Opinion op the court by
JUDGE O’REARReversing.
Appellee was injured while crossing the intersection of Bismarck and Twenty-eighth streets by one of appellant’s cars running against her. She was crossing the intersection diagonally, so as to reach the opposite side and corner to take passage on the car. She had seen the car approaching, and had motioned to the motorman that she wanted to get on it. The motorman saw her, and understood her Signal. There were other passengers waiting at the comer for the car. Without looking back or paying further heed to the approaching car, appellee, continued her course. As she stepped upon the track, the car struck her. The motorman saw her plainly. But although she was going at an angle intersecting the track at a point in advance of the car, he thought that she would pause long enough to let the car pass, and then cross b'ehind it, as is usual. Instead, she stepped upon the track too late for him to stop the car. before striking her. It is complained that he neither sounded his gong, nor gave other signal of his approach. The purpose of sounding gongs on streets cars is to notify persons on or about to cross the track that the car is approaching, so that they may govern their actions with safety.
*808Where, however, the pedestrian sees the car, and knows of its approach, every purpose of the rule for sounding the gong has been fulfilled. The failure, therefore, of the motorman to sound the gong is not negligence to such pedestrian, if the latter sees or knows of the proximity - and approach of the car.
The instructions fairly state the law of the case, except in qualifying the defendant’s right to rely on plaintiff’s contributory negligence. The jury were told that if the plaintiff was herself negligent in going upon the track, and that but for her negligence she would not have been injured, the jury should find for the defendant, although defendant’s servant in charge was negligent as charged, unless they further found from the evidence that defendant knew of her peril, or by ordinary care might have discovered it, in time to have avoided injuring her by the use of ordinary care. This rule of qualification has been approved- and applied in certain cases where it was the duty of the railway company to be on the lookout for persons rightfully using its tracks at the point of injury. But we are of opinion that the instruction had no place in this case. Plaintiff was not in apparent peril until the moment she stepped upon the track, or showed her intention to do so. Being close to the track did not, alone, constitute peril. It was impossible for the motorman to,know what was in her mind, or that she intended doing such an unusual and hazardous thing as to step in front of a car which she had just seen, and which he knew she had' seen, and which she knew was passing over the track to the usual and known stopping place at the corner. It is common and very common for persons to cross the street railway tracks at other points than regular crossings, especially in crossing street intersections diagonally. The motorman’s duty is then to warn the *809pedestrians of the car’s approach. If, every time a motorman sees a pedestrian leave the sidewalk and ¡approach the track, he must stop his car, such traffic would have to yield to the pedestrians entirely. While pedestrians have an equal right with others to use the streets in the ordinary manner, yet they must do so with respect to the rights of other travelers, including the street cars. As the latter are bound to go on their tracks alone, and can not give way or stop so easily as the pedestrian, the latter reasonably should yield the right of way along the track. This is both customary and necessary, and must be known alike to the motorman and pedestrian. Each should govern his actions accordingly, unless he has notice that the other is about to disregard The rule and his own safety. In that event, however unjustifiable the other may be, every care then within the motorman’s power to avoid injuring the other must be observed. Appellee may have been in peril, in one sense from the moment she started from the sidewalk toward the track. But aside from her having for the moment lost thought of the danger to herself, and therefore determined to continue her course across the track ahead of the approaching car, she was not apparently in peril. To the mind of the motorman, she was not in peril unless by her actions he could see that she was obvious of the nearness of the car, and intended to continue her course without regard to it. But there was nothing in the evidence in this ease that would reasonably indicate that to the motorman. The qualification of the instruction as given was misleading.
Reversed and remanded for a new trial under proceedings not inconsistent herewith.
Petition for re-hearing by appellee overruled.