l
24 FEDERAL nsponrnn. `
dence shows, to be driving in a wagon along the highway. So far as
the rights of the parties that are to be determined in this controversy
are concerned, the fact that the collision occurred on Sunday has no
effect thereon. The case is to be determined without reference to
that fact, upon the issues set forth in the instructions given you by
the court, which alone are submitted to you.
Under the laws of this state, the railways and the public highways
may be lawfully built, so as to intersect or cross each other upon the
same level. ` The rights, duties, and obligations of the railroads, and
of travelers upon the intersecting highways, are mutual and recipro-
cal. Both parties are charged with the duty of keeping a careful
lookout for danger, and the degree of diligence to be exercised on
either side is such as a prudent man would exercise, under the cir-
cumstances, in endeavoring fairly to perform his duty. At points
where the line of a railroad crosses a wagon-road upon the same
level, the trains upon the one, and the teams upon the other, have
each a legal right to pass over the crossing or place of intersection,
and each have the right to require the exercise of due care on part
of the other to avoid a collision. From the greater speed of the rail-
way trains, the greater difficulty in stopping the same, and the re—
quirements of public travel thereon, it is not expected that the train ,
shall stop and give precedence to an approaching wagon. It is the
` duty of the wagon to wait for the train, as the train has the prefer·
ence and the right of way. What is meant by this is that when a
train and a wagon are approaching a crossing at the same time, it is
the duty of the wagon to halt, and allow the train to pass over the
crossing before going upon the same. In order that the wagon may
thus halt in order to give preference to the train, it is the duty of the
train to give due warning of its approach, so that the wagon may
stop and allow the train to pass. Such warning must be reasonable
and timely. The object of the warning is to secure a clear and un-
obstructed track at the crossing, so that the train may pass in safety,
not only as regards itself, but also as to persons lawfully upon the
highway. The warning,“therefore, should be reasonably sufficient to
accomplish the object, and what constitutes reasonable and timely
warning depends upon circumstances. A warning that would be en-
tirely reasonable and sufficient under one set of circumstances, may
be wholly inadequate under other circumstances. If, at a given
crossing, there are obstacles that obscure or interfere with the view
A along the railroad, or that may prevent the hearing, by those ap·
proaching the crossing, of the sound of the coming train, or of the
whistle or bell upon the engine, or if a train is being run at a high
rate of speed, these facts, or either of them, may require the exercise
of greater precautions on part of the railway company in giving warn-
ing of the approach of the train than would be required in the ab-
sence of such circumstances. What is required of the company is
that, in view of the speed at which the train is being run, and of the _