Chicago, Kansas & Western Railroad v. Fisher

The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Shawnee county on January 28,1888, by George Fisher against the Chicago, Kansas & Western Railroad Company to recover damages for an injury received while he was attempting to cross one of the railroad tracks of the Atchison, Topeka & Santa Fé Railroad Company in the city of Kinsley. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, assessing the plaintiff’s damages at $3,000; and also, in response to a large number of special interrogatories submitted to them, made numerous special findiugs. The court rendered judgment in accordance with the general verdict; and the defendant, as plaintiff in error, afterward brought the case to this court for review. After the case was brought to this court, the plaintiff died, and the action was revived in the name of his administrator, A. C. Fisher. It appears that the injury of which the plaintiff below complained occurred about 1 or 2 o’clock in the afternoon of August 19, 1886. At that time the city of Kinsley had a population of about 1,500, and the Atchison, Topeka & Santa Fé railroad was located and operated through the city, run [471] ning in a northeasterly and southwesterly direction. We shall hereafter speak of it, however, as though it ran east and west. Among the streets of the city was Colony avenue, running north and south. Near this avenue, and on the west side thereof, was located the depot or station of the Atchison, Topeka & Santa Fé Railroad Company. The east end of this depot or station was close to the avenue. Three of the railroad tracks supplying this depot or station crossed this avenue, and for two years prior to the injury from 10 to 20 trains had passed over these tracks and .across this avenue daily. About 300 feet west of this avenue, and on one or more of these tracks, was a coal chute and also a water tank, where the railroad trains procured coal and water. For 9 or 10 years prior to the injury, the plaintiff had resided in Kinsley, and for two years prior thereto he had crossed these railroad tracks on Colony avenue, and where the injury occurred, about- four times a day. He was well acquainted with all the streets, sidewalks, railroad tracks, the station with its platform, the coal chute, the water tank, and all other things at or near where the injury occurred; and was well acquainted with the manner in which the railroad trains in that vicinity were operated. He resided on the west side of Colony avenue and north of the railroad tracks, but did business on the east side of the avenue and south of the railroad tracks, and he crossed the avenue and the railroad tracks, where the injury occurred, whenever he passed from one place to the other. The day on which the injury occurred was a very windy day — the wind blowing from the south — and at times the atmosphere in some places would be filled with dust. These times of dust, however, were only of short duration, never exceeding four or five minutes. Generally, the atmosphere was comparatively clear. The plaintiff himself testified that some of these gusts of dust would continue for four or five minutes, and some of them not so long. On the day of the injury, and about 1:30 o’clock in the afternoon, the plaintiff was traveling on foot southward, on the west side of Colony avenue, and, some time before [472] reaching the place where the accident occurred, he saw a train of cars belonging to the defendant railroad company about 300 feet away, and at the coal chute or water tank. The hind end of the train was toward him and toward the east. He looked in the other direction, that is, eastwardly, along the railroad tracks (and he could see in that direction at least two or three miles), and no train was in sight; so he had. nothing to fear from that direction; but he had fears that the train at the coal chute or water tank might back up to the crossing where he expected to cross, and he testified that he continued to look until he got within 10 or 12 feet of the railroad tracks where the injury occurred, and to listen all the time. At that time there were a large number of people on the depot platform, variously estimated at from 10 to 30, and there were a number of other people at the time in that vicinity who witnessed the various occurrences connected with the accident. While the plaintiff was moving toward the crossing, the railroad train was also moving backward toward the-same place. He was moving at the rate of from three to four miles an hour, while the railroad train was moving at the rate of from five to six miles an hour. There were no gates, nor was there any flagman or watchman at the crossing, and it does not appear that anything of the kind was ever required by the city or adopted or put in practice by the railroad companies. Whether there was a brakeman on the rear platform of the car nearest the crossing is not absolutely clear. He was