concurring:
I concur with my associates in the conclusion that the judgment of the court below should be affirmed. I must, however, dissent from that portion of the opinion which declares that, “while it is the duty of everyone under ordinary circumstances to use his eyes and ears amid conditions of danger, the failure to look and listen before entering upon a street-car track does not constitute negligence as matter of law. Capital Traction Co. v. Apple, 34 App. D. C. 559. Negligence in this respect depends upon the circumstances of the particular case, and is for the determination of the jury.” The statement referred to in the opinion of the court in the Apple Case is as follows: “That plaintiff’s intestate did not stop, look, and listen before crossing the track in a city street would not warrant the conclusion of contributory negligence as a matter of law.” It will be observed, from a comparison of these two statements, that the court in the case at bar has entirely lost sight of the distinction between an act which is negligent in itself, and an act, though negligent, which must depend upon attending facts and circumstances before it can be said to be, as matter of law, contributory negligence. I found no difficulty in agreeing in the Apple Case that there was nothing in the facts there which would warrant the conclusion that the mere going upon the tracks of the defendant company, without looking and listening, was sufficient in itself to constitute contributory negligence.
The above declaration of the court in the present case is equivalent to the announcement of a rule of law in this District that it is never, under any state of facts, negligence, as matter of law, ,for a pedestrian or driver of a vehicle to enter upon the tracks of a street railway without first looking and listening for the approach of cars. It was unnecessary for the court to indulge in the above statements in either the Apple Case or the one at bar, but since the rule here announced might be construed as the unanimous holding of the court, I cannot let it pass without an expression of my views.
In the Apple Case the plaintiff undertook to cross the tracks *183of the defendant company, and was struck by a car running at an unlawful rate of speed. If the train had been moving at a lawful rate of speed, the plaintiff would have had sufficient time to cross the track in safety. There was also evidence tending to show that the motorman was negligent in not giving warning by the sounding of the gong, and in not stopping, or attempting to stop, his car when, by the exercise of reasonable care, he could have discovered the perilous position of the plaintiff. But in that case there was evidence that plaintiff did look before entering upon the tracks, and the case was tried upon that theory. The whole question of contributory negligence was therefore one for the jury.
In the present case I am content with the distinction made by Mr. Justice Holmes in Vincent v. Norton & T. Street R. Co. 180 Mass. 104, 61 N. E. 822. I can recognize a distinct difference between a person driving a closed vehicle along a street car track failing to keep a constant lookout behind for the approach of a car, and a pedestrian or driver of a vehicle attempting, without looking or listening, to cross a track in the presence or hearing of an approaching train. Hence there is no occasion in this case to announce a doctrine which to me seems utterly foreign to the law.
The duty to look and listen before crossing either a steam or street railway is alike imperative. The reason for this is easily understood. The rule is universal that it is negligence for a person to enter a place where danger is known to exist, or where danger is clearly apparent, without using his senses to avoid accident. A railway track, wherever situated, is always a warning of danger to persons entering upon it. It follows that any person entering this danger zone must use his senses to avoid accident, and the only senses that would be of any avail are sight and hearing. I therefore conceive it to'be the law that it is always negligence to enter upon a street car track without looking and listening, but whether it is contributory negligence may be either a matter of fact or a matter of law, according to the facts and circumstances of the particular case.
The track of either a steam or street railway is, of itself, a *184warning of danger to those about to go upon it. It constitutes a danger zone, into which no one may enter without the exercise of ordinary and reasonable care for his own safety. He is bound to avoid, and not invite, accident.. This court said in. Warner v. Baltimore & O. R. Co. 7 App. D. C. 79: “It has been repeatedly said that the very presence of a railroad track is itself notice of danger; and no man of ordinary intelligence has the right to go upon it without talcing the ordinary precaution of stopping and looking for approaching trains.” Or, as was said in Elliott v. Chicago, M. & St. P. R. Co. 150 U. S. 245, 37 L. ed. 1068, 14 Sup. Ct. Rep. 85: “The track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed that cars are not approaching on a track, or that there is no danger therefrom.” To the same effect are Mynning v. Detroit, L. & N. R. Co. 59 Mich. 257, 26 N. W. 514; Maryland C. R. Co. v. Neubeur, 62 Md. 391.
That it is. not always contributory negligence as matter of law, but that it is always negligence, to enter upon either a steam railway track or a street car track without first looking and listening, I conceive to be the established law of this country. The rule announced in Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 24 L. ed. 542, has been followed by that court, and is the rule binding upon us. In that case the court sáid with respect to a woman who was struck upon a railroad track: “She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad com*185pany can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure.” To the same effect are Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615, 29 L. ed. 224, 5 Sup. Ct. Rep. 1125; Elliott v. Chicago, M. & St. P. R. Co. supra.
