By the Court,
Sanders, J.,
after stating the facts:
The case has been presented to us with care and ability. The cause is one of the utmost moment to the plaintiff, of general importance to the defendant company, and,. in some respects, is of interest to the profession.
The principal assignment of errors is involved in the discussion of the leading questions: What duty did the law impose upon the defendant to protect the plaintiff from the injuries of which he complains? Was the plaintiff guilty of negligence which directly or proximately contributed to his injuries? Was the defendant’s negligence of such character as to.preclude the, defense of contributory negligence? Did the agreement between the telegraph company and the defendant company operate as a bar to the right of plaintiff to maintain his action?
1. Our respect for the voluminous and exhaustive briefs, embracing, as they do, an analysis of a large number of the leading authorities bearing upon these questions of law, would ordinarily impel us to follow the argument of the learned counsel and pass upon all the points discussed, but the procedure adopted at the trial confines our inquiry to the real question presented for our consideration: Are the special findings of the facts inconsistent with the general verdict of the jury? If [103]*103they are, the law is imperative that they control the verdict, “and the court must give judgment accordingly.” Stats. 1915, p. 110.
Criticism of statutes authorizing special interrogatories is often indulged in by those who would place the verdict of a jury above the law, but from the decisions of this and other courts we are impressed that the practice is universally approved. By submitting special interrogatories the expense and delay of a second trial may often be avoided, and by this practice the law is much more effectually separated from the fact than by giving hypothetical instructions. Lambert v. McFarland, 7 Nev. 159. The statute also enables the court to determine if a general verdict is due to an erroneous application of the law to the facts as actually found by the jury. Weck v. Reno Traction Co., 38 Nev. 300. The rule of construction of special findings of facts is to harmonize them, if possible, with each other and the general verdict. To justify a judgment on special findings, notwithstanding the verdict, the former must be such as absolutely to determine the controversy in favor of the moving party. Clementson, Special Verdicts, c. 8, pp. 131-149. In determining whether the general verdict or the answers to special interrogatories control, the findings are not to be aided by intendment, and the inconsistency between the verdict and the findings must be irreconcilable; that is, it must be such that no reasonable hypothesis or inference under the pleadings and evidence can remove the conflict.
In view of the findings in this case that cover every phase of the evidence, material or otherwise, we now approach the question: Can the findings be true and the verdict be permitted to stand ? In the consideration of this question it must be understood that the same measure of justice, the same rule of conduct, and the same principle of law apply to the defendant corporation as to the unfortunate plaintiff.
Our construction of the pleadings is that the complaint proceeds upon the theory that the plaintiff at the time of [104]*104his injuries was lawfully upon the defendant’s road. The answer of the defendant shows affirmatively that plaintiff was not there rightfully, but, on the contrary, was there in direct violation of positive instructions not to use the motor car upon defendant’s tracks under any circumstances after dark. The plaintiff in his reply to the.answer seeks to justify his presence upon the track after dark, and at the place of his injuries, upon the grounds that he was there in the regular course of the performance of his duties to his employer, and that the time lost in making necessary repairs to his velocipede car at Sparks prevented him from reaching the point where he was injured before dark, and it was the duty of the defendant “to use reasonable and ordinary care that the plaintiff was not injured while running said car on its tracks.” The only charge of negligence resting against the defendant is, therefore, that the defendant’s employees in the moving of its switch engine in question after dark carried no headlight, or other light, to warn plaintiff of its approach.
