dissenting.
I must dissent from the majority opinion. By the authority of a long line of decisions by this court the case should have been submitted to the jury upon the testimony produced, and there is in my opinion, no case decided by the court that supports the conclusion of the majority.
It is said that the effect of the facts in this case is the. same as in the ease of Headley v. D. & R. G. R. Co., 60 Colo., 500, 154 Pac. 781. The effect of the facts in any law case is generally to be determined by the jury. But there is no similarity in the facts themselves, as between this case and the Headley case, except that in both cases the defendants were admittedly guilty of negligence per se. In that case by the violation of a city'ordinance, and in this, by the violation of the statute of the state.
In this case, as in that, the court is required to deal with the facts, as bearing upon the question of contributory negligence alone. There the deceased attempted to cross four parallel tracks, and it was said, that “it is the imperative duty of one attempting to cross several tracks, not to cease his watchfulness, upon crossing the first, or second, in safety, but to continue to exercise his senses, and be observant of the obvious conditions until the crossing has been accomplished, unless the railroad company through its acts has produced a condition of apparent safety, where reasonable men might have different views as to the necessity of looking and listening.”
Here, there was but one track and that not in a city, but in the open country, and not where switch engines as well as trains were constantly passing in both directions on all four of the tracks. There the court said:
“He neither looked nor listened, or, if so, acted other than recklessly after reaching the space between the south and north bound main lines. While it may be true that he was not, as a matter of law, in duty bound to stop upon *590reaching such space, he was, nevertheless, required to look and listen, or act with reasonable prudence, before entering upon and attempting to cross the north bound main track.”
Here, the plaintiff stopped, looked and listened, and there is not any indication of recklessness. It was clearly within the province of the jury to say whether or not, in such stopping, looking and listening, in the light of the surrounding facts and attendant circumstances, he exercised ordinary prudence and care.
In that case the court said: “The ground is level, and the tracks straight, with an unobstructed view in each direction for at least three-fourths of a mile.” In this case the ground was not level. The road along which plaintiff was driving was in a depression, with the ground elevated to the direction from which the train was coming, and there were palpable obstructions to view; caused by trees, buildings and piles of lumber. The track was not straight, but approached in the form of a curve toward the crossing.
But in that case it appears that the deceased not only failed to stop, look or listen, but rode ahead on his bicycle from a point about two hundred and fifty feet from the crossing, without stopping, directly and heedlessly, upon the crossing, under circumstances described by the court as follows:
“He was next seen about 15 feet west of the coal yard track, and hence about 35 feet from the southbound main line, and approximately 45 feet from the point of collision. He was then riding at a speed of about 4 or 5 miles per hour. At that moment an 8 or 10 car passenger train with two engines, known as Train No. 1, traveling south at the rate of 25 or 30 miles an hour, on the southbound main line track, came upon the crossing and immediately after it had passed over, the ‘Uncle Sam’ train came upon the crossing. The trains were making considerable noise, and some smoke and steam which had escaped from Train No. 1, was blowing to the southwest in the direction of, and over, the Post coal yard, but in no sense interfered with *591seeing- by the different witnesses; — except one who was standing on the west side of the southbound main line, just east of the Post coal yard board fence — the things which took place on the crossing. As ‘Uncle Sam’ train approached, a witness was walking on the track in the same direction the train was moving, and when about 200 feet south of the crossing, stepped off to the east for that train to pass. At this time the bell of the engine pulling the ‘Uncle Sam’ train was ringing, and Train No. 1 was passing on the southbound track. This witness, as the engine of ‘Uncle Sam’ train passed, looked ahead and across the pilot thereof and saw the wheel of a bicycle on the crossing, coming on the spa’ce between the southbound main line and northbound main line, which at that point are 8 1-3 feet apart. Another witness — the one standing on the west side of the southbound main line just east of the Post coal yard board fence, approximately 230 feet south of the crossing, and whose vision was somewhat obscured by the smoke, etc. — looked north to the crossing when the rear end of Train No. 1 rendered it possible* and saw the deceased on his bicycle turning to keep from hitting the ‘Uncle Sam’ train, and saw him fall. Another witness who was standing in the Post coal office, looking through a glass door in the direction of the crossing, a distance of approximately 45 feet, saw the collision. This witness testified that the whistle of the ‘Uncle Sam’ engine was blowing, and that “ ‘Uncle Sam’ hit the crossing just an instant later than the No. 1 cleared the crossing;” that the latter had cleared the crossing between 20 and 40 feet; that when witness first saw the deceased he was sitting upright on his bicycle, riding toward the east with his hands on the handle bars, and it appeared to witness that the front wheel of the bicycle struck the side of the pilot; the pilot beam, at the rear of the pilot, hit him. Another witness testified that he was at the scales in the coal yard (which was about 50 feet from the point where the collision occurred, and in plain view thereof), that he heard ‘Uncle Sam’ coming in, and saw deceased falling alongside *592the engine, and subsequently saw the track of the bicycle where it had turned; that No. 1 was then, after witness had run to the body of deceased, from 125 to 150 feet south of the crossing. It is alleged in the complaint and admitted in the answer that ‘immediately’ after the Train No. 1 passed over the crossing the ‘Uncle Sam’ train entered thereon and passed over the same.”
