*139RESPONSE TO PETITION EOR REHEARING.
By the Court,
Hawley, C. J.:• 1. The argument of appellant’s counsel upon rehearing is principally based upon the proposition that E street, in Virginia City, where the accident occurred, is not a public street.
It is contended that the evidence shows conclusively that the locus in quo was in the private and exclusive use of the defendant as a yard and terminus, and that the plaintiff in traveling over it was a mere intruder — a trespasser upon the property of the defendant.
We are of opinion that the pleadings admit it to be a public street. It is so alleged in the complaint, and is not denied by the answer. But independent of the pleadings, the proof offered by appellant, as well as the testimony submitted on the part of plaintiff, clearly establishes the fact that E street was a public street opened to all foot passengers, and that the public had been accustomed at all hours of the day and night to walk thereon. To decide this case, therefore, upon the ground that it was not a public street would be introducing “a false quantity into the calculation,” a quantity which neither the pleadings nor proofs sanction.
2. It is again urged that the plaintiff was negligent, and that his negligence contributed proximately to the injuries which he sustained. Numerous authorities have been cited with the assertion of counsel that ‘£ in none of these cases was the negligence of the plaintiff greater than in the case at bar.” We have re-examined ££ these cases’’with care, and shall notice them in the order presented by counsel for appellant.
The Ill. Cent. R. Co. v. Godfrey, 71 Ills. 500, was decided upon the ground that Godfrey, at the time of the accident, was a trespasser upon the private grounds of the railroad company and was therefore bound to use extraordinary care. In examining the testimony, however, it will be discovered that the plaintiff said that “ when he went on to the road he looked and saw no engine.” The court said: “This was *140not enough. He should have kept constant watch while he was traveling along the track, for the approach of an engine. If the plaintiff had looked he could have seen the engine in time to have avoided the accident. Moreover, plaintiff was walking in the space between the tracks, and as the engine approached, to quote the language of one of the witnesses, “ he just looked like he staggered up against the engine.”
Fleming v. W. P. R. Co., and Roth v. M. and St. P. R. Co., were sufficiently noticed in our former opinion.
In Hickey v. B. and L. R. Co., 14 Allen, 429, it was held that a passenger in the railroad cars could not maintain an action against a railroad company for injuries sustained by him in consequence of his voluntarily and unnecessarily leaving his seat and standing in an exposed condition upon the platform of the passenger car, while the train was in motion.
In C. and R. I. R. Co. v. Still, 19 Ills. 508, a collision occurred while Still was attempting to drive a two-horse team and wagon over the railroad track at a regular crossing. The facts were that Still “was sitting down in the bottom of the wagon, with his back turned in the direction from which the cars were approaching, so as to prevent his seeing them.” It also satisfactorily appeared “that by looking in the direction of. the cars, he could have seen them for a considerable distance, and for a sufficient length of time to have avoided all damage; and that the sound of the approaching train could be heard for a distance sufficient to give ample time to have prevented this collision.” It also appeared from all the positive testimony in the case that the railroad company rung its bell for the usual distance, and that a headlight Avas burning. Under such circumstances, the court very properly said that the plaintiff “ having placed himself in a position that prevented him from being able to see the approach of the ears, and having tied up his ears in a manner that must have prevented his hearing the approach of the trains, is certainly guilty of gross negligence.”
In Dascomb v. B. and S. L. R. Co., 27 Barb. 227, “the *141plaintiff, living about a fourth of a mile from the' railroad track, owning a farm divided by the track, leaves his house, with a horse and wagon, taking in his son and hired man, and drives along, upon a trot, directly upon the track of the road, without taking the slightest precaution to ascertain the dangerous proximity of the locomotive. This was negligence.”
In N. P. R. Co. v. Heileman, 49 Pa. St. 60, the plaintiff, Heileman, was seated far back in his covered wagon, with the curtains closely drawn down, and drove his horse and wagon slowly upon the track in front of the passing locomotive, and a collision occurred. If plaintiff had looked out of his wagon, as he was bound in law to do, he could have seen the railroad track for seventy-five yards. Pie failed to use his eyes to the best of his ability, and was therefore held guilty of negligence.
