
    Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. Edgar H. Elliott.
    1. In an action against a railroad company to recover damages caused to third persons by a train in motion, no recovery can be had unless the agents and servants of the company were guilty of negligence, which occasioned the injury.
    
      2. The omission to ring the bell or sound the .whistle at public crossings is not of itself sufficient ground to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident.
    3. What is such contributory negligence as will defeat a recovery is usually a question of mixed law and fact, to he determined by the jury from all the circumstances of the case and under proper instructions from the court; hut where the undisputed facts show that by the exercise of ordinary care a party migh; have avoided injury, he can not recover.
    4. It is the duty of a traveler .upon the highway, when approaching a railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possessiomof his faculties, he fails to see or hear anything, when a prudent man, exercising his eyes and ears, with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is’guilty of such negligence as will prevent a recovery.
    Reserved in the District Court of Lorain county.
    This action was brought to recover for an alleged injury to defendant in error, caused by the carelessness and negligence of plaintiff in error, in the running and management of a locomotive and one car on its railroad in the county of Lorain.
    The petition avers that on the 21st day of May, a. d. 1870, the defendant in error was traveling in a buggy drawn by two horses upon the public highway leading from "Wellington to Rochester Depot, in said county, and while in the act of crossing plaintiff’s railroad at about the hour of 12 m., he was struck by one of plaintiff’s locomotives run by plaintiff’, thrown from his buggy, and was seriously and permanently injured by the collision without any fault on his part.
    That the train causing the accident consisted of a locomotive and one car; that it was an irregular train, and was not l'un upon any time fixed for trains passing that point; that defendant knew the time for trains, and knew that none was then due at that place, and relied upon that fact in part for safety.
    The petition also avers that plaintiff in error, in the construction of its railroad, made an excavation for the roadbed, and that its railroad track is some fifteen feet below the natural surface at the crossing and for a long distance on either side of it. That in constructing said railway the plaintiff removed the dirt from the highway and dug it down to a level with the railroad track, causing it to descend to said track, leaving high banks on either side of it, which banks on the side of the railroad and highway were obscured with growing bushes and foliage; by reason of all which the highway, it avers, is greatly impaired in its usefulness, and the crossing is of a highly dangerous character, as constructed by plaintiff and maintained and kept up by it.
    It further avers that plaintiff in error, by its agents, in approaching said crossing ran the train with great speed and omitted to give any signal by bell or whistle, or otherwise, of its approach.
    The answer admits that at said crossing and for “some little distance” upon each side of it, the railroad track is constructed below the natural surface; but it avers that at the point of crossing, the depth is not over five or six feet, and that the descent is gradual, and denies that the highway is impaired in its usefulness by the method of constructing this crossing.
    The answer denies that the approach to the crossing is so obscured that persons traveling on the highway can not see-the locomotive and cars approaching until they are near at hand, and denies that the crossing is highly dangerous.
    It admits that the colliding train was running about thirty miles an hour, which it alleges was not an unusual rate of speed. It further admits that this train was not being run upon any regular time-table, but was run upon the time of other trains, then due at the place of collision.
    It denies negligence upon its part, and avers that the bell was rung while approaching the crossing and for eighty rods before reaching it. Avers that it had a signpost warning travelers to look .out for the approach of trains.
    
      It avers contributory negligence on the part of plaintiff as follows:
    
      “ This defendant further says that said plaintiff approached said crossing with full knowledge of its situation and dangers; that he carelessly and recklessly drove on to said railroad track immediately ahead of said locomotive without looking or attempting to look or ascertain whether a train was approaching or not; that by the exercise of the least care upon his part, in looking along the track, listening for the sound of an approaching train, he heedlessly and recklessly drove on to said track and crossing; that at that point said railroad track is straight, and trains can readily be seen by persons approaching the same for miles in each direction, and that if plaintiff' had taken the least trouble to look, he could have seen said locomotive and car long before going onto said track, and in abundant time to avoid the injury or collision.
    
