*258The opinion of the court was delivered by
Smith, J.:The only negligence alleged against the railroad company was the failure to sound the whistle upon approaching the crossing. The defense was contributory negligence on the part of the deceased. The failure of the engineer to sound the whistle was proved and is uncontroverted, and the only question of law that remains to be decided is whether the evidence of the plaintiff affirmatively shows that the déceased was guilty. of contributory negligence in crossing or attempting to cross the railroad-track. If so, the ruling of the court sustaining the demurrer to plaintiff’s evidence was right; otherwise the ruling was wrong.
The well-recognized rule is that it is the duty of a person about to cross a railroad-track where. trains may be passing to look and listen, for his own protection, and that a failure to do so is negligence. Also, that in case of the death of a person in crossing a railroad-track, from contact with a train, if there be no •eye-witness and no evidence to the contrary, it will be presumed that the person looked and listened for an approaching train before venturing on the crossing. (C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; Texas & Pacific Railway Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469, 64 L. R. A. 344.) The plaintiff in error contends that this rule should be applied to this case, inasmuch as the only eye-witness testified that while he himself looked down the track when he and the deceased were about 155 feet from the crossing he did not know whether or not the deceased looked at any time before they were on the crossing. The defendant, however, contends, and the court, below in sustaining the demurrer must have held, that the positive and uncontradicted proof in this case rebuts this presumption. The evidence of Doctor Hammond, who was the only eye-witness, shows that from *259a point 155 feet from the crossing, and every step of the way from that point to the crossing, there was nothing to prevent the deceased from seeing the approaching train if he had looked down the track in a westerly direction. The evidence also shows that Bressler was a man about forty-two years of age, and in the possession of all his faculties; yet he rode in a juggy behind a team which walked from that point' to and upon the railroad-crossing and discovered the approach of the train only when the horses were upon the track. As was said in Tomlinson v. Chicago, M. & St. P. Ry. Co., 134 Fed. 233, 67 C. C. A. 218:
“The evidence was so clear as to warrant no other conclusion than that the deceased, by the use of his senses, could have learned of the approach of the train before he reached the crossing; and the necessary inference is that he either did not look, or, having looked, he endeavored to cross in front of it. He was, therefore, as matter of law, guilty of contributory negligence.” (Page 234.)
Indeed, the evidence and the circumstances in this jase seem necessarily to exclude the idea that the dejeased had seen and was endeavoring to cross the track m front of the; train. The team moved upon the crossing in a walk, and the conduct of the deceased in ex-daiming, “Doc, jump,” and by jumping from the buggy, limself when otherwise he would have been carried safely over, would certainly place such inference at variance with the actual facts, and it cannot be inlulged.
If, however, the. presumption of due diligence on the >art of the deceased should' obtain, as claimed by the daintiff, it must, under the facts in this case, also be jresumed that he saw what must have 'been apparent o any person in his position, viz., that a train was apiroaching and that it was extremely hazardous to go ipon the crossing at the rate of speed he and his comtanion were traveling. And this, in law, would be conributory negligence. While the failure of the engineer *260to sound the whistle was negligence, it was, at most, only one of the proximate causes of the injury. The whistle, if sounded, could have apprised the deceased of nothing which the exercise of due care on his part would not have apprised him, viz., the approach of the train and the danger of attempting to cross in front of it. (Rollins v. Chicago, M. & St. P. Ry. Co. [C. C. A.], 189 Fed. 639.) The judgment of the district court is affirmed.
All the Justices concurring.