The point mainly urged by the appellant, is that appellee did not use ordinary care to discover the approach of the train. If this is a defense it must be because one desiring to cross a railroad track should not approach within a certain distance of it while a train is in sight.
It is negligence usually to go upon a track without using the senses to ascertain whether a train is coming, but we know of no rule of law or prudence forbidding one to go along the highway toward a railroad track without such care. If before going on the track he takes the precaution to know whether lie can cross in safety, he has done all that is required.
In this case the injury was occasioned, as appellee alleged, by the unnecessary sounding of the whistle just as the train reached the crossing, and while the team of appellee was standing a safe distance from the track waiting for the train to pass.
*600The team was frightened by the whistle, and turning suddenly, upset, the wagon throwing appellee violently to the ground.
Appellant urges that it was negligence for appellee to bo there at that time, and that an'instruction given at the instance of appellee which assumed the contrary or ignored the importance of due care to observe the approach of the train in coming to that point was erroneous. We do not so regard it.
The appellee had a right to drive up to the point where she stopped even though she knew the train was coming. She had a right to expect, when she did so, that no unnecessary sounding of the whistle would occur, and she may well complain if she was disappointed in that respect.
The view suggested by appellant would require persons to stop at a greater distance from the track than would be necessary if the train men are bound to act with proper care and discretion in the use of the whistle. The judgment will be affirmed.
Judgment affirmed.