#### The Baltimore & Ohio Railroad Co. *v.*McClellan, Admx.

*One in full possession of senses—Should exercise them in crossing track—Obscured by smoke and steam—Negligence not to wait till smoke, etc., clear away—Presumption of negligence—Absence of rebutting testimony—Refusal to sustain motion to direct verdict, error, when.*

1. The rule that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross a known track of a steam railroad at a street crossing, applies to a condition where the atmosphere is more or less clouded by steam and smoke, and it is negligence on his part which will defeat a recovery for injuries received from a passing train to undertake to cross without waiting for the atmosphere to clear so that his vision may be unobstructed, or taking other adequate means to ascertain the presence of danger.

2. Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, and no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence, to direct a verdict, and a refusal to sustain such motion is error,

(No. 8260

Decided October 27, 1903.)

Error to tbe Circuit Court of Richland county-

*143The action below was brought by defendant in error,, Ida L. McClellan, Admx., against the Baltimore & Ohio Railroad Co., to recover for the negligent killing of Madison McClellan, who met his death by being run over by the caboose of a local freight train. The defense was a denial of negligence by defendant, and a charge of contributory negligence on the part of the deceased. At the conclusion of the plaintiff’s testimony defendant moved the court to direct a verdict for defendant, which was overruled and the cause submitted to the jury on plaintiff’s testimony. A recovery was had which was sustained by the circuit, court, and the Company brings error. Facts necessary to an understanding of the case are stated in the opinion.

*Mr. J. H. Collins*and *Messrs. Cummings é McBridey*for plaintiffs in error.

I. No act of negligence is charged in the plaintiff’s petition and proven by the evidence,

1. The speed of the train was not negligence. *Railway Co.*v. *Schneider,*45 Ohio St., 678.

2. Failure to have a watchman at the crossing was not negligence. *Railway Co.*v. *Schneider,*45 Ohio St., 678.

3. It was not negligence to construct the side track described in the petition and run the train thereon, as described.

4. It may have been a misdemeanor to allow the engine to stand on the street the length of time stated, but that did not cause the death of McClellan, and no-recovery can be had in this case because of such fact..

5. To allow the engine to emit smoke was not negligence. If it-was, then a railroad company-is always, negligent when running a train on its road-.

*1446. To allow the engine to make a noise is not negligence. Engines always make more or less noise when in use.

7. As to signals. The train was doing switching work in the yard, and was backing toward the crossing, .and sections 3336-3337 do not apply. Besides, there was no evidence tending to prove that failure to give the signals caused the accident. *Pennsylvania Co.*v. *Rathgeb,*32 Ohio St., 72.

8. The terms omitted from the petition characterize various acts as being negligently done. Each and all -of them plead conclusions of law and not facts, and are, therefore, of no effect; and without them the petition does not state a cause of action. *Pelton*v. *Bemis,*44 Ohio St., 51; *Railroad Co.*v. *Wilson,*31 Ohio St., 555.

II. The decedent was negligent.

1. It was certainly negligence to step on the track in front of an approaching engine only a few feet distant This seems to be conceded, but in any event it meeds no citations of authorities in its support.

2. It was negligence to step on the track which was ¡so obscured by smoke and steam that an approaching -engine could not be seen. *Heaney*v. *Railway Co.,*112 N. Y. C. of App., 122.

The first specification of negligence is with refer-ence to the backing of this train without giving the ¡statutory signals. *Dick*v. *Railroad Co.,*38 Ohio St., 396; *Railway Co.*v. *Elliott,*28 Ohio St, 340; *Railway Co.*v. *Landphair, Admx.,*13-23 O. C. C., 435; *Pennsylvania Co.*v. *Rathgeb,*32 Ohio St., 66; *Railroad Co.*v. *Depew,*40 Ohio St., 121; *Pennsylvania Co.*v. *Alburn,*13-23 O. C. C., 130.

