Roby, J.
Appellee’s complaint stated that on March 24, 1902, at about 11 o’clock a. m., he was driving a two-horse wagon eastward along the south side of Washington street in the city of Indianapolis, approaching Capitol avenue at the southeast corner of. the statehouse; that, as he was driving across the railway tracks on AVashington street in a careful and prudent manner, appellant caused one of its cars to be negligently run over said crossing at a dangerous rate of speed, to wit, twenty miles an hour, without signal, and negligently ran the same against his wagon, causing the injuries complained of. The issue was made by general denial. There was a trial by jury, and a verdict in favor of plaintiff for $700. The motion for a new trial was overruled, and there was judgment on the verdict.
The only assignment of error argued is that the court erred in overruling the motion for a new trial, and the question for decision is whether the evidence is sufficient to sustain the verdict.
[315]*315The defendant introduced no evidence. The facts, so far as essential, are: That appellee was hauling sand with a wagon and team of horses at tire time stated, and drove along the south side of "Washington street eastward to the east side of Capitol avenue where it intersects said street, at which place he turned north, intending to go in that direction along Capitol avenue. There were double tracks along Washington street, west-bound cars using the north track and east-bound cars the south track. As he approached the south track, his horses’ heads being a few feet distant therefrom, he stopped to avoid a street car going west on the north track. It having passed, he proceeded forward at about three miles an hour, and when the hind wheels of his wagon were between the rails of the south track it was struck by a car coming from the west at a rate of speed variously estimated at from fifteen to twenty miles an hour, by reason of which collision appellee Avas injured. lie drove at least twenty feet after the west-bound car passed before the collision occurred. The eA’idence is that the car Avas distant from seventy to one hundred and fifty feet Avhen he started to go across. In vierv of the difference between the speed of the car and the wagon, and the distance from which the Avagon was driven, the jury could not do otherwise than to find, as the general verdict does, that, had the car been running at a safe rate of speed and properly controlled, there would have been no> collision. Appellee testified that he glanced west as he started across, but noticed no car approaching. The track was straight and unobstructed. That appellant Avas guilty of actionable negligence as charged is not questioned. It is however contended that the undisputed facts show appellee to har^e been contributorily negligent, and that the court should have directed a. verdict for appellant.
The disposition of the appeal, therefore, depends upon whether this court may hold as matter of Iüav that appellee was guilty of contributory negligence.
[316]*316One of the highest functions of an appellate court is to declare logical rules for the government of public conduct and for its own guidance. The following general propositions are believed to be logically accurate, and are supported by the vast consensus of judicial decisions:
1. When the established facts of a given case show, without room for diverse inference; that the plaintiff did not have reasonable ground for believing that he could cross without danger, then his contributory negligence may be declared by the court.
2. If the facts show that there was no reasonable ground upon which the plaintiff did anticipate, or should have anticipated, danger in attempting to cross, then his freedom from contributory negligence may be so declared.
3. In those cases where facts are disputed, or different inferences are deducible from undisputed- facts, the question of contributory negligence becomes one of mixed law and fact to be decided by the jury. Pittsburgh, etc., R. Co. v. Bennett (1894), 9 Ind. App. 92, 115; Louisville, etc., R. Co. v. Williams (1898), 20 Ind. App. 576; Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142, 148; Railroad Co. v. Stout (1873), 17 Wall. 657, 21 L. Ed. 745; Washington, etc., R. Co. v. McDade (1890), 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; Keller v. Gaskill (1894), 9 Ind. App. 670; Cincinnati, etc., R. Co. v. Grames (1893), 136 Ind. 39; 1 Thompson, Negligence (2d ed.), §§427, 429, 430.
4. If one deliberately or indifferently easts himself under the wheels of a street car, or those of any other vehicle, the lack of room for the inference of ordinary care upon his part enables the court to adjudge contributory negligence as a matter of law. Illustrative cases are: Moran v. Leslie (1904), 33 Ind. App. 80; Citizens St. R. Co. v. Helvie (1899), 22 Ind. App. 515; Kessler v. Citizens St. R. Co. (1898), 20 Ind. App. 427; Young v. Citizens St. R. Co. (1897), 148 Ind. 54.
[317]*317The facts may also be of such a character that the court may adjudge absence of contributory negligence as matter of law. They are rarely called upon to do so. But if; when appellee started to cross the track, he had seen a street car half a mile away, which, contrary to any reasonable expectation, was brought in collision with him before he could clear the track, in the absence of further notice of the impending danger than, the mere presence of the car at the distance named could give, it might be declared as a matter of law that he was not contributorily negligent.
