The opinion of the court was delivered by
Allen, J. :I. The principal contention of the plaintiff in error is, that it was the duty of the deceased, Hinds, to stop before attempting to cross the railroad track, under all the circumstances of the case. It is admitted on both sides that the track on which the train was approaching was completely obscured by the rank growth of sunflowers from the view of a traveler approaching on the highway, and that a very high wind was blowing atthe time, which rendered it difficult *762to hear. Under these circumstances, it is contended that the court should declare, as a matter of law, that it was the duty of the deceased to stop, and that, having failed to dp so, he was guilty of contributory negligence barring a recovery. It would serve no purpose to review the authorities from other states cited in support of this contention. Under the prior decisions of this court, it was a question to be determi/iied by the jury under proper instructions. (A. T. & S. F. Rld. Co. v. Morgan, 43 Kan. 1; A. T. & S. F. Rld. Co. v. Hague, 54 id. 284 ; C. R. I. & P. Rly. Co. v. Williams, ante, p. 333; A. T. & S. F. Rld. Co. v. Shaw, ante, p. 519, 43 Pac. Rep. 1129.)
The jury find that the train which caused the death of Hinds was running at the rate of 30 miles an hour. It is not shown that such warnings by sounding the whistle, ringing the bell, or both, were given, as the state of the weather, the surroundings of the crossing and the speed of the train rendered necessary, or that Hinds could not have heard such signals in time to avoid injury if they had been duly given. In order that we may declare that it was negligence, as a matter of law, for him to fail to stop, there must be an evident necessity under the circumstances that he should stop, and this must be made so certain that the minds of reasonable men would not differ in regard to it. A reasonable man would hardly expect to meet a train running backward past a depot at so high a rate of speed, where the track was obscured, without any warning of its approach.
II. The tenth instruction, imposing the burden of proof of contributory negligence on the defendant, is criticized, because it is claimed that contributory negligence was shown by the evidence on behalf of the plaintiffs. The rule of law declared by the court is *763well settled. (K. P. Rly. Co. v. Pointer, 14 Kan. 37 ; K. C. L. & S. Rld. Co. v. Phillibert, 25 id. 582; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412; Mo. Pac. Rly. Co. v. McCally, 41 id. 639.) The instruction criticized does not state in terms that in determining this question the jury may not consider evidence offered by the plaintiffs tending to show contributory negligence, and by other instructions the jury were plainly told
that if the deceased was guilty of negligence the plaintiffs could not recover, and that they were to determine this question from all the evidence in the case. The sixth instruction is a correct statement as to the duty of the company in operating its trains, when it suffers the view of its track from the public highway to be obstructed. It is not open to the objection that it declares the railway company liable absolutely where it permits such obstruction, if the party injured exercises ordinary care. The instruction is rather an abstract statement of the duty of the company under such circumstances than a direct application of the law to the case under consideration. It cannot be doubted that when a railway company negligently permits a growth of sunflowers on its depot grounds, which obstructs the view of persons approaching the track on the public highway, it then becomes its duty in operating its trains to use such precautions that a traveler on the highway may by the use of ordinary care cross the track in safety. But, of course, the plaintiffs who seek to recover damages can only do so on the ground that the railway company has been negligent in some particular, and that that negligence wás the proximate cause of the death of ITinds. The other instructions given by the court wrere very full, clear, and fair, and there is noth*764ing in this one which could have misled the jury, when taken in connection with the rest.
III. The ninth instruction is a correct statement of the law, and is applicable to the facts in this case. It is true that there was uncontradicted evidence that the deceased looked to see whether there was a train approaching, and that there was therefore no occasion for resorting to a presumption on that point, biR the instruction could not possibly have harmed t/he defendant in that particular. There was no evidence whether the deceased listened or not, for there was no person in a position to know that fact. As to this matter, the instruction with reference to the presumption was applicable and right. Ordinary negligence is the want of ordinary care, and ordinary care is such care as people of ordinary prudence usually exercise under like circumstances. The very definition of ordinary care implies a presumption that it will usually be exercised. It is because people ordinarily, in crossing a railroad track, look and listen for their own protection that a failure to do so is held to be negligence. It can never be presumed, in the absence of evidence, that a person fails to do that which people ordinarily do to avoid injury. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586.) There was no error in refusing the eighth instruction. For the reasons stated in considering the other assignments of error, the court did not err in refusing to enter j udgment in favor of the defendant on the special findings, nor in refusing the motion for a new trial.
The judgment is affirmed.
All the Justices concuiTing.