[1] Negligence — Contributory Negligence — Proof. — Contributory negligence is an affirmative defense which must he established by a preponderance of the evidence.

[2] Id.—Pedestrian Crossing Track—Duty to Look and Listen.— A railroad' track being a place of probable danger, a pedestrian approaching such a track must both look and listen to ascertain whether there are approaching ears.

[3] Id.—E'xercise of Diligence—Presumption — Evidence. — In the absence of direct proof, the jury is at liberty to infer ordinary care and" diligence on the part of the plaintiff from all the circumstances of the case—his character and habits and the natural instinct of self-preservation.

[4] Id.—Contributory Negligence—Evidence—Inference — Verdict. To establish the defense of contributory negligence, as against the verdict of the jury, the evidence must be such that it is not in conflict on the facts, and that from these facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the deceased contributing to his own injury.

[5] Id. — Killing of Pedestrian by Railroad Car — Contributory Negligence—Physical Pacts—Deduction from.—In this action for damages for the death of plaintiff’s intestate, who was struck by a ear of the defendant railroad company at a grade crossing, in view of the physical facts, the obstructions to the view of the deceased, and the fact that the accident occurred in the dusk of evening, the appellate court could not say that the unquestioned physical facts demonstrated a situation compelling the conclusion of contributory negligence through a failure to look and listen for the approaching ear.

2. Pailure to stop, look, and listen at railroad crossing as negligence per se, note, 1 A. L. R. 203.

[6] Id.—Exoneration of Engineer — Evidence — Railroad Company not Relieved.—In such an action, a verdict and judgment in favor of the defendant engineer will not relieve the defendant railroad company from liability, where the claim of negligence as charged against the railroad company does not arise solely from the conduct of the engineer in the operation of the engine and cars, but it is also charged that the railroad company was negligent in not maintaining a flagman at the crossing and in not giving warning of the approaching engine and cars, and the evidence amply proves the truth of this latter allegation.

[7] lb.—Duty of Railroad Company to Protect Pedestrian—Necessity for Warning Signals.—The law imposes upon a railroad company the duty to use reasonable care, corresponding to the circumstances constituting the probable danger, to avoid injury to persons lawfully traveling upon the public highway crossed by the company’s tracks and trains; and it is for the jury to decide whether or not it was negligence for the company to run its cars across the highway without providing a flagman or some means of warning to travelers at the place of crossing.

[8] Id. — Inability to See Approaching Trains — Duty to Place Warning Signals at Crossing.—Where the facts in evidence prove that usually or frequently there are obstructions which interfere with the opportunity to see moving trains while travelers on the highway are approaching a much traveled crossing, it cannot be held as a matter of law that it is not negligence to run trains there without warning signals other than those usually given by engines and cars.

[9] Id.—Duty to Stop, Look, and Listen—Construction of Instructions as Whole.—Where one instruction as to the duty of the deceased to stop, look, and listen, standing alone and interpreted according to strict rules of grammatical construction, doe? not state the law correctly, but the instructions on that subject, as a whole, lay down substantially the correct rule of law, the error not being of such a character that the jury probably would be misled thereby, the instructions will be sustained.