On Motion for Re-Hearing.
Counsel for appellant in their brief in support of their motion for re-hearing, lay stress upon the contention that the instruction quoted in the opinion requires a higher degree of care than is justified by law or precedent, and say:
“This conclusion of the court, if allowed to stand, will have a far-reaching effect on the trial of all damage cases, in that it will require, upon the part of the employees in charge of a car, that the same should be operated at all times upon the. theory that children may come upon the tracks. This is contrary to all established principles, for the reason that in operating a car, or any other vehicle, the degree of care required in being watchful for the safety of children is of a higher character than that generally applicable, and is only brought into play when children are either actually seen upon the track or when in the exercise of reasonable care they should have been seen.”
Courts have used various expressions as to the degree of care required in such cases. Thus in the following cases the term “ordinary care,” is used: Hanley v. Ft. Dodge Light & Power Co., 133 Iowa, 326, 107 N. W. 593, 110 N. W. 579; United Rys. & Elec. Co. v. Carneal, 110 Md. 211, 72 Atl. 771; Galveston City Ry. Co. v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639. And in other cases “high degree of care”: Bergen Traction Co. v. Heitman, 61 N. J. Law, 682, 40 Atl. 641. And, again, “highest degree of care”: Murray v. Patterson Ry. Co., 61 N. J. Law, 301, 39 Atl. 648.
Notwithstanding these differing expressions as to the degree of care required, they all amount to this, that the *497person in control of the car must exercise such care as a reasonably prudent man would exercise if placed in the same situation and surrounded by the same conditions.
What would be the requisite degree of care under one state of circumstances would not be under another. What would be reasonable conduct on the part of a motorman where his car is proceeding through a wide thoroughfare with children playing upon the sidewalk many feet distant, would not justify the standard where the street is narrow and the sidewalk much nearer the track. In such a case it is the proximity of the sidewalk to the track which bears upon the question of negligence in the operation of the car and not the broad statement that danger need not be anticipated where the child is playing upon the walk. Each case must depend upon the circumstances and conditions surrounding it, and the question of negligence is to be determined by these circumstances and conditions, and what a reasonably prudent man would have done in the same situation.
There is evidence in this case from which the jury might reasonably conclude that the motorman by the exercise of diligence could have seen the child at such distance in advance as to have stopped his car if under proper control, and to have avoided the accident.
And where children are upon the street through which a car runs the law imposes upon the motorman the duty of keeping the car under such control as a reasonably prudent man would exercise under the same circumstances and conditions.
What would be a reasonable rate and degree of control consistent with the proper degree of care required in some cases might, under a different state of facts, amount to negligence. Bringing the'car to a full stop may, under certain conditions, be the only course which fulfills the requirement set, while in others it is only necessary that the car should be under such control that it may be brought to an immediate stop. Sheffield Co. v. Harris (Ala), 61 So. 88; Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, 63 N. *498E. 907, 58 L. R. A. 270, affirming 95 Ill. App. 314; Danna v. City of Monroe, 129 La. 138, 55 South. 741; Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106; Simon v. Metropolitan St. Ry. Co., 231 Mo. 65, 132 S. W. 250, 140 Am. St. Rep. 498; Cytron v. St. Louis Trac. Co., 205 Mo. 692, 104 S. W. 109; Meeker v. Metropolitan St. Ry. Co., 178 Mo. 173, 77 S. W. 58; Wagner v. Metropolitan St. Ry. Co., 79 App. Div. 591, 80 N. Y. Supp. 191; McFarland v. Elmira Water, Light and Railroad Co., 136 App. Div. 194, 120 N. Y. Supp. 292; Tatarewicz v. United Traction Co., 220 Pa. 560, 69 Atl. 995; Galveston City Ry. Co. v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639; Monrean v. Eastern Wisconsin R. & L. Co., 152 Wis. 618, 140 N. W. 309.
