Mr. Justice Van Orsdel
delivered the opinion of the Court:
It will sufficiently dispose of this appeal if we confine our inquiry to the fifth assignment of error. This raises the main issue here involved. Was the appellee negligent in the duty it owed to the deceased, or was the deceased guilty of such contributory negligence as will furnish a defense for the appellee and prevent a recovery ? There can be no recovery in this case unless appellee was guilty of negligence towards the deceased. In the absence of such negligence, there can be no legal foundation for recovery. If it be true that appellee installed at this crossing ample means for protecting the public from injury,, and afforded this protection to the deceased, there can be no recovery. This is a question of fact, when there is a conflict of evidence, and one that must be determined from an analysis of the evidence.
This court, in Glaria v. Washington Southern R. Co. 30 App. D. C. 559, announced the following rule: “ A motion to direct a verdict is an admission of every fact in evidence, and of every inference reasonably deducible therefrom. And the motion can be granted only when but one reasonable view can be taken of the evidence and the conclusions therefrom, and that view is utterly opposed to the plaintiff’s right to recover in the case. Whenever there is uncertainty as regards the existence of negligence on the one hand, and of contributory negligence on the other, the issue must be submitted to the determination of the jury.” If the evidence raises any issue whatever as to the existence of either negligence or contributory negligence, the question becomes one of fact, and not one of law, and should be submitted to the jury. The issue may arise from a conflict in the evidence, or from a state of facts from which reasonable, fair-minded men might draw different conclusions. It must be re[147]*147membered, however, that; even conceding that Welker was guilty of contributory negligence in this case, his negligence cannot be attributed to the deceased. Considering whether or not the deceased was guilty of contributory negligence, we find a boy twelve years of age, on the wagon of his employer, crossing the tracks of appellee at a point which the public had used for many years. It is therefore clear that he was not a trespasser on the right of way of the appellee. While we think he was not of such tender years as to render him incapable of being guilty of contributory negligence, he could not be deemed to possess the same degree of care and discretion as a person of mature years.
The trial court seemed to lay stress upon the fact that there was no proof that the deceased had ever before crossed the tracks at the point in question, or knew of the existence of the bell. The evidence discloses that the boy had lived with his parents for nine years at a point about 400 yards from the crossing. It might be presumed that he had frequently crossed the tracks during that time, and that he must have known of the existence of the bell, which, according to the evidence, had been installed there several years before. But such knowledge is immaterial; and it is therefore unnecessary to indulge in any presumptions on that point. The bell was placed at the crossing by the appellee company out of a duty it owed to the public. That duty arose from the necessity of the company establishing at that point some device that would serve to notify the traveling public of the approach of trains. It was the duty of the railroad company to give timely notice of the approach of trains at this crossing. That notice might consist of the ringing of an electric bell or other device, such as gates, or a flagman, or by sounding a whistle that could be distinctly heard sufficient time before reaching the crossing to serve as a warning to prevent persons or vehicles from entering upon the tracks. No particular device is prescribed by law. The company had the right of selection. In this instance an electric bell had been installed. It was the duty of the company to keep the bell in order. The company, having put the bell at the crossing in question, did so out of a duty it owed to the whole public. Whether the de[148]*148ceased had ever crossed the tracks at this point, or knew of the existence of the bell, is immaterial. Appellee owed him the same protection it owed to the person who had crossed many times. He was entitled to the same notice that appellee had provided for the public; and, unless on the morning of the accident, some other notice was given of the approach of the train, that furnished equivalent protection to the deceased, the failure of the appellee to have the bell in such order as to give the usual alarm would constitute negligence.
The record before us discloses evidence to the effect that the bell did not ring when the train approached that caused the accident. It is not for this court or the court below to pass upon the sufficiency of the evidence to establish this fact. For the purposes of this inquiry, we must assume that the bell did not ring. With this condition confronting us, does the record disclose conclusively that appellee gave the deceased such warning as afforded reasonable and timely notice of the approach of the train ?
