dissenting:—
In this case, I dissent from nearly every reason, and entirely from the conclusions, of my learned brothers. I shall use little of my own reasoning, and less of my own language, as the foundations of my conclusions; but shall be content to follow the decisions of the United States Supreme Court.
The sole question is, whether the court erred in submitting the case to the jury instead of granting a peremptory nonsuit. It is therefore admitted that the facts are as stated in the plaintiff’s evidence, which is fairly stated by my brothers, but which I will restate in order that the statement of other cases decided by the Supreme Court of the United States may be more easily compared.
The place where the accident occurred was at a crossing in the city of Sprague; there were two railway tracks *215nearly parallel, about five feet apart. The wagon-road •crossed these tracks at nearly right angles. The plaintiff, coining from the north upon this wagon-road, attempted to cross the track. As he approached the track he saw a freight train pass east and go out of his sight. His sight was obstructed to the west by the buildings and cars of the defendant, so that it was impossible for him to see the track easterly until his horses were on the track where the train had just passed up. The southerly line of the railroad track, from the wagon-road ■east, was visible for some distance, and wagons in the road on that side, as soon as the train passed east as aforesaid, started in the wagon-road across the track, and the yard-master of defendant was there. It was usual for the train to switch at this place, and when the train was moving to ring the bell.
The plaintiff, as he approached the crossing, being well acquainted with the situation and the topography, .and the custom of defendant to ring a bell when the cars were moving, and having seen the train pass east out of his sight, and knowing that the defendant’s yard-master and the teams meeting him could see east from where they were, and seeing those crossing, he listening and hearing nothing, attempted to cross the track with his team and buggy almost at the same moment that another wagon meeting him crossed from the other side of the track at the same crossing. From these facts, the plaintiff supposed the train was not coming, as he thought if it were, the bell or the yard-master would warn him; and not being warned by the usual sound of the bell, which was usually rung, started across the track, and when his horses were on the track, and it was too late to stop, he could see the train moving rapidly towards him. He struck his horses to escape, but though they passed, it was too late, and the cars struck the hind wheels of the buggy, throwing him out, and hence the injury.
*216It further appears that this train plaintiff had seen going east as he approached the crossing only went so-far that the hind wheels were about sixty feet from the crossing, when the cars stopped a moment and reversed their engine, and rapidly backed across the wagon-road,, and thus caught plaintiff, and nearly caught the wagon which plaintiff met.
I will now state the facts in the case of the Railway Co. v. Whitton’s Adm'r, decided by the Supreme Court of the-United States, as reported in 13 Wall. 275, viz.:—
“The deceased died in.December, 1864, from injuries-received from a locomotive of the railroad company, defendant in the case, whilst she was endeavoring to-cross its railway track in Academy Street in Janesville,. Wisconsin. This street ran nearly north and south, and was crossed by four parallel railway tracks lying near-each other, and running in a direction from northeast to southwest. Two of these — those on the northerly side — belonged to the Milwaukee and Prairie Du Chien Railway Company, and the other two belonged to the-defendant, the Chicago and Northwestern Railway Company. One Mrs. Woodward and a Mr. Rice were standing, together with Mrs. Whitton (the deceased), just previous to the accident, upon the cross-walk on the-northerly side of the tracks, waiting for a freight train of the Milwaukee and Prairie Du Chien railway, then in motion, to pass eastwards, so that they might proceed down the street and over the tracks. The weather was at that time extremely cold, and a strong wind was blowing up the tracks from the southwest, and snow was-falling. As soon as the freight train had passed, Rice-crossed the tracks, moving at a brisk rate. In crossing, he states that he took a look at the tracks, and that he-neither saw nor heard any engine on the tracks of the defendant. Almost immediately after getting across,, and before he had gone many steps, he heard a scream,, and on turning around saw that the women — Mrs. *217Whitton and Mrs. Woodward — had been knocked down by a locomotive of the defendant. This locomotive was at the time backing down in a westerly direction, — opposite to that taken by the freight train which had just passed, — the tender coming first, then the engine drawing a single freight-car.”
Among the instructions given by the court in the-case above cited, were the following:—
“ Under ordinary circumstances, a person possessing the use of those faculties should use both eyes and ears to avoid injury in crossing a railway track; and if in this case the wind and noise of the freight train tended to prevent Mrs. Whitton from hearing the approach of defendant’s engine,'she was under the greater obligation to use her eyes. It was her duty to look carefully along the tracks of defendant’s railway both northwardly and southwardly, before attempting to cross them, and it was not sufficient excuse for failing to do so that the day was cold and windy, or that one train had just passed on the track nearer to her.
“ It was the duty of Mrs. Whitton to look carefully along the tracks of defendant’s railway to the north before putting herself in the way of danger, and in time-to see and avoid any engine or train approaching from that direction. If necessary, in order to do this, it was her duty to pause before starting to cross until the freight train had so far passed as to give a sufficient view to determine whether she could safely cross; and if she failed to look carefully along these tracks to the north, after the freight train had so far passed as to give her such a view, and in time to have seen and avoided defendant’s engine, the plaintiff cannot recover.