I ain aware that a distinction is made between the degree of care imposed upon a person entering upon the tracks of a steam railway, and one going upon street-car tracks on a public street. The distinction, when narrowed to the duty of using the senses to avoid danger, is one more of fiction than of law. It consists not so much in the duty of one entering upon the track to look and listen, as to attendant conditions and circumstances arising from the common use of the street that will, in many cases like the present, modify the rule and present a state of facts touching the question of contributory negligence, which should be submitted to the jury. The facts and circumstances which in a given case would constitute contributory negligence in case of an accident occurring on the tracks of a steam railway, owing to the less strict application of the rule, might fall far short of establishing such negligence in the case of a street railway accident. The difference in the application of the rule relates not to a particular fact, as the failure to look and listen, but to all the facts and circumstances surrounding the particular case. What the court could say was contributory negligence, as matter of law, in the case of the steam railway, might not constitute such negligence in the case of the street railway. The difference, however, in the application of the rule is one of degree arising from the whole case, and not from the duty to look and listen.
I have been unable to find a single authority, State or Federal, which lays down the absolute rule that a person may enter upon a street car track without observing the precaution of looking and listening, and relieve himself of the charge of negligence. If such negligence be the contributing, proximate cause of the accident, even the concurring negligence of the railway company will not justify the submission of the question *186of contributory negligence to tbe jury. It is also tbe law that where one entering upon a railway track looks and listens so carelessly that his going upon the track becomes the proximate cause of the accident, he isv in no better position than if he had neglected to observe these precautions.
A recent opinion by Circuit Judge Van Devanter of the eighth circuit, in Denver City Tramway Co. v. Cobb, 90 C. C. A. 459, 164 Fed. 41, well expresses the law as follows: “The negligence of the defendant consisted in a failure to give a timely signal or warning of the approach of the car, and in a failure to make timely observation of the surroundings at the crossing, so that the speed might be checked or the car stopped in time to avoid a collision, if there was occasion to apprehend one. But the injury was not wilfully or wantonly inflicted. On the contrary, when it was discovered that a collision was probable, all was done that could be done to avoid it, and the car was stopped within the shortest possible distance. We think the case is plainly one where both parties were negligent, each having disregarded his own duty, and seemingly relied upon a performance of the duty of the other, and where their concurring negligence resulted in an injury which would have been avoided if the duty of either had been performed. In such a case the law gives no right of recovery. Schofield v. Chicago, M. & St. P. R. Co. supra; Chicago & N. W. R. Co. v. Andrews, 64 C. C. A. 399, 408, 130 Fed. 65, 74; Id. 195 U. S. 628, 49 L. ed. 351, 25 Sup. Ct. Rep. 787; Chicago, R. I. & P. R. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286; Hafner v. St. Louis Transit Co. 197 Mo. 196, 94 S. W. 291; O’Brien v. St. Paul City R. Co. 98 Minn. 205, 108 N. W. 805. But it is urged that the plaintiff’s duty was performed because, before leaving the sidewalk, he looked along both streets, and saw no car. It must be held otherwise. The purpose in requiring him to look at all made it necessary that he should do so at a place and time when it would be reasonably calculated to be effectual for his protection.. His looking at the time and place selected did not satisfy this requirement. His view along Broadway was then so obstructed that the car, which the collision showed was *187in close proximity to the crossing, could not be seen by him. It was after he passed the coal wagon that his view became unobstructed. lie should have looked again at that time, and his failure to do so was negligence. Chicago G. W. R. Co. v. Smith, 73 C. C. A. 164, 141 Fed. 930; Saltman v. Boston Elev. R. Co. 187 Mass. 243, 72 N. E. 950; Bartlett v. Worcester Consol. Street R. Co. 189 Mass. 360, 75 N. E. 706; Hafner v. St. Louis Transit Co. supra; Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 70 L.R.A. 681, 81 Pac. 801, 3 A. & E. Ann. Cas. 700.” To the same effect are Pittsburgh R. Co. v. Cluff, 79 C. C. A. 438, 149 Fed. 732; Denver City Tramway Co. v. Norton, 73 C. C. A. 1, 141 Fed. 599 ; Pyle v. Clark, 25 C. C. A. 190, 49 U. S. App. 260, 79 Fed. 744.