In Runyon v. C. R. Co., 25 N. J. L., 556, the plaintiff had lived for thirty years within three hundred yards of the railroad. He was driving toward the track on a slow trot, sitting down in an open wagon, with his back towards the direction in which the train was coming. In describing the facts of the collision to a witness he said: “He did not think of the road; his mind was enveloped in thought; * * he could not tell what he was thinking of; * * * as he heard the -whistle he gave his horses a pull, and they went ahead rather faster than before.” Had he looked he could have seen along the railroad track for a distance of’ several hundred yards. This being the evidence in relation to plaintiff’s conduct, the court said: “It is entirely clear that he failed in showing ordinary care and diligence on his part to avoid the injury. In fact, it appears that he did not exercise any care or precaution whatever. He never even thought of it.”
In Steves v. O. and S. R. Co., 18 N. Y. 422, the testimony, as in the preceding case, presents an instance of surprising negligence and inattention on the part of the plaintiff. “After riding along parallel to and in plain sight of the railroad track for the distance of about a mile, he undertook to cross the track, his horses being upon a walk. *142The day was cold and the wind blowing fresh from the north-west. He was traveling against the wind. His coat was turned up around his ears and a fur cap drawn down over them. With his hearing thus obstructed, and with abundant opportunity to see and avoid the approaching train, if lie would but look, he advanced slowly upon the track.” A court in such a case ought not to hesitate in saying, as was said by the court in this case, that “such negligence, such indifference to danger, is both unaccountable and inexcusable.”
In Wilcox v. R. W. and O. R. Co., 39 N. Y., 358, the plaintiff’s intestate was killed while attempting to cross the track at a regular crossing. The evidence failed to show whether the deceased, before attempting to cross, looked up and down the track to ascertain whether a train was coming; but it did appear that the engine or'train was in plain sight for a distance of seventy or eighty rods; and the court held, that under all the circumstances attending the transaction, it was a fair and reasonable presumption that he did not look, “for had he done so, he must have seen the engine approaching, and he could have escaped, and his life would have been saved.” In the language of Grover, J.: “To walk along or stand upon a railroad track, without availing himself of the sense of sight as well as hearing to ascertain whether there was danger in such position,” was negligence.
In Havens v. E. R. Co., 41 N. Y., 296, there was evidence tending to show, that by looking the train could have been readily seen and the danger thus avoided. The supreme court held, that such evidence having been given, the lower court erred in not instructing the jury: “That an omission to ring the bell, or blow the whistle, would not excuse the deceased from the observance of proper care on his part, and that this care required him to look for trains when he had opportunity so to do, while riding in the wagon.” A principle that is well settled and was clearly stated in our former opinion to be the law.
In Wilds v. H. R. R. Co., 29 N. Y., 315, the plaintiff’s intestate had an opportunity to see the train if he had *143looked. This was made certain, as the court say, “upon the testimony of every witness who has spoken on the subject. That he did, in fact, see it at some time before the collision is evident, from the testimony of all the witnesses to the principal fact, for they swear he whipped his horses in order to get across before the engine should reach him.” It also appeared, beyond controversy, that a flagman was stationed between the two tracks with a flag Avlien the train* and the deceased were approaching the spot Avhere the collision happened;” and that he did “ his Avhole duty by displaying his flag and Avarning passengers,off.”
This, in short, is one of the many cases to be found in the books Avhere persons driving teams, seeing a train coming, determine to try the speed of their horses against that of the approaching train. In all such cases the courts have universally declared that the plaintiff is not entitled to recover.
In the T. and W. R. Co. v. Goddard, 25 Ind. 185, a case often referred to by appellant’s counsel, suit Avas brought by Goddard to recover damages for injuries to his horses and Avagon. As Gilpin (the driver) approached the track of the Chicago road with the team, a locomotive on one of the tracks of that road, with its bell ringing and making the usual noise, Avas about to cross the plank road; Gilpin increased his speed, thinking to pass before the locomotive, but the latter passed the crossing before him, and within ten or fifteen feet of the horses’ heads. While the engine Avas passing the horses were somewhat excited. They were then, at most, within three or four rods of the track where the accident occurred, but Gilpin drove on at a rate of speed of six miles an hour until the collision occurred. * * * Gilpin did not stop the team, or even slacken his speed, for the purpose of ascertaining if the track Avas clear before approaching or attempting to go on it; nor is there aDy evidence that ho used any of his senses, or any precaution whatever, to ascertain Avhether a train was approaching.” In examining the details of the testimony in this case, it is apparent that the court was correct when it said that the team “Avas run against the train, and not the train against the team.”
