(dissenting). West' Fulton street, in the' city of Grand Eapids, runs nearly east and west, and crosses the defendant's road nearly at right angles. Plaintiff's decedent was a street-car driver, and was driving east on this street. About 185 feet west he had crossed the track of the Lake Shore & Michigan Southern Eailway. He crossed that track upon a walk, after which he started his horse upon a trot, and, when within from 25 to 30 feet of the defendant's road, he had “slowed down" to a walk. He continued at this pace until he was upon the defendant's track, when he was struck by some cars, passing over defendant's road to the-north, and was killed. Plaintiff recovered verdict and judgment in the court below, and defendant appeals.
A flagman had been stationed at this crossing for about four years. It is claimed by the plaintiff that this flagman was not at this time at his post of duty, giving the customary signals of an approaching train. Defendant requested the court to direct a verdict for the defendant, on the ground that plaintiff's decedent was guilty of contributory negligence.
It is evident that Mr. Sherwood, when within 25 feet of the center of the crossing, could have seen the cars *395approaching from the south, at a distance of 74 feet from the crossing. When within 16 feet he could have seen them 167 feet distant, and when within 12 feet he could have seen them full 300 feet distant. He did not look in that direction, nor stop his car to look or listen, hut drove steadily along until his horse was upon the track, and the front end of his car projected over the track, when they were struck by the approaching cars. It was down grade at this point of the defendant’s-road. Defendant’s employés were doing what is commonly called a “kick.” The cars were set in motion, and a brakeman left on to stop them. These cars were to he stopped just north of Fulton street, and left until defendant got through with switching at another point. It is evident that the deceased did nothing to inform himself as to whether or not a train was approaching, except it were to look for the flagman and a -signal from him.
The theory of the plaintiff is that the deceased was looking to the flagman’s shanty, within which it is claimed the flagman was at the time, and that he had the right to rely and act upon the absence of the flagman as a notice that no train was approaching, and that it was a question for the jury to determine whether or not he was guilty of contributory negligence. The following is all the testimony given by the plaintiff in regard to the conduct of the deceased: Benjamin Hall testified:
“ From the time I first saw the driver, which was when he was about half-way between the Lake Shore and the Chicago & West Michigan tracks, I watched him all the while until the accident occurred. I couldn’t say as to how he was looking. I don’t know. He continued to walk down. The horse walked all the way until it got on the track. I couldn’t tell whether he was looking to the right or to the left.”
Joseph E. Quigley testified:
“I observed the driver just as he was half-way between *396the lumber office and Pickell’s office, in the coal-yard, about twice the length of a street-car from the railroad track. He was standing facing his horse with his right hand on the brake, and the lines in his left hand, looking straight, — looking, as I should think, at the horse more than anything else, — looking ahead. I cannot state whether or not he looked to the north or south. He was driving at a walk."
Witness further said that when he saw the railroad train he thought it was 138 feet south from Pierce's office, and he should judge that the street-car was then 40 feet from the railroad track.
Byron R. Wheeden testified that he saw the car, but not the driver, when just a little ways west of the West Michigan track, and the hor'se was on a walk.
Frederick E. Parks testified:
“ I observed the driver of the street-car 40 or 50 feet back of the track. He was driving with his right hand on the brake, and his left on the lines. He came down to a walk about 30 feet -from the track, as near as I judged. I saw his head go both ways. He looked straight ahead again from that on. He neither looked to the right nor left till he got pretty close to the track."
David F. Cogswell testified that he saw Sherwood back almost to the Lake Shore crossing; that he was then driving between a trot and a walk; that as he neared the West Michigan crossing he was driving slow; that about 30 feet from the track he drove behind the flagman's station, so that witness could not see him again till he came out from behind the building; and that when he again came in sight he could not say whether he was on a walk or not. ,
David Forbes testified that his attention was ‘ first attracted to the situation by the blowing of the whistle; that he then saw the street-car driver going east; that after he got off the Lake Shore road he started on a *397pretty good jog, but slowed up as he went on, and was very near on a walk when he got to the track.
This testimony affords no foundation for the claim that he was looking specially at the flagman’s station to see if he was within. He could not look within it until he was opposite thereto, and very close to the track.