This imperative duty to look and listen before entering upon a street railway track is also announced in the following cases: Reiss v. Metropolitan Street R. Co. 28 Misc. 198, 58 N. Y. Supp. 1024; Clancy v. Troy & L. R. Co. 88 Hun, 496, 34 N. Y. Supp. 877; Lefkowitz v. Metropolitan Street R. Co. 26 Misc. 787, 56 N. Y. Supp. 215; Smith v. Electric Traction Co. 187 Pa. 110, 40 Atl. 966; Warner v. People’s Street R. Co. 141 Pa. 615, 21 Atl. 737; Thomas v. Citizens’ Pass. R. Co. 132 Pa. 504, 19 Atl. 286; Wood v. Detroit City Street R. Co. 52 Mich. 402, 50 Am. Rep. 259, 18 N. W. 124; Houghton v. Chicago & G. T. R. Co. 99 Mich. 308, 58 N. W. 314; McGee v. Consolidated Street R. Co. 102 Mich. 107, 26 L.R.A. 300, 47 Am. St. Rep. 507, 60 N. W. 293; Volosko v. Interurban Street R. Co. 190 N. Y. 206, 15 L.R.A. (N.S.) 1117, 82 N. E. 1090; Garvick v. United R. & Electric Co. 101 Md. 239, 61 Atl. 138; Hurley v. West End Street R. Co. 180 Mass. 370, 62 N. E. 263.
In Willis v. Boston & N. Street R. Co. 202 Mass. 463, 89 N. E. 31, the court said: “It is evident, we think, that the plaintiff must have stepped upon the track almost directly in front of a rapidly approaching car which was in plain sight. He acknowledged on cross-examination that the car must have been in close proximity to him when, as he testified, he looked. The case comes, it seems to us, within the class of cases in which *188it has been held that the plaintiff, if he looked or listened, must have done so carelessly, and is consequently in no better position than if he had not looked and listened at all. Beirne v. Lawrence & M. Street R. Co. 197 Mass. 173, 83 N. E. 359; Fitzgerald v. Boston Elev. R. Co. 194 Mass. 242, 80 N. E. 224; Donovan v. Lynn & B. R. Co. 185 Mass. 533, 70 N. E. 1029; Mathes v. Lowell, L. & H. Street R. Co. 177 Mass. 416, 59 N. E. 77; Roberts v. New York, N. H. & H. R. Co. 175 Mass. 296, 56 N. E. 559.”
Until the present case, the unbroken line of decision in this court has been to the effect that one who fails to look and listen before entering upon a street railway is guilty of negligence; and if the negligence be the proximate cause of the accident, it then becomes contributory negligence as matter of law. In Harten v. Brightwood R. Co. 18. App. D. C. 260, the present Chief Justice, delivering the Opinion of the court, said: “Giving the plaintiff the benefit of every inference that can be fairly deduced from her own account of the cause of her injuries, we find no error in the instruction given to the jury to find for the defendant which inflicted them. It is unnecessary to consider whether the defendant operating the car which did the injury was guilty of negligence that would warrant the submission of that question to the jury, for we are of the opinion that the plaintiff was plainly guilty of contributory negligence. The accident could not have occurred had she exercised any degree of care before crossing the tracks. She was familiar with the place, and knew that a ear might be expected upon the track at any moment. The trade was practically straight and wholly unobstructed for Several hundred yards. One looking up the track for the coming car could not fail to see it, and it was not possible for the car to traverse the space along which it was clearly visible, between the time the plaintiff looked for it as she passéd from one track to the other, and the moment when she stepped upon the rail and was struck by the fender attached to the front of the car.” It is somewhat difficult to reconcile this able expression of the law with the utterance under consideration in the present case.
*189In Barrett v. Columbia R. Co. 20 App. D. C. 381, Chief Justice Alvey, speaking for the court, said: “The accident occurred in open daylight. The plaintiff was familiar with the location and all its environments. We must suppose that he well understood the dangers in attempting to cross the double tracks of a street railroad on a bicycle, without first seeing that he could safely do so without coining in conflict with passing cars. In this ease the whole scene was open to the plaintiff, and he was required to exercise not only his sensefe of sight and hearing, but his common sense as well. Unfortunately for himself, he undertook to follow upon the north side of the west-bound car for a short distance, and then suddenly to turn and attempt to ride across the tracks immediately behind the passing car, without knowing, or taking the precaution to learn, what he might encounter on the east-bound tracks.” To the same effect is Hurdle v. Washington & G. R. Co. 8 App. D. C. 120.
