
    COWEN v. MERRIMAN.
    Pleading and Practice; Receivers; Railroads ; Judgment, Entry oe; Variance; Railroad Crossings; Contributory Negligence; Presumptions.
    1. An order of the Supreme Court of this District, sitting as an equity court, passed in a cause in which receivers of a railroad company were appointed, directing the railroad property to be returned to the possession of the company, but not finally discharging the receivers, will not abate or stay an action previously commenced on the law side of that court against the receivers for the negligent killing of the plaintiff’s intestate, but such action may proceed to judgment notwithstanding such order.
    2. And where the court in such order reserves the right and power “to adjudge and declare what receivers’ or corporate debts are due and ought to be paid by the said railroad company, with full power by its future adjudications to bind the property, the possession of which is delivered under this order,” the railroad property remains subject to the control and jurisdiction of the court of equity, and is the source from which payment of any judgment that may be recovered against the receivers in the action at law, must be sought.
    3. The erroneous entry of a judgment for the plaintiff against receivers personally, in a case where it should have been entered against them in their official capacity, will not affect the judgment on appeal, in th'e absence of any objection to the form of the judgment in the lower court; but it will be construed with reference to the pleadings and the character in which the defendants were sued.
    4. Where the declaration in a damage suit alleges that the plaintiff’s intestate was killed “at or near a point where D street northeast crosses the tracks of said railroad,” a prayer for instruction by the defense that the plaintiff is not entitled to recover if the jury shall find that the deceased was killed while crossing the tracks at a point which was not a street crossing, is properly refused as calculated to mislead the jury, especially where a prayer by the defense is granted which instructs the jury that the plaintiff is not entitled to recover if they find that the deceased was killed while walking along the tracks instead of across them.
    5. It is not error for the trial court, under such circumstances, in its general charge to instruct the jury that it is not necessary that it should appear that the deceased when killed'was exactly and technically upon the crossing, provided he was substantially using it and it was his purpose to cross there in the ordinary and usual way.
    6. It is only where the evidence of contributory negligence is of the most unmistakable character that the trial court is justified in directing a verdict for the defendant; and the burden of proving such negligence is on the defendant.
    7. Where plaintiff’s intestate who was killed on a railroad crossing in the night time when the crossing gates were up, was last seen alive when about to step on the tracks immediately after the passing of an excursion train, and the testimony was conflicting as to whether the train which struck him, consisting of a locomotive and tender, was running backward, the plaintiff’s witnesses who so testified also stating that there was no light on the forward end of the tender, it was held that the refusal of the trial court to direct a verdict for the defendant on the ground of contributory negligence on the part of the deceased, was not error.
    8. In the absence of evidence that a decedent who was killed while attempting to cross a railroad track at a street crossing, did not look or listen for the approach of trains before stepping upon the track, the presumption is that he did so.
    No. 986.
    Submitted October 11, 1900.
    Decided November 7, 1900.
    Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of the District of Columbia upon tne verdict of a jury in an action to recover damages for tbe alleged negligent killiug of plaintiff’s intestate.
    
      Affirmed.
    
    Tbe Court in its opinion stated tbe case as follows:
    This action was brought June 4, 1897, in tbe Supreme Court of tbe District of Columbia, by Thomas Childs, administrator of John A. Merriman, deceased, against John K. Cowen and Oscar G. Murray, receivers of tbe Baltimore and Ohio Railroad Company, to recover damages for the alleged negligent killing of the said John A. Merriman, on March 3, 1897, at a railroad crossing of one of the streets in tbe city of Washington.
    The principal and most important question that is presented in the case arises upon what is set out in the pleadings, and hence it becomes necessary to state the pleadings with some fullness.
    
