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cising ordinary care to avoid injury to a tres- | caught between the drawheads of two freight passer after his peril is discovered. It is there cars, but not fatally injured. Thereupon no. held that where a woman lying prostrate and tice was given defendant's yard master in time helpless upon the track has been run over, and for him to signal the engineer, and in time lies screaming under an engine, the railroad for the latter to reverse the motion of the cars, company owes no legal duty to the perso and prevent further injury. But the yard masjured to assist her. "There is, of course," it is ter paid no attention to the warning, and, the said “a moral duty, but in performing that duty cars coming together, the man was killed by the company is not liable is one of its servants the second impact. In its opinion holding the does not use his best judgment in affording the railroad company liable under these circumnecessary assistance." The court attempts to stances the court says: "It is a well-settled distinguish Northern C. R. Co. v. State, 29 principle that when one person, whether natural Md. 420, 96 Am. Dec. 545, by saying that in or artificial, is about to be the means or inthat case "there was evidence of negligence on strument of doing an injury to another, that the part of the railroad company in striking other's negligence contributing proximately to a man at a highway crossing," and that, “this it does not, per se, exonerate the actor from all being so, the duty of taking proper care of him further effort; does not, per se, relieve him afterwards resulted from the legal wrong done." it from all responsibility for the conseBut the court evidently overlooked the fact quences. Supine inaction, or stolid indifference that the question determined in the Maryland to consequences, the law does not tolerate. The case was the correctness of an instruction to actor, no matter how free from fault, and no the jury, in accord with plaintiff's position, matter how negligent the one in peril may have *that, conceding the deceased to have been been, must resort to every reasonable means, wrongfully on the track of the railroad, and and employ every reasonable agency, to avert thus, by his own negligence, contributed to and the catastrophe." brought about the collision, still, there was A saloon keeper who expels from his saloon, gross negligence in the subsequent conduct of in an unconscious condition, and at a late hour the defendant's agents in providing for and of the night, a customer to whom he has sold disposing of the disabled and apparently dead liquor, with the result that the customer dies man, and which was the proximate cause of his from cold and exposure, is liable for causing death." It was this proposition which the his death, although the deceased contributed court sustained.

to his death by drinking until he became drunk It will be seen that the situation of the in- and unconscious. Weymire v. Wolfe, 52 Iowa, jured party in the Massachusetts case is very 533, 3 N. W. 541. similar to that in Weitzman V. Nassau Elec. In the case of Atchison, T. &. S. F. R. Co. tric R. Co. 33 App. Div. 585, 53 N. Y. Supp. v. Weber, 33 Kan. 543, 52 Am. Rep. 543, 6 Pac. 905, supra; St. Louis, 1. M. & S. R. Co. v. 877, a contract relation existed, but it is inHill (Ark.) 86 S. W. 303, infra; and Pannell structive as a holding, by the same court as the v. Nashville, F. & S. R. Co. 97 Ala. 298, 12 principal case, that a state of helplessness imSo. 236, infra,-in all of which the railroad poses an obligation upon one coming into recompany was held liable for the failure to lation to a person thus situated to avoid doing exercise ordinary care to prevent further in- him harm. It is there held that no liability jury, after discovering the perilous situation attaches to a railroad company ejecting a pasof the injured wrongdoer.

senger affected with delirium tremens, where In Kendall v. Louisville & N. R. Co. 25 he is put in charge of an overseer of the poor. Ky. L. Rep. 793, 76 S. W. 376, it is said that The opinion intimates, however, that if there a railroad company is under no legal obligation had been evidence to sustain the finding of the to give medical attention to a trespasser who jury, that the passenger lay on the company's is injured without its fault. But no author- depot platform in an exposed condition for ities are referred to, and a determination of the over an hour before he was taken charge of by question was unnecessary, as the injured man the overseer, and that during that time he rewas in fact put in charge of competent and ceived injuries resulting in his death, the comreputable physicians and surgeons.

pany would have been liable.

