After the plaintiff’s evidence was out in this case, it was agreed by the parties that, if such evidence be, in the opinion of the full court, sufficient to authorize a jury, in any event, to find for the plaintiff, a judgment may be entered against the defendants for the sum of five thousand dollars.
Allowingto the plaintiff, under this stipulation, the benefit of the most favorable view which the evidence is legally susceptible of, it may be considered that the following facts are proved: The deceased, William B. Benjamin, for whose death the action is instituted in the name of the state, and two other men, of the names of Burnie and Hooper, the latter owning and driving the team, were sitting in an open, one-seated wagon, and approaching at a moderate gait, or "very slowly,” a level crossing of defendants’ railroad over the highway in Biddeford. It was at about ten o'clock on a starlight night in November, 1886. The railroad and town road intersect at about a right angle. The three were persons of middle age, with physical faculties unimpaired, sober and intelligent, and were returning home from a lodge meeting of some kind over a road familiar to all of them. When within about three hundred and fifty feet of the crossing a locomotive whistle was heard, but no bell -was heard by them at any time. The bell was heard by others at the moment when the locomotive was passing the crossing, the train at the time running at a rate *441of not less than twenty-five miles an hour through a compact portion of the city of Biddeford. When the whistle was heard, Buruie called Hooper’s attention to it, and Hooper said he did not know which road it was on, meaning whether on the Boston and Maine or Eastern railroad. Burnie replied that he could not tell from the sound which road it was on. The deceased said nothing, and nothing more was said by either of them. The team moved on without stopping, and almost immediately it reached the Boston and Maine track, when a collision took place between locomotive and team by which two of the three men were almost instantly killed. The way on which the parties were traveling was slightly descending towards the crossing, and a view of the coming train was mostly obstructed from the travelers by houses and other structures, and the plans and photographs show that there may have been no opportunity for the travelers to see the train, situated as they were while in motion.
The defendants contend that the travelers did not look and listen after their interchange of words about the direction of the sound from the whistle. We think a jury would be justified in the belief that they did. On this point the survivor was not very explicit in his testimony., but he was not asked about it, nor was he at all exhaustively examined. The men did not in fact see the locomotive until they were within an estimated distance of fifteen feet from the track, the train being about one hundred feet away, and a collision may not then have been avoidable. At the place where the whistle was sounded the two railroads were within three hundred feet of touching together, then diverging until at the crossing they were about one thousand feet apart, the Eastern being the farthest away.
It is reasonable to believe that the three men, as they approached the crossing, saw that the gates there were open and unattended by any person, and that there was no signal of any kind indicating’ that a train was expected. A red light was burning, the usual switch signal, which was not any warning to those using the common roads. The gates -were of the double-arm pattern, operating on pivots on each side of the highway, *442when open the arms standing erect, and these had been in use at this ci’ossing for about three years. An employee was in daily attendance upon them from seven o’clock A. M. until about fifteen minutes after seven P. M. when he usually locked the gates and left them for the night doing so on the night of the catastrophe. The train which struck the wagon, was the regular night Pullman train running from Boston to Bangor, on the Boston and Maine road. This train has run most of the time for many years over the Eastern railroad, but had been running over the Boston and Maine i-oad for about a month before the accident, and had also run on the same road for a period of eight months during the year before the accident. The two roads were managed by the same company. The survivor, and the same thing may be fairly assumed of his associates, had seen that gates were in operation at the crossing, but had never noticed that they were not at all times used when trains were passing. They supposed that they were so used. The flagman in the railroad employment testified that, when for any reason the gates were out of order, he used a green lantern by night and a yellow flag by day whenever a train passed.
It is not denied that the defendants were themselves guilty of negligence. They were running their train at a rate of speed upwards of four times the rate allowed by law. Chapter 377, of the acts of 1885, prohibits a train running across a highway near the compact part of a town at a speed greater than six miles an hour, unless the parties operating the railroad maintain a flagman or a gate at the crossing. Had not the defendants been remiss in the discharge of this statutory duty, it is reasonable to conclude that the accident would not have happened.
