delivered the opinion of the court, February 1st.1875.
This case was here on a former writ of error, and was reversed for the admission of irrelevant and improper evidence: 22 P. F. Smith 27. It now comes before us, after a second trial in the court below, for the correction of alleged errors in refusing to charge as requested, and in the instruction given to the jury. The action was brought by the widow and children of George fi. *168Weber, who was killed at a public crossing of the defendant’s road, by a passing train, to recover damages for his death. It was unquestionably the decedent’s duty, as the court below in effect charged the jury, to stop and look and listen for approaching trains, before attempting to cross the track of defendant’s road; and if he failed to observe this precaution, his failure was not merely evidence of negligence, it was negligence in itself. But it does not follow that he omitted his duty in this respect, because he was killed by a passing train. Nor was it incumbent on the plaintiffs, in order to recover damages for his death, to show affirmatively that, before attempting to cross the track, he did stop and look and listen. The common-law presumption is, that every one does his duty until the contrary is proved; and, in the absence of all evidence on the subject, the presumption is, that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendants’ road. It is true, that when the plaintiff’s own evidence discloses contributory negligence, there can be no recovery; but if it does not, the burden is on the defendants to disprove care; and in such case the question of negligence is for the jury. Does, then, the plaintiffs’ evidence show that the decedent was guilty of contributory negligence in not stopping to look and listen for the train by which he was killed ? If so, the court should have given a binding direction to the jury to find for the defendants. But, in the absence of such evidence, it would have been error for the court to withdraw the case from the jury, and determine, as matter of law, that he was guilty of negligence, which contributed to his death. Whether, then, the court should have aflirmed the defendants’ second point without qualification, depends upon the character of the evidence of which it was predicated. If] as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty, and the court should have declared its omission negligence, as a matter of law. But if there was no direct and positive evidence, showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from the jury, and in saying, as he did, “ We cannot' affirm this point, but say again, that the first presumption of law is, that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we say again, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendants, even should you find that the engineer gave no warning of the approach of the train.” It is apparent, from the answer and from the whole tenor of the charge, that if the court erred in not giving the instruction prayed for, the error arose from a mistaken view of the evidence, and not from *169misapprehension of the law. Does the nncontradicted evidence in the case show that the decedent did not stop before driving on the track ? We have looked through the record and have not been able to discover any direct and positive evidence that such was the fact. The decedent was returning in a baker’s wagon from Marysville, where he had been to supply his customers with bread, and was seen by the plaintiffs’ witnesses, who were at work on the railroad, about twelve hundred feet east of the crossing where he was killed. He stopped and sold them some cakes, and then drove on. One of the witnesses, Alfred Ensminger, in answer to the question, “ What was the next thing that attracted your attention after the baker started on his way westward ?” said : “Well, after a young man had bought the cakes from him, Alfred Priesler, we started right away to work again: I was working with my face eastward, stooping down, tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” The other witness,?. Deitz, said: “I bought some cakes from him, me and Priesler. After the purchase of the cakes, we went back to work again, and he started on.” In reply to the question, “ Where did you next see him ?” he said: “ Well I heard a whistle ; I looked up ; says I, ‘ there goes the laker,’ we just call him the baker. This whistle was just as the baker was driving on, as near as I can tell. The train and the baker were approaching each other at that time; I did not know that the train was coming until I looked up; I did not hear any but the one whistle. In answer to the question put to him on cross-examination, “ Was the horse close to the rail when you saw him ?” he said: “ I could not say that positively, because I was scared; I could not say how close he was ; I could see the horse though.” On behalf of the defendants, Samuel H. Free, the engineer of* the train, testified as follows : “When we got to the end of the stone wall, or near about there, I believe the whistling-post stands near the end, I blew the whistle four blasts for the next crossing below. About half way from that (the whistling-post) to the crossing below, I saw the horse coming out on the road towards the track ; I blew the whistle again some four or five blasts, sharp and quick ; and a very short time after that the horse and wagon stopped on the track ; as soon as they stopped, I pulled the patent brake, and reversed the engine; the engine was in that position until it struck the wagon; I suppose the horse’s head was within a few feet of the track when I first saw it; when I first saw the ho.rse