(dissenting) . The gist of this case was as to whether the highway was an insular road. I concur in the conclusion that there was no error by the trial court on that point. I am unable to concur in the view that there were reversible errors in the instructions given to the jury on the questions of the defendant’s negligence and plaintiff’s contributory negligence.
The instructions given must, of course, be considered in the light of the evidence with which the court was dealing, not merely as abstract propositions of law. There was no contention on the defendant’s part that it maintained chains, gates, or other protective devices at this crossing. There was the usual dispute as to whether the bell and whistle were properly spunded. There was no dispute that the plaintiff was caught on the crossing by the train and injured. The case, therefore, came to this: That the accident was due either to the defendant’s negligence in failing to maintain protective devices or to give the required signals,' one or both, or to the plaintiff’s own negligence. There was no third alternative. Cf. Union Pacific Railway v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434; *881Grand Trunk v. Ives, 144 U. S. 408, 420, 12 S. Ct. 679, 36 L. Ed. 485.
On the question of defendant’s negligence the court instructed the jury that, if they found the highway to be an insular public road and that there were no chains, gates, etc., or if they found that there was failure to blow the whistle or ring the bell, the defendant was guilty of negligence. Under the circumstances, these instructions were correct; for, as already stated, the jury could not have found the accident due to anything else than the lack of proper protective devices or of the required signals, or to the plaintiff’s own negligence. In this regard, the case of Union Pacific Railway v. McDonald, supra, is exactly in point. In that ease a boy was injured by slipping into a burning slack pit, whieh the law required the defendant to fenee. The trial court instructed the jury that it was the legal duty of the defendant to fenee, and that its omission to do so was negligence, and that, the defendant being guilty of negligence, the next question was whether the plaintiff was guilty of contributory negligence. That question, also, on the undisputed facts in that ease, the court determined, as matter of law, in favor of • the company, and therefore told the jury that there was nothing for them except ithe question of damages. On a careful review of the authorities, the Supreme Court unanimously affirmed this judgment. The ease is therefore an authority, binding on us, for the exact reverse of the proposition in support of whieh my brethren cite it. I can find no difference in this regard between the local law and general law. If there is any difference, I think the local rule as to highway accidents should prevail.
If, in the ease at bar, there had been evidence warranting the jury in finding that the defendant’s negligence in not providing chains, gates, etc., or in not giving the signal, was not the proximate cause of the plaintiff’s injury, provided he was not found lacking due care, then the jury might have been misdirected. But the defendant’s failure in these regards was negligence per se, and the jury were properly so instructed; and there was no occasion, on the evidence in this case, to charge them on any other aspects of negligence, except as to the plaintiff’s contributory negligence, 'for there was no contention that the accident was or could have been due to any other cause, except the defendant’s negligence (if the highway was found, as'it properly was, to be an insular highway), or to the plaintiff’s contributory negligence.
On the question of contributory negligence, the plaintiff and not the defendant had reason to complain: for the court put the burden of proving due care upon the plaintiff, whereas in the federal courts the rule has always been the other way.
But, in spite of this rule, the court, against the plaintiff’s objection, instructed the jury as follows:
“If you believe from the evidence that plaintiff was well acquainted with the crossing and the road over whieh he was traveling, and that he knew that there were no gates, chains, or watchman maintained by the defendant company at such crossing, then it was the duty of plaintiff upon approaching such crossing to take all the precautions that a reasonably prudent man would or should have taken, by looking and listening for the approach of any train that might be moving at the time on the track or near such crossing; and if the crossing was a dangerous one, and the trains could not be seen from the road on which plaintiff was traveling by reason of obstructions to the view, plaintiff should have stopped the automobile which he was driving, and assured himself absolutely that no train was approaching before he attempted to cross the track. Tou are further instructed that such looking, listening, or stopping must have been in such a manner as to inform plaintiff positively whether a train was coming or not.”
And again, at the end of the charge, after a quotation from an opinion of Mr. Justice Aldrey of the Supreme Court of. Porto Rico, to the same general effect, in Dominguez v. Porto Rico Ry., Light & Power Co., 19 Porto Rico, 1034, the court said:
“If you should find from the evidence that he was in control of the car himself, and knew that the railroad track was there, and that he carelessly and without proper reflection and thought approached that crossing, without taking pains to stop, look, and listen, and observe whether or not a train was coming, and that it was his act that caused the accident, then it would be your duty to find for the defendant; but if you think he exercised all reasonable care, if you find he controlled that automobile himself, and did stop, and did look, and did listen, and did use all the precautions which a reasonably prudent man should take, and in spite of that fact that, when he got on the track, there through the neg-*882ligenee of the railroad company, by reason of the failure to give proper warning, that the accident was caused by them alone, then be is entitled to such damages as you think will recompense him, as in the prayer of his. complaint,” etc.
To repeat, it was the plaintiff, and hot the defendant, that had cause to complain of the instructions given on the question of contributory negligence. .
I cannot agree that surviving victims of negligent accidents, as, well as 'killed victims, are not entitled to be indulged in the presumption of the natural instinct of self-preservation. The eases cited do not, as I read them, support so illogical a proposition.
The defendant also complains that the jury were instructed in substance that the defendant, according to its schedule, ran only two regular trains over this portion of its railroad, one at 9 a. m. and one at 3 p. m., and that the train that caused the injury to the plaintiff was one which was not scheduled as a regular train, but was a special train; that the defendant was required to use “the utmost diligence and use all means to protect travelers on the road over such crossing.”
Standing alone, as an abstract proposition and without regard to the circumstances of this case, this instruction was wrong; but under the circumstances of this case it was not reversible error, for, as already pointed out, this accident was due either to the defendant’s negligence in failing to maintain the statutory protective devices at a grade crossing on an insular highway, failure to give the required signals, or both, or it was due to the plaintiff’s own negligence. There was, therefore, no difference between the requirement of reasonable care and the utmost diligence. There was nothing in the case on which a jury could have found that utmost diligence would have required more of the defendant than the statute required of it.
Nor does this instruction have any tendency to lighten the burden which the court erroneously put upon the plaintiff to show affirmatively that he was not guilty of contributory negligence. The jury were not instructed that the plaintiff’s duty in that regard was made lighter by reason of a right to rely upon any diligence or care possible to be shown by the defendant, beyond the requirement for gates, protective devices, or signals.
Finally, the instruction held error was in effect reversed or modified by a later instruction, given against the plaintiff’s exception, as follows:.
“Yon are instructed that the defendant company as a public carrier had the right to run special trains at any time its interest or the convenience of the public may require, that defendant is under no obligation to the public to give notice in advance of the running of such special trains, and that persons approaching' the tracks of the railroad company are not justified in failing to take the same precautions to avoid injury that they must reasonably do in ease of regular trains.”
With such directions, the jury could not have been led astray on this minor point.
The charge was, as already indicated, in general effect a defendant’s charge. The jury, .nevertheless, returned a verdict for the plaintiff. Dealing with this record, as the statute (Judicial Code, § 269, as amended by Act Feb. 26, 1919, 40 Stat. 1181 [Comp. St. Ann. Supp. 1919, § 1246]) requires us to do, I find no error prejudicial to defendant. I think the judgment below should be affirmed.