after making the foregoing statement, delivered the following opinion of the court:
[1,2] The facts present a case of the use of a public highway in a suburban section by a street railway car and by a traveler in an automobile, the former not owriing its right of way, so that their rights of travel were equal. There-was no statute or ordinance regulating the speed of either at the crossing, the point where the collision between them occurred. Their duty towards each other in the matter of speed was fixed by the rule at common law. That rule is that their speed should have been reasonable under all.the facts and circumstances surrounding the respective parties. Such rule imposed upon both parties the duty to have their vehicles under such control as they approached the crossing in question that either could stop before reaching the crossing, if to so stop should become necessary to avoid a collision between them upon the crossing or a situation likely to result in such collision. And the duty of prevision or forethought as to the possibility of such a contingency *455arising rested upon both equally, in the light of the facts as to the location of the crossing and the frequency of the passage of street cars and of automobiles over it that might be reasonably expected to occur in view of the accustomed frequency of such use as known to the respective parties.
[3] This is not a case of the use of the crowded streets of a city, nor of an infrequently used highway; but of a highway and of a fixed crossing place on the highway of a street railway thereon, more or less frequently used by the latter and- by travelers in automobiles; but these circumstances could not justify either the defendant street railway company or the plaintiff in approaching such crossing so nearly and in such manner that they were powerless to stop short of the crossing whatever might be the situation they might find confronting them thereat. Such conduct would not be within the exercise of equal rights of travel. It could be justified only by an exclusive right of way. In the absence of such exclusive right such action constituted reckless conduct not “consistent with ordinary prudence.” The minds of reasonable men will not differ on that proposition. Such conduct, therefore, is negligence per se, and, as appears from the statement of facts preceding this opinion, both plaintiff and defendant were guilty of such negligence, and that negligence was the proximate and concurring cause of the accident.
[4, 5] This case does not involve the doctrine of the duty of a traveler “to stop, look and listen” before crossing a railroad. If it were conceded that such duty did not rest upon the plaintiff in the instant case, since he had equal rights of travel over and across the highway in question with the defendant street railway company to operate its street car along such highway; and if the plaintiff had had his automobile under such control as he turned to go over the crossing that he could have stopped before going upon it had the exigency which confronted him seemed to a rea*456sonable man to require it, and had the situation there been, such with respect to the distance away of the street car and of its apparent speed that a reasonable man under all the circumstances would have regarded it as prudent to go upon the crossing, and if the plaintiff had thereupon and for those reasons gone upon the crossing, and acting with reasonable alertness to observe and to become aware of the conditions actually confronting him, although he may not have previously stopped, or looked or listened, such conduct would not have been negligence per se, but a question of fact for the jury But for the plaintiff to voluntarily so previously act as to deprive himself, or at least to think that he had deprived himself, of the power to control his own movement at the moment of going upon a street railway crossing, so that he was powerless to exercise any volition in the matter — so that he was in that way carried upon the crossing — was for him to be guilty of reckless disregard of the dictates of ordinary care and prudence It is a case of one’s voluntary abdication of self-control previously to entering into a situation where the retention, of such control would be the constant care of every reasonably prudent person. It is not a case of lack of care to ascertain existing conditions so that they may serve as a guide to voluntary action, which is involved in the “stop, look and listen” doctrine ; but an abandonment of the power of exercise of voluntary action.
■ The case in judgment is unique in its feature of fact aforesaid, which distinguishes it from the cases in the books involving the “stop, look and listen” doctrine; it becomes unnecessary, therefore, for us to enter upon any discussion of the Virginia cases involving that doctrine, a number of which are cited and relied on by the plaintiff.
[6] The case before us is one of concurrent negligence under the common law rule on the subject, and where the contributory negligence of the plaintiff continued as a con*457tributing proximate cause of the accident up to its occurrence. The facts of the case leave no room for the interposition of the doctrine of the last clear chance, so as to relieve the plaintiff of the consequences of his own negligence. And the recent statute in Virginia (Acts 1916, p. 762, 4 Pollard’s Code, p. 1207), which modifies the common law rule aforesaid as to the effect of contributory negligence, does not apply to such case as that before us. We are, therefore, of opinion that there was no error in the judgment under review, and it must be affirmed.
Affirmed.