nance of gates, and to omit all reference to the presence or absence of the watchman. Southern R. Co. v. Aldridge, 101 Va. 142, 43 S. E. 333. man was at No notice 1 warned of the approach of the train. See Va. Code, 1904, § 1294d, p. 676; W. Va. Code, 1899, ch. 54, § 61, p. 508. Roberts v. Alexandria, etc., R. Co., 83 Va. 312, 2 S. E. 518; Virginia Midland R. Co. v. White, 84 Va. 498, 5 S. E. 573; Marks v. Petersburg, etc., R. Co., 88 Va. 3, 13 S. E. 299; Johnson v. Ches Watchman Required by Ordinance. -The ordinance of the town of North Danville required that any railroad operating in the town should "flag each and every train while crossing apeake, etc., R. Co., 91 Va. 171, 21 S. any of the public streets or highways." E. 238; Southern R. Co. v. Bryant, 95 At the time of this accident no flag- Va. 214, 28 S. E. 183; Atlantic, etc., R. Under Co. v. Rieger, 95 Va. 418, 28 S. E. 590; the crossing. these facts the jury gave a verdict in Simons v. Southern R. Co., 96 Va. 152, favor of the plaintiff for $9,000; and 31 S. E. 7; Southern R. Co. v. Cooper, the court overruled the motion to set 98 Va. 299, 36 S. E. 388; Bass v. Norit aside. Richmond, etc., R. Co. v. folk, R. etc., Co., 100 Va. 3, 40 S. E. Yeamans, 86 Va. 863, 12 S. E. 946. 100; Nuzum v. Pittsburgh, etc., R. Co., The train which caused the accident 30 W. Va. 228, 4 S. E. 248; Spicer v. complained of approached a Chesapeake, etc., R. Co., 34 W. Va. grade crossing in a city at a rate of speed pro News, etc., R. Co., 34 W. Va. 538, 12 514, 12 S. E. 553; Beyel v. Newport hibited by city ordinances. was given of its approach. The head- S. E. 532; Christy v. Chesapeake, etc., light was extinguished, and the watch- R. Co., 35 W. Va. 117, 12 S. E. 1111; man at the crossing failed to perform Butcher v. West Virginia, etc., R. Co., his duty. The deceased was passing 37 W. Va. 180, 16 S. E. 457; Toudy v. along a much frequented street, apNorfolk, etc., R. Co., 38 W. Va. 694, proaching a crossing where, under the 18 S. E. 897; Turner v. Norfolk, etc., city ordinance, there should have been R. Co., 40 W. Va. 675, 22 S. E. 83; a watchman to warn him, and there was Berkeley v. Chesapeake, etc., R. Co., 43 W. Va. 11, 26 S. E. 349; Young v. no train due at the time. It was held, the railroad company West Virginia, etc., R. Co., 44 W. Va. was guilty of negligence, and although the accident 218, 28 S. E. 932; Huff v. Chesapeake, might not have happened, if the de- etc., R. Co., 48 W. Va. 45, 35 S. E. 866. ceased had stopped or paused, still the failure of deceased to stop, did not, as a matter of law, make a case of contributory negligence so plain as to justify the court in withdrawing it from the consideration of the jury. Southern R. Co. v. Aldridge, 101 Va. 142, 143, 43 S. E. 333. c. Duty to Give Signal by Bell or Whistle. (1) In General. It is the duty of a railroad train when approaching a place where the track crosses either a street, highway or other public crossing to give warning of its approach by sounding its bell or whistle, in order that travelers who are about to cross the track may be No train has a right to cross a public highway without signing its approach to warn the persons who might Roberts v. Alexbe traveling there. andria, etc., R. Co., 83 Va. 315, 2 S. E. 518. Statutory Provisions-Virginia.-By an act of assembly (acts of assembly, 1893-1894, p. 827), it was provided "that a bell and steam whistle shall be placed on each locomotive engine operated on any railway in this state, and said whistle shall be at least twice sharply sounded, not less than three hundred yards before a highway crossing is reached; provided that at street crossings within the limits of incorporated cities or towns the sounding of the whistle may be omitted, unless re quired by the council of any such city or town, and the company shall also be liable for all damages which shall be sustained by any person by reason of such neglect." Simons v. Southern R. Co., 96 Va. 154, 31 S. E. 7. This act was repealed by the act of 1904, p. 368, ch. 253, and the present statutory regulation on the subject is found in the Virginia Code, 1904, § 1294d, and subsection 24, which requires railroad locomotives to sound their whistle outside incorporated cities and towns, at a distance of not less tha three hundred yards from the place where a railroad crosses upon same level any highway or crossing. statute of West Virginia (see W. Va. Code, 1899) ch. 54, p. 580, § 61, it has been held, that it is sufficient if either the bell is rung or the whistle is blown as the train approaches the crossing, the court holding that the statute did not require both the bell to be rung and the whistle blown. Spicer v. Chesapeake, etc., R. Co., 34 W. Va. 514, 12 S. E. 553. Requirement Previous to Passage of Statute.