In this class of cases the law is well settled. “The obligations, rights, and duties of railroads and travelers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other; for conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with and conditioned upon the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is *55based upon this condition. Both parties are charged with a mutual duty of keeping a careful lookout for danger; and the care or diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. ” Improvement Co. vs. Stead, 95 U. S. 161; Railroad Co. vs. McClurg, 8 C. C. A. 322, 59 Fed. 860; Railway Co. vs. Smith (Tex. Sup.) 28 S. W. 520. The degree of danger varies at different railway crossings. Some may be comparatively safe, while others may be exceedingly dangerous. The amount of care to be exercised by the railway company or the traveler upon the highway must be graded to suit the exigencies of the particular case. It is held with practical uniformity that a traveler upon a highway approaching a railway crossing falls short of the standard of prudence which the law has fixed, if he fail, before going on the track, to make a vigilant use of his senses of sight and hearing. Failure to look or listen for the approaching train will ordinarily preclude him from recovering. If his view should be obstructed, he must more vigilantly exercise his sense of hearing. If his hearing be impaired, he must exercise greater care in the use of the faculty of sight. Of recent years, a qualification upon the doctrine of contributory negligence as a bar to a recovery has grown up and become firmly rooted in the law. It is that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequence of the injured party’s negligence, after perceiving the danger to which such negligence had exposed him. Railway Co. vs. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Coasting Co. vs. Tolson, 139 U. S. 551; 11 Sup. Ct. 653. Thus it has been said; “But there are cases in which a plaintiff who is chargeable with concurring negligence may still recover. If, for example, the servants of a railway company discover a tresspasser *56upon the track, they must use all reasonable precaution to avoid injuring him; and it may be, also, that where it is their duty to keep a lookout for persons upon the track, and where, if this duty, to keep a lookout had been performed, one passing along it would have been discovered in time to have warned him, or to have stopped the train, and this duty had not been performed, and the trespasser had been run over and injured, the company will be liable to respond in damages. The negligence or trespass of a person does not place him beyond the protection of the law, and does not excuse another for failure to exercise care to avoid injuring him; much less does it justify a willful injury. In such a case, although the negligence of the plaintiff, in one sense, at least, contributed to the injury, the negligence of the defendant intervenes between the plaintiff’s negligence, and the result, and becomes the proximate cause of the injury. As some of the authorities put it, the plaintiff’s negligence, in such case, becomes the condition, and not the efficient cause, of the accident." McDonald vs. Railroad Co. (Tex. Sup.) 22 S. W. 944; Whit. Neg. § 381; Hays vs. Railway Co., 70 Tex. 602, 8 S. W. 491; Staus vs. Railroad Co. 75 Mo. 185.
Contributory negligence ■will not defeat right of recovery, when.*56Having in view these well-established rules of law, consideration is given to the first point urged by appellant, —that the trial court erred in refusing to instruct the jury at the close of all the evidence to return a verdict for the defendant. Gleaning from the record the facts' most favorable to the appellee, and also enough to manifest what is conflicting or inconsistent in the testimony' of the appellant, the following appears: Appellee testifies that on the occasion of the injury he was in his wagon, driving north in the dirt road parallel to defendant’s track, in the town of Marlow; that he could see no train from the north; that when he got to where the road runs across the track, he turned his head back, to the south, and could only see to where the railroad fence crossed the track; that the wind *57was blowing mighty hard from the-south., and the dust was almost like a cloud; that that was as far south as he could see; that he could see no train coming from that direction, and was entirely unconcerned; that he didn’t think he was over 20 feet from the main track, when he turned and looked down south for the train; that he had been deaf 30 years; had lived at Marlow four years, right close to the railroad track, some 300 or 350 yards from where he was struck, and always used the crossing at that place in going to town, some two or three times a day. S, H. Riley testifies for appellee: That he saw the cars when they struck appellee. That when struck, the fore wheels of his wagon had crossed the main track, and the rear wheels were about the middle of the track. ' That the track runs north and south, and’ the dirt road right along side of it. That appellee was coming from the south, traveling north, until he came to turn and go west and cross the track. That from where the road turned