
    The Bellefontaine Railway Company v. Daniel W. Snyder.
    1. 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 unskillfulness of the employes 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.
    2. Where an infant child, intrusted to the care and custody of another by the father, is injured through the negligence of a railroad company, the custodian of the child also being guilty of negligence contributing to the result, although the infant may maintain an action for such injury, the father can not, the negligence of his agent, the custodian of the child, being in law the negligence of the father.
    S. It is not error in the court to refuse to give instructions which require the court to assume or imply the existence of material facts in issue in the case, although such facts are clearly proven by the evidence submitted to the jury.
    Error to the District Court of Crawford county.
    The original ease was an action brought by Snyder against the railway company, in the Court of Common Pleas of Crawford county, to recover damages for an injury to his infant daughter, Mary Snyder, alleged to have been occasioned by the negligence and carelessness of the company in running and managing its train. The transaction out of which the case grew, as .disclosed by the testimony in the case, is substantially the same as in the case of Mary Snyder v. The Bellefontaine and Indiana R. R. Co. (reported in 18 Ohio St. 399), the only material difference between the cases being that in the former the action was brought by the injured child itself, and in the present case the action is brought by the father for loss of the child’s services.
    
      The material facts are stated in said case of Mary Snyder v. The Bellefontaine and Indiana R. R. Co. as follows:
    “ The accident took place near a depot, in the village of Crestline, where there are several tracks and side-tracks parallel and near to each other. At the time it occurred, Mary and her sister, some eleven or twelve years of age, were crossing the track on their way to school, at a point where there was no public highway, but where schoolchildren and others were in the daily habit of crossing and recrossing, without objection on the part of the company. The parents of the children resided near by, and it was by their permission that the girls crossed and recrossed the tracks alone at this point. As the children approached the track, the gravel train of the company passed upon a sidetrack northward to a switch a few rods distant. The girls then started to cross the tracks, but seeing an express train about to pass upon one of the main tracks in front of them, they stopped a short time — a minute or less— upon one of the intermediate tracks, to await its passage. While so standing upon the track, their attention was drawn to the passing express, and they did not look in the direction of the gravel train, which they could plainly have seen had they so looked. Meantime, the gravel train had switched onto the track upon which the girls stood, and, backing toward them at a very slow rate, it struck Mary, and occasioned the injury complained of. A brakeman, whose duty it was to keep a lookout upon the track for. objects of danger, was stationed in .the front car of the gravel train, but he, too, gave his whole attention to the passing express train, and therefore failed to see the girls, or to adopt any means for the avoidance of the accident. As to whether any whistle or other alarm was sounded, to signal the movement of the gravel train, the evidence is conflicting; but if any Was given, it was not heard by the girls or by those near them, on .account of the noise made by the passing express train. The gravel train, at the rate it ran, could have been stopped in a distance of fifteen feet. It was an irregular train, and the custom had been to sound a whistle, or ring a bell, when it passed the place in question. . . . Had the brakeman on the gravel train looked ahead, he could easily have seen the girls, and avoided the accident; and had the girls cast their eyes toward the approaching gravel train, they would have had no trouble-in seeing it and stepping out of the way. Mary was in charge of her sister, who held her by the hand.”
    It should be stated, also, that the gravel train, in going-northward to the switch, was going from the girls, and that the switch, at which it changed tracks and started toward, them, was in full view from where they stood.
    On the trial of the cause, the counsel of the company asked the court to instruct the jury, among other things, as-follows:
    “5. That if the plaintiff’s daughter and her sister approached to and passed onto the track of the B. & I. R. R. without looking in the direction of the train, and if, by-looking, she or they could have seen the train and avoided the injury, the attempt to cross without so looking was negligence, or such want of ordinary care as will prevent a recovery.
    “ 6. That if the plaintiff’s daughter and her sister were-standing on the track, looking in a different direction from the approaching train, or watching a train on a different road and track not under the control of the B. & I. Co., without looking to see if a train were approaching on the track upon which she or they were standing, such acts or want of caution show such negligence on the part of the plaintiff’s daughter and her sister, if she or they could have seen the danger and avoided the injury by looking, as will prevent a recovery.”
    The court refused to give this instruction, and left it to the jury to determine the question of negligence, but instructed them that if there was in fact contributory negligence on the part of the sister having Mary in charge, the plaintiff could not recover.
    
