#### J. C. Crawford, Appellant, v. Chicago Great Western Railway Company.

Crossing Accident: presumption op care on part op person in-2 jured: *Is rebuttable.*Tne presumption that one who lost his life in driving over a railroad crossing in front of an approaching train exercised due care is not conclusive.

Contributory negligence op plaintiff’s servant. In an action against a railroad company for the loss of plaintiff’s horses, 1 wagon and harness by a collision in which plaintiff’s servant was 3 killed at a crossing by a train, the burden is on plaintiff to show, not only negligence on the part of defendant, but freedom from contributory negligence on the part of his servant.

Evidence op. Plaintiff’s servant drove over a railroad crossing, and was killed by a train which was approaching the crossing at a high rate of speed and without the ringing of bell or giving of 3 other signal but which he could have discovered, if he had looked and listened any time after he was within 125 to 50 feet of the track, in time to have avoided the accident. He knew the crossing, and his eyesight and hearing were good. Held, that his negligence was clearly apparent.

*Appeal from Tama District Court.■*— TIon. Obed Caswell, Judge.

Friday, October 20, 1899.

ActioN at law to recover for injuries to personal property alleged to have been caused by negligence on the part of the defendant. A verdict for the defendant was returned by direction of the court, judgment for costs was rendered thereon, and the plaintiff *appeals.*

Affirmed.

*Struble & 8tiger*for appellant.

Cummins, *Hewitt & Wright*for appellee.

Robinson, O. J.

The evidence submitted on the part of the plaintiff tended to show the following facts: A rail*434way of the defendant extends through. Melbourne, in Marshall county, southward. At a point about two miles south of the town it is crossed a.t right angles by a wagon road, extending from east to- west. About 40 rods east of the crossing is a school house. The surface of the ground over which the road runs descends gradually from a point three hundred feet west of the school house to a point from one hundred and fifty to- one hundred and twenty-five feet east of the railway track, where there is a strip' of level ground about twenty-five feet in width, called by some witnesses a “swale.” From a point one hundred and twenty-five feet east of the track the surface of the ground inclines upward to the track. At a point three hundred feet north of the crossing is the south end of a. railway cut, and the ridge through which it passes extends eastward. A person going from the school house westward can see a railroad train approaching from the north at all times until within one hundred and fifty feet of the track, and from that point to the crossing can see a train approaching from the north a distance of five hundred or six hundred feet. The plaintiff resides one-half mile west of the crossing. In November, 1891, an employe of. the plaintiff named Olaflin, with a team and a wagon of the plaintiff, hauled a load of grain to Melbourne, and while returning was struck at the crossing by a train of the defendant running southward, and killed, the two horses were killed, and the wagon and harness were destroyed. The plaintiff seeks to recover the value of the property destroyed.

• At the time of the accident the train was running at a speed of from forty to fifty miles an hour, and approached the crossing without the ringing of a bell or the blowing of a whistle. As Olaflin drove towards the crossing, he was standing in the wagon facing westward, and the team was trotting slowly. When he reached the swale the team was checked, if not stopped, for a. moment, but it is not shown whether he looked for a train, or, if he did, which *435way be looked. He drove westward from tbe swale, and 1 tbe accident occurred as stated. It is clear that, bad be looked for tbe train at any time after be was within from one hundred and twenty-five to fifty feet of tbe track, be would have discovered.bis danger, and avoided tbe accident. Tbe plaintiff contends that, as it was tbe duty of tbe defendant to’ give signals of its approach to tbe crossing, Claflin bad a right to rely upon its doing so, and was not required to stop bis team, and look and listen, if be could, without so doing, have beard tbe signals, bad they been given. Tbe plaintiff also contends that, as Claflin lost his life in tbe collision, tbe presumption that be exercised i 2 due care must prevail. That srrcb a presumption is proper, and must be given weight, may be conceded, but it cannot prevail aga'ist evidence which shows that be could not have exercised dufe cajje. That tbe defendant was negligent appears to have been fully established. See Code, section 2072. Tbe burden was on tbe plaintiff, however, 3 to show, not only negligence on tbe part of defendant, but also that his employe was not guilty of contributory negligence. *Baker v. Railway Co.,*95 Iowa, 163. Before there can be a recovery on account of tbe negligence of a railway company in failing to give tbe statutory signals, or for running at an excessively high rate of speed, it must be shown that tbe person suffering injury from tbe negligence did not contribute to the injury by negligence on bis part, and be cannot, in all cases, rely upon tbe railway company to give tbe signals required by statute. A person possessing tbe ordinary powers of seeing and bearing cannot, without negligence on bis part, knowingly approach a railway crossing, and fail to discover an approeh-ing train, which be can readily see or bear a sufficient length of time to enable him, with reasonable effort, to avoid danger. *Sala v. Railway Co.,*85 Iowa, 678; *Banning v. Railway Co.,*89 Iowa, 74; *Moore v. Railway Co.,*89 Iowa, 223. So far as the record shows, Claflin’s eyesight and bearing were *436good, and be knew tbe crossing. That bis negligence contributed to tbe accident and tbe destruction of tbe property in question is clearly shown, and tbe district court properly directed a verdict for tbe defendant. Its judgment is therefore AEEIRMED.