seen to be approaching does not of itself constitute negligence. Ordinarily, whether or not he (the person crossing) was negligent in attempting to cross, under the circumstances of the case, is a question for the jury."

The same thought is expressed in Hall v. Ry. Co., 13 Utah, 258, 44 Pac. 1049, 57 Am. St. Rep. 726, in the following language:

"Persons traveling on the public street, along or across a street railway track, are not held to the exercise of the same degree of care and precaution as they are when traveling along, or upon, or across the ordinary steam railroad.”

To the same effect is Thompson v. S. L. Rapid Tr. Co., 16 Utah 289, 52 Pac. 92, 40 L. R. A. 172, 67 Am. St. Rep. 621. The case of Marden v. Portsmouth, etc. R. Co., 100 Me. 41, 60 Atl. 530, 69 L. R. A. 300, 109 Am. St. Rep. 476, is a wellconsidered case, in which a large number of cases of this class are reviewed, and where the Utah cases are cited with approval. In Benjamin v. Holyoke St. Ry., 160 Mass. 3, 35 N. E. 95, 39 Am. St. Rep. 446, in referring to this subject, it is said:

"The use of the street for electric cars and by the general public was concurrent; and the defendant (the company) was bound, in using the street, to have reference to its reasonable use by others."

We have examined a large number of cases, and, from the decisions, we are forced to the conclusion that, where the conditions and circumstances are as they were in the case at bar, the question of negligence is within the province of the jury. in addition to the cases already mentioned, we cite the following well considered cases: Robbins v. Springfield St. Ry., 165 Mass. 30, 42 N. E. 334; Newark Pass. Ry. v. Black, 55 N. J. Law 611, 27 Atl. 1067, 22 L. R. A. 374; Lawler v. Hartford St. Ry., 72 Conn. 74, 43 Atl. 545; Shea v. St. Paul City Ry., 50 Minn. 395, 52 N. W. 902; Holmgren v. Twin City Rapid Tr. Ry., 61 Minn. 85, 63 N. W. 270; Clark v. Bennett, 123 Cal. 275, 55 Pac.908; McClain v. Brooklyn Ry., 116 N. Y. 459, 22 N. E. 1062; Copeland v. Met. St. Ry. 67 App. Div. (N. Y.) 483-485, 73 N. Y. Supp. 856.

The law required that the deceased exercise ordinary care for his own safety. To this end he was required to make use of all of his senses to avoid injury. Did he meet this legal requirement at the time and place of the accident? It is easy enough to assume, when viewing the matters retrospectively, that one has failed in this, that, or the other thing, and, if he had not so failed, he would not have been injured. In view of all the circumstances, may not reasonable men differ with regard to his conduct, as disclosed by the evidence, just before and at the time of the accident? May not, likewise, reasonable men draw different conclusions from the conceded facts? The deceased had a right to cross the track in an attempt to board the street car on the southerly track. He had a right to do so even hastily, provided he exercised ordinary care for his own safety in view of his surroundings. He may have seen the car on the north track approaching from the east. He may have assumed that it would reduce its speed on nearing the cross-over switch. But whether he saw it or not, the jury had a right to determine from all the facts whether or not he acted with reasonable care, and whether the motorman, in approaching the switch, did likewise. Moreover, as the car was approaching a place where a considerable number of persons habitually crossed the track, a place near the public crossing on Main street, and immediately east of which the cars habitually stopped to take on and discharge passengers, the deceased might have assumed that, if the motorman intended to make the cross-over without reducing the speed of the car, he would give some warning of his intention to do so. If the motorman had done either, it is quite probable that the accident would not have occurred. Under all these circumstances, it was a question of fact for the jury to say whether the deceased was guilty of negligence which directly contributed to the accident. Even an error of judgment by the pedestrian, based upon some act or duty required of the company or its servants may be taken into consideration in determining who is in the wrong. This is well illustrated in the case of Copeland v. Met. St. Ry., supra, where a woman, in attempting to cross a street car track ahead of an approaching

