physical evidences of the horse's fright what frightened him, but as his tracks made in approaching and in getting upon the crossing furnished no evidence that he was then running and it does not appear from the evidence that there was an object of any kind on or near the crossing which could have frightened him after he got thereon, the inference may reasonably be indulged that his fright was caused by the sudden coming of the train; and the fact that he ran down the railroad track instead of going off of it by way of the crossing, allows the further inference that his rider lost control of him. It is highly improbable that the decedent would have abandoned the safety of the highway, which was but a few feet from the crossing, to ride down the middle of a railroad track which, to say nothing of the danger to be apprehended from the coming of trains, on account of the crevices between its cross ties and the stone ballast projecting therefrom, would afford insecure traveling for a horse, however sure-footed he might be.

It will not be presumed that the decedent in riding upon the crossing, at the time and in the manner that he did, was guilty of negligence. He was not required to stop his horse and look or listen for the train before. going upon the crossing, but it was his duty in going upon it to use ordinary care for his own safety; that is to neglect no means that would have been employed by an ordinarily prudent person, similarly situated, to inform himself whether there was a train so near at hand as to make his use of the crossing at the time dangerous to him. It must be admitted that the testimony of appellant's engineer and fireman conduce to prove that the decedent did not exercise such care as we have indicated, but while this is true, the physical facts upon which we have commented contradict the engineer and fireman and strongly tend to prove the absence of contributory negligence. On this issue of fact the evidence was conflicting, therefore, the issue was properly submitted to the jury; if in addition, there was any evidence conducing to prove that the negligence of appellant's engineer caused the decedent's horse to become frightened and run down the railroad track as charged.

If the running of decedent's horse down the railroad track resulted from his becoming frightened at the train and the consequent inability of the rider to control him, such fright and the uncontrollable running of the horse, could not have been the proximate cause of the latter's

death, if the fright of the horse was caused by the negligence of appellant's engineer, but on the contrary constituted merely an incidental or intervening cause thereof set in motion by the engineer's negligence.

"It is well settled that the mere fact that there have been intervening causes between the defendant's negligence and the plaintiff's injuries is not sufficient in law to relieve the former from liability; that is to say the plaintiff's injuries may yet be natural and proximate in law, although between the defendant's negligence and the injuries other causes, conditions or agencies may have operated, and when this is the case, the defendant is liable. So the defendant is clearly responsible where the intervening causes, acts or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act or omission, or even, it is generally held, if the intervening acts or conditions were of a nature the happening of which was reasonably to have been anticipated, though they may have been acts of the plaintiff himself. An act or omission may yet be negligent and of a nature to charge the defendant with liability, although no injuries would have been sustained but for some intervening cause. 21 Am. & Eng. Ency. of Law, (2nd ed.) 490; Lou. Home Tel. Co. v. Gasper, 123 Ky., 128; L. & N. R. R. Co. v. Eckmon, 137 Ky., 332; Watson v. Ky. and Ind. Bridge Co., 137 Ky., 619.

* *

It now remains to be determined whether there was any evidence of negligence on the part of appellant's engineer which caused the decedent's death. Such negligence will not be presumed any more than would contributory negligence on the part of the decedent be presumed; it must be proved as any other fact.

It may safely be assumed that the decedent would not have gone upon the crossing at the time he did if he had known of the proximity of appellant's train.

It was admitted by appellant's engineer that he did not sound the whistle of the engine in approaching the Gee crossing. He testified, however, as did the fireman and others of the train crew, that the usual whistle signal was given for the public crossing near the top of Corey Hill, a half or three-quarters of a mile east of the crossing. But a number of witnesses introduced by appellee testified that the signal was not given for the public crossing. There was, therefore, a contrariety of evidence on this point.

The failure to give the signal for the Gee crossing was attempted to be justified on the ground that it is a private crossing and for that reason no duty rested upon appellant's servants to give the signal for it.

As to public crossings it is the duty of those oper ating railroad trains to anticipate the presence thereon of persons traveling the highway, and for that reason there is a statutory requirement that signals must be given of the approach of trains to such crossings attended by a proper slackening of their speed.

In L. & N. R. R. Co. v. Engleman's Admr., 135 Ky., 515, we said of the duty of railroad companies with respect to private crossings:

"The railroad company may run its trains at such speed as it pleases over private crossings and that it is not required to give notice of the approach of the trains to such crossings, unless it has been customary for the signals to be given and they were relied on by persons using the crossing. Johnson v. L. & N. R. R. Co., 91 Ky., 651; Lou. etc., R. R. Co. v. Survant, 96 Ky., 197; Davis v. C. & O. Ry., 116 Ky., 114.

