The only important question in this case is whether there was any evidence that the plaintiff, at the time of the accident, was in the exercise of ordinary care.
' Certain facts are undisputed. The plaintiff was on the south side of the railroad, driving a four-house team northward, going for a load of sand. There were two main tracks on the railroad at the crossing of the highway, and two side-tracks, one north and the other south of the main tracks. The distance between adjacent tracks was about six and a half or seven feet. On the south side of the railroad, and on the east side of the highway, was a barn thirty feet distant from the nearest side-track. A person driving northward on the highway, as soon as he had passed the barn, would have an unobstructed view along the defendant’s track towards the east for a distance of over.twenty-three hundred feet. The plaintiff was struck by the engine of a regular passenger train coming from the east on the north main track. The accident happened at about nine o’clock in the forenoon, and the plaintiff had known for some years that a passenger train from the east arrived there daily at about that time. He was also familiar with the crossing, and knew that no gate, nor flagman was maintained there. There is some conflict of evidence as to the other facts; but according to the plaintiff’s account, upon which alone he relies, a freight train had backed up over the crossing to get some cars which were *132standing on the southerly side-track, and the plaintiff, as he was approaching the track, held his horses back a little, and iust came to a stop as the train was passing over the crossing. When the cars got by the crossing he started to cross, and as soon as he got far enough across to enable him to look past the freight train, he saw the engine of the passenger train right upon him. He testified that, when he stopped his team for the freight train to pass, he was right opposite the barn; that when he started his team the freight train “ was going over and got over the crossing ”; that he could not say whether the rear car had got over “ more than a car’s length or two cars’ length ”; and that the freight train was in such a position that he could not see the northerly main track.
As a general rule, a person is not in the exercise of due care who attempts to cross a railroad track without taking seasonable precaution to assure himself by actual observation that there is no danger from approaching trains. It has been held in many cases that he cannot properly trust his sense of hearing alone, but must use his sight as well, if it is reasonably practicable so to do. Butterfield v. Western Railroad, 10 Allen, 532. Allyn v. Boston & Albany Railroad, 105 Mass. 77. Wright v. Boston & Maine Railroad, 129 Mass. 440. Tully v. Fitchburg Railroad, 134 Mass. 499. Wheelwright v. Boston & Albany Railroad, 135 Mass. 225. This rule has been held applicable where a plaintiff’s attention has been diverted, or his view of a coming train has been obstructed by another train which has just passed. Bancroft v. Boston & Worcester Railroad, 97 Mass. 275. Mayo v. Boston & Maine Railroad, 104 Mass. 137, 141. Allerton v. Boston & Maine Railroad, 146 Mass. 241. Granger v. Boston & Albany Railroad, 146 Mass. 276.
In the case at bar, the plaintiff was driving a heavy team ; his horses, as he testified, were not frightened at the cars; there was no apparent excuse for haste; he stopped opposite the barn, where it was impossible to determine whether a train was coming from the east, and a delay of one or two minutes after the freight train had gone would have made the track visible by the corner of the barn towards the east for a long distance; but without any reason for so doing that can be discovered in the facts, or that he could give in his testimony, he drove upon the *133track when it was impossible to use his sight for his protection, and when it was probably impossible to distinguish the sound of the coming passenger train from the noise of the intervening freight cars. This was an act which the general knowledge and experience of men at once condemn as careless. A majority of the court are of opinion that there was no evidence that he was in the exercise of due care.
The case is very different from French v. Taunton Branch Railroad, 116 Mass. 537, in which it appeared that the plaintiff was crossing a single track railroad, and, seeing that a freight train had just passed, did not look to see if another train was closely following it, and was struck by a ear which had been detached to make a flying switch. So, too, in Griffin v. Boston & Albany Railroad, 148 Mass. 143, the plaintiff, having seen a freight train go by, was struck by cars following close behind it, which had accidentally become separated from the train. In each of these cases it was left to the jury to determine whether due care required the plaintiff to look for detached cars following immediately behind a passing train. The case at bar is also clearly distinguishable from Hanks v. Boston & Albany Railroad, 147 Mass. 495.
The rule as to looking for trains when about to cross a railroad, laid down in the cases which we have cited, prevails in nearly all the courts in this country. The material facts in Marty v. Chicago, St. Paul, Minneapolis, & Omaha Railway, 38 Minn. 108, were almost identical with those in the case at bar. It is said in the opinion, that, after the plaintiff “ had crossed the track of the St. Paul and Duluth road, he came up to within about twenty-five feet of the westerly track of the defendant’s road, which was used for incoming trains, and stopped to wait for the passing of a freight train then occupying the crossing and going into the city. This train obscured the view of the other track, and the plaintiff did not see or hear the approach of the outgoing passenger train due at or about that time at the crossing on its way east. But as soon as the freight train had passed, he immediately started up, and drove on the second track used for outgoing trains, and was intercepted by the engine of the passenger train. He knew that the easterly track was used for outgoing trains, and had before on several occasions seen two *134trains there under similar circumstances, and knew that the trains there were frequent, and knew that a train went out in the evening, and that no flagman was stationed there. He testifies that he could not see the passenger train because the freight train was in the way, and he drove on behind the latter, so that he did not discover the approach of the engine till it was within a few feet of him. . . . He admits that but for the freight train the track could have been seen at least five hundred feet in the direction from which the passenger train came. ... A trifling delay would have enabled him to look, and this precaution was the more important because the noise of the passing freight train would prevent him from hearing the approach of the other train. The evidence is clear, not conflicting, and the facts not complicated, and the case was properly passed on by the court, without submitting it to the jury.”
So in McCrory v. Chicago, Milwaukee, & St. Paul Railway, 31 Fed. Rep. 531, where the plaintiff’s view of the passenger train that struck him was cut off by smoke from a freight train which had just passed, the judge says that the plaintiff “must have known that there were two tracks, and that a train was liable to come on each track; and if, when approaching a track, he finds anything which temporarily obstructs his vision, it is his duty to wait until the temporary obstruction is removed. He cannot say, 4 There is something temporarily obstructing my vision, but I will take it for granted that there is no danger ’ and undertake to cross the track. . . . The law lays it down clearly that a man must look and listen. And if, by looking and listening, he could ascertain the approach of a train, and failed to do so, he is guilty of contributory negligence, and cannot recover.” See also Cincinnati, Hamilton, & Indianapolis Railroad v. Butler, 103 Ind. 31; Stubley v. London & North Western Railway, L. R. 1 Ex. 13; Chase v. Maine Central Railroad, 78 Maine, 346; Heaney v. Long Island Railroad, 112 N. Y. 122; Greenwood v. Philadelphia, Wilmington, & Baltimore Railroad, 124 Penn. St. 572.
The defendant’s first request for a ruling was rightly refused. The allegation of negligence in the first count of the declaration was not so restricted as the request implied.
Hxeeptions sustained.