of all the evidence, however, and upon mature reflection, we have been forced to the conclusion that respondent's injuries were caused by reason of his own carelessness in attempting to cross the railriod track without looking or listening for a train approaching from the west. It is manifest that if respondent had looked to the west, even for a moment, at any time when he was anywhere from forty to ten feet south of the track, he must have discovered the approaching train from the west, and thus could have stopped his team in time to have avoided the collision. In view of this, his own want of care was the proximate cause of the collision and the consequent injury. Judge Elliott in his excellent work on Railroads, in vol. 3 (2d Ed.), section 166, states the duty of the traveler in attempting to cross a railroad track as follows:

"The general rule is that it is not sufficient to look in one direction, but the traveler is under a duty to look in both directions. The duty to look and listen requires the traveler to exercise care to select a position from which an effective observation can be made. The mere fact of looking and listening is not always a performance of the duty incumbent upon the traveler, for he must also exercise care to make the act of looking and listening reasonably effective, and must usually continue to be on the lookout and exercise his faculties until he has crossed. He must look and listen for 1

all trains, and not merely for some train, for he has no right to proceed upon the assumption that trains will cross only at specified times. He has, indeed, no right in any case to omit to take precautions for his own safety upon the supposition or assumption that he may safely cross the track."

2

While ordinarily the question whether under all the circumstances of a particular case the traveler has exercised the degree of care which the law imposes on him in attempting to cross a railroad track is for the jury, yet where the facts are not in dispute, and where reasonable men cannot differ upon the proposition that, if the traveler had looked or listened, he must have discovered the approaching train in time to have avoided the collision, the question of his negligence is one of law, and not of fact. (Wilkinson v. O. S. L. R. Co., 35 Utah, 110, 99 Pac. 466.)

We think that in this case the unqualified statements of respondent show that, if he had made an effort to discover the train approaching from the west, he could have avoided the collision. Where, under all the circumstances, it is beyond dispute that, if a traveler had exercised ordinary care for his own safety, the accident would not have happened, and thus the presumption of due care on his part has been overcome, but one result is permissible. It is true that there may be conditions and circumstances under which a traveler may be excused for not looking or listening, but, where the facts and circumstances are such that all reasonable men must arrive at the same conclusion, then there is nothing to pass upon by the jury. If, however, reasonable men may arrive at different conclusions, or if the evidence is in conflict, or in case different inferences may be deduced from certain facts, then the question of the traveler's negligence is one of fact. In this case the undisputed facts admit of no reasonable doubt that the accident was caused by respondent's own negligence. We are of the opinion that the court erred in refusing to charge the jury to return a verdict in favor of appellant as requested by its counsel.

The judgment is reversed and the cause remanded to the district court, with directions to grant a new trial. Appellant to recover costs.

MCCARTY and STRAUP, JJ., concur.

BUNKER v. UNION PACIFIC RAILROAD

COMPANY.

No. 2130. Decided March 15, 1911 (114 Pac. 764).

1. MASTER AND SERVANT-INJURIES TO SERVANT-DEFECT IN LOCOMOTIVE EVIDENCE. In an action by a brakeman to recover for injuries alleged to have resulted from a defect in the brakes on the engine, by reason of which the engineer was unable to stop the engine so as to avoid injury to plaintiff, evidence held insufficient to show that the brakes were defective. (Page 583.)

2. APPEAL AND ERROR-HARMLESS ERROR-INSTRUCTIONS. In an action by a brakeman against a railroad company for injuries, an instruction presenting the last clear chance rule, though erroneous in predicating plaintiff's right of recovery on his showing that he was "himself in the exercise of due care," was not prejudicial, where the evidence clearly showed that plaintiff's injury resulted from the negligence of his fellow servants. (Page 586.)

SERVANT-INJURIES

ΤΟ

3. MASTER AND SERVANT-INSTRUCTIONSLAST CLEAR CHANCE. In an action by a brakeman for injuries alleged to have resulted from the inability of the engineer to stop the engine owing to defects in the brakes, an instruction that, if the braking apparatus was defective and that after plaintiff fell from the pilot, the engineer received a stop signal, and that thereupon the engineer endeavored to obey it, and that he was unable to stop the train in time to prevent injury to plaintiff's arm because the braking apparatus was defective, or out of repair, and if the braking apparatus had been in proper condition the engineer would have been able to stop, and would have stopped, in time to avert the injury, then the condition of the braking apparatus was the proximate cause of the injury, and, if the evidence shows that such condition of the braking apparatus was due to negligence of defendant, the plaintiff, "if shown to have been himself in the exercise of due care," is entitled to recover, was an instruction on the last clear chance doctrine, and was not rendered misleading by the use of the quoted words, since such words referred to plaintiff's conduct after he fell from the pilot, and not to his previous conduct in placing himself in a position of danger on the pilot. (Page 589.)

