On Petition eor Rehearing.
Reinhard, J.Appellant’s learned counsel make a strong and plausible argument in their brief on petition for a rehearing in support of the position that appellee was shown to be guilty of contributory negligence in attempting to pass over the railway crossing so soon after the passing of the west bound train, and at their urgent insistence we have given the questions involved a second careful consideration. There is much to be said, it must be admitted, in favor of the position taken by counsel, and there are cases which, in a general way, and without careful analysis, would seem to go far toward supporting their view.
As to the question of the identification of the train which it is charged inflicted the injury upon the appellee, counsel contend that in view of the jury’s answer to an interrogatory in which it is stated that they did not know what train it was that ran upon the appellee, that it is impossible for this court to hold properly that such train was a train belonging to one of the lessees of the appellant — a fact which it was probably necessary for the jury to find before they could find a verdict against the appellant. But we do not think, on the other hand, that it would be proper to presume, in the face of the general verdict, that the train was one that had no right at all to enter the depot — in other words, that it was “a trespassing train,” as counsel want us to assume. The evidence is not *43in the record, and we are not permitted to look to it for information. If it was essential to prove that the train was one of those operated within the Union belt and under the control of appellant, this finding must be deemed by intendment to be included in the general verdict, and the answer of the jury that they did not know what train it was, would not necessarily contravene or overcome such presumption. It may have been proved upon the trial that all the trains running into and out of the Union Depot are trains of appellant’s lesees, and are operated by appellant, or under its direction. If so, the evidence was sufficient upon that point. There was no fatal variance between the ease made by the answers to the interrogatories and that counted upon in the complaint, as to this point.
We pass then to the question of contributory negligence. If failing to wait for the train to pass a sufficient distance to enable appellee to see whether another train was approaching, was negligence on the part of appellee, it must have been so because the peculiar condition of affairs required him to wait. But we cannot say, in view of the general verdict, what all the conditions were. It must never be forgotten that we are not dealing here with a special, but a general verdict, and answers to some interrogatories. The learned counsel treat this controversy throughout as if the interrogatories and answers thereto constituted a special verdict, and the jury had not returned a general verdict at all. They even controvert the proposition, if we understand them correctly, that it was our duty to indulge in any presumptions in favor of the general verdict, a matter we shall notice more particularly hereafter. In connection with the counsel’s insistence that the appellee Avas in duty bound to wait till the Avest bound train had passed beyond *44the point at which it obstructed the view of the train that struck appellee, counsel think we gave too much weight to the fact that the safety gate,stood open, and insist that we are in irreconcilable conflict with the case of Smith v. Wabash R. R. Co., 141 Ind. 92. Counsel say: “In that case, the traveler knew a flagman guarded the crossing; he was accustomed to depend upon his signals; he did not know that the flagman went off duty at 6:30 p. m., and when he approached between 6:30 and 7 p. m. he looked for the flagman, and not seeing him believed his nonappearance indicated that he was in his flaghouse and therefore no train was then approaching. Upon this assumption he went on, relying upon the fact that the flagman did not warn him, as an invitation to cross. Yet the Supreme Court, even in that case, held that the plaintiff’s duty of care was the same as it would have been had the crossing never been guarded by a flagman, and that his driving on, without looking out for himself, was negligence per se, to be passed upon as such by the court.”
One of the material features by which the case cited must be distinguished from the case in appeal, is that in the former there was a special verdict, while in the latter there was not. As the court there very properly say: “Unless all the-facts essential to a recovery by appellant are found in the special verdict, there was no error in rendering judgment thereon in favor of appellee.” The learned counsel will hardly contend that the circumstances and conditions of the place of the injury were shown to be alike, or even similar in the two cases. In the case relied upon, the crossing was on Main street, in the city of Danville, Illinois, “the principal thoroughfare east and west through said city.” The plaintiff in that case sought to excuse himself from looking and listening in the direction from *45which the train was approaching, and of which a clear view conld have been had by him if he had looked, and the train heard, had he listened, the track being unobstructed for some distance, by the fact that the safety gate was open and the flagman was not there, treating the open gate as an invitation to cross, upon which he had a right to rely. The court said: “The appellant did not look or listen after the first time, when he was 100 feet from the crossing. He had an unobstructed view to the north, could have seen if he had looked, and could have heard if he had listened. The surroundings were such as to. admit of his looking and listening. He neglected these precautions, and, by reason thereof was injured,” etc.