The court says: Although involving somewhat different sit- *The duty of the railroad company, however, uations, the following cases seem clearly to sup- with respect to Weber, did not end with his report the principle of Northern C. R. Co. v. moval from the train. He was unconscious, and State, 29 Md. 420, 96 Am. Dec. 545, supra. unable to take care of himself.

The company In St. Louis, I. M. & S. R. Co. v. Hill (Ark.) could not leave him upon the platform helpless, 86 S. W. 303, a woman trespassing upon a exposed, and without care or attention.

It was railroad track was knocked down and run over its duty to exercise reasonable care and dilby a switch engine, but without receiving se- igence to make temporary provision for his rious injury until she had been dragged under protection and comfort." the engine a distance of 30 feet. It was con. In Langan v. Great Western R. Co. 26 L. T. ceded that the deceased was guilty of contrib- N. S. 577, one holding the office of inspector, utory negligence, and the only issue presented and whose duty it was to take care of persons was whether the engineer, by the exercise of injured on defendant's railway, was held to proper care and after discovering the perilous have authority to pledge the credit of the railsituation of the woman, could have avoided or way company for the care of injured persons mitigated the injury finally inflicted.

The

at an inn until their recovery. And Cockburn, jury were instructed that, if they found in Ch. J., said: "I cannot help thinking that favor of the plaintifr upon such issue, the rail- where a man has, as incidental to his office, the road company would be liable, and the instruc-duty of looking after persons who have been tion was upheld on appeal.

injured by railway accidents, it is competent for Directly in line with the last preceding au- him to take them to some place of public enterthority is the case of Pannell v. Nashville, F. tainment, both for the sake of the sufferers, & S. R. Co. 97 Ala. 298, 12 So. 236. The plain and also for the advantage of the company tiff's intestate, by his own negligence, was themselves, because, if after a railway casualty

happened persons injured thereby were left to can avoid injuring the person or property of take tbeir chance of aid, or in such a condition the former, he is liable if he does not, if, by as to make it impossible for them to get away reason thereof, injury ensues." from the place where the disaster befell them, In Baltimore & 0. R. Co. v. State, 41 Md. unless there was someone authorized on the 268, the rule of the Price Case, 29 Md. 420, part of the railway officials to look after them, 96 Am. Dec. 545, supra, is approved, but is the injury caused by the accident would be held to extend only to proper care and treataggravated to a far greater extent, and so as meat of the injured person until he is carried to to render the company liable to much heavier a nearby station, and there placed in a hotel, damages."

and under the care of a physician. And that Whether neglect to care for an injured per- under such rule the railroad company could son produced a subsequent condition which not be held liable for his subsequent death from would not have existed but for such neglect is hemorrhage occurring during his removal to anа question for

the jury. Vandenburgh V. other town where his relatives resided. Truax, 4 Denio, 464, 47 Am. Dec. 268; Pollett In Griswold v. Boston & M. R. Co. 183 v. Long, 56 N. Y. 200.

Mass. 434, 67 N. E. 354, it is held that a slight

delay in extricating an injured trespasser from b. What is sufficient performance of obligation. | her situation does not render the railroad com

pany liable for the resulting aggravation of her Whether the care of a sick, helpless, or in injuries. The court refers to the case of Dyche jured person is undertaken pursuant to some v. Vicksburg, S. & P. R. Co. 79 Miss. 361, 30 legal obligation, or is voluntarily assumed, the So. 711, supra, but repudiates its authority, service must be performed with such degree of and attempts to distinguish Northern C. R. Co. care as is commensurate with the responsibility v. State, 29 Md. 420, 96 Am. Dec. 545, supra, assumed. In such case the act is no longer in a manner not warranted by the report of one of mere nonfeasance, but misfeasance, or that case, as already pointed out. the doing improperly what he is under obligation to do with ordinary care. Powers v. Mas

