delivered the opinion of the court.
Numerous errors are assigned by plaintiff’s counsel on the ground that the court rejected testimony which he offered, and also admitted on the cross-examination of his witnesses testimony which the defendant’s counsel was permitted, over objection and exception, to elicit. If it be conceded that the court’s rulings in these respects were erroneous, the action complained of would not be prejudicial, provided the judgment of nonsuit was properly given. To determine this question, the locus in quo will be particularly described, and the testimony introduced by the plaintiff’s counsel, together with the cross-examination of his witnesses, to which no objection was interposed, will be detailed, from which may be inferred the degree of care exercised by the decedent.
Considering the courses respectively pursued by the train and by Kunz at the time and place of the accident, as they proceeded toward Portland, the defendant’s railroad, within the limits of that city, is constructed northwesterly at the place where it is crossed at grade by the Sandy Road, a public highway' extending southwesterly at the acute angle of 49 degrees and 45 minutes, as disclosed by a blue print received in evidence. At a point in the center of the Sandy Road 90 feet southwesterly from its intersection with the railroad, the Barr Road, another public highway, commences and extends due east, intersecting the railroad at a point 170 feet southeasterly from the Sandy Road crossing. A cattle guard has been constructed across the railroad 350 feet south*195easterly from the Sandy Eoad intersection, and in the same direction, at a point 1,500 feet from such crossing, a whistling post has been set at the side of the railroad. This post indicates the place where the warning signal should be given to announce the approach of a locomotive from the east toward the crossings mentioned. A short distance southeasterly from the whistling post the railway is again interstected by the Wiberg Lane. The railroad is constructed through a cut which commences near the cattle guard and gradually grows deeper as it extends toward the whistling post, the northerly bank attaining at the highest place an altitude of ten or fourteen feet. A hedge has been planted on the south side of the Barr Eoad for some distance east from its intersection with the railroad. A dwelling, occupied at the time of the accident by W. H. Moss, stands on the southerly side of the Sandy Eoad, 405 feet from the crossing, and between this dwelling and the intersection, on the same side of the public road, is situated another house, Which at that time was vacant. From a point on such highway 583 feet northeasterly from the crossing a person can look over the hedge and bank mentioned and see a locomotive coming west as it emerges from the cut at a point 633 feet from the Sandy Eoad crossing, but the smokestack of the engine can be seen farther away. It will thus be seen that, in consequence of the excavation and also of the houses mentioned, an extended view of the railroad east of the crossing cannot be obtained by a person traveling on the Sandy Eoad toward Portland, but when he reaches a point on that highway about fifty feet from the crossing the testimony discloses that he can behold the track almost to the whistling post.
The admitted facts are that on November 21, 1904, about 8 o’clock in the morning of a,fair day, Kunz drove toward Portland a pair of horses hitched to a wagon that was loaded with farm produce, and as he attempted to cross the railway at the Sandy Eoad intersection, a loco*196motive drawing a passenger train which was about on schedule time, and also going in the same direction, collided with him, which resulted in killing the horses, breaking the wagon and harness, scattering the produce, and injuring him so that in a few hours thereafter he died.
1. W. H. Moss, who, it will be remembered, resided near the Sandy Road crossing, testified for the plaintiff that on the morning of the collision he saw Mr. Kunz pass, driving his team at the rate of two, or possibly three miles an hour; that when Kunz was probably within forty or fifty feet from the track, the danger whistle was sounded by the engineer just beyond the cattle guard near the Barr Road; that the train was then running from twenty to thirty miles an hour. In answer to the question, “How much time elápsed between the sounding of this danger whistle right at the cattle guard and the engine hitting the horses?” the witness replied: “Well, it was very quick. Of course, I could not tell you the exact time. All my recollection is I looked around when the locomotive blowed the alarm whistle, I looked around, and saw the train’s momentum slackening, and I looked instantly back and his team was standing square on the crossing, right on the crossing of the track — standing there — and he just made a motion as if he was rushing his horses forward or back, and he was gone that quick (the witness slapping his hands together) .” On cross-examination Mr. Moss was asked, “How soon after Mr. Kunz drove up on that morning was it before you heard the whistle of the train?” and answered: “Well, I heard the whistle of the train just as he passed by my house. I heard them whistling on up above, towards Montavilla when he passed by the house.”
