A stаtute of the state required plaintiff, as driver of a, vehiclе engaged in the transportation of school children, to bring it to a “full stop before crossing the tracks of any railroad or. interurban electric line and not to proceed across such tracks until absolutely certain that no car or train is approaching from either direction.” Gen. Code Ohio, § 7731— 2 (110 Ohio Laws, p. 46). This statute was obviously enacted in thе interest of children traveling in school busses, and not for the protection of the driver. But it imposed a duty on the plaintiff, and if, in failing to perform it, he so contributed to the accident that, but for his failure, it would not have occurred, he cannot recover.
It is contended for the railroad that, measured by the demands of the statute, it was his duty to know that a train was not approaching before attempting to cross thе track, and the fact that he was struck on the crossing was of itself such evidence of breach of duty as to amount in lаw to negligence. We do not so construe the statute. Thеjphrase “absolutely certain,” in our opinion, refers to the state of mind of the ordinarily prudent driver, and not to the fаct, for one may be certain (the qualifying word “absolutely” аdds no strength.to the term) that a train is not approaching whеn in fact one is. What the statute requires is the stopping of the vehicle, and the exereise of the highest degree of care permissible under the circumstances to detеrmine whether a train is approaching, which, when done, with thе result that no approaching train is discovered, justifies an attempt to cross the track. It cannot, we think, be said аs a matter of law that plaintiff failed to exercise thе highest degree of care permissible under the circumstances, and hence that question, as also that of the аlleged negligence of the defendant in failing to signal the approach "of the train to the crossing, was, under the' еvidence* for the jury. Frese v. C., B. & Q. Ry.,
There was also evidence rеquiring the submission of the ease to the jury on the theory that the еngineer failed to exercise due care to avоid the collision after imminent danger of it became known br rеasonably' apparent to him. He saw the team when 1,200 or 1,300 feet from .the crossing, and nothing was done by him further to-warn plаintiff of the approach of the train or to abate its speed until it had traveled about half the intervening distance. His claim that plaintiff pulled the horses when the whistle was blown, as if to stop them, thus causing a delay, and bringing about the collisiоn, is denied by plaintiff. We think it was for the jury to determine whether he wаs guilty of negligence proximately causing the injury, after the peril of plaintiff became known or was reasonably apparent to him.
The judgment is reversed.