*144"We have referred thus at length to “these eases” — all that were cited by appellant on the last argument — for the purpose of showing, as we think, the facts, when fairly considered, fully warrant that in each of them the negligence of the plaintiff was much greater than the alleged negligence of Solen in the case at bar.
We recognize, without indorsing all that has been said by the courts, the general principle in the cases cited, that the plaintiff is bound to use proper care to avoid danger; that his prudence or imprudence is to be measured in proportion to the danger, and that the greater the risk, the greater the degree of care required. And if the undisputed facts in this case were so clear as to satisfy us that Solen did not use that degree of care which an ordinarily reasonable person would have used under similar circumstances, we should not hesitate to say that the district court erred in refusing to grant a nonsuit. But as to this, more anon.
3. Counsel for appellant again contend that it was, and is, our duty to decide, as a question at law, whether the plaintiff was guilty of contributory negligence.
It was not without some doubt and hesitation, and only after the most careful examination of all the authorities then cited by the respective counsel (and they embraced all, or nearly all, that are now relied upon, and several others that were not referred to in the re-argument of this case), that we arrived at the conclusions announced in our former opinion. We were then, and are now, aware that there is a great diversity of opinion to be found in the books. Courts of last resort have apparently gone to extremes upon both sides of this vexed question. If reason is the soul of the law, then our own common sense and judgment, amidst the conflict of the decisions upon this subject, must, after all, furnish the only true guide to its proper solution. Nevertheless, we propose once more to examine the authorities.
Appellant relies upon the rule as announced by Wharton in his work on Negligence, as follows: “The question of negligence is one of mingled law and fact, to be decided as a question of law by the court when the facts are undisputed or conclusively proved, but not to be withdrawn from *145the jury when the facts are disputed and the evidence is conflicting.” (Section 420.)
In considering this question, it must be understood that the same measure of justice, the same rule of conduct, and the same principle of law, applies to the plaintiff as to the railroad company. It must also be remembered that if the locus in quo is a public street or thoroughfare, then it is held in nearly all the authorities, and admitted by counsel for appellant, that (independent, of any statutory provision) under the rules of the common law, it is the duty of the railroad company to ring its bell or sound its whistle; and if it fails to perform its duty in this respect, it is guilty of negligence. It is equally as well settled that it is the duty of the passenger or traveler going across or upon the track of a railroad company, to exercise reasonable care and diligence upon his part to avoid danger; and whenever such a person undertakes to cross over, or walk upon a railroad track (even where he has a right to be), without looking or listening for the approach of a locomotive or train, he is guilty of such negligence as to deprive him of the right to complain of the negligent conduct of the railroad company. In these and kindred cases, it is the duty of the court, as stated by Wharton, to take the case from the jury, and to . decide as a question of law that the plaintiff was guilty of contributory negligence.
But there is another line of cases, far more numerous, of which the case under consideration is one, where the undisputed testimony leaves it doubtful to the mind of the court whether the plaintiff did use reasonable care and prudence. In such cases, the authorities almost universally agree that it is the duty of the court to submit the question to the jury. In the language of Morton, J., in Wheelock v. Boston and Albany Railroad Co., “When the question, whether the plaintiff was using ordinary care, depends upon a variety of circumstances, and the inferences to be drawn from them as to the effect which they would have upon the motives and conduct of men of the usual prudence and intelligence, and it cannot be said, as a matter of common knowledge and experience,' that the plaintiff was careless, then the law *146refers the question to the judgment and experience of the jury:” 105 Mass. 206.
In Penn. C. Co. v. Bentley, the facts were not disputed, and it was urged there, as here, that upon the undisputed facts negligence was a question of law. The supreme court, in answering this argument, said: “ There is no such principle, except where a man violates a plain legal duty.” (66 Penn. St. 32.)
In W. C. and P. R. Co. v. McPJlwee, the same court say: “ The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury, and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care.” (67 Penn. St. 311.)
All the authorities cited, under this head, in our former opinion sustain the general doctrine that the question of ordinary care is in most cases, even where the testimony is undisputed,' a question of fact which it is peculiarly the province of the jury to determine, under proper instructions from the court. This principle, in our judgment, is well settled by the great preponderance and weight of authority, and is sustained by the common sense and sound judgment of the ablest jurists in the United States.
The question upon which the conflict of authorities, previously alluded to, arises, is not so much upon the existence of the rule as to its application in any given case. It must be acknowledged that it is not always easy to decide as to which class of cases the given one belongs. Hence, it very naturally follows that jurists, learned in the law, as well as jurors, unskilled in the science of the profession, differ as to what constitutes prdinary care in a given case.
