Page:Federal Reporter, 1st Series, Volume 9.djvu/887

872 FEDERAL REPORTER. �the train, in order to avoid a collision. See Cont. Imp. Co. v. Stead, 95 U. S. 161, �This is the duty on one aide, and upon the other it is the duty of those desiring to make the crossing to use their powers of hearing and of vision to ascertain whether or not there is likely to be a passing locomotive or train, and if so, to stop.until the danger is past. If there is no obstruction to either the sound or vision, then the passer need not stop, but must use both these faculties; but if there is such obstruction then it is fais duty to stop and both look and listen ; and if he neglects to use these precautions and a collision takes place, compensation cannot be given, unless it was caused by gross negli- gence or wrongful oonduct of the employes conducting the railroad operations ; the general rule being that if the injured party contributes to bringing about the injury he cannot recover, although the employes may not be wholly blameless. �The petitioner knew the dangerous condition of the crossing; that the warehouse formed an obstruction to the sight and sound of the locomotive coming from the east ; and also knew, or had reason to know, that it was the time for making up the train, It was therefore his duty, before attempting to cross the track, to both look and listen for the approaoh of the locomotive, and, if need be, to stop for that purpose. See Pennsylvania R. Co. v, Beale, 73 Pa, St. 504; AUyn v. Boston, etc., R. Co. 105 Mass. 77. �Aecording to the admission of the petitioner, this he neglected to do until his horse was frightened by the approach of the locomotive. Had the horse not become frightened, he was a sufficient distance from the locomotive to have stopped him and waited for it to pass or get out of the way. Whether the fright of the petitioner caused him not to control his horse, or that the horse could not be controlled, the fact is that it was not done, and he urged him forward before the engine with the hope of escape, and the collision ensued, This calamity to the petitioner is certainly very much to be regretted, both on his account and those dependent upon him, but one which is dif&cult from the evidence to attribute to the defendant or his employes. See New Orleans, etc., R Co. v. Mitchell, 52 Miss. 808. The proof is that the horse was unusually gentle and used to crossing at that point, yet the proof is equally clear that on this occasion he became frightened with- out more than usual cause. Certainly this could not be apprehended by the engineer; he had a right to presume that the petitioner would stop until the danger was past, and could not reasonably suppose that the petitioner would run the hazard of attempting to cross in front of ��� �