
    Railway Company v. Schneider.
    
      Railroad companies — Negligence—Street Crossings — Gatemen.
    1. Where a railroad company uses the tracks of its road across a generally traveled public street in a populous town or city, for its convenience in the switching of trains, cars and locomotives, and the crossing is thereby rendered exceptionally dangerous, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing, and should, in the exorcise of such care, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flagmen, or gates and gatemen, at such crossing, or adopt other equally adequate measures for that purpose.
    2. A railroad company which, in operating the road with the company owning the same, under an agreement to pay the latter a specified sum, yearly, in excess of the amount to which it is entitled out of the joint earnings, for the use of its tracks and the cost of switching, uses the tracks at such crossing where gates and gatemen are maintained, is bound to the same care in the use thereof as the company owning the road, and should anticipate the reasonable effect of the gates, and the gatemens’ conduct in their management, on persons approaching the crossing or about to cross, and operate the road at that place, having due regard to such probable effect, and exercise care proportioned to the probable danger to persons using such crossing under those circumstances ; and if, while so using the tracks of the road it accepts the services, of the gatemen employed by the company owning the road, instead of employing gatemen of its own, they become, for the time being, its servants, for whose negligence it is responsible; and if it does not accept their services, its duty is to place competent gatemen at such crossing, and is responsible for its omission to do so.
    3. When gatemen are maintained at such crossings, it is their duty to observe the tracks and know when, on account of trains or engines thereon? it becomes dangerous for persons to cross, and when it is so, to close the gates and keep them closed to prevent persons from going upon the tracks so long as the danger continues; and when the tracks are clear, or persons may cross without danger from passing cars and locomotives, then to open the gates and keep them open to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing or about to cross have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duties, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties. Hence an open gate with the galeman in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are open and the gatemen present, it is not negligence in persons approaching the crossing with teams to drive at a trot, or pass on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen.
    (Decided May 1, 1888.)
    Error to the Circuit Court of Hamilton County.
    On the 10th of September, 1881, Henry Schneider, while driving his team over the railroad tracks across Freeman street in the city of Cincinnati, was killed by a locomotive run, managed, and operated, by the Cleveland, Columbus, Cincinnati and Indianapolis railway company. His widow, Mary Schneider, was appointed administratrix of his estate and brought her action in the superior court of Cincinnati against the railway company, under the statute, for damages, avering that his death was caused by the negligence and wrongful conduct of the conpany’s servants, and that he was without fault.
    The answer controverted all the allegations of the petition except that the defendant is a corporation under the laws of Ohio.
    The plaintiff obtained a verdict for six thousand dollars, but, upon the hearing of a motion for.a new trial filed by the defendant, consented to remit two thousand dollars and accept judgment for four thousand dollars. The motion was thereupon overruled and judgment entered accordingly. A bill of exceptions was duly taken purporting to set out all the evidence, the charge of the court to the jury, certain instructions requested by the defendant which were refused, and certain other instructions requested by the defendant which were given. One of the gx’ounds of the xnotion for a new trial was misconduct on the pax’t of the plaintiff in the action, upon which affidavits were read by both parties, which affidavits are by reference made part of a seperate bill of exceptions taken on the overruling of the motion.
    
      ‘ The railway company prosecuted error to the district court, and at the April term, 1885, the circuit court affirmed the judgment of the superior court, and the reversal of those judgments is now sought in this court.
    The errors relied on relate to the charge of the court, its refusal to give in charge the instructions requested, and misconduct of the plaintiff in the progress of the trial. Such further statement with reference to them as is deemed material will appear in the opinion.
    
