(118 Okla. 138, 247 Pac. 41.)

ceased was about to go upon and did go upon said track.

Messrs. M. D. Green and H. L. Smith, for appellant:

The trial court should have instructed the jury to render a verdict for defendant.

Wade v. Hope, 89 Okla. 64, 213 Pac. 549.

There was no negligence shown in the matter of leaving cars near the crossing on the sidetrack.

Nashville, C. & St. L. R. Co. v. Witherspoon, 112 Tenn. 128, 78 S. W. 1052; Missouri, K. & T. R. Co. v. Bratcher, 54 Tex. Civ. App. 10, 118 S. W. 1091; Cowles v. New York, N. H. & H. R. Co. 12 L.R.A. (N.S.) 1067 and note, 80 Conn. 48, 66 Atl. 1020, 1024, 10 Ann. Cas. 481; Danskin v. Pennsylvania R. Co. 22 L.R.A. (N.S.) 232 and note, 76 N. J. L. 660, 72 Atl. 32; Director Gen. v. Pence, 135 Va. 329, 116 S. E. 351.

The trial court erred in failing to define contributory negligence, or properly submit it to the jury in its instructions.

St. Louis & S. F. R. Co. v. Elsing, 37 Okla. 333, 132 Pac. 483; Chicago, R. I. &P. R. Co. v. Barton, 59 Okla. 109, 159 Pac. 250; 29 Cyc. 505; Wichita Falls & N. W. R. Co. v. Woodman, 64 Okla. 326, 168 Pac. 209; Mascho v. Hines, 91 Okla. 295, 217 Pac. 856; Oklahoma R. Co. v. Milam, 45 Okla. 742, 147 Pac. 314.

The trial court erred in failing to submit to the jury the question of proximate cause.

Sallisaw v. Wells, 90 Okla. 78, 216 Pac. 118; Cushing Gasoline Co. v. Hutchins, 93 Okla. 13, 219 Pac. 408; Interstate Coal Co. v. Love, 153 Ky. 323, 155 S. W. 746; Washington, A. & Mt. V. R. Co. v. Vaughan, 111 Va. 785, 69 S. E. 1035; Alabama Midland R. Co. V. Guilford, 114 Ga. 627, 40 S. E. 794, 11 Am. Neg. Rep. 189; Gulf, C. & S. F. R. Co. v. Williams, Tex. Civ. App. 39 S. W. 967; Houston & T. C. R. Co. v. Malone, Tex. Civ. App. -, 37 S. W. 640; Ware v. Saufley, 194 Ky. 53, 24 A.L.R. 500, 237 S. W. 1060; 29 Cyc. 650; Gypsy Oil Co. v. Ginn, 88 Okla. 99, 212 Pac. 314; Eagle Biological & Supply Co. v. Breed, 90 Okla. 7, 215 Pac. 424, 22 N. C. C. A. 949.

The trial court erred in refusing to instruct the jury regarding the law as to defendant's alleged negligence in storing its cars on the side or passing track, near but not on the crossing.

Director Gen. v. Pence, supra; South

ern R. Co. v. Bryant, 95 Va. 212, 28 S.
E. 183; Petersburg R. Co. v. Hite, 81
Va. 767; Anderson v. United States R.
Administration, 193 Iowa, 1041, 188
N. W. 826.

Messrs. Moore & West for appellee. Estes, C., filed the following opinion:

A

Parties will be referred to as they appeared in the trial court, inverse to their order here. Plaintiff had judgment against defendant railway company for $1,000 damages for the death of her son by the alleged negligence of defendant. former judgment for plaintiff was reversed by this court. 89 Okla. 136, 214 Pac. 907. Decision of this appeal requires reference both to the facts and law contained therein. The identical evidence in the former trial was resubmitted to the jury, wherefore we shall not here restate this case. Defendant properly saved the record and requested instructions on the issues herein discussed, though we do not here set out or hold that all of defendant's voluminous requested instructions are correct.

Railroads

ing-effect.

1. That decision is also the law of the instant appeal, except as to paragraphs 4 and 5 of the syllabus, obstructing which paragraphs view at crossare hereby specifically overruled. As shown by that opinion, some coal cars were parked about 10 or 15 feet south of the sidewalk on the south side of the street, but not upon the public crossing. Therefore the rule of negligence of the company in leaving cars upon a public crossing for short periods of time when necessary is not involved in this case. A requested instruction occasioned said paragraphs 4 and 5. Nor is the rule that liability of a railway company for injuries occasioned by collision at a highway crossing may be founded upon the negligence in allowing unnecessary obstructions to vision to exist upon its right of way, such as hedges, weeds, and the like (Ricardo v. Central Coal & Coke Co. 102 Kan. 170, 171 Pac.