VI. Knowledge of disability. sachusetts Homøopathic Hospital, 65 L. R. A. 372, 379, 47 C. C. A. 122, 109 Fed. 294.

a. Actual knowledge generally necessary

to A railroad corporation assuming charge of

creation of duty. one run over by one of its trains is charged with the duty of common humanity, and wheth It has been seen that persons under disability er such duty is properly performed by summon

are entitled to the care due to persons generaling a physician, who neglects to perform a

ly, and may recover for the consequences of the necessary surgical operation, thereby lessening | omission of such care as to them, although the the injured person's chances of life, and he consequences may have been aggravated by dies when the operation is finally performed their previous physical condition, and could not by other physicians, is a question for the jury. have been foreseen by the negligent party. Dyche v. Vicksburg, S. & P. R. Co. Miss. *(See div. IV. subd. a, supra.) In such cases the 361, 30 So. 711.

negligent person's lack of knowledge of the preThe same principle is applied in Neem v. vious disability of the injured party is not an San Francisco & S. J. R. Co. 37 Cal. 409, to excuse for the omission of ordinary care. the care of an animal trespassing upon a rail Brownback v. Frailey, 78 III. App. 262. road track. The plaintiff's mare had escaped The case of Purcell v. St. Paul City R. Co. from his pasture, and strayed upon defendant's 48 Minn. 134, 16 L. R. A. 203, 50 N. W. 1034, right of way. Upon a train whistle being is one where a contract relation existed; but sounded, the mare ran along the track until the court so clearly distinguishes the she came to a trestle 7 feet high, upon which where liability for injury to a person under she leaped, and fell in such a way as to be disability is not dependent upon previous knowlunable to extricate herself. In order to remove edge of such disability, from those where liaher írom the track, the defendant's employees bility is dependent upon such knowledge, that sawed off the ties of the trestle on which the a quotation from the opinion is appropriate. mare was lying, and allowed her to fall to A street car of the defendant, on which plaintiff the creek below, and it was alleged that she was a passenger, came into such imminent was thereby injured. While it was held that danger of a collision with a car on a cross line the defendant was not negligent in making the that plaintiff received a nervous shock, was removal, the court refused to approve of de thrown into convulsions, and, being pregnant fendant's contention that, if the plaintiff was at the time, a miscarriage and illness followed. negligent in allowing his mare to escape, and It was held that the defendant was liable for the animal was a trespasser on the track, the the consequences of its negligence, notwithdefendant would not be liable for injuring the standing the absence of knowledge of plainmare in effecting her removal, unless it was tiff's condition, the court saying: “Certainly done through heedlessness and wantonness. a woman in her condition has as good a right The court says: "The Golden Rule is a corner to be carried as anyone, and is entitled to at stone of the law as well as of morals, and in least as high a degree of care on the part of the the department of the former finds its expres carrier. It may be that where a passenger, sion in the maxim, Sic utere tuo, ut alienum without the knowledge of the carrier, is sick, non ladas. No more in law than in morals feeble, or disabled, the latter does not owe to can one wrong be justified or excused by an him a higher degree of care than he owes to other. A wrongdoer is not an outlaw, against passengers generally, and that the carrier would whom every man may lift his hand. Neither not be liable to him for any injury caused by an his life, limbs, nor property are held at the act or omission not negligent as to an ordinary mercy of his adversary. On the contrary, the passenger. But when the act or omission is latter is bound to conduct himself with rea negligence as to any and all passengers, well sonable care and prudence, notwithstanding or ill, anyone injured by the negligence must the fault of the former; and if, by so doing, he be entitled to recover to the full extent of the

cases

injury so caused, without regard to whether, 110 Ala. 328, 20 So. 345; Louisville & N. R. owing to his previous condition of health, he is Co. v. Kellem, 14 Ky. L. Rep. 734, 21 S. W. more or less liable to injury.".