      Mathews, Holding & Greve and H. H Poppleton, for plaintiff in error.
    1. The court erred in refusing to give the first instruction as requested by the plaintiff in error.
    A railway track is a place of danger, and must be approached as such by one traveling a highway which crosses it, and he is negligent who fails to approach it as a place of danger.' If the defendant in error approached the crossing on a trot or at such speed as to be unable to stop his horses before getting upon the track he did so at his own peril of being injured by collision with the engine, and the jury should have been so charged. Glendening v. Sharp, 22 Hun, 78; Haring v. N. Y. & E. R. Co., 13 Barb. 9; Tuckeer v. Duncan, 4 Woods, 652; Fletcher v. A. & P. R. Co., 64 Mo. 484.
    A traveler who drives upon a railroad track without taking that precaution to ascertain if a train be approaching which the character of the crossing makes necessary to avoid injury, is guilty of negligence in law, although the servents of the company may have been negligent in the management of the train, and the traveler, in his confusion and in the excitement of the moment, rushed more heedlessly into greater peril. Chicago & N. W. R. Co. v. Hatch, 79 Ill. 137; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450; Schofield v. C. M. & St. P. R. Co., 8 Fed. Rep. 488; Murray v. P. R. R. Co., 31 La. Ann. 490; Tully v. F. R. Co., 134 Mass. 499; Wheelwright v. B. & A. R. Co., 135 Mass. 225; Ormsbee v. B. & P. R. Co., 14 R. I. 102; N. O. & N. G. R. Co. v. Mitchell, 52 Miss. 808; Parker v. W. & W. R. Co., 86 N. C. 221; Mahlen v. Lake S. & M. S. R. Co., 49 Mich. 585; Spencer v. U. & S. R. Co., 5 Barb. 337; Allyn v. B. & A. R. Co., 105 Mass. 77; Kelley v. H. & St. J. R. Co., 75 Mo. 138.
    It is fatal to a right of action if a traveler approach a railway crossing at such speed as to be unable to stop his horses before getting upon the track. Grippen v. N. Y. Cent. R. Co., 40 N. Y. 34; Grows v. M. C. R. Co., 67 Me. 100; Mantel v. C. M. St. P. R. Co., 33 Minn. 62; Brown v. M. & St. P. R. Co., 22 Minn. 165; Salter v. U. & B. R. Co., 75 N. Y. 273.
    If deceased forgot to look until he got too near to avoid the injury, that fact will not excuse his want of care in driving upon the track on a trot. B. & O. R. Co. v. Whitacre, 35 Ohio St. 627.
    In review of the evidence that the deceased drove upon the track on a trot, the first request to charge was warranted and it was error to refuse it. Wilds v. H. R. R. Co., 24 N. Y. 443; Little Miami R. Co. v. Wetmore, 18 Ohio St. 134; Salter v. U. & B. R. Co., 75 N. Y. 273; Heileman v. N. P. R. Co., 49 Pa. St. 63.
    2. The gateman was not the servant of the defendant either by contract or by operation of law, but we stand ready to admit that if it were a duty of the plaintiff in error to place a flagman at that street crossing to warn the deceased of the approach of the locomotive which caused the injury, then the flagman of the. C., H. & D. R. Co. was for that purpose the servant of plaintiff in error and for his acts it is responsible.
    But, au eontraire, if there were no duty upon the part of defendant to place a flagman at that crossing, the absence of a flagman was no omission of duty, and, consequently, not negligence on its part, and it is not responsible for the acts of the hired servant of the C., H. & D. R. Co. in doing that which it did not authorize, or in failing to do that which he was by his master directed to do. Cooley on Torts, 659.
    There was no statutory duty to place a flagman at that crossing, but there is a common law rule which renders it incumbent upon the plaintiff in error to exercise that care and prudence in the management of its trains which is commensurate with the danger of injury to others, to be reasonably apprehended. But if that rule was satisfied by a proper and careful management of its engines, it is not to be held responsible because it did not go further and notify deceased it was doing so. and it is not to be left to a jury to say that it was its duty to place a man at the crossing to notify deceased to be careful.
    The common law does not impose upon railroad companies, while operating their trains with due care upon their railroad tracks, the duty of warning, by signals or means other than those prescribed by positive statute, persons crossing such track. Beisiegel v. N. Y. Cent. R. Co., 40 N. Y. 9; Grippen v. N. Y. Cent. & H. R. R. Co., 40 N. Y. 34.
    The C., H. & D. R. Co. undoubtedly had the right to station a flagman at Freeman street to warn travelers, if it so desired; but it was a precaution voluntarily assumed and could be abandoned at any time. And, as was said by Welles, J., in Skelton v. L. & N. W. R. Co., L. R. 2 C. P. 631: “ A mere failure to perform a self-imposed duty is not actionable negligence.”
    The C., H. & D. R. Co. had exclusive control of the flagman, and defendant is not liable for his acts. Sprague v. Smith, 29 Vt. 426.
    The plaintiff in error is not liable for the negligent acts of the C., H. & D. R. Co. Fletcher v. B. & M. R. Co., 1 Allen, 9; Clymer v. C. R. Co., 5 Blatchf. 317.
    3. The court erred in refusing to give the third instruction to the jury as requested.
    It was in hypothetical form and conformed to the suggestion' of the court in Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 678, and did not assume the existence of the fact that deceased could have seen the engine when twenty-five feet distant from the track on which it was running, but left it to the jury to say whether he could or could not have seen it at that distance, and whether or not if he had, it was in time to have enabled him to avoid the injury he received.
