They have only to find whether he, upon whom the duty rests, has performed it. If he has not, the law fixes the character of his failure, and pronounces it negligence." It is a mistake, therefore, to say, as is sometimes said, that when the facts are undisputed the question of negligence is necessarily one of law. This is generally true only of that class of cases where a party has failed in the performance of a clear legal duty. When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence can not be determined until one or the other of those conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain and incontrovertible, or they can not be decided upon by a state of facts upon which fair-minded men may well differ. . . 2. Applying the principle of these cases to the one now before the Court, I think the refusal of the judge to give the instructions prayed for was correct, and that the charge as given was just towards the defendants. It certainly can not be said that the plaintiff, on any view of the evidence, attained the highest degree of prudence in his conduct. He stepped upon a track on which he knew a train was approaching, without turning to see how near it was, and the injury has resulted in consequence. Thus stated the fact would appear to be gross negligence, if not utter recklessness. But there are other circumstances to be taken into the account before definite judgment can be pronounced upon the character of the act. The plaintiff heard the whistle half a mile off. He knew he had the time which would be required for the train to pass over that distance in which to cross over to the depot, a distance of less than a hundred feet. He also knew that all trains coming on this track stopped at the depot, and that they checked their speed and approached it slowly. . . . He had less than the usual occasion for looking, when he knew about how far off the train was, and that, relying upon the ordinary mode of management, as he had a right to, he could not be in danger from it in passing over. And if we are to believe his evidence, he was entirely correct in his calculations, and it was only because the train came up at a speed twice as great as he had any right to anticipate, that he found himself in danger. He may claim, therefore, that he was not guilty of a want of ordinary care and prudence, because the ordinary condition of things, which was what he was to look for, would not have made his position dangerous. The plaintiff's case is, that the extraordinary and unprecedented speed of the train was what put him in peril; and if the case as made by him, should stand unshaken by other evidence, there would be in this position so much of plausibility that I do not see how a judge could set aside a verdict in accordance, as without evidence to support it. If this be so, neither could he take the case away from the jury by directing them to find a verdict for the defendants. The [other] errors in the record, which have been pointed out, make it necessary to reverse the judgment and order a new trial. The plaintiffs in error will recover costs in this court, and the costs in the court below will abide the result. GRAVES, J., concurred. CAMPBELL. J.: I concur in the result and in most of the conclusions of my brethren, but upon some points my views are not entirely in conformity with them. . It seems to me that, if under such circumstances, a person is not required to look upon a track before attempting to cross it, there is no available precaution which the law can exact of a man of sound mind for his own preservation. Where risks are unusually dangerous in their consequences to life or limb, the same principle which holds the owners of such powerful machinery to be more than usually careful, renders it just as necessary for all other persons to use due care in approaching them. And absence of mind and inattention to danger can not fail to be negligence in any case where human safety is likely to be perilled by them. With these exceptions I concur in the opinion of the Chief Justice. CHRISTIANCY, J., did not sit. 641. ATCHISON, TOPEKA & SANTA FE RAILWAY SUPREME COURT OF KANSAS. 1909 80 Kan. 540, 103 Pac. 994 ERROR from District Court, Chase County; F. A. MECKEL, Judge. Action by P. D. Schriver, as administrator of the estate of P. P. Schriver, deceased, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Reversed. This action was commenced in the District Court of Chase county by the administrator of the estate of P. P. Schriver, deceased, to recover damages sustained by the next of kin on account of the death of P. P. Schriver, who was killed while crossing the defendant's railroad near Cedar Point, in said county. It appears from the evidence that P. P. Schriver on February 16, 1907, in company with Warren Peck, a neighbor, was returning from the funeral of a friend in a single horse and buggy, and about four o'clock in the afternoon of that day they approached the railroad, and, while attempting to cross it upon the public highway, were struck by a passing train, and instantly killed. The train was a section of train No. 6, which is a fast train running between Chicago and Denver. At this time the train was running at an unusually high rate of speed, being estimated to be from sixty-five to eighty miles an hour. The weather was clear and the sun shone brightly. The ground in the direction from which the train came was comparatively level, and no obstacles intervened to prevent it from being seen. At that time, however, the sun was in such a position that it shone directly in the eye of a person looking in the direction of the train, and interfered with the vision, and a wind was blowing, which carried the rumble and noise of the running train away from the deceased. The road has double tracks between the stations east and west of the crossing in question, and the train was running on the south or east bound track. The horse being driven to the buggy in which the deceased was riding was gentle and well in control of the driver. The administrator recovered a judgment against the railroad company, and it brings the case here for review. Wm. R. Smith, O. J. Wood, and A. A. Scott, for plaintiff in error. W. S. Stanley and L. B. Kellogg, for defendant in error. GRAVES, J. (after stating the facts as above). Several assignments of error have been presented and argued, but in the view we have taken one only need be considered. The plaintiff in error complains of several instructions given to the jury by the Court, but it especially criticises Nos. 10 and 11, which read: "If you believe from the evidence that the plaintiff's intestate saw the approaching train, and without negligence on his part failed to observe from his position the unusual speed at which it was running, if it was running at an unusual speed, so that his conclusion that he could safely cross before the train reached the crossing was not an unreasonable one, he will be exonerated from