Campbell, C. J.,
delivered the opinion of the court.
We find no fault with the action of the circuit court in granting the first three instructions for the plaintiff below and in refusing the second and fourth asked by the defendant. The fourth instruction for the plaintiff is “ that the law is as follows,” and then copies literally § 1047 of the Code of 1880, omitting so much of it as prescribes a penalty recoverable by city, town, or village. The instruction is in the language of the statute, as stated, and the court instructed for the defendant that if any negligence on the part of the plaintiff was the proximate cause of the accident he should not recover, even if there was negligence on the part of the defendant. We thus have an announcement in the fourth instruction for the plaintiff of the absolute liability of the defendant for all damage done while the locomotive was running more than six miles an hour in the village of Edwards, and in other instructions that if the plaintiff by his own conduct contributed proximately to his hurt he should not recover. . These propositions are contradictory and must have been confusing to the jury. It is manifest that the learned judge of the circuit court did not hold the view that the statute creates an absolute and unconditional liability by a railroad company for all damage done whilst the locomotive is running at a greater speed than six miles an hour in a town. His action in giving the defendant the full benefit of the doctrine of contributory negligence shows clearly his view to be that the statute does not create an absolute liability, and that although the statute may have been violated, the plaintiff could not recover if he contributed proximately to his own misfortune. But while the judge had the correct view, he gave for the plaintiff an instruction, the fourth, in the language of the statute, without qualification, restriction, or [694]*694explanation, and thus presented the jury the alternative of applying the statute in its letter or the doctrine of contributory negligence, as admitted by the court to be applicable if the facts existed. The statute literally declares an absolute liability by a railroad company for any injury done while it is being violated, without regard to the conduct of the person injured. It is difficult to believe that the legislature intended to prescribe such a rule and thus to abrogate, without an express declaration to that effect, the well-settled rule of the common law that one cannot recover for the negligence of another if by reasonable care he could have avoided injury from it. We rather think that the purpose of the legislature in declaring the liability for damages “ which may be sustained by any one from such locomotive or cars whilst they are running at a greater rate of speed than six miles an hour through any city, town, or village ” was, out of abundant caution, to exclude the contention that the penalty recoverable by the town was exclusive of the right to civil redress by the citizen. That part of the statute is merely declaratory of liability to individuals for damages or injury “ which any one- may sustain from such locomotive or cars whilst, etc.” It was not intended to make it a part of the penalty of the statute that in addition to what the town might recover any one who was damaged or injured, even by his own recklessness, by a locomotive or cars while they were running more than six miles an hour in a town might recover. Had the legislature intended to make a change in the law as well understood so radical as this, it is a just supposition that it would have plainly declared that contributory negligence in such cases should not be a defense.
We hold' the- law to be that, even where a railroad company violates the statute under consideration, one who could by the exercise of ordinary care avoid injury from the act of the company cannot recover for such injury.
There is in the books much confusion on the subject of contributory negligence. The principle on which the doctrine rests is that the plaintiff cannot recover for the negligence of another if, by ordinary care, he could have avoided injury from such negligence. Contributory negligence is the want of ordinary care to avoid [695]*695injury from the act of another. One must use due diligence or ordinary care to avoid injury from another, failing in which he may not recover for what by such diligence or care he might have avoided. Whether in any case the plaintiff used the req uisite care to avoid injury depends on the circumstances in which he was called on to act.
One who contributes directly to his own injury, by a failure to exercise the ordinary care which would have saved him from harm from the negligence of another, is denied the right to recover, because the law will not undertake to apportion the blame between parties mutually in fault.
