delivered the opinion of the court.
This was an action by Henry Mitchell to recover damages of the railroad company for injuries to the person, resulting from the negligent management of a freight train of the company by *811its servants. There was a verdict for the plaintiff in the action for |400. A motion for a new trial was overruled, when the-defendant in the court below prosecuted this writ of error, and assigns here the following grounds upon which he relies-for a reversal of the judgment.
1. Contradictory instructions to the jury.
2. Erroneous instructions given for the plaintiff.
3. In refusing instructions asked for defendant.
4. In overruling the motion for a new trial.
The real question in this case, from the evidence, was whether the plaintiff ivas guilty of such contributory negligence as to forfeit his right to recover of the company for the neglect of' the servants. Yet this question, as the record now appears, was substantially obscured, and manifestly disregarded by the jury as well as by the court. Mitchell was driving a team across the railroad track, four miles from Crystal Springs, when he was caught and injured by the passenger train. He left the Springs just in advance of the train, and knew it was about to start. When within about 150 yards of the crossing he descended a hill, through a cut, but the train ivas visible at points down this hill. The noise of the moving train was heard for three-fourths of a mile beyond the crossing by several parties.
The fireman testifies that he rang the bell, but this is very likely not true. Mitchell says he listened, and was on the •watch, but did not see the train, nor hear its approach, nor was the bell rung.
It is among the absolute certainties of this case that the noise of the approaching train was perfectly heard, by even casual listeners, from the moment of its leaving the Springs, and that it was visible, at points from the top of the hill, for 150 yards, to the crossing. It only required the most casual observation to have seen and heard the train. Indeed, blindness and deafness, or entire engrossment of the mind, could only have prevented seeing and hearing its advance.
1. The first instruction for the plaintiff directs a verdict for *812¡him, if the agents and servants of defendant were negligent :and wanting in due care.
2. The 2d authorized a verdict for plaintiff if the bell was not rung.
3. The 3d instructed the jury that a verdict for plaintiff would be warranted if there was neglect on the part of the •agents of defendant, and the plaintiff was without negligence on his part.
4. The 4th is a more enlarged statement of the 2d, as to the liability of the company for the neglect to ring the bell.
5. The 5th is substantially a restatement of the 1st, declaring the right of the plaintiff to recover for the neglect of the •defendant.
6. The 6th instructs the jury that though the plaintiff might have been negligent, yet, if the injury might have been •avoided by the use of ordinary care on the part of the servants of defendant, the plaintiff has a right to recover.
It will be seen that the 1st, 2d, 4th, and 5th of these instructions ignore the real point in the case, while the 3d is correct, and the 6th is only in part correct. The last is substantially drawn from S. & R., 23, et seq., but omits important words, material to the precise state of facts at bar.
After the discovery of the danger no possible care, pru•dence, or exertion could have avoided or prevented the injury. Ib., § 36 ; ib., § 485, p. 543.
The instructions given for the defendant were these. The 1st, 2d, and 5th were correctly propounded upon the facts of the case.
The 3d is believed to be unsound. S. &. R., §§ 32, 33, 34, 35, 36, 37.
The 6th ashed for the defendant, and refused, embraced this 'legal rule : “ that it is negligence in a traveler, crossing a rail•road, to do so without exercising his faculties to ascertain if 'there is danger in attempting to cross.”
The proposition thus presented is well settled law, by numerous adjudications, as well as by reason.
*813The instruction was, thus far, precisely applicable to the cáse as involved in the facts, and it was error to refuse it. S. & R., 550, and notes; ib., § 485, p. 543; 1 Redf., § 133, p. 545, and notes; Sedg., 530; 2 Redf., 191, § 177. The rule-applicable to the facts of this case is clearly defined in Shearman. & Redfield, and in Redfield, and other authorities therein cited.
It is too manifest that justice indicates another hearing in. this case to require an analysis of the adjudications.
An opinion upon the evidence is undesirable, and not intended. The precise question for the jury should be more-clearly presented, and for this purpose the judgment will be-reversed. This result is considerably strengthened by the-affidavit of newly discovered evidence, which seems to be full and complete, and to entitle it to favorable consideration.. Though not decisive, the evidence appears to be important,, and not altogether, if at all, cumulative.
Reversed and remanded.