Thus, with both trains on different tracks, approaching the crossing in opposite directions, and within his plain view, he. recklessly proceeded in an effort to pass! behind one train, in an apparent effort to cross before the second train should reach the point where he attempted to cross. Certainly under this state of facts there was an undisputed want of due care.
That case was by a divided court. I participated in the opinion but I could not conceive that it could ever be construed to apply to the facts appearing in the case at bar, and if it is finally so construed, I am ready to vote to overrule it at the first opportunity.
The majority opinion overlooks, if it does not in fact overrule, the doctrine declared in the case of Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501, 98 Pac. 808. In speaking of the fule of law as to when the question of negligence or contributory negligence may be determined as a matter of law, it was said:
“Cases frequently arise wherein it becomes the duty of the trial court to determine the question of the negligence of the plaintiff, as a matter of law, but those are cases where the testimony will allow no other inference; and hence, it follows that where the question of negligence depends on a state of facts from which different minds may honestly draw different conclusions on that issue, the question must be submitted to the jury for determination. Colo. Central R. R. Co. v. Martin, 7 Colo. 592, 4 Pac. 1118; Lord v. Pueblo S. & R. Co., 12 Colo. 390, 21 Pac. 148; Solly v. Clayton Id. 30, 20 Pac. 359; D. & R. G. Ry. Co. v. Spencer, 27 Colo. 313, 61 Pac. 606. 51 L. R. A. 121.”
*593And again it was there held-:
“The obligations, rights and duties of railroads and travelers upon intersecting highways are mutual and reciprocal, and no greater degree of care is required of one then the other. True, the railroad company has the right to precedence at such crossings; but both parties, in the exercise of their respective rights, are nevertheless required to exercise reasonable care in enjoying them — the one to avoid inflicting injuries, and the other to avoid being injured. A person attempting to cress a railroad track at a public crossing in a city has the right to expect that the railroad will give the signals required by law to warn him of the approach of a train, and that it will not be run at an excessive and dangerous rate of speed, and if he is without fault and such neglect and act on the part of the road results in his injury, then he can recover. Texas & Pac. Ry. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 132, 67 Sup. Ct. 703; C. & E. I. R. R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 766; Cleveland, C., C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N. E. 985.
Speaking of the degree of care required by travelers, it was held:
“So that, in determining the degree of care which a pedestrian about to cross a track at a public crossing in a city must exercise, the general rule is, that the pedestrian who does not know of the negligence of a railroad company in running its train at an unlawful rate of speed, and in failing to give the required signals of its approach, and such want of knowledge is not the result of his failure to exercise a degree of care, he is only required to exercise that degree of care which ordinarily prudent persons will exercise when the railway company is also exercising the care which the law imposes upon it, in the operation of its trains at street intersections.”
In that case the traveler looked but once, and it was contended as in this case, that this was insufficient. It was said in answer to this argument:
“It is true that had plaintiff looked the second time, just *594prior to stepping upon the track, he would have discovered the approach of the engine; but the law only required that he should stop, look and listen at the time and place necessary in the exercise of that degree of care which an ordinarily prudent person would have exercised in similar circumstance; and whether by looking only once, at the time and place he did, under the circumstances narrated, was a proper exercise of that degree of care which the law imposes, depended upon other matters which should be taken into consideration. Where in case of an injury at a crossing, it appears that the person injured did look for an approaching train, it does not necessarily follow, as a rule of law, that he has no remedy because he did not look at the precise time and place when and where looking would have been of the most advantage, and probably avoided the injury. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised the degree of care which the law imposes upon him. Rodrain v. R. R. Co., 125 N. Y. 526, 26 N. E. 741.”
