I cannot concur in the opinion of Mr. Justice CLARK. Under the evidence introduced by plaintiffs the young men were guilty of contributory negligence, and the judgments, notwithstanding the verdicts, should be affirmed.
An eyewitness, and the only person who saw the accident and who was walking immediately behind the young men, was called by plaintiffs and testified that, before the young men stepped on the track, they did not look in the direction of the oncoming cars. Opportunity to have observed the approaching cars in time to keep off the track was open to them, and the absence of the crossing flagman, whether noticed by them or not, did not relieve them from the duty of exercising the ordinary precaution of looking before stepping into a place which was a warning, in and of itself, of possible danger. It has long been held that a railroad track warns of danger, and ordinary care requires one about to cross to, at least, take a look. The evidence discloses *Page 654 no circumstances so diverting the attention of the young men as to excuse them from not looking for the approach of the train. A switch engine was upon another track but not approaching the crossing.
What was said by this court in Gardner v. Railroad Co.,97 Mich. 240, is applicable here:
"If the plaintiff's attention was diverted by the switch engine, as he claims, it is no excuse for not looking for the approach of a train. He was to pass a dangerous point. He know there was danger there. He was bound to exercise that degree of care that the situation and surroundings demanded of a prudent and careful person. If the switch engine was making a noise by its bell and by letting off steam, it, at least, was not an obstruction to his view to the east, and it is not so claimed. If he had looked eastward, he would have seen the train before he stepped upon the track. The ringing of the bell and the blowing off of steam from the switch engine did not relieve him from the duty of looking in the other direction. One look eastward, and one less step taken, and he would not have been upon the track. Upon any theory of the case, it was the duty of the court to direct the verdict in favor of the defendant."
I do not find the cases cited by my Brother decisive of the question here involved. Such cases either recognize or are not in conflict with the rule of care laid down in the cases I shall cite.
The circuit court relied, and rightly so, upon our holding inTree v. Railway Co., 238 Mich. 658. In that case the crossing watchman was absent, and we held that plaintiff, a truck driver, assumed the duty of crossing under his own supervision and was guilty of want of care barring recovery in not looking before driving upon the track. That case and *Page 655 this are alike in principle of law, for the rule of care is the same for drivers of vehicles and for pedestrians.
In Aiken v. Railroad Co., 130 Pa. 380 (18 A. 619, 17 Am. St. Rep. 775), a case very much like the one at bar, the trial judge instructed the jury:
" 'Ordinarily, the rule of law is * * * that a man before crossing a railroad track must stop, look, and listen. * * * I think that it is usually applied, however, to parties who are driving, and not to parties walking. It is after all not a rule of law, but a rule of evidence only, and therefore the duty of stopping is always a question for the jury.' "
Of this the supreme court said:
"This was clear error. The rule as to stopping applies equally to persons walking as to persons driving. There is no distinction, in the nature of things, except of degree as to danger, and none is recognized in the cases. * * * It is not a rule of evidence, but a rule of law, peremptory, absolute and unbending; and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions. That failure to stop is not merely evidence of negligence, but negligence per se, has been said so often, from NorthPennsylvania R. Co. v. Heileman, 49 Pa. 60 (88 Am. Dec. 482.), to Greenwood v. Railroad Co., 124 Pa. 572 (17 A. 188, 3 L.R.A. 44, 10 Am. St. Rep. 614), that to cite the cases would be wearisome."
In Tomes v. Railroad Co., 240 Mich. 133, a 14-year old school girl, at a railroad crossing, did not look and was struck by a train. Held there could be no recovery under the rule of law,which is more than a mere rule of evidence.
The following rule stated in Phillips v. Railway Co.,111 Mich. 274 (66 Am. St. Rep. 392), has never *Page 656 been departed from in this jurisdiction. It was there said:
"A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing as well as of sight, * * * to ascertain, before attempting to cross, whether a train is in dangerous proximity; and if he neglects to do this, but ventures blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at his own risk."
