Mr. Justice Morris
delivered the opinion of the Court:
That there was sufficient testimony in this case for submission to the jury upon the question of the defendant’s negligence, if there was no question of the contributory negligence of the plaintiff, we think very clear: and we do not understand that the point is seriously, if at all, controverted. What we may think of the preponderance of evidence is a matter of no consequence. There was here a situation demanding great and unusual care and caution from the defendant’s employees. The conclusion to be deduced from the argument on behalf of the appellee is that it was the duty of the railroad company to stop the running of its trains on this occasion. To this we cannot assent. The company had the right, and it was its duty under the law, to run its trains on this as on other occasions. These trains are run, not merely for individual profit, but mainly for the benefit of the public, for which alone the charter and the franchise of the company are [299]*299granted. They are required by law to be run at stated times, and under schedules as to speed, regulated by the public demand and the regulations ordained for the purpose by the public authority; and the company has no right, even for a day or for an hour, or for any appreciable part of the time ordinarily devoted to such business, to abandon the exercise of its duties under its charter, except in the presence and under the stress of circumstances beyond its control. We do not think that the gathering of a crowd upon the public streets, influenced by curiosity or eager for news, is such a circumstance. The collection of such a crowd in the immediate vicinity of its tracks, or overflowing upon them as we have stated, would impose upon the company’s employees the duty of greater care and caution, but not the abandonment of their work; although, perhaps, we may conceive of extraordinary emergencies, in which it might be their duty to suspend their operation. No such extraordinary case, however, is presented here. It was only a case for increased circumspection on their part and if they failed in the circumspection due to the occasion, it was negligence on their part. Specific acts of such negligence are charged ; and it was proper that the jury should pass upon the question of their proof — unless action by the jury was precluded by palpaple and. glaring contributory negligence on the part of the plaintiff. It is the question of this contributory negligence, or the question whether the plaintiff’s own negligence was not the sole cause of his misfortune, that dominates this case.
It is not denied by counsel for the plaintiff, and it cannot well be denied, that the act of the plaintiff, in standing upon the railroad track or so near it as to be within the limit of liability of being struck by passing trains, was in itself, if considered alone, an act of negligence, which, under ordinary circumstances, would have precluded him from recovery against the defendant, without regard to the matter of the defendant’s negligence. But the argument is, that, under the peculiar circumstances of this case and un[300]*300der the unusual circumstances in which the plaintiff found himself, an act, ordinarily to be held as negligence, ceased to be negligence by reason of the surroundings, and was a matter proper to be submitted to a jury for their determination whether it was in fact negligence.
When the question of negligence and contributory negligence — for the law in regard to both in this connection is the same — is one of law for the court, and when it is one of fact for the jury under proper instructions from the court, is a source of endless controversy; and in view of the fact that circumstances vary so greatly, and that probably no two cases ever occur that are precisely alike in all their circumstances, we see no good ground for supposing that the controversy will ever have an end. The law, it is true, seems to be well settled and plain enough : it is the application of the law to the varying cases, with their kaleidoscopic changes, that presents the matter of constantly recurring difficulty. It woüld be a useless and almost impossible task to review the multitude of authorities on the subject, with the view of eliciting from them some uniform and unerring rule to guide us in the application of the well-established principles that govern the law of negligence ; for it would seem, after all, that each case must be governed by its own' circumstances. It appears to us, however, that what we said in the recent case of Warner v. Baltimore and Ohio Railroad Co., ante, p. 79, may serve to aid us in the consideration of the subject. There we said that no one is entitled to disregard with impunity the usual safeguards and the usual precautions which eveiy person of reasonable mind and ordinary intelligence recognizes as right and proper to be observed when dealing with the modern instrumentalities of rapid transit, unless there has been some inducement, express or implied, held out by the railroad company or its agents, that one may depart therefrom without danger. It seems to us to be the rule deduced from all the authorities, that, when a railroad company creates a situation, or permits a condition of things to exist, [301]*301which it is its duty to make a situation or condition of safety, and a person who is brought into relation with the company, and who has the right to rely upon the safety ol the situation so created or of the condition of things so permitted to exist, is injured, notwithstanding the assurance so held out to him, he is not chargeable, as a matter of law, with contributory negligence, although the situation or condition was in its nature one of risk and danger; and the question of negligence in such a case is one of fact to be submitted to a jury. The converse of-the proposition is likewise true — that, when a defendant has had no part in the creation of a situation which has induced a plaintiff to assume a position of obvious peril which otherwise he would not have assumed, and when the position is plainly one that, in the absence of the circumstances supposed to justify it, should charge the person as for an act of negligence, it would be manifestly unjust to hold the defendant for that which he did not cause and could not control.