230; Louisville, N. 0. & T. R. Co. v. Williams, But ordinarily one is not chargeable with 69 Miss. 631, 12 So. 957. negligence for not guarding against a danger The presence of a man of advanced years, of which he has no knowledge. Ilott v. Wilkes, but strong and healthy, upon a railroad track, :: Bau'll. & Ald. 304; Worthington v. Mencer. does not impose upon the railroad company the 96 Ala. 310, 315, 17 L. R. A. 407, 11 So. 72 ; exercise of greater care than would be required Daily v. Richmond & D. R. Co. 106 N. C. 301. in the case of an adult of less advanced years, 11 S. E. 320 ; Langan v. St. Louis, I. M. & S. R. unless its employees know, or have reason to Co. 72 Mo. 392; Jeffrey v. Keokuk & D. M. R. believe, that such person, from some cause, Co. 56 Iowa, 546, 9 N. W. 884 ; Kansas P. R. is not possessed of the ordinary ability to care Co. v. Whipple, 39 Kan. 531, 540, 18 Pac. 730 ; for himself. Green v. Southern P. Co. 122 Smithwick v. Hall & U. Co. 59 Conn. 261, 12 Cal. 563, 55 Pac. 577. L. R. A. 279, 21 Am. St. Rep. 104, 21 Atl. 924 ; If a man sleeping on a railroad track is not Philadelphia & R. R. Co. v. Hummell, 44 Pa. seen by persons operating a train, the railroad 379, 84 Am. Dec. 457. This is especially true company is not liable for running over him, where the occasion for the exercise of care to although the track at the place of the accident, avoid injuring another is the disability of the and for a long distance on either side, is level person to be affected, as distinguished from and straight, so that an object no larger than those circumstances calling for care as to per- a man's hat can be seen for 400 or 500 yards. sons generally. The law does not impose upon A railroad company does not owe to trespassers one the duty of giving to another the care the duty of keeping a lookout. Denman v. St. due only to the deaf, blind, and unconscious, Paul & D. R. Co. 26 Minn. 357, 4 N. W. 605. until he has notice that such person is suffering And see cases under title, Duty to discover anfrom one of those disabilities. And where a other's peril or disability, diy. VII. subdiv. b. person's danger arises from the fact of his being infra. where he ought not to be, or where the presence A railroad company cannot be held liable for of people is not reasonably to be expected, no mere negligence toward a person on its track, duty is owing him until he is discovered.

In

who is deaf or otherwise deficient in his facternational & G. N. R. Co. v. Smith, 62 Tex. ulties, so as to render him unconscious of the 252 ; Johnson v. Louisville & N. R. Co. 91 Ky. impending danger, unless the knowledge of such 651, 25 S. W. 754; Thomas v. Chicago, M. & infirmity is brought home to those in charge of St. P. R. Co. 93 Iowa, 248, 61 N. W 967, 114 the train. Johnson V. Louisville & N R. Co. Iowa, 169, 86 N. W. 259; Cleveland, C. & C. 91 Ky. 651, 25 S. W. 754 ; Daily v. Richmond R. Co. v. Terry, 8 Ohio St. 570; Lake Erie & & D. R. Co. 106 N. C. 301, 11 S. E. 320; W. R. Co. v. Juday, 19 Ind. App. 436, 49 N. E. Williams v. Southern P. R. Co. (Cal.) 11 Pac. 843; Kansas P. R. Co. v. Whipple, 39 Kan. 849 ; Tyler v. Sites, 88 Va. 470, 13 S. E. 978. 531, 540, 18 Pac. 730.