In the case at bar, we have no such conditions as these. Indeed, it may be truthfully said that the very opposite was true, as appears even from the answers to interrogatories, without resorting to the indulgence of any presumptions on account of the general verdict. Here “the surroundings were” not “such as to admit of his looking and listening,” but it is expressly found by the answers to the interrogatories that the confusion of noises was such as to render it impossible for him to hear. Looking conld not avail him because the west bound train was in the way, although the jury found they did not know why he could not see, and that the train was not in plain sight. But they also found that the appellee did look, in both direction's, after he had started across the track. It would require an extraordinary process of reasoning to lead the ordinary mind to the conclusion that the conditions were shown to be practically similar in both cases. It must be remembered, too, that in the present case there was a large number of tracks upon all of which engines and trains were almost constantly passing, and it is impossible to lay down any rule *46which would require a pedestrian, in such circumstances, to wait during any certain period of time after the passing of a train before undertaking to cross the track, otherwise he might never be able to pass over it at all. From anything that appears in the answers to interrogatories, as stated in our former opinion, other cars or engines might have been approaching from the opposite direction or from the same direction of the train that struck appellee, which would have made it exceedingly hazardous for him to remain longer at or near the place from which he started to cross the track. So long as the company maintains its crossing at grade with the public streets the footman certainly has some right to expect that it will adopt special precautionary measures to prevent injury from passing trains. Under these circumstances we think the jury was justified in taking into consideration the fact that the safety gate stood open and that no danger signals were given. There is no conflict between the case relied upon and the case at bar in respect of the question just considered.
The next contention of the appellant’s learned counsel is introduced by them, in their brief, as follows: “The court has announced in the case in appeal that a general verdict for plaintiff raises a presumption that it was proved that the plaintiff was, at the time of injury, not guilty of contributory negligence and that the defendant, upon appeal, if he would overcome the effect of the general verdict, must make it appear that the plaintiff was guilty of contributory negligence, or the verdict will stand. If this is the law, the case of Cincinnati, etc., R. W. Co. v. Howard,, 124 Ind. 280, was not properly decided. In that case, there was a general verdict. The defendant (appellant) did not attack that verdict with evidence or facts found, showing, or even tending to show that the plaintiff was guilty of *47contributory negligence. It went to tbe Supreme Court merely with the proposition tbat tbe plaintiff bad been allowed to go to tbe jury without proof as to wbat care sbe was exercising or wbat sbe was at tbe time doing, and therefore tbe jury could not say upon tbe proofs whether or not tbe plaintiff was negligent. * * * Tbe Supreme Court did not find tbat this verdict, which bad been ‘approved by tbe trial court’ raised any countervailing presumption in plaintiff’s favor, but merely applied tbe rule tbat tbe evidence did not warrant tbe jury in bolding tbat tbe plaintiff was exercising due care, and, even at tbat stage of tbe case, after verdict and approval of it by tbe trial court, reversed tbe case upon tbe strength of tbe presumption of negligence in tbe plaintiff.”
