dissenting: The questions raised by this appeal, and particularly the duty imposed upon the traveler as he approaches a railroad crossing with reference to stopping, are fully considered in Perry v. R. R., at this term, and that opinion is a controlling authority on this appeal.
It is true that in a part of the charge the presiding judge made the issue of contributory negligence depend on the failure of the plaintiff to look and listen, when, although he looked and listened, he was also required to exercise the care of one of ordinary prudence, but he also charged the jury that “Omission of the railroad company to give proper warning does not relieve the traveler from looking and listening; in other words, such omission does not discharge the traveler from exercising due care for his own safety. It is the duty of one approaching a railroad to use ordinary and reasonable care to avoid an accident, and to keep a proper lookout for an approaching train, and if he does not *290do so, but goes on and an injury results from such, failure, he is guilty of contributory' negligence, and under those circumstances it would be your duty to answer the issue ‘Yes.’ ”
Again, after the parts of the charge which are criticised were given and near the conclusion' of the charge, on contributory negligence, he said: “I should charge you, gentlemen, as a qualification of what I have already said, that the failure to look and listen as a traveler goes into the zone of danger is of itself contributory negligence, and would justify you in answering that fifth issue ‘Yes.’ There is a further duty incumbent upon the plaintiff, that is, in respect to conducting himself as a man of ordinary and reasonable prudence, and if this evidence should satisfy you that there was such failure in that respect, and that this failure was the proximate cause of the plaintiff’s injury, then you would answer this issue ‘Yes.’ ”
It will be noted that the judge here imposed upon the plaintiff the duty of conducting himself as a man of ordinary and reasonable prudence, and that this was added as a qualification of what he had already said, and under this qualification the jury could, and doubtless did, consider all of the surrounding circumstances, including the failure of the plaintiff to stop.
Upon careful consideration of the whole record, I think the judgment ought to be affirmed.