Lobe, C. J.,

charging the jury.:

Gentlemen of the jury:—This action is brought by Mary E. Reed, the plaintiff, against Queen Anne’s Railroad Company, the defendant, to recover damages for the death of her husband John W. Reed.

She claims that in the month of March, 1901, in the town of Milton in this county, at a point where the railroad of the defendant company crosses Federal Street, that the carriage in which her husband was riding was struck by a locomotive steam engine *418attached to a train of cara; that the carriage was broken to pieces, her husband thrown to the ground and killed; that his death was caused by the negligence of the defendant company, in then and there running their train at a high rate of speed, without giving the usual signals and warning at such crossing. ' That by reason of such death she as his widow has sustained damages which she seeks to recover in this suit.

While there are no new or disputed questions of law raised in the case, yet, at the request of the counsel for both parties, it is our duty to instruct you as to certain rules of law which are to govern you in reaching your verdict.

This action is founded upon the negligence of the defendant company. If therefore the company was guilty of no negligence at the time of the accident, there can be no recovery. The mere fact that Jonn W. Reed was killed at that crossing by the train of the defendant, does not warrant a verdict for the plaintiff. There must be, in addition to the proof of killing, further proof that such death resulted from the negligence of the defendant company. Such negligence is never presumed, but must be.satisfactorily proved by the preponderance of the evidence in the case. If not so proved, your verdict should be for the defendant.

Public highway crossings at grade of a railroad operated by steam engines are in themselves danger warnings, both to the company itself and to travelers on the public highways using such crossings.

When railroad trains are approaching such crossings it is the duty of the company to give due and timely warning of such approach, so that travelers upon the highway may have reasonable notice thereof. It is further their duty to regulate the speed of the cars according to the danger. If the crossing be in a thickly populated or much frequented locality, or if the view of the crossing be obstructed, or exceptionally dangerous from any cause, it is the duty of the company to exercise greater care and caution, propor*419tioned in every case to the danger, so as reasonably to avoid accident.

On the other hand, there is a like duty imposed upon the traveler upon the highway. He must exercise in every case care proportioned to the dangerous nature of the crossing. If there are no obstructions, and the approaching train can be readily seen, he must reasonably use all his senses to avoid the danger. If by stopping, looking or listening he could see or hear the approaching train, and he does not do so and the accident happens from that cause only, he takes the risk and must bear the consequences of his own carelessness. If the view of the crossing be obstructed or is otherwise exceptionally dangerous, he must use care and caution in proportion to such increase of danger, and to any knowledge that may come to him from familiarity with the locality or the surrounding conditions.

What particular facts constitute negligence in any particular case the court will not attempt to prescribe. What particular acts or things should be done or omitted so as to constitute due and reasonable care and caution on the part of the railroad on the one hand, or on the part of the traveler upon the highway on the other, depends upon the circumstances of each case. The speed of the train; the giving of signals or warning and other precautions on the part of the railroad company; the stopping, looking, listening and other precautions on the part of the traveler, must vary with the varying conditions and danger in each case. Where the law does not limit the speed of railroad trains, such speed is in the discretion of the company, reasonable precaution being taken therein for the security of life and property. Mere compliance with signals or warning required by the statute may not be sufficient where the surrounding conditions reasonably demand other and more effective warning. In every case the rule is that each party should do what reasonably careful and prudent persons would do under like circumstances.

In the absence of any evidence to the contrary the law pre*420sumes that at the time of the accident John W. Reed, the deceased, did his duty and did exercise reasonable care and caution. This, however, is mere presumption of law. Such presumption does not apply where all the circumstances of the accident are detailed by eye witnesses who saw the same. In such case you should be governed by that evidence.

If John W. Reed knew, or by the reasonable exercise of his senses could have known of the approaching train that day in time to have prevented the accident, and saw fit to take the risk of crossing in front of the train, and the accident happened from that cause alone, he would be guilty of contributory negligence and the plaintiff cannot recover.

In other words, if you believe that the accident would not have happened had John W. Reed stopped, looked and listened before driving on the railroad track, and that he did not stop, look and listen, your verdict should be in favor of the railroad company.

If his horse became unmanageable from any cause and ran away across the track, and the accident happened from that cause, without fault on the part of the railroad company, it would be in the nature of an inevitable accident, for which the defendant company would not be liable.

If at the time of the accident John W. Reed contributed proximately in any way thereto, the plaintiff cannot recover. The law will not attempt to measure the degree of such contributory negligence.

If, however, the accident happened from the negligence of the defendant company only, then your verdict should be for the plaintiff.

If you find for the plaintiff, it should be for such a sum of money as will reasonably compensate her for any and all damages that she has sustained, or may hereafter sustain by reason of the death of her said husband, basing your verdict upon the number of years the deceased would probably have lived had he not been so killed.

*421In measuring damages in this case, you are not to be governed by what would probably have been the gross earnings or income of the deceased, but by what portion of the gross earnings or income the plaintiff would probably have received from the deceased as his wife, if he had lived.

Verdict for plaintiff for $5000.