      To the declaration, the defendants, on June 25, 1897, filed a plea of the general issue, not guilty, on which issue was joined. After this, and by leave of the court, the defendants came in and pleaded, puis darrien continuance, that after the alleged claim accrued and after the last pleading in the cause, that is to say, on June 30, 1899, in a cause depending in the Supreme Court of the District of Columbia, wherein the Mercantile Trust Company is plaintiff, and the Baltimore and Ohio Railroad Company is defendant, the defendants in this action, as receivers, were ordered and directed to turn over to said railroad company, its road, and all its property and assets, which was accordingly done, and that the said road, its property and assets, passed thereby absolutely from and out of the control, care and custody of the defendants, and that they are no longer the receivers of the said railroad company; that said order of June 30, 1899, was passed after the decree of foreclosure made in said cause.
    To this plea of matter puis darrien continuance, the plaintiff replied by setting forth in extenso the order of June 30, 1899, and denying the effect thereof as alleged by the defendants. By that order, it is declared that the railroad company is found to be solvent, and therefore, among other things, all the property and assets of the company were authorized and directed to be delivered over to the possession of the railroad company, by the receivers, the defendants in this action, as of midnight of June 30, 1899; but that such possession of the property should be accepted by the railroad company upon the express condition that it would pay off and satisfy all debts or obligations incurred or to be incurred by the receivers, which had not been paid by them, and which should be adjudged by the court to be the proper and valid debts and obligations of the receivers.; and that it would pay off and satisfy all debts and obligations of the railroad company, etc., . . . “and this court expressly reserves the continued right to adjudge and declare what receivers’ or corporate debts are due and ought to be paid by the said railroad company, with full power by its future adjudications to bind the property, possession of which is delivered under this order. The court reserves full right and power to retake all or any part of the property herein directed to be delivered or transferred to the railroad company, in case of failure or neglect of said company to comply with any order of the court in respect to the payment or satisfaction of any claim against the receivers, etc., within thirty days after service of a copy of the order on the company,” etc. “The court reserves full right and power to all or any part of the property hereby directed to be delivered or transferred to the railroad company,” etc., as means to enforce full compliance with said order. And after full and final accounting by the receivers, they or the railroad company are given leave by the order to apply forthwith for an order finally discharging said receivers. The order then provides, “that all questions not herein disposed of, including the adjudication and settlement of all claims against the receivers, etc. . . . and all questions regarding the discharge of the receivers, are hereby reserved for future adjudication; . . . and jurisdiction hereof is retained by the court for that purpose, and for the purpose of enforcing all of the provisions of this order.”
    It is alleged in the replication that the receivers, the defendants in this action, were in full possession and control, and operated and carried on the work of said railroad, at the time of the negligent causing the death of the said John A. Merriman, and continued in the possession and control, and operated the said railroad, down to the time of the date of the said order of the 30th of June, 1899; and that the said railroad was, while in their possession and control, greatly bettered and improved in its condition.
    By way of rejoinder, the defendants allege that the order. set out in the plaintiff’s replication does not reserve and provide for the payment of the plaintiff’s claim, or claims of the class to which the plaintiff’s claim belongs, but only provides for the payment of debts or obligations incurred by the receivers and which shall be adjudged by the Supreme Court of the District of Columbia, as a court of equity, or by the Circuit Court of the United States for the District of Maryland, to be proper and valid debts of the receivers, and that no debt or obligation or claim can be inquired into or adjudicated as against the receivers except in said equity cause referred to in said order of June 30, 1899.
    This rejoinder presents no traversable fact, but simply a' matter or question of law. But instead of a demurrer thereto, as ought to have been entered, the plaintiff joined issue thereon, and the cause was tried on that condition of pleadings; and the verdict and judgment were for the plaintiff.
    There is no question made upon the pleadings except that raised by the ninth prayer offered by the defendants for instruction to the jury, which requested that the jury be directed, “that, under the pleadings and all the evidence in the cause, the plaintiff was not entitled to recover in this action.” This request was refused by the court.
    Exception was taken by the defendants to the granting of the first and second prayers offered by the plaintiff for instruction, and to the refusal to grant the eighth, ninth and eleventh prayers offered by the defendants for instructions; all the other prayers offered by the defendants having been granted.
    [The first and second instructions granted on behalf of the plaintiff, and to the granting of which the defendant excepted, were as follows :
    “ 1. The jury is instructed that it was the duty of the defendants to cause the safety gates at the crossing known as the L or M street crossing, described in the testimony, to be closed during the passage of any train, locomotive, or car over the tracks of the Baltimore and-Ohio railroad at that point, or otherwise so to guard the said crossing as to give warning of the approach of such train, locomotive, or car to persons liable to pass over the said crossing; and if the jury shall find that at the time of the passing of said crossing by the locomotive which struck the plaintiff’s intestate, as described in the testimony, the said gates were not so closed, and that there was at that point no other protection of the said crossing or warning of danger to persons liable to pass over the same than the mere existence of the said railroad tracks and crossing, the jury is instructed that the plaintiff is entitled to recover, unless it shall furthér find from the evidence that the plaintiff’s said intestate, in attempting to pass over said railroad and crossing (if the jury shall find as a fact that the plaintiff’s said intestate did attempt so to do), failed to act as a reasonably prudent man would have acted under the circumstances, and that his failure so to act directly contributed to the causing of the injury to him in the premises.
    “ 2. In considering whether the plaintiff’s intestate was guilty of negligence contributing to the injury to him, as described in the testimony, it is not necessary that the jury shall find in the evidence affirmative proof that the plaintiff’s intestate looked and listened before attempting to pass over the crossing, in the foregoing instruction mentioned (if the jury find as a fact that the plaintiff’s .intestate did pass or attempt to pass over the same), but it is competent for the jury, in connection with all the other facts and circumstances of the case, to infer the fact that the said intestate did so look and listen, and that there was an absence of fault on his part in the premises, from the general and known disposition of men to take care of themselves and to keep out of the way of difficulty and danger.”
    The eighth, ninth and eleventh instructions requested on behalf of the defendant, which were refused, and to the refusal of which the defendant excepted, were as follows:
    “8. The jury are instructed that if they find from all the evidence that the decedent received the injuries which caused his death while crossing the railroad tracks at a point which was not a street crossing, then the plaintiff is not entitled to recover in this action.
    “ 9. The jury are instructed that, under the pleadings and all the evidence in this cause, the plaintiff is not entitled to recover in this action.
    “11. The jury are instructed that no presumption can arise in this case that the decedent Merriman, before crossing the tracks of the railroad company, looked and listened to discover the approach of engines or trains and failed to discover the approach of such engines and trains before attempting to cross said tracks.” — Reporter.]
    
