proximate cause was plaintiff's failure to come to a full stop before attempting to cross the track. Can this be said as matter of law? Plaintiff had a right to expect that defendants' trains would be operated in a lawful manner. We think that the controlling question is whether the conduct of the plaintiff was that of a reasonable man, under the circumstances. Did the plaintiff conduct himself as a reasonably prudent man would have acted, while rightfully expecting the defendants to handle their train in a lawful manner? These, it seems to us, were questions for the jury. If the jury should say that the defendants negligently operated the train, and that this was the proximate cause of the injury, and that the plaintiff did, under the circumstances, all that a reasonably prudent man would be called upon to do, and that the injury would not have occurred had the defendants been lawfully operating the train, then the plaintiff would be entitled to recover. dent; and that no crossing whistle was blown. There was also evidence that plaintiff's view of the train was obscured by a long string of box cars until he had passed them, and that they were a distance of 30 feet from the passing track; that after passing these cars, plaintiff stopped his automobile and looked up and down the track, and did not see a train, and went ahead; that he did not discover the train until "just like a flash of your eye it was right there, and then a blow''; that it was dark, the evening being cloudy; that the street lamps were lighted, and the lamps on the automobile were lighted. It was held that this evidence, both as to defendant's negligence and plaintiff's contributory negligence, was for the jury, but on account of an erroneous instruction, judgment for plaintiff was reversed and a new trial granted. Pogue v. Great Northern Ry. Co., Minn. 148 N. W. 889 (1914). VIII. Defective Crossing; Backing The plaintiff's delivery automobile was in charge of a chauffeur, who approached a much used crossing of a public street with defendant's railroad. The crossing was in bad condition, which the chauffeur knew, there being a heavy timber on each side of each rail, and the same were worn and, in at least one instance, cupped. The automobile had a closed top with opening only in front, but with a small transparent glass on either side through which one might look out. When within about 20 feet of the crossing, the chauffeur looked to the west for a distance of 60, 80, 200, or more feet, and seeing that the same was clear, thereupon gave his attention to a switch engine standing at a point variously estimated at from 50 to 200 feet to the east, which was "blowing" to keep its fire in readiness to start, until he reached the crossing. The chauffeur was steering the machine over the crossing at an angle, bearing towards the east. When the right front wheel was in the cavity mentioned and the left front wheel was just over the first rail, the chauffeur discovered the approach of a mail car from the west, which was being pushed by a backing engine. He attempted to turn the automobile off the track to the left, which was the side from which he approached the track, but before he was able to clear the track on account of the wheel being in the cavity, the machine was struck and demolished. There was evidence tending to show that the In our opinion, the Shufelt Case is not controlling here. In that case the plaintiff's wife was driving in a lumber wagon with a box, and the road was dry and hard, so the noise of the horses and wagon traveling over a hard road was great. She did not listen for any train or signals. It was a regularly scheduled passenger train, somewhat behind time, crossing a highway in the country, where travel was limited, and the signals were given both by bell and whistle. In the instant case the plaintiff was driving slowly, in an automobile, the engine of which was making a very slight noise. Plaintiff was constantly looking and listening for a train. He had just seen the regular passenger train go north, and the collision resulting in his injury was caused by what the trial court called a "wild train," consisting of 22 cars, with the engine placed in the rear. No signal by either bell or whistle was given, and in fact no proper signal could be given from the engine while in the rear of such a long train. engineer observed the approach of the automobile, and gave no warning signal; that there was no lookout stationed on the end of the train; that defendant's passenger pilot was standing in the mail car looking out a side door, and was leaning out far enough that he could see an object 35 or 40 feet ahead of the train; that the train was running at a speed variously estimated from 6 or 7 miles an hour to 20 miles an hour; that an ordinance of the city in which the collision occurred forbade the running of trains