      “ That the plaintiff was íúding in a top-buggy, with the'top up and curtains down, and he drove on to said track without stopping or looking, or taking any other measures to ascertain whether any train was approaching, and that whatever injury he sustained by reason of such collision, or being struck by said locomotive, was sustained in consequence of his own fault and negligence, without any fault or neglect on the part of this defendant.”
    A reply denies the matters of defense set forth in*the answer.
    At a trial before a jury, October, 1871, in the court of common pleas, a verdict was rendered for plaintiff, in the sum of $3,000. Á second trial was taken and had, resulting in a second verdict for plaintiff in the sum of' $4,925.
    A motion for new trial was overruled, and bill of exceptions taken. A petition in error was filed in the district court, which was reserved for decision in the supreme court.
    The usual errors are assigned, among which are that the verdict was not Supported by the evidence, and is contrary to law. 'The evidence is set forth in full in the bill of exceptions, from which it appears that the collision occurred at a place known as Leach’s crossing. At this point the general direction of the railroad is northeast and southwest ; the public highway is due east and west. Some distance east of Leach’s, the highway turns due north, crossing the railroad again, ninety-seven rods northeast of Leach’s, at what is known as Anderson’s crossing. The highway and railroad thus make a right angle triangle, of which the railroad from Leach’s to Anderson’s is the hypothenuse and the highway forms the other two sides, upon the south and east of the track. A map is exhibited as part of the testimony, showing the location of the railroad, the various distances, and the cuts and fills. Just east of Leach’s crossing, where the accident occurred, the highway runs upon an ascending grade, the summit of which is twelve rods, or 198 feet from the center of the track, and upon this summit is Eisher’s house, frequently referred to as a landmark. This house is on the south side of the highway. Erom Eisher’s down to the track the road at first descends quite rapidly, but approaching the track the ground is nearly level. In front of Eisher’s the ground is 11.43 feet higher than at the track. The railroad runs through a cut at Leach’s crossing, which is deepest nearest that crossing, but falls away considerably toward Anderson’s crossing, on the northeast. Upon the day of the accident, defendant was driving a two-horse buggy, approaching the track from the east. He says he got to Leach’s crossing at ten minutes before twelve, and he knew there was a freight train due about that time from the south. He then says: “ Train usually at Wellington when I went to dinner, at half-past twelve; I was going west when I got to the brow of the hill at Leach’s crossing, so I could see the track; I stopped, and looked, and listened, and then looked at my watch to see what time it was; looked south and north, both ways; could see some distance south ; could see nothing.but cut to the north, where I supposed the track was; I heard nothing when I listened, and saw no train ; looked at my watch and knew the time from that; never over that crossing but once before, and that about an hour before I was hurt; knew of no regular trains from the north due at that time ; they usually went in the forenoon; I then drove down on the track and was hit; was struck by the engine; I first saw the train when I was on the track; just saw the engine and it was on me ; the next I knew I was at Leach’s house ; came to consciousness there ; found I was hurt.”
    The train which occasioned the mishap was moving from Anderson’s toward Leach’s, or from northeast to southwest.
    In his cross-examination, he testifies as follows: “ Knew about time freight train from south got to Wellington ; think from twelve to half-past twelve; I went nearly at the same time to dinner; I crossed at Anderson’s crossing ten (10) minutes before accident; did not know the precise time any train was due at Leach’s crossing; knew about time it was due at Wellington, but could not tell within ten minutes the time it was due at Leach’s; Fisher’s house is on south side of highway; I stopped nearly opposite Fisher’s house, so I could see the track; can’t tell how long it takes to drive down to the track from where I stopped; I drove down the slope on a trot; I drove down the slope on a trot as horses usually go ; perhaps I said nine or ten miles an hour on the former trial; do n’t remember; when I was going east in the morning, noticed Leach’s crossing was a bad place to cross ; my story about stopping and listening is -not made up for the occasion; stopped so I could listen ; could see out of the buggy; this wras the first time I stopped and looked or listened that day; only stopped and looked once, and that was on the summit, in front of Fisher’s house ; did not look or listen for an approaching train after I left the summit until I got on the track; did not look to see; did not-look up the track until my horses got on the track; could not look up the track before ; -weeds grew along bank of track.”
    As a consequence of the collision, plaintiff was seriously injured.
    
