{dissenting):
I cannot concur in the forgoing opinion for the "following reasons: On the 5th day of September, 1896, an action was brought before a justice of the peace of Harrison county by Lavernia E. Young, administratrix of the estate of E. L. Young, deceased, against the West Virginia & Pitts-burg Railroad Company. The case was submitted to a jury, which rendered a verdict in favor of the plaintiff for one hundred and twenty dollars. The defendent moved to set aside the verdict of the jury and award it a new trial, which motion was overruled, and the defendant excepted, and took a bill of exceptions in which said justice certified all the evidence heard on the trial, and rendered a judgment on said verdict on October 26, 1896, for one hundred and twenty dollars with interest from that day, and fo.r thirty nine dollars and forty five-cents costs. The defendant thereupon applied for and obtained a writ of cer-tiorari to such proceedings and judgment from the circuit court of said county, and upon the hearing of said writ of certiorari the judgment rendered by said justice was affirmed, with costs against the piaintiff in error, and thereupon it applied for and obtained this writ of error.
The facts upon which this action was predicated are, briefly stated, as follows: The husband of the plaintiff was riding in a buggy along the public road in said county of Harrison, which road ran parallel with aud near to defendant’s railroad. He was approaching- a public crossing, and a passenger train on the railroad was also approaching the crossing in the same direction that the bug'gy was going-- The plaintiff’s intestate, in attempting to cross the railroad at said crossing, known as “Stewart’s Crossing,” in front of the locomotive, was struck by the same, and killed. The horse he was driving- was also killed, and the buggy broken. This *223suit was brought to recover damages for the injury to the buggy and for the loss of the horse, and raises the question as to the right of a party to recover damages for injuries done to a horse and buggy-driven by its owner in front of an approaching train at a public crossing. The accident occurred about the middle of the day. In this case, as has been stated, all of the evidence was certified. After the motion to set aside, the verdict was overruled; and this Court has held in the case of Johnson v. Burns, 39 W. Va., 659, (20 S. E. 686, fifth point of syllabus), that under section 9, chapter 131, of the Code, when exception is taken to the action or opinion of the court upon a question involving evidence upon a motion for a new trial or otherwise, all the evidence, whether conflicting or not, must be certified, and this Court must consider all such evidence on both sides, though conflicting; not rejecting any. If, upon such evidence, the finding of the jury plainly appears to be contrary to the evidence, or without sufficient evidence, or plainly against the decided and clear preponderance of evidence, it ought to be set aside, even though conflicting. The same, in substance, was held by this Court in the case of State v. Zeigler, 40 W. Va., 594, (21 S. E. 763). In pursuance of these rulings, let us look to the evidence certified, and ascertain what duty the defendant company owed to this traveler upon the public highway was left unperformed, or of what negligence it has been guilty towards the unfortunate man who lost his life at Stewart’s crossing. No man seems to have seen this decedent as he approached the fatal spot, except George W. Stevens, who was fireman on the train, and he did not see him until he was within two hundred or three hundred feet of the crossing, and says that: “When we came in sight he was coming down towards the crossing in a trot with the horse, and just before he got to it a short distance he stopped and looked back towards the engine, and I supposed he was going to stop right then, and he did check his horse, and then he began to whip his horse and tried to cross ahead of us, and went at a gallop to make the crossing over the railroad.” Were the statutory signals given by blowing the whistle and ringing the bell? Upon this question the following witnesses were examined for the plaintiff, *224viz.: James Lynch, who, when asked if he heard any whistle after the train left Sand Cut, answered: “I don’t think I did. My impression is, I did not.” Lloyd Knig-ht heard no whistle after the train left Sand Cut. Charles Ticknell heard no whistle after the train left Sand Cut. He was with Knig-ht, three hundred yards away from the track. If there was any he did not notice it, and he stated on cross-examination that he could not tell whether they blew for th e crossing. He heard the whistle, and did not know where he did whistle. Now, this was all of the evidence in behalf of plaintiff bearing on the qnestion as to whether the whistle was blown for that crossing or not; while, on the other hand, this evidence was adduced for the defendant on that point: Mr. Whitescarver was a passeng-er on the train when the accident occurred, and testifies as follows: “I heard the whistle at the crossing, before the crossing, and I heard the toot, — short toot,— and the train stopped immediately afterward.” He was then asked, “Was this whistle blown as you were approaching the crossing where the accident happened?” “Yes, sir. They whistled the warning for the crossing-, and then the toot was right, — just quick, and then all over. That was right after it, though.” Emory Brand was asked, “And you say you heard the whistle for Stewart’s crossing?” and answered, “Yes, sir; that was the whistle for Stewart’s crossing.” He was also asked, “How many did you hear?” and replied, “I heard the proper sig-nal for the crossing, which is two long, followed by two short, blasts of the whistle.” William Paugh heard the whistle sounded between Sand Cut and Stewart’s crossing. J. C. Martin states: “The whistle was blown for the crossing directly after we left Sand Cut, for I was standing in the door.” J. L. Ruble states that when he got within forty feet of the whistling post, he blew the whistle. George Stevens, when asked, “What was done in the approach to Stewart’s crossing as to whistling?” stated: “They blew the usual whistle signal for the crossing. No less than six witnessess state that the whistle was blown for the crossing, and they heard it; while the witnesses for the plaintiff state they did not hear it, or did not notice, and Lee Mitchell for the plaintiff, on cross-examination said; *225“Well, I could not tell you whether they blowed for the crossing-. When they got on top of the hill there, I heard the engine shut off, and I do not know where he did whistle, I heard him whistle.”