      Mr. George E. Hamilton and Mr. M. J. Colbert for the appellant:
    1. The decedent Merriman was guilty of such negligence as required the court to instruct the jury as matter of law that there could be no recovery by reason of his death. The plaintiff’s own case, conceding the truth of all the testimony offered in his behalf, presents the situation of a traveler along the highway approaching the tracks of a railroad company and walking directly in front of an approaching engine. See Warner v. Railroad Co., 7 App. D. C. 79; Elliott v. Railroad Co., 150 U. S. 245; 3 Elliott on Railroads, Sec. 1144; Fletcher v. Railroad Co., 149 Mass. 127 ; Whalen v. Railroad Co., 15 N. Y. Supp. 941; Haetsch v. Railroad Co, 87 Wis. 304.
    2. There can be no presumption in this case that the decedent did look and listen for the approach of a train. The only presumption that can be indulged in favor of human life is that Merriman did not voluntarily expose his life. The presumption is that he did not see the train which struck him. But to indulge the further presumption, an inference upon an inference, that because he did not see, he did not look, is to violate a well established rule of law. The only presumptions of fact which the law recognizes are immediate inferences from the facts proved. Manning v. Insurance Co., 100 U. S. 694. If it appears that the decedent would have seen the approaching cars in season to have avoided them, had he first looked before attempting to cross, it will be presumed that he did not look. The negligence of the defendant in not ringing the bell or sounding the whistle will not excuse the other party from the exercise of ordinary care and prudence in attempting to cross the track. Wilcox v. Railroad Co., 39 N. Y. 358. If the traveler by looking could have seen an approaching train, or by listening could have avoided injury, it will be presumed if he is injured by collision that he did not look and listen, or if he did look and listen, he did not heed what he saw or heard. Such conduct is negligence per se. Oleson v. Railroad Co., 143 Ind. 411. One who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop, look and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence, and to have gone negligently into an obvious danger. Myers v. Railroad Co., 150 Pa. St. 386; Smith v. Railroad Co., 160 Pa. St. 117.
    3. The court erred in refusing to grant the ninth instruction asked for by the defendants, that under the pleadings and all the evidence in this cause the plaintiff was not entitled to recover. The suit is against the receivers of the railroad company, and is for injuries alleged to have resulted from the negligent acts of the servants and agents of the receivers then in charge of said road. Subsequent to the filing of this suit, and before the trial thereof, on June 30, 1899, by order of court, the property was taken out of the hands of the receivers and given into the possession of the road on condition that the road would pay such debts and obligations as might be adjudged in the parent suit, and by the court of equity, proper obligations and debts, with a reservation prescribing a way in which proper claims may be adjusted, and with, such proposed adjustment the receiver has no connection whatever. The receiver is liable only in his official capacity. The very ground of his liability is that he is in control and management of the road. Suits against the receiver are suits against the receivership or the property funds in the hands of the receiver, and when that property, by order of the court, has been taken out of his control he is no longer .liable, and has no connection whatever therewith. Beach on Receivers, Secs. 724, 725 and cases cited; Fordyce v. Beecher, 21 S. W. 179 ; Davis v. Duncan, 19 Fed. Rep. 477. The remedy of the plaintiff, if any he has, is in the court of equity retaining the main or parent suit for the adjustment of claims according to the provisions made and to be enforced by said equity court. The recivers have no longer any interest in the defense of this suit, and the fact that the receiver was also the president of the corporation could make no difference. A judgment against the receiver must be entered against him as receiver and payable out of the funds in his hands. McNulta v. Lockridge, 141 U. S. 332. In the case at bar the court of equity had taken all of the funds out of his hands, and no proper judgment could, therefore, be entered against him. See, also, Ryan v. Hayes, 62 Texas, 42; Railway co. v. Ormond, 62 Texas, 274; Trust Co. v. Railway Co., 7 Fed. Rep. 537.
    