With all respect for tbe ability and standing of tbe learned counsel, we cannot refrain from expressing our surprise at this attempt to establish an analogy between a case where tbe error relied upon is tbe overruling of a motion for a new trial, owing to tbe insufficiency of tbe evidence to sustain tbe verdict, and one in which tbe evidence is not in tbe record, and answers to. interrogatories are relied upon to overthrow tbe general verdict. We are in full accord with tbe doctrine invoked by counsel tbat one who is injured at a railroad crossing by a passing train is prima facie guilty of contributory negligence, and must adduce some testimony to establish bis freedom therefrom before be can recover damages for tbe negligence of tbe railroad company. In our original opinion we expressly stated this to be tbe rule, but said tbat this presumption no longer prevailed after tbe general verdict and its approval by tbe judgment of tbe trial court. It is as to the latter part of this proposition that appellant’s counsel take issue with us and assert tbat it is in conflict with tbe ruling of tbe Supreme *48Court in the ease of Cincinnati, etc., R.W. Co. v. Howard, supra. That we were correct in our view as to the rule stated we entertain not a shadow of doubt. What we said on that subject was of course with special reference to a case like the present one, in which the evidence is not to be looked to in the solution of the question before us. Buteven if thequestion involved should arise on the sufficiency of the evidence, it cannot be successfully maintained that the burden of showing its sufficiency is upon the appellee, otherwise there would be no necessity of the appellant’s bringing before this court the record of the evidence at all, and that task would devolve upon the appellee. All the appellant would be required to do would be to assert that the evidence was insufficient to establish the plaintiff’s freedom from fault and throw the burden on the appellee to establish due care, precisely as he is required to do in the trial court. It seems to us that it requires no argument to establish the fallacy of such a proposition. Every lawyer who has had experience in appellate practice knows that error is never presumed upon any ground, but that the presumption is always in favor of the correctness of the judgment of the ni-si prius court, until the appellant has succeeded in showing by the record wherein the court has erred. We grant that in the determination of the errors relied upon, the appellate tribunal may and must, in proper instances, invoke the rules of law governing the lower court. Thus, if the error relied upon is the insufficiency of the evidence upon any given point, and it appears affirmatively that all the evidence is in the record, the Appellate Court must determine whether there was enough evidence before the trial court or jury upon the point in dispute to authorize them to make the finding that was made. In determining that proposition, the appellate tribunal *49will, of course, apply the rule that there is in the outset a presumption that the plaintiff was negligent, and it will determine whether the lower court correctly held that there was sufficient evidence to overcome such presumption. In other words, the appellant overcomes the presumption that there is no error by showing by the record of all the evidence adduced below that such evidence was insufficient; or, to be more accurate, that, upon the question involved, there was no evidence which warranted the jury or court to find as it did. In practice, as a matter of course, this court, or the Supreme Court, does not find it necessary generally to draw the distinction in the method of ap plying the rule as to presumptions between the Appellate Court and the trial court. Thus, in the case of Cincinnati, etc., R.W. Co. v. Howard, supra, with which it is contended we are in conflict, it was not necessary for the Supreme Court to declare that in considering the sufficiency of the evidence it would first indulge the presumption that everything done by the lower court was regular, that the judgment was right, that every ruling of the trial court was proper, that the evidence upon every point necessary to make out a case was sufficient. And yet this is precisely the rule upon which that court acted, and always acts in such cases, notwithstanding the fact that it does not in every case, reiterate the rule. There are some things, even in the decisions of cases on appeal, which must be taken for granted, and when a principle of practice has become so universally accepted as the one in consideration, courts will not feel called upon to announce it every time even though no question has been raised concerning it. In the case cited, the appellant had the burden of showing the insufficiency of the evidence in the particular respect in which it was claimed *50to be insufficient. To remove this burden the appellant was required to properly bring the evidence before the court, to show that it was all the evidence given, to discuss the point in the brief, and to do everything which the law prescribes should be done to accomplish that object. It is then, and not till then, that the court will examine the record and apply the rules of presumption applicable in the court below. And even then it will, as a general rule, only look for such defects in the evidence as are pointed out in the brief and supported by the record, the presumption of regularity adhering throughout until the assertion of the contrary has been made good by the record.
In the Howard case, it is literally true, as appellant’s counsel assert, that “the Supreme Court did not find that the verdict which had been ‘approved by the trial court,’ raised any countervailing presumption in plaintiff’s favor;” but that principle was unquestionably given its full application, notwithstanding the silence of the court upon the subject. It was not necessary for the court to declare that the points were properly raised in appellant’s brief, that the bill of exceptions was presented to the judge and filed within the proper time, duly certified by the judge, that the transcript was properly certified by the clerk, and duly filed in this court; that it was duly shown that all the evidence given in the trial court was brought into the bill of exceptions, etc., etc. The court tacitly found that all the steps necessary to overcome the presumption referred to had been taken. Having found this impliedly the court proceeded to examine the evidence in the record, and finding it insufficient, declared it to be so, and, in connection therewith, enunciated the rules which the trial court should have applied, and which, if it had applied, *51must have led that court to sustain the motion for a new trial.
