The ordinances of the city prohibited trains from running in the locality where In our former opinion we stated that when plaintiff was injured at a greater rate of plaintiff was within 10 or 12 feet of the speed than 10 miles an hour. These orditrack he looked to the south, the directionnances also require the defendant company from which the engine came which collided to maintain gates or station a flagman at with him, and then started to walk across the track. It will be observed from the quotation that this was not correct, in that he appears to have walked in a northerly direction along and near the track before starting to cross it. Continuing his statement regarding his movements after he had walked along and near the track, he states, in substance,

travelers upon intersecting highways are mutual and reciprocal, and no greater degree of care is required of one than the other. True, the railroad company has the right of precedence at such crossings; but both parties, in the exercise of their respective rights, are nevertheless required to exercise reasonable care in enjoying them-the one to avoid inflicting injuries, and the other to avoid being injured. A person attempting to cross a railroad track at a public crossing in a city has the right to expect that the railroad will give the signals required by law to warn him of the approach of a train, and that it will not be run at an excessive and dangerous rate of speed, and if he is without fault, and such neglect and act on the part of the road results in his injury, then he can recover. Texas & Pac. Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132; C. & E. I. R. R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761; Cleveland, C., C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N. E. 985. So that, in determining the degree of care which a pedestrian about to cross a track at a public crossing in a city must exercise, the general rule is that the pedestrian, who does not know of the negligence of a railroad company in running its train at an unlawful rate of speed and in failing to give the required signals of its approach, and such want of knowledge is not the result of his failure to exercise a reasonable degree of care, is only required to exercise that degree of care which ordinarily prudent persons will exercise when the railway company is also exercising the care which the law imposes upon it, in the operation of its trains at street intersections.

bell or blowing the whistle is negligence, it tions, rights, and duties of railroads and does not absolve pedestrians from the exercise of care to avoid injury therefrom. C., R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286; Schmidt v. Mo. Pac. Ry. Co., 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196; Gahagan v. Boston & Maine R. R., 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426. So that, although the record in this case discloses that the defendant was negligent, it is not liable unless such negligence was the proximate cause of the injury to plaintiff. The trial court held that the negligence of plaintiff was so clearly established that he could not recover, and instructed the jury accordingly. The first important question to determine is whether or not this ruling was correct. In so doing, we must assume that the evidence establishes all facts which it tends to prove, and, in passing upon it, must make every inference of fact therefrom in favor of the plaintiff which the jury would have been warranted in finding in his favor. Donohue v. St. L., I. M. & S. Ry. Co., 91 Mo. 357, 2 S. W. 424, 3 S. W. 848. If, when so considered, it appears the jury might have found that plaintiff was not guilty of contributory negligence, which was the proximate cause of his injury, then the ruling of the trial court under consideration was wrong; otherwise, right. Necessarily every case of this character must depend upon its own circumstances, and whether or not a proper degree of care has been exercised by a plaintiff is dependent more or less upon the danger reasonably to be anticipated. A pedestrian about to cross a railroad track at a street intersection is required to exercise that degree of care in looking out for approaching trains which a reasonably prudent person would have exercised under similar circumstances. If he does not, and his failure in this respect is the proximate cause of his injury, then he is guilty of contributory negligence, and cannot recover. Colo. Central R. R. Co. v. Holmes, 5 Colo. 197; Liutz v. Denver City Tramway Co. (Colo.) 95 Pac. 600; Wichita & Western R. R. Co. v. Davis, 37 Kan. 743, 16 Pac. 78, 1 Am. St. Rep. 275.

Cases frequently arise wherein it becomes the duty of the trial court to determine the question of the negligence of the plaintiff as a matter of law, but those are cases where the testimony will allow no other inference; and hence it follows that, where the question of negligence depends on a state of facts from which different minds may honestly draw different conclusions on that issue, the question must be submitted to the jury for determination. Colo. Central R. R. Co. v. Martin, 7 Colo. 592, 4 Pac. 1118; Lord v. Pueblo S. & R. Co., 12 Colo. 390, 21 Pac. 148; Solly v. Clayton, 12 Colo. 30, 20 Pac. 351; D. & R. G. Ry. Co. v. Spencer, 27 Colo. 313, 61 Pac. 606, 51 L. R. A. 121. There is no doubt about this proposition, but the