If the act of the plaintiff in this case was in itself, as it undoubtedly was, an act of negligence, when he carelessly placed himself in the way of the defendant’s trains, we do not see how it could cease to be an act of negligence, as to the defendant and the defendant’s liability to him, because there were other persons there, or because there were circumstances to draw a crowd and to arrest their attention, to which the defendant in no wise contributed. If the interest involved in a Presidential election and the gathering of a crowd to ascertain the result, are sufficient to justify a person in standing motionless upon a railroad track, where trains are passing at intervals of a minute or two, oblivious of his danger or regardless of the risk which he runs, it is difficult to see why attention to any other object of interest, even to the antics of some passing mountebank, should not suffice to convert culpable negligence into excusable action, and block unreasonably the commerce of a great city. The inquiry in all cases would then be, not whether the act was negligent but whether the person’s attention to other [302]*302things was such as to make him forget for the time his position of danger.
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Mr. Justice Morris
delivered the opinion of the Court:
That there was sufficient testimony in this case for submission to the jury upon the question of the defendant’s negligence, if there was no question of the contributory negligence of the plaintiff, we think very clear: and we do not understand that the point is seriously, if at all, controverted. What we may think of the preponderance of evidence is a matter of no consequence. There was here a situation demanding great and unusual care and caution from the defendant’s employees. The conclusion to be deduced from the argument on behalf of the appellee is that it was the duty of the railroad company to stop the running of its trains on this occasion. To this we cannot assent. The company had the right, and it was its duty under the law, to run its trains on this as on other occasions. These trains are run, not merely for individual profit, but mainly for the benefit of the public, for which alone the charter and the franchise of the company are [299]*299granted. They are required by law to be run at stated times, and under schedules as to speed, regulated by the public demand and the regulations ordained for the purpose by the public authority; and the company has no right, even for a day or for an hour, or for any appreciable part of the time ordinarily devoted to such business, to abandon the exercise of its duties under its charter, except in the presence and under the stress of circumstances beyond its control. We do not think that the gathering of a crowd upon the public streets, influenced by curiosity or eager for news, is such a circumstance. The collection of such a crowd in the immediate vicinity of its tracks, or overflowing upon them as we have stated, would impose upon the company’s employees the duty of greater care and caution, but not the abandonment of their work; although, perhaps, we may conceive of extraordinary emergencies, in which it might be their duty to suspend their operation. No such extraordinary case, however, is presented here. It was only a case for increased circumspection on their part and if they failed in the circumspection due to the occasion, it was negligence on their part. Specific acts of such negligence are charged ; and it was proper that the jury should pass upon the question of their proof — unless action by the jury was precluded by palpaple and. glaring contributory negligence on the part of the plaintiff. It is the question of this contributory negligence, or the question whether the plaintiff’s own negligence was not the sole cause of his misfortune, that dominates this case.
It is not denied by counsel for the plaintiff, and it cannot well be denied, that the act of the plaintiff, in standing upon the railroad track or so near it as to be within the limit of liability of being struck by passing trains, was in itself, if considered alone, an act of negligence, which, under ordinary circumstances, would have precluded him from recovery against the defendant, without regard to the matter of the defendant’s negligence. But the argument is, that, under the peculiar circumstances of this case and un[300]*300der the unusual circumstances in which the plaintiff found himself, an act, ordinarily to be held as negligence, ceased to be negligence by reason of the surroundings, and was a matter proper to be submitted to a jury for their determination whether it was in fact negligence.