    It appeared by the testimony that if the deceased had looked he might have seen the engine at a much greater distance than the request assumed. In many cases where facts such as these have been established, the higher courts have held it was such evidence of contributory negligence that its submission to a jury was error. Cleveland v. New Jersey Steamboat Co., 89 N. Y. 627; Wendell v. N. Y. Cent. & H. R. R. Co., 91 N. Y. 420; Becht v. Corbin, 92 N. Y. 658; Hoag v. Railroad Co., 85 Pa. St. 293; Penn. R. Co. v. Fries, 87 Pa. St. 234; Kan. Pac. R. Co. v. Butts, 7 Kan. 308; Trow v. Vermont C. R. Co., 24 Vt. 497; Berg v. Chicago etc. R. Co., 12 C. L. J. 67.
    If deceased had an opportunity, nothing will excuse him from looking. If he could have seen the engine in time to have avoided the collision his failure to look was negligence. N. P. R. Co. v. Heileman, 49 Pa. St. 63; Baxter v. T. & B. R. Co., 41 N. Y. 502; T. & W. R. Co. v. Goddard, 25 Ind. 185; Schofield v. C., M. & St. P. R. Co., 114 U. S. 615; I. C. R. Co. v. Goddard, 72 Ill. 568; Cordell v. N. Y. Cent. & H. R. R. Co., 75 N. Y. 333; Foy v. P., W. & B. R. Co., 47 Md. 76; R. & C. R. Co. v. Ritchie, 102 Pa. St. 425; Stubley v. L. & N. W. R. Co., L. R. 1 Exch. 13; Salter v. U. & B. R. Co., 75 N. Y. 277; Reynolds v. N. Y. Cent. & H. R. R. Co., 58 N. Y. 248; Carroll v. R. R. Co., 12 Week. Notes Cas. 348; Starry v. D. & S. W. R. Co., 51 Iowa, 419; State v. Maine Cent. R. Co., 76 Me. 357; Lesan v. Maine Cent. R. Co., 77 Me. 85; C. C. C. & I. R. Co. v. Elliott, 28 Ohio St. 352; Spencer v. Ill. Cent. R. Co., 29 Iowa, 55; Chicago & R. I. R. Co. v. McKean, 40 Ill. 218; Artz v. Chicago R. I. & P. R. Co., 34 Iowa, 154.
    4. The court erred in refusing to give the fourth instruction as requested.
    Negligence is the absence of care according to circumstances ; and the care deceased should have exercised to avoid the injury should have been commensurate with the danger to be avoided, and his duty should have been dictated and is to be measured by the exigencies of the occasion. If his view were unobstructed there may have been no occasiou to listen; and if he were injured by the passing locomotive, which he might have heard had he listened, presumptively he was guilty of contributory negligence; and as this presumption was not repelled, a recovery from the injury he received cannot be bad. If his view were so obstructed that he could not see, and the perils of crossing Avere great, he was called upon to exercise a greater amount of care than where the circumstances were less perilous. He should have stopped to listen. Chicago, B. & Q. R. Co. v. Harwood, 80 Ill. 88; Schwartz v. H. R. Co., 4 Robt. 347; Penn. R. Co. v. Beale, 73 Pa. St. 504; Haas v. Grand R. & I. R. Co., 47 Mich. 401; Chase v. Maine Cent. R. Co., 5 Atl. Rep. 771; Fleming v. West. Pac. R. Co., 49 Cal. 253; Chase v. Maine Cent. R. Co., 77 Me. 62; Penn. R. Co. v. Morel, 40 Ohio St. 338; Mynning v. D., L. & N. R. Co., 26 N. W. Rep. 514; Haight v. N. Y. Cent. R. Co., 7 Lansing, 11; Rothe v. Milwaukee & St. P. R. Co., 21 Wis. 256; Tolman v. Syracuse, B. & N. Y. R. Co., 98 N. Y. 198; Lake S. & M. S. R. Co. v. Miller, 25 Mich. 274; Union Pac. R. Co. v. Adams, 33 Kan. 427; Carlin v. Chicago, R. I. &. P. R. Co., 37 Iowa, 316; Benton v. Central Railroad of Iowa, 42 Iowa, 192; Connelly v. N. Y. Cent. & H. R. R Co., 88 N. Y. 346; Woodard v. N. Y., Lake Erie & W. R. Co., 106 N. Y. 369.
    It is not only essential in a case of this kind to entitle the plaintiff to recover that he should look and listen; the rule is that he must also stop if that be reasonably necessary to discover danger. And he is not relieved from this duty though the flagman motioned him to come on, or failed to warn him not to come on. Philadelphia & R. R. Co. v. Boyer, 2 A. & E. Rwy. Cas. 172; Lake Shore & Mich. S. R. Co. v. Miller, 25 Mich. 274; Zimmerman v. Hannibal & St. J. R. Co., 71 Mo. 476; Penn. R. Co. v. Beale, 73 Pa. St. 504; Haas v. Grand Rap. & I. R. Co., 47 Mich. 401; Schaefert v. Chicago, M. & St. P. R. Co., 62 Iowa, 624, 627, 628; Cent. Pass. R. Co. v. Kuhn, 6 S. W. Rep. 441; Balt. & O. R. Co. v. Whitacre, 35 Ohio St. 638; Philadelphia & R. R. Co. v. Killips, 88 Pa. St. 405; Seefeed v. C., M. & St. P. R. Co., 35 N. W. Rep. 278; Marty v. C., St. P., M. & O. R. Co., 35 N. W. Rep. 670; Nosler v. Chicago, B. & Q. R. Co., 34 N. W. Rep. 850.
    The fact that there are obstructions to the view does not relieve a man of taking all precautions. It AArould be a singular state of law that made it obligatory in a case where the country is open and there is no difficulty in detecting the approach of a train that he should look and listen, and yet permit him where the crossing is very dangerous and there are obstacles in the way of observations to rush blindly across, because forsooth the crossing is so dangerous that it is difficult to make observations. These obstacles only make it the more obligatory upon him to be careful, and where one means of detecting the presence of danger is inadequate, to use another. Union Pac. R. Co. v. Adams, 19 A. & E. Rwy. Cas. 376; Balt. & Ohio R. Co. v. Hobbs, 19 A. & E. Rwy. Cas. 337; Haas v. Grand Rap. & I. R. Co., 47 Mich. 401; Schaefert v. Chicago, M. & St. P. R. Co., 62 Iowa, 624; Balt. & O. R. Co. v. Whitacre, 35 Ohio St. 635; Penn. R. Co. v. Morel, 40 Ohio St. 338; Young v. N. Y., L. E. & W. R. Co., 14 N. E. Rep. 434.
    The obligation to look and listen cannot be altered by the fact that you cannot see a train until you get very close to the track. Wilds v. Hudson R. R. Co., 29 N. Y. 315; Wilds v. Hudson R. R. Co., 24 N. Y. 430; Wilcox v. Rome, W. & C. R. Co., 39 N. Y. 358; Beisiegel v. N. Y. Cent. R. Co., 40 N. Y. 9; Reynolds v. N. Y. Cent. & H. R. R. Co., 58 N. Y. 248; Woodard v. N. Y., Lake Erie & W. R. Co., 106 N. Y. 369.
    
