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panies in particular an increased obligation to ing the curb, when he was 25 or 30 feet be on the lookout at crossings where there is distant, he was negligent in not seeing him; a probability of children and infirm persons or, if he was looking, and saw the child, and being present, and entitled to their especial recklessly kept on, regardless of its known ig. care in avoidance of injury, the duty, so far norance and helplessness, he would likewise be as the obligation to discover their presence is liable. But if the child rushed suddenly from concerned, seems not to be different in kind the curb in front of the horses he would not from that owing to persons generally. The be negligent in not avoiding the injury. duty of increased care arises only when one Satinsky v. Mutual Brewing Co. 187 Pa. 57, knows, or is bound to know, of another's help- 40 Atl. 821. Jessness. And the question here is whether the The rights of a woman sixty-three years of law requires of one the exercise of ordinary age, feeble, and of defective eyesight, to walk care to discover such helplessness or disability, across a public street, are not subordinate to and thereby imposes the duty of such increased the rights of one driving thereon. And there care toward persons thus situated, although can be no urgent necessity which will justify actual knowledge of their situation or condition one driving in such a careless and reckless is wanting, if, by the exercise of ordinary care, manner as to endanger the persons or lives of it might be discovered. Some of the cases cited those who are properly and lawfully upon the pertain to the duty owing to children, as to street, and who themselves are in the exercise whom the same rule governs as is applied in of due care. Eaton v. Cripps, 94 Iowa, 176, cases of physical infirmity or other disability. 62 N. W. 687.

As to the duty of railroad companies to dis- In view of the fact that persons may be excover children upon their tracks, see note to pected to cross a street car track at any point Bottoms v. Seaboard & R. R. Co. 25 L. R. A. on the line, and at any time, the law imposes 784. And for authorities as to the duty of rail. upon motormen the duty of exercising ordinary road companies to maintain a lookout from care to discover persons and avoid injuring their trains for persons generally, whether at them. Persons operating street cars are bound crossings or elsewhere, see note to Smith v. to know that men, women, and children have Norfolk & S. R. Co. 25 L. R. A. 287.

an equal right to use the highway, and will First, as to the duty to maintain a lookout be upon it. It is their duty, therefore, to be along highways and at railroad crossings. on the lookout, and to avoid injury to persons

Drivers of vehicles are required not only to who, because of some disability, are liable to make a vigilant use of their senses to discover injury if the car is not stopped. Thiel v. anyone exposed to danger, but so to control the South Covington & C. Street R. Co. 25 Ky. L. movements of their teams as to avoid doing Rep. 1590, 78 S. W. 206 ; Levy v. Dry Dock, E. him injury, to the extent of their power, when B. & B. R. Co. 35 N. Y. S. R. 769, 12 N. Y. discovered Therefore, where the driver of a Supp. 485. vehicle runs down an aged and lame pedestrian. To be on the watch is no more than ordinary who is seen by him when 15 feet distant, and care under such circumstances. If, therefore, probably could have been seen at a greater | by being on the lookout, the driver of a street distance, the question of his negligence is for car, by the exercise of ordinary care, can disthe jury. Barker v. Savage, 45 N. Y. 191, 6 cover the presence of a child on the track in Am. Rep. 66.