There can be no hard and fast rule as to the exact rate of speed or degree of control to be exercised where children are in the street but there is a rule applicable in all cases, that the,motorman must operate his car at the rate of speed, and have it under such control, as a reasonable prudent man would if placed in the same circumstances. The question of negligence must in each case, be determined by the facts and circumstances as they existed at the time of the accident.
When a child is in a position of danger, the motorman has no right to speculate as to what the conduct of the former may be. He has no right to assume under such circumstances, that the child will abandon such position and proceed to one of safety, and continue regardless of the peril, to operate his car, acting upon such assumption. His belief as to what the child will do will not relieve him of his duty to exercise the required care and control over his car. Citizens’ St. Ry. Co. v. Hamer, 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778; Simon v. Metropolitan St. Ry. Co., 231 Mo. 65, 132 S. W. 250, 140 Am. St. Rep. 498.
It is likewise the duty of the motorman, and particularly in a thickly populated portion of a city, to keep a careful lookout at all times to see whether a person is upon the tracks or by reason of his approaching them, is in a position of peril. While this rule is not confined to *499children, it is all the more important to be observed in such case, and a.proper performance of that duty carries with it the obligation of the motorman to exercise his power of observation for the purpose of discovering whether children are in a dangerous position either upon or near the tracks. Hanley v. Ft. Dodge Light & Power Co., 133 Iowa, 326, 107 N. W. 593, 110 N. W. 579; Louisville Ry. Co. v. Bryant, 142 Ky. 159, 134 S. W. 182; Baird v. Citizens’ Ry. Co., 146 Mo. 265, 48 S. W. 78; Bergen County Traction Co. v. Heitman, 61 N. J. Law, 682, 40 Atl. 641.
The jury in this case was fully justified in finding that the motorman did not ring the gong or give other warning of the approach of the car, and plaintiff in error now contends that inasmuch as the car was not immediately approaching a street, it was not its duty to ring the gong. This is not the law. Whenever a car of a street railway company is rapidly approaching a point in the highway where existing conditions render it apparent that the danger of injury to the public will be materially lessened by sounding the bell, it is the legal duty of the company and its motorman to sound the bell, and the failure to do so is negligence. Murphy Administrator v. Street Railway Co., 73 Conn. 249, 47 Atl. 120. It is clearly as much the duty to make this effort to minimize or avoid danger at any place on the highway as at street crossings. Indeed, the-placing of the gong upon the car may be regarded as recognition by the company of the duty to keep a careful lookout. — Consolidated City & C. P. R. Co. v. Carlson, 58 Kan. 62, 48 Pac. 635; Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106; Butler v. Metropolitan St. Ry. Co., 117 Mo. App. 354, 93 S. W. 877; Byrnes v. Brooklyn H. R. Co., 148 App. Div. 794, 133 N. Y. Supp. 243; Hoon v. Beaver Valley Traction Co., 204 Pa. 369, 54 Atl. 270.
It is quite true that accidents frequently occur as the result of a child suddenly leaving a place of safety and darting upon the tracks. And that while a motorman *500may not speculate as to the course a child may pursue, yet where he sees one at such a distance from the track as to be in no danger and there is no apparent intention of the child to abandon that position, a failure to run the Car at the same rate of speed as where one is dangerously near the track or to have the car under the same degree of control as would be required in the latter case, will not constitute negligence. — Perryman v. Chicago City Ry. Co., 242 Ill. 269, 89 N. E. 980, affirming 145 Ill. App. 187; Cloud v. Alexandria Elec. Rys. Co., 121 La. 1061, 46 South. 1017, 18 L. R. A. (N. S.) 371; Rollo v. City Elec. Ry. Co., 152 Mich. 77, 115 N. W. 727; Graham v. Consolidated Traction Co., 64 N. J. Law, 10, 44 Atl. 964; Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109, 81 Am. St. Rep. 871. But this was an issue of fact presented to the jury in this case, and the finding was against the contention of the plaintiff in error.
It will be seen from a review of the authorities cited, that neither the trial court nor this court in the opinion, has extended nor enlarged the doctrine of degree of care required in such cases beyond that sustained and announced by the overwhelming weight of authority.