consideration the fact that those now using the track may be equally well accommodated in another manner, the ordinance for its removal is eminently reasonable. In Reinman v. Little Rock, 237 U. S. 171, 50 L. Ed. 900, 35 Sup. Ct. 511, the question of municipal power to declare what shall be considered a nuisance is discussed as follows: "While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the law-making power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment." In Delaware, etc., R. R. Co. v. Buffalo, 158 N. Y. 266, 53 N. E. 44, the railway company had constructed certain abutments and piers in the city of Buffalo, to support a portion of their track. These abutments occupied about one-half of the street. In discussing a resolution of the common council ordering the removal of these abutments and piers the court said: "It was urged by the learned counsel for the plaintiff that the city authorities have no right to forcibly remove this structure over the street. That depends upon the question whether or not it was an encroachment upon the public right, and an obstruction. If it was, the city had a right to remove it. If, by the increase of the population, or the increase of public travel, the street had become dangerous in consequence of the existence of the abutments and piers, the city would be clearly liable for any damages which persons, in the lawful use of the highway, sustained by accidents due to the presence of such obstructions in the street. * It is equally clear that the plaintiff cannot justify the occupation of the street upon the ground that the municipal authorities originally consented to the erection of the structure. The common council of the city has no power to surrender a public street to the use of a railroad corporation." The Supreme Court of the United States, in N. Y., etc., Ry. Co. v. Bristol, 151 U. S. 556, 38 L. Ed. 269, 14 Sup. Ct. 437, in discussing the power of the State Railroad Commission to require the railway company to remove a grade crossing, said: "It is likewise thoroughly established in this court that the inhibitions of the Constitution of the United States upon the impairment of the obligations of contracts, or the deprivation of property without due process, or of the equal protection of the laws, by the states, are not violated by the legitimate exercise of legislative power in securing the public safety, health and morals. The governmental power of self protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulation in particulars essential to the preservation of the community from injury. Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247." Under the principles laid down in the authorities quoted, it is clear that the ordinance here being attacked by the railway company is a reasonable and constitutional one. The company must, therefore, give way to the paramount interest of the public. Judgment reversed and cause remanded with instructions to dismiss it. Decision en banc. No. 8763. NUCCI v. COLORADO & SOUTHERN RAILWAY COMPANY. CONTRIBUTORY NEGLIGENCE-Traveler at Railway Crossing. The failure of a railway company to sound the whistle or ring the bell, on approaching a highway crossing, does not relieve the traveler of the duty to look and listen, before attempting to pass. If from the first point of view observation is obstructed, the traveler as he passes to the intersection must again look, where a view may be had. A traveler who attempts to cross a railway without this precaution, where observation is practicable and no affirmative act of the railway company creating an appearance of safety is shown, must be declared negligent. The evidence examined and the action of the court below directing a verdict for defendant approved. The circumstance that the railway crosses another very near to the highway crossing and that under Rev. Stat. sec. 5499, the train was required to come to a stop, was held immaterial. Error to Denver District Court, Hon. J. E. Little, Judge. Mr. F. W. SANBORN and Mr. GEORGE ALLAN SMITH, for plaintiff in error. Mr. E. E. WHITTED and Mr. THOMAS R. WOODROW, for defendant in error. Chief Justice White delivered the opinion of the court. IN a suit by Nucci against the Colorado & Southern Railway Company, in damages for injuries sustained by him through the alleged negligence of the defendant, he was non-suited and brings the case here for review. The negligence of the defendant in failing to ring its bell, or blow its whistle, is conceded, and the sole question presented for determination is whether the plaintiff, on the undisputed facts, was guilty of contributory negligence. The damages were caused by a freight train striking the plaintiff while he was attempting to cross defendant's railroad tracks with his team and wagon. The acts of negligence alleged were excessive and dangerous rate of speed of the train, and failing to ring the bell or blow the whistle, on approaching the crossing where the accident occurred. |