      A large amount of evidence is offered, from which it appears to be an. undoubted fact that, standing upon the summit at Fisher’s, a train can be seen all the way from Anderson’s to Leach’s crossing-. For most of that distance, the bodies of the cars are in full view, but as they approach Leach’s, and the cut grows deeper, for a short distance, nothing but the top of the smoke-stack is visible. This deep part of the cut is right at the crossing. It also appears that the train is visible for half a mile or a mile east of Anderson’s crossing. Right at that crossing it is obscured for some rods, though the smoke and steam may still be seen.
    Upon this point, one of plaintiff’s witnesses (Hiram Leach, from whom the crossing takes its name) testifies as follows: “ Have made observations from top of the hill in front of Fisher’s house; from that point can see the train approaching for a mile or more before it reaches Anderson’s crossing; at Anderson’s crossing the cut obscures the train for a few rods, ten or twelve, I should think; from Anderson’s crossing, can see the train all the way to my crossing ; most of the distance it is in full view; when it reaches the point just before it gets to my crossing it passes out of sight, with the exception of the smokestack, which is in view all the way; when you get down to within about sixty feet of the track, you can look up the track and see a train approaching at Anderson’s crossing.”
    John Chamberlain, another of plaintiff’s witnesses, testifies as follows : “ Have sat in a buggy in front of Fisher’s house and watched trains passing and repassing; can see smoke-pipe of engine all the way through the cut, except eight or ten rods at Anderson’s crossing; from ten rods west of Anderson’s crossing until train gets within ten rods of Leach’s crossing you can see body of the train v*ery plainly; then you can see the smoke-stack through the fence until it reaches Leach’s crossing ; you can see train a mile or more before it reaches Anderson’s crossing, some trees there interfering with the view; train out of sight there for twenty rods, should think; smoke and steam ascend above the cut; after you commence descending the-hill yon can not see train until you get within sixty-seven feet of the track at the crossing — there you can look up the track two hundred and forty-seven feet, and see top of smoke-stack; at the point, fifty-seven feet from track, you can look up the track to Anderson’s crossing.”
    John Wheeler, also a witness for plaintiff, says : “ Standing on summit of hill in front of Eisher’s, you can see train plainly one-half mile east of Anderson’s crossing, until it gets within a short distance of Anderson’s crossing, there you lose sight of the train for some rods; about the time the engine passes Anderson’s crossing it comes in sight again, and you can see it all the way through the cut; part of the way can see the body of the train plainly, down to bottom of window-Sills, and can see the smoke-stack all the way until it passes Leach’s crossing; at Anderson’s crossing some trees obscure the view somewhat; as you descend the hill, from the3 summit to a point about four and one-half rods from the summit, you can see train all the way through the cut; from that point I made no observations until I got down to within sixty-seven feet of the track; at that point, could see engine up track two hundred and forty-seven feet; going six feet nearer the track, could look up the track to Anderson’s crossing, and by going a step further, could look up the track a mile or more ; from the track up the highway sixty-seven feet the ascent is from two to three and one-half feet; when buggy at sixty feet from track, horses’ heads would be ten or fifteen feet nearer the track ; the fence would obstruct the view of the horses, but not of the driver — he could look over the fence.”
    So also Ransom E. Braman, who assisted the county surveyor to make a survey of the premises, says : “ Took observations when experiments were made with train; standing at the highest point of ground before descending to the railroad track, which was in front of Eisher’s house, could see train a mile or more before it got to Anderson’s crossing (could not see the train there for eight or ten rods, but could see smoke and steam there when you could n’t see the train); from Anderson’s crossing to Leach’s crossing could see the train all the way; most of the way could see the driving-wheels work; in the cut in front.of Eisker’s house could see top of smoke-stack; I sat in a wagon and took observations, in front of Eisker’s house, and also from that point all the way down the hill to the track; at the point, one chain and ten links from the top of hill, could see the train east of Anderson’s crossing, and all the way through the cut, except eight or ten rods at Anderson’s crossing; at' point, one chain and ninety links from the track, could see the train all through the cut, over the bank ; at the point, one chain and thirty-six links from the track, could see the train over the bank all the way; when got to the point, sixty-six feet from the track, could look up the track, inside the bank, to Anderson’s crossing, ninety-seven rods ; when got within five or six feet nearer the track could look way beyond Anderson’s crossing; made repeated and careful observation of the train going through the cut at different times, and found there was no place from the top of the hill in front of Eisker’s down to the track but that a person could see a train all the way through the cut, either over or past the bank; the train ran through several times.”
    Defendant’s testimony is all corroborative of these facts.
    
