(after stating the facts). 1. In Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 420, an instruction was given by the trial court which told the jury that “the rights of persons to pass along, over and across the streets where defendant company’s tracks are laid are equal with those of said defendant.” This court, passing upon the above declaration of law, said: “The tracks of street railways, including crossings, as well as every other portion of their tracks traversing the public streets of cities and towns, are used by the cars of such companies in common with the traveling public. No one is a trespasser for going upon their tracks. But, while this is true, the' traveling public does not have equal rights with the railway company to the use of the tracks for passing along or crossing over same. ‘Equal’ is not the word. The street cars, ex necessitate, must have, and do have, a right-of-way on their tracks, where they aloné can travel, and this right is superior to that of ordinary vehicles and travellers. This paramount or better right to the use of their tracks does not give them the right to exclude travellers, and these may move along or across these tracks at any time and place where such travelling does not interfere with the progress of the cars. Where there is a conflict, the individual traveller must yield the right-of-way. This requirement of the law is to subserve the public convenience and accommodation. As was said by the Supreme Court of Pennsylvania, it would be unreasonable that'a car load of passengers should be delayed by the unnecessary obstruction of the street railway track by every passing vehicle, horseman or footman. It is true that the travelling public and the street railway company has equal rights in using the public street. * * * But it is not correct to say that the right of the general public to use that particular portion of the public street covered by the street railway track is equal with that of the street railway company.”
The opinion in the above case does not disclose whether the injury to Johnson occurred at a street crossing, but this was wholly immaterial. The relative rights of street railway companies and pedestrians with reference to the use of that particular portion of the public street covered by the street railway tracks are precisely the same at crossings as elswhere.
The doctrine announced in Railway v. Johnson, above, is the outgrowth of a usage so universal and long continued as to ripen into law. Its object, as stated, is to subserve the public convenience. The reasons for the rule are: First, that street cars can only proceed along their tracks, whereas pedestrians, equestrians and travellers by vehicle may easily use other portions of.the street, and may readily stop or change their course. Second, the street cars, on account of their weight, momentum and motive power, can not be so easily stopped or controlled as travellers by other methods. Third, they are operated to afford the general public rapid transit, which would be greatly impeded unless, in cases of conflict, they have the right-of-way in the use of their tracks.
It is obvious, from all these considerations, that there can be no well grounded distinction between the relative rights of street railway companies and pedestrians and other travellers at crossings and between' crossings as to the use, in case of conflict, of that portion of the street covered by the car tracks. Since the public convenience is to be subserved, there is all the more cogent reason for applying the rule announced at crossings, in cities like Little Rock, for at crossings the public travel is more likely to be congested unless the rule is rigidly observed.
The authorities almost unanimously hold that street railway companies have the paramount or preferential right-of-way over other travellers in the- use of their tracks between street crossings. But there are adjudicated cases, and standard writers upon street railway law, that declare that street railways do not have the superior right-of-way on their tracks over other travellers at street crossings. Such authorities declare that at crossings neither has a superior right-of-way to the other. They say the car has a right to cross and must cross the street, and a vehicle or pedestrian has the right to cross and must cross the railway track; that their rights in this respect are equal, etc. Booth on Street Railways, § 304; Nellis on Street Railways, § 388; O’Neal v. Dry Dock, E. B. & B. R. Co., 129 N. Y. 125, 29 N. E. 84, and other cases cited in note; White in Supplement Thompson on Negligence, volume 7, § 1376; 2 Thompson on Negligence, § 1392; Joyce on Electricity, § 589.
But, while it is true that each has the equal right to cross, it by no means follows, and it can not be true, that each has the equal right to pass over the tracks at the same time where there is a conjunction in their line of travel. Necessarily, one or the other would have to yield, in case of conflict, or the public travel would be completely blocked.
We believe that the authorities which concede that street railway companies have the preferential right-of-way over their tracks between crossings, but which at the same time deny them this right at crossings, and which loosely declare that the rights-of-way over the railway track are equal at crossings, are all illogical and unsound. They ignore, or fail to discriminate between, the equal rignt to the use of the street as a public highway and the relative rights of each as to the use of that particular portion of the street occupied by the street car tracks. They overlook entirely the object of the rule of law stated in Railway v. Johnson, supra, as well as the reasons upon which it is based. The reason generally assigned by them why street railway companies have the preferential right-of-way between crossings is because pedestrians and other travellers may easily stop or turn aside from the railway track, whereas the cars can not do so. But this is only one reason for the preferential right between crossings. In assigning this as a reason, the other reasons, viz.: The difference in motive power, weight and momentum of the car, and the greater difficulty on that account in stopping and starting the same, are overlooked.
