passing a road-crossing, is held to be one of fact depending upon the circumstances of each particular case. Dascomb v. Buffalo & State Line Railw., 27 Barb. 221. But the omission of any statute duty by railway companies at the time and place where an accident occurs is primâ facie evidence of liability. Aug. & Sav. Railw. v. McElmurry, 24 Ga. R. 75. In Johnson v. Hudson River Railw., 6 Duer, 633, where the plaintiff's husband was killed in the streets of the city of New York by one of defendants' freight cars in the night time, it being very dark, and the company using neither lights nor bells to guard against accident; it was held, that although the law required of defendants only ordinary care towards the deceased, it must be measured by the degree of injury against which such care is to be exercised, which, under the circumstances, was so extreme as to justify the court in telling the jury that defendants were required to use every precaution in their power to ensure the safety. of persons passing; and that if lights or bells would have contributed to that end, they were culpable for not using them; and that in this form the question of negligence was properly submitted to the jury as one of fact. It was also held that the deceased was only bound to the exercise of ordinary care, and that his being found upon the track was not sufficient ground to preclude the recovery. In an important case, Shaw v. Boston & Worcester Railw., 8 Gray, 45, the subject of injuries at railway and highway intersections is a good deal discussed. Post, § 179, pl. 9 & n. It is here decided that the record of the county commissioners stating that in their opinion no flagman at the crossing was necessary, is not competent to show due care on the part of the company in omitting that precaution. The court said it was the duty of the judge in charging the jury in regard to the precautions required to be taken by a railway company at a highway crossing, to distinguish between such circumstances as could have been reasonably anticipated, and such as would have required extraordinary precautions, but were of so extraordinary a character as not to have been anticipated. It was also held a fatal variance that the proof showed the injury to to have occurred some rods * 394 VOL. I. 35 plaintiff's farm was intersected by the line of a railway, and he, with a wagon and one horse, having his son and a servant with him, drove upon a trot directly over the track at a public crossing, without taking the slightest precaution to ascertain whether a locomotive was coming, it was held that he was guilty of great carelessness, and that he could not recover for any damage thereby sustained, and that it was immaterial whether the train was on time or not. It was also held, that the question of negligence, in a case of this character where the testimony was all one way, was one of law to be decided by the court, and could not be left to the jury.5 The company are bound to maintain a sign-board and other precautions, required by statute at railroad crossings, at the place where an open travelled street in a city intersects the railway, although the street has not been so laid out and established by the municipal authorities as to make the city responsible for damages occasioned by defects therein, such passage being a "travelled route" within the meaning of the statute.6 But it has been held, that the company is not liable for not constructing an under pass for the accommodation of the public travel, on a way which was not laid out agreeably to the statute, or been in use by the public twenty years. It is such negligence for a deaf man to drive an unmanageable horse across a railway track when a train is approaching, that he cannot recover for any damage sustained. He should wait and avoid exposure.8 out of the highway where the plaintiff's horse drew the carriage by reason of being frightened by defendants' locomotive engine, the declaration charging it to have occurred while travelling in the highway, and the declaration cannot be amended after verdict so as to cure the variance. Also that the degree of care required of the company and travellers, at a railway and highway crossing, is the same, being that which men of ordinary capacity would exercise under like circumstances. The fact that a collision occurred at a railway crossing, and that the plaintiff was in no fault, is not proof that the defendant was in fault. 5 Dascomb v. Buffalo & State Line Railw., 27 Barb. 221; Mackey v. New York Central Railw., 27 Barb. 528. It would seem to be the duty of one about to pass a railway to exercise watchfulness to know that a train is not approaching. Ib. • Whitaker v. Boston & Maine Railw., 7 Gray, 98. But later statutes adopt a different phraseology. • Northumberland v. At. & St. Law. R. Co., 35 N. H. R. 574. 