When this case was in Department, in the opinion there rendered it was said: —
"This is an action for damages, wherein plaintiffs charge that, by the negligent operation of defendant's train, they were struck by it while crossing the track of defendant, and sustained the injuries for which the damages were sought. Plaintiffs were riding in a heavy wood-wagon drawn by two horses, and were approaching the crossing at which there were two tracks, the tracks of the Terminal railway and the tracks of the defendant's railway. They had passed over the track *Page 702 of the Terminal road and their horses were about to step on to defendant's track when they discovered that the locomotive of a southbound freight-train on defendant's track was approaching within one hundred and fifty feet of the crossing. Plaintiff Albert Hutson, who was driving, then made an effort to stop his horses, but did not apply the brake, and immediately thereafter urged his horses forward and across the track. The older boy of the two children who were in the wagon with him ran to the rear end of the vehicle and jumped out, and the father tossed the other boy to the ground. The engine collided with the rear half of the wagon and both the plaintiffs were thrown to the ground and injured. The negligence of the defendant, as alleged, consisted in its failure to give any warning of the approach of the train by blowing the whistle or ringing the bell, and it was further charged that the train approached the crossing at a negligently high rate of speed. This speed was estimated by the various witnesses at from sixteen to twenty miles an hour. The view of plaintiffs approaching the crossing was obstructed, though there was a place of safety near the track where plaintiffs could have stopped the team and had a clear view. It was first urged by appellant that, as matter of law, plaintiffs were guilty of such contributory negligence as to preclude recovery, but upon a review of the whole evidence we think that this question was fairly submissible to the jury.
"The court, however, erred in certain instructions given to the jury, and these errors demand a new trial of the case. The court instructed the jury as follows: —
"`6. You are instructed that the plaintiffs had a right to drive in the road or street where they were and to cross the defendant's track, and they are not chargeable with contributory negligence in endeavoring to cross the track, provided they adopted all reasonable precautions against injury from moving trains, and they are not chargeable with contributory negligence unless they failed to take such precautions. In determining whether the plaintiffs took all reasonable precautions the jury should consider the situation of the crossing and the circumstances attending the accident, bearing in mind that the plaintiffs had a right to rely on the performance by the defendant's employees of every act imposed by law upon them when approaching a crossing with their train. The *Page 703 plaintiffs and each of them were authorized to assume that the men in charge of the train would approach the crossing with due care, without running at an excessive or unreasonable rate of speed, and would cause the bell on the engine to be rung and kept ringing for the distance of eighty rods before reaching the crossing. The acts and conduct of the plaintiffs, and each of them, in looking out and listening for the approach of the train are therefore to be considered in connection with the assumption which they had the right to make that care in the management of the train would be exercised in the manner just indicated.'
"It is not the law of this state that a person approaching a railroad crossing is authorized to assume that the persons operating a train will not in any way be negligent in that operation. This doctrine has been asserted in some of the states, but it is opposed to the law as laid down in the decisions of this state and of the supreme court of the United States. Such a rule would abrogate the doctrine of contributory negligence in all such cases, and in the early case of Meeks v. SouthernPacific R.R. Co., 52 Cal. 604, this court said: `The 486th section of the Civil Code, providing that a railroad corporation shall be liable for all damages sustained by any person and caused by the locomotive of the corporation when a bell is not sounded or a whistle blown as directed by that section, does not abrogate the doctrine of contributory negligence, or operate to give a right of action where the negligence of the plaintiff . . . materially and proximately contributed to the injury.' InHerbert v. Southern Pacific Co., 121 Cal. 227, [53 P. 651], this precise question was involved, this court saying: `The only answer to this is, that defendants' employees did not ring the bell or sound the whistle and that the fireman was not at his place on the left side of the engine. The argument, of course, is that if the signals had been given plaintiff might have heard, and not hearing them, he had the right to assume when he was about to make the crossing that the train had not then reached the whistling post 1,325 feet above, and that the fireman might have seen him in time to have prevented the accident had he been on the lookout. It may be admitted that all this was culpable negligence on the part of defendants' employees. The defense of contributory negligence implies that defendant may have been guilty of *Page 704 such negligence as would justify a recovery by the plaintiff if he were not also in fault. This is no argument, therefore, against the position of the defendant.' In Green v. SouthernCalifornia Ry. Co., 138 Cal. 1, [70 P. 926], the rule of law laid down in Herbert v. Southern Pacific Co. is reaffirmed, the chief justice placing his concurring opinion upon this precise ground. The same doctrine is also announced in Pepper v. SouthernPacific Co., 105 Cal. 398, [38 P. 974], and in Bilton v.Southern Pacific Co., 148 Cal. 443, [83 P. 440]. The rule is simply this: That a railroad crossing, from its very nature, is always a place of danger, and a traveler has no right to omit any of the care which the law demands of him, upon the assumption that due care will be exercised in the operation of the train. Says the circuit court of appeals in Erie Ry. Co. v. Kane, 118 Fed. 234, [55 C.C.A. 129]: `Again, counsel for defendant in error urges that it was not negligence for decedent to be there because he was not bound to anticipate Bowker's negligence through which the collision came about. It is never negligence, they say, for one not to anticipate negligence in anybody else. There is, however, no such general rule of law or prudent conduct. There are instances where as a matter of law it is negligence not to anticipate negligence in others. As, for instance, it is well settled in the federal courts that it is negligence for a highway traveler not to anticipate failure on the part of an engineer to give appropriate signals of approach of his train to a highway crossing. He has no right not to look or listen because he has heard no such signals.' This is in accord with the doctrine of the supreme court of the United States, as laid down in RailroadCo. v. Houston, 95 U.S. 697, where it is said: `The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employees in these particulars was no excuse for negligence on her part. She was bound to listen or look before attempting to cross the railroad track in order to avoid an approaching train and not to walk carelessly into a place of danger.'"
The foregoing language is adopted and adhered to. In contemplation of the new trial which must be ordered, it should be said that instruction 7, as given by the court, contains *Page 705 the same error of law as that in the instruction just discussed. Additionally, it dangerously approaches the forbidden territory of instructions upon the facts. The court also instructed the jury that: "As said above, the burden of proof of such contributory negligence rests upon the defendant; unless it proves the same to your satisfaction by a preponderance of the evidence," etc. It would be better to omit the words here italicized. In a civil case it is the weight of evidence or preponderance of probability which is sufficient to establish a fact. (Murphy v. Waterhouse, 113 Cal. 467, [54 Am. St. Rep. 365, 45 P. 866].) As given, the instruction might tend to confuse a jury into believing that something more than this was required.
For the foregoing reasons the judgment and order appealed from are reversed.