(dissenting). I agree, entirely, with the majority in holding that the court did not err in refusing to instruct the jury that the failure on the part of appellee to look and listen before he attempted to cross the street constituted negligence per se which barred his right to recover damages, and that the issue of contributory negligence was properly submitted to the jury upon instruction No. 3, which told the jury that it was a question to be determined from all the facts and circumstances proved in the case whether or not appellee was negligent in not looking to see whether a car was approaching.
, I think, however, that the opinion, while clearly expressing what the court means to decide on this subject, is unfortunate in containing quotations from authorities which make somewhat ambiguous statements of the law. This is true as to the quotation from the Cyclopedia of Law, and also from Mr. Joyce. The last paragraph of the quotation from the Cyclopedia gives a clear statement of what I understand this court holds to be the law, and it should not be obscured by the other part of the quotation. That statement reads as follows:
“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. ’ ’
The quotation from Mr. Joyce is in conflict with this and does not state the rule correctly, for a failure to look and. listen does not necessarily make a prima facie case of negligence. It is a question for the jury to determine, from all the facts and circumstances in the case, whether the traveller was exercising ordinary care for his safety when he attempted to cross the street.
I think this view is supported by the great weight of authority, and, to my mind, is consonant with sound reason and natural justice. The authorities cited in the briefs of counsel fully sustain this view. A few quotations from the decisions demonstrate the correctness of this rule.
The Supreme Court of Minnesota, in the case of Shea v. Ry. Co., 50 Minn. 395, 52 N. W. 902, said:
“The degree of care required at the crossing of a highway and an ordinary steam railroad is not the test of care required in crossing the track of a street railroad on a public street. Hence the rule in the former case, that one approaching the crossing must look up and down the track before attempting to cross, is not necessarily applicable to the latter. The failure to do so, is not, as a matter of law, negligence. ’ ’
The Connecticut court had this to say on the subject of the traveller’s duty:
“If other vehicles threaten his safety, or if his attention is engrossed or distracted by the apparent imminence of danger from other sources, he must act with ordinary prudence with reference * * * to the group of circumstances that makes up the situation by which he is confronted. How a prudent man would act in the face of concurrent and distracting dangers must, in the nature of things, be a question of fact to be passed upon by the jury, and not a question of law upon which the court may order a nonsuit or direct a verdict. ’ ’ Laufer v. Traction Co., 68 Conn. 475, 37 Atl. 379.
The Supreme Court of Maine, in the case of Marden v. P. K. & Y. Street Railway, 69 L. R. A. 300, said:
“While it may be found, as a matter of fact, in any case involving an accident by crossing in front of an electric car, that it was the duty of the person undertaking to so cross to look and listen, it can not be laid down as a rule of law that a failure to do this does per se constitute negligence. That is, whether the failure of the party injured to look and listen, before undertaking to pass in front of an electric car, constitutes negligence, is a question of fact, while the failure to do so in attempting to pass in front of a steam car is a matter of law. ’ ’
Many other apt quotations could be made from the cases cited in the briefs which clearly state the same rule.
The difference between steam railroads and electric street railroads is so wide in manner of operation and the circumstances under which travellers cross the tracks, that it would be unjust to subject the traveller to the same test. We have laid down the rule in many cases, that, in crossing steam railroads, it is only in exceptional cases that travellers are not held to the absolute duty of looking and listening up and down the track for the approach of trains. The exceptional cases are illustrated in some of our decisions. Tiffin v. St. Louis, Iron Mountain & Southern Ry. Co., 78 Ark. 55; Scott v. St. Louis, Iron Mountain & Southern Ry. Co., 79 Ark. 137.
Exactly the reverse of that rule is true as to measuring the duty of travellers about to cross street railroads, and the rule is ordinarily that it is a question to be determined from the situation presented in each instance where the traveller was guilty of negligence in failing to look and listen, and it is only in exceptional cases, where the situation is shown to have been such that there was no excuse for failing to look, and where different minds could not reach different conclusions as to the conduct of the traveller, that it can be said as a matter of law that he was guilty of contributory negligence.
We have held that, in cases of injuries by automobiles and other vehicles, there was no absolute duty on the part of the pedestrian to look and listen before attempting to cross the street. Millsaps v. Brogdon, 97 Ark. 469; Minor v. Mapes, 102 Ark. 351, 144 S. W. 219.
Why is it not just to declare the same rule in cases against street railway companies? They occupy the pub-lie streets in common with other vehicles and pedestrians without any superior rights except that others must get out of the way to let the cars pass. But when it comes to test the duty of a pedestrian with respect to danger from passing cars, the rule ought to he and is, I think, precisely the same as it is with respect to other dangers which infest the path of the traveller in crossing a crowded street.
I dissent from the conclusion reached by the majority that any of the instructions given by the court constituted prejudicial error which calls for a reversal. I think the case was fairly tried and the judgment ought to he affirmed.
I do not mean to say that the case of Hot Springs Street Railway Co. v. Johnson, 64 Ark. 420, is wrong or ought to he overruled, for the doctrine is correctly stated in that case that the rights of a traveller on the streets are not precisely equal with those of the street railway company. Their rights are equal and their duties reciprocal in many respects. They both use the street in common with others and have the right to do so. The duty rests upon each to exercise ordinary care to prevent a collision. It is only when their rights conflict, that is to say, when the pedestrian or other traveller is about to come in collision with the street car, that the traveller must turn aside and yield the right-of-way to the street car, for the latter can only pursue its way along the track. The instructions of the court on this subject are, therefore, not technically correct, hut I do not think that the error had any bearing upon the verdict of the jury and did not constitute prejudicial error. There was no •question involved in this case, from a practical standpoint, of conflicting rights between appellee and the street car. The question of the duty of one to turn aside and let the other pass did not arise. The questions in the case were, first, whether the motorman, on the one side, was guilty of negligence in failing to keep his car under control and give the signals and to prevent injuring appellee after discovering his perilous situation, and, next, whether appellee himself failed to exercise ordinary care for his own safety. Appellee was not attempting to cross the street in spite of the presence of the car. He stepped upon the track without seeing the car, and the question is whether in doing so he was guilty of negligence. He had already crossed the track, and, in order to get out of the way of an approaching automobile, he stepped back on the car track. The jury might have found from the evidence that he was guilty of negligence in failing to look for the approaching street car and in stepping on the track, but it can not be said as a matter of law that under those circumstances he was guilty of negligence in doing so, and the evidence was sufficient to warrant the finding of the jury that he was not guilty of negligence. At any rate, there was no question in the case of the enforcement of equal rights, technically speaking, and the jury could not have been misled by the expression in the instructions telling the jury that their rights were equal.
We are here for the purpose of reviewing cases to discover prejudicial error, and a case should not be reversed for a technical error which did not result in any prejudice.
It is my opinion, as before stated, that this case was fairly tried and that the verdict of the jury being supported by sufficient evidence ought to stand.
Mr. Justice Kirby concurs in these views.