The other class of cases are those in which there is a dispute as to what the facts are, or a dispute as to what inferences should be drawn from undisputed facts, in both of which cases, if there is room for a difference of opinion among reasonable men, the question is left to the jury, under instruction from the court as to the law. Chicago, etc., R. Co. v. Martin, (1903), 31 Ind. App. 308, 315; Citizens St. R. Co. v. Hamer (1902), 29 Ind. App. 426, 430; Baltimore, etc., R. Co. v. Walborn, supra; Railroad Co. v. Stout, supra. It is primarily necessary in each instance to determine under which of the foregoing classes the given facts bring the case.
5. In the actual use of a public highway every person has an equal right to use it for his own best advantage, to suit his own convenience or pleasure, but at all times with a just regard to the like rights of every other person. Stringer v. Frost (1888), 116 Ind. 477, 2 L. R. A. 614, 9 Am. St. 875; Green v. Eden (1900), 24 Ind. App. 583; Scofield v. Meyers (1901), 27 Ind. App. 375.
6. “The driver of an ordinary vehicle can proceed at a highway crossing to go over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of each other.
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Roby, J.
Appellee’s complaint stated that on March 24, 1902, at about 11 o’clock a. m., he was driving a two-horse wagon eastward along the south side of Washington street in the city of Indianapolis, approaching Capitol avenue at the southeast corner of. the statehouse; that, as he was driving across the railway tracks on AVashington street in a careful and prudent manner, appellant caused one of its cars to be negligently run over said crossing at a dangerous rate of speed, to wit, twenty miles an hour, without signal, and negligently ran the same against his wagon, causing the injuries complained of. The issue was made by general denial. There was a trial by jury, and a verdict in favor of plaintiff for $700. The motion for a new trial was overruled, and there was judgment on the verdict.
The only assignment of error argued is that the court erred in overruling the motion for a new trial, and the question for decision is whether the evidence is sufficient to sustain the verdict.
[315]*315The defendant introduced no evidence. The facts, so far as essential, are: That appellee was hauling sand with a wagon and team of horses at tire time stated, and drove along the south side of "Washington street eastward to the east side of Capitol avenue where it intersects said street, at which place he turned north, intending to go in that direction along Capitol avenue. There were double tracks along Washington street, west-bound cars using the north track and east-bound cars the south track. As he approached the south track, his horses’ heads being a few feet distant therefrom, he stopped to avoid a street car going west on the north track. It having passed, he proceeded forward at about three miles an hour, and when the hind wheels of his wagon were between the rails of the south track it was struck by a car coming from the west at a rate of speed variously estimated at from fifteen to twenty miles an hour, by reason of which collision appellee Avas injured. lie drove at least twenty feet after the west-bound car passed before the collision occurred. The eA’idence is that the car Avas distant from seventy to one hundred and fifty feet Avhen he started to go across. In vierv of the difference between the speed of the car and the wagon, and the distance from which the Avagon was driven, the jury could not do otherwise than to find, as the general verdict does, that, had the car been running at a safe rate of speed and properly controlled, there would have been no> collision. Appellee testified that he glanced west as he started across, but noticed no car approaching. The track was straight and unobstructed. That appellant Avas guilty of actionable negligence as charged is not questioned. It is however contended that the undisputed facts show appellee to har^e been contributorily negligent, and that the court should have directed a. verdict for appellant.
The disposition of the appeal, therefore, depends upon whether this court may hold as matter of Iüav that appellee was guilty of contributory negligence.
[316]*316One of the highest functions of an appellate court is to declare logical rules for the government of public conduct and for its own guidance. The following general propositions are believed to be logically accurate, and are supported by the vast consensus of judicial decisions:
1. When the established facts of a given case show, without room for diverse inference; that the plaintiff did not have reasonable ground for believing that he could cross without danger, then his contributory negligence may be declared by the court.
2. If the facts show that there was no reasonable ground upon which the plaintiff did anticipate, or should have anticipated, danger in attempting to cross, then his freedom from contributory negligence may be so declared.
3. In those cases where facts are disputed, or different inferences are deducible from undisputed- facts, the question of contributory negligence becomes one of mixed law and fact to be decided by the jury. Pittsburgh, etc., R. Co. v. Bennett (1894), 9 Ind. App. 92, 115; Louisville, etc., R. Co. v. Williams (1898), 20 Ind. App. 576; Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142, 148; Railroad Co. v. Stout (1873), 17 Wall. 657, 21 L. Ed. 745; Washington, etc., R. Co. v. McDade (1890), 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; Keller v. Gaskill (1894), 9 Ind. App. 670; Cincinnati, etc., R. Co. v. Grames (1893), 136 Ind. 39; 1 Thompson, Negligence (2d ed.), §§427, 429, 430.
4. If one deliberately or indifferently easts himself under the wheels of a street car, or those of any other vehicle, the lack of room for the inference of ordinary care upon his part enables the court to adjudge contributory negligence as a matter of law. Illustrative cases are: Moran v. Leslie (1904), 33 Ind. App. 80; Citizens St. R. Co. v. Helvie (1899), 22 Ind. App. 515; Kessler v. Citizens St. R. Co. (1898), 20 Ind. App. 427; Young v. Citizens St. R. Co. (1897), 148 Ind. 54.