within the city limits at a greater rate of speed than 6 miles an hour. The Oklahoma Constitution (Art. 23, §6) provides that the defense of contributory negligence shall be a question of fact. It was assumed that the passenger pilot saw the automobile in its perilous position in time to have given the engineer the stop signal, and thus have avoided the collision, or, at least, its great consequent damage. Judgment for plaintiff was originally affirmed, but on rehearing it was declared that the inference that the passenger pilot discovered the perilous situation of the automobile, and that, too, in time to have avoided the collision or damages, was not based upon testimonial facts of sufficient certainty, and was too remote and improb able. Accordingly judgment was reversed and the case remanded for a new trial. St. Louis & S. F. R. Co. v. Model Laundry, 42 Okla. 501, 141 Pac. 970 (1914). IX. Crossing Gate Not Lowered. In an action to recover for personal injuries there was evidence given in behalf of plaintiff that he was one of several occupants of an automobile making a business trip; that at the crossing of a public street, extending east and west, with defendant's tracks there was a gate on both east and west sides of the tracks; that the automobile was approaching from the east, and the east gate not being down, it proceeded across; that the west gate was down, and the automobile was brought to a stop at this gate, the rear of the machine being on the west track; that a train was approaching on this track and the chauffeur tried to start the machine, but failed to move it, and all the occupants tried to get out, but could not do so in time, and the automobile was struck by the train and plaintiff was seriously injured; and that the automobile did not strike the east gate. There was testimony of several witnesses for defendant that the east gate was down, and that the auto A high rate of speed was used by the backing train over a highway where there was much traffic, and no lookout was placed on the approaching train. Whether this combination of facts might not rightfully lead the plaintiff to believe that he was safe in attempting to make the crossing, was, in our opinion, a question for the jury. Where different conclusions may be drawn from established facts, the question belongs to the jury. Beck v. Ann Arbor R. Co., 156 Mich. 252-258, 120 N. W. 983. If, after passing the box cars, and when finding himself in peril by defendants' negligence, plaintiff did not act with coolness, the jury should say whether he was guilty of contributory negligence. Fehnrich v. Michigan Cent. R. Co., 87 Mich. 606, 49 N. W. 890; Mercer v. Cincinnati & N. R. Co., 151 Mich. 566, 115 N. W. 733. The Shufelt Case was affirmed mobile went through it. A lady who was standing near the west gate testified that the east gate was only partly down, and that the automobile passed under it; and that at that crossing the west gate was generally lowered first. Neither the gate nor the automobile showed signs of damage after the passage of the machine. It was held that the case was for the jury, and judg ment for plaintiff for $5,498.75 was affirmed. Louisville & N. R. Co. v. Nethery, 160 Ky. 369 (1914). X. No Flagman at Crossing. Plaintiff, driving her automobile, approached a crossing of the public street with defendant's tracks, where her view of approaching trains from the west was obstructed. The crossing was a dangerous one, many trains and engines, and many vehicles on the street, crossing it daily, and there was no watchman or flagman stationed there, and plaintiff was wholly unfamiliar with it. There were gongs at the crossing which rang constantly when engines approached. A switch engine, with a coach attached, was backing towards the crossing. Plaintiff testified that she approached the crossing at 5 or 6 miles an hour; that she did not hear bell or whistle or see the train; that as she neared the crossing her attention was attracted by men shouting, which confused and startled her; that she looked to the east and then to the west, and as she did so the engine coming from the west struck her machine. The engineer in charge of the engine testified that he was traveling 5 or 6 miles an hour; that the engine was in good order, and could have been stopped in 12 or 15 feet, and possibly 8 feet; that he got the stop signal when the west end of the engine was even with the west sidewalk of the street. The street at this place was shown to be 80 feet wide between property lines and 48 feet between curb lines. The engineer also stated that, "I guess I stopped possibly in about 8 feet, because I shoved the automobile about 8 or 10 feet." There was judgment for plaintiff for personal injuries for $5,665, which was affirmed on condition that $2,000 of the amount be remitted. The court held, among other things, that