contributory negligence on this account, because it is not negligence in law for a person in the exercise of ordinary care and caution to cross a railroad track upon a road crossing in front of an approaching train which he has seen and which does not appear to him to be dangerously near, and which would not have been so in fact if it had not been running at an unusual rate of speed. . . . In such a case the question of fact for the jury is, Did he use reasonable care and caution in determining whether or not he could safely cross the track?" The rule of law stated in these instructions cannot, as we view it, be applied to ordinary railroad crossings. A similar rule has been upheld by this Court when applied to the operation of street cars in a city (Railroad v. Gallagher, 68 Kan. 429, 75 Pac. 469, 64 L. R. A. 344), but never to a situation such as this case presents. The similarity between the operation and management of an ordinary street car as compared with a fast running passenger train on a double-tracked railroad operated through a level, open country where speed is important is not so great as to make the rules of management and control identical in each case. Street cars are constructed and equipped to be operated along streets where people must and do constantly cross. The speed of the cars is comparatively slow, and sufficiently uniform to enable people to form a reasonably accurate judgment as to where the danger line is in crossing. Stops are so frequent that a very high rate of speed is practically impossible. The motorman manages the car with the knowledge that danger is always present, and safety can only be secured by constant vigilance. The cars are equipped with appliances which as far as possible place them under control. If the rule in question was applied to railroads generally, it would materially conflict with rules now generally recognized, and might seriously embarrass the transaction of the business of common carriers. It is now generally understood that an unusually high rate of speed is not of itself improper or negligent. In the open country, where no peculiar conditions exist which make it dangerous, and speed is not limited by statute, trains may be operated at any speed which the existing exigencies of public traffic seem to require. Atchison, Topeka & Santa Fé Railroad v. Hague, 54 Kan. 284, 38 Pac. 257, 45 Am. St. Rep. 278; 2 Thompson on Negligence, §§ 1873, 2101; 7 A. & E. Encycl. of L. (2d Ed.) 403. Under the rule stated in the instructions, a traveller at a country crossing, however slight the ordinary travel at such place, may attempt to cross, free from the imputation of contributory negligence, even though he hears, and actually sees a train approaching, if, assuming the speed of the train not to be greater than usual, a man of ordinary care and caution would not regard such an attempt dangerous. . . . Ordinarily the rule now is that a person about to cross a railroad must assume that the speed of every train is as great as the business or necessities of the company require, and he must act accordingly. In 7 A. & E. Encycl. of L. (2d Ed.) 438, the rule is stated as follows: ... "If, with full knowledge of the near approach of a train, a traveller attempts to cross in advance of it, and merely miscalculates his ability to do so in safety, there can be no recovery for a resulting injury." In support of the text numerous cases are cited selected from many States. Any rule which would encourage a race with an approaching train at every crossing would tend to increase the hazard at such crossings, impede the necessary rapid movement of trains, and seriously embarrass their operation in locations where such restraint would be of very slight, if any, public protection. . . . The tendency of these instructions to mislead the jury upon the question of contributory negligence under the facts of this case is too great to permit the verdict to stand. . . . The judgment of the District Court is reversed, with direction to grant a new trial and proceed in accordance with the views herein expressed. All the Justices concurring. 642. SMITH V. MAINE CENTRAL R. Co. (1895. 87 Me. 339, 351, 32 Atl. 971.) WHITEHOUSE, J. "The rule is now firmly established in this State, as well as by Courts generally, that it is negligence per se for a person, to cross a railroad track without first looking and listening for a coming train. if his 'ew is unobstructed, he may have no occasion to listen. But if his view is obstructed, it is his duty to listen and listen carefully. And if one is injured at a railroad crossing by a passing train or locomotive which might have been seen if he had looked, or heard if he had listened, presumptively he is guilty of contributory negligence; and if this presumption is not repelled, recovery for the injury carnot be had." Chase v. M. C. R. R. Co., 78 Me. 353. "No neglect of duty on the part of a railroad company will excuse anyone approaching such a crossing from using the senses of sight and hearing where those may be available." 1 Thompson, Negligence, 426. . . . ... 643. GRANT v. OREGON RAILWAY & NAVIGATION COMPANY SUPREME COURT OF WASHINGTON. 54 Wash. 678, 103 Pac. 1126 1909 DEPARTMENT 2. Appeal from Superior Court, Spokane County; E. H. SULLIVAN, Judge. Action by Maggie Grant against the Oregon Railroad & Navigation Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Gray & Knight and Alex. M. Winston, for appellant. W. W. Cotton, A. C. Spencer, Samuel R. Stern, and Ralph E. Moody, for respondent. PARKER, J. By this action plaintiff seeks to recover damages for personal injuries caused by being run over by a car of defendant at a public crossing adjacent to, and immediately west of, its passenger depot at Harrison, Idaho, on June 17, 1907. . . . Upon a trial before the Court and a jury, at the conclusion of the plaintiff's evidence, defendant's attorneys . . . moved the Court to withdraw the case from the consideration of the jury, and render judgment for defendant. The Court granted the motion, and rendered judgment accordingly. Thereafter, upon the denial of the plaintiff's motion for a new trial, she appealed to this Court, where the principal contention of her attorney is that the learned trial Court erred in thus disposing of the case. From the record it appears: That a public road leads down and along the side of a steep hill from the business portion of Harrison to the depot and crossing where the accident occurred. This public way not only leads to the depot, but also to a steamboat landing. . . . On the day of the accident the appellant with her grandchild was being taken down this road by a Mr. Wheeler in a buggy, with a view to taking the boat at the landing just across the track beyond the depot. While coming down the hill, appellant saw an engine standing on the track in the yard not far from the depot, some distance from the crossing, but did not afterwards notice or pay any attention to it. On |