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of Southern Ry. Co. v. Carroll, 138 Fed. 638, 71 C. C. A. 88, and Chicago, St. P., M. & O. R. Co. v. Rossow, 117 Fed. 491, 54 C. C. A. 313, are directly in point and sustain the contention of the defendant. It will be noted that the case of Missouri Pacific Railroad Co. v. Moseley, supra, and also the case of Railroad Company v. Houston, supra, the latter being the leading case by the Supreme Court on this point, are to the same effect.

In the case of Northern Pacific Railroad Company v. Freeman, 174 U.S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014, the Supreme Court, through Mr. Justice Brown, who delivered the opinion of the court, said:

"So far, then, as there was any oral testimony upon the subject, it tended to show that the deceased neither stopped, looked, nor listened before crossing the track, and there was nothing to contradict it. Assuming, however, that these witnesses, though uncontradicted, might have been mistaken, and that the jury were at liberty to disregard their testimony, and to find that he did comply with the law in this particular, we are confronted by a still more serious difficulty in the fact that, if he had looked and listened, he would certainly have seen the engine in time to stop and avoid a collision. He was a young man. His eyesight and hearing were perfectly good. He was acquainted with the crossing, with the general character of the country, and with the depth of the excavation made by the highway and the railway. The testimony is practically uncontradicted that for a distance of 40 feet from the railway track he could have seen the train approaching at a distance of about 300 feet, and, as the train was a freight train, going at a speed not exceeding 20 miles an hour, he would have had no difficulty in avoiding it. * * * If, in this case, we were to discard the evidence of the three witnesses entirely, there would still remain the facts that the deceased approached a railway crossing well known to him; that the train was in full view; that, if he had used his senses, he could not have failed to see it; and that, notwithstanding this, the accident occurred. Judging from the common experience of men, there can be but one plausible solution of the problem how the collision occurred. He did not look; or, if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contributory negligence.”

However, counsel for plaintiff insists that the evidence shows that deceased continued to look and listen up to the very moment that he was struck by the train. As we have stated, we do not think that there is any evidence to sustain this contention; but, even if there had been testimony that deceased was looking and listening the circumstances surrounding this occurrence are such as to render the truthfulness of such evidence highly improbable. Judge Van Devanter in the case of Chicago & N. W. Ry. Co. v. Andrews, 130 Fed. 65, 64 C. C. A. 399, in an opinion rendered by the Circuit Court of Appeals for the Eighth Circuit, said:

“Common knowledge tells us that in the presence of a strong wind blowing across the track the train could not have been entirely or largely obscured by smoke issuing from a small smokestack 25 feet in the air and only 18 feet from the track. The action of the wind would necessarily dissipate the smoke, and prerent it from falling to the ground in large volume so near the stack from which it was being discharged. If plaintiff had looked with any care, he would have seen the train. It was there. His presence upon the track and the collision were practically simultaneous. His mistake is disclosed by his own testimony, wherein he admits his controlling anxiety to cross in advance of the freight train, and says: 'I placed my eyes on this freight train, and advanced (two steps), * * * and saw this [passenger) train.' He actually stepped immediately in front of the moving train. If plaintiff had listened at. tentively, he would also have heard the approaching train before he took the two unfortunate steps. Common knowledge tells us that a train of cars drawn over a railroad track by a 90-ton engine at a rate of 50 miles an hour makes a great noise, and that even a strong wind, not of extraordinary or unusual velocity or force, does not render it possible for such a train to come unexpectedly upon one who possesses a good sense of hearing and is reasonably employing it for his protection under circumstances which otherwise permit its free use. That plaintiff, in possession of good sight and hearing, could have looked and listened, and not have seen or heard the train, which must have been in plain view, and making a great noise, is contrary to all reasonable probability, in opposition to the physical facts, and impossible of belief.. In these circumstances his testimony that he looked and listened is entitled to no credence, and does not create a conflict in the evidence."

The following cases are to the same effect: William Holden v. Pennsylvania Railroad, 169 Pa. 1, 32 Atl. 103; Eliza Coppuck v. Philadelphia, Wilmington & Baltimore Railroad Company, 191 Pa. 172, 43 Atl. 70; Virginia & S. W. Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887.