The deceased’s occupation, in which he had been employed for some time, took him over this track many times every day. He was perfectly familiar with the situation. He knew that switching was liable to be done there at any time, and that it was usually done about the time of day that this accident occurred. Some of the witnesses for the plaintiff, standing a considerable distance away, heard the whistle, saw the approaching train, and recognized the danger which the deceased was approaching. So, also, did some of the witnesses for the defendant, one of whom testifies to halloing to the driver; and warning him of the danger.
Under this state of facts, I am unable to see how rea. onable minds can differ as to the conclusion to be drawn therefrom. A-glance to the south would have disclosed to the deceased the approaching ears in season for him to stop, just as surely as a glance would have disclosed to him the absence of the flagman. The one conclusion, therefore, is that he was taking no precautions whatever in his approach to this most dangerous place. If there had been no flagman stationed at the crossing, he would, under all the authorities, have been guilty of contributory negligence. Therefore the question is clearly presented by this record, did the absence of the flagman release him from taking any precautions to determine whether or not. a train wg,s approaching? He had the lives, safety, and property of others under his charge and control. It is the universal and reasonable rule that in all such places one must always be in the exercise of *398due care, to protect, not only himself, but those who are temporarily committed to his charge. Certainly a rule that would absolve him from exercising at least ordinary precaution is not founded upon reason or upon humanity. "Whatever risks one may see fit to take when he himself is concerned, he certainly should be held to exercise reasonable care when he is taking others, who cannot look out for themselves, into places of danger. Is it a reasonable rule towards the traveling public to hold that a street-car driver may place implicit reliance upon the absence of a flagman, and drive his car with its load of passengers upon the track of a railroad, without any precautions whatever to ascertain whether danger is approaching, and to avoid it? If it is not so far as his passengers are concerned, it certainly is not as to himself. The deceased had no right to transfer the exercise of his own sense of hearing and seeing to another. Even the slightest care on his own part would have avoided the accident, for a glance would have shown him the danger. Being upon a walk, he could, by applying the brake, have stopped his car almost instantly, and within a distance of two or three feet.
The adoption of safety-gates, and the stationing of flagmen at these crossings, are wise additional precautions for the safety of those upon the trains, as well as of those who are crossing upon the streets. But they should not be held to change that reasonable rule requiring care on the part of all who enter upon places of danger. The books furnish many cases where flagmen, and even those in charge of the gates, do not perform their duty", and hence are negligent, which negligence is to be attributed to the railway companies. It would, however, be unreasonable, in my judgment, to permit parties approaching these crossings to assume that these flagmen and gate-keepers will always do their duty. In the *399absence of the flagman, I think it was the duty of the deceased to stop and look and listen before driving upon the track. This rule is clear, certain, and reasonable. The exercise of even slight care on the part of those approaching these dangerous places on our public highways would avoid a great majority of the accidents. .
At the time this accident occurred a bill was pending in the Legislature, and was passed shortly thereafter, requiring street-car drivers to bring their cars to a full stop before going upon these railway crossings, and to make sure that no engine or cars are approaching, and imposing a fine of $25 for neglect to do so.1 This statute, in my judgment, but adopted the reasonable rule of the common law. It is well grounded in reason and a wise public policy. It is the only rule which can afford protection to the traveling public. It is not unjust to the traveler who has the control of his own volition, and the power to so easily inform himself and avoid accident. Were it not a reasonable rule, the Legislature would have no right to impose a penalty for its violation.
But plaintiff's counsel strenuously insist that this was a question for the jury. Courts should be very careful not to encroach upon the province of the jury, but, at the same time, they should be equally careful not to abdicate their own functions to the jury. It is the clear duty of the courts to instruct the jury as to the legal effect of undisputed facts, unless different conclusions can be drawn by reasonable minds from such facts. An act which is per se negligent is not rendered prudent and careful, within the meaning of the law, by the fact that many do it. So the fact tha¡t the street-car drivers were at this time in the habit of driving over this crossing without stopping, or taking other precautions to avoid danger, was incompetent and immaterial, and did not *400relieve the deceased 'from that duty which he owed to himself and to others.
It is but just to the flagman to say that, under the evidence of the defendant, he gave the signal required by law. But, under the evidence of the plaintiff, both he and the deceased were equally guilty of gross negligence. The law imposed a plain duty upon each, which each neglected to perform.
Judgment should be reversed, with costs of this Court, and a new trial ordered.
Act No. 322, Laws of 1889 (3 How. Stat. § 3565c).