Defrieze v. Illinois Cent. R. Co bell signal is not only for the benefit of those who are on or about to cross the track, but for those who are lawfully using teams near the track. In Lonegren v. R. Co., 87 Iowa, 755, 49 N. W. 852, 56 Am. & Eng. R. Cas. 323, 53 N. W. 236, 17 L. R. A. 254, it was held that the signal enables all persons. who may be exposed to danger by the approaching engine to escape it, and such persons may rely upon the discharge of the duty required by statute, as in all other cases, and act accordingly. In the opinion on rehearing in that case we quoted with approval the cases wherein it is held that one using a private crossing may rely on proper signals being given for a public crossing in proximity to the private one. That rule, it seems to us, is bottomed on principle, and sustained by the weight of authority. See Cahill v. R. Co. (Ky.) 18 S. W. 2, 49 Am. & Eng. R. Cas. 390; Sanborn v. Detroit Co., 91 Mich. 538, 52 N. W. 153, 16 L. R. A. 119; Wakefield v. R. Co., 37 Vt. 330, 86 Am. Dec. 711; C., B. & Q. R. Co. v. Metcalf, 44 Neb. 858, 63 N. W. 51, 28 L. R. A. 824. Whether or not failure to give the public crossing signals was the proximate cause of plaintiff's injury was a question for the jury, under proper instructions from the court. The instructions relating to this issue are not complained of, but it is said there was not sufficient evidence to take the case to the jury on this proposition. We cannot agree with learned counsel for defendant on this proposition. Ward v. R. R., supra, seems to settle this point. 2. Appellant argues that plaintiff not only failed to show his freedom from negligence contributing to his injury, but that he affirmatively established his own negligence proximately contributing to the result. This calls for an examination of the evidence, to discover whether or not, on the facts established, reasonable men might honestly differ as to the proper conclusion. On the day of the accident, plaintiff, with a daughter and a hired man, each of whom was in charge of a team and wagon, were engaged in gathering corn from a field north of defendant's right of way. The day was foggy, and a sort of mist was falling. In order to reach the place where the corn was being cribbed, they were obliged to cross the railway on the private crossing hitherto mentioned. On the day in question the three teams were in the cornfield, and at about the hour of 12 noon the parties started for the crib with their wagons filled, or partially filed, with corn. The daughter led the procession with her team, followed by the hired man with his, and after him the plaintiff. The daughter crossed the right of way in safety, but the hired man stopped on the north side thereof, and tied his horses about 90 feet from the railway tracks. Plaintiff drove up to where the team was tied, stood upon his load, and looked for a train. Not seeing or hearing one, he resumed his seat on the east side of his wagon, with his back toward the west, and, just as he was ready to cross the track, noticed the hired man com Defrieze v. Illinois Cent. R. Co ing from the south with the team the daughter had driven. This man proceeded across the railway track, and plaintiff noticed as he passed over it that he was looking for a train. As soon as the hired man man had passed over the crossing, plaintiff, without again looking for himself, started to cross the track. In making the crossing, his wagon was struck by a freight train coming from the west, and plaintiff received the injuries of which he complains. From the time plaintiff stood up in the wagon until he attempted to cross the track, something like two minutes intervened, but in the interim the hired man had crossed the tracks in safety. From the time plaintiff started to drive from the field to the crossing, he listened for a signal at the public crossing to the west, on which he relied; and, hearing none, he proceeded to cross, under the circumstances detailed. The train was nearly 3 hours late, and was running at a high rate of speed for a freight train, to wit, about 30 miles an hour. About 600 feet west of the private crossing there is a cut varying in depth from 5 to 9 feet, and on the north side of the cut there was a high snow fence, extending for practically its entire length. The ground at the private crossing was considerably lower than the bottom of the cut to the west. East of the private crossing the view of the track was obstructed. At the west end of the cut of which we have spoken is a row of willows, which, running toward the north, obstructed the plaintiff's view; and the jury may have found that there was no point between the place where plaintiff looked and listened and the railroad track itself where plaintiff could have seen the train until it emerged from the cut, something like 600 feet away; but from that point to the crossing plaintiff could have seen the train, had he looked for it. On the right side of the wagon box in which plaintiff was