
    The Marietta and Cincinnati Railroad Company v. William M. Picksley.
    •1. Where the question of contributory negligence depends on a variety of circumstances, from which different minds may arrive at different conclusions as to whether there was negligence or not, the question ought to be submitted to the jury under proper instructions.
    '2. The instructions ought to have reference to the circumstances of the case, and be so given as to secure the fair consideration and judgment of the jury upon the points at issue.
    •3. A charge, which consists mainly of extracts from opinions in reported cases, having no special reference to the circumstances of the case on trial, is objectionable; and where, from the consideration of the whole evidence, it is reasonable to suppose the jury may have been misled by such charge, a new trial ought to be granted.
    Error to the Superior Court of Cincinnati.
    Picksley brought his action against the Marietta and -Cincinnati Railroad Company, to recover for injuries caused by the alleged negligence of the servants of the defendant in operating one of its trains. At the' time of receiving the alleged injuries, Picksley was a foot passenger on Broad .street, in the city of Cincinnati, and when in the act of stepping upon the track of defendant’s railroad, for the purpose of crossing, was struck by the locomotive of a passing train of cars. The railroad runs in an easterly and westerly direction, and where it crosses Broad street is about .a mile from the east boundary of the city. The train, at the, time in question, was going west to the Cincinnati depot. Front street is a short distance south of the railroad, and runs in the same general direction, but they approach each other going west. At Broad street, the railroad track ,is about fifteen feet north of the north curb of Front street, and, twenty or thirty rods west of Broad, it crosses Front ■street. The railroad track is three or four feet higher than Front street. On Front street were two street railroad -.tracks. On one of these tracks, at the time of the collision, 'there was a street car going east, and on the other, which was about thirty feet' from the track of the defendant’s :road, was a street car going west. This street car and the ¡locomotive going in the same direction, arrived at Broad street at the same time.
    Pieksley, at the time he was struck, was on his way from ■a grocery, at the southeast corner of Front and Broad ■streets, to his home, which was about a hundred feet on Broad street, north of the railroad. He was, at the time, carrying a basket on his arm containing articles purchased at the grocery. The distance from the grocery to the place of collision was about seventy-five feet. At the place of intersection of Broad street by the railroad, there was no sign-board or warning of any description to remind persons of the danger of approaching trains of cars; nor was there a flagman or other person there for that purpose.
    The collision occurred on the 1st of July, 1865, at about -6 o’clock p. m. There was testimony given to the effect that, at the time, there were carriages and persons passing and repassing, and that there was a good deal of business going on in the locality.
    The plaintiff testified that when he started from the grocery he looked up the track of the defendant’s railroad, ■but that he could neither see nor hear a train; that the railroad has a down grade toward the city; that he heard neither the ringing of the bell nor the blowing of the whistle; that he could have heard if either had occurred. He stated that he walks pretty fast, and that he crossed from the grocery at his usual gait; that he did not hear the train coming; that it came down like a snake; that the street ears made considerable noise, and had on them the usual street-car bells. He also stated that he did not x’emember looking again for the cai-s after he left the grocery; that he may have looked again, but he does not recollect of doing so. "When he got to the curb, he did not look up for the train, nor did he after he reached the cui’b; if he had done so, he could have seen the traixx •coming.
    
      There was also testimony to the effect that there was a-, block of buildings a square and a half or two squares up the railroad, which came within eight feet of it; that just above these buildings the railroad turned, and that from below the railroad you could not see above the buildings.
    Evidence was given of negligence in running the train-at an unusual and dangerous rate of speed for the locality,, and in failing to give warning of its approach.
    Under the order of the court, the jury were taken to-view the locality where the collision occurred.
    After the testimony was closed, and before the argument,, the court, at the request of the defendant, gave sundry special instructions to the jui’y. Among those which the-court refused to give is the following :
    “ That if you find that plaintiff' approached and attempted" to cross the line of the defendant’s railroad, without first, looking along the line to ascertain whether there was a-train coming, and while so attempting, or about to attempt' to cross, sustained the injury complained of, he was in law guilty of such contributory negligence as will defeat his* right to' recover in this case, unless you find that defendant, through its servants, was, in the conduct of its locomotive- and train, guilty of willful negligence.”
    After the close of the argument, the court again charged the jury. This charge consisted mainly of long extracts from the opinions of this court, delivered in the various-cases brought before it involving questions of negligence. The charge closed with the following language :
    “ In what I have said I have quoted largely from the reported decisions of our own Supreme Court, which is the-law governing us in this case.
    “ You will perceive, gentlemen, that I have left the question of negligence to you, to be determined by you from all the evidence and circumstances of the case, under the law as I have stated it to you, and this I understand to be the-law in Ohio.”
    The defendant -excepted to this part of the general charge, and to the refusal to give the special instructions, requested.
    A verdict having been returned for the plaintiff, the defendant moved for a new trial, on the ground of error in the charge, and in the refusal to charge; and on the-ground that the verdict was against the law, and against' the evidence.
    The motion was overruled, and bill of exceptions, taken.
    