the failure of defendant to maintain a flagman at the crossing was properly submitted as a basis of recovery. In this respect the court said: "The rule is recognized in this state, in cases of unusually dangerous crossings and intersections of wagon roads or streets with railroad tracks at grade, arising from the large travel or operation of cars, or the existence of by a majority of one, and it may be said that the signal given was a controlling feature which caused the affirmance. "Ordinarily, when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is, under the law, guilty of contributory negligence, but the rule is not imperative under all circumstances."' The above is the latest expression of this court upon the subject. Morgan v. Pere Marquette R. Co., 162 Mich. 573-576, 127 N. W. 683. In that case Chief Justice Bird also said: "Viewing plaintiff's conduct in connection with the surroundings and the conduct of the defendant in operating its train without a headlight or lookout, we are unable to say, as a matter of law, that plaintiff so far contributed to his own injuries that it will preclude recovery. The plaintiff testified, and his testimony is corroborated by two witnesses, that his horse was walking very slowly when XI. Train Crossing Highway in Violation of Corporation Commission Order. Testimony given by plaintiff in an action to recover for damage to his automobile, which occurred in a collision with one of defendant's trains, tended to show that he, with his wife and son and two guests, was returning home from church about 10:30 o'clock at night; that he knew the crossing where the accident occurred was a dangerous one, and knew of an order of the state corporation commission, which required that when any cars or engines were approaching said crossing they should be brought to a stop not nearer the crossing than 50 feet, and that before proceeding a man should be sent ahead to ascertain whether or not any one was approaching such crossing, and that at night such man shall bear a lighted lantern, and that such cars and engine should remain standing until signaled on by said man; that houses were built up within 15 or 16 feet of the track, which obscured the view in that direction; that he approached the track, which was on a rise, at 8 or 10 miles an hour, looking and listening for a train, and looking for a man or light on the crossing; that there was no light or man in view, and he heard and saw no train until it was the length of a car away, when he attempted to stop his automobile, but he was so close to the track that the momentum carried him on until the train, which was moving rapidly, struck the machine, seriously damaging it; that the automobile was making some noise, and that he did not bring it to a full stop before attempting to cross. The trial court instructed the jury that if they believed this testimony they should find plaintiff guilty of contributory negli gence; which they did, and judgment was rendered in favor of defendant. On appeal judgment was reversed and a new trial ordered, the court holding that it was not negligence as a matter of law for plaintiff to fail to bring his machine to a stop before attempting to cross the track. Shepard v. Norfolk & S. R. Co., 166 N. C. 539 (1914). At he approached the main crossing as well as the other crossings. He looked and listened at each of the crossings. He understood that a train ran in the early morning, conveying the miners to their work, but he had never seen it at this crossing and was not expecting it.'' If the rule above stated could be applied when a train was on its regular morning trip, may it not be applied in the instant case, where no train was scheduled or expected? We think so. This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the crossing, when the view is obstructed. Guggenheim v. Lake Shore & M. S. Ry. Co., 66 Mich. 150, 12 Am. Neg. Cas. 103n, 33 N. W. 161; Richmond v. Chicago & W. M. Ry. Co., 87 Mich. 374, 12 Am. Neg. Cas. 109n, 49 N. W. 621; Breckenfelder v. Lake Shore & M. S. Ry. Co., 79 Mich. 560, 44 N. W. 957; Barnum v. Grand Trunk Western R. Co., 137 Mich. 580, 18 Am. Neg. Rep. 331n, 100 N. W. 1022; the second trial of this case it was Plaintiff's intestate lost his life in a collision between an automobile in which he was riding, and one of defendant's freight trains at a crossing. The collision occurred about nine o'clock at night. The train was backing at the rate of from three to five miles an hour. The automobile was traveling at the rate of thirty-five miles an hour. The engineer had shut off the steam. evidence tended to show that the automobile and the train collided about twelve feet west of the east line of the street on which intestate was traveling; that the automobile was caught by the drawbar and pushed along the track The about forty-eight feet to the west line |