Whenever, upon a given state of facts, there is reasonable room for doubt, for honest minds to fairly differ, both parties have the right, in our judgment, to have the question submitted to a jury.
By following this rule a judge would always have his separate and distinct duty to perform as well as the jury. It would be the province of the jury to find the facts and of the court to declare the law. But if we adopt the rule so *147earnestly contended for by appellant, then, in the,administration of justice, there would be no use whatever for a jury. The testimony upon the part of plaintiff in actions of this character, generally leaves the main facts undisputed. If then, from that simple fact alone, it becomes the duty of the nisi prius judge and appellate courts to always decide the question of negligence as one of law or of mingled law and fact, a jury trial would indeed be but a mockery and a farce.
In French v. T. B. R. Co., a,s the plaintiff approached the crossing, a freight train was passing; and after the last car had passed she attempted to cross. She was driving with care and watching the road. She heard no signal and received no warning. At a point forty-six feet from the center of the track she could have seen up the track forty-six feet; at thirty feet from the crossing she could have seen the track for a long distance. She did not look in that direction when she reached those points, and gave as a reason that she did not suppose that one train would follow so closely upon another. The court, in considering these facts, said: “Whether the plaintiff was in the exercise of that due care which persons of common prudence and intelligence would exercise when placed in a similar situation, and W'hether she was careless in failing to look up the track at the points near the crossing where it was visible, was a question for the jury to determine in the peculiar circumstances of the case.” (116 Mass. 541.)
In Craig v. N. Y., N. H. and H. R. Co., the deceased was prevented by the buildings on either side of the highway from seeing the approaching train until he had driven upon the railroad track. The place was one across and near which engines and ears of all kinds wrere constantly moving. The gates were not shut across the highway, and there was no flag or lantern at the crossing, as had been the usual custom when the gates were not shut. The supreme court said: “ The question whether he was negligent in proceeding in the manner he did, instead of stopping his horse, or turning about and driving back, was a question of fact for the jury.” (118 Mass. 437.)
*148In Maloy v. N. Y. C. R. R. Co., the court said: “ Whether it was negligence in the plaintiff to walk upon the sidewalk in a dark night, without a light, was a question of fact for the jury and not a question of law for the court.” (58 Barb. 184.)
In Seigel v. Eisen et al., the supreme court refused to declare as matter of law “ that the conduct of the plaintiff, in standing on the rear platform of the street car and steadying himself by holding the rail of the platform, was contributory negligence.” (41 Cal. 111.)
In Johnson v. W. and St. P. R. R. Co., the defendant asked the court to charge the jury, “that inasmuch as the evidence is undisputed that the plaintiff, of her own accord, placed her foot upon the links connecting the two cars together between the bumpers, such act of hers was negligence on her part, and she cannot recover.” The lower court refused to so charge, and its action was sustained by the supreme court: “Whether, under the circumstances in which the said plaintiff was situated, it was negligence, is a mixed question of fact and law. Negligence and prudence are relative terms, qualified by the country, the age, the relations and circumstances in which an act is done or omitted. The law can give no certain fixed standard by which a jury shall be governed in inquiries of this character, for the simple reason that there is none; it only professes approximation to a standard. These questions are eminently practical, and are, says Story, more questions of fact than law.” (11 Min. 306.)
In Sehierhold v. N. B. and M. R. R. Co., 40 Cal. 447, the plaintiff’s intestate was playing in the street, and found himself suddenly before the car of the defendant, and to avoid being run over, ran against a pile of timber (which the defendant had caused to be piled within eighteen inches of the track), was turned back by it and run over. The district court granted a nonsuit on the ground that the negligence of the deceased contributed to the accident. The supreme court, following the principle announced in Needham v. S. F. and S. J. R. R. Co., 37 Cal. 410, held that the court erred in granting the nonsuit. The court *149say: “The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. -It can very seldom happen that the question is so clear from doubt that the court can undertake to say, as matter of law, that the jury could not fairly and honestly find for the plaintiff. It is not the duty of the court in such cases, any more than in any other, to usurp the province of the jury and pass upon the facts.” In this case the evidence was clear that the defendant’s car was being driven in the most reckless and culpable manner. On this point the court said: “We are not satisfied that, notwithstanding the negligence of the deceased, the injury might not have been avoided by the exercise of proper diligence on the part of the defendant. And besides, it may not have been negligence on the part of the deceased to attempt to cross the track at the distance before the horses testified to, had they been driven at the proper speed and under the proper control of the driver.”
