In the case last cited the court said: "With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occupants, but also those on the colliding train. And when to the perfect control of such a machine is added the factor of high speed, the temptation to dash over a track at a terrific speed makes the automobile, unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly controlled, this powerful machine possesses capabilities contributing to safety. When a driver of horses attempts to make a crossing and is suddenly confronted by a train, difficulties face him to which the automobile is not subject. He cannot drive close to the track, or stop there, without risk of his horse frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and, if he goes forward to the track to get an unobstructed view and look for coming trains, he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossing accidents will be minimized. In the case of trolleys crossing railroads at grade, the practice is general for the conductor to go ahead and from the track signal the halted car to advance. This would, of course, be impracticable as a rule for automobiles; but it illustrates the trend of the law, as the size of crossing vehicles makes (1920); Robison v. Oregon-W. R. & N. Co., 90 Oreg. 490, 176 Pac. 594 (1918). "The question is not solely between the plaintiff and the defendant corporation which owns the railway. So far as actual duty on the part of the plaintiff is concerned, it affects not only the laborers on the moving engine, but also the general traveling public.' Cathcart v. Oregon-Washington R. & N. Co., 86 Oreg. 250, 168 Pac. 308 (1917). “An automobile properly managed is susceptible of control within very narrow limits. It will stay where it is put. It is not to be frightened, yet, unless controlled, it is an engine of great danger, and the larger question of safety to the public and travelers upon trains requires that one operating such a machine should carefully look upon the track itself where a railway train may be expected, if there be opportunity to so inspect the situation. The motorist who neglects this plain duty is guilty of contributory negligence as a matter of law." Catheart v. Oregon-Washington R. & N. Co., 86 Oreg. 250, 168 Pac. 308 (1917). collision with them more serious, to enforce greater safety precautions." 13 This doctrine was applied in a case where it appeared that the automobile driver did not stop, or even check his speed, before colliding with a passing locomotive.14 However, it has been said, in a Kentucky case: "It is a matter of common knowledge that when a collision occurs between an automobile and an engine, the result is the same as when the engine strikes a wagon, buggy, or other ordinary vehicle the occupants of the automobile or vehicle are the ones who are crippled or killed, and not the passengers on the train or its employees.' " 15 The amenability to control of the motive power he is using bears upon how near he may come to the place of danger before taking the precautions that common prudence generally requires.16 He need not have his machine under such control as to preclude the possibility of a collision.17 The fact that one is driving an automobile may have an influence on the question of contributory negligence, just as the number and qualities of horses and the kind of vehicle he is driving may have; but the standard of care to be used which is necessary to absolve from contributory negligence is the same whether the traveler is on foot, on horseback, in a wagon, a carriage, an automobile, or any other vehicle. It is that degree of care which one of ordinary prudence would use in the particular circumstances.18 13 Quoted with approval in Nailor v. Maryland, D. & V. R. Co., 6 Boyce (Del.) 145, 97 Atl. 418 (1916); Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634 (1918); Callery v. Morgan's L. & T. R. & S. S. Co., 139 La. 763, 72 So. 222 (1916); Sanford v. Grand T. W. R. Co., 190 Mich. 390, 157 N. W. 38 (1916); Washington & O. D. Ry. v. Zell's Adm'r, 118 Va. 755, 88 S. E. 309 (1916); Payne v. Shotwell, 273 Fed. 806 (1921). 14 Callery v. Morgan's L. & T. R. & S. S. Co., 139 La. 763, 72 So. 222 (1916). 15 Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634 (1918). 16 Walters v. Chicago, M. & P. S. R. Co., 47 Mont. 501, 133 Pac. 357, 46 L. R. A. (N. S.) 501 (1913). Owing to the peculiar character of his vehicle, to the noise which it produces, and the fact that it may be stopped close to a railroad track in safety, there may be instances where the exercise of ordinary care would demand that the driver of an automobile stop before crossing, while the exercise of the same care would not require that the driver of a team, whose horses may be frightened by the train, stop before crossing. Ft. Wayne & N. .I. Tr. Co. v. Schoeff, 18 California: Ellis v. Central Cal. Tr. Co., 37 Cal. App. 390, 174 Pac. 407 (1918). Indiana: Pittsburgh, C., C. & St. L. R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609 (1916). Kentucky: Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634 (1918). Tennessee: Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S. W. 437 (1918). Virginia: Seaboard Air Line Ry. v. Abernathy, 121 Va. 173, 92 S. E. 913 (1917). "There can be no doubt that it is possible for the driver of an automobile to take some precautions which are not available to the driver of horses, and the facts suggested, if they appear from the evidence, are all proper for the consideration of the jury in determining what precautions ordinary care required the driver of a motor car to use under the circumstances of the particular case. all is said, however, the driver of a motor car is required to use only ordinary care; but what he should do After The fact that a motorist was put to the necessity of avoiding a runaway team as he approached the track, may be considered in determining his due care. 19 The motorist is not required to use a higher degree of care at railroad crossings than drivers of other heavy vehicles; 20 and while the character of the vehicle may have some influence on the question of care of the driver, still the question always is: Did the person attempting to cross the track use that degree of care which an ordinarily prudent person would have used situated and circumstanced as the person who attempted to cross the track, whether on foot, on horseback, in a wagon, carriage, automobile, or any other vehicle? 21 If a motorist has defective sight or hearing he must exercise additional precautions in proportion to his handicap.22 The very presence of the railroad is notice to the motorist, approaching or attempting to cross it, of the danger of colliding with a passing engine or train.23 in the exercise of due care must depend on the conditions surrounding him, as shown by the evidence, and the means available for controlling the speed and managing the car." Central Indiana R. Co. v. Wishard, 186 Ind. 262, 114 N. E. 970 (1917). "It is entirely proper for the trial court, in its instructions, to advise and direct the jury that in the consideration of such questions it should take into account the character of the vehicle in which the injured party was riding, and the manner and method of its control, etc.; but, when such court in any case attempts to fix a standard or quantum of care different from that above indicated, it intrenches on the right of the trial of such question by the jury." Central Ind. R. Co. v. Wishard, 186 Ind. 262, 114 N. E. 970 (1917). 19 St. Louis, B. & M. R. Co. v. Watkins, Tex. Civ. App. —, 245 S. W. 794 (1922). 20 Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634 (1918). 21 Central Indiana R. Co. v. Wishard, Ind. App. 104 N. E. 593 (1914), 186 Ind. 262, 114 N. E. 970 (1917); Union Tr. Co. v. Elmore, 66 Ind. App. 95, 116 N. E. 837 (1917); Monroe v. Chicago & A. R. Co., 280 Mo. 483, 219 S. W. 68 (1920). "Due care in these cases means ordinary care. It implies the use of such watchfulness and precautions to avoid coming into danger as a person of ordinary prudence would use under the same circumstances in view of the danger to be avoided. But no greater S. W. 325 (1923). 23 Connecticut: Hayes v. New York, N. H. & H. R. Co., 91 Conn. 301, 99 Atl. 694 (1917). Delaware: Trimble v. Philadelphia, B. & W. R. Co., 4 Boyce (27 Del.) 519, 89 Atl. 370 (1913). Indiana: Waking v. Cincinnati, I. & W. R. Co., 72 Ind. App. 401, 125 N. E. 799 (1920). Kansas: Gage v. Atchison, T. & S. F. R. Co., 91 Kan. 253, 137 Pac. 938, 4 N. C. C. A. 719n (1914). Minnesota: Pogue v. Great Northern R. Co., 127 Minn. 79, 148 N. W. 889 (1914). Missouri: State ex rel. v. Bland, 237 S. W. 1018 (1922); Mo. App. —, 226 Mo. Utah: Lawrence v. Denver & R. G. R. Co., 52 Utah 414, 174 Pac. 817 (1918). Washington: McKinney V. Port Townsend & P. S. R. Co., 91 Wash. 387, 158 Pac. 107 (1916). Federal: Hines v. Johnson, 264 Fed. 465 (1920). "A railroad crossing is a dangerous place, and the man who, knowing it to be a railroad crossing, approaches it, is careless unless he approaches it as if it were dangerous. Borglum v. New York, N. H. & H. R. Co., 90 Conn. 52, 96 Atl. 174 (1915); Hayes v. New York, N. H. & H. R. Co., 91 Conn. 301, 99 Atl. 694 (1917). "The same reasons that require pedestrians and drivers of other vehicles to subordinate their desire to continue at a fixed rate of speed to the prudent use of their senses to discover an approaching train apply to the drivers of automobiles."' 