      Campbell & Bettman, for defendant in error.
    1. The charge given by the court fairly and fully stated the law upon the point to which the first request of the plaintiff1 in error related, although in different form. It had the advantage of being more concise. Hence the court did not err in refusing to give the first charge requested. Bond v. State, 23 Ohio St. 349.
    The charge requested contained unsound propositions of law, and was prayed for as an entirety. In such case the request may be refused if a portion of it is inadmissible. Walker v. Dewlin, 2 Ohio St. 593; Tabler v. State, 34 Ohio St. 127, 133.
    The charge refused contained, among some sound propositions, the following: That if the decedent approached the crossing on a trot, then he was guilty of contributory negligence. In other words, to trot one’s horses as one nears the track, is negligence in law — negligence per se.
    
    The railroad company, in approaching and crossing a highway, is not, in the absence of statutory prohibitions, limited to any particular speed. No rate of speed is negligence per se, but when unusual, may be considered with other facts as bearing on the degree of care used. Pierce Railroads, 354. And so with the traveler. The jury must consider whether, under all the circumstances, he was j ustified in trotting his team. ’ It is only one circumstance and is for the jury to weigh. It is not so glaring an act as to exclude all other inference, but that of want of ordinary care. Since, therefor, as a matter of law, it is not contributory negligence to approach a crossing at a trot, the charge was properly refused and no error resulted therefrom.
    2. It is claimed that since the law did not impose upon the plaintiff in error the duty of giving warning through a flagman or gateman, and since the gateman was employed and paid by the C. H. & D. R. Co., that under no circumstances can he be regarded as the servant of the defendant; and further, that even if he were its servant, it was a precaution voluntarily assumed and could be be abandoned at any time.
    The gateman was the agent of the plaintiff in error at the time its trains passed his crossing. With its knowledge and asesnt he had been opening and shutting the gates for two years, at least, whenever its trains or engines passed; and to that extent and whenever such train or engine passed, he thereby became its servant. It had knowingly derived protection from his care, and it should now incur liability from his negligence. Mills v. Orange A. & R. Co., 2 McArthur, 314; Wood Law Mas. & Ser., sec. 7; Patterson Rail. Ac. Law, 138, 139; Wood Rail. Law, 1335.
    Where a flagman has been uniformly stationed by a railroad company at a street crossing, the negligence of the flagman to give warning and properly to discharge his duty, or in absenting himself from his post, is negligence imputable to the company. Sweeney v. Old Col. & N. R. Co., 10 Allen, 368, 377; Kissenger v. N. Y. & H. R. Co., 56 N. Y. 538; 
      Dolan v. D. & H. C. Co., 71 N. Y. 285; Burns v. N. C. R. M. Co., 65 Wis. 312; P. C. & St. L. R. Co. v. Yundt, 78 Ind. 373; Penn. R. Co. v. Killips, 88 Pa. St. 413.
    3. The third request to charge would have practically amounted to an instruction to find for the defendant, although the inferences to be drawn from a failure to look at any particular distance may be many and conflicting. It was for the jury to determine whether the decedent exercised that care which the law required of him. Kellogg v. N. Y. Cent. R. R. Co., 79 N. Y. 72; Penn. R. Co. v. Bentley, 66 Pa. St. 33.
    The charge asked for a final and single conclusion from a fact, attaching to it an arbitrary and absolute importance, which fact was only a basis for a more ultimate fact and therefore of mere evidential value. The charge asked the jury to consider the fact as constituting negligence when, if of any bearing at all, it could only constitute evidence of negligence.
    4. The fourth request to charge has a double aspect. It takes from the jury the consideration of what a reasonable man should have done, and it also asks the court to charge, as a matter of law, that it is necessary for one crossing a track to stop and listen.
    The law in Pennsylvania seems to be that one is required as a matter of law to stop before crossing a railroad track while driving, and so it has been twice ruled in Missouri, each time by a divided court. But the great body of decisions is against the proposition. The rule is that a man, in approaching a track, must exercise ordinary care. To ask him. to stop would be .to demand extraordinary prudence. Kelley v. St. P. M. & M. R. Co., 29 Minn. 1, 4; Eilert v. Green Bay & M. R. Co., 48 Wis. 606; Kellogg v. N. Y. Cent. & H. R. R. Co., 79 N. Y. 72; Davis v. N. Y. Cent. & H. R. R. Co., 47 N. Y. 400; Dolan v. D. & H. C. Co., 71 N. Y. 285, 288; Mackay v. N. Y. Cent. R. Co., 35 N. Y. 75; Leaven, morth, L. & G. R. Co. v. Rice, 10 Kan. 426; Penn. R. Co. v. Frana, 112 Ill. 398; Duffy v. E. & N. W. R. Co., 32 Wis. 269; Spencer v. Ill. Cent. R. Co., 29 Iowa, 55; Hous. & T. C. R. Co. v. Wilson, 60 Tex. 142.
   Williams, J.

