Given, J.
I. The defendant owned and operated two tracks of railway from Marion, Iowa; one running westward to Council Bluffs, and the other southwest to Kansas City, Mo. These tracks were parallel and close together for some distance west of the station in Marion, and were laid on a bridge spanning Indian creek, and one spanning an undergrade highway crossing, and upon an embankment .about twenty-five feet above the natural surface, which had [394]*394been formed by filling in earth along a trestle that had been formerly used. These two tracks belonged to the defendant, and the deceased had been in the employ of the defendant as a sectionman on the Council Bluffs line for a a year or more, and was familiar with these tracks immediately west of Marion, and with the manner of operating trains thereon. On the ninth day of November, 1895, about 8 o’clock in the morning, the deceased and one Taylor were engaged, at a point on said embankment within the limit of the city of Marion, in scattering cinders- that had been deposited on the north side of the Council Bluffs track, which lay immediately north of the Kansas City tracks, with only sufficient space between for the safe passage of cars. With no train upon the track to obstruct the view, these men could see westward for a mile or more, and eastward for at least one thousand feet. While they were at work a freight train from the west on the Council Bluffs track whistled for the station at or near the post about seven hundred feet west of them, and, as it approached they stepped backward, with their faces to the north, onto the Kansas City track. A freight train had started west on the Kansas. City track at such time as that the engines passed at about 100 feet east of where the men were. It is evident that deceased was not aware of the approach of the train from the east, as he remained on or so near its track that he was struck by the engine and killed.
1 2 II. The grounds of defendant’s motion for a verdict, necessary to be noticed, may be summed up as follows: That plaintiff failed to show that the defendant was guilty of negligence as charged, or that the negligence charged was the proximate cause of the accident; that the evidence fails to show that the deceased was free from negligence, and does show that the deceased was guilty of negligence contributing to his injury. The negligence charged is “that while said Kobert P. Lutz was so situated and being, and absorbed in his work as aforesaid, and in [395]*395the discharge of the duties required of him by the rules of the defendant company, the defendant company carelessly and negligently ran two trains upon and over said tracks at said point, but going in opposite directions; and the same, in violation of law, were at that time running at a high and dangeorus rate of speed, and ¡in violation of the ordinances of said town of Marion; and that without any signals or warnings of any kind, and illegally and wholly disregarding the duty that said defendant owed to said decedent, and of the precautions that should have been taken for his safety, ran one of said trains, to-wit, the one running on the Kansas City division, over, against, and upon said decedent, bruising, crushing, and killing him, while said trains were passing each other at or near said point.” An ordinance of said city of Marion provides as follows: “That no locomotive engine,’ railway passenger car or freight car shall be driven or run upon or along any railroad track located upon a street within the corporate limits of the city of Marion at a greater speed than the rate of six miles per hour.” The evidence shows that these tracks were not upon any street within that corporation at the place of the accident, nor for a considerable distance east thereof. Said ordinance also provided that “the bell of each locomotive engine shall be constantly rung while moving within the city limits.” The evidence shows that these trains were both being run at the speed of about twenty-five miles an hour. If it may be said that this was not in violation of an ordinance, because not upon, tracks located upon a street, still it may be questioned whether, under the circumstances, the speed was negligent. The evidence tends to show that the bell was not rung on the Kansas City engine, and that no signal was given from that engine until the deceased and Taylor were seen to approach or come upon the Kansas City track, when the usual danger signals by whistle were given. Our conclusion on the question of contributory negligence renders [396]*396it necessary that we determine whether the evidence fails to .show, negligence on the part of the enginemen. We are in no doubt that it fails to show negligence on their part after the peril of deceased was, or by the exercise of care should have been known to them. If he stepped backward in time to have crossed their track before their engine reached that point, they had a right to presume that he would cross it. If he did not step back in time to cross it, they did not have time in which to have avoided the accident after his peril was or could have been known.