car which she saw coming toward the point where she intended to cross, was struck and injured while in the act of crossing. The court, in referring to her conduct, used this language: "Her judgment that she could cross in safety was in fault only because of the fact that the motorman had decided not to stop in answer to the signal, 'Slow down;' nor did he, by the ringing of a bell, notify her of his intention." The car in that case was signaled to stop by the woman's son. It was a car which did not stop at the particular point, and proceeded on its course, and reached the point where the woman crossed the track in less time than she had calculated, and was injured by reason of this miscalculation. The case of McClain v. Brooklyn Ry., supra, is likewise one where the facts and circumstances were in some respects similar to those at bar; and in that case it was also held that the conduct of the parties involved questions of fact to be determined by the jury. It may be that in some of the cases the conduct of the pedestrian may be of such a character that the question is one of law merely. The case of Boring v. Union Trac. Co., 211 Pa. 594, 61 Atl. 77, affords an illustration of that class. There the injured person walked along the side of the street railway track ahead of an oncoming car, and, without looking, suddenly stepped onto the track in front of the car, and was struck and injured. It was held that the injured person was negligent as a matter of law. We are, however, not dealing with such a case. In this case there were many matters to be considered, on at least some of which reasonable men might arrive at different conclusions. The Teakle Case, supra, was entirely different in this respect from the case at bar. There only one conclusion was permissible from the conceded facts; and hence it was a question of law, and was decided as such. We are convinced that the court committed no error in submitting the case to the jury.

The next assignment to be noticed, briefly stated, arises as follows: Mrs. Spiking, one of the respondents, testified as a witness in the case, and, before the respondents rested, counsel for appellants asked leave to recall her for further cross-examination. After this was concluded, her counsel proposed to

ask her a further question upon a matter which he said was not proper on redirect, but desired to ask it because it had been overlooked. No objection being made, counsel asked the following question: "How was Mr. Spiking as to being a careful and cautious man?" The witness answered: "Yes, sir; he was very careful." Counsel for appellants offered no objection to the question, but immediately after the answer moved to strike it out as "irrelevant, immaterial and incompetent." The court denied the motion, and permitted the answer to stand. Counsel for appellants now urge that the court erred in refusing to strike out the answer. That the evidence of the character contained in the foregoing answer is improper in view of all the evidence in the case must be conceded. This is well illustrated by the following authorities: Adams v. C. M. & St. P. Ry.,93 Iowa, 565, 61 N. W. 1059; Louisville Ry. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60; Glass v. Memphis & C. Ry., 94 Ala. 591, 10 South. 215; Chase v. Maine C. Ry., 77 Me. 62, 52 Am. Rep. 744; Towle v. Pac. Imp. Co., 98 Cal. 342, 33 Pac. 207. Some of the authorities are to the effect that, where there are no eyewitnesses in a case of death by accident, such evidence is proper. (1 Shear. & Redf., Ev. [5th Ed.], section 111; 1 Elliott, Ev. section 217.) Conceding the evidence to be improper, can this court review the alleged error in view of the state of the record? The question was one propounded immediately after opposing counsel's attention. was directed to the fact that the question would be asked out of the regular order. The question upon its face was one that indicated what the character of the answer thereto would be. The answer of necessity would be that deceased was either a careful man or a careless man. If the answer was that he was a careful man, then appellants' counsel did not want it, and, if it had been to the contrary, respondents' counsel would have been opposed to it. But either way the testimony was improper. This is always the result, with regard to improper testimony, under conditions as above indicated; and in view of this the courts have evolved and adopted a rule of practice which is that where the question fairly indicates what the nature of the answer will be, then the adverse counsel must object to the

question and obtain a ruling, and save an exception to make the error, if any be committed, available in a court of review. Error may not be predicated upon a denial of the motion alone. This rule is well stated in People v. Williams, 127 Cal. 216, 59 Pac. 583, in the following words:

"When it is apparent from the question that the answer will contain evidence necessarily inadmissible, then the motion to strike out comes too late, unless preceded by an objection to the question; but the rule is otherwise when the evidence may, or may not, be admissible."

The authorities are numerous to this effect, and among which we refer to the following: Taylor v. State, 100 Ala. 68, 14 South. 875; Way v. Johnson, 5 S. D. 237, 58 N. W. 552; Wendt v. R. Co., 4 S. D. 476, 57 N. W. 227; Cleveland C., C. & I. Ry. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569; Gran v. Houston, 45 Neb. at page 836, 64 N. W. 245; McClellan v. Hein, 56 Neb. 600, 77 N. W. 120; 3 Jones on Ev., section 898; 22 Pl. & Pr. 1310. In the foregoing cases, excepting those from Nebraska, where the record is like the one before us, it is held that the alleged error is not reviewable. In Nebraska, however, it is held that the motion to strike out is always addressed to the sound legal discretion of the trial court, and that a clear abuse of this discretion is always reviewable. If we adopt the rule generally recognized, we cannot review the alleged error, because under that rule a failure to object to the question waives the error. What would be the result if we should adopt the Nebraska rule? Has the trial court so clearly abused his legal discretion that, in view of the state of the record, error may be predicated thereon? When the motion to strike out was made, counsel for appellant offered some excuse for not making an objection before the question was answered. Whether the excuse was well founded depended upon the circumstances, all of which occurred in the presence of the court, and he necessarily deemed the excuse insufficient. We arrive at this conclusion from