We cannot affirm the judgment without ignoring the plain inference of negligence on the part of the plaintiff’s intestate, either in omitting to look for the approaching train before reaching the crossing, or if he looked, in omitting to stop his horses before reaching the track of the railroad. The train was in sight for nearly half a mile at a point on the highway more than two hundred and fifty feet north of the crossing, and from a point fifty feet north, to the track, there was an unobstructed view of the railroad to the west for nearly a mile-
The two witnesses for the plaintiff, who were going north and who passed the deceased ten or fifteen rods north of the crossing, when they had reached a point in the' highway, twenty to twenty-five rods north of the crossing, observed the train approaching from the west. The train was then nearly half a mile distant. They looked back and observed the deceased. He was then sitting on his load, facing partly east. There is some discrepancy in,the evidence as to the distance of the deceased from the crossing at this time. But the shortest distance as estimated by them, was fifteen feet. There were four railroad tracks at this place, and the train was on the south track. The deceased continued to drive on until he got upon the north track. Then observing, apparently for the first time, the approaching train, he partly raised up and commenced whipping his horses. The horses got over the south track, but the wagon was intercepted-by the train, and -the intestate wás killéd. If he had stopped on the north track he would have been safe. It does not'appear that the horses were unmanageable, or that he might not have stopped them at this point' until the train passed. But assuming that his inisjudgment in attempting to cross in front of the train, was not alone sufficient to charge him' with *351negligence, on the" ground that when he discovered the train, he was called upon to decide instantly what he should do, this furnishes no answer to his prior negligence in not having stopped his horses before going upon the track, whereby he would have avoided the peril which he afterward encountered. It is true that he was ascending a grade on the highway to reach the crossing, the rise being about one foot vertical to eleven feet linear distance, and about twelve feet in all. But the embankment was guarded by a railing on each side of the road, and even if the horses could not have held the load on this ascent, no serious damage could, so far as-appears, have been apprehended, or would have resulted from stopping them. If he did not observe the train before reaching the track, it was by reason of his negligence ; if he did observe it, his proceeding on without stopping was an act of gross carelessness. We can see no ground upon which the verdict can stand.
The judgment should be reversed and a new trial granted.
All concur.
Judgment reversed