#### Douglas, Appellant, vs. The Chicago, Milwaukee *&*St. Paul Railway Company, Respondent.

*August 31*

*September 20, 1898.*

*Railroads: Gates at highway crossing: Assumption of risJe: Custom.*

1. The presence of gates across the highway at a railroad crossing is specific notice that the danger of going upon the right of way is immediate, and a traveler who, disregarding the warning, attempts to cross assumes all risk of injury by being struck by passing trains.

2. “What persons customarily do under similar circumstances has no application as a test of ordinary care, where the act is so obviously dangerous as to constitute negligence as matter of law.

Appeal from a judgment of tbe superior court of Milwaukee county: J. C. Ludwig, Judge.

*Affirmed.*

Action to recover for personal injuries alleged to bave been caused by defendant’s actionable negligence. Tbe evidence tended to prove that at a Becker street crossing of tbe defendant’s railway right of way in tbe city of Milwaukee, defendant maintained sis railway tracks with a gate on eacb side of tbe right of way, so operated that when the crossing was about to be used for tbe passage of trains the gates were let down so as to bar tbe approach to tbe track for tbe entire *406width, of the street; that plaintiff was familiar with the crossing and the purpose for which the gates were used; that pedestrians were accustomed, notwithstanding the operation of the gates, to enter upon the right of way and cross it as in their judgment circumstances would permit; that on a dark night between the hours of 9 and 10, plaintiff approached the crossing by way of the street from the east; that as he arrived at the gate it was let down, but he nevertheless passed around it and proceeded to cross the right of way; that he looked both ways and listened for an approaching train, and observing one coming from the north, about 500 feet away, concluded he could safely proceed, and did so; that he passed over the track on which the train was coming, and when he reached the westerly track was struck and injured by a train that was backing up without any light or man on the rear end to signal its approach. He testified that he continued to look both ways for approaching trains after he passed the ■one which he observed 500 feet away.

Defendant’s counsel moved the court for a nonsuit, which was granted, and from the judgment thereupon entered plaintiff appealed.

For the appellant there was a brief by *W. J. Turner,*of counsel, and *J. J.*McDonnell, attorney, and oral argument by *L. S. Pease.*

They contended, *vnter*alia, that the use of gates or flagmen at crossings does not excuse the railway ■company from the use of signals required by law to protect travelers at crossings. *Grvppen v. M. T. O. B. Go.*40 N. Y. 42; *Meddles v. O. <& N. W. B. Go.*74 Wis. 239; *Kinney v. Grocker,*18 id. 74. The plaintiff had a right to rely upon the continued use by the railway company of signals and warnings which were well known to him and which had become a custom and usage in the operation of the company’s trains, especially when such signals and warnings were still required by the statute and the rules of the company. *JVewson v. M. 7. G. B. Go.*29 N. Y. 390; Beach, Con*407tributory Negligence, § 67; *Fowler v. B. <& O. B. Go.*18 W. Ya. 579; *Philadelphia <& T. B. Go. v. Fagam,,*47 Pa. St. 244; *Frnst v. H. B. B. Go.*35 N. Y. 9; *Ward v. G., St. P., M. di¡ O. B. Go.*85 Wis. 604; *Ferguson v. W. G. B. Go.*63 id. 145; *Burns v. Forth Ghieago Bolling Mill Go.*65 id. 315; *Hendrichson v. G. N. B. Go.*49 Minn. 245.

*C. H. Van*Alstine, counsel, for the respondent.

Marshall, J.

Where there is a reasonable dispute as to the evidentiary facts tending to establish negligence, or to the reasonable inferences which a jury may rightfully draw therefrom, the ultimate fact as to whether the party charged with negligence is guilty is for the jury; but where the facts are undisputed and the inferences therefrom all one way, the controversy turns on a question of law and must be decided by the court. Testing this case by that familiar rule, the trial court nonsuited the plaintiff. Whether contributory negligence on the part of the plaintiff was conclusively established so as to raise but a question of law is the sole question on this appeal.

Some things in the law of negligence are settled and so firmly established by judicial authority as to be binding on the courts as rules of unwritten law, and among those things is, that if a person enters upon a railway track after receiving timely warning that it is about to be used for the passage of trains, he does so at his peril, and if a personal injury results by his being struck by a train, such result is attributable to his contributory negligence, and neither he nor his personal representatives can recover therefor. There are some exceptions to this rule growing out of special circumstances in particular cases, but the facts of this case bring it clearly within the rule. At a railway crossing of a public street in a populous city, especially where there are several side and spur tracks as well as main tracks in frequent use by night and day, the maintenance of crossing gates is one *408of the most common and most effectual methods of guarding the personal safety, not only of travelers on the street, but of the employees of the railway company as well. Where gates are so maintained it is the duty of travelers, on approaching the right of way and observing that the gates are down or about to be let down, to stop till they are raised before proceeding. The presence of a gate across the approach to the railway tracks says to the traveler, in a manner not to be misunderstood, that such tracks are presently to be used for the passage of trains. The track, itself, is a general notice of danger, calling upon the traveler to look and listen for approaching trains, but the presence of the gate across the highway is more. It is a specific notice that the danger of going upon the right of way is immediate, and that no person of ordinary care should assume it without expecting to take all risks upon himself of what may result so far as relates to his personal safety. It is no excuse for disregarding such a warning that persons are accustomed to cross at that place when the crossing gates are down.. True, what persons customarily do under- similar circumstances is usually the test of ordinary care, but to that is the familiar exception that where the doing of an act is so obviously dangerous as to constitute negligence as a matter of law, as going upon railway tracks, or walking upon the tracks without looking or listening, or persons, not employees of a railway company, jumping on and off from moving cars, or the doing of any other of the many things that might be mentioned, that are dangerous in themselves, it is inconsistent with ordinary care, regardless of custom. *Flynn v. Eastern R. Co.*83 Wis. 238; *Glover v. Scotten,*82 Mich. 369; *Warden v. L.*& *N. R. co.*94 Ala. 277; *George v. M. & O. R. Co.*109 Ala. 245; *Wherry v. D., M. & N. R.*Co. 64 Minn. 415.