time to avoid injuring it, it is his duty to do And where one who is unobservant drives so. Passamaneck v. Louisville R. Co. 98 Ky. over a child in the highway, when he might 195, 32 S. W. 620. have avoided the injury if he had maintained Street railways have no exclusive right "to a reasonable lookout, as it was his duty to do, the use of the part of a street covered by their he is liable for the damage inflicted. Murphy track, but all persons have the right to use v. Orr, 96 N. Y. 14; Birkett v. Knickerbocker the street for the purposes for which streets Ice Co. 110 N. Y. 504, 18 N. E. 108; Barrett are ordinarily used ; and, from this fact, such v. Smith, 128 N. Y. 607, 28 N. E. 23; Elze v. companies may expect that other persons will Baumann, 2 Misc. 72, 81, 21 N. Y. Supp. 782; use the street, as they have the right to do, and Cowan v. Snyder, 1 Silv. Sup. Ct. 396, 5 N. Y. it is therefore incumbent upon them to ascerSupp. 340 ; Sykes v. Lawlor, 49 Cal. 236 ; Sum- tain whether the track be clear." Hence, mers v. Bergner Brewing Co. 143 Pa. 114, 24 though a child under two years of age sudAm. St. Rep. 518, 22 Atl. 707 ; Stringer V. denly enters upon the track but a short dis Frost, 116 Ind. 477, 2 L. R. A. 614, 9 Am. St. tance in front of a car, yet, if an injury to it Rep. 875, 19 N. E. 331 ; Vaughn v. Scade, 30 may be avoided by the exercise of proper care Mo. 600.

after the driver sees it, the railway company This is true, not only at cross walks, but will be liable. Galveston City R. Co. v. elsewhere. The driver of a vehicle is bound to Hewitt, 67 Tex. 479, 60 Am. Dec. 32, 3 S. W. be watchful at all points, and, if he drives over 705. a child, whom he does not see because he is The driver of a street car, who sees an oblooking backward, and conversing with another, ject on the track at suflicient distance ahead to he is guilty of negligence. Moebus v. Herr- enable him to stop his car to avoid injury, mann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 and can ascertain the same to be a human N. E. 415.

being by checking his horses and driving slow. If the driver of a vehicle knows that a child, ly, but who, supposing the object to be idiot, or lunatic, is in the highway, he is bound bundle of hay or sack of oats, drives recklessly to a proportionate degree of watchfulness; and over it, which proves to be, a drunken man. what would be ordinary neglect in regard to is guilty of wilful injury. Werner v. Citizens' one supposed to be of full age and capacity R. Co. 81 Mo. 368. would be gross neglect as to a child, or one It is culpable negligence for the motorman known to be incapable of escaping danger, of a street car company to run over a man Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67. lying in an unconscious condition upon the

Where a driver, if he had been on the look- track in the night time, where the headlight of out, could have seen a child two years old leav. the car enables the motorman to see 25 feet

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ahead of him, and the accident can be avoided duty to keep a lookout for such travelers, and by the exercise of ordinary care.

McKeon v. to use every reasonable precaution consistent Steinway R. Co. 20 App. Div. 601, 47 N. Y. with the proper operation and management of Supp. 374.

their trains to avoid injuring them." The negli. Where a gripman in charge of a car testified / gence of an engineer with respect to persons in that he did not see the plaintiff, a cripple, untii perii at such places is measured not by what she was about 5 feet from his car, when it he knew, but by what any reasonably prudent was too late to stop the car before a collision, and careful engineer would or should have yet, if he had seen her as soon as two witnesses known and done under similar circumstances. who called to her, he might have stopped the Therefore, where an engineer opened the steam car in time to avoid the injury, it

cocks of his engine, and began to move the held that the evidence presented a fair ques same, while plaintiff was trying to calm a tion for the jury whether the gripman could frightened horse near the crossing, and therenot have seen the plaintiff sooner than he did by the horse became more frightened, and if he had been as vigilant as he ought to have sprang down an embankment, and plaintiff was been ; and the court quotes the following state- thrown from his buggy and injured, it was held ment of the law as to the duty of watchful- error to instruct the jury that the railroad ness on the part of street car drivers : "In a company's liability depended upon whether the large, populous city, where all descriptions of circumstances within the knowledge of the envehicles are constantly passing and repassing. gineer admonished him of plaintiff's danger. as well as persons on foot, including the aged | Inabnett v. St. Louis, I. M. & S. R. Co. 69 Ark. and infirm, as also children who are young and 130, 61 S. W. 570. wanting in prudence and discretion, it is the An engine driver operating an engine along duty of drivers of cars, not only to see that the a public thoroughfare, where old and infirm railroad track is clear, but also to exercise a persons, children, and drunken persons are liconstant watchfulness for persons who may be able at all times to be present, is required to approaching the track. Unless he does he exercise more diligence than at other portions does not exercise that ordinary care and pru- of the road, although such persons be negligent. dence which the law imposes on him." Bal What might be justifiable at other places might timore Traction Co. v. Wallace, 77 Md. 435, 26 be such gross negligence at a street crossing as Atl. 518.