While the line between negligence as matter of law and negligence in fact is not well defined, one of the clearest distinctions that I have observed is found in the opinion of Mr. Justice Morris in Washington & G. R. Co. v. Wright, 7 App. D. C. 295: “It appears to us, however, that what we said in the recent case of Warner v. Baltimore & O. R. Co. 7 App. D. C. 79, may serve to aid us in the consideration of the subject. There we said that no one is entitled to disregard with impunity the usual safeguards and the usual precautions which every person of reasonable mind and ordinary intelligence recognizes as right and proper to be observed when dealing with the modern instrumentalities of rapid transit, unless there has been some inducement, expressed or implied, held out by the railroad company or its agents, that one may depart therefrom without danger. It seems to us to be the rule deduced from all the authorities, that when a railroad company creates a situation, or permits a condition of things to exist, which it is its duty to make a situation or condition of safety, and a person who is brought into relation with the company, and who has the right to rely upon the safety of the situation so created or of the condition of things so permitted to exist, is injured, notwithstanding the *190assurance so held out to him, he is not chargeable, as a matter of law, with contributory negligence, although the situation or condition was in its nature one of risk and danger; and the question of negligence in such a case is one of fact, to be submitted to a jury. The converse of the proposition is likewise true, that when a defendant has had no part in the creation of a situation which has induced a plaintiff to assume a position of obvious peril which otherwise he would not have assumed, and when the position is plainly one that, in the absence of the circumstances supposed to justify it, should charge the person as for an act of negligence, it would be manifestly unjust to hold the defendant for that which he did not cause and could not control.”
What inducement is held out by the railroad company to persons on the street to blindly and recklessly enter upon its tracks in front of approaching cars ? The track itself, while a warning of danger, does not create a dangerous trap into which unsuspecting victims may enter. It is placed there by authority of law, for a wholly beneficial purpose. It is a comparatively safe place to go in the exercise of ordinary care, and when one disregards his duty to be careful, and enters upon the tracks in front of an approaching car, he, and not the railway company, creates tbfe dangerous situation. His own negligence has placed him in {/dangerous position, in which, if he is injured, he must accept the consequences. His act, if the proximate cause of the injury, is contributory negligence as matter of law.
The relation between the street-car company and the public in the use of the street is a reciprocal one. The railway company is chartered not for the benefit of the corporation which owns and operates the system, but as a public utility, for the convenience and accommodation of the public. Cities cannot be built and maintained without a system of rapid transit, and it is to meet this necessity that street car companies are incorporated and granted the privilege of laying their tracks and operating their cars in the public streets. It may safely be said that four fifths of the population of Washington use this method of travel, and the rights of this large percentage of the public are *191to be considered in determining this reciprocal right to the nse of the streets. It is because the street car must move on a definite track, move rapidly, and furnish means of transportation for a large proportion of those using the streets that it is accorded by law a preferential right of way as against pedestrians or drivers of vehicles, who constitute but a small percentage of the traveling public. It must be conceded that' this legal preferential right of way accorded the railway company means something. There must be some obligation resting upon a pedestrian or the driver of a vehicle to respect this right. But what obligation exists if a person may blindly and deafly walk or drive in front of a street car, under circumstances which render it impossible for the motorman to prevent an accident, and still impose upon the railway company the burden of establishing, to the satisfaction of a jury, that such person was in fact guilty of contributory negligence %
Under the rule announced by the court in this case, the trial court would be limited in instructing the jury to charge that, to authorize recovery, they must merely find that the injured party exercised ordinary care and prudence in entering upon the track. Why not give the same charge as to the duty of the motorman ? As the agent of the railway company, he has the right of way, and the superior right to the use of the street, at the point where the accident occurs. But the court will properly instruct the jury that the motorman is required to use ordinary care and prudence in the movement and operation of his car, and that, before he can be said to have exercised such care and prudence, he must keep a lookout at all times for objects ahead on the track. If he sees an object on the track or approaching dangerously near to it, it is his duty to sound the gong, and have his car under such control that he can speedily stop it, should the danger of an accident become imminent. This general form of instruction as to the duty of the motorman is undoubtedly correct; but, in his case, the exercise of reasonable care and prudence becomes a conclusion for the jury to draw from the existence of certain definite facts pointed out by the court, and which must appear from the evidence in the case; while, in *192the case of the pedestrian or driver of a vehicle, this conclusion is left to be drawn not from a given state of facts, or from the evidence adduced at the trial, but from the whim and imagination of the jurymen. This is not the law. There are facts that must exist before the pedestrian or driver of a vehicle entering upon a street car track, and injured while in this danger zone, can claim that he has not been negligent, and, if negligent, that he has not been guilty of contributory negligence. He must exercise the precautions of a sensible and reasonable man, and those precautions can alone consist in carefully using his senses to the extent of looking and listening before entering upon the tracks; and if a car is approaching in full view, dangerously near, it is not only his duty to see it, but to wait until it has passed before attempting to cross. If the chances are even that he can cross without being caught, it is still his duty to respect the paramount right of the railway company, and wait until the car has passed. At this point, where the chances of avoiding a collision are barely equal, the pedestrian or driver of a vehicle has not an equal right with the railway company to use that part of the street occupied by the railway tracks. The time has arrived when the rights of the railway company become superior. The motorman at this juncture has the right to assume that a person approaching the track will use his senses and look and listen before entering upon the track, and, until it becomes apparent- that he is blindly and deafly walking or driving in front of the car, the motorman is entitled to rely upon this assumption. Of course, as soon as the danger of an accident becomes apparent, it is his duty to use every means at hand to prevent the accident; and it is his duty, not only to keep a lookout and sound the alarm, but to have his car in hand for such an emergency. In Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578, it was said: It is negligence per se for a foot traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind under such circumstances, upon nice calculations of the chances of injury. If such attempt he made, and the calculations fail, to the plaintiff’s harm, he can have no *193redress for injuries received in his mistaken effort. It is not the exercise of common or ordinary care.”
