was properly refused. It requires too great a degree of care and circumspection; it makes no allowance for the ordinary imperfections of humanity; it requires absolute perfection of attention to surroundings, while the mind is concentrated upon a particular duty. So high a degree of caution the law does not enjoin; it requires only the exercise of reasonable and ordinary care." "Greenleaf v. Railroad Co., 33 Iowa, 57. The supreme court of the United States, referring to an instruction similar to that contended for by the defendant, said: "It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental diversion of the attention, to which the most prudent and careful are sometimes subject, and, assuming, in effect, that the duty of avoiding a collision lies wholly, or nearly so, on one side." Improvement Co. v. Stead, 95 U. S. 168. See Railway Co. v. Adams, 33 Kan. 427; s. c., 19 Am. & Eng. R. R. Cas. 376.

But where the undisputed facts show that this rule has been disregarded, and no precaution has been taken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submitted to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side track, and looked to see if an engine was behind them, and saw none. And this, with the fact that the train was moving backward, are questions to go to the jury, with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather, and the character of the train, and he thought it to be on the side track. It was said in Bernard v. Railroad Co., 1 Abb. Ct. App. 131: "If there is any conflict in the evidence going to establish any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved, this, involving, as it generally must, more or less conjecture, can only be settled by a jury." In Weber v. Railroad Co., 58 N. Y. 451, the court said: "It is true that the vigilance and caution of the traveller must be proportioned to the known danger of the injury; but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self-preservation, ordinarily, will lead to the employment of all the precaution which the situation suggests to an individual, and whether they are such as would occur to, or be adopted by, men of

ordinary care and prudence, must necessarily, in most cases, be left to the jury. The intelligence and judgment, as well as the experience, of twelve men, must settle a question of that character as one of fact, and not of law." Railway Co. v. Richardson, 25 Kan. 391; s. c., 6 Am. & Eng. R. R. Cas. 96; Railway Co. v. Young, 19 Kan. 488; Railway Co. v. Pointer, 14 Kan. 37; Railroad Co. v. Webber, 76 Pa. St. 157; Carr v. Railroad Co., 60 N. Y. 633; Thurbur v. Railroad Co., Id. 331; Loucks v. Railroad Co., 19 Am. & Eng. R. R. Cas. 305.

GENCE WILL NOT

EKY.

While this question is a close one, yet we do not feel called upon to disturb the judgment, where it is so conclusively shown that the employees of the defendant in charge of the train were SLIGHT NEGLI SO grossly negligent in its management. Although PREVENT RECOV the plaintiff may have been somewhat negligent, yet it is not clearly shown that it contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south, he might with reasonable safety have crossed before it reached the crossing, provided the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is great, and that of the other but slight, notwithstanding the slight negligence, the party may recover. Railroad Co. v. Houts, 12 Kan. 328; Railway Co. v. Pointer, 14 Kan. 37; Sawyer v. Sauer, 10 Kan. 466. Under all the circumstances of this case we do not find that the plaintiff was guilty of such contributory negligence as to prevent his recovery.

It is therefore recommended that the judgment of the court below be affirmed.

BY THE COURT.-It is so ordered; all the justices concurring.

Duty of Travellers to Stop, Look, and Listen, Before Crossing Railroad Track. This subject has been discussed in the following cases and notes thereto, heretofore published in this series: Pennsylvania R. Co. v. Fortney, 1 Am. & Eng. R. R. Cas. 128; Wright v. Boston, etc., R. Co., 2 Ib. 121; Philadelphia, etc., R. Co. v. Boyer, 2 Ib. 172; Shaper v. St. Paul, etc., R. Co., 2 Ib. 185; Zimmerman v. Hannibal, etc., R. Co., 2 Ib. 191; Chicago, etc., R. Co. v. Dimmick, 2 Ib. 201; Henze v. St. Louis, etc., R. Co., 2 Ib. 212; Pennsylvania R. Co. v. Righter, 2 Ib. 220; Schofield v. Chicago, etc., R. Co., 2 Ib. 642; Pure v. St. Louis, etc., R. Co., 6 Ib. 27; Pennsylvania R. Co. v. Rudel, 6 Ib. 30; Turner v. Hannibal, etc., R. Co., 6 Ib. 38; Baughman v. Shenango, etc., R. Co., 6 Ib. 51; Terre Haute, etc., R. Co. v. Clark, 6 Ib. 84; Kelly v. St. Paul, etc., R. Co., 6 Ib. 93; Shaw v. Jewett, 6 Ib. 111; Plummer v. Eastern R. Co., 6 Ib. 165; Tucker v. Duncan, 6 Ib. 617; Indianapolis, etc., R. Co. v. McLin, 8 Ib. 237; Pittsburgh, etc., R. Co., v. Martin, 8 Ib. 253; Haas v. Grand Rapids, etc., R. Co., 8 Ib. 268; Strong v. Placerville, etc., R. Co., 8 Ib. 273; Faber v. St. Paul, etc., R. Co., 8 Ib. 277; Houston, etc. R. Co. v. Waller, 8 Ib. 431; Smedes v. Brooklyn, etc., R. Co., 8 Ib. 445; Connelly v. N. Y. Cent., etc., R. Co., 8 Ib. 459; Kelly . Hannibal, etc., R. Co., 13 Ib. 638; Johnson v. Louisville, etc., R. Co., 13 Ib. 623; Peck v. New York, etc., R. Co., 14 Ib. 633; Davey v. London, etc., R.

