McClain, J.
Just before the accident resulting in injury to plaintiff, he had, been, engaged, as an employe of defendant company, in clearing the snow from the frogs and switch points in defendant’s yard .at Marshalltown. Having completed'his work at a. certain frog,on\the main line of *240track running east and' west, he proceeded westward along the track to go to a toolhouse situated beside the track and about one hundred and eighty-two feet distant, and when within about twenty-five feet of the toolhouse, and while walking on the ends of the ties along the track, he was. struck by the tender of an engine coming from the east, and severely injured.
j. lNJDRY to contributory negligence. I. The ground for reversal especially relied on,is that the evidence shows without conflict that plaintiff was guilty of contributory negligence in failing to exercise any reasonable care to avoid the danger incident to being !.s0 near the track that he was liable to be struck jjy an engine moving on the track. The testimony of the plaintiff, as a witness, tended to show that after completing his work at the frog he looked eastward along the main track, and, as he saw.-no engine approaching, proceeded westward, without any further precaution for his safety, until he was overtaken and struck' by an engine coming from the east. It was unquestionably plaintiff’s duty to use reasonable care.in looking out for his own safety, and if he failed to do so, .and such failure contributed to his injury, .he cannot recover. The fact that he was an employe did not relieve him from the duty, to exercise care. The case was not one, where plaintiff was .privileged from exercising the care for his own safety which is ordinarily required, on account of his necessary employment. He was not at the time engaged in.any occupation calculated to distract his attention, and should have had in mind the fact that engines and cars might be moved along the track at any time. ,. But it appears from his .testimony that, when he looked eastward at the frog along the track, it was unobstructed: to such distance that he could have Seen an approaching engine, if near enough to'- him to overtake him, approaching at the rate of six mile's an hour, thé maximum speed allowed by the ordinances 'of the City of Marshalltown; before he--should'reach the toolhouse, and, if he did look, *241and there was no engine or train in sight coming from that direction, and near enough, approaching at that rate of speed, to overtake him before reaching the toolhouse, he was not guilty of contributory negligence in not looking again before reaching the toolhouse, or in, not keeping far enough away from the track so as not to' be struck by the engine. It is certainly not necessary, as a matter of law, for one who is an employe, walking along or near a railroad track in the discharge of his duty, to be looking backward at every instant of time, nor is it necessary for him to select a place to walk which is beyond the reach of passing cars or engines, if, in the exercise of reasonable care, he has ascertained that he is not in danger from any car or engine approaching at a lawful rate of speed. The argument for appellant is predicated on the assumption either that if plaintiff while at the frog had looked eastward he must have seen the' engine ■ approaching, or that his view of the' main track toward the east, where there was a curve, was in some- way obstructed by a pile of ties near the track, or freight ears on an adjoining track, or a water tank which was also near the track, so he could not see an engine approaching, and should therefore have stepped aside from the track to get a better view before proceeding to , the tool-house. •
But' if there is any theory of the evidence on which the jury could find, as they did in answer to a special interrogatory, that plaintiff was not guilty of contributory negligence,' then "the verdict is supported by the' evidence and • must stand. We think the jury might have found, and it appears that on this theory they based their-verdict, that, at the time plaintiff looked eastward from die frog, the engine was concealed from his view by'the water tank, or pile of ties beside the track, or freight ears on an adjoining track and on the' inside of the curve, and that it was-therefore more than 300 feet from the frog when plaintiff started from that point to walk to the toolhouse. If he walked at the rate of three *242miles an hour, he would have reached the toolhouse before the engine, coming at a rate of speed not exceeding six'milés an hour, could have overtaken him. The only theory .consistent with plaintiff’s evidence would be that the engine was running at a greater rate • of speed than six miles per hour. As to its rate of speed,'there was therefore a conflict in the.evidence-between the testimony of plaintiff that in less than • a half minute after he started west from the frog, going at an ordináry rate -of speed,' he was struck by the engine, and the testimony of defendant’s witnesses that the engine was not running faster than six miles per hour. It was for the jury to weigh this evidence, and they were justified in reaching the conclusion that the speed was greater than six miles per hour, and that the fact that the engine was thus running at an unlawful rate of speed was the cause of the injury to plaintiff, and, furthermore, that this was without any failure of plaintiff to use ordinary care in anticipating the danger from the approach of an engine.
