Page:Federal Reporter, 1st Series, Volume 8.djvu/745

 THOMAS V. DELAWABE, LACKAWANNA * WBSTKBN E. CO. 731 �is negligence, cari only be defined by general propositions, the appli- cation of which must depend upon the oircumstances of the partic- ular case. �In Continental Improvement Co. v. Steadj 95 U. S. 161, it is stated that travelers upon a highway which crosses a railroad, and the rail- road Company, have mutual and reciprocal daties and obligations, and although the train bas the right of way the samo degree of care and diligence in avoiding a collision is required f rom each of them ; and that the degree of diligence to be used on either side is such as a prudent man would exercise, ander the circumstauces of the case, in endeavoring fairly to perform his duty. In this case the court approved the ruling of the court below, that the amount of care re- quired of the railroad company depended on the risk of danger, and that TThen the view was obstructed so that parties crossing the rail- road could not see an approaching train, that the latter should ap- proach the crossing at a less rate of speed, and use increased dili- gence to give waming of their approach. �The authorities of like import are too numerous and unanimous to need citation. The case of Cordell v. N. Y. C. R. Co. 70 N. Y. 119, however, deserves a reference ; because, while asserting the same gen- erai propositions, it is also to the effect that although there is no statutory requirement to ring a bell or sound a whistle at a farm crossing, it does not follow that the omission to do so, when the crossing is obstructed, is not a circumstance to be considered in de- termining the question of negligence. �The case was also fairly presented to the jury upon the issue of the negligence of the deoeased. They were instructed that it was incumbent upon him, before attempting to cross the track, to use all his faculties to ascertain whether or not he could do so safely, and that he was held to that measure of care and prudence which would have been exercised by an intelligent and careful man under the same oircumstances. Notwithstanding the testimony of the defendant's witnesses, the jury were at liberty to draw the inference that owing to the obstructions the deceased did not see the approaching train, an^ that owing to the noise of the faetory he did not hear it. The absence of any fault upon the part of the deceased may be inferred from the circumstances in connection with the ordinary habits, con- duct, q,nd motives of men. The natural instinct of self-preservation in the case of a sober and prudent man stands in the place of posi- tive evidence. Johnson v. Hudson River R. Co. 20 N. Y. 65. ��� �