Monms v. cmcaoo, M. & sr. P. R. co. 27`
be justified in finding that the charge of negligence against defend-
A ant had been made out; for, as I have already said to you, the stat-
ute of Iowa expressly provides that the company shall be liable to any
one who is injured through the failure to give the signals as required
by the statute. If, however, you find that the whistle was sounded,
and the bell was rung, as required by the statute, then you cannot
find that the company was negligent, unless you are further satisfied
by a fair `preponderance of the evidence that, under the circumstances
of the case, and in the exercise of ordinary care and diligence, the
defendant should have taken other and greater precautions to give
timely and reasonable warning of the coming of the train, and failed
to do so, and by reason of such failure the collision was caused.
Now, gentlemen, you have before you the evidence adduced by
both parties, tending to show the speed at which the train approached
the crossing, and also the evidence tending to show the nature of the
crossing, the respective heights of the railway track and the high-
way, the surroundingssof the crossing as they were when the acci-
dent occurred, and what the opportunities were for seeing and hear-
ing the approach of a train upon the railway, and of a wagon upon
the highway, and it is for you, under the evidence, to determine what
the facts in these particulars were at the time of the collision, and,
having determined these, it is then for you to determine whether the
defendant and its employes, in view of the facts as you find they
then existed, exercised ordinary care and diligence in giving such
timely and reasonable warning of the coming of the train as would
enable teams and wagons upon the highway to avoid a collision, if
those in charge thereof exercised due care and watchfulness upon
their part. If, under the evidence in the case, you find that the de-
fendant and its employes failed to give such reasonable and timely
warning of the coming of the train as the circumstances required,
in the exercise of proper care on part of defendant, and that by
reason thereof the collision occurred, then you should find that the
charge of negligence against defendant was made out ; but, on the
other hand, if you are not satisfied by a fair preponderance of the
evidence that the defendant or its employes in charge of said train
did fail to give reasonable and timely warning of the coming of the
train when approaching said crossing, then plaintiff has failed to
sustain the charge of negligence against the company, and in that
event your verdict must be for the defendant. If, however, you find
from the evidence that the defendant was negligent in not giving
reasonable and timely warning of the approach of said train, then
you will determine whether the person or persons in charge of said
wagon were or were not guilty of negligence which aided in causing
the collision. If, from the evidence, you find that the negligence of
the person or persons in charge of said wagon aided in causing the
accident, then the plaintiff cannot recover. If a person who is driv-
ing a. wagon and team, and, as such driver, has control over the