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Douglas, J., delivered the opinion of the

We think the learned judge erred in his finding that the defendant's servant was guilty of neglect of duty, and also in finding that the intestate's negligence was not the proximate cause of the accident. The duty of the driver of an electric car passing along a sparsely settled country road in the space between intersecting roads is not to be judged by the same rules with regard to speed which apply to the same car passing along the crowded street of a city. The care to be exercised is relative, and must be proportional to the danger reasonably to be apprehended at the time and place. Steik v. McNulta, 40 C. C. A. 357, 99 Fed. 138. The popular demand for electric cars rather than horse cars or omnibuses prevails at the present day because the former can carry more passengers, and at a more rapid rate, than the latter. In order to serve the public, these cars must be propelled as rapidly as safety will permit; and on long stretches of country road, where the statutes and town ordinances fix no limit to their speed, no given rate of speed is per se excessive. Kline v. Electric Traction Co. 181 Pa. 276, 37 Atl. 522. The duty of a traveler upon an unimpeded country road is to yield the use of the railroad track to an approaching car. The wilful and malicious obstruction of a street railway company in the use of its tracks is punishable as a misdemeanor. Gen. Laws 1896, chap. 279, § 65. The car cannot turn out, and so the traveler must. The conduct of the operator of the car may be lawfully predicated upon the expectation that the traveler will observe his duty in that regard.

The duty of the railroad company towards such travelers is not to stop its car when they appear, but to give them sufficient notice of the approach of the car to enable them to leave the track before the car arrives. Terre Haute & I. R. Co. v. Graham. 46 Ind. 239-245; West Chicago Street R. Co. v. Schwartz, 93 Ill. App. 387; McQuade v. Metropolitan Street R. Co. 17 Misc. 154, 39 N. Y. Supp. 335. If the car is going only at such speed as will give a traveler ample time to leave the track, after he sees the light or hears the signal of the car, before the car reaches him, he has nothing to complain of. It is not running at excessive speed with regard to him. Bethel v. Cincinnati Street R. Co. 15 Ohio C. C. 381, 8 Ohio C. D. 810. It is therefore plain that the distance at which the light of the car can be seen or the bell or whistle can be heard and understood by travelers, so as to enable them conveniently to leave the track-not the distance that the motorman can see ahead-is the standard by which the speed of the car should be regulated. As it is not the duty of the car to stop within the limit of the illumination of the headlight, its speed need not be restricted

court:

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This action is brought to recover damages for the death of the plaintiff's intestate, who was struck and mortally wounded by one of the defendant's electric trolley cars, which was coming towards the city, in the town of Johnston, about 8 o'clock, P. M., March 8, 1903. The place where the accident occurred was on Atwood avenue, a thinly settled country road 50 feet wide, having the car track located along one side, next to the sidewalk, leaving about 30 feet of unoccupied highway. The evening was dark and stormy, and the headlight and other lights of the car were lighted, and a person on the track approaching the place of the accident, and facing towards the car, had an uninterrupted view for at least 800 feet. The headlight enabled the motorman to distinguish objects upon the track with in a distance of about 25 feet. A witness, who, with his wife and child, were the only passengers on the car, testifies that the car at the time of the accident was going, as he thinks, at the rate of 20 miles an hour. In cross-examination he admits that he could not see through the windows, which were obscured by the weather; that his attention was taken up by the child, with whom he was playing; and that his estimate of the speed of the car was merely a guess. The motorman and conductor testify that the car was going at the rate of from 9 to 12 miles an hour, as was customary at that place. The motorman testifies that, looking carefully ahead, he first saw the intestate on his hands and knees, upon the track, facing the car, about 25 feet away; that he immediately applied his brake and reversed the power, but, notwithstanding these efforts, which were all that he could make, the car struck the man, threw him to one side of the track, and stopped about 20 feet further on. It appeared from the evidence of the physicians who examined the plaintiff's intestate at the hospital that he had been drinking spirituous liquor, but there is no direct evidence that he was intoxicated. He had been seen, shortly before the accident, walking in his usual manner on the road. Jury trial having been waived, the case was tried before a single judge in this division, who de cided that, while the plaintiff's intestate was negligent in approaching the car as he did, the defendant's servant was negligent in running the car so rapidly that, with the appliances at his command, he could not stop the car after the man was distinguishable by the headlight. And his conclusion was that the negligence of the defendant was the proximate cause of the accident. He therefore decided in favor of the plaintiff, and assessed the damages at $5,000.