1. The refusal of the court to give in charge to the jury the first instruction requested by the railway company, is made the basis of an extended argument to show that it was denied the benefit of the proper rule of law on the subject of contributory negligence. Whether this is so, depends not only upon the accuracy of the instruction requested, but also upon the effect of the charge given.

The charge requested is as follows :

“ 1. It was the duty of the decedent, to approach the crossing at such a rate of speed as would enable him to stop promptly, to avoid danger, and if the decedent approached the crossing on a trot or at such rate of speed as prevented him from discovering the danger in time to avoid it, or prevented him from stopping promptly, or from turning his horses or as induced him to hurry across upon discovering the danger rather than attempt to stop, then he was guilty of contributory negligence, and the plaintiff cannot recover even though defendant's negligence, also contributed to the injury.''

The Court in its general charge on the subject said to the jury :

The deceased was bound to use the same care in protecting himself, that the defendant company was bound' to use, in seeing that no person came to injury by the management of its cars and engines. That is, he was bound to use such care and prudence as a reasonable and prudent man would use, in protecting himself against any injury. It was his duty to use his senses in approaching the railway track, to discover whether or not there was any train or locomotive approaching which might injure him; to make such reasonable use of his eyes and other senses as a reasonable and prudent man would make; and if by the use of them, he could have avoided the injury, then he cannot recover from the company. But if he exercised such care as a reasonable, prudent man would exercise, and if the defendant were guilty of neglect in the running of this engine, and the deceased was killed by reason of that, then the company is responsible.”

And at the request of the company the court further in- ' structed the jury:

“ That it is the duty of the deceased, in approaching the railroad crossing, to look for the railroad locomotive before attempting to cross; and if his failure contributed to the accident, he cannot recover, even though the defendant’s negligence also contributed to the injury.

“ Even though the fireman and engineer were guilty of neglect contributing to the injury, yet that did not absolve the deceased from exercising the precaution of looking and listening for the approach of trains at such point on Ereeman street, as would enable him to discover the approaching train or locomotive ; or from approaching the crossing at such gait as would enable him to control his horses promptly.”

The instructions given to the jury, omitted nothing of substance contained in the one refused, unless it be that “ if the deceased approached the crossing on a trot ” he was guilty of contributory negligence. Indeed the effect of the charge requested is, that it is negligence in law, for a person driving a team to approach at a trot, a railroad crossing under any circumstances.

It is undoubtedly true that persons approaching railroad crossings are bound to the reasonable and prudent exercise of their faculties to discover danger, and to the use of proper care to avoid injury; and, if the omission of either contributes to their injury they are generally without remedy. But whether they have so exercised their faculties and used such care must depend upon the particular circumstance; for instance, it has been held that the absence of the usual signboard of warning is a circumstance which may properly go to the jury to enable them to determine whether the person attempting to cross the railroad track has been guilty of such negligence as would defeat his recovery. The reason assigned is “ that if the traveler is a stranger to the crossing, the want of such warning would be calculated to mislead him into danger; and if he was familiar with the crossing, it might operate as a reminder of danger which he might otherwise forget.” And generally “when the question of contributory negligence depends upon a variety of circumstances from which different minds may arrive at different conclusions as to whether the plaintiff exercised proper care and caution, the question should be submitted to the jury under proper instructions.” Railroad v. Whitacre, 35 Ohio St. 627.

Approaching a railroad crossing by one driving a team at the speed of a trot, may not necessarily either interfere with the prudent use of his faculties, or prevent due care on his part in crossing. There may be crossings, much .used both by the railroad company and the travelling public, where it would be highly important that persons should cross over promptly and quickly. At the intersection of railroads and highways where trains are run at long intervals, and few persons travel the road, persons approaching, ordinarily can tell whether it is dangerous to cross, and easily govern their own conduct in crossing. But where several tracks, over which trains and engines are run many times every hour, cross a constantly traveled public street in a populous city, thronged with people and vehicles, unless some expeditious mode of crossing were devised, a confused and hopeless obstruction of the street would result. Hence, at such crossings gates are put up and gatemen maintained by railroad companies, as was the case at the crossing in question, as a means of safety to the people using the street and for the protection of the railroad companies. It is the business of the gatemen to watch the track, and when clear, to open the gates for persons using the street to cross; and upon the approach of locomotives or trains to close the gates and prevent persons and vehicles from crossing until the tracks are again clear. To persons in the street who are approaching the railroad tracks with a view to crossing, an open gate is notice that the track is clear, and that it is safe to cross; but as the gates were liable to be closed at any time, persons crossing would naturally understand they should not linger on the track, but pass over promptly and speedily. Therefore, for a person to drive in a trot onto the railroad tracks while the gates are open, instead of being negligence, might be- a high degree of care.