2, 3. The court defined negligence to be “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.” It is obvious that the first element of this definition is a duty to do or not to do a particular act. It applies to the plaintiff in the operation of his velocipede car, as well as to the defendant in the management and control of its engine and cars. But from the instruction given on the part of the plaintiff immediately following this definition, the jury were, in effect, told that if they believed from the evidence that the act or omission to display a headlight, or other light, was negligence, and that the plaintiff’s injuries.resulted therefrom, the defendant was liable; provided plaintiff’s negligence did not proximately contribute to the injuries; and, though they find that the plaintiff’s acts and conduct did contribute to his injuries, if they believe from the evidence that the act or omission complained of was wilful, [105]*105wanton, and in reckless disregard for the safety or life of the plaintiff, the defendant was liable, notwithstanding the contributory negligence of the plaintiff. The underlying error in the position taken by the learned presiding judge results from the assumption that a like duty to use care in the management and control of the engine rested upon the defendant, whether the plaintiff was rightfully or wrongfully upon the defendant’s track at the time and place of the collision. The rightfulness or wrongfulness of the plaintiff’s presence upon the track was an issuable or disputed fact left to the jury for its determination without the aid of instructions clearly and distinctly defining the duty the law imposed upon the parties in respect to the relative rights and reciprocal duties and obligations arising from the joint occupancy of the locus in quo. A general instruction which left it to the jury to apply the same standard of duty and use of care in the management and control of its trains and engines toward one wrongfully as to one rightfully upon the company’s tracks is wrong. Hern v. So. Pac. Co., 29 Utah, 127, 81 Pac. 906. Where two contentions are made, as were here made, and the evidence tends to support both, it was the duty of the court to instruct upon both theories. Zelavin v. Tonopah-Belmont Dev. Co., 39 Nev. 1, 149 Pac. 188.
4. If we clearly interpret the position taken by the learned counsel for the plaintiff, the injuries were the result of the nonperformance or omission of a plain and manifest duty for the protection of human life, and the defendant cannot be heard to say in justification of its negligence that the plaintiff was at the time of his injuries at a place where he had no right to be. This rule does not apply where the party injured, knowing of the danger, purposely or negligently puts himself in its way.
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By the Court,
Sanders, J.,
after stating the facts:
The case has been presented to us with care and ability. The cause is one of the utmost moment to the plaintiff, of general importance to the defendant company, and,. in some respects, is of interest to the profession.
The principal assignment of errors is involved in the discussion of the leading questions: What duty did the law impose upon the defendant to protect the plaintiff from the injuries of which he complains? Was the plaintiff guilty of negligence which directly or proximately contributed to his injuries? Was the defendant’s negligence of such character as to.preclude the, defense of contributory negligence? Did the agreement between the telegraph company and the defendant company operate as a bar to the right of plaintiff to maintain his action?
1. Our respect for the voluminous and exhaustive briefs, embracing, as they do, an analysis of a large number of the leading authorities bearing upon these questions of law, would ordinarily impel us to follow the argument of the learned counsel and pass upon all the points discussed, but the procedure adopted at the trial confines our inquiry to the real question presented for our consideration: Are the special findings of the facts inconsistent with the general verdict of the jury? If [103]*103they are, the law is imperative that they control the verdict, “and the court must give judgment accordingly.” Stats. 1915, p. 110.
Criticism of statutes authorizing special interrogatories is often indulged in by those who would place the verdict of a jury above the law, but from the decisions of this and other courts we are impressed that the practice is universally approved. By submitting special interrogatories the expense and delay of a second trial may often be avoided, and by this practice the law is much more effectually separated from the fact than by giving hypothetical instructions. Lambert v. McFarland, 7 Nev. 159. The statute also enables the court to determine if a general verdict is due to an erroneous application of the law to the facts as actually found by the jury. Weck v. Reno Traction Co., 38 Nev. 300. The rule of construction of special findings of facts is to harmonize them, if possible, with each other and the general verdict. To justify a judgment on special findings, notwithstanding the verdict, the former must be such as absolutely to determine the controversy in favor of the moving party. Clementson, Special Verdicts, c. 8, pp. 131-149. In determining whether the general verdict or the answers to special interrogatories control, the findings are not to be aided by intendment, and the inconsistency between the verdict and the findings must be irreconcilable; that is, it must be such that no reasonable hypothesis or inference under the pleadings and evidence can remove the conflict.