“Q. Did you see or observe him as he continued to drive from your house down the track?
A. Yes, sir; I observed him.
*197Q. Did you notice whether he was looking or listening for the approach of that train?
A. Well, I didn’t see him looking, or notice him do anything in particular at all. * * He was smoking along leisurely, and I didn’t see that he paid any attention at. all. That is what caused me to stop and remain on the platform looking at him, wondering why he wasn’t spurring up his team, or something of that kind, because I heard the whistle coming down along the road above there.
Q.‘ And did you hear them at the whistling post above there ?
A. Well, we didn’t know where it was. I did not.
Q. They were up in that location up there?
A. Yes; I could not tell whether it was the Wiberg Lane, or where it was.
Q. There is not much difference between the Wiberg Lane and the whistling post?
A. No, not at all.
Q. Anyway, it was whistling rapidly coming down through there, was it not?
A. Yes; I heard a whistle two or three times before the accident.
Q. Did you see him turn his head, or not?
A. No.
Q. Now he was walking his team as he went along the road there as he passed your house?
A. Yes, sir.
Q. What is the fact as to whether he got them into a trot or not?
A. That I could not say, because I never seen the horses trotting, to my recollection. They might have trotted a little down toward the bottom of the grade, but not to my recollection. * *
Q. And you saw the engine coming down in full sight, and whistling before he got onto the crossing?
A. Just as I tell you. As he was just going up to the— approaching to the — railroad crossing, I heard the alarm whistle, and of course I turned my head that way instantly, and I turned back instantly as quick as I had looked, and seen the train was so close to him, and then, as I said before, the horses was right on the track.”
*198The plaintiff’s counsel, on redirect examination of the witness, in referring to the first alarm he observed on the morning of the accident, inquired: “How far above your house on the railroad was that whistling that you heard?” and received the following answer: “Well, I should judge it was som,ewheres in the neighborhood of 2% miles or 8 miles.”
“Q. And at the time you heard that whistling above Montavilla, 2y2 miles or so away, whereabouts was Mr. Kunz, and what was he doing?
A. He was driving along the road.
Q. Between your house and the railroad crossing at Sandy?
A. Yes, sir. * *
Q. From the time you heard the whistle up above the Wiberg Lane, which caused you to be apprehensive of a disaster at this point, how long was it, and when was it that you next heard a distinct whistle from the engine, which you can recall?
A. Well, the next whistle that I heard was the alarm whistle which was very shortly after the last whistle.
Q. Where was the position of the engine at that time?
A. Right above the cattle guard at the Barr Road. * *
Q. At this time did you hear the bell on the engine ringing?
A. Not to my recollection.
Q. Now counsel asked you about Mr. Kunz looking or listening. You were standing back of Mr. Kunz as he went down towards the railroad track?
A. Yes, sir.
Q. And you had a view of the back of his head ?
A. Yes, sir.
Q. You could not see his eyes, as to whether they were open or not?
A. No, sir.
Q. State whether or not as Mr. Kunz went past your house and down towards the Sandy Road, whether this Sandy Road crossing was right in front of him for 200 or 300 feet?
A. Why, of course it is in plain view of him there, certainly.
*199Q. Then what is the fact as to whether it was necessary for Mr. Kunz to turn his head in order to see 200 or 300 -feet of that railway in front of him?
A. Well, it wasn’t absolutely necessary for him at that time, but after he passed that house — that little house that obstructed the way, the view — then it would be necessary for him to turn around in that direction to look up the track” (witness illustrating).
Mrs. W. H. Moss, as plaintiff’s witness, testified that she saw Mr. Kunz on the morning of the accident driving slowly down towards the track, and was asked:
“Q. State whether or not you heard the whistle of the train away up above, about Montavilla, at that time?