It is the duty of a person approaching a railroad as ¡a matter oí law to use his senses, and if he is injured *145when by so doing, he could have seen or heard the train, it is in law contributory negligence which will not permit a recovery. *Railway Co.*v. *Whitacre,*35 Ohio St., 627; Black on Proof and Practice, 88; 1 Thompson on Neg. (old ed.), 439; *Brancroft*v. *Railway Co.,*97 Mass., 275; 5 Rapalje and Mack Digest, 198; 1 Thompson on Neg., 461; *Hardy*v. *Railway Co.,*42 N. Y., 468; *Gorton*v. *Railway Co.,*45 N. Y., 601; *Railway Co.*v. *Swartout,*6 Circ. Dec., 768; 14 C. C. R., 582; *Railway Co.*v. *Skiles,*64 Ohio St., 458; *Railway Co.*v. *Houston,*95 U. S., 696; s. c. Law. Ed., Book 24, 542; *Railway Co.*v. *Freeman,*174 U. S., 379; 43 Law. Ed., 1014; *Schofield*v. *Railway Co.,*114 U. S., 615.

It seems to us that this party showed by his own evidence that he was guilty of contributory negligence to such an extent that it became a question of law and not of fact that the motion to direct a verdict should have been sustained.

We must not fail to consider the conduct of the decedent as well as the conduct of the company. How. did he conduct himself? Was it with ordinary care? Was it with ordinary prudence? Or did he recklessly rush into danger? *Railway Co.*v. *Krichbaum’s Admr.,*24 Ohio St., 119; *Railway Co.*v. *Snyder,*24 Ohio St., 677; *Kerwhacker*v. *Railway Co.,*3 Ohio St., 172; *Timmons*v. *Railway Co.,*6 Ohio St., 105; *Railroad Co.*v. *Terry,*8 Ohio St., 570.

We come now to their specification of negligence caused by the train emitting smoke and making great and loud noises. There is not a particle of evidence to show that the noise claimed to have been made by the engine was not that of the ordinary workings of an engine. The simple fact that they prove that the engine was making a noise without showing that it ' *146was.done in a negligent manner eliminates the question of noise from this ease.

Looking now to their specification of smoke as an element of negligence. *McCrory*v. *Railway Co.,*31 Fed. Rep., 531; *Railway Co.*v. *Peters,*1 Circ. Dec., 20; 1 C. C. R., 34 (affirmed, unreported), 17 Bull., 247.

The evidence shows in this case that McClellan went to the depot for the purpose of making inquiries with reference to some freight he was expecting and it was no part of his business to go into the dangerous place he did. *Diebold*v. *Railway Co.,*50 N. J. Law, 478.

The contention of the defendant in error that because the smoke somewhat obscured the view of the party, that that would excuse to a certain extent the' conduct of the deceased is not a correct statement of the law governing this case. *Railway Co.*v. *Ryan,*11 Am. Neg. Cases, 233; s. c. 17 Col., 98. Clearly this states the law as applicable to the conduct of this decedent. *Mann*v. *Railway Co.,*11 Am. Neg. Rep., 466; s. c. 128 Ind., 138; *Railroad Co.*v. *Fisher,*11 Am. Neg. Rep., 574; s. c. 49 Kas., *460; McAllister*v. *Railway Co.,*64 Ia., 395; *Chase, Admr.,*v. *Railway Co.,*78 Me., 346; s. c. 11 Am. Neg. Rep., 652; *Lesan*v. *Railway Co.,*77 Me., 85; *State*v. *Railway Co.,*77 Me., 538; *State*v. *Railway Co.,*76 Me., 357; *Illinois, etc.,*v. *Hall,*72 Ill., 222.