So in the case at bar, was it not a question of fact, for the jury to decide, whether it was negligence for the plaintiff to walk upon the railroad track in the manner and at the time he did, relying upon the presumption that the railroad company would use due and reasonable care in moving its locomotives and trains and give due and timely notice, by the usual signals, of their approach.
In Maginnis v. N. Y. Cent. and H. R. R. R. Co., a train was moving backward, at night, without a light or any signal or warning at the rear, upon the defendant’s track, which ran through a public street in the city of Albany. It had so nearly stopped, that to one in the rear no motion was perceptible. The plaintiff’s intestate attempted to cross the street, in the rear of the train, when the speed of the train was increased, and she was run over and killed. The nisi prius court declined to nonsuit the plaintiff, and the court of appeals sustained its action; because, although the train did not come to a full stop, ‘ ‘ it might be inferred that it was at the point of stopping, and that the intestate, in looking at it, was justified in supposing it to be standing still, and consequently justified in crossing the street; and *150that, although there was no great suddenness to the motion, it was accelerated in order to pass Quackenbusli street; and that the absence of a visible light or other means of warning at the rear end of the train while being backed through a public street of the city, constituted a sufficient fault on the part of the company to render them liable for the injury.” (52 N.Y. 220.)
Upon the same principle it must be admitted that the negligence of the defendant, in this case, in not ringing its bell, or giving any signal or warning, rendered it liable for the injury to plaintiff, unless the plaintiff was guilty of negligence that contributed proximately to such injuries. And it cannot, it seems to us, upon any substantial reason, be denied that the undisputed facts were not as sufficient to authorize the court in this case as in the case last cited, to submit the question of plaintiff’s conduct to the jury.
Take the case of L. V. R. R. Co. v. Hall, where the plaintiff’s intestate was found dead on the railroad track between seven and eight o’clock in the evening, the night being dark. “Tavo coal trains belonging to the company, one coming doAvn and the other going up, passed each other a square or two beloAv Linden street. The doAvn train had a head-light, the up train, by which the deceased Avas killed, had no head-light, and gave no warning of its approach by bell, Avhistle, or other signal, as it passed through the town.”
There was no direct or positive evidence that the deceased either looked or listened for approaching trains. The court held that under the circumstances the case could not be Avithdrawn from the jury; that “it was their province to deal with the facts, and to draw from them the proper conclusion;” that the court could not assume that Hall’s negligence “ contributed to his death, and that it Avas not occasioned by the negligence alone of the company’s agents in charge of the train.” Again, in the course of the opinion, the court say: “ If the train was without a head-light, and without giving any other notice or warning of its approach, might not the jury infer that his death was occasioned by the recklessness of the company’s agents in thus running the train rather than by any want of care on his part in not *151observing it in time to avoid danger.” (61 Penn. St. 368.) Tbe court refused to adopt the argument there, as here, contended for by appellant, that the person injured must have been guilty of negligence “because he was struck by the passing train.”
Now, in applying the principles of that case to this, would it not logically follow that inasmuch as the undisputed testimony of Solen did establish, to the satisfaction of the court, that he was looking whenever he could and was listening for the sound of the whistle or bell (it being a place where the railroad company, in the exercise of due care, was bound to give such warning) and could have heard such a signal if any had been given, that it was the negligence of the defendants’ agents in failing to give the usual and proper signal that caused the accident, “rather than by any want of care on his part in not observing” the locomotive “in time to avoid danger.”
Was it not the duty of the court, under these circumstances, to submit the questions at issue to the jury?
Was it not the province of the jury, in this case, as well as the case last cited, “ to deal with the facts, an'd to draw from them the proper conclusions ?
