dissenting: In the first part of the fourth instruction given for the plaintiff, the court charged upon the issue of contributory negligence that the traveler “must look and listen when approaching a crossing, and his failure to look and listen when such warning (by the railroad) is given is negligence, and if such failure should cause his death, no recovery could be had for it.” The court then added: “But *223when the train does not give timely and reasonable warning of its coming, it is not contributory negligence in a traveler to go upon the track without looking and listening for the approach of a train, if he exercises that prudence and care which a 'prudent man would under the circumstances, and if the injury resulting is attributable to the negligence of the railroad company in failing to give the signals, such failure would be deemed the proximate cause of the injury, if the jury should find from the evidence that with the proper warning the traveler would not have attempted to cross.” This does not withdraw from the jury the duty of the traveler to look and listen, but simply leaves it to the jury to find, upon the facts of this case, whether the proximate cause of the injury was the failure of the deceased to look and listen, or was it attributable to the failure of the engineer to give a warning signal.
Every instruction must be taken in connection with the context and the evidence in the case. Here, in this fourth instruction, the judge expressly told-,the jury that one “must look and listen when approaching a crossing;” and further, he charged them in response to the fourth request of the defendant, that if the defendant failed to give a signal on approaching the crossing, this did not relieve the plaintiff’s intestate of his duty to exercise the senses of sight and hearing and to take reasonable precautions to avoid accidents,” and that if he did so fail to use his senses, thé jury should find the issue of contributory negligence “yes,” notwithstanding the negligence of the defendant in failing to give the signal. This is elaborated and more fully given in response to the defendant’s prayers 5, 6, 7, 8, 9, 10 and 14, which are as clear and as strong as the defendant’s counsel asked or could ask, and in substance that instruction was given to the jury no less than ten times in the charge or in the prayers given at the request of the defendant.
It is clear not only that the judge did not eliminate the *224duty of the intestate to look and listen, but that there being occasions when the failure to look and listen could not contribute to the injury, as when if he had looked he could not have seen, and if he had listened he could not have heard, the judge in the above selected paragraph of the plaintiff’s fourth prayer was simply submitting to the jury (as he should have done) the question of proximate cause, whether on the facts of this case, if the deceased did not look and listen it contributed to the injury, or was such injury caused by the defendant’s failure to sound the whistle or ring the bell.
The evidence was that the county road crossed the railroad where the cut was 18 to 20 feet deep. Necessarily there was a bluff which would cut off the view of the approaching train from a wagon in the road. The engineer testified that he was running 40 to 50 miles an hour. He further said: “When I was 100 yards away I could not see the mules or the county road,” and that he was only 40 or 50 yards away when he did see them. Of course if the engineer, sitting several feet above the track, could not see the mules when 100 yards away and did not see them till 40 or 50 yards away, the deceased who was in the .wagon, down in the road and several feet behind the mules, could not see the engine that far off by reason of the same bluff. The court, therefore, properly told the jury that if the train did not give timely warning “it is not contributory negligence in a traveler to go upon the track without looking and listening, if he exercises that prudence and care which a prudent man would exercise under the circumstances.'” He had told them that prudence required the traveler ordinarily to look and listen, but in this case, upon the engineer’s evidence, if the intestate had looked he could not have seen, and upon the weight of the evidence, if he had listened he could not have heard, for eleven witnesses who were in position to hear it, testified that no signal was given, and the court was favorable to the defendant in requiring that the intestate should in all cases “exercise that prudence *225and. care which a prudent man would exercise under the circumstances.
It is true a photograph is sent up in the record by the defendant, and the photographer, witness for defendant, testified that at -the point where it was taken the train could be seen 1,000 feet away. But on cross-examination he says: “I did mot take a picture * * * from a point where a man would be crossing the track of the road. I was 13 feet from the center of the railroad track in the outer edge of the public road.” Why was it taken there and not in the.public road where the intestate must have been sitting in his wagon when the heads of his mules were at the track ? The engineer’s testimony and a glance at the photograph will show the reason. In the road, where the intestate was, the bluff hid him so that even his mules could not be seen by the engineer 100 yards away, and hence he could not see the engineer, whereas on the outer edge of the public road, the angle of vision not being cut off by the bluff, would perhaps permit a view down the railroad track for 1,000 feet. The evidence shows that the public road was 18 feet wide. The deceased, sitting on the right hand side of the wagon, could not see through the bluff, but the photographer, on the left hand outer edge of that road, could see down the track.
The charge was as favorable as possible to the defendant. In Mayes v. Railroad, 119 N. C., 770, it is said: “It is not negligence in a traveler to cross a track unless he disregards a warning in crossing which he might have seen or heard with proper care.” In Russell v. Railroad, 118 N. C., 1109, it is said: “The plaintiff had a right to expect that the company would not omit to give the usual alarm, and was not culpable for acting upon that supposition.”
“It is the duty of a railroad company to give reasonable and proper warning for the protection of travelers on the highway, when its trains are approaching a highway crossing, and a traveler has a right to presume that this duty will he *226performed and reasonable warning given.” 8 Am. & Eng. Enc. (2 Ed.), 408, citing Railroad v. Cody, 166 U. S., 606, and numerous other cases. Where the view is obstructed “the duty of the company to give notice is more imperative than at other places along its route.” Ibid., and cases there cited in note 4. The omission to do this “is negligence per se," ibid., 416; and “the question whether the failure to ring a bell or sound a whistle was the cause of the injury sustained is a question of fact for the determination of the jury.” Ibid., 417, and numerous cases cited in note 1. This was the identical question which the judge submitted to the jury in the part of the fourth instruction given for the plaintiff, which is here objected to. “Failure to stop, look and listen is not contributory negligence per se," and is not negligence at all when the traveler could not have seen or heard. 7 Am. & Eng. Enc. (2 Ed.), 432 and 433, with citation of numerous authorities.