      Mr. Henry E. Davis and Mr. Charles Cowles Tucker for the appellee:
    1. The receivers have never been discharged. The decree of June 30, 1899, simply operated by its terms to change the possession of the railroad company’s property and assets, but reserved to the court full control over such property and assets and over the persons of the receivers and of the railroad company. As the judgment in this suit in no event would be against the receivers personally, but simply be against them as receivers, payable only out of receivership funds (McNulta v. Lockridge, 141 U. S. 327), and as to collect the judgment the judgment creditor would have to intervene in the equity suit, and ask that the railroad property be subjected to the payment of the judgment, and as the decree expressly provides for the satisfaction out of the railroad property of claims against the receivers on the part of the intervenors, it in no wise affected the standing of this suit, or the position of the receivers with respect thereof. Had the decree in question finally discharged the receivers during the pendency of this action at law, a serious question would perhaps have arisen. While under such a condition of affairs in the code States a supplemental plea could have been filed by the railroad company and the cause proceeded as against it, or if the plaintiff had been pursuing his remedy in equity, he might have filed a supplemental bill in the nature of a bill of review (Wilson v. Wilson, 1 Barb. Ch. 592), under our common law practice there is no provision that we know of for the filing of such a plea. The following- cases which have arisen in code States or are chancery proceedings, treat of this question and may be of interest in this connection: Railroad Co. v. Crawford, 88 Tex. 277: 28 L. R. A. 761; Trust Co. v. Railroad, 7 Fed. Rep. 537; Davis v Duncan, 19 Fed. Rep. 477; Brown v. Gray, 76 Tex. 444; Lehigh Co. v. Railway, 42 N. J. Eq. 591; Talmage v. Pell, 9 Paige, 410 ; Sheldon v. Adams, 27 How. Pr. 180; Beach on Receivers, (2d Ed.), Sec. 720; Miller v. Loeb, 64 Barb. 454.
    2. Even if the decree of the equity court had by its terms expressly discharged the receivers, such action could have had no effect upon the pending action against them. By the act of Congress of March 3, 1887, Sec. 3 (24 Stat. 552), as corrected by the act of August 13, 1888 (25 Stat. 433), every receiver appointed by a court of the United States may be sued in respect of any act or transaction of his in carrying on the- business connected with the property, with out the previous leave of the court by which such receiver was appointed. The appellee having by the express terms of the statutes the right to institute and maintain this action against the receivers, this statutory right could not be taken away and nullified by the action of the court in discharging the receivers. Railway Co. v. Johnson, 151 U. S. 81; Railroad Co. v. Bloom, 164 U. S. 636; Railroad Co. v. Cox, 145 U. S. 603 ; Dillingham v. Hawk, 60 Fed. Rep. 494.
    3. The statement of the law by the court below as to the presumption of care on the part of the decedent was a perfectly correct one. Railway Co. v. State, 29 Md. 438; Johnson v. Railroad Co., 20 N. Y. 65; Railway Co. v. State, 31 Md. 364; Railroad Co. v. Golway, 6 App. D. C. 148; Schum v. Railroad, 107 Pa. St. 8: 52 Am. R. 468; Railroad v. Weber, 76 Pa. St. 157; Railroad v. Hall, 61 Pa. St. 361; Gay v. Winter, 34 Cal. 153; Petty v. Railroad, 88 Mo. 306; Bueschling v. Gas Light Co., 73 Mo. 219; Railroad v. Goetz, 79 Ky. 442.
   Mr. Chief Justice Alvey

delivered the opinion of the Court:

There are three questions raised on the rulings of the court below, and which have been argued on this appeal, and they are the following:—

1. Whether the plaintiff was entitled to proceed with the action and recover judgment therein against the defendants, as receivers, after the passage of the order of June 30,1899, set out in the plaintiff’s replication; or whether the claim for the damages sued for should be filed in the cause in the equity court, in which the receivers were appointed, to be there adjudicated under the order referred to.

