Statement. of some eight feet between such intestate and danger, in which, if he had stopped and looked to the south or had looked to the south as he walked, he could not have avoided seeing the passenger train approaching and that it was almost upon him. He was in no peril and under no apparent necessity or urgent need of haste, so far as the evidence discloses. He did not stop to so look or even to so look as he walked as to make his looking in any degree effective, but stepped on the track almost immediately in front of the approaching train without seeing it until he was about midway between the rails of the track it was on. As shown by the testimony for the plaintiff, the engine of the passenger train going north reached the crossing almost as soon as the rear of the freight train going south cleared the crossing at its rear. As one of plaintiff's witnesses says of the plaintiff's intestate: "If he had crossed immediately it" (the rear of the freight train) "passed, he would have been hit" (by the passenger-train engine). (This, of course, assumes that this would have occurred if the plaintiff's intestate had continued moving only as fast as he was at first moving, namely, in a moderate walk.) This witness estimates that the passenger-train engine was "twenty-five yards" (or seventy-five feet) away from the crossing when the plaintiff's intestate had stepped between the rails of the track it was on. The witness for plaintiff who puts the passenger-train engine farthest away from the crossing at this time estimates it at ninety feet. None of the witnesses, however, could give exact distance, they merely estimate them and they are not very definite as to the distance the passenger-train engine was away when the plaintiff's intestate first entered the eight-foot space aforesaid. But all of plaintiff's witnesses who saw the tragedy say, in substance, that the passenger-train engine was very close to the plaintiff's intestate when he first entered upon the aforesaid eight-foot space, and it is manifest from Opinion. such testimony that such engine was then too close for it to have appeared to the plaintiff's intestate as reasonably possible for him to have safely crossed the track in front of it if he had looked towards it before going on the track. Daniel Grinnan, R. L. Montague, Harry Wooding, Jr., and B. H. Custer, for the plaintiff in error. Withers, Brown & Leigh, for the defendant in error. SIMS, J., after making the foregoing statement, delivered the following opinion of the court: The turning points of the case before us lie within a very narrow compass, and, under the rules on the subject, too firmly established to be changed except by statute, the contributory negligence of the plaintiff's intestate was the proximate cause of his death and bars any recovery by the plaintiff. And there is no statute in force with us, State or Federal, which changes such common law rule as it affects others than employees of a railroad company. [1] It is true that in accordance with the evidence as we must regard it on demurrer, the defendant railway company was guilty of culpable negligence in running the train which killed the plaintiff's intestate at the high rate of speed, in excess of the speed limit allowed by the city ordinance, and without warning, over the highway crossing used by large numbers of persons. So. Ry. Co. v. Abee's Adm'r, 124 Va. 379, 98 S. E. 31; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; N. & W. Ry. Co. v. Holmes, 109 Va. 407, 64 S. E. 46; N. & W. Ry. Co. v. Munsell, 109 Va. 417, 64 S. E. 50; Danskin v. Penn. R. Co., 76 N. J. Law, 660, 72 Atl. 32, 22 L. R. A. (N. S.) 232, 237-8, and note; Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. [2] But the case involves a traveler over a highway Opinion. crossing passing in front of a moving steam railway train, and a traveler on foot, under circumstances, which are set forth in the statement preceding this opinion. under which, as is well settled by the authorities, it was his duty to look and listen before going upon the railway track and to use reasonable care to do this at a point where such action might have been reasonably effective. Springs v. Va. Ry. & P. Co., 117 Va. 826, 86 S. E. 65; Wash., etc., Ry. Co. v. Lacey, 94 Va. 460, 26 S. E. 834; So. Ry. v. Jones, 106 Va. 412, 56 S. E. 155; U. S. Spruce Lumber Co. v. Shumate, 118 Va. 471, 87 S. E. 723; Wash., etc., Ry. Co. v. Zell's Adm'r, 118 Va. 755, 88 S. E. 309. [3] It is apparent from the facts of this case, set forth above, that the plaintiff's intestate disregarded the duty just mentioned and that, while in possession of his faculties of sight and hearing, without any need of haste or excuse for his conduct other than carelessness, on a bright, clear day, stepped upon a railway track in front of a rapidly approaching passenger train when its engine was almost immediately