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to the rate prescribed by such a necessity. ] to avoid the consequences of the intestate's

Such a general rule as that which the court announced is neither necessary nor reasonable as applied to the locality in question. In the particular circumstances of this case we are unable to see that the defendant's servant was guilty of any negligence. Negligence is the failure to provide for some condition or event which may reasonably be expected, and the motorman in this case, in the place where he was going, had no reason to expect that any pedestrian would remain upon the track after the lights of the car were plainly visible. Certainly he had no reason to anticipate that he would encounter a human being upon the track, crawling towards the car upon his hands and knees, and it was not his duty to run his car so as to provide for such a contingency. After the man was seen, it is not suggested that the motorman was guilty of negligence, as he used every means in his power to stop the car before the collision. Stelk v. McNulta, 40 C. C. A. 357, 99 Fed. 138; Murray v. Forty-Second Street, M. & St. N. Ave. R. Co. 9 App. Div. 610, 41 N. Y. Supp. 620. It may be added, also, that there is no evidence that upon the wet and slippery track the car could have been stopped in time if it had been proceeding at a very moderate rate of speed.

negligence, if by any care and foresight he could have done so. The intestate's negligence was not remote in point of time, but continuous and coefficient with the act of the company. The court says, in O'Brien v. McGlinchy, 68 Me. 552, 558: "But this principle would not govern where both parties are cotemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them." In Isbell v. New York & N. H. R. Co. 27 Conn. 393, 71 Am. Dec. 78, it is said: "The negligence of the plaintiff, if there has been any, was not the proximate cause of the accident. To be so, it must have been simultaneous in its operation with that of the defendants, of the same kind, immediate, growing out of the same transaction, and not something distinct and independent of a prior date, remotely related to the negligence of the defendants." In the case of Prue v. New York, P. & B. R. Co. 18 R. I. 360, 27 Atl. 450, the victim was proceeding to extricate himself from the danger, and could have escaped but for the independent mistaken act of the gateman after he saw the position of the traveler. If the traveler had remained upon the track, with the gates open, the case must have been decided differently. In one of the most reliable textbooks on the subject of negligence, the rule, Again, the court erred in holding that the as formulated by a writer in the Quarterly plaintiff could recover notwithstanding his Law Review, vol. 2, p. 507, is adopted as folown negligence. The doctrine of proximate lows: "The party who last has a clear opporcause, sustained by a long series of decisions tunity of avoiding the accident, notwithfollowing Davies v. Mann, 10 Mees. & W. standing the negligence of his opponent, is 546, as we have adopted it in this state, is considered solely responsible." 1 Shearm. clearly stated in Mahogany v. Ward, 16 R. & Redf. Neg. 165, § 99. The negligence I. 479, 27 Am. St. Rep. 753, 17 Atl. 860, and of the plaintiff's intestate did not consist in Prue v. New York, P. & B. R. Co. 18 R. I. walking upon the track, which he had a right 360, 27 Atl. 450. The plaintiff's counsel to do until the car approached, but in recites many cases in support of his contention maining upon it after the car was plainly that this case is governed by the rule. Some visible; and this negligence continued until of the cases cited make, as it seems to us, the car struck him. The opportunity for quite unwarranted applications of it, to the him to escape began when he could have seen extent almost of making a railroad company the car 800 feet away, and only ended a few responsible for damages to the heirs of a seconds before he was struck. His neglect suicide; but none go so far as would be nec- of this opportunity, as much as the apessary to absolve the plaintiff from contrib- proaching car, caused the accident. In Ranutory negligence in this case. Taking the dall v. Union R. Co. (R. I.) 59 Atl. 165, we words of Baron Parke in Davies v. Mann, held that a nonsuit was properly granted "the negligence which is to preclude a plain- where it appeared that the accident was tiff from recovering in an action of this na- cause by the failure of the plaintiff seasonture must be such as that he could by ordi- ably to turn off of the track after the car nary care have avoided the consequences of had reached a point where it could have been the defendant's negligence," as a guide, it is seen, or by the slipping of the horse on the plain that the plaintiff cannot recover; for hard snow. It has been held that a person her intestate, by ordinary care, could have riding between the rails of an electric street avoided the car, which was visible at a dis- railway upon a bicycle has the duty to look tance of 800 feet, no matter how fast it was out for and endeavor to avoid danger from going. It was just as much the duty of the the electric cars, and the negligence of a biplaintiff's intestate to avoid the conse-cycle rider who continued to ride on the quences of the defendant's negligence, if track of an electric car up to the very mothere was any, as for the defendant's servant' ment when he was struck, when, by the