We insist that the charge of the court as a whole is erroneous. First and foremost it does not charge the jury that it was a positive duty of the plaintiff to look and listen, but simply says he did thus and so. We quote from a portion of the charge as follows: “What were the surroundings? What would excuse him if he did not look or if he had looked, would he have seen and if there was smoke and steam it is a question whether he ought to have looked more care*147fully. Did he look carefully or was he prevented from looking by smoke and steam and noise. He could see if nothing obscured it. That is a question for the jury. He could hear if nothing prevented his hearing. Did he? That is a question for the jury. And were the circumstances such that if he had looked and listened that he could have, exercising ordinary prudence, seen the danger and avoided it,”

We insist that, that portion of the charge is erroneous. We insist that it was the duty of the court to have told that jury in positive terms that it was the duty of the decedent to look and listen before going upon that crossing and that the failure of the court to do so is error for which this judgment ought to be reversed. *Railway Co.*v. *Reynolds,*13-23 O. C. C., 199; *Railway Co.*v. *Landphair,*13-23 O. C. C., 135; *Pennsylvania Co. v. Alburn,*13-23 O. C. C., 131, 115; Black on Proof and Pleading in Accident Cases, 207.

*Messrs: Douglass & Mengert,*for defendant in error..

We do not claim the Company was negligent because it had a railroad with side tracks at Butler, nor because the engines emitted smoke and steam when in operation, nor because the engines at times become noisy, nor do we claim that the simple backing out of the local freight upon the main line was negligence. There are hundreds of things performed every day of our lives, if done in proper manner that we have á perfect right to do and no one can be heard to complain; yet a perfectly proper thing tó' be done, when done carelessly, may result in what we call negligence.

Now, the Company knew that many people would be at the depot. It also knew that these engines wére making a great noise thereby destroying the sense of *148hearing as a protection against impending danger, that their presence would naturally detract attention from other dangers; that the view of its (the local’s) approach must of necessity be obstructed; that the double header standing there so long, a person wanting to cross would naturally do so; yet, notwithstanding the fact that it had blocked the side walk so that pedestrians could not cross at right angles with the depot, but Avould be compelled to walk out on the main line until the front end of the front engine was reached; that this double header had already stood there twenty or thirty minutes, that even though the passenger train had left for Mansfield it, the double header, had not moved; that no one, if he reasoned at all, would think for a moment that any train would for half an hour at least be coming from the direction that No. 3 had gone, because this is a single track road; the Company also knew that the local itself on this spur was three or four hours late; that it was then using a track that was seldom used for that purpose and that if one reasoned at all he would not conclude that this local would probably be there on account of its being so late. Yet, notwithstanding all this the Company backs out its local freight down past the depot, through this smoke and steam, without warning of any kind as we have said, in utter disregard of the lives of any one who on account of the Company blocking the way, might be on this track. We say this is negligence pure and simple and of the grossest kind and will argue the matter no longer, because if this is not negligence then we can conceive of few acts at a depot upon the part of a railroad company that could be denominated such.

If this would not make a question of negligence that should be submitted to a jury it would be difficult *149to make one that should. *Railroad Co.*v. *Mackey,*53 Ohio St., 370.

The rule in Ohio is, that negligence is never presumed. And this is true whether the rule be applied to the negligence of the defendant, which is the subject matter of the action or to the negligence of the plaintiff denominated as contributory negligence.

Nor ' is this rule limited to Ohio, but the rule is quite universal, and we believe almost as well defined as the rule applying to fraud, which is never presumed. *Railway Co.*v. *Crawford,*24 Ohio St., 631; *Railway Co.*v. *Fleming,*30 Ohio St., 480; *Hoyt*v. *Hudson,*41 Wis., 105; *Johnson, Exr.,*v. *Railway Co.,*20 N. Y., 65; 1 Thompson on Neg., sec. 402; *Guggenheim*v. *Railway Co.,*66 Mich., 150; *Hoye*v. *Railway Co.,*62 Wis., 668; *Bennett*v. *Keehn,*67 Wis., 157; *Railway Co.*v. *Whitacre,*35 Ohio St., 627; *Railway Co.*v. *Nolthenius,*40 Ohio St., 376; *Railway Co.*v. *Snell,*54 Ohio St., 197; 1 Thompson on Neg., secs. 416, 446; *Railway Co.*v. *Weber,*76 Pa. St., 157; *Schafer*v. *City of New York,*154 N. Y., 466; *French*v. *Railway Co.,*116 Mass., 537; *Randall*v. *Railway Co.,*132 Mass., 269; *Railway Co.*v. *West,*32 N. J. Law, 91; *Ferguson*v. *Railway Co.,*63 Wis., 145; *Duame*v. *Railway Co.,*72 Wis., 523; *Staal*v. *Railway Co.,*57 Mich., 239; *Railway Co.*v. *Ogier,*35 Pa. St., 60; *Railway Co.*v. *Weber,*76 Pa. St., 157; *Nugent*v. *Railway Co.,*80 Me., 62.

