*213Concurring Opinion.
Ross, J.In this case it is undisputed that if the decedent had looked toward the east, when she was at any point within one hundred and sixty feet from the track she could have seen the approaching train. Whether she did or did not look can make no difference in determining the question as to whether or not she was guilty of contributory negligence. It is recognized to be so well settled in this State as to admit of no doubt that when a traveler crossing a railroad track is injured by a collision with a passing train, the fault is prima facie his own, and the burden rests upon him, when he seeks to recover damages from the railroad company on account of such injuries, to prove affirmatively that his own negligence did not contribute to the bringing about of such injuries. Shirk v. Wabash R. R. Co., 14 Ind. App. 126; Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25; Indianapolis, etc., R. W. Co. v. Greene, Admx., 106 Ind. 279; Indiana, etc., R. W. Co. v. Hammock, 113 Ind. 1; Chicago, etc., R. W. Co. v. Hedges, Admx., 118 Ind. 5; Smith v. Wabash R. R. Co., 141 Ind. 92; Cincinnati, etc., R. R. Co. v. Duncan, 143 Ind. 524; Engree v. Ohio, etc., R. W. Co., 142 Ind. 618; Oleson v. Lake Shore, etc., R. W. Co., 143 Ind. 405 (32 L. R. A. 149).
In the case of Indiana, etc., R. W. Co. v. Hammock, supra, Mitchell, O. J., says: “There is no presumption that a person injured on a highway and railroad crossing, with which he was familiar, was himself free from negligence. Prima facie, the fault was his own, and it is, therefore, essential that the proof should show that the plaintiff was himself in the exercise of due care.” See also Cincinnati, etc., R. W. Co. v. Butler, 103 Ind. 31; Louisville, etc., R. W. *214Co. v. Stommel, 126 Ind. 35; Cincinnati, etc., R. W. Co. v. Howard, 124 Ind. 280 (8 L. R. A. 593).
When all' the facts and circumstances, attending and surrounding the injury, and the manner in which it occurred are shown, the question arises, whether or not the injured party’s own negligence in any manner contributed to his injury.
When, as in many cases, the traveler has an unobstructed view of the railroad, while going toward the crossing, so that he can see a train approaching, it is settled that at such crossings the quantum of care which it is his duty to exercise, is not to be left to'and determined by a jury, but that it is fixed by law. He must not only look and listen, but he must assure himself that no train is in close proximity, and that he may cross in safety. That is his duty when the view is open and unobstructed.
The following from Beach Cont. Neg., p. 191, section 63, is quoted as a correct enunciation of the law in Ohio, etc., R. W. Co. v. Hill, Admx., 117 Ind. 56 (60), viz: “‘When one approaches a point upon the highway, where a railway track is crossed on the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise, in so doing, what the law regards ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption. The requirements of the law, moreover, proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term ‘ordinary care under the circumstances’ shall mean in these cases. In the progress of the law in this behalf, the question of care at railway crossings, as affecting the traveler, is no *215longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as matter of law. In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track. A multitude of decisions of all the courts enforce this reasonable rule. * * * If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed, in case he is injured by collision, either that he did not look, or, if he did look, that he did not heed what he saw. Such conduct is held negligence per se,’ ” and in the cases of Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, and Smith v. Wabash R. R. Co., 141 Ind. 92, that court again makes the same quotation approvingly.
But what is his duty when the view is more or less obstructed and the opportunity for exercising the senses of sight and hearing to a greater or less degree interfered with? Is the traveler, because of obstructions or other causes which interfere with the free use of his senses, excused from exercising as great care as the law exacts when there are no obstructions or other cause to interfere with the use of such senses? Not at all, but on the contrary, the law requires that the greater the danger, the greater the degree of care to be exercised to avoid being injured. In other words, the care shown to have been exercised, which will relieve him from contributory negligence, must be commensurate with the danger encountered. So when the danger is shown, that establishes the degree of care which the law exacts from the traveler, for care and diligence necessarily vary according to the exigencies which require vigilance and attention, but it must always be equal to the > occasion on which it is to be used. But by what power or authority is this duty *216imposed, and how is it defined? Does the law impose it, or is it a question to be submitted to a jury, and by it to be defined and applied according to the facts in each particular case? If it is a question for the jury, they then determine not only whether or not the traveler is under any obligation whatever to either look or listen, but also whether his conduct was sufficient to dissolve the obligation. If the view is unobstructed, he must not only look, but he must see that which is within the range of his vision. And.if there is nothing to prevent his hearing, he must not only listen, but must hear that which could have been heard by attentive listening. When the.law imposes upon the traveler the duty of looking and listening, it assumes that if he looks he will see that which can be seen, and if he listens he will hear that which can be heard by listening attentively. It is for this reason that the courts, in many instances, have been compelled to say,that the injured party either did not look and listen or did not heed what he saw or heard.