To hold that there is no presumption in favor of the verdict and judgment of the trial court, on appeal to this or the Supreme Court, would be to entirely change the character of the proceedings obtaining here, as well as the character of the court itself. Unless such a presumption is indulged, the appeal is governed by the same rules as those prevailing in appeals from a justice of the peace tó the circuit court, where the case on appeal is tried do novo. There the judgment and its incidents have no presumptive force whatever, and the cause is tried the same as if no trial had ever been had and no judgment had ever been rendered. Not so, however, with appeals from the circuit to this or the Supreme Court. Ilere no causes are tried de novo. The record is brought here only for review and to determine whether the trial court committed any legal error in its rulings, and not for trial. Whatever may be the mode and nature of appeal, whether the case is brought here on reserved questions of law, or to review the evidence, the presumption of the regularity of the judgment, and every ruling behind it or incident to it, stands as a bulwark for the protection of the appellee, until overthrown by the recitals of the record to the contrary. Says Judge Elliott: “The rule that all reasonable presumptions and intendments will be made in favor of the rulings of the trial court is one of the best settled and most frequently applied rules in appellate procedure. The rule rests on a firm foundation. It is supported by the elementary principle that official acts are presumed to be rightfully performed. But when it is brought to mind that a court acts impartially, upon full information and with a calm deliberation, the foundation of *52the rule stated will at once be perceived to be broader and stronger than that which underlies the rule supporting the acts of ministerial or executive officers.” Elliott’s Appellate Procedure, section 711.
The presumption is, of course, not conclusive, and may always be rebutted. But it is “of such strength as to cast upon the party who assails the rulings of the trial court the burden of making it clearly appear that the rulings were wrong.” Id., section 710.
“It will be assumed on appeal, in eases where the record is silent, that the preliminary steps necessary to impart vitality and force to a judgment were duly taken.” Id., section 718.
And “it will be presumed,” says the same author, “that jurors have rightfully performed their duty and have returned a true verdict according to the law and the evidence. The general doctrine is declared and enforced in the many scores of cases which hold that it will be assumed that the verdict is supported by the evidence and that the jury properly decided the controversy in cases where the evidence is conflicting. * * * In short, all reasonable intendments will be made in order to support the verdict where the record contains nothing sufficient to justify its overthrow, and this doctrine is nothing more than a reasonable application of the general rule that a breach of sworn duty must be clearly shown.” Id., section 724
But if this rule is so universally applicable in cases where the evidence is in the record, and the judgment is assailed because of the insufficiency of such evidence, how much greater reason is there for giving it force where the evidence is absent and the only thing relied upon to overthrow the general verdict is the finding of the jury in answer to interrogatories submitted to them. So often has the rule been reiterated *53that, in order to override the general verdict, the answers to interrogatories must be absolutely repugnant to and in irreconcilable conflict with the former, and that such antagonism must appear on the face of the record beyond the possibility of being removed by any evidence legitimately admissible under the issues, that we had supposed it was no longer a subject for legitimate controversy. But to deny the duty of this court to indulge the presumption to which we have alluded, or make the intendment in favor of the general verdict, is asking it to strike down the rule just referred to, and treat the answers to the interrogatories as a special verdict, thus ignoring the existence of the general verdict absolutely. That the court will not presume anything in favor of the special findings of a jury as against a general verdict, but will make every reasonable presumption in favor of the general verdict, as against the