3 III. We next inquire whether the court was warranted in holding as a matter of law, that the deceased was guilty of negligence contributing to his inquiry. He continued at his work after the east-bound train whistled for the station until it was near to him, and then, without looking, as he could have easily done,'to see whether a train was coming on the Kansas City track, as he knew was possible, he stepped backward over the few feet between the tracks onto or near the south track, where he stopped, and in a moment after was struck and injured. It is insisted that owing to the form of the embankment, and close proximity of the two tracks, there was no other place to which the deceased could have gone, out of the way of the east-bound train. We think it was entirely possible for him to have gone down either side of the embankment, especially the north side, to a place of safety from both trains! It appears that the defendant had in force a rule as follows: “(118) Trackmen must keep close watch of passing trains, and when anything wrong is discovered, immediately signal the engineer or trainmen, and use every effort to stop the train.” It is insisted that, in view of this rule, the deceased was not negligent. This rule did not require the deceased to go to the place he did, nor to any other place of danger. He was not required to go where he did in the performance of any duty. No duty devolved upon him but [397]*397to look out for his own safety until the east-bound train was passing the place where he was.- It'was not until then that he was required by the rule to observe the passing train. It was before' that duty was required that he was negligent in stepping hack onto the south track without looking to see if a train was approaching thereon. It is evident that, not thinking that a train might come on the south track, he, without looking, went- onto that track, as the most convenient place to avoid the east-bound train. The case is not similar in its facts to that of Tobey v. Railway Co., 94 Iowa, 257 as relates to this question. In that case Tobey, a trackman, was engaged in driving a spike in one of the tracks. Just before he commenced driving he looked southward, and saw that no cars were approaching.
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Given, J.
I. The defendant owned and operated two tracks of railway from Marion, Iowa; one running westward to Council Bluffs, and the other southwest to Kansas City, Mo. These tracks were parallel and close together for some distance west of the station in Marion, and were laid on a bridge spanning Indian creek, and one spanning an undergrade highway crossing, and upon an embankment .about twenty-five feet above the natural surface, which had [394]*394been formed by filling in earth along a trestle that had been formerly used. These two tracks belonged to the defendant, and the deceased had been in the employ of the defendant as a sectionman on the Council Bluffs line for a a year or more, and was familiar with these tracks immediately west of Marion, and with the manner of operating trains thereon. On the ninth day of November, 1895, about 8 o’clock in the morning, the deceased and one Taylor were engaged, at a point on said embankment within the limit of the city of Marion, in scattering cinders- that had been deposited on the north side of the Council Bluffs track, which lay immediately north of the Kansas City tracks, with only sufficient space between for the safe passage of cars. With no train upon the track to obstruct the view, these men could see westward for a mile or more, and eastward for at least one thousand feet. While they were at work a freight train from the west on the Council Bluffs track whistled for the station at or near the post about seven hundred feet west of them, and, as it approached they stepped backward, with their faces to the north, onto the Kansas City track. A freight train had started west on the Kansas. City track at such time as that the engines passed at about 100 feet east of where the men were. It is evident that deceased was not aware of the approach of the train from the east, as he remained on or so near its track that he was struck by the engine and killed.
1 2 II. The grounds of defendant’s motion for a verdict, necessary to be noticed, may be summed up as follows: That plaintiff failed to show that the defendant was guilty of negligence as charged, or that the negligence charged was the proximate cause of the accident; that the evidence fails to show that the deceased was free from negligence, and does show that the deceased was guilty of negligence contributing to his injury. The negligence charged is “that while said Kobert P. Lutz was so situated and being, and absorbed in his work as aforesaid, and in [395]*395the discharge of the duties required of him by the rules of the defendant company, the defendant company carelessly and negligently ran two trains upon and over said tracks at said point, but going in opposite directions; and the same, in violation of law, were at that time running at a high and dangeorus rate of speed, and ¡in violation of the ordinances of said town of Marion; and that without any signals or warnings of any kind, and illegally and wholly disregarding the duty that said defendant owed to said decedent, and of the precautions that should have been taken for his safety, ran one of said trains, to-wit, the one running on the Kansas City division, over, against, and upon said decedent, bruising, crushing, and killing him, while said trains were passing each other at or near said point.” An ordinance of said city of Marion provides as follows: “That no locomotive engine,’ railway passenger car or freight car shall be driven or run upon or along any railroad track located upon a street within the corporate limits of the city of Marion at a greater speed than the rate of six miles per hour.” The evidence shows that these tracks were not upon any street within that corporation at the place of the accident, nor for a considerable distance east thereof. Said ordinance also provided that “the bell of each locomotive engine shall be constantly rung while moving within the city limits.” The evidence shows that these trains were both being run at the speed of about twenty-five miles an hour. If it may be said that this was not in violation of an ordinance, because not upon, tracks located upon a street, still it may be questioned whether, under the circumstances, the speed was negligent. The evidence tends to show that the bell was not rung on the Kansas City engine, and that no signal was given from that engine until the deceased and Taylor were seen to approach or come upon the Kansas City track, when the usual danger signals by whistle were given. Our conclusion on the question of contributory negligence renders [396]*396it necessary that we determine whether the evidence fails to .show, negligence on the part of the enginemen. We are in no doubt that it fails to show negligence on their part after the peril of deceased was, or by the exercise of care should have been known to them. If he stepped backward in time to have crossed their track before their engine reached that point, they had a right to presume that he would cross it. If he did not step back in time to cross it, they did not have time in which to have avoided the accident after his peril was or could have been known.
