Bennett

I concur in the judgment and generally in the opinion, but as to proposed instruction Ho. II I think it was properly refused as being an incorrect exposition of the law. The proposed instruction makes identical the duty of one who is about to cross the right of way of a steam railroad with that of one who is about to cross the track of a streetcar line. From the nature of the business of steam railroads, from the character of the conveyances and of the motor power, from the necessity for swift transportation, from the fact that they carry the mails of the country, from the additional facts that the trains are of immense weight, that rapidity in locomotion is a high desideratum, that they cannot be easily and readily stopped, that they move upon their own right of way, that the number of them passing a given point is comparatively few—the rule of conduct made necessary to one who is about to cross their right of way, even upon the line of a public highway, has become crystalized into a single phrase. It is a well-recognized rule which requires the traveler, if necessary, for his own protection, “to stop and look and listen,” and imputes negligence to him if he does not; but this…

While plaintiff was driving a wagon across the railroad track of the defendant he was struck by a car and severely injured, and he brings this action to recover damages for personal injuries occasioned by the collision. The verdict and judgment were for plaintiff, and from the judgment and from an order denying a new trial the defendant appeals. The place where the injury occurred is within the city and county of San Francisco, and the road in question is a street railroad operated by electricity.

Appellant’s main contentions for a reversal are: 1. That respondent was guilty of contributory negligence which should have prevented his recovery; 2. That there was not sufficient evidence to show that there was negligence at the time of the *277 accident on the part of the employees who were running the car which caused the injury; and 3. That the court committed errors prejudicial to appellant in giving and refusing instructions to the jury.

1. We cannot say that as a matter of law the respondent was guilty of contributory negligence—that is, that “all the facts plainly and inevitably point to such negligence, leaving no room for argument or doubt. (Bailey v. Market Street etc. Ry.…