The opinion of the court was delivered by
Benson, J.:
The plaintiff contends that he was at the post of duty, the only place where he could perform it, giving close attention to the signals of his conductor, which it was necessary to do to prevent accidents to his train; that while so engaged, absorbed with duty and wholly unaware of danger, the passenger train, running quietly, without giving signals or warning, ran upon and injured him; and that this injury could have been prevented if the conductor of the passenger train had exercised ordinary care. On the other hand, the defendant contends that no negligence on its part is shown, but that the plaintiff, who knew that the passenger train would be backed in on the main track about that time, was bound to look out for it, whether the conductor gave warning signals or not; that the plaintiff’s duty did not require him to be on the track, and that there was nothing in the circumstances to lull him into a sense of security; that the [219]*219plaintiff was negligent in entering upon the track without looking for the incoming train; and that this negligence continued down to the moment of the accident, and was a concurring cause of the injury. Contributory negligence is relied upon to bar a recovery, irrespective of any negligence of the defendant. As the passenger conductor was upon the* rear platform of his train, observing the track, and saw the freight train going upon the siding and the plaintiff at his work, and as he was in control of the appliances for giving warning and for stopping the train, the situation presented a question of fact whether the conductor was negligent, and if this were the only question in the case it is plain that it could not be taken from the jury.
A more difficult question is whether the testimony clearly proves that the plaintiff is barred from recovery by his conduct in going upon the track and remaining upon it until injured, without looking for the train which he knew should come in about that time. This question, it appears, was first decided, as a matter of law, in favor of the defendant by sustaining the demurrer to the evidence, but afterward it was held that a question of fact was presented for a,jury, and a new trial was ordered. If the evidence conclusively proved the plaintiff’s negligence beyond cavil or dispute, the first decision was right; if it did not, the last order was proper and should be affirmed. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514; Johnson v. Railroad Co., 80 Kan. 456.) A new trial having been granted, the order will not be reversed unless error is clearly shown with respect to some pure, simple, unmixed question of law. (Sanders v. Wakefield, 41 Kan. 11.) The question is resolved into this: Is there any room for doubt or difference of opinion among men of reasonable intelligence, exercising candid judgment, whether the plaintiff used the care which an ordinarily prudent person would have exercised in the circumstances disclosed by the evidence? (Grand Trunk Railway Co. v. Ives, 144 U. [220]*220S. 408.) The rule imputing negligence as a matter of law to a traveler upon a highway who fails to look and listen for trains at a railroad crossing is not applied to employees whose duties require their presence upon the track. The failure to look and listen in such a case may or may not constitute negligence, according to the circumstances. The employee must exercise such care as the danger of his surroundings would suggest to a man of ordinary prudence and caution. (Railway Co. v. Bentley, 78 Kan. 221; Baltimore, etc., R. Co. v. Peterson, Adm., 156 Ind. 364; Goodfellow v. Boston, Hartford & Erie Railroad Company, 106 Mass. 461; McMarshall v. The Chicago, R. I. & P. Ry. Co., 80 Iowa, 757; Jordan v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 8.)
It was said in Railway Co. v. Bentley, supra, that-“the same degree of diligence is not required of one whose duty compels his presence upon the track as is required from a traveler about to cross.” (p. 225.) In Jordan v. Chicago, St. P., M. & O. Ry. Co., supra, cited in the Bentley case, it was said in the opinion, referring to the rule requiring travelers upon a highway to look and listen at railway crossings:
“That this rule is not to be applied to the case of one who is employed in a railroad yard, and whose duties frequently make it necessary for him to go upon the tracks, and the exigencies of whose duties may call upon him to do so without premeditation or time or opportunity to ascertain if it is dangerous to do so; that the act of such a person in placing himself upon the track, in the discharge of his duty, without looking or listening, is not per se negligence, but may be negligence or not, according to other circumstances in the case, of which the jury are to judge.” (p. 9.)