The evidence in this case very clearly shows that Freeman street, at the point it was crossed by the railroad tracks, was a public street of the city of Cincinnati, over, which people and teams of all kinds were constantly passing; that several tracks of the railroad were laid across it, which were by two compapanies used for shifting their cars and locomotives, and gates had been put up, and gatemen were maintained at the crossing; that at the time the deceased approached and drove onto the crossing the gates were open, and he drove onto the tracks through the open gate on a trot; and we think the court properly left it to the jury to determine whether the deceased under the circumstances of the case, used such care as a reasonable and prudent person would and ought; and the refusal of the court to charge the jury that he was guilty of contributory negligence, if he approached the crossing on a trot, was not error.

2. It is next contended that there was error in refusing to instruct the jury that:

“ If the jury find, that the gateman was an employe of the Cincinnati, Hamilton & Dayton Railroad Company, and under its control, and operated the gates while the trains of the defendant were passing, simply as the servant of the first-named company, then the defendant could not be charged with his negligence, unless after discovering his negligence it could by the exercise of ordinary care have prevented the effect of such negligence;” and in the charge given on that subject, which is as follows :

“There is one thing further which is to be said about the question as to the agents of the defendant. It is claimed that the defendant is not liable for the acts of the brakesman, gatekeeper, and perhaps other employes, because they were employes of the Cincinnati, Hamilton & Dayton Railroad Company, and not the employes of the defendant company. “If you find from the testimony, that the defendant, the Cleveland, 'Columbus, Cincinnati & Indianapolis Railway’ Company was occupying the tracks of the Cincinnati, Hamilton & Dayton Railway Company by an agreement between the two companies; that the engine which caused the injury, was the engine of the defendant company; and that the switch-men, gate-keepers, train dispatchers, and other officers and agents of the Cincinnati, Hamilton & Dayton Company, were, by reason of this agreement engaged in running, or aiding to run the locomotive of the defendant company, then, for the purposes of the movements of that locomotive on the track of the Cincinnati, Hamilton & Dayton Company, the officers and agents of the Cincinnati, Hamilton & Dayton Company engaged in that work, were the officers and agents of the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company.”

It appears from the record that a contract was made between the Cincinnati, Hamilton & Dayton Railroad Company and the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company, in 1876, the seventh section of which only was put in evidence, and which reads as follows :

Seventh. The business of said two lines ®f railroad shall be conducted so as to preserve the existing relations of each with eastern and western connecting roads, and to develop to the fullest extent the business resources of each line; all passenger trains shall be run to and from the Cincinnati depot, party of the first part, and for the use of the same, with the tracks, side tracks thereto and yards for passenger cars west of Millcreek, and for the cost of switching, the party of the first part, shall be allowed and paid by the party of the second part, in excess of the amount to which each shall be entitled out of the joint earnings, annually the sum of five thousand dollars, payable monthly.”

There was evidence tending to show that the gate at the Freeman street crossing was put up by the former company, and that the gateman was employed by that company, but the engines and trains of the latter company were run and controlled by its own servants and employes, and that the engine which collided with the wagon of the deceased when he was killed, was-4o run and controlled; and as the negligence charged against the defendant by the plaintiff in her petition consisted in carelessly running the locomotive and managing the crossing, it became a material question whether the defendant, could be made responsible for any negligence of the gate-man while it was using and operating the railroad. The whole of the agreement between the two companies is not produced, and it was impossible for the court from the fragment that was introduced in evidence to construe it, or properly determine its effect or the relation really existing between the companies. From that part of the contract contained in the record, it appears that each company had the right to the equal and joint use of the tracks and depot, and the defendant was to pay the other company for the use of the same with the side tracks and yard, and for the cost of switching, five thousand dollars per year in excess of the amount to which it should be entitled out of the joint earnings. "What the arrangement was in regard to the servants or employes of the two companies is not shown. Whether they were to be paid out of the joint earnings, and be under the joint control of the two companies or otherwise, does not appear from that part of the agreement in the record; and the evidence on the subject consisted of the usage and conduct of the companies. It would seem, therefore, that the court properly left it to the jury to determine as a question of fact, whether the defendant was using the tracks of the other company under an agreement with it, and the gate keeper and other employes of that company were, by reason of the agreement, aiding to run the locomotive, of the defendant which caused the injury. If so, they became, by virtue of the agreement, the servants and employes of the defendant, and it became liable for their negligence. The fact that the gateman was an employe of the Cincinnati, Hamilton and Dayton Railroad Company, and was under its control and so operated the gates while the defendant’s trains were passing, does not exclude the idea that by virtue of the agreement between the two companies, he may also have been then equally under the control of the defendant.