3 III. We next inquire whether the court was warranted in holding as a matter of law, that the deceased was guilty of negligence contributing to his inquiry. He continued at his work after the east-bound train whistled for the station until it was near to him, and then, without looking, as he could have easily done,'to see whether a train was coming on the Kansas City track, as he knew was possible, he stepped backward over the few feet between the tracks onto or near the south track, where he stopped, and in a moment after was struck and injured. It is insisted that owing to the form of the embankment, and close proximity of the two tracks, there was no other place to which the deceased could have gone, out of the way of the east-bound train. We think it was entirely possible for him to have gone down either side of the embankment, especially the north side, to a place of safety from both trains! It appears that the defendant had in force a rule as follows: “(118) Trackmen must keep close watch of passing trains, and when anything wrong is discovered, immediately signal the engineer or trainmen, and use every effort to stop the train.” It is insisted that, in view of this rule, the deceased was not negligent. This rule did not require the deceased to go to the place he did, nor to any other place of danger. He was not required to go where he did in the performance of any duty. No duty devolved upon him but [397]*397to look out for his own safety until the east-bound train was passing the place where he was.- It'was not until then that he was required by the rule to observe the passing train. It was before' that duty was required that he was negligent in stepping hack onto the south track without looking to see if a train was approaching thereon. It is evident that, not thinking that a train might come on the south track, he, without looking, went- onto that track, as the most convenient place to avoid the east-bound train. The case is not similar in its facts to that of Tobey v. Railway Co., 94 Iowa, 257 as relates to this question. In that case Tobey, a trackman, was engaged in driving a spike in one of the tracks. Just before he commenced driving he looked southward, and saw that no cars were approaching. While driving he observed an engine coming from the north on the track where he was working, and he continued to drive, so as to get the spike out of the way of the engine, until the engine was within ten or fifteen feet of him, when, without looking south again, he stepped back near another track, and was struck and injured by cars being fnoved from the south on that track. At the moment when he stepped back his attention was attracted by the efforts of a fellow workman to get a foot adz out of the way of the engine. He testified: “As I looked at this foot adz on the track, I was in the act of looking south; but this man attracted my attention, who was attempting to take the foot adz off the rail, for five or six seconds.” This court said: “We do not think that it can be said, as a matter of law, that plaintiff, under these circumstances was negligent. He was justified in working as he did, and in finishing driving the spike, so that the engine might pass in safety over the crossing. The interval of time after he stepped off the track until he was struck was so short that it is not cleaV that he was not excusable for failing to see the approaching cars on another track. Besides, his attention was diverted by the effort of his companion, Scheeler, to get the adz off the track from in front of the [398]*398approaching engine. The evidence shows without conflict that after the men hallooed to him he did not have time to avert the accident. His companion did not observe these cars. After stepping off the track, plaintiff started to look in the direction from which these cars came, but was startled, and his attention attracted, as we have said, by the attempt of his companion to get the adz off the ..track. We cannot say that his failure to observe the approaching cars and the danger of their striking him, under such circumstances, was negligence.” The differences between that case and this, bearing upon the question of contributory negligence, are these: Tobey was at the only place where his employment permitted him to be at the time, and was not negligent in being there, while the deceased was negligent in going where he did, instead of to the places of safety that were open to him. Tobey exercised care for his own safety by looking before he commenced driving the spike, and would have looked again if his attention had not been diverted, while the deceased, with ample opportunity to have lodked in time to have avoided the accident, did not do so. The first duty of each was to himself, and Tobey carefully observed that duty up to the moment his attention was diverted, while deceased acted in utter 'disregard of his own safety. The duty of the deceased to observe the passing train did not require him to go into the place of danger, nor did it prevent him from looking and seeing the danger in time to avoid jt. In Tobey’s Case, the foreman whose duty it was to warn the trackmen of approaching trains was present, but did not warn Tobey. In this case, as the deceased must have known, the foreman was absent, — a fact that called upon him to exercise greater care in observing for himself.
4 We have given unusual care to the consideration of this record, and think that but one conclusion can be reached from the evidence, and that is that the death of deceased was contributed to, if not solely caused, by his own negligence. — Affirmed.