Likewise, wilful and intentional wrong, a When the mere negligence of another causes willingness to inflict injury, cannot be imputed or contributes to the injury of a person so

to one who is without consciousness, from mentally incompetent as to be incapable of ex- whatever cause, that his conduct will inevitably erсtsing care, “if the conduct of the injured per- or probably lead to wrong or injury. It is only son would have avoided his claim to relief if where the engineer of a railroad train becomes he had been capable of exercising care in his actually aware of the danger of a trespasser own behalf, the person inflicting the injury is upon a trestle, that the failure to exercise not to be held to a liability which would not preventive effort to avert an injury can conhave been incurred under the same circum- stitute such gross negligence as amounts to stances in favor of a person of ordinary capa- wantonness and recklessness. Southern R. Co. city, unless he had notice of the injured per- v. Bush, 122 Ala. 470, 482, 26 So. 168; Ullrich son's mental deficiency, and of his consequent v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 358, helplessness and peril in the circumstances in 51 N. E. 95. which he was placed. The duty of observing The failure to stop a train upon the sight special precautions for the safety of another, of a man 10 or 12 feet from the track, and ap. because the latter, by reason of mental improaching with the apparent purpose of crossbecility, cannot be influenced by the dictates of ing it, is not wanton negligence, where the ordinary prudence, is not cast upon one who train is in full Fiew of such person, and those is not charged with notice of the other's peril in charge of the train are without knowledge and of his lack of sufficient intelligence to avoid that he is deaf. Birmingham R. & Electric Co. it.” Worthington v. Mencer, 96 Ala. 310, 17 v. Bowers, 110 Ala. 328, 20. So. 345. L. R. A. 407, 11 So. 72.

And the duty of active effort to prevent one's Where one person negligently comes into a lawful action from resulting in injury to an. situation of peril, in which his liability to in. other arises, generally, not with knowledge of jury is increased by reason of some disability. his presence in a place of possible danger, where before another can be held liable for an injury ordinary care on his part will insure his safety, to him, it must appear either that the latter but only upon the discovery of his being in had knowledge of his situation in time to imminent peril from such action. This distincprevent the injury, pzd faued to use ordinary tion is important in determining the question of care to that end,

or that the injurious liability for either negligent or wilful injuries. act or omission, considering time and place, Smalley v. Southern R. Co. 57 S. C. 243, 250, was such that its nature and probable conse- 35 S. E. 489; Gulf, C. & S. F. R. Co. v. Hill quence would be to produce serious hurt to (Tex. Civ. App.) 58 S. W. 255, 258 (opinion someone. Daily v. Richmond & D. R. Co. 106 on rehearing) ; Orr v. Cedar Rapids & M. C. R. N. C. 301, 11 S. E. 320; Cleveland, C. & C. R. Co. 94 Iowa, 423, 62 N. W. 851 ; Southern R. Co. v. Terry, 8 Ohio St. 570 ; St. Louis, I. Co. v. Bush, 122 Ala. 470, 26 So. 168; Ullrich M. & S. R. Co. v. Monday, 49 Ark. 257, 4 S, W. v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 782; Birmingham R. & Electric Co. v. Bowers, 358, 51 N. E. 95.

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But the testimony of an engineer as to the | 474, 53 L. R. A. 267, 96 Am. St. Rep. 459, 61 time he discovered a person in peril on the S. W. 997, in finding that the jury were justi. track is not conclusive. Where the facts and fied in finding that the engineer of a train saw circumstances proved justify a finding by the some children upon a trestle in time to stop jury that the disability of the injured party the train and prevent injury, the court says: was discovered by those on the train at a "The evidence conduces to show that the distance which would have enabled them, by the engineer could see the whole bridge from a exercise of ordinary care, to avoid injury, a distance of 960 feet, and one standing on verdict based thereon will not be disturbed, al- the track at the bluff

see

the whole though the engineer testified that he did not dis- | length of the bridge for 320 yards; that a man cover the person's peril until it was too late to in the cab could see the bridge 120 feet further stop the train. St. Louis, I. M. & S. R. Co. back. The proof also conduces to show that v. Hill (Ark.) 86 S. W. 303 ; Farrell v. Chicago, a man in the cab could see the bridge 120 feet R. I. & P. R. Co. 123 Iowa, 690, 99 N. W. 578; further back than if on the ground. It is Orr v. Cedar Rapids & M. C. R. Co. 94 Iowa, also evident from the proof that for a consider423, 62 N. W. 851; Purcell v. Chicago & N. able distance from the bridge it is up grade W. R. Co. 117 Iowa, 667, 671, 91 N. W. 933; in reaching the bridge in question. There is Smalley v. Southern R. Co. 57 S. C. 243, 35 also some proof tending to show that someone S. E. 489; Gunn v. Ohio River R. Co. 42 W.