to amount to wilful misconduct. Illinois C. If the motorman of a street car, by the ex- R. Co. v. Hutchinson, 47 Ill. 408. ercise of ordinary care, can see that his car has Whether a railroad company is required to frightened a horse, which thereby has become maintain a lookout or not, it is its duty to use unmanageable, and that there is danger of a reasonable care and diligence to prevent accicollision, the company will be liable if the car dents at intersections of its right of way with is not stopped in time to avoid injury. Lexing.city streets; and where a person with his foot ton R. Co. v. Fain, 25 Ky. L. Rep. 2243, 80 caught in the track could have been discovered S. W. 463 ; Ellis v. Lynn & B. R. Co. 160 Mass. if a lookout for danger to persons on the track 341, 35 N. E. 1127.

had been maintained, and the cars could have All railroad companies are under an im

been stopped in time to prevent the accident, perative obligation, upon approaching a road

the question of the company's negligence is for crossing, to use due care and caution to avoid

the jury. Goodrich v. Burlington, C. R. & N. injury to others lawfully traversing the high- R. Co. 103 Iowa, 412, 72. N W. 653. way; and to the extent that they fail to employ A woman, not in charge of a child, undertook that care and caution they are responsible for to carry it across a railroad track, but stumbled injuries resulting from such omissions. There and fell, and the child was thrown upon the is a failure of such duty where a train is backed track before an approaching train and injured. up over a crossing in a populous locality, with The train was backing on a public street in a out a bell being rung or other signal being giv closely built part of the city without a lookout en, and in charge of a brakeman who is at the being maintained, and those in charge of the time on the platform between two cars, where train were in such position that they could not he cannot see a child upon the track, or have

see any considerable distance in the direction notice so as to apply the brakes. Byrne v. New of the motion. It was held that the evidence York C. & H. R. R. Co. 83 N. Y. 620, 104 N. of the railroad company's negligence was sufY. 362, 58 Am. Rep. 512, 10 N. E. 539 ; Lortzficient to go to the jury. North Pennsylvania v. New York C. & I. R. R. Co. 7 App. Div. 515, R. Co. v. Mahoney, 57 Pa. 187. 40 N. Y. Supp. 253.

In Yoakum v. Mettasch (Tex. Civ. App.) 26 If the presence of a person with his foot S. W. 129, a man who had fallen in a fit upon caught in a frog at a switch at a crossing might the railway track at a crossing was run over have been discovered, by the exercise of ordi- and killed, and it was contended that the law nary care, in time to avoid injury, the railroad does not impose upon railway companies the company is liable.

Illinois C. R. Co. v. Crockett, duty of keeping a reasonable lookout for persons 25 Ky. L. Rep. 1989, 79 S. W. 235.

"upon their tracks." But the court held ihat, It is the duty of an engineer to see that per- the deceased having gone upon the track at a sons at a crossing act on the notice given by private crossing, where he had a right to be. the ringing of the bell, and if he runs his the authorities all agree that those in charge of train backwards he is not excusable because he the train were required to exercise ordinary does not, or cannot, see a person on a trestle care, not only to protect him when discovered in adjoining the crossing, whither she had run to a helpless condition upon the track, but also escape the sudden movement of the train toward to ascertain whether or not he was upon the her while crossing the track. Robinson v. West- track in such condition. ern P. R. Co. 48 Cal. 409.

