Mr. Justice Shepard
delivered the opinion of the Court:
1. Upon the evidence which has been recited, the court submitted the case to the jury, giving certain instructions asked by the plaintiff and denying all those asked on behalf of the defendants.
Exceptions were duly reserved to the granting and denial of these instructions, respectively, but it is not considered necessary to repeat them as they only present with elaboration the substantial propositions, founded on the insufficiency of the evidence, upon which the appellant relies.
2. Whether the deceased was run over by the Pullman car that broke loose and ran down the first or “ ladder ” track, or by the express train which passed on the adjoining track, near about the same time, was unquestionably for the ascertainment of the jury.
There was no direct evidence showing upon which of these two tracks the accident occurred, but many circumstances established by the evidence indicated that the deceased was struck by the Pullman car whilst on 'or near the “ ladder ” track. And it cannot be assumed that these were completely refuted by the declaration of the stricken and suffering man, that he had been run over by “ a whole string of cars.”
3. Whether, if the deceased was run over by the Pullman car whilst on or near the ladder track, it was negligence on the part of the defendants’ employees to permit that car to [165]*165escape and run down the track past the street crossing, was also properly submitted to the jury.
The testimony relating to the manner in which the Pullman car had been coupled to the next car ahead of it, as well as to the failure of the attempted operation of the brakes, came entirely from the employees upon whom the charge of negligence rests. It has been recited in the statement of the facts of the case, heretofore given, as it appears in the hill of exceptions, and is so direct and plain, that its review would not make the question plainer. In our opinion, the least that can be said of this evidence is, that reasonable men may fairly differ as to whether or not it disclosed negligence.
“ It is only where the facts are such that reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” T. & P. RR. Co. v. Gentry, 163 U. S. 353, 366; Cowen v. Merriman, 11 App. D. C. 186, 202. See, also, Adams v. W. & G. RR. Co., 9 App. D. C. 26, 31, and cases cited.
4. The chief reliance of the appellants is upon the contention, that the co-urt erred in refusing to direct the jury to find for the defendants Am the ground that the evidence showed, as matter of law, a plain case of contributory negligence on the part of plaintiff’s intestate.
(1) The exceptional conditions which make it the duty of the court to take from the jury the determination of the question, whether, in a particular case, negligence has been shown to exist, have been stated hereinabove with a citation of the supporting authorities. After a careful examination of the testimony, we axe not satisfied that those conditions exist in the case at bar. What was said in one of the cases before cited is quite applicable to the facts now under consideration: “ In this case it may well be contended that the proof of contributory negligence on the part of the deceased is strong, and many reasonable minds might be decidedly inclined to conclude from it that the deceased was guilty of contributory negligence in causing the accident. But the state of proof is such that we cannot say that all reasonable men would so conclude. The court below thought that the evidence was [166]*166not conclusive, and the jury concluded that the evidence was not sufficient to establish the fact that the deceased, by his own fault and want of caution, contributed to the production of the disaster.” Cowen v. Merriman, 17 App. D. C. 202, 203.
(2) In submitting the case in all its bearings to the jury, the court correctly charged them that what is proper care and caution cannot be arbitrarily defined, but must depend upon the special circumstances and surroundings of the particular case. What may be ordinary care under one set of circumstances might be gross negligence under different surrounding conditions. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417.
(3) As no witness saw the deceased immediately before he passed under the arm of the gate, or between that time and the receipt of the injury, and his only statement was that he had been run over by a whole string of cars, the jury had the right to presume that he had both looked and listened for approaching cars before stepping on, or dangerously near, the track, whichever :he may have done.
The court did not err in so charging them with respect to this presumption, saying, at the same time, that it might be rebutted by facts and circumstances from which the contrary could reasonably be inferred. T. & P. Ry. Co. v. Gentry, 163 U. S. 353, 367; Cowen v. Merriman, 17 App. D. C. 186, 204.
The facts and circumstances relied on by the appellants to show that the deceased did not stop, look and listen, are these, briefly stated: He saw and passed under the warning gate, and walked upon or across a track that was in common and frequent use for shifting cars. The car which struck him, came with no great speed down the track with a light in the dome of the vestibule. Hence it is argued that he would necessarily have seen and heard it had he stopped, looked and listened as a man of ordinary care should have done.
