dissenting.- — -The highway crossing to the northwest was but one thousand one hundred and twenty-one feet from that where the cattle were injured by the train. It was moving at a speed of about forty-five miles an hour, and manifestly one might not rely on the signals sixty rods distant in driving a slowly moving herd of cattle on the crossing. Would he have the right to rely on signals being sounded for the crossing one thousand one hundred and twenty-one feet farther away ? This issue is clearly raised in the pleadings and to this inquiry the majority say no. But for previous decisions of this court there might be ground for this conclusion, on the theory that the duty imposed by statute is due only to persons or animals using or about to make use of the particular crossing. See Reynolds v. Ry., 69 Fed. 808 (16 C. C. A. 435, 29 L. R. A. 695); Railway v. Depew, 40 Ohio St. 121; Pike v. Ry. (C. C.) 39 Fed. 754; Bell v. Ry., 72 Mo. 50; Harty v. Ry., 42 N. Y. 468; O’Donnell v. Ry., 6 R. I. 211; East Tenn., Va. & Ga. Ry. Co. v. Feathers, 10 Lea (Tenn.) 113; Ranson v. Ry., 62 Wis. 178 (22 N. W. 147, 51 Am. Rep. 718). But this court has elected to give a broader construction of the statute, and apparently held that, as a penalty is attached to its violation, any proximate injury flowing therefrom is the subject of redress. See Lonergan v. Ry., 87 Iowa, 755, where the owner of a team, who was engaged in unloading a wagon into a corn crib on the depot grounds, might recover damages resulting from the frightening of said team by a passing engine; it being shown that the crib was near a highway and the engine’s bell not rung. In Ward v. Railway, 97 Iowa, 50, the blowing- of the whistle while the wagon was still on the right of way frightened the team, and the issue whether, had the bell been rung for sixty rods before reaching the crossing, the team would have been out of harm’s way was held for the jury. Why not follow these decisions to their logical conclusions or else overrule them? The ma*95jority lay down tbe rule that those “at or near a crossing, and in such situation with reference to the railroad track that the company owes them some duty of warning, may complain of the breach of the statutory duty as to signals at such crossing.” How near must the person entitled to the protection of the statute be, and in what situation? It seems to me a better construction to say that the statute has for its object the protection of all coming in vicinity of the railroad, and any one lawfully in a situation where the negligent omission to sound the whistle or ring the bell, as exacted by law,, may constitute the direct and proximate cause of the injury to him is entitled to aver such negligent act as a basis of an action. In Ranson v. Railway, 62 Wis. 178 (22 N. W. 147, 51 Am. Rep. 718), the court decided that such signals were for the protection of those driving along a highway parallel with the track. In Kentucky the doctrine prevails that persons in the adjacent streets may rely on the highway signals, Louisville, etc., Ry. Co., v. Penrod, 108 Ky. 172 (56 S. W. 1), and, though no signals.need be given at private crossings, persons approaching or crossing these, are held by several courts to be within the protection of the law requiring signals at public crossings. Cahill v. Railway, 92 Ky. 345 (18 S. W. 2); Sanborn v. Railway, 91 Mich. 538 (52 N. W. 162, 16 L. R. A. 1198). See also, Norton v. Railway, 113 Mass. 366; Wakefield v. Railway, 37 Vt. 330 (86 Am. Dec. 711).
The test, as it seems to me, is whether one is .lawfully in a position in which the failure to observe the statutory duty'might work an injury. If so, the right to complain exists. In my opinion, the issues as to whether there was a failure to give the statutory signals for the crossing-first above, at least, and whether such failure was the proximate cause of the collision, were rightly submitted to the jury.