In this case the plaintiff was on the track of the defendant when he was struck by a locomotive and injured. Although he may have been improperly on the track where he was, and although the defendant may have been a wrongdoer by violating the statute as to the rate of speed, the plaintiff is not entitled to recover if, notwithstanding the wrong of the defendant, he could by ordinary care have avoided injury from the act of the defendant. The railroad company had the right to a clear track, and the plaintiff, in walking on it as he did, was bound to know he was in danger and to be on the lookout to escape harm from his perilous situation. He had the right to assume that, while the company had the right to a clear track it would conform to the law forbidding a greater rate of speed there than six miles an hour, but the company had the right to assume that its track was clear or that any one on it would get off on the approach of a locomotive. Therefore, the fact that the plaintiff was on the track, where he should not have been, and that the defendant violated the law as to the rate of speed or otherwise, if such is the fact as to both parties, is not decisive of the question of right in the plaintiff and liability on the defendant. That is to be determined by considering whether, notwithstanding the wrong of the plaintiff in being where he was and the wrong of the defendant in disregarding the law, if such be the case, at the time, in the place, and under the circumstances, the plaintiff, by the ordinary care applicable to such time, place, and circumstances, could have avoided injury from the wrong of the defendant. If he could, he [696]*696should not recover, and this is what we understand to be meant by contributory negligence. “ One person’s being in fault will not dispense with another’s using ordinary care for himself.”
It is not contributory negligence per se to be on a railroad track at a place where the person has no right to be. A person’s being there is a condition but for which injury could not be done him by the locomotive or cars, but his being there is not what constitutes contributory negligence. Being there at such a time and under such circumstances as may be shown, or failing to use his senses as becomes him, and to act under the circumstances with ordinary care and caution to avoid harm may constitute contributory negligence, which will prevent recovery. One has no right to walk on a railroad track at a place other than a crossing, but whether his being-on the track not at a crossing is contributory negligence depends on circumstances. One may be guilty of contributory negligence at a crossing or where he has a right to be.
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Campbell, C. J.,
delivered the opinion of the court.
We find no fault with the action of the circuit court in granting the first three instructions for the plaintiff below and in refusing the second and fourth asked by the defendant. The fourth instruction for the plaintiff is “ that the law is as follows,” and then copies literally § 1047 of the Code of 1880, omitting so much of it as prescribes a penalty recoverable by city, town, or village. The instruction is in the language of the statute, as stated, and the court instructed for the defendant that if any negligence on the part of the plaintiff was the proximate cause of the accident he should not recover, even if there was negligence on the part of the defendant. We thus have an announcement in the fourth instruction for the plaintiff of the absolute liability of the defendant for all damage done while the locomotive was running more than six miles an hour in the village of Edwards, and in other instructions that if the plaintiff by his own conduct contributed proximately to his hurt he should not recover. . These propositions are contradictory and must have been confusing to the jury. It is manifest that the learned judge of the circuit court did not hold the view that the statute creates an absolute and unconditional liability by a railroad company for all damage done whilst the locomotive is running at a greater speed than six miles an hour in a town. His action in giving the defendant the full benefit of the doctrine of contributory negligence shows clearly his view to be that the statute does not create an absolute liability, and that although the statute may have been violated, the plaintiff could not recover if he contributed proximately to his own misfortune. But while the judge had the correct view, he gave for the plaintiff an instruction, the fourth, in the language of the statute, without qualification, restriction, or [694]*694explanation, and thus presented the jury the alternative of applying the statute in its letter or the doctrine of contributory negligence, as admitted by the court to be applicable if the facts existed. The statute literally declares an absolute liability by a railroad company for any injury done while it is being violated, without regard to the conduct of the person injured. It is difficult to believe that the legislature intended to prescribe such a rule and thus to abrogate, without an express declaration to that effect, the well-settled rule of the common law that one cannot recover for the negligence of another if by reasonable care he could have avoided injury from it. We rather think that the purpose of the legislature in declaring the liability for damages “ which may be sustained by any one from such locomotive or cars whilst they are running at a greater rate of speed than six miles an hour through any city, town, or village ” was, out of abundant caution, to exclude the contention that the penalty recoverable by the town was exclusive of the right to civil redress by the citizen. That part of the statute is merely declaratory of liability to individuals for damages or injury “ which any one- may sustain from such locomotive or cars whilst, etc.” It was not intended to make it a part of the penalty of the statute that in addition to what the town might recover any one who was damaged or injured, even by his own recklessness, by a locomotive or cars while they were running more than six miles an hour in a town might recover. Had the legislature intended to make a change in the law as well understood so radical as this, it is a just supposition that it would have plainly declared that contributory negligence in such cases should not be a defense.