Nor would the accident have occurred, the defendants contend, if the deceased had not also been guilty of negligence. Great stress is placed by the defendants’ counsel upon the position taken for his clients that the three men did not look and listen for the location of the train, or, if they did, that they paid no heed to the signals which their ears revealed to them. It certainly cannot be denied that it was an egregious blunder for *443the team to continue moving on so near to the crossing, while the occupants could not tell from which railroad, the sound of the whistle proceeded, unless other facts furnish an excuse for not stopping. The team should have halted. The very doubt felt by the men was notice enough of danger, unless they were, without their own fault, deceived by the surrounding circumstances.
The plaintiff’s counsel insists that such excuse exists. It is contended on that side of the case that, taking into consideration that the train was not seen, though the deceased and his associates must have been intent upon their situation, as evidenced by their sudden silence as they were advancing on their way after their interchange of views on the subject, and considering also the fact that they had much reason to suppose that the Pullman train belonged upon the most distant road, the sight of the uplifted arms of the gates was evidence enough to dissolve all doubt in the minds of those men, and to induce them to believe that they could safely continue on-without interruption. The plaintiff’s counsel contends that such was the judgment of three men, who for intelligence and experience would average well with men generally.
The counsel for the defendants contends that the standing arms, indicating open gates, should not be regarded as any signal, or a sufficient signal, of safety, at any crossing whore the huv does not require gates to be maintained. At this place the gates were erected by the voluntary act of the company. But is it not a fair construction of the statute to say that it does require gates to be maintained, or a flagman to be present, at all grade crossings, as to trains moving more rapidly at such places than six miles an hour? And w'hile a neglect of the company to perform its duties does not excuse the traveler in a neglect of the duties and degree of care which the law imposes on him, still, in making his calculation for crossing a railroad track 'safely, he is often justified in placing some reliance on a supposition that the company will perforin the obligation resting on it, where there is no indication that it will do the contrary. If the gates were open and the crossing unattended by a flagman, *444then these persons hud a right to accept the fact as some evidence that the train would not attempt to pass the crossing at a faster speed than six miles an hour. Of course' full reliance cannot always be-placed on an expectation that a railroad company will perform its duties, when there is any temptation to neglect them, because experience teaches us that it would not be practicable to do so. But such an expectation has some weight in the calculation of chances, greater or less according to the circumstances. But what essential difference can it make in the relation of the parties whether the statute requires a flagman at any point or whether absolute necessity requires one; whether the legislature declares the necessity, or the company by its act confesses the necessity ?
The defendants, by their counsel, contend that the English and New York authorities, cited by plaintiff, are based upon a statutory requirement that gates shall be maintained. That is not entirely correct. In a leading case, Stapley v. London, &c. Ry. Co. L. R. 1 Ex. 21, it was said that while there wiis no law requiring gates as to foot passengers, still the decision was that the ¿footman in that case was fairly invited by the open gates seen by him to attempt a passage across the tracks. Nor do we find that the New York cases place the responsibilities of railroads wholly on what the statute law requires of them as to guards at crossings. It is said in Kissenger v. N. Y. & Harlem R. R. Co. 56 N. Y. 538, "though it is not negligence for a railroad company to omit to keep a flagman, still, if one is employed at a particular crossing, his neglect to perform the usual and ordinary functions of the place may be sufficient to charge the company.” See Glushing v. Sharp., 96 N. Y. 676. If the presence of a flagman and closed gates indicate a passing-train, certainly the absence of the flagman and open gates’ must be evidence that a train is not presently due or expected. The annexed authorities touch nearly to the point involved in the facts here presented. Wheelock v. B. & Alb. R. R. Co. 105 Mass. 203 ; Tyler v. N. Y. & N. E. R. R. Co. 137 Mass. 238 ; Sonier v. B. & Alb. R. R. Co. 141 Mass. 10 ; Whar. Neg. § § 385, 386, and cases. Pierce, Railroads, 203, and cases.
