(after .stating the facts). (1) We think the court should not have given ¡appellee’s instruction numbered 1. It was not applicable to the issue in this case. It was not contended that appellee was a trespasser, ,and his right to cross the railroad tracks at the public crossing was not denied. But this right, of course, was not -an absolute one. Under this instruction the jury might well have inferred that appellee had the right-of-way and that there was, therefore, no question as to his contributory negligence for the consideration -of the jury.. *42The rights of the traveler and of the railroad at public crossings are reciprocal and have been discussed in many decisions of this court, and were correctly stated in the trial 'below in other instructions given to the jury, but these instructions are in conflict with this instruction numbered one. The jury should have been permitted to s-ay whether or not appellee and his companion were guilty of contributory negligence in driving upon the railroad track and should not have been told that appellee was not a trespasser and had the lawful right to be upon the track at the time of his injury. In the recent case of St. Louis, I. M. & S. Ry. Co. v. Transmier, 106 Ark. 530, the -court discussed the reciprocal duties of the traveler and the railroad at a public -crossing, in which case it was -said (.after citing a number -of cases, .on this subject):
(2) “The doctrine of those cases is that ‘the duty of railroads is to exercise reasonable and ordinary care to observe travelers about to -cross at a highway crossing’ and it should refrain from doing any heedless or unnecessary act calculated to frighten teams of travelers rightfully approaching -crossings.”
(3) This duty the railroad must perform under all circumstances, but the duty also rests upon the traveler not to unnecessarily or negligently place -his horse in a position where it may become frightened by the escape of steam, or other noises, which engines necessarily make, even when they are being operated with due -care.
(4-5) We think, too, that the third instruction given at the request of appellee was erroneous. Under this instruction, th-e jury w-as not permitted to pass up-on the question -of appellee’s contributory negligence in jumping from the wagon. This question of fact should have been passed upon by the jury. Had -appellee remained in the wagon he would not have been hurt, yet the fact that he jumped and was injured did not, as a matter of law, constitute contributory negligence. Where one acts in an emergency, in the presence of an impending danger, he is not held to the exercise of that degree of care which would be -exacted of him if there was an opportunity for *43reflection ¡and the formation of a deliberate judgment. It is not necessarily a question as to whether one .choice of conduct proves more hazardous than another would have been; but the question is whether or not the choice in fact made was a negligent one under the circumstances of the particular case, and this is a question of fact for the jury and not one of law for the court. St. Louis, I. M. & S. Ry. Co. v. Tuohey, 67 Ark. 209; Woodson v. Prescott & N. W. Ry. Co., 91 Ark. 388; St. Louis, 1. M. & S. Ry. Co. v. York, 92 Ark. 554.
The authorities are conflicting upon the right to prove the loss of profits to the business of an injured party occasioned by bis inability, because of his injury, to give personal attention to his business. The case of Wallace v. Pennsylvania Rd. Co., 52 L. R. A. 35, involved this question, and there is an extensive case note which reviews a great many authorities upon the .subject. In the case cited the court said:
“Profits derived from capital invested in business can mot be considered as earnings, but in many cases profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner.”
The business of the plaintiff in that ease was that of operating a boarding house, and it was shown that by reason of her injury she was thereafter unable to conduct that business. Appellee’s business was not destroyed, and this is not a ¡suit for damage done to that business or for any loss of profits sustained by the owners.
(6) It is permissible always to prove one’s capacity for and disposition to work, and any special qualifications which one has which tends to increase his earning capacity may ¡be shown. And it was, therefore, competent here to show'what appellee’s duties were in connection with his business; what his qualifications were for discharging those duties; what the services of one *44similarly qualified would have been worth to this business ; and the extent to which appellee had been rendered unable to discharge his customary duties. A somewhat ■similar question was involved in the case of St. Louis, I. M. & S. Ry. Co. v. Osborne, 95 Ark. 310, and the rule to be 'observed in these cases was there discussed. But we think one suing for losses to his business should not be permitted to go further than was there authorized; and we conclude, therefore, that the court improperly admitted the evidence tending to show the accumulated profits of appellee’s business. These profits resulted in part from invested capital and in part from the labor and services of a copartner, and the injury sued for has occasioned no impairment of the earning capacity of either, and appellee should have been permitted to show nothing more than the decreased value of his own services.
For the errors "indicated the judgment will be reversed and the cause remanded for a new trial.