delivered tbe following dissenting opinion:
Tbe fourth instruction, given for tbe plaintiff is in tbe following words:
“Tbe court instructs tbe jury for tbe plaintiff that tbe plaintiff’s husband bad a right to presume-that tbe freight train, if be bad known it was coming, would not be running over six miles per hour, and that it would not run past tbe depot at Boguechitto on this occasion at a greater rate of speed than six miles per hour; and, further, that be bad a right to presume-that tbe defendant company would not by tbe running of its-trains upon its- parallel track subject him to unusual hazard or danger at said station, and tbe law did not require him to stop, look, and listen before crossing said west track, and, if be did not stop, look, and listen, be would not have been guilty of contributory negligence because of such failure alone. Tbe question of fact to be determined by tbe jury, on tbe subject of contributory negligence, is: Did tbe deceased, under tbe circumstances, in view of tbe presumptions above enumerated, act as an ordinarily prudent man would act’ in guarding himself against injury ?” ¡
Tbe plain effect of this instruction was to charge tbe jury that, although the plaintiff might have known tbe train was coming, yet, because be was entitled under tbe law to assume that tbe train would not run in tbe town and past tbe depot at a speed more than six miles an hour, therefore be could neglect to stop, or look, or listen, and yet this failure to do one or all of these things would not alone constitute contributory negligence. There is no possible escape from tbe conclusion that this is tbe plain meaning of tbe plain language of this instruction. This is not tbe law. Bunning more than six miles an hour through an incorporated town does not of itself alone entitle tbe plaintiff to recover in a case where only actual damages are sought, as here, but it must appear that such excessive speed was tbe proximate cause of tbe injury. ' This charge posi-. *334lively declares, as an absolute and universal rule of law, that merely because the plaintiff has the right abstractly and gen•erally to presume that a train will not run at a speed of more than six miles an hour through an incorporated town and past 'the depot thereof, therefore this presumption alone in all cases relieves the plaintiff from using the faculties of sight and hearing with which nature has endowed him by completely ignoring the reciprocal duties of the plaintiff and the defendant at the time and place of the injury. It is fundamentally erroneous, goes to the heart of the case, and should cause a reversal.
The sixth charge, refused to the defendant, is in the following words:
“The court instructs the jury for the defendant that although they may believe the defendant was negligent in running two trains through the municipality of Boguechitto so that they passed each other at the same time at the crossing at which deceased met his death, and although they may believe that the freight train was running at an unlawful rate of speed, •and that its bell arid whistle were not giving.the proper signals, •still it was incumbent upon the deceased to stop1, look, or listen before going upon the tracks of the defendant, and, if he failed to do this and went upon the tracks after being told not to do so, defendant’s negligence will not entitle the plaintiffs to remover, but they will find a verdict for the defendant.”
The witness Sauls had testified that he had accosted deceased, seized him by the* arm, told him to look out, and warned him of the approaching train. The deceased tore away from him, saying “Oh,” and rushed on. It is true that.the plaintiff introduced a witness to show that Sauls was not present at the scene of the accident at all, but it is also true that another witness for the defendant supported Sauls’ statement that he was there, and the defendant was manifestly entitled to have its theory of the case, as bottomed on this testimony of Sauls, put to the jury on this instruction, and it was error, and fatal error, to refuse this instruction.
*335I have examined with great care every one of tbe authorities •cited by learned counsel for appellee, many of which are referred to in the opinion in chief, laying down the doctrine which it is admitted is an exception to the general rule that wherever the relationship-of passenger is established-between ■one and a railroad company, and such passenger is endeavoring to reach his train, and embark thereon, or to debark therefrom at the arrival at a depot, there is no absolute rule of law that .such passenger shall stop, or look, or listen. I will quote a few of the very cases cited by learnel counsel, and from these citations the true rule on this subject will clearly appear. For example, in the case of Louisville, etc., R. R. Co. v. Crominarity, 86 Miss. 464, 38 South. 633; “Many decisions and a multitude of authorities^ are cited to show that other courts have held that the mere failure to stop before driving on a railroad crossing constituted, as a matter of law, such negligence as forbids recovery for any injury inflicted by a passing train. We decline to adopt any such rigid rule. What constitutes negligence must depend always upon the surrounding conditions and the attendant circumstances of the particular instance. No hard and fast rule of action can be prescribed which will malee the same course of conduct under any and all circumstances either wise or unwise, cautious or reckless. The true rule is that it is incumbent on the traveler to use that degree of care and caution which is rendered necessary by a reasonable regard for his safety under the peculiar circumstances and conditions by which he is at the time confronted. It is the duty of a traveler in approaching a crossing to use all reasonable precaution to apprise himself of the approach of a train,’ but whether that reasonable precaution will demand that he shall •stop and look and listen, or whether any lesser degree of care •on his part will be sufficient, must generally, though not invariably, be a question of fact; and, being a question of fact, it should be submitted to the jury under-proper instructions for their decision.” In the case of Warner v. B. & O. R. R. Co., *336168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491, the court ex-pi’assly stated tbat: “The implied invitation to sncb passenger does not absolve bim from the duty of exercising care and' caution in avoiding danger; tbat is to say, from using the-senses of sight and bearing.” In the case of Chicago, M. & St. P. R. R. Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281, 38 L. Ed. 131, it is said: “A passenger in crossing a railroad track parallel with the one on which bis train has arrived at a station, who does not look or listen for the train on the parallel track, is not per se guilty of contributory negligence, but it is a question for the jury.” And the same doctrine is held in Graven v. MacLeod, 92 Fed. 846, 35 C. C. A. 47. In V. & M. R. R. Co. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205, it is said: “It is not contributory negligence per se to boon a railroad track at a place wkei*e a person has no right to-be. One may be guilty of contributory negligence at a crossing or where he has a right to be. The criterion is whether he-observes due care, under the circumstances of his situation,, whatever it may be, to avoid harm from the act complained of. ITe is not to be pronounced guilty of contributory negligence-merely for being on the railroad, where he should not be, but inquiry is to be made as to the time, place, and circumstances, and as to his conduct in view of the negligence complained of,, in order to determine whether he was wanting in that care the absence of which constitutes contributory negligence preventing recovery. "What is l’easonable care in any case depends upon the particular circumstances of that case.”
