On Motion for Rehearing.
Mr. Chief Justice Mooredelivered the opinion.
4. A petition for a rehearing having been filed, it is contended therein that an error was committed in concluding that the lower court improperly denied defendant’s request to direct a verdict in its favor. It is argued that in reversing the judgment, which is based on a verdict, this court reviewed conflicting testimony, and deduced a conclusion from what [t considered to be a preponderance, thereby invading the province of the jury. The testimony of plaintiff’s witnesses tends to show that the day on which the accident occurred was clear and dry; that the rate of speed prescribed by ordinance for.the operation of street cars in the City of Portland was eight miles an hour; that the car causing the injury was heavily loaded with passengers, and running down a steep grade faster than the regulations permitted; that the gong on the car was not struck, nor the speed slackened, until after the injury was inflicted; and that Mr. Wolf, though possessed of good eyesight and hearing, did not halt in crossing the street in front of the approaching car. None of plaintiff’s witnesses, except possibly Mrs. Alter, seems to have observed Wolf as he crossed the street until he reached either the west line of rails — the car being on the east track — or until the car had nearly reached the crossing, so that the testimony of defendant’s witnesses that he halted in the western double track until the car was nearly opposite him before proceeding on his journey is not contradicted. Joseph Friedman, plaintiff’s -witness, who beheld the accident, testified that he did not *455see Mr. Wolf until one more step would have taken him out of harm’s way. Mrs. Alice Walker, a witness for the prosecution, says she first saw Wolf on the west side of First Street, as he was crossing it, but on redirect examination she qualifies this declaration by stating: “I never noticed him until the car hit him there.” Mrs. Motts, another witness for the. same party, who was standing with Mrs. Walker at the northeast corner of First and Mill streets, waiting for the car, at the time of the accident, in answer to the question, “On what part of the crossing was he [Wolf] when you first saw him?” replied, “I was on the corner, and he came right between the car and me.” On cross-examination she stated that when she first saw Wolf he had reached the west track. “Q,. And you had not seen him before that? A. No, sir.”
Mrs. Eva Alter, who testified by an interpreter, said she was standing south of the southeast corner of Mill and First streets at the time of the accident; that she first saw Wolf as he started to cross the latter street; that he'walked' without stopping; and that she watched the car and Wolf from the time she saw them until the accident happened. The writer hereof entertained the opinion that the testimony of this witness respecting Wolf’s actions immediately preceding the accident was sufficient to dispute the testimony given by defendant’s witnesses, and that based thereon the cause was properly submitted to the jury; but the opinion heretofore rendered states that the position occupied by Mrs. Alter was such as to render it physically impossible for her to have seen Wolf all the time he was crossing the street, because the car, after passing her, obstructed her view of him, and the petition for a rehearing, referring to this declaration, admits: “This is undoubtedly true.” Accepting such concession as a correct statement of the fact, a review of the testimony given by defendant’s witnesses becomes necessary.
*456G. Grohs, who was standing on the front platform of the car, at the right of the motorman, says that he first saw Mr. Wolf crossing the street, whereupon the gong was struck and the brake applied, causing the speed of the car to slacken; that Wolf stopped in the west track, whereupon the brake was released, and, the car going forward, he jumped in front of it when it was about seven or eight feetfrom him. On cross-examination, in referringto plaintiff’s husband, the witness was asked, “When he stopped, how far was the car from him at that time ?” and answered : “I guess about fifty feet. Q,.' What was Mr. Wolf doing during the time the car was running that forty feet ? A. He just made a stop there.” The testimony of this witness is corroborated by that of C. F. Lawson, the motorman in charge of the car, and also by that of J. R. Carswell, a passenger thereon at the time of the accident. Joseph S. Bier, another passenger, in speaking of Wolf as he halted in the west track, testified as follows: “ He looked right at the car.” Lawson, in referring to Wolf at the time the brake was applied, says: “When I stopped he looked up towards the car.” This witness, in answer to the question, “ Was there anything between the car and him to obstruct his vision ?” replied, “ There was nothing to obstruct his view at all.” Carswell, who saw plaintiff’s husband on the track, was asked, “ Was there anything to obstruct your view of Wolf?” and answered, “Nothing.” A fair analysis of the testimony shows that there is no controversy or dispute in relation to Wolf’s having stopped on the west line of rails, and remained in that position until the car had reached a line about .ten feet south of him, when, suddenly trying to cross in front of it, he sustained an injury which caused his death.