riding were "throw boards,' something like 4 feet high; and, when plaintiff sat down after looking and listening, he could not, on account of these boards, see a train approaching him from the west. One hundred and sixty-two feet west of the private crossing there is a railway bridge 168 feet in length. The railway track from the private crossing to the first railway station west, something like 4 miles, is practically straight. At the time the accident occurred the ground was rough and frozen. The wagon in which plaintiff was riding was but partially filled, but was in such condition that plaintiff could not safely stand up in it to drive across the track. Assuming, as we must, that the crossing signals were not given, and that plaintiff was relying thereon, we have to decide whether or not there was sufficient evidence to take the case to the jury on the issue of contributory negligence. It is practically conceded that from the place where plaintiff stopped before crossing the track, which was something like 90 feet from the railway tracks, he could have seen the train from the time it emerged from the cut to the west, or for a distance of something like Defrieze v. Illinois Cent. R. Co 600 feet. But he was not required to keep a constant outlook for trains. The care required of him was that ordinary prudence which a reasonable man should exercise under like circumstances. But he had the right to rely on the crossing signals, as we have already seen; and as he swears that he listened for the signals from the time he started to go to the crib, and did not hear them, his conduct must be measured with reference to the defendant's duty. Of course, he could not drive blindly across the track without taking any precautions, but his actions must be measured by what reasonable men would and should do under like circumstances. Having looked for the train, and listened for the signals which should have been given, he had the right to rely on the fact that the statute requires such signals, and to govern himself accordingly. But for the fact that the hired man had, almost immediately before plaintiff proceeded to cross the track, passed in safety, and that this man was evidently looking for approaching trains, we should have much doubt on the question now under discussion. In view of this fact, and the other circumstances in the case, we are constrained to hold that the matter was for the jury, under proper instructions from the court. The case is in this respect quite like Funston v. C., R. I. & P. R. R., 61 Iowa, 460, 16 N. W. 518, 14 Am. & Eng. R. Cas. 640. See, also, cases cited in that opinion, and Winey v. C., M. & St. P. R. R., 92 Iowa, 622, 61 N. W. 209; Harper v. Barnard, 99 Iowa, 159, 68 N. W. 599; Moore v. St. P. & K. C. R. R., 102 Iowa, 595, 71 N. W. 569; Mackerall v. O. & St. L. R. R., 111 Iowa, 547, 82 N. W. 975, 19 Am. & Eng. R. Cas. 59. Regard must also be had of the fact that the view to the east was obstructed, and that plaintiff was required to look and listen for trains in that direction. It would be profitless to enter upon a discussion of all our previous cases. The rules are well settled, and the cases are made to turn upon an application of the facts to these established rules. Cases, therefore, are not of great help in settling these controversies. We think the case was properly submitted to the jury. 3. The seventh instruction given by the trial court reads as follows: "Seventh. The ordinary rule is that a person about to cross a railroad track must both look and listen for approaching trains, and, if the circumstances be such as to reasonably require it, he must stop before venturing upon the track, and satisfy himself, as an ordinarily prudent man, that the way is clear. But such rule is not universal, and if the situation of the crossing, and the circumstances surrounding the attempt to use it, be such that the traveler is justified, as a reasonable and prudent man, in believing he can use it with safety without precautions, then their omission is not negligence." We surmise that this instruction is not properly quoted, but appellee has made no attempt to correct it, and our surmise should not be allowed to prevail over the record. Passman v. West Jersey & S. R. R The last sentence of the instruction is manifestly erroneous. We cannot imagine a case where one about to cross a railway track is not required to take precautions. If this were the rule, railway companies would practically become insurers against all accidents at crossings. The instruction, as it reads, holds to the rule that if one, as a reasonably prudent man, believes he can cross a railway track with safety without taking any precautions, his omission to do so is not negligence. This entirely nullified the rule that railway crossings are known places of danger, and practically justified the jury in inferring that a reasonably prudent man may, under certain circumstances, use such a crossing without taking any precaution