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cising ordinary care to avoid injury to a trespasser after his peril is discovered. It is there held that where a woman lying prostrate and helpless upon the track has been run over, and lies screaming under an engine, the railroad company owes no legal duty to the perso jured to assist her. "There is, of course," it is said “a moral duty, but in performing that duty the company is not liable if one of its servants does not use his best judgment in affording the necessary assistance." The court attempts to distinguish Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545, by saying that in that case "there was evidence of negligence on the part of the railroad company in striking a man at a highway crossing," and that, "this being so, the duty of taking proper care of him afterwards resulted from the legal wrong done." But the court evidently overlooked the fact that the question determined in the Maryland case was the correctness of an instruction to the jury, in accord with plaintiff's position. "that, conceding the deceased to have been wrongfully on the track of the railroad, and thus, by his own negligence, contributed to and brought about the collision, still, there was gross negligence in the subsequent conduct of the defendant's agents in providing for and disposing of the disabled and apparently dead man, and which was the proximate cause of his death." It was this proposition which the court sustained.

It will be seen that the situation of the injured party in the Massachusetts case is very similar to that in Weitzman v. Nassau Electric R. Co. 33 App. Div. 585, 53 N. Y. Supp. 905, supra; St. Louis, I. M. & S. R. Co. v. Hill (Ark.) 86 S. W. 303, infra; and Pannell v. Nashville, F. & S. R. Co. 97 Ala. 298, 12 So. 236, infra,-in all of which the railroad company was held liable for the failure to exercise ordinary care to prevent further injury, after discovering the perilous situation of the injured wrongdoer.

In Kendall v. Louisville & N. R. Co. 25 Ky. L. Rep. 793, 76 S. W. 376, it is said that a railroad company is under no legal obligation to give medical attention to a trespasser who is injured without its fault. But no authorities are referred to, and a determination of the question was unnecessary, as the injured man was in fact put in charge of competent and reputable physicians and surgeons.

Although involving somewhat different situations, the following cases seem clearly to support the principle of Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545, supra.

In St. Louis, I. M. & S. R. Co. v. Hill (Ark.) 86 S. W. 303, a woman trespassing upon a railroad track was knocked down and run over by a switch engine, but without receiving serious injury until she had been dragged under the engine a distance of 30 feet. It was conceded that the deceased was guilty of contributory negligence, and the only issue presented was whether the engineer, by the exercise of proper care and after discovering the perilous situation of the woman, could have avoided or mitigated the injury finally inflicted. The jury were instructed that, if they found in favor of the plaintiff upon such issue, the railroad company would be liable, and the instruction was upheld on appeal.

Directly in line with the last preceding authority is the case of Pannell v. Nashville, F. & S. R. Co. 97 Ala. 298, 12 So. 236. The plaintiff's intestate, by his own negligence, was

caught between the drawheads of two freight cars, but not fatally injured. Thereupon notice was given defendant's yard master in time for him to signal the engineer, and in time for the latter to reverse the motion of the cars, and prevent further injury. But the yard, master paid no attention to the warning, and, the cars coming together, the man was killed by the second impact. In its opinion holding the railroad company liable under these circumstances the court says: "It is a well-settled principle that when one person, whether natural or artificial, is about to be the means or instrument of doing an injury to another, that other's negligence contributing proximately to it does not, per se, exonerate the actor from all further effort; does not, per se, relieve him or it from all responsibility for the consequences. Supine inaction, or stolid indifference to consequences, the law does not tolerate. The actor, no matter how free from fault, and no matter how negligent the one in peril may have been, must resort to every reasonable means, and employ every reasonable agency, to avert the catastrophe."

A saloon keeper who expels from his saloon, in an unconscious condition, and at a late hour of the night, a customer to whom he has sold liquor, with the result that the customer dies from cold and exposure, is liable for causing his death, although the deceased contributed to his death by drinking until he became drunk and unconscious. Weymire v. Wolfe, 52 Iowa, 533, 3 N. W. 541.

In the case of Atchison, T. &. S. F. R. Co. v. Weber, 33 Kan. 543, 52 Am. Rep. 543, 6 Pac. 877, a contract relation existed, but it is instructive as a holding, by the same court as the principal case, that a state of helplessness imposes an obligation upon one coming into relation to a person thus situated to avoid doing him harm. It is there held that no liability attaches to a railroad company ejecting a passenger affected with delirium tremens, where he is put in charge of an overseer of the poor. The opinion intimates, however, that if there had been evidence to sustain the finding of the jury, that the passenger lay on the company's depot platform in an exposed condition for over an hour before he was taken charge of by the overseer, and that during that time he received injuries resulting in his death, the company would have been liable. The court says: "The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to take care of himself. The company could not leave him upon the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort."

