The nature of the plaintiff’s injury does not appear by the bill of exceptions, but it is stated to have been caused by a collision with a locomotive engine in use under the care of a servant of the defendants.
The facts not being reported, we are only called upon to consider the rulings and directions of the court.
The defendants contended, that they were bound to exercise only ordinary care ; and they offered to prove, that they had used as much care as those having charge of engines usually exercise, in passing railroad crossings.
*542But the court ruled that this proof (that is, proof of such care as those having charge of engines usually exercise) would not of itself amount to a justification, in relation to the care which the defendants were bound to exercise; but instructed the jury, that the defendants were bound to exercise reasonable care and diligence in passing over crossings with their engines; that if what was reasonable care at crossings had become established by usage, the care ordinarily observed would be the test of reasonable care; but, inasmuch as railroads were of recent introduction, and no such usage had become established, the jury would decide upon their own judgment, in view of all the circumstances, and the explanatory evidence, in the case, whether the defendants had exercised reasonable care.
In the first place, the instruction prayed for, we think, in the terms in which it was expressed, could not properly be given. It assumed, that it was only the duty of the defendants to employ as much diligence as those having charge of engines usually exercised; not such diligence as engineers of ordinary skill and experience exerted.
But supposing the latter to be the rule intended by the prayer for instructions, it would not be correct. The true question is, whether the defendants used reasonable diligence, that is, the care and diligence which, taking into consideration all the circumstances of the case, the exigency required. It often happens, that the one of these propositions is equivalent to the other; as, where a practice has long existed, the course which has commonly been pursued by persons of ordinary skill and care will be usually the same as that which is reasonable, and will be the evidence and measure of what is reasonable. So, where horses, wheel carriages, boats and vessels have been in use from time immemorial, what is commonly practised may be regarded as reasonable. But whether a party has been negligent or not, depends upon so many different circumstances, and the circumstances of each particular case may be so peculiar and unlike all other cases, that proof of usage would not apply. And so the judge *543directed, and, we think, rightly, that if railroads had existed so long, &c., usual care would be a proper test ; but in consideration of the recent introduction of railroads, the question of proper care, &c., was for the jury to decide. This direction could not be considered as deciding upon a question of fact; it was reasoning from a fact, not contested, and assumed as one which was not questionable. It was a question depending on all the circumstances, regard being had to the relative positions of the roads, the intervening obstructions, the time of day or night, the weight and velocity of the engine ; and what were reasonable and proper precautions, and the fact of negligence, were rightly left to the jury upon all the circumstances in proof. Wayde v. Carr, 2 Dow. & R. 255; Lynch v. Nurdin, 1 Ad. fc Ell. N. S. 29.
It was further contended, that if the defendants had complied with the provisions of law, requiring a board to be placed at crossings, and a bell to be rung, (Rev. Sts. c. 39, <§4 V8, 79,) they were not liable for any damage which might occur from collisions at crossings, unless they were guilty of gross negligence. But the court ruled otherwise, and directed that a compliance with these regulations would not exempt them from the obligation of using reasonable care in other respects, when the circumstances rendered it reasonable to use other precautions.
The statute makes certain positive regulations, and the defendants, at their peril, are bound to comply with them; but there are no negative words, and there is no implication that a compliance was to absolve them from any duty which they were under before; and, therefore, if other precautions were necessary, the defendants were still bound to take them.
In the case first above cited, it was held, that where the driver was on the wrong side of the road, if the circumstances were such as to justify it, the driver was not liable; and it was left to the jury, as a question of fact, upon all the circumstances, including that of being on the wrong side of the road, whether the defendant was chargeable with negligence.
*544So, whether, under the circumstances, if the bell of the locomotive could not be heard, it was the duty of the engineer to sound the whistle, we think it was rightly left to the jury, whether reasonable precautions had been taken to give such notice as would prevent collision; the fitness of any particular expedient suggested depending upon the exigency of the case. Lack v. Seward, 4 C. & P. 106; Pluckwell v. Wilson, 5 C. & P. 375; Boss v. Litton, 5 C. & P. 407. And so, whether the place and the time and occasion were fit for trying a newly repaired engine, was a question of fact rightly left to the jury.
. The evidence is not reported, and we are not to presume, that the jury found a verdict against the defendants, without proof of actual negligence and want of ordinary care, in the use of the road and of the engine. The defendants had a right to run their engines on the road at all times, for all suitable and proper purposes, using proper care not to interfere with the equal right of travellers to use the road crossed. On these grounds, the court are of opinion, that the directions of the judge at the trial were right, and that judgment be entered on the verdict.
Exceptions overruled1.
Wilde, J., did not sit in this cause.