slightest care and effort on his part, he could | who leaves a horse and wagon unguarded uphave put himself out of danger up to the last moment, is a contributing and efficient cause of the injury which precludes the conclusion that the negligence in managing the car was later in time, and therefore the proximate cause of injury. Everett v. Los Angeles Consol. Electric R. Co. 115 Cal. 105, 127, 34 L. R. A. 350, 46 Pac. 889, 43 Pac. 207. The duty of a pedestrian is the same, and his opportunity is as great; and so it is clear that the contributory negligence of the plaintiff's intestate was a proximate cause of his death. In Ormsbee v. Boston & P. R. Corp. 14 R. I. 104, 51 Am. Rep. 354, it was held to be contributory negligence on the part of a deaf mute to cross a railroad track without looking for an approaching train, and that his administratrix could not recover, though the train gave no signal as it should have done.

on the track of an electric street railway, in a narrow and unlighted alley, on a dark night; and he cannot recover for injuries to the horse and wagon, although the railway company was also negligent in running the car at a rate of speed that did not permit its stoppage within the distance covered by its own headlight." The court says: "It is an unbending rule, to be observed at all times and under all circumstances, that a person about to cross the track of a street railway must look in both directions for an approaching car before attempting to cross. Ehrisman v. East Harrisburg City Pass. R. Co. 150 Pa. 180, 17 L. R. A. 448, 24 Atl. 596; Wheelahan v. Philadelphia Traction Co. 150 Pa. 187, 24 Atl. 688. But compliance with this rule would be an idle ceremony if a person might afterwards stop his horse or vehicle upon the track, relax his vigilance, and, leaving his horse unguarded, go into a building in the vicinity, and there remain any length of time whatever.” And the judgment for the plaintiff was accordingly reversed. See also, to the same effect, New York Condensed-Milk Co. v. Nassau Electric R. Co. 29 Misc. 127, 60 N. Y. Supp. 234.

case.

If the plaintiff's intestate had impaired his ability to take care of himself by getting intoxicated, that fact in no wise affects the Intoxication does not relieve a man from the degree of care required of a sober man in the same circumstances. Chicago City R. Co. v. Lewis, 5 Ill. App. 242; Bageard v. Consolidated Traction Co. 64 N. J. L. 316, 49 L. R. A. 424, 81 Am. St. Rep. 498, 45 Atl. 620. In Bugbee v. Union R. Co. (R. I.) 59 Atl. 165, the plaintiff was walking upon the track, intoxicated, when he was struck by an electric car, and the court considered him culpably negligent.

As the record presents all the evidence attainable, and it conclusively appears that the plaintiff's intestate has no cause of action against the defendant, judgment will be entered for the defendant.

A very instructive case, though not presenting the same facts affecting the question of the defendant's negligence as the case at bar, is State use of Meidling v. United Railways & Electric Co. 97 Md. 73, 54 Atl. 612, 613. The care required of one who attempts to cross the track of an electric road in the open country is strongly insisted upon. The case is directly in point on the questions of contributory negligence. The court says: "It is evident from all the evidence that we have here a rapidly approaching car in the sight of the traveler, who, in spite of the fact that he saw it, drove leisurely on the track, and was run over and killed. It is conceded, of course, that the defendant was negligent in failing, perhaps, to give signals, and in running at a higher rate of speed than was allowable; ut, under all the authorities, such negligence of the defendant does not palliate or excuse the negligence of the plaintiff;" citing Keenan v. Union Traction Co. 202 Pa. 107, 58 L. R. A. 217, 51 Atl. 742. So in Gilmore v. Federal Street & P. Valley Pass. R. Co. 153 Pa. 31, 34 Am. St. Rep. 682, 25 Atl. 651, it was held that "a person is guilty of contributory negligence 69 L. R. A.

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Lee BEASON, Appt.,

บ.