answers to the interrogatories, see: McCallister v. Mount, 73 Ind. 559; Cook v. Howe, 77 Ind. 442; Pittsburgh, etc., R.W. Co. v. Martin, 82 Ind. 476; Lassiter v. Jackman, 88 Ind. 118; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88; Sanders v. Weelburg, 107 Ind. 266; Redelsheimer v. Miller, 107 Ind. 485; McComas v. Haas, 107 Ind. 512; Ft. Wayne, etc., R. W. Co. v. Beyerle, 110 Ind. 100; Rice v. Manford, 110 Ind. 596; City of Greenfield v. State, ex rel., 113 Ind. 597; New York, etc., R. W. Co. v. Grand Rapids, etc., R. R. Co., 116 Ind. 60; Chicago, etc., R.W. Co. v. Hedges, 118 Ind. 5; Smith v. Heller, 119 Ind. 212; Louisville, etc., R. W. Co. v. Creek, 130 Ind. 139; British American Assurance Co. v. Wilson, 132 Ind. 278; Evansville, etc., R. R. Co. v. Gilmore, 1 Ind. App. 468; Black v. Haseltine, 3 Ind. App. 491; Vance v. City of Franklin, 4 Ind. App. 515; Chicago, etc., R. R. Co. v. Brannegan, 5 Ind. App. 540; Cleveland, etc., R. W. *54Co. v. Johnson, 7 Ind. App. 441; Rittenhause v. Knoop, 9 Ind. App. 126; Lake Erie, etc., R. R. Co. v. McHenry, 10 Ind. App. 525; Indianapolis Union R. W. Co. v. Ott, 11 Ind. App. 564; City of Fort Wayne v. Farnan, 13 Ind. App. 536; Keeley Brewing Co. v. Parnin, 13 Ind. App. 588.
And so we think it indisputably true, under- our practice, that the general verdict will be aided by every reasonable intendment, while the contrary is true as to the answers to interrogatories. Hence we are still of opinion that there is a presumption in favor of the correctness of the general verdict, and that there is nothing in the case of Cincinnati, etc., R. W. Co. v. Howard, supra, nor in the case of Smith v. Wabash R. R. Co., supra, with which our ruling comes in conflict. We do not for a moment question the doctrine enunciated in those cases, that the burden is upon the injured party to overcome the presumption of negligence on his part, but we say that he has overcome that presumption by the verdict of the jury, approved by the judgment of the trial court, and having done that, it now devolves upon the appellant to show by the recitals of the record that such verdict was wrong.
It is also complained that we have “misconceived the effect of the findings of the jury as to Neubacher’s knowledge that the gates were not being used.” We have not attached, and do not now attach much importance to the position of the gate pole, except that it was a circumstance which the jury had a right to consider. Counsel will agree with us, we think, that as a general rule the open gate is an invitation for parties to cross, but we did not hold in our former opinion that it would be so under all circumstances, and that the appellee need not otherwise make use of his faculties if he saw the gate open.. If he could see and hear the train, he was bound to do that, and could *55not depend upon tlie open gate, and the failure to put out danger signals. But it was a question for the jury to determine whether, under the peculiar circumstances of this case, he had a right to place any reliance upon the open gates and the absence of danger signals, and the fact that the appellee knew the gate was not put down while another train had passed that crossing, would not of itself abridge or abrogate the right of the jury to so decide when they considered that circumstance with all others before them. Appellee knew that the gate was not closed while the train passed going west, but he did not know, and could not have known what happened that evening in connection with the gate before he arrived there. At least there is no finding that he did know that the gate was not operated. We do not know what other facts and circumstances the jury had before them by which they arrived at the conclusion that appellee exercised due and proper care. The appellant’s counsel admit that the jury found that although appellee had frequently passed there before, he did not know whether the gates were closed or a flagman was employed at night or not. If he did not know, and saw no danger signals, but saw the open gate, and otherwise used such precautions as a man of ordinary prudence having regard for his personal safety would use, as the jury necessarily found by their general verdict, we are not at liberty to say that such finding was unwarranted in view of the answers to interrogatories.
It is urged, however, that we have in effect overruled or refused to follow the recent case of Oleson v. Lake Shore, etc., R. W. Co., 143 Ind. 405.
