(dissenting). I think the court should have directed a verdict in this case for the defendant, on the ground of the plaintiff's own negligence. She, and those who were with her at the time of the accident, testify that the night was very dark; so dark that they had difficulty in finding their team, which had been' hitched to the fence by the roadside, to await the arrival of the excursion train upon which two of the party were to come..
The situation of the railroad and of the highway appears in the following diagram, page 318.
The distance from the depot to the crossing along the railroad is a little over a mile; from St. John's crossing, where it is conceded that the whistle was blown, to the crossing is one-half mile; from Anderson's to the crossing, in a direct line, is over half a mile; from the depot to the first bridge is about three-quarters of a mile. Plaintiff and all the members of her party, including the driver, were entirely familiar with the situation. ' They knew that they were nearing this crossing, which, under all the authorities, is a warning of danger. Trains are liable to approach at any time, and at a high rate of speed. The care to be exercised must be measured by the danger which is imminent. The greater the danger, the greater *319must be the care. The question is what care, under the circumstances, the plaintiff and those with her owed to themselves and to the defendant in approaching the crossing. The claim of the plaintiff is that she and her party were not obliged to stop their team and listen, but that they had- performed their whole duty when they looked back, as they were riding along, to see if they could see signs of an approaching train, and had listened, as well as they could, amid the noise made by their carriage and their two horses. If this constitutes in law proper care and prudence on their part, then the verdict should be sustained; otherwise it should not.
*318
*319The road was gravel, mixed with clay. William Cavanaugh testified that the wagon was making a little rattling on the stones, and, again, that the wheels made a little noise running over the pebbles. Another of plaintiff’s witnesses, Mr. Hilliard, said that it was what was called a “ gravel road,” covered with a gravelly cement; that it packed, and was as hard almost as stone. One of the party, Miss McShannock, testified that the wagon was making no more noise than an ordinary wagon would make. .It is apparent -that two horses, and a carriage containing four passengers, going over such a road, would make considerable noise, even upon a walk. It is moreover apparent that the only listening done was done while they were engaged in ordinary conversation. One of the party — John McShannock — testified:
“ Q. What did you do in the way of listening to hear if there was anything coming?
“A. Well, we all listened. Wasn’t making any great amount of noise talking.”
Miss McShannock testified that they chatted and visited until they got within a little way of the track. Mr. McShannock testified that they were engaged in ordinary conversation, and were sometimes laughing. The only evi*320dence that plaintiff looked or listened comes from one of the party, who says:
“I know she looked around, — moved around on the seat. She was looking that way. I don’t know whether she did or not. I supposed she did from her movement.”
She herself testifies that she remembers nothing that occurred. There is no evidence in the record that they all at one time ceased talking, and listened. It requires but little noise in close proximity to one to prevent hearing another and greater noise at a distance, which would otherwise be distinctly heard. The night was still. There was no intervening object to obstruct the hearing. All the witnesses agree to this. In daylight the train would have been in plain sight of the plaintiff all the way from the village. The little mound or rise of ground was not above the line of vision, and could therefore have formed no obstruction to hearing. If plaintiff could not see, it became her clear duty to stop and listen.
In Brady v. Railroad Co., 81 Mich. 616, the plaintiff was held guilty of negligence in attempting, without stopping and listening, to cross a railroad track so obstructed by intervening objects that he could not see a train approaching from one direction until he was within from 20 to 25 feet of the crossing. In that case plaintiff was alone, and, sitting upon his wagon, was approaching the crossing at a walk, and was looking for a train, which he knew was about due. He testified that he did not hear because the wind was blowing the sound from him. He was held guilty of contributory negligence. It was there said:
“ A person familiar with a railroad crossing, having been frequently over it, and knowing its location, when approaching the same is under the highest possible obligation to observe such precautions as are needful to avoid a collision; and failure so to do is contributory negligence that will prevent recovery for damages, if any accrue;” citing Haas v. Railroad Co., 47 Mich. 401.
*321The highest possible obligation certainly requires the exercise of every reasonable precaution to avoid the danger. It certainly makes no difference in what manner one’s view of a railroad near a crossing is obstructed — whether by trees, or embankments, or by intense darkness. The duty in the one case is no other or different than in the other. If Brady, whose view was obstructed by trees, could not recover, on account of his own negligence in not stopping and listening, neither should plaintiff in this case, whose view was obstructed by intense darkness. If there is any difference in principle between the two cases, I am unable to discover it.
