delivered the opinion of the court.

Error is specially predicated upon the refusal of the court to give the following instruction as prayed for:

“ Before the plaintiff can recover he must show,

“ 1. That the defendant was guilty of negligence.

“ 2. That Nuney was not guilty of negligence, and could *37not have avoided the collision by the use of ordinary care on his part, for, if he could have avoided the accident by the use of ordinary care, then it is immaterial whether defendant was guilty of negligence or not, and in such case plaintiff cannot recover.”

The court gave it with these words inserted: “ Unless such negligence was gross.”

The instruction is objectionable in so far as it east the burden of proof upon Nuney to show that he was not guilty of contributory negligence, but in other respects correctly expressed the law. It was not refused, however, on that ground, but given as modified. This modification was clearly erroneous, as applied to the facts of the case. As was said in the case of Crisman, ante, that “Negligence on the part of a railroad company will not excuse a traveler approaching a crossing from using proper care on his part to avoid danger, aud that there can be no recovery if he fails to do so, if such failure contributes to the injury. A qualification of this rule pertains only in cases where the railroad company has notice of the dangerous situation of the party injured in time to avoid collision by the exercise of ordinary care, and is ‘ guilty of such conduct as will imply an intent or willingness to cause the injury. ’ No such state of facts exists in this case.”

We think the court also erred in refusing the following instruction asked by plaintiff in error:

“If Nuney’s view of the railroad track, in the direction from which the train was approaching, was obstructed to such an extent as to prevent him from seeing the approaching train from the wagon, then he was bound to use greater care than would have been required if the view had heen unobstructed, and should, if necessaiy, have stopped the team and listened for approaching trains before driving on the crossing.” C. R. I. Pac. Ry. Co. v. Crisman, ante, p. 30.

In that case we held that this instruction as asked should have been given, and that as given thei’ein, as modified, was erroneous. Under the law as therein declared this judgment must be reversed, and cause remanded for a new trial.

Reversed.