probably there, but we shall have more to say with respect to this matter hereafter. The jury made no special finding upon the subject. The engine whistle was not at any time sounded, and it does not appear that anything of the kind was ever required or put in practice at that place, but the reverse. The engine bell, however, was rung; but whether it was rung all the way from the coal chute or water tank to the place where the injury occurred does not appear. From the testimony of some of the witnesses it would seem that it was, and from the testimony of others it would seem that it was not. The jury found specially, that [473] the bell was rung as the train commenced to move back from the coal chute, but they did not find whether it was rung all the way or not. The engine and train in moving made considerable noise, sufficient to be heard much further away from the train than was the plaintiff, as several witnesses testified; but the plaintiff, as he testified, did not see the train moving, nor hear it, nor hear the bell ring. He could not have been looking or listening. When plaintiff arrived within a few feet from the crossing a gust of wind filled the air with dust, which to some extent obscured his vision. He did not attempt to look after he arrived within 10 or 12 feet from the crossing, as he testified, but which was in fact about 17J- feet from the‘crossing, as was clearly shown by the testimony of other witnesses, to see whether any train was coming or not. In fact, he pulled his hat down “some,” as he admitted, over his eyes, and, probably, in that condition he could not have seen it. If he had looked, however, he could have seen through the dust, as he admitted, from 30 to 40 feet. When he was 17-J feet from the place where the injury occurred, the train was from 25 to 30 feet from the same place, and when he was 10 or 12 feet from that place the train was within 15 or 20 feet of such place, and he could have seen the train at any of these distances if he had looked. He testified that he listened all the time. He did not stop and wait for the dust to pass away, or even slacken his movement, but continued to move forward in a fast walk, and, just as he made the first step to cross the railroad tracks, the hind car of the aforesaid train, as it was moving backward, struck him and Ije was thrown down, and was so injured that it became necessary to amputate his left leg below the knee, and his leg was so amputated; and this is the injury complained of. Many persons saw the train and the plaintiff moving toward the same point, and saw the collision. One man on the platform hallooed to him, but he did not pay any attention to it; also the brakeman on the rear platform of the car that struck him hallooed to him, but he paid no attention to it. There is some dispute as to whether there was a brakeman [474] on the rear platform or hind end of this car or not. Several witnesses testified that they did not see him; but the brakeman testified that he was there, and the conductor testified that he was there, and some of the witnesses who were on the platform of the depot or station also testified that he was there. The jury did not make any special finding as to whether he was there or not. The following are the special findings of the jury: “1. Is it not a fact that prior to the plaintiff’s injury, and while he was on the way to the crossing where he was injured, he saw the train which injured him, with the engine, standing at the coal chute or water tank? Ans. Yes. “ 2. Is it not a fact that the train referred to in the last question, when it was seen by the plaintiff, was about 300 feet distant from the plaintiff? A. Yes, about that distance. “ 3. Did plaintiff, at the time of seeing the train referred to in the first question, have any difficulty in seeing it and cars and each of them composing it, at a distance of 300 feet, when he looked at the same? A. No. “4. Is it not a fact that, when plaintiff looked at the train at the time and place referred to in the last question, the train was almost directly south from him? A. Yes. “5. Is it not a fact that, at the time the plaintiff looked at the train referred to in the preceding questions, the wind was blowing almost in a direct line from that direction to plaintiff? A. Yes. “6. Did the dust in the air at the time plaintiff looked at the train interfere with or prevent plaintiff from distinctly seeing such train ? A. It did not. “ 7. Is it not a fact that, immediately prior to the plaintiff’s crossing the north side-track, on his way to the point where'he was struck, he was able to see, and saw, the main line of the A. T. & S. F. Rid. Co. east from the station-house for a distance of about two to three miles? A. Yes. “8. If the jury answer the last question in the negative, they may state about how far to the east he could see on the main track of the A. T. & S. F. Rid. Co. A. - “ 9. Is in not a fact that, immediately