(after stating the facts.) 1. The uncontradi.cted proof by appellee and her witnesses shows that she was guilty of contributory negligence. She “deliberately” walked upon the track of a street railway after she had looked and knew that a car was coming. Fler only excuse was that, after she looked and saw the car, she “thought she would have plenty of time to cross,” and kept listening for the gong, but did not hear it until the car was upon' her. A more palpable case of contributory negligence it would be difficult to imagine. It was shown that her hearing was bad. This made it incumbent upon her to use the more diligently the unimpaired sense of sight, and to continue to use it until the danger had passed. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134. Instead, after seeing and knowing that the car was approaching on the track she had to cross, she practically closed her eyes, relying upon her judgment as to the distance the car was away and the time she had to cross, and upon her imperfect hearing to. protect her in case she was mistaken. She was mistaken, and the mistake was inexcusable, and must eliminate every charge of negligence in the complaint except the “failure of the motorman to use the means at his command to stop the car after he was apprised of her perilous position.” It has been difficult for us to determine whether the evidence in favor of appellee, giving it the strongest probative force of which it is súsceptible (St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478), was sufficient to >suport the verdict on this allegation. The- testimony of the motorman himself, pertinent to this proposition, is as follows:
“I turned this way, and I saw the lady, and it seemed to me that I was fifty or sixty feet away from her at the time I saw ‘hei\ It seemed to me that she was almost standing between the two inside rails of the two tracks. I was on the right-hand side, going east, and she was in between the north track and the south track, in between the two rails, seemed to be standing perfectly still. I thought at that time she was standing to wait for the car to pass, would step hack and wait for me to pass, and as soon as I saw her she was too close for me to go at that speed; so, as soon as I saw her — my current was already turned off — the brake chain is a chain something like that (indicating) — -it is owing to how- you j erk the chain, but it generally takes a round and a half sometimes a little more, to bring the car to a stop — I tightened up the brake and slackened the speed of the car, and began ringing my bell, began tapping with this foot, and then I tied my brake, I think, and by that time I was getting pretty close to her-— it was just a matter of a few seconds — and by that time she had stepped from her original position towards my inside rail, and then I saw, whether she moved or not, I was going to strike her. She had got too close to me, and I reversed the car. I was then fifteen feet away from her when I reversed the car — I can not tell, but something like that. I reversed the car, tightened my brake a little more. The action of the current running backward, the momentum was a little greater than the current at that time, and the car slid on a little and struck her while it was sliding. It knocked her down, and then the car stopped. The platform passed on over her.”
This evidence discloses the fact that the motorman discovered the appellee when he was 50 or 60 feet from her, and he knew at. the time he discovered her that she was too close to the track for him to go at the rate of speed he was then going. He testifies that the highest rate of speed of his car, from the time he stopped to take on a little boy at Seventh Street till the accident occurred, could not have been over ten miles an hour. True, this witness says he thought appellee was going to step back, and and let his car pass. He shows that the current was turned off, and that he began tightening the brake and ringing the bell when he first saw her, and that, in a few seconds, when he was fifteen feet from her he saw that he must strike her; he then reversed the car. But the proof by one of the witnesses was that when he was about twenty feet from her he looked toward the woman, then turned and spoke to some one on the platform with him. The witnesses on behalf of the appellee say that the car was going all the way from twelve to eighteen miles per hour. No one except the motorman observed any diminution in the speed of the car from the time when the motorman says he first saw her. Only two or three sounds of the gong were heard'by any other witness, and those were very dull and faint. There was no constant tapping of the gong. One of the witnesses did not see the motorman do anything until just before the car struck appellee, when he was trying to lean over and trying to stop his car, and seemed to be hallooing.
The testimony of witnesses for appellee differs widely from the motorman’s on some points. It was for the jury to determine the facts from all the testimony. After a careful consideration of it, we have concluded that the jury might have found that appellee approached appellant’s car tracks oblivious of her danger; that appellant’s motorman discovered her peril in time, by the use of ordinary care, tc prevent running her down, and that he failed to exercise such care. The motorman from the time he saw her could have diminished the speed of his car more than he did. Indeed he might have stopped it, or reversed it. It is clear that he had observed her, and equally clear that she had not observed him. Ordinary care under the circumstances required something more to be done toward giving a warning than attempting to sound a gong that, at best, would only give forth a faint sound. When he saw that she did not hear or was not heeding the warning, he should have hallooed, put on the brakes, and reversed the car, all before he did. The verdict should be sustained under the principle, announced by this court in St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407, and cases there cited.
The instructions of the court were full and clear on every point presented by the pleadings and proof, and, in view of what we have said, it was not error for the court to refuse to take the case from the jury on account of the contributory negligence of appellee.
Affirm the judgment.