In Langan v. Great Western R. Co. 26 L. T. N. S. 577, one holding the office of inspector, and whose duty it was to take care of persons injured on defendant's railway, was held to have authority to pledge the credit of the railway company for the care of injured persons at an inn until their recovery. And Cockburn, Ch. J., said: "I cannot help thinking that where a man has, as incidental to his office, the duty of looking after persons who have been injured by railway accidents, it is competent for him to take them to some place of public entertainment, both for the sake of the sufferers, and also for the advantage of the company themselves, because, if after a railway casualty

happened persons injured thereby were left to take their chance of aid, or in such a condition as to make it impossible for them to get away from the place where the disaster befell them, unless there was someone authorized on the part of the railway officials to look after them, the injury caused by the accident would be aggravated to a far greater extent, and so as to render the company liable to much heavier damages."

Whether neglect to care for an injured person produced a subsequent condition which would not have existed but for such neglect is a question for the jury. Vandenburgh V. Truax, 4 Denio, 464, 47 Am. Dec. 268; Pollett v. Long, 56 N. Y. 200.

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Whether the care of a sick, helpless, or injured person is undertaken pursuant to some legal obligation, or is voluntarily assumed, the service must be performed with such degree of care as is commensurate with the responsibility assumed. In such case the act is no longer one of mere nonfeasance, but misfeasance, or the doing improperly what he is under obligation to do with ordinary care. Powers v. Massachusetts Homeopathic Hospital, 65 L. R. A. 372, 379, 47 C. C. A. 122, 109 Fed. 294.

A railroad corporation assuming charge of one run over by one of its trains is charged with the duty of common humanity, and whether such duty is properly performed by summoning a physician, who neglects to perform a necessary surgical operation, thereby lessening the injured person's chances of life, and he dies when the operation is finally performed by other physicians, is a question for the jury. Dyche v. Vicksburg, S. & P. R. Co. Miss. 361, 30 So. 711.

The same principle is applied in Need...m v. San Francisco & S. J. R. Co. 37 Cal. 409, to the care of an animal trespassing upon a railroad track. The plaintiff's mare had escaped from his pasture, and strayed upon defendant's right of way. Upon a train whistle being sounded, the mare ran along the track unti she came to a trestle 7 feet high, upon which she leaped, and fell in such a way as to be unable to extricate herself. In order to remove her from the track, the defendant's employees sawed off the ties of the trestle on which the mare was lying, and allowed her to fall to the creek below, and it was alleged that she was thereby injured. While it was held that the defendant was not negligent in making the removal, the court refused to approve of defendant's contention that, if the plaintiff was negligent in allowing his mare to escape, and the animal was a trespasser on the track, the defendant would not be liable for injuring the mare in effecting her removal, unless it was done through heedlessness and wantonness. The court says: "The Golden Rule is a corner stone of the law as well as of morals, and in the department of the former finds its expression in the maxim, Sic utere tuo, ut alienum non lædas. No more in law than in morals can one wrong be justified or excused by another. A wrongdoer is not an outlaw, against whom every man may lift his hand. Neither his life, limbs, nor property are held at the mercy of his adversary. On the contrary, the latter is bound to conduct himself with reasonable care and prudence, notwithstanding the fault of the former; and if, by so doing, he

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In Baltimore & O. R. Co. v. State, 41 Md. 268, the rule of the Price Case, 29 Md. 420, 96 Am. Dec. 545, supra, is approved, but is held to extend only to proper care and treatmeat of the injured person until he is carried to a nearby station, and there placed in a hotel, and under the care of a physician. And that under such rule the railroad company could not be held liable for his subsequent death from hemorrhage occurring during his removal to another town where his relatives resided.

In Griswold v. Boston & M. R. Co. 183 Mass. 434, 67 N. E. 354, it is held that a slight delay in extricating an injured trespasser from her situation does not render the railroad company liable for the resulting aggravation of her injuries. The court refers to the case of Dyche v. Vicksburg, S. & P. R. Co. 79 Miss. 361, 30 So. 711, supra, but repudiates its authority, and attempts to distinguish Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545, supra, in a manner not warranted by the report of that case, as already pointed out.

VI. Knowledge of disability.

a. Actual knowledge generally necessary to creation of duty.

