
    Pennsylvania Company, etc. v. Rathgeb.
    1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding .danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such, person for an injury to which such negligence contributed.
    2. In-an action for damages for alleged negligence, the question of negligence on the part of the defendant, or of contributory negligence on the part of the plaintiff, is generally a mixed question of law and fact, to he decided by the jury, under proper instructions from the court.
    .3. But if all the material facts, touching the alleged negligence, be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of negligence becomes a matter-of law merely, and the court should so charge the jury.
    
      4. The court, in charging the jury, observed, “I will not say to you that the .plaintiff should have looked east along the track. I will only say that he was obliged to use his sense of sight in a reasonable manner; and it is for you to say whether he ought to have looked to the east along the track or not before he attempted to cross.” If it appear that by looking he could have run and avoided the danger, it was his duty to look; and, in such case, the court should have charged, as matter of law, that it was his duty to look.
    
      Error. Reserved in the District Court of Columbiana county.
    This is a case of collision between the defendant in error' and a train of cars upon a public crossing, Rathgeb was driving a one-horse wagon eastward on Main street, in the village of Salem, June 5,1872, when he was struck by an extra passenger train, his horse killed, wagon broken, and himself severely injured.
    His testimony is to this effect:
    On the 5th day of June, 1872, in the afternoon, I went west over this west Main street crossing with a load of coal to John Kirk’s house. "While I was unloading the coal one train came along going west. After I unloaded the coal I started back to town, and when I got to the mill I stopped my horse and watched and listened for a train. I thought there might be a freight train coming. It was between five and six o’clock, afternoon, and the passenger train had gone west when I was unloading the coal. I stopped about five minutes at the mill; I did not hear any train, nor any whistle or bell. I then started on and drove the horse on a walk till I reached the track — drove slow on purpose and listened for a train as I drove along. I can’t see very far — my sight not very good. I did not see or hear anything until my horse stepped on the track, and just then the train came from the east onto me. I had heard no signal.
    In his cross-examination he says :
    
      “ I owned the horse four years. Drove this horse over that crossing often. The engine hit us just as my horse stepped on the rail. The horse did not scare until it was hit —he never did scare much, he would not scare at the cars. I do n’t know whether the engine hit the horse or the wagon, I was too much scared when I saw the train, saw it come right on us as the horse stepped his fore feet over the first rail. I stopped to listen about a couple of rods east of Bard’s mill. I stopped there for about five minutes and listened. (But upon experiment of timing by a watch, witness made it fifteen seconds.) I then started my horse and drove onto the crossing at a slow walk. I am nearsighted; I could see a train if there were no obstructions in the way at a distance of fifty rods. Afterl started from where I stopped ,at the mill to listen, and drove on.toward the crossing I looked at my horse and did not look along the track. I did not look along the railroad track to the east at all. I could not see the train coming for the hill and bend in the track; and I first saw the train just as it struck us. I heard no noise of the train coming as I drove along, and the horse did n’t scare until the train was on it, on the track. I do n’t know how far it is from the mill to the track. John Kirk lived back of Sharp’s machine shop, while I was unloading the coal at his house two trains passed along, one going east and one west; I heard them, could not see them because of the hill. I knew it was train time for the passenger trains east and west, they passed at Salem; and I thought the trains I had heard wore all that had to pass. I always stop and listen for trains. It was an emigrant train that hurt me, so the people told me the same evening that I was hurt. I did not hear the train, it came up quiet and fast.”
    It is 330 feet from the center of the railroad track to the east line of Bard’s mill, two rods east of which he says he stopped to listen. There is the usual conflict of testimony as to the ringing of the bell and sounding of the whistle, previous to reaching the crossing. Some witnesses say they heard no such signals; some say they were not given, while the railroad men, and others not connected with the train, say the signals were given. If the case turned upon this disputed question of fact, we should, perhaps be content to leave the controversy where the jury and the court below left it.
    Main street, on which Rathgeb was traveling, runs east and west, and the railr®ad crossing it runs from southeast to northwest. The colliding train came from the southeast, having stopped at a station some distance from Main street.
    
