113 P. 41
Or.
1911
Mr. Justice Bean

delivered the opinion of the court.

1. It is contended on behalf of plaintiff that the testimony tends to show that his injury was caused by the negligence of defendant and without fault on his part; that the evidence is conflicting in regard to the speed of the engine and the signals; that it is conclusively shown that the engineer was careless and reckless in running the engine against him, when for some distance he had seen him, and by the exercise of ordinary care could have stopped the engine and avoided the collision, and that the trial court erred in directing the jury to find a verdict for defendant.

Counsel for defendant contends that it was not guilty of negligence, and that it was the duty of plaintiff to look for the engine; that during the considerable period of time the engine was approaching from the depot he did not look up, and that he was guilty of contributory negligence; that the engineer did all in his power to avoid the injury. As we understand it, the trial court held that the plaintiff was guilty of contributory negligence for the reason that he failed to look. Plaintiff testified that he looked for the engine just as he went to work at the angle plate, and that he was stooping over at work only about five minutes before he was struck. It has been held that the court could not say as a matter of law how often one in a similar position to that of plaintiff should look, and that is a lar position to that of plaintiff should look, and that this is a question for the jury: Shoner v. Pennsylvania Co., 130 Ind. 175 (29 N. E. 775); Austin v. Fitchburg R. R., 172 Mass. 484 (52 N. E. 527); Shulz v. Chicago, M. & St. P., *3157 Minn. 271 (59 N. W. 192); St. Louis, I. M. & S. R. Co. v. Jackson, 78 Ark. 100 (93 S. W. 746: 6 L. R. A. (N. S.) 646.)

“An employe is bound to use ordinary care to avoid the dangers that arise, whether usually incident to the service or not. He is under the same obligation to provide for his own safety from dangers of which he has notice or which he might discover, by the use of ordinary care, that the employer is to provide it for him.” 1 White, Personal Injuries on R. R. § 399.

In Kunz v. Oregon R. & N. Co., 51 Or. 191, 205 (93 Pac. 141, 146), it was said by Mr. Chief Justice Moore:

“If the facts thus supposed were true, and the engineer, seeing the team standing on the track, under the circumstances mentioned, immediately used all available appliances to stop the train, the question as to the measure of such care would nevertheless be for the jury to determine.”

And in Palmer v. Portland R. L. & P. Co., 56 Or. 262 (108 Pac. 211, 213), it was held, Mr. Justice King speaking for the court:

“To test the sufficiency of the proof under a motion for nonsuit, the testimony must be viewed in the light most favorable to plaintiff. * * It also appears that had the car been under proper control, and not going at an unreasonable speed, it could have been stopped in time to prevent a collision; thus supplementing the plaintiff’s proof, tending to establish as a question for the consideration of the jury that defendant’s negligence was the primary cause of the accident [citations]. The burden of proving contributory negligence is on the defendant [citation]. And, as held in Eliff v. O. R. & N. Co., 53 Or. 66 (99 Pac. 76), where the proximate cause of the injury is problematical, as certainly appears here, the case should be submitted to the jury.”

Further, quoting from Mr. Justice Lamar in Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 (12 Sup Ct. 679: 36 L. Ed. 485):

*32“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. 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.”

In the case of Murran v. Chicago, M. & St. P. R. Co., 86 Minn. 470 (90 N. W. 1056), where a section man was at work in defendant’s yard, cleaning out snow and ice, the foreman and other men being not far distant, snow falling and wind blowing, and where, for convenience in getting the snow and ice out from under a cross-bar which connected the two rails, he had turned his back to the east, and was struck by a single car, which had been thrown over the switch he was cleaning out, and the switchman in charge could easily have stopped the car before it reached plaintiff, but made no effort to do so, the court observed that plaintiff was at work in an exceedingly perilous place under peculiar and exceptional circumstances. The fact that snow was falling and blowing, and that he was stooped, engaged in work, with his back toward the approaching car, was all seen and understood by the man in charge of the switching, and a jury could well say that it should have been apparent to the switchman that plain*33tiff might not discover his peril in time to escape, and as a consequence that he was negligent in not taking active steps to prevent the injury, and that the question of defendant’s negligence was for the jury.