      The jury found for the plaintiff, assessing his damages at $1,270. A motion for a new trial, predicated upon the ground that the verdict was contrary to the evidence, and that the court misdirected the jury, was made on behalf of the company, and overruled by the court, and judgment was entered upon the verdict. On petition in error by the company, the District Court affirmed the judgment, and the object of the present petition in error is to reverse both the judgment of the District Court and that of the Common Pleas. The assignments of error relied upon are, substantially, that the court misdirected the jury, and erred in refusing a new trial on the ground that the verdict is not supported by the evidence.
    
      Estep § Burke, for plaintiff in error:
    It is too well settled now to admit of argument, that to-sustain an action in cases like this, the plaintiff must establish the fact that the injury did not result from any negligence or want of care on his part. Whatever may have been the neglect of those in charge of the train,, such neglect will not justify a recovery, unless the plaintiff was himself free from blame. If the negligence of both parties contributed immediately to the injury, neither can recover. The question of who is to blame for the collision, in no respect depends upon the fact of who sustained the greatest inj ury. In order to fully comprehend the point, let us suppose the inj ury to have been to the train by the collision, instead of the plaintiff. How would the case stand then ? A person suffering an injury at a railroad crossing must show that he did his duty, whether the railroad company did its duty or not. Telfer v. The Northern R. R. Co., 30 N. J. 188; Pittsburgh, Fort Wayne & Chicago R. R. Co. v. Evans, 53 Penn. St. 252; O’Brien v. Railroad Company, 6 Am. Law Reg. 361; The Toledo & Wabash R. R. Co. v. Goddard, 25 Ind. 196, and cases there cited; C., C. & C. R. R. Co. v. Terry, 8 Ohio St. 570; Trow v. Vermont Central R. R. Co., 24 Vt. 497.
    
      It is negligence for a person to go onto or across a railroad crossing without taking reasonable precaution to ascertain whether it is safe to do so. Failure to look for the train is negligence. Steves v. O. & S. R. R. Co., 18 N. Y. 422; 29 N. Y. 315; 25 Barb. 600; 13 Ib. 9; 25 Ind. 186; 17 Ind. 102; 15 Ib. 120; 18 Ib. 215; 1 Dutcher, 558; 27 Barb. 221, 528; 18 N. Y. 248; 2 Bosworth, 374; 3 Foster, 9; 4 Zabriskie, 268, 828; 39 N. Y. 358; 41 Ib. 502, 526; 42 Ib. 468; 45 Ib. 191; 58 Maine, 384.
    
      J. W. Jenner, for defendant in error:
    If the wrong on the part of the defendant is so wanton and gross as to imply a willingness to inflict the injury, plaintiff may recover, notwithstanding his own ordinary neglect. And this is always to be attributed to defendant, if he might have avoided injuring plaintiff', notwithstanding his own negligence. 1 Redfield on Railways, 547, 548; Kerwhacker v. C., C. & C. R. R. Co., 3 Ohio St. 188; Bellefontaine & Ind. R. R. Co. v. Snyder, 18 Ohio St. 399.
    It is no longer an open question -as to whether all the facts and circumstances shall be submitted to the jury, ■where the issue involves the question of ordinary care and prudence. C., C. & C. R. R. Co. v. Terry, 8. Ohio St. 580. See also, to the same effect, 1 Redfield on Railways, 545; Shearman & Redfield on Negligence, sec. 11.
    Failure to look for this gravel train, which could not be heard, and thirty seconds before the injury was inflicted, was not upon the west main track, if negligence, in any degree, was not the proximate or immediate cause of the injury, and will not preclude a recovery. Stow v. Vermont Central Railway, 24 Vt. 487; Chicago & R. I. Railway v. Still, 19 Ill. 499; Isbell v. N. Y. & N. H. Railway Co., 27 Conn. 393; Kerwhacker v. C., C. & C. R. R. Co., 3 Ohio St. 196; Tabor v. Missouri Valley R. R. Co., 46 Mo. 353.
    As to the meaning of.the term “ordinary care,” as applied to the management of a railroad, see Shearman & Redfield on Negligence, sec. 477; Johnston v. The Hudson 
      