In the case of Chicago, etc., R. W. Co. v. Hedges, Admx., supra, the court says: “The law presumes that one having the ordinary sense of sight must have seen that which was within the range of his vision, if he gave attention and looked, and if he saw the train approaching and pursued his way nowithstanding, he is to be regarded as taking the risk upon himself.”
And in Mann v. Belt R. R., etc., Co., 128 Ind. 138, Coffey, J., speaking for the court, says: “The courts cannot close their eyes to matters of general notoriety, and to matters of every-day observation.
“We must know that a train of cars passing over iron or steel rails at a speed of thirty miles an hour does not do so without noise. We must know, too, that where a person possessing good eyesight, located within one hundred feet of the track, has an unob*217structed view of such track for a distance of near one.half mile, he cannot fail to see an approaching train before it reaches him, if he looks attentively, and that if he is possessed of ordinary hearing he could not fail to hear it when listening attentively, if running at the speed of thirty miles an hour.”
And in the case of Lake Erie, etc., R. R. Co. v. Stick, 143 Ind. 449, the court, after setting out the facts showing that a train approaching, when several hundred feet away from the crossing, could have been seen and heard by a traveler approaching the track when six or eight feet distant therefrom, and notwithstanding the- fact that the appellee testified that he both looked and listened before going upon the track, and neither saw nor heard the approaching train, holds that he was guilty of contributory negligence, saying: “The appellee must have and did hear it, but must have been so absorbed in mental reverie or abstraction that he did not realize that he heard it; and, with an unobstructed view as he had, he must have seen it in time to escape if he looked, as he says he did, but that the same causes prevented him from realizing that he did not see it.”
Where the view is unobstructed and nothing intervenes to prevent the free use of the senses of sight and hearing, the danger is comparatively small, but the greater the obstructions, and the more causes there are to prevent one hearing, the greater the danger; hence as the danger increases the duty of the traveler increases, and the observance by him of the precautions which would excuse him when the danger is slight, will not suffice to relieve him of contributory negligence where the danger is great. True, the books abound with cases where the courts say that the traveler must exercise such care as an ordinarily prudent person, having .respect for his own safety, would ex*218ercise under similar circumstances; that there is no rule of law defining what care an ordinarily prudent person would exercise under given circumstances, hence the question as to whether or not the injured person exercised such care as an ordinarily prudent person should exercise under the circumstances, must be left- to the jury. In effect, that is to say, that the jury determine, first, the degree of care which an ordinarily prudent person should exercise, and then, second, whether the facts proven show that the injured person exercised that degree of care. The court, therefore, does not and cannot know what the standard established by the jury is, whether greater or less than that defined by the law, where the view is open and unobstructed. In fact, if the jury is to settle the care to be exercised, it may determine that because the view is obstructed and the state of the wind or weather prevents the traveler hearing, he is under no obligation to do anything, before going upon the track. Of course, if looking or listening will avail nothing, a jury may conclude that there was nothing else he could do, hence he would not be guilty of contributory negligence, if, proceeding without any precaution whatever, he was injured.
The most prudent men are not always exempt from carelessness, and, when actually negligent, the law attaches the same consequences to their conduct as to similar conduct in those who are habitually careless. Cincinnati, etc., R. W. Co. v. Grames, 8 Ind. App. 112; Belfountaine R. W. Co. v. Hunter, Admr., 33 Ind. 335; Pennsylvania Co. v. Marion, 104 Ind. 239.