on the engine was seen to put his head out, Va. 676, 36 L. R. A. 575, 581, 26 S. E. 546 ; as if looking toward the bridge, at some disInternational & G. N. R. Co. v. Tabor, 12 Tex. tance from it. It seems to us, from the eviCiv. App. 283, 33 S. W. 894; Hankerson v. dence, that the jury were authorized to be. Southwestern R. Co. 59 Ga. 593, 61 Ga. 114, lieve and to have found that the defendant's 72 Ga. 182; Sibley v. Ratliffe, 50 Ark. 477, agents and servants saw those children upon 8 S. W. 686. And see dissenting opinion in the bridge in ample time to have so slackened Williams v. Southern P. R. Co. (Cal.) 11 Pac. the speed of the train as to enable them to have 849.

escaped the danger. There is hardly room to Affirmative evidence that a child on a rail

doubt this, from the map and evidence filed road track was seen by the engineer or fireman in this action." in time to stop the train and avoid the injury is not required. If it appears that the view was clear for 1,600 feet, and between

b. When mere belief sufficient to impose duty. the train and the child there was a public crossing, where it was the duty of the engineer to

Where there are reasonable grounds to bebe on the alert, it is for the jury to say wheth

lieve that a person in danger will not be able er the child was seen by the engineer in time

to help himself because of some mental or phyto stop the train. Johnston v. Atchison, T. & S. sical intirmity, or other disability, such belief, F. R. Co. 56 Kan. 263, 43 Pac. 228.

in the absence of actual knowledge, is sufficient And a jury is not bound to accept the state

to impose the duty of exercising ordinary care ment of a locomotive engineer that he did not

to avoid injuring such person. Daily v. Richdiscover that a woman was under his engine,

mond & D. R. Co. 106 N. C. 301, 11 S. E. 320; nor receive warning of her perilous situation,

Clark v. Wilmington & W. R. Co. 109 N. C. in time to have avoided the injury inflicted, 430, 14 L. R. A. 749, 14 S. E. 43; Tucker v. where there is evidence that the woman was

Norfolk & W. R. Co. 92 Va. 549, 24 S. E. 229; screaming loudly, and that persons were run

Blaukenship v. Chesapeake & 0. R. Co. 94 Va. ning toward the engine and giving warning by

449, 27 S. E. 20; St. Louis, I. M. & S. R. Co. gestures and loud screams. St. Louis, I. M. & v. Wilkerson, 46 Ark. 513; Sibley V. Ratliffe, S. R. Co. v. Hill (Ark.) 86 S. W. 303.