2. Speed op trains: ordinance; benefits. The principles of law involved in the conclusion which we'reach, that there was some evidence to support--the finding that plaintiff was free from contributory negligence, are so-well settled that it would be useless to cite authorities or discuss the cases referred- to , in arguments of counsel. We have conceded to appellant every proposition of law for which counsel contend, save one, which -is that the ordinances, of the. city, of Marshalltown were not admissible in evidence for the purpose of determining whether defendant was negligent' in operating its engine at a, greater rate of speed than -six miles per hour, and whether plaintiff was justified in assuming that no engine or ears would come along the track from the east at a 'higher rate of speed. Since this case was tried in the lower court, we' havé held in the case' of Martin v. Chicago, R. I. & P. R. Co., 118 Iowa, 148" court="Iowa" date_filed="1902-10-25" href="https://app.midpage.ai/document/martin-v-chicago-rock-island--pacific-railway-co-7110156?utm_source=webapp" opinion_id="7110156">118 Iowa, 148, that such an ordinance has for its object not only the protection of those having occasion to go on or across the tracks, but also employes *243of the railroad, and that an employe does not assume the risk of the failure-of the company to-observe the requirements of a city ordinance in regard to the rate of speed at which it operates its trains within city limits. In that case it appeared that the employe, by continuing in his employment, assumed the risk of an habitual violation of the ordinances of the city as to the rate of speed,' such habitual violation being necessarily known to him in consequence' of his continued employment on trains running at a rate of speed in violation of the ordinances'; but there is no evidence in this case that there was any such custom on the part of the defendant company, or that plaintiff had knowledge of such custom if it existed.
We do not wish to be understood as holding that an employe can omit reasonable precaution for his safety where he is not in a dangerous situation, and if it appeared that plaintiff, with knowledge that the engine was approaching, even if at a negligent rate of speed, had failed to get out of the way, we think he" would have been guilty of contributory negligence; but it is not conclusively shown -that' he had such knowledge. • While he was bound to know that engines or cars might come along the track at any time, he wás not bound to know nor to anticipate that they would come at an unlawful rate of speed, and, if he took such precaution as would -be' suggested to a reasonable man against being injured by engines or cars lawfully operated., we think he was not guilty of contributory negligence. The evidence is in conflict as to whether the bell on the engine was rung as the engine approached the street crossing just west of the point where plaintiff was struck; nor can wé say, as a matter of law, that plaintiff must .-have become aware, had he been in the exercise of ordinary care and watchfulness, of the approach of the engine by reason of the noise which it would make in moving. There was a fresh snow on the tracks,.'and the noise made by the moving engine may have been less than usual on that •account. ' If plaintiff heard the bell or *244the noise of the engine, the question would no longer be whether it was moving at a lawful rate of speed, but whether, being advised of its proximity, plaintiff used reasonable care to avoid being struck. We reach the conclusion that there was enough evidence to go to the jury on the question of contributory negligence.
3. Evidence: prejudicial, II. Error is assigned with reference to the admission, over objection, of the testimony of a witness as to how the engine might have been switched so as to accomplish the púrpose in view in backing it along the track where plaintiff was injured, without operating it on that track at all. It is clear that, if the engine was being properly operated at the time of the accident, it would- be wholly immaterial that it might have been run on some other track to accomplish the same purpose. We do not understand how this evidence could be material, but possibly it had some bearing on the issue as to whether defendant was negligent in not employing a sufficient number of 'men to properly operate its engine and tender, the claim being that a switch-man should have been provided -so that, the engineer or fireman need not have left the engine in order to throw a switch; but we do not care to go into this branch of the case, for we cannot believe that the evidence, even -if immaterial, waS'in any way prejudicial to the defendant. -
4.' Instructions: ' issue: III. An instruction given by the court is criticised on the ground that defendant’s duty to'use care in the employment of servants to operate its engine was referred to, although there was no evidence ■ that the engineer or fireman was incompetent.' We' think the objedtion is well taken; and that the matter should not have' been referred to, but we feel justified, under the record, in disposing of the question by quoting the following language found in Trapnell v. Red Oak Junction, 76 Iowa, 744" court="Iowa" date_filed="1888-10-19" href="https://app.midpage.ai/document/trapnell-v-city-of-red-oak-junction-7103874?utm_source=webapp" opinion_id="7103874">76 Iowa, 744, 747, "If this instruction was the only error shown by the record, we might not he disposed to disturb -the judgment'; for while the instruction submits a question to the jury upon *245which there is no evidence, and is therefore erroneous, it might bo well said that the instruction is so carefully guarded by the language of the court that no prejudice could have resulted from it.”