If it be held that a motorman is bound to bring his car to a standstill every time he sees a person or vehicle approaching the track, rapid transit would be an impossibility, and the great majority of the traveling public would be deprived of the convenience extended through the agency of a system for that purpose. Of course, I will concede that the failure to look and listen before crossing a street railway will not, under all circumstances, per se constitute such contributory negligence as will prevent recovery. Burbridge v. Kansas City Cable R. Co. 36 Mo. App. 669; McClain v. Brooklyn City R. Co. 116 N. Y. 459, 22 N. E. 1062. While insisting that it is always negligence, I will not contend that it is always contributory negligence, as matter of law, to enter upon a street car track without looking and listening; but where the danger is apparent, and the pedestrian or driver of a vehicle is not prevented by some obstacle or the exigencies of travel, as in the present case, from a reasonable opportunity to observe the approaching car, but blindly and deafly advances into inevitable danger, he cannot cast upon the railway company the obligation of establishing his contributory negligence by proof to the satisfaction of a jury-
Before contributory negligence, as matter of law, can exist, it must consist in such an act as not only contributes to, but is the proximate cause of, the accident. It may well be that, because of the common use made by the traveling public of the streets, a person may enter upon a street car track under conditions where the mere going upon the track without looking and listening would not of itself constitute the proximate cause of the accident. This distinction is to be drawn from the facts in the particular case under consideration. A person may enter upon the tracks where it is perfectly safe, and, though it is negligent to do so without looking and listening, it may not of itself constitute contributory negligence as matter of law. It may be, as in the case at bar, that, while it was negligence for the plaintiff to go upon the tracks at a point seven blocks from *194the scene of the accident without looking and listening, the proximate cause of the accident cannot be traced to that act, but to the failure of the motorman to give timely warning of the approach of the car, and to the running down of plaintiff’s automobile at a point where the conditions were such as to prevent escape from the track. When the danger became imminent through the motorman’s failure to give notice of the approach of the car, plaintiff, by reason of conditions known to the motorman, was deprived of an avenue of escape.
But these exceptions will not admit of the broad statement that the entering upon a street car track by a pedestrian or the driver of a vehicle, without using his senses of sight and hearing, is never, as matter of law, the proximate cause of the accident or collision which follows as a direct result of his heedless conduct. Where one recklessly goes upon the track when the car is approaching at a point dangerously near, where its approach can be seen or heard, and the accident results either solely from the act of the injured party, or through the concurrent negligence of the railroad company, the heedless entering upon the track constitutes the proximate cause of the accident, and will prevent recovery, unless the motorman, by the exercise of reasonable care, could have prevented the collision after the danger became imminent.
The trial judge does not sit as a mere moderator or presiding officer at the trial. It is his duty to apply the law to- the case before him. If the facts on a given point clearly forbid its submission to the jury, it is the duty of the court to withdraw it from their consideration, and if it involves the plaintiff’s entire case, a nonsuit should be entered. It is as erroneous to refuse to enter a nonsuit when the law entitles the defendant to such relief, as it is to erroneously grant it. There is nothing so sacred about the right of trial by jury that a judge should omit to perform his duty when it is clearly indicated by the law. Litigants are entitled to this consideration at the hands of the court; and it is the- duty of the court in such instances, where the law, when applied to the facts disclosed, warrants it, to terminate the case. The jury is not the sole machinery in the *195trial court. The judge at all times has control of the cause, and it is his duty to direct the jury as the law requires, irrespective of the interests involved.