When the question of negligence and contributory negligence — for the law in regard to both in this connection is the same — is one of law for the court, and when it is one of fact for the jury under proper instructions from the court, is a source of endless controversy; and in view of the fact that circumstances vary so greatly, and that probably no two cases ever occur that are precisely alike in all their circumstances, we see no good ground for supposing that the controversy will ever have an end. The law, it is true, seems to be well settled and plain enough : it is the application of the law to the varying cases, with their kaleidoscopic changes, that presents the matter of constantly recurring difficulty. It woüld be a useless and almost impossible task to review the multitude of authorities on the subject, with the view of eliciting from them some uniform and unerring rule to guide us in the application of the well-established principles that govern the law of negligence ; for it would seem, after all, that each case must be governed by its own' circumstances. It appears to us, however, that what we said in the recent case of Warner v. Baltimore and Ohio Railroad Co., ante, p. 79, may serve to aid us in the consideration of the subject. There we said that no one is entitled to disregard with impunity the usual safeguards and the usual precautions which eveiy person of reasonable mind and ordinary intelligence recognizes as right and proper to be observed when dealing with the modern instrumentalities of rapid transit, unless there has been some inducement, express or implied, held out by the railroad company or its agents, that one may depart therefrom without danger. It seems to us to be the rule deduced from all the authorities, that, when a railroad company creates a situation, or permits a condition of things to exist, [301]*301which it is its duty to make a situation or condition of safety, and a person who is brought into relation with the company, and who has the right to rely upon the safety ol the situation so created or of the condition of things so permitted to exist, is injured, notwithstanding the assurance so held out to him, he is not chargeable, as a matter of law, with contributory negligence, although the situation or condition was in its nature one of risk and danger; and the question of negligence in such a case is one of fact to be submitted to a jury. The converse of-the proposition is likewise true — that, when a defendant has had no part in the creation of a situation which has induced a plaintiff to assume a position of obvious peril which otherwise he would not have assumed, and when the position is plainly one that, in the absence of the circumstances supposed to justify it, should charge the person as for an act of negligence, it would be manifestly unjust to hold the defendant for that which he did not cause and could not control.
If the act of the plaintiff in this case was in itself, as it undoubtedly was, an act of negligence, when he carelessly placed himself in the way of the defendant’s trains, we do not see how it could cease to be an act of negligence, as to the defendant and the defendant’s liability to him, because there were other persons there, or because there were circumstances to draw a crowd and to arrest their attention, to which the defendant in no wise contributed. If the interest involved in a Presidential election and the gathering of a crowd to ascertain the result, are sufficient to justify a person in standing motionless upon a railroad track, where trains are passing at intervals of a minute or two, oblivious of his danger or regardless of the risk which he runs, it is difficult to see why attention to any other object of interest, even to the antics of some passing mountebank, should not suffice to convert culpable negligence into excusable action, and block unreasonably the commerce of a great city. The inquiry in all cases would then be, not whether the act was negligent but whether the person’s attention to other [302]*302things was such as to make him forget for the time his position of danger. This, we think, would wholly subvert the doctrine of contributory negligence, and render the railroad company responsible for conduct in which it had no agency and which it could not have prevented.
Negligence and contributory negligence alike become questions for the jury when the facts concerning the conduct of the parties towards each other are in controversy. But when the action of the plaintiff, not superinduced in any manner by the defendant, is apparent from the testimony of the plaintiff himself, and is such an act as, unexplained, must be regarded by every reasonable man as an act of negligence, such as, beyond question, was the act of the plaintiff in this case, the explanation or excuse that is relied on to convert the act from one of negligence in law to a question of fact for the jury, must be of conduct of the defendant such as would tend to justify the action, not of conduct of other persons independent of the defendant.
The circumstances relied upon in this case to excuse the plaintiff, the gathering of a great crowd, the interest in the result of the Presidential election, the difficulty of seeing and hearing the trains in consequence of the crowd, the noise and confusion, were none of them superinduced by the defendant. They were not facts to go to the jury in excuse of the plaintiff’s negligence with reference to the defendant. . They could not in law have made the defendant liable, if in the absence of them it was not liable. Instead of excusing the plaintiffs negligence, they would seem rather to have enhanced it.
We think the court should have granted the instruction requested by the defendant that the jury should return a verdict in favor of the defendant, and that it was error to refuse such instruction. For that error the judgment must be reversed with costs, and the cause remanded, ivith directions to award a new trial.