Opinion by
Uрon this record the plaintiff in error raised but two questions, but as they are substantially one in fact we shall discuss them as one, and that is, did the injury occur by the contributory negligence of the defendant? The plaintiff in error now contends that on the facts found by
“ I instruct you that if thе plaintiff, before driving upon the track of the defendant at which the injury complained of occurred, could at any time have sеen the approaching train in time to escape by looking to the south, it will be presumed as a matter of law, either that he did not look, or that if he did look that he did not heed what he saw, and concluded to take the risks of attempting to cross in front of the approaching train; in which case I instruct you that the plaintiff, if you so find the facts, was guilty of contributory negligence, contributing to his injury, and cannot recover in this case.”
This instruction the court refused to give. The rule, as contended for by the plaintiff in error, is, that if the plaintiff could have seen, by carefully looking, the approach of the train, then it was negligence for him to drive over the track ahead оf the train, knowing that the train was coming; or, if he failed to look, or, if looking, failed to discover the train and drove upon the track аnd was injured, he cannot recover; or, in other words, that if one does look and fails to discover what it would be possible for othеrs to see, or undert some circumstances might have been seen by the person so looking, then it is contributory negligence not to sеe. If this rule is the true one, then nothing short of the greatest care and caution will warrant a recovery for injuries received through nеgligence in the operation of trains. We do not understand the rule to be so far extended as to require the greatest care and caution, but only reasonable care, such as a man of ordinary prudence would exercise under similar circumstancеs. (Desmond v. Brown,
“The instruction was properly refused. It requires too great a degree of care and circumspection. It makes no allowance for the ordinary imperfections of humanity. It requires absolute perfection of attention to surroundings, while the mind is conсentrated upon a particular duty. So high a degree of: caution the law does not enjoin. It requires only the exercise of rеasonable and ordinary care.” (Greenleaf v. Railroad Co.,33 Iowa, 57 .)
The supreme court of the United States, referring to an instruction similar to that contended for by thе defendant, said:
“ It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental diversion оf the attention to which the most prudent and careful are sometimes subject, and assuming in effect that the duty of avoiding a collision liеs wholly or nearly so on one side.” (Improvement Co. v. Stead,95 U. S. 168 . See U. P. Rly. Co. v. Adams,33 Kas. 427 .)
But where the undisputed facts show that this rule has been disregarded, and no precaution has been tаken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submittеd to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; thаt he saw the cars on the side track, and looked to see whether an engine was behind them,' and saw none;' and the fact that the trаin was moving backward; are questions to go to the jury with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather and the charactеr of the train, and he thought it to be on the side track. It was said in Barnard v. Railroad Co., 1 Abb. Ct. of Appeals, 131:
“If there is any conflict in the evideucé going to establish*749 any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved — this involving, as it generally must, more or less conjecture — can only be settled by a jury.”
In Webber v. Railroad Co., 58 N. Y. 465, the court said :
“It is true that the vigilance and caution of the traveler must be proportioned to the known danger of the injury; but it is also in a mеasure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self-preservation ordinarily will lead to the emрloyment of all the precaution which the situation suggests to an individual; and whether they are such as would occur to or be adoрted by men of ordinary care and prudence, must necessarily, in most cases, be left to the jury. The intelligence and judgment, as well as thе experience, of twelve men, must settle a question of that character as one of fact, and not of law.”
. ( K. P. Rly. Co. v. Richardson,
While this question is a close one, yet we do not feel called upon to disturb the judgment where it is so conclusively shown that the employés of the defendant in charge of the train were so grossly negligent in its management. Although the plaintiff may have been somewhat negligent, yet it is not clearly shown that his negligence contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south,-he might with rеasonable safety have crossed before it reached the crossing, provided .the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is greаt, and that of the other but slight, notwithstanding the slight negligence the party may recover. (Pacific Rld. Co. v. Houts,
By the Court: It is so ordered.