As we have said, it is earnestly insisted by counsel for plaintiff that the case of Continental Improvement Co. v. Stead, supra, 95 U. S. 161, 24 L. Ed. 403, is on "all fours" with the case at bar, and therefore binding on this court. A careful consideration of this case, in view of the rulings of the Supreme Court since the judgment therein was rendered we think justifies us in saying that a proper interpretation of all the Supreme Court had to say at that time shows that it was not intended to in any wise modify the rule as announced in the cases of Railroad Co. v. Houston, supra, Railroad Co. v. Jones, supra, and Railroad Co. v. Freeman, supra. There the“plaintiff was going east, away from the village, following another wagon, and in approaching the railroad track could not see a train coming from the north, by reason of the cut and intervening obstructions. There was no evidence tending to show that the plaintiff', though he looked to the southward (from which direction the next regular train was to come), did not look. northwardly; that his wagon produced much noise as it moved over the frozen ground; that his hearing was somewhat impaired, and that he did not stop before attempting to cross the track; also, evidence tending to show that the engineer in charge of the train used all efforts in his power to stop it after he saw the plaintiff's wagon on the track. The evidence was conflicting as to whether the customary and proper signals were given by those in charge of the locomotive, and as to the rate of speed the train was running at the time; some witnesses testifying that it was at an unusual and improper rate, and others to the contrary.

There no motion was made to direct a verdict for the defendant. However, exceptions were taken to the refusal of the court below to adopt certain instructions presented by counsel for defendant. In referring to the questions sought to be reviewed Mr. Justice Bradley said:

"The present writ of error is brought to review the instructions given by the court to the jury on the trial.”

The first and second paragraphs of the syllabus are in the following language:

"1. Travelers upon a common highway which crosses a railroad upon the same level, and the railroad company running a train, have mutual and reciprocal duties and obligations; and, although the train has the right of.

way, the same degree of care and diligence in avoiding a collision is required from each of them.

"2. That right does not, therefore, impose upon such a traveler the whole duty of avoiding a collision, but is accompanied with and conditioned upon the duty of the train to give due and timely warning of its approach.”

The court, after announcing the rule as epitomized in the syllabus from which we have quoted, among other things, said:

"On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But, notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is reguired of them—such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune."

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In this connection it should be remembered that the cases of Railroad Co. v. Houston, supra, and Railroad Company v. Jones, supra, are reported in the same volume and were decided at the same term at which the Stead Case was decided. Therefore, that the court must have had the Stead Case in mind at the time the opinions in the other two cases were rendered. There being, as we have stated, no motion to direct a verdict in the Stead Case, the real question presented in this case, where the facts are different from that case, was not passed upon by the Supreme Court at that time.

In the case of Schofield v. Chicago, Milwaukee & St. Paul Railway Company, supra, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224, the Supreme Court also applied the doctrine announced in the Houston Case. There the court below directed a verdict in favor of the defendant upon the ground that the plaintiff by his own showing was guilty of negligence, whatever the negligence may have been on the . part of the defendant; the court, among other things, saying:

"Applying the test that, if it would be the duty of the court, on the plaintiff's evidence, to set aside, as contrary to the evidence, a verdict for the defendant, if given, the court had authority to direct a verdict for the defendant, it considered the case under the rules laid down in Continental Improvement Co. v. Stead, 95 U. S. 161 [24 L. Ed. 403), and especially in Railroad Co. v. Houston, 95 U. S. 697 [24 L. Ed. 542], and arrived at the conclusions of law, that neither the fact that the train was not a regular one, nor the fact of its high rate of speed, excused the plaintiff front the duty of looking out for a train; that the fact that it did not stop at the depot could avail the plaintiff only on the view that, hearing a whistle from it, as it was south of the depot, be supposed it would stop there, and so failed to look, but that, in such case, he would have been negligent, because it was not certain the train would stop at the depot, and he would have had warning that a train was approaching; that the neglect of the train to blow a whistle or ring a bell between the depot and the crossing did not relieve the plaintiff from the duty of looking back, at least as far as the depot, before going on the track; and that, in view of the duty incumbent on the plaintiff to look for a coming train before going so near to the track as to be unable to prevent a collision, and of the fact that he was at least 100 feet from the crossing when the train passed the depot, and could then have seen it, if he had look

ed, and have avoided the accident by stopping until it bad passed by, he tras negligent in not looking.”

The plaintiff, as we have stated, cites the case of Grand Trunk Railway Company v. Ives, supra, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, in support of its contention. The Supreme Court in that case, among other things, says:

"Xothing was said by this court in Railroad v. Houston, 95 ('. S. 697 [21 L. Ed. 512), or in Schofield v. Chicago & St. Paul Railway. 114 '. S. 615 (3 Sup. Ct. 1125, 29 L. Ed. 224), which are relicd upon by the defendant, that in any wise conflicts with the instructions of the court below in this case, or lays down any different doctrine with respect to contributory negligence. Delaware Railroad v. Converse, 139 C. S. 469 (11 Sup. Ct. 369, 35 L. Ed. 213)."