2. Whether the defendants were entitled to any other or different instruction from the court than that given in respect to a supposed variance between the allegation and proof, as to the location where the accident occurred.

3. If the cause was properly triable by the court below, whether the evidence of contributory negligence on the part of the deceased, Merriman, was so clear and unmistakable in its character, as to require the court to direct a verdict for the defendants; — it being conceded that there was proof sufficient on the question of negligence by the defendants, or their employees, to require the case to be submitted to the jury, but for the supposed contributory negligence of the deceased in causing the accident.

It is contended by the defendants that the order of the court of equity of June 30, 1899, withdrew the property of the railroad company from their possession and control, and had the effect of discharging the receivers from any further liability for the claim sued for in this action; and that the only recourse of the plaintiff is by making application to the court of equity, having control of the cause in which the receivers were appointed, for an adjudication and allowance of the claim. We do not, however, entertain this view of the case.

The court below had acquired complete jurisdiction of the subject-matter of the suit and of the parties thereto, before the order of the 30th of June, 1899. The action was authorized to be brought without the authority of the court appointing the receivers; and the fair and reasonable interpretation of the act of Congress of March 3, 1887 (24 Stat. 552, Oh. 373), as corrected by the act of Congress of August 13, 1888 (25 Stat. 433, Ch. 866), is, that the remedy against receivers was not only to be protected, but promoted and made effectual by that act. The act provides that every receiver, appointed by a court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with the property, without the previous leave of the court by which such receiver was appointed. It has been held by the Supreme Court of the United States, that such suit may be brought in any court of competent jurisdiction and proceed to judgment accordingly. Texas & P. Railway Co. v. Johnson, 151 U. S. 81, 101. In this case the question is not presented as to the power of the court to proceed in the action instituted against receivers while they are in control and management of the property of an alleged insolvent corporation, and where they have been finally discharged from the receivership, and required to deliver up all control over the property, before trial and judgment had against them. Here the receivers were not discharged from th^ir trust by the order of June 30, 1899, and the property of the railroad company, though required to be surrendered and placed back into the possession and control of the corporation, yet was still held subject to the power and jurisdiction of the equity court to enforce all the powers and conditions enumerated in the order of June 30, 1899. By that order, as we have seen, it was expressly provided and reserved, as a continuing right and power, “to adjudge and declare what receivers’ or corporate debts are due and ought to be paid by the said railroad company, with full power by its future adjudications to bind the property, the possession of which is delivered under this order.”

The property of the railroad company, therefore, remained subject to the control and jurisdiction of the court of equity that appointed the receivers; and the property under the control and jurisdiction of. the court is the source from which payment of any judgment, in a case like the present, against the receivers, must be sought. The judgment is not recovered against the receivers personally, but against them in their official character as receivers, and the judgment is payable only from the funds in their hands or that may remain subject to the jurisdiction and direction of the court that appointed the receivers. This being the case, it is difficult to perceive any substantial reason why the action should not proceed to judgment against the receivers in their official character, or why the order of the court directing the property to be delivered to the possession of the railroad company, but without discharging the receivers, should be allowed to have the effect either to abate or stay the action, or to form an obstacle to the recovery of a judgment against the receivers. The judgment when recovered can only be made available by applying to the court that appointed the receivers, and which has power and jurisdiction over the funds out of which the judgment can be paid.' It is to this end that the act of Congress, to which we have referred, provides that “such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed so far as the same shall be necessary to the ends of justice.” The plaintiff in the action is entitled to have his case tried by a jury, and the damages regularly assessed; and it is not to be supposed, in the absence of express terms, that Congress intended, by the act referred to, to deprive the plaintiff of such right. As said by the Supreme Court, in the case of Texas & P. Railway Co. v. Johnson, supra, “Certainly, the preservation of general equity jurisdiction over suits instituted against receivers without leave does not, in promotion of the ends of justice, make it competent for the appointing court to determine the rights of persons who are not before it or subject to its jurisdiction; and the right to sue without resorting to the appointing court, which involves the right to obtain judgment, can not be assumed to have been rendered practically valueless by this further provision in the same section of the statute which granted it.” It is only after the judgment recovered that the plaintiff is required to go to the equity court having jurisdiction over the property or funds from which he can obtain satisfaction. It is in that court that the equities between incumbrancers and other creditors are to be adjusted, and the time and manner of payment determined. Dillingham v. Hawks, 60 Fed. Rep. 494, 497.