      A map was offered in evidence, and the testimony of the engineer making it, who testified for the company, as to the distance at which a train could be seen, coming from the south-east, by one on Main street. It hence appears that a person going along Main street from west to east, when 330 feet from the crossing, could see a train 248 feet from the crossing; approaching the track, and 150 feet therefrom, the train could be seen 339 feet from the crossing ; 100 feet from the track, a train can be seen 430 feet from the crossing. The range of vision increases as the track is approached, and ten feet therefrom a train can be seen while 1800 feet distant, and 'even.farther than that.
    Counsel for defendant below asked the court to charge the jury as follows :
    1. “ If the plaintiff, as he passed Bently’s house, and approached near to the iron track, did not look eastward along the railroad to discover if a train was approaching, and drove his horse upon the track without so looking eastward, that would be evidence of negligence upon his part, and sufficient to justify the jury in rendering a verdict against him.” Which the court read to the jury, but refused to give as a whole, but did give all of it in charge to the jury, save the concluding words following: “ and sufficient to justify the jury in rendering a verdict against him,” which the court refused to give, to all of which counsel for defendant excepted.
    Counsel for defendant also asked the court to give the following instruction in charge to the jury, viz :
    2. “ The plaintiff was bound to use his senses of sight and hearing, in a reasonable manner, to discover if a train were approaching from the east, and if the conformation of the ground to the east obstructed the view along the track to the east until he came up near the track, that circumstance would require of him a greater amount of caution to discover if a train were approaching from the east, before he allowed his horse to enter upon the iron track, and would not excuse him from looking along the track to the east after he came near to the track, where he could see.” Which the court gave to the jury, with the exception of the following clause, viz: “ and would not excuse him from .looking along the track to the east after he came near to the track, where he could see,” which clause the court refused to give. And the court said to the jury: “I will not .say to you that the plaintiff should have looked to the east along the track. I will only say that he was obliged to use his sense of sight in a reasonable manner; and it is for you to say whether he ought to have looked to the east, along the track, or not, before he attempted to cross.” That is, whether, by entering upon the track, under all the circumstances surrounding him at the time, without so ■looking along it, he failed to use ordinary care. His failure to so loqlc along the track to the extent of his power of sight, would, standing alone, tend to show negligence; but taken in connection with the other testimony in the case, bearing on the point, it is for you to find whether he used due care or not. To all of which refusal, qualification, and charge given, counsel for defendant excepted.
    3. Counsel for defendant further asked the court to give the following instruction to the jury, viz: “ If the plaintiff’s sense of sight was impaired, so that he could noi discern objects but at a short distance, and if any rattling noise made by his wagon, or the force and direction of the wind, interfered with his ability to hear the approach of the train, then, if he did not stop his horse and pause just before entering upon the railroad track, and listen to hear if any train were approaching, that would be evidence of negligence upon his part.” Which the court read to the jury, but refused to give as a whole, but did give it all with the exception of the closing words following: “of negligence upon his part,” and for which words the court substituted the words following: “for your consideration upon the question whether he used ordinary care to avoid the injury,” to all of which counsel for defendant excepted.
    “It is claimed by the defendant, that if plaintiff did not look along the track to the east, as he approached the track, that he could not recover* but I will not so charge. I leave that for you to determine, taking into view the condition of his eyesight, whether he stopped to listen as he approached near the track, and failed to hear any bell or whistle, or other indication of the approaching train, and any other testimony in the case, tending to show the danger reasonably to be apprehended by him, and precautions taken by him to avoid it. You must be convinced, from all the testimony, that he used ordinary care to avoid the injury, or he can not recover.”
    The jury returned a verdict for plaintiff, below, in the sum of $1,900. Motion for a new trial was overruled and a bill of exceptions taken, embodying all the testimony. A petition in error in the district court was reserved to the supreme court for decision.
    
