GRADE CROSSING. A place where one highway crosses another : in particular, a place where a railroad is crossed at grade by a public or private road, or by another rail road. The term is most frequently used with reference to the crossing of a public highway by a railroad.
At such a crossing it is the duty of the railroad company to construct and main tain safe and proper crossings; and it is liable for all injuries resulting from a fail ure to perform this duty; Louisville, N. A. & C. Ry. Co. v. Smith, 91 Ind. 119 ; Farley v.
R. Co., 42 Ia. 234 ; Paducah & a R. Co. v. Com., 80 Ky. 147; State v. R. Co., 36 Ohio St. 436; Pittsburg, F. W. & C. Ry. Co. v. Dunn, 56 Pa. 280; but the most numerous Class of cases relating to grade crossings, arises from accidents to persons who are using the crossing, caused by the operation of trains thereon.
The rule that the roadbed and track of a railroad company are its private property, and that one who gets thereon does so at his own peril, does not apply to a highway crossing; Florida Cent. & R. R. Co. v. Wil liams, 37 Fla. 406, 20 South. 558. At such a place the company hold its roadbed, sub ject to the right of the public to cross it ; and that circumstance creates mutual rights and obligations. Both parties must use or dinary care in the exercise of their own rights. Theoretically, the rights of the com pany and a person who intends to cross are equal ; practically, the more onerous duty of avoiding danger rests upon the latter, on account of the difficulty in stopping a train in rapid motion. But this fact, on the other hand, imposes upon the railroad company the duty of using every practicable agency con sistent with the operation of its trains, to give due warning of their approach ; Rock ford, R. I. & St. L. R. Co. v. Hillmer, 72 Ill. 235; Western & A. R. Co. v. King, 70 Ga. 261; Indianapolis & V. R. R. Co. v. McLin, 82 Ind. 435; Louisville, C. & L. R. Co. v. Goetz, 79 Ky. 442, 42 Am. Rep. 227 ; Balti more & 0. R. Co. v. Owings, 65 Md. 502, 5 Atl. 329; Weber v. R. Co., 58 N. Y. 451; Kay v. R. Co., 65 Pa. 269, 3 Am. Rep. 628. Thus, the whistle must be sounded on ap proaching a crossing; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485 ; Hinkle v. R. Co., 109 N. C. 472, 13 S. E. 884, 26 Am. St. Rep. 581; Reeves v. R. Co., 30 Pa. 454, 72 Am. Dec. 713 ; Baltimore & 0. R. Co. v. Owings, 65 Md. 502, 5 AU. 329; and the better view is that watchmen should be stationed at every much-used crossing ; Grank Trunk Ry. Co. v. Ives, 144
U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. But this rule is not uniformly held; and some courts have decided that the railroad com pany, unless required by statute, is under no obligation to give warning ; Brown v. R. Co., 22 Minn. 165; Favor v. R. Corp., 114 Mass. 350, 19 Am. Rep. 364. This duty is now, however, generally prescribed by stat ute ; and a failure to discharge it is in such a case always evidence of negligence, though not conclusive; Barber v. R. Co., 34 S. C. 444, 13 S. E. 630; Railway Co. v. Howard, 90 Tenn. 144, 19 S. W. 116; Augusta & S. R. Co. v. McElmurry, 24 Ga. 75 ; Hanlon v. R Co., 129 Mass. 310 ; Funston v. Ry. Co., 61 Ia. 452, 16 N. W. 518 ; Atlanta & W. P. R. v. Wyly, 65 Ga. 120; Lewis v. R. Co., 123 N. Y. 496, 26 N. E. 357; Nash v. R. Co., 125 N. Y. 715, 26 N. E. 266 ; Hinkle v. R. Co., 109 N. C. 472, 13 S. E. 884, 26 Am. St. Rep. 581; Clark v. R. Co., 64 N. H. 323, 10 Atl. 676.
The railroad company is not alone bound to the exercise of care in approaching a crossing. A traveller who intends to cross is also bound to use ordinary prudence, by which is to be understood such as is fairly commensurate with the risk. He must, therefore, look for an approaching train, if he has a fair view of the track ; and if his view is obstructed, he must also listen. If he does not do so, and is injured, he cannot recover; but if he does, and is nevertheless injured by the negligence of the company, the latter is liable to him ; Wabash, St. L. & P. Ry. Co. v. Wallace, 110 Ill. 114; Lang I,. Holiday Creek R. & Coal Min. Co., 49 Ia. 469 ; Murray v. R. Co., 31 La. Ann. 490; Cin cinnati, H. & I. Ry. Co. v. Duncan, 143 Ind. 524, 42 N. E. 37 ; Frech v. R. Co., 39 Md. 574; Wright v. R. Co., 129 Mass. 440; Car ney v. Ry. Co., 46 Minn. 220, 48 N. W. 912; Pennsylvania R. Co. v. Righter, 42 N. J. L. 180; Haas v. Ry. Co., 41 Wis. 44. It is not necessary to leave to the jury whether a prudent man would look and listen before attempting to cross a railroad track. It is the duty of the court to declare that a fail ure to do so is negligence ; Pyle v. Clark, 75 Fed. 644; it is a conclusion of law ; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S. W. 1070; Baltimore & 0. R. Co. v. Talmage, 15 Ind. App. 203, 43 N. E. 1019; Philadelphia & R. R. Co. v. Peebles, 67 Fed. 591, 14 C. C. A. 555; Horn v. R. Co., 54 Fed. 301, 4 C. C. A. 346.