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former is in this particular vague and indefinite, and was calculated to mislead the jury. It was, therefore, properly refused. Moreover, the instruction which was given must be taken in connection with the following instructions which were also given, and which correctly propound the law:

"1st. The jury are instructed that it was the duty of the plaintiff, in approaching the railroad track of the defendant, to look and listen for approaching trains with such care as an ordinarily prudent man, under the same circumstances, would have used, and failure, if there was failure to do so, is such contributory negligence on his part as debars a recovery for an , injury received by collision with the approaching train, unless the defendant, after seeing the plaintiff, or after it should, in the exercise of due care, have seen the plaintiff on its track, or so near thereto as not to leave space to pass clear, failed to exercise all proper means to avoid the accident."

"2d. Although the jury may believe from the evidence that the defendant or its employees had no look-out properly stationed, yet, if the plaintiff could by looking about him with ordinary care, or by the ordinary use of his ordinary senses in approaching the railroad track, have discovered the approach of the defendant's cars in time to have avoided them by the use of such means or conduct as a man of ordinary prudence under the same circumstances would have used, and did not so avoid them, he was guilty of such contributory negligence as bars his recovery."

An exception was also taken to the refusal of the court to give the following instruction: "The jury are instructed that the degree of care required of a railroad company is that used by good specialists in the same business."

This instruction was very properly refused. It embodies an altogether abstract proposition, and would have shed no light upon the case the jury were sworn to try. It would not have informed the jury either what it meant by "a good specialist," or what degree of care is required of such a person; so that

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the jury, instead of being aided or enlightened, would have been perplexed by the instruction if it had been given. Nothing more need be said, therefore, to show the propriety of the refusal of the court to give it.

Complaint is also made of the action of the court in giving to the jury the following instruction at the instance of the plaintiff':

"If the jury believe from the evidence that the plaintiff was injured by the defendant's train by the defendant's negligence, and that the place of the accident is so situated that a view of an approaching train was so obstructed that a person driving out from the yard of the steamship company could not see an approaching train, then the fact that the plaintiff did not look or see the approaching train cannot be considered as contributory negligence.”

As regards this instruction it is proper to say that the that the question of negligence is a mixed question of law and fact; (Dun v. Seaboard and Roanoke R. R. Co., 78 Va., 645; Balt. and Ohio R. R. Co. v. McKenzie, 81 Va., 71), and the jury having been previously instructed as to the degree of care required of the defendant company, it was left to them to say whether the injuries of the plaintiff were caused by the defendant's negligence, with the further remark in effect that if the evidence showed that the plaintiff was so situated that it was physically impossible for him to see the approaching train, then the fact that he did not look or see it was not contributory negligence on his part. We are of opinion that the instruction correctly propounds the law, and that the court did not err in giving it. Nor did the court err in further instructing the jury as follows: "If the jury believe from the evidence, and from a view of the place where the accident is alleged to have taken place, that the view of an approaching train was obstructed by buildings or otherwise, and that ordinary care would have required other precautions, and that the defendant did not use such other precautions, then they must conclude that the defendant

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was guilty of negligence; and if they believe further from the evidence that the plaintiff did not know that the train was nearing the gate, so as to endanger his passing through, but acted as an ordinarily prudent man would act under the circumstances, they must find for the plaintiff such damages as are proper, not exceeding the amount claimed in the declaration."

Objection is made to this instruction, on the ground that it is indefinite, in leaving it to the jury to say what precautions the defendant should have taken. It is for the court, says the plaintiff in error, and not the jury, to say what precautions, in such a case, are necessary, and that the instruction violates this rule. It is a sufficient answer, however, to this objection to say that there is no such rule. On the contrary, as already stated, negligence is a mixed question of law and fact, and it was, therefore, properly submitted to the jury to say whether the defendant had performed or omitted any act or acts which in the exercise of ordinary care, it was its duty to perform. In other words, the jury were told that it was the duty of the defendant to exercise ordinary care, and that a failure on its part to do so, if there was such failure, was negligence. Sherm. & Redf. Neg., §11, and cases before cited.

For substantially the same reason, we are of opinion that there was no error in giving the following instruction, namely: "If the jury believe from the evidence that the defendant's train was being pushed by the engine, and that this mode of locomotion increased the risk of injury to the plaintiff and other persons and property, then the law imposed an obligation upon it to give timely and suitable notice and warning of what the defendant was doing, and if the defendant did not give such timely and suitable notice, it was guilty of negligence, and if the plaintiff acted with the care with which an ordinarily prudent man would act under the circumstances, they must find for the plaintiff such damages as are proper, not exceeding the amount claimed in the declaration.”

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The last and only remaining instruction which was given, is as follows: "The court instructs the jury that a railroad company running and operating its trains on the streets of a city, must use greater care and diligence to prevent injuries to persons and property, than is required of them in running and operating their trains in less frequented and populous localities; and so in certain localities in the town greater precautions may be necessary than in others; for example, if the train is being carried around a corner, objects or persons on the other side of which are hidden from view, it is required of them to resort to special precautions, depending upon the particular locality and the circumstances to avoid accidents, and any neglect of such precautions as are proper under the peculiar surroundings and circumstances of the locality constitutes negligence, for which the railroad company is liable in damages, unless the plaintiff by the exercise of ordinary care on his part could have prevented the accident; and courts do not hold a person who is faced with a sudden danger to the same degree of judgment and presence of mind as would otherwise be required of him, and the burden of proof is on the railroad company to prove such absence of ordinary care on the part of the plaintiff."

We see nothing objectionable in this instruction. It correctly states the law, and was properly given. Norfolk and Petersburg R. R. Co. v. Ormsby, 27 Gratt., 455; Railroad Co. v. Gladman, 15 Wall., 401; Balt, and Ohio R. R. Co. v. McKenzie, 81 Va., 71; Petersburg Railroad Co. v. Hite, 81 Va., 767. It is also contended that the court below erred in overruling the defendant's motion for a new trial. The motion was based on the ground that the verdict was contrary to the law and the evidence, and also because the damages awarded by the jury were excessive. The evidence, all of which was parol, is certified in the bill of exceptions, and not the facts proven, so that, according to the established rule in this court, we must look to the evidence of the plaintiff only. And a careful examination of that evidence satisfies us that the injuries of the plaintiff,

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which were serious and permanent, were caused by the culpable negligence of the defendant, without any contributory negligence on the part of the plaintiff. The jury assessed the damages at $2,000, and we find nothing in the record to justify this court in setting the verdict aside. See Benn v. Hatcher, 81 Va., 25. For these reasons the judgment must be affirmed.

FAUNTLEROY, J. dissented.

JUDGMENT AFFIRMED.