28 FEDERAL nnromniz.
movements of the wagon, fails to exercise proper care, skill, or watch-
fulness, and thereby causes or aids in causing an accident, whereby
the occupants of the wagon are injured, such negligence on part of
the driver is in law deemed to be the negligence also of the occu-
pants, and affects or defeats their right of recovery the same as it
does the right of the driver.
The evidence shows, without contradiction, that David Whitmer,
the husband of one, and father of two, of the parties killed, was driv-
ing the wagon at the time of the accident; and the question, there-
fore, for determination is whether or not he exercised due and proper
care and watchfulness in approaching and attempting to pass over
the railway track at the place where the accident occurred. If you
find that he did not exercise proper care, but, on the contrary, by his
own negligence, aided in causing the accident, then such negligence
on his part, as the person in charge of said wagon, will defeat a re-
covery in any one of these actions. As I have already said to you, it
is the duty of every person driving a wagon and team, when approach-
ing a railroad crossing for the purpose of passing over the same, to
exercise ordinary care and watchfulness in ascertaining whether a
train is or is not approaching, and whether he can safely pass over
the railway track; and in so doing he is required to be watchful and
vigilant in the use of his senses of sight and hearing. If the high-
way approaches the crossing in such a manner, and in the midst of
such surroundings, that the view of the track is obscured, and it is
rendered more difficult to see or hear an approaching train, or the
signals therefrom, if given, by the whistle or bell, then the traveler
upon the highway, knowing these facts, should use the care and cau-
tion commensurate to the increased danger caused thereby. The
greater the risk caused by the nature of the approach to the crossing,
the greater the watchfulness and precautions that should be taken by
the traveler in ascertaining that the way is clear, and that he may
with safety undertake topass over the track. If he fails to exercise
the watchfulness and to take the precautions which he should do in
the exercise of ordinary care and diligence, in view of his surround-
ings at the time, and he passes upon the track, and a collision oc-
curs, he cannot recover from the railway company for the injuries he
may receive, even though the company is also in fault and guilty of
- negligence.
You have before you, gentlemen, the evidence showing the nature
of the crossing,.and the approach thereto; its surroundings at the
time of the accident; the opportunities afforded to, or difficulties in
the way of, persons driving wagons upon the highway in ascertaining
whether a crossing could or could not be safely made; what the ob-
structions were, if any, tending to prevent those upon the wagon from
seeing or hearing an approaching train, or the signals therefrom, if
given; and you have also the evidence showing the manner in which
David Whitmer and family approached said crossing in said wagon;