dissenting:
On November 19, 1899, a rainy, gloomy day, Robert T. Keenan, the plaintiff, was driving a covered delivery wagon, drawn by one horse, out of a private lane or driveway which is at right angles with, and leads to, the Old York road in a rural *111part of Montgomery county, on which the defendant company operates a double track street car line. The lane descends towards the road, and enters it ten feet from the east rail of the northbound railway track. There is a deep gutter at the side of the road in front of the gateway which is crossed by a bridge. For a distance of about 125 yards, Old York road has a descending grade from the south to the place of the accident. As the plaintiff was coming out of the lane, he stopped about the length of his team inside the gateway, the head of his horse being-about twenty-five feet from the east rail of the street car track.. He testifies that he then “stopped, looked and listened.” He stepped out on the swingletree and looked south on the Old York road. He could see a distance of about 319 feet. He neither saw a car nor heard one approaching. He immediately resumed his seat in the wagon and without delay proceeded to walk his horse over the street car track. The horse cleared the track but the front wheel of the wagon was struck by a northbound car, separating the horse from the wagon and seriously injuring the plaintiff. After the collision, the car ran about 200 feet before it was stopped. When it was 100 feet south of the point of collision, a passenger standing on the front platform with the motorman, saw plaintiff’s horse and wagon and they were then on the track in the act of crossing. The car was running at a rapid speed and the gong was not sounded until the car was about striking the wagon.
Upon these facts the trial court withdrew the case from the jury, holding as a matter of law that the plaintiff was guilty of negligence. It is contended that the plaintiff’s failure to continue to look for an approaching car until he arrived at the track, was the cause of the collision resulting in his injuries. But that contention is not supported by the facts disclosed by the evidence. The plaintiff “ stopped, looked and listened ” at a proper place — when his horse was within twenty-five feet of the track — and where he could see an approaching car for a distance of over one hundred yards. No car was in sight and he had no reason to believe that one was approaching. Up to this point it must be conceded that the plaintiff had performed his whole duty. He then attempted to cross the track and in so doing permitted his horse to walk. What vigilance in looking for a car was required of him ? Should he have alighted *112from his wagon and led his horse over the track so that he might see an approaching car which the exercise of his senses told him would not interfere with his passing the track; or should he have resumed his seat in the wagon and walked his horse over the crossing, resting upon the assumption that the car would approach the crossing at the usual rate of speed and give a proper signal of its approach? He is certainly not required to adopt the former alternative, when the observance of a duty clearly imposed upon the defendant’s employees would insure his safety in crossing the company’s track. Had the plaintiff seen a car approaching or had reason to believe, after exercising his senses of sight and hearing, that a car was approaching, a different duty would have been imposed upon him. But even under such circumstances, this court has held that he may proceed to cross the track if after seeing the car he is justified in believing that it is at such a distance from him that he can cross in safety if the car runs at the usual speed. Here, however, the plaintiff having stopped and looked at a proper place saw no car. His team was only twenty-five feet from the track and no ear was in sight or hearing. He could see at least 819 feet in the direction from which one must come, and the motorman when 426 feet from the crossing could see plaintiff’s team approaching it. Under these circumstances, he was clearly justified in taking his seat in the wagon and in attempting to cross the track. At an ordinary or usual rate of speed the car could not have reached the crossing before he had passed it. That conclusively appears. Why then should he be compelled to alight from his wagon, lead his horse over the track, which might be difficult and might be accompanied with more or less danger, for the sole and only purpose of relieving the defendant company’s employees from discharging their duties in approaching the crossing with care by running at a proper rate of speed and by giving the usual signals? The plaintiff and his wagon were on the crossing and in plain view of the motorman when his car was at least 100 feet distant from them. Had it been under proper control, as the law requires the motorman to have his car when approaching a crossing, it is evident that there would have been no collision with its consequent painful and permanent injuries to the plaintiff.
*113There is no allegation that the plaintiff did not stop and look at a proper place or that he failed to perform his duty to look so far as he could while seated in his wagon and approaching the crossing. He is condemned because after stopping at a proper place and looking for a car “ he did not continue to look until he reached the track.” This, as has been observed, involved his alighting from the vehicle twenty-five feet from the track and leading his horse, possibly skittish and unruly, over the crossing. This was not necessary for his safety, if the company’s employees had done their duty in operating the car. He had time to walk his horse over the crossing in safety after he looked and saw no car, provided the defendant ran its car at an ordinary rate of speed. This is apparent from the rapid speed at which the car was running and the fact that the horse had cleared the track when the collision occurred. The plaintiff’s only fault, therefore, lies in the fact that he did not anticipate the negligence of the defendant’s employees in charge of the car and not attempt to cross the track at all. The law, however, does not impute negligence to the plaintiff for doing an act which can result in his injury only by reason of the failure of the defendant to do its duty. Unless the plaintiff is held to such a standard, there is no ground on which a failure of duty can be laid at his door.
It may be observed in conclusion that it was a question for the jury whether the plaintiff stopped at a proper place to look for the approaching car, and if he did, and saw none, whether he was justified in proceeding to cross the track in the manner and under the circumstances disclosed by the evidence. For the court below to determine this as a matter of law was to invade the exclusive province of the jury, recognized time and again by this court.
I would reverse the judgment and send the case to a jury.