TEXAS COURT OF CRIMINAL APPEALS.

STATE of Texas.

(43 Tex. Crim. Rep. 442.)

1. The record of a prior conviction of theft, based upon a plea of guilty, is admissible in a prosecution for burglary, where the taking alleged in both cases is the same. 2. That accused was not admonished does not destroy the effect of a judicial confession in the nature of a plea of guilty in a prosecution for a misdemeanor.

3. A plea of guilty of the theft to commit which a burglary is alleged to have been NOTE. Necessity of instruction as to law on circumstantial evidence.

I. Introductory, 193.

II. When evidence is entirely circumstantial.

a. In general, 193.

1. Homicide,193.

2. Larceny, 195.

3. Burglary, 197.

4. Other crimes, 198.

b. Possession of stolen property, 198. III. When the evidence of guilt of accused is direct.

a. By positive testimony, 200.

1. Homicide, 201.

2. Larceny, 203.

3. Robbery, 203.

cused.

1. Homicide, 205.

2. Larceny, 206.

3. Burglary,207.

4. Other crimes, 208.

I. Introductory.

This note will be strictly limited to the subject contained in the title; that is to say, to the necessity of the instruction. It is believed that there is a unanimity of opinion among the several jurisdictions as to the rules which govern this subject, and that they are, in substance, that, in a criminal case where the prosecution is dependent solely upon circumstantial

committed does not, where the fact of burglary itself depends on circumstantial evidence, relieve the court of the necessity of instructing the jury as to the law governing convictions on circumstantial evidence.

4. A remark by the trial judge to counsel in the presence of the jury in a criminal case, indicating that in his opinion the case is not one depending on circumstantial evidence, and that he gives instructions on that subject only in deference to the opinion of the higher court, is reversible error.

5.

The other rule consists in the converse of the proposition mentioned, and is that where there is direct evidence of what the courts have frequently styled the inculpatory fact, whether such evidence consists in the positive assertions of witnesses, or the direct testimony, such as the confession, admission, statement, or testimony of the accused, or a plea the natural and

4. Rape, 204.

5. Other crimes, 204.

b. By proof of the confession of ac- only effect of which is to admit the existence of

the inculpatory fact, no instruction concerning it need be given. As is well said in BEASON V. STATE, "What constitutes circumstantial evidence, and what constitutes a case depending solely upon circumstantial evidence, are two different questions." An endeavor has

c. Plea of insanity, 208.

cumstantial, 209.

IV. Where evidence is both direct and cir- been made to preserve the distinction between the two, and to eliminate the consideration of the question first mentioned from the discussion.

V. Where instruction or request to charge, simply states abstract proposition, 210.

VI. Testimony of accomplice, 211.

II. When evidence is entirely circumstantial.

VII. Necessity of request for instruction; or exception, 211.

a. In general.

VIII. Refusal of request, the substance of which

is clsewhere charged, 213.

The following cases are those which hold IX. Accused in juxtaposition to main or in- unqualifiedly to the rule mentioned, that where, culpatory fact, 214. in a criminal case, the evidence is purely cirX. As to question of intent, 215. cumstantial, a charge upon that branch of the XI. Miscellaneous cases, 216. law must be given, and severally contain the different circumstances and character of trials wherein the strict rule has been applied.

It is reversible error for the trial judge to permit, without rebuke, the prosecuting attorney to state to the jury, in a prosecution for burglary, that, if they do not convict, we might as well tear down the courthouses; that, if defendant is not guilty,

evidence, it is the duty of the court to instruct the jury as to the law governing that character of evidence, and that this is so only in those cases which depend solely upon circumstantial evidence. In many cases given herein the courts have quoted largely from opinions relating mostly, if not entirely, to the question of the sufficiency of a charge upon circumstantial evidence, but such cases have no place in the examination of the particular subject here being considered, and, of course, have not been included.

1. Homicide.

On a trial for murder, where all the evidence against the accused is circumstantial, he is entitled to an instruction on the law of circumstantial evidence, and the refusal to give an instruction asked for by him, which in all respects correctly states the law as to the ef

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Messrs. Barrett & Barrett, for appellant:

The record of the former conviction was not admissible, because the state failed to show that the defendant had been properly admonished before he pleaded guilty.

Allen v. State, 18 Tex. App. 120; Black v. State, 18 Tex. App. 124; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595.

