BURTON, Circuit Judge,
after making the foregoing statement of facts, delivered the opinion of the court.
Upon a former trial of this ca'se there was a judgment for the plaintiff in error, which, upon a writ of error, was reversed by this [849]*849court for error in refusing to instruct the jury that, upon the undisputed facts, the deceased had, as matter of law, been guilty of contributory negligence. The facts upon which our judgment was based, and "our reasons for the conclusion then reached, will fully appear by an examination of our opinion as reported in the case of MacLeod v. Graven, 73 Fed. 627; Id., 47 U. S. App. 573, 24 C. C. A. 449, 79 Fed. 84. While the general facts in this and the former record are much the same, the case for the plaintiff in error has been somewhat strengthened in respect to the negligence of the railway company in the matter of both the existence and enforcement of any rule forbidding passengers to leave the cars away from the platforms provided for that purpose. Upon the former record we held that the undisputed evidence justified no other inference than that Graven, after alighting from the train, had, without either stopping or listening or looking, undertaken to cross a railway track upon which a train was rapidly approaching, which he could not but have seen, if he had looked or listened before going upon the track. We x*eached this conclusion irrespective of the question as to whether he had violated any rule of the company, in alighting away from the platform, and based our judgment upon his failure to observe that high degree of care required of one about to cross a railway track, as announced and applied in the cases of Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85; and Blount’s Adm'x v. Railway Co., 22 U. S. App. 129, 9 C. C. A. 526, 61 Fed. 375. We did not regard the case of Railway Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281, as in any way conflicting with the ground upon which we rested our judgment, because in that case the alleged contributory negligence of Lowell consisted in his conduct in leaving the train away from the station platform, in supposed violation of a rule of (he company known to him, and conspicuously posted in the cars. The question as to whether" Lowell had been guilty of negligence in his manner of crossing the track cut no figure in the result; for Mr. Justice Brown, in announcing the opinion ox the court, said:
“In his manner of leaving' the train there seems to have been no negligence. He took hold of the iron railing at the end of the platform on the right-hand side, stopped down with the left foot first, and faced towards the west, on the south-line track, saw or heard no train coming upon that track, and supposed that he was perfectly safe in crossing, as he knew no train was then due.”
But since that opinion, and since the former reversal of this case, the supreme court, in the case of Warner v. Railroad Co., 168 U. S. 339, 18 Sup. Ct. 68, has drawn a distinction between the duty owing to a passenger by a railway company and that due to a traveler crossing its tracks. Upon that, subject the court said:
“The duty owing l>y a railroad company to a passenger actually or constructively in its care is of such a character that the rules of law regulating the conduct of a traveler upon the highway, when about to cross, and the trespasser who ventures upon the tracks of a railroad company, are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence. A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which [850]*850is due to mere trespassers or strangers, and it is, conversely, equally true that the passenger, under given conditions, has a right to rely upon the exercise by the road of care; and the question of whether or not he is negligent, under all circumstances, must he determined on due consideration of the obligations of both the company and the passenger. As said by the court of appeals of New York in Terry v. Jewett, 78 N. Y. 338-344: ‘There is a difference between the care and caution demanded in crossing a railroad track on a highway, and in crossing while at a depot of a railroad company to reach the cars. Ño absolute rule can he laid down to govern the passenger in the latter case under all circumstances. While a passenger has a right to pass from the depot to the train on which such passenger intends to travel, and the company should furnish reasonable and adequate protection against accident in the enjoyment of this privilege, the passenger is bound to exercise proper care, prudence, and caution in avoiding danger. The degree of care and caution must be governed in all eases by the extent of the peril to be encountered, and the circumstances attending the exposure.’ ” 1
A peremptory instruction to find for the defendant was given upon proof that the plaintiff, who was a passenger, and who wat, under the necessity of crossing a track in order to reach a train standing upon another, had crossed an intervening track, on which a train was. approaching, which he could not have failed to see, if he had stopped and looked before going on the track. The supreme court held that there was a view of the testimony which constituted “an implied invitation to the passenger to follow the only course which he could have followed in order to take the train; that is, to cross the track to the waiting train.” Where the circumstances are such as to constitute an implied invitation to depart, from a station by crossing a track, the passenger, while not absolutely free from the duty of exercising care and caution in avoiding danger, would be justified in assuming that, in holding out the invitation to leave its train by crossing an intervening track, the railroad company had not “so arranged its business as to expose him to the hazard of life and limb unless he exercised the very highest degree of care and caution.” Warner v. Railroad Co., 168 U. S. 339-347, 18 Sup. Ct. 68. While it is true that the case before us does not show, as in the Warner Case, that there was no other course left the deceased than to make his exit from this train away from the platform, and across the east-bound track, yet' there was evidence tending to show that the way taken by him was not forbidden, and was the one customarily used by passengers living, as he did, on the side away from the platform. The circuit court was obliged to take that view of the evidence most favorable to the deceased, where the question was whether there was any evidence for the jury.