west to center of track would be about 30 féet. That a person could see from where the road turns, down the railroad track, south, 400 or 500 yards. That the fence crossing the track is in the neighborhood of 300 yards from the crossing. That he first saw the train something like 400 yards from the crossing. Tnat he saw appellee before he saw the train. That appellee was crossing the switch track from that onto the main track, aiming to cross over the west switch. That the train was coming rapidly, and saw appellee, and whistled and checked up, and just about 300 feet from where it checked up it put on extra power and steam, and pushed on by. “Q. Did you see him put on extra power of steam? A. I saw it with my own eyes. I saw the increased rate of speed. I saw the extra speed of the train. ” That the train stopped somewhere in the neighborhood of 400 yards north of the depot. That the train was running 30 or 35 miles an hour from where -he could see. .That he was 150 yards west of the crossing when the colli*58sion occured. That when he saw the train first appellee was on the main track. When he first saw appellee, he was coming across the east side track, coming to the crossing. That he was crossing the side track when witness first saw the train. That he should judge that there is about 15 feet between the east side track and the main track. That, there were some cars standing on the west switch, with a small opening for wagons to pass through. That appellee’s horses were on the main track endeavoring to cross to the west switch, and seemed to stop their speed in going across— seemed to be frightened at the cars in front, That the opening was some twelve or fifteen feet, and that there was no engine with those cars. Williams testifies for appellee that he was in a wagon, driving along, 10 or 15 feet behind him, on the occasion of the injury; that when he first saw the engine it looked to be about 300 yards or a little more south of the crossing; that at this time appellee’s horses wei’e mostly over the east side switch; that his wagon was on it; that witness knew; that he was right behind appellee, with a wagon and team; that the train was running tolerable fast; that there were some cars standing on the west switch; that the train slacked up when he saw it; that he thought he would go across, and appellee’s team kind of shied, and he did not follow him any further, but backed back; that he could not say whether the train got faster after it slacked up; that his horses were restless some; that that was the reason he wanted to get across. J. P. Becktol testifies for defendant that he was station agent for defendant at Winola, Iowa. On cross-examination, that the train was close to half a mile from crossing when he first saw it; that it sounded the whistle at this point; that he came into the station room, and saw plaintiff about 175 feet from where the road turns in to cross the track; that the train was slacked up when at least a quarter of a mile from the crossing; that when the train slacked appellee was just turning in on the *59east side track, if witness recollected right; that they must have checked-up by reason of the old man on the crossing; that they must have discovered him there; that at the time they were about a quarter of a mile from him when they slacked; that they reduced the speed; thought it was between the rate of 15 and 18 miles an hour when they struck him; when he first saw the train it was running 25, possibly 30, miles an hour; that the engineer could have seen down the track a mile and a half from the east switch, and could have seen appellee when he first turned from the road to go across; that á full train of air brakes can be stopped in a short distance; that this train went from one-eight to a quarter of a mile before it stopped. On redirect examination, that when the old man was within 50 or 75 feet from the main crossing the train was about a quarter of a mile south of the crossing. Adams testified for appellant that he was riding in the engine when appellee was hurt; that when the train got within a half- mile from the station he saw appellee driving along the road, 150 yards from where the road turns; that at this time the train was running 30 miles an hour; that when appelle arrived at the turn the train was 250 to 300 yards from the crossing; that at this time the engineer blew his whistle and stock alarm; that appellee did not look one way or another; that the train was about 50 yards from the crossing when the plaintiff’s horses were just going, upon the east passing track; that with the train running 18 miles an hour, appellee was just going upon the east passing track, and he got almost over the main track before the train traveled 150 feet; think the caboose was right even with the depot platform when the train stopped. Clark testifies for defendant: That he was the engineer in charge of the engine. That he was going about 25 or 30 miles an hour when he blew the whistle first, about half a mile from the crossing. That he run on to within 600 feet of the crossing at this rate of speed. That when *60appellee turned to cross be sounded the stock alarm. That he saw nothing before that to indicate that he would not stop. That after sounding the