injury they sustain." Dascomb v. Railroad Co., 27 Barb. 226. So that it seems that though a person or traveller may know the usual time of the running of different trains, or the fact that they may know that a train has passed, and that another train will not be along for some time, according to their information or the timetable, it does not relieve him of the duty of observing care and prúdence, or of using his faculties when he approaches and attempts to cross a railroad track. The law requires of him to make a reasonable use of his senses, and if the view of the track is obstructed, he must use his sense of hearing, and if he neglects to do so, and a collision results, he suffers by consequence of his own negligent act, and is not entitled to recover. He who fails to exercise this precaution when there are no circumstances to disturb his judg ment, or impede his action at the time, is not using ordinary care. It has been said: "The track itself is a warning of danger, and I think it must be laid down as a principle of law that persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and if either cannot be rendered available, the obligation to use the other is the. stronger, to ascertain, before attempting to cross it, whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence, and should be so pronounced by the courts as matters of law." Christiancy, J., in Railroad Co. v. Miller, 25 Mich. 290. "As the plaintiff could not use his eyes with effect," said Crockett, J., "it was incumbent on him, as a person of ordinary prudence, to make the best use of his ears, which he could not do while his team was in motion. Upon the plaintiff's statement of the facts, we hold that he was guilty of contributory negligence in failing to stop his team to listen for an approaching train." Flemming v. Railroad Co., 49 Cal. 256. "But aside from this fact," said Field, J., "the failure of the engi neer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's servants in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negli gence, and so far contributed to her injuries as to deprive her of any right to complain of others." Railroad Co. v. Huston, 95 U. S. 697. "A railroad crossing is a place of danger, and common prudence requires that a traveller on the highway, as he approaches

one, should use the precaution of looking to see if a train is approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless. Allyn v. Railroad Co., 105 Mass. 79. Again, it is said that "a traveller should always approach a railway crossing under the apprehension that a train is liable to come at any moment, and while he may presume that those in charge of it will obey the law by giving the signals, the law will nevertheless require that he obey the instincts of self-preservation, and not thrust himself into a situation of danger, which, notwithstanding the failure of the railroad, he might have avoided by the careful use of his senses." Railroad Co. v. Butler, 23 Am. & Eng. R. R. Cas. 262. See, also, Railroad Co. v. Righter, 42 N. J. Law, 180; note and cases cited on page 226, 2 Ame& Eng. R. R. Cas.; Payne v. Railway Co., 13 Lea, 522;s. c., 18 Am. & Eng. R. R. Cas. 119; Schaefert v. Railway Co., 62 Iowa. 624; s. c., 14 Am. & Eng. R. R. Cas. 696; Henze v. Railway Co., 71 Mo. 636; Railway Co. v. Beale, 73 Pa. St. 504; Railroad Co. v. Clark, 73 Ind. 168; s. c., 6 Am. & Eng. R. R. Cas. 84; Haas v. Railroad Co., 47 Mich. 401; s. c., 8 Am. & Eng. R. R. Cas. 268; Tucker v. Duncan, 9 Fed. Rep. 867; s. c., 6 Am. & Eng. R. R. Cas. 268; Railroad Co. v. Adams, 33 Kan. 427; s. c., 19 Am. & Eng. R. R. Cas. 376; Railroad Co., v. Ritchie, 102 Pa. St. 425; s. c., 19 Am. & Eng. R. R. Cas. 267; Railroad Co. v. Newbern, 19 Am & Eng. R. R. Cas. 261; 1 Thomp. Neg. 424, 426, and cases cited; and also Beach, Contrib. Neg. 8 63; Ry. Accident Law, 168. It thus appears to be a duty imposed by the law upon a person about to cross a railroad ta use his eyes and ears; to look out for sign boards and signals; to listen for bell or whistle; and if the view of the road is ob structed it does not relieve him of the obligation to listen and ascertain, if he can, whether there is an approaching train. Nor will the fact that the train is behind time (Salter v. Railroad Co., 75 N. Y. 273; s. c., 8 Am. & Eng. R. R. Cas. 437; State v. Railroad Co., 47 Md. 76), or that it was a special train, (Schofield v. Railroad Co. 114 U. S. 615; s. c., 19 Am. & Eng. R. R. Cas. 353), or the failure of the railway to give the signal of its approach at the crossing (see cases supra), excuse the non-performance of this duty. In many of the cases the measure of duty goes to the extent of requiring the traveller to stop in order to look or listen; ' but he is not required to get out of his wagon and go forward, on foot, for the purpose of looking (Stackus v. Railroad Co., 79 N. Y. 467; Davis v. Railroad Co., 47 N. Y. 400; Railroad Co. v. Wright, 80 Ind. 182; s. c., 5 Am. & Eng. R. R. Cas. 628), unless there are some peculiar circumstances requiring it (Railroad Co. v. Beale, 73 Pa. St. 509).

