The only questions presented for our review on this appeal, are raised by the exceptions taken by the defendant's counsel on the refusal of the judge, on the trial, to charge as requested on the propositions or requests hereinafter set forth. The evidence was conflicting, whether the defendant had given the signals required on approaching a crossing, and whether its train was running out of its regular time and at an unusual rate of speed; and there was some testimony tending to show that the deceased was himself chargeable with negligence contributing to his death. It was claimed by the defendant, and it was stated by one of the witnesses, a civil engineer, that at a point ten rods from the crossing, where the collision causing the defendant's death occurred, or at any intermediate point, there was no difficulty *Page 300 in a man of his height, which was five feet eight inches, to see a train coming as far as a bridge nearly a mile distant back from the first mentioned point, and that there was nothing to obstruct the vision; but beyond that point there were some obstructions.
A witness of the plaintiff's, who drove the horse to the wagon in which the deceased was riding, testified that before going on the track of the defendant, and about seven or eight rods from the crossing, he looked around to see if there was an approaching train, and did not see any or hear any signal, and that at the time of the collision he was looking down the track in the opposite direction from that in which the train was coming.
The judge, after referring to the material portions of the testimony, charged the jury as to the relative obligations and duties of the deceased and the defendant, among other things, that they must look at all of the facts and circumstances of the case; that the deceased, although not driving, stood upon the same footing with the driver, and if the jury should find upon the evidence "that after going within eight, ten or twelve rods, they looked up and saw no train and heard none," they were to say "whether it would be ordinary prudence for them to go on the track looking down the road for a train coming in that direction;" and, further, that "men approaching a railroad in plain sight are bound to look to see if any train is coming; but, as was said by a judge in one of these cases, they cannot look both ways at once. If they looked up and down the road, as men of ordinary prudence would do in traveling near a railroad, and were not negligent, the plaintiffs are entitled to recover, if the persons in charge of the railroad were negligent;" and after the conclusion of his charge, he, at the request of the plaintiff's counsel, further charged "that the deceased was not bound to stop and look up and down the road unless there were signals given, and that if they heard no signals, they would have a right to think that there was no train within eighty rods."
No exception was taken to any part of the charge; but *Page 301 after the remark last quoted was made, the counsel of the defendant asked the court to charge the jury, "that if the deceased might, at any point within ten rods of the crossing, have easily seen the approaching train, nearly a mile off, he was bound to survey the space, or, in other words, to look up the road; and if, by omitting so to do, he lost his life, the plaintiffs cannot recover." This was refused, and an exception to this refusal was duly taken, and presents the principal ground relied on for the reversal of the judgment.
There is no valid ground for that exception. As stated in the opinion of the court below, the request virtually did nothing more than ask the judge to repeat what he had already, in substance, said to the jury, in the remarks above quoted, and they state the rule, in respect to the conduct of the plaintiff in such cases, correctly, and cover substantially the very proposition presented in the request.
It is not a question of law, how far or at what particular point a person, approaching a railroad track, shall look up or down, to see if a train is coming, especially when there is a conflict of evidence, whether the train was running on time and at an unusual rate of speed, and whether the requisite signals of its approach were given or not; but he must use his eyes and ears, in view of all the facts and circumstances of the case, as men of ordinary prudence, placed in a similar situation, would do.
The request moreover assumed, that the deceased had not surveyed the space, or had not looked up the road at any point within ten rods of the crossing; or at least, that whether he had done so or not was a matter in dispute. As before stated, the judge had instructed the jury, and as the defendant considers properly, that the deceased and the driver stood upon the same footing, and the latter had expressly stated that he had, within the distance from the crossing designated in the request, made the survey and observation claimed to be necessary and incumbent on him. I find nothing in the case to contradict that statement or to justify the jury in discrediting it. *Page 302
The jury were also instructed, that the statute required that the defendants should ring, or sound a whistle at a point eighty rods from a crossing, and to ring continuously until they reach a crossing, or to sound the whistle at intervals until they pass the crossing; and that if they should find that the defendants were running out of the usual time and prescribed rate of speed, and did not give the proper signals, they were not in the performance of their whole duty; but if they were running upon their ordinary speed and rung the bell continuously for the whole distance, they were guilty of no negligence, and that they would be bound to find a verdict for the defendants; but if they failed to give the signals required by law, they were guilty of negligence.
There was no exception to or complaint of this part of the charge; but the defendants' counsel requested the judge to charge that "it matters not whether the bell was rung the distance of eighty rods, if it was rung far enough from the crossing to warn passers by." He refused to charge further or different from what he had charged on that question, and to such refusal an exception was also taken, and that raises the only other ground relied on for the reversal of the judgment.
That refusal was proper. The legislature have deemed it necessary for the protection of human life and the safety of the public, and to "warn passers," by the ringing of the bell, that it should be rung at a prescribed distance, and the courts are not at liberty to limit it. The adoption of the rule stated in the request would, in effect, nullify the statute.
Some other exceptions are presented in the case; but as they are not insisted on in the defendants' points, I assume that they are abandoned, and I deem it, therefore, sufficient to say in reference to them that I have examined them, and that none of them are, in my opinion, well taken.
It follows that the judgment should be affirmed with costs.
MASON, JAMES, MURRAY, and DANIELS, JJ., concurred with GROVER for reversal. *Page 303
DANIELS, J., also thought there was error in refusing the second request of the defendant.
HUNT, Ch. J., concurred with LOTT, J., for affirmance.
WOODRUFF, J., took no part.
Judgment reversed.