RESPONSE TO PETITION FOR REHEARING.
By the Court,
Hawley, J.:• In my opinion the decision heretofore rendered is sufficiently explicit upon all the points discussed in the petition for rehearing; but there are two questions presented which we will answer.
1. “Was there a substantial conflict in the testimony offered by the respective parties upon the question as to whether the plaintiffs might have seen the train of the de-*293fenclant had they looked, and might they have heard the train of the defendant had they listened ?”
We think, and it is so announced in the opinion of the court, that there is a deeided'conflict of evidence upon this point. It is true that we only discussed the question of conflict of evidence as to whether “the bell was rung and a whistle sounded;” because, in our opinion, there was less conflicting testimony upon that point than upon the one we are now asked to review. But we did examine all the evidence carefully, and considered all the questions raised by appellant, and stated, in direct terms, our conclusion to be “that upon all the material questions there is a substantial conflict of evidence.”
The plaintiffs testified that as they approached the crossing they both looked and listened in order to ascertain whether a train was approaching; that they did not hear any bell rung or whistle sounded; that they were prevented from seeing the train by “ the cars on the upper side of the track” and the woodpiles; that a train of cars was on the side track below the crossing; that as they approached the north side track the engine of the lower train “ was blowing off steam;” that the near horse became frightened at this noise and his shying drew the team to the upper edge of the track. Bunting says that upon coming upon the north side track he “heard a low rumbling sound;” that he thought it was the lower train starting, and he looked down and saw that train standing still, and as he looked up he saw .the approaching train too near for him to either slop his team or to cross the main track in time to avoid the collision. To quote from the record: “When I looked down I noticed the train still standing, and just at that time, at that second, Mr. Harrison grabbed the lines and exclaimed: ‘My God, we are killed!’ and I looked up and saw the approaching- train.
“ Q. — What did you do then ? A. — As soon as I saw it I had no time to pull the horses up, they got so far that I couldn’t get them off the main track. I pulled them around and hit the off horse once or twice — twice, I think.
“ Q. — Pulled them around east? A. — Yes, sir.
*294“ Q. — What was your idea in pulling them around that •way ? A. — To save my team and myself. I thought that I could get off the track, but my wagon wouldn’t turn short enough.
“ Q. — You did try to turn them off the track? A. — Yes, sir. I saw that I had no time to get over the track, and I tried to pull them round.
“ Q. — State to the jury what would have been the result had you, instead of pulling them around as you did, have attempted to have gone straight over the track? A. — I don’t think I had time to get over the track.
“ Q. — Did you have time? A. — No, sir.
“ Q. — Suppose you had gone on,- instead of pulling them around as you did, what would have been the result * *? A. — I think the locomotive would have got me somewhere in the middle of the wagon — probable in the back end — if I had rushed my team over, loaded as I was with eighteen hundred pounds on the wagon.
“ Q. — When you first noticed that train * * * could you have backed your horses and have got to the north of the train ? A. — No, sir.”
The testimony of the witnesses Wheeler, Buncell, Mc-Clelland, McFarland, Bates, and Faloon tended to corroborate plaintiffs’ statement.
Wheeler testified that lie-walked from McFarland’s shop to the track; “that the cars and wood obstructed a view of the main track up to the center of the second block above; in fact, you couldn’t see Bragg’s lumber yard,” a half a mile, above the crossing.
Buncell, in reply to the question, what “obstructions there were to sight or hearing” between “the north side track and McFarland’s,” said, “There were box cars clean up to Jamison’s corner and on the other side of the crossing, * * * and then there was lumber and cordwood * -x- * thrown in piles, * * * some as high as the top of the doors of the box. cars. * * * I saw the smokestack; that is all I could see until it struck the team. * * * I don’t think they (plaintiffs) had as good a show to see it as I had from the distance I was. off. * * * *295I don’t think they had any show of hearing the train; * * * there was no show for them to see the train, as Bunting was lower than the ears, * * * don’t see how he could Bee the train.”
McClelland, in answer to the question, “And-then the obstruction caused by the train of cars on the side track, and the woodpile and lumber, etc.; taking into consideration all of these circumstances, would it be anything remarkable if Bunting couldn’t hear the train approach?” said, “Under these circumstances, I think not.”
Bates testified that he “drove across the track a very few minutes after Mr. Bunting, and there was a freight train backing down. I drove across the Crossing before I saw it. I was very close. My off horse saw it before I did and he jumped across the track, and the train was very close to me when I got across.”