Co., 19 Ib. 640; Tully v. Fitchburg R. Co. 14 Ib. 682; Mahlen v. Lake Shore, etc., R. Co., 14 Ib. 687; Galveston, etc., R. Co., v. Bracken, 14 Ib. 691; Schaeffer v. Chicago, etc., R. Co., 14 Ib. 696; Reading, etc., R. Co. v. Ritchie, 19 Ib. 267; Hutchinson v. St. Paul, etc., R. Co., 19 Ib. 283; Bowen v. Chicago, etc., R. Co., 19 Ib. 301; Pennsylvania R. Co. v. State, 19 Ib. 326; Schofield . Chicago, etc. R. Co., 19 Ib. 353; Union Pac. R. Co. v. Adams, 19 Ib. 376; Myamming v. Detroit, etc., R. Co., 23 Ib. 317; Reasan v. Maine Cent. R. Co., 23 Ib. 245; Ivens v. Cincinnati R. Co. 23 Ib. 258; Long I. R. Co. v. Greany, 24 Ib. 473; Berry v. Pennsylvania R. Co,, 26 Ib. 396; Baltimore, etc., R. Co. v. Owings, 28 Ib. 639; Note to Wakelin v. London, etc., R. Co., 29 Ib. 425.

MATTI

v.

CHICAGO AND WEST MICHIGAN R. Co.

(Advance Case, Michigan. March 2, 1888.)

A railroad track is in itself notice and warning of danger, and it is the duty of persons approaching a crossing to look and listen before venturing upon it.

The doctrine of comparative negligence does not prevail in the State of Michigan.

Where it is admitted that, had the engineer and fireman obeyed the statute and sounded the signals, the plaintiff's decedent would not have been killed, it is equally as probable or certain that if deceased had been exercising due care, and had looked out for the train at any time within 40 rods of the track, with the location of which he was familiar, the accident would not have taken place there can be no recovery.

The mere neglect to give signals at a country crossing is not such gross negligence as to destroy the ordinary legal effect of contributory negligence upon the plaintiff's case.

ERROR to circuit court, Berrien county. A. J. Smith, Judge. Action by Mary Matti, administratrix of Adolph Matti, against the Chicago & West Michigan R. Co. for damages for negligently killing one Adolph Matti at a railroad crossing. To the judgment entered on a verdict for defendant, plaintiff brings error.

A. H. Potter for appellant.

Smith, Nims, Hoyt and Erwin for appellee.

MORSE, J.-The plaintiff brought suit for damages resulting from the death of her intestate, who was killed upon a highway crossing known as the "Plee crossing," in the township of Lincoln, Berrien county. The declaration alleged negligence in the defendant's failure to give any notice or warning of the approach

FACTS.

of its train to such crossing, either by sounding a whistle, ringing a bell, or otherwise. The evidence of the witnesses for the plain