2. If we take the evidence of Heidenrich in regard to the signals and the speed of the engine as correct, if the evidence is conflicting upon the material points, and reasonable men might draw different conclusions from the evidence, taking into consideration all the circumstances of the transaction as disclosed thereby, then they become •questions for the jury under proper instructions. Kunz v. Oregon R. & N. Co., 51 Or. 191, 205 (93 Pac 141, 146) ; Palmer v. Portland R. L. & P. Co., 56 Or. 262 (108 Pac. 213.) Plaintiff states that he was engaged in his work at the time he was struck, and did not see the engine, nor hear the bell or whistle. The estimate of the speed of the engine at the time, as made by the witness Heidenrich, differs from the testimony of defendant’s witnesses. From the circumstances as detailed by the witnesses, as to the manner in which the other men in the crew, at work near the plaintiff, got off the track, and the statement of the engineer that he did not hear the engine strike the angle bar or the wrench, “because he was too busy getting the engine stopped,” which was at the very instant that plaintiff was struck, it might be inferred that the engineer did not apply the emergency brake or try to stop the engine until it was close to or practically upon the plaintiff, and that its speed was greater than estimated by some of defendant’s witnesses. Heidenrich’s testimony that he was near at the time, and did not hear the whistle or bell, coincides with that of plaintiff. This tends in a measure to show that the whistle was not sounded nor the bell rung. 1 Wigmore, Evidence, § 664. From the statement of Mr. H. Faulkner, a section foreman of experience, to the effect that he would not say that the engineer slackened *34the speed of the engine after the whistle was sounded, and from the estimated distance of 35 or 40 feet that the engine passed plaintiff, it may appear that, if the estimated distance of 60 feet required to stop the engine is assumed to be correct, the engineer did not attempt to stop the locomotive until within 20 or 25 feet of plaintiff.

3. A railroad company has been held liable where a watchman at a crossing was seen by the engineer of a moving train with a lantern in his hand, if the engineer was carelessly inadvertent, as' to whether or not he would get out of the way. Betchman v. Seaboard Air Line, 75 S. C. 68 (55 S. E. 140.) It was the duty of the engineer to closely observe the men on the track, and the moment he had reason to believe plaintiff was not going to get out of the way in time to avoid danger to promptly use the appliances at his command to check or stop the engine, so as to avoid injury to plaintiff. Nelling v. Chicago, St. P. & K. C. R. Co., 98 Iowa 554, 561 (63 N. W. 568: 67 N. W. 404.) It would be useless for an engineer to simply observe, if when he plainly sees a track repairer in a place of danger, and as a prudent man has good reason to believe that he is not going to move from the track, he fails to take the proper measures at his command to stop the engine. We think the question of whether the engineer had good reason to believe for a considerable time before he endeavored to stop the engine and avoid the collision that the plaintiff was not going to get out of the way, and was reckless was, under all the evidence and circumstances, one for the jury. It appears that the engine was being used for switching purposes about the yards, where it was known to the engineer that several men were working; that the necessity for running at a high rate of speed was less than that of a regular train, and the management thereof different from that of an engine and train on its regular run, and the danger of running at a high rate of speed in such a yard, where several men *35were engaged at work, greater. Therefore, when the engineer saw the plaintiff in a perilous position, and unmindful of the approach of the engine, it was his duty to take active measures, with the means at his command, to avoid the injury. Sullivan v. Missouri Pac. R., 97 Mo. 113 (10 S. W. 852.) Taking all the evidence, we think it was a question for the jury to determine whether the engineer used ordinary care to avoid the collision, or carelessly and recklessly ran the engine against plaintiff, when he saw for some distance that plaintiff was in danger, and oblivious to the approach of the engine, and whether common prudence demanded of him as a reasonable man, that he should slacken his speed so as to have the engine under control and be able to stop it before striking plaintiff, in case he did not see it or move off the track: Doyle v. Southern Pac. Co., 56 Or. 495 (108 Pac. 201); Palmer v. Portland R. L. & P. Co., 56 Or. 262 (108 Pac. 211).

