[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1027; Dec. Dig. 334.]

7. RAILROADS 350(31)-INJURIES ON TRACK -CONTRIBUTORY NEGLIGENCE-SUDDEN PERIL-QUESTION FOR JURY.

In an action against a railroad for inju ries at a crossing, whether the party injured was suddenly placed in a position of imminent peril, so that he was not negligent if he did not do the safest thing, and whether he acted with due care under the circumstances, was for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. 350(31).] 8. RAILROADS 350(13)-INJURIES ON TRACK - CONTRIBUTORY NEGLIGENCE -QUESTION FOR JURY. Whether decedent, exercising due care under the circumstances, could have stopped his car in time to avoid an accident held for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. 350(13).] 9. NEGLIGENCE 136(26) CONTRIBUTORY

NEGLIGENCE-QUESTION FOR JURY. Only in clear cases, where the facts are undisputed and but one reasonable inference can be drawn from them, can the courts declare a party guilty of contributory negligence as a matter of law.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 286; Dec. Dig. 136(26).]

Error to Superior Court, Sussex County. Action by Mary A. Nailor, widow, against the Maryland, Delaware & Virginia Railway Company for the death and loss of her husband. When plaintiff rested, counsel for defendant moved for nonsuit on the ground of contributory negligence on the part of the deceased, claimed to have been shown by plaintiff's testimony. Motion refused. Verdict for plaintiff. Defendant brings error. Affirmed. The facts are stated in the charge to the jury of Rice, J., in the Superior Court:

This action was brought by Mary A. Nailor, widow, against the Maryland, Delaware & Virginia Railway Company, the defendant, to recover damages for the death of her husband, David B. Nailor, occasioned by the collision of an automobile operated by the said David B. Nailor, and a locomotive and train of cars operated by the defendant company. The plaintiff alleges that the defendant so carelessly and negligently ran its train at a place in Broadkiln hundred, this county, where its tracks cross the public road at Lofland's Brickyard, that the train and the automobile in which the husband was riding, collided.

The plaintiff claims that on Sunday, July twentieth, about half past six in the evening, David B. Nailor was running his automobile along the public highway in a northerly direction, and as the automobile approached the railroad crossing at Lofland's Brickyard it was impossible for him to see defendant's locomotive and train of cars approaching the crossing from the east, by reason of a high bank and field of corn on the easterly side of the highway, which bank and field of corn obstructed the view of

The plaintiff also claims that, at the time of the collision, David B. Nailor was exercising proper care and caution in looking for the railroad crossing and in all other respects. sion was caused by any negligence or want of The defendant company denies that the collicare on the part of its servants. The defendant claims that at the time and place of the accident its train was run in a careful and prudent manner and that reasonable and lawful notice or warning of the approach of its train to the crossing in question was given to travelers on the highway. The defendant further claims that David B. Nailor proceeded along the highway and approached the crossing in a careless manner without making reasonable use of his senses of sight and hearing to ascertain the presence of an approaching train.

In an action of this kind it is necessary that the plaintiff should both allege and prove defendant's negligence, and the plaintiff cannot recover until she has shown to your satisfaction, by a preponderance of proof, that is, the greater weight of evidence, that the negligence of the defendant was the cause of the death of David B. Nailor. The burden of proving neg. ligence on the part of the defendant rests upon the plaintiff.

Negligence has been defined as the failure to use such care, prudence and vigilance as a reasonably prudent person, under the peculiar circumstances of the case, would exercise to preserve himself from being injured. There is no presumption of negligence, either on the part of the deceased or on the part of the defendant, from the mere fact that there was a collision of the train and the automobile.

of the collision, and whose, you must determine Whether there was any negligence, at the time from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.

David B. Nailor was negligent, and said negliIf it shall appear to your satisfaction that gence contributed in any degree to or entered into the accident, he was guilty of contributory negligence, and even though the defendant company may have been negligent on its part, yet if the negligence of the deceased contributed to or entered into the accident at the time of the collision; that is, if the negligence of David B. Nailor and the negligence of the servants of the defendant in charge of the train were operating at the time of the accident, entered into and produced it, the plaintiff in this action cannot recover. For where there is mutual negligence, and the negligence of each is operative at the time of the accident, no action can be sustained therefor.

The plaintiff, however, would be entitled to recover notwithstanding there had been some negligence on the part of the deceased, if it was the negligence of the defendant alone that was the proximate or immediate cause of the accident. A person will not be held guilty of con tributory negligence who in the effort to avoid immediate danger, in the exigency of the moment, suddenly and without time or opportunity for reflection, puts himself in the way of other perils without fault on his part, and particularly so if the defendant has placed him in such position. It is an established rule of law that when one is required to act suddenly and in the face of imminent danger, he is not required to exercise the same degree of care as if he had time for deliberation. The question under such circumstances is not whether the person acted

in that way which in the light of after events appeared to be the one most likely to have avoided the danger, but is whether he acted as a person of ordinary prudence and discretion would have acted under like conditions.