-Prior to the enactment of the statute (March 5, 1894), the servants of a railroad company, operating one of its trains, were required to give notice of its approach to a public crossing, and if they failed to do so and injury resulted from such failure, the company was liable therefor. Johnson v. Chesapeake, etc., R. Co., 91 Va. 172, 21 S. E. 238. Independently of any statute, it is the duty of a railroad company to give timely warning of the approach of its trains to the crossing of a public highway. While the company has the right of way at public crossings, it must give timely warning of the approach of its trains. This duty is em 1893-94, p. 824. Southern R. Co. v. Bryant, 95 Va. 212, 28 S. E. 183. "The legislature of Virginia has emphasized this duty of the railroad company for the protection of human life by requiring that a bell and steam whistle shall be placed on each locomotive engine operated on any railway in this state, and that 'the whistle shall be at least twice sharply sounded, not less than three hundred yards before a highway crossing is reached,' and also in making the company liable for all damages which shall be sustained by any person by reason of such neg-phasized by statute in Virginia. Acts, lect.' Acts, 1893-94, p. 827." Southern R. Co. v. Bryant, 95 Va. 214, 28 S. E. 183. West Virginia.-Section 61, ch. 54, W. Va. Code, 1887, enacts that a bell Of steam whistle shall be rung or whistled by the engineer or fireman of a locomotive at least sixty rods from the place where the railroad crosses any street or highway, and kept ringing or whistling for a time sufficient to give notice of the approach of a train before the street or highway is reached, and inflicts a penalty of not over $100 for its neglect; and that the railroad corporation shall be liable to any party injured for damages by reason of such neglect. Beyel v. Newport News, etc., R. Co., 34 W. Va. 538, 12 S. E. 533; Toudy v. Norfolk, etc., R. Co., 38 W. Va. 694, 18 S. E. 897. Ringing Bell or Blowing Whistle Sufficient-West Virginia.-Under the Station Signal as Substitute for Crossing Signal.-It can not be determined, as a matter of law, that a long, loud blast for a station signal is a sufficient substitute for the crossing signal of two sharp blasts at least three hundred yards before reaching the crossing required by the statute. Simons v. Southern R. Co., 96 Va. 152, 31 S. E. 7. A special train has no right to cross a public thoroughfare at an unusual rate of speed without slackening its speed, and blowing the whistle or ringing its bell; and where no ordinary precaution on the part of the plaintiff's decedent would probably have prevented the accident the railroad company is liable. Roberts v. Alexandria, etc., R. Co., 83 Va. 315, 2 S. E. 518. a Failure to Sound Whistle Neg- blow a whistle, on an engine, as religence. Where a statute imposes upon quired by § 61, ch. 54, W. Va. Code, a railroad company the duty of sound- 1887, is negligence for which a railroad ing the whistle on its locomotive en- company is chargeable; but this does gines approaching a crossing of not excuse a traveler on a highway highway for the purpose of preventing crossing a railroad track from the exa collision with travelers on the high-ercise of such reasonable care and cauway, or frightening their teams, and tion as the law requires, to ascertain the company fails to perform that duty, it is negligence, for the consequences of which the company is liable. Southern R. Co. v. Cooper, 98 Va. 299, 36 S. E. 388; Atlantic, etc., R. Co. v. Reiger, 95 Va. 418, 28 S. E. 590. Where, by statute or municipal ordinance, the railroad is required on approaching a crossing to ring a bell or sound a whistle, the omission to do so is negligence rendering the company liable, provided the failure of duty is the proximate cause of the injury, and they are not able to show that the omission was reasonable and prudent. Butcher . West Virginia, etc., R. Co., 37 W. Va. 180, 16 S. E. 461. See also, Young v. West Virginia, etc., R. Co., 44 W. Va. 218, 28 S. E. 932. whether a train is approaching the crossing. Beyel v. Newport News, etc., R. Co., 34 W. Va. 538, 12 S. E. 532. Failure Must Be Proximate Cause of Injury.