In the case of Delaware, etc., Railroad Co. v. Converse, 139 C. S. 474, 11 Sup. Ct. 569, 35 L. Ed. 213, it being shown that there was a severing of a train of cars on a railroad track at nighttime, leaving a part uncontrolled, except by ordinary brakes, to run across a public highway at a grade, without warning by either flagman, bell, whistle, or some other effective means that they were approaching, was this evidence of an utter disregard of persons using the highway, such as to justify the court in saying as a matter of law that it constituted negligence on the part of the railroad company for which plaintiff could recover unless he had been guilty of contributory negligence? The Supreme Court in that case cites with approval the cases of Railroad Co. v. Houston, supra, and Railroad Co. v. Jones, supra. Instead of modifying the doctrine announced in these cases, the court reaffirmed the same, quoting that portion of the Jones Case wherein the court said:

"The plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened."

The Houston Case has often been quoted, it appearing, as shown by “Shepherd's United States Citations,” to have been cited 7 times by the Supreme Court and 71 times in the Federal Reporter. While in the Schofield Case the court refers to the Stead Case as well as the Houston Case, it prefers the Houston Case, and cites with approval that portion of the Houston Case wherein it was held that the failure of the engineer to sound a whistle or ring a bell did not release the deceased from taking ordinary precautions for her safety.

Counsel for plaintiff further contend that the facts in the case of Sealey v. Southern Ry. Co., 151 Fed. 736, 81 C. C. A. 282, decided by this court, are analogous to those of the case at bar, and therefore that the same is an "authority on all fours, binding here." The facts of that case are wholly different from the case at bar. In order to show this, we need only quote that portion of the opinion wherein the court says:

“He looked in going down the steps, within a few feet of the track of the defendant company, and, after getting down, again looked for the approach of trains, and, none being in sight, proceeded on his way over the company's tracks to his place of business. * * * After he had looked the second time, he walked a distance of 30 feet along the track, then stepped upon it, without at the moment looking back. It is not clear from the evidence that he thus stepped upon the track, or when he did so after looking; but, assuming that he did walk the 30 feet after looking, he had only a moment before looked back, where he could see a distance of 300 yards, and he should not, therefore, be held conclusively disentitled to recover, because of his failure again to look, especially as he was observing the movements of a shifting engine in front of which he had to pass.”

The foregoing, we think, disposes of plaintiff's contention as respects that case.

[7] From what we have said we are of opinion that the rule announced in the Houston Case, as well as the Neininger Case, is controlling, and should be followed by this court. When we apply that rule to the facts in the case at bar, we cannot escape the conclusion that, had it not been for the negligence of the plaintiff's intestate at and just before the time he reached the crossing, the accident would not have happened. The testimony of the various witnesses as to the intervening space between the obstructions to which we have referred and the crossing, and the distance one could have seen along the track in the direction from whence the train came, we think, was sufficient to establish the fact that, if the plaintiff had looked and listened at that point before going upon the crossing, he could have seen or heard the approaching train in ample time to avoid the accident.

Counsel for plaintiff also contend that, notwithstanding the Neininger Case, this court should follow the decisions of the highest court of the state in actions at law, except in cases of grave and palpable error, as to general commercial law and general jurisprudence, and cite in support of this contention the case of Sim v. Edenborn, 242 U. S. 131, 37 Sup. Ct. 36, 61 L. Ed. 199, wherein the court, among other things, said:

“This court has many times considered how far federal tribunals, when undertaking to enforce laws of the states, should follow opinions of their courts. The authorities were reviewed and rule announced in Burgess v. Seligman, 107 U. S. 20, 33, 34, 35 [2 Sup. Ct. 10, 27 L. Ed. 359), which declared that, as to doctrines of commercial law and general jurisprudence, the former exercise their own judgment; but even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts, if the question seems to them balanced with doubt.' * * The conclusions of the Court of Appeals in Heckscher's Case [203 N. Y. 210, 96 N. E. 411), are not in direct conflict with any declared views of this court, and some expressions in our former opinions tend to support them."

Counsel insist that the decisions of the Supreme Court of West Virginia are to the effect that the question as to whether one has been negligent in failing to stop, look, and listen “is generally presented as a mixed question of law and fact to be submitted to the jury. * * *In support of this contention the case of City of Elkins v. Western Maryland R. Co. (W. Va.) 86 S. E. 763, is cited. The court in that case, among other things, said:

“The sole question presented for our decision is whether, under all the facts and circumstances attending them at the time, plaintiff's servants were guilty per se, and as matter of law, of contributory negligence in not stopping before going upon the track. *

We do not think the court was justified in holding in this case that plaintiff's servants were guilty per se of contributory negligence."

In the above case it was held that it was not negligence per se in all cases for a traveler upon a public street or road, in approaching a rail

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