GILBERT, Circuit Judge
(after stating the facts as above). [1] Error is assigned to the denial of the motion of the defendant for a directed verdict in its favor, which motión was based upon the grounds, [619]*619first, that there was no proof of the defendant’s negligence; and, second, that the plaintiff was guilty of contributory negligence. So far as the first ground of the motion is concerned, we find in the record ample evidence to go to the jury tending to show that the defendant was negligent. There was the testimony of two passengers upon the car which struck the plaintiff that at the time when the car was approaching the point where the plaintiff attempted to cross the track, a point well lighted up by an electric light near by, the motorman of the car which struck him was not looking ahead, but had turned and was looking into the car,1 and that he had continued so to look back into the car all the way from Sixty-Fourth street to the place of the accident, a distance of 650 feet. -Similar evidence was given by a witness who stood on the street opposite the point where the accident occurred.
[2,3] A more serious question is whether or not the plaintiff was in law guilty of contributory negligence. The law imposes upon one who attempts to cross a street car track the duty of vigilance and care; and in this case the plaintiff, upon his own admission, crossed the track at a point which was not a usual crossing place and looked only in one direction for an approaching car. His action in so doing, his omission to look at any time to the south, would doubtless constitute contributory negligence in law, were it not for the fact that the defendant, by its management of its cars, gave him reason to believe that a car could not be approaching from the south. His own testimony, and the testimony of one of his witnesses, indicates that at the time when he crossed the track a car going south had left the switch at Fifty-Sixth street and was coming south toward the point where the plaintiff was. We think there is ground for saying that he had the right to assume that the defendant would not be running another car north on the same single track toward a head-on collision with the car which he saw. That circumstance was sufficient, we think, to create a doubt upon the question of the plaintiff’s contributory negligence, and to justify the court in submitting it to the jury. That there was a car coming south from Fifty-Sixth street is not contradicted by the defendant, nor does the defendant show that the plaintiff incorrectly interpreted the blast of the whistle which he heard.
[4] The plaintiff had the right to assume that the defendant would exercise ordinary care in managing its road and operating its cars. Kerr v. Boston Elevated Railway, 188 Mass. 434, 74 N. E. 669; Deitring v. St. Louis Transit Co., 109 Mo. App. 524, 85 S. W. 140; Frank J. Lennon Co. v. New York Ry. Co., 108 N. Y. Supp. 995. And his failure to anticipate negligence on the part of the defendant was not necessarily negligence on his part. New York Lubricating Oil Co. v. Pusey, 211 Fed. 622, 627, 129 C. C. A. 88; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S. W. 14. And so, if the defendant threw the plaintiff off his guard or placed him in peril, the latter’s conduct is not necessarily contributory negligence. In re Estate of Kern, 141 Iowa, 620, 118 N. W. 451; Tacoma Ry. & Power Co. v. Hays, 110 Fed. 496, 49 C. C. A. 115; Seattle Electric Co. v. Hovden, 190 Fed. 7, 111 C. C. A. 191.
[620]*620[5] In view of the foregoing consideration, it was not error to deny the instruction, requested by the defendant, that if the plaintiff failed to look and listen, or take any reasonable precaution to ascertain whether- a car was coming from the south, his failure to do so would be negligence, or the further requested instruction that, if the plaintiff thought he had time to cross the track before the car would reach him, and did not have sufficient time so to do,, then it was an error in judgment on his part, and he could not recover. There was, as we have seen, no evidence to indicate that the plaintiff made a mistake in judgment as to his time to cross ahead of a car approaching from the south, or that he exercised any judgment as to danger from that direction. The evidence is that he took no thought of a car coming from the south, but only of the car which was approaching in the opposite direction, and that he assumed that the defendant could not be running-two cars at the same time on a single track in opposite directions. Under all the circumstances, we think the court properly submitted to the jury the question of the plaintiff’s contributory negligence. , ,
We find no error. The judgment is affirmed.
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