ance and service of a scire facias or summons to hear errors. Section 401, Mills' Ann. Code, provides that a writ of error shall not be brought after the expiration of three years from the rendition of the judgment complained of. This statute is a statute of limitations. Willoughby v. George, 5 Colo. 80; Haley v. Elliott, 20 Colo. 199, 37 Pac. 27. Writs of error must be prosecuted within the time limited by the statute. Stebbins v. Anthony, 5 Colo. 348; Clayton v. Cheeley, 5 Colo. 337. (44 Colo. 501) NICHOLS v. CHICAGO, B. & Q. R. CO. et al. The backing of an engine through a city at a speed in excess of that prescribed by the city's ordinance, and the failure to give warning of its approach to a street crossing by ringing the bell, was negligence. [Ed. Note. For other cases, see Railroads, Cent. Dig. 8 1009; Dec. Dig. § 317.*] 2. RAILROADS (§ 324*)-CROSSING ACCIDENTCONTRIBUTORY NEGLIGENCE CARE RE QUIRED. railroad crossing, he was bound to exercise that Where plaintiff knew he was approaching a degree of care in looking out for an approaching train which a reasonably prudent person would if his failure so to do was the proximate cause have exercised under similar circumstances, and, of his injury, he was negligent and could not recover. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1022; Dec. Dig. & 324.*] NEGLIGENCE-PROXIMATE Cause. Plaintiff could not recover for injuries at a railroad crossing unless the railroad company's negligence was the proximate cause of the injury. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1090; Dec. Dig. § 337.*] 4. APPEAL AND ERROR (§ 927*) — Review PRESUMPTIONS-DIRECTION OF VERDICT. The Supreme Court, in reviewing an order that the evidence establishes all facts which it directing a verdict for defendant, must assume tends to prove and must make every inference of fact therefrom in favor of plaintiff which the jury would have been warranted in finding in his favor. A writ of error is not brought within the requirements of Mills' Ann. Code, § 401, supra, until the summons to hear errors has been issued by the clerk of this court, as required by Mills' Ann. Code, § 404, or the issuance of such summons has been waived in an appropriate manner by the defendant in error. In Brooks v. Norris, 11 How. 204, 13 L. Ed. 665, Chief Justice Taney, in discussing section 22, c. 20, Act Cong. 1789, 1 Stat. 84, which provides that writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, said: "It appears by the record that the judgment was rendered on the 25th of October, 1843. The writ of error by which the case is brought here was allowed by the chief justice of the state court, upon the petition of the appellant, on the 19th of October, 1848, and the bond also bears date on that day; but the writ of error was not issued until the 4th of November following. It was issued by the clerk of the court in which the judgment was rendered, and on the same day, as appears by indorsement upon it, filed in that office by the counsel for the A court is only warranted in determining plaintiff in error. More than five years from when the testimony will allow no other inferthat plaintiff was negligent as a matter of law the day of the judgment had therefore elaps-ence to be honestly drawn by different minds. ed when this writ of error was filed." The [Ed. Note. For other cases, see Negligence, writ was dismissed upon the ground that it Cent. Dig. §§ 286, 291, 296, 299, 333; Dec. Dig. § 136.*] was barred by the limitation of time prescribed by the act of Congress. "A writ of error, issuing out of the court of error, is essential to such court's jurisdiction. Such writ should be properly attested, and a citation to defendant in error should be annexed within the time prescribed by law; otherwise the case will be dismissed." 2 Cyc. 854. In Wellington v. Beck, 29 Colo. 73, 66 Pac. 881, it was said: "Unless a summons to hear errors is served as by law required, or such service is in some way waived, this court is without authority to render judgment against a defendant in error"-citing cases. No scire facias or summons to hear errors having been issued or served in this case, and service thereof not having been waived, this court has no jurisdiction to determine the case, for which reason it will be dismissed. Dismissed. STEELE, C. J., and HELM, J., concur. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. § 927.*] 5. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEGLIGENCE-DETERMINATION BY COURT. 6. RAILROADS (§ 301*)-CROSSINGS-RIGHTS OF RAILROAD AND TRAVELER. The obligations, rights, and duties of railroads and drivers on intersecting highways are mutual and reciprocal; no greater degree of care railroad has the right of precedence at such being required by one than the other, though the crossing. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*] 7. RAILROADs (§ 330*)—Crossings—InjuBY TO TRAVELER-CONTRIBUTORY NEGLIGENCE. A person attempting to cross a railroad track at a public crossing in a city may expect that the railroad will give signals required by law to warn him of the approach of a train, and that it will not be run at an excessive and dangerous rate of speed. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1071-1074; Dec. Dig. § 330.*] 8. RAILROADS (§ 330*)-INJURY TO PEDESTRIANS-CROSSING ACCIDENT-CARE REQUIRED. Where a pedestrian about to cross a railroad track at a public crossing in a city does not know of the railroad company's negligence in running its train approaching the crossing at an unlawful rate of speed, and failing to give For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes the required signals of its approach, and such | 15. RAILROADS (§ 320*)—INJURIES AT CROSSwant of knowledge is not the result of his fail- ING-NEGLIGENCE. ure to exercise reasonable care, he is only bound to exercise such care as an ordinarily prudent person would exercise when the railroad company is also exercising the care legally imposed on it. [Ed. Note. For other cases, see Railroads, Cent. Dig. 1074; Dec. Dig. § 330.