after stating the facts, delivered the opinion of the court.

Appellant .requested the court to peremptorily instruct the jury to return a verdict in favor of defendant, which request was denied. The error predicated upon the refusal of the court to give this instruction is the only one assigned and relied upon by appellant for a reversal of the case. No testimony was offered by the railway company to rebut the evidence introduced by plaintiff showing negligence on the part of the company because of its failure to give the usual and customary warnings and signals as the train on the morning in question approached the crossing immediately preceding the collision which resulted in the injuries to plaintiff here-inbefore mentioned, but it relies solely upon the alleged contributory negligence of plaintiff to exonerate it from liability. Counsel for defendant in their brief say: “The rule is settled beyond dispute that it is the duty of the traveler upon a public highway, when approaching a railroad crossing, to look and listen in both directions for an approaching train, and if he fails’to discharge this duty he is conclusively presumed to be guilty of contributory negligence.” And they cite many cases in support of this doctrine. Conceding this to be the rule, can it be said, in face of the record in this case, that the plaintiff failed in any respect to strictly observe and follow this rule? Plaintiff testified that as he *453approached tbe railway crossing be was on the alert, and both looked and listened for approaching trains and that just before going upon the track he-“looked to the north, as well as to the south,” along the railroad track, but neither saw nor heard the approaching train. ■ Defendant insists, however, .that, while there was no oral testimony which rebutted or tended to rebut plaintiff’s evidence on this point, the physical conditions there, such as the location of the crossing with reference to that of the cut, the lay of the ground between those two points, and the contour of the land surrounding and in the immediate vicinity thereof, were of such a character that it not only rebuts plaintiff’s testimony, but conclusively shows that, had he looked and listened for the train at a point from 100 to 150 feet east of the crossing, or immediately before he started to cross the track, two of the places where he testified he did look and listened, he would have seen the cars as they emerged from the cut in time to have avoided the collision, and that his failure to do so was negligence on his •part, and the court should have directed a verdict for defendant as requested.

There is evidence in the record which, if true, shows that at the time plaintiff was crossing the track his horses had' slackened their gait and “were almost to a standstill,” and, in his anxiety “to get over,” he diverted his attention from the railroad track to his team, and at this juncture the collision occurred. A witness who saw the collision testified on this point in part as follows: “I saw the plaintiff as he was crossing the track. ... I saw his horses when they came upon the track. I was on a load of hay about one-fourth mile northeast of there. . . .1 noticed him go upon the track about time the train came from the cut. I saw his horses just as they come up onto the track, and then I heard a yell and a crash.” There is evidence in the record which shows that the picket fence mentioned in the foregoing statement of facts tended to obstruct plaintiff’s view of the track to the south as he was nearing the crossing on the occasion referred to. Quoting, in part, his own testimony ■ on this’ point, he says, referring to the fence: “Well, it is some obstruction to the *454track; of course it is.” Taking into consideration all of tbe foregoing facts and circumstances, as well as the advanced age of plaintiff, which to some extent must have dimmed his sight and impaired his hearing, his continuous lookout for the train, together with the further fact that it only took the train but a few seconds at most to traverse the distance from where it emerged from the cut to where the collision occurred, we' are not warranted in holding that as a matter of law plaintiff failed to exercise the same degree of care and diligence as would be expected of a reasonably prudent man acting under the same or similar circumstances, conditions, or state of affairs, and was therefore guilty of contributory negligence.

“When a given state of facts is such that 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 reasonable men must draw the same conclusion from them that the question is ever considered as one of law for the court.” (Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; Linden v. Mining Co., 20 Utah 134, 58 Pac. 355; Holland v. Oregon Short Line R. R. Co., 26 Utah 209, 72 Pac. 940.)

We are of the opinion, and so hold, that the question of contributory negligence was properly submitted to the jury, and that the court did not err in refusing to give the peremptory instruction asked for by defendant. (Bitner v. Utah Cen. Ry. Co., 4 Utah 502, 11 Pac. 620; Olsen v. O. S. L. & U. N. Ry. Co., 9 Utah 129, 33 Pac. 623; Smith v. Rio Grande Western Ry. Co., 9 Utah 141, 33 Pac. 626; Leak v. Railway Co., 9 Utah 246, 33 Pac. 1045; Dederichs v. S. L. C. Ry. Co., 13 Utah 34, 44 Pac. 649; Peck v. Oregon Short Line Ry. Co., 25 Utah 21, 69 Pac. 153.)

The judgment is affirmed, with costs.-