The opinion
HUNT, Circuit Judge
(dissenting). As Tucker described the accident, he would have “to make a circle to cross the track.” He said that he looked up the track, and could see with a clear vision to the oil tanks, or a little further, at the point he looked; that he saw no train and heard no warning whistle or bell; that he then directed his view to his left, easterly and toward a packing warehouse and the depot; that the warehouse was not far east of the crossing of the tracks, and hid the view of the two side tracks; that he directed his observation that way until, as he described it, he got—
“clear out beyond until I knew everything was safe the way my view was ahevd. * * I looked to the left, which would be southeasterly, down towards the depot and Castle Bros.’ packing house, to see whether anything was coming- northwesterly. Then, after I was through looking that way, I turned and looked the other way. When 1 turned my gaze from the southeasterly, and looked back the other way, I had readied the point where the truck was practically going onto the main line track, as near as I can remember, when I saw the train coming, the front end of the train; practically the front part of the truck was on the main line. I could only see the train coming, and didn’t hoar any whistle or bell. When I saw the train, it appeared to be coming very fast; it seemed to be 200, 300, or 400 feet away. * * * It was coming from the northwest. I then reached down and opened the throttle and tried to gain a little more speed; I was going very slow; my automobile went, forward. I watched this way until the train struck. That is the last I knew.”
Witness said he believed Mr. Wright looked up the track at the same time he did. On cross-examination the witness gave substantially the same account, and also said:
“I never looked that way again, to see if there was a train approaching, until I passed a clear vision of the packing house. I was practically on the main track, and looked and saw the train coming right on us. * * * The whole space was there unobstructed, and there was no reason why, if I had looked, I couldn’t have seen the train approaching.”
The map introduced shows a crossing of four railway tracks at the foot of the crossing street; two side tracks easterly from the main track, then the main track, and a track west of the main track. They had crossed the two easterly side tracks before reaching the main track, where the engine hit the truck. From the time they started to cross the tracks at right angles with East Front street they would have had to travel approximately 75 feet before reaching the center of the main track.
It simplifies the case to determine Tucker’s attitude from the standpoint of the duty of one driving a truck across steam railroad tracks. The train was in plain view before he drove the truck upon the two side tracks, and if before crossing, or if in crossing, them, he had looked in the direction toward the oil station, he would have seen the engine coming down the main track, and could easily have stopped *266 and let it pass. As to Tucker, the case clearly demonstrates contributory negligence.
The question, then, is: Was Mr. Wright guilty of culpable negligence? I agree that Wright was not the master of Tucker; on the other hand, he was not a passenger for hire, intrusting himself to a carrier. As the hirer of the truck and driver, utilizing the truck and driver’s services in attending to his own affairs, and with control over its movements as to direction and service, he was bound to exercise ordinary care and diligence to protect himself in the hazardous situation of crossing the tracks. Mr. Wright was on the right side of the seat of the truck, and therefore had a better view than Tucker, and if, before Tucker drove over any of the tracks, Wright had turned his eyes toward the oil station, he would have seen the train coming, and could have warned Tucker in ample time to let him stop the automobile. But, instead of exercising what seems to me to be the ordinary vigilance, specially called for when it is considered that there were four tracks ahead of them as they crossed, Mr. Wright, like Mr. Tucker, failed, until too late, to give attention to the danger of trains from the direction of the oil station.
Under the undisputed facts and circumstances, I therefore think it should have been held that Mr. Wright, as well as Mr. Tucker, failed in the duty to exercise ordinary and proper care for his own safety, and by his omission to do so directly contributed to the cause of the accident. Little v. Hackett, 116 U. S. 366 , 6 Sup. Ct. 391, 29 L. Ed. 652 ; Schofield v. Chicago & St. Paul Ry. Co., 114 U. S. 615 , 5 Sup. Ct. 1125, 29 L. Ed. 224 ; N. P. R. Co. v. Freeman, 174 U. S. 379 , 19 Sup. Ct. 763, 43 L. Ed. 1014 ; New York Central, etc., v. Maidment, 168 Fed. 21 , 93 C. C. A. 413 , 21 L. R. A. (N. S.) 794; Rebillard v. Minneapolis, St. P. & S. S. M. R. Co., 216 Fed. 503 , 33 C. C. A. 9 , L. R. A. 1915B, 953; Green v. So. Cal. Ry. Co., 138 Cal. 1 , 70 Pac. 926 ; Martz v. Pac. Elec. Ry. Co., 31 Cal. App. 592 , 161 Pac. 16 ; Brickell v. N. Y. C. & H. R. R. Co., 120 N. Y. 290 , 24 N. E. 449 ; 17 Am. St. Rep. 648 ; Dryden v. Penn. R. Co., 211 Pa. 620 , 61 Atl. 249 ; Noakes v. N. Y. C. &.H. R. R. Co., 121 App. Div. 716 , 106 N. Y. Supp. 522 .
But, while I think tire court erred in not holding that initial contributory negligence on the part of Wright was conclusively shown, nevertheless, in my opinion, the case should have been submitted to the jury, but upon a phase which was expressly eliminated from consideration. It is this: The men in the truck were not trespassers. They were at a street crossing upon a thoroughfare which they had a right to use. An imperative duty devolved upon the engineer and fireman, who were running the locomotive through the city at a high and unlawful rate of speed, and without whistling or ringing the bell, to keep a specially vigilant lookout, in order to see whether or not people lawfully using street crossings were exposed to imminent danger upon the tracks ahead of their train.
The way ahead.on both sides of the track, and toward the truck as it approached the main track, was perfectly clear for observation by the *267 engineer. Tlie engineer knew the speed of his train. Therefore, in the light of the presumption that he and the fireman did keep a lookout, impartial common-sense iñínds could say that the most'reasonable inference from the evidence is that the men on the engine did see the truck, and did observe its movements, as it slowly approached and started to go upon the track directly ahead of the train. There was, therefore, ample evidence to require the court to hold that, notwithstanding tlie fact that the negligence of Wright and Tucker had brought them to a situation of fearful danger, nevertheless, whether or not the engineer actually saw the truck, and, observing its movements, saw the peril of the men, yet was guilty of omission to use the means at his hand to give timely warning, and, if necessary, slow down and thus avoid collision with the truck and injury to the men in it, was for the jury to determine. Grand Trunk R. Co. v. Ives, 144 U. S. 408 , 12 Sup. Ct. 679, 36 L. Ed. 485 ; Fluckey v. Southern R. Co., 242 Fed. 468 , 155 C. C. A. 244 .
But, as the District Court expressly charged the jury that the “last clear chance doctrine” had no application, the jury were precluded from considering the phase of the case just referred to. It therefore results: There was material error against the railroad company in submitting the issue of initial contributory negligence, which in my opinion ought not to have been submitted, and there was material 'error against the defendant in error in a refusal to submit the issue of knowledge of peril which by subsequent occurrences might have avoided the consequences of the contributory negligence. Under such circumstances this court must assume that the jury obeyed the charge of the court, and that the verdict and judgment Avere founded upon the single theory, which I think was improperly submitted.
The remedy, I think, should be by reversal, with directions to grant a new trial.