after stating the facts as above, delivered the opinion of the court.
The assignment of error relied on is the refusal of the court below to direct the jury to render a verdict for the defendant, because, as claimed by appellant, it clearly appears from the evidence of the plaintiff that the contributory negligence of the deceased was the proximate cause of his death.
The single question, therefore, before the court is whether the court below should have declared, as a matter of law, that the deceased, the driver of the automobile, was guilty of contributory negligence, and not entitled to recover.
[1] The negligence of the defendant is not material to the issue here, and the court’s charge to the jury does not enter into *153the case before us. The only question is,—should the court have allowed the case to go to the jury at all ? If the evidence presented in behalf of the plaintiff clearly shows that the deceased’s negligence was the proximate cause of his death, then the plaintiff was not entitled to recover no matter how negligent the defendant may have been, and the jury should have been directed to return a verdict for the defendant. If, however, the plaintiff’s evidence does not clearly show such contributory negligence, then there was no error in refusing defendant’s prayer for binding instructions.
The most significant and material facts in the case may be briefly stated as follows:
1. The deceased, who was driving the car, was wholly unfamiliar with the railroad crossing where the accident happened. It does not appear that he had ever traveled the road before.
2. The deceased was told by Roberts, who sat at his right side, that there was a bad crossing on the road, “either on this side or the other side of the brickyard”; and this information was given when they were not more than three hundred and fifty yards from the crossing.
The deceased heard and understood what Roberts said, because he answered: “We can easily find out by going slow.”
3. The brickyard, on one side or the other of which was the crossing, was clearly visible to the occupants of the automobile all the way from Carey’s Comer, a distance of about three hundred and fifty yards; and the cut through which the railroad ran, as well as the telegraph line, along defendant’s road, were visible at a like distance.
4. The driver of an automobile could not, by looking, tell there was a railroad crossing in the cut until he was within about seventeen feet of the nearest track.
5. After leaving Carey’s Comer the automobile was running at least ten miles an hour until it struck the train.
6. The view of the train approaching from the east, as well as of the track, was entirely obstructed by an embankment and standing com, after leaving Carey’s Comer, until the driver of the automobile was sixteen or eighteen feet from the track.
*1547. At the time of the accident considerable sand had been blown on the crossing, which made the track more difficult to see.
The defendant contends that the deceased, having knowledge before the collision that there was a bad crossing on one side or the other of the brickyard, which was near and easily seen, and also of the cut, and line of telegraph poles, which were plainly visible, should in the exercise of due care have stopped his car, or at least have slackened its speed, in order to discover the crossing of the proximity and danger of which he had notice and warning. And especially was this the deceased’s duty, the defendant argues, because looking for an approaching train from the east was unavailing on account of obstructions to the view, and listening was equally unavailing because of the noise made by the running car.
With the knowledge the deceased had was it negligence on his part to run his automobile as he did into the cut, at a considerable down grade, when the crossing for which he was looking might be in the cut?
The defendant insists that while a line of poles and wires do not in these times necessarily indicate the presence of a railroad, such facts, together with other facts of which deceased had knowledge, were sufficient to put him on his guard and prevent him from running his automobile into the cut, as he did, until he had discovered there was no danger; that a reasonably careful and prudeht man, having the knowledge the deceased possessed, and with the view of an approaching train obstructed, would have either stopped his car or so reduced its speed as to be able to stop it immediately before driving it into the cut.
The contention of the plaintiff is briefly this:
That the deceased was entirely unfamilar with the road over which he was passing, had no knowledge of the exact location of the railroad, and because of his inability to see the track until almost upon it, he could not by the exercise of due care avoid collision with the train which was not visible until it “flashed right on him.”
[2] A part of the plaintiff’s testimony establishes such facts, and it is a familiar rule of law, that in determining such a ques*155tion as is now before the court, that testimony must be accepted as true which is most favorable to the plaintiff.
[3] Under the testimony in this case respecting obstructions to the view, the court are of the opinion that they cannot say as matter of law that the deceased could have seen the train in time to avoid the accident. Whether he could or could not was a question for the jury to determine under instructions from the' court.
It was testified by one or more of plaintiff’s witnesses that some of the occupants of the automobile looked and listened till the accident happened, and neither saw nor heard the train.
[4] We cannot, therefore, say, as matter of law, that by the exercise of proper care the deceased could have heard the train if he had listened. Whether he could or not was likewise a question for the jury.
The case then is narrowed to a single point, viz.:
Whether the court can say, as a matter of law, that the deceased could by the exercise of due care and caution have discovered the crossing in time to avoid the accident by stopping his car or reducing its speed.
We may say here that the cases cited by counsel are of but little assistance to the court, because in none of them are those features present which distinguish this case.
In the cases cited by the appellant the driver was either familiar with the crossing, or it was plainly visible for a considerable distance. He knew the location of the crossing in time to avoid the accident by exercising proper care. There is one case where the driver could not see the crossing, but it was on account of darkness. He was traveling at night.
In the cases cited by the appellee the driver was either unfamiliar with the crossing, or could not see it until too close to avoid collision.
But there was no case cited like the present one, where the driver of the automobile was unfamiliar with the road, and the crossing was very difficult to see, but the driver nevertheless had notice that there was a bad crossing on the road about four hundred yards ahead. That is the particular feature that distinguishes this case from those cited on either side.
