I. In making the excavation necessary for the construction of its railroad across the public highway where the injury occurred, it was the duty of the railway company to so protect and guard the same as to prevent injury and danger to persons passing and *154exercising ordinary care. A failure to observe that duty would render it liable to any one injured in consequence. But this obvious rule of law does not dispense with the obligation resting on all persons using the road to exercise ordinary care on their part to avoid injury. No one could negligently drive into such an excavation and then claim damages because it had been left unguarded. It is a matter of regret that a contrary rule was declared by the court in the instruction given on its own motion, since the judgment must be reversed on that account, though in the main the cause was, in other respects, correctly tried.
The rule of law announced, in the instruction referred to, is (in brief) that if the jury found that plaintiff at the time did not use ordinary care in the premises and that such negligence contributed in causing his injury, the plaintiff (could not recover, unless defendant ‘ ‘ could have prevented said damage by care and diligence in erecting and maintaining safeguards or lights to give warning of danger.” This instruction permitted a verdict for respondent even though the jury found him grossly negligent at the time of the injury. The facts and circumstances of the present case are not such as justify the application of that principle. A person inj ured by falling into an excavation in a public highway, in such a case as is here presented, cannot recover unless he exercised ordinary care to avoid the injury. This has long been the law. Butterfield v. Forrester, 11 East, 60; Smith v. City of St. Joseph, 45 Mo. 449; Craig v. Sedalia, 63 Mo. 417.
II. As a re-trial will be necessary, it may properly be remarked that the first instruction given for plaintiff would be improved by adding, as a fact to be found, that plaintiff, at the time of, and just before the injury, was exercising ordinary care.
The judgment of the circuit court is reversed and the cause remanded for further proceedings.
The other judges concur.