Now, the plaintiff was a competent person to take care of herself, was familiar with the road and its intersection with the rail

road, and fully understood from the obstructed view the danger and risk incurred in attempting to cross it without listening. There is no pretence that her team was or became unmanageable or unduly excited; or that there were any circumstances embarrassing or perturbing her judgment; or that she was in the presence of any entangling influences or conditions to perplex and confuse her mind. She was in the full possession of all her faculties, and if she had listened could have heard the train; yet, relying on the fact that the passenger train had passed, and that no other train was due for some time, she relaxed her vigilance, and drove on the track and in collision with the train. If the obstruction had been such," said Johnson, J., "as to prevent her from seeing the track or train, then, in the exercise of ordinary care, she should have listened for the train" Railway Co. v Adams, 33 Kan. 431; s. c., 19 Am. & Eng. R. R. Cas. 376 Upon this state of facts, what doubtful or qualifying circum stances does the conduct of the plaintiff present which excuses her from the plain consequences of her negligent acts? The duty which the law imposes for her own safety as well as the lives of passengers on trains, she neglected and disregarded, under circumstances which demanded the exercise of prudence and caution. It is true that negligence is ordinarily a question of fact for the jury to determine from all the circumstances of the case, and that the cases where a nonsuit is allowed are exceptional and confined to those as here, where the uncontradicted facts show the omission of acts which the law adjudges negligent. In such cases, where the measure of duty is defined by law, " then," says Mr. Beach, "a failure to attain that standard is negligence in law, and a matter with which a jury can properly have nothing to do." Beach, Contrib. Neg. § 163. This is the principle upon which Cogswell v. Railroad Co., 6 Or. 417, was decided by Boise, J.

We think, upon the undisputed facts of this case as made by the plaintiff, her own negligent act contributed to produce the injury which she sustained by the collision, and that the motion for nonsuit ought to have been allowed. It follows that the judg ment must be reversed, with directions that a judgment for nonsuit be entered.

Injuries at Crossings-What amounts to Contributory Negligence -Attempting to Cross after Gate is Lowered. In an action against a railroad company for injuries received at a grade crossing by being run over by a passenger train, it appeared that plaintiff's intestate attempted to cross after the gate, with signals attached, had been lowered. Held, that the intestate's contributory negligence was not excused by his supposing that they were closed solely for a freight train which was approaching, and that he was willing to take the risk of getting safely by that. Granger v. Boston & Albany R. Co. (Mass), 15 N. East. Rep. 619.

Noise of Wagon-Contributory Negligence in not Stopping.-A. attempted to drive a covered wagon, which contained a lot of loose bottles which rattled

with the motion of the wagon, across a railroad track, and was killed by an approaching train. Held, that he was guilty of contributory negligence and could not recover. As he could not see the train, ordinary prudence required him to stop the noise of his wagon and ascertain, by listening, whether there was danger or not. Merkle v. New York, L. E. & W. R. Co.,

49 N. J. L. 473.

Following Directions of Gateman at Crossing not Contributory Negligence. The distance across the railway tracks of defendant company, at a street crossing, was about 160 feet. Between 2 and 3 o'clock on a dark morning plaintiff's intestate had driven half way across when the gates were closed, and the gateman shouted to him to stop, whereupon he whipped up his horse, and the gateman then shouted to him to "Come on," at the same time opening the gate in front. Before reaching the opposite side the deceased was struck by an engine and killed. Held, that after the first warning deceased was not guilty of such gross or wilful negligence as would, under Pub. St. Mass. c. 112 § 213, relating to the liability of railroad companies for negligence at crossings, preclude plaintiff's right to recover. Doyle v. Boston & Albany R. Co., 145 Mass. 386.

Failure of Foot Passenger Carrying Umbrella to Stop and Look.-In an action by the widow to recover damages for the death of her husband, caused by being struck and run over by a railroad car which had been shunted by a switch-engine, the evidence showed that he was well acquainted with the movements of the trains in that locality; that at the time of the accident he was in earnest conversation with a friend, and had an umbrella hoisted to shield himself from the sun; that the approach of the car was plainly visible to all by-standers, one of whom shouted to him when the car was 60 feet from him, but that he did not stop, look, or listen; that he was struck the instant he attempted to cross the track; and that it was impossible for the brakeman, who was on top of the car, to stop it after he had placed himself in peril. Held, that although there was an ordinance which fixed the speed of trains at six miles an hour, and the car was going at ten miles an hour at the time of the accident, the deceased was guilty of contributory negligence, and the widow could not recover. Yancy v. Wabash, St. L. & P. R. Co., 93 Mo. 433.

