APPEAL from District Court, Second District. Hon. J. A. Howell, Judge.

Action by Robert R. Wilkinson against the Oregon Short Line Railroad Company. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

H. H. Henderson for appellant.

P. L. Williams, George H. Smith, John G. Willis, and E. M. Bagley for respondent.

FRICK, J.

This is an action for personal injuries and damages to property appellant claims to have sustained through the negligence of respondent's employees. The alleged acts of negligence consisted in failing to give the statutory signals, and in operating a locomotive engine at excessive speed in approaching a public street crossing in the city of Ogden, Utah. The respondent denied the allegations of negligence, and pleaded contributory negligence.

The controlling facts, which are undisputed or conceded, are substantially as follows: On the 26th day of April, 1906, at about 5:30 o'clock p. m., the appellant was traveling, with his horse hitched to a covered milk wagon, south on a street known as Wall avenue, in Ogden City. The respondent's main line of railroad is located upon this avenue running north and south, and is in about the center thereof. That Twenty-first street crosses this avenue at right angles, running east and west. That appellant for some distance was driving parallel with the railroad track on Wall avenue, intending to cross said track on Twenty-first street. That in driving along Wall avenue he saw an engine standing still headed to the north on a switch or side track about four hundred yards north of the crossing. That appellant

looked back and saw this engine as above stated, when he was between seventy and seventy-five yards north of the crossing on Twenty-first street, at which point, he says, "I looked back [north], and saw the engine standing back on the brewery switch."

His counsel then propounded certain questions which appellant answered on direct examination, as follows: "Q. What did you do when you got to Twenty-first street? A. I started to cross the track. Q. Which way were you looking? A. I was looking towards the south, expecting the Cache Valley train to come along, knowing that she was due there. Q. At that time? A. Yes, sir. Q. What happened to you just as you got on the tracks of the Oregon Short Line Railroad? A. I heard a noise, and I looked up, and the engine was right onto me. I just had time to twist my horse around toward the south, expecting them to stop, but they never stopped." On cross-examination, the following questions were put to appellant, and he answered thereto as follows: "Q. After you looked at the engine, when you were seventy-five yards from it, when was the last time that you saw it? Did you see it after that time? A. Not until it hit me. Q. was? A. No. Q. Did you stop your horse before you started to go across the railroad track? A. No, sir." Appellant further testified that his horse was trotting as he approached and passed onto the crossing; that he was sitting inside of a covered milk wagon which had doors or windows at the sides, and in looking back at the engine he looked through one of these doors or windows; that he had three large and two small milk cans in the wagon which made some noise as he was driving along; that he was well acquainted with the crossing and its vicinity, and had passed over it daily on his milk route and sometimes several times a day; that he worked in the railroad yards some distance from the crossing in question as a stationary engineer, and that he had had some experience as a locomotive engineer;

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You didn't look again to see where it

that it was broad daylight when the accident occurred, and that there were no obstructions between him and the engine or along or near the track he was about to cross; that the Rio Grande Western Railroad track crossed the track of respondent at a point north of the crossing on Twenty-first street, and between said crossing and where the engine was standing on the brewery switch; that appellant assumed that in going south the engine which struck him would stop at this crossing, and give the statutory signals before crossing. it; that it did not stop nor give any signals; that in approaching the crossing he saw the smoke of the Cache Valley train in the distance and south of the crossing, which had to pass over the crossing in question, and appellant wanted to get across before it reached there, and he assumed that the engine which struck him would wait on the switch north of the crossing until the Cache Valley train had passed over the crossing; that in view of this he gave little, if any, attention to the engine north of him, but looked south for the Cache Valley train, the smoke of which he could. see in the distance and from which he knew it was approaching, but the train itself, appellant says, "wasn't in sight." Appellant and other witnesses testified that the engine in passing south from where it stood on the switch neither sounded the whistle' nor rang the bell, and that it was running at a rate of speed variously estimated at from twelve to twenty miles an hour, when it struck appellant's horse and wagon. Appellant further stated that the track he was about to cross was the main track of respondent's railroad, and that he assumed that the engine he saw standing at the switch to the north would not pass onto the main track in the face of the Cache Valley train which was about due from the south.

Upon substantially the foregoing evidence, the appellant rested his case and the respondent also rested, and moved the court for a directed verdict for respondent. The court granted the motion, and directed the jury to return a verdict in favor of respondent. Appellant excepted to this instruc

tion, and now insists that the court erred in directing a verdiet and in not submitting the case to the jury on the evidence submitted by him.

Appellant's counsel strenuously insists that, in view of all the circumstances disclosed by the evidence, the question of contributory negligence on the part of his client was a question of fact for the jury to pass on. At the hearing

the writer at least was much inclined to this view in view of all the circumstances detailed by the appellant; but, after a thorough examination of the authorities, the conclusion has been forced upon him that the facts and circumstances disclosed by this record do not establish an exception to the general rule of law applicable to collisions at street crossings between a traveler and an engine or train of cars. In such cases the courts have formulated a rule of conduct which must be heeded by the traveler, and, if the evidence without conflict or dispute shows that he did not exercise ordinary care in observing the legal duty imposed on him in attempting to cross when he was not confused or his attention diverted by other threatened dangers, he cannot recover, although the railroad company also was guilty of negligence in not giving proper signals or in running its train at an excessive rate of speed. In all cases grounded upon negligence, the law imposes the duty of ordinary care which must be exercised by both the one causing the injury and the one sustaining it, and whether such care has been exercised or not by either one or both, in view of all the circumstances, is ordinarily a question of fact for the jury. The standard of care the law imposes in such cases is, generally speaking, that degree of care which men of ordinary intelligence and prudence would exercise under similar conditions and circumstances. It requires no argument to demonstrate that whether this standard has or has not been met cannot, except in very clear cases, be determined as a question of law, but must necessarily be determined as a question of fact in view of all the surrounding conditions and circumstances. There are, how

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ever, instances involving negligence that are exceptions to this general rule. An exception to it arises in matters where the law prescribes the duty and also defines what constitutes ordinary care in discharging that duty by the one upon whom it is imposed. In this regard the law imposes certain duties upon the railroad company in the operation of its trains in approaching public streets or road crossings, and likewise imposes certain duties upon the traveler who, in passing along a public street or road, desires to cross a railroad track at such a crossing. In discharging these duties neither party may ordinarily rely upon the other, but each is required to comply with what the law imposes; and in case it is a conceded or undisputed fact that the complaining party has not complied with the law in this regard the question, except under peculiar circumstances, becomes one of law regardless of the negligence of the other party.

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The law, as it has been generally adopted and applied by the courts of this country, is quoted by Mr. Justice Coffey in Mann v. Belt Ry. & Stockyard Co., 128 Ind. 142, 26 N. E. 820, as follows:

"When one approaches a point upon a highway where a railroad track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in vehicle of any description, he must exercise in so doing what the law regards as ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption. The requirements of the law, moreover, proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term 'ordinary care under the circumstances' shall mean in these cases. In the progress of the law in this behalf the question of care at railway crossings, as affecting the traveler, is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as matter of law. In attempting to cross the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track. . . . If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed, in case he is injured by collision, either that he did not look, or, if he did look, that he did not heed what he saw. Such conduct is held negligence per se."

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