It has been seen that persons under disability are entitled to the care due to persons generally, and may recover for the consequences of the omission of such care as to them, although the consequences may have been aggravated by their previous physical condition, and could not have been foreseen by the negligent party. (See div. IV. subd. a, supra.) In such cases the negligent person's lack of knowledge of the previous disability of the injured party is not an excuse for the omission of ordinary care. Brownback v. Frailey, 78 Ill. App. 262.

The case of Purcell v. St. Paul City R. Co. 48 Minn. 134, 16 L. R. A. 203, 50 N. W. 1034, is one where a contract relation existed; but the court so clearly distinguishes the cases where liability for injury to a person under disability is not dependent upon previous knowledge of such disability, from those where liability is dependent upon such knowledge, that a quotation from the opinion is appropriate. A street car of the defendant, on which plaintiff was a passenger. came into such imminent danger of a collision with a car on a cross line that plaintiff received a nervous shock. was thrown into convulsions, and, being pregnant at the time, a miscarriage and illness followed. It was held that the defendant was liable for the consequences of its negligence, notwithstanding the absence of knowledge of plaintiff's condition, the court saying: "Certainly a woman in her condition has as good a right to be carried as anyone, and is entitled to at least as high a degree of care on the part of the carrier. It may be that where a passenger, without the knowledge of the carrier, is sick, feeble, or disabled, the latter does not owe to him a higher degree of care than he owes to passengers generally, and that the carrier would not be liable to him for any injury caused by an act or omission not negligent as to an ordinary passenger. But when the act or omission is negligence as to any and all passengers, well or ill, anyone injured by the negligence must be entitled to recover to the full extent of the

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 more or less liable to injury."

But ordinarily one is not chargeable with negligence for not guarding against a danger of which he has no knowledge. Ilott v. Wilkes, Barn. & Ald. 304; Worthington v. Mencer. 96 Ala. 310, 315, 17 L. R. A. 407, 11 So. 72; Daily v. Richmond & D. R. Co. 106 N. C. 301. 11 S. E. 320; Langan v. St. Louis, I. M. & S. R. Co. 72 Mo. 392; Jeffrey v. Keokuk & D. M. R. Co. 56 Iowa, 546, 9 N. W. 884; Kansas P. R. Co. v. Whipple, 39 Kan. 531, 540, 18 Pac. 730; Smithwick v. Hall & U. Co. 59 Conn. 261, 12 L. R. A. 279, 21 Am. St. Rep. 104, 21 Atl. 924; Philadelphia & R. R. Co. v. Hummell, 44 Pa. 379, 84 Am. Dec. 457. This is especially true where the occasion for the exercise of care to avoid injuring another is the disability of the person to be affected, as distinguished from those circumstances calling for care as to persons generally. The law does not impose upon one the duty of giving to another the care due only to the deaf, blind, and unconscious, until he has notice that such person is suffering from one of those disabilities. And where a person's danger arises from the fact of his being where he ought not to be, or where the presence of people is not reasonably to be expected, no duty is owing him until he is discovered. International & G. N. R. Co. v. Smith, 62 Tex. 252; Johnson v. Louisville & N. R. Co. 91 Ky. 651, 25 S. W. 754; Thomas v. Chicago, M. & St. P. R. Co. 93 Iowa, 248, 61 N. W. 967, 114 Iowa, 169, 86 N. W. 259; Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; Lake Erie & W. R. Co. v. Juday, 19 Ind. App. 436, 49 N. E. 843; Kansas P. R. Co. v. Whipple, 39 Kan. 531, 540, 18 Pac. 730.

When the mere negligence of another causes or contributes to the injury of a person so mentally incompetent as to be incapable of exercising care, "if the conduct of the injured person would have avoided his claim to relief if he had been capable of exercising care in his own behalf, the person inflicting the injury is not to be held to a liability which would not have been incurred under the same circumstances in favor of a person of ordinary capacity, unless he had notice of the injured person's mental deficiency, and of his consequent helplessness and peril in the circumstances in which he was placed. The duty of observing special precautions for the safety of another, because the latter, by reason of mental imbecility, cannot be influenced by the dictates of ordinary prudence, is not cast upon one who is not charged with notice of the other's peril and of his lack of sufficient intelligence to avoid it."

Worthington v. Mencer, 96 Ala. 310, 17 L. R. A. 407, 11 So. 72.

