Defendants’ railroad crosses Pearl street, in Bath, at tbe foot of a sharp pitch in that street, at the top of which, and 134 feet distant from tbe railroad, stands tbe shop of Mr. Ward.
Tbe plaintiff’s own account of tbe circumstances attending bis injury is, in substance, that, for several months before the accident, be bad been in tbe employ of Ward, driving a “meat team,” and was familiar with tbe street, the railroad crossing, and tbe running of tbe railroad trains; that, on the morning of tbe accident, knowing that tbe morning train from Bath bad not passed, be listened for it, did not bear it, mounted a meat wagon covered with canvass, sat at tbe front, inside tbe covering, and started for tbe crossing at a trot; that, as be approached the crossing, be leaned forward and looked up the track from Bath, then down *117the track towards Bath, and saw the train close upon him ; that when he looked towards Bath, his horse’s fore feet were between the rails; that he heard the train strike, felt a jar and became unconscious.
The plaintiff listened before ho started for the crossing. That was an act of care. He had a right to rely upon the train’s approach at a rate of speed not exceeding that allowed by law, six miles an hour; and, if the train had been coming within that rate of speed, observing the usual signals, he may well have presumed, from not hearing it, that it was so far distant as to give him ample time to cross the track in safety ; so, he appears guilty of no act of carelessness until he reached a point in the street where an approaching train might be seen, if looked for.
The evidence shows that at 25 or 30 feet distant from the crossing, the approaching train from Bath might have been seen by the plaintiff several hundred feet distant from the crossing. The plaintiff did not look in that direction until his horse’s fore feet were between the rails. Was the neglect on his part to look in that direction a want of ordinary care and prudence ? Is a traveler justified in driving upon a railroad crossing, in the absence of safety signals giving him the right to cross, without looking for an approaching train ? \
It has been many times decided in this state, that the traveler, before crossing a railroad, must both look and listen. That is the settled law of this state. Chase v. Maine Central Railroad Company, and cases cited, 78 Maine, 346.
If the crossing at which the plaintiff was injured is so constructed that an approaching train can not be seen until a traveler comes very near to the railroad track, common prudence requires him to approach at such speed that when an approaching train may be seen, he may be able to stop, and allow such train to pass.
Had the plaintiff properly slackened his pace and seasonably looked for the approaching train that injured him, he might have let it pass in safety. This he did not do ; and his own negligence contributed to liis injury. It is no excuse for him that the train was running at an unlawful rate of speed. Negligence of both *118parties may have contributed to tbe disaster; but the common law, in such case, gives neither damages for his injury arising from joint fault.
The question at issue is ordinarily for a jury to decide ; but, when the facts are simple and plain, and not in dispute, and clearly show contributory negligence by a plaintiff, it becomes the duty of the court to so declare, and withhold relief. In this case, the plaintiff’s own statement of his conduct shows that he has no legal right to recover damages for his injury, and the verdict must be set aside.
Motion sustained. New trial granted.
Peters, C. J., Walton, Daneorth, Virgin and Libbey, JJ., concurred.