The counsel for the defendant company made a vigorous effort to taire this case out of the ruling of this court in Duffy v. The Chicago & Northwestern Railway Co., 32 Wis., 269, and to show that the decision there made was inapplicable to the case at bar. He contended that the decision in that cause was made under an erroneous impression of the facts, and a mistake as to the situation of the railway crossing across the highway at the place where the injury both in that case and in this was sustained. We think, however, that the condition of the crossing, the situation of the highway and railway track, as well as all the surrounding circumstances bearing upon the question whether the company, m constructing its road over the highway, had restored such highway to its former state so as “not materially to interfere with its usefulness,” were quite well understood when that decision was made. And, after a careful examination of the evidence before us, we see no reason for modifying or changing the views expressed in the former case, in regard to the inference a jury might legitimately draw from the manner in which the company constructed its road across the highway at that place. It seems to us that, upon the facts disclosed in the evidence, both in that case and in this, the jury might well find that the crossing was rendered extremely dangerous to persons approaching the railway track along the highway from the south, and that the company had failed to restore the highway to its former usefulness, as required by the statute, and that this was the cause of the injury to the plaintiff. For it is to be remembered that the company was authorized to construct its road across the highway only upon condition that it restored such highway “ to its former state,” so that its use by the public would not be materially interfered with, *685or tbe highway be rendered less safe and convenient to persons and teams passing over it. It is true that a highway crossed by a railway track is rendered somewhat less safe and convenient, from the rapid passing of railroad trains and the natural action of railroads ; but still crossings are sometimes rendered more dangerous than they need be, on account of the manner in which the railroad is constructed. Now it is obvious that the question whether the railroad was constructed with due and proper care so as to render the crossing as little dangerous as possible to the public in the use of the highway, and to avoid accidents at that place, was a pure question of fact, to be determined by the jury in view of the facts and all the surrounding circumstances. It is impossible to affirm as a matter of law, that the company had been guilty of no negligence or want of proper care in the original construction of its road at that crossing, which tended to produce the injury. There certainly was testimony bearing upon the question of negligence, from which the jury might have found that the company did not perform the duty imposed upon it by law in the first instance. The testimony of the witness Slight, which is substantially the same it was in the Duffy case, as to the manner in which the road is constructed at that crossing, is certainly sufficient to carry the case to the jury upon the question of negligence. Besides, there was other testimony affecting the question, namely, the diagram or photograph of the premises which was given in evidence, which tended to show that this crossing was rendered more dangerous by the earth thrown upon the natural bank to the right of the highway, which increased the difficulty of seeing or hearing trains coming down from the north. But, without dwelling upon the evidence, we will merely say upon this point that the jury were warranted in inferring negligence on the part of the company, in the manner in which its road was constructed at this crossing. And furthermore, there was likewise evidence which tended to prove that no bell was rung, nor whistle sounded, on the train which caused the injury, to *686warn persons coming from the south on the highway that a train was approaching. The plaintiff says he heard no bell nor whistle, and he could not see the train on account of the high bank which shut off his view to the north. The counsel for the company suggested that ringing of the bell or sounding of the whistle, on a train approaching from the north, would give no warning and could not be heard, because of the high bank on the right of the highway. Then surely some other means should be employed by the company to inform persons traveling on the highway from the south, that trains were approaching that crossing.
The counsel for the defendant also claims that the evidence shows contributory negligence. But whether the plaintiff approached the track in a reasonably prudent and’cautious manner, or whether he was wanting in care and diligence, were manifestly questions of fact for the jury. The circuit court submitted those questions to the jury upon all the evidence, and the jury must have found that the plaintiff exercised that degree of care and caution in approaching the crossing which the law required. The defendant’s counsel predicates negligence on the fact that the plaintiff approached the crossing with his horse on a “little trot,” as he testified. But the court could not say, as a mere question of law, that such driving, under the circumstances, constituted negligence. It was the duty of the plaintiff to use due care and caution in approaching the crossing, and it was for the jury to say whether he did exercise that degree of diligence which men of ordinary prudence would use under similar circumstances. It was for the jury, and not for the court, to determine whether the plaintiff, in driving his horse along the highway “just on a little trot,” was negligent. This, it seems to us, is too plain to require further remark. The counsel says the plaintiff was driving along in full view of the train without using his eyes or ears, until he was arrested by his horse coming in direct contact with the cars. This is a mistake. The evidence shows that it was im*687possible for him to see the coming train until within a few feet of the track. That fact is established by undisputed evidence. The plaintiff was driving along from the south slowly, with a gentle horse, and expecting, as he says, if a train was coming, that some warning would be given by ringing the bell or sounding the whistle. This expectation was reasonable and natural.
The only other point made in the case is, that a new trial should have been granted because the damages found by the jury were excessive. The verdict was for $350, a sum not disproportionate to the injury sustained.
It results from these views that the judgment of'the circuit court must be affirmed..
By the Court. — Judgment affirmed.