[317]*317The facts may also be of such a character that the court may adjudge absence of contributory negligence as matter of law. They are rarely called upon to do so. But if; when appellee started to cross the track, he had seen a street car half a mile away, which, contrary to any reasonable expectation, was brought in collision with him before he could clear the track, in the absence of further notice of the impending danger than, the mere presence of the car at the distance named could give, it might be declared as a matter of law that he was not contributorily negligent.
The other class of cases are those in which there is a dispute as to what the facts are, or a dispute as to what inferences should be drawn from undisputed facts, in both of which cases, if there is room for a difference of opinion among reasonable men, the question is left to the jury, under instruction from the court as to the law. Chicago, etc., R. Co. v. Martin, (1903), 31 Ind. App. 308, 315; Citizens St. R. Co. v. Hamer (1902), 29 Ind. App. 426, 430; Baltimore, etc., R. Co. v. Walborn, supra; Railroad Co. v. Stout, supra. It is primarily necessary in each instance to determine under which of the foregoing classes the given facts bring the case.
5. In the actual use of a public highway every person has an equal right to use it for his own best advantage, to suit his own convenience or pleasure, but at all times with a just regard to the like rights of every other person. Stringer v. Frost (1888), 116 Ind. 477, 2 L. R. A. 614, 9 Am. St. 875; Green v. Eden (1900), 24 Ind. App. 583; Scofield v. Meyers (1901), 27 Ind. App. 375.
6. “The driver of an ordinary vehicle can proceed at a highway crossing to go over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of each other. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each party. [318]*318Under ordinary circumstances, the first to- reach the crossing, if each has been moving at a reasonable speed, has the right to proceed over it before the other; but if it be apparent to the driver that the motonnan does not intend to respect this right, he must stop and give way, if a collision can thus be avoided.” Baldwin, American Bailroad Law, 418.
If the facts exhibited come short of what is required to enable the court to declare contributory negligence, it is the misfortune of the defendant, the defense being an affirmative one by statute. If the existence of certain facts is inconsistent with such declaration, their absence must appear from the evidence in order that it may be made.
7. There is constant difficulty in the application of the foregoing well-established general doctrine, due to the variety of facts connected with the different occurrences which come before the courts for examination. The main features of many accidents have a general likeness to each other, in that injuries are suffered through collision, but the details which give character to the conduct of the parties are not twice alike. Unanimity of decision is therefore attained wheii the same principles are applied in every case. Unanimity of result in upholding or overthrowing judgments rendered against street car companies for damages on account of such collisions is neither possible nor desirable. Each case must be determined upon its own facts. The language of-different opinions can not be disassociated from the facts before, and considered by, the court. The text-writer above quoted says:
8. “In practical effect these doctrines give any railroad car approaching a highway crossing what amounts to a right of precedence. This follows from the rule respecting contributory negligence. No man has the right to calculate close chances as to his ability to reach the track before the car, and throw the risk of injury on the other party. As to whether the chances wore close, however, and whether the railroad company were not tire one really in fault, will or[319]*319dinarily be a question for the jury. When a traveler is struck by a car, the collision may be due to a sudden increase of its rate of speed, which he had no reason to anticipate, or to his meeting with some unexpected and extraordinary impediment upon the crossing. All the attendant circumstances are to be taken into account.” Baldwin, American Railroad Law, 4184 . ^
When the appellee stai’ted to drive across the tracks, the car which subsequently collided with his wagon was some distance away. What that distance was is one relevant fact. It may be of predominating importance, and it may be of very minor consequence. If the car had been stationary, its mere presence on the track would not be a menace. If its movement was such as to indicate an intention to stop, or so moderate as to suggest no likelihood of a collision, ho could not, in proceeding upon his way, be held blamable because of its mere presence. So that the rate of speed at which a car moves, the measure of control apparently exercised over it, as well as that actually maintained, must always be taken into account in connection with the fact of its presence, and it is necessarily true that no court can set up a standard of distance, and say that one who attempts to cross a street car track when a car is within that distance is guilty of negligence. Much less can it be said that one who attempts to cross in front of an approaching street car, irrespective of distance, is guilty of negligence. It has been adjudged not to be negligence as a matter of law to drive upon the track in front of a car, moving at an ordinary rate of speed, 50 feet away (Wells v. Brooklyn City R. Co. [1890], 12 N. Y. Supp. 67); 160 feet away (Union Traction Co. v. Vandarcook [1904], 32 Ind. App. 621); 125 to 150 feet away (Citizens St. R. Co. v. Damm [1900], 25 Ind. App. 511).