Plaintiff knew he was approaching a railroad crossing. He says he looked just as the train was clearing the main track, and there was no engine in sight approaching the point where he intended to cross. That the engine was behind this train is undisputed, and it appears that at the time he looked he could not see it because of its position, so that at the time he was approaching the track, and at the time he looked to the south the first time, the track was clear for 685 feet in the direction from which the engine came which collided with him. Within a very short time after he looked he stepped upon the track, and then for the first time discovered the engine approaching him so near and at suck a high rate of speed that he was unable to avoid being struck by it. Just how much time elapsed between the time when he first looked south and when he stepped upon the track does not appear, but it could not have been very long, because he says he stopped 10 or 12 feet from the track, then walked along and near it before attempting to cross but the time which it would take the engine to traverse 685 feet, running at the rate of from 25 to 45 miles an hour, would only re

plaintiff looked the second time, just prior | contributory negligence as a matter of law. to stepping upon the track, he would have These cases are clearly distinguishable from discovered the approach of the engine, but the one at bar. In D. & R. G. Ry. Co. v. the law only requires that he should stop, Gustafson, 21 Colo. 393, 41 Pac. 505, it was look, and listen at the time and place neces- held that whether or not the person injured sary in the exercise of that degree of care was guilty of contributory negligence was a which an ordinarily prudent person would question of fact for the jury to determine have exercised in similar circumstances; and from the testimony, but that the court erred whether by looking only once, at the time in instructing the jury to the effect that reand place he did, under the circumstances lying upon the signals of a flagman without narrated, was a proper exercise of that degree looking and listening for approaching trains of care which the law imposes depended upon was the exercise of due care. In C. & S. Ry. other matters which should be taken into con- Co. v. Thomas, 33 Colo. 517, 81 Pac. 801, 70 sideration. Where, in case of an injury at a L. R. A. 681, it was held that the person killcrossing, it appears that the person injured ed was guilty of contributory negligence bedid look for an approaching train, it does cause he approached the railroad crossing not necessarily follow, as a rule of law, that heedlessly, "without stopping, and apparenthe has no remedy because he did not look at ly without looking and listening for the apthe precise time and place when and where proaching train, and without the slightest looking would have been of the most ad- manifestation of that reasonable care or comvantage, and probably avoided the injury. mon prudence that the circumstances deMany circumstances might be shown which manded and that the law exacts." From the could properly be considered by the jury in facts of that case it appeared the deceased determining whether he exercised the degree had taken no steps whatever to ascertain of care which the law imposes upon him. whether or not a train was approaching Rodrian v. Railroad Co., 125 N. Y. 526, 26 N. over the track he was about to cross, and E. 741. Plaintiff had observed a clear track that the tracks were obscured for a long disfor 685 feet. The engine approaching him tance in the direction from which the train was giving no signals. The crossing he was came. In C. & S. Ry. Co. v. Sonne, 34 Colo. about to make was in the city, where the 206, 83 Pac. 383, it appears that the party speed of an engine was limited to 10 miles injured was familiar with the yards of the an hour. Had the ordinance in this respect railroad company, and with their custom of been obeyed, plaintiff would have had ample switching cars, that with this knowledge he time between the time he looked and the drove into the yard to get a load of coal time the engine struck him to have crossed from a car, and drove upon the track of the the track in safety. When he looked to the railroad upon which its employés were south for the first time, the track was clear switching cars without stopping and listenfor 685 feet, and apparently, within that ing, and without looking in the direction space of time which would have been suffi- where he knew they were switching, and cient after he first looked to the south for an while crossing the track was struck by a engine to reach the place where he was loose car running on the track. If he had about to cross when moving at a lawful looked up the track in the direction from rate of speed, he stepped between the rails. which the car was coming before going upon All these matters, it appears to us, were it, he could have seen the car in time to have proper to consider in determining whether avoided the injury. It was held that the or not plaintiff was guilty of contributory plaintiff's own negligence contributed to the negligence, and, as they are of a character injury, because he had exercised no care that different intelligent and unbiased minds whatever to avoid it. might honestly reach different conclusions therefrom, on that question the court erred in holding as a matter of law on the record before us that the plaintiff was guilty of contributory negligence which barred his right of action. As cases illustrating when the facts and circumstances required the question of contributory negligence to be submitted to the jury, we cite the following; Farrell v. Erie R. R. Co., 138 Fed. 28, 70 C. C. A. 396; Hecker v. Oregon R. R. Co., 40 Or. 6, 66 Pac. 270; Moore v. C., St. P. & K. C. Ry. Co., 102 Iowa, 595, 71 N. W. 569; Cohen v. Phila. & Reading R. R. Co., 211 Pa. 227, 60 Atl. 729; St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520, 94 S. W. 617.