This subject'has been recently considered by this court in Ray v. Railway Co., 82 Kan. 704, where it was held that as the. plaintiff in that case was injured while performing a duty which required him to be upon the track he was relieved from the absolute duty of keeping a lookout, being required only to exercise reason[221]*221able care in view of all the circumstances. That was the case of an employee of an electric railway company injured while picking up a board, which, with some tools, had been left on the track. He could have seen the approaching car when he stepped upon the track if he had looked, but he did not, and yet a general verdict for the plaintiff was upheld. In the opinion in that case it was said:
“The jury found specially that the plaintiff could have seen the car if he had looked, and that the motorman could not have stopped it after seeing him upon the track in time to avoid the accident. But the general verdict implies findings that the plaintiff’s situation was such that he was under no absolute duty to keep a lookout, that he used diligence adapted to the situation, and that the motorman should have anticipated that he might get upon the track.” (p. 707.)
If it be suggested that there is a distinction between that case and this, that there the workman was in a stooping posture, intent upon his work, while here the plaintiff stood upright and needed only to turn ‘his head sufficiently for a backward look, then it should be observed that the laborer in the Ray case was in the same attitude when he stepped upon the track, and a look at that time would have revealed the danger to him also. It is true that in this case the plaintiff knew that the passenger train should come in about that time, and in this respect it differs from the Ray case — presented another circumstance for the consideration of a jury, but did not change that into a matter of law which is essentially a question of fact. It still remained for a jury to determine whether the plaintiff ought, in the exercise of reasonable prudence, to have looked out for the expected train, in view of the nature of his duties and the importance of attending to the work of removing his own train to the siding, and the dangers to be apprehended. In the language of Mr. Justice Harlan.:
“In determining whether an employee has recklessly [222]*222exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.” (Kane v. Northern Central Railway,
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The opinion of the court was delivered by
Benson, J.:
The plaintiff contends that he was at the post of duty, the only place where he could perform it, giving close attention to the signals of his conductor, which it was necessary to do to prevent accidents to his train; that while so engaged, absorbed with duty and wholly unaware of danger, the passenger train, running quietly, without giving signals or warning, ran upon and injured him; and that this injury could have been prevented if the conductor of the passenger train had exercised ordinary care. On the other hand, the defendant contends that no negligence on its part is shown, but that the plaintiff, who knew that the passenger train would be backed in on the main track about that time, was bound to look out for it, whether the conductor gave warning signals or not; that the plaintiff’s duty did not require him to be on the track, and that there was nothing in the circumstances to lull him into a sense of security; that the [219]*219plaintiff was negligent in entering upon the track without looking for the incoming train; and that this negligence continued down to the moment of the accident, and was a concurring cause of the injury. Contributory negligence is relied upon to bar a recovery, irrespective of any negligence of the defendant. As the passenger conductor was upon the* rear platform of his train, observing the track, and saw the freight train going upon the siding and the plaintiff at his work, and as he was in control of the appliances for giving warning and for stopping the train, the situation presented a question of fact whether the conductor was negligent, and if this were the only question in the case it is plain that it could not be taken from the jury.
A more difficult question is whether the testimony clearly proves that the plaintiff is barred from recovery by his conduct in going upon the track and remaining upon it until injured, without looking for the train which he knew should come in about that time. This question, it appears, was first decided, as a matter of law, in favor of the defendant by sustaining the demurrer to the evidence, but afterward it was held that a question of fact was presented for a,jury, and a new trial was ordered. If the evidence conclusively proved the plaintiff’s negligence beyond cavil or dispute, the first decision was right; if it did not, the last order was proper and should be affirmed. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514; Johnson v. Railroad Co., 80 Kan. 456.) A new trial having been granted, the order will not be reversed unless error is clearly shown with respect to some pure, simple, unmixed question of law. (Sanders v. Wakefield, 41 Kan. 11.) The question is resolved into this: Is there any room for doubt or difference of opinion among men of reasonable intelligence, exercising candid judgment, whether the plaintiff used the care which an ordinarily prudent person would have exercised in the circumstances disclosed by the evidence? (Grand Trunk Railway Co. v. Ives, 144 U. [220]*220S. 408.) The rule imputing negligence as a matter of law to a traveler upon a highway who fails to look and listen for trains at a railroad crossing is not applied to employees whose duties require their presence upon the track. The failure to look and listen in such a case may or may not constitute negligence, according to the circumstances. The employee must exercise such care as the danger of his surroundings would suggest to a man of ordinary prudence and caution. (Railway Co. v. Bentley, 78 Kan. 221; Baltimore, etc., R. Co. v. Peterson, Adm., 156 Ind. 364; Goodfellow v. Boston, Hartford & Erie Railroad Company, 106 Mass. 461; McMarshall v. The Chicago, R. I. & P. Ry. Co., 80 Iowa, 757; Jordan v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 8.)