*156Assuming that it is the duty of the driver of an automobile to stop his car before crossing the tracks of a railroad company, when both looking and listening are unavailing, the question would still remain in this case—where would he stop ? From the information he received from Roberts the deceased knew there was a crossing on one side or the other of a brickyard which was plainly visible, but the crossing might be anywhere within a distance of two hundred yards or more. On one side or the other of a certain object, is very indefinite as to exact location. With the knowledge he had, was the deceased required to stop his car every few yards, if required to stop at all? That would probably have been necessary to avoid the accident because the crossing could not be seen at a distance greater than seventeen feet.
But the deceased was not told that the railroad was very difficult to see, or that it could not be seen more than five or six yards away.
It is true the cut was visible three hundred and fifty yards away, but the deceased was not informed, and did not have to assume that the railroad was in the cut.
It is also true that the telegraph line was along the railroad, and is generally found on the right of way of a railroad company, but in this day a telegraph or telephone line is as frequently seen along the public highway, and it does not, therefore, necessarily indicate the presence of a railroad. »
[5] We cannot assume that the deceased would have seen the track or the train in time to avoid the accident if the automobile had been running at a lower speed than ten miles an horn. The speed at which it was running may have been excessive under the circumstances, but it does not follow that that was the cause of the collision. Manifestly the court cannot declare, as a matter of law, that because he was running his automobile at ten miles an hour, the deceased was guilty of negligence that contributed proximately to his death.
[6-8] If the track could not be seen till the driver was within seventeen feet of the rail, then the front of the automobile was within ten feet or less of the side of the car which extended beyond the rail. Under the conditions then existing it is doubt*157ful, at least, that an automobile running at five miles an hour could have been stopped in time. But whether it could or not was a question for the jury to determine under all the evidence. And in this connection another principle of law should be considered, viz.:
"Where a traveler, without any fault on his part, is suddenly placed in a position of imminent peril at a crossing, the law will not hold him guilty of contributory negligence if he does not select the wisest course, or do the safest thing: all that is required of him in such an emergency is that he act with due care under the circumstances, it being for the jury to determine whether such an emergency existed, and whether the traveler acted with due care.”
If the testimony clearly showed that the deceased, not being able to see or hear the approaching train on account of obstructions and noise, saw the crossing in time to stop his car and by so doing avoid the accident, the court would be required to decide, as a matter of law, whether he was guilty of contributory negligence that proximately contributed to the accident, in not stopping his car. This question was fully argued by counsel on both sides of the case.
But the testimony does not establish such facts; on the contrary some of the testimony shows that the crossing could not be seen in time to avoid the accident by stopping the car.
Some courts, both state and federal, have declared that if, because of obstructions, looking is unavailing, and because of noise made by the automobile, listening is also unavailing, it is the duty of the driver to stop his car before driving upon the tracks at a railroad crossing if he can do it by the exercise of due care, and by so doing avoid the accident. And a distinction respecting this duty has been made between automobiles and other vehicles.
In the case of New York Central & Hudson River R. R. Co. v. Maidment, 168 Fed. 21, 93 C. C. A. 413, 21 L.R. A. (N. S.) 794, the court said:
“With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly *158moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occupants, but also those on the colliding train. * * * Such being the case, the law, b'oth from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as to go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossing accidents will bq minimized. * * *
‘‘The duty of an automobile driver approaching tracks where there is restricted vision to stop, look and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty.”
Elliott on Railroads, Volume 3, Section 1167, states the general rule as follows:
‘ ‘ Ordinary care often requires that the traveler should stop, look and listen for moving trains, from a place where danger can be discerned and precaution taken to avert it. If, for instance, the noise is so great that an approaching train cannot be heard, and the obstructions are such that it cannot be seen,^ then the traveler must come to a halt and look and listen. It cannot be said that one who simply looks and listens where he knows, or should know, such acts are fruitless and unavailing, exercises that degree of care which the law requires. While it cannot be justly affirmed, as we believe, as matter of law, that there is a duty to stop in all cases, yet there are cases where the failure to stop must be deemed such a breach of duty as will defeat a recovery by the plaintiff.”
"The rule is now firmly established in this state, as it is elsewhere,” says Chief Justice Alvey, in Railroad Co. v. Hogeland, 66 Md. 149, 161, 7 Atl. 105, 107 (59 Am. Rep. 159), “that it is negligence per se for any person to attempt to cross tracks of a railroad without first looking and listening for approaching trains; and if the track in both directions is not fully in view in the immediate approach to the point of intersection of the roads, due care would require that the party wishing to cross the railroad track should stop, look, and listen, before attempting to cross. Especially is this required where a party is approaching such crossing in a vehicle, the noise from which may prevent the approach of a train being heard. And if a party neglect these necessary precautions, and receives injury by collision with a passing train, which might have been seen if he had looked, or heard if he had listened, he will be presumed to have contributed, by his own negligence, to the occurrence of the accident.”
[9] While the rule expressed by these authorities has been followed in very many modem cases, it cannot be applied in the case before the court, because the question here is not whether the deceased should have stopped his car before the collision, but whether he could under the circumstances and in the exercise of due care, have stopped it in time to avoid the accident. That, as *159we have before said was necessarily a question for the jury to determine under proper instructions from the court, and not for the court to decide as a matter of law. It was one of the controverted facts or inferences in the case, and was properly submitted to the jury by the trial court in a charge which clearly explained the respective contentions of the parties and the law applicable to the facts. It is only in clear cases where the facts are undisputed and but one reasonable inference can be drawn from them that courts can declare as a matter of law a party guilty of contributory negligence.