delivered the opinion of the Court:
It is first contended, that there was a total failure of evidence to show the observance of due care on the part of the deceased, and the trial court erred in submitting the case to the jury on the instructions. In an action to recover for a personal injury, it is a well settled principle that no recovery can be had unless the person injured used ordinary care to avoid the injury. But whether the person injured exercised ordinary care to avoid the injury, is a question of fact to be determined from the evidence. The same question arose in L. S. & M. S. Ry. Co. v. Johnson,
“The court can never be called upon to say to the jury that negligence has been established as a matter of law, unless the conduct of the injured party has been so clearly and palpably negligent, that all reasonable minds would so pronounce it without hesitation or dissent. Negligence can not be conclusively established by a state of facts upon which fair-minded men will differ. Unless the negligence of the plaintiff is proven by such conclusive evidence, that there can be no difference of opinion as to its existence upon the mere statement of facts, the jury must pass upon it. We have repeatedly held, that it is a question of fact to be determined by the jury from the evidence, and not a question of law, whether an injured party has exercised ordinary care for his safety and to avoid injury.” See, also : C. & E. I. R. R. Co. v. O’ Connor,
It may be conceded, that there is some evidence in the record which tends to prove that the deceased did not exercise that care and caution which a reasonably prudent person should have exercised to avoid the injury, but when all the facts and circumstances are considered and given due weight, we think there was enough evidence, tending to establish ordinary care, to submit the question of fact to the jury.
The court gave but one instruction for the plaintiff, and in regard to the degree of care required of the deceased, it contained the following:
“If the jury further believe from the evidence, that said Joseph Ouska, at the time of the injury, was exercising due and proper care, and was using duo and reasonable care and means to foresee and prevent said injury,” etc.
It is claimed by the defendant, that the words, at the time of the injury, restrict the exercise of due care on the part of the deceased to the moment of his injury. We do not concur in that view. The words, at the time of the injury, as used in the instruction, have reference to the whole transaction, and all that occurred from the time the deceased reached the tracks until he was killed. L. S. & M. S. Ry. Co. v. Johnsen,
T 7 , „ 1 Judgment affirmed.