Crossing Track When View is Obscured by Smoke.-The rule that a man must look and listen when approaching a railroad crossing, and if, by looking or listening, he can ascertain the approach of a train, he is guilty of contributory negligence if he fails so to do, applied to nonsuit the personal representatives in an action against a railroad company to recover damages for the killing of deceased by defendant's train, it appearing that deceased, who was familiar with the scene of the accident, while approaching a crossing over defendant's tracks was killed by an approaching train, the view of which was obscured by smoke, but which he must have seen had he waited a moment for the obstruction to blow aside. McCrory v. Chicago, etc., R. Co., 31 Fed. Rep. 531.

Approaching Crossing During Snow Storm at Rate of 10 Miles an Hour.Where plaintiff approached and attempted to cross a railroad track at the rate of about 10 miles an hour, while a strong wind was blowing, and snow was falling fast, knowing that trains frequently passed there, and that it was a place of danger, and was injured by a collision with a fast express train, there being nothing to conceal the approach of the train except the storm, a nonsuit in an action against the railroad company for such injuries, on the ground of contributory negligence, was properly granted, it being the duty of plaintiff to establish his own freedom from such negligence. Powell v. New York Cent. & H. R. R. Co. (N. Y.), 15 N. East. Rep. 891.

Approaching Crossing with Head Muffled up.-An action was brought against a railway company for injury to plaintiff's horses, sleigh and harness

by a collision at a highway crossing. It was shown that the crossing was a dangerous one with the view of the railroad obstructed by brush in one direction; that on approaching the crossing the driver of plaintiff's team left his team and sleigh, and took a seat on a sleigh preceding his own, so muffled up that he could not well hear an approaching train, and with his back turned in the direction of the most dangerous approach to the crossing. Held, that the driver was guilty of gross contributory negligence. Gunn v. Wisconsin & M. R. Co. (Wis.), 35 N. W. Rep. 281.

Driving Across Track in View of Train.-Appellant's train, running through a street faster than allowed by ordinance, overturned appellee's wagon, and injured her. She had been warned by appellant's flagman that the train was coming, and had driven off and waited 10 minutes in a house near by for the train to pass. When she returned, it was after train-time, and neither train nor flagman was in sight. When she first discovered the train, she was going toward it, and there was barely room for her wagon between the track and the curb-stone. She turned her horse, and tried to drive across the track into an alley about 30 feet away, the nearest point of safety. The train was then far enough away to be stopped before reaching her. She might, by driving toward the train, have reached a place of safety without crossing the track. Held, that it could not be said, as a matter of law, upon demurrer to the evidence, in a suit against the railroad company for damages, that appellee was guilty of contributory negligence. Neier . Missouri Pacific R. Co. (Mo.), 6 S. W. Rep. 695.

In an action against a railroad to recover for personal injuries caused by one of the trains striking plaintiff, the evidence showed that the track crossed a street about 600 feet distant from the place of the accident, and passed in a curve onto the adjoining land, whence it again emerged into and crossed the street. Held, the court properly refused to instruct the jury that, if the plaintiff could have seen the approaching train when it passed at the first crossing, if he had looked, he was guilty of contributory negligence, and cannot recover. Seeing the train at the first crossing only imposed upon the plaintiff greater caution in moving on ward to the second crossing. Scott o. Wilmington, etc.. R. Co. (N. Car.), 2 S. East. Rep. 151.

Going on Track without Looking to Right or Left when Train is in Sight. -The plaintiff, an administratrix, brought suit against the defendant, a railroad company, under the act relating to deaths caused by negligence, and by her own evidence showed that the deceased went on the track without looking to the right or left, a train being in sight by which she was killed. Held, that the plaintiff should have been nonsuited. Hamilton v. Delaware L. & W. R. Co. (N. J.), 13 Atlantic Rep. 29.

Rule Requiring Person Approaching Crossing to Stop, Look, and Listen.— The plaintiff's horses were killed, and the wagon and harness damaged, by a collision with defendant's train at a street crossing. The street was also crossed by the railroad, the track of which lay 100 feet to the north and parallel to that of defendant. A person at the railroad crossing could see up defendant's track to the east about 1100 feet, but about 500 feet of this view was obstructed by a long building standing near defendant's crossing. The team was in charge of two employees of plaintiff, who were familiar with the crossing. They were driving south in the day-time, and when passing over the railroad crossing they looked up and down defendant's tracks. Seeing no trains they walked the horses toward the crossing, which they reached in 15 seconds, and the team was then struck by a mail train running west 25 miles an hour, which the men did not notice until it was 20 feet distant. The engineer saw the horses' heads when he was about 200 feet off, but, thinking that the driver would pull up, he made no attempt to stop until he saw them keep on. The men in the wagon did not stop and listen at any time, but they looked up defendant's tracks to the west as they approached