delivered the opinion of the court,
This case was well tried in the court below, except in a single aspect which the court failed to notice. The consequence has been that the jury, looking at one side only, followed the common bent of jurors when a railroad company is a party. Had the consequence of Henry Feller’s negligence been the destruction of the *229train and a heavy loss of human life, the case would have been seen .very differently. Being himself the only sufferer, the interests of the Railroad Company and the public have been lost sight of. A motion for a nonsuit at the close of the plaintiff’s evidence would have disclosed the true character of the case. Taking that evidence alone we have this state of facts: Henry Feller had driven to Weiss-port with a load of ties, crossing the railroad, and was returning in the afternoon in broad daylight. He was perfectly familiar with the crossing, having driven over it frequently ^for several years, often two and three times a week. His team of mules was gentle and manageable. On the return the ascent is steep, passing a-row of houses in front of iron works, which extended nearer to the railroad. A watch-house eight feet in width stood about five feet from the railroad and from six to eight feet from the road he was travelling. Between the iron works and the watch-house is a considerable space through which he could see up the railroad beyond the depot, about six hundred and fifty feet. Feller drove his team and empty wagon past this opening without stopping, and came to a stand right before the watch-house, the heads of the mules passing the watch-house and being within three or four feet of the outer rail. He stood in his wagon, and according to the testimony of all the witnesses of the plaintiff who saw the occurrence the watch-house shut out his sight above, in the direction in which the train was coming. In this position he stopped momentarily, turning his head as if looking to each side, then whipped his mules with the lines held in his hands; the mules starting, had just gotten upon the track when the engine struck them, killing one and maiming the other, breaking up the wagon and killing Feller. All the witnesses agree that where he stood in the wagon he could not see up the track ; that he did not get down and loojc past the watch-house, but drove on after a short pause, though unable to see the track on his left side. These are the uncontradicted facts, as shown in the plaintiff’s own testimony. In such a case the question becomes one of law : Rung v. Shoneberger, 2 Watts 27. It was a plain case of foolish negligence, in passing a point where he could see, and stopping at a point where he could not see in one direction, and yet driving on without any attempt at examination, except to turn his head in each direction. He was somewhat deaf, but this was unknown to those on the train, even if they could have supposed he would drive on past the watch-house. But he himself being aware of his own defect, had a greater reason for caution in advancing. On the plaintiff’s own showing it was a clear case of concurring negligence, which the testimony for the defence makes even more apparent. The engineer saw the wagon passing through the opening when moving to the watch-house, and gave five.or six sharp alarm whistles, heard by many, including the plaintiff’s witnesses. A witness testified that a person saw the deceased passing up toward the railroad, *230and told him to wait, that a train was coming. The case was therefore not helped out by the defendant’s testimony. It was a case of ■ uncontradicted concurring negligence, upon which the court should have instructed the jury that the plaintiffs could not recover. The attention of the court was called to the state of the evidence by the defendant’s fourth point; and instead of negativing it, the court should have affirmed it.
The affirmation of the plaintiffs’ third point wras not exactly accurate, though it is perhaps redeemed from error by the qualification and the charge. This point-is, “If the jury believe that the watch-house erected by the company shut off the view of approaching trains, then the company is liable for the collision, in the absence of negligence of deceased.” In effect this was to say that it was negligence per se, and binding on the jury. That the placing of a watch-house in the way and shutting out a view of the railroad, so as to entrap travellers at a crossing, may be such a wrongful act as will render the company liable, may he well conceded. But it is one which is not negligence per se. A railroad company is entitled to a full and free enjoyment of its own property, and to place upon it all needed structures. For example, the block system of running upon railroads is found to be a valuable aid in the security it affords. This system requires signal stations along the route and close to the track; and circumstances may require a signal station or a depot or station to be placed near to a crossing. It would be too much to say that any one found near a public road is a nuisance per se. So a watch-house for a flagman at a crossing may be necessary. The question is one of circumstances and not of legal conclusion, and necessarily must go to a jury to determine upon the circumstances. But the slight inaccuracy in affirming the point generally is counteracted by the qualification, and also by the general charge, which submits the question as to the watch-house clearly and fully to the jury.
Judgment reversed, and a venire facias de novo awarded.