      S. Burke, for plaintiff in error,
    on the law of negligence as applicable to this case, cited: Wharton on Neg. 384; Haight v. R. R. Co., 7 Lansing, 596; Morris v. R. R. Co.,, 55 Barb. 490; Lake Shore R. R. Co. v. Miller, 25 Mich. 276; Wilcox v. R. R. Co., 40 N. Y. 34; Davis v. N. Y. Central R. R. Co., 47 N. Y. 400; Butterfield v. Western R. R. Co., 10 Allen, 532; Allyn v. R. R. Co., 105 Mass. 77, and Wheelock v. The Same, 105 Mass. 203; 22 Ind. 185; 33 Ind. 356; 49 Penn. St. 60; 73 Penn. St. 504; 54 N. Y. St. 245, 642; Baxter v. Troy & B. R. R. Co., 41 N. Y. 502; Stubley v. A. & N. W. R. R. Co., 1 Ex. 13; 28 Ind. 287; 26 Ind. 370; 27 Barb. 221; McCall v. R. R. Co., 54 N. Y. 642; Havens v. Erie R. R. Co., 41 N. Y. 296; 13 Ill. 548; 16 Ill. 198; 22 Ill. 264; 29 Ill. 447.
    
      
      J. H. Dickson and John C. Hale, for defendants in error,
    on the question of negligence, cited: S. & R. on Neg., secs. 480, 481; C., C. & C. R. R. Co. v. Crawford, 24 Ohio St. 631; 40 N. Y. 10; C., C. & C. R. R. Co. v. Terry, 8 Ohio St. 581.
    In the absence of any signal, defendant in error had the assurance of the plaintiff in error that the crossing was safe. Beiseigle v. N. Y. C. R. R. Co., 40 N. Y. 9; Earnest v. Hudson River R. R. Co., 39 N. Y. 61; Kennayde v. Pacific R. R. Co., 45 Mo. 255; Tabor v. Mo. Valley R. R. Co., 46 Mo. 353; Penn. R. R. Co. v. Ogier, 35 Penn. St. 60.
    As to when negligence is a question for the jury, or for the court, see 24 Ohio St. 631; B. & O. R. R. Co. v. Fitzpatrick, 35 Md.
    When the evidence is conflicting or questions of credibility are involved, the case must be very clear, indeed, in favor of the defendant to justify the court in granting a nonsuit. 3 A. L. J. 312; 104 Mass. 142; 118 Mass. 431; 117 Mass. 297; 116 Mass. 537; 119 Mass. 135; Ib. 150; 58 N. Y. 451; 52 N. Y. 437; 49 N. Y. 47; 24 Ohio St. 651.
   Wright, J.

We do not feel authorized to disturb this verdict, on the hypothesis that the railroad company is without negligence in not giving proper signals. Upon this point the evidence is conflicting. Several of the railroad employes testify that the bell was rung while approaching the crossing. Three persons were on the engine —the engineer, fireman, and Ologg, the wreckmaster. Each had a hand in ringing the bell between Anderson’s and Leach’s crossing. Opposed to this is the testimony of various witnesses, with different opportunities of observation, who declared they heard no bell, and some of whom assert that had it been rung they would most probably have heard it. Be it as it may as to the bell, it quite clearly appears that the whistle was not sounded.