I was about half way from the whistling-post to the crossing, as near as I can tell; when I struck Weber the horse stood with his hind feet just across the north rail of the south track, as near as I can tell; Weber was sitting in the wagon, not quite in the middle of the wagon, a little nearer to the front than the middle ; when I got close enough to him, I saw he had hold *170of the lines, pulling hack, as though he was trying to back the horse; I think the two front wheels stood near about the north rail of the south track ; the shafts stood the same as a horse backing or trying to back, standing up along side of his neck.” Henry Robinson, the fireman, testified : “ My attention was called first as I was sweeping off the foot-board, by an alarm-whistle; I looked on my side and saw the horse; I saw a man seated in the wagon near the middle, as near as I could tell by the appearance; the horse was stopped; it appeared to me that he was trying to back the horse off the road, as the shafts were up alongside of the horse’s neck, and the wagon had run on him; he remained in that position until we struck him.” This is the substance of the testimony on the subject, and so far from showing that the decedent did not stop to look and listen before driving on the track, it shows conclusively that there was no direct and positive evidence on the subject, one way or the other. No human eye saw him from the time he sold the cakes to Deitz and Priesler until the alarm-whistle sounded, when he was seen driving upon the track, his horse’s head within a few feet of it, and the engine not more than six hundred and twenty feet from the crossing where the collision took place.
Whether he stopped, or not, before driving on the track, is matter of mere inference or conjecture, and cannot with certainty be known. On the one hand is the presumption that he stopped to look and listen. He was well acquainted with the crossing, having been accustomed to drive over it every day, and must have known the time at which the regular trains passed. He had the highest motive to take the necessary precaution to insure his safety, and the presumption is that he did. On the other hand, it may be inferred from the circumstances, that if he had stopped to look and listen he would have seen or heard the approaching train. But whether he stopped, or not, it was the province of the jury to determine as a question of fact, and not a matter of law, for the decision of the court. The evidence from which the decedent’s negligence may be inferred, is not só clear and convincing in this case as in The Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and The Pennsylvania Railroad Co. v. Goodman, 12 Id. 329, in both of which it was held, notwithstanding our dissatisfaction - with the verdicts, that the question was rightly left to the jury. Manifestly the court could not have given the instruction prayed for, without invading the province of the jury, and running counter to the whole current of our decisions in cases of negligence. If, then, there was no error in refusing to affirm the defendants’ second point, did the court err in saying to the jury in answer to it, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendant. Whether he stopped, or not, was, in the absence of any direct and positive evi*171dence on the subject, a matter of inference from all the circumstances of the case, and what was the reasonable and proper inference was for the determination of the jury. What possible harm then could the instruction complained of do the defendants ? On the contrary, what stronger argument could have been made to the jury to show that he did not stop, for if they believed that he would not have been killed if he had stopped to look and listen, then the natural and pregnant inference would be that he did not stop ; and if so, he was guilty of contributory negligence, and the plaintiffs were not entitled to recover. Nor was there error in charging that if the evidence shows negligence on the part of Weber in approaching and crossing the track of defendants’ road, and no negligence on the part of the company, then the blame and fault would be Weber’s own, and the law will not permit the plaintiffs to recover.
This instruction was clearly right, and it could not, as contended, have misled the jury by leading them to believe that they could not find a verdict for the defendants unless they found that the company was not guilty of negligence, although they should find that Weber was, for in the very next breath the court told the jury that if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiffs cannot recover.
The very able and earnest argument of the counsel for the plaintiffs in error has failed to convince us that the evidence in this case shows such contributory negligence on the part of the decedent as made it the duty of the court to declare it such as matter of law, or that there was any error in the instructions given to the jury. On the contrary, we are satisfied, upon a review of the whole record, that the case was well tried by the learned judge, and that his charge contains a clear and correct statement of the law arising upon the evidence. If the jury erred in their finding, it was from no failure on his part, to draw their attention to the true attitude of the case under the evidence, and to that view of it which tended to show contributory negligence on the part of the decedent.
The court could not have gone further, without trenching on the province of the jury, whose duty it was to determine, under all the circumstances of the case, whether or not he was guilty of contributory negligence.
Judgment affirmed.