While in Ohio, as well as in most all other states, it is the absolute rule that a traveler approaching a railroad station must stop, look and listen, yet this rule in Ohio, as in most of the other states, under certain circumstances, is modified. *Railway Co.*v. *Snyder,*24 Ohio St., 670; *Robison*v. *Gary,*28 Ohio St., 250; *Pennsylvania Co.*v. *Rathgeb,*32 Ohio St, 66; *150*Weiser*v. *Railway Co.,*6 Circ. Dec., 215;. 10 C. C. R., 14.

So we say, that while the presumption in the absence of evidence is that he did look and listen yet is it not plain that he had *good excuse*even though he failed to look toward Mansfield? And to submit the question of his alleged negligence to the jury under all these varied circumstances, was certainly proper.

Spear, J.

The accident occurred at a street crossing in the village of Butler, Ohio, about three o’clock of the afternoon of March 17, 1900, at a point where the main street of the village is crossed by two tracks of thé Company. At the point stated the street runs substantially north and south and the railroad tracks substantially east and west. The station house is at the south-east angle of the intersection, facing north. The southerly track is the main track and the northerly one a side track, and both tracks curve sharply to the north-east from a point about one hundred and sixty feet from the crossing. About one hundred and sixty-five feet easterly from the crossing a spur track starts on the south side of the main track and extends upon a curve several hundred feet in a north-easterly direction, veering to the north and north-west. To the east of the station some one hundred and fifty feet, stands a water tank. The depot platform extends from the station-house northerly to the main track, easterly to a point near the water tank, and westerly to the line' of the street. At the time of the accident there stood upon the side track, headed west, a freight train with two locomotives attached, the forward one extending across the sidewalk and a few feet into the street proper. This train had been in that position twenty-five to thirty minutes. A passenger train *151.known as No. 3 had passed east just before the accident. Upon the spur track there had been standing a local freight train, placed there to allow the passage of No. 3, and intending to follow so soon as No. 3 had passed. The caboose of this train stood near the point of junction of the spur with the main track, the locomotive being at the other end. The cylinder cocks of the head engine of the freight train (the one standing on the side track headed west) were open, and considerable steam was escaping, making some noise, and a good deal of smoke was issuing from the smokestack. The smoke and steam came on the south side of the engine, much of it to the ground. It was a little windy at the time, and the wind being from the north-west carried the steam and smoke in a south-easterly direction ; that is, toward the easterly portion of the station house and over the main track.

The deceased was the keeper of a restaurant situated on the east side of the street a short distance north of the crossing. Just before the accident he had been to the station to inquire about some , oysters he was expecting and was on his return when it occurred. He was seen coming out of the door of the freight office and passing westerly on the platform. He was also seen in the act of stepping off of the platform and on to the track, the main track. He was going in a north-westerly direction, his back being partially toward the east. Some two or three minutes after No. 3 had passed, the local freight, the train which had been waiting on the spur track, backed westerly to clear the switch, coming at a speed of about twelve miles an hour. No alarm of any kind was given by the trainmen on the local, nor was any one stationed in the rear of the . caboose to give warning. McClellan, had just stepped down off the platform onto the. track *152when the caboose struck him, having apparently made but two steps. He was not seen to stop from the time he was first seen going out of the door of the freight office until he was struck, nor was he seen to look to' the east, the direction from which the caboose was coming. He had just reached the middle of the track, had made a second step, was in a walking position, walking in a north-westerly' course, headed in that direction to avoid the front of the engine of the freight train.

