from them, was evidently taken in good faith, and exhibited a commendable spirit in the interest of public justice. But our attention has not been directed to any principle of law that would hold the telegraph company liable therefor. The circuit court is therefore directed to modify its judgment herein by striking out therefrom the amount of $250 allowed for counsel fees in the pursuit of the property, and with this modification the judgment is affirmed.

(109 Fed. 379.)

SOUTHERN PAC. CO. v. HARADA.

(Circuit Court of Appeals, Ninth Circuit. May 31, 1901.)

No. 610.

RAILROADS INJURY AT CROSSING-CONTRIBUTORY NEgligence.

Plaintiff, in the evening, started to walk across the tracks of defendant's railroad at a street crossing with which he was unfamiliar, and where there were two parallel tracks. Before starting across he looked in each direction, and saw the headlight of an engine on the track nearest him at such a distance that he could safely cross such track. He crossed it in safety, and had nearly reached the curb on the other side of the street when he was struck and injured by the train, which had passed onto a switch that curved sharply, and crossed to the other track on the opposite side of the street. There was testimony that no bell was rung, nor whistle blown. Held that, under the rule that it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of contributory negligence becomes one of law for the court, the question whether plaintiff was guilty of contributory negligence was properly submitted to the jury. Ross, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the Northern District of California.

Frank McGowan and Forshay Walker, for plaintiff in error.
Bert Schlesinger and Marshall B. Woodworth, for defendant in

error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge. This is an action to recover damages for injuries received by the defendant in error from the negligence of the plaintiff in error in running its train at a street crossing in Alameda, Cal. The jury before whom the case was tried found a verdict in favor of the defendant in error. There is testimony in the record to the effect that the railroad crossing at Everett street and Railroad avenue was a hazardous and dangerous one; that the south track extended beyond Everett street, and finally ran into the north track; that it curved for the entire distance: that on account of the various switches, frogs, and the sharpness of the curved tracks, it was known to and designated by the conductor, engineer, and other employés of the railroad company as the "Horn," because it was "part of a circle"; that the instructions of the company to its em

ployés were "to run carefully through that crossing"; that the defendant in error had never traveled on the broad gauge before; that he was not familiar with the crossing, and did not know of the habit or practice of the railroad company in switching its trains from the upper to the lower track, and was not aware of the existence of the numerous frogs and switches at said crossing; that there was no flagman at this crossing; that no whistle was blown or bell rung. Upon some of these points the testimony was undisputed, and upon others there was a conflict in the evidence. The testimony given by Harada will be hereafter referred to.

The controlling question presented by the assignments of error is whether or not the defendant in error is shown by the evidence to have been so clearly guilty of contributory negligence as to authorize this court to say, as a matter of law, that the trial court should have instructed the jury to return a verdict in favor of the plaintiff in error. The rule is well settled that, when an appellate court is asked to set aside the verdict of a jury in a common-law action upon the facts, all conflict in the evidence must be resolved in favor of the party in whose favor the verdict was rendered. In other words, if, by giving credit to the plaintiff's evidence, and discrediting that of the defendant, the plaintiff's case is made out, the verdict should stand. Railroad Co. v. Teeter, 11 C. C. A. 332, 63 Fed. 527; Railway Co. v. Sharp. 11 C. C. A. 337, 63 Fed. 532, 534, and authorities there cited. The facts in this case are essentially different from the facts in Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542, Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068, and Railroad Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014, upon which appellant chiefly relies. In those cases it affirmatively appeared that the person injured went upon the railroad track without stopping, looking, or listening, to see whether a train was coming in either direction. In Elliott v. Railway Co., Elliott started to cross the track when the train was not more than 20 feet distant from him, without looking to see whether any train was coming. The court, in passing upon the question of contributory negligence, said:

"This is not a case in which one placed in a position of danger through the negligence of the company, confused by his surroundings, makes, perhaps, a mistake in choice as to the way of escape, and is caught in an accident. For here the deceased was in no danger. He was standing in a place of safety on the south of the main track. He went into a place of danger from a place of safety, and went in without taking the ordinary precautions imperatively required of all who place themselves in a similar position of danger. The trial court was right in holding that he was guilty of contributory negligence."

The other cases were substantially the same.