Where one person negligently comes into a situation of peril, in which his liability to injury is increased by reason of some disability. before another can be held liable for an injury to him, it must appear either that the latter had knowledge of his situation in time to prevent the injury, end faued to use ordinary care to that end, or that the injurious act or omission, considering time and place, was such that its nature and probable consequence would be to produce serious hurt to someone. Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320; Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; St. Louis, I. M. & S. R. Co. v. Monday, 49 Ark. 257, 4 S. W. 782; Birmingham R. & Electric Co. v. Bowers,

Co. v. Kellem, 14 Ky. L. Rep. 734, 21 S. W. 230; Louisville, N. O. & T. R. Co. v. Williams, 69 Miss. 631, 12 So. 957.

The presence of a man of advanced years, but strong and healthy, upon a railroad track, does not impose upon the railroad company the exercise of greater care than would be required in the case of an adult of less advanced years, unless its employees know, or have reason to believe, that such person, from some cause, is not possessed of the ordinary ability to care for himself. Green v. Southern P. Co. 122 Cal. 563, 55 Pac. 577.

If a man sleeping on a railroad track is not seen by persons operating a train, the railroad company is not liable for running over him, although the track at the place of the accident, and for a long distance on either side, is level and straight, so that an object no larger than a man's hat can be seen for 400 or 500 yards. A railroad company does not owe to trespassers the duty of keeping a lookout. Denman v. St. Paul & D. R. Co. 26 Minn. 357, 4 N. W. 605. And see cases under title, Duty to discover another's peril or disability, div. VII. subdiv. b. infra.

A railroad company cannot be held liable for mere negligence toward a person on its track, who is deaf or otherwise deficient in his faculties, so as to render him unconscious of the impending danger, unless the knowledge of such infirmity is brought home to those in charge of the train. Johnson v. Louisville & N. R. Co. 91 Ky. 651, 25 S. W. 754; Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320; Williams v. Southern P. R. Co. (Cal.) 11 Pac. 849; Tyler v. Sites, 88 Va. 470, 13 S. E. 978.

Likewise, wilful and intentional wrong, a willingness to inflict injury, cannot be imputed to one who is without consciousness, from whatever cause, that his conduct will inevitably or probably lead to wrong or injury. It is only where the engineer of a railroad train becomes actually aware of the danger of a trespasser upon a trestle, that the failure to exercise preventive effort to avert an injury can constitute such gross negligence as amounts to wantonness and recklessness. Southern R. Co. v. Bush, 122 Ala. 470, 482, 26 So. 168; Ullrich v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 358, 51 N. E. 95.

The failure to stop a train upon the sight of a man 10 or 12 feet from the track, and approaching with the apparent purpose of crossing it, is not wanton negligence, where the train is in full view of such person, and those in charge of the train are without knowledge that he is deaf. Birmingham R. & Electric Co. v. Bowers, 110 Ala. 328, 20 So. 345.

And the duty of active effort to prevent one's lawful action from resulting in injury to another arises, generally, not with knowledge of his presence in a place of possible danger, where ordinary care on his part will insure his safety, but only upon the discovery of his being in imminent peril from such action. This distinction is important in determining the question of liability for either negligent or wilful injuries. Smalley v. Southern R. Co. 57 S. C. 243, 250, 35 S. E. 489; Gulf, C. & S. F. R. Co. v. Hill (Tex. Civ. App.) 58 S. W. 255, 258 (opinion on rehearing); Orr v. Cedar Rapids & M. C. R. Co. 94 Iowa, 423, 62 N. W. 851; Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168; Ullrich v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 358, 51 N. E. 95.

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 justitrack 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 can 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 beSouthwestern 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 doubt this, from the map and evidence filed in this action."

Affirmative evidence that a child on a railroad track was seen by the engineer or fireman 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 the train and the child there was a public crossing, where it was the duty of the engineer to be on the alert, it is for the jury to say whether the child was seen by the engineer in time to stop the train. Johnston v. Atchison, T. & S. F. R. Co. 56 Kan. 263, 43 Pac. 228.

And a jury is not bound to accept the statement of a locomotive engineer that he did not discover that a woman was under his engine, nor receive warning of her perilous situation. in time to have avoided the injury inflicted, where there is evidence that the woman was screaming loudly, and that persons were running toward the engine and giving warning by gestures and loud screams. St. Louis, I. M. & S. R. Co. v. Hill (Ark.) 86 S. W. 303.