Three features of the case call for comment. One respecting the presence of the locomotives of the freight train on the side track, another the operation of the local freight, and third, the action of the deceased himself.

' 1. It is claimed that the placing and maintaining of the locomotive partially across the street, and the producing there of smoke and of steam with accompanying noise, was of itself negligence. But locomotives cannot be handled without the issuing of more or less smoke, nor can they be held in a waiting position, which was the fact as to this freight train, without the escape of more or less steam with' some noise.. A use which is a natural and necessary use of 'a locomotive cannot be of itself a negligent use. The leaving of the nose of that forward locomotive across the sidewalk for the length of time it stood there, was an improper act; it may for aught we know have been a misdemeanor, but it was not actionable negligence in this case, although its presence there is an incident to be considered.

2. The management of the local freight was of a different character. It stood upon that spur track awaiting the passing of the passenger train, in a position where' necessarily when it should back far enough *153to get upon the main track its rear would be protruded upon the street, and whether in backing the train that afternoon without the sounding of the whistle and the ringing of the bell the trainmen violated the statute or not, it certainly was incumbent upon them in some reasonable way to give warning, as by placing a watchman at the rear of the caboose, of the approach of the train to the street. The neglect of all attempt to warn was palpable negligence.

3. But what shall we say of the action of the deceased himself? He was possessed of all his faculties. He was a resident of the village, and knew the location of the spur track and' its uses. He knew, apparently at least, that the passenger train had passed and that the local freight was in, for he was expecting a shipment of oysters probably coming by one or the other of those trains. He was at the station to inquire for that consignment, so that, the presence of trains of that character, then or shortly before, near the station, would naturally be known to him. He had been on the platform far enough to the east to see the local freight as it stood upon the spur track. He knew— that is, he must be. held'to have known—that a steam railroad track is necessarily a dangerous place; that, locomotives and cars, once in motion, are not easily or' quickly stopped. All this must be áttributed to him. What, then, was his duty from the standpoint of self-preservation? Wasn’t it to look and listen for danger before stepping upon that track? What less could be expected of a person in possession of his senses? It is. true that there is a more or less strong presumption of fact that the instinct of self-preservation will prevent a man from rushing into danger, -but do we not see by every-day experience that men become careless of danger, either because of familiarity with it, or of *154temporary absence-of mind which causes them to be oblivious of its presence? No doubt this latter condition obtained with the unfortunate gentleman who dost- his life that afternoon, for, not only is there no -evidence in the record that he either, did look or listen, but the strong inference from the whole record is that he did neither.

