CONTRIBUTORY NEGLIGENCE.

[Hamilton Circuit Court,

February Term, 1886.]

Cox, S mi tli and Swing, JJ.

#### †P., C. & St. L. R’y. Co. v. Joseph Peters.

1. Duty of Persons Crossing Railroad Track.

Generally, a person who is about to cross a railroad track, must use his senses to ascertain whether a train is approaching the crossing, and if he fails to do so, and suffers injury in crossing the track, he is guilt}' of contributory negligence. That other engines were making noise and smoke imposes greater care upon him.

2. Use of Senses to Ascertain the Approaching of Trains.

Abstractly, under some circumstances a person is excused from using his senses to ascertain whether a train is approaching, but to render this rule applicable to any particular case, the facts and circumstances which excuse the plaintiff must be put in evidence.

3. Plaintiff’s Contributory Negligence Bars His Recovery.

Where there is contributory negligence, the plaintiff cannot recovér, although his negligence is slighter in degree than that of the defendant’s.

Rrror to the Court of Common Pleas of Hamilton county.

†

This judgment was affirmed by Supreme Court without report, March 29, 1887.

Swing, J.

The plaintiff, Joseph Peters, was injured in September, 1877, at Delta station, in the eastern part of Cincinnati, by collision with a locomotive of the railway company.

*21Ramsey, Maxwell & Matthews, for plaintiff in error.

D. Thew Wright, for defendant in error.

The testimony introduced by Peters showed that about seven o’clock in the evening of September 6,1877, he was talking with some friends, on the south side of Eastern Avenue, opposite Delta Station, when a train from the city, going east, arrived at the depot and came to a halt. Peters, desiring to see a friend whom he expected to come on the train, started to go across to the station. The station being on the north side of the track, he was obliged to go north-eastwardly, going around in front of the locomotive of the east bound train, and he testified that, before he started to go across, he looked to see if a train was approaching from the east. There is a double track at this point, and he crossed the south track to a point between the two tracks, and walked westwardly a number of steps before turning to cross to the north side of the north track. He then stepped upon the track to go across, without looking again, and was struck by a locomotive of a train going west to the city.

There was testimony tending to show that the train -was going at a considerable rate of speed, that it failed to give the proper signals, and that the engineer was not giving proper attention to the movement of his train.

There was evidence tending to show that the engines of two dummies, standing at the station on the narrow-guage track, were making smoke and noise, and that the locomotive of the east bound train was making smoke.

The court charged the jury that the plaintiff would not be negligent if he did not look and listen before attempting to cross the track, if a man of ordinary prudence would have omitted to do so. The court also charged the jury that, even though the plaintiff were guilty of some negligence, the defendant would be liable, if guilty of a greater degree of negligence. The plaintiff had a verdict for $3,500, upon which judgment was entered.

This court .held:

*First*— That upon the plaintiff’s own showing, he was guilty of contributory negligence, which precluded a recovery; that it is the duty of one about to cross a railway track to use his senses to ascertain whether a train is approaching; and that when he attempts to cross without making such use of his senses, and suffers injury thereby, he cannot recover against the railroad company, notwithstanding its negligence.

*Srcofid*— That it was error to charge the jury that the plaintiff could recover if he were guilty of a slighter degree of negligence than the defendant.

*Third*— That the charge of the court to the effect that a person about to cross the railroad track may, under some circumstances, be excused from using his senses to ascertain whether a train be approaching, was correct as an abstract proposition of law, but that to render it applicable to any particular case, the circumstances relied upon to show an excuse for the plaintiff’s failure, must be put in evidence by him, and that in the present case no excuse was shown tor the omission upon his part, and it was error to give this statement of the law to the jury in this case. The fact that the dummy engines were making noise and smoke, if such were the fact, so far from furnishing an excuse for the omission, increased the necessity for the exercise of the care ordinarily required. It is because railroad crossings are dangerous that it is the duty of persons approaching them and about to cross, to be careful. Any circumstance which increases the danger of the crossing, increases the duty of vigilance to avoid injury.

Judgment reversed.