"While wantonness on the part of the engineer cannot be predicated on the mere fact that he ought to have seen deceased on the trestle, or on anything short of actual knowledge, yet this actual knowledge need not be positively and directly shown, but, like any other fact, may be proved by showing circum stances from which the fact of actual knowledge is a legitimate inference. Otherwise, in cases of this character, this fact could never be proved except by the testimony of the engineer himself. Certainly the facts that the road was straight for a long distance, the view of the track unobstructed, and the engineer was in his seat looking ahead along the track, and there was nothing to prevent him from seeing a person on the track a few hundred feet ahead. are relevant and admissible for the purpose of proving that he did see such person, and may properly be submitted to the jury on this issue; and, while no presumption arises from these facts that the engineer did see the person on the track, yet this may be inferred from these facts by the jury, whose province alone it is to decide the weight to be given to facts legally in evidence, and their effect on an issue which they are admitted to prove." Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168.

In Becker v. Louisville & N. R. Co. 110 Ky.

b. When mere belief sufficient to impose duty.

Where there are reasonable grounds to believe that a person in danger will not be able to help himself because of some mental or physical infirmity, or other disability, such belief, in the absence of actual knowledge, is sufficient to impose the duty of exercising ordinary care to avoid injuring such person. Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320; Clark v. Wilmington & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43; Tucker v. Norfolk & W. R. Co. 92 Va. 549, 24 S. E. 229; Blankenship v. Chesapeake & O. R. Co. 94 Va. 449, 27 S. E. 20; St. Louis, I. M. & S. R. Co. v. Wilkerson, 46 Ark. 513; Sibley v. Ratliffe, 50 Ark. 477, 8 S. W. 686; Anderson v. Hopkins, 33 C. C. A. 346, 63 U. S. App. 533, 91 Fed. 77.

If the conduct of a person walking upon a railroad track is such as to create in the minds of those operating a train a doubt as to whether such person is in possession of all his faculties, and to give them reason to believe that an injury will occur unless the train is checked, they are bound to use greater caution, and to stop the train, if necessary, to insure his safety. Louisville & N. R. Co. v. Cooper (Ky.) 6 Am. & Eng. R. Cas. 5; Lexington & C. C. Min. Co. v. Huffman, 17 Ky. L. Rep. 775, 32 S. W. 611; Pittsburgh, C. C. & St. L. R. Co. v. Judd. 10 Ind. App. 213, 37 N. E. 775: Campbell v. Kansas City, Ft. S. & M. R. Co. 55 Kan. 536, 40 Pac. 997; Texas & P. R. Co. v. Robinson, 4 Tex. Civ. App. 121, 23 S. W. 433; Galveston City R. Co. v. Hanna (Tex. Civ. App.) 79 S. W. 639. But see Green v. Los Angeles Terminal R. Co. (Cal.) 76 Pac. 719; Olson v. Northern P. R. Co. 84 Minn. 258, 87 N. W. 843.

Likewise, if there are circumstances sufficient to give notice to the engineer of a train that the life of a human being is in danger, as where persons are running toward the train and excitedly waving their hands, it is his duty to stop the train, or materially check its speed, although he may not in fact see any person upon the track or in danger. Donahoe v. Wabash,

St. L. & P. R. Co. 83 Mo. 543; Seaboard & R.
R. Co. v. Joyner, 92 Va. 334, 23 S. E. 773.

An engineer who sees a person on the track waving his hands, and not stepping aside, should check his train at once, though he may not know that such person's foot is caught in the track. Spooner v. Delaware, L. & W. R. Co. 115 N. Y. 22, 21 N. E. 696.

c. Negligent ignorance equivalent to knowledge.

When knowledge itself is a duty, as where there is a probability of the presence of persons liable to be affected by one's action, negligent ignorance is equivalent to knowledge. Goodrich v. Burlington, C. R. & N. R. Co. 103 Iowa, 412, 72 N. W. 653; Chesapeake & O. R. Co. v. Rodgers, 100 Va. 324, 41 S. E. 732: Murphy v. Orr, 96 N. Y. 14; Kunz v. Troy, 104 N. Y. 344, 10 N. E. 442; Moebus v. Herrmann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415; Weil v. Dry Dock, E. B. & B. R. Co. 119 N. Y. 147, 23 N. E. 487; McKeon v. Steinway R. Co. 20 App. Div. 601, 47 N. Y. Supp. 374: Levy v. Dry Dock, E. B. & B. R. Co. 35 N. Y. S. R. 769, 12 N. Y. Supp. 485; Thiel v. South Covington & C. Street R. Co. 25 Ky. L. Rep. 1590, 78 S. W. 206; Galveston City R. Co. v. Hewitt, 67 Tex. 479, 60 Am. Rep. 32, 3 S. W. 705; Werner v. Citizens' R. Co. 81 Mo. 368.