The judge in substance told the jury that it was the duty of the defendant to ring the-bell or sound the whistle for the crossing, but that if the engineer failed to do so, this would not absolve the traveler from the duty of looking and listening, and if the intestate failed to do so it would be contributory negligence, unless they found that in fact the failure to look and listen could not contribute to the injury. That was correct, certainly in this case where, if the intestate had looked, the bluff would have-prevented his seeing, and if he had listened he could not have heard a signal which it was testified by many was not given. The court further charged that in all cases one crossing a railroad track is required to use “that prudence and care which a prudent man would exercise under the circumstances,” and there was evidence that the intestate did stop his wagon, and presumably he looked and listened. Only one witness, a colored man, testified that he did not stop, and five respectable men testified that such witness was not there on that occasion, and neither *227be (nor any other) testified that the deceased did not look and listen. The judge left the question of proximate cause fairly to the jury and I see no error of which the defendant has any cause to complain. Hinkle v. Railroad, 109 N. C., 473; Alexander v. Railroad, 112 N. C., 720; Russell v. Railroad, 118 N. C., 1108; Mayes v. Railroad, 119 N. C., 758; Mesic v. Railroad, 120 N. C., 491; Norton v. Railroad, 122 N. C., 935. Hinkle's, Russell’s and Mayes’ cases all say that the traveler is not guilty of contributory negligence if his going upon the track is induced by the negligence of the defendant.
But suppose the jury believed Plintoff, he does not undertake to say that the intestate did not look and listen, but says that the wagon did not slacken its speed or stop. If true, was the failure to stop sufficient for the jury to reasonably infer that the intestate did not use due care and that such failure to stop was the proximate cause of his death, when no warning was given ? His Honor certainly could not properly have instructed the jury to return an affirmative answer to the issue of contributory negligence.
But the defendant assumes that the intestate failed to look when at a distance of 13 feet from the track, and insists that such failure was the proximate cause of the injury. This contention of the defendant was clearly stated by His Honor in giving the defendant’s instructions, and was found against the defendant. The evidence does not show that the intestate, when 13 feet from the track, could have seen the train. The evidence does not show that when the intestate was 13 feet from the track the train was 1,000 feet from the crossing. The evidence does not show that the intestate failed to look, and the evidence does not show that after the intestate could have seen the train the accident could have been avoided. On the contrary, the evidence shows that when the intestate could have seen up the track, his mules must have been partly on the track, and that at that time the train was in 50 yards *228of the crossing running nearly a mile a minute. T|he evidence does not show what the mules did, but they escaped, while the wagon was demolished, the engine striking its front wheels. An occupant of a wagon is about 10 feet behind the heads of his team, so that when he is within 10 feet or even within 13 feet of the center of the track, his mules are in the act of crossing it. It would seem unreasonable to hold that, as matter of law, a traveler, whose team is in the act of crossing with a fast train already within 50 yards of him, when he could first see it, even if no excitement seized him or his mules in this sudden danger, had the opportunity thereafter and could be reasonably expected to avoid a collision.
In view of the great increase of the country in population and wealth, with the consequent vast increase of trafile, both upon the public roads which are the inheritance of the people and also upon the railroads operated by corporations which are under very slight regulation by the public, the number of people killed or maimed at the crossing of public roads on the same grade by railroads running at a speed formerly unknown, now mount up into many thousands annually in this country. Throughout Europe, except perhaps in Russia, no railroad is permitted to cross a public road on the same grade, but must either pass under or over the public road. This avoids the vast and deplorable loss of life which occurs in this country at such crossings, and similar statutes will doubtless be enacted at no distant day in this country, when such cases as the present will cease to come before the courts. In New York, years ago, such statute was enacted, applying, however, only to crossings to be laid out thereafter. In Connecticut, a statute was enacted forbidding any grade crossing whatever, and requiring all railroads within a specified time to change all crossings, so that their tracks should pass under or over the public roads. This act was held constitutional by the U. S. Supreme Court, affirming the Supreme Court of *229Connecticut, even as to existing crossings (Railroad v. Bristol, 151 U. S., 556), on the ground that grade crossings were a nienace to public safety, and it was further held that the imposition of the entire expense of such change of grade upon the railroad company was not in violation of the Constitution of the United States. This has been cited and followed in R. R. v. Kentucky, 161 U. S., 696; R. R. v. Defiance, 167 U. S., 99; Wheeler v. R. R., 178 U. S., 324; R. R. v. McKeon, 189 U. S., 509; R. R. v. Wheeler, 72 Conn., 488; Norwood v. R. R., 161 Mass., 265; Chicago v. Jackson, 196 Ill., 502. A due regard for the safety of life and limb of our citizens who may have occasion to use the public roads, will doubtless cause the statutes in this respect, enacted in New York and Connecticut, to be followed and enacted in other States, or at least will cause enactments .conferring power upon the Corporation Commission to compel railroad companies to abolish grade crossings, or erect gates provided with keeper, wherever the public safety and the volume of travel on the public roads may require it. In Germany, the wheel of the engine at a prescribed distance completes an electric circuit, and automatically rings a gong annunciator in the station. The same device applied to grade crossings would save thousands of lives annually in this country. If it were not cheaper for the railroads to pay the damages assessed for the lives and limbs destroyed at such crossings, their own pecuniary interests would require them to make such changes of grade at all public crossings, especially at those most used, without awaiting the legislation that shall require them to do so.