4. Defendant asserts that plaintiff was guilty of contributory negligence.

“Where the servant is engaged in performing service for the master, under circumstances which justify him in assuming that ordinary care will be observed to warn him of approaching danger, he is required to exercise only such care and vigilance in discovering peril and avoiding injury as is consistent with the performance of the work in which he is engaged. Any other rule would place the servant, while performing work for the master, in the same category as a trespasser upon the premises of the master.” St. Louis, I. M. & S. R. R. Co. v. Jackson, 78 Ark. 100, 108 (93 S. W. 746, 748: 6 L. R. A. (N. S.) 646, 656.)

5. In Kelly v. Union R. & T. Co., 11 Mo. App. 1, the court declares it to be “the settled law of the state, applicable to actions for injuries received by persons while upon railway tracks from passing trains, that, if it appears from the testimony produced by'the plaintiff that the person injured, being sui juris, failed to make use of *36his faculties of sight and hearing, when to do so would have enabled him to avoid the accident, there can be no recovery; and that the principle involved in this rule is equally applicable to the case of a traveler crossing a railway track, or a trespasser, or a bare licensee or person lawfully employed on the track; that a fair statement of the rule is that, when it appears that the person injured did not use his faculties, it is incumbent on him to show a reasonable excuse for failing to do so.” Where plaintiff negligently assumed a position of danger in such a degree, and so contributed to his hurt as to leave him without right of recovery for any primary negligence of the other party, he may nevertheless recover, if the person charged with the wrong or injury became aware of his peril in time to- avoid, by the proper use of all the means at his command, injuring him, and listlessly, inadvertently, or negligently failed to resort to such means, provided he is himself free from negligence after he became conscious of his danger. Duncan v. St. Louis & S. F., 152 Ala. 118 (44 South. 418, 422.) See, also, Klutt v. Philadelphia & R. R. Co. (C. C.) 145 Fed. 965; Philadelphia & R. R. Co. v. Klutt, 148 Fed. 818 (78 C. C. A. 508); I White, Personal Injuries on R. R. § 398; 1 Shearman & Redfield, Negli-gence, (5 ed.) § 99.

6. In the case at bar it may reasonably be believed that the position in which the plaintiff was engaged at work was a perilous one; and if it required both his hands to use the wrench, and one foot to hold the bolt to keep it from turning, it would certainly appear that his work would require some care and attention, and it is not proper to assume that plaintiff was negligent in placing himself in a position of danger, or that his fault, while attending to his duty, contributed to his injury.

“As a general rule, it is not contributory negligence as a matter of law for a person so employed not to be on a constant lookout for approaching trains.” 2 Thompson, Negligence, § 1756.

*37So the question whether the omission to look amounts to contributory negligence is one for the jury. 5 Thompson, Negligence, § 5524. Whether plaintiff exercised ordinary care, or was guilty of contributory negligence in this case, was a question for the jury: Baltimore R. R. Co. v. Peterson, 156 Ind. 364, 373 (59 N. E. 1044); Austin v. Fitchburg R. Co., 172 Mass. 484 (52 N. E. 527); Comstock v. Union Pac. R. R. Co., 56 Kan. 228 (42 Pac. 724); Sullivan v. Missouri Pac. R. Co., 97 Mo. 113 (10 S. W. 852); Railroad v. Murphy, 50 Ohio St. 135, 144 (33 N. E. 403.)

For these reasons, we think it was error for the lower court to direct a verdict for the defendant. The judgment is therefore reversed, and a new trial ordered.

Reversed.