We are clearly of opinion that the action was properly proceeded with to trial and judgment, notwithstanding the order of the equity court of June 30,1899.

There was irregularity in entering the judgment, but that was in mere' matter of form. The judgment, instead of being entered against the receivers personally, as appears to have been done, should have been entered against them in their official character as receivers. This, however, as there was no objection to the form of the judgment in the court below, will not affect the judgment on appeal. The judgment will be construed, in such case, with reference to the pleadings and the character in which the defendants were sued. 17 Ency. Plead. & Prac., 804, and the cases there cited.

The next question is that which relates to the supposed variance between the allegations and proof. In relation to this subject, the defendants offered two prayers for instruction, the seventh and eighth in the series of prayers offered by them. The seventh was granted and the eighth refused. By the granted prayer, the jury were instructed, that if they found from all the evidence that the deceased was walking along the railroad tracks, instead of across them, and while so walking was struck and injured, then the plaintiff could not recover.

By the eighth prayer, the defendants sought to have the jury instructed, that if they should find from all the evidence that the deceased received the injuries which caused his death while crossing the railroad tracks at a point which was not a street crossing, then the plaintiff was not entitled to recover in this action. This prayer, in view of the allegation in the declaration as to the location of the place where the accident occurred, was calculated to mislead the jury, and therefore properly rejected. The declaration alleges the place of the accident to be at or near a point where L street northeast crosses the tracks of said railroad in the city of Washington.”

The court below, in its general charge to the jury, instructed them, “ that the declaration avers that this injury occurred to the plaintiff’s intestate at or near the L street crossing. The proof in the case, in order to entitle the plaintiff to recover, must show that that averment of the declaration is substantially true. It is not necessary that it should appear that he was exactly and technically upon the crossing, but that he was substantially using the crossing, and so near to it as to be practically the same thing as though he were actually on the crossing; so that the use of the gates, for instance, would be notice which would be received from them, so that it would be shown that his purpose was to cross at that crossing in the ordinary and usual way. If that was his purpose, and he was at or near the crossing— so near as to be practically the same thing as if he was upon the crossing, — then the averment of the declaration would be sustained; and if all other things are proven which the court has charged yon must be proven to entitle the'plaintiff to recover, your verdict should be for him if you find that the injury was received by the plaintiff’s intestate at or near the L street crossing. But if it was away from the L street crossing so that it could not be said that he was attempting to cross the railroad practically at that crossing, then, as I have already in substance charged you, the averment of the declaration would not be sustained — it would not be the same cause of action which is set foi’th in the declaration, — and the plaintiff would not be entitled to recover.”

This is a full and a clear instruction upon the subject, and it was all that the defendants could rightly insist upon. There was nothing in the charge thus delivered to the jury that unduly varied or enlarged the ground of recovery as laid in the declaration.

With respect to the third question, that relating to the alleged contributory negligence of the deceased, there is more ground for real contention. Upon the subject of the alleged contributory negligence as a defense to the action, the court, while refusing to direct a verdict for the defendants, granted several prayers offered by the defendants, which instructed the jury in the most explicit and unqualified terms in favor of the defense. It is to the granting of the second prayer of the plaintiff upon this subject, and to the refusal to grant the ninth and eleventh prayers of the defendants, which relate to the same question, that the defendants have excepted, and which they make the ground for the assignment of error.

