chargingthe jury:
Gentlemen of the jury:—We decline to instruct you to find for the defendant.
This action was brought by Robert L. Buchanan, the plain tiff, against the Philadelphia, Baltimore and Washington Railroad Company, the defendant, to recover damages for injuries to himself, for the death of his horse and for injury to his wagon, alleged to have been occasioned by the negligence of the defendant company.
The plaintiff in his declaration avers, first, that he, in the exercise of due care upon his part, was lawfully passing along a public highway, in this county, in a wagon, on the day of the alleged accident, when by reason of the negligence of the defendant, or its agents, he was struck by one of the defendant’s trains of cars, passing over said highway, and was thrown down, wounded and permanently injured, and his horse was killed, and his wagon was badly injured- second, that the defendant negligently *91and carelessly ran its said train of cars over its line of railroad where the same crosses at grade the said public highway, without giving any warning of the approach of its train to the said crossing, when by reason of such negligence the injuries and loss complained of were occasioned.
It is not controverted that, on the second day of June, A. D. 1908, the horse and wagon, driven by the plaintiff, were going easterly on a public highway, and a special freight train of the defendant was going southerly, on the westerly south-bound track of the defendant railroad, when a collision occurred between the horse and the train, at what is known as Stewart’s crossing, it being between Porter and Kirkwood stations, in this county.
You have had detailed to you by the several witnesses a description of the land as to its elevation adjacent to the said public highway and the right of way of the defendant company, and also of the location of hedge, trees, crops, structures and the general surroundings of the approach to said crossing, which are claimed to have existed and obstructed the view of the plaintiff from the approach of said train, a considerable distance before reaching the crossing and within twenty feet, as claimed by the plaintiff, or thirty feet, as claimed by the defendant, of the westerly rail of the track upon which said train was moving. We-shall not attempt any detailed statement of this testimony, but leave it to your recollection. You are the sole and exclusive judges of the testimony, both as to its weight and value. The Court has nothing whatever to do with the facts of the case as testified to by the witnesses. When you shall Have retired to your room, you should weigh and consider the evidence produced before you in connection with the law announced to you by the Court, and render your verdict in accordance therewith.
The plaintiff claims that when approaching the said crossing r his horse was in a walk, and that he himself was in the exercise of due and reasonable care at and before the collision, and that the collision was caused by the negligence of the servants of the defendant in charge of the train as alleged in his declaration. The defendant company, however, claims that its servants were not *92guilty of any negligence, such as alleged, which caused the injuries and loss complained of, but contends that the collision was occasioned by the negligence of the plaintiff. The defendant claims that, at the time of the accident, it was in the exercise of due and reasonable care to prevent the accident.
It is not denied that the road on which the plaintiff was driving crossed over the right of way and tracks of the defendant and is a public highway. The defendant company has a right to cross said highway with its tracks and to use its tracks to and over said crossing in the movement and management of its trains. The public have the right to use said highway and to cross over the tracks of the company at said crossing for the ordinary purposes of a public highway. The right of each, however,must be exercised with due regard to the right of the other, and in a reasonable and careful manner, so as to prevent accidents at such crossing. A person approaching a railroad crossing with which he is familiar is bound to avail himself of his knowledge of the locality and act accordingly.
If a person drive up to a railway crossing and upon it, not ■only without, at least, looking but without listening to ascertain if any cars are approaching, and a collision and injury occurs to him from a passing train, which would have been prevented had the person so injured exercised the proper and ordinary prudence, care and caution mentioned, such person would be guilty of ■contributory negligence, and could not recover from the railroad company for such injury. When the view at the crossing is obstructed, greater care is necessary than in places where, the view is unobstructed. It is likewise the duty of the defendant in the movement of its trains over its tracks across a public highway to exercise reasonable care and diligence to warn travelers upon such highway of the approach of its trains, in order to prevent accidents at such crossings, and if there are obstructions in and about such crossing which prevent a train of cars from being seen as a traveler upon the highway approaches the crossing, the degree of care required is increased according to the liability of danger at such crossing. Both the traveler and the company *93are charged with the same degree of care—the one to avoid being injured, and the other to avoid inflicting injury. As was said by the Court in the case of Knopf vs. P., W. and B. R. R. Co. 2 Pennewill 393, the degree of care and diligence required, when applied to the management of railroad engines and cars in motion must be understood to import all the care, circumspection, prudence and discretion which the peculiar circumstances of the place or occasion reasonably require of the servants of the defendant company, and this will be increased or diminished according as the ordinary liability to danger and accident, and to do injury to others, is increased or diminished in the movement and operation of them. But, on the other hand, it is equally well settled as a principle of law, that the plaintiff was also bound at the same time, to use ordinary prudence, care and diligence to avoid the accident and injury which occurred to him on that occasion, and the care and diligence which he is bound to exercise must be in proportion to the danger to be avoided; that is to say, he is bound to use such care, prudence and diligence as a reasonably prudent man under the peculiar circumstances of the case would exercise to preserve himself from being injured.