stock alarm, he applied to air brakes, and also: the driver brakes. “Q. Did you do everything you could? A. Yes, sir. Q. Applied all the brakes you had? A. Yes,'-sir.” That when about 600 feet from the crossing appellee was 60 or 70 feet therefrom. That he watched him until he came on the track. That witness was about 600 feet from the crossing when appellee got on the east switch. That he was coming over the east switch. That he did not tell the jury that when he got about 600 feet from the crossing aypellee was about 60 feet from the crossing. That when appellee’s horses went upon the east switch witness was a little bit less 600 feet — about 500 feet — from the crossing. • That the turn in the road is 60 or 70 feet from the crossing. That witness was only 500 feet from the crossing when appellee was just turning. That when he traveled that 60 or 70 feet to get on the east track, witness was, he should think, 300 or 400 feet from the crossing. That he was positive there-was no wagon behind appellee; that he knew that appellee did not turn and look for train, because witness was looking right at him to see if his whistle had attracted his attention, and it did not do it. That he was about 600 feet from the crossing. That when the train stopped the caboose was 500 or 600 feet north of the depot. While two engineers testified, neither stated that the engine was reversed. Clark stated, in reply to a leading question, that he did everything he could; that he put on the air brakes and driver brakes, but he did not state that he reversed the engine.
When case should be taken from jury.The Supreme Court has said repeatedly that the question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them, or, in other words, the case should not be withdrawn from the jury unless the conclusion follows *61as a matter of law that no recovery can be had upon any view which can be properly taken from the facts which the evidence tends to establish. Gardner vs. Railroad Co., 150 U. S. 349, 14 Sup. Ct. 140; Railroad Co. vs. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Railroad Co. vs. Cox, 145 U. S. 593, 12 Sup. Ct. 905; Dunlap vs. Railroad Co. 130 U. S. 649, 9 Sup. Ct. 647. In the case of Railroad Co. vs. Ives, the Supreme Court said: “When a given state of facts is such that reasonable men may fairly differ upon the question 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 one of law for the court. ” In Railway Co. vs. Chambers, 15 C. C. A. 327, 68 Fed. 148, it is said by the Court of Appeals for the Eighth circuit: “It is only when the facts are undisputed, and are such that reasonable men may fairly draw but one ■ conclusion from them, that the question of the negligence is ever considered one of law for the court.” The statement of these principles indicates the result upon the point considered. If it be conceded that the appellee was guilty of contributory negligence, — -as to which it is not deemed necessary to express an opinion — , the issue was submitted to the jury whether or not appellant’s employes discovered his danger in time by the exercise of reasonable care to avoid inflicting injury upon him. Upon this issue the verdict was against appellant. Can it be said that the facts bearing upon this question are undisputed,, and such that reasonable men may fairly draw but one conclusion from them? The statement of the evidence above set out shows that the facts are not only in dispute between appellant’s and appellee’s witnesses, but that the statements of appellant’s witnesses, are themselves conflicting and inconsistent. A jury of 12 men drew a different conclusion from these facts from the one that is now urged upon this court. The trial judge, who heard the *62testimony, observed the witnesses, and had a better opportunity than this court to arrive at the truth upon this question, drew a different couelusion. Indeed, upon this question it is possible to draw a different conclusion from that drawn by the jury only upon the theory that the testimony favorable to the appellee, as above set out, is untrue. But it was the province of the jury to judge of the credibility of the witnesses and of the probabilities of the testimony. It was for the jury, and not this court, to deal with the preponderance of the evidence. Says Mr. Justice Miller, in Barney vs. Schmeider, 9 Wall. 248: “The judge also tells us that there is very little discrepancy in the testimony, but where there is any discrepancy, however slight, the court must submit the matter to which it relates to the jury, because it is their province to weigh and balance the testimony, and not the court’s.” It is not intended to give approval to what is known as the “scintilla of proof doc trine.” “It is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor. That is the business of the jury. But, conceding to all the evidence offered the greatest probative force which, according to the law of evidence, it is fairly entitled to, is it sufficient to justify a verdict?” Pleasants vs. Fant, 22 Wall. 116; Hichman vs. Jones, 9 Wall. 197 Barney vs. Schmeider, supra. Improvement Co. vs. Munson. 14 Wall. 442; Hepburn vs. Dubois, 12 Pet. 345. The trial court did not err in refusing to instruct the jury to return a verdict for the defendant.