24 It has been held that one approaching a railroad crossing in an automobile is bound to exercise the same degree of care that is required of a pedestrian.25 The driver of an automobile approaching a railroad track is not in a position similar to that of a pedestrian. The different movements in the handling of levers, clutches, and brakes, and the liability of an automobile engine to stall, are matters which complicate its control.26 After having started to cross there is no imperative rule requiring him either to stop or go ahead. He must be guided by the circumstances and his surroundings at the time.27 It has been held that where a motorist was struck by a train which was within plain view for a sufficient length of time for him to have stopped his automobile which was moving so slowly that he could have stopped it almost instantly, and avoided the accident, he was guilty of contributory negligence as matter of law.28 The degree of care required of an automobile driver in crossing a siding, which is frequently used, is the same as that required of him in crossing the main line. It is the use of the track and not what it is called that gauges the care to be exercised.29 It has been held that a person driving an automobile on a dark night upon a railroad track, where it is known that trains are frequently passing, without the slightest concern whether or not a train is approaching, is guilty of contributory negligence.30 An operator who, while approaching a railroad crossing where he was struck by a train, was looking down and listening to the engine of the automobile, was held to be guilty of gross carelessness in the management of the machine.31 This is true of a switch track. Henderson v. St. Louis & S. F. R. Co., Mo. App. 248 S. W. 987 (1923). 24 Northern Pac. R. Co. v. Tripp (C. C. A.), 220 Fed. 286, 8 N. C. C. A. 1042n (1915). a 25 Sanford v. Grand T. W. R. Co., 190 Mich. 390, 157 N. W. 38 (1916). "A pedestrian about to cross street in front of an approaching car has no right to omit any of the precautions which the law demands, nor to rely upon the strict compliance by the servants of the railway company with the speed laws. This rule of law affecting pedestrians applies with infinitely greater force to one crossing railroad tracks in disregard of a warning gong, where the view is obstructed, driving an automobile in which he car ries into peril others than himself, in addition to imperiling the lives of trainmen and passengers on a train which may be wrecked by a collision."' Griswold v. Pacific El. R. Co., 45 Cal. App. 81, 187 Pac. 65 (1919). 26 Green v. Great Northern R. Co., 123 Minn. 279, 143 N. W. 722 (1913). 27 Witmer v. Bessemer & L. E. R. Co., 241 Pa. St. 112, 88 Atl. 314 (1913). 28 Spencer v. New York Cent. & H. R. R. Co., 123 App. Div. 789, 108 N. Y. Supp. 245 (1908), aff'd 197 N. Y. 507 (1909). 29 Peoples v. Pennsylvania R. Co., 251 Pa. St. 275, 96 Atl. 652 (1916). 30 Elder v. Pittsburgh, C. C. & St. L. R. Co., 186 Ill. App. 199 (1914). 31 Conant v. Grand Trunk R. Co., 114 Me. 92, 95 Atl. 444 (1915). Failure of a motorist to sound his horn when approaching a crossing is not negligence per se.32 One who goes onto a railroad track while in possession of all his faculties, cannot excuse his negligence by pleading absentmindedness, 33 If, in approaching a track, he can see a train if he uses ordinary care in looking, but drives onto the track regardless of an approaching train, he is guilty of negligence,34 but the rule that a person approaching a railroad crossing is bound to see what he could have seen and to hear what he could have heard, is only applicable where it appears that the person charged with the exercise of care is so situated that he could see the train in time to escape injury, with nothing to excuse his failure to see or hear.35 A motorist who has an unobstructed view of a crossing and the track on either side for a long distance, is charged with the duty of knowing of the approach of a train within view; and if he goes on the crossing in front of an approaching train and is struck, he cannot recover. In such circumstances he is not entitled to rely on any particular speed of the train.36 When the motorist exercises some care for his safety, the question of contributory negligence is for the jury.37 If the evidence as to the negligence of defendant is conflicting, a verdict in its favor will be allowed to stand unless clearly against the preponderance of the evidence.38 A driver cannot rely upon the silence of a third person as to the approach of a train.39 One attempting to cross a railroad track in an automobile at a place other than a public or a recognized place of crossing, is a trespasser. 40 In Arkansas, proof that a traveler was injured by being struck at a crossing by a train makes a prima facie case of negligence against the railroad company.41 In Wisconsin slight want of ordinary care on the part of a traveler 32 Louisville & I. R. Co. v. Morgan, 174 Ky. 633, 192 S. W. 672 (1917). 33 Barnett v. Louisiana W. R. Co., 141 La. 698, 75 So. 649 (1917). 34 Brown v. Atlantic Coast Line R. Co., 171 N. C. 266, 88 S. E. 329 (1916); Baker v. Collins, Tex. Civ. App. 199 S. W. 519 (1917); Lawrence v. Denver & R. G. R. Co., 52 Utah 414, 174 Pac. 817 (1918); Washington & O. D. Ry. v. Zell's Adm'r, 118 Va. 755, 88 S. E. 309 (1916). 35 Chicago & E. I. R. Co. v. Van Stone, 68 Ind. App. 47, 119 N. E. 874 (1918). 36 Sohl v. Chicago, R. I. & P. R. Co., 183 Ia. 616, 167 N. W. 529 (1918). 37 Genglebach v. Payne, Mo. App. 236 S. W. 1092 (1922); Ohio El. R. Co. v. Weingertner, 93 Ohio 124, 112 N. E. 203 (1915). |