-Failure to ring bell or blow whistle at crossings, though required by law, will not render the company liable, unless that be the proximate cause of the injury, and there be no such negligence by the plaintiff as will prevent his recovery. Beyel v. Newport News, etc., R. Co., 34 W. Va. 538, 12 S. E. 533. The failure of a railroad company to sound the whistle of its locomotive, in the manner prescribed by law, on approaching a highway crossing is negligence, and if a traveler on the highway is injured, there is some presumption that the injury was caused by the neglect, unless the traveler's own fault is manifest. Such negligence, however, does not entitle the traveler to recover, unless it was the cause of the injury. Whether it did cause the injury or not is to be deter If the servants of a railroad company, having in its charge one of its engines and trains running within the corporate limits of a city in this state, to and over a public wharf therein, shall fail or neglect to give notice at least sixty rods before its approach to such wharf by ringing the bell or blow-mined by all the facts and circuming the whistle of the locomotive for a sufficient time to give notice of its approach thereto, such failure or neglect is of itself negligence on the part of such railroad company. Nuzum v. Pittsburg, etc., R. Co., 30 W. Va. 228, 4 S. E. 243. Train Moving or About to Move. It is the duty of the engineer in charge of a train moving or about to move to give timely warning of its approach to a crossing or other place where the public have a right to go. Nuzum v. Pittsburg, etc., R. Co., 30 W. Va. 228, 4 S. E. 248. Does Not Excuse Traveler's Want of Care.-Failure to ring a bell, or stances of the case. Atlantic, etc., R. Co. v. Reiger, 95 Va. 419, 28 S. E. 590. Although a railroad company may have failed to sound the whistle of its lecomotive, on approaching a public crossing, in the manner prescribed by law, yet if it gave another or other warnings, which in fact notified the plaintiff who was injured at the crossing of its approach, or which would have given him notice if he had been exercising ordinary care, so that he could have avoided the injury complained of, he can not recover. Atlantic, etc., R. Co. v. Reiger, 95 Va. 419, 28 S. E. 590. Not Intended as a Protection to the purpose of preventing dumb aniHorses. Bells are used on locomotives mals from going upon the crossing. Toudy v. Norfolk, etc., R. Co., 38 W. Va. 694, 18 S. E. 896. See also, the title ANIMALS, vol. 1, p. 378. to lessen the danger to travelers on a street or highway of a collision with an engine crossing the same, and courts will take judicial notice of this fact, but they are not intended or useful in warning persons to keep at such distance from the track of the company as will prevent their horses from becoming frightened at a passing engine. Southern R. Co. v. Cooper, 98 Va. 299, 36 S. E. 388. See also, the title ANIMALS, vol. 1, p. 378. Street Railway. The people of the city have the same right to pass along an intersecting street crossing as the street car has to go across. It is, therefore, the duty of the company to give notice or warning of the approach of its car. Bass v. Norfolk R., etc., Co., 100 Va. 3, 40 S. E. 100. (2) To Whom Duty Is Owed. Persons Using Track at Crossing. The statute (W. Va. Code, ch. 54, §61) requiring the bell to be rung or a whistle to be blown at crossings, is designed for those passing over the tracks at such crossings, not for those using the track elsewhere for their convenience as a footpath. Spicer v. Chesapeake, etc., R. Co., 34 W. Va. 514, 12 S. E. 553, 11 L. R. A. 385; Huff v. Chesapeake, etc., R. Co., 48 W. Va. 45, 35 S. E. 866. Animals. The statutory requirement of blowing the whistle or ringing the bell sixty rods before reaching a crossing is intended to warn persons who are about to use the crossing in passing over the public road, and not for GENCE OF TRAVELER. See also, the title NEGLIGENCE. 