      Hoadly, Jackson $ Johnson, with whom was E. L. Anderson, for plaintiff' in error :
    Negligence, on the part of the person injured, proximate- or contributing to the injury, however slight, prevents a. recovery. Potter, Adm’r, v. The C. & N. R. W. Co., 21 Wis. 372; Ib. 256; 17 Ib. 428, 488; Dascomb v. B. & S. R. R. Co., 27 Barb. 221.
    It is the imperative duty of a person traveling on a public road, crossed by a railroad, to use all the faculties he has, on approaching a crossing, to discover whether a train is about to pass, even though the bell is not rung or the whistle sounded; and if he fail to do so, he is guilty of extreme negligence. The Chicago & Rock Island R. R. v. McKean, 40 Ill. 218; C. & A. R. R. v. Gretzer, 46 Ib. 82; C. & R. I. R. R. v. Still, 19 Ib. 500; G. & C. U. R. R. v. Dills, 22 Ib. 264; Steves v. The O. S. R. R. Co., 18 N. Y. 422; Beiseigel v. The N. Y. C. R. R., 34 Ib. 625; Ernst v. The Hudson R. R. R. Co., 39 Ib. 61; Wilcox v. The Rome, Watertown & Og. R. R. Co., 39 Ib. 358; Beisiegel v. The N. Y. C. R. R., 40 Ib. 9; Griffin v. The N. Y. C. R. R., 40 Ib. 35; North Penn. R. R. v. Heileman, 49 Penn. 60; Pittsburgh, Ft. Wayne & Chicago R. R. v. Dunn, 56 Ib. 280; Telfer, Adm’r, v. The Northern R. R. Co., 1 Vroome, 188.
    The English authorities are in consonance with those of this country. Stubley v. The London & Northwestern R. R. Co., L. R., 1 Exch. 13; Stupley et al., Ex’rs, v. The London, Brighton & S. C. R. R. Co., Ib. 21; Skelton v. London & N. W. R. R. Co., L. R., 2 Common Pleas, 631.
    
      The court refused to give the following charge to the jury, as requested .by counsel for plaintiff in error.
    We think this was error. The charge was as follows :
    “ I charge you that if you find that plaintiff approached and attempted to cross the line of the defendant’s railroad, without first looking along the line to ascertain whether there was a train coming, and while so attempting or about to attempt to cross, sustained the injury complained of, he was in law guilty of such contributory negligence as will defeat his right to recover in this case, unless you find that defendant, through his servants, was, in the conduct of its locomotive and train, guilty of willful negligence.”
    The charge certainly contains the law, nor does it ask or require the court in any way to infringe upon the province •of the jury.
    Negligence is generally a mixed question of law and fact; in other words, requiring the jury to ascertain the facts and the court to pronounce the law, it is not a •question that can ever be solely for the jury to determine, though it may resolve itself into a simple proposition of law. When, however, the jury have ascertained the facts their functions are at an end, and it becomes the duty of the court to pronounce upon the facts so found, as a question of law. The North Penn. R. R. v. Heileman, 49 Penn. 60; Catawissa R. R. Co. v. Armstrong, 52 Ib. 285; Pittsburgh Connellsville R. R. v. McClung, 56 Ib. 297; Gahagan, Adm’rx, v. Boston & Lowell R. R. Co., 1 Allen, 187; Todd v. The Old Colony & Fall R. R. R. Co.,. 3 Ib. 18; S. C., 7 Ib. 207; Hickey v. Boston & Lowell R. R. Co., 14 Ib. 429; Harper v. Erie R. R. Co., 3 Vroome, 90; Trow v. Vermont C. R. R. Co., 24 Vt. 497; Dascomb v. Buffalo & State Line R. R. Co., 27 Barb. 227; Steves v. The Oswego & Syracuse R. R. Co., 18 N. Y. 422; Ernst v. Hudson R. R. R. Co., 39 Ib. 61; Wilcox v. Rome, Watertown & Og. R. R., 39 Ib. 358; Beiseigel v. N. Y. C. R. R. Co., 4 Ib. 9; Griffen v. The New Y. C. R. R., 40 Ib. 35; Hartfield v. Roper, 21 Wend. 615; Spencer v. Utica § S. R. R., 5 Barb. 337; Sheffield v. Rochester & Syracruse R. R., 21 Ib. 339; Harring v. The N. Y. 
      
