An electric street railway company owes to the passenger who alights from one of its cars, the duty of safe passage across its tracks at a street crossing without peril from the acts of the company. While bound to anticipate that a car might come in the opposite direction upon the parallel track, he is not bound to anticipate that it would come at a dangerous rate of speed. A traveler is not, as matter of law, guilty of contributory negligence for failure to look in each direction before crossing the track of an electric street railway. Question of contributory negligence held improperly withheld from the jury. Case of this series cited in opinion, appearing in bold faced type: Newark Pass. Ry. Co. v. Block, vol. 4, p. 523. APPEAL by defendant from judgment of Circuit Court reversing judgment of Common Pleas in favor of defendant. Facts stated in opinion. Paxton, Warrington & Boutet and Kittredge & Wilby, for plaintiff in error. John W. Wolfe and Thomas L. Mitchie, for defendant in error. SPEAR, J. The ground upon which the Common Pleas directed a verdict was that the plaintiff's evidence disclosed contributory negligence of such a character as to preclude a recovery. In other words, the holding was that, as matter of law, the plaintiff was guilty of contribu Railway Co. v. Snell. tory negligence. If the plaintiff's conduct, as shown by the undisputed facts, left no rational inference but that of negligence, then the ruling was right, but, if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was negligence or not, then the ruling was wrong. This follows from the rule given in Ellis & Morton Ins. Co. v. Trust Co., 4 Ohio St. 628. Applying the doctrine of that case, the motion. involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter how slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passed upon by the jury. But if he had failed to give evidence tending to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of law only remained. We are aware that this rule is much criticised, and plausible arguments against its reasonableness have been adduced; but it has been followed uniformly, and should be applied until definitively overruled, or changed by legislation. The plaintiff was himself bound to use ordinary care, such degree of care as men of ordinary prudence commonly use under like circumstances; care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances under which it was to be exercised. If all people exercised the greatest possible caution in approaching and crossing railroad tracks, accidents would be much less frequent than they are; but the law does not require extreme care. Such care, and such. only, as ordinarily prudent persons could reasonably be Railway Co. v. Snell. expected to exercise under the circumstances, is the full measure. In order, therefore, to judge whether or not a fair question was presented regarding plaintiff's contributory negligence, we must inquire into the circumstances as disclosed by the evidence he introduced. The evidence showed that the company's road is operated on Eastern avenue, Cincinnati, a thoroughfare running east and west. It is a double track electric road, the space between the tracks being about three feet. The cars are wider than the track, extending about one foot outside the rail. Defendant in error, Snell, resided on the north side of the avenue, between Washington and Weeks streets, the block between these streets being about 800 feet in length. Near his residence, in front of a drug store, there was a flagstone street cross walk at which the cars were accustomed to stop to receive and discharge passengers. Snell had been a daily passenger on the road for a number of years, and was known, as also his residence and place of getting on and off, to the railroad conductors. On the day of the accident Snell was a passenger on an east bound car on the south track. As the car approached the crossing, the speed was slackened, to allow Snell to get off, but did not quite stop. He stepped off outside of the south track at the crossing, and turned north to go to the north side of the street, which required him to cross both tracks. As he neared the south rail of the north track he was struck by a west bound car and injured. The evidence tended to show further that Snell had not observed the coming car before alighting, nor does it appear that he looked, while in the car, in the direction from which the other car was approaching. At some time, while crossing, he looked both east and west along the track, but the precise point from which he looked east is not clear. The conductor of the car on which he had ridden gave him no warning of the approaching car, nor Railway Co. v. Snell. was any gong or other alarm sounded, or warning given, by the motorman in charge of the coming car. He was inexperienced, having been the driver of a milk wagon until two or three days before. On the same car there was an experienced motorman, who was on for the purpose of giving the new hand instructions. At the moment Snell was struck, the car was running about twenty miles an hour, on a down grade, and ran about one hundred feet before it could be stopped. The car from which Snell alighted was moving slowly east, and, had the other car been running at an ordinary rate of speed, Snell would probably have had, after he saw it, opportunity to avoid it, but the car moved so rapidly that, after seeing it, he had but time to throw up his hands and try to step back, when the car struck him. The question presented for the court was, simply, Did the evidence establish, as matter of law, that Snell was guilty of negligence contributing to his injury? The place of the accident was a street crossing, used as such by the public, and recognized as such by the company. It was the duty of the company to keep in mind the right of pedestrians on that crossing, and especially its duty to observe the rights of its own patrons who were under a necessity of using that crossing in going from its cars to their houses. Ancient rights have not changed because new vehicles of travel have been introduced upon the streets, nor because a portion of the people who ride, being in haste to reach their destination, demand rapid transit. The streets remain for all the people, and he who goes afoot has the right, especially at a crossing, to walk to his destination. He should not be compelled to run, or to dodge and scramble, to avoid collision with vehicles. As a general proposition, drivers of vehicles have the same right to travel along the carriage way of a street that foot passengers have to walk there. There is no priority of right; so that the right of neither is exelusive. But it is Railway Co. v. Snell. to be borne in mind that the injury by collision is wholly upon the side of the footman, and the right of personal protection which every person possesses, together with that moral and legal obligation to refrain from doing an injury to his person which is imposed upon all others, gives the foot passenger such a right at street crossings as to make it the duty of drivers of vehicles, whether wagons, wheels or cars, to so regulate their speed, and give such warning of approach, at whatever cost of pains and trouble on their part, as that the footman, using ordinary care himself, and barring inevitable accident, may cross in safety. Life and limb are of more consequence than quick transit. The vehicle man must not run down the pedestrian. The opposite doctrine appears to have found lodgment in many minds, and there seems a disposition to assume that a foot passenger has no right upon a public street as against a street car. Indeed, common observation seems to show that this belief controls the conduct of drivers of many conveyances, public and private. Too often there is a reckless disregard of human life and limb, and pedestrians are compelled, at their peril, to keep out of the way. As matter of law, it is as much the duty of the vehicle to keep out of the way of the footman, and especially so at crossings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle. The use of streets for railways is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways for passage. So long, therefore, as there is no unreasonable interference with the public right of passage, railways in streets are lawful structures; but if operated upon the theory of exclusive right to their track, they become wrongdoers. Cincinnati St. Ry. Co. v. Cumminsville, 14 Ohio St. 523; Citizen's Coach Co. v. Camden Horse R. Co., 33 N. J. Eq. 267; Baxter v. Railroad Co., 3 Rob. 516; Barker v. Savage, |