In determining whether the deceased was at the time of the accident exercising reasonable care and caution you may consider the ease or difficulty of seeing an approaching train, any warning or notice that may have been given, or the want or absence of any warning or notice of the approaching engine and car, and any and all other facts, circumstances and conditions shown by the evidence to have been existing at the time of the accident bearing upon the point. The burden of establishing contributory negligence on the part of the deceased, in an action like the present one, when it is relied upon as a defense, rests upon the defendant.

If the operator of an automobile along a public highway knew or had reason to know that the highway crossed a railroad in the immediate vicinity, without knowing the location of the crossing of the public road and the railroad, he must proceed on his way at a reasonable rate of speed and in a reasonably careful manner, making use of his senses to ascertain the location of the crossing.

If under such circumstances he does not proceed along the road as a reasonably prudent man would have done under all the circumstances and a collision occurs between the automobile and a passing train, he would be guilty of contributory negligence.

If a traveler knew or by the reasonable use of his senses might have known of the presence of a railroad crossing, drive up to and upon the same, not only without at least looking, but without listening to ascertain if any cars are approaching, and a collision and injury or death occurs to him from a passing train, which would have been prevented had the traveler exercised the proper and ordinary prudence, care and caution mentioned, such traveler would be guilty of contributory negligence, and recovery could not be had from the railroad company for such injury or death. When the view at the crossing is obstructed, greater care is necessary than in places where the view is unobstructed. It is likewise the duty of the defendant, in the movement of its trains over its tracks across a public highway, to exercise reasonable care and diligence to warn travelers upon such highway of the approach of its trains in order to prevent accidents at such crossings, and if there are obstructions in and about such crossings which prevent a train of cars from being seen as a traveler upon the highway approaches the crossing, the degree of care required is measured according to the liability of danger at such crossing.

The law regards a railroad crossing as a place of danger. If a person knew or should have known of the presence of such a crossing, its very presence is notice to the person approaching or attempting to cross it, of the danger of colliding with a passing train. And because of the danger, there is imposed upon such person the duty of reasonable care and caution, and the reasonable and ordinary use and exercise of his senses of sight and hearing for his own and others' safety and protection, and if he fails to do these things, whatever danger he could thereby have discovered and avoided, he incurs the peril of, if he proceeds, and recovery cannot be had for injury or death arising from such

fault.

Although the view of the railroad from the highway is obstructed, that fact does not relieve the traveler from the obligation to look and listen for an approaching train. The very fact of the existence of such obstruction, and particularly when it is known to the traveler, imposes additional care and caution upon him in approaching the track.

timely and sufficient warning of the approach of its trains to a public crossing. Compliance with signals or warning required by the statute may not be sufficient when the surrounding conditions reasonably demand other and more effective warning. Due care in case of the company means ordinarily the timely employment of sufficient signals or warnings, giving notice of the approach of trains to public places, such as highway crossings; and in the case of individuals due care under the present circumstanc es means proper circumspection in looking for a crossing, and in looking or listening, or both, when practicable, for an approaching train, to avoid collision, and the greater the peril to the individual, the greater the duty of exercising care by the company, and of prudence and caution on the part of the individual. This, after all, is but common sense, the force of which must be evident to all. If the defendant failed to make use of usual and appropriate means under the circumstances, to warn the deceased at the time of the accident, such failure was neg ligence on its part, and if the accident occurred by reason thereof, it would be liable, provided the deceased did not by his own carelessness contribute in some degree proximately to his death.

A failure on the part of the defendant, as its train approached a crossing at a public highway, to sound two long blasts followed by two short blasts of the steam whistle on the locomotive engine, at least three hundred yards from the crossing, as required by the act of the Assembly, would constitute negligence on the part of the company per se, but such failure on the part of the defendant would not relieve the traveler on the highway from the exercise of reasonable and ordinary care in approaching the crossing, if the presence of the crossing was known or under all the circumstances, should have been known to him; nor would the defendant be liable by reason of such failure if the injuries complained of were caused by the negligence or careless conduct of the deceased at the time of the accident. But if the defendant failed to make use of the warning required by the statute at the time of the accident, and if the accident occurred by reason of such failure, then and in that event the defendant would be liable for the death of David B. Nailor, if he did not by his own negligence or want of care contribute in some degree thereto.