      J. T. Brooks, for plaintiff in error,
    claimed that even if the railway company was guilty of negligence, and Rathgeb was guilty of contributory negligence, he can not recover, and cited: Railroad v. Picksley, 24 Ohio St. 655; Davis v. Railway, 47 N. Y. 400; Reynolds v. Railway, 58 N. Y. 248; Mitchell v. Railway, 64 N. Y. 655; Railroad v. Methoven, 21 Ohio St. 586; Gorten v. Railroad, 45 N. Y. 664; Artez v. Railroad, 34 Iowa, 154; Railroad v. Terry, 8 Ohio St. 585; Baxter v. Railroad, 41 N. Y. 502.
    
      J. A. Ambler and Kennett & Ambler, for defendant in error,
    on the question of contributory negligence cited: Tuff v. Warman, 2 Conn. B. N. S. 740; Radley v. Railway, 3 Law and Eq. Rep. 467; Patterson v. Wallace, 28 E. L. & E. 48; Railroad v. Crawford, 24 Ohio St. 638.
   Weight, J.

It may be assumed that the signals were not given as the train approached the crossing. The statute, 69 Ohio L. 49, requires that whistle and bell shall be used, from eighty to oue hundred rods from the crossing, the bell to continue ringing until the road is passed. If these injunctions are not complied with, the statute provides that the company shall be liable in damages to any person injured “ by the neglect or act of said engineer or person in charge of the engine,” %. e. in failing to give the signals.

It is evident from this language that the failure to give signals must have occasioned the accident, that is, must have been the proximate cause of it before recovery can be had. The injury must happen “ by neglect ” of the engineer. If it occurred from some other cause, liability can not arise therefor, under that statute. Indeed, this statutory duty is not different in the responsibility it imposes upon railroad companies from that arising under the common law. Railroads must be careful. If they neglect this duty and such neglect occasions damage, they are responsible. But, though they may be negligent in some degree, if no damage arises, no liability exists. That is, if the injury complained of was not brought about by the negligence in question, but by something else not chargeable to the company, they can not be held.

Before, therefore, plaintiff can recover, because signals were not given, he must cause it to appear that this failure of duty brought about the disaster; for if his own imprudence was the moving cause, he can not maintain his action, although the company may not have observed the provisions of the statute.

The law is thus stated in “Wharton on Negligence, § 884 : “ Where a person knowingly about to cross a railroad track may have an unobstructed view of the railroad, so as to know of the approach of a train a sufficient time to clearly avoid any injury from it, lie can not, as a matter of law, recover, although the railroad company may have been also negligent, or have neglected to perform a statutory requirement.” “Wharton elaborately collects the authorities that sustain the text.

We think the law must now be considered as well settled, that the traveler approaching a crossing, must be upon the lookout for danger. Ordinary care requires that he must look and listen to see if a train is in the vicinity, and if ho fails in this, it is not merely evidence of negligence to be considered by the jury, it is itself such negligence as will prevent a recovery. Gorten v. Erie R. R. Co., 45 N. Y. 660; Ernst v. H. R. R. Co., 35 N. Y. 9, and 39 N. Y. 61; Beisiegel v. N. Y. C. R. R., 34 N. Y. 625; Havens v. Erie R. R., 41 N. Y. 296; Wilcox v. Rome & W. R. R., 39 N. Y. 358; Artz v. C. R. I. & P. R. R., 34 Iowa, 153; Stevens v. Railroad, 18 N. Y. 422; Reynolds v. Hinchman, 32 Iowa, 146; G. & W. R. R. v. Loomis, 13 Ill. 548; Davis v. Railroad, 47 N. Y. 400; Mitchell Acler v. N. Y. C. & H. R. R., 64 N. Y. 655; 58 N. Y. 248.

Counsel for the railroad company asked the court to charge the jury as follows :

1. “If the plaintiff as he passed Bently’s house and approached near to the iron track, did not look eastward along the railroad to discover if a train was approaching, and drove his horse upon the track without so looking eastward, that would be evidence of negligence upon his part, and sufficient to justify the jury in rendering a verdict against him.” The court gave the charge, all but the concluding sentence “ and sufficient to justify the jury in rendering a verdict against him.”