In the case of A., T. & S. F. R. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, 20 L. R. A. 729, the court expressly says: “Under all the facts shown in evidence and the circumstances-surrounding the accident, whether the person injured was guilty of contributory negligence at the time is a question within the province of the jury to decide, and one that the court cannot rightfully take from them.” In the ease of Terry v. Jew*337ett, cited in the opinion in chief, it is distinctly stated: “No absolute rule can be laid down to govern tbe passenger in the latter case (that is, whilst crossing the track to take his train) under all circumstances. While a passenger has a right to pass from the depot to the train on which such passenger intends to travel, and the company should furnish reasonable and adequate protection against accident in the enjoyment of this privilege, the passenger is bound to exercise proper care, prudence, and caution in avoiding danger.” In short, the sum and substance of all that is laid down in the various cases cited by learned counsel for appellee on this particular point- — - this excéption to the general rule — is this: That whenever the relationship of passenger is established between a railroad company and any person, and that person is attempting, at the regular depot of such a company, to cross the tracks to embark on his train, or is, after arriving at said depot, attempting to debark from his train, the railroad company owes such a passenger, in such particular situation, so peculiarly circumstanced, a much higher degree of care than it would owe to one not a passenger, and consequently that it would not be proper for the court, as a mere matter of law, where nothing more was proved than that such passenger failed to stop-, or look, or listen, to charge the jury that such failure was, as a mere matter of law, contributory negligence and such contributory negligence as would bar his recovery; in other words, that in such precise case, whether or not the failure of a passenger to stop or look or listen is contributory negligence is a matter which the court has no right to take from the jury. That is the precise idea. It is not as a mere matter of law contributory negligence in such a case which the court may charge the jury bars recovery, even where the injured person is a passenger. In other words, all that I understand these authorities to hold is simply that whether, in the case where a passenger is injured under circumstances such as I have set out, his *338failure to stop, or look, or listen is contributory negligence, is a matter which, the court must leave to the jury, and that consequently the court itself cannot as a mere matter of law charge the jury that such failure was or was not contributory negligence. But the charges which I have criticised go far beyond this doctrine, exceptional as it is. The effect of the fourth charge, as I have pointed out, was to charge the jury that, although the deceased might have known the train was coming, yet, because he was entitled under the law to assume that the train would not run past the depot more than six miles an hour, therefore, because of this assumption that lie knew this train was coming, he might, in the face of his knowledge, act on the assumption, and not be guilty of contribii' tory negligence1. Of course, the plaintiff, whether he is a passenger or not, but more especially if he be a passenger, has a right to assume in general that the defendant railroad company will comply with all the regulations which the law imposes upon it, whatever those regulations’ may be — as to the rate of speed, as to the safety of the depot, as to giving signals, Etc. Certainly such assumptions may very properly be indulged in, and especially so by all passengers. But of what earthly pertinence is it to obseiwe that such assumptions may be indulged by a passenger in a case in which the testimony shows, as it does here, that the injured party knew of the impending danger, knew of the approaching train and the peril to him therefrom? Tn the presence of knowledge of the existing conditions, assumptions as to whether they existed or not are idle. In the face of the plain fact that he was seized by the witness Sauls, and told that the train was coming and warned to “look out,” and that from this testimony, if true, he was bound to have known of his danger, it is worse than idle to talk about the abstract proposition of law that he might generally assume that the railroad would comply with the regulations which the law imposed upon it. I do not know how to *339make this proposition any clearer than to say that whilst it is ■true that a passenger has the right to assume that a depot is safe, and the railroad will so arrange its schedules as to avoid -collisions and injuries; that the railroad will give such warning signals of approaching trains and observe all other regulations that the law imposes as to rate of speed, etc.; nevertheless, if the passenger actually does know, in any particular case, of the peril which threatens him, then in any such case assumptions all vanish, and the case must be tried on the knowledge that the evidence shows he had; and whether he is guilty of contributory negligence barring his recovery must depend, in all cases, where his knowledge is shown upon that knowledge, and not upon any abstract right he may have to assume generally that the railroad company will observe the regulations which the law invokes.
In this case, as I have already pointed out, the sixth charge, which was refused to defendant, was drawn with special reference to the testimony of the witness Sauls, and most indubitably the defendant company was entitled to have its theory of the ease, as bottomed on this testimony, given in charge to the Ñ^y.