majority">Smith, J.

Appellee recovered damages to compensate- an injury sustained by him as a result of a collision between an automobile in which be was riding and one of appellant’s street cars.

Among other instructions one was given, of tbe court’s own motion, which reads as follows:

“3. If you believe from a fair preponderance of the evidence that the plaintiff, when he started across the street at the intersection of Seventeenth and Cherry streets, saw the street car some distance away, and you believe from a fair preponderance of the evidence that plaintiff had time to cross the tracks of the defendant company in time to avoid a collision with the street car had the street car been running at a reasonable rate of speed, and you find that the street car was running at a negligent and unusual rate of speed, so that plaintiff could not cross the track safely within the time, then you should find for the plaintiff. ’ ’

■This instruction, in effect, makes the speed of the street car the test of liability. It permits a recovery upon a finding that if,- when appellee started across the street, he saw the car, and then had time to cross the street in safety, provided the street car was not running at a negligent rate of speed. This instruction gives appellee a preferential right to the use of the street, and absolved him from any duty to exercise care for his own safety except to determine, when he first saw the street car some distance away, whether he could safely cross the street, provided the car was not running at a negligent and unusual rate of speed. It imposed upon the motorman alone the duty of exercising care to avoid the collision; provided appellee was correct in his surmise that he had time to cross in safety, if the motorman did not run the car at a negligent or unusual rate of speed.

The instruction is in conflict with other instructions which declared the duty to exercise care to b‘e reciprocal, and which told the jury that there could be no recovery, if the collision was due to appellee’s contributory negligence. No other prejudicial error is called to our attention.

For the error in giving this instruction, the judgment of the court below will be reversed and the cause remanded for a new trial.

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