But we do not care to rest the decision of this question solely or mainly upon the foregoing considerations. It is generally held that railroad companies, unless required by statute, are not bound to place gates or flagmen at highway crossings, except under special circumstances which render the precaution necessary for tbe public safety. The duty, it is said, does not arise merely from the number of persons who use the crossing, but it may be created by an exceptionally dangerous mode of crossing adopted by the companies for their own convenience. Peirce on Railroads, 352 and cases cited.

“A railway company is not as a rule, in the absence of a statute requiring it, or of an ordinance of a municipal corporation, bound to maintain gates at a crossing, or keep a flagman there to warn travellers of the approach of trains. But under the maxim sio utere tuo, etc., instances may arise where this duty is cast upon them, or of providing some other equally safe mode, by reason of the location of the crossing, and the large number of people crossing it, or where the mode of crossing adopted by the company is exceptionally dangerous.” 2 Woods Railway Laws, 1313.

And in Pennsylvania R. R. Co. v. Matthews, 36 N. J. L. 531, the chief justice, in delivering the opinion of the court, said: “ Under usual circumstances, in the open country, they (railway companies) can run as many trains, and at as groat a rate of speed as are consistent with the safety of their passengers. They are not called on to keep flagmen, under ordinary circumstances, at cross-roads, nor to give any other notice of the approach of their trains than those signals that are prescribed by statute. If greater safe-guards .are requisite for the safety of the community, and those public agents are to be put under greater restrictions in the exercise of their franchises, such contrivances must proceed from the legislative, and not from the judicial power. But while I thus say that these additional burthens cannot be imposed by the courts upon these companies, I also say, at the same time, and with quite as much emphasis, that the companies may, by their own conduct, impose such burthens on themselves. If one of them chooses to build its track in such a mode as to unnecessarily make the use of a public road which it crosses, greatly dangerous, I think such company, by its own action, must be held to have assumed the obligation of compensating the public for the increased danger, by the use of additional safeguards. The reasonable and indispensable implication is that the railway is to be constructed so as not unnecessarily to interfere with the safe use of the public roads; and if a railroad for its own convenience curves its track, as it leaves a deep cut within a few feet of a highway, and also sees fit to put up buildings close along such track, and by these means, or either of them, heightening the danger in the use of such highway, it seems to me very clear, that such company must be held to have taken upon itself the duty of averting such danger, by the employment of every reasonable precaution within its power. On such occasions as this, or whenever the situation is embraced within the principle stated, the presence of a flagman, or some equivalent safeguard can be demanded of the company.”

The crossing in question has been recognized by the railroad companies using it, as of that exceptionally dangerous character, made so for their convenience in using the tracks as a place for switching cars and locomotives, which ' created the duty to place gates and gatemen there as a necessary precaution on their part, and we think very properly so; for when a railroad company for its own convenience, lays its tracks across a generally travelled public street in a populous town or city, over which people with their teams and vehicles are accustomed to pass almost continuously, and then uses the tracks as a place for the convenient switching of trains and engines, thus making a.yard of a portion of the public street, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing; and common prudence requires that it should, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flagmen or gates and gatemen at such crossing, or adopt other adequate measures for that purpose; otherwise, the street may be permanently obstructed and its uses destroyed.

So long as the defendant used the railroad tracks at this crossing and operated the road, it was incumbent on it to use like care. It should anticipate the reasonable effect of the gates, and the gatemen’s conduct in their managment, on persons approaching the crossing, or about to cross, and operate the road at that place, having due regard to such probable effect, and exercise care proportioned to the probable danger to persons using such crossing under those circumstances; and if while so using the tracks of the road, it accepts the services of the gatemen employed by the company owning the road, instead of employing gatemen of its own, they become, for the time being, its servants, for whose negligence it is responsible; and if it does not accept their services, its duty is to place competent gatemen there, and is responsible for its omission to do so. It might by proper stipulation in the agreement of the railroad company with which it contracted*, require it to furnish competent servants for the transaction of its business, and hold it responsible for any breach of the agreement; but it cannot by such contract, or by its failure to so contract, shift either the duty it owes to those using the street, or its responsibility to them.

3. The refusal of the court to give the third instruction requested by the defendant is also one of the errors assigned. That instruction is that :

If the jury find from the evidence, that at a point on Freeman street, twenty-five feet from the track upon which the locomotive that caused the injury was coming, the decedent seated in his wagon could, by looking in the direction of the approaching locomotive have seen it at a distance of one hundred and fifty feet, or more, from the crossing, and in time to avoid the collision, his failure to discover its approach was negligence on his part, and the plaintiff cannot recover.”

It is said in the argument that this instruction is adopted from Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 678.

The instructions requested and refused in that case were, that if the plaintiff’s daughter, who was killed, and her sister who was accompanying her, could, by looking, have seen the train and avoided the injury, their attemptto cross without looking was negligence; or, if they were standing on the track without looking to see if a train were approaching, if they could have seen the danger and avoided the injury by looking, that was negligence. This court in declining to reverse the judgment because of the refusal to give the instructions requested said : “ While we think the court erred in refusing a new trial on the ground that the verdict is against the weight of 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 cirsumstances 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 be proven.”

