Opinion of the Court. according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved and try it by that standard; and neither the judge who tries the case nor any other person can supply you with the criterion of judgment by any opinion he may have on that subject." But it seems to us that the instruction was correct, as an abstract principle of law, and was also applicable to the facts brought out at the trial of the case. There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms "ordinary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court. Railroad Co. v. Pollard, 22 Wall. 341; Delaware &c. Railroad v. Converse, 139 U. S. 469; Thompson v. Flint &c. Railway, 57 Michigan, 300; Lake Shore &c. Railway v. Miller, 25 Michigan, 274; Railway v. Van Steinberg, 17 Michigan, 99, 122; Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, 212; Marietta &c. Railroad Co. v. Picksley, 24 Ohio St. 654; Pennsylvania Railroad v. Ogier, 35 Penn. St. 60; Robinson v. Cone, 22 Vermont, 213; Jamison v. San Jose &c. Railroad, 55 California, 593; Red VOL. CXLIV-27 Opinion of the Court. field on Railways (5th ed.) § 133, 2; 16 Am. & Eng. Enc. Law, Tit. "Negligence," 402, and authorities cited in note 2. We do not think, therefore, that this instruction was erroneous in any particular. It is further urged that the court erred in giving to the jury the following instruction: "If you find from the evidence in this case that the railroad train which killed Elijah Smith was moving at a rate of speed forbidden by the city ordinances, the law authorizes you to infer negligence on the part of the railroad company as one of the facts established by the proof." It is said that no evidence was introduced with respect to an ordinance of the city regulating the speed of railway trains. Counsel, in this matter, labor under a misapprehension. The bill of exceptions states that "the ordinance of the city of Detroit prohibiting the running of railroad trains, within the limits of the city, at a greater rate of speed than six miles per hour," was admitted in evidence, over the defendant's objections. And as there was a great deal of evidence introduced on behalf of the plaintiff that the train which killed Mr. Smith was running at a much more rapid rate than the ordinance permitted, the instruction quoted was applicable, and, under the authorities, was as favorable to the defendant as it had the right to demand. Indeed, it has been held in many cases that the running of railroad trains within the limits of a city at a rate of speed greater than is allowed by an ordinance of such city is negligence, per se. Schlereth v. Missouri Pac. Railway, 96 Missouri, 509; Virginia &c. Railway v. White, 84 Virginia, 498. But, perhaps, the better and more generally accepted rule is that such an act on the part of the railroad company is always to be considered by the jury as at least a circumstance from which negligence may be inferred in determining whether the company was or was not guilty of negligence. Union Pac. Railway v. Rassmussen, 25 Nebraska, 810; Blanchard v. Lake Shore &c. Railway, 126 Illinois, 416; Meloy v. Chicago &c. Railway, 77 Iowa, 743; Savannah &c. Railway v. Flannagan, 82 Georgia, 579; Peyton v. Texas & Opinion of the Court. Pac. Railway, 41 La. Ann. 861. At any rate, the charge of the court, in this particular, was not unfavorable to the defendant, under the law. Haas v. Chicago &c. Railroad, 41 Wisconsin, 44; Vicksburg &c. Railroad v. McGowan, 62 Mississippi, 682; Philadelphia &c. Railroad v. Stebbing, 62 Maryland, 504; McGrath v. New York &c. Railroad, 63 N. Y. 522; Houston &c. Railroad v. Terry, 42 Texas, 451; Bowman v. Chicago &c. Railroad, 85 Missouri, 533; Crowley v. Burlington &c. Railroad, 65 Iowa, 658; Keim v. Union R. & T. Co., 90 Missouri, 314; Ellis v. Lake Shore &c. Railroad, 138 Penn. St. 506; 4 Am. & Eng. Enc. Law, Tit. "Crossings," 934, and authorities cited in notes 8 and 10. One of the chief assignments of error, and, perhaps, the one most strongly relied on to obtain a reversal of the judgment below, is, that the court erred in giving the following instruction: "So if you find that because of the special circumstances existing in this case, such as that this was a crossing in the city much used and necessarily frequently presenting a point of danger, where several tracks run side by side, and there is consequent noise and confusion and increased danger; that owing to the near situation of houses, barns, fences, trees, bushes or other natural obstructions which afforded less than ordinary opportunity for observation of an approaching train, and other like circumstances of a special nature, it was reasonable that the railroad company should provide special safeguards to persons using the crossing in a prudent and cautious manner, the law authorizes you to infer negligence on its part