It is proven beyond controversy that, had the plaintiff and her party stopped their team and listened at any point within 10 rods of this crossing, they would have heard the approaching train, and the distressing accident would not have occurred. Under the evidence, when they were five rods from the crossing, the train was from 15 to 20 rods therefrom, and, of course, the distance between them and the train was about five rods less. Besides, it is a matter of common experience and knowledge that one can, upon a still night, with nothing to obstruct the hearing or distract the attention, hear an approaching train in time to avoid collision at a crossing. To hold otherwise would be “to fly in the face” of a fact known to all, and to discredit oru’ own senses. What plaintiff’s witnesses heard, under circumstances as favorable or more unfavorable, certainly plaintiff must be held able to have heard if she had listened. One Fred F. Allen was driving over this same road on his way’ home from the depot at the same time, and heard the train when it was 20 or 25 rods distant. He also testified that he had heard the train on still nights, going over this piece of road, when he was a mile away. This witness had his wife and child *322with him. One Orange Hutchins was living at the Anderson place, marked upon the diagram. He was 30 rods from the train, and after the accident heard the voices at the crossing, half a mile distant. John Srackengast came to Hartford on the same train, and walked home on this same road. When at Anderson’s he heard the train, and heard the whistle on the St. John’s crossing. Joseph DeVries lived close by this crossing, and was therefore in the same direction from the approaching train as was the plaintiff. He heard the train come over-the bridges. E. W. Stickney also came to Hartford to meet this train, went into the. depot and remained awhile, and when he came out he heard the train going across the bridge three-quarters of a mile distant. He was more than twice as far from the first bridge as was the plaintiff when nearing the crossing, and more than three times as far from the second bridge. Henry Thomas was approaching another crossing when this same train came along, and testified that he was driving within 10 or 15 rods of the crossing, when his attention was attracted by the rumbling noise of the train. The above were all witnesses for the plaintiff. For the defense one August Ament, who lived 70 rods north of this crossing, testified that on a still night he could hear trains crossing these bridges. The driver, Cavanaugh, testified that when about four rods from the crossing he started his horses from a walk into a trot, but he thinks that they came to a walk when within about two rods of the crossing, and the first knowledge he had of an approaching train was when the horses stepped upon the plank of the crossing, when he “ noticed the locomotive loom up.”
I think this case is ruled by Brady v. Railroad Co., supra. It is true that in that case Brady knew that a train was about due, but that can make no difference with *323the rule. Railroads have the right to run. trains out of schedule time, and are constantly doing it. It is the duty of every traveler upon a public highway to approach these crossings with the same care and caution as he would if he had the knowledge that a train was due. When one drives, on a dark night, upon them, without stopping to listen, he is, in my judgment, guilty of gross negligence. He not only disregards his duty towards himself, but his legal duty to those who are traveling upon railroads, for he endangers not only his own life, but the lives of others. See Grostick v. Railroad Co., 90 Mich. 594; Apsey v. Railroad Co., 83 Id. 432; Pzolla v. Railroad Co., 54 Id. 273.
Railroad companies and travelers upon the highway are alike bound to the exercise of great care in approaching these dangerous places. The former are liable if they neglect the statutory signals. But this does not justify the latter in assuming that they will hear these signals without stopping to listen when they cannot see. If these signals were given, and the traveler should drive his team upon the crossing without stopping and listening, he would certainly be guilty of negligence, and liable in damages for all the injury which resulted. Neglect of duty by either does not excuse the negligence of the other. When both neglect this plain duty, both are equally guilty, and neither can recover, because each, by the exercise of proper care, could have avoided the accident. The rule as to care must apply to the citizen in his individual as well as in his corporate capacity.
The rule requiring the traveler to stop and listen when he cannot see is reasonable. It imposes no hardship or inconvenience. A stop of a few seconds would, in this instance, have warned them of the approaching train. Upon what principle of reason or justice can plaintiff and her companions be held excusable for not doing so? They *324do not say, nor is it claimed, that they conld not have heard the noise of the train if they had stopped. They only say that they believe that they could have heard the whistle and bell without stopping the noise which they themselves were making, and which was under their own control. The plaintiff and her companions ask the jury to believe their opinions that, notwithstanding that the nois© made by their horses and carriage and their conversation was sufficient to drown the noise of the train until it struck them, yet it was not sufficient to drown the noise of the whistle and bell, and that they would have heard them had they sounded; and this, too, in the face of her other witnesses, that they heard the train at a much greater distance from the track than was she, and that they also saw the lights upon it.