The testimony in this case affords an apt illustration of the difference between positive and negative evidence, of which Starkie, Ev. (9th Ed.) 867, says: “If one witness were positively to swear that he saw or heard a fact, and another merely to swear that he was present, but did not see or hear it, and the witnesses were equally trustworthy, the general principle would, in ordinary cases, create a preponderance in favor of the affirmative. * * * If, for instance, two persons should remain in the same room for the same period of time, and one of them should swear that during the time he heard a clock in the room strike the hour, and the other should swear that he did not hear the clock strike, it is very possible that the fact might be true, and yet each swear truly. It is not only possible, but probable, that the latter witness, though in the same room, through inattention, might be unconscious of the fact, or being- conscious of it at the time, the recollection afterwards faded from his memory. It follows, therefore, by way of corollary to the last proposition, that in such cases, unless the contrary manifestly appear, the presumption in favor of human veracity operates in support of the affirmative.” In this case six witnesses swore they heard the whistle blow, and five swore they did not hear it. Under the rule just quoted, the preponderance is with the defendant that the whistle was blown. George W. Stevens also states in his testimony that when they approached Stewart’s crossing he rang the bell, and as soon as he saw plaintiff’s decedent, he gave the alarm to the engineer, who applied the brakes; and in these statements he stands uncontradicted. This witness also states that, “when the deceased came in sighthe was coming down towards the crossing in a trot with the horse, and just before he got to it a short distance he stopped and looked back towards the engine, and I supposed he was going to stop right then, and he did check his horse, and then begun to whip his horse, and tried to cross ahead of us;” and, in answer to a question by a juryman as to how far *226plaintiff’s decedent was from the crossing' when he told the engineer to stop, answered, “Maybe 30 or 40 feet, or something like that; maybe not so much as 30 feet.” Now, this is all of the testimony as to the conduct of decedent on this occasion. Some bugg-y tracks are spoken of by one of the witnesses (Lloyd Knight), which showed that the buggy had been backed in towards Stewart’s bars, just opposite the crossing, about twenty-five feet. The impression showed it had been the same track, then carried away by some fast speed. These impressions may have been made by his checking the horse near the crossing, and then whipping it into a gallop, to cross the railroad as stated by witness Stevens.