      & E. R. R., 13 Barb. 9; Stubley v. The London & N. R. R. Co., L. R., 1 Exch. 13; Skelton v. The London & N. W. R. R. Co., L. R., 2. Com. Pleas, 631.
    It can not be claimed that the plaintiff in error was guilty of willful negligence.
    
      Edward Colston and Jordan, Jordan § Williams, for defendant in error:
    What is such contributory negligence as will defeat a plaintiff’s action in Ohio ?
    One indispensable feature is, that the fault imputed to a plaintiff must be a proximate’cause of the injury. 3 Ohio St. 173. And in the use of the words “proximate cause” is meant negligence occurring at the time the injury happened. 6 lb. 109.
    The court referred the question of the plaintiff’s negligence to the jury, under full instructions. Was this error? It was a question for the jury to determine, looking at all the circumstances surrounding the transaction, whether Picksley’s conduct was consistent with reasonable and ordinary care or not.
    It is undeniable that negligence is generally a question for the jury, to determine. The following authorities, if any are needed, are directly in point: Marriot v. Stanley, 1 Man. & Gran. 568 (39 E. C. L.); Paterson v. Wallace, 1 McQueen, 748; Foy v. London, Brighton & C. R. R., 18 Com. B. (N. S.) 225; Reeves v. Delaware & C. R. R. Co., 30 Penn. St. (6 Casey), 455; Penn. R. R. Co. v. Ogier, 35 Ib. (11 Casey), 60; McCulley v. Thaw & Wright,40 Ib. (5 Wright), 399; Citizens’ Ins. Co. v. Marsh, 41 Ib. (5 Wright), 386; Penn. R. R. v. Barnet, 59 Ib. (9 P. F. Smith), 259; Johnson v. Brunerd, 61 Ib. (11 P. F. Smith), 58; West Chester R. R. v. McElwee, 67 Ib. (17 P. F. Smith), 311; Bradley v. Boston & Maine R. R., 2 Cush. 539; Warren v. Fitchburg R. R., 8 Allen, 227; Lucas v. New Bedford R. R., 6 Gray, 646; Gahagan v. Boston & Lowell R. R., 8 Allen, 187; May v. Boston & Maine R. R., 104 Mass. 137; Briggs v. Taylor, 28 Vermont, 180; Vinton 
      
