Lore, C. J.,
(charging the jury.)
It is for you to determine whose negligence caused the damage.
To entitle the plaintiff to recover he must show to your satisfaction by a preponderance of proof, that the negligence of the defendant was the cause of the injuries; and that Little who was using the property of the plaintiff on that night did not contribute thereto. If the plaintiff has made such proof he is entitled to recover ; for you are not • to consider the care or negligence of Mr. Garrett and those with him in another carriage, only so far as the negligence of - Little may be shown thereby. In this case we have to do only with the question of whether Little was negligent, not whether Garrett was negligent.
As Little is dead; not here to speak for himself; the law clothes him with the presumption that in approaching the crossing on that night he did his duty; used such care.and precaution as an ordinarily prudent and careful man would use in like case. By that presumption you are to be governed, unless the evidence directly or indirectly rebuts it and shows that he did not use such care and precaution.
All railroad crossings of public highways at grade are dangerous. Some are unusually so, especially in crowded cities and where there are great natural or artificial obstructions. The laws requires a railroad corporation at such crossings, to use care and diligence for the protection of persons travelling on the highway proportioned in all cases to the dangerous character thereof. But a like duty is imposed by law upon the traveller on the highway; he must use like care and diligence. The same duty as to care rests upon the railroad company and upon the traveller on the highway. The rule is well stated by the late Chief Justice Comegys in Parvis vs. P. W. & B. R. R. Co., 8 Houston, 436. “The greater the peril to the individual the greater the duty of care by the company, and of prudent and due caution on the part of the individual. At places of great danger great care must be taken by both parties.”
As to flagmen; where a railroad is under no original obligation, to station a flagman at a particular crossing; yet if it has done so for many years, travellers have a right to presume in case of his absence that the road is clear and the way safe. Shear. & Redf. on Negligence § 466. Or as stated in Berry vs. The Pennsylvania R. R. Co., 26 A. & E. R. R. Cas. 396, where a traveller, “ knows that a flagman is habitually stationed at a crossing, and upon looking, finds that the flagman is not at his post giving signals of danger, he has a right to presume that a train is not about to pass.”
If, therefore, the damage in this case was the result of such negligence on the part of the flagman at Concord crossing alone, the plaintiff will be entitled to recover; for it was the duty of the flagman to give timely and efficient warning. But the absence or the negligence of the flagman will not excuse the person about to cross the track from using every reasonable precaution that an ordinarily prudent and careful man would use. Notwithstanding the negligence of the flagman, if the .traveller saw the danger or by the reasonable use of his sight and hearing could have seen or heard the approaching train, yet negligently crossed the tracks, and thereby contributed in any degree to the accident he cannot recover. If you believe Little so contributed to the accident on that night, the plaintiff in this case cannot recover.
In making up your verdict you must be governed by the evidence. Where the evidence is conflicting, as in this case, it is your duty to reconcile it if you can; if you cannot, then you should give credence to the testimony of those witnesses who are most entitled to belief; taking into consideration their intelli gence, opportunity for getting correct information, lack of bias, and lack of me tive and interest to depart from the truth.
Should you find for the plaintiff, your verdict should be for $192.00, the actual damage proved by the plaintiff and not disputed by the defendant.
The Jury disagreed.