As we have not the slightest inclination to come in conflict with the rulings of the Supreme Court, and as we understand our duty to be tó follow instead of overruling its decisions, we have made a careful ex*56am ination of the case referred to in order to ascertain whether some new principle of law had been there enunciated which had escaped our attention in the original decision. The opinion of Monks, J., in that case, contains an able and accurate presentation of the legal rules applicable to the facts established by the evidence, and after a careful examination of that opinion we are unable to find in it anything in conflict with our views of the law as declared in the original opinion in the present case. In the case referred to, the facts were undisputed and, as the court expressly found, but one inference could be drawn from them, which inference was, of course, for the court and not for the jury to draw. The trial court, after the plaintiff had concluded his evidence, directed a verdict for the defendant, and the Supreme Court held that this was proper. The plaintiff’s injury in that case, as in the present, occurred at a grade crossing by being struck by a moving train as he attempted to pass over such crossing on the highway. The station at or near the crossing was a small one, and the roadbed contained but two main tracks. The railroad ran east and west and the highway north and south. There was another highway which ran east from the first named, immediately south and adjoining the right of way of the railroad. The north track was for east bound trains and the south track for west bound trains. Trains frequently passed each other at the crossing. All of this he knew, as he lived near the railroad. The plaintiff was going west on the east and west highway, driving a horse attached to a light wagon, sitting sideways on a board between the wheels of the wagon, with his face to the south. As he turned north upon the highway which crossed the track north and south, he faced to the north, and looked both ways, east and west, when he saw a *57freight train about 400 feet west on tfie crossing and west of the depot coming from the west and going east on the north track. He stopped about forty feet from the south track and waited till this train going east had passed. He looked to the east, but saw no train. He could not see over a half mile to distinguish objects, the day being somewhat dark and cloudy, the wind blowing from the northeast. The smoke from the engine of the eastbound train obscured the view to the east after the engine passed the crossing. This freight train contained 30 cars and was about 900 feet long. After the last car had passed the crossing about two or three rail lengths, the plaintiff stárted his horse and drove upon the crossing. Just before he started his horse, he looked east and west and listened, but could see but a short distance east on account of the smoke. When he started his horse the smoke was clearing away and he could see about 100 feet to the east. As his horse stepped upon the track the plaintiff, who was still looking to the east, saw an engine and train of cars about 100 feet away approaching him from the east on the south track at the rate of from ten to fifteen miles per hour. He whipped the horse with the lines and endeavored to pass in front of the engine, but the rear wheel of the wagon was struck and plaintiff was injured. The whistle on the engine was not sounded, nor was the bell rung. From the point where plaintiff had stopped his horse he could see, except for the smoke, a distance of about a half mile eastward along the south track. There were no intervening obstacles, other than the smoke.
From these facts, to which the plaintiff alone had testified, the court below concluded there was no right of action shown, the plaintiff being guilty of contributory negligence. This view was shared by the Supreme Court and the judgment affirmed.
*58The court reiterated the general rule so often before declared as to what constitutes “ordinary care under all the circumstances,” on the part of a traveler who undertakes to pass over a crossing at grade. He must look and listen for signals and approaching trains, and use all his faculties to avoid danger. The greater the danger' the more vigilance he is required to use. If by listening or looking he could have avoided the danger, and failed to do so, he was at fault and cannot recover. If he did look and listen, and did not heed what he saw or heard, he was guilty of negligence. The court then proceed to demonstrate that the'plaintiff and appellant in that case did not make proper use of his faculties, or rather that he did not properly heed that which he had perceived by the use of them. In this connection we quote from the learned judge’s opinion: .