The fact that the deceased did not stop and remain at the gate has direct bearing on the general question of his contributory negligence and will be recurred to at a latea1 stage. [167]*167It seems to have no important bearing on the particular fact whether deceased stopped, looked and listened for the approaching car or cars before reaching the adjacent track. It was not immediately at the track and the evidence tended to show that approaching cars could not be seen from it for any distance. Moreover, deceased was familiar with the crossing and the gate gave him no notice of anything that he did not already know in respect of the number, proximity and use of the tracks.
On the other hand the evidence tended to show, that freight cars were occasionally stored on the ladder track east of the street crossing; that it was not regularly used at that point for making up trains; that passenger coaches were not run down that far; that a Pullman car running down the track in the manner described would make little or no noise; that the light in the vestibule dome was not a head-light, and that its reflection was cast upon the platform and not more than two feet beyond the car bumpers; the night was a dark one, and the electric lights not very near; moreover, the express train which must have passed about the same time added to the noises, and its smoke and that of an engine of a freight train which stood on the third track and nearly opposite the crossing, tended to increase the obscurity.
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Mr. Justice Shepard
delivered the opinion of the Court:
1. Upon the evidence which has been recited, the court submitted the case to the jury, giving certain instructions asked by the plaintiff and denying all those asked on behalf of the defendants.
Exceptions were duly reserved to the granting and denial of these instructions, respectively, but it is not considered necessary to repeat them as they only present with elaboration the substantial propositions, founded on the insufficiency of the evidence, upon which the appellant relies.
2. Whether the deceased was run over by the Pullman car that broke loose and ran down the first or “ ladder ” track, or by the express train which passed on the adjoining track, near about the same time, was unquestionably for the ascertainment of the jury.
There was no direct evidence showing upon which of these two tracks the accident occurred, but many circumstances established by the evidence indicated that the deceased was struck by the Pullman car whilst on 'or near the “ ladder ” track. And it cannot be assumed that these were completely refuted by the declaration of the stricken and suffering man, that he had been run over by “ a whole string of cars.”
3. Whether, if the deceased was run over by the Pullman car whilst on or near the ladder track, it was negligence on the part of the defendants’ employees to permit that car to [165]*165escape and run down the track past the street crossing, was also properly submitted to the jury.
The testimony relating to the manner in which the Pullman car had been coupled to the next car ahead of it, as well as to the failure of the attempted operation of the brakes, came entirely from the employees upon whom the charge of negligence rests. It has been recited in the statement of the facts of the case, heretofore given, as it appears in the hill of exceptions, and is so direct and plain, that its review would not make the question plainer. In our opinion, the least that can be said of this evidence is, that reasonable men may fairly differ as to whether or not it disclosed negligence.
“ It is only where the facts are such that reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” T. & P. RR. Co. v. Gentry, 163 U. S. 353, 366; Cowen v. Merriman, 11 App. D. C. 186, 202. See, also, Adams v. W. & G. RR. Co., 9 App. D. C. 26, 31, and cases cited.
4. The chief reliance of the appellants is upon the contention, that the co-urt erred in refusing to direct the jury to find for the defendants Am the ground that the evidence showed, as matter of law, a plain case of contributory negligence on the part of plaintiff’s intestate.
(1) The exceptional conditions which make it the duty of the court to take from the jury the determination of the question, whether, in a particular case, negligence has been shown to exist, have been stated hereinabove with a citation of the supporting authorities. After a careful examination of the testimony, we axe not satisfied that those conditions exist in the case at bar. What was said in one of the cases before cited is quite applicable to the facts now under consideration: “ In this case it may well be contended that the proof of contributory negligence on the part of the deceased is strong, and many reasonable minds might be decidedly inclined to conclude from it that the deceased was guilty of contributory negligence in causing the accident. But the state of proof is such that we cannot say that all reasonable men would so conclude. The court below thought that the evidence was [166]*166not conclusive, and the jury concluded that the evidence was not sufficient to establish the fact that the deceased, by his own fault and want of caution, contributed to the production of the disaster.” Cowen v. Merriman, 17 App. D. C. 202, 203.
(2) In submitting the case in all its bearings to the jury, the court correctly charged them that what is proper care and caution cannot be arbitrarily defined, but must depend upon the special circumstances and surroundings of the particular case. What may be ordinary care under one set of circumstances might be gross negligence under different surrounding conditions. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417.
