By
Belknap, J.,dissenting:
Tbe first instruction, which is fully set forth in the opinion of tbe court, charged tbe jury that if tbe engineer of tbe colliding train could, with safety to tbe passengers and property in bis charge, bave stopped bis train and thereby “bave avoided collision with tbe team, bis failure so to stop amounts to negligence and rendered tbe defendant liable, * * * and such liability attaches even though tbe plaintiffs contributed to tbe injury by their own carelessness or negligence.”
It is a general principle of tbe law of negligence that a plaintiff can not recover damages for injuries to which himself lias contributed. In order, however, to bar a recovery tbe negligence of tbe plaintiff must be tbe proximate cause of tbe injury; it must be negligence occurring at tbe time tbe injury happened. If tbe defendant, after becoming, aware of plaintiffs’ danger, could bave avoided tbe injury by tbe exercise of ordinary care, an action may be sustained, notwithstanding plaintiff may bave been remotely negligent in exposing himself to such danger.
It was therefore held in tbe case of Davies v. Mann, 10 M. & W. 547, tbe leading case upon tbe subject of negligence in a plaintiff which will not disentitle him to recover, that tbe plaintiff could recover .notwithstanding be bad. *290negligently left his donkey to graze upon the highway with its forefeet so fettered as to be unable to get out of the way of passing wagons, and while so situated was killed by the negligent act of defendant in driving his horse and wagon against it. The court based its decision upon the ground that the mere fact of that negligence on the part of the plaintiff in leaving his donkey upon the public highway was no answer to' the action,' unless the donkey’s being there was the immediate cause of the injury; but that, if the immediate cause of the injury was the negligent and too rapid driving of defendant’s servant, plaintiff could recover. “For, although the ass may have been unlawfully there,” said the court, “ still the defendant was bound to'go along the road at such a pace ás would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.”
This subject was considered and the doctrine well stated in B. & O. R. R. Co. v. Trainor, 33 Md. 542, a case in which plaintiff’s intestate was killed in walking upon a railroad track. Said the court: “It is argued that if the deceased walked on the track, and his walking on the track was want of ordinary care, and the accident would not have happened if he had not walked on the track, then such walking was the proximate cause of the accident, and the plaintiff can not recover. * * By ‘proximate cause ’ is intended an act which directly produced, or concurred directly in producing, the injury. By ‘remote cause’ is intended that which may have happened, and yet no injury have occurred, notwithstanding that no injury could have occurred if it had not .happened. No man would ever have been killed on a railway, if he had never gone on or near the track. But if a man does, imprudently and incautiously, go on a railroad track, and is killed or injured by a train of cars, the company is responsible, unless it has used reasonable care and caution to avoid it, provided the circumstances were not such, when the party went on the track, as to threaten direct injury, and provided that *291being on tlie track he did nothing, positive or negative, to contribute to the immediate injury.”
It has accordingly been held that if the owner of cattle suffer them to range at large, and they stray upon a railway track andaré run overby passing cars, such owners may recover damages if the injury could have been avoided by the exercise of ordinary care upon the part of the railroad engineer. In the class to which cases of this nature belong (and many of them are cited in the opinion of the court) it will be observed that the plaintiff has been guilty of some degree of negligence touching his person or property, but such negligence was the remote and not the proximate cause of the injury. In such cases it is well settled that a recovery may be had. An examination of the facts of this case, however, has convinced me that the general doctrine under consideration (and which I can not admit was correctly expressed in the instruction) was inapplicable and misleading.
Here are the facts: Upon the morning of the accident the plaintiffs were driving two horses before an open wagon in a southerly direction along Sierra street, a public street in the town of Eeno, crossed at right angles by defendant’s railroad track. In attempting to cross the track the wagon was struck by a train of cars approaching from the west, and plaintiffs injured in their persons and property, as complained of. Plaintiffs’ theory was that as they approached the crossing their view of the main track and of the colliding train moving upon it was obstructed, not only by buildings along the west line of Sierra street, but by passenger and box ears upon a side track, and quantities of wood unloaded from defendant’s cars. They show that the train approached the crossing where the collision took place upon a descending grade, at a high rate of speed, and claimed that it gave no warning by bell or whistle of its approach.
From these facts I conclude that no question of remote negligence was or could have been presented. If plaintiffs were negligent at all, such negligence arose from their failure to listen for signals of the approaching train, or to have seen the approach of the train, if that were possible, in *292time to have avoided the collision. But if they neglected to exercise ordinary caution and were negligent, their negligence occurred at the time of the accident. Such negligence, if it existed, was the proximate cause of the injury, and would defeat a recovery under all of the authorities. And it is equally well settled that, if the negligence was mutual, and the negligence of each party was the proximate cause of the injury, no action can be sustained.
. In justification of the instruction it is said that some testimony was introduced by defendant tending to show that plaintiffs could have seen' the approaching train in time to have avoided the collision, and, that, if this were so, such testimony at the same time proved that the engineer could have seen the plaintiffs and avoided the accident. If it be conceded that the engineer could have seen plaintiffs in time to have avoided the accident, it must be admitted that plaintiffs could have seen the approach of the train. If they did not see it when they could have seen it, or seeing it assumed the hazard of crossing, they were alike guilty of contributory negligence. Nor was the error in this portion of the charge nullified by the giving of other instructions upon the subject of contributory negligence favorable to appellant. It was as much the duty of the jury to obey the instruction that was incorrect as it was their duty to obey the correct instructions. As the instructions were irreconcilably conflicting, the jury may have been misled.
For these reasons I think the judgment and order of the district court should be reversed.