Accident at —Contributory negligence. A traveler upon the highway is bound to exercise ordinary care and diligence at the intersection • i , . ... of a railway, to ascertain whether a train is approaching, in order to avoid collision with it. An ordinarily prudent man will use his eyes and ears to apprehend the danger, and, if *435the circumstances require, he will stop to enable him the better to do so. If the traveler neglects to do what an ordinarily prudent man would do under the circumstances, he is guilty of negligence. A failure to look and listen is therefore evidence of negligence on his part; and if an injury is the consequent result, and his want of precaution is unexplained by circumstances which might mislead an ordinarily prudent man or throw him off his guard, he cannot have reparation for the injury, because his own want of care is the author of his misfortune. Patterson’s Railway Accident Law, secs. 174-5 ; Continental Imp. Co. v. Stead, 95 U. S., 191; Railway Co. v. Amos, ante, p. 15 9.
The fact that the train approaches the crossing at a greater rate of speed than is usual, coupled with the neglect of the employees in charge of it to sound the whistle or ring the bell, does not relieve the traveler from the necessity of taking ■ordinary precautions for his safety. “Negligence of the company’s employees in these particulars is no excuse,” says the Supreme Court of the United States, “for negligence on his part.” Railroad. Co. v. Houston, 95 U. S., 697; Schofield v. Railway, 114 U. S., 615.
His want of care is not excused by the neglect to give the usual signals, because a reasonable person of ordinary care will not be misled by their omission into rushing headlong upon a railway track without some use of his senses to ascertain if there is danger. Davey v. Railway Co., 12 Law Rep., Q. B. Div., 70, 73.
In Dublin Railway Co. v. Slattery, 3 Appeal Cases, 1155. the following case is put by way of illustration by Lord Cairns: “If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were, in broad daylight, and without anything, either in the structure of the line or otherwise, to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man, and not the carelessness of the company, which caused his death. * * ' * *436The jury could not be allowed to connect the carelessness in not whistling, with the accident to the man who rushed, with his eyes open, on his own destruction.” The hypothetical case was approved, and the doctrine applied by Lord Coleridge in Davey v. Railway Co., II Law Rep., Q. B. Div., 213, in a case where the facts were as strong for the plaintiff as those here presented. And many cases may be instanced to the same effect. Railway Co. v. Houston, 95 U. S., supra; Scofield v. Railway Co., 114 U. S., supra.; Fletcher v. Railway Co., 149 Mass., 127; Cullen v. Railway Co., 113 N. Y., 667; Penn. Ry. Co. v. Righter, 42 N. J. Law, 180; Penn. Ry. Co. v. State., 61 Md., 108; Daily v. Ry. Co., 42 Am. & Eng. Ry. Cases (N. C.), 124.
The language quoted describes this case, and, with the cases cited, shows that there was really no evidence to base a verdict for the plaintiff on. There was conflict in the testimony as to the speed of the train and the failure to sound the whistle and ring the bell. We assume, as the jury might have found, that the train approached the crossing at a greater rate of speed than was usual without giving the usual signals ; but the uncontroverted facts left the jury no latitude, save to find that Cullen knew of the close proximity of the train, and, in reckless disregard of his safety, took the hazard of the leap across the track in front of the engine; or else failed to look or listen for the train when he knew it was approaching the crossing, and when, if he had used his senses, he could not have failed both to hear and see it. His injury was therefore the result of his recklessness, or of his own culpable negligence. As the testimony shows that the injury could not have been prevented by the trainmen after the plaintiff’s perilous condition was discovered, either alternative would deprive him of the right to complain of the conduct of the railway.
The court erred therefore in refusing to grant the defendant a new trial.
Reverse the judgment and remand the cause.