5. instructions: contributory negligence; reasonable care. IV. In one instruction the following language is used: “ If you find that the' defendant was negligent as alleged, and that the plaintiff was injured as the direct result of such negligence, and was in no manner or to any ma- ± • i j t ± 7 • 7/» tenal degree negligent himself, or m no manner , _ . . . or to any extent contributed to nis own injury, then he is entitled to recover all damages naturally and directly' resulting to him from such injury.” Another paragraph of the charge is in this language.: “ If, then, you find that the plaintiff has established by a preponderance of the evidence , the allegations of his petition, or some one or more of his material allegations, charging negligence on the part of the defendant, and you further find that the plaintiff was in no manner and to no material degree negligent that contributed to his alleged injury and damage, and .you further find that the plaintiff was injured and damaged as the direct result of defendant’s alleged negligence, then your verdict should be for the plaintiff.” In the recent case of Root v. Des Moines Railway Co., 122 Iowa, 469" court="Iowa" date_filed="1904-01-28" href="https://app.midpage.ai/document/root-v-des-moines-railway-co-7110741?utm_source=webapp" opinion_id="7110741">122 Iowa, 469, we held that an instruction was erroneous in which the jury was told that plaintiff in actions for personal injury must show that he did not by his own acts or conduct contribute in any material degree to his injury. It is pointed out in that-case that if the negligence of plaintiff contributed in any degree or to any extent to bring about-his injury he must fail. But, in the instructions just quoted, the term “ material degree ” does not relate to the extent of plaintiff’s contribution to his injury, but to the extent of his negligence.- In Jerolman v. Chicago G. W. R. Co., 108 Iowa, 177" court="Iowa" date_filed="1899-04-08" href="https://app.midpage.ai/document/jerolman-v-chicago-great-western-railway-co-7108631?utm_source=webapp" opinion_id="7108631">108 Iowa, 177, an instruction was, held erroneous in which plaintiff, suing for personal injury, jwas required to establish by preponderance of evidence that she was “ free from all fault, .or negligence that contributed *246to produce the fall” which resulted- iu her injury, or, as stated-in'-another' instruction, “ that such fall was not in any manner due to any' fault or negligence on the part 'of the plaintiff herself,” or, again, “ that she was free from all fault of negligence, which contributed directly to produce the fall in question.” And the following'language is used in the Opinion: “ The vice of the instruction-emphasized in-the passage quoted-from others is that all.negligence is excluded^ and the plaintiff held to the exercise of extraordinary care for her safety.' Had ‘fault’ or' ‘negligence,’ as used, been defined, this would have been obviated. -Without such limitation, the jury was- warranted ih understanding that any negligence whatever on the ■ plaintiff’s part, however slight, required a verdict for the defendant.” Many cases aré cited supporting'the- conclusion reached-by- the court.-' '
■In the'instructions which' we are now considering, the phrase objected to is used in directing .the-jufy in determining whether plaintiff was negligent, and they were-properly instructed-that if negligence oh. the part of the .plaintiff contributed to the' injury there could be no'recovery. .As pointed out in the- Jerolman Case, supra, if the 'degree ■ of negligence- on the part of plaintiff was that sometimes denominated slight,” 'the plaintiff would not-thereby be bárréd from recovering, for he'wás only bound to use; ordinary:, care, or such care as a reasonably prudent person would use-under such , circumstances to' avoid danger. -. As ‘ the 'i instruction l’eads, he was barred from recovery if-he was, to paraphrase the language, materially negligent. -We do:not' say- that in this respect the ■ instruction was correct,: and the language used is cértainly not to be commended, but if is not open to the objection that plaintiff wás thereby permitted to recover if his.uégligence did"not"contribute- to-a material degree to his injury: --It may be that 'the .instruction- required a higher degree of care on the part of plaintiff than, should bd required,’but it certainly- do'es; not ¡require a.'léss degree-of Care >-than-' should-*- be... required, and ■ the' defendant has -nb *247ground of complaint. In short, we hold that the phrase “ material degree ” relates to the amount of care required, and'not to the extent of contribution to the injury by reason of failure to exercise such care. In other instructions contributory negligence is correctly defined, and we reach the conclusion that there was no prejudice to defendant in the instructions quoted.
e. Secokd trial: proceedings; • oFSsts. ■ ' Y. ■ It was made to appear to the court that there had been a previous trial in the same court of an action in which plaintiff sought to recover from defendant on account of the same injury, and that at the conclusion of the evidence in such former action the plaintiff, to avoid the direction of a verdict against him, dismissed his action j and on these facts counsel for defendant in.- this case predicated a motion, made before the trial ■fras- commenced, that the trial be postponed until judgment rendered against plaintiff for costs in the former action .had been paid. -This motion was overruled, and errors are assigned on such ruling. While we find many cases in other jurisdictions supporting a rule to the effect that plaintiff in a second action, for the same cause of action, should not he allowed to proceed until the .costs of the.former, action in which he was nonsuited-or .which was voluntarily-dismissed had been paid by him, we do not find that any such rule has been.adopted in this State... The question seems not.-to have been- considered in this court.- It is enough for the present to say that, even where'such a rule is recognized, the plaintiff is allowed to make a. showing of excuse for prosecuting a second action notwithstanding his dismissal of the former one. The object of the rule is to discourage vexatious litiga-f tion,- and where a -reasonable excuse is shown the court may, in the exercise of a reasonable discretion, x’efuse to inflict the penalty. Union Pacific v. Mertes, 35 Neb. 204 (52 N. W. Rep. 1099).
... In this qase. the .plaintiff,, in. resistance tp the motion to postpone, showed not only that he was without means,'.and *248so crippled by the injury complained of as to be unable to earn a living, but also, by affidavits of counsel, that the first case was dismissed for want of material evidence which could not be procured after its materiality became apparent on the trial. Of course, if the counsel had known the names of the witnesses by which the material facts could be proven, and had shown that such witnesses, while not then available, could probably be secured for another trial, they might have protected the rights of their client by asking for a continuance; but it appears they were unable at the time-to ascertain whether such evidence could be procured, and we think they cannot be charged with promoting vexatious litigation in preserving the opportunity to bring a second action after such evidence should be discovered. On the whole, we are satisfied that the court acted within the scope of its reasonable discretion in refusing to postpone the trial until plaintiff should pay- the costs of the first proceeding.
The judgment of the lower court is affirmed.