4. MASTER AND SERVANT-INJURY TO SERVANT-PROXIMATE CAUSE. In an action by a brakeman for injuries by being run over by an engine after falling from the pilot of the engine, evidence held not to warrant a finding that the defect in the braking appliances on the engine was the proximate cause of the injury. (Page 590.)

5. MASTER AND SERVANT-INJURIES TO SERVANT CONTRIBUTORY NEGLIGENCE. Where a brakeman violated a rule of the master in going upon the pilot of the engine with which he was working, he cannot recover for injuries resulting from his falling from the pilot and being run over by the engine, unless the injury could have been avoided after his peril was discovered. (Page 591.) 6. MASTER AND SERVANT-INJURIES TO SERVANT CONTRIBUTORY NEGLIGENCE. Where plaintiff, a brakeman, without any necessity therefor, rode on the pilot of the engine with which he was working, he was guilty of negligence and could not recover for injuries resulting from his falling from the pilot and being run over by the engine. (Page 592.)

7. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEG LIGENCE. Where a brakeman, without necessity therefor, rides on the pilot of the engine with which he is working, and such act is not only negligence, but is in violation of a rule of his employer, the employer owes him no higher duty than he owes to a trespasser. (Page 593.)

8. MASTER AND SERVANT-INJURIES TO SERVANT

APPLIANCES-DUTY

OF MASTER. The master's duty in respect to appliances for his servants is satisfied, where he provides appliances that are suitable and in such condition that his servants can, with reasonable safety to themselves, perform the duties required of them. (Page 593.)

9. MASTER AND SERVANT-DUTY TO SERVANT-INJURY TO SERVANT. The master must exercise due care to prevent injury to an offending servant after his perilous position is discovered, but he cannot be held negligent because he has not prepared to obviate every injury that may result from extraordinary emergency, brought about by the violation of the master's rules. (Page 594.)

STRAUP, J., concurring in result.

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

Action by Fred Bunker against the Union Pacific Railroad Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

Powers & Marioneaux for appellant.

P. L. Williams, Geo. H. Smith and Frank L. Nebeker for respondent.

FRICK, C. J.

Appellant brought this action to recover damages for personal injuries which he alleged were caused through the negligence of the respondent while apppellant was in its employ as a brakeman in the state of Wyoming.

The acts of negligence are given in the abstract in the following language: "That on the 31st day of August, 1908, the defendant had carelessly and negligently failed and omitted to provide a sufficient footboard on the engine and had carelessly and negligently suffered and permitted the air pump to be in such condition that it leaked and supplied an insufficient quantity of air for the operation of the air brakes, and carelessly and negligently failed to have the triple valve on the engine in good order, and permitted the triple valve to be out of repair, in consequence whereof the drive (wheel) brakes on the engine would not release, and carelessly and negligently failed to have, the brake rigging on the tender in proper condition; that the same was so loosely adjusted that the application of air did not result in sufficient friction, and carelessly and negligently failed to have the coach attached to said train connected with the air brake."

It is further alleged that on the day aforesaid, while appellant was engaged in the discharge of his duties as brakeman on a certain train and engine, by reason of respondent's failure to "equip the engine with a sufficient footboard, and while the train was running at three miles an hour, he fell from the engine to the ground and was pushed along by the engine; that a signal was given to the engineer to stop; that the engineer could have stopped within a distance of ten feet, but by reason of the carelessness and negligence of defendant as before alleged, the engineer was unable to stop the train, and plaintiff was pushed along upon the ground by the engine after the signal to stop, and after the engineer could and would have stopped, except for the carelessness and negligence of defendant aforesaid, until plaintiff was pushed to a point where his arm came in contact with the switch, and his arm was so mangled and torn by the wheels that it was necessary to amputate the same."

38 Utah-37