50 Ark. 477, 8 S. W. 686; Anderson v. Ilopkins, “While wantonness on the part of the en

33 C. C. A. 346, 63 U. S. App. 533, 91 Fed. 77. gineer cannot be predicated on the mere fact

If the conduct of a person walking upon a that he ought to have seen deceased on the railroad track is such as to create in the minds trestle, or on anything short of actual knowl. of those operating a train a doubt as to whethedge, yet this actual knowledge need not be er such person is in possession of all his faculpositively and directly shown, but, like any ties, and to give them reason to believe that an other fact, may be proved by showing circum injury will occur unless the train is checked, stances from which the fact of actual knowl- | they are bound to use greater caution, and to edge is a legitimate inference. Otherwise, in stop the train, if necessary, to insure his safety. cases of this character, this fact could never Louisville & N. R. Co. v. Cooper (Ky.) 6 Am. be proved except by the testimony of the en- & Eng. R. Cas. 5; Lexington & C. C. Min. Co. gineer himself. Certainly the facts that the v. Huffman, 17 Ky. L. Rep. 775, 32 S. W. 611; road was straight for a long distance, the view Pittsburgh, C. C. & St. L. R. Co. v. Judd, 10 of the track unobstructed, and the engineer was Ind. App. 213, 37 N. E. 775; Campbell v. in his seat looking ahead along the track, and Kansas City, Ft. S. & M. R. Co. 55 Kan, 536, 40 there was nothing to prevent him from seeing | lac. 997: Texas & P. R. Co. v. Robinson, 4 a person on the track a few hundred feet ahead, Tex. Civ. App. 121, 23 S. W. 433; Galveston are relevant and admissible for the purpose of City R. Co. v. Hanna (Tex. Civ. App.) 79 S. W. proving that he did see such person, and may

639.

But see Green v. Los Angeles Terminal properly be submitted to the jury on this R. Co. (Cal.) 76 Pac. 719; Olson v. Northern issue; and, while no presumption arises from P. R. Co. S4 Min. 258, 87 N. W. 843. these facts that the engineer did see the person Likewise, if there are circumstances sufficient on the track, yet this may be inferred from to give notice to the engineer of a train that these facts by the jury, whose province alone it the life of a human being is in danger, as where is to decide the weight to be given to facts le- persons are running toward the train and ex. gally in evidence, and their effect on an issue citedly waving their hands, it is his duty to which they are admitted to prove." Southern stop the train, or materially check its speed, R. Co. v. Bush, 122 Ala. 470, 26 So. 168.

although he may not in fact see any person upIn Becker v. Louisville & N. R. Co. 110 Ky. on the track or in danger. Donahoe v. Wabash,

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St. L. & P. R. Co. 83 Mo. 543; Seaboard & R. or condition, it is contended by respectable auR. Co. v. Joyner, 92 Va. 334, 23 S. E. 773.

thority that "discovery" is not a prerequisite An engineer who sees a person on the track to such duty to trespassers; that since the waving his hands, and not stepping aside, negligence which will defeat a plaintiff's reshould check his train at once, though he may covery for an injury may be his failure, by the not know that such person's foot is caught in exercise of ordinary care, to discover and avoid the track. Spooner v. Delaware, L. & W. R. a collision with an obstruction which the deCo. 115 N. Y. 22, 21 N. E. 696.

fendant had negligently placed in the highway

(Butterfield v. Forrester, 11 East, 60), so, on c. Negligent ignorance equivalent to knowledge. the other hand, the defendant's failure to dis

cover and avoid plaintiff's prior negligence may When knowledge itself is a duty, as where create a liability for an injury inflicted without there is a probability of the presence of per actual knowledge of the presence or disability sons liable to be affected by one's action, neg. of the person injured. And this, it is alleged, ligent ignorance is equivalent to knowledge. was the true cause of action in Davies v. Mann, Goodrich v. Burlington, C. R. & N. R. Co. 103 10 Mees. & W. 546, See also cases cited in div. Iowa, 412, 72 N. W. 653; Chesapeake & 0. R. VII., subd. b, infra. Co. v. Rodgers, 100 Va. 324, 41 S. E. 732 ; But it should be observed that in the sitMurphy v. Orr, 96 N. Y. 14 ; Kunz v. Troy, 104 uation presented in Davies v. Mann, 10 Mees. N. Y. 344, 10 N. E. 442 ; Moebus v. Herrmann,

& W. 546, “knowledge itself was a duty," and it 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. was for the breach of this duty that the 415 ; Weil v. Dry Dock, E. B. & B. R. Co. 119 defendant was held liable. He was upon the N. Y. 147, 23 N. E. 487; McKeon v. Steinway highway, where persons and animals were liable R. Co. 20 App. Div. 601, 47 N. Y. Supp. 374 :

to be present, and it was his duty to be on the Levy v. Dry Dock, E. B. & B. R. Co. 35 N. Y.

