¶1I concur in the judgment and generally in the opinion, but as to proposed instruction Ho. II I think it was properly refused as being an incorrect exposition of the law. The proposed instruction makes identical the duty of one who is about to cross the right of way of a steam railroad with that of one who is about to cross the track of a streetcar line. From the nature of the business of steam railroads, from the character of the conveyances and of the motor power, from the necessity for swift transportation, from the fact that they carry the mails of the country, from the additional facts that the trains are of immense weight, that rapidity in locomotion is a high desideratum, that they cannot be easily and readily stopped, that they move upon their own right of way, that the number of them passing a given point is comparatively few—the rule of conduct made necessary to one who is about to cross their right of way, even upon the line of a public highway, has become crystalized into a single phrase. It is a well-recognized rule which requires the traveler, if necessary, for his own protection, “to stop and look and listen,” and imputes negligence to him if he does not; but this rule of Flemming v. Western Pac. R. R., 49 Cal. 257, of Glasscock v. Central Pac. R. R. Co., 73 Cal. 138, and of many other like cases, was by the" proposed instruction sought to be extended and made applicable to one who is about to cross the track of a street railroad operating upon a public highway; The distinction between the two kinds of public vehicles is too broad, the differences between their characters too substantial to justify their obliteration, and to impose upon the citizen occupying a highway, where his right is the same as that of the street-car company, a duty identical with that which is his when he attempts to cross the right of way of a steam railroad company. The *283proposed instruction was a clear attempt to place street railroad companies and steam railroad companies in this regard upon exactly the same footing, and for this additional reason it was properly refused.
¶2Temple, J., concurred.