*] 9. RAILROADS (§ 350*)-CROSSING ACCIDENTDUTY TO LOOK-TIME AND PLACE. Where a person injured at a railroad crossing looked for an approaching train before attempting to cross, he was not necessarily negligent, as a matter of law, because he did not look at the precise time and place which would have been of the most advantage and would have probably avoided the injury. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1173; Dec. Dig. § 350.*] 10. RAILROADS (§ 350*)-CROSSING ACCIDENT -CONTRIBUTORY NEGLIGENCE QUESTIONS FOR JURY. Plaintiff, when about to cross a railroad track at a crossing in a city where the speed of an engine was limited to 10 miles an hour, looked and observed a clear track for 685 feet. Had the speed ordinance been obeyed, plaintiff would have had ample time to have crossed the track in safety. An engine, which when plaintiff looked, was obscured from view, approached without warning or signal at a prohibited speed, not less than 25 miles an hour, and struck plaintiff before he could escape. Held, that plaintiff was not negligent as a matter of law. While a railroad engineer may ordinarily presume that one approaching a public crossing over which the train is about to pass is aware of the train and will not place himself in a position of peril, the engineer may not rely on such presumptions if the circumstances are such that, as a reasonably prudent person, it should occur to him that the pedestrian is not aware of the train. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1014, 1016; Dec. Dig. § 320.*] 16. RAILROADS (§ 347*)—Injury at Crossing -EVIDENCE-SAFETY ORDINANCE. In an action for injuries at a railroad crossing, safety ordinances, requiring flagmen to be stationed, or gates, or other safety appliances to be placed at the crossing, with which defendant had not complied, were admissible if properly authenticated. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 347.*] 17. EVIDENCE (8 474*)-NONEXPERT OPINION -SPEED OF TRAIN. Any person of sound mind and judgment, who has observed trains running and has an opinion thereon based on seeing the train at the time in question, may testify as to the train's speed. [Ed. Note. For other cases, see Evidence, Cent. Dig. & 2202; Dec. Dig. § 474.*] 18. RAILROADS (8 347*)-CROSSING ACCIDENT -EVIDENCE. Where, in an action for injuries to plain [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1169-1176, 1187; Dec. Dig. tiff at a railroad crossing, plaintiff claimed he 350.*] 11. RAILROADS (§ 330*)-CROSSING ACCIDENT -APPEARANCE OF SAFETY-NEGLIGENCE. While a false appearance of safety created by a railroad company does not relieve the traveler injured in a crossing accident from exercising proper care, it may be considered in determining whether the traveler has been negligent; a person approaching a railroad crossing in a city with no train in sight for several hundred feet not being bound to anticipate that one will approach at an unlawful or unusual speed, without signals, etc. [Ed. Note. For other cases, see Railroads, Cent. Dig. 1074; Dec. Dig. § 330.*] 12. NEGLIGENCE (§ 83*)-LAST CLEAR CHANCE. Plaintiff, in an action for personal injuries, may recover, notwithstanding his own negli gence exposed him to peril, if defendant, after becoming aware of the peril, fails to use ordinary care to avoid injuring plaintiff, and such failure is the proximate cause of the injury. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 13. NEGLIGENCE (§ 83*)—LAST CLEAR CHANCE -SCOPE OF DOCTRINE. The doctrine of last clear chance is not limited to cases where the peril of the person injured has been actually discovered by those causing the injury, but extends to cases where the peril could have been discovered by the exercise of reasonable care on their part. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 14. NEGLIGENCE (§ 83*) — CONSEQUENCE OF ANOTHER'S NEGLIGENCE-DUTY TO AVOID. The duty to exercise due care to avoid the consequence of another's negligence arises when the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] was struck by an engine passing over the crossing at a high rate of speed, which he had not seen until just before he was struck, the court erred in refusing to permit plaintiff to prove the position of the engine prior to traversing the crossing to explain why plaintiff did not see the train when he looked the first time in the direction from which it approached. [Ed. Note.-For other cases, see Railroads, Dec. Dig. § 347.*] Bailey, J., dissenting. En Banc. Error to District Court, City and County of Denver; Peter L. Palmer, Judge. Action by Samuel L. Nichols against the Chicago, Burlington & Quincy Railroad Company and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded on rehearing. Tolles & Cobbey, for plaintiff in error. Henry McAllister, Jr., Wolcott, Vaile & Waterman, E. N. Clark, and W. W. Field, for defendants in error. On Rehearing GABBERT, J. Plaintiff in error brought an action to recover damages resulting from employés of defendant over a track belongbeing struck by an engine operated by the ing to it within the limits of the city of Denver. At the close of the testimony on the part of the plaintiff, the court directed a verdict for the defendant, upon the ground that the evidence of plaintiff disclosed that his contributory negligence was the proximate cause of his injury. The plaintiff brings the case here for review on error. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexe In our former opinion, we held that the question of contributory negligence of plaintiff should have been submitted to the jury for determination. Upon petition for rehearing by defendant, our attention was particularly directed to the proposition that from the facts recited in the opinion it appeared that the statement of plaintiff to the effect that he stopped, looked, and listened before attempting to cross the track could not be true, and for this reason, and after having decided Westerkamp v. C., B. & Q. R. R. Co., 41 Colo. 290, 92 Pac. 687, where that question was involved, we granted a rehearing. We find, however, upon a re-examination of the record, that the occurrences immediately preceding the act of plaintiff in crossing the track of the defendant company were somewhat different from those recited in the original opinion. The facts presenting the questions we are called upon to determine are substantially as follows: Plaintiff was injured in attempting to cross the track of defendant at the intersection of Page street and River avenue. Page street runs east and west, and River avenue north and south. The track of defendant is on River avenue. Plaintiff resided on Page street a short distance east of River avenue, and in the early morning, but when it was perfectly light, started west on Page street. He testified (quoting from the abstract): "About 10 or 12 feet before I reached the crossing of Page street with the railway, I stopped. As I came up that way I was facing north, and looked to the south, and near there was a train coming along here (indicating), and leaving this switch here, and switching onto what is called the Lyons track, and so I thought I was perfectly safe and there was no danger in view. So I walked along, and as I faced north I looked north that way (indicating), and observed there was nothing. I was looking north on a straight line along the railroad, and I seen there was nothing, and again started out walking up the track, very close to it, and looking ahead. At that time the train had moved and was whistling and ringing the bell, and blowing off steam with a tremendous roar, and the smoke from the engine kind of fell to the ground and spread out and made a kind of fog around that way, so I could not see distinctly just how the conditions were. I am speaking now of the engine on the Lyons track." started to cross, that it was 8 or 10 seconds from the time he first looked until he stepped between the rails, and when on the track looked to the south a second time, and discovered an engine within 50 or 60 feet of him, backing at a high rate of speed, with the brakes applied so firmly that the wheels were sliding on the rails and the fire flashing. He endeavored to get off the track, but was struck, and badly injured. There was no lookout on the rear of the engine, and no bell was rung or whistle blown. From other testimony it appears that this engine was following closely behind the train being switched to the Longmont track, and as soon as the switch was turned, which was immediately after the train cleared the main track, it was run in the direction of plaintiff. The distance from the point where plaintiff was struck to the Longmont switch is 685 feet. The speed of the engine was estimated at from 25 to 45 miles an hour. A witness on behalf of the plaintiff testified that he was standing near the switch, and that after the engine passed that point about 200 feet its speed was not less than 25 miles an hour. He also says that its whistle was not blown, or bell rung, and that the engine which had switched the train upon the Longmont track was whistling and blowing off steam. It appears from the testimony that, from the point where plaintiff was standing when he looked south, which was in the direction from which the engine came which collided with him, he could not see that it was closely following the train which was being switched to the Longmont track. From the marks on the rails which were examined just subsequent to the injury of plaintiff, it appears that the engineer endeavored to stop the engine by applying the brakes and reversing it, at a point about 90 feet distant from the place where it collided with the plaintiff, and that it slipped along the track something like 110 feet beyond the point where plaintiff was struck, or, in all, a distance of about 200 feet. The following diagram will aid an understanding of the facts. Point 5 is where the plaintiff was struck. Point 1 is the Longmont switch. The engine which collided with plaintiff was following the train being switched south of point 1. The distance between points 1 and 5 is 685 feet. The ordinances of the city prohibited trains from running in the locality where In our former opinion we stated that when plaintiff was injured at a greater rate of plaintiff was within 10 or 12 feet of the speed than 10 miles an hour. These orditrack he looked to the south, the directionnances also require the defendant company from which the engine came which collided to maintain gates or station a flagman at with him, and then started to walk across the Page street crossing. These requirements the track. It will be observed from the quo- had not been observed by the defendant at tation that this was not correct, in that he the time of plaintiff's injury. It appears appears to have walked in a northerly direc- that many people are in the habit of crosstion along and near the track before starting ing the track on Page street. to cross it. Continuing his statement regarding his movements after he had walked along and near the track, he states, in substance, as we understand the record, that he then Though backing an engine through a city at a speed far in excess of that prescribed by the ordinances and neglecting to give warning of its approach by not ringing the travelers upon intersecting highways are mutual and reciprocal, and no greater degree of care is required of one than the other. True, the railroad company has the right of precedence at such crossings; but both parties, in the exercise of their respective rights, are nevertheless required to exercise reasonable care in enjoying them—the one to avoid inflicting injuries, and the other to avoid being injured. A person attempting to cross a railroad track at a public crossing in a city has the right to expect that the railroad will give the signals required by law to warn him of the approach of a train, and that it will not be run at an excessive and dangerous rate of speed, and if he is without fault, and such neglect and act on the part of the road results in his injury, then he can recover. Texas & Pac. Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132; C. & E. I. R. R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761; Cleveland, C., C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N. E. 985. So that, in determining the degree of care which a pedestrian about to cross a track at a public crossing in a city must exercise, the general rule is that the pedestrian, who does not know of the negligence of a railroad company in running its train at an unlawful rate of speed and in failing to give the required signals of its approach, and such want of knowledge is not the result of his failure to exercise a reasonable degree of care, is only required to exercise that degree of care which ordinarily prudent persons will exercise when the railway company is also exercising the care which the law imposes upon it, in the operation of its trains at street intersections. bell or blowing the whistle is negligence, it tions, rights, and duties of railroads and does not absolve pedestrians from the exercise of care to avoid injury therefrom. C., R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286; Schmidt v. Mo. Pac. Ry. Co., 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196; Gahagan v. Boston & Maine R. R., 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426. So that, although the record in this case discloses that the defendant was negligent, it is not liable unless such negligence was the proximate cause of the injury to plaintiff. The trial court held that the negligence of plaintiff was so clearly established that he could not recover, and instructed the jury accordingly. The first important question to determine is whether or not this ruling was correct. In so doing, we must assume that the evidence establishes all facts which it tends to prove, and, in passing upon it, must make every inference of fact therefrom in favor of the plaintiff which the jury would have been warranted in finding in his favor. Donohue v. St. L., I. M. & S. Ry. Co., 91 Mo. 357, 2 S. W. 424, 3 S. W. 848. If, when so considered, it appears the jury might have found that plaintiff was not guilty of contributory negligence, which was the proximate cause of his injury, then the ruling of the trial court under consideration was wrong; otherwise, right. Necessarily every case of this character must depend upon its own circumstances, and whether or not a proper degree of care has been exercised by a plaintiff is dependent more or less upon the danger reasonably to be anticipated. A pedestrian about to cross a railroad track at a street intersection is required to exercise that degree of care in looking out for approaching trains which a reasonably prudent person would have exercised under similar circumstances. If he does not, and his failure in this respect is the proximate cause of his injury, then he is guilty of contributory negligence, and cannot recover. Colo. Central R. R. Co. v. Holmes, 5 Colo. 197; Liutz v. Denver City Tramway Co. (Colo.) 95 Pac. 600; Wichita & Western R. R. Co. v. Davis, 37 Kan. 743, 16 Pac. 78, 1 Am. St. Rep. 275. Plaintiff knew he was approaching a railroad crossing. He says he looked just as the train was clearing the main track, and there was no engine in sight approaching the point where he intended to cross. That the engine was behind this train is undisputed, and it appears that at the time he looked he could not see it because of its position, so that at the time he was approaching the track, and at the time he looked to the south the first Cases frequently arise wherein it becomes time, the track was clear for 685 feet in the the duty of the trial court to determine the direction from which the engine came which question of the negligence of the plaintiff collided with him. Within a very short time as a matter of law, but those are cases after he looked he stepped upon the track, where the testimony will allow no other and then for the first time discovered the eninference; and hence it follows that, where gine approaching him so near and at such a the question of negligence depends on a high rate of speed that he was unable to state of facts from which different minds avoid being struck by it. Just how much may honestly draw different conclusions on time elapsed between the time when he first that issue, the question must be submitted looked south and when he stepped upon the to the jury for determination. Colo. Central track does not appear, but it could not have R. R. Co. v. Martin, 7 Colo. 592, 4 Pac. 1118; been very long, because he says he stopped Lord v. Pueblo S. & R. Co., 12 Colo. 300, 21 10 or 12 feet from the track, then walked Pac. 148; Solly v. Clayton, 12 Colo. 30, 20 along and near it before attempting to cross Pac. 351; D. & R. G. Ry. Co. v. Spencer, 27 but the time which it would take the engine Colo. 313, 61 Pac. 606, 51 L. R. A. 121. There to traverse 685 feet, running at the rate of is no doubt about this proposition, but the from 25 to 45 miles an hour, would only redifficulty arises in applying it. The obliga-quire a few seconds. It is true that had |