In the absence of statute or ordinance prohibiting it, travellers may cross the tracks of street railways anywhere between crossings as well as at the crossings, though at the intersection of streets the crossing by travellers is ‘much more frequent. The reasons given for the preferential right-of-way between crossings all exist as well at crossings, and a fortiori the rule should apply there in order that the general public may not be discommoded.
Answering the contention that the rule of preferential right-of-way in favor of the street car does not apply at street crossings, the Supreme Court of Wisconsin, in Stafford v. Chippewa, etc., 85 N. W. 1036, 1044, said: “That doctrine has been fully considered and rejected by this and by most courts. If it were to prevail as a measure of relative rights of a person operating a street car and a traveller upon the street, then each might run a race with the other, and the one that arrived at the crossing first demand as a matter of right that his contestant give way for him to pass. Such a system would greatly interfere with the execution of the public purposes for which street railway franchises are granted. ’ ’ The court concludes the discussion with a clear announcement and strong approval of the doctrine we have stated.
The Superior Court of Delaware, in Price v. Charles Warner Co., 42 Atl. 699, 703, holding that the doctrine applies to street crossings, says: “It would certainly be contrary to public policy and in violation of the rights of the railroad company to allow its tracks to be blocked at street crossings by the negligence of drivers of vehicles ; but a correct understanding of the rights and duties of both parties will avoid any confusion upon the subject.”
A careful consideration and analysis of the modern authorities only convices us that the doctrine as announced in Railway v. Johnson, supra, is an accurate statement of the law. See, Denver City Tramway Co. v. Norton, 141 Fed. 599, 604; Austin Electric Ry. Co. v. Faust, 133 S. W. 449; Tesch v. Milwaukee, etc. Ry., 84 N. W. (Wis.) 823, 828; McCarthy v. Consolidated Ry., 63 Atl. (Conn.) 725; see also Nappli v. Seattle Ry., 112 Pac. 89; Helber v. Spokane St. Ry., 61 Pac. 40, 41.
The first paragraph of instruction No. 1, given at appellee’s request, was the converse of the doctrine announced in Railway v. Johnson, supra. And the second paragraph, in which the court undertook to explain the doctrine announced in the first, told the jury that if appellee reached the crossing first, he had the right to use that particular part of the street, in the exercise of due care, to the exclusion of the street railway company. Under the instruction, as thus explained, the jury were warranted in finding that if appellee reached the particular point where the street car crossed the street in the line of his travel first he had the right to be there and to use that particular part of the street, if he was careful thereafter, regardless of whether or not he exercised ordinary care in arriving at that point. The law required appellee to exercise ordinary care in approaching the street crossing traversed by the street railway to ascertain whether or not a car was approaching with which he might come in collision if he proceeded in his regular course to cross the street car tracks. He could not cross the street car track at a crossing in front of a car that was approaching in its regular course without keeping his senses open to determine whether he would reach the track in front of the approaching car at the same time that the car would reach it. In other words, he had no right negligently to approach the street railway tracks at a public crossing, and by thus getting there first, claim that he had a preferential right-of-way. This follows as a necessary corollary to the doctrine above announced, declaring the superior right-of-way in the street railway company.
If a traveller, approaching a crossing, in the exercise of ordinary care, could see that a collision with an approaching car was inevitable or highly probable unless the motorman stopped the car, then it would be the duty of the traveller, under the above rule, to stop and let the car pass before endeavoring to cross, so as not to delay or impede its passage.
The instruction was misleading and highly prejudicial. Under it, no matter what may have been the negligence of the appellee in arriving at the particular spot where he was injured, if he got there first and exercised due care thereafter to avoid injury, he was entitled to recover, although if he had exercised ordinary care before arriving at the spot the injury would have been avoided.
The first paragraph of the instruction, as explained by the court in the second paragraph, was “in the teeth” of the law giving street railway companies where there is conflict the preferential right-of-way over their tracks at crossings and requiring pedestrians to exercise ordinary care in approaching crossings so as not to place themselves upon the street car tracks at the same time that the car moving along the tracks in the regular course would pass.
2. There is quite a contrariety of view among the authorities as to whether a failure to look and listen should be declared contributory negligence in any case as a matter of law, or whether it should be left in all cases as an evidentiary fact to be considered by the jury in passing upon the issue of contributory negligence. The authorities on the subject are collated in volume 3, pages 334-5-6, Am. & Eng. Ann. Cases, in a note to Birmingham Railway, Light & Power Co. v. John S. Oldham (141 Ala. 195); Orlando S. Wood v. Omaha & Council Bluffs St. Ry. Co. 22 L. R. A. (N. S.) 228. See also cases in briefs of counsel.