In view of the findings in this case that cover every phase of the evidence, material or otherwise, we now approach the question: Can the findings be true and the verdict be permitted to stand ? In the consideration of this question it must be understood that the same measure of justice, the same rule of conduct, and the same principle of law apply to the defendant corporation as to the unfortunate plaintiff.
Our construction of the pleadings is that the complaint proceeds upon the theory that the plaintiff at the time of [104]*104his injuries was lawfully upon the defendant’s road. The answer of the defendant shows affirmatively that plaintiff was not there rightfully, but, on the contrary, was there in direct violation of positive instructions not to use the motor car upon defendant’s tracks under any circumstances after dark. The plaintiff in his reply to the.answer seeks to justify his presence upon the track after dark, and at the place of his injuries, upon the grounds that he was there in the regular course of the performance of his duties to his employer, and that the time lost in making necessary repairs to his velocipede car at Sparks prevented him from reaching the point where he was injured before dark, and it was the duty of the defendant “to use reasonable and ordinary care that the plaintiff was not injured while running said car on its tracks.” The only charge of negligence resting against the defendant is, therefore, that the defendant’s employees in the moving of its switch engine in question after dark carried no headlight, or other light, to warn plaintiff of its approach.
2, 3. The court defined negligence to be “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.” It is obvious that the first element of this definition is a duty to do or not to do a particular act. It applies to the plaintiff in the operation of his velocipede car, as well as to the defendant in the management and control of its engine and cars. But from the instruction given on the part of the plaintiff immediately following this definition, the jury were, in effect, told that if they believed from the evidence that the act or omission to display a headlight, or other light, was negligence, and that the plaintiff’s injuries.resulted therefrom, the defendant was liable; provided plaintiff’s negligence did not proximately contribute to the injuries; and, though they find that the plaintiff’s acts and conduct did contribute to his injuries, if they believe from the evidence that the act or omission complained of was wilful, [105]*105wanton, and in reckless disregard for the safety or life of the plaintiff, the defendant was liable, notwithstanding the contributory negligence of the plaintiff. The underlying error in the position taken by the learned presiding judge results from the assumption that a like duty to use care in the management and control of the engine rested upon the defendant, whether the plaintiff was rightfully or wrongfully upon the defendant’s track at the time and place of the collision. The rightfulness or wrongfulness of the plaintiff’s presence upon the track was an issuable or disputed fact left to the jury for its determination without the aid of instructions clearly and distinctly defining the duty the law imposed upon the parties in respect to the relative rights and reciprocal duties and obligations arising from the joint occupancy of the locus in quo. A general instruction which left it to the jury to apply the same standard of duty and use of care in the management and control of its trains and engines toward one wrongfully as to one rightfully upon the company’s tracks is wrong. Hern v. So. Pac. Co., 29 Utah, 127, 81 Pac. 906. Where two contentions are made, as were here made, and the evidence tends to support both, it was the duty of the court to instruct upon both theories. Zelavin v. Tonopah-Belmont Dev. Co., 39 Nev. 1, 149 Pac. 188.
