OPINION OF THE COURT.
While there are numerous assignments of error, the majority of them relate to the same proposition and will therefore be considered as one general assignment.
*596 1 2 *5951. The appellant contends that the conduct of the deceased. Antonio Padilla, was the proximate cause of the accident and of his death and precludes any recovery by the plaintiff. The law governing the duty of a traveler upon a public road approaching a railway crossing is too well settled to need any extended discussion at this time. It is settled that it is the duy to approach cautiously and carefully, using his faculties of sight and hearing. Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Chicago & St. Paul Ry. Co., 114 U. S. 615; Northern Pac. Railroad Co. v. Freeman, 174 U. S. 179; Weber v. N. Y. etc. Railroad Co., 58 N. Y. 45; Oklahoma City v. Reid, 33 L. R. A., n. s., 1115, Note. Failure on the part of *596the deceased or injured person so to exercise due. care amounts to contributory negligence on his part and will undoubtedly bar a recovery. Northern Pac. Railroad Co. v. Freeman, cited supra. In this jurisdiction the burden of showing contributory negligence is on the defendant. “In the courts of the United States,, where the just and sensible rule obtains that the-burden of showing contributory negligence is on the defendant, the plaintiff in an action for damages for the death of one killed at a railroad crossing, is not under the-burden of showing a lack of contributory negligence on the part of the deceased; but, after he had shown negligence on the part of the railway company adequate to account for the accident without any fault on the part of the deceased, he has established a prima facie right of recovery.” Thompson on Negligence, sec. 1622, (2nd ed).
3 It is also too well settled to allow of discussion that. in the absence of evidence to the contrary there is a presumption that deceased stopped, looked and listened. Baltimore & Potomac R. R. Co. v. Landrigan, 191 U. S. 461, and cases cited therein. This presumption is founded on the law of nature, that is, the instinct of self-preservation. In the absence of any evidence as to-what the deceased did just prior to the accident it is never to be presumed that he was negligent. In Northern Pacific Railroad Co. v. Spike, 121 Fed. 44, the court uses the following language: “No one was with the deceased or witnessed his movements and the presumption prevails that he exercised ordinary care in approaching this crossing and that he would.not have been killed but for the-culpable negligence of the defendant in neglecting to give-timely warning at the train’s approach. The conditions-prevailing at this crossing at the time of the accident were such as to make it imperatively necessary for the safety of travelers for the railway train to give the statutory signals of approach.” Further on, in the same opinion, the court adds: “Nor is this presumption applied only when no one witnesses the accident. It has its application in all cases and majr be strong enough to overcome the testimony of an eye witness.” See, also, McGee-*597v. Kennedy’s Adm’r., 66 Fed. 502; Baltimore & Ohio R. R. Co. v. Griffith, 159 U. S. 603; Grand Trunk R. R. Co. v. Ives, 144 U. S. 408. “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 fact is for the jury. It is also where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the courts.” Grand Trunk R. R. Co. v. Ives, cited supra; Gardner v. Mich. C. R. R. Co., 150 U. S. 349; Oklahoma City v. Reid, 33 L. R. A. n. s. 1117, Note. In the case at bar the appellant contends that the evidence relating to what happened just prior to and at the time of the accident established contributory negligence on the part of the deceased as the approximate cause of his death to the extent that it became the duty of the court to pass upon the same as a matter of law and to instruct the jury to return a verdict for the appellant and that the court therefore erred in overruling appellant’s motion for a peremptory instruction to that effect. The rules applicable to cases of this character being definitely settled in this jurisdiction, it only remains for us to consider the facts as disclosed by the evidence. With this end in view we have set out all -of the evidence having any bearing upon this question, in the statement of facts. A careful consideration of this evidence fails to disclose that there is any positive evidence that the deceased, Antonio Padilla, was guilty of contributory negligence. The appellant seems to rely principally upon the testimony of the witness B,amona Gabaldon as establishing the fact that the deceased failed to exercise due care in approaching the railway crossing. Giving this testimony its full weight it can. only by inference establish any contributory negligence on the part of the deceased. While it is true that the evidence of the claim agent, offered in behalf of the appellant, says that the deceased could have seen the approaching engine for some distance, if he had looked in that direction, at two distinct points, there is also evidence in the record (set cut in the statement of facts) tending to establish the fact *598that at other points along the line of his approach to the track his view was obstructed by trees, weeds and an irrigation ditch. No witness testified that they saw deceased at all times while he was approaching the railway crossing. It is also in evidence that the engine which caused the accident was running light at a high rate of speed, making very little noise, and that no whistle was sounded or bell rung until the engine was practically upon the deceased. In view of this evidence it can, therefore, well be said that reasonable men migh draw either conclusion therefrom. The motion for peremptory instruction on behalf of the appellant was, therefore, properly denied.
5 2. Appellant also complains that the court failed to properly instruct the jury upon the question of-contributory negligence. An examination of the instructions given clearly discloses that the court in its instructions, both as to burden of proving contributory negligence and as to the presumption that due care and caution was exercised by the deceased in approaching the crossing, fully and fairly express the law applicable to this case.
*599 6 *5983. In its fourth assignment of error the appellant complains of the action of the court in admitting evidence as to the changed conditions in the immediate vicinity of the crossing after June 28, 1909, the date of the accident, for the reason that evidence of such changed conditions, when caused by the defendant company, was received by the court as an admission of consciousness of m antecedent negligence. “Accordingly, it is conceded in almost all courts,, that no act in the nature of repairs, improvements, substitution, or the like, done after the occurrence of an injury, is receivable as evidence of a consciousness, on the part of the owner, of negligence, connivance, or other culpability in causing the injury. There may, of course, be other evidential purposes for which the acts in question may be relevant; in that event they are to be received, subject to a caution restricting their use to the specific proper purpose * * * * * Again, since the condition of a place or a thing at the time of *599an injury may always be evidenced by showing its condition before or after that time, provided no substantial change has occurred (post-sec. 437) the description of the condition of the place subsequent to the injury may necessarily involve a mention of the fact of repairs, but this use of the fact .should be guarded against the misuse for the forbidden purpose. Furthermore, the failure to observe a precaution required by law, may, if unexcused, be m itself a ground of liability, though it is sometime dealt with in terms of a rule of evidence.” Wig. Evidence, Yol. 1, sec. 283. “The evidence upon the question of negligence in this i^tance is not of that satisfactory character which authorizes us to declare that the judgment should be affirmed, although incompetent evidence was admitted. If, therefore, we find incompetent evidence was permitted to go to the jury over the objection of the defendant, we must reverse the judgment.” The evidence improperly admitted' in the case cited was that appellant changed and repaired the crossing subsequent to the accident, but that it was offered for the purpose of showing antecedent negligence there can be no' doubt, and the large number of cases cited in the notes to the case are all cases in which like evidence was offered for the purpose of showing prior negligence. Terre Haute Ry. Co. v. Clem., 18 Amer. St. R. 45. The above are undoubtedly correct statements of the rule as to this class of evidence. An examination of the record in the case at bar clearly discloses that the evidence complained of was not admitted or received by the court for the purpose of showing consciousness on the part of the defendant company of antecedent negligence, but, on the contrary, it clearly appears that the evidence was merely preliminary for the purpose of identifying a plat which was subsequently introduced and that such evidence was strictly limited in its effect when so offered. There being no error apparent in the record, the judgment of the lower court is affirmed.