upon him. By stopping at any point within a space of eight feet of the track and looking in the direction from which the train on that track was to be expected, as was well known to him, or by looking in that direction as he walked, without stopping, the plaintiff's intestate could not have failed to have seen that the train was approaching and that it was almost upon him. He was on foot. There was nothing to have prevented his thereupon stopping and awaiting the passing of the passenger train before attempting to proceed. It is not a case where a train is so far away when the crossing is attempted that a reasonably prudent traveler would have made the attempt relying, if the train could not be seen on its being looked for, upon its giving proper warnings of its approach. or, if seen and it was not apparently moving excessively fast, relying upon the train not exceeding its lawful speed. In the instant case the train was so Opinion. close at hand when the crossing in front of it was attempted that its visible presence superseded the need of any other warning to all travelers upon the highway in the reasonable exercise of their faculties of sight, if not of hearing. The preceding negligence of the defendant railroad company aforesaid was therefore immaterial. And the conduct of the plaintiff's intestate in stepping upon the track in front of such visible danger, almost immediately upon him, must, under all of the authorities, be regarded as negligence per se, which was the proximate cause of his death. Thompson on Neg., sections 1666, 1667, 1672. [4] There are exceptions to the general rule of negligence per se just referred to, which exist, as stated by the authorities, "when the circumstances are so unusual that the injured party could not reasonably have expected the approach of the train at the time he went upon the track." Scott v. St. Louis, etc., R. Co., 79 Ark. 137, 95 S. W. 490, 116 Am. St. Rep. 67, 9 Am. & Eng. Anno. Cas. 212, 214, and note pp. 216-17. When such circumstances exist, the failure to look is not regarded as contributory negligence per se, and the case is held to be one for the jury on that issue. But in the case before us there was an entire absence of any such unusual circumstances. The crossing and its environment were all well known to the plaintiff's intestate. The passenger train was due and was to be expected at the time from the direction from which it came. The mere circumstances that a freight train was shortly previous thereto passing on the adjacent track was not unusual and was in no way calculated to induce the belief that the passenger train would not come in as usual on its separate track. There was nothing to throw the plaintiff's intestate off his guard save his negligent inattention to his surroundings. In both of the cases of Hubbard v. Boston, etc., R. Co., 162 Mass. 132, 38 N. E. 366, and N. Y. S., etc., R. Co. v. Moore, 105 Fed. 725, 45 C. C. A. 21, especially urged upon Opinion. our attention in argument for the plaintiff the traveler over the highway crossing of the railroad was driving and the obstruction to the view was such that the horse or horses would have had to have been driven practically upon the track before the driver could have stopped and, without alighting, could have looked along the track for any reasonable distance. In view of the fright of the animals that would have resulted from an approaching train, this situation rendered the "stop, look and listen" rule inapplicable in such cases. To the same effect are the United States Supreme Court cases above cited, also relied on by the plaintiff. (144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; and 95 U. S. 161, 24 L. Ed. 403). To the same effect also are the following Virginia cases cited and relied on by the plaintiff. So. Ry. Co. v. Bryant, 95 Va. 212, 28 S. E. 183; Higgins v. So. Ry. Co., 116 Va. 890, 83 S. E. 380. As to the other Virginia cases cited and relied on by plaintiff, namely, those of Southern Ry. Co. v. Abee's Adm'r, supra, 124 Va. 379, 98 S. E. 31; N. & W. Ry. Co. v. Holmes, supra, 109 Va. 407, 64 S. E. 46; and N. & W. Ry. Co. v. Munsell, supra, 109 Va. 417, 64 S. E. 50, which involve travelers on foot and which hold that the traveler was not guilty of contributory negligence in going on the crossing in front of a steam railroad train near by: They are all cases where the accident occurred in the night-time and in other respects differ from the case before us. In the instant case the danger was imminent and apparent to a traveler at all alert to the perils of his position and making reasonable use of his faculty of sight, whereas in the cases just mentioned the situation was otherwise. The case of Danskin v. Penn. R. Co., supra, 76 N. J. Law, 660, 72 Atl. 32, 22 L. R. A. (N. S.) 232, and the note thereto, involve the consideration of when it is negligence for a |