On the other hand it has been held that where it has been customary for signals to be given for the approach of trains to a private crossing, and these were relied on by persons using the crossing, and a traveler on the crossing was struck by reason of the failure to give the statutory signals, a recovery may be had." L. & N. R. R. Co. v. Bodine, 109 Ky., 509; Early's Adm'r v. Lou., etc., R. R. Co., 115 Ky., 13.

There are yet other cases in which we have held that where a private crossing, at which signals of the approach of trains are not accustomed to be given, is contiguous to a public crossing at which such signals are customary and required to be given, and a person using the private crossing is accustomed to rely upon the signals for the public crossing as a means of knowing of the approach of trains to the private crossing, and such person is injured at the private crossing by a train, the coming of which was not made known to him because of the negligence of its engineer in failing to give the customary signals of its approach at the public crossing, such failure would make the railroad company liable for his injuries. Cahill v. Cincinnati, etc., Railroad Co., 92 Ky., 345; L. & N. R. R. Co. v. Survant, 19 R., 1576.

The Gee crossing was established by appellant's vendor, the prior corporate owner of the railroad.

Some of appellee's evidence tended to show that the crossing was originally established as a public crossing, and that for a while after it was made, a sign-board was maintained there designating it as a public crossing.

We do not think this evidence sufficient to make it a public crossing, and besides, it cannot be so characterized as it is not, and has never been, a place where an established public road or highway crossed the railroad track. There was, however, considerable evidence to the effect that the crossing and road leading thereto from Gee's land, were used by the decedent and all others of the community as freely as if it were a public road and crossing; that appellant's trains, had for years maintained the custom of giving the whistle signal in approaching the Gee crossing, and that persons using the crossing and Gee road were accustomed to rely upon these signals for information of the coming of trains.

There was also some evidence which conduced to prove that the same persons in using the Gee crossing, also relied upon the signals given by trains at the public crossing, for notice of their coming to and passing the Gee crossing. Appellant's evidence as to these matters was strongly contradictory of that of appellee, as it conduced to prove that the use of the Gee crossing by persons other than Gee himself, was limited, and that it was not the custom of appellant's trains to give signals for the Gee crossing.

In view of the contradictory character of the evidence it was, as held in L. & N. Ř. R. Co. v. Engleman's Adm'r, supra, a question for the jury whether the "custom of giving signals for this crossing prevailed to such an extent that persons using the crossing had a right to rely on the signals being given. It is not material that some trains passed the crossing without giving the usual signals, for some trains fail to give signals at public crossings. The case turns on whether there was such a custom to give the signals that persons using the crossing had the right to rely on."

The jury evidently found that there was in this case such a custom, and assuming this to be true, the admitted failure of appellant's engineer to give any signal of the train's approach to the Gee crossing was negligence, to which the jury, from all the evidence, had ground to attribute the fright of the decedent's horse, and his (the decedent's) death. This primary negligence of the engineer being the efficient case, the fright of the horse

and his running on the railroad track until overtaken by the train, were but intervening or secondary events contributing to the result. It is patent from the evidence that appellant was not entitled to the peremptory instruction asked by it.

We are unable to see that there was no evidence upon which to base instruction 5, of which appellant complains. According to the testimony of the engineer the engine was at the east end of the Jordan trestle when the engineer first saw the decedent, who was then about to ride upon the crossing. The trestle is something over 1,300 feet from the crossing. If, when first seen by the engineer, the decedent was in the act of going upon the crossing, he was then in peril, which must have been known to the engineer, who at that time gave no signal to warn the decedent of the approach of the train, nor did he then make any effort to stop the train, or even lessen its speed. In view of these facts, it was the province of the jury to determine from the evidence whether there was opportunity for stopping the train within the 1,300 or more feet and before it struck the decedent, or whether, if this could not be done, the giving of a warning signal with the whistle of the train would have arrested the attention of the decedent, notified him of the proximity of the train, and either kept him from going on the crossing or caused him to hurry over it with such speed as to escape collision with the train. Wilmuth's Adm'r v. I. C. R. R. Co., 25 R., 671. Instruction No. 5 properly submitted for the consideration of the jury this feature of the case.

It cannot be said that instruction No. 6, of which appellant also complains, was prejudicial to it. On the contrary it was more favorable to it than was authorized, as it required the jury, in order to find for appellee, to believe, that it was not only the custom of appellant to give signals of the approach of the train for both the public and Gee crossings, but that persons using the Gee crossing were accustomed to rely upon the signals for both crossings. While this was error, as to appellee, the error was not one of which appellant could complain.

The instructions are in some respects inaccurately expressed, and even complicated, but we can not say, that as a whole, they were prejudicial to the substantial rights of appellant.

Wherefore, the judgment is affirmed.