From the record in this case, it appears the collision took place at a point where a public highway crosses appellant’s railroad track, and that appellee was, at the time, driving a two-horse team and wagon across their-railroad track on the public highway, when their cars and engines were running on the road, struck appellee’s team and killed his horses. The parties were each lawfully and of right traveling their several roads. They had a right to exercise this privilege, in any manner and at all times, without either interfering with or depriving the other of their legal privileges. In the exercise of these rights, each was bound to use the same amount of care and prudence to avoid a collision, and to avoid either the giving or receiving an injury. Where there is equal right there must bo equal obligation. Neither has the right, because the other has omitted to use care to cease the use of efforts on his part to avoid occasioning injury to the other. That would be to permit the party guilty of the first negligence to be wantonly killed by the other party. The parties must be held, on both sides, to the use of every reasonable effort to avoid such a result; and in default of such efforts, must be held responsible for the consequences of injuries inflicted upon others or received by themselves, when they could have prevented them.
Railroad companies, in operating their cars, must be held, in crossing public highways and thoroughfares, to so regulate the speed of tlieii’ trains, and to give such signals to persons passing, that all may be apprised of the danger of crossing the railroad track. And they should also keep a lookout, so as to see, and, as far as possible, prevent injury to others exercising their legal rights. A failure in any of these duties, on their part, should render them liable for injuries inflicted, and for wrongs resulting from its omission. But, while the road is held to this degree of care, it is equally the duty of a person crossing the track of a railroad to be on his guard, and to see that he is not incurring danger to himself and to his property. He has no right to shut his eyes and close his ears to the danger he is liable to incur at such a place; and if he does, then he must be responsible for the consequences of his carelessness, unless the other party has been guilty of misconduct still more gross and willful.
In this case there was some apparent conflict in the evidence as to the care of the appellant at the time, some of the witnesses swearing that they did not hear the signal of the bell or whistle, or see the head-light of the engine; but a number of witnesses testify positively to the fact that the bell was rung for the usual distance, and that the head-light was burning; and the fireman, who was then engaged in ringing the bell, was also on the lookout at the time the accident occurred. The weight of evidence on this point would seem to be clearly in favor of appellant. Appellee’s witnesses only negatively testify that they did not see the light nor hear the bell or whistle, while the appellant’s witnesses state positively that the bell was rung and the light was burning. The rule is familiar, that positive evidence of this character is entitled to more weight than negative.
But there is no conflict of evidence that the appellee was sitting down in the bottom of the wagon, with his back turned in the direction from which the cars were approaching, so as to prevent his seeing them. It also satisfactorily appears, that by looking in the direction of the cars, he could have seen them for a considerable distance, and for a sufficient length of time to have avoided all damage; and that the sound of the apjmoaching train could be heard for a distance sufficient to give ample time to have prevented this collision. He must have known that he-was crossing a railroad track; he knew that such a crossing was attended with danger, and having placed himself in a position that prevented him from being able to see the approach of the cars, and having tied up his ears in a manner that must have prevented his hearing the approach of the trains, is certainly gross negligence. And before ho could recover, he should prove a greater degree of negligence on the part of the appellant. This did not appear, from the evidence in the case. While the road might not have used every precaution that they should, yet the appellee was certainly guilty of the greater degree of negligence, and therefore is not entitled to recover. And in support of this doctrine, see Galena and Chicago Railroad Company v. Jacobs, decided at the present term of this court.
The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.