351) involved in the instant case. The applicable rule is found in the third paragraph of said syllabus. Bruggeman v. Illinois C. R. Co. 154 Iowa, 596, 134 N. W. 1079. Since this cause must be reversed for new trial, the court should submit to the jury by proper instruction, according to said paragraph 3 of said opinion, whether the company and deceased discharged the greater duty and care imposed upon them by the fact of such coal cars being so parked. Such instruction was not given.

2. The court failed to define contributory negligence, or properly submit it to the jury by instruction. The meaning of this term was explained to the jury, if at all, only by inference in certain instructions. This was error. Mascho v. Hines, 91 Okla. 295, 217 Pac. 856. ConContributory negligence is a constitutional defense. The term should be defined in the instructions of the court. It should be left to the jury to say whether the plaintiff's negligence had or had not contributed to the injuries complained of. Wichita Falls & N. W. R. Co. v. Woodman, 64 Okla. 326, 168 Pac. 209.

Trial-definition of terms.

3. Neither did the court, except in a general way, instruct the jury as to proximate cause. We cannot say as matter of law that all of the evidence favorable to plaintiff, together with all inferences and conclusions to be reasonably drawn therefrom, is sufficient to establish a causal connection between the alleged negligence of defendant and the injury by which decedent met his death. In a suit for personal injuries, the question whether defendant's negligence is the proximate cause of the injury sustained should be tory negligence. left to the jury, where the evidence is conflicting or where men of ordinary intelligence

question for Jury-contribu

might differ as to the effect of evidence on the point. Sallisav Wells, 90 Okla. 78, 216 Pac. 118. is well settled that, in order negligence to create liability, must be the proximate cause of injury, and the failure of the co so to instruct the jury will caus reversal of the judgment, unless evidence is such that no other v dict could properly be render Gulf, C. & S. F. R. Co. v. Willia

Tex. Civ. App. -, 39 S. 967. In the instant case we de it particularly important that court should define proximate cau in order that the jury may det mine whether the negligence alleg was the proximate cause.

There is no merit in the conte tion of defendant that the cou erred in failing to instruct t jury as to the duty of deceased approaching the crossing. Wh the instruction could have be more explicit, same accords wi the rules in said former opinion. is contended by defendant th there was not sufficient evidence take the case to the jury on neg gence in failing to sound whist and bell and running the train excessive speed. Said former opi ion holds the evidence sufficient these questions, and approves wit drawing from the jury any neg gence for failure to keep a watc man at the crossing. This case so close under the facts as to r quire very explicit and somewh detailed instructions as to the lay It is to be regretted that still anot er trial is necessary. However, is more important that the ver rights of the parties be adjudged a cording to law.

Let the judgment be reversed an the cause remanded for new trial accordance with the views herei and those of such former opinion.

Petition for rehearing denie June 15, 1926.

ANNOTATION.

Negligence in leaving cars where they obstruct view at crossing. [Railroads, § 131.]

R. Co. (1888) 74 Iowa, 188, 37 N. W. 149, where a person was injured by a train at a street crossing, the view of which was obstructed by cars stored on both sides of the street and projecting into the street, leaving, however, a passage 35 feet wide, the court, in affirming a verdict for the plaintiff, said it was a plain violation by the railroad of its duty to the public. "If the whole width of the street was not required upon which to drive vehicles, it was necessary that it should be left open so that travelers approaching the crossing would have an unobstructed view of at least the full width of the street."

And it is a question for the jury whether the railroad company used the proper degree of care demanded by the increased danger at the crossing due to the presence of the cars.

United States. Thomas v. Delaware, L. & W. R. Co. (1881) 19 Blatchf. 533, 8 Fed. 729.

Georgia.

Seaboard Air-Line R. Co. v. Blackshear (1912) 11 Ga. App. 579, 75 S. E. 902.

Kentucky. Harvey v. Illinois C. R. Co. (1914) 159 Ky. 492, 167 S. W. 875.

Michigan. Willet v. Michigan C. R. Co. (1897) 114 Mich. 411, 72 N. W. 260; Fillingham v. Detroit, G. H. & M. R. Co. (1919) 207 Mich. 644, 175 N. W. 227.

New Hampshire. Presby v. Grand Trunk R. Co. (1891) 66 N. H. 615, 22 Atl. 554.

New York.

Bleyle v. New York C.