Where the remarks of the district attorney in his closing argument are improper, and have probably injured the rights of defendant, when they are properly excepted to, and the court is requested to tell the jury not to consider them, and the objection and request are overruled by the court, the cause should be reversed.

(February 12, 1902.)

A

PPEAL by defendant from a judgment of the District Court for Clay County convicting him of burglary. Reversed.

The facts are stated in the opinion.

fect of such evidence, will nullify his conviction. State v. Moxley, 102 Mo. 374, 14 S. W. 969, 15 S. W. 556.

On a trial for murder, while the essential facts may be proved by circumstantial evidence, it is a well-established principle that it is necessary to caution the jury, in a proper instructlon, as to the weight and effect to be given the circumstances detailed by the witnesses; and, where the evidence in the case is wholly circumstantial, the jury should be instructed as to the nature and conclusiveness of that character of testimony to warrant a conviction upon it. Territory v. Lermo, 8 N. M. 566, 46 Pac. 16.

On a trial for murder a witness testified that she saw the accused strike the deceased on the head with a piece of iron, and several minutes thereafter she heard a pistol shot, which she thought was in the same room where she had witnessed the blow. The evidence of experts made it clear that death did not result from the blow, but alone from the shot, although it was testified that the blow could, or might, have produced or brought about death in a few days, depending upon probable attendant The court and resultant effects of the blow. said, that conceding that the blow could have produced death in a few days, yet that time did not elapse, for the evidence showed that the shot took effect while deceased was living, and that it produced death, and, as no witness saw the pistol fired, it was left to be ascertained from inference or conclusions from the circumstances and facts developed on the trial who did the shooting, and, this being the case, the conviction was wholly dependent for its support on evidence; and, circumstantial although charge upon this phase of the law was prepared, and requested by the accused, it was not Leftwich given, and this was held to be error. v. State, 34 Tex. Crim. Rep. 489, 31 S. W. 385. Where, on a trial for murder of a new-born infant, it appeared by the evidence of the child's mother that, directly after its birth, the defendant took the child into another room, and while there with the child she heard the sound of water; that thereafter the defendant brought the child, or its body, she could not tell which, into the room, there being no sound coming from the child showing that it was alive and there, to her positive knowledge, he burned the child,-the court said that, if the

a

Crow v. State, 33 Tex. Crim. Rep. 264, child was drowned, then it was a case of circumstantial evidence, and the facts demonstrated this proposition. That the proof tended more strongly to show that it was drowned, and, this being a case of circumstantial evidence, the rules applicable to such a case should have been given in charge to the jury. And, even conceding that the circumstances— the facts--were in such close juxtaposition that they amount to positive proof that the child was burned to death, still the theory that it was drowned might have been adopted by the jury, and the accused convicted upon that theory, without proper instructions upon the rule applicable to a case depending upon circumstantial evidence. Puryear v. State, 28 Tex. App. 73, 11 S. W. 929.

Notwithstanding the fact that the court, on a trial for homicide, has already embraced in its charge the doctrine of reasonable doubt, an additional instruction must be given where the guilt of the accused is sought to be established upon circumstantial evidence only, viz., that the proof must be so clear and convincing as to exclude every other reasonable hypothesis Barnard than that of the guilt of the accused. v. State, 88 Tenn. 183, 12 S. W. 431.

In a criminal prosecution for murder, in which nothing is proved by positive testimony save the corpus delicti, and all the evidence to connect the accused with the crime is circumstantial, it is essential that the jury be further instructed as to the conviction which must impress itself upon their minds, drawn by inference from the circumstances in evidence, before they can say that, beyond a reasonable Hunt doubt, the accused perpetrated the act. v. State, 7 Tex. App. 212.

the court In this immediate connection, said further: "And it is believed that the adjudged cases in our state furnish no instance of a conviction for a grave felony upon circumstantial testimony alone, unless the charge of the court plainly directed the jury as to the principles of law which should govern them in we have alreaching their conclusion; and ready held it error to refuse a charge of this Harcharacter when asked in a proper case. rison v. State, 6 Tex. App. 42."

On the trial of an indictment against two brothers for murder the trial court limited its charge upon circumstantial evidence to the case of oue, thereby (as stated by the court of appeals) giving the jury to understand that the

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