If one must use all his senses, it is his clear duty to put himself in condition to use them; otherwise he has not complied with the law, which requires him not only to listen, but to listen attentively. The duty to stop and listen is supported by the following authorities: Railway Co. v. Strommel, 120 Ind. 35; Railroad Co. v. Beale, 73 Penn. St. 504; Mynning v. Railroad Co., 64 Mich. 93;
Chase v. Railroad Co., 78 Me. 353; Flemming v. Railroad Co., 49 Cal. 253; Henze v. Railway Co., 71 Mo. 636;
Pence v. Railway Co., 63 Iowa, 746; Merkle v. Railroad Co., 49 N. J. Law, 473 (9 Atl. Rep. 680).
Beach on Contributory Negligence says (section 181):
“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. It is also so consonant with right, reason, and the dictates of ordinary prudence, and so much in line with the ordinary care which the average of mankind display in the daily routine of. life, that it should seem to be scarcely dependent upon the authority of decided cases in the law courts. The traveler on the highway must even come to a halt for this *325purpose; but he is not required to get out of his wagon, and go forward on foot, for the purpose of looking, especially when such a course would not have prevented the collision, but would rather have exposed the traveler to the very peril it was designed to avoid.”
In Mynning v. Railroad Co., supra, it is said:
“ Ordinary care would have required him [the traveler] to at least look up and down the tradk before crossing; and, if the night was so dárk as to make it difficult to distinguish a train approaching, then ordinary care would have called upon him to resort to his sense of hearing, and to pause, if need be, and listen, before entering upon the place of danger.”
In Railway Co. v. Adams, 33 Kan. 427, plaintiff, in company with others, was riding along the public highway, and drove upon the track without stopping. In that case, as in this, plaintiff’s testimony was that she and her companions did not see the train. It was there said:
“It is the duty of a traveler upon a highway, about to cross a railroad track, to make a vigilant use of his senses in order to ascertain whether there is a present danger in crossing. * * * It is true that the wind was blowing in nearly an opposite direction from which the train was coming, but several of plaintiff’s witnesses heard the train, and we have no doubt that, if the plaintiff or Adams had given heed and listened, they would have discovered its approach, and could thus have avoided the accident.”
In that case it was proven that the whistle was not sounded 80 rods from the crossing, as required, and the negligence of the defendant was regarded as proven. See, also, Grippen v. Railroad Co., 40 N. Y. 50.
It is said in Chase v. Railroad Co., supra:
“The verdict is clearly wrong. The rule is now firmly established in this state, as well as by courts generally, that it is negligence per se for a person to cross a railroad track without first looking and listening for a coming train. If his view is unobstructed, he may have no occasion to listen; but, if his view is obstructed, then it is his duty to listen, and to listen carefully. And if one' is injured at a *326railroad crossing by a passing train or locomotive, which might have been seen if he had looked, or heard if he had listened, presumptively he is guilty of contributory negligence, and, if this presumption is not repelled, a recovery for the injury cannot be had. * * * This [the obstruction] would make it the traveler’s duty to listen, and to listen carefully and attentively. To do this, if riding in a sleigh, and especially if riding in a sleigh with bells attached, it would*be necessary to stop his horse; for surely he could not listen carefully und effectually without stopping his horse, and thus stilling the noise of his own team.”
This was what was called a “wrecking train.” It had been sent out to repair a fallen bridge near by. After repairing the bridge they returned to Hartford, late in the day, to await orders. It arrived at Hartford at about 7 o’clock, where it awaited for an excursion train to pass. The engine and tender • were built solid, and the tender was about 10 or 12 feet shorter than the ordinary kind of tenders. The cab projected out over the tender. Defendant’s witnesses testified that a red light was hanging from a hook in the center of the back end of the roof of the cab. This is the customary place for hanging a lantern in running backward. There were two white lights on the front of the engine, near the pilot; one light on each side of the caboose, towards the rear end, near the corner; and one on the rear, and near the top. The engine was in front of the train, running backward. Its headlight was burning, and reflected against the end of the car behind it. It was necessary to run the train in this manner, because there was no turn-table between the fallen bridge and the place of the accident. It was not, therefore, negligence per se to run this engine backward. This oftentimes becomes necessary. In Mahlen v. Railway Co., 49 Mich. 585, a passenger train was running without a headlight, and this was excluded by the court from the consideration of the jury. Several of the witnesses for *327the plaintiff saw the lights upon the train, and in the caboose, where there were several men.
Judgment should be reversed, and a new trial ordered.