of|uTPy tomce oreSiwuty of witnesses. It is province of court to decide if evidence support verdict.2. It is urged that the court should have given the special charge to .the effect that, if the appellant’s statioi age'nt or operator at Marlow was negligent in not trying tc prevent the plaintiff from going on the track at the time h< was injured, that fact could not be considered as evidence o *63defendant’s negligence, unless it further appeared that it was a part of the duty of such agent or operator, or a part of his employment, to perform such act. The refusal to give this charge was not error. It was not contended in the pleadings that the conduct of this -agent was a basis of recovery. The court in its charge no where submitted this as an issue. The matter with reference to the conduct of this agent was drawn out in his cross-examination, and was admissible for the purpose of affecting his credibility. If not admissible, objection should have been made to it at the time. It is not contended that it was suggested in argument as a ground of recovery.
Instruction refused. Not error. Improper argument ef counsel.3. Objection is made to the charge of the court as to the burden of proof to show contributory negligence. The objections urged are disposed of in the case of Railroad Co. vs. Harmon’s Adm’r. 147 U. S. 581, 13 Sup. Ct. 557.
4. Counsel for appellee, in his argument to the jury, used the following language: ‘’The defendant in this case has brought witnesses 650 miles, — its own employes, — and induced them to testify regardless of th'e truth. It is a well-known fact that railroads use every means in their power to win their cases, and defendant’s witnesses in this case have testified under the constant fear that their further employ - nent depends upon their testifying as the railroad dictated. ” This language was excepted to by the appellant, and the jourt was asked to take it from the jury, but declined to do so. These expressions were reprehensible, and should have ’eceived the prompt rebuke of the presiding judge. The fight of argument in the trial of causes is a high privilege, md its abuse should not be tolerated by the trial courts. It s one thing, however, to find that counsel have forgotten heir professional duty, and another to hold that the jury íave been ignorant or weak enough to forget their obliga-ion under oath to be governed by the law and evidence. A *64case is not to be reversed to punish counsel for impropriety in argument, but because it may be reasonably believed that such impropriety has influenced the jury. Some of the statements objected to are sustained by the evidence. Those that are not sustained by the evidence were known to the jury to be thus unsustained. Jurors are not children, or creatures of wax in the hands of counsel. It cannot be taken for granted that prejudice lurks ever in their bosoms to be fanned into flame by a breath. It must be assumed that in the present instance they were men of intelligence and integrity. Regarded by law as competent to weigh conflicting phases of evidence, and to determine difficult and delicate questions of fact, it may be presumed that they were capable of discriminating as to matters that were not in evidence at all. Something must be indulged as to the honesty and intelligence of the jurors, else the system of trial by jury is impeached. If honest and intelligent, may it not be believed that the improper remarks of counsel, un-su}3portedby evidence, were as likely to suggest to them the weakness of his case, as to bolster it? At least the determination of the question whether prejudice resulted from these remarks rested primarily in the discretion of the trial court upon motion for a new trial, and it will not in any case bt presumed that the discretion over this subject committed tc the trial court has been abused. It is not shown thac th< objectionable statements were made in the concluding argu ment, nor that the opportunity for and the fact of reply wa; not had. Hesitating much,’ but deferring to the authority of, and approving the reasoning in, the opinion of th< Circuit Court of appeals for the Eighth circuit in the case o Railroad Co. vs. Curb, 13 C. C. A. 537, 66 Fed. 519, it i held that the matter complained of does not constituí reversible error. The judgment is affirmed.