1. In General. Where an action was brought to recover damages from a railroad company because of injury which resulted to plaintiff's intestate at a crossing, it was held, that where the negligence of the plaintiff's intestate contributed to his injury, there can be no recovery. Southern R. Co. v. Bruce, 97 Va. 92, 33 S. E. 548. The omission of the signals or warnings required by the statute is negligence in a railroad company prima facie, entitling an injured party to recover, and he is not, after proving such negligence and his injury, called on to prove that he is not guilty of contribufrom the evidence adduced by a plaintory negligence; but, when it appears tiff, or is satisfactorily shown by the defendant, that the plaintiff is guilty of contributory negligence, then it falls under the general principles of the law of contributory negligence above stated. Beyel v. Newport News, etc., R. Co., 34 W. Va. 538, 12 S. E. 532. See also, Young v. West Virginia, etc., R. Co., 44 W. Va. 218, 28 S. E. 932. Defendant's Failure to Use Caution. -No recovery can be had by the plaintiff where his negligence in any degree contributed to the injury received by colliding with a railroad train at a public crossing, unless the defendant, being aware of the plaintiff's danger, and having the opportunity to avert it, fails to use ordinary caution to do 50. Butcher v. West Virginia, etc., R. Co., 37 W. Va. 180, 16 S. E. 457. a. Steam Railroad Crossings. are Ordinary Care. Pedestrians bound to take ordinary precautions for their own safety, even if there was any negligence on the company's part. Norfolk, etc., R. Co. v. Wilson, 90 Va. 263, 18 S. E. 35; Johnson v. Chesapeake, etc., R. Co., 91 Va. 172, 21 S. E. 238. A passenger about to cross a railroad at a public crossing is bound to use ordinary care to avoid getting into a position in which a collision with a moving train is inevitable. Kimball v. Friend, 95 Va. 125, 27 S. E. 901; Eutcher v. West Virginia, etc., R. Co., 37 W. Va. 180, 16 S. E. 457. A court did not err in instructing a jury that if they believe from the evidence, and from a view of the place where the accident is alleged to have taken place, that the view of an approaching train was obstructed by buildings or otherwise, and that ordinary care would have required other precautions, and that the defendant did not use such other precautions, then they must conclude that the defendant was guilty of negligence; and if they believe further from the evidence that the plaintiff did not know that the train was nearing the gate, so as to endanger his passing through, but acted as an ordinarily prudent man would act under the circumstances, they must find for the plaintiff such damages as are proper, not exceeding the amount claimed in the declaration. Norfolk, etc., R. Co. v. Burge, 84 Va. 68, 4 S. E. 21. Extraordinary care or caution is not required of persons using a public crossing, to avoid the unforeseeable negligence of those in charge of a railroad train. tion of two streets, and being about to cross the track, he looked up and down for trains, and seeing none, turned to pass over at the crossing. A fast mail train was coming in on time at four or five miles an hour; and a box car, on a side track, in some degree, prevented engineer from seeing the wagon until within twenty-five or thirty feet, when he at once did all he could to stop, but a collision occurred between the engine and the hind end of the wagon, which was slowly going across the track, breaking the wagon and the traveler's thigh. In action by the injured person against the company for damages, it was held, though defendant may have been guilty of some negligence in leaving the box car on the siding, still plaintiff's own negligence in turning short and crossing track slowly without having used reasonable care to ascertain if train was coming, was the proximate cause of the collision, and he can not recover. Nash v. Richmond, etc., R. Co., 82 Va. 55. The court in this case said: "He ought to have known that traveling parallel with the track, as he had been doing for some distance, there was nothing to indicate to those in charge of a passing train that he was about to slowly cross their track. That he was a venturesome person is shown by the slowness with which he crossed the track, and the remark of his sister, 'I think you can go clear, as you generally do.'" to The rules for determining contributory negligence, as applied to street railways, are in some respects quite applicable Meeks v. Ohio River R. different from those steam railroads running on their own Co., 52 W. Va. 99, 43 S. E. 118. Richmond Traction Co. V. land. Clarke, 101 Va. 382, 43 S. E. 618; Bass v. Norfolk R., etc., Co., 100 Va. 1, 40 S. E. 100. Effect of Gates on Degree of Care.See ante, "Gates," II, B, 2, a. Slowness in Crossing.-A traveler in a covered wagon, open at each end and drawn by two horses, was traveling on The rights of street cars on a city a street in a city, parallel with a rail- street, no matter by what power proroad track. On reaching the intersec-pelled, are not superior to those of any |