      v. Schwab, 32 Ib. 612; Beer v. Housatonic R. R., 19 Conn. 566; S. C., 2 Amer. Railway Cas. 114; Langhoff v. Milwaukee & C. R. R., 19 Wis. 489; Detroit & Milwaukee R. R. v. Van Steinburg, 17 Mich. 99; 34 N. Y. 622; 35 Ib. 9; 36 Ib. 132; 34 Ib. (1 Keyes), 28; 1 Greenleaf Ev., sec. 48.
    It is therefore only in exceptional cases that a court can declare from the bench that a party plaintiff or defendant has been guilty of negligence in any given case.
    The following authorities settle the question when this can be done: Ernst v. Hudson R. R. R., 35 N. Y. 10; McCully v. Clarke & Thaw, 40 Penn. St. 399; Gavett v. Manchester, etc., R. R., 6 Gray, 505, and cases before cited.
    From these authorities the following proposition is plainly deducible:
    Where the question whether the plaintiff’s conduct was negligent or not depends on conflicting evidence or upon inferences to be deduced from a variety of circumstances,, and those circumstances are such as to leave room for a fair difference of opinion between persons of honesty and intelligence, or where the surrounding circumstances and the conduct of the plaintiff in relation thereto afford ground for a diversity of inference — in such case the verdict is the only proper means of determining the question of negligence.
    The court can declare the plaintiff’s conduct to be negligent only where — 1. The evidence presents such clear and unmistakable features of carelessness as to force the conviction of negligence upon the mind, leaving no avenue of escape from that conviction; for in such cases, where there is no room for a doubt, no ground is left on which a question for the jury can be made. 2. Where there has been a clear and unmistakable transgression of some definite rule of action applicable to the plaintiff, and continuing the same under every variety and change of circumstance.
    It is impossible to conceal the fact that an important point in the case is as to the signals ; the question of the company’s negligence rests upon that in a great measure,, and so does that of Picksley’s. By a long-continued practice of signaling with bells and whistle, the neighboring ■people had been given to understand that it was safe to cross the track in absence of alarms. Experience had taught these people that it was perfectly safe for them to rely on these signals, and a confidence had been inspired, to which the company was surely a party, that the crossing was entirely safe so long as they received no notification from the bell or whistle that a train was coming.
    Who is it that takes measures against danger when he has every assurance that he is in a state of security ? The omission of the signals, then, is not only negligence on the part of the plaintiff in error, but also removes from Picksley almost all imputation of negligence. Then is not this question the most important one in the case ? Is it not the key of the position? The question of signals regulates the amount of care Picksley was to observe. It is the most prominent and most controverted fact in the case. ■Can any mind determine the question rationally, whether Picksley was negligent or not, without first settling to its own satisfaction the dispute about the signals ? Of course not. Because that exerts a controlling influence through the whole ease.
    Neither could the court. The jury alone could determine the question, and therefore the case was left to them. The court could not say whether it was necessary to look, because that might depend upon other considerations and controverted facts. Fero v. The Buffalo & State Line R. R. Co., 22 N. Y. 209; Wilds v. The Hud. River R. R., 24 N. Y. 431; Newson, Adm’x, v. New York C. R. R., 29 N. Y. 383; Brown v. New York C. R. R., 32 N. Y. 597; Beiseigel v. New York C. R. R., 34 N. Y. 622; Ernst v. Hud. River R. R., 39 N. Y. 61; Mackay v. New York C. R. R., 35 N. Y. 75; Renwick v. New York C. R. R., 36 N. Y. 132; Wolfkeil v. The Sixth Avenue R. R. Co., 38 N. Y. 49; Gonzales v. New York & Harlem R. R Co., 38 N. Y. 440; O’Mara v. Hud. River R. R. Co., 38 N. Y. 445; Grippen v. New York C. R. R., 40 N. Y. 34; 41 N. Y. 296, 502; 42 N. Y. 468; 44 N. Y. 465; 45 N. Y. 846; Kinnayde v. Pac. R. R., 45 Mo. 255; Tabor v. 
      M. Valley R. R., 46 Mo. 353; B. & O. R. R. Co. v. Fitzpatrick, 35 Md. 32; Railway Co. v. Whitton, 13 Wallace, 270.
    The New York authorities are marked by considerable conflict of opinion on the part of individual judges. There is some disposition in the later cases, those of 1870-71, to lay down more stringent 'rules in favor of railroads. But we think that it is easy to deduce a rule in accordance with which all these authorities can be reconciled. A searching investigation of the cases show that they point to the following as the true rule.
    In a plain case of a person walking across a railroad track with knowledge of the existence of the track, where he can see up and down the track, and fails to make any observation, and such observation, had he made it, would have disclosed the approach of the train, then in such case his failure to look is negligence — unless there are circumstances that render it at least doubtful that the party was in fault in not looking.
    What those circumstances are, must be determined by each case. It is sufficient if the doubt exists, and any circumstance that gives rise to a doubt in the mind of the judge is such a circumstance as will take the case to a jury.
    There is one strong feature in Pieksley’s case that is not found in any of the New York cases except one, and that one is decided in our favor. We allude to the fact that Picksley surveyed the track when within seventy or seventy-five feet of it. The only New York case that, possessed this feature is that of Renwick v. New York Central R. R. Co., 36 N. Y. (9 Tiffany), 132.
    Picksley looked for the train*as he left the grocery, and relying upon the ordinary rate of speed, as he had a right to, he knew that there was no train on that road which, if run at the usual and prescribed speed, could reach him before he had safely passed the crossing. He had abundant reason to believe that there was ample time to cross the track before any train that was not in sight from the grocery could, in the ordinary course of running, possibly arrive at the crossing. He lived in the neighborhood, and knew what the usual mode of running was. He had a right to rely upon its being pursued on this occasion. He therefore very properly and naturally concluded that he could not be in any possible danger in crossing the track under the circumstances; and the more so, as after leaving the grocery he heard no bell, which, if a train was coming, he had a right to expect to hear. Hnder these circumstances, what occasion was there for his looking at the time he reached the track? "Was he to anticipate that a train, contrary to all former precedent, would rush down at that time without any note of warning, at more than treble its usual speed, and thus put him in sudden peril, and in a flash show how futile all his calculations were ?
    The Massachusetts rule clearly maintains the doctrine for which we contend. The whole current of Massachusetts authority is contained in two eases: Warren v. Fitchburg R. R., 8 Allen, 227; May v. Boston and Maine R. R. Co., 104 Mass. 137.
    In most, if not all the cases cited by counsel for plaintiff in error, there is nothing that conflicts with any views that we contend for in this case.
    