Whether or not the railroad company were bound to whistle at every road crossing, is a proposition we are not prepared to affirm, as at present advised. The use of the whistle should be reserved for a special signal of danger. If it is constantly employed, familiarity with it destroys all its salutary effects, and it moreover becomes an intolerable nuisance. A report of the railroad commissioners of Massachusetts may be found in Wharton on Negligence, 804, which discusses this subject intelligently. And we do not say that the omission to whistle upon this particular occasion was negligence. This is a question to be decided upon the special circumstances of each case as it arises. The statute now in force, passed after this accident occurred (69 Ohio L. 49), requires this duty at the hands of the company. But if it be assumed, upon the finding of the jury, that the railroad company were guilty of negligence in not giving proper signals, it i^ to be considered what effect such negligence has upon the rights of the parties.

In the case of Wilcox v. Rome, Watertown and Og. R. R., 39 N. Y. 358, the proper signals by bell or whistle were not given, but plaintiff was not allowed to recover because of his own negligence. The court say (p. 365): The omission of the company to ring the bell or sound the whistle near the crossing of a highway does not relieve the person who is about to pass over the highway from the obligation of employing his sense of hearing and seeing to ascertain whether a train is approaching.” And the court proceeds to observe that deceased could have seen the train had he looked for that purpose; but he neglected to exercise that prudence which the circumstances demanded, and such carelessness is not excused by the fact that the other party has failed to give the accustomed signals.

In the Chicago and Minn. R. R. v. Dill, 22 Ill. 271, it is said that the omission to ring the bell or sound the whistle, although that duty is imposed by statute, is not negligence, unless such omission produces the injury complained of. The result may have been the same if the bell had been rung or the whistle sounded, and if so, it was not negligence to omit such signals. See also Stevens v. Oswego and Syracuse R. R., 18 N. Y. 422.

The case of Artz v. Chicago, Rock Island & P. R. R., 34 Iowa, 154, is an interesting case upon this subject. In that state there is no statute requiring the bell to be rung or whistle blown. As to such statutes, the court say, even where they are in force, the omission to comply with them does not make the railroad company absolutely liable for an injury, but only when such injury was occasioned without contributory negligence upon the part of the person injured. In that case, as in this, the court say, that as to the giving the signals by bell or whistle, the evidence was conflicting}, and the verdict could not be disturbed on that ground. The evidence, however, showed that for a distance of at least 660 feet before reaching the crossing, plaintiff could have an unobstructed view of the track, and trains for at least 1,010 feet; that the distance of view increased as the crossing was approached ; that plaintiff was familiar with the locality, the train was on time, and the headlight burning, it being about nine o’clock in the evening. And the court say : “ This being true, we hold, as a matter of law, that the plaintiff can not recover, since his own negligence must have directly contributed to the injury.”

The court also make the following very pungent observations :

“ But it is urged by the appellee’s counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not, and that this testimony shows that he was not guilty of contributory negligence, or, at the very least, it made it a question of fact for the jury. The difficulty, however, with the position is, that the conceded or undisputed facts being true, this testimony cannot, in the very nature of things, be also true. It constitutes, therefore, no conflict. Suppose the fact is conceded that the sun was shining bright and clear at a specified time, and a witness, having good eyes, should testify that at the time he looked and did not see it shine, could this testimony be true ? The witness may have' been told that it was necessary to prove in the case that he did look and did not see the sun shine; he may have thought of it with a desire that it should have been so; he may have made himself first believe it was so, and this belief may have ripened into a conviction of its verity, and possibly be even may testify to it in the self-consciousness of integrity; but after all, in the very nature of things, it can not be true, and hence can not, in the law,,form any basis for a conflict upon which to rest a verdict. A man may possibly think he sees an object which has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist or was not seen. But an object and power of sight being conceded, the one may not negative the other;
In this case the plaintiff had good eyes; the train was approaching him in the night, with the engine’s headlight burning brightly; if the plaintiff looked he must have seen it, or he must have looked very negligently and carelessly. In either case, he was necessarily, in the eyes of the law, guilty of contributory negligence, precluding his right to recover.” Spencer v. Ill. Cent. R. R., 29 Iowa, 55; Chicago & R. I. R. R. v. McKean, 40 Ill. 218.

The cases on this subject of negligence are numerous, and could not all be commented upon in an opinion of any reasonable length. The principle we deduce from the authorities is, that an omission to give the ordinary signals by. bell or whistle does not absolve the plaintiff from the necessity of exercising ordinary care.