tiff was that none of them heard any whistle sounded, or bell rung, until the train struck the cattle-guard at the crossing. The accident was witnessed by James G. Collins, William Singer, Frank Crane, and Anna Matti, a daughter of deceased, and also by some of the employees of the defendant. The testimony of plaintiff's witnesses disclosed the circumstances of the killing of Mr. Matti, as follows: The crossing is a mile or so north of the village of Stevensville. Eighty rods north of this crossing is another, known as the "Miller crossing:" The highway at the Plee crossing runs nearly north and south. The railroad track crosses the highway diagonally, running north-east and south-west. Above five rods north of the crossing, and on the east side of the highway, lying between the road and the railroad, is a cemetery, running about 35 rods along the highway. At its base at the north end of the cemetery is about 17 rods in width. At the south end it comes nearly to a point. It was filled quite thickly with oak grubs or young oak trees, most of them from 10 to 12 feet high, and bushy, The accident took place in the winter time, January 2, 1885, and some of the leaves had fallen from the trees. On the day in question a passenger train, going south, was due about 4 o'clock in the afternoon. This train did not stop at Stevensville, and was one of the fastest on the road. It was behind time about 50 minutes, and was running at the rate of 45 miles an hour. None of the plaintiff's witnesses heard any whistle sounded or bell rung at Miller's crossing, or at the Plee crossing, until the cattle-guard was reached. Matti was going south, driving one horse, at a pretty fair gait, attached to a light wagon. He was sitting on a platform of boards, reaching from bolster to bolster of his wagon. His face was to the west, his back to the approaching train, and his feet hanging off on the west side of the platform. It was very cold, and the ground was frozen hard. The train made but little noise. in running. His head was down, and he did not look up while any one saw him until the feet of his horse were on the iron of the track. He looked up at the ringing of the bell at the cattleguard. He whipped up his horse, but it was too late. The engine struck the wagon between the wheels, about in the center, and carried it with the train, until it stopped, about 80 rods from the crossing. The deceased was a German, a small fruit farmer, and was familiar with the situation of the crossing and its relation to the railroad track, having lived for about three years within a mile of the crossing, and passing over it almost daily. Were it not for the trees in the cemetery the approaching train could have been seen plainly all the way from above the Miller crossing, and all the witnesses did see it, and all but one testified that they could see it easily enough when it was passing behind the cemetery, the trees not being thick enough to obscure the view. Matti was seen by some of the witnesses as he drove from the north end of the

cemetery to the track. He did not look up or change his position until his horse struck the railroad track. On the part of the defence the engine and fireman testified that the whistle was blown for the Plee crossing 60 rods from it, and that the bell was rung from that point until the crossing was reached. They were corroborated by the evidence of the mail-agent, and a telegraph line repairer, who were on the train. The engineer and fireman state that they did not see Matti until he was about the length of his horse and wagon from the track, and that he was hit almost at the instant they saw him. The circuit judge instructed the jury to find for the defendant on the ground that the undisputed evidence showed that the plaintiff's intestate was guilty of contributory negligence.

Under the decisions of this court the circuit judge was clearly authorized to make this ruling.

We have repeatedly held, in harmony with the general current of authority in the United States, that a railroad track

ELLER AT CROSS

DEFENDANT'S
NEGLIGENCE

PLAINTIFF'S

NEGLIGENCE.

is, in itself, a notice and warning of danger, and that it DUTY OF TRAVis the duty of persons approaching a crossing to look ING. and listen before venturing upon it. Mynning v. Railroad Co., 59 Mich. 257; s. c., 23 Am. & Eng. R. R. Cas. 317; Haas v. Railroad Co., 47 Mich. 408; s. c., 8 Am. & Eng. R. R. Cas. 268: Pzolla v. Railroad Co., 54 Mich. 273; s. c., 19 Am. & Eng. R. R. Cas. 334; Potter v. Railroad Co., 28 N. W. Rep. 714; Rhoades v. Railway Co., 58 Mich. 263; s. c., 21 Am. & Eng. R. R. Cas. 659. It is claimed by the counsel for plaintiff that the employees of the defendant were, under the plaintiff's showing, guilty of such gross negligence "as to exclude the conception of a contributory degree." The doctrine of compositive negligence does not prevail in this State. See Mynning v. Railroad Co., 59 Mich. 260; s. c., 23 Am. & Eng. R. DOESNOFEXCUSE R. Cas. 317, and cases there cited. The counsel CONTRIBUTORY further assumes that if the engineer and fireman had obeyed the statute, and sounded the signals, the disaster to Matti would not have happened. Admitting this to be true, it is equally as probable or certain that if Matti had been exercising due care, and had looked out for the train at any time within 40 rods of the track, the accident would not have taken place. Therefore, if the plaintiff's evidence be taken alone, and considered as true, both the plaintiff's intestate and the employees of the defendant were at fault, and the plaintiff could not recover. There are cases where the person injured or killed may have been negligent, yet, if the employees of the railroad company are wanton and wilful or reckless in the premises, the contributory negligence of such person will not permit a recovery for the injury. See Baummeister v. Railroad Co., 28 Am. & Eng. R. R. Cas. 476, and cases there cited, and same case 34 N. W. Rep. 414; 10 West. Rep. 853;.