Momns v. ouiomo, M. a sr. P. iz. co. 25
nature and surroundings-».of the crossing about to be passed, such rea-
sonable and timely warning ofthe coming of the train shall be given
as will enable teams and persons upon the highway, by the exercise
of due care and watchfulness upon their part, to avoid a collision
with the train, and to leave the crossing free and unobstructed for
the passage of the train over the same. ‘ By the express provisions
of the statute of Iowa, it is made the duty of the railway companies
to have upon each locomotive used in the state a bell and whistle,
and to cause the whistle to be twice sharply sounded at least 60 rods
before a highway crossing is reached, and after the whistle is sounded
the bell is to be kept ringing until the crossing is passed, and in case
of a failure so to do, the company is liable for all damages sustained
by any person by reason of the neglect in not giving such warning of
the approach of the train. Under· this statute it is the duty of the
company to sound the whistle and ring the bell, as provided in the
statute, at all highway crossings. In addition thereto, the company
may be required to take further precautions to give timely warning
of the approach of its trains, if, as I have already said to you, the
circumstances are such that the sounding of the whistle and ringing
of the bell, as provided for in the statute, would not alone be sutlicient
to give timely warning of the approach of the train.
On the other hand, persons who are about to cross a railroad track
are bound, on their part, to exercise ordinary care and diligence to
ascertain whether a train is approaching, and the precaution to be
taken by them will vary according to circumstances. They know that
the crossing is a place of danger; that a train may come by at any
moment; and they are bound to make a vigilant use of their senses of
sight and hearing in order to ascertain if a train is approaching. If
the nature and surroundings of the crossing are such that an ap-
proaching train cannot be readily seen or heard, this fact calls for
the exercise of greater watchfulness and to taking of greater pre-
caution on part of travelers who are about to cross the track in a
` wagon. It is the duty of the traveler to use proper care to ascertain
whether he can safely pass upon and over the railway track. He is
not justified in attempting to pass over the track if a train is approach-
ing the crossing at such a rate of speed as to render a collision pos-
sible. In order to ascertain whether he can with safety attempt to
pass over the crossing it is his duty to exercise ordinary care and dil-
igence to ascertain whether a train is or is not approaching; and if
he fails to do so, and is injured in consequence thereof, he cannot
recover therefor, even though the company may also have been guilty
of negligence on its part.
In the case now on trial it is not questioned that on the second
day of November, 1884, one David W. Whitmer, with his wife, Mar-
tha J. Whitmer, his son, Floyd Whitmer, and daughter, Matic Whit-
mer, was passing in a wagon along the public highway which inter-
sects or crosses the railway track of the defendant at a point about