      Trow v. Vermont C. R. R., 24 Vt. 497, has been overruled by Vinton v. Schwab, 32 Vt. 612. And see Detroit & Milwaukee R. R. Co. v. Van Steinberg, 17 Mich. 122; Ireland v. Oswego & S. R. R. Co., 13 N. Y. 533.
    A man who is in the habit of crossing a track at a crossing where warnings have invariably heralded approaching trains, and the man’s experience has'taught him that reliance could be placed upon these warnings, is not negligent in assuming that when no warning can be heard, the crossing is safe; especially where the sounding the warnings is a statutory requirement, or is a measure of precaution on the part of the company, dictated by the common-law injunction to observe such care as the place, time, and circumstances render necessary, in order so to use its own as not to injui’e others.
    To deny this proposition, is to say that we must live in constant anticipation that others, in their behavior to us, will disregard their legal and moral duty toward us, and that we are negligent unless we, on all occasions, so shape our conduct as to meet such results.
    • Apart from the sound reason and sense that is at the bottom of this proposition, it has been approved by many •of the ablest courts in this country, and by the highest tribunals in England. 29 N. Y. 383; 32 Ib. 597; 34 Ib. 622; 35 Ib. 9; 39 Ib. 61; 30 Penn. St. 455; 35 Ib. 60; 47 Ib. 244; 45 Mo. 255; 46 Ib. 353; 17 Mich. 100; 19 Wis. 489; 8 Allen, 227; 104 Mass. 137; 19 Conn. 556; 1 Exchequer (L. R. S.), 21 (1865); 6 Queen’s Bench (L. R. S.), 481 (1871).
    The mere fact that one person is in the wrong does not necessarily discharge another from the exercise of due ■care toward him; and therefore, no matter how Picksley passed on to the track, if the engineer, by the exercise of ■due care, could have seen Picksley in time to have sounded the sharp whistle to advertise him of his danger and give him an opportunity to retreat, then the company is liable for this omission of care. Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172; Vere v. Lord Cawdor & King, 11 East, 568; Davis v. Mann, 10 Mees. & Wel. 545; Chapline v. Hawes et al., 3 Carr. & Payne, 554; Chi., Bur. & Q. R. R. Co. v. Cauffman, 38 Ill. 424; Chi., Bur. & Q. R. R. Co. v. Triplett, Ib. 483; Louisville & Nashville R. R. Co. v. Collins, 2 Duvall, 114; Macon & W. R. R. Co. v. Davis, Adm’r, 18 Ga. 669; Robinson v. Cone, 22 Vt. 213; Needham v. San F. & San J. R. R. Co., 37 Cal. 409; Card v. N. Y. & Harlem R. R. Co., 50 Barb. 39; C. C. & C. R. R. Co. v. Elliot, 4 Ohio St. 474; Butterfield v. Forrester, 11 East, 60; Mayor of Colchester v. Brooke, 7 A. & E. (N. S.) 339; Tuff v. Warman, 5 Com. B. (N. S.) 573; Scott v. D. & W. R. R. Co., 11 Irish C. L. 377; Isbell v. N. Y. & N. Haven R. R. Co., 27 Conn. 393.
    Contributory negligence, in order to defeat a plaintiff’s action, must have at least two elements, ex in termini:
    