lookout for them ; but, instead, he drove at a S. R. 769, 12 N. Y. Supp. 485; Thiel v. South speed that prevented his discovery of the helpCovington & C. Street R. Co. 25 Ky. L. Rep. less donkey that lay in the road. It is only 1590, 78 S. W. 206; Galveston City R. Co. v. when this duty to know exists that a liability Hewitt, 67 Tex. 479, 60 Am. Rep. 32, 3 S. W.

for an injury ignorantly inflicted can arise ; 705 ; Werner v. Citizens' R. Co. 81 Mo. 368. and the duty to know exists, ordinarily, only Where a man is stricken down in a fit at a

when the duty of watchfulness is imposed ; and private crossing, the railroad company cannot the obligation to be on the lookout for persons be relieved from liability for running over him, arises only in places where they are reasonably because of its failure to discover his presence to be expected. But, as persons are not reasonupon the track in such condition. Yoakum V. ably to be expected where their presence makes Mettasch (Tex. Civ. App.) 26 S. W. 129.

them trespassers, the duty of watchfulness, and A railroad company is liable for running over consequently the duty to know, does not exist a man having his foot caught in a frog at a as to persons in such places. Accordingly, city crossing, where, if not seen, he might have those authorities holding that a railroad combeen seen, by the exercise of ordinary diligence,

pany may be liable for injury to a trespasser, in time to avoid the injury. Mlinois C. R. Co.

although his presence and situation were not v. Crockett, 25 Ky. L. Rep. 1989, 79 S. W. 235. discovered, are forced to impose upon railroad

The failure of the motorman of an electric companies the duty of maintaining a lookout for street car to see the peril of one driving a such persons.

And it is for the breach of this horse which has been frightened by his car,

unusual duty that these decisions hold railroad and become unmanageable, when he might have

companies liable for injuries ignorantly inflictseen it by the exercise of ordinary care, is ed. Smith v. Norfolk & S. R. Co. 114 N. C. negligence; and it is proper in such case to sub 728, 25 L. R. A. 287, 19 S. E. 863, 923. mit to the jury the question whether the motorman ought to have seen the frightened condition VII. Duty to discover another's peril or disof the horse. Ellis v. Lynn & B. R. Co. 160

ability. Mass. 341, 35 N. E. 1127 ; Lexington R. Co. v. Fain, 25 Ky. L. Rep. 2243, 80 S. W. 463. a. At places where people are likely to be presWhere a motorman, because of his a tention

ent. being drawn to a bicycle keeping pace with his car, failed to see a frightened horse that had May one be relieved from responsibility for sprung upon the track ahead of him, and in an injury done to a person under some disabilconsequence the car struck the horse, and ity, in the performance of an otherwise lawful threw its rider to the pavement with such force act, upon the ground that he had no knowledge as to render him insane, it was held that the of the disability of such other person, when by court properly instructed the jury that, if the the exercise of ordinary care the situation or motorman could, in the exercise of reasonable condition of that person might have been discare, have

the plaintiff in time to covered? check his car after plaintiff's horse sprang The general current of authority answers this upon the track, and before the car collided question in the negative, where the duty of with his horse, and the plaintiff was not him. watchfulness against such result exists as to self guilty of negligence which contributed to people generally. When this duty exists, its his injury, then the defendant would be liable. breach is negligence, for which a liability arises. Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 And in those jurisdictions where the question N. W. 331.

of liability is determined by the application of The misapplication of the principle of these the doctrine of proximate cause to the negcases to actions for injuries to trespassers has ligence of both parties it would make no difled to some conflict in the authorities. Against ference that the injured party was himself the holding of the authorities above cited, that negligent, if his negligence was pot concurrent knowledge of a person's peril or disability is with that of the party inflicting the injury. necessary to the creation of a special duty But, while the language of some of the autoward such person, based upon his situation thorities seems to impose upon railroad com

seen

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