And again it was there held:

"The obligations, rights and duties of railroads and travelers upon intersecting highways are mutual and reciprocal, and no greater degree of care is required of one then the other. True, the railroad company has the right to precedence at such crossings; but both parties, in the exercise of their respective rights, are nevertheless required to exercise reasonable care in enjoying them-the one to avoid inflicting injuries, and the other to avoid being injured. A person attempting to cross a railroad track at a public crossing in a city has the right to expect that the railroad will give the signals required by law to warn him of the approach of a train, and that it will not be run at an excessive and dangerous rate of speed, and if he is without fault and such neglect and act on the part of the road results in his injury, then he can recover. Texas & Pac. Ry. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 132, 67 Sup. Ct. 703; C. & E. I. R. R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 766; Cleveland, C., C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N. E. 985.

Speaking of the degree of care required by travelers, it was held:

"So that, in determining the degree of care which a pedestrian about to cross a track at a public crossing in a city must exercise, the general rule is, that the pedestrian who does not know of the negligence of a railroad company in running its train at an unlawful rate of speed, and in failing to give the required signals of its approach, and such want of knowledge is not the result of his failure to exercise a degree of care, he is only required to exercise that degree of care which ordinarily prudent persons will exercise when the railway company is also exercising the care which the law imposes upon it, in the operation of its trains at street intersections."

In that case the traveler looked but once, and it was contended as in this case, that this was insufficient. said in answer to this argument:

It was

"It is true that had plaintiff looked the second time, just

prior to stepping upon the track, he would have discovered the approach of the engine; but the law only required that he should stop, look and listen at the time and place necessary in the exercise of that degree of care which an ordinarily prudent person would have exercised in similar circumstance; and whether by looking only once, at the time and place he did, under the circumstances narrated, was a proper exercise of that degree of care which the law imposes, depended upon other matters which should be taken into consideration. Where in case of an injury at a crossing, it appears that the person injured did look for an approaching train, it does not necessarily follow, as a rule of law, that he has no remedy because he did not look at the precise time and place when and where looking would have been of the most advantage, and probably avoided the injury. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised the degree of care which the law imposes upon him. Rodrain v. R. R. Co., 125 N. Y. 526, 26 N. E. 741."

It will be seen from that opinion, that in considering the question of contributory negligence, the plaintiff had a right to expect that the engineer would give the signals required by law to warn him of the approach of the train, and that the company will not run its train at any excessive or dangerous rate of speed The majority opinion not only ignores this lawful right but positively denies it.

The rule stated in the Nichols case, in determining the degree of care to be exercised by the plaintiff, is as clearly ignored. But worse than this, the majority opinion repudiates the following declaration in the Nichols case:

"Where in case of an injury at a crossing, it appears that the person injured did look for an approaching train, it does not necessarily follow, as a rule of law, that he has no remedy because he did not look at the precise time and place when and where looking would have been of the most advantage, and probably avoided the injury. Many circumstances might be shown which could properly be con

sidered by the jury in determining whether he exercised the degree of care which the law imposes upon him."

The majority opinion does in effect determine as a matter of law, that plaintiff, either because he looked but once, or because he did not look at the time and place when and where looking would have been of the most advantage, was guilty of contributory negligence, and utterly ignores the right to have considered all the circumstances in connection therewith, in determining the question of due care.

The majority opinion quotes extensively from the testimony of the plaintiff, who palpably neither speaks nor understands the English language with any degree of accuracy, and if he had an interpreter, such interpreter is but little if any improvement over the plaintiff in this respect.

Such testimony and the force of it is plainly much better understood and interpreted by the jury and the court in whose presence it is given, than by one who has nothing before him but the record wherein it is attempted to be reproduced. But the majority opinion overlooks the testimony of an apparently clear headed English speaking witness, as to surrounding conditions and circumstances bearing on the accident, and whose testimony is certainly entitled to consideration in the absence of nothing to the contrary.

The witness, named Garner, whose father's house is located west of the crossing, testified that he had been for three years a railroad brakeman; that at the time he was about 830 feet west of the crossing and about 35 feet from the track. That his attention was attracted by the speed of the train; that the engine and cars were swaying; that the train was a freight train of about fourteen or fifteen cars; that in his opinion it was going at the rate of fifty miles an hour when it passed him; that there was a whistling post about a thousand feet west of the crossing, and about two hundred feet west of the point where he was standing at the time; that there was no whistle blown nor bell sounded, until about the instant the engine struck

plaintiff at the crossing, when there were some short blasts of the whistle; that the train ran about 475 yards after striking plaintiff before stopping; one horse was killed; pieces of the wagon were scattered along the track for 1400 feet. Speaking of the obstruction to view from the road where plaintiff was driving, and for a distance of four hundred feet from the crossing west, he says: There is a cluster of trees and one cannot see; that his father's stable, and three or four clusters of willows are on the ground as it raises to the cut, and along the top of the cut its southern side, were corrals and stacked lumber; that approaching the crossing as plaintiff did, a glimpse of the track may be obtained through the trees at a point about 77 feet back from the crossing, this through an opening about a foot and a half wide. That 25 feet from the crossing, one cannot see up the track from where the train was approaching.

It will be observed that this testimony is not in accord with some of the deductions by the majority. In the majority opinion is inserted a photograph of the crossing where plaintiff was injured, but a photograph may be very uncertain, and even deceiving as regards angles, directions and distances when considered alone. The court speaks of a map but does not include it as a part of the opinion, and which is here inserted for a possibly better understanding.

It will be noted that in looking up the highway from the crossing, in the direction from which plaintiff was moving, and up the railroad track in the direction from which the train was approaching, the space between, forms an acute angle of about 45 degrees. So that to the extent of this angle, the train and the plaintiff were moving toward a converging point, to-wit: the crossing, the apex of a triangle. This is far different from crossing at right angles, where one may see directly to the right or left. This triangle contained the trees and other obstructions.

It will be seen that the plaintiff, if facing the direction in which he was driving, and upon reaching the first point of view between the trees and the track, could see but little