It will be seen from that opinion, that in considering the question of contributory negligence, the plaintiff had a right to expect that the engineer would give the signals required by law to warn him of the approach of the train, and that the company will not run its train at any excessive or dangerohs rate of speed The majority opinion not only ignores this lawful right but positively denies it.
The rule stated in the Nichols case, in determining the degree of care to .be exercised by the plaintiff, is as clearly ignored. But worse than this, the majority opinion repudiates the following declaration in the Nichols case:
“Where in case of an injury at a crossing, it appears that the person injured did look for an approaching train, it does not necessarily follow, as a rule of law, that he has no remedy because he did not look at the precise time and place when and where looking would have been of the most advantage, and probably avoided the injury. Many circumstances might be shown which could properly be con*595sidered by the jury in determining- whether he exercised the degree of care which the law imposes upon him.”
The majority opinion does in effect determine as a matter of law, that plaintiff, either because he looked but once, or because he did not look at the time and place when and where looking- would have been of the most advantage, was guilty of contributory negligence, and utterly ignores the right to have considered all the circumstances in connection therewith, in determining the question of due care.
The majority opinion quotes extensively from the testimony of the plaintiff, who palpably neither speaks nor understands the English language with any degree of accuracy, and if he had an interpreter, such interpreter is but little if any improvement over the plaintiff in this respect.
Such testimony and the force of it is plainly much better understood and interpreted by the jury and the court in whose presence it is given, than by one who has nothing before him but the record wherein it is attempted to be reproduced. But the majority opinion overlooks the testimony of an apparently clear headed English speaking-witness, as to surrounding conditions and circumstances bearing on the accident, and whose testimony is certainly entitled to consideration in the absence of nothing to the contrary.
The witness, named Garner, whose father’s house is located west of the crossing, testified that he had been for three years a railroad brakeman; that at the time he was about 830 feet west of the crossing and about 35 feet from the track. That his attention was attracted by the speed of the train; that the engine and cars were swaying; that the train was a freight train of about fourteen or fifteen cars; that in his opinion it was going at the rate of fifty miles an hour when it passed him; that there was a whistling post about a thousand feet west of the crossing, and about two hundred feet west of the point where he was standing at the time; that there was no whistle blown nor bell sounded, until about the instant the engine struck *596plaintiff at the crossing, when there were some short blasts of the whistle; that the train ran about 475 yards after striking plaintiff before stopping; one horse was killed; pieces of the wagon were scattered along the track for 1400 feet. Speaking of the obstruction to view from the road where plaintiff was driving, and for a distance of four hundred feet from the crossing west, he says: There is a cluster of trees and one cannot see; that his father’s stable, and three or four clusters of willows are on the ground as it raises to the cut, and along the top of the cut its southern side, were corrals and stacked lumber; that approaching the crossing as plaintiff did, a glimpse of the track may be obtained through the trees at a point about 77 feet back from the crossing, this through an opening about a foot and a half wide. That 25 feet from the crossing, one cannot see up the track from where the train, was approaching.
It will be observed that this testimony is not in accord with some of the deductions by the majority. In the majority opinion is inserted a photograph of the crossing where plaintiff was injured, but a photograph may be very uncertain, and even deceiving as regards angles, directions and distances when considered alone. The court speaks of a map but does not include it as a part of the opinion, and which is here inserted for a possibly better understanding.
It will be noted that in looking up the highway from the crossing, in the direction from which plaintiff was moving, and up the railroad track in the direction from which the train was approaching, the space between, forms an acute angle of about 45 degrees. So that to the extent of this angle, the train and the plaintiff were moving toward a converging point, to-wit: the crossing, the apex of a triangle. This is far different from crossing at right angles, where one may see directly to the right or left. This triangle contained the trees and other obstructions.
It will be seen that the plaintiff, if facing the direction in which he was driving, and upon reaching the first point of view between the trees and the track, could see but little *597of the track to the left of him. Before he can view the track for any considerable distance, he must turn his head or body to the left sufficiently, or to the extent of three-fourths of an “about face,” before his vision could follow the line of the track, and according to the finding of the court, this could not occur until the heads of his horses were at least over the first rail. With this in mind the question of whether or not he was reasonably cautious in proceeding the short distance of 77 feet, after stopping, looking and listening, was a question for the jury in'the light of all the surrounding circumstances.
*0
*597The opinion recites that “A map prepared by defendant and introduced by plaintiff, shows that from any point on the wagon road, 25 feet south from the crossing where, the accident occurred, "there is an open and unobstructed view along the track and right of way of defendant’s road, west for a distance of 432 feet from the crossing, etc.