The evidence is clear, that Rathgeb might have seen the train at any point less than 300 feet from the crossing, until he reached it, and seen it in time to have avoided a collision. Although he says he was near-sighted, still he stated that he could have seen a train for a distance of fifty rods, and his defect of vision was not such as to vary the principle.

Being able to see, therefore, and the opportunity of seeing being presented, his failure to discover or to be aware of the approaching cars, we think, was not only evidence of negligence, but negligence itself, and sufficient to justify a verdict against him. And in, other parts of the charge, the court declined to say that the positive duty of the plaintiff was to look up along the track, but left it to the jury to determine whether it was incumbent upon him to do so or not. We think such directions do not meet the requirements of the case. The l’ule should be laid down in such clear terms that there can be no mistake in its application. This case is really disposed of by that of Railroad v. Elliott, 28 Ohio St. 340. In the Cleveland C. & C. R. R. v. Crawford, 24 Ohio St. 631, the first clause of the syllabus is, “ Ordinary prudence re-, quires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train ; and the omission to do so, without a reasonable excuse, therefore, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.”

In this case the court say that as a general rule the question of contributory negligence is a mixed question of law and fact, and proceed to observe, “ Where, however, all the material facts in the case are undisputed, or are found by the jury, and admit of no rational inference but that of negligence, or that of due care, it is, no doubt, the duty of the court to say to the jury that, as matter of law, the facts so appearing amount to negligence, or due care, as the case maybe; as it would be the duty of the court to determine, as a question of law, what judgment should be rendered on a special verdict.” This ease carefully distinguishes between those cases where omission to use the senses is negligence and where it is not. If the using the eyes and ears could not have prevented the collision, an omission to use them is not contributory negligeuce. If the circumstances were such as would have excused a person of ordinary prudence from looking and listening, then there is no negligence.

The proposition is further illustrated by the case of the Bellefontaine Railroad Co. v. Snyder, 24 Ohio St. 670, the syllabus of which.is, “It is the duty of a person approaching, crossing, or standing upon a railroad track, where cars are being run, to look out for approaching-cars, and if he fails to do so, he is prima facie guilty of such negligence as will prevent his recovery for injuries occasioned to him, while so crossing or standing upon the track, by the mere carelessness, negligence, or nnskillfnlness of the company, not amounting to willfulness on their part; and this presumption of negligence can only be rebutted by facts or circumstances showing that it was not reasonably practicable to make or keep such lookout, or such as would ordinarily induce persons of common prudence to omit that precaution.”

In the case before us, the evidence is clear that Rathgeb might have seen the train, by simply using his eyes, in time to have prevented the collision. There were none of the circumstances referred to in the Crawford and Snyder cases, which absolved him from the duty of exercising his vision. There was no reason why lie should not have looked, and had he done so he would not have been hurt.

A case of contributory negligence was decided by the Supreme Court of the United States, October term, 1877. The Balt. & Pot. R. R. v. Jones, Weekly Cin. L. Bulletin, Jan. 7, 1878. Jones ivas a laborer in the employ of the company. The men were in the habit of riding to and fro from their work. A locomotive and box car was used for this purpose, but the men, or some of them, often jumped on the pilot and rode there. Jones had been cautioned against this and forbidden to do so, but upon the day when he was hurt, he disobeyed the injunction and jumped on the pilot. By a collision he was hurt. The court was asked to charge as follows: “If the jury find from the evidence that the plaintiff knew the box car was the proper place for him, and if he knew his position on the pilot of the engine was a dangerous one, then they will render a verdict for the defendant, whether they find that its agents allowed the plaintiff to ride on the pilot or not.” This charge was refused. Mr. Justice Swayne says : “ The plaintiff was not entitled to recover. It follows that the court erred in refusing the instruction asked on this subject. If the company' had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such directions, and error to refuse.”

In the case before us the negligence of plaintiff was such that the jury should have been told that it barred his right of recovery.

Judgment reversed.  