4. If we clearly interpret the position taken by the learned counsel for the plaintiff, the injuries were the result of the nonperformance or omission of a plain and manifest duty for the protection of human life, and the defendant cannot be heard to say in justification of its negligence that the plaintiff was at the time of his injuries at a place where he had no right to be. This rule does not apply where the party injured, knowing of the danger, purposely or negligently puts himself in its way. The application of the rule here would, in effect, require the company to, in the movement of its switch engines after dark, provide in advance appliances for protecting persons from the result of their negligence in running velocipede cars upon defendant’s tracks after dark. Such an extreme rule of liability [106]*106would lead to unjust results, and would ignore the rule of contributory negligence. Even in cases of injury to an employee the law is well settled that he cannot prevail in an action for damages where his injuries sustained in the course of his employment were brought about by his own negligence in performing an act, the danger of which was so obvious and threatening that a reasonably prudent man under similar circumstances would have avoided it, if in his power to do so. Konig v. N. C. O. Ry. Co., 36 Nev. 181, 135 Pac. 141. The rule is equally well established that, though it may be shown that the defendant did not exercise care, yet no recovery will be allowed against it if it further appears that the injury would have been avoided if the person injured had exercised care on his own part. Patnode v. Harter, 20 Nev. 303, 21 Pac. 679; 20 R. C. L. 138. The plaintiff in the exercise of a gratuitous privilege in running his car upon defendant’s tracks was bound to use the care a man of average prudence would use under similar circumstances, and one of the circumstances to be considered in this respect was the plaintiff’s knowledge of the situation and its danger. He is held to know everything in respect to a situation and its dangers which he would have known had he exercised due care. Myers v. Boston & Maine R. Co., 72 N. H. 175, 55 Atl. 892. That it was the general duty of the defendant to display a light on its switch engine in moving after dark between the Reno and Sparks yards is not seriously controverted, but its failure so to do would not excuse the plaintiff from exercising ordinary care in voluntarily running his car after dark against positive instructions.
It is obvious from the facts found that the plaintiff knowingly and voluntarily chose the wrong track, and that he negligently continued his journey after dark up to the instant of the collision. Under these circumstances he placed himself in a position of too great danger to hazard his own safety upon a signal that might or might not be given. Certainly the situation in which he placed himself was too uncertain to authorize [107]*107him to omit taking those precautions which common prudence for his own safety would dictate. Railroad Co. v. Depew, 40 Ohio St. 125. When the plaintiff continued his journey after dark upon the wrong track it must be understood that the defendant’s knowledge of his situation was in no respect superior to his own, nor can it be successfully contended that the engineer’s failure to anticipate the plaintiff’s possible or chance presence upon the left-hand track was in any respect different from the plaintiff’s failure to anticipate that the switch engine without a light would be in his path. The running of a velocipede car after dark upon a railroad track is not in itself so innocent as to excuse the operator from the duty of exercising ordinary care, not only for his own safety, but, in a sense, for the safety of defendant’s employees, passengers, or others lawfully upon its tracks. When on the road with his car the plaintiff recognized that for his own safety it was necessary for him to know the traffic movement of defendant’s trains.
The jury specially found that the plaintiff received instructions about October 4, 1911, not to use his car upon defendant’s tracks after dark; that plaintiff knew that between Reno and Sparks on the main line the left-hand track was used for the regular movement of trains and engines; that plaintiff was negligent in running his car after dark; that he was negligent in running the car westerly toward Reno after dark on the defendant’s east-bound main-traffic track; that he was negligent in continuing his j ourney after it became dark after repairing his motor, and that though the rules of the defendant permitted switch engines to run on any track between the points named, it was negligent for plaintiff to run his car on the track on which he was injured; that the plaintiff as a reasonable man should have known that the defendant company was then using the left-hand track for its regular movement of trains between Sparks and Reno.
That the plaintiff’s negligence was one, if not the proximate, cause of his injuries is a fact concerning [108]*108which reasonable minds could not differ. The only plausible pretext upon which these findings can be reconciled with the general verdict would be to hold that the jury was correct in its assumption or conclusion that, notwithstanding the plaintiff’s negligence or want of ordinary care and reasonable diligence, “no light on engine” was the proximate cause of the injuries.