prior to plaintiff’s crossing the north side-track, he knew and discovered that there was no engine or train upon the main line east of him for a distance of at least two or three miles, and that he knew [475] there was no danger to be apprehended from that direction? A. Yes. “10. Did the condition of the atmosphere as to sand or dust prevent the plaintiff from seeing to the east of the station-house from two to three miles along the main line of the A. T. & S. F. Rid; Co. immediately prior to his crossing the north side-track? A. No. “11. Is it not a fact that the plaintiff was perfectly familiar with the crossing at which he was hurt? A. Yes. “12. Is it not a fact that, for two years prior to his injury, during the business days, he had crossed that crossing at least four times a day? A. Yes. “13. Is it not a fact that, for two years prior to plaintiff’s injury, the station and the track in front of it could be seen from the front end of the room in which plaintiff was engaged in working as a clerk at the time of his injury? A. Yes. “ 14. Is it not a fact that, at the time of plaintiff’s injury, and for two years prior thereto, this station had been a station at which most of the trains took water and coal that passed through Kinsley on the A. T. & S. F. Rid.? A. Yes. ' “15. Is it not a fact that from 10 to 20 trains passed through Kinsley every day for two years prior to the accident? A. Yes.. “ 16. Is it not a fact that, for two years prior to plaintiff’s injury, he was perfectly familiar with this crossing, and had knowledge of the number of trains passing over it every day, and the fact that Kinsley was a coaling and watering station? A. Yes. “17. Is it not a fact that plaintiff, immediately prior to his injury, knew that this crossing was a dangerous crossing to make from the direction in which he was coming, as to trains moving from the west? A. Yes. “18. Is it not a fact that, from the time plaintiff saw the train which injured him, with its engine, standing at the coal chute or water tank, that he had that train in his mind and the possible danger to be apprehended from it in making the ■crossing? A. Yes. “ 19. Is it not a fact that the1 plaintiff, from the time he •saw the train which injured him standing by the coal chute or water tank, apprehended in his own mind that there might be danger from that train backing up, and determined in his own mind to guard against danger from it to the best of his ability? A. Yes. [476] “ 20. Is it not a fact that the plaintiff, from the time he saw the train standing at the coal chute or water tank, determined to use every precaution to prevent injury to himself from such train by reason of its backing over the crossing which he was intending to make ? A. Yes. “21. Was- the plaintiff’s mind, from the time he saw the train standing at the coal chute or water tank, occupied or concerned with anything else than the idea of avoiding injury or danger from such train backing over the crossing at the time he was about to attempt to make the same? A. Yes; wind, and blowing sand and dust. “22. Is it not a fact that, from the time plaintiff saw the train in question, he knew and realized that such train would move in one direction or the other as soon as it had finished taking coal or water, or both? A. Yes. “23. Is it not a fact that, at the time plaintiff saw the train standing at the coal chute or water tank, he knew and realized that when it did move it might move back over the crossing which he was attempting to make? A. Yes. “24. From the time plaintiff saw the train in question at the water tank or coal chute, what, if anything, distracted his attention and mind from the thought of that train, and its possible danger to him in backing over that crossing? A. Wind and sand blowing, as stated in answer to No. 21. “ 25. How far from the north rail of the main line of the Santa Fé R. R. Co. was it, at the time of the plaintiff’s injury, to the junction of the sidewalk which left the sidewalk on the west side of Colony avenue between the north side-track and the main track and crossed the main track at right angles? A. 17-|- feet,'measuring in center of short walk. “26. Is it not a fact that, just prior to plaintiff’s injury, after he crossed the north side-track, that he proceeded along the main sidewalk on the west side of Colony avenue, between the north side-track and the main track, to a point where another sidewalk branches from such sidewalk, and that he took the sidewalk so branching from this west sidewalk and followed it to the railroad track and to a point where he was struck by the train? A. Yes. “ 27. Is it not a fact that the last time the plaintiff looked to the west, for the purpose of seeing whether the train which he previously saw standing at the water tank or coal chute was going or not, was at the point where the sidewalk crossing the main track at right angles left the sidewalk on the west side of Colony