It is insisted by counsel for appellee that due notice of the approach of the train was given by blowing the engine whistle. From the evidence of Timberlake and Strider, appellee’s witnesses, the whistle did not blow until the train was within 150 yards of the crossing. A train traveling at the rate of 60 miles an hour would cover this space in less than six seconds. It will hardly be insisted that this would furnish ample notice to a person crossing a series of four railroad tracks with a loaded vehicle. The statement refutes itself. Appellee, in installing the bill, must have considered that at least one minute’s notice was necessary, as it was arranged so that the approaching train would start the alarm when the train was 1 mile from the crossing. Besides, from the evidence of the witnesses for appellee, it is not clear that the whistle was blown as a warning of the approach of the train in question to the crossing, but to receive a signal from the agent at the station. We think that, on this branch of the case, there was an issue of fact that should have been submitted to the jury. In Continental Improv. Co. v. Stead, 95 U. S. [149]*149161, 164, 24 L. ed. 403, 405. Mr. Justice Bradley, delivering the opinion of the court, said: “But what is reasonable and timely warning may depend on many circumstances. It cannot be-such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing.”
It is also contended that it- was the duty of the deceased to look along the track for approaching trains. Welker testifies that he stopped his horse and looked before starting across, and that no train was in sight. Again there is a conflict in the evidence as to the distance a train coming from towards Baltimore can be seen at the point where Welker approached the track.
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Mr. Justice Van Orsdel
delivered the opinion of the Court:
It will sufficiently dispose of this appeal if we confine our inquiry to the fifth assignment of error. This raises the main issue here involved. Was the appellee negligent in the duty it owed to the deceased, or was the deceased guilty of such contributory negligence as will furnish a defense for the appellee and prevent a recovery ? There can be no recovery in this case unless appellee was guilty of negligence towards the deceased. In the absence of such negligence, there can be no legal foundation for recovery. If it be true that appellee installed at this crossing ample means for protecting the public from injury,, and afforded this protection to the deceased, there can be no recovery. This is a question of fact, when there is a conflict of evidence, and one that must be determined from an analysis of the evidence.
This court, in Glaria v. Washington Southern R. Co. 30 App. D. C. 559, announced the following rule: “ A motion to direct a verdict is an admission of every fact in evidence, and of every inference reasonably deducible therefrom. And the motion can be granted only when but one reasonable view can be taken of the evidence and the conclusions therefrom, and that view is utterly opposed to the plaintiff’s right to recover in the case. Whenever there is uncertainty as regards the existence of negligence on the one hand, and of contributory negligence on the other, the issue must be submitted to the determination of the jury.” If the evidence raises any issue whatever as to the existence of either negligence or contributory negligence, the question becomes one of fact, and not one of law, and should be submitted to the jury. The issue may arise from a conflict in the evidence, or from a state of facts from which reasonable, fair-minded men might draw different conclusions. It must be re[147]*147membered, however, that; even conceding that Welker was guilty of contributory negligence in this case, his negligence cannot be attributed to the deceased. Considering whether or not the deceased was guilty of contributory negligence, we find a boy twelve years of age, on the wagon of his employer, crossing the tracks of appellee at a point which the public had used for many years. It is therefore clear that he was not a trespasser on the right of way of the appellee. While we think he was not of such tender years as to render him incapable of being guilty of contributory negligence, he could not be deemed to possess the same degree of care and discretion as a person of mature years.