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BURTON, Circuit Judge,
after making the foregoing statement of facts, delivered the opinion of the court.
Upon a former trial of this ca'se there was a judgment for the plaintiff in error, which, upon a writ of error, was reversed by this [849]*849court for error in refusing to instruct the jury that, upon the undisputed facts, the deceased had, as matter of law, been guilty of contributory negligence. The facts upon which our judgment was based, and "our reasons for the conclusion then reached, will fully appear by an examination of our opinion as reported in the case of MacLeod v. Graven, 73 Fed. 627; Id., 47 U. S. App. 573, 24 C. C. A. 449, 79 Fed. 84. While the general facts in this and the former record are much the same, the case for the plaintiff in error has been somewhat strengthened in respect to the negligence of the railway company in the matter of both the existence and enforcement of any rule forbidding passengers to leave the cars away from the platforms provided for that purpose. Upon the former record we held that the undisputed evidence justified no other inference than that Graven, after alighting from the train, had, without either stopping or listening or looking, undertaken to cross a railway track upon which a train was rapidly approaching, which he could not but have seen, if he had looked or listened before going upon the track. We x*eached this conclusion irrespective of the question as to whether he had violated any rule of the company, in alighting away from the platform, and based our judgment upon his failure to observe that high degree of care required of one about to cross a railway track, as announced and applied in the cases of Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85; and Blount’s Adm'x v. Railway Co., 22 U. S. App. 129, 9 C. C. A. 526, 61 Fed. 375. We did not regard the case of Railway Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281, as in any way conflicting with the ground upon which we rested our judgment, because in that case the alleged contributory negligence of Lowell consisted in his conduct in leaving the train away from the station platform, in supposed violation of a rule of (he company known to him, and conspicuously posted in the cars. The question as to whether" Lowell had been guilty of negligence in his manner of crossing the track cut no figure in the result; for Mr. Justice Brown, in announcing the opinion ox the court, said:
“In his manner of leaving' the train there seems to have been no negligence. He took hold of the iron railing at the end of the platform on the right-hand side, stopped down with the left foot first, and faced towards the west, on the south-line track, saw or heard no train coming upon that track, and supposed that he was perfectly safe in crossing, as he knew no train was then due.”