We hold' the- law to be that, even where a railroad company violates the statute under consideration, one who could by the exercise of ordinary care avoid injury from the act of the company cannot recover for such injury.
There is in the books much confusion on the subject of contributory negligence. The principle on which the doctrine rests is that the plaintiff cannot recover for the negligence of another if, by ordinary care, he could have avoided injury from such negligence. Contributory negligence is the want of ordinary care to avoid [695]*695injury from the act of another. One must use due diligence or ordinary care to avoid injury from another, failing in which he may not recover for what by such diligence or care he might have avoided. Whether in any case the plaintiff used the req uisite care to avoid injury depends on the circumstances in which he was called on to act.
One who contributes directly to his own injury, by a failure to exercise the ordinary care which would have saved him from harm from the negligence of another, is denied the right to recover, because the law will not undertake to apportion the blame between parties mutually in fault.
In this case the plaintiff was on the track of the defendant when he was struck by a locomotive and injured. Although he may have been improperly on the track where he was, and although the defendant may have been a wrongdoer by violating the statute as to the rate of speed, the plaintiff is not entitled to recover if, notwithstanding the wrong of the defendant, he could by ordinary care have avoided injury from the act of the defendant. The railroad company had the right to a clear track, and the plaintiff, in walking on it as he did, was bound to know he was in danger and to be on the lookout to escape harm from his perilous situation. He had the right to assume that, while the company had the right to a clear track it would conform to the law forbidding a greater rate of speed there than six miles an hour, but the company had the right to assume that its track was clear or that any one on it would get off on the approach of a locomotive. Therefore, the fact that the plaintiff was on the track, where he should not have been, and that the defendant violated the law as to the rate of speed or otherwise, if such is the fact as to both parties, is not decisive of the question of right in the plaintiff and liability on the defendant. That is to be determined by considering whether, notwithstanding the wrong of the plaintiff in being where he was and the wrong of the defendant in disregarding the law, if such be the case, at the time, in the place, and under the circumstances, the plaintiff, by the ordinary care applicable to such time, place, and circumstances, could have avoided injury from the wrong of the defendant. If he could, he [696]*696should not recover, and this is what we understand to be meant by contributory negligence. “ One person’s being in fault will not dispense with another’s using ordinary care for himself.”
It is not contributory negligence per se to be on a railroad track at a place where the person has no right to be. A person’s being there is a condition but for which injury could not be done him by the locomotive or cars, but his being there is not what constitutes contributory negligence. Being there at such a time and under such circumstances as may be shown, or failing to use his senses as becomes him, and to act under the circumstances with ordinary care and caution to avoid harm may constitute contributory negligence, which will prevent recovery. One has no right to walk on a railroad track at a place other than a crossing, but whether his being-on the track not at a crossing is contributory negligence depends on circumstances. One may be guilty of contributory negligence at a crossing or where he has a right to be. The criterion is whether he observes due care, under the circumstances of his situation, whatever it may be, to avoid harm from the act complained of. One may be technically a trespasser, and if he uses due care to avoid injury from the wrongful act of another he may recover and he may not be a trespasser and yet be guilty of such contributory negligence as to preclude him from recovering. It seems that this is the view held by the court below, but in applying it to the case, it is probable that the jury was misled by the fourth instruction for the plaintiff, given in the language of the statute, without qualification or explanation, and which, taken literally, as we have stated, conveys the idea of absolute liability on the part of the railroad company which violates it for any injury suffered while it is thus acting. It may appear strange that an instruction in. the very language of a statute should be disapproved, but it is not always safe to rely on the letter of the law. It may be so used as to mislead.
“ The letter killeth.”