In the present case Harada testified, among other things, as follows:

"My age is 18 years. I live in Alameda, and have been a resident of Alameda for about three years. By occupation I am a self-supporting student. ** On the evening of the 4th of October, 1898, I was at Mrs. Phillip's house, at the corner of Lafayette and Encinal avenue. I left her house a little bit before half past 7 p. m., and went to Willow station, where I took the train, went into the first coach, and sat in the first seat. This was the broadgauge road. Mr. Sato was in the seat with me. I alighted at Park street station. We arrived there about ten minutes to 8 o'clock. In alighting from the

car I went from the first door and from the right-hand step. I alighted at about Foley street, and got down from the right-hand step of the coach and walked up along Railroad avenue, parallel to the track, with my friend Sato. I arrived at the southeast corner of Everett and Railroad avenue, and just where the electric pole stands. I stopped there and looked at both sides and listened. To the right I saw darkness. To the left I saw the headlight of an engine. I could not exactly judge where the engine was standing, the headlight of which I saw. I thought it was a little beyond the water tank. I heard the same sound that the engine was making when I alighted from the coach at the station. I heard no sign of the approaching train,-no bell was ringing, no whistle, so I thought myself safe, and I started to cross from the southeast corner to the northeast corner of Everett and Railroad avenue. Just when I crossed the second rail of the upper track I heard some puffing of an engine, and the rumbling sound of an approaching train. I looked in the direction, and I saw a train was coming. In the darkness I could not exactly locate the position, but I thought it was about opposite the water tank, or a little nearer to me; that is to say, between the water tank and Everett street, on the upper or right-hand track. I thought the coming train was on the upper track, because I knew I left the train at the station on the upper track. As I arrived at the station I saw another train stationary on the lower track at the station. That led me to think that this coming train was not on the left-hand track. I saw a train stationary on the lower track. The engine was pointed in the direction of the mole toward the west; that is to say, when I alighted at the Park street station. I left the train from which I alighted on the upper track, so I thought the coming train—that is, the one that was coming in my direction-was on the upper track. Therefore I thought myself safe, because I had just crossed the upper track. I kept on crossing, and crossed the last rail of the lower track, and was one foot on the cement sidewalk, when no bell was ringing, no whistle blown, but the rumbling sound of the coming train made me look in this direction whence it came, when I saw the engine was upon me, and so near that I had no time to escape, and I was struck. My foot was on the pavement of the sidewalk. When I was struck I had crossed the last rail of the lower track, and one foot was on the pavement of the sidewalk. The other foot was on the ground between the rail and the sidewalk."

This case presents the question whether Harada had the right to act upon the conditions, situations, and surroundings as they appeared to him. He had done all that was required of him to be done before he entered upon the railroad track. He had stopped, looked in both directions, and listened. It is true that Harada had actual notice of the approach of the train on the south or upper track, and if he had been injured while attempting to cross that track, owing to any miscalculation he had made as to the time it would take for the train to come, or the distance it would have to travel, the case would then come within the rule of the cases above referred to; for, so far as that track was concerned, there was no warning which the railroad company could give that would have been any more effective than the knowledge Harada had of the approach of the train on that track. But the injury did not occur on that track. Harada had not made any mistake as to his being able to cross that track in safety. He did safely cross it. But when the railroad company switched its train of cars from the south or upper track to the north or lower track, upon which the injuries were received, without giving any additional warning, it presents an entirely different question, and must be considered and governed by other and different rules. We must take the facts as we find them, and apply the law to such facts. Was Harada guilty of contributory negligence after he had safely crossed the track upon which he saw the train moving, and upon

which he supposed it would continue to come? The court, in its charge to the jury, with reference to this question, said:

"I submit for your consideration whether this crossing was not extradangerous, by reason of what amounts practically to three tracks at that point, and by reason of the practice of switching trains from one track to the other, so that, while what are known as the north and the south tracks pass diagonally through the street crossing, the third track over which trains pass runs at such an angle that one of two men crossing Railroad avenue at Everett street, side by side, may be struck, while the other is not. And in this connection you are to consider whether the plaintiff, if he was passing along Everett street across Railroad avenue, as he testifies, and seeing cars upon the north track headed in the direction away from him, would not be justified in assuming that he was in no danger from cars upon that track. Assuming that he heard and knew there was a train coming in his direction, you may consider whether he might not reasonably suppose that such train would pass along the south track, over which he could safely pass before a train could reach that point. Did he know or have reason to think that the approaching train would cut across at this point from the south to the north track, and that he might be struck at the edge of the opposite sidewalk?"

