This action was submitted to the jury in a charge which was unexceptionable, and upon a motion for a new trial the learned judge who heard the case and saw the witnesses concluded that the *287verdict should stand. While his judgment is not conclusive upon us, yet it undoubtedly is to have weight upon the motion for a new trial. Upon the facts shown I think that the evidence presented a question for the jury, both as to the contributory negligence of the plaintiff’s intestate and the negligence of the defendant.
It is quite impossible to lay down any hard and fast rule as to what constitutes either negligence or contributory negligence in these cases. The highway upon which the defendant’s car ran was for the use of foot passengers quite as much as for the vehicles of the defendant. Foot passengers are entitled not only to walk upon the sidewalk, but to cross over the streets at any places where their business or their inclination calls them. The only duty which is imposed upon them is to' use reasonable care in such crossing. In their attempt to do that they have the right to assume that street cars, whether propelled by horses or by mechanical power, will run at such rates of speed and will give such warning as will enable foot passengers to keep out of. their way. Whether it is negligence in any given case to cross the track of a street railway depends not only upon the manner in which the car is propelled, but upon the rate of speed; the freedom of the roadway from obstacles; the nearness of the car, and the opportunity which the foot passenger has to observe its approach.
The rule which is applied in the case of steam railroads cannot be applied in such cases as these. Steam railroads are laid upon tracks wherein foot passengers have no right at all. If they have occasion to cross those tracks at a highway, they are bound to use the very greatest care, because they know that steam railroads are not expected to stop or slacken their speed at such places, and foot passengers are expected, under all circumstances, to keep off the crossing. In such cases it has heen held that, if one. attempts to cross in front of a moving train, knowing that it is approaching, and relying upon his ability to keep out of its way, he does so at his peril. But no such rule applies in the case of surface street railroads. Those roads are laid upon the highway, up and down, and across which foot passengers have the right to go. Passengers must cross in front of moving cars, and they must judge in any given case, whether it is safe to attempt it, and contributory negligence cannot be predicated of the mere fact of an attempt to cross in front of a moving car. Other*288wise one could never cross the track of a street railroad where cars ran at a rapid rate of speed and close together.
It will not do of course to say, that in all cases the question of contributory negligence is for the jury, but it is exceedingly difficult to conceive of a case in which that is not likely to be the fact. This, in my judgment, is a case where the question should have been passed upon by the jury, and as it was properly submitted, the verdict should stand.
I think the judgment and order should be affirmed.
Judgment reversed and new trial ordered, with costs to appellant to abide event.