The opinion of the court was delivered by
Horton, C. J.:
No cause of action was made out by the evidence, and the court properly sustainéd the demurrer. If *303the case had been submitted to the jury upon the testimony introduced by the plaintiff, and a verdict had been returned in his favor, we have no hesitation in saying that the court-ought to have set it aside. The facts are not only undisputed, but admit of only one conclusion as to the negligence of the-plaintiff. He was familiar with the right of way; the railroad track, and the dangers of crossing; he knew that an empty wagon could scarcely be driven over with safety, and yet, with this knowledge, with his eyes open as to the perils-of trying to cross, he attempted to drive over with a hay-frame on his wagon, partially filled with hay and corn, and containing himself, three children and Mr. Young. Undoubtedly he hoped and expected to cross in safety, but it was a dangerous experiment, and one which was exceedingly unfortunate to him. His misfortunes naturally excite sympathy, but give no legal claim in this kind of action for damages. He was so negligent of his duty to himself, so wanting in care and diligence in his conduct, that the law will not afford him the relief which he seeks. Using the language of the counsel for defendant, we may say: “If he could drive over this place, knowing the crossing never to have been completed, and knowing such driving to be unsafe, and charge the railway company with the fruits of such imprudence, he could have gone across the same place without any part of the crossing having been made, and required the company to pay for the lives and property destroyed by such attempt.” The plaintiff was guilty of ordinary negligence, to say the least, contributing directly to the injury, and of such negligence on his part as defeats a recovery. :
Counsel for plaintiff urge in support of his claim for damages, that where a contract creates a duty, the neglect to perform that duty, as well as the negligent performance of it, is a ground of action for tort — hence it is at the election of the party injured to sue either on the contract or the tort; and then argue that, as the company accepted the deed, it was bound to construct the wagon-road in a reasonably safe manner, and having neglected to perform that duty, it.was re*304sponsible for all injuries resulting to the plaintiff received by him in attempting to cross the road. The rule of law stated, as a general one, is correct, but the deduction attempted to be drawn therefrom for this case by counsel is not tenable. A party cannot, with his eyes open, imprudently and recklessly walk or drive into a dangerous culvert, or an uncovered pitfall, left by a railway company, where by contract or other duty it is required to cover it safely, and then, notwithstanding his want of ordinary care, recover for his personal injuries inflicted by falling into such culvert or pitfall. This theory would relieve a party thus receiving injury from the exercise of any care. Upon this theory, the greater the carelessness and the grosser the negligence of the person injured, the greater the liability of the company. This doctrine is unsound. Every adult is presumed to be endowed with sufficient reason to enable him to exercise ordinary prudence, and the law demands that every such person must employ reasonable means to foresee and prevent injury.
Notwithstanding the defendant is not liable in this action, the plaintiff had, long prior to this suit, his cause of action against the company for its refusal to build the wagon-roads on the pieces of land conveyed for right of way. He might, perhaps, have brought his action to compel the company to construct suitable roads. He certainly could havembtained pecuniary compensation, in the way of damages, for the breach of duty on the part of the. company in not performing the conditions of the deed.
On account of the negligence of the plaintiff, the other allegations of error are immaterial, and need not be discussed.
The judgment of the district court will be affirmed.
All the Justices concurring.