We think this charge was correct, in view of all the existing conditions at the crossing where the accident occurred. In addition to this, the record shows that the court and jury visited the place, and viewed the premises, where the accident occurred, and were furnished with the additional light of actual observation, which enabled them to virtually put themselves in Harada's place, and from that standpoint to determine whether or not he exercised due care and caution, and acted as a reasonable, careful, and prudent man would under such circumstances and conditions. The supreme court of the United States, in determining whether or not the party injured was guilty of contributory negligence, or had exercised ordinary and reasonable care and diligence, has frequently recognized and enforced the principle that persons passing over railroad tracks at a public crossing have a right to act upon the existing conditions and surroundings at that particular place. There cannot be any fixed standard by which courts are enabled to say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. In Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485, where, within the limits of the city, the street was crossed obliquely at a grade by the defendant's railroad and two other parallel roads coming up from the southwest, which roads curve away from a person coming down the Holden road, it appeared that on the morning of the accident Mr. Smith and his wife were driving down the Holden road in a buggy, with the top raised, and with the side curtains either raised or removed. Opposite the Lawrence house they stopped several minutes, presumably to listen for any trains that might be passing, and while there a train on one of the other roads passed by, going out of the city. Soon after it had crossed the road, and while the noise caused by it was still quite distinct, they drove on towards their destination. Just as they reached the defendant's track, and while apparently watching the train that had passed, they were struck by one of the defendant's trains coming from the right at the rate of at least 20 miles an hour, and were instantly killed. The court, in reviewing certain instructions asked in that case, said:

"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. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. 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."

Numerous cases are cited by the court in support of its decision upon this point. See, also, Solen v. Railroad Co., 13 Nev. 106, 128, 144; Railway Co. v. Netolicky, 14 C. C. A. 615, 67 Fed. 665, 669, 671; Railroad Co. v. Powers, 149 Ü. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 Sup. Ct. 140, 37 L. Ed. 1110; Railroad Co. v. Moore, 45 C. C. A. 21, 105 Fed. 725, 727; Beach, Contrib. Neg. (2d Ed.) §§ 449, 450, 454, and authorities there cited. If inferences other than that of contributory negligence may be fairly drawn from all the evidence and facts shown to exist, then the question is one of fact for the jury to decide. Railway Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281, 38 L. Ed. 131; Railway Co. v. Sharp, supra. In Beach, Contrib. Neg. § 450, the author said:

"In general, it cannot be doubted that the question of contributory negligence is a question of fact, and not of law. Whenever there is any doubt as to the facts, it is the province of the jury to determine the question; or, whenever there may reasonably be a difference of opinion as to the inferences and conclusions from the facts, it is likewise a question for the jury. It belongs to the jury not only to weigh the evidence and to find upon the questions of fact, but to draw conclusions as well, alike from disputed and undisputed facts."

The defendant in error, notwithstanding the negligence of the plaintiff in error, was bound to exercise ordinary and reasonable care to avoid injury. Did he do so? In considering this question, it must be borne in mind that the same measure of justice, the same rule of conduct, and the same general principles of law apply to the plaintiff as well as to the defendant. The people have the same right to travel on the ordinary public crossings over railroad tracks as the railroad companies have to run their trains thereon. Although railroad companies have the right of way and of precedence at the crossings, they must be held to be on equal terms with persons having the right to cross their tracks. It is the duty of each to exercise the same care and diligence. The right of precedence in favor of the railroad companies does not impose upon the traveler the sole duty of avoiding any collision. He has the right to assume when he sees a train coming that the railroad company will exercise ordinary and reasonable care, and give due and timely warning of its approach, especially where it switches off upon another track from which it is seen moving, or increases its rate of speed as it nears the crossing. Railroad Co. v. Griffith, 159 U. S. 603, 609, 16 Sup. Ct. 105, 40 L. Ed. 274. In the light of all the facts contained in the record, and of the principles of law announced in the decisions to which we have referred, we are irresistibly brought to the conclusion that reasonable, fair-minded,