But it is claimed, and this is the real and serious contention of counsel, that neither listening or looking would have availed; that the noise of the escaping steam would have neutralized the one and the cloud of smoke and steam would have rendered useless the other. There really is no evidence in the record that warrants this conclusion. It is evident that the train must have been making some considerable noise as it .approached ¡the crossing, a noise different in character from that of the escaping steam, and the volume of the latter noise is left very shadowy by the. testimony. Nor is .there greater certainty about the presence of .any considerable amount of steam and smoke in the immediate whereabouts of the deceased at the fatal moment. Four witnesses testified to the presence of steam and smoke in the vicinity, .but one only (McLaughlin) was in a position to notice their presence ;at the moment of the accident. One witness (Crowner) was in the hotel office, about sixty feet south; he testified to the presence of smoke and steam generally,, but ■was silent as to its presence at the moment when and the exact place where the accident occurred; he heard the noise of the trucks, and the first .he saw of the ■accident was a man under the wheels. One witness (McOready) who saw all of the transaction of the accident from the telegraph office in the depot did not -observe the presence of steam and smoke at all. Another (Miller) who stood by him in the office at the *155■time,, saw the smoke and steam, and observed that it was .carried easterly, and over the main track by the wind,- but he did not see McClellan when he was struck, and did not know of the fact until his attention was called by McCready to the presence of a man under the caboose. Another witness (McCurdy) testified with much fervor for plaintiff below, and was ready to speak with confidence respecting smoke and steam, but this witness met McClellan going west on the platform while he (the witness) continued some distance east, and did not then look around or know of the accident until he heard the scream, and finally admitted on the stand that he didn’t know by looking anything about the situation at the moment. McLaughlin, above referred to, saw the whole of the accident. He was on the street about two hundred feet south from the scene, and speaks of the general presence of steam and smoke in the vicinity; there was considerable smoke; I noticed the steam; it (the steam and smoke) came on the.south side of the engine and some of it came to the ground; it blowed to the ground and toward the depot; saw some along the sidewalk at the depot between that and the crossing. This much respecting the observation of the witnesses as to the presence of steam and smoke. It is to be noted that two only of the witnesses saw the deceased just before and when he was struck, viz.: McCready and McLaughlin, and their testimony is -vitally important as to his conduct. The former saw the caboose when within a very few feet of the deceased, and saw nothing to prevent McClellan seeing the caboose if he had looked. He first saw McClellan as he stepped down from the platform, in front of the rear end of the local; was going in a north-westerly direction; he had just, stepped down off of the platform onto the track *156when the train hit him. McLaughlin doesn’t undertake to say that the deceased could not have seen the' caboose if he had looked, but says he don’t know; and adds that he didn’t see him look. He saw McClellan when he was struck. He was in the middle of the-track; had just stepped from the platform to the track, and had made his second step; was in the middle of the track in a walking position, Avalking in a northwesterly direction. As McClellan was headed northAvest he would have had to turn somewhat to look to. the east, and this Avitness had then good opportunity of noting Avhether he turned or not. But one other (McCready) had such opportunity, and he saw no attempt on McClellan’s part to look. Both Avitnesses, saAv the caboose before McClellan was struck; indeed every witness saAv the caboose as it Avas backing down,, although the position of some of them was such as to. make their observation of much less significance than that of McCready and McLaughlin. Taken as a whole, however, the plaintiff’s own' evidence shows clearly that the deceased could have seen the caboose if-he had looked before stepping on the track, and that he did not look.

It is manifest that the condition-of the atmosphere Avould be changeable; Avhat Avould be its condition at one moment might be entirely changed the next, and it is a most significant fact that every Avitness Ávho saw the accident, or was near it, himself saw the caboose before it struck McClellan.

■ This *resume*is given not for the purpose of weighing the evidence, but for the purpose of illustrating the kind of a case Avliich the plaintiff beloAV presented, and Avhich Avas sustained by the trial court and by the reviewing court as one warranting a recovery, and for the further special purpose of showing what ought to *157Ihave been done with the motion to direct a verdict

It must be. apparent that the evidence produced by the plaintiff below at the trial, giving to each circum- : stance appearing in proof the most favorable, construction possible, showed beyond question that the deceased was negligent in a manner directly contributing to his death unless the presence of steam and rsmoke released him from the duty to exercise care. Does the presence of the smoke and steam, conceding all that is claimed for it, change the case? He knew the exact situation. He knew the dangers as well as any man could; the dangers that lurk about the track of a steam railroad. He found, if the claim of plaintiff below is correct, a temporary obstruction to his vision. A little patience, a wait only of a moment, and the atmosphere would be-cleared, and the opportunity for effective vision restored, and.as afterward proved, the whole danger obviated. His stepping upon the track at that point at that moment was an unnecessary act. He could easily have crossed the street south of the track and then have been free from danger. The rule of law of this state is clear. A person in possession of his senses approaching such a steam railroad known to him must look and listen; failing this he is guilty of contributory negligence which prevents a recovery from injuries arising from such failure, unless some further fact appears which relieves him. .In the present case the plaintiff’s testimony raised a clear presumption of contributory neg: ligence, and no tangible proof whatever was given which tended to rebut that presumption.