This may be deducible from the map, but it is in diametric conflict with the testimony of the witness Garner, as to the physical fact, and likewise to the construction placed on the testimony in the case, by the trial court.
The witness Garner testified as follows upon this point:
“Q. How close do you get to the track before you get a clear view? A. In seven feet from the track you get a clear view, eleven feet you get an open view, but not exactly clear. From eleven feet you can see down the track probably one hundred and' twenty to one hundred and fifty feet. The roots of the first group of willows (marked ‘a’ on the map) is seventeen feet from the C. & S. southern rail. The branches extended out on both sides over the wire fence that touches the cattle guard.”
And on cross-examination testified as follows
“Q. Now, when a man is standing 25 feet back from the track in the middle of the road, what is to keep him from seeing at least 150 feet up the track? A. Well, back 25 feet I do not think he could see up the track on account of this cluster of willows in here. Their roots are 17 feet from the rail, the roots are, some of them there, probably *598six inches, some probably eight inches through. The clump of willows are about 120 feet from the center of the public crossing. I do not know how wide the foliage on them is, I did not measure how far the foliage extended from the trunks. The willows are about 10 or 15 feet high. I did not measure their height. They are old willows, been there for years.”
The trial court gives his conclusion deduced from testimony upon this point as follows:
“If the plaintiff had looked, 30 yards back from the track, which must be admitted, there would be no question but that he could not have seen the train according to its speed. (45 miles per hour.) It was' not in sight. It was away down the track so that it would have been impossible for him to have seen it. It is practically undisputed that there were no other places where he could have seen the train, on account of the obstructions, trees, and so forth, until he had gotten up within 10 or 15 feet of the track. (This is from his seat in the wagon.) The horses’ heads would be at or on the track.”
If then there is such a divergent view as to the facts as between the showing by the map, and the oral testimony, the question should have been submitted to the jury for determination.
The plaintiff testified that at a point about thirty yards from the track crossing the highway, he stopped his team, stood up in the wagon and looked and listened to see if a train was approaching. That he could not see or hear it. His testimony on cross-examination would seem to indicate that there was no place where he could see through the trees at the point where he stopped to look. It is probable that in this testimony he referred to the distance after stopping, and between that point and the approach to the crossing. He afterward corrected this testimony to show that at the place where he stopped to look, he could see through the trees a distance of about 180 feet. The witness Garner testifies that by actual measurement there is *599an opening through the trees about a foot and a half or two feet wide, where one could see the track, seventy-seven feet from the crossing. That he examined this place for the purpose, a few days after the accident while the trees were in full foliage, and ascertained the fact to which he testified.
The difference between the estimate of plaintiff, of thirty yárds, and the measurement by Garner, is so slight as to be immaterial. It is the difference between the estimate of 90 feet and the actual measurement of 77 feet. Then, the testimony shows that he did stop, look and listen, where he could see the track through the trees at a point 77 feet from the crossing. Under the doctrine in the Nichols case, it was plainly for the jury to determine whether under all the circumstances his acts were sufficient to show want of reasonable care upon his part.
Under the authority of the Nichols case and the authorities generally, the plaintiff had the legal right to have certain facts and circumstances as bearing upon the question of his alleged contributory negligence.
He had the legal right to have considered the fact that defendant had erected a whistling post at a point about 1,000 feet from the crossing and upon the curve in the track, as indicating an admitted duty and custom, as well as an admission that the crossing was dangerous. He had the legal right to have considered as bearing upon the question of the charge of contributory negligence, the fact that defendant did not cause the whistle to blow, or the bell to ring, at this point or at any other time, before the instant he was struck by the engine. He had the legal right to have so considered, the fact that the train was running-down grade, and the consequent and comparative slight noise the train was making in its approach to the crossing.
He had the legal right to have so considered the excessive and reckless speed at which the train was running at the time. He had the legal right to have so considered the custom of the railroad in these respects, and his own familiarity with that custom, by reason of the fact of his *600daily travel over the highway as a market gardener for several years. He had the legal right to have so considered the statute of the state prohibiting a railroad train from crossing the track of a cross railroad without stopping, and which if complied with by the defendant in this case, the accident would have been clearly avoided.
These are all facts and circumstances competent as bearing upon the question of contributory negligence. These legal rights were all denied by the trial court, and now by this court. •
Section 5499, Rev. Stat. 1908, provides:
“In all cases where two railroads shall cross each other, every train on approaching such crossing shall come to a full stop immediately before it reaches such crossing, and shall cross such track at a speed not exceeding four miles per hour.”