These are all the facts bearing on the conduct of those in charge of the train and the man in charge of the horse and buggy. Was the damage complained of caused by the negligence of those in charge of the defendant’s train? Or was any omission of duty on their part the proximate cause of the death of the horse or injury to the bug-g-y? The same rules apply, and the same law should control, our conclusion in this case as if the suit had been instituted for damages occasioned by the death of said B. L. Young. The principles governing this case are announced by this Court in the case of Beyel v. Railroad Co., 34 W. Va., 538, (12 S. E. 532). It is there held: First. That “failure to ring a bell or blow a whistle on an engine, as required by the Code, c. 54, s. 61, is neglig-ence for which a railroad company is chargeable; but this does not excuse a traveler on the highway crossing- a railroad track from the exercise of such reasonable care and caution as the law requires to ascertain whether a train is approaching- a crossing. Second. The traveler and the company have mutual and reciprocal duties and obligations in such case, and, though a train has the right of way, the same degree of care and diligence to avoid collision is due from both. Improvement Co. v. Stead, 95 U. S. 161. Third. It is the duty of the traveler on the highway crossing a railroad to look carefully for an approaching train; and, if looking leaves any doubt, or the view is obstructed, he must also listen before attempting to cross, otherwise he will himself be guilty of negligence which will prevent his recov*227ery for any injury received in crossing. Obstructions rendering the view obscure and unreliable call for greater caution on his part.” Shearman & Redfield on the Law of. Negligence (volume 2, § 463), in discussing the relative duties of the traveler and the railroad as to public crossings, as I think, correctly states the law as follows: “The rights of a traveler on the highway at a point where it is crossed at a level by a railroad are subordinate to those of a railroad company so far as to require the traveler to give way to any train which is in sight or hearing, though not in such a sense as to give the company right to block up the hig-hway; for its right is only given for the purpose of travel, not of storing its cars or goods. Both parties are equally bound to use ordinary care; that is, such care as a prudent man would usually take under similar circumstances,” — citing numerous authorities. The sameauthor, section 26, says: “The breach of duty upon which an action is brought must be not only the cause but the proximate cause of the damage to the plaintiff.” Now, there is no evidence in this case to show in any manner that there was any defect in the sight or hearing of said E. L. Young. The accident occurred at midday, and it further appears that he was familiar with the crossing. Witness Stevens says he checked the horse, and looked back, and he thought he was going to stop, but he whipped the horse into a gallop, attempting thus to cross before the train. This action on his part clearly indicates that said Young saw the train and endeavored to cross the track before the train"reached the crossing. Upon this question it was held, in the case of Payne v. Railroad Co., 38 S. W. 308, which was decided by supreme court of Missouri, December 23, 1896, that: “Where a boy 11 years old, having his faculties, attempts to cross a railway track before a train, he is guilty of such contributory negligence as to prevent a recovery for injuries received thereby, though the railroad company was guilty of negligence in running its train at greater rate of speed than was permitted.” In 45 N. E. 911, the case of Chase v. Railroad Co., from the supreme judicial court of Massachusetts, decided January 9,1897, is reported, in which it is held that: “In an action to recover for the death of a person killed at a railroad *228crossing-, the burden is on the plaintiff to show that the deceased exercised reasonable care, and that he was not guilty of contributory negligence. If there is anything- to obstruct the view of the traveler on a highway at a crossing at grade, it is his duty to stop until he can ascertain whether he can cross with safety.” Also that: “A person approaching a railroad crossing at grade, who was driving at a moderate trot, without stopping or slacking his speed, or looking or listening for an approaching train, until the horse was about to cross the track, when he attempted to stop it, and was struck and killed by an engine, held, that he was guilty of such negligence as to prevent recovery for his death.” The court, in its opinion, says: “It is the general rule, in actions for negligence, and it is the rule in a case of a character of the present, that at least three things must concur before a liability arises. Negligence on the part of the defendant, which negligence is the proximate cause of the injury complained of, and that negligence of the person injured does not contribute to the injury,” citing many authorities. In the case of Grows v. Railroad Co., 67 Me. 100, the plaintiff, in his declaration, stated: “That, he being in a narrow] fenced lane, leading to the' crossing over the defendant’s railroad, and distant about 2rods from its track, perceiving defendant’s train 40 rods from, but approaching, the crossing, he being distant 7 rods therefrom, attempted to cross the track before the train should reach it; that his attempt was unsuccessful, and he was injured. Held, on demurrer to the declaration, that on the plaintiff’s statement of facts he was not in law entitled to recover.” So, also, in the case of Railroad Co. v. Bell, 70 Ill. 103 (fourth point of syllabus), it was held: “It is the duty of persons about to cross a railroad to look about them, and sec if there is danger; not to go recklessly upon the road; and to take the proper precautions themselves to avoid accidents at such places. If a party rushes into danger, which, by ordinary care, he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may receive.”
In the case we are considering the evidence clearly shows that the defendant performed its duty by blow*229ing tbe whittle and ringing the bell-at the proper place and time; that every effort was made, by applying the brakes, to stop the train, when said Young was discovered approaching the crossing; but that he, instead of stopping his horse, and waiting until the train was gone, drove onto the crossing in front of the train, and thereby caused the injury complained of; and, considering these facts in the light of the authorities above quoted, the judgment complained of, in my opinion, should be reversed, and judgment should be rendered for the defendant.
Affirmed.