      River R. R. Co., 20 N. Y. 65. In speaking of the duty of an engineer to the public when about to run his train over a crossing, Shearman & Redfield, in section 481 of their Treatise on Negligence, say: “For this purpose it is the duty of the engineer to give sufficient signals of the approach of the train, by ringiug his bell, sounding the whistle, or otherwise, as may be usual, and also to approach a crossing at such a rate of speed as will enable him to check the train if necessary.” Also the following authorities on the question of negligence are to the same effect: Ernst v. Hudson River R. R. Co., 35 N. Y. 27, 28, 36, 38; Macon & W. Railway v. Davis, 18 Georgia, 679; Beers v. Housatonic R. R. Co., 19 Conn. 568; Daley v. Norwich & Worcester R. R. Co., 26 Conn. 595; Wilson v. Cunningham, 3 Cal. 241; Tabor v. Missouri Valley R. R. Co., 46 Mo. 353; Kay v. Pennsylvania R. R. Co., 65 Penn St. 279; Beers v. Delaware, Lackawanna & Western R. R. Co., 6 Casey, 461; F. & M. Turnpike Co. v. Philadelphia & Trenton R. R. Co., 4 P. F. Smith, 350; Smith v. O’Conor, 12 Wright, 222; Shearman & Redfield on Neg., sec. 11; B & 1. R. R. Co. v. Mary Snyder, 18 Ohio St. 399; Eaton v. The Erie Railway Co., 51 N. Y. 544.
   Welch, J.

We think the verdict in this ease is against the evidence, and can only be accounted for on the theory of prejudice, or misconception of the law, on the part of the jury. Both parties to the transaction were represented by agents — the railroad company by its brakeman and engineer, and the father of the girl by the elder sister who had her in charge — and both were responsible for the acts or omissions of their respective agents. What a party does by his agent he does himself, and the case stands no otherwise than it would have stood, had the father himself been present, taking charge of the child. In order to render the principal accountable for the acts or omissions of his agent, it is by no means necessary to show the incompetency of the agent, or that the principal was at fault in his selection and appointment. However competent the agent, and however careful and prudent the principal may be in his selection and appointment, the agent acts at the peril of the principal, who stands accountable in law for all the agent’s acts and omissions. This is a well-settled principle of law, and there is no good reason why it should not be' applicable to both parties alike in the present case.

The degree of care and caution required by the law to be exercised by either party is the same — namely, “ ordinary ” care and caution. It is denominated “ ordinary,” in the sense that it is such as persons of ordinary care and caution usually observe under like circumstances ; and it is sometimes denominated the “ highest” degree of care and caution, in the sense that persons of ordinary care and caution usually observe their highest degree of care and caution under such circumstances; that is, where human life is in peril. It is “ ordinary” care and caution, with reference to the class of persons who exercise it, but it is'the “highest” degree of care and caution with reference to the circumstances under which it is to be exercised.