whatever. This is manifestly erroneous doctrine. Appellee cites the Funston Case, supra, as approving the rule. But it does not do so, as a cursory examination will show. But it is argued that the error was cured in other instructions given by the court. It is true that in other parts of the charge the correct rule was given, but the trouble is that the instructions in this respect were contradictory, and the jury may have followed the seventh, and concluded that this was a case where plaintiff, as a reasonably prudent man, was justified in believing that he could cross the track without taking any precautions. A quotation from the ninth instruction, which it is claimed covered the error, will demonstrate the soundness of this conclusion. It is as follows: "If, as a reasonably prudent man, he ought, under the circumstances, to have stopped his team, or to have looked again to the westward, after entering upon the right of way, but failed to do so, and if by so stopping or looking he would have avoided. injury, then he was guilty of contributory negligence." Had the word "precautions" been qualified by the comparative adjective "such," doubtless there would have been no error. But it was not, and herein lies the fundamental error. The necessary inference therefrom is that a reasonably prudent man may cross a railway track without taking any precautions. 4. A number of instructions were asked by defendant which were refused. In so far as they announced correct rules of law, they were embodied in the charge as given, and we find no error in denying the requests. But for the error pointed out, the judgment must be reversed. WEAVER, J., taking no part. PASSMAN V. WEST JERSEY & S. R. R. (Court of Errors and Appeals of New Jersey, March 9, 1903.) [54 Atl. Rep. 809.] Crossings-Care Required of Traveler.* A traveler on a highway, about to pass over a railroad track, must make reasonable use of his senses to ascertain if such crossing can be *See generally, foot-note appended to Meeks v. Ohio River Ry. Co. (W. Va.), 5 R. R. R. 662, 28 Am. & Eng. R. Cas., N. S., 662. Passman v. West Jersey & S. R. R safely made, before attempting it. If his failure to do so contributes to his injuries, he cannot recover damages therefor. Same-Invitation to Cross-Divided Train. The cutting of a train of cars on a side track, leaving some on one side and some on the other of a highway, where the view of the other tracks is partially obscured thereby, is not an invitation to the public to cross without using ordinary precaution to ascertain if such crossing can be safely made. Same-Care Required of Bicyclist.† A traveler on a bicycle is required to use the same care and prudence before passing over a railroad as is required of a pedestrian. (Syllabus by the Court.) Error to Circuit Court, Atlantic County. Action by Laura H. Passman, administratrix of William Passman, deceased, against the West Jersey & Seashore Railroad. Judgment for defendant, and plaintiff brings error. Affirmed. John W. Wescott, for plaintiff in error. Joseph H. Gaskill and Nelson B. Gaskill, for defendant in error. VOORHEES, J. It is necessary in the decision of this case to consider only the assignment of error directed to the instruction of the court to the jury to find a verdict for the defendant. The action was brought by the administratrix of William Passman to recover damages for his death, which was caused by one of the engines of the defendant company colliding with him as he was attempting to cross its tracks on Ohio avenue, in Atlantic City, on a bicycle. The testimony developed the fact that the deceased had for several months prior to the accident been employed by a lumber dealer whose office was less than 100 feet from the crossing and that in the ordinary business of his employment, and in going to and coming from his home, which was in the southern part of the city, on the opposite side of the track from the place of his employment, he necessarily passed over this crossing several times a day, and was presumably acquainted with the times and manner of running trains thereover. The railroad and Ohio avenue cross each other at this point at nearly a right angle; the avenue extending north and south, and the railroad east and west. At the time of the accident the railroad had four tracks across the avenue. The two nearest the deceased's place of employment were sidings or tracks used for the shifting and storing of cars. The two furthest were the regular express or incoming and outgoing tracks. Just prior to the accident a train of empty cars had been drilled upon the siding tracks, and it was in evidence, although denied by some of the witnesses, that this train had been cut, leaving some cars to the east and some to the west of the avenue; thus permitting passage over the avenue for vehicles and pedestrians. A witness who was walking on the avenue in a southerly See foot-note appended to Law v. Lake Shore & M. S. R. Co. (Mich.), 15 Am. & Eng. R. Cas., N. S., 95. |