avenue? A. Yes, about that point. [477] “28. If the jury answer the last question in the negative, they may state how far the plaintiff was from the north rail of the main track of the A. T. & S. F. Eld. Co. at the time he looked the last time to the west to see if the train which he formerly had seen was approaching or not. A. -. “ 29. When the plaintiff last looked to the west to see if the train which he had formerly seen was approaching, how far to the west along the main track of the A. T. & S. F. Eld. Co. could he see so as to distinguish ears? A. 30 to 40 feet. “30. Is it not a fact that, in the absence of any dust or sand in the atmosphere, plaintiff could, in the day-time, from the point where he last looked to the west, have seen along the main track of the A. T. & S. F. Eld. Co. to a point beyond the coal chute or water tank where he had previously seen this train standing? A. Yes. “31. What, if anything, prevented the plaintiff from seeing from the point where he last looked to the west along the main line of the A. T. & S. F. Eld. Co. as far as the coal •chute or water tank? A. People on the platform and the dust. “32. If, in answer to the last question, the jury state that the people on the platform obscured plaintiff’s view, they may state what, if anything, would have prevented plaintiff’ from stepping up onto the platform, and there obtained a clear look to the west so far as such people on the platform were concerned; stating fully. A. Nothing excepting the distance being about 20 feet, and out of a direct line to his place of business. “33. Would the station building, or any other building, or the people on the platform, have prevented the plaintiff from seeing the train which injured him, if he had looked when he was six feet from the track, in its direction? A. No. “ 34. When was plaintiff first enveloped in any cloud of dust or sand, or both, after he crossed the north side-track, with reference to the time he last looked to the west; stating whether it was before or after he so looked? A. After. “ 35. Was any cloud of dust or sand which enveloped plaintiff just prior to his reaching the point where he was struck caused by a sudden gust of wind which struck the plaintiff after he had crossed the north side-track? A. Yes. “36. If the jury answer the last question in the affirmative, is it not a fact that plaintiff knew that if he stopped and waited that such dust and sand would pass away in a short time? A. Yes. [478] “37. How far west was the plaintiff able to see along the main line of the A. T. & S. F. Rid. Co., when he last looked in that direction? A. 30 to 40 feet. “38. State fully what, if anything, prevented him from seeing up as far as the point where he had previously seen the train standing. A. The people on platform, and dust. “39. Is it not a fact that, after plaintiff' looked the last time, he pulled his hat down over his eyes and started forward in a hurry to reach his place of business and get out of the storm? A. No. “40. At the point where the plaintiff looked the last time towards the west, what, if anything, would have prevented him from seeing the train which injured him, if he had stopped and waited until the gust of wind which bore the dust and sand which enveloped him had passed away? A» People on the platform. “41. When the plaintiff looked to the west the last time, did he know or realize, if such be the fact, that he could not see to exceed 40 feet on account of the condition of the atmosphere produced by the sudden gust of wind? A. Yes. “ 42. Is it not a fact that, from the point referred to in the last question, plaintiff went on attempting to cross the track, regardless of whether the train which injured him was moving in his direction or not? A. Went on, but not wholly regardless of the train. “43. If the jury answer the last question in the negative, they may state fully what precaution the plaintiff took against the train which injured him, as he proceeded toward the track from the point where he last looked to the west. A. His sense of hearing. “ 44. At the time the plaintiff was passing the end of the station building, was the wind blowing very hard or not? State fully. A. It was. “45. If the jury answer the preceding question in the affirmative, they may state if it did not make a considerable noise blowing by the station building and the cars. A. We think it would. “46. If the jury answer the last question in the affirmative, they may state if the wind did not make sufficient noi-e to prevent any person at the east end of the station from hearing the noise made by the running of an ordinary train at the rate of from 8 to 15 miles per hour, when such train would be coming from the west to the east end of the station479 house. A. A direct answer would only be a mere conjecture. Still, in our opinion, a person,could hear it. “47. What was the approximate length of the train which injured plaintiff? A. About 180 feet. “48. About