•Former opinion sustained February 2, 1915.
On Rehearing.
(145 Pac. 1068.)
Department 1.
Mr. Justice McBridedelivered the opinion of the court.
On re-examination of this case upon the petition for rehearing, we are still of the opinion that the facts are as stated by Mr. Justice Moore, and that his conclusions therefrom are fully justified. Plaintiff’s evidence tended to show that the gravel train which *514caused the injury was hacking down the track at the probable rate of from 15 to 20 miles an hour, and it may be assumed, for the purposes of this case, that this speed was greater than prudence allowed in passing the mill and other buildings constituting the little community where the deceased resided. It may also be conceded that plaintiff’s contention that no sufficient lookout was maintained to discover persons walking upon the track is true, but the fact remains that deceased stepped suddenly in front of the moving train when it was approximately only 49 feet distant, and had taken three or four steps along the track with his back toward the train when he was struck and killed. It is idle to say that he had no warning of the danger of his situation. A railroad track is always a place of danger. Every rail and every tie is shouting danger, and it is the duty of a person to look if he is in a situation to look, and to listen if he is in a situation to listen. A single glance down -the track would have warned deceased of the impending danger, even if the winds prevailing might have prevented his hearing the approach of the train. Unfortunately he was heedless and failed to exercise any precaution for his own safety. It is fully demonstrated in the original opinion that deceased was not excused from the duty of taking these precautions by the fact that another train had just passed going in the same direction as the one which struck him, and further discussion of that subject is unnecessary.
2, 3. The contributory negligence of deceased is so clearly established by plaintiff’s own evidence as to be beyond question; and, unless the doctrine of the “last clear chance” can be invoked here, there was nothing to submit to the jury, and it was the duty of the court to have granted a nonsuit. The evidence for plaintiff *515in the case at bar shows that the right of way of the defendant was used by residents of that vicinity as a walkway for foot travel. How long this nse had prevailed does not appear. Certainly it had not been continued long enough for the public to acquire a right by prescription to use the right of way for that purpose. It is a matter of common knowledge that such rights of way and the tracks are commonly used by foot-passengers wherever they are more convenient than the ways constructed by public authorities. It goes without saying that such use is not desired or encouraged by the railway authorities, but merely suffered because of the difficulties of preventing it. Such use is never of any advantage to the transportation companies, but is a disadvantage and freqently a source of danger and annoyance; and at best, under the testimony, the deceased was a bare licensee to whom the company owed no duty beyond that of abstaining from any willful injury: Watson v. Manitou & Pike’s Peak Ry. Co., 41 Colo. 138 (92 Pac. 17, 17 L. R. A. (N. S.) 916); Montague v. Hanson, 38 Mont. 376 (99 Pac. 1063); Beehler v. Daniels, 18 R. I. 563 (29 Atl. 6, 49 Am. St. Rep. 790, 27 L. R. A. 512); Schreiner v. Great N. Ry. Co., 86 Minn. 245 (90 N. W. 400, 58 L. R. A. 75). The doctrine of the “last clear chance” cannot be invoked on behalf of plaintiff. This doctrine applies only to a perceived peril. It is remarked by Mr. Justice Bean in the case of Smith v. Southern Pac. Co., 58 Or. 22 (113 Pac. 41, Ann. Cas. 1913A, 434):
“Where plaintiff negligently assumed a position of danger in such a degree, and so contributed to his hurt as to leave him without right of recovery for any primary negligence of the other party, he may nevertheless recover, if the person charged with the wrong or injury became aware of the peril in time to avoid, *516by the proper use of all the means at his command, injuring him, and listlessly and inadvertently or negligently failed to resort to such means: Stewart v. P. R. L. & P. Co., 58 Or. 377 (114 Pac. 936); Scholl v. Belcher, 63 Or. 310 (127 Pac. 968); Rowe v. So. Cal. Ry., 4 Cal. App. 1 (87 Pac. 220); Herbert v. Southern Pacific Co., 121 Cal. 227 (53 Pac. 651); Harrington v. Los Angeles Ry. Co., 140 Cal. 514 (74 Pac. 15, 98 Am. St. Rep. 85, 63 L. R. A. 238); Black v. New York Ry. Co., 193 Mass. 448 (79 N. E. 797, 9 Ann. Cas. 485, 7 L. R. A. (N. S.) 148).
The case at bar is based upon the assumption, not that defendant saw deceased and negligently failed to warn him or stop the train, but rather that the persons in charge of the train negligently failed to keep a proper lookout and ran over deceased without discovering him; and there is no evidence indicating that it was possible for defendant to have stopped its train within the 49 feet that intervened between it and deceased, when he suddenly appeared on the track, even if his presence there had been observed. While the accident was deplorable in its consequences, we cannot avoid the conclusion that the negligence of deceased contributed to it to such an extent as to bar a recovery.
We adhere to the original opinion.
Sustained on Rehearing.
Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.