dissenting in part and concurring in the conclusion.
I regret my inability to fully agree with the majority opinion. The case is here on the motion of the plaintiff for a rehearing for the purpose of having us overrule our opinion reversing the judgment of the district court (95 Neb. 648), and it also has been heard upon certain assignments made by the defendant. There was a verdict and judgment in the court below for $3,900 in favor of the plaintiff. The plaintiff was driving his wagon on the street car track, and was going south over the west line of said track on Twenty-fourth street in Omaha. His excuse for being on the street car track with his wagon is alleged to ' be that there was another wagon on the west side of the street going in the same direction which he was going, and that he went upon the street car track for the purpose of going around this wagon. Witnesses testified at the trial that there was no such wagon. The plaintiff’s testimony was not corroborated in full by the testimony of any witness. Paul Meek,.a boy, testified for the plaintiff that he saw McKennan go around a standing team, but could not see whether the team was hitched or had a "driver. I am unable to find testimony showing that any other witness *290saw this team. Mary Meek, Reynolds, the motorman, Edward Galloway, Dean Berlin, J. A. Nichols, and Edgar F, Doyle, all testified that they saw no other team there. Paul Meek’s testimony does not support the plaintiff’s testimony and is unreasonable. If the plaintiff had gone around the ‘team which he speaks of, it would have been behind him. This team is alleged to have been going south. If traveling in that direction, it would have been penned in when the accident occurred, and would have been there with the wagon, the street car, and the accident, and everybody would have seen it. In discussing the case we should not lose sight of its circumstances.
It was prejudicial error for the court to instruct the jury: “That defendant had the legal right to operate its cars over and upon its tracks at the time and place in question, and that teamsters have the legal right to cross the street at any point thereon, and their rights in this respect are equal and reciprocal, that is, each has the right to the use of the street in the ordinary and usual manner, and in doing so it is necessary for each to take into consideration the rights of the other.” As the plaintiff had not crossed the street, but was driving along it on the street railway track between the intersections, the instruction was misleading, for the reason that it calls attention to an alleged state of facts not shown to exist. I am not satisfied with the paragraph in the syllabus of the majority opinion relating to this matter. It is not, as it seems to me, specific enough, and is objectionable for that reason. The body of the opinion touching the same matter is objectionable in the same way, although- it shows research and many decisions.
Where the driver of a wagon drives along the street on the street car track, it is unfair to the public that he should be allowed to compel the street car to reduce its rate of speed to the same slow pace which he takes. The street car should be allowed to run at such a rate of speed as will accommodate the public. The better right of the street car company to the use of its tracks does not give it the right to exclude travelers from the street, and *291suck travelers should be allowed to move along the tracks or across them at any time and place where the same does not interfere with the progress of the cars, but of necessity, and in the interest of the public, where there is a conflict, the individual traveler must subserve the public convenience by yielding the right of way. Hot Springs Street R. Co. v. Johnson, 64 Ark. 420, 42 S. W. 833.
In Laufer v. Bridgeport Traction Co., 68 Conn. 475, the court approved of the following instruction“In the actual use of a common and public highway every person has an equal right to use it for his own best advantage to suit his own convenience or pleasure, but at all times with a just regard- to the like rights of every other person. So far as rendering himself liable to damages is concerned, a man may drive fast or slow, with a light wagon or with a loaded team, with , a well-broken horse or with an ill-broken one, along a crowded thoroughfare as well as a vacant street, provided he does not interfere with the just rights of any other person. If a man wishes to drive fast,, he must do so with respect to. the rights of those who drive-slow. If he desires to drive slow, he must do so with respect to those who desire to drive fast. The loaded team- and the light wagon must each pay a due regard to the-rights of the other. If one drives in a crowded street he • must exercise reasonable care not to endanger other travelers. If he drives an ill-broken horse, he must keep it so» well in hand as not to expose others to unreasonable1 hazard.”
Since the application of electric pcwer to the running of street cars, it may be said that they have a common right in the streets with travelers, but they must be so managed as not to interfere unreasonably with the rights of persons who are passing along the streets. The street railway company and the traveler should each use the street in view of the rights of the other and to avoid inflicting an injury, and each is bound to exercise reasonable care. Rapp v. St. Louis Transit Co., 190 Mo. 144; Hall v. Ogden City Street R. Co., 13 Utah, 243.
*292In Harris v. Lincoln Traction Co., 78 Neb. 681, tbe plaintiff crossed tbe tracks in tbe middle of a block. This court held that, “having contributed to the accident by his own negligence, there is no principle of law which will allow him to recover, unless he shows that he was wilfully and wantonly rnn down by those in charge of defendant’s car.” The writer does not indorse the statement here made. The street railway company .should exercise reasonable prudence to avoid injury to those who occupy its tracks under all circumstances.
The above duty of the street railway company should not bar the right of the public to be served by the application of modern motive power to their means of transportation. It is the duty of persons, whether on foot or in vehicles, to give unobstructed passage to the cars. Ford’s Adm’r v. Paducah City Railway, 124 Ky. 488, 99 S. W. 355; Ehrisman v. East Harrisburg City P. R. Co., 150 Pa. St. 180, 17 L. R. A. 448.
Subject to the rule that he must exercise ordinary care for his own safety and not obstruct the passage of the cars, a person may drive upon the tracks of a street railway company laid in a public street without becoming a trespasser, but it is his duty to leave the track whenever his presence there serves to impede the passage of cars. North Chicago E. R. Co. v. Peuser, 190 Ill. 67.
Between street crossings a street railway company has a paramount right of way over its tracks whenever its right conflicts with the rights of a traveler on the street, and such traveler must reasonably give way to an approaching or passing car. The duty to exercise reasonable care and prudence in order to avoid injury rests alike upon the street railway company and the traveler. In an emergency, where the motorman in charge of the car honestly attempts to avoid injury to the occupant of the street, he should not be required to exercise the best judgment that may be applied to the subject after the event has gone by. If one acts with ordinary prudence in view of the situation and does his best then to avoid accident and consequent injury, he is not to be held to have been negligent, even *293though his acts may not have been wise as determined afterwards in the light of all the surrounding facts.
I concur in the conclusion stated in the majority opinion that the former opinion should be modified and the motion for a rehearing overruled.