A. Well, I heard whistles all the way up that way. I don’t know where they were.”
On cross-examination this witness was interrogated as follows:
“Q. You heard the train whistling up above?
A. Yes, sir.
Q. And you saw Mr. Kunz driving for that crossing?
A. Yes, sir.
Q. You noticed that he was not paying a bit of attention to the fact that the train was coming?
A. He didn’t seem like it.”
This witness, on redirect examination, was asked:
“Q. Mrs. Moss, when you say the man was paying no attention, isn’t it a fact that he was driving toward the crossing with his eyes right toward it, and you could see only the back of his head?
A. Well, he didn’t seem to notice that there was a train coming, although we did—
Q. Yes, but the fact — ”
(The defendant’s counsel, interrupting, said: “Let her finish her answer.”) The witness, continuing, said:
“A. But we could hear the train. We could hear it coming, although we never stopped to see it. We didn’t see it, but we knew the train was coming. We could hear the noise.”
The court thereupon inquired: “You mean you could hear the noise of the train?”
*200“A. The roar of the train coming, yes, sir.
Q. Mr. Kunz gave no sign of hearing it himself?
A. I don’t think so. He didn’t seem to.
Q. But Mr. Kunz, as he drove down there, could see the crossing right in front of him, could he not, without turning his head?
A. Yes, sir; he could see the crossing; yes, sir.
Q. And you don’t undertake to say as to whether or not he used, or did not use, his sense of hearing, as he was going down there, do you?
A. No, I don’t know.
Q. That you could not say?
A. No.
Q. When the last, danger whistle was given, just before the train hit him, what, if anything, did Mr. Kunz do ?
A. Well, there is a little slope there before the track, and the horses trotted. I don’t know whether he made the horses trot. Anyway, they trotted on that little slope, and then he got on the track and he tried to make the horses go ahead, and they would not go ahead, and he tried to make them come' back, and they would not go back, and he waved his hand, and then the alarm whistle you know, the danger whistle.
Q. Was that alarm whistle before or after he moved his hands ?
A. No, it was after.
Q. That was after?
A. I think it was after. I could not say for sure.
Q. You are not sure about that?
A. No; I was excited.”
The testimony shows that at the time of his death Mr. Kunz was 41 years old, possessed all his faculties, and was in perfect health and happy; that he was a farmer, and knew how to manage horses; that the team which was killed was gentle, good and true; and that four or five times a week he drove over the Sandy Road to Portland. It is fair to infer that the train runs down grade from the whistling post mentioned to the crossing where Kunz was injured, for O. Pullen, as plaintiff’s witness, testified that after the engineer passes Wiberg *201Lane, going towards Portland, he seems to shut off steam, and the locomotive does not emit such a quantity of smoke as is discharged by it at that place when going in an opposite direction.
The foregoing testimony, and the legitimate inferences that are deducible therefrom, fairly present the manner in which the defendant’s servants ■ operated the engine and train as they approached the crossing on the day of the accident, and also show the attention which Kunz paid to the dangerous instrumentality as he drove his team to the place where the collision occurred.
The acts of the defendant’s servants in permitting an engine operated by them to attain a velocity of twenty or thirty miles an hour across a public road at grade in the City of Portland, where the rate of speed of a locomotive had been limited to six miles an hour, is a circumstance from which negligence might reasonably have been inferred by the jury, and particularly so, when, in consequence of a deep cut and of other obstructions to a view of the train going towards that city, a person on the highway was prevented from seeing a locomotive at any great distance until he reached a point on the public road about fifty feet from the crossing: 23 Am. & Eng. Ency. Law (2 ed.), 760; 4 Cur. Law, 1208; Beck v. Vancouver Ry. Co. 25 Or. 33 (34 Pac. 753); 2 Shearman & Redfield, Neg. (5 ed.) § 467; Correll v. Burlington Ry. Co. 38 Iowa, 120 (18 Am. Rep. 22); Karle v. Kansas City Ry. Co. 55 Mo. 476; Kolb v. St. Louis Trans. Co. 102 Mo. App. 143 (76 S. W. 1050); Crosby v. New York Central Ry. Co. 88 Hun, 196 (34 N. Y. Supp. 714); Gratiot v. Missouri Pac. Ry. Co. 116 Mo. 450 (16 S. W. 384).