    
      First. There must be a want of that care which the law ■devolved upon the plaintiff, under the circumstances of the particular case; otherwise, it is not negligence. This Branch, of our subject we have already discussed, in considering whether a failure to look up and down is negligence or not.
    
      Second. The negligence must be contributive to the injury; that is, it must have had a share in producing the injury. It must have been instrumental in the consummation of the fatal transaction. Therefore, where the occurrence producing the injury would have happened, notwithstanding the exercise by the plaintiff of all the care the law required of him, then his action is not barred, although by the exercise of greater care on his part it might have been .averted. So again, although the plaintiff may have been negligent, yet if the defendant (the other party to the transaction) could have avoided the infliction of injury, by the use of that care which was appropriate to the place and occasion, and did not, then the blame attaches to the defendant.
    It is safe to say that in the present case, where the crossing was a busy thoroughfare, in a densely populated city, and the hour of reaching the crossing one at which it was especially crowded, the utmost vigilance was requisite on the part of those in charge of the engine. Kelsey v. Barney, 32 N. Y. 425.
    
      Koadly $ Johnson, in reply:
    If the city ordinance, prescribing the speed for trains within the city limits, should be disregarded, that, in itself, is no evidence of negligence; it simply subjects the offender to the penalties prescribed thereby. Brown v. B. & S. L. R. R. Co., 22 N. Y. 191; Harty v. Cent. R. R. Co. of N. J., 42 N. Y. 468.
    As to the duty of a railroad engineer on nearing a public road crossing, see St. L., A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; Pierce on Railroads, 280; The Phila. & Reading R. R. Co. v. Spearen, 47 Penn. St. 300.
    Conceding, for the sake of argument, that Pieksley did look for an approaching train when he left the grocery, it can not be claimed that he looked again at any time before he was struck; otherwise, the accident would have been avoided. He does not pretend himself to have done so, but simply claims that there was a possibility that he may' have, though he has no recollection of so doing.
    And this bare possibility, counsel for defendant in error claim, is sufficient to put the question of negligence to the jury, because they claim that there is evidence to go to the jury that Pieksley did exercise due caution in looking for an approaching train.
    The language used by the Supreme Court of Iowa, in Artz v. C. R. I. & P. R. R. Co., 34 Iowa, 154, seems to be peculiarly applicable to this theory of the case.
    On the question of contributive negligence, we desire to refer the Court to the following authorities, which have appeared since our original brief herein was written: Baxter v. The Troy & Boston R. R. Co., 41 N. Y. 502; Nicholson v. The Erie R. R. Co., 41 N. Y. 526; Harty v. Central R. R. Co. of N. J., 42 N. Y. 468; Barker v. Savage & Gormley, 45 N. Y. 191; Gorton v. The Erie R. R. Co., 45 N. Y. 660; Davis v. N. Y. C. & H. R. R., 47 N. Y. 400; Penn. Canal Co. v. Bentley, 66 Penn. St. 30; The Penn. R. R. Co. v. Beale, 5 Legal Gazette, 252; Butterfield v. Western R. R. Corporation, 10 Allen, 552; Burns v. Boston & Lowell R. R. Co., 101 Mass. 50; Artz v. C. R. I. & P. R. R. Co., 34 Iowa, 154; The Bellefontaine R. R. Co. v. Hunter, Adm’r, 33 Ind. 336; Bridges v. The North London R. R. Co., L. R., 6 Queen’s Bench, 379
   White, J.

This case, and the cases of the Cleveland, Columbus and Cincinnati R. R. Co. v. Crawford, Adm’r, etc., and of the Baltimore and Ohio R. R. Co. v. Whittaker, were considered together, and the able and elaborate arguments in this case were used in all the cases. It is unnecessary, therefore, now to undertake to consider or restate the questions already decided in those cases. See ante, pp. 631, 642.