(3) As no witness saw the deceased immediately before he passed under the arm of the gate, or between that time and the receipt of the injury, and his only statement was that he had been run over by a whole string of cars, the jury had the right to presume that he had both looked and listened for approaching cars before stepping on, or dangerously near, the track, whichever :he may have done.
The court did not err in so charging them with respect to this presumption, saying, at the same time, that it might be rebutted by facts and circumstances from which the contrary could reasonably be inferred. T. & P. Ry. Co. v. Gentry, 163 U. S. 353, 367; Cowen v. Merriman, 17 App. D. C. 186, 204.
The facts and circumstances relied on by the appellants to show that the deceased did not stop, look and listen, are these, briefly stated: He saw and passed under the warning gate, and walked upon or across a track that was in common and frequent use for shifting cars. The car which struck him, came with no great speed down the track with a light in the dome of the vestibule. Hence it is argued that he would necessarily have seen and heard it had he stopped, looked and listened as a man of ordinary care should have done.
The fact that the deceased did not stop and remain at the gate has direct bearing on the general question of his contributory negligence and will be recurred to at a latea1 stage. [167]*167It seems to have no important bearing on the particular fact whether deceased stopped, looked and listened for the approaching car or cars before reaching the adjacent track. It was not immediately at the track and the evidence tended to show that approaching cars could not be seen from it for any distance. Moreover, deceased was familiar with the crossing and the gate gave him no notice of anything that he did not already know in respect of the number, proximity and use of the tracks.
On the other hand the evidence tended to show, that freight cars were occasionally stored on the ladder track east of the street crossing; that it was not regularly used at that point for making up trains; that passenger coaches were not run down that far; that a Pullman car running down the track in the manner described would make little or no noise; that the light in the vestibule dome was not a head-light, and that its reflection was cast upon the platform and not more than two feet beyond the car bumpers; the night was a dark one, and the electric lights not very near; moreover, the express train which must have passed about the same time added to the noises, and its smoke and that of an engine of a freight train which stood on the third track and nearly opposite the crossing, tended to increase the obscurity. Whether, from all these circumstances it was to be inferred that the deceased did not stop, look or listen, but walked recklessly to his death, was a question for the jury.
(4) Without pausing to review the authorities' cited on behalf of the appellants, it may be conceded that, where a gate is maintained at a crossing, and regularly lowered when trains are expected, and kept lowered until they shall have passed, and is then uniformly raised and kept raised when none are due or expected, it is a warning of danger to the public and sufficient, under all ordinary conditions, to justify the conclusion of contributory negligence, as a matter of law, on the part of one who undertakes to cross the tracks while the gate is down, and is run over by a passing train in so doing. See, also, Railroad Co. v. Carrington, 3 App. D. C. 101, 111, and cases cited.
[168]*168But that is not the case presented by the evidence. The gate had not been uniformly lowered and raised for the purpose of warning on the one hand, or of assurance on the other. The evidence tended to show that the gates were often lowered from 10 to 11 o’clock a.t night, and kept- lowered until daylight the next morning, without regard to the passing of trains.
Passengers desiring to cross in vehicles were frequently compelled to call up a, gateman to raise the gate. Persons on foot would do the same or else pass under the gate and then across the tracks.
This state of things had existed for some years during which the deceased was almost nightly engaged in crossing the track at that point in going to and fro between the machine shop and his home.
Under this evidence, we do not agree with the contention that all reasonable minds must necessarily come to the one conclusion that deceased was guilty of contributory negligence in passing under the gate and attempting to cross the tracks, without any other act of negligence. Finding the gate closed under these circumstances, the deceased was not bound in law to take it as a warning of immediate danger, and to stop and wait and call for information to an unseen gateman. If in fact there was a gateman within sight or hearing at the time, there is nothing in the evidence from which it could be inferred. That the evidence does not show that the gate was invariably kept down each night between 11 o’clock and daylight, we regard 'as immaterial SO' far as the question of law is concerned. The constancy or variableness of the practice was a question merely, of more or less weight, according to the facts and circumstances, for the consideration of the jury. And the court did not err in submitting the whole question to them, as was done, under a full, fair and appropriate charge.
The judgment will be affirmed, with costs; and it is so ordered.
Affirmed.