delivered the opinion of the court:
Defendant in error, as administratrix of the estate of George W. Newell, deceased, brought suit against plaintiff in error in the circuit court of Saline county to recover damages for the death of her intestate.
The first count of the declaration charges that the deceased was walking on Walnut street, in the city of Harrisburg, with due care and caution for his own safety, and while attempting to cross the railroad tracks of plaintiff in error in said street the servants of said plaintiff in error so carelessly propelled and ran a locomotive engine upon such tracks upon and against the said George Newell that he was thereby killed. The second and third counts charge failure on the part of plaintiff in error to comply with its statutory duty to ring a bell or sound a whistle before reaching the crossing in question.
The accident occurred on October 2, 1910. No one witnessed it, and there was therefore no direct testimoñy as to how it occurred. The first knowledge that anyone had that Newell had been killed was when his body was found at one end of the planking of the street crossing over the railrоad tracks, and his head, which was severed from the body, was found at the other end of the planking. The switch engine of plaintiff in error had just passed over this crossing and was manned by the engineer, fireman and switching crew, but none of the crew saw the deceased before he was killed.
The jury returned a verdict in favor of the defendant in error for $1300, upon which judgment was rendered. This judgment was affirmed by the'Appellate Court for the Fourth District, and the judgment of the Appellate Court has been brought up for review by writ of certiorari.
The evidence was conflicting as to whether the bell had been rung or the whistle sounded before the switch engine crossed Walnut street, and also as to whether a headlight was displayed from the tender of the engine, which was being propelled backward. Numerous witnesses testified on behalf of plaintiff in error thаt the deceased was intoxicated at the time of the accident, while some of the- witnesses called on behalf of defendant in error testified that he was sober at that.time. No proof whatever was offered as to any fact or circumstance which would tеnd to show that the deceased was in the exercise of due care and caution at the time of the accident. At the close of the evidence on behalf of defendant in error, and again at the close of all-the evidence, the plaintiff in error askеd the court to give a peremptory instruction to find it not guilty. These motions were denied. The grounds urged for reversal are, the action of the court in refusing to direct a verdict, the giving of various instructions on behalf of defendant in error, and the refusal to give a number of instructions аsked by plaintiff in error.
It is urged that the trial court erred in refusing to direct a verdict for the reason that defendant in error failed to prove (1) that deceased was in the exercise of due care for his-own safety at or immediately prior to the time of the accidеnt; (2) that the deceased was struck on the Walnut street crossing; and (3) that the deceased was sober-at the time of the accident.
One of the instructions complained of evidently expressed the view of the trial court as to the necessity of proof of the exercise of due care and caution on the part of deceased at the time he was killed and' no doubt furnishes the reason for the court’s refusal to direct a verdict. That instruction, numbered io, is as follows:
“Upon the question of whether George Newell was in the exerсise of ordinary care for his own safety when he lost his life, the court instructs you that if you believe, from the evidence, that he was killed while attempting to cross the railroad track on Walnut street and that no one saw the accident, then you are warranted in finding, from the well-knоwn instinct which men ordinarily have to try to preserve their lives and not destroy them, that he was in the exercise of ordinary care for his own safety, unless you further believe, from the evidence, that said George Newell was under the influence of intoxicating liquor to feuch an extеnt as to render him incapable of exercising such ordinary care or as to malee him reckless, or that there were other circumstances indicating a want of such ordinary care.”
The,allegation in the declaration that, the deceased was in the exercise of due care and caution for his own safety at the time of the accident was a necessary and material allegation and must be proven. As there were no- eye-witnesses to the occurrence this allegation could not be proven by any direct testimony, but it still devolved upon defendant in error to establish the exercise of ordinary care on the part of her intestate by the highest proof of which the case is capable. (Collison v. Illinois Central Railroad Co.
In discussing this question in Stollery v. Cicero Street Railway Co. supra, we said: “While in an action of this nature the burden is upon the plaintiff to show the exercise of ordinary care to avoid the injury, to prove this, however, does not require direct evidence as to the injuries, but such care on his part may be inferred from the facts and circumstances in the case. Where there is no eyewitness to the killing of a person, his administrator may establish the exercise of ordinary care on the part of the •deceased by the highest proof of which the case is capable, including the habits 'of deceased and any other facts and circumstances from which the jury might rightfully find' that he was exercising such care.”
Under this rule a plaintiff is not permitted, in cases where there are no eye-witnesses, to merely prove the accident which resulted in death and then rely upon the instinct of self-preservation common to all men to establish the exercise of due care and caution on the part of the deceased. It is incumbent upon the plaintiff in such a case to prove the habits of the deceased as to sobriety, as to prudence and the еxercise of care and caution in the ordinary affairs of life, and as to any other particular that would tend to throw light upon the question of whether, at the time of the fatality, he was’ likely to, have been in the exercise of ordinary care. In the absence of аny proof whatever which would tend to show that the deceased was in the exercise of ordinary care for his own safety, the defendant in error was not entitled to recover. The peremptory instruction asked for should have been given upon this ground.
As the case must bе remanded for a new trial it will be necessary to note some of the other points raised.
The proof was sufficient to warrant the jury in finding that Newell was struck on the Walnut street crossing, as alleged in the declaration. The body was found at that point, and there was no indication that it had been struck at any other place, except that the head had been severed from the body and was some feet distant and the hat of deceased was found at a point still farther from the body.
Complaint is made of the giving of six instructions other than instruction No. iо. By the second instruction the jury were informed that the deceased had a right to use any part of Walnut street in crossing the railroad of plaintiff in error, and that in so doing he “had an equal right with the defendant railway company to pass over said railroad track of the defеndant.” By this instruction the jury would have been warranted in believing that the deceased was not required to use ordinary care in crossing over the railroad tracks of plaintiff in error, or that the servants of plaintiff in error were required to use the same degree of care- and caution to avoid injuring the deceased as he was required to use to avoid being injured. This is not the law. Where a railroad train and a person traveling on the highway each approaches a railroad crossing at the same time, it is not the duty of the company tо stop its train, but it is the duty of the traveler, in obedience to the known custom of the country, to stop and not attempt to pass in front of the advancing train. (Toledo, Wabash and Western Railway Co. v. Jones,
Instruction No. 9 given on behalf of defendant in error is as follows:
“You are instructed that although you may believe, from a preponderance of the evidence, that George Newell, at the time of his death and immediately before, was intoxicated, this fact, if it is a fact, is not, of itself, a bar to recovery by the plaintiff.”
While this instruction correctly states an abstract proposition of law, it was improper to give it under the facts in this case. If the deceased was, in fact, intoxicated at the time of the accident, that was a fact which would tend to show that he was not in the exercise of ordinary care.
The other instructions given, and which have' been complained of, were proper.
Complaint is made of the refusal of the court to give twelve instructions asked on behalf of plaintiff in error. Of these, refused instructions Nos. 3 and 10 correctly stated the rule as to the proof required of the exercise of due care and caution on the part of deceased at the time of the accident, and one of them should have been given. The other instruсtions were all properly refused. Some of them were clearly improper and the others were covered by instructions given. ■
For the reasons indicated, the judgment of the Appellate Court "is reversed and the cause is remanded to the circuit court for a new trial.
Reversed and remanded.