The adjudicated cases on the questions raised, here are substantially all one way and on the line indicated. *Cleary v.**409*P. & R. R. Co.*140 Pa. St. 19, is directly in point. There plaintiff entered within the limits of the crossing, disregarding the gates, and while looking at one train with a view of avoiding it, was struck by another. Her view of the train *that did*the injury was interfered with by the one she had in mind to avoid. There was no bell rung or whistle sounded, nor any brakeman or flagman on the the car that did the mischief to warn persons upon the crossing of its approach. In deciding the case the court said, in effect: Crossing gates are a warning to all persons approaching the tracks, whether traveling on foot or otherwise, the only difference being that though a vehicle cannot pass them a footman may if sufficiently foolhardy to attempt it and if successful in escaping the danger. The gates are a warning, not for a particular train, but for all trains that may be about to pass or be passing while they are down. To the same effect are *Sheehan v. P. & R. R. Co.*166 Pa. St. 354; *Peck v. N. Y., N. H. & H. R. Co.*50 Conn. 379; *Granger v. B. & A. R. Co.*146 Mass. 276; *Duvall v. M. C. R. Co.*105 Mich. 386; and *Baltimore & O. R. Co. v.*Colvin, 118 Pa. St. 230.

In *Sheehan v. P. & R. R.*Co., supra, the court said, in substance, that if a person goes upon a railway track regardless-of the warning to him by the presence of the gates across-the approach, and is injured by placing himself in the pathway of an approaching train, without wanton negligence on the part of the railway company’s servants, he cannot recover, whatever he may say about looking- and listening. Though the court treated the failure to observe the approaching train as a distinct act of negligence, precluding a recovery, the act of being on the right of way at all, under the circumstances, was also deemed fatal, *Cleary v. P. & R. R. Co., supra,*being cited as controlling, and the effect of the opinion and decision said to be as stated.

In *Granger v. B. & A. R. Co., supra,*the circumstances were that it was dark and misty, so that the lights had al*410ready been, set for tbe night; that there were four tracks, and crossing gates let down so as to bar the approach thereto for the entire width of the street, including the sidewalks; that a train had entered upon the crossing on the first track and another was approaching on the third track and only a short distance away. The person injured, disregarding the warning by the gates being down, passed under or around them and successfully avoided the first train, but was struck by the second about seventeen feet further on, and killed. The court below sent the case to the jury with the result that there was a verdict and judgment for plaintiff. On appeal the judgment was reversed, the court saying that the presence of the gates sufficiently warned the intestate that it was dangerous to cross the tracks, not that the gates were down for the first train only, which was in plain view, but for any train that might be about to pass the crossing; that the scope of the warning was that the defendant required for the present the exclusive use of the entire crossing for its business, and it was negligent for the- deceased to pass the gates and go upon the crossing at all under the circumstances.

Perhaps a still stronger case than any before cited is *Debbins v. O. C.*R. *Co.*154 Mass. 402. There a person went upon the railway tracks regardless of the crossing gates being down, in order to board a train that was standing on one of the tracks. There was another train approaching and in dangerous proximity, but obscured from view by the first train mentioned. It was dark and there was no headlight or other means of warning of the approach of the moving train, other than the position of the gates and the noise. Plaintiff was struck by the latter train and severely injured. The court held that he was guilty of gross negligence; that if he had been a mere traveler and undertaken to cross the tracks while the gates were down, knowing that fact, he would have taken the risk and could not have recovered for *411any injury received from a passing train; tbat if tbe fact tbat be desired to board tbe train excused bim from passing tbe gates at all under tbe circumstances, be was yet bound, as be proceeded, to use all tbe caution wbicb tbe nature of tbe case would permit, and tbat sucb precaution required more than to glance in tbe direction of tbe approaching train.

The reasoning of tbe cases to which special attention has been called, and of others cited, applies to tbe facts of this case, and meets with unqualified approval. They are in accordance with well-settled principles in tbe law of negligence, and must control here in favor of tbe affirmance of tbe judgment appealed from.

*By the*Court.— Judgment affirmed.