“As to the negligence of Mrs. Whitton, the court in substance instructed the jury that she was required to-exercise that degree of prudence, care, and caution in*218■cumbent on a person possessing ordinary reason and intelligence, under the special circumstances of the case, having regard to the fact of its being a railroad crossing, and another train crossing the street for which she had to wait in company with Mrs. Woodward, and that •she must have used ordinary care, prudence, and caution.
“ The court declined to say to the jury how she must dispose of her limbs, her eyes, or her ears, but left it to the jury to find whether she had been guilty of any fault or negligence which contributed to her death; and instructed them that if she had, that the plaintiff could not recover, even if the defendant had been guilty of negligence.
“ The court also told the jury, before they could find .a verdict against the defendant, they must be satisfied its employees were guilty of negligence, and that such .negligence caused her death.” (13 Wall. 275-278.)
In this case, — the one at bar — it appears that from the side of the track upon which plaintiff approached it, the track and train were obscured from sight of one approaching, by cars and obstructions placed there by defendant, and that the crossing was much frequented; that those coming across from the opposite side to the •crossing could see the track and train while plaintiff ■could not; that the yard-master, of defendant was at the crossing, and could see the plaintiff coming to cross, and also others, but gave no warning to plaintiff, but signaled the train to back, which it did suddenly, without ringing the bell as usual; that the plaintiff, being thus situated and being well acquainted with the permanent surroundings, and knowing that the teams and the yard-master would see an approaching train if one was coming, and relying further upon the usual custom ■of the bell being rung when trains approached the crossing, and listening and hearing no sound, thought he *219was safe in attempting to cross, but the train starting suddenly to back, caught him.
It is my opinion that there is no case to be found exactly like this wherein a court has granted a nonsuit.
A case which is as extreme as any that can be found against the right to recover against a railroad is that of the Railroad Company v. Houston, 95 U. S. 702.
In that case, the Supreme Court declared that the court from which the appeal was taken would not have erred had it instructed the jury to find for the defendant on the facts there stated, and upon the grounds there claimed. The grounds there claimed as that upon which the said instruction should have been given was that the plaintiff was a trespasser upon the private land of the defendant at the time and place where the employees on the train were not expecting to find any one; that on this account they had a right to suppose the track free, and further, that from the place of the accident, the approach of the train could be seen and heard for a long distance, and that when the train-men first saw the plaintiff it was too late to avoid the accident. From these facts, it plainly appeared that the defendant was not guilty of any neglect, while the plaintiff was a trespasser at no crossing, and was so very negligent that it appeared as if she must have adopted this method of suicide.
In the case at bar, it is admitted that the negligence of the employees of the defendant was so criminally negligent that if plaintiff had been killed instead of injured, the employees would have been guilty of criminal homicide. In that case, the plaintiff was a trespasser; in the case at bar, he is not. In that case, she could see the coming train three quarters of a mile, and could hear it also; in the one at bar, the plaintiff could neither see nor hear the approaching train on account of obstructions, and the train having stopped, and when it started, not ringing the bell as usual. In that case, the plaintiff was not induced to believe the train had passed in the oppo*220site direction; in the case at bar, it did so appear. In that case, it was not at a regular crossing, and the yardmaster of the defendant was not where he could see the plaintiff advancing to the crossing, and then without notifying him, signaling the train to back as if to catch him, as was true in this case. In that case, the plaintiff did not see teams approaching to cross, who were in sight of the train which he could not see, as was the fact in this case. In that case, it did not appear that the plaintiff looked and listened to the best of her ability; in this case it does so appear.
In short, there is no analogy between the facts in that case and the case at bar, and no principle can be extracted therefrom which can apply to this case.
There are two late cases decided by the Supreme Court where the facts are analogous to the case at bar, and by comparing the facts as stated in these two cases with those of the case at bar, it will appear that the facts in the three cases are as similar as it is possible for different cases to be.
The two cases referred to are Railway Co. v. Whitton, 13 Wall. 275; and Continental Improvement Co. v. Stead, 95 U. S. 162. In the latter case Mr. Justice Bradley, in delivering the opinion of the court, stated the facts as follows: —
“This is a case of collision near the village of Lima in La Grange County, Indiana, between a train of passenger-cars of the plaintiff in error and the wagon of the defendant in error. The latter brought the action below to recover the damages done to himself and his wagon, and recovered a verdict. The present writ of error is brought to review the instructions given by the court to the jury on the trial. The case, as appears by the bill of exceptions, was substantially as follows: The collision occurred in a cut about five feet in depth, in which the wagon-road crossed the railroad, on a level therewith, nearly at right angles, descending to it on each side by *221an excavation. The train was a special one coming from the north, and did not stop at the station, which was four or five hundred feet north of the crossing, and none of the regular trains were due at that time, although special trains were occasionally run over the road. The plaintiff was going east, away from the village, following another wagon, and in approaching the railroad track could not see a train coming from the north by reason of the cut and intervening obstructions. There was evidence tending to show that the plaintiff, though he looked to the southward (from which direction the next regular train was to come), did not look northwardly; that his wagon produced much noise as it moved over the frozen ground; that his hearing was somewhat impaired; and that he did not stop before attempting to cross the track; also evidence tending to show that the engineer in charge of the train used all efforts in his power to stop it after he saw the plaintiff's wagon on the track. The evidence was conflicting as to whether the customary and proper signals were given by those in charge of the locomotive, and as to the rate of speed the train was running at the time, some witnesses testifying that it was at an unusual and improper rate, and others the contrary.”
