Ecliff v. Railway Co., 31 N. W. Rep. 183; 7 West. Rep. 462. But the mere neglect to give signals at a country crossing is not considered such gross negligence as to destroy the ordinary legal effect of contributory negligence upon the plaintiff's case. See Mynning v. Railroad Co., 31 N. W. Rep. 152; 7 West. Rep. 324; and cases cited in note.

The judgment of the court below is affirmed, with costs.
The other justices concurred.

Effect of Failure to give Statutory Signals at Crossing.-See Chicago & Alton R. Co. v. Dillon, and note, ante, p. 1.

Duty of Traveller to Look and Listen before Going upon Crossing.-See Wichita & W. R. Co. v. Davis, and note, ante.

LEHIGH AND WILKES-BARRE COAL CO.

v.

LEAR.

(Advance Case, Pennsylvania. 1887.)

It is not only the duty of a person about to cross a railroad track to stop, look, and listen, but to perform this act of caution at a proper place for the purpose; and the question whether he did so or not is for the jury.

Where there are five tracks at one crossing, and the view of the fifth is obstructed until the first four have been crossed, and there is no gate or flagman, it is for the jury to say whether a traveller who is injured on the fifth fulfilled his duty by stopping, looking, and listening, before driving upon the first track, or whether he should have taken other precautions.

It is also a question of fact for the jury whether at a given crossing a railroad company is guilty of negligence in making a "flying switch" at the speed of twenty miles an hour.

The long delay of a plaintiff in bringing suit may be taken into consideration by the jury in determining whether the injury complained of resulted from the cause alleged.

JANUARY term, 1887, before Mercur, Ch. J., Gordon, Trunkey, Sterrett, Green, and Clark, J.J.

Error to the common pleas of Luzerne county, to review a judgment on a verdict for the plaintiff for $2200 damages in an action of trespass on the case for negligence. Affirmed.

The testimony for the plaintiff below was to the following effect:

On the 14th of December, 1875, in the afternoon, Levi Lear, the plaintiff below, was driving with a closed carriage, inside of which were seated two ladies and a man; outside on the seat with him was another man. They were returning from a funeral. It

was almost dark when they reached the railroad crossing near the Empire store, on Northampton street, in the city of Wilkes-Barre The railroad crossing at this point of the street consists of five tracks running nearly parallel, a short distance apart, and all within a space of sixty feet.

Lear came to a dead stop a few feet on the west side of the first track. He had a full view up and down all the tracks above and below the crossing except the fifth or east track, which he could not see below the crossing from where he stopped at the first track; nor could he see it at any point below the crossing in the direction he was driving, until he actually crossed the first four tracks and got upon the fifth or east track, because of an engine-house, 150 feet long, built close to the road he was driving, and within nine feet of the fifth track, and a number of cars that had lumber piled upon them on the several tracks below this engine-house, which completely shut off the view from where he stopped or at any other place along the street he was driving, until he passed over from where he stopped at the first track and got upon this fifth track.

When he stopped at the first track he looked up and down the first four tracks. He could plainly see these above and below the crossing. He listened, and heard no noise from where he stopped, and saw or heard no indication or warning of the approach of cars or engine. He heard no bell rung or whistle blown. He looked for and saw no flagman where he was accustomed to and expected to see him in case of danger, the flagman having left, without notice, an hour previous. Lear proceeded cautiously from where he had stopped, looked and listened, on, across the first, second, third and fourth tracks, and had barely got over the east track with the horses, when the under part of the carriage was suddenly run into by a long, low, flat-bottomed car, without any light on, that had been purposely detached from an engine far below the crossing, and speeded and shot backward, at the rate of twenty miles an hour over the public crossing-the engine remaining below-to make a "flying switch." The under portion of the carriage was knocked out and hurled with the plaintiff into a rocky creek, twenty feet above the crossing; the body of carriage, with its occupants, slid upon the flat car, and with the brake turned on, was carried up a heavy grade, 100 yards, to the switch above, where the car was intended to be sent by the engineer when he gave it the momentum below the crossing.

At the time of the accident all of these railroad tracks were in active operation. Danger was to be apprehended in crossing any one of them; where cars and engines were run and moved about continuously, and cars were also run, detached from engines, by gravity. The immediate neighborhood is thickly populated.

The plaintiff was badly cut and bruised in the face and body,

and his back and legs severely injured. For a year after the accident he was unable to perform any labor and was permanently disfigured and disabled.

As soon as he was able to get about he placed his complaint in the hands of his counsel. Within a short time after, the company became insolvent, and passed into the control of receivers, where it remained until 1882. In September, 1881, this suit was instituted against the receivers, Charles Parrish and the company. In 1882 the receivers were discharged and the corporation regained legal life. In 1884 the court below, inadvertently, struck the cor poration name with the receivers from the record. Afterward the company was reinstated as the real party.

On the part of the company testimony was produced to show that the whistle was blown, the bell rung, that Lear was warned not to cross, that he drove on the crossing at a trot, saw the train when the horses got on the last track, and then whipped them up to cross quickly, and that he had been drinking; that for four years afterward he worked at the same work for the same wages as before, never complained, had no outward mark, and employed no physician, and that all the ills he ever complained of arose from a bite of a dog received two years later, for which he has a suit pending against the owner.