To say to a jury: “You must fix the standard for reasonable, prudent and cautious men, under the circumstances of the case, taking into consideration your knowledge of men and what those who are reasonable, prudent, and cautious, would have done, and *219from this standard determine whether the injured party was negligent,” without defining the standard adopted by the law, and explaining to them that the standard which they were to fix must be greater than that fixed by the law as applicable in cases where the danger was less, would leave it open to them to fix a standard in one case requiring a very high degree of care and in another, upon identically the same state of facts, to impose no duty at all. Juries, such as ordinarily, at least, constitute a panel, are very apt to be influenced by what is suggested by the accident, and assume that the injured party would not voluntarily, at least, place himself in the way of danger; but that, on the contrary, it would be natural for him to try to avoid it. They seldom get beyond this point, either in fixing the standard or in. determining whether or not the conduct of the party injured came up to and fulfilled the requirements of such standard. While I am cognizant of the fact that some of the ablest jurists of the age have said that the jury must fix'the standard of care, making it such as an ordinarily prudent person would be likely to' exercise under similar circumstances, I must differ from them, because I believe that the risk or danger is settled, the duty is fixed by the law and is not to be enlarged or curtailed according to the whims or caprice of a jury.
While the degree of care to be exercised by a traveler approaching a railroad track is defined and fixed, the only exceptions which warrant a recovery when he has failed to exercise the degree of care thus fixed and defined, are in cases where the railroad company has, by some affirmative act, induced him to disregard it, and yet in a number of cases has the rule been ignored and the exception upheld, when, in fact, there was nothing upon which to base the exception, except the negligence of the injured party himself. If *220exceptions are to be allowed, it is only a matter of time until the rule itself will be wiped out and the exceptions will constitute the rule. I think the rule a just and equitable one, and that it imposes upon the traveler no greater or more onerous duties than every man should observe for his own protection. “The rule itself is so valuable, is sustained by such abundant authority, and, moreover, is founded upon such excellent common-sense reasons, that we will neither depart from it, nor allow it to be undermined by exceptions,” says the court in Greenwood v. Philadelphia, etc., R. R. Co., 124 Pa. St. 572.
The cases of the Baltimore, etc., R. R. Co. v. Walborn, Admr., 127 Ind. 142; Terre Haute, etc., R. R. Co. v. Brunker, 128 Ind. 542; Chicago, etc., R. R. Co. v. Spilker, 134 Ind. 380; Pittsburg, etc., R. W. Co. v. Burton, Admx., 139 Ind. 357; Grand Rapids, etc., R. R. Co. v. Cox, 8 Ind. App. 29; and Chicago, etc., R. R. Co. v. Butler, 10 Ind. App. 244, are exceptions, created by the courts, to the general rule, and some of them at least are apparently in conflict with the earlier decisions of the Supreme Court, but are inferentially, if not indirectly, overruled by the later cases of that court. Smith v. Wabash R. R. Co., supra; Cincinnati, etc., R. R. Co. v. Duncan, supra; Engree v. Ohio, etc., R. R. Co., supra; and Lake Erie, etc., R. R. Co. v. Stick, supra.
It appears, from the facts in the case before us, either that the deceased did not look when she could and should have done so, or else she did not heed what she saw. In my opinion the right of recovery in this case is settled by the decision in the case of Indianapolis, etc., R. W. v. Wilson, 134 Ind. 95. There the injured party was an infant, and not held to the strict accountability that attaches to an *221adult, and yet the court held him guilty ©f contributory negligence in not seeing and avoiding a train of cars, when it appeared that in approaching the crossing where he was struck, the servants of the railroad company had detached the engine and several cars from the main part of the train and run such engine and cars in advance of the train, allowing the train of cars to follow without being under the charge or control of any person; that he observed the engine1 and cars cross the highway, and then started to cross without “knowing or observing, and not having time or opportunity to know or observe, that a portion of said train had been” detached and was following.
Filed May 6, 1896. Filed May 6, 1896.For these reasons, I concur in the opinion of Davis, J., that the judgment be reversed.