*445The plaintiff’s case is fortified by another consideration. He neither drove, nor, as far as appears, had any control of the team on which he was riding. It is reasonable to suppose that the owner carried him either for hire or gratuitously as a neighborly kindness. His position was not of the same degree of responsibility to the railroad as was that of the driver. He was a comparatively passive party. Not that he had no duty to perform. He could have asked the driver to stop the team, or he could have left it. But it would be natural, even though his fears were excited, that he should defer to some extent to the experience and discretion of the driver, who was in the control of his own team, and before he had time to assert his own judgment against the driver’s, or perhaps fully appreciate the situation, the inevitable event was upon him. AVe think this fact has considerable force in the combination of circumstances vyhioh weigh against the charge of contributory negligence.
And we may consider this point in the argument in behalf of the plaintiff, unless we adhere to the doctrine of imputable negligence, which has been considerably practiced on in the courts, first promulgated in the case of Thorogood v. Bryan, 8 C. B. 115, a doctrine which ascribes to a passenger the contributory negligence of a driver over whom he has no control.
This doctrine was never adopted in Scotland, nor by the English admiralty court, and was never at rest but has been constantly doubted and criticised in other English courts, until, in 1887, it was overruled by the court of appeal, without a dissenting vote on the question, in the exhaustively considered case of The Bernina L. R. 12 Pro. Div. 58. The action in that case, though originating in the admiralty, was brought under Lord Campbell’s act, and was governed in all respects by common law rules, and the full court of England unhesitatingly swept away the old rule, saying that it was a fictitious extension of the principle of agency unwarranted upon any rule or theory of law. It is remarked in that case that the preponderance of judicial and professional opiniou in England is against the doctrine, and that the weight of judicial opinion in America, is also against it. The same decision has been made in the Supreme *446Court of the United States in Little v. Hackett, 116 U. S. 366, where it is said that the doctrine of Thorogood v. Bryan, rests upon indefensible foundation. It is there declared that the identification of the passenger with the negligent driver, without his co-operation or encouragement, is a gratuitous assumption. The same view of the question is entertained by text-writers generally, especially in last editions of their works. The older doctrine is rapidly fading out.
' A distinction has sometimes been attempted to be made between riding in a public or riding iu a private carriage, but that idea has not prevailed to any considerable extent. The cases discuss, as an English court puts it, the broad question as to what is the law applicable to a transaction in which one has been injured and in the course of the transaction there have been negligent acts or omissions by more than one party. In quite a number of the cases the facts were precisely as they are here-, and the distinction is not heeded. A few cases like or nearly like the present case are the following : Robinson v. N. Y. Cen. R. R. 66 N. Y. 11; Masterson v. N. Y. Cen. R. R. 84 N. Y. 247 ; Cuddy v. Horn, 46 Mich. 596 ; Transfer Co. v. Kelly, 36 Ohio St. 86 ; Bennett v. N. J. &c. Co. 36 N. J. L. 325 ; N. Y. &c. R. R. Co. v. Steinbrenner, 47 N. J. L. 161; Wabash, &c. R. Co. v. Schacklett, 105 Ill. 564. See Borough of Carlisle v. Brisband, 113 Penn. St. 544; S. C. 57 Amer. R. 483, and cases in note.
We are not committed to the doctrine of Thorogood v. Bryan, in this state to an extent preventing its repudiation. In Dickey v. Telegraph Co. 43 Maine, 492, the rule was acted on without any expression of dissent by. counsel.
The doctrine of imputable negligence as applicable to the relation of parent and minor child, which presents another and a somewhat different question, has been favorably alluded to in this state, but in cases where it did not affect the result reached on other grounds. Brown v. E. & N. A. Ry. Co. 58 Maine, 384; Leslie v. Lewiston, 62 Maine, 468.
A class of cases against towns for injuries caused by defective *447highways, being statutory actions, stand upon a ground of their own, unaifected by the rule under discussion.
On the terms of the submission of this case to the court by the parlies, we think judgment must be entered for the plaintiff for the sum agreed upon as damages.
Walton, Virgin, Libbey, Foster and Haskell, JJ., concurred.