By the succeeding section, failure to comply with the provisions of said section is made a misdemeanor on the part of the engineer or other person in charge of the locomotive or train. The D. & R. G. Co. track crosses the defendant’s track about 30 feet west of the highway. The defendant’s train did not stop but continued over it at the speed of about fifty miles an hour.
The majority opinion states that defendant’s brief on rehearing, asserts that the D. & R. G. Co. was not operating its track, and that it was only a switch. There is no such fact appearing in the record, and it is hardly just to plaintiff to bind him by a statement in his opponent’s brief, which finds no justification in the record.
It appears in proof, that at the particular point, the two railroads cross. The statute is a general statute and as such it was the duty of the trial court to take judicial notice of it. Beside, the statute does not confine the duty of railroads, in this respect, to main tracks, nor to tracks not at the time operated. The existence of the law and the plaintiff’s palpable violation of it, not Ónly established negligence on the part of the defendant, but was a circum*601stance which the. plaintiff was entitled to have considered as bearing upon the charge of contributory negligence.
In this connection I am impressed with the view that the majority opinion does not sufficiently weigh the rule that the law requires that the defendant must prove the contributory negligence it alleges, but in effect has placed the burden on the plaintiff to prove that he was not negligent.
In support of the position I have taken, I may further say that the establishment of the whistling post indicates such duty upon the part of the engineer. If in addition to this fact the plaintiff could have proved a habit in this respect, which the court declined to permit him to do, and if he could have shown that he was familiar with such habit and relied thereon, it would have been a strong circumstance for the consideration of the jury in determining the question at issue.
In a case presenting a very similar state of facts as the case at bar, it was said in Nash v. N. Y. C. & H. H. Ry., 1 New York Supplement, 269, affirmed by New York Court of Appeals, 117 N. Y. 628, 32 N. E. 1128:
“It was certainly competent to show that the defendant had erected whistling posts, and was in the habit of whistling' near this crossing, upon the question whether the plaintiff, under all the circumstances, exercised due care. It was extremely difficult for a person approaching this crossing to see a coming train. Besides, the track was so constructed as to muffle the sound of a running train. The plaintiff testified that he stopped about 75 feet away from the track, and listened to ascertain if any train was coming. If it had been the universal custom to give warning at this place, and that was known to the plaintiff, it was material for the jury to know this fact in order to judge properly of the conduct of the plaintiff. It was also a question for the jury as to defendant’s negligence. While it is true there is no law making it obligatory -upon a railroad company, to give warning except at public crossings, yet they may make a law for themselves. If such company establish a uniform practice to give a signal at a crossing, although private, but frequently used, and such practice *602is notorious, such conduct justifies the expectation of those having occasion to cross that such warning will be given; and a failure to give the accustomed warning is a proper fact for the jury to consider in passing upon the question of the defendant’s negligence. Ernest v. Railroad Co., 39 N. Y. 61, 100 Am. Sec. 405; Cordell v. Railroad Co., 64 N. Y. 535.”Decided March 5, A. D. 1917. Affirmed on rehearing December 3, A. D. 1917.
In this day courts are prone to unconsciously perhaps assume too much of the prerogatives properly belonging to the jury, and to restrict that constitutional body in the exercise of its rightful powers. In this there is grave danger that this Gibraltar of English and American liberty may be eventually undermined.
It seems to me that in this case the strongest argument in favor of submitting the cause to the jury, is the widely divergent views among the members of this court, not only as to the conclusions which may properly be drawn from the testimony, but as to the testimony itself. If the judges of this court so differ in the proportion of four to three, can it be said that there is but one inference to be drawn, or that different minds may not honestly draw different conclusions. If the minds of the members of this court may so honestly differ, why may not the minds of jurors just as honestly differ. The logical deduction from the opinion of the court is that minority judges, and jurors generally, either do not have rational minds, or that they may not honestly reach a conclusion differing from the majority. The important matter is the answer to the question, has the long established rule we are considering, ceased to he a governing principle of the law, or is the submission of cases of this character to the jury, to be determined by the personal view of a majority of the judges, as to whether or not negligence has been proven in the particular case. Indeed, the trial judge in this case clearly ignores the rule, and based his action on his personal conclusion, for he said in his findings, “I am clearly of the opinion that the plaintiff is guilty of such contributory negligence that under the law he is not entitled to recover.”