The trial court seemed to lay stress upon the fact that there was no proof that the deceased had ever before crossed the tracks at the point in question, or knew of the existence of the bell. The evidence discloses that the boy had lived with his parents for nine years at a point about 400 yards from the crossing. It might be presumed that he had frequently crossed the tracks during that time, and that he must have known of the existence of the bell, which, according to the evidence, had been installed there several years before. But such knowledge is immaterial; and it is therefore unnecessary to indulge in any presumptions on that point. The bell was placed at the crossing by the appellee company out of a duty it owed to the public. That duty arose from the necessity of the company establishing at that point some device that would serve to notify the traveling public of the approach of trains. It was the duty of the railroad company to give timely notice of the approach of trains at this crossing. That notice might consist of the ringing of an electric bell or other device, such as gates, or a flagman, or by sounding a whistle that could be distinctly heard sufficient time before reaching the crossing to serve as a warning to prevent persons or vehicles from entering upon the tracks. No particular device is prescribed by law. The company had the right of selection. In this instance an electric bell had been installed. It was the duty of the company to keep the bell in order. The company, having put the bell at the crossing in question, did so out of a duty it owed to the whole public. Whether the de[148]*148ceased had ever crossed the tracks at this point, or knew of the existence of the bell, is immaterial. Appellee owed him the same protection it owed to the person who had crossed many times. He was entitled to the same notice that appellee had provided for the public; and, unless on the morning of the accident, some other notice was given of the approach of the train, that furnished equivalent protection to the deceased, the failure of the appellee to have the bell in such order as to give the usual alarm would constitute negligence.
The record before us discloses evidence to the effect that the bell did not ring when the train approached that caused the accident. It is not for this court or the court below to pass upon the sufficiency of the evidence to establish this fact. For the purposes of this inquiry, we must assume that the bell did not ring. With this condition confronting us, does the record disclose conclusively that appellee gave the deceased such warning as afforded reasonable and timely notice of the approach of the train ?
It is insisted by counsel for appellee that due notice of the approach of the train was given by blowing the engine whistle. From the evidence of Timberlake and Strider, appellee’s witnesses, the whistle did not blow until the train was within 150 yards of the crossing. A train traveling at the rate of 60 miles an hour would cover this space in less than six seconds. It will hardly be insisted that this would furnish ample notice to a person crossing a series of four railroad tracks with a loaded vehicle. The statement refutes itself. Appellee, in installing the bill, must have considered that at least one minute’s notice was necessary, as it was arranged so that the approaching train would start the alarm when the train was 1 mile from the crossing. Besides, from the evidence of the witnesses for appellee, it is not clear that the whistle was blown as a warning of the approach of the train in question to the crossing, but to receive a signal from the agent at the station. We think that, on this branch of the case, there was an issue of fact that should have been submitted to the jury. In Continental Improv. Co. v. Stead, 95 U. S. [149]*149161, 164, 24 L. ed. 403, 405. Mr. Justice Bradley, delivering the opinion of the court, said: “But what is reasonable and timely warning may depend on many circumstances. It cannot be-such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing.”
It is also contended that it- was the duty of the deceased to look along the track for approaching trains. Welker testifies that he stopped his horse and looked before starting across, and that no train was in sight. Again there is a conflict in the evidence as to the distance a train coming from towards Baltimore can be seen at the point where Welker approached the track. Some of the witnesses place the distance at % mile, and others at less than % of a mile. In either event, the few seconds it took this train to cover the distance would afford a short warning. The deceased was a boy twelve years old. The inference may be fairly .drawn that, if he looked along the track at the time Welker testifies he stopped his horse, that the 'train, though not in view, could have had time to reach the crossing before the vehicle, which was moving slowly, reached the third track, on which the train was running. These facts, the speed of the train, the distance it would move in a second of time, the exact distance it was from the crossing when it first gave warning of its approach, the kind of warning actually given, the opportunity of the deceased to see the train and hear the whistle, together with the age of the deceased, his capacity or incapacity to appreciate the danger of the situation, his experience and mental capacity due to his youth, are all questions for the jury to consider in determin[150]*150ing whether or not he was guilty of contributory negligence. It is scarcely necessary to intimate that such questions are proper for the determination and decision of the jury, and not for the trial judge.
We are of the opinion that, in any view of this case, there was ample testimony to warrant the submission of the case to the jury. It was error for the trial court not to so submit it with proper instructions. The judgment is reversed with costs, and the cause is remanded with directions to grant a new trial. Reversed.