In Hackford N. Y. Cent. and H. Riv. R. R. Co., the plaintiff’s intestate was killed while driving his team across the railroad track. “ It was a very stormy day, snow was falling and the wind was blowing very hard. The street, along Avliicli the deceased Avas driving * * * crosses the track at nearly right angles. The deceased was going west; the engine by AA'hich he was struck was moving north at about tiventy miles per hour. There was no sign up, indicating that there was a railroad crossing at the place of the accident — the sign that had been up having been removed. A carman, Avith furniture in his cart, crossed the track just before the deceased attempted to cross; there were other teams approaching the track from the east. The drivers of the other teams stopped, seeing the approaching engine, and cried ‘Avhoa’ to the deceased just before lie got on to tho track; the deceased did not regard it, but drove on and Avas instantly struck and killed. * * * As the engine ap*152proached the track the bell was not rung, nor was the whistle blown.” The nisi prius court granted a nonsuit. The supreme court said: “The court committed a grave error in refusing to submit the question of concurring negligence of the deceased to the jury.” (43 How. Pr. 245.) A new trial was granted and the court of appeals affirmed this judgment. (53 N. Y. 654.)
Numerous other cases might be cited where courts have refused to grant a nonsuit under circumstances showing as great a degree of negligence, or want of care, on the part of plaintiff, as was shown in this case. But we have certainly referred to enough to establish the fact that the views expressed by us in our former opinion are in accord with the great weight and current of the authorities upon this subject.
4. It is claimed that the court erred in instructing the jury as follows: “In considering the question of reasonable care and prudence on the part of the plaintiff, William Solen, the jury have a right to take into consideration, together with the other facts of the case, the known and ordinary disposition of men to guard themselves against danger.” Instructions of this character are usually given only in cases where the facts fail to disclose the conduct of a deceased person. But we do not think appellant has any reasonable ground to complain of the language used. It was one of the tests by which the plaintiff’s proven conduct was to be measured. It being “the known and ordinary disposition of men to guard themselves against danger,” such conduct would be presumed in the absence of proofs to the contrary. (Johnson v. H. R. R. Co., 20 N. Y. 65; Gay v. Winter, 34 Cal. 153; N. C. R. R. Co. v. State of Maryland, 29 Md. 438.) But when the facts are disclosed it is then the duty of the court and jury to determine whether plaintiff’s conduct in the given case did show that he had used proper care to guard himself against danger. Yiewing this instruction in the strongest possible light against the appellant, it could only be considered that in support of plaintiff’s conduct, as proven, it was the duty of the jury to take into consideration the fact that plaintiff, as a reasonable man, would naturally guard against danger; that his *153testimony was, therefore, natural and reasonable; that he must have listened and looked whenever he could (as he testified he did), and that it would be unnatural to consider his testimony false because it accorded with the known and ordinary disposition of men.
The only way the jury had of determining whether the plaintiff used due care was to bring to their aid, in connection with the proven facts, their own knowledge of the common sense and experience of mankind. (Ernst v. H. R. R. Co., 35 N. Y. 29; Beisiegel v. N. Y. C. R. Co., 40 N. Y. 29; L. S. and M. S. R. Co. v. Miller, 25 Mich. 274; Smith v. H. and St. J. R. Co., 37 Mo. 292.)
The portion of the instruction complained of does not, in our opinion, authorize the jury to presume anything in favor of the plaintiff, in opposition to the facts established by his testimony.
5. It is also claimed that the court erred in instructing the jury, that “in cases of this character the law does not prescribe any fixed or definite rule of damages, but leaves their assessment to the good sense and unbiased judgment of the jury.”
"We agree with appellant, that it would in most cases be proper for the court to instruct the jury substantially, as laid down in Shearman & Eedfield on Negligence, sec. 606, that the plaintiff might, in cases of this character, “ recover the expense of his cure, the value of the time lost by him during his cure, and a fair compensation for the physical and mental suffering caused by the injury, as well as for any permanent reduction of his power to earn money.” But the appellant in this case is not in a position to complain of the action of the court in this particular. If it desired to have this rule given as a guide to the jury, it ought to have prepared an instruction embodying the correct principle upon this subject, and asked the court to give it. (Gaudette v. Travis, 11 Nev. 149.) Unless 'the instruction as given is erroneous, or calculated, to mislead the jury, we are not authorized to reverse the case upon the ground that the court did not as fully instruct the jury as it might, and no doubt would have done had its attention been called directly to the point in controversy.
*154The jury, under the rule, heretofore stated and admitted to be correct by appellant, was authorized to give plaintiff “a, fair compensation for the physical and mental suffering caused by the injury;” and in determining this question, as we have already said, much must necessarily be left to the good sense and sound judgment of the jury.
In addition to the authorities cited in our former opinion upon this point, we think Aldrich v. Palmer, 24 Cal. 513; Wheaton v. N. B. and M. R. Co., 36 Cal. 590; and City of St. Paul v. Kuby, 8 Minn. 171, fully sustain the court -in giving the instruction complained of.