Though the witnesses for the respective parties disagree in their testimony in several material matters, the plaintiff’s right of action depends on the consideration of a *457single question — whether or not her husband’s proximity to the car when he attempted to cross in front of it affords such evidence .of contributory negligence that the trial court could say, as a matter of law, that it precluded a recovery of the damages sustained in consequence of the injury inflicted. In discussing this subject it will be assumed that the testimony given by plaintiff’s witnesses and the inferences deducible therefrom are true, and tend to show that at the time of the accident the car was running at a prohibited rate of speed, and that the gong was not sounded. Wolf was attempting to cross a public street on a walk provided for that purpose, and had a right to pursue his journey on the line selected. If a pedestrian could not legally cross a line of rails in a populous city in front of a street car, his travel on the public thoroughfares occupied by street railways would necessarily be limited to a few hours at night, when cars cease running, for in the daytime they constantly follow each other in rapid succession, and any crossing of the street would necessarily be in front of a car. So, too, a street car company, having secured a franchise, has a lawful right to propel cars along its tracks, and is not compelled to desist therefrom because some public crossing on its lines may be occupied by pedestrians, for, if the converse were true, no street car could be operated except when inclemency of weather or darkness suspended such ti’avel, thereby rendering the operation of street cars unprofitable and of no use to the public. Travelers on foot and in carriages, as well as street car companies, have equal and reciprocal rights in and to the use of public streets, and neither can deprive the other of the enjoyment thereof. Because a person is authorized to cross a street car track, the exercise of such right will not justify his attempting to do so in front-of an approaching car, when danger therefrom may reasonably be apprehended. The rights of travelers *458and of street cars to use public streets being commensu.rate, and the degree of responsibility of each measured by the facility with which their respective movements may be controlled, the crossing of a line of rails by a person sui juris will not constitute contributory negligence unless the proximity of an approaching car would have warned an ordinarily prudent mind of the impending danger: Campbell v. Los Angeles Trac. Co. 137 Cal. 565 (70 Pac. 624). In that case Mr. Justice McFarland, in speaking of the duty of a person attempting, to cross the track of a street railway in- front of a car, says: “ Of course, in a case like this there may be undisputed facts from which the legal conclusion of contributory negligence necessarily follows, and this may be so when the collision happens on a street railroad. But, as has been frequently held by this court, the same character of care is not demanded of one crossing a street railroad where cars are frequently passing at a slow rate of speed and can be easily controlled as is demanded.of one crossing an ordinary steam railroad running through the country, on which heavy trains, difficult to control, go at stated times with great speed. With respect to a street railroad, the mere fact that a person attempts to cross it when a car is seen to be approaching does not of itself constitute contributory negligence. Of course, one in close proximity to an approaching street car might walk or drive in front of it so suddenly as to clearly be guilty of contributory negligence; but ordinarily, whether or not he was negligent in-attempting to cross, under the circumstances of the case, is a question for the jury.”
In the case at bar we think the undisputed testimony shows that, though it be admitted that the car was running at a prohibited rate of speed, and that no bell was rung as the crossing was approached, the deceased, having seen the car, attempted to cross in front of it, and in such *459proximity thereto that his act conclusively shows such contributory negligence that the trial court should, as a matter of law, have told the jury that plaintiff could not recover for the injury sustained, and hence we are compelled to adhere to the former opinion. It is possible, however, that plaintiff may hereafter be able to prove that when her husband attempted to cross the track the car was farther away than is indicated by the testimony of defendant’s witnesses, and what has been here said is not intended to preclude another trial. The petition for a rehearing must be denied, and it is so ordered.
Reversed : Rehearing Denied.