It is conceded on the part of the defendants that there was sufficient evidence of negligence by the defendants, or their employees, to require the case to be submitted to the jury, if the evidence of contributory negligence of the deceased was not of a character so-manifest and plain as to preclude all reasonable doubt upon the subject, and to require at the hands of the court a decisive and unqualified instruction that the verdict should be entered for the defendants. Such direction involves the exercise of the very strongest powers that a court can be called upon to exert over the trial by jury. In cases like the present, where, after all the elements to entitle the plaintiff to recover have been shown in proof, and upon such proof it is conceded that the case would have to be submitted to the jury, then to overcome and defeat the effect of that evidence, by proof of contributory negligence on the part of the deceased, requires proof of the most conclusive and unmistakable character to justify the court in assuming to pass upon the question of contributory negligence as one of law, and to direct a verdict for the defendant. It is only where the evidence of contributory negligence is of the most unmistakable character that the court can so interpose; and the burden of proof of such contributory negligence is upon the defendants.

“When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the question is matter for the jury. It is only where the facts are- such that reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Texas & P. Railway Co. v. Gentry, 163 U. S. 353, 366.

In this case it may well be contended that the proof of contributory negligence on the part of the deceased is strong, and many reasonable minds might be decidedly inclined to conclude from it that the deceased was guilty of contributory negligence in causing the accident. But the state of proof is such that we can not say that all reasonable men would so conclude. The court below thought the evidence was not conclusive, and the jury concluded that the evidence was not sufficient to establish the fact that the deceased, by his own fault and want of caution, contributed to the production of the disaster. The testimony in the case is, in many^ respects, conflicting, and involves, to a considerable extent, the credibility of witnesses. It is shown, however, that the condition of things existing at the crossing of the road at L street, where the accident occurred, was not favorable to entire safety to those using the crossing. It was near midnight that the accident occurred ; the weather was blustering, and there was no moonlight, and some of the witnesses speak of the night as cloudy and dark, but others say it was clear. The gates at the crossing were raised, and there was no watchman or light at the crossing. There was a passenger train coming into Washington that passed over the crossing just before the deceased reached it and attempted to pass over it. At the same time, coming out of Washington and going in the direction of Baltimore, were an engine and tender, and the proof is conflicting as to whether this engine and tender were running head or tender foremost. It was this engine with the tender that collided with the deceased and caused his death ; the collision occurring at or near about the crossing. The meeting and passing in opposite directions of the passenger train, going into Washington, and the engine and tender going in the direction of Baltimore, occurred west of, but not very far from the crossing of L street. Some of the witnesses speak of smoke emitted from the passenger train, but others do not seem to have observed it. There were no bells rung nor whistles blown, either by the passing passenger train or the engine with the tender; but that was forbidden by the police regulation of the city of Washington, and therefore the defendants were not responsible for the omission of such signals. The absence of such signals, however, maj^, in connection with other circumstances, be considered as influencing the conduct of the deceased in his approach to the crossing. The locomotive and tender, as the witnesses say, were running “extra,” or wild, and not on regular time; and while some of the witnesses swear that the tender was run foremost, or that the engine was running backward, others swear that it was not, and several of the witnesses swear that there was no light to be seen on the forward end of the tender. No witness saw the accident as it actually happened. The witness McDonnell swears that he saw the deceased approaching the crossing, and saw him in the act of stepping on or over the north track of the road, but he did not see him struck by the locomotive or tender, that were then just passing over the crossing. Whether he did or did not look and listen for the approach of trains, before stepping upon the tracks, nowhere appears from the evidence, except as it may be inferred; and in the absence of negative evidence, or evidence that he did not look and listen for the approach of trains, the presumption would be that he did. Texas & P. Railway Co. v. Gentry, 163 U. S. 353, 366. It is certainly clear that the deceased was under a duty not to expose himself recklessly when about to cross the railroad tracks, even at a regular crossing; nor would the negligence of the defendants justify negligence on the part of deceased. Texas & P. Railway Co. v. Gentry, supra. The rule upon this subject is very clearly stated by the Supreme Court of the United States, in Continental Improvement Co. v. Stead, 95 U. S. 161, 164, referred to with approval in 163 U. S. 367, where it is said that “Those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care.” This principle is also laid down with approval in Baltimore & Ohio Railroad Co. v. Griffith, 159 U. S. 603, 609.

Under the facts of this case, we do not see that the court below could have done otherwise than it did, touching the question of contributory negligence- of the deceased, and that was, to instruct the jury fully and clearly, as was done by granting the defendants’ third, fourth, fifth, sixth and seventh prayers, that the defendants were not liable if the deceased by his own fault or neglect contributed to his death, and if they should so find their verdict should be for the defendants.

We find no error in any of the rulings of the court below to which exception was taken, and its judgment must, therefore, be affirmed; and it is so ordered. Judgment affirmed.  