(dissenting). I cannot concur in the conclusion reached by my brethren. The following facts are established by the plaintiff's case:
1. Plaintiff was familiar with the crossing, and had for some time crossed it 16 times a day. Thirty-eight regular trains passed each day, besides switch trains. He knew that one was liable to come at any moment; that there was a slight descent between the gate and the track; and that the street railway track was wet, thus rendering it more difficult Jo stop the car.
2. On reaching a point 41 feet from the track he could see the engine 700 feet away.
3. He approached, this point at a high rate of speed.
4. The rules of the street-railway company, in whose employ plaintiff was, required their employés to see that the way was clear before they crossed. It appears that written instructions were given, but these were not produced. The conductor, who was with the plaintiff at the time of the accident, says: ‘‘The orders were, when we came to that crossing to have the cars slack down, and the conductor run ahead, and see if the way was clear.” It is to be regretted .that these instructions, being in writing, were not produced, so as to remove all doubt as to what they were. Mr. Hazard, the superintendent of the street-railway company, testified upon this point as follows:
“ The order of ■ my company was for the men to see that the way was • clear before they crossed. That was the written order they had; so that, whenever the gate-man gave them the the right of way, by either telling them or directing them to proceed, it was our instructions to rely upon his order. The instructions were, if *451the man at the gate waved them to come on, to go on. At that time there were no instructions to get down and run ahead; but the instructions were to see that the way was clear, and, if he waved them on, to go on. We do not now depend upon anybody but ourselves. Everybody runs ahead.”
On cross-examination he testified as follows:
“There was a written order on the time-table; a timetable put up; and there was an order saying, if the way was clear before attempting to cross— That is, the order that was on the time-table; also on the timetable that was written. There were sometimes — not then, before that time — there were times there that there was no watchman there at all, and during the day sometimes a watchman had to step out for something, and we .see the order was given in case they did not see him there, or he was not there and waved them on, it was the order to see that the way was clear before attempting to cross; that is what was meant. The matter of ■the- watchman beckoning came up. Probably some of the men asked me in case he motioned ahead to go .ahead, and I told them, ‘Why, yes.’”
He further testified that he did not remember of having said to- Mr. Evans to go ahead if the watchman beckoned, nor could he remember any particular one to whom he made such statement. He says: “I know some of them have spoken to me about it. I know I have said so to some of them.” It is very significant, as bearing upon the question of these instructions and the conduct of the plaintiff, that the conductor on this occasion jumped from the car at the usual place for the purpose of running ahead and ascertaining if the track was clear; but the horses were going nearly as fast as he could run. He succeeded in getting nearly abreast of the horses’ heads, when he saw the engine approaching, and hallooed to the driver to stop. The testimony of Mr. Hazard, above quoted, is very indefinite. It is very difficult to determine from it just what he means. It is certain, however, from his testimony, that there was imminent *452danger in crossing this place, and that special instructions were given to their employés for the purpose of avoiding it. Under his own testimony, how could the conductor and driver see if the way was clear before they crossed, except by going sufficiently near the track and looking? Plaintiff says that he received instructions in regard to this crossing from his employer, but does not state what those instructions were.
5. The gates were up, and the gate-man, plaintiff knew, was not there.
6. The accident would have been avoided if the plaintiff had approached the crossing with his horses upon a walk.
7. The only excuse given by plaintiff for not approaching this dangerous place with his horses under control is that Hurley, who did not represent either of the defendants, and was not in their employ, motioned to him to go ahead, and hallooed to him to hurry up. Plaintiff testifies that, if a stranger had waved to him, and said, ‘•'Hurry up,” he would have gone across without stopping or looking. This is precisely what he did do in this case. It is difficult to imagine a case where common prudence required greater care of a street-car driver than in the present one. He had no right to rely upon the signal from a stranger, and if it be a fact that this stranger called him to hurry up, and stood at the gate motioning him forward, this of itself was a warning that there was danger approaching. The safety and lives of passengers were under his control in approaching this most dangerous place, and a proper. regard for the safety of his passengers and of himself required him to approach this-crossing with his horses under control. I think the plaintiff was not only guilty of negligence, but that his negligence approached to recklessness. In my judgment, a common and proper regard for the safety of those *453traveling upon street railways or in the street-cars repudiates a rule which sanctions such blind reliance as plaintiff displayed in this case, and permits him to rush into danger without any actual knowledge of the situation, which he might easily and readily have obtained, and thus avoided the accident. I do not think this case comes within the rule of Richmond v. Railway Co. There the driver was approaching the crossing upon a walk.
Judgment should be affirmed.