If this be the law of the case, we fail to see on what ground the finding of the jury can be sustained. Both parties were at fault, and the fault of each directly contributed to the accident. Had either party exhibited that care and caution which the exigencies and perils of the situation demanded, and which persons of ordinary prudence usually exhibit under such circumstances, the calamity would evidently have been averted. Had the brakeman kept his eyes upon the track, and refused to be diverted for the moment by the passing express train, the accident would have been avoided, notwithstanding the carelessness of the elder sister; and had she observed a similar precaution, the carelessness of the brakeman alone would have been harmless. It required the carelessness of both to produce the- unfortunate result. The situation of both called for the highest degree of caution and care, for the reason that human life might be imperiled by the slightest relaxation ■or forgetfulness, and such is the degree of circumspection and caution which persous of ordinary prudence usually exercise under like circumstances. It is no answer to this view of the case to say, that the elder sister was a fit person to take charge of the child, and that her omission of care, under the circumstances, was no more than might be expected sometimes to happen with prudent persons. The reply is, that it is true the most prudent and careful of per.sons sometimes lapse, and become derelict to duty. All of us are liable so to lapse ; but when we do so lapse, we, and those for whom we act as agents, are responsible for the consequences. In such cases it is in vain that we plead our :good character, our correct habits, or our general fitness for the situation. I think it can not be too strongly impressed upon the public mind, that in cases of the kind in question, involving imminent danger to life, a very high degree of caution and care should be exercised by both parties. The care and caution of those in charge of the train should be such as to anticipate and provide against the possible carelessness of persons upon the track, and the care and caution ■of the latter should be such as to anticipate and provide against the possible carelessness of the employes of the company. The care required of each should thus, as it were, be made to overlap each other. This should be required, because human life is at stake, and the degree of care should be in proportion to the value of human life. ~We have no hesitation in saying that the elder sister, who had the plaintiff’s child in charge at the unfortunate moment when needed, failed to exhibit the care and caution which persons of ordinary prudence usually exhibit under •such circumstances. 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 trains, 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 unskillfulness of the employes of the company not amounting to willfulness on their part. And this presumption of negligence can only be rebutted by facts or circumstances which show that it was not reasonably practicable to make or keep such lookout, or which would ordinarily induce persons of common prudence and. circumspection to omit that precaution. It is quite evident to us that the conduct of the elder girl, who had the child in charge, did not conform to these requirements of the law.

While we think the court erred in refusing a new trial, on the ground that the verdict is against the evidence, we see no error in its refusal to give the instructions asked. To give the instructions asked would have been, to a great extent, taking the case from the jury, by assuming the existence of material facts in the case. The court could not say to the jury that the failure of the girls to look in the direction of the gravel train, when approaching or standing-upon the track, was carelessness such as should prevent a recovery, without assuming the existence of material facts in the case which it was for the jury to find. The instructions asked assume the agency of the elder sister, and assume the non-existence of any facts or circumstances rendering it prudent or proper for her to omit looking out.. These were matters for the jury, and could not be found or assumed by the court, no matter how plainly they might have been proven. Had the instructions been asked in the-hypothetical form, to the effect that if the jury should find the facts to be so and so, then the plaintiff could not recover, the question presented might have been different. The instructions asked were not put in that form, but in a form requiring the court to assume some of the material-facts. The question of negligence in such cases is a mixed question of law and fact, to be decided by the jury under the instructions of the court.

Judgment reversed and cause remanded for further proceedings.

Mg€lvaine and Stone,* JJ., concurring.

White, J.

I do not concur in the reversal of the judgment.

The children were crossing the railroad tracks at the place where the public were accustomed to cross. The fact that the train which caused the injury went north, as the children were about to cross, was calculated to put them off their guard, and lead them to apprehend no danger from that train. The sudden return of the train, moving in the opposite direction, without warning, while they were thus off their guard, took them unawares.

Whether the children, while their attention was attracted by the express train coming from the south, and they were stopping for it to pass, were, under the particular circumstances, guilty of contributory negligence, was a question of fact for the jury. Having been submitted to the jury, and determined by them under proper instructions, I see no sufficient ground to warrant the interference of this court.

If there was no negligence on the part of the, father in trusting the child receiving the injury to the custody of her older sister the question as to whether the latter was guilty of negligence in taking care of the child, is to be determined by ascertaining whether she exercised due care for one of her age. The question of her negligence is to be determined upon the actual facts, and not by an artificial standard based on an assumption as to what would have been ordinary care on the part of a person of greater age and experience, or of the father, if he had been in personal charge of the child.

Negligence can only arise where there is a failure to perform some duty in respect to the transaction in question. In the present case, if the father was guilty of no breach of duty in sending the child to school in charge of the older daughter, and the latter, under the actual circumstances, was chargeable .with no fault, negligence can be imputed to neither.

Day, C. J., dissented on the same grounds. 
      
      This case was decided at the December Term, 1873, while Stone, J., was upon the bench. — Bep.
     