Ordinarily proximate cause is a question of fact, but it is a term sufficiently defined to enable courts to determine if from a given or undisputed state of facts in a case of negligence a verdict or finding thereon is binding or conclusive upon us. There is no evidence to weigh, nothing to be done but to decide whether from the issues, the findings and the verdict the latter meets the requirement of the law. Ophir Mining Co. v. Carpenter, 4 Nev. 534. It is not pretended that the plaintiff’s negligence and wrongful entry upon the left-hand track was the occasion or remote cause of his injuries, nor can it be successfully contended that the injuries were the natural sequence of the defendant’s negligence, for the reason that it affirmatively appears from the findings of the jury that the plaintiff failed to establish any duty or obligation on the part of the company to safeguard him in the running and operation of his velocipede car upon the wrong track, either by day or by night. But it is strenuously urged that it was the general duty of the company, under the circumstances in this case, to keep a constant lookout, and, having failed so to do, when a proper lookout would have prevented the injuries, the company is liable. This assumption is rebutted by the findings of the jury hereinabove referred to, which show that the negligent entry of plaintiff upon the wrong track was without excuse or justification. But, as is said in, the case of Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469:
“ * * * That, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence [109]*109of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”
If it were shown that plaintiff’s injuries were the result of the defendant’s culpable ignorance of his perilous situation, he could appeal to the law for relief, but in view of the findings to the effect that the plaintiff in entering upon the wrong track was culpably ignorant of his danger, and that he consciously and negligently placed himself in its way, we are of the opinion that, under all the attending circumstances, the failure to keep a proper lookout was not the proximate cause of the injuries. The fact that pedestrians in large numbers were accustomed to use the tracks between Reno and Sparks as a walkway would not excuse or justify one of this class to voluntarily, for his own convenience or pleasure, run a velocipede car thereon. If injury resulted, such person would have to bear the consequences of his own wrong. Was plaintiff, who knew the traffic-movement rule, and who is not shown to be excusably ignorant of his danger, to be placed in a better position than a mere stranger ? It is true the plaintiff may not have had in mind, as he testified, the switch engine and did not expect any train to be coming toward him without a light, but it was this expectation that proved to be disastrous. In excuse for not taking the proper track, it is urged that by the rules of the company switching engines were permitted to run on either track, but, notwithstanding this rule, the jury found that it was negligent for plaintiff to run his car on the track on which he was injured. It is further insisted that the jury found that the plaintiff, as a reasonable man, should have known, or expected, or had reason to expect, that the engine ought to comply with the rule of the company and carry the prescribed light so as to warn plaintiff of danger and the approach of the engine.
The effect of this finding is destroyed by the related finding that it was negligence on the part of plaintiff, notwithstanding the rule, to run his car on the track on [110]*110which he was injured. The plaintiff was not justified in relying upon any such rule, as the result shows. If a person could implicitly rely upon the company’s employees performing their duties, and if such reliance would excuse the plaintiff from using precautions for his own protection, then there could be no room whatever for the application of the doctrine of contributory negligence.
Was the act or omission complained of of such character as to preclude the defense of contributory negligence? We have before us a “cold, unimaginative record.” The collision of the car and engine was not of an unusual or remarkable character. The jury attributed the injuries to the negligence of both contending parties. But it is insisted that the defendant’s act. or omission transcended the bounds of negligence and became a wanton, wilful act perpetrated in reckless disregard of plaintiff’s safety. The cases that have undertaken to define in abstract terms wanton or wilful conduct are legion. Before a court of review should so denominate any conduct it should be sure it has beforei it the judgment of a jury on that question. I. C. R. R. Co. v. Klein, 95 Ill. App. 231; Denny v. Chicago R. I. & P. Ry. Co., 150 Iowa, 460, 130 N. W. 364.
5. In response to the inquiry for a special finding in respect to the character of the defendant’s negligence, the jury were asked: “Q. If you find that plaintiff’s injuries wére caused by the negligence of defendant or its employees, was such negligence gross or wanton or with a careless disregard for the safety of plaintiff, or aggravated misconduct?” The jury found: “Careless disregard.” This finding rebuts the assumption that the act complained of was “wilful,” “wanton” or “aggravated misconduct,” or “reckless disregard” of plaintiff’s safety.
Our conclusion is that the special findings of facts made by the jury are inconsistent with their general verdict.
[111]*111The order and judgment appealed from are reversed. The cause is remanded for a new trial.
It is so ordered.
McCarran, C. J.: I concur in the order.