dissenting:
When considered in connection with the other instructions and applied to the evidence, I cannot agree that the giving of Instruction No. 4 was prejudicial error. It left the question of the negligence of the defendant, when applied to the particular facts of this case, to the jury. This is the rule heretofore approved by this court.—R. G. W. Co. v. Boyd, 44 Colo. 119, 96 Pac. 781.
Neither can I altogether agree with the reasoning wherein the opinion states. “Had the motorman seen the plaintiff ‘near’ the track, under the circumstances and conditions detailed in evidence by herself and her witnesses, it would not follow that he had reason therefrom to believe that she was in a position of peril or would presently so be.” That would depend entirely upon the circumstances; such might or might not be the case, and was a question for the jury to determine. The *361motorman was protected from the storm by a glass front in the vestibule, and according to the testimony of numerous witnesses, had he been looking in the direction the car was going, instead of looking north, he probably would have seen the plaintiff struggling with her wearing apparel in an attempt to cross the street in a severe windstorm, with the dust and sand blowing in her face, with a kind of whirlwind filled with dust at tlie time, which might have prevented 'her from seeing the car, and hence make her oblivious of her danger; for which reasons, the question of her'being in a position of peril depended, to a certain extent, upon her knowledge of the approach of the car, or her ability to see it upon account of the storm, and if the jury were of the opinion, from the evidence, that these circumstances and conditions would cause a reasonably prudent man to believe that she was in a position of peril, upon account óf these facts when near the track, they would be justified in thus finding, for which reason, as there nsed, the words “near or upon” could have no other meaning than dangerously near the tracks, that is in a dangerous position; the context thus indicates and the jury could not have understood it otherwise, especially when considered' in connection with the other instructions.
In Instruction No. 6, her position is spoken of as a dangerous one. In No. 7, the jury were told.
“That it is the duty of a pedestrian about to attempt to cross the tracks * * * to look out for himself and to exercise such ordinary care as would be exercised by a reasonably prudent person under the attending circumstances. If you should find and * *' * that the plaintiff, before stepping upon the car tracks of defendant, failed to exercise the care above mentioned, then you should return a verdict for the defendant. ’ ’
*362The words “about to cross the tracks” “before stepping’ upon the car tracks, etc., also “car approaching stepped upon track” and similar phrases are found throughout the instructions which clearly indicate that the word “near” as used in Instruction No. 4, was intended in connection with danger, meaning dangerously near and was certainly thus understood by the jury.
By Instruction No. 8, the jury were told:
“If you shall find * * * that the plaintiff, just before stepping upon the tracks of the defendant company, stopped and looked in the direction of the water car of the defendant, and that under the circumstances a reasonably prudent person operating said car would have had a right to believe from said acts of the plaintiff chat she had seen said car approaching, and did not intend to step upon said tracks until after said car had approached the point opposite which she was standing, then the defendant company was under no obligation to slacken the speed of its said car, and that those in charge of the car had a right to permit it to continue in a westerly direction without stopping it until such time as in the exercise of ordinary care those in charge of the car should have known that the plaintiff was about to place herself in a position of danger by stepping on said tracks.”
We thus see that the company’s side of this question was fairly and fully submitted to the jury on the testimony; that the company’s rights in this respect were fully protected by the latter part of this instruction; that if there was any uncertainty as to the proper meaning to be given that portion of Instruction No. 4 held bad, it was made certain and altogether cured by the giving of Instruction No. 8; all of which convinces me that there was no prejudicial error in the instructions.
*363The ease of Chicago Company v. Church, 49 Colo. 582, 114 Pac. 299, refers to a rule concerning livestock killed by a railroad train in the country, and I do not think is applicable to the facts here. I would hate, at least, to think that the degree of care required by a street railway company, at a busy corner, in the heart of a city, is to be measured by the same rules involving the killing of livestock by railroad trains in the country. Besides, there is no similarity in the instructions, as a reading of them will disclose. The one in the Church case says nothing about the cattle being near or upon the track, and for this reason, as the opinion says:
“It, in effect, declares that if the -employees in charge of the train did see, or, in the exercise of ordinary diligence, could have seen the animals, regardless of where they were, so that by ordinary care the train might have been stopped before . striking the animals, the defendant was liable. ’ ’ But such is not the case here. This instruction tells the jury.
“If * * * the defendant’s motorman * * * by the exercise of reasonable care could have discovered her near or upon the track, and in time to have stopped said car,” etc.
The word “near” is coupled with “or upon,” which in the way used meant her location immediately preceding going upon the track, which is also convincing that as used it meant dangerously near and in the same position which Instruction No. 8 refers to wherein it says “just before stepping upon the tracks,” and as therein used the opinion appears to concede that it-makes a correct concrete application of the same doctrine to the facts of the case.
As I read it, the case of Kent v. Treworgy, 22 Colo. App. 441, 125 Pac. 128, is not applicable to the facts .here upon account of the dissimilarity in the instruc*364tions. In- the Kent case the instructions assumed to tell the jury what constituted negligence, it was for this reason they were held had. While in Instruction No. 4 the'court avoids this and throughout has left it to the jury to determine whether the motorman was or' was not negligent, and whether he did or did not use reasonable care concerning any phase of the case. It also imposed the exercise of due care upon the plaintiff, and Instruction No. 8 left it to the jury to determine whether by her actions he had reason to believe she was about to go upon the track or not; while in the Kent case no duty or liability was imposed upon the plaintiff, which made the instructions specially objectionable, as pointed out by the court.
Decided April 6, A. D. 1914. Rehearing granted and judgment reversed April 5, A. D. 1915.Mr. Justice Teller concurs in the views herein expressed.