9. Where there is nothing to prevent a traveler from seeing an approaching car, it must, be presumed that he did see it, or that he did not look. Whether his action, in view [320]*320of what ho saw, was negligent, and whether he was negligent in not looking, must depend upon all the attendant relevant circumstances, part of which are found in the necessity of his position.
The driver of a vehicle has other duties than watching for street cars. lie must keep a lookout to avoid being struck by other vehicles of other qualities and kind, and must, before all, be vigilant to avoid colliding with and inflicting injuries upon others.
When the evidence shows that he was in nowise constrained, knowledge of what he- might have seen will be attributed to him, and knowledge or lack of knowledge as to the distance of the car, its condition as to being in motion or stationary, and, if in,motion, its rate of speed, the apparent purpose of the mot'orman to check or increase speed, and many other facts are necessarily relevant and of differing importance. Union Traction Co. v. Vandercook, supra.
10. In determining the quality of the action taken by an individual in a certain juncture, his environment must be considered, and it is to be observed that the traveler is not required to anticipate negligence on the part of those in charge of an approaching car, but, on the contrary, he has the right to presume that reasonable care- will be exercised by them.
11. Ordinarily, contributory negligence, when its existence depends upon so many elements and circumstances, the weight of which depends upon their relation to each other, will be for the jury, whose judgment, as to what a reasonable man should do in view of the circumstances which can.not be classified, it is the constant effort of the law to obtain. When the conditions existing are such as can not be consistent with injury while the injured party is exercising ordinary care, the courts will not indulge the idle formality of submitting such issues to- a jury, but will dispose of the issue in accordance with the rule heretofore stated.
[321]*32112. The conditions and circumstances disclosed by the evidence heard in the case at bar were such as to create a mixed question of law and fact, which was correctly submitted to a jury under instruction from the court. Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142. If this conclusion is not correct, it would be of general interest to have an illustration of a case coming within that class, in which a street car collision is concerned.
13. The fourth instruction given was in terms as follows : “There is now no law or ordinance fixing the speed at which street cars may be run in the city of Indianapolis, but it is a question for the jury under the evidence in the cause to determine whether, at the time and place of the accident in controversy, the car was run at such a speed as to be unsafe and dangerous to persons or travelers on the street. The rate of speed at which a car may be safely run is not the same at all places or under all circumstances. A car may be run at a higher rate of speed in tire suburbs or sparsely settled parts of a city than it may be in a thickly settled, populous or crowded portion thereof; and, in determining the question as to whether the car in controversy was run at a dangerous and unsafe rate of speed, you should take into consideration the time, location and conditions surrounding the accident. And if you believe that a reasonably careful and prudent motorman, under the conditions surrounding the accident in controversy, as shown by the evidence, would have run his car at the rate of speed at which this car was run at the time of the accident, then- you would be warranted in finding that the defendant was not guilty of negligence in running said car at the speed at which it was run. But if you believe from the evidence that such motorman under such circumstances would not have run his car at such rate of speed, then you would be warranted in finding that the defendant was guilty of negligence in running the car.”
The principal objection made to the instruction is that by [322]*322the use of the word “should-” the court invaded the province of the jury. There are decisions of both this and the Supreme Court tending to support such contention, but such decisions, so far as their facts are similar to the facts in tire case at bar, can not at this time be considered as expressive of the law. Of course, the court can not properly instruct the jury as to the weight of evidence, but evidence is admitted by the court for the' purpose of being considered and weighed by the jury. “The instruction amounts to no more than a statement that it is the duty of the jury, in determining the weight to be given to the testimony of the witnesses to consider all the evidence bearing on that question.” Deal v. State (1895), 140 Ind. 354, 364; Anderson v. State (1886), 104 Ind. 467, 472, and cases cited; Smith v. State (1895), 142 Ind. 288, 291; White v. State (1900), 153 Ind. Ind. 689, 691.
14. The statement in the instruction that “a car may be run at a higher rate of speed in the suburbs or sparsely settled parts of a city than it may be in a thickly settled, populous or crowded portion thereof,” was the statement of a fact which it is the province of the jury to determine and which may not .properly be stated by the court as a matter of law. The measure of care required is at all times the same, i. e., ordinary and reasonable care. Lake Shore, etc., R. Co. v. McIntosh (1895), 140 Ind. 261, 270.
15. The body of the instruction contained a correct statement, of the law, and the error is not a reversible one, for the reason that the evidence and answers to interrogatories returned with the general verdict show, without room for divers inference, as we are all agreed, that defendant was negligent in the operation of the car as charged in the complaint. LaPlante v. State, ex rel. (1899), 152 Ind. 80; Elliott, App. Proc., §642, p. 571.
Judgment is therefore affirmed.
Robinson, P. J., Myers and Black, JJ., concur.
Comstock, C. J., and Wiley, J., dissent.