how far was the engine on this train from the plaintiff at the time it started backward? A. To the pilot of engine, about 340 feet.” “50. Is it not a fact that the wind was blowing hard enough at and prior to the time when the plaintiff was struck to carry the sound of the ringing of the belj on the engine north from the railroad track at such a distance to the west of plaintiff as to materially, if not quite, prevent his hearing the same if it was rung? A. Would have a tendency to do so, and possibly did. “51. Was plaintiff enveloped with dust or dirt by a sudden gust of wind at the point at which he last looked toward the west? A. No. “ 52. Did any sudden gust of wind envelop the plaintiff with dust at any time prior to the time when he was within a step of the railroad track? A. Yes. “ 53. Is it not a fact that, at the last time he looked to the west, his view was obstructed to some extent by the people standing on the platform of the station? A. Yes. “ 55. If a watchman had been, or was, stationed on the rear end of the train in question, what was the greatest distance that such watchman could have seen the plaintiff, if he had kept a vigilant lookout prior to the train striking plaintiff’? A. 35 to 40 feet. “56. What would have prevented plaintiff, if he had looked, from seeing the train at as great a distance as a watchman stationed on the rear end of the train could have seen plaintiff'? A. The disadvantage of wind and sand blowing in his face. “ 57. When the plaintiff looked to the west the last time, is it not a fact that he saw as far along the track to the west as he could in a clear day? A. No. “58. What, if any, obstruction did the dust make to plaintiff’s view to the west the last time he looked? A. Prevented him from seeing but 30 to 40 feet. “59. Is it not a fact that the gust of wind which, it is alleged in plaintiff’s petition, suddenly enveloped plaintiff with dust, enveloped him with such dust just as he was about to step on the track, if at all? A. No. “ 60. If the jury answer the last question in the negative, [480] they may state if such gust enveloped the plaintiff prior to the time when he was within three feet of the track? A. Yes. “61. Is it not a fact that persons from 10 to 40 or 50 feet from the approaching train heard the bell ringing, or the noise of the train as it approached the crossing? A. Yes. “62. If you answer the last question in the negative, state how far such persons were who heard the bell ringing, or the noise made by the approaching train as it neared the crossing, and before it struck the plaintiff, and give as near as you can the positions of such persons. A. -. “ 63. How far is it from the point where the short sidewalk branches off from the main sidewalk on the west side of Colony avenue, between the north side-track and the main track, to the north rail of said main track where the same is intersected by said short sidewalk? A. 17J feet. “ 64. Was not the engine bell rung as the train commenced to move back from the coal chute? A. Yes. “65. At what rate of speed was plaintiff traveling when he was struck? A. From three to four miles per hour. “ 66. At what rate of speed was the train which struck the plaintiff traveling when it struck plaintiff? A. Five to six miles per hour. “67. How far to the west was plaintiff able to see, the last time he looked to the west prior to being struck? A. 30 to 40 feet.” [481] i Accident at iiU-conSutoiynegligence, [480] It is difficult to understand upon what theory the plaintiff should recover in this case. From the evidence and the special findings of the jury, it does not appear that the railroad company, by any act or omission on its part, did or omitted anything in contravention of law or the city ordinances, or good morals or common prudence; or that it acted in any manner different from what had been the general custom of the railroad companies at that place for all the years previous to that time; while the plaintiff voluntarily encountered a known danger, admittedly without exercising his eye-sight for a period of time sufficient to enable him to walk 10 or 12 feet, in fact 17J feet, and brought himself into collision with a moving railroad car, which he admitted he could have seen for 30 or 40 feet through the dust, and which others saw and heard at a much greater distance. If the plaintiff had stopped [481] when he arrived within five or six feet of the railroad tracks anc^ waited until the dust had blown away, he could have seen westwardly in the direction from ^jg tra¡a was coming for many hundred feet along the railroad tracks; but he did not stop nor look, but chose rather to encounter the danger blindly. The general verdict of the jury must have been founded upon some mistake. It is possible, and indeed probable, that the jury were misled by the instructions of the court. The court below instructed the jury, among other things, that the law requires a person, in traveling