for any failure to adopt such safeguards as would have given warning, although you have a statute in Michigan which undertakes by its provisions to secure such safeguards in the way the statute points out. The duty may exist outside the statute to provide flagmen or gates or other adequate warnings or appliances, if the situation of the crossing reasonably requires that—and of this you are to judge—and it depends upon the general rule that the company must use its privilege of crossing the streets on its surface grade with due and reasonable care for the rights of other persons using the highway with proper care and caution on their part. Opinion of the Court. "So if you find that the train hands kept no proper lookout and managed the train without due caution and reasonable care, you will be authorized to infer negligence on the part of the company as one of the facts established in the case." That this instruction is in harmony with the general rule of law obtaining in most of the States, and at common law, we think there can be no doubt. The general rule is well stated in Central Passenger Ry. Co. v. Kuhn, 86 Kentucky, 578, 589, as follows: "The doctrine with reference to injuries to those crossing the track of a railway, where the right to cross exists, is that the company must use such reasonable care and precaution as ordinary prudence would indicate. This vigilance and care must be greater at crossings in a populous town or city than at ordinary crossings in the country; so what is reasonable care and prudence must depend on the facts of each case. In a crossing within a city, or where the travel is great, reasonable care would require a flagman constantly at the crossing, or gates or bars, so as to prevent injury; but such care would not be required at a crossing in the coun try, where but few persons passed each day. The usual signal, such as ringing the bell and blowing the whistle, would be sufficient;" citing Thompson on Negligence, 417; Louisville &c. Railroad v. Goetz, 79 Kentucky, 442. And it was accordingly held in that case that a railroad company which had failed to provide a flagman or gates, during the night time. when many trains were passing, at a crossing in a thickly populated portion of the city of Louisville, buildings being situated near the track at that point, was guilty of "negligence of the most flagrant character." See also, to the same effect, St. Louis &c. Railroad v. Dunn, 78 Illinois, 197; Bentley v. Georgia Pac. Railway, 86 Alabama, 484; Western Atlantic Railroad v. Young, 81 Georgia, 397; Troy v. Cape Fear &c. Railroad, 99 N. C. 298; Bolinger v. St. Paul &c. Railroad, 36 Minnesota, 418. It is also held, in many of the States, (in fact, the rule is well nigh, if not quite, universal,) that a railroad company, under certain circumstances, will not be held free from negligence, even though it may have complied literally with the Opinion of the Court. terms of a statute prescribing certain signals to be given, and other precautions to be taken by it, for the safety of the travelling public at crossings. Thus in Chicago &c. Railroad v. Perkins, 125 Illinois, 127, it was held that the fact that a statute provides certain precautions will not relieve a railway company from adopting such other measures as public safety and common prudence dictate. And in Thompson v. New York &c. Railroad, 110 N. Y. 636, it was held that the giving of signals required by law upon a railway train approaching a street crossing does not, under all circumstances, render the railway company free from negligence, especially where the evidence tends to show that the train was being run at an undue and highly dangerous rate of speed through a city or village. See also Louisville &c. Railway v. Commonwealth, 13 Bush, 388; Weber v. N. Y. Central Railroad, 58 N. Y. 451. The reason for such rulings is found in the principle of the common law that every one must so conduct himself and use his own property as that, under ordinary circumstances, he will not injure another, in any way. As a general rule, it may be said that whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous, is a question of fact for a jury to determine, under all the circumstances of the case, and that the omission to station a flagman at a dangerous crossing may be taken into account as evidence of negligence; although in some cases it has been held that it is a question of law for the court. It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous: as, for instance, that it is in a thickly populated portion of a town or city; or, that the view of the track is obstructed either by the company itself or by other objects proper in themselves; or, that the crossing is a much travelled one and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle and confusion incident to railway or other business; or, |