“Q. — In passing over this point could you see anything of this train ? A. — I didn’t see it. The horses saw it and jumped as I passed by the cars.
“Q. — Did you see anything? A. — No, sir.
“ Q. — Did'you habitually look and listen for the train? Á. — Always.”
Faloou, who was standing near the tank north of the track, testified as follows:
“Q.- — •’When did you first see the train? A. — Well, before Bunting got towards the railroad track I heard a kind of a dumb sound coming, and I imagined it was the train. I didn’t see it at all until two seconds before it struck Bunting and his team.
“Q. — When his team got as far as the north side track, if he had looked up the track toward the west, do you think that he could have seen a train? A. — To the best of my opinion I don’t think that he could from where he was, with the cars on the north side track. * * * I don’t think that he could have seen the .train. I don’t think that he could over the cars.”
We did not deem it necessary to criticise the form of the question, propounded by appellant’s counsel, in answering the point now under consideration, because if “there was *296a decided, conflict of evidence upon this point,” as we stated, that was, and is, not only a conclusive answer to the question, but is decisive of the case so far as this point is involved.
But inasmuch as the learned counsel has again referred, with so much confidence, to “the mathematical demonstration as to the ability of the plaintiffs to see the approaching train had they looked for it as they came near the crossing,” and again argued the case upon the assumption that if it was possible for them .to have seen the train at any given point before coming upon the main track, they were guilty of contributory negligence because they did not see it, we deem it proper to say that, in onr opinion, the question for the jury and court to decide was not “whether the plaintiff's might have seen the train of the defendant had they looked” at some particular point, but whether under all the facts and circumstances testified to in this case, they made reasonable efforts to see and hear the approaching train and, in this respect, exercised the due care and caution which the law requires. (Bunting v. C. P. R. R. Co., 14 Nev. 361; Moore v. C. R. R. Co., 47 Iowa, 690; Voak v. N. C. R. R. Co., 75 N. Y. 328; Laverenz v. C. R. I. and P. R. R. Co., The Reporter, vol. 13, 45.)
In Shaw v. Jewett the facts were in many respects similar to the case under consideration. Folger, C. J., in delivering the opinion of the court of appeals, said: “The court was asked to charge the jury, that if they believed that the plaintiff could have seen the train at distance enough from the track to have stopped his horse' before reaching the track, his failure to see the train was negligence on liis part,.and he ivas.not entitled to recover. The court refused the instruction, and exception was taken. We think that the court did not err. The request was so couched, that if the proposition folded up in it had been given as law to the jury, it would have laid down as the rule that the plaintiff was bound to see the train-at the distance named, if it were possible %at it could be seen by any one from there. That is not the rule. The plaintiff is not bound to see. He is bound to make all reasonable efforts to see that a careful, *297prudent man would make in like circumstances. He is not to provide any certain result. He is to make effort for a result that will give safety; such effort as caution, care, and prudence will dictate. * * * The question for the jury was not alone whether he could have seen the coming train at the indicated distance from the track, but whether, when at that distance, he looked and listened for it, and whether it was so plain that at, that distance he could and would have seen it if he had looked; that his not seeing it was proof that he did not look.” (The Beporter, vol. 13, 22.)
2. We agree with counsel, that when a train is passing over the road, anc] the engineer, while keeping a reasonable lookout, “observes a team ai a safe distance from the track, he is not required to slacken his speed or stop his train * * * in order to ascertain whether the traveler, upon the highway has made up his mind to pause and let the train go by, or to go upon the track and stop the train,” but has the right, as we stated in Solen v. V. & T. R. R. Co., 13 Nev. 123, “to act upon the assumption that a traveler, in walking upon or driving across its track, will use due care and prudence to avoid impending danger.” (Cohen v. Eureka & P. R. R. Co., 14 Nev. 394.)
There is nothing in the instructions reviewed by us, or in .the opinion heretofore rendered, in conflict with these views. But it is also the rule that railroad companies, as well as travelers, must exercise reasonable care and caution, and in the present case, although the plaintiffs may not have been entirely free from fault, if the engineer of defendant’s train saw the plaintiffs’ team, as it was coming upon the track, in a position of great peril and danger, and he could, by the exercise of reasonable care, have lessened the speed of his train, or stopped it, with safety, in time to have avoided the collision, it was his duty to do so.
Beliearing denied.
Belknap, J., did not participate in this decision.