over a street intersected by a railroad, “to use such care as an ordinary person would use at such a place,” and that “in the exercise of care and prudence he has the right to decide for himself, the means of which judgment is found by the best exercise of his judgment, and though his judgment in the premises may be wrong, yet if he used the care that men under like circumstances exercise, negligence cannot be imputed to him for such mistake of judgment.” The court also instructed the jury as follows: “A railroad company, in the operation of its trains over a public traveled street in a city, is required to exercise a high degree of diligence and care. It is required to give sufficient and timely warning, and take such precautions as shall be efficient at the time and place, under the circumstances. The law does not require any precise warning or precaution to be used by the railroad company. The railroad company has the liberty of choice, but the law does require whatever warnings or precautions are taken shall he sufficient or effective; and what these warnings or precautions should be it is for the jury in the light of the evidence to say. You may take into consideration whether the train is backed upon the crossing with increased daugerousness of propulsion; the distance the train had to go to reach the street or crossing; whether or not timely and efficient warning was given, considering the elements, the wind, the flying sand or dust; whether there were safer or surer signals of its approach to the crossing within its command and failed to be used; the speed of the train; the obscurity of the track from buildings or clouds; the failure to have a flagman at the crossing to warn travelers; and if you find from the evidence that there was no brakeman on the rear platform or [482] end of the passenger coach, then you may consider this fact, and all the facts and circumstances proved, to determine whether or not. proper care and diligence were used in moving the train over the crossings of the street. ... I further instruct you that negligence is want of diligence; common or ordinary negligence is the want of that degree of care which an ordinarily prudent man would ordinarily exercise under like circumstances; slight negligence is merely the failure to exercise great or extraordinary care; gross negligence is the want of slight diligence. The degree of care and diligence necessary and proper in each case varies according to the surrounding circumstances in each particular case, and the jury from, all the circumstances must decide what degree of diligence and care is necessary and proper under the circumstances of the case proved: . . . The plaintiff could not push ou through a temporary sand or wind storm and take the risk of misfortune, unless you find from all the facts and circumstances proven that a man of ordinary care and caution under like circumstances would be justified in doing as the plaintiff did in this case. . . . What might be ordinary care for a traveler or employé. of a railroad under favorable conditions, might not be ordinary care for either traveler or employé of a railroad under different conditions; and where a railroad [train] backs down across an avenue where people are and have the right to travel, a higher degree of care should be exercised by the railroad employés.” 2- ?are?e of The italics in the foregoing instructions are ours. Before proceeding further, we might say that each party in cases like this, the plaintiff or the defendant, is required to exercise that degree of care and diligence which an ordinarily prudent person would exercise under like circumstances, and is not required to exercise any greater or higher degree of care or diligence. This degree of care and diligence is usually denominated “ordinary care or diligence;” while a want of this degree of care and diligence is usually denominated “ordinary negligence.” The foregoing instructions start out with saying that the care to be exercised by the plaintiff in a case like this is that of an “ordinary person,” and not that of an ordinarily prudent person under like circumstances, and that in the exercise ofj [483] such care such person “has the right to decide for himself” as to the means; and if he exercises “tlie care that men under like circumstances exercise, negligence cannot be imputed to him, although he might be mistaken.” As opposed to this, see Lierman v. C. M. & St. P. Rly. Co. (Wis.), 52 N. W. Rep. 91. It will also be noticed that the court says “ordinary persons” and “men,” and not “ordinarily prudent persons” or “ordinarily prudent men.” In Texas, it has been held that the use of the words “ordinary man,” instead of the words “ordinarily prudent person,” is prejudicially erroneous. (A. & N. W. Rld. Co. v. Beatty, 73 Tex. 592, 596; same case, 11 S. W. Rep. 858, 859, 860.) s‘ safety of1'61'of traveler. , As to the railroad company, the court below instructed the