It would be of no practical value to review the cases, and would unnecessarily lengthen this opinion to do so.
The law is correctly stated in 36 Cyc. page 1537, as follows: “As a general rule it is the.duty of a person about to cross a street railroad track to look and listen for approaching cars in time to avoid an accident, and, if he sees an approaching car in close proximity, to stop until it passes, although he need not exercise the same high degree of care in this respect as is required in crossing a steam railroad. He must look and listen at the time and place which will be reasonably effective to afford him information of the presence of an approaching car, and ordinarily must look and listen in both directions, and must continue to look and listen until he is safely across, and if he goes along heedlessly * * * and allows his attention to become so absorbed that he gives no heed to his danger by reason whereof he is injured, he is guilty of contributory negligence precluding a recovery, notwithstanding negligence on the part of the company, unless the company wilfully or wantonly inflicts the injury, or fails to exercise ordinary care to avoid injuring him after discovering his peril. But ordinarily a person is not required to stop to look and listen before' crossing, except where the circumstances, as where the view is temporarily obstructed, are such as to require stopping in order to properly look or listen. As a general rule, however, the duty to look and listen is not an absolute duty, and it is not negligence per se to fail to look and listen for approaching cars before crossing, but such failure is negligence only when the situation and' surrounding circumstances are such that a person of ordinary prudence would have looked and listened. ’ ’
Joyce, in his work on Electric Law, in section 650, after reviewing many cases on the subject of the duty of travellers crossing electric railway tracks to look and listen, has this' to say: “At the beginning of this chapter, we have stated that the courts have not inclined to make the crossing of electric street railways subject to the same strict rules as are applied to crossing railroad tracks. In only two States are decisions to be found which favor a strict application of such rule, and in both of these States these decisions appear to be modified by later ones. In the majority of the States the rule seems to be, that it is the duty of a person about to cross tracks to look and listen and that a failure to do so is contributory negligence. ’ ’
And he concludes as follows: ‘ ‘ Ordinary care would generally require, it would seem, that a person should look both ways, or look and listen before crossing tracks, since we can conceive of but few cases where a reasonably prudent man would not exercise his powers of vision and of hearing before attempting to cross electric railway tracks; and in our opinion the degree of care defined in the different cases as necessary to be exercised varies but little, whether it be ordinary care, reasonable care, such care as a reasonably prudent man would exercise, or the requirement to look both ways, or to look and listen. So we think we are justified in stating the rule that it is the duty of the person about to cross the tracks of an electric street railway to look and listen for approaching cars, and that failure to do so is prima facie contributory negligence, not necessarily precluding recovery, but dependent as to its effect upon the circumstances of each particular case.” See also Booth, Street Railways, 311-12.
In determining whether, under the evidence, contributory negligence should be declared as a matter of law, the same rule obtains in cases of this kind, as in all other eases. If the evidence is undisputed, and men of ordinary intelligence could draw but one conclusion from it, then contributory negligence should be declared as a matter of law. But, if there is a conflict in the' evidence, or if from the undisputed evidence men of ordinary intelligence might reach different conclusions, then the isue of contributory negligence must be submitted to the jury.
Applying these familiar principles to the facts of this record, a majority of the court are of the opinion that the court properly submitted the issue of contributory negligence to the jury upon instructions free from prejudicial error. The failure upon the part of appellant’s motorman to sound his gong, as the ordinance required, in the opinion of the majority was sufficient, in connection with the other facts and circumstances in evidence to send the issue of contributory negligence to the jury, under proper instructions.
While prayer No. 3, granted at the instance of appellee, is not happily framed and can not be approved as a precedent, yet no specific objection was made to it, and in the opinion of the majority, when the prayer is taken in connection with prayers *4 and †7, given at the instance of appellant, there was no prejudicial error in granting it. (The writer, however, is of the opinion that the third instruction furnished no correct guide on contributory negligence, and that appellee was guilty of contributory negligence as a matter of law in not looking and listening for approaching cars before attempting to cross the railway tracks.)
For the error in granting appellee’s prayer for instruction No. 1 the judgment is reversed and the cause remanded for a new trial.
. If you find that plaintiff was guilty of contributory negligence in attempting to cross the track in front of an approaching car, without looking or listening for the car, or using such other means to protect himself from injury, as an ordinarily prudent man would have used under like circumstances, then he can not recover, unless you further find that the motorman became aware of his peril in time to have avoided injuring him by the use of ordinary care, yet failed to use such care.
. If you find from the evidence that the plaintiff was guilty of any negligence, which directly contributed to cause his injury, if any, then he can not recover in this action, unless you further find that the defendant became aware of his peril in time to have prevented his accident and failed to do so.