These observations apply aptly to the instruction now under discussion. It assumes that there were no other facts or circumstances in the case which might properly enter into the question of contributory negligence, and in effect excluded from the jury in its consideration of the question, the fact that gates were maintained at the crossing, and stood open in the presence of the gateman having control, thus signifying a clear track and amounting to an invitation to those about to cross over to do so. Then there was evidence tending to prove that there were at least four tracks crossing Freeman street at the point in question, used by both railroad companies for switching and shifting locomotives and cars. These tracks intersected at different places, so that the passing of engines along them in the direction of the crossing, and one hundred and fifty' feet away, was not always an indication that they would pass the crossing; and the fact that the gates remained open might easily create the belief by persons ordinarily prudent, that they would not be run to the crossing. At least this was a proper circumstance for the jury in determining whether the deceased exercised proper care, and the instruction requested virtually excluded it from their consideration; and, we think there was no error in refusing it.

4. The only other instruction requested by the defendant, which was refused, is the following :

“ If there were obstructions to the decedent’s line of vision in the direction from which the locomotive was coming, that fact made it the more necessary that he should use other means to discover danger, and if he could not avoid danger otherwise than by stopping and listening, then it was his duty before going upon the track to stop and listen, and if his failure to do so contributed to the injury, plaintiff can not recover.”

Much of what has already been said is also applicable to the question raised by this request. As before remarked, persons approaching railroad crossings are bound to the reasonable use of their faculties in discovering and avoiding danger from passing trains, and to that end, it is ordinarily their duty to listen, and if necessary, stop before attempting to cross; but at crossings where gates are maintained, this may cease to be a duty, or be so only under peculiar circumstances, though the view of the track is obstructed. The placing of gates and gatemen at the crossing may have become but a prudent and proper precaution on the part of the railroad companies because of the obstructed view of the tracks, and the difficulty on the part of persons approaching in discovering danger from observation merely. At such crossings, it is the duty of the gatemen to observe the tracks, and to know when, on account of approaching trains and engines, it becomes dangerous to cross, and whenever it docs, to close the gatos and prevent persons from attempting it; and it is as much their duty to observe and know when the tracks are clear, and persons may cross over in safety, and when it is, to open the gates and keep them open for that purpose so long as it continues to be safe to cross, and no longer. Persons approaching such crossings have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duty, and govern themselves accordingly, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties; and hence, when the gates are open and the gatemen present they are entitled to assume that the tracks are clear and it is safe to cross, and their failure to stop and listen before passing onto the tracks through the open gate, is not, in the absence of other circumstances, negligence which will, in case of injury to them, caused by a passing locomotive while so attempting to cross, defeat a recovery therefor. This conclusion is sustained by the case of Baker v. Pendergast, 32 Ohio St. 494, where it is held, that a person about to cross a street of a city in which there is an ordinance against fast driving has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.”

It is true that it is further held in that case that, if the person crossing the street knew that persons were driving along the street at a forbidden speed, and had full means of seeing the rate at which they were going, the existence of the ordinance would not authorize a presumption which was negatived by the evidence of his senses.”

The instruction requested by the defendant now under consideration assumes that the deceased (Schneider) did not see the approaching engine, and could not on account of obstructions to his “ line of vision in the direction from which the locomotive was coming,”, and therefore, that it was his duty to use other means to discover the danger, and, if necessary, to stop and listen. In the case assumed by the instruction the presumption upon which he had a right to rely, viz.: that the gatemen were properly performing their duty, and the track was clear, was not negatived by the evidence of his senses or in any other way.

5. The last assignment of error we notice is that based upon the alleged misconduct of the plaintiff. It appears from the bill of exceptions that a drawing prepared by one of the witnesses, of an engine and the crossing, was admitted in evidence on the trial, and was taken with the papers by the jury on the submission of the case. The misconduct consisted in writing on the back of this paper by one of the plaintiff’s counsel what is characterized by defendant’s counsel as “points and suggestions.” If not entirely unintelligible, they are so meagre and obscure as to render it doubtful whether any person except the one who wrote them could make any intelligent interpretation of them, or derive any significance from them. It appears that they were memoranda written while the counsel for the defendant were making their arguments to the jury, by one of the plaintiffs’ counsel as points to be answered by him in the closing argument. He did not at the time know that they were being made on a paper in the ease, and it appears that they were not made with any intention to have them go to the jury, and neither the plaintiff nor her counsel knew the jury had them. The delivery of the paper to the jury was attended by no wrongful conduct on the part of the plaintiff or of her attorneys, and the trial court, familiar with the progress of the trial and the conduct of the jury was better able than wc, to judge whether the defendant could have been prejudiced thereby. At all events we do not regard it a matter of such consequence as to require the reversal of the judgment.

Some other errors are assigned, but they are substantially disposed of by what has already been said and they need not be more particularly noticed.

Judgment affirmed.  