8 Ill. Cent. R. Co. v. Buckner, 28 Ill. R. 299. 4. If the plaintiff's negligence did not contribute to his injury, it will not preclude his recovering for the consequences of defendant's wrong. If the wrong on the part of the defendant is so 9 • Kennard v. Burton, 25 Maine R. 39. In the newspaper report of a recent trial in the Supreme Court of Pennsylvania, the court are reported to have charged the jury, as matter of law, that " a person about to cross a railway track [with a team] is in duty bound to stop and look in both directions, and listen before crossing." It has recently been decided by the full bench Supreme Court in Massachusetts, ante, n. 4, that it is not competent for the judge to lay down any definite rule, as to the duty of the company, in regard to proper precautions in crossing highways; that the circumstances attending such crossings are so infinitely diversified that it must be left to the jury to determine what is proper care and diligence in each particular case. This we apprehend is the true rule upon that subject, both as to the company and travellers upon the highway, and that it will finally prevail, notwithstanding occasional attempts to simplify the matter by definitions. The Pennsylvania case referred to is that of O'Brien v. Philadelphia, Wilmington, & Baltimore Railw., 10 Am. Railw. T. No. 10, 13. The following extracts from the charge to the jury may serve to explain the views of the court. But if the jury find that the company were not faultless, that they did or omitted anything that would constitute negligence as I have defined it, the next inquiry will relate to the conduct of the plaintiff. He was a carter, and the same general principles apply to him as to the defendants. He was bound to pursue his business with all that regard to the safety of himself and others which prudent men commonly employ in like occupations. Did he demean himself in that manner? In answer to the 6th and 7th points on the part of the defendants, I instruct the jury that a carter, or any man having charge of a team, but who is about to cross a railroad at grade on which locomotives run, is bound to stop and listen, and look in both directions, before he permits his team to set foot within the rails, and omission to do so is negligence on his part. This rule of law is demanded by a due regard to the safety of life and property, both his own and that which is passing on the railroad. From the diagram in evidence it is perfectly apparent that the plaintiff could have seen the approaching train if he had looked. If he saw it, it was extreme rashness in him to allow his lead horse to advance so far, and if he did not see it, it must have been because he did not look. I state the general rule, but whether it is applicable to the plaintiff in the circumstances which surrounded him is for the jury. A few yards on his right, some witnesses think seventy, there was a gravel train, with a locomotive attached, standing on one of the tracks, and liable to start any moment, and on his left, according to his witnesses, was the omnibus in close proximity to the crossing. Now, for these circumstances the plaintiff was in no wise responsible, and the question is, whether they constituted any excuse for his not looking up the road. In Brooks v. Buffalo & Niagara Falls Railw., 25 Barb. 600, it is said if one cross wanton and gross as to imply a willingness to inflict the injury, plaintiff may recover, notwithstanding his own ordinary neglect.10 And this is always to be attributed to defendant, if he might have avoided injuring plaintiff, notwithstanding his own negligence. So, too, if the neglect on the part of the plaintiff is not the proximate cause of the injury, it will not preclude a recovery.11 5. If a railway wholly omit to give the proper signal at a roadcrossing, they are not necessarily liable for injury to one crossing at that moment, whose team took fright and injury ensued. It should be shown that the omission had some tendency to produce the loss.12 The statute requiring railway companies to make signals in all cases of crossing highways, applies to crossings above or below the grade of the highway, as well as to those at grade.13 6. A conductor was held not liable for running the engine over an animal trespassing upon the track, unless he acted wilfully.14 So, too, where the train passed over slaves asleep upon the track, the company were held not liable.15 a railway at grade with a team, where the danger may easily be seen by looking for it, and especially where he drives upon the railway track and there stops, looking in an opposite direction from an approaching train till it strikes him, he is guilty of such negligence as will preclude a recovery. 