2. Though the courts of last resort differ as to the degree .of negligence which they declare will result from a violation of a statute or of a municipal ordinance regulating the rate of speed of railroad locomotives, the adjudications on this subject are quite uniform in holding that, to authorize a recovery for a personal injury, it *202must satisfactorily appear that the hurt was caused by such unlawful speed, without any direct contributory negligence on the part of the person sustaining the harm: 23 Am. & Eng. Ency. Law (2 ed.), 760; Pierce, Railroads, 354; Wood, Railroads (Minor’s Ed.), 1515.
3. A traveler on a public road that intersects a railway at grade, is entitled to use the crossing; but as passengers and freight, when transported by rail, must be carried with speed, a locomotive and the cars which it draws have the right of way to which a person, desiring to cross the track, and having reasonable notice of the near approach of a train, must yield on the ground that in doing so the greatest good will result to the greatest number: Pierce, Railroads, 342; Wood, Railroads (Minor’s Ed.), 1510; Continental Improvement Co. v. Stead, 95 U. S. (5 Otto) 161 (24 L. Ed. 403). If a contrary rule prevailed, the operation of trains would be practically prevented across streets at grade in cities where many persons are constantly passing.
4. This standard of care makes it incumbent upon a traveler, before undertaking to cross a railroad, to look along the track in each direction for an approaching train, and if the view is at all obstructed, he must listen; and a failure to comply with these requirements, without a reasonable excuse, is deemed negligence: Durbin v. O. R. & N. Co. 17 Or. 5 (17 Pac. 5: 11 Am. St. Rep. 778); McBride v. N. P. R. Co. 19 Or. 64 (23 Pac. 814); Hecker v. Oregon R. Co. 40 Or. 6 (66 Pac. 270).
5. It might appear from an examination of the testimony hereinbefore set out that Kunz did not look in either direction along the railroad before attempting to cross it; but, as disclosed by the sworn statements of Mr. and Mrs. Moss, his back was towards them as he drove his team further away, and this being so, a turn of his head to the left, sufficient to overcome the acute angle formed by the county road and the railway, may not have been observed by them. It will be remembered that Moss *203first heard the whistle of the locomotive about two and one half or three miles distant, when the train approached Montavilla, and next heard it near the whistling post, 1,500 feet from the Sandy Road crossing. As Kunz possessed all his faculties, it is right to infer, since he was nearer the track than either Mr. or Mrs. Moss, that he also heard the alarm blasts that had been given, and in the absence of any evidence to the contrary, he was authorized to presume that the defendant’s agents would obey the municipal requirement and not run the train at a greater rate of speed than six miles an hour: Moore v. Chicago Ry. Co. 102 Iowa, 595 (71 N. W. 569); Cleveland Ry. Co. v. Harrington, 131 Ind. 426 (30 N. E. 37). Assuming that the first whistle was given two and one half miles east of the crossing and at a time when the team was less than 405 feet distant therefrom, the train necessarily traveled more than thirty-two times faster than the horses, so that if Kunz had looked easterly along the track when the first opportunity occurred, which presents itself at a point within fifty feet of the intersection, he could not have seen the engine, which then must have been east of the whistling post and beyond a curve in the railway. If the testimony of Mr. Moss is controlling, however, the judgment of nonsuit was properly given, for it appears from his sworn statements that Kunz was about forty or fifty feet from the crossing when the danger whistle was sounded right above the cattle guard, near the Barr Road, and that the speed of the train was immediately slackened. It would thus appear that, while the team traversed this forty or fifty feet to the place of collision, the train passed over 400 or 500 feet of the railway to the same locality, thus making the sworn statements of this witness consistent; that the speed of the team and the train was, respectively, three and thirty miles an hour. Moss admits that the team was standing on the track, and that Kunz made a motion as if he was rushing his horses forward or backward. *204It is impossible to determine the length of time the team stood on the crossing, but that the horses halted at all on the railroad track tends to show that the estimate of the distance relatively traveled by the team and train may have been