The court in that case sustained a judgment for the plaintiff, which is entirely inconsistent with the conclusion of a majority of the court in this case. The reasons given by the United States Supreme Court in each of the cases cited lead to exactly an opposite conclusion to the reasoning of the majority of the court in this case.
Mr. Justice Bradley, speaking for the court in the case reported in 95 U. S. 162, and commenting on the facts, declares the law as follows:—
“ The counsel for the railroad company requested the court to adopt certain specific instructions, to the general effect that the plaintiff should have looked out for the train, and was chargeable with negligence in not having *222done so; that there was nothing peculiar in the crossing to forbid as high a rate of speed as would be proper in the case of other important highways; that an engineer is not bound to look to the right or left, but only ahead on the line of the railway, and has a right to expect that persons and teams will keep out of the way of the locomotive; and that, it is the duty of those crossing the railroad to listen and look both ways along the railroad before going on it, and to ascertain whether a train is approaching or not.
“ The judge refused to adopt the instructions framed by counsel, but charged, in effect, as follows: That both parties were bound to exercise such care as, under ordinary circumstances, would avoid danger; such care as men of common prudence and intelligence would ordinarily use under like circumstances; that the amount of care required depended on the risk of danger; that, where the view was obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides, as well on the part of those having the management of the train as of those crossing the railroad; that the former should approach the crossing at a less rate of speed, and use increased diligence to give warning of their approach; and if the train was a special one, it was still more incumbent upon them in going through such a place to slacken their speed and sound the whistle and ring the bell than if the train were running on regular time: and, on the other hand, that the party crossing with a team should proceed with more caution and circumspection than if the crossing were in an open country, and not venture upon the track without ascertaining that no-train was approaching, or- at least without using the means that common prudence would dictate to ascertain such fact; but that, if a train were not a regular one, no-train being due at that time, the same degree of caution would not be expected on his part as if it were a regular *223train and on usual time. In short, the judge charged that the obligations, rights, and duties of railroads and travelers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other. He further charged that the plaintiff could not have a verdict unless the persons in charge of the train were guilty of negligence or want of due care, and unless the plaintiff himself were free from any negligence or carelessness, which contributed to the injury. The evidence of the case was fairly submitted to the jury in the light of the principles thus announced.
“ This is the general scope of the charge, and we think it is in accordance with well-settled law and with good sense. If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other to avoid a collision. Of course these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first; it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give cjue warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their *224••sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, 'if an unslackened speed is desirable, watchmen should be stationed at' the crossing.
“ On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentive to caution, for their lives .are in eminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not ■exercise proper care in a particular case. But, notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them; such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries even though the railroad company be in fault. They are the .authors of their own misfortune. These propositions are so indisputable that they need no reference to authorities to support them. We think the judge was perfectly right, therefore, in holding that the obligations, rights, and duties of railroads and travelers upon intersecting highways are mutual and reciprocal, and that no greater degree of care is required of the one than of the other. For, conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition. Both parties are charged with the mutual duty of keeping a *225■certain lookout for danger,, and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. The charge of the judge was in substantial accordance with these views.
Note bt Reporter. —A petition for rehearing was filed by defendant in error, which was considered by the Supreme Court at its special term in July, 18S7, and the court indicated to the plaintiff in error that the argument in the petition for rehearing required a reply. No final decision on the petition for a rehearing has been reached at this date, December 27, 1887.“ The mistake of the defendant’s counsel consists in ■seeking to impose upon the wagon too exclusively the •duty of avoiding collision, and to relieve the train too entirely from responsibility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highways as the railway companies have to run trains on the railroads.”
I wish to follow these opinions of the Supreme- Court of the United States; and in following them, I must disagree with both the conclusions and the reasons therefor given by the majority of the court.
I am willing to reverse the parties, as my brothers have done, and imagine that the poor employees of the defendant are plaintiffs against the rich Holmes. I agree that the employees were guilty of such gross negligence as to be criminal, and by this negligence they both injure themselves and Holmes. Now, suppose that men in this condition should bring an action for their injuries. They would show that they conjoin tty laid a trap for Holmes, let him go into it without warning, and in their sight, and then seeing him in the trap, run the train over him.
As well might a man sue another because he hurt his hand in attempting to kill him.