But since that opinion, and since the former reversal of this case, the supreme court, in the case of Warner v. Railroad Co., 168 U. S. 339, 18 Sup. Ct. 68, has drawn a distinction between the duty owing to a passenger by a railway company and that due to a traveler crossing its tracks. Upon that, subject the court said:
“The duty owing l>y a railroad company to a passenger actually or constructively in its care is of such a character that the rules of law regulating the conduct of a traveler upon the highway, when about to cross, and the trespasser who ventures upon the tracks of a railroad company, are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence. A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which [850]*850is due to mere trespassers or strangers, and it is, conversely, equally true that the passenger, under given conditions, has a right to rely upon the exercise by the road of care; and the question of whether or not he is negligent, under all circumstances, must he determined on due consideration of the obligations of both the company and the passenger. As said by the court of appeals of New York in Terry v. Jewett, 78 N. Y. 338-344: ‘There is a difference between the care and caution demanded in crossing a railroad track on a highway, and in crossing while at a depot of a railroad company to reach the cars. Ño absolute rule can he laid down to govern the passenger in the latter case under all circumstances. While a passenger has a right to pass from the depot to the train on which such passenger intends to travel, and the company should furnish reasonable and adequate protection against accident in the enjoyment of this privilege, the passenger is bound to exercise proper care, prudence, and caution in avoiding danger. The degree of care and caution must be governed in all eases by the extent of the peril to be encountered, and the circumstances attending the exposure.’ ” 1
A peremptory instruction to find for the defendant was given upon proof that the plaintiff, who was a passenger, and who wat, under the necessity of crossing a track in order to reach a train standing upon another, had crossed an intervening track, on which a train was. approaching, which he could not have failed to see, if he had stopped and looked before going on the track. The supreme court held that there was a view of the testimony which constituted “an implied invitation to the passenger to follow the only course which he could have followed in order to take the train; that is, to cross the track to the waiting train.” Where the circumstances are such as to constitute an implied invitation to depart, from a station by crossing a track, the passenger, while not absolutely free from the duty of exercising care and caution in avoiding danger, would be justified in assuming that, in holding out the invitation to leave its train by crossing an intervening track, the railroad company had not “so arranged its business as to expose him to the hazard of life and limb unless he exercised the very highest degree of care and caution.” Warner v. Railroad Co., 168 U. S. 339-347, 18 Sup. Ct. 68. While it is true that the case before us does not show, as in the Warner Case, that there was no other course left the deceased than to make his exit from this train away from the platform, and across the east-bound track, yet' there was evidence tending to show that the way taken by him was not forbidden, and was the one customarily used by passengers living, as he did, on the side away from the platform. The circuit court was obliged to take that view of the evidence most favorable to the deceased, where the question was whether there was any evidence for the jury. There was, therefore, a view of the evidence which might, in the absence of other circumstances, have justified the deceased in assuming that an implied invitation was extended to him to leave the station in the way he did, if that was most convenient to him, and in relying upon the obligation thereby imposed upon the company of so operating its trains as.that he should not be exposed to danger “unless he exercised the very highest degree of care and caution.” This view of the law, as announced in the case of Warner v. Railroad Co., supra, requires that the question of contributory negligence should be submitted to the jury, upon all the facts and circumstances of the case. If the deceased was not justified in assuming that the com[851]*851pany extended to him an implied invitation to leave its trains as he did, and to cross its track between the platforms on his way from the station, he would not be justified in relying upon the company so operating its trains at this station as that he might cross this track at the time and place he did without the exercise of the highest degree of care and caution. On the other hand, if the circumstances were such as to justify the deceased in assuming that the company extended to him an implied invitation to leave its train away from its platform, and to make his way from the station upon or across its east-bound track, the company would come under an obligation to so regulate the running of its trains while passengers were being discharged from trains bound west, and standing at that station, as that those accepting such invitation would not be in danger of life or limb unless they exercised the highest degree of care and caution. If, from the facts and circumstances known to the deceased, or which, as a passenger accustomed to the use of the trains of this company, he is presumed to have known, he was justified in assuming that he might rely upon the exercise by the company of that degree of care due to a passenger crossing a track upon the implied invitation of the company, he would he chargeable only with reasonable care in avoiding danger. In such case, the mere fact that a passenger crosses a track to take his train, or in leaving his train, without looking or listening, would not necessarily be contributory negligence, but would he a question for the jury to determine whether, under all the facts, such conduct was due care. The right to rely upon the care and caution of the company furnishes some reason for the failure to exercise that high degree of care which one is hound to exercise when his safety depends wholly upon his own watchfulness. Wheelock v. Railroad Co., 105 Mass. 203; Terry v. Jewett, 78 N. Y. 338; Brassell v. Railroad Co., 84 N. Y. 246.
In view of the law as announced and applied in the case of Warner v. Railroad Co., 168 U. S. 339, 18 Sup. Ct. 68, and of the obligation of this court to conform its decisions to the opinion of that court, our former opinion in this case must he regarded as overruled. Reverse and remand for a new trial.