The court below charged the jury as follows:

This is an action on the case of Levi Lear against the Lehigh & Wilkes-Barre Coal Co., in which the plaintiff seeks to recover damages from the defendant for personal injuries suffered by him in an accident which occurred in the neighborhood of this city some eleven years ago.. There are various legal questions raised by the case, upon which it becomes the duty of the court to instruct the jury. It is the province of the jury to ascertain from the evidence what is the truth of this case as to its facts; but it is the duty of the court to explain to the jury, as well as they can, the rules of law applicable to the truth when it shall have been found by them.

The first question to which your attention will be directed in this case is this: Was the plaintiff injured by this accident as he alleges? If you find from the evidence that he was not injured by this accident, then he would not be entitled to recover any damages in this suit.

In the second place, if the plaintiff was injured, the next inquiry would be: Were his injuries the result of negligence on the part of the defendant? Because we say to you, as matter of law, that if the defendant was not guilty of any negligence, then, although it be true. that the plaintiff suffered injuries from this accident, he would still not be entitled to recover any damages.

What then, in the legal sense, is negligence? It has been variously defined by writers on the subject, but the definition now

accepted is that negligence is the absence of ordinary care, according to the circumstances. This negligence must be shown and established by the evidence in any given case. It may consist in the doing of something by the party charged with it which evinces want of ordinary care, or it may consist in having omitted to do something which an ordinarily careful person would have done under the same circumstances. Negligence, therefore, may consist either in the commission or in the omission of certain acts. Are you satisfied then, from the evidence in this case, that the defendant was chargeable with negligence, and that this caused or resulted in the accident and injury of which the plaintiff com. plains?

This brings us to the consideration of the subject of the duties of railroad companies in regard to the crossings of roads or highways at grade; and it may be said, as a general statement of the rule of law on this subject, that at such crossings, railroad companies are bound to use all such means as reason, experience, and ordinary prudence and care dictate to protect the travelling public from accident or injury in the usual and ordinary use and enjoyment of the highway. Out of this view of the duty of railroads comes the special duty of having signals, such as bells, whistles, watchmen, and of running at no greater speed than is reasonably prudent.

The means and precautions which a railroad company must adopt under this rule will differ, as the circumstances differ. There is no uniform and universal law applicable alike to all cases. If the crossing, for instance, is in the open country, exposed to public view in all directions for a considerable distance, the same precautions on the part of the railroad company might not be required as would be if the crossing were, from the nature of things and the surroundings, more dangerous. In this connection I will read to you briefly from one or two cases which are recent decisions on the questions now under consideration:

In the case of The Lehigh Valley R. Co. v. Brandtmaier, which originated in this county, the decision of the supreme court was filed on the 4th of this present month; from it [5 Cent. Rep. 147] I read an extract as part of my charge in this case:

"It is the duty of a railroad company in the running of its trains to exercise care according to the circumstances, and where the railroad track crosses a much travelled street or highway, the company as well as the public, is bound to exercise a degree of care reasonably commensurate with the danger. It is the duty of the company on the one hand to give some sufficient notice of the train's approach and to moderate the speed of the train to such rate as, under the circumstances, is reasonably consistent with the public safety. On the other hand, it is the imperative duty of the traveller to stop, look, and listen for approaching trains

before attempting to pass over. If he neglects this legal duty, or knowingly attempts to cross in front of a rapidly-moving train, he takes his life in his own hands and assumes the risk of personal injury.

"The law does not designate the mode in which these precautions against injury on the part of the company are to be exercised. There is, it may be conceded, no common-law duty on the part of the company to station flagmen or to maintain gates at public grade crossings, unless, indeed, under the particular circumstances, the public safety cannot otherwise be reasonably secured; but the fact that flagmen are not stationed at such a crossing, and that gates are not there maintained, are matters proper to be considered with other facts in a given case in determining the rate of speed which is reasonably consistent with the public safety."

On the same general subject or branch of the case I may call your attention to the language of the supreme court in the case of Philadelphia & Reading R. Co. v. Calebs, 8 W. N. C. 529. The court says:

"It is not claimed that irrespective of circumstances it is a common-law duty of a railroad company to station flagmen or maintain gates at public grade crossings. A road may be so constructed, however, by making either corners or deep cuts at a public thoroughfare, as to make it more than ordinarily dangerous and it may thus become the duty of the company to employ flagmen or adopt other adequate means of warning and protection. Where there is extensive travel on a street or other highway crossing a railroad track, the company as well as the public is bound to exercise a degree of care and diligence commensurate with the risk of accident. It is the duty of the company, on the one hand, to give timely and sufficient notice of the approach of trains at such crossings, while on the other it is the imperative duty of the traveller to stop, look, and listen for approaching trains before attempting to pass a railroad crossing. While the law does not point out any particular mode or manner in which notice of approaching trains shall be given, it does require that some suitable and adequate means adapted to the circumstances shall be adopted and applied."

Now, these are the general rules of the law briefly stated applicable to railroad companies as to their duties at crossings. We say to you, in the next place, as matter of law, that if, in your opinion, the defendant, under the evidence, was guilty of negli gence, it still becomes your duty to find from the evidence whether the conduct of the plaintiff himself was free from negligence. Did the plaintiff conduct himself in all respects as an ordinarily careful and prudent man? Or did he exhibit a want of prudence and ordinary care which concurred with the negligence of the defendant in causing the accident and injury of which he