The opinion of the court was delivered by
Mr. Chiee Justice Simpson.The respondent, while driving a two-horse wagon at a crossing of a highway over the defendant’s railroad track near a place known as Modoc, was seriously injured in person, also in the destruction of the wagon, and great damage was done to the horses, by collision with the trainand the action below was brought to recover compensation for the damages done. The verdict was for ¡$4,000 in favor of the plaintiff. The defendant has appealed upon exceptions to the charge and to modifications of requests to charge. It will not be necessary to state these exceptions in full here; they can be found in the record.
We have read the charge very carefully, and when considered as a whole, it is an admirable presentation of the law of negligence, both generally and with reference to our statute, requiring certain things on the part of railroad companies at crossings; also as to contributory negligence in such cases. We think it was erroneous, however, in one or two particulars, which, though apparently slight, are yet sufficient, in our opinion, to demand a new trial in a case like that before us here.
His honor, in charging the jury as to the degree of contributory negligence by the plaintiff, where the railroad had failed to comply with certain requirements necessary to exempt the company from responsibility, after stating that it should be gross negligence, said: ‘‘That a man might lie down on the track and rely on being warned of the approach of the railroad train by the sounding of the whistle and the ringing of the bell; whereas if *228the law did not enjoin specifically those precautions on the part of the railroad company, the man might be guilty of negligence, and would not be on the lookout when he knew he was approaching a railroad crossing.” This was in substance a charge as matter of law that the kind of negligence which would relieve the company, should be grosser than that indicated in the case stated by. him. In other words, it set up a standard to the jury with which they were to compare the case in hand, and by which they were to determine the degree of grossness which would exempt the company. Now, the statute provides that the contributory negligence necessary to exemption should be gross, but it nowhere specifies a state of facts which would amount to the degree required. Gross negligence is the absence of that kind of care which even the careless and indifferent would be expected to exercise under the existing circumstances. And this much might be charged as matter of law, but whether or not a particular state of facts would show the absence of this kind of care, would be a matter for the jury.
It seems to us that the judge invaded the province of the jury, when he presented to their minds the state of facts mentioned as a standard for their government in determining the question whether or not gross negligence by plaintiff was present in the case before them. Suppose the injury complained of by the plaintiff had happened under a state of facts like those mentioned by the judge, would it not have been error for the judge to have stated to the jury that this did not amount to gross negligence? Would not such a statement have been an invasion of the province of the jury ? WTe think so, Suppose that the testimony below had shown that the plaintiff, after driving upon the track of the railroad, had deliberately stopped and remained thereon, relying upon the ringing of the bell or the sounding of the whistle to warn him of the approach of the train, would the judge have been warranted to charge either that this did or did not amount to gross negligence, such as would inculpate the plaintiff or exculpate the defendant ? Certainly not, because such a charge would have taken from the jury the very question at issue, a question of fact, to wit, whether gross negligence was absent or present. For the same reason we *229think the charge under discussion was erroneous, its tendency being to hamper the jury in its unquestioned right to determine the question at issue for itself.
Again. The defendant requested the judge to charge: “That if the jury found from the evidence that the injury to the plaintiff was the result of an accident, without fault on the part of the railroad company or its servants, then the railroad company is not liable.” This was a correct proposition of law, and the defendant had the right to have it charged as requested, but his honor added the words : “That is, if there was no negligence at all established against the railroad company, the railroad is not liable.” It is not entirely clear what his honor meant by these added words. He may have meant in substance as stated in the request, to wit: that if the company was without fault in causing the injury, the matter was an accident, and no responsibility attached. But he may have meant that it should appear that the company was free from all fault, as well such as might have caused the injury, as from all other; and this may ha.ve misled the jury. At all events, we think the defendant had the right to have his request charged as made. We see no error as imputed in the other exceptions.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, for the reasons stated above, and that the case be remanded.