Page:Federal Reporter, 1st Series, Volume 8.djvu/504

490 FEDERAL REPORTER. �as men of common prudence would ordinarily use under the circum- stances. The degree of care raquiredi in such cases depends upon the danger. As there is neoessadly great danger in crossing a railroad track where trains are liable to pass at any time, great care is de- manded alike of the engineer in charge of the locomotive and of the trayeler upon the highway. . Both have the right to pass, and their rights, duties, and obligations are mutual and reciprooal, and the same degree of care is required of each, The wh oie law of the case may be summed up in these words, taken from the opinion in the case, of Continental Improvetnent Go. v. Stead, 95 U. S. 165: "Both parties are charged with the mutual duty of keeping a careful lookout for danger ; and tha degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly tp pejiform his duty." If neither party keeps acaireful lookout for danger, and an accident and injury ensue, there is no cause for action. Do the facts relied upon by plaintiff excuse Mm from the duty of looking out for danger by looking towards the depot for a coming train before driving onto the track ? If not, do they show that by defendant's negligence the plaintiff was dis- abled from preventing the accident by ordinary prudence ? It was a special and not a regular train. This fact may be considered as bearingupon the degree of care and caution required of plaintiff; but I am unable to hold that it excuses him from the duty of looking out for a coming train. It is comœon information that special trains are frequently run over all important Unes of' railroad, and no case has gone eo far as to hold that a traveler crossing a railroad track is only bound to look out for regular trains in cases where there is nothing to obstruct the view. �I assume that the train was moving at an unusual and dangerous rate of speed. This, very clearly, did not relieve the plaintiff from the duty of looking out, but it presents the question whether he had time af ter he could, have seen the train, by looking, to have avoided the accident by ordinary prudence. Of this I will speak hereafter. The train did not stop at the depot. The proof is that trains usually stopped there, but that they sometimes passed without stopping. This fact could only avail the plaintiff upon the theory that he heard the whistLe announcing the approach of the train, and, supposing it would stop at the depot, did not look to ses whether it did so or not ; and I must say that I see no other theory on which the accident can be explained besides that. If such was the fact, the plaintiff was plainly negligent, for these reasons : ��� �