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she looked again south for the approach of the car from that drection before entering upon the eastern track.

We think there is testimony in the record to show that the motorman on the car which caused the accident was immediately before the accident, and perhaps at the time of it, looking at the wagon or its driver, under the impression that there was danger of striking the wagon, and that he was not at the time of passing the wagon looking along the track to see whether any one was upon it or not.

We think the evidence shows that she was attempting to cross the track under dangerous and critical circumstances; and, if so, it was her duty to watch very closely for the movement of the cars, which she knew were coming in both directions, and more especially as she was checked in her progress by the intervening wagon.

We think that under the evidence there might have been a difference of opinion as to whether the motorman .was guilty of negligence in watching the wagon, instead of the track ahead of him, and also that there might have been a difference of opinion as to whether the lady should not, under the circumstances, being checked in her passage, have stopped before entering upon the east track to see whether she could cross that track before the car which she had seen coming would reach her.

These questions of negligence upon the part of the motorman and contributory negligence upon the part of the plaintiff should have been left to the jury, under

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proper instructions; and it was not, therefore, a case for peremptory instructions.

A motion for peremptory instructions is not one which addresses itself to the discretion of the court, but one which presents a question of law; and the crucial question in the case is whether there is any determinative evidence upon which the jury must base a verdict in favor of the party who produces it.

It is said in the case of Grand Trunk Railroad Company v. Ives, 144 U. S., 417, 12 Sup. Ct., 679, 36 L. Ed., 485, that the terms "ordinary care" and "reasonable prudence" and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and say whether the conduct of the parties in that case is such as would be expected of reasonably prudent men under a similar state of affairs. When a given state of facts is such as reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusions from them that the

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question of negligence is ever considered one of law for the court.

To support this proposition, a large number of cases are cited.

Substantially the same rule is laid down in District of Columbia v. Moulton, 182 U. S., 577, 21 Sup. Ct., 840, 45 L. Ed., 1237, in these words: "The question of negligence or no negligence is one of law for the court, where but one inference can reasonably be drawn from the evidence.

This case approves also the language in the case of Warner v. B. & O. Ry. Co., 168 U. S., 339, 18 Sup. Ct., 68, 42 L. Ed., 491, as follows: "It is only where the evidence is such that reasonable men may fairly differ as to the deductions to be drawn therefrom that the determination of the fact of negligence should be left to the jury."

In Traction Co. v. Carroll, 113 Tenn., 514, 82 S. W., 313, it is said: "The rule is that any act must be held negligence in law, or negligence as matter of law, where no reasonable difference of opinion can exist among men as to the negligent character of the act."

The rule as laid down in the case of Tyrus v. Railroad Co., 114 Tenn., 579, 86 S. W., 1074, is substantially: "When there is no controversy as to any material fact, there is nothing for the jury to find, and the question is then solely one of law for the court; and in such a case the court may instruct the jury to return a verdict in accordance with his view of the law applicable to such as

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certained or uncontroverted facts. There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence or any legal doubt as to the conclusion to be drawn from the whole evidence upon the issues to be tried."

And again: "If there is any dispute as to any material fact, the case must go to the jury; if there is no dispute as to fact, the question is one of law for the court."

By material evidence is meant evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with the other evidence, be determinative of the case.

But a conflict of the evidence upon a detached or separate feature or fact, even though it is material, should not of itself prevent the giving of peremptory instructions. Facts are frequently material which are by no means determinative; and facts are frequently material in themselves, but become immaterial when taken in connection with other facts.

To illustrate: We take the common case of a person injured in a railroad accident. It may be a disputed and controverted fact which one of two roads did the injury, and it is therefore a material question to determine which one did it. But it may further develop that, no matter which road it was, there was gross contributory negligence which proximately caused the injury, and the

Traction Co. v. Brown.

injured party could not, therefore, recover in any event. In such case, the court should give peremptory instructions against the plaintiff notwithstanding the conflict of evidence as to who caused the injury or whether the road was itself guilty of negligence. Other illustrations could easily be given.

So that the disputed fact must not only be material, but in itself or in connection with other facts it must be determinative of the real issue and the merits of the case.

As bearing upon the question of the plaintiff's contributory negligence, it has been held that it is the duty of a pedestrian, alighting from one car on one track, to fook and listen before crossing an adjoining track. Creamer V. West End R. R. Co., 156 Mass., 320, 31 N. E., 391, 16 L. R. A., 490, 32 Am. St. Rep., 456; Doty v. R. R. Co., 129 Mich., 464, 88 N. W., 1059; Greengard v. St. Paul R. R. Co., 72 Minn., 181, 75 N. W., 221.

And the rule applies to one who crosses behind a car onto another track. McCarth v. R. R. Co., 120 Mich., 400, 79 N. W., 631; Newark R. R. Co. v. Block, 55 N. J. Law, 605, 27 Atl., 1067, 22 L. R. A., 374; Blaney v. Traction Company, 184 Pa., 524, 29 Atl., 294.

And also to a pedestrian passing behind a wagon moving along one track to cross another track running parallel. Bethel v. Street Ry. Co., 8 O. C. D., 310.

In the case of Newark v. Block, supra, it was held that, where obstacles temporarily intervene to prevent observation, it is the duty of the pedestrian to delay