10 Wynn v. Allard, 5 Watts & Serg. 524; Kerwhaker v. C. C. & Cincinnati Railw., 3 Ohio State, 172, 188. 11 Trow v. Vermont Central Railw., 24 Vt. R. 487; Isbell v. N. Y. & N. H. Railw. Co., 27 Conn. R. 393; Chicago & R. I. Railw. v. Still, 19 Illinois R. 499. 12 Galena & Ch. Railw. v. Loomis, 13 Illinois R. 548. A railway is not liable for an injury which happens in crossing a railway, in consequence of the stationary cars of the company, upon their track, obstructing the view of the plaintiff in his approach to the road. Burton v. The Railw. Co., 4 Harr. 252. See also Morrison v. Steam Nav. Co., 20 Eng. L. & Eq. 267, 455. 13 People v. New York Central Railw., 25 Barb. 199. 14 Vandegrift v. Rediker, 2 Zab. 185. But where the act is wrongful, the action may be against both the engineer and fireman. Suydam v. Moore, 8 Barb. 358. 15 Herring v. Wil. & R. Railw., 10 Iredell, 402. In this case, it is held that the conductor might not be chargeable with the same degree of culpability indriving his train over a rational creature, or one who seemed to be such, and in the exercise of his faculties, as in doing the same when the obstruction was a brute animal. And in the case of running over a person asleep, or a deaf mute, or an insane person, some indulgence is, doubtless, to be extended, inasmuch as the peculiar state of the person might not be readily discoverable by *7. The duty required of railways towards those who are, at the time, in the exercise of their legal rights, is the possession of those in charge of the train, if not they would have a right to calculate that they would conduct like other rational beings, and step off the track as the engine approaches. But in East Tennessee & Ga. Railw. v. St. John, 5 Sneed. 524, it was held that the company were responsible for killing a slave asleep on the track, which might have been seen by the conductor a quarter of a mile, but which was mistaken for the garments of the laborers, and no signal given in consequence. The practice of allowing persons to walk upon a railway track is a vicious one, and one which would not be tolerated in any state or country where the railways are under proper surveillance and police. But as it now is in many parts of this country, an engineer will find some person upon his track every mile, and, in some places, every few rods. If he were required to check the train at every such occurrence, it would become an intolerable grievance. If men will insist upon anything so absurd as to be permitted to walk upon a railway track at will, they must expect that those who are bereft of sense, but preserve the form of humanity, when they chance to come into the same peril, will perish; not so much from their own infirmities, as from the absurd practices of those who have no such infirmities. And their destruction is not so much attributable, perhaps, to the fault of the railways, as to the bad taste, and lawlessness of public opinion, in making such absurd demands upon the indulgence of railways. And, if it be urged that the companies might enforce their rights, and keep people off their tracks, it would be found, we fear, upon trial, that such arguments are unsound. The companies, probably, could not enforce such a regulation, in many parts of the country, without exciting a perplexing and painful prejudice, to such an extent as to endanger the safety of their business. The only effectual remedy will be found in making the act punishable by fine and imprisonment, as is done in England and some of the American states, and in a strict enforcement of the law upon all offenders. Every one can see that, if sane persons were excluded from the railway, the sight of a person upon the track would at once arrest the attention of conductors of trains, and there would be little danger comparatively of their destruction, whereas now, persons bereft of sense are almost sure to be run over. Persons are so frequently upon the track that the conductors have no alternative but to push their trains upon them. For such persons are, not unfrequently, so reckless, that, if they could alarm engineers, they would be found trying such experiments every hour. One who was engaged in sawing wood upon the track of a railway by direction of the superintendent of the company, and is injured by the engine of another company, lawfully upon the track, cannot recover of the latter company, although their engineer was guilty of carelessness, being himself also in fault. Railroad v. Norton, 24 Penn. St. 465. In Ranch v. Lloyd & Hill, 31 Penn. St. 358, it was decided, that where the state owned the railway, and its regulations were prescribed by the canal commissioners, and the state supplied the |