Counsel for defendant call our attention to several decisions of this court which they cite in support of their contention that the evi

In some respects the case at bar resembles those cases wherein it has been held that if a railroad company creates an appearance of safety, and a traveler, influenced by such appearances, enters upon the track at a public crossing, and is injured, he may maintain an action. C. & E. I. R. R. Co. v. Boggs, supra; Breckenfelder v. Lake Shore & M. S. Ry. Co., 79 Mich. 560, 44 N. W. 957; Behrens v. K. P. Ry. Co., 5 Colo. 400, 406. Such a condition does not relieve the traveler from the exercise of all care, but is a factor to consider in determining whether or not he exercised that degree of care which, under the circumstances, he should have exercised. A person approaching a railroad crossing in a city, with no train in sight for several hundred feet, is not bound to anticipate that one will approach at an unlawful or unusual

out giving any signals, and is not chargeable to injury, if the defendant, after becoming with negligence as a matter of law in attempting to cross, if, in view of the distance the track seems to be clear, with no approaching train in sight, he would have time to cross before a train, going at a lawful rate of speed, would reach the crossing. Farrell v. Erie R. R. Co., supra. He has the right to assume, when he himself has exercised due care, that in handling its cars the railroad company will act with appropriate care, that the usual signals of the approach of a train will be seasonably given, and that those operating a train will be attentive and vigilant to the extent the law requires. The law does not hold it imprudent in any one to act upon the assumption that another, in his conduct, will act in accordance with the rights and duties of both. A railroad company cannot impute a want of vigilance to one injured by its own negligence, if that very want of vigilance is the consequences of an omission of duty on its part, or some act which prevented the party injured from taking the precautions to prevent injury which he otherwise would. Donohue v. St. L., I. M. & S. Ry. Co., supra. The consequences of the act of the defendant in having its locomotive which collided with plaintiff concealed behind the train backing onto the Longmont switch, and in failing to give warning of its approach, where shortly before the plaintiff attempted to cross the track he had looked to the south and observed it was clear for 685 feet, is an important question of fact to consider in determining the degree of care he exercised, as an aid in ascertaining whether or not such act and omission under the circumstances tended to throw him off his guard and lull him into a false sense of security.

Counsel for defendant contend that the physical facts conclusively establish that plaintiff did not look down the track as claimed, because, if he had, he would certainly have seen the engine. He could have seen the locomotive approaching had he looked before stepping between the rails; but, in view of the fact that it could have come upon him in the very short space of time which intervened between the time when he says he looked and when he stepped upon the track, the question presented is not whether he spoke the truth when he says he looked to the south and observed the track clear to the Longmont switch, but whether he was negligent in not looking the second time. St. L., I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520, 94 S. W. 617.

Counsel for plaintiff contend that, even if it be conceded that he was negligent in stepping upon the track, the case should have been submitted to the jury on the question embraced in the doctrine of "last clear chance." In K. P. Ry. Co. v. Cranmer, 4 Colo. 524, it was held that the plaintiff in a case for personal injuries may recover not

aware of his peril, failed to use ordinary care to avoid injurying him, and such failure was the proximate cause of the injury. In D. & R. G. Ry. Co. v. Buffehr, 30 Colo, 27, 69 Pac. 582, this court advanced a step and held, in effect, that this rule was not limited in its application to cases where the peril of the person injured was actually discovered by those at whose hands the injury was sustained, but extended to cases where such peril could have been discovered by the exercise of reasonable care upon their part. The principle underlying these propositions is that the party who has the last opportunity of avoiding injury must prevent it if, by the exercise of reasonable care, he can do so, and, if he does not, it is his negligence in this respect, and not that of the one first in fault, which is the proximate cause of the injury. It is urged by counsel for defendant that, as it appears its employés on the engine made every effort possible to bring the engine to a stop after plaintiff stepped upon the track, they performed their full duty in the premises. In the circumstances of this case this act on the part of these employés is not conclusive that they exercised the degree of care they should to discover plaintiff's peril. The duty to exercise due care to avoid the consequences of another's negligence arises when the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. Current Law, 774. In actions of this character it is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed, but it is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precaular notice. Sherman & Redfield on Neligence tions as a prudent man would take on simi(5th Ed.) §§ 99, 483, 484.

4

Each case of this character must necessarily depend upon its own facts. Ordinarily, an engineer may presume that one approaching a public crossing over which a train is about to pass is aware of the approaching train, or will not place himself in a position of imminent peril; but he is not justified in relying upon this presumption if the circumstances are such that, as a reasonably prudent person, it should occur to him that the pedestrian is not aware that a train is approaching the crossing over which he is about to pass. An engineer guilty of negligence cannot blindly assume that a traveler approaching a crossing will not be. Ordinary care on the part of an engineer requires vigilance to guard against a dangerous situation reasonably to be apprehended as well as one actually imminent, so that it becomes the duty of an engineer, when he sees a pedestrian approaching a public crossing under circumstances which would lead him to believe, as an ordinarily prudent person, that