The thought expressed in a statute is the important matter, and, if the mere language of a statute is so used as to express a thought or convey an idea not intended by the law', it is as erroneous as any other form of error. • There is little doubt that the fourth in[697]*697struction for the plaintiff enabled the jury to conclude that, for an injury done while the locomotive was running more than six miles an hour, the defendant was liable, without regard to the conduct of the plaintiff or the circumstances under which the injury occurred. It is true that by other instructions the jury was told that the plaintiff should not recover if his conduct was a proximate cause of the injury, even if the defendant was guilty of negligence. But the vice in the instructions is that the jury was not distinctly informed that violation of the statute was merely negligence; and if the company was guilty of negligence and thereby hurt the plaintiff, he could recover, unless he was wanting in ordinary care to avoid injury from the negligence complained of. The difficulty which forbids approval of the instructions as a whole is that they convey the thought that negligence and violating the statute are different and distinct things, whereas our view is that violating the statute is negligence, and for its consequence the company is responsible, unless it is freed from liability by the contributory negligence of the person complaining. A railroad company violates the statute at its peril, and must respond for any damages done in such wrong doing, and must bear the burden of exculpating itself from liability in such case, as in others, but if it shall appear that the plaintiff failed in the degree of care which, under the circumstances, it was incumbent on him to observe to avoid injury, he cannot recover. The instructions for the plaintiff make a distinction between negligence and running over six miles an hour in the town, and thus mislead. They embrace the thought of a right to recover if the locomotive was running more than six miles an hour.
The true view is that the statute was passed for the protection of life and property with reference to the known danger to both in cities, towns, and villages from the rapid motion of locomotives and cars, and that a railroad company whose servants disregard the statute must answer for all injuries done by locomotives or cars thus employed in wrong doing, unless it is shown that the party complaining directly contributed to the occurrence of the injury by his own failure to observe the ordinary care and caution due in his situation. Domestic animals are permitted to run at large in [698]*698villages, and are often found on the track of the railroad. Their owners know that trains are prohibited from running in town or village at a greater rate of speed than six miles an hour, and that at such a rate there is comparatively little danger to them. They have a right to rely on the assumption that the law will not be violated, and to act on such reliance in permitting their animals to go at large, and, for any injury to them by a railroad company in violating the statute, to recover damages unaffected by the fact that but for the animal being at large no injury could have been suffered by it.
So people are in the habit of crossing and going along railroads, oftentimes most imprudently. The statute prohibiting rapid running in cities, towns, and villages was designed to protect life and property because of the known imprudence of many who need protection against themselves. Knowing that a train is prohibited from being run at á greater speed than six miles an hour in town, one may, in crossing or in walking on the track, assume that the law will not be violated, but as it may be, and often is, he who undertakes to make a perilous journey across or along a railroad is bound to be on the alert for coming trains and cannot hold the company responsible for what he might avoid by ordinary caution. He is not to be pronounced guilty of contributory negligence merely for being on the railroad, where he should not be, but inquiry is to be made as to the time, place, and circumstances, and as to his conduct, in view of the negligence complained of, in order to determine whether he was wanting in that care the absence of which constitutes contributory negligence preventing recovery. “ What is reasonable care in any case depends upon the particular circumstances of that case.”
The court below erred in permitting the testimony as to what the engineer, Payne, said some time after the accident to go to the jury. It was not admissible in any point of view. As a declaration or admission of an employee of the defendant, made sometime after the occurrence, it was not competent evidence; and as an effort to impeach Payne, by contradicting him on this immaterial matter, it was not admissible. 1 Wharton on Evidence, § 551; 2 lb., § 1174.
[699]*699This case is not within any recognized exception to the rule which denies to one who on cross-examination asks as to an immaterial or collateral matter the right to contradict the answer he gets.
The plaintiff was enabled by the testimony thus illegally admitted to get before the jury the idea that the engineer was drunk, which must have been very hurtful to the defendant, and was probably quite sufficient to determine the verdict.
For this error, and because of the probability that the jury was misled by the instructions, toe reverse the judgment and remand the case for a new trial.