& H. R. R. Co. (1887) 11 N. Y. S. R. 585, affirmed without opinion in (1889) 113 N. Y. 626, 20 N. E. 877; Whalen v. New York C. & H. R. R. Co. (1899) 39 App. Div. 642, 57 N. Y. Supp. 194. Texas. Galveston, H. & S. A. R. Co. v. Michalke (1896) 90 Tex. 276, 38 S. W. 31; Galveston, H. & S. A. R. Co. v. Harris (1899) 22 Tex. Civ. App. 16, 53 S. W. 599; Chicago, R. I. & G. R. Co. v. Zumwalt (1922) Tex. 239 S. W. 912, affirming (1920) Tex. Civ. App. 226 S. W. 1080.

--

In Galveston, H. & S. A. R. Co. v. Michalke (Tex.) supra, where cars obstructed the view of a highway crossing at which plaintiff was injured by

collision with a train, the court said: "We do not question the right of a railway company . . . to leave standing cars upon its sidetracks, near a street or road crossing. But we think that the circumstances of a case may be such that, as a matter of fact, it may be negligence to do so."

In Cleveland, C. C. & St. L. R. Co. v. Richerson (1899) 19 Ohio C. C. 385, 10 Ohio C. D. 326, where plaintiff's horse was frightened by the sudden starting of a railroad engine which could not be seen for cars stored on tracks near a street crossing, the trial court refused to instruct the jury that "the defendant was not negligent in leaving cars on its tracks, close to the crossing of Front street, so long as said cars were not upon the highway." The appellate court, in approving the trial court's action, said: "While it would not be negligence on the part of the railroad company to leave cars on its tracks close to the crossing if they were not in the highway, still it would be misleading to the jury to have them so instructed in this case, because that, with other facts, was the negligence complained of in this case." The court thus held that the presence of cars obstructing the view at a street crossing was evidence which the jury could consider in passing on the care used by the railroad company.

In Thomas v. Delaware, L. & W. R. R. Co. (1881) 19 Blatchf. 533, 8 Fed. 729, where deceased was killed at a private crossing by a special train running at an excessive rate of speed, the view of the crossing being obstructed by freight cars, a finding by the jury of negligence against the company was sustained.

And so, where the view of a crossing at which plaintiff was injured was obstructed by a box car and a store, a verdict by the jury for the plaintiff was sustained in New York, S. & W. R. Co. v. Moore (1901) 45 C. C. A. 21, 105 Fed. 725.

And a finding of negligence on the part of a railroad company by a jury was sustained in Houston & T. C. R. Co. v. Wilson (1883) 60 Tex. 142, where, at a crossing the view of which

Colorado Supreme Court (In Banc) — March 29, 1926.

(79 Colo. 320, 246 Pac. 280.)

Automobiles, § 45- negligence of guest.

1. A guest in an automobile may be guilty of contributory negligence in case of a collision with another car at a street intersection, independently of the acts of the driver, but authority and control over, and responsibility for the management of, the car, must rest upon the driver.

[See annotation on this question beginning on page 293.]

Automobiles, § 46 right of way

duty to exercise care.

no duty to keep a lookout for impending dangers at street intersections.

[See annotation in 18 A.L.R. 352; 22 A.L.R. 1301; 41 A.L.R. 778.] Negligence, § 167 Negligence, § 167 last clear chance - when applicable.

5. In the absence of contributory negligence on the part of plaintiff, there is no occasion for the application of the doctrine of last clear chance. [See annotation in 28 A.L.R. 284.] Appeal, § 678 excessive verdict power of court.

6. A verdict cannot be disturbed by an appellate court for an award of excessive damages in an action to recover for negligent injuries if the excess was not such as to indicate bias or prejudice on the part of the jury.

[See 2 R. C. L. 199 et seq.; 1 R. C. L. Supp. 440; 4 R. C. L. Supp. 91; 5 R. C. L. Supp. 81; 6 R. C. L. Supp. 74, 75.]

ERROR to the District Court for the City and County of Denver (Dunklee, J.) to review a judgment in favor of plaintiff in an action brought to recover damages for personal damages, alleged to have been sustained in an automobile collision. Affirmed.

simply because he does not see an impending danger and does nothing.

The facts are stated in the opinion of the court.
Messrs. D. L. Webb, H. Berman, and
James H. Teller for plaintiff in error.
Messrs. Crump & Riley, for defend-
ant in error:

An invited guest is not guilty of contributory negligence as a matter of law 47 A.L.R.-19.

Colorado Springs & Interurban R. Co. v. Cohun, 66 Colo. 149, 180 Pac. 307; Hedges v. Mitchell, 69 Colo. 285, 194 Pac. 620; St. Mary's Academy v.