In Wheaton v. N. B. and M. R. Co., Sanderson, J., in delivering the opinion of the court said: “In cases of this character, as we had occasion to say in Aldrich v. Palmer, 24 Cal. 513, the law does not prescribe any fixed or definite rule of damages, but from necessity, leaves their assessment to the good sense and unbiased judgment of the jury.” This opinion also sustains our action in refusing to set aside the verdict as excessive.
The verdict of the jury, say the court, “will not be disturbed on motion for a new trial, unless the amount is so large as to induce a reasonable person, upon hearing the circumstances, to declare it outrageously excessive, or as to suggest, at the first blush, passion or prejudice, or corruption on the part of the jury.”
In Heil v. Glanding, cited and relied upon by appellant, the lower court instructed the jury, that as there was no certain rule by which to estimate the damages for plaintiff’s personal injury, “the jury will fix them at such sum as they think proper and right from the evidence.” Upon an examination of the opinion, it will be noticed that the court only said that inasmuch as the case had to go back for another trial, on account of errors upon other grounds, it would be proper for the court to give a ‘ ‘ more precise instruction” as to the measure of damages, as a guide to the jury.
In that case, as here, there was no prayer for an instruction on this point, and the court expressly say: “We would not reverse the judgment were there no other misdirection *155than in what we said respecting the measure to be adopted by the jury.” (42 Penn. St. 499.)
This opinion, instead of being opposed to our views fully sustains them. It is evident that the judgment ought not to be reversed upon this ground.
6. Upon the other points, again urged by appellant, but little need be said. They — as well as the questions relating to contributory negligence — were as ably and fully presented on the first argument as on the last, and were then carefully considered by the court. Our views remain the same. The expression used, in our former opinion, that if the plaintiff was at a place where he had a right to be, then the question “whether it would have been safer for him to have been elsewhere, is immaterial,” must be taken with reference to the facts of this particular case, and considered in connection with the acknowledged doctrine — recognized in all parts of the opinion — that it was his duty, while walking upon the railroad track, to use due and reasonable diligence and exercise ordinary care and prudence to avoid danger.
Of course, the plaintiff could have avoided all injury by keeping away from E street; and, as the result shows, “ it would have been safer for him to have been elsewhere.” No man is in any danger of a collision with the locomotive or cars of a railroad company if he keeps a sufficient distance from the tracks of the road, and never attempts to walk upon or across the street through which the cars and locomotives of a railroad run. But the people of Yirginia city have the lawful right to be upon the public streets, if they exercise due care, notwithstanding the fact that a right of way has been granted to the railroad company to lay its tracks and move its locomotives and trains thereon. No sidewalks had been provided whereon the foot passenger could walk with safety. There was also some' testimony tending to show that the railroad company had to some extent obstructed the space between the tracks by leaving piles of lumber thereon. Moreover, the testimony showed that the ground between the tracks was rough and unbroken in places, and on the morning in question was entirely cov*156ered over with snow, while between the rails of the main track, where plaintiff was walking, it was level and pretty smooth. Under all these circumstances the mere fact that there was “space enough ” for a man to walk between the main track and the side tracks was “ immaterial.” If there had been a proper sidewalk provided for the accommodation of foot-passengers, there would have been some foundation for the position sought to be maintained by appellant, that plaintiff “unnecessarily” walked upon the track.
The question whether positive testimony outweighs negative, as held in Mackey v. N. Y. Cent. R. Co., 27 Barb. 539, and C., B. and Q. R. Co. v. Stumps, 55 Ill. 367, has no special application to the facts in this case.
The testimony of McDermott is as clear, direct, and positive, that he did not ring the bell as is the testimony of any of appellant’s witnesses to the contrary. There is nothing in his testimony, or in the transcript, which would authorize us to say, as counsel for appellant contend, that he “is unworthy of belief.” That question was submitted to the jury, and it was by them declared that his testimony was true.
In the consideration of this case, we have proceeded upon the ground that the jury were intelligent men, capable of judging of the weight that ought to be given to the testimony of the respective witnesses, and that they understood the principles of law as announced by the court.
Although our views may not have been as clearly expressed as if written by other and abler hands, yet we have no fear that any principle decided in the former opinion, or in this, will ever return “ to vex the court ” in its impartial administration of the law.
The judgment of the district court is affirmed. Remittitur forthwith.