incorrect. It will be remembered that Mrs. Moss, in answer to the inquiry as to what Kunz did after the danger whistle was sounded, replied that his horses trotted down an incline of the public road towards the crossing. It might, at first, appear from this answer that it corroborated the testimony of her husband to the effect that the team had not reached the railroad when the last blast of the whistle was given. When her entire testimony is considered, however, we think it is evident that she understood the danger whistle, to which her attention was called, to mean the warning given by the engineer at the whistling post near the Wiberg Lane, and not the alarm sounded near the cattle guard, for after answering the inquiry as indicated, she said that when the team refused to start forward or backward across the track, Kunz signaled the engineer before the alarm whistle was sounded. She subsequently qualified that statement by declaring she thought the whistle was given after he waved his hand, and thereafter further restricted her testimony by saying that she was not sure about the matter, because of being excited at the time. It is fairly to be inferred from her sworn statements that Kunz had reached the crossing before he saw the approaching train; that the horses unexpectedly halted at the intersection; and that as he observed the locomotive bearing down on him he waved his hand, whereupon the engineer gave the alarm whistle and began to check the speed of the train. No testimony was introduced at the trial tending to show that more than three whistles were given or heard — the first probably east of Montavilla, the second near the Wiberg Lane, and the third, or danger, signal, near the cattle guard. If the team was standing on the railroad track when the danger signal was given, *205Kunz could not well have been forty or fifty feet from the track at that time, as stated by Mr. Moss.
6. Considering as true all the favorable testimony given by plaintiff’s witnesses, and all reasonable inferences deducible therefrom that tend to support the cause of action, as is required to be done in passing upon a motion for a judgment of nonsuit, we think a fair construction of such evidence leads to the following conclusion: That when the whistle was sounded near the Wiberg Lane, Kunz heard the signal, and presumed, as he had the right to do in the absence of any evidence to the contrary, that the train would not be run at a greater velocity than six miles an hour, which would allow him ample time to cross the track; that he attempted to do so, when his horses unexpectedly balked on the railroad and could neither be urged forward nor forced backward; and that in this situation he saw the train rapidly approaching and signaled the engineer to stop the locomotive. The horses driven by Kunz being gentle, good, and true, as disclosed by the testimony, it is reasonably to be inferred that he could not have supposed that the team would refuse to proceed across the railroad track when the place of danger had been reached. Whether or not the engineer saw the team on the track at such a reasonable distance that he knew the horses had sufficient time to pass over the crossing before the locomotive could reach that place and hence had the right to assume, in the absence of any knowledge to the contrary, that Kunz was in the possession of all his faculties and had. seen or. heard the approaching train, and that the horses were tractable and would proceed across the intersection, is not disclosed by the testimony. If the facts thus supposed were true, and the engineer, seeing the team standing on the track, under the circumstances mentioned, immediately used all available appliances to stop the train, the question as to the measure of such care would nevertheless be for the jury to determine.
*2067. Though the negligence of one party cannot be set up by the other as an excuse for the want of care on the part of the latter (Wood, Railroads, 1587), yet, when, in the trial of a cause instituted to recover damages for a personal injury, it appears from plaintiff's testimony that the harm was caused by the negligence of the agents or servants of a railway company in operating a train, a judgment of nonsuit ought not to be given unless it is manifest that the person hurt was guilty of contributory negligence: 7 Am. & Eng. Ency. Law (2 ed.), 434; Bluedorn v. Missouri Pac. Ry. Co. 108 Mo. 439 (18 S. W. 1103: 32 Am. St. Rep. 615). As this degree of proof is not disclosed by the construction which we have given to the testimony of Mrs. Moss, the judgment is reversed, and a new trial ordered. Reversed.