Manifestly a plaintiff can not, with his eyes open, drive squarely into a train, which he sees and knows is before him, and then claim to recover because the bell was not rung nor the whistle sounded. Equally true is it, that if he could have seen the train, and could have avoided it by the exercise of ordinary care, he can not recover. And if the circumstances were such that he could have known and ought to have known, the accident must be chargeable to his own fault. And we hold the rule to be that if, by the exercise of ordinary care, the plaintiff could have seen and avoided the train, the omission to whistle or ring, alone, is not such negligence on the part of the company as will justify a recovery. The court, therefore, very properly told the jury: “ To entitle the plaintiff to recover, he must establish two propositions — first, that such injury was caused by the negligence of the company, and secondly, that his own negligence did not contribute to his injury.”

And again : “If you shall find that the company, by its employes running said train, failed to exercise such reasonable care as men of common prudence and caution, situated as they were, having charge of, or' being engaged in, the same business, would have exercised, and such failure caused the injury of the plaintiff, the defendant is liable, unless the plaintiff’s own negligence contributed to the injury ; in which case he would not be entitled to recover, whether the defendant was guilty of negligence or not. Negligence of the plaintiff', directly contributing to his injury, defeats a recovery. The law does not apportion the damages between parties whose joint negligence caused to one of them an injury. Nor does it permit the plaintiff.in such caseto recover, although he was less negligent or’careless than the defendant. If the injury was the work of the co-operating or concurring negligence of both parties, the law permits no recovery.”

It is therefore necessary to inquire whether'defendant in error was himself guilty of such negligence as will preclude a recovery.

It is well said in Wharton on Negligence, section 382: “ It is the duty of a person who attempts to cross a railroad to listen for signals, to notice all signs that may be put up as warnings, and to look up and down the road. It follows, therefore, that if a traveler by looking along the road could have seen an approaching train in time to escape, it will be presumed, in ease of collision, that he did not look, or looking did not heed what he saw, and in such case the road under ordinary circumstances is not liable.”

The same author (p. 384) says: “ 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, he 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.”

Authorities cited in the briefs of counsel abundantly sustain the principle thus laid down.

The evidence is clear that at the summit in front of Fisher’s house, where Elliott alleges he stopped to look, a train can be seen for a long distance east of Anderson’s crossing. Some witnesses say half a mile, some a mile. At Anderson’s crossing it is out of sight for a few rods, though the smoke and steam may still be seen. From Anderson’s crossing the greater part of the way to Leach’s, the train is in plain sight, until just as it reaches the latter, where the top of the smoke-stack is visible.

The best estimate that can be formed from the evidence is, that the train was moving thirty miles an hour, and Elliott says he started from the summit 'at a good trot, probably nine or ten miles an hour. It was one hundred .•and ninety-eight feet from summit to track, and Elliott ■would pass over this distance, at ten miles an hour, in .¡about thirteen seconds of time. While he was passing -over this distance the train would travel about eight hundred feet, which was about half way to Anderson’s crossing. When, therefore, he stood at the summit and looked, the "train was somewhere between Anderson’s and Leach’s, ¡and somewhere about eight hundred feet, or between five ‘hundred and one thousand from the latter. It was, therefore, upon that part of the track where it was plainly to be ¡■seen, as some say, down to the sills of the cars, others say to the driving-wheels.

If, therefore, Elliott, at the point of observation, had' looked as a man exercising ordinary care should have .looked, he could not have failed to see the train. He would have seen it at such a distance advancing at such a •speed as would have satisfied auy prudent man that an attempt to cross would be at the risk of his life, just as the «event proved.

It is nothing to the purpose that he should say he looked this way and that, when the object he seeks to discover is plainly and palpably before him, and he fails to see it. Either his statement is not true, or his exercise of vision was such as to be not only negligent but culpable.