In the present ease, it is enough to say, as to the question of the negligence of the defendant’s servants in operating the train, that the evidence was such as to afford no-ground for our interference with the action of the court below.

The first question is whether the court erred in refusing to instruct the jury as requested upon the subject of contributory negligence in the plaintiff.

What connection must exist between the negligence and the injury to make the negligence a juridical contributing cause, has been the subject of much discussion. So also-has the question as to when the connection may be declared by the court as a matter of law, and when it ought to be submitted to the jury as a question of fact.

The general principle is that negligence to make it a cause in a legal sense, must be such that, by the usual-course of events, it would result, unless independent disturbing moral agencies intervene, in the particular injury. Wharton on Negligence, sec. 324.

Now, applying this principle to the case before us, if those in charge of the train had given the usual warning-of its approach, in all probability the injury would have been avoided. So, too, notwithstanding their negligence, if the plaintiff’, at the time he was about to step on the-track, had looked in the direction of the coming train, he-would doubtless have seen it and saved himself.

We are, therefore, brought to the question whether "it was for the court, or for the jury, aided by proper instruction from the court, to finally decide whether the plaintiff,, under the particular circumstances, was guilty of a want of ordinary care in not seeing in time the approach of the-train.

The circumstances under which the plaintiff acted are sufficiently set forth in the statement of the ease, and need-' not here be repeated. The question is whether they are of such a nature that the court would have been justified in withdrawing them from the consideration of the jury, and in declaring the plaintiff, as matter of law, guilty of contributory negligence. For we think the jury might fairly have understood such to have been the effect of the instruction, if it had been given.

The circumstances that will excuse a person who is about to cross a railroad from using his eyes and ears to avoid injury from a passing train, must be such as are calculated to induce a person, in the exercise of ordinary care, to omit the precaution. This has already been declared by this ■court in several cases. Rut what these circumstances may be can not be prescribed beforehand, nor can a fixed standard be laid down for weighing them. It would be clearly wrong to give the same effect, in all cases, to the omission. The person whose conduct is to be judged can not be separated from the circumstances by which he is surrounded, .and under which he is required to act. In some cases, no doubt, it would be the duty of the court to declare that the • circumstances afforded no excuse for the omission; while, in others, they ought to be submitted to the jury, under proper instructions.

Where the question of negligence depends on a variety of circumstances, from which different minds may arrive .at different conclusions as to whether there was negligence •or not, the question ought to be submitted to the jury, under proper instructions.

These instructions ought to have reference to the special •circumstances of the case, and to be so given as to secure the fair consideration and judgment of the jury upon the point in issue.

• The circumstances of the present case, in our opinion, ■made it one to be passed upon by the jury under proper ■instructions.

We are of opinion, however, that the jury were not properly instructed. The case was finally submitted to the jury on the general charge of the court. This charge consisted mainly of long extracts from the opinions of this court in various cases involving questions of negligence. 'These opinions were intended to state and vindicate general principles, and are not generally adapted to the purpose of ¡being used as a charge to instruct a jury as to their duty under the circumstances of a particular case. The charge,, as it was thus made up, not only failed to afford the jury the aid they ought to have received from the court, in a case like the present, but was calculated to mislead them. It had no special reference to the circumstances of the case, and was too much in the nature of a dissertation on the-general subject of negligence to serve the purpose of a charge in the particular case. The closing paragraph was-calculated to deprive the defendant of the benefit of the-special instructions that had been given at the close of the testimony, and to lead the jury to infer that the law left the rights of the parties to be decided pretty much to their discretion.

A charge, though not strictly objectionable in point of law, but which leaves the jury to draw an incorrect inference from facts in the case material to the issue, will constitute good ground for a new trial, where it is reasonable-to suppose, from a consideration of the whole evidence,, that a different verdict would have been rendered, if the jury had been fully instructed. The charge ought not only to be correct, but to be so adapted to the case and so explicit as not to be misconstrued or misunderstood by the-jury, in the application of the law to the facts as they may find them from the evidence. The Little Miami R. R. Co. v. Wetmore, 18 Ohio St. 134.

In our opinion, the court erred in refusing a new trial.

Judgment reversed, and cause remanded for new trial.

Day, C. J., McIlvatne, Welch, and Rex, JJ., concurring-  