“It is clear from the appellant’s testimony, that when he came to a stop forty feet south of the south main track the east bound train was about opposite the depot, which was two hundred and fifty feet west of the crossing. This train was about nine hundred feet long, and going east on. north main track, at about the rate of fifteen miles per hour. When the caboose of the east bound train had passed two or three rail lengths east of the crossing, appellant saw the engine of the west bound train [the train by which he was struck] one hundred feet east of the crossing. This train was going at about the rate of fourteen or fifteen miles per hour, about the same rate per hour as the east bound train. It is clear that from the time the east bound train was two hundred and fifty feet west of the crossing until it reached the crossing the west bound train on the south main track was within one-half mile of the crossing and in plain view thereof. During all this time, and until the engine draw*59ing the east bound train passed onto the crossing, there was no smoke to obscure appellant’s view east on the south main track, and if he had looked in that direction any time between the time he stopped forty feet south of the track and the time the engine of the east bound train passed onto the crossing, he would have seen the train on the south main track approaching from the east. He' had an unobstructed view to the east, and he either did not look in that direction, or if he looked did not heed what he saw. It would be no excuse that immediately afterward the smoke obscured his view of the approaching train, so that he could not see its approach. He knew it was approaching and went upon the track at his peril. Such conduct, under the authorities cited, is negligence per se. ”
There is here not a word said, it will be observed, as to the duty of the injured person to wait until the train going east had passed a sufficient distance to enable him to see whether another train was then approaching from the east. The plaintiff and appellant in that case was held guilty of contributory negligence, not because he failed to wait until the obstruction of his view, caused by the east bound train was removed, but because he entered upon the track after he could have seen, and in fact had seen the train approaching from the east at a rate of speed of from ten to fifteen miles per hour, and by endeavoring to pass in front of the engine knowingly exposed himself to the danger of the collision which followed. AYe have italicized that portion of the quotation we made from the case relied upon as declaring the law differently from the way we stated it in our original opinion in this case, which we think clearly shows the ground upon which the Supreme Court base their opinion, and it does seem to us that the merest tyro in *60the law will be able to distinguish the two cases at a glance. In the case before us for final determination it is not claimed that the appellee could have seen, and did see the train that struck him approaching the crossing for a distance of one-half mile, 100 feet, or any distance whatever, or that he could have seen it, had he looked and listened. The only claim here made is that if he had waited until the west bound train had passed a sufficient distance, he might have seen the train by which he was run down advancing toward the crossing. How the ruling of the Supreme Court in the case from which we have quoted can be said to be in conflict with our holding on the question of contributory negligence is therefore not easy for us to perceive.
In the case referred to, the court proceed to say that even if the smoke from the east going engine had obstructed the view east of the crossing for some distance, he knew that this was but a momentary obstruction, which the wind would presently clear away, and that he would then be enabled to have a clear view east on the south track for one-half mile. He knew that a train could and did run west on the south track, while trains were going east on the other. The railroad company had done nothing to mislead him or throw him off his guard. Under these circumstances the court declare that it was his duty to wait until he could see and hear and ascertain with reasonable certainty that it was safe to cross.
It will be observed that these facts are only assumed and the rule applied which would govern if they had been true. The actual facts showed, as we have said, that the plaintiff could have seen the train approaching half a mile away, and did see it when he entered upon the track, 100 feet distant. But even the supposed facts do not coincide with those in the *61present case. Here, as has been shown, trains and engines were constantly passing, and instead of a double track we have a large number of them. The crossing was upon one of the principal streets of a populous city, at grade, where pedestrians had a right to cross and recross and must do so in order to use the street. We do not say that under such circumstances the traveler over the tracks was. not bound to use the highest degree of vigilance consistent with the surroundings. But while this was the duty of appellee, a like degree of care devolved upon the appellant, and the appellee had a right to assume that this was being done. He could not be required to wait for an indefinite length of time and see that no train or engine was approaching from either side before he could legitimately undertake to cross. The crossing was a public highway and pedestrians had a right to its use, as well as the railroad company. We do not declare as a matter of law that the appellee was or was not guilty of negligence under the facts, for we have not all the facts before us. What we do hold is that it was a question for the jury to determine from the evidence as to whether the appellee exercised such care as the law required at his hands. In the case relied upon the evidence was in the record, and the court could well determine from it whether the plaintiff was or was not at fault. In the case at bar, the evidence is not in the record, and we would not be permitted to look to it if it were, and the answers to interrogatories are not antagonistic to the presumption of due care which the general verdict carries with it. Granting that some of the facts proved and assumed in the Oleson case were like some of the facts in the case at bar, it does not follow that the latter must turn upon the same facts upon which the Oleson case turned. Because, in the Oleson case there was a volume of *62smoke made by the passing train which rendered it dangerous for the plaintiff to pass before it had cleared away, we are not required to hold that in the present case the appellee was also bound to wait till the smoke had disappeared. Otherwise the appellee might be required to wait forever before attempting to enter upon the highway at this crossing. There is no law that requires him to do this.