A contrary rule seems to be laid down in Railroads are required to exercise "a high Western Maryland R. Co. v. Kehoe, 83 Md. 434, degree of care for the protection and safety of 35 Atl. 90, where it is said that, while railroad travelers upon the highway at and in proximity companies are under an imperative obligation, to public crossings in cities. It is their positive upon approaching a road crossing, to use due care and caution to avoid injury to others law., obstructed view of the child's situation and fully "traversing the highway," yet this duty peril, and, as the findings show, could, by the is "only coextensive with the correlative right exercise of ordinary care, have avoided runof the individual to use the highway for pur ning bis engine over and crushing his leg. That poses of transit," and is not applicable to a being the case, the plaintiff's negligence was person who has been thrown upon the track not proximate, and not a proximate cause of through negligent driving, and is lying there his injury, and did not proximately contribwhen run over by a train.

ute thereto, according to the long-established And in Indiana a boy who lies down at a legal principles both in this country and in railroad crossing, and goes to sleep, with his England." It is evident that if the child leg over one rail, and who is of sufficient age to asleep at the crossing was in a place where appreciate the danger, although not a tres- persons might reasonably be expected to be passer, is guilty of contributory negligence, and present, then the exercise of ordinary care recannot recover for injuries from being run over quired that defendant be on the lookout for by a passing train, if those in charge of the persons at such place; and if, with such looktrain do not discover him. Because the en- out, the child might have been discovered, and gineer did not see the boy, it is said, he was his injury avoided, his negligence in going to not chargeable with wilful or wanton injury, sleep on the track was not the proximate cause and the lad's contributory negligence was a of his death, but the subsequent negligence of complele answer to any charge of simple neg.

the defendant was such cause. This is the ligence. Krenzer v. Pittsburg, C. C. & St. L. very question which Davies v. Mann, 10 Mees. R. Co. 151 Ind. 587, 68 Am. t. Rep. 252, 43 & W. 546, determines, and its position is supN. E. 649, 52 N. E. 220.

ported by the greater weight of authority. In the opinion upon a rehearing in the case As is well said in one of the leading works last cited the doctrine of Davies v. Mann, 10 on Negligence, “The rule that a plaintiff is, Mees. & W. 546, is, in terms, approved ; but the as matter of law, negligent if he fails to see court says: “In every case, one who has him- what he was bound to look for and ought to self contributed to his own injury must suffer have seen, is rigidly enforced ; and the same the consequences of his own want of due care, rule must, in common justice, be applied to the unless it should appear that the one injuring defendant.” 2 Shearm, & Redf. Neg. 5th ed. $ him knew of his condition in time to have 184. avoided the injury, and could with ordinary And the testimony of those operating a train care have avoided it." The duty of being on that they did keep a lookout, but did not disthe lookout in places where persons may be cover a helpless person upon the track, is not reasonably expected to be present, to prevent conclusive, although it is not contradicted by an action, which imperils human life, result- other witnesses. If a man who is required to ing in injury to others, is thus repudiated, as watch in order to see an object says he did a care that is not due to helpless persons if watch, but did not see it, when the object was they have been guilty of negligence. The duty there to be seen, and visible, and there was no of care as to such persons, the court holds. obstruction to sight, and plenty of light, the arises only "with knowledge," and then only court or jury is not bound to find that he did because the absence of such care would amount keep a lookout, but did not discover the object. to “wilful injury ;" for it is said, "in order to Gunn v. Ohio River R. Co. 42 W. Va. 676, 36 charge the company with responsibility, there L. R. A. 575, 26 S. E. 546. See further, cases must have been either wilfulness or wanton cited under div. VI., subdiv. a, supra. ness on its part, or else negligence; and in Second, as to duty to maintain lookout at the latter case the plaintiff must himself have places where persons are likely to be present, been free from contributory negligence." It other than the highway and at crossings. will be perceived that the doctrine of this case. "When there is reason to apprehend that the like that of the preceding Maryland case, is di- track may not be clear notwithstanding