jury that it must exercise “a high degree of diligence and care,” and “give sufficient and timely warning, and take such precautions as shall be efficient;” that “the law does require, whatever warnings or precautions are taken [by the railroad company] shall be sufficient or effective,” and that the jury may take into consideration “whether or not timely and efficient warning was given,” and “whether there were safer and surer signals of its approach to the crossing within its command” or not. These instructions make the railroad company an insurer against collision, whatever the plaintiff might do. The degree of diligence , . . , , . . , exercised by it must, under the instructions, be “ high,” “ sufficient,” “ efficient,” and “ effective.” Timely and “efficient” warning must have been given, and it is a matter for the jury to consider whether there might not have been “safer” and “surer” signals. .This is also á virtual instruction to the jury to find for the plaintiff, for the reason that in fact “sufficient,” “efficient” or “effective” signals or warnings were not given to prevent the injury to the plaintiff, for the plaintiff was in fact injured. The defendant did not in fact prevent it. And there might have been “safer” and “surer” signals or warnings. An employé of the railroad company, for instance, might have walked ahead of the moving train and have given notice to all persons who were likely [484] to attempt to pass in front of it, and have prevented such persons by force, if necessary, from encountering the danger. The court also instructs the jury with respect to the degrees of care and diligence on the one side, and the want of care or diligence on the other side, and then states that “the jury from all the circumstances must decide what degree of diligence and care is necessary and proper,” leaving it to the jury to say that the plaintiff might recover, although he was guilty of ordinary negligence, but not guilty of the highest possible degree of negligence, and that the defendant would be liable although it might not be guilty of ordinary negligence, but only of the slightest possible degree of negligence. (This is all wrong and against all authority. Both parties must, in all cases like the present, exercise ordinary care and diligence, and neither is required to exercise any greater or higher degree of care or diligence. Of course, whether the performance or omission of any particular act or acts constitutes ordinary care and diligence, or not, depends upon all the numerous and varied surrounding circumstances, including the relations existing between the parties, and the duty or duties that one may owe to the other; but the degree of care or diligence that each must exercise as toward the other never varies. It is always ordinary care and diligence, and neither the court nor the jury can vary it. The court also says that the plaintiff would not be justified in passing through “ a temporary sand or wind storm ” and taking the risk of misfortune “unless” “a man of ordinary care and caution under like circumstances would be justified in doing as the plaintiff did; ” and while the court seems to recognize the general principle that ordinary care is the care which a railroad employé should generally exercise, yet the court says that, under the circumstances of this case, “a higher degree of care should be exercised by the railroad employés.” As we have before stated, neither the railroad company, including its employés, nor the plaintiff, is required in cases like this to exercise any degree of care higher or greater than ordinary care. Among the various cases which might be cited tend [485] ing to support the view that the plaintiff, under the facts and circumstances of this case, should not recover, see the following: U. P. Rly. Co. v. Adams, 33 Kas. 427; A. T. & S. F. Rld. Co. v. Townsend, 39 id. 115; McCrory v. C. M. & St. P. Rly. Co., 31 Fed. Rep. 531; Heaney v. L. I. Rld. Co. (N. Y.), 19 N. E. Rep. 422; Scott v. Penn. Rld. Co. (N. Y.), 29 N. E. Rep. 289; Debbins v. O. C. Rld. Co (Mass.), 47 Am. & Eng. Rld. Cases, 531; Fletcher v. Fitchburg Rld. Co. (Mass.), 21 N. E. Rep. 302; Butterfield v. Western Rld. Co. (92 Mass.), 10 Allen, 532; Allerton v. B. & M. Rld. Co., 34 Am. & Eng. Rld. Cases, 563; Hauser v. Central Rld. Co. (Pa.), 23 Atl. Rep. 766; Blight v. C. & A. Rld. Co. (Pa.), 21 Atl. Rep. 995; Flemming v. W. P. Rld. Co., 49 Cal. 253; Marty v. C. St. P. M. & O. Rly. Co. (Minn.), 35 N. W. Rep. 670. 4 Duty of traveier. We think the judgment of the court below must be reversed-In our opinion, it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as to listen, and if dust should temporarily obscure his view, to wait until the dust shall pass away before he attempts to cross. The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered upon the special findings of the jury in favor of the defendant and against*the plaintiff. All the Justices concurring.