Appellant’s learned counsel also find fault with our construction of the case of Mayo v. Boston & Maine Railroad, 104 Mass. 137. Counsel say that this case was not one involving the rights and duties of a traveler upon a highway at a railroad crossing at all, and in support of this assertion state that the plaintiff had been a passenger of the defendant railroad company, “and had been discharged from its train at a point substantially upon a highway or street.” Our only purpose in citing this case, as may be plainly seen from the reading of our former opinion, was to show that it is not conclusive proof of negligence on the part of the plaintiff that he passed over the crossing at a time when his view of the track was obstructed by a passing train. Notwithstanding the fact that in the case cited the plaintiff was or had been a passenger on the defendant’s railroad, when she undertook to cross the track at the highway crossing, she was bound to exercise that “due and ordinary care” which pedestrians are required to exercise when about to pass over such a crossing. 1 The fact that one has been a passenger, and is still entitled to the protection as such, while in the act of leaving a train and a railway station, does not absolve him from the duty of exercising proper care at a crossing over which he is required to pass in his route from the train, nor is the opinion based upon any theory to the contrary.
In the case cited the court did not undertake to de*63fine the exact degree of care that must be used by the discharged passenger, as distinguished from that to be exercised by other pedestrians. The court in that case simply ruled that it was a question for the jury to decide, whether due care had been exercised. “If she went upon the track,” says the opinion of the court, “where another train was to be expected at any time, when she was unable to see whether it was approaching or not, or without looking to see if the way was clear of danger, she did not use that reasonable precaution which every one is bound to exercise for his own protection in such places. We are unable to see how the accident could have happened without some want of proper care on her part. The inference from the result is very strong. But its force is applicable only in disproof of whatever testimony there may be tending to show the exercise of care. It presents only the question of preponderance; and however decided that preponderance, it does not transfer the determination of the issue from the jury to the court.” (The italics are our own.) This supports our holding fully. Indeed, the case at bar is a stronger case for the appellee than the case cited, for in the Massachusetts case the facts were all before the court, while here the evidence is absent. Neither case, however, is one in which the court is permitted to say as matter of law that the conduct of the plaintiff showed contributory negligence. To use another quotation from the opinion in the Mayo case: “We do not perceive, therefore, in the mere fact that she started to cross the railroad track so soon after the train by which she came had left the station, such clear and inexcusable want of care as to justify the court in withdrawing the case from the jury.” This is precisely our view as to the case at bar. We cannot say, in the absence of the evidence, whether the appellee was or *64was not chargeable with contributory negligence in starting over the track so soon after the west bound train had passed the point opposite that where appellee stood. It was a question for the jury, and, although there are findings indicating carelessness on his part, they are not so clear and conclusive as to overcome the presumptions in favor of the general verdict. Nor do we think a different rule is announced in Fletcher v. Pittsburg, etc., R. R. Co., 149 Mass. 127. The ruling in the case just cited in no wise conflicts with that in the Mayo case. The Fletcher case was reversed upon the evidence. There a driver of a four horse team undertook to drive across a railroad track at a grade crossing immediately after a freight train had passed. He knew there was no gate or flagman there and that a passenger train was due at about that time each day, and was familiar with the crossing. Under these circumstances he was held guilty of contributory negligence. The facts in the Fletcher case were similar to those in Marty v. Chicago, etc., R. W. Co., 38 Minn. 108, which the appellant’s counsel think is also in conflict with our holding. A very cursory examination will serve to disclose the difference in these cases.
Other cases cited by us, it is insisted by counsel for appellant, do not support the views we expressed in the former opinion. We have again examined those cases, and are still of opinion that they bear the construction we have placed upon them. Nothing has been said in the very elaborate brief of appellant’s counsel which leads us to any different conclusion than the one at which we arrived in our original, opinion.
Petition overruled.