A failure on the part of defendant to blow its whistle on approaching a crossing at a public highway, as required by the Act of the Assembly, would constitute negligence on the part of the defendant per se, but such failure on the part of the defendant would not relieve the plaintiff from the exercise of reasonable and ordinary care in approaching the crossing; nor would the defendant be liable by rhason of such failure if the injuries complained of were caused by the negligence or careless conduct of the plaintiff at the time of the accident. But if the defendant failed to make use of the warning required by the statute at the time of the accident,and if the accident occurred by reason of such failure, then and in that event the defendant would be liable for the injuries complained of, if the plaintiff did not by his own negligence or want of care contribute in some degree thereto; that is to say, even though the defendant company may have been negligent on its part, yet if the negligence of the plaintiff contributed *94to or entered into the accident, at the time of the injury, the plaintiff would be guilty of contributory negligence and cannot recover. For where there is mutual negligence, and the negligence of each is operative at the time of accident, no action can be sustained therefor.
It has been held by the courts of this State that the law regards a railroad crossing as a place of danger. The very presence of such a crossing is notice to the person, approaching or attempting to cross it, of the danger of colliding with a passing engine or train. And because of the danger, there is imposed upon such person the duty of reasonable care and caution, and the reasonable and ordinary use and exercise of his senses of sight and hearing for his own and others’ safety and protection; and he is required, at least, to look and listen for an approaching engine or train before venturing to cross the track, and, if as it has been said, he fails to exercise such ordinary care, whatever danger he could thereby have discovered and avoided, he incurs the peril thereof if he proceeds, and, for an injury arising under such fault, is left without remedy.
In an action of this kind it is necessary that the plaintiff ■should both allege and prove negligence on the part of the ■defendant to entitle him to a recovery. Negligence is never presumed. It must be proved, and the burden of proving it rests upon the plaintiff.
Negligence has been defined to be a failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.
There is no presumption of negligence, either on the part of the plaintiff or on the part of the defendant, from the mere fact that injury resulted to the plaintiff by the train and team coming into collision. Whether there was any negligence, at the time of the collision, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.
If you shall believe from the preponderance of the evidence *95in this case, that at the time of the accident the servants of the defendant company negligently approached the said crossing with its train,without giving any warning of its approach to said crossing, and that the failure to do so was the proximate cause of the injuries complained of, and that the plaintiff was free from any negligence on his part which contributed thereto, then your verdict should be for the plaintiff; or if you shall believe from the preponderance of the evidence that at the time of the accident the defendant was not in the exercise of due and reasonable care, that is, all the care and circumspection, prudence and discretion that an ordinarily prudent and careful man would have exercised under the circumstances and that the want of such care and caution was the proximate cause of the injuries complained of, and that the plaintiff was free from any negligence on his part which contributed thereto, your verdict should be for the plaintiff. But if you shall believe that it has not been shown by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries complained of, or if you shall believe that the negligence of the plaintiff himself contributed to the injuries complained of, your verdict should be for the defendant.
Where, as in this case, the testimony is conflicting, you should reconcile it if you can, but if you cannot do so, you should accept as true that part of it which you deem worthy of credit, and reject that part of it which you deem unworthy of credit, having due regard to the opportunity and capacity of the witnesses to know of that of which they speak, and their apparent fairness or bias.
Your verdict should be for that party in whose favor is the preponderance or greater weight of the evidence.
If your verdict should be for the plaintiff, you should award him such sum by way of damages, as you may conclude from the evidence to be an adequate compensation for the value of his horse and for injuries to his wagon; also for his pain and suffering of mind and body, loss of bodily and mental powers, inability to perform ordinary labor and incapacity to earn *96money, in the past or in the future, which are the immediate and necessary consequences of the injuries sustained by him. If such injuries are in your judgment, in view of all the evidence, of a permanent character, you should consider that fact in determining the amount of his damages.
Verdict for plaintiff for $6,250.