It was said in Railway Co. v. Bentley, supra, that-“the same degree of diligence is not required of one whose duty compels his presence upon the track as is required from a traveler about to cross.” (p. 225.) In Jordan v. Chicago, St. P., M. & O. Ry. Co., supra, cited in the Bentley case, it was said in the opinion, referring to the rule requiring travelers upon a highway to look and listen at railway crossings:
“That this rule is not to be applied to the case of one who is employed in a railroad yard, and whose duties frequently make it necessary for him to go upon the tracks, and the exigencies of whose duties may call upon him to do so without premeditation or time or opportunity to ascertain if it is dangerous to do so; that the act of such a person in placing himself upon the track, in the discharge of his duty, without looking or listening, is not per se negligence, but may be negligence or not, according to other circumstances in the case, of which the jury are to judge.” (p. 9.)
This subject'has been recently considered by this court in Ray v. Railway Co., 82 Kan. 704, where it was held that as the. plaintiff in that case was injured while performing a duty which required him to be upon the track he was relieved from the absolute duty of keeping a lookout, being required only to exercise reason[221]*221able care in view of all the circumstances. That was the case of an employee of an electric railway company injured while picking up a board, which, with some tools, had been left on the track. He could have seen the approaching car when he stepped upon the track if he had looked, but he did not, and yet a general verdict for the plaintiff was upheld. In the opinion in that case it was said:
“The jury found specially that the plaintiff could have seen the car if he had looked, and that the motorman could not have stopped it after seeing him upon the track in time to avoid the accident. But the general verdict implies findings that the plaintiff’s situation was such that he was under no absolute duty to keep a lookout, that he used diligence adapted to the situation, and that the motorman should have anticipated that he might get upon the track.” (p. 707.)
If it be suggested that there is a distinction between that case and this, that there the workman was in a stooping posture, intent upon his work, while here the plaintiff stood upright and needed only to turn ‘his head sufficiently for a backward look, then it should be observed that the laborer in the Ray case was in the same attitude when he stepped upon the track, and a look at that time would have revealed the danger to him also. It is true that in this case the plaintiff knew that the passenger train should come in about that time, and in this respect it differs from the Ray case — presented another circumstance for the consideration of a jury, but did not change that into a matter of law which is essentially a question of fact. It still remained for a jury to determine whether the plaintiff ought, in the exercise of reasonable prudence, to have looked out for the expected train, in view of the nature of his duties and the importance of attending to the work of removing his own train to the siding, and the dangers to be apprehended. In the language of Mr. Justice Harlan.:
“In determining whether an employee has recklessly [222]*222exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.” (Kane v. Northern Central Railway, 128 U. S. 91, 95.)
(See, also, Comstock v. U. P. Rly. Co., 56 Kan. 228; St. Louis, I. M. & S. R. Co. v. Jackson, [Ark. 1906] 6 L. R. A., n. s., 646; Shoner v. The Pennsylvania Comyany, 130 Ind. 170.)
It should be observed that the plaintiff’s work was, upon and along the track. This is not the case of an employee coming from .some other place of duty away from the track, and walking upon or crossing it without looking. In this respect the case differs from many others where this general subject has been considered.
Decisions have been cited wherein this court has held, that employees were chargeable with contributory negligence as a matter of law. These cases have been carefully considered, but are believed to be distinguishable from the one here presented. Where there is no absolute rule imputing negligence as a matter of law, it must be-determined upon the circumstances of each case, and may be one of fact or of law, as the circumstances may disclose. The boundary line between cases where, under the evidence, the question of negligence is one of law for the court, and those where it is one of fact for the jury, is. not always easily traced, and may be perplexing in this instance; but, following the decisions of this court already cited, we conclude that the district court did not err in holding that the evidence presented a case for a jury.
The plaintiff presents a cross-appeal, based upon the rejection of the testimony offered to show the distance within which the passenger train could have been stopped. This evidence was competent, and the witnesses appear to have been qualified to testify. (U. P. Rly. Co. v. Shannon, 33 Kan. 446.) The offer was [223]*223probably rejected because of the opinion of the court, entertained at that time, that the plaintiff could not recover because of contributory negligence.
The order for a new trial is affirmed.