If you shall believe, from the preponderance of the evidence in this case, that at the time of the accident the servants of the defendant company negligently approached the said crossing with its train, without giving due and timely warning of its approach to said crossing, and that the failure to do so was the proximate cause of the injuries complained of, and that the deceased was free from any negligence on his part which contributed thereto, then your verdict should be for the plaintiff; or if you shall believe from the preponderance of the evidence that at the time of the accident the defendant was not in the exercise of due and reasonable care, that is, all the care and cir cumspection, prudence and discretion that an ordinarily prudent and careful man would have exercised under the circumstances, and that the want of such care and caution was the prox imate cause of the injuries complained of, and that the deceased was free from any negligence on his part which contributed thereto, your verdict should be for the plaintiff. But if you shall believe that it has not been shown by a preponderance of the evidence that the negli gence of the defendant was the proximate cause of the injuries complained of, or if you shall believe that the negligence of the deceased himself contributed to the injuries complained of, your verdict should be for the defendant.

If you find for the plaintiff, it should be for such a sum of money as will reasonably compen

sustained, or may hereafter sustain by reason of the death of her husband, David B. Nailor, basing your verdict upon the number of years the deceased would probably have lived had he not been killed.

In measuring damages in this case, you are not to be governed by what would probably have been the gross earnings or income of the deceased, but by what portion of the gross earnings or income the plaintiff would probably have received from the deceased as his wife, if he had lived.

The defendant took a bill of exceptions. and sued out a writ of error, No. 7, June term, 1915, to the Supreme Court.

Argued before CURTIS, Ch., PENNEWILL, C. J., and BOYCE, J.

Charles S. Richards and Charles W. Cullen, both of Georgetown, for plaintiff in error. Caleb E. Burchenal, of Wilmington, and Daniel J. Layton, Jr., of Georgetown, for defendant in error.

The testimony material to the question before the court in this case may be stated as follows:

About five o'clock in the afternoon of July twentieth, 1913, the deceased, a veterinarian of Milford, Delaware, was proceeding in his automobile in an easterly direction, from Milton in Sussex county to the home of A. M. Jones. The other occupants of the car were Dr. Evans Roberts, who sat by the side of the deceased, Robert G. Wells, and his son Robert, and a son of A. M. Jones, who was taken in the car at Milton to show the way to his father's home. The deceased was operating the car, and so far as appears from the evidence he was entirely unfamiliar with the road and country over which he was passing.

The public road on which the party were traveling crosses at right angles, a short distance from Milton, the single track railroad line of the defendant company. About three hundred and fifty yards from the crossing there is a turn in the public road over which the automobile was running, at a point known as "Carey's Corner." Just north of the crossing, and on the west side of the road is a brickyard, buildings and kilns easily seen from a distance, and opposite, on the east side of the road about one hundred and fifty feet north of the crossing, stands Milby's house and barn. The crossing is known as the "Brickyard Crossing."

The automobile approached the crossing from Carey's corner at a speed variously estimated by plaintiff's witnesses from ten to fifteen miles an hour. At the crossing the automobile struck the rear end of the tender of a west-bound train of the defendant which was running about thirty miles an hour. The deceased was killed by the collision, and Roberts was injured.

The physical conditions at and near the crossing at the time of the accident may be sufficiently described as follows:

of the railroad is slightly below the level of the public road and also runs in a cut at the crossing. Near to and south of the crossing the bank on the east side of the road is five or six feet high, and at the time of the accident corn was standing thereon. On the west there is an open field up to the right of way of the railroad. Within thirty feet of the track the road has a down grade of about two feet.

The view of the railroad track to the east, from the public road after leaving Carey's corner, was entirely obstructed by the bank and standing corn until an occupant of the automobile was sixteen or eighteen feet from the nearest rail. The track itself was not visible more than about seventeen feet away. One or more witnesses testified that a person would not know there was a track there until he was within sixteen or seventeen feet of it.

Dr. Roberts told the deceased, about the time they turned Carey's corner, that there was a bad crossing on that road either on this side or the other side of the brickyard. Nailor said: "We can easily find out by going slow."

The brickyard as well as the telegraph poles along defendant's track were visible all the way from Carey's corner, The Jones boy who was familiar with the crossing was not asked for any information about the crossing, neither did he volunteer any.

Roberts testified that both he and Nailor were looking for the crossing after leaving Carey's corner; and Roberts testified that he was also listening for a train but was not aware of the crossing or the train until it "flashed right out before us when we came out of the corn together." They were then about fifteen or eighteen feet from the track. Other witnesses said they were about thirty feet from the track when the train could first be seen. Just how far from the nearest rail the crossing is visible is not clear from the testimony. One witness testified that it is necessary to be within sixteen and a half feet of the track to see the ties and rails,— to tell there is a railway there. Another witness said twenty-five feet.

There was no danger or warning sign at the crossing. The cut through which the railroad runs is visible as far away as Carey's corner, but the evidence does not show that the cut would indicate to a stranger the presence of a railroad.

The driver of the car did not stop it or slacken its speed after leaving Carey's corner, for it was running at a speed of at least ten miles an hour when it struck the side of the train,

PENNEWILL, C. J., after stating the facts as above, delivered the opinion of the court: The assignment of error relied on is the refusal of the court below to direct the