Where a man is stricken down in a fit at a private crossing, the railroad company cannot be relieved from liability for running over him, because of its failure to discover his presence upon the track in such condition. Yoakum v. Mettasch (Tex. Civ. App.) 26 S. W. 129.

A railroad company is liable for running over a man having his foot caught in a frog at a city crossing, where, if not seen, he might have been seen, by the exercise of ordinary diligence, in time to avoid the injury. Illinois C. R. Co. v. Crockett, 25 Ky. L. Rep. 1989, 79 S. W. 235.

The failure of the motorman of an electric street car to see the peril of one driving a horse which has been frightened by his car, and become unmanageable, when he might have seen it by the exercise of ordinary care, is negligence; and it is proper in such case to submit to the jury the question whether the motorman ought to have seen the frightened condition of the horse. Ellis v. Lynn & B. R. Co. 160 Mass. 341, 35 N. E. 1127; Lexington R. Co. v. Fain, 25 Ky. L. Rep. 2243, 80 S. W. 463.

Where a motorman, because of his a tention being drawn to a bicycle keeping pace with his car, failed to see a frightened horse that had sprung upon the track ahead of him, and in consequence the car struck the horse, and threw its rider to the pavement with such force as to render him insane, it was held that the court properly instructed the jury that, if the motorman could, in the exercise of reasonable care, have seen the plaintiff in time to check his car after plaintiff's horse sprang upon the track, and before the car collided with his horse, and the plaintiff was not himself guilty of negligence which contributed to his injury, then the defendant would be liable. Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531.

The misapplication of the principle of these cases to actions for injuries to trespassers has led to some conflict in the authorities. Against the holding of the authorities above cited, that knowledge of a person's peril or disability is necessary to the creation of a special duty toward such person, based upon his situation

or condition, it is contended by respectable authority that "discovery" is not a prerequisite to such duty to trespassers; that since the negligence which will defeat a plaintiff's recovery for an injury may be his failure, by the exercise of ordinary care, to discover and avoid a collision with an obstruction which the defendant had negligently placed in the highway (Butterfield v. Forrester, 11 East, 60), so, on the other hand, the defendant's failure to discover and avoid plaintiff's prior negligence may create a liability for an injury inflicted without actual knowledge of the presence or disability of the person injured. And this, it is alleged, was the true cause of action in Davies v. Mann, 10 Mees. & W. 546. See also cases cited in div. VII., subd. b, infra.

But it should be observed that in the situation presented in Davies v. Mann, 10 Mees. & W. 546, "knowledge itself was a duty," and it was for the breach of this duty that the defendant was held liable. He was upon the highway, where persons and animals were liable to be present, and it was his duty to be on the lookout for them; but, instead, he drove at a speed that prevented his discovery of the helpless donkey that lay in the road. It is only when this duty to know exists that a liability for an injury ignorantly inflicted can arise; and the duty to know exists, ordinarily, only when the duty of watchfulness is imposed; and the obligation to be on the lookout for persons arises only in places where they are reasonably to be expected. But, as persons are not reasonably to be expected where their presence makes them trespassers, the duty of watchfulness, and consequently the duty to know, does not exist as to persons in such places. Accordingly, those authorities holding that a railroad company may be liable for injury to a trespasser, although his presence and situation were not discovered, are forced to impose upon railroad companies the duty of maintaining a lookout for such persons. And it is for the breach of this unusual duty that these decisions hold railroad companies liable for injuries ignorantly inflictSmith v. Norfolk & S. R. Co. 114 N. C. 728, 25 L. R. A. 287, 19 S. E. 863, 923. VII. Duty to discover another's peril or dis

ed.

ability.

a. At places where people are likely to be present.

May one be relieved from responsibility for an injury done to a person under some disability, in the performance of an otherwise lawful act, upon the ground that he had no knowledge of the disability of such other person, when by the exercise of ordinary care the situation or condition of that person might have been discovered?

The general current of authority answers this question in the negative, where the duty of watchfulness against such result exists as to people generally. When this duty exists, its breach is negligence, for which a liability arises. And in those jurisdictions where the question of liability is determined by the application of the doctrine of proximate cause to the negligence of both parties it would make no difference that the injured party was himself negligent, if his negligence was not concurrent with that of the party inflicting the injury.

But, while the language of some of the authorities seems to impose upon railroad com

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