MR. COMMISSIONER AYERS
prepared the opinion for the court.
Plaintiff seeks to recover damages for personal injuries alleged to have been caused' by the negligent driving of defendant’s automobile upon and against him, by Allen Gordon, a chauffeur of defendant, while the said Gordon was acting within the scope of his service. The defendant’s answer admits the ownership of the automobile in him, the service of Gordon, the collision of his automobile with plaintiff, the injury of plaintiff, and alleges that such injury was proximately caused by and due to the contributory fault and negligence of plaintiff. The allegation of contributory negligence is denied by the reply. No challenge of any pleading was made, either in the trial court or here. The trial was had in the district court of Silver Bow county, and resulted in a verdict for plaintiff, upon which judgment was entered. This appeal is from the judgment and from an order denying a new trial.
It was briefed and argued here that defendant’s negligence consisted in his driving other than on the right side of the street, in his excessive rate of speed, and his failure to sound an alarm.
The testimony on behalf of plaintiff shows that the accident causing plaintiff’s injury occurred about 11 o’clock on the night of August 20, 1918, oon Granite Street, in the city of Butte; that defendant was traveling 'westerly on Granite *597Street in a Cadillac automobile driven by his chauffeur; that it was raining “very hard” and had been for some time; that plaintiff came out of a garage on the north side of the street, looked up and down the street, saw nothing—however, he could see only about one-half block each way on account of the rain—and that he then proceeded south across the street on a run; that at the center of the street he was struck by defendant’s car, thrown into the air, coming down on the hood of the car, rolled off on the fender and then on the street; that the car was traveling between thirty and thirty-five miles per hour; that it was muffled so as to make no noise and no alarm was sounded; that a street-ear track was located in the center of'the street and the street was of sufficient width for a driveway on each side of the track. The testimony then detailed the injuries of plaintiff and the damage he had suffered.
That this testimony established the injury and damage of plaintiff (injury, however, was admitted by the answer), and that the negligence of defendant was the proximate cause thereof, and that a prima facie ease had been made, was inferentially admitted by defendant, for he did not move for a nonsuit, a dismissal, a judgment, nor ask for any other relief when plaintiff rested his ease. Likewise, we must infer that defendant was mindful of the rule that contributory [1] negligence, unless it is to be inferred from plaintiff’s testimony, is a matter of defense to be established by a preponderance of the evidence. (Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Hunter v. Montana Cent. Ry. Co., 22 Mont. 525, 57 Pac. 140; Howard v. Flathead Ind. Tel. Co., 49 Mont. 197, 141 Pac. 153; Neilson v. Missoula Creamery Co., 59 Mont. 270, 196 Pac. 357; Lampe v. Jacobsen, 46 Wash. 533, 90 Pac. 654.)
Defendant’s testimony is, in effect, that he was not traveling to exceed twenty miles per hour when the accident occurred and that he was pursuing a course on the north or right side *598of the street. In other material matters it does not differ substantially from plaintiff’s testimony. However, in some instances, it aids plaintiff’s theory of negligence, for example: It discloses that the windshield was blurred by rain, so that only the outline of a pedestrian could be seen through it; that plaintiff rolled off the right fender of the car on to the street, landing in the middle of the street-car track.
At the close of the evidence, defendant moved for a directed [2] verdict upon the ground that plaintiff’s own negligence proximately contributed to his injury. Under ordinary conditions, where a person receives injuries by an automobile, when he is crossing a street, mid-block, that would be the proper result, for it would seem that he was walking the street with closed eyes and inattentive mind—neglecting his own safety; but in the instant case we must consider the hour of night, the apparent absence of vehicles on the street, the-rainstorm, and all of the existing conditions at the time of and immediately prior to the accident, in order to determine whether the plaintiff acted as a reasonably prudent and cautious man would act under like or similar circumstances, which is the test in a case of this character. (Barbour v. Shebor, 177 Ala. 304, 58 South. 276; Ivy v. Marx, 205 Ala. 60, 14 A. L. R. 1173, 87 South. 813; Lampe v. Jacobsen, 46 Wash. 533, 90 Pac. 654; Hannigan v. Wright, 5 Penne. (Del.) 537, 63 Atl. 234; Simeone v. Lindsay, 6 Penne. (Del.) 224, 65 Atl. 778; Hennessey v. Taylor, 189 Mass. 583, 4 Ann. Cas. 396, 3 L. R. A. (n. s.) 345, 76 N. E. 224; 28 Cyc. 28.) Applying this test to the testimony, we must conclude that [3] the issue of contributory negligence is a fairly disputed question of fact, and therefore necessary to be determined by a jury. The rule is that, if the issue of contributory negligence is a fairly disputed question of fact, it must be resolved by a jury; on the other hand, if the evidence is clear and convincing so that reasonable men of fair and unbiased minds cannot differ as to its effect, there is nothing for the jury to determine, and the trial court should declare the *599result as a matter of law. (Massey v. Seller, 45 Or. 267, 77 Pac. 397; Zvanovich v. Gagnon & Co., 45 Mont. 180, 122 Pac. 272; Neilson v. Missoula Creamery Co., supra.)
According to the testimony on behalf of plaintiff and the [4] physical facts, plaintiff had passed the line of danger of defendant’s car—the driveway on the north side of the street-—which was the only place to expect cars coming from the east. Contributory negligence cannot be imputed to him when, under the surrounding circumstances, he had no reason to apprehend danger (Mahnken v. Monmouth County, 62 N. J. L. 404, 41 Atl. 921; Donnelly v. Cowen, 20 Misc. Rep. 100, 45 N. Y. Supp. 71; Texas & Pac. Tel. Co. v. Prince, 36 Tex. Civ. App. 462, 82 S. W. 327; 29 Cyc. 514); and certainly he would have no reason to apprehend an automobile proceeding along the street on any other place than the right-hand driveway. Therefore, it cannot be held as a matter of law that he. was guilty of contributory negligence. The decision of the question was properly in the province of, and submitted to, a jury.
The only questions involved by this appeal are whether or not plaintiff established negligence on the part of defendant, proximately causing his injury; and, did the evidence show the existence of contributory negligence as a matter of law— both of which questions are herein considered and answered.
We recommend the judgment and order be affirmed.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.