The case made is not one which presented a conflict In the evidence on any vital point. If such conflict Ihad been presented then the motion to direct a verdict should have been overruled and the cause given to the *158jury. The rule is that whether or not there' is evidence tending to prove an essential fact is a question, for the court, and if it be determined that there is not,, then there can be no conflict, and there is no question for the jury. The case is Wholly dissimilar from the-reported cases where a close question of fact appears- and the judgment of a jury is required to determine it. ‘As in *Hart*v. *Devereaux,*41 Ohio St., 565, where the-deceased was driving a pair of spirited horses over a crossing at the Side of which stood a locomotive blowing off steam which frightened the horses, and so engaged the driver’s' attention that he did not observe-the approach of an express train coming rapidly and without warning from-the opposite direction,-the view down the track being obscured by buildings, and was-killed by the express. As, also, in *Railway Co.*v. Snell, 54 Ohio St., 197, where there was-a conflict in. the evidence as to whether the injured party was-exercising his faculties of seeing and hearing, and it was-held a proper question to be-submitted to the jury. The case at bar more nearly resembles *Railway Co.*v. Whitacre, 35 Ohio St., 627, where it is held that: where-a person familiar with a dangerous railroad: crossing, in passing over the same, neglects the exercise of- any care to ascertain -if a passing train is near he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing AVill hot excuse; also that where the plaintiff’s-own testimony raises -a presumption of contributory negligence the burden rests upon him to remove it : A point pertinent, is held in *Railway Co.*v. Depew, 40 Ohio St., 121: that, a pérson upon a railroad track may not rely upon a signal being given of the starting of a train, and that the expectation that, such signal will be given will not relieve such person from constant watchfulness for his-*159safety. Law applicable to the present case is held in *C., C., C. & I. Ry. Co.*v. *Elliott,*28 Ohio St., 340, as-follows: “The omission to ring the bell or' sound the-whistle at public crossings is not of itself sufficient, ground to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident. What is such, contributory negligence as will defeat a recovery is. usually a question of mixed law and fact, to be determined by the jury from all the circumstances of the-case and under proper instructions from the court;,. but where the undisputed facts show that by the exercise of ordinary care a party might have avoided injury, he cannot recover.' It is the duty of a traveler upon the highway, when approaching a railroad crossing, to make use of his senses, to ascertain if there is a train in the vicinity; and if, Avhen in full possession of his faculties, he fails to see or hear anything, when, a prudent man, exercising his eyes and ears, with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery.” Our case also in one aspect resembles *Railroad Co.*v. *Skiles,*64 Ohio St., 458. It is there held that where a person Avithout looking or listening, steps upon a. railway track from a place of safety on a platform, immediately in front of and close to a backing switch engine and is injured, he is guilty of contributory negligence- and cannot recover.

The propositions here indicated are supported by a', great number of cases, some of which are here cited: *Railroad Co.*v. *Crawford,*24 Ohio St., 631; *Heaney*v. *L. I. R. R. Co.,*112 N. Y., 122; *Hoyt*v. *The City of Hudson,*41 Wis., 105; *Bancroft*v. *B. & W. R. R. Co.,*97 Mass., 275; McCrory *Admx.,*v. *C., M. & St. P. Ry.**160*Co.,*31 Fed. Rep., 531, opinion by Brewer, J.; *D. & R. G. Co.,*v. *Ryan,*17 Colo., 98; *Mann*v. *R. & S. Y. Co.,*128 Ind., 138; *C., K. & W. R. R. Co.*v. *Fisher,*49 Kan., 460; *Chase*v. *M. C. R. R. Co.,*78 Me., 346; *I. C. R. Co.*v. *Hall,*72 Ill., 222.

A number of cases in other states are cited which, with more or less force sustain the contention of plaintiff in error, bat the rule in Ohio, as we understand it, evidenced by the general trend of decisions, is in accord with the conclusions here indicated.

We are of opinion that the motion to direct a verdict for defendant should have been sustained. The .judgments below will therefore be reversed and judgment entered for plaintiff in error.

*Reversed.*

Burket, C. J., Davis, Shauck and Crew, JJ., •concur.