In Guntermann v. Railroad Co., 168 Mich. 37, it was stated:
"There is no testimony that upon approaching the track plaintiff's decedent stopped, looked, and listened for the approaching train."
Held, negligence precluding recovery, and the verdict should have been directed for defendant under twelve Michigan cases cited.
If the young men knew that a flagman was stationed at the crossing and noted his absence, or that he was not flagging, then they were in no wise released from looking before crossing the track. The rule on this is stated with reference to gates, in Koch v. Railway Co., 148 Cal. 677 (84 P. 176, 4 L.R.A. [N. S.] 521, 113 Am. St. Rep. 332, 7 Ann. Cas. 795):
"Nor is it the law that when a railroad company adopts safety gates or any other appliance for the protection of the public the public is thereby absolved from all duty of taking care of itself. A person is still required to exercise due and ordinary care, and while the quantum of care which will be reasonable may be less where the gates are provided and are relied upon by the traveler, still the gates themselves are not an assurance and a warranty *Page 657 such as to justify a traveler in going blindly ahead in total disregard of all ordinary precautions."
There is no evidence that the young men knew of a flagman at this crossing or looked to a flagman for guidance. Even if the young men relied upon the absence of the flagman as indicative of safety in crossing there can be no recovery. Something more than that they so relied must be shown; for the absence of the flagman did not excuse them from looking and listening and taking thought for their own safety. Ellis v. Railroad Co.,169 Mass. 600 (48 N.E. 839).
3 Elliott on Railroads (3d Ed.), § 1651, states:
"Nor does the absence of a flagman in any event absolve the traveler from the exercise of care."
In the case at bar there is no claim that the flagman signaled the young men to cross, for the claim is that the flagman was absent from his post and gave no signal.
In Tiffin v. Railway Co., 78 Ark. 55 (93 S.W. 564), it was stated:
"Learned counsel insists that deceased might have been lulled into a feeling of security by the fact that a flagman was usually stationed at the crossing to warn travelers of approaching trains, and that under those circumstances it should have been left to the jury to say whether or not ordinary care required him to use his senses in discovering the approach of the train. We do not think so. It might have been different if he and the flagman had been standing in plain view of each other, so that he could reasonably expect warning from the latter of an approaching train. He could then have assumed that no train approached because no warning *Page 658 was given. But such is not the state of the case. He and the flagman were not in view of each other, and he was not misled by the inaction of the latter. He was about to occupy a position fraught with unusual danger, and it was his imperative duty to make use of his senses to discover the peril and avoid it."
In Hodgin v. Railway Co., 143 N.C. 93 (55 S.E. 413, 10 Ann. Cas. 417), the railroad had maintained a flagman to plaintiff's knowledge, and when plaintiff got near the railroad crossing he looked for the flagman but did not see him. In reply to the contention that, having looked for the usual watchman and seeing none, he had a right to cross the track and was absolved from the usual duty of looking and listening, the court said:
"The traveler who sees the watchman in his place has the right to rely on him for protection, but when he discovers that the watchman is absent from his post of duty, he is put on his guard at once, and must exercise ordinary care to protect himself from injury. He should himself then look and listen for passing trains. It is true the watchman is guilty of negligence when he deserts his post, but when this negligence was discovered by plaintiff it made it all the more incumbent upon him to look and listen for his own protection, for he had ample time to do so."
See, also, Smith v. Railroad Co., 141 Ind. 92 (40 N.E. 270);Berry v. Railroad Co., 48 N.J. Law, 141 (4 A. 303).
Plaintiffs' sole testimony was that in broad daylight the three young men, side by side, without looking, walked onto the railroad track, immediately in front of a train, which they would have seen and avoided had they made the most casual observation, *Page 659 and yet the jury awarded damages aggregating $51,000. It may be conceded that defendant was guilty of negligence in all particulars claimed. It is established by plaintiffs' proofs that the young men were also guilty of negligence per se. The verdict was contrary to the undisputed evidence, and the circuit judge could do no less than enter judgment for defendant.
Judgment should be affirmed, with costs to defendant.
BUTZEL, C.J., and NORTH, J., concurred with WIEST, J.