In descending the hill from the summit to the track, one witness says there is no point at'which a train from the northeast may not be seen all the way from Anderson’s to Leach’s. This witness is Braman, who assisted the county surveyor in making a survey of the localities, and who says he took his observations in a wagon. Other witnesses say there is a point, going down, where the hill shuts out the train for a short distance. But it does not appear that these witnesses observed from a wagon or carriage, the elevation of which, of course, would give a wider view.

Be this as it may, it is entirely clear that a traveler going down this hill reaches a point, before getting to the track, where the train again is in view. . This point is thus located by the witnesses :

One says: “ When you get down to within about sixty feet of the track, you can look up the track and see a train approaching at Anderson’s crossing.”
Another thus : “After you commence descending the hill you can not see train until you get to within sixty-seven feet of the track at the crossing — there you can look up the track two hundred and forty-seven feet and see the top of' smoke-stack ; at the point fifty-seven feet from track you can look up the track to Anderson’s crossing.”
Another: “At that point (sixty-seven feet from track), could see engine up the track two hundred and forty-seven feet; going six feet nearer the track could look up the track to Anderson’s crossing, and by going a step farther could look up the track a mile or more.”
' Another: “When got to the point, sixty-six feet from the track, could look up the track, inside the bank, to Anderson’s crossing, ninety-seven rods; when got within five or six feet nearer the track could look way beyond Anderson’s crossing; made repeated and careful observation of the train going through the cut at different times.”

These are all witnesses for the plaintiff, below, Elliott.

Witnesses for the railroad speak thus:

Swift, the surveyor, who made the measurement, says he made repeated experiments with the engine Maryland, which occasioned the accident. He says that at a point one chain ninety links, or one hundred and twenty-five feet, one can see -all the way through the cut. Sixty-six feet from the crossing can see up to Anderson’s; and sixty feet from the crossing can see up the track for a mile.

A. Jones says that at sixty-six feet from track one can see up to Anderson’s.

Robert Blee, division superintendent, states he made experiments with engine Maryland, and at sixty-six feet from Leach’s crossing a train can be seen at Anderson’s.

It is, therefore, perfectly clear that at a point somewhere about sixty feet from the track, the train' can be seen at a considerable distance. Had Elliott approached the track at this point, which he alleges to have been a “ highly dangerous ” one, slowly and cautiously, as a prudent man would have done, had he been walking his horses, as it would have been entirely safe to do, if he was not absolutely certain there was no train in the vicinity, within the space of sixty feet, he might have seen and avoided the danger. Ordinary care would have demanded such degree of caution, from the fact that the train was approaching diagonally behind him. Rut it appears he drove down the hill on a trot, upon the track. He also states that after leaving the summit he did not look or listen for an approaching train until he got on the track, and he first saw the train when he was on the track.

A lai’ge amount of learning is developed in the books, upon the subject of the various degrees of care and their corresponding phases of negligence. It may perhaps be doubted whether the elaborate attempts to define the exact distinctions between the adjectives slight, ordinary, and gross does not tend, not only to mislead juries, but sometimes to result even in judicial confusion.

When it is announced that “ slight negligence is the want of great care,” and gross negligence is the want even of slight care” (Shearman & Redfield on Negligence, sec. 18), the statement imparts a perfectly correct notion of the essentials of negligence, provided it is first accurately understood what its reverse is. There is pertinency in the remark of Baron Rolfe (Wilson v. Britt, 11 M. & W. 113, and Willes in L. R., 1 C. P. 640), that gross negligence is merely negligence with, the addition of a vituperative epithet. When it is said that a person must exercise ordinary care, the statement is so plain in its language and so simple in the idea to be conveyed, that if the proposition is not comprehended in this form, mere words will probably occasion less intelligence.

If an individual, with a fair opportunity to see and heart a railroad train for a mile or more before reaching the track, so conducts himself as to drive straight into a collision, he does not act with ordinary care, and assists at least in bringing about the accident.

A majority of the court are therefore of the opinion that the undisputed facts show that the defendant in error was chargeable with contributory negligence; that he did not exercise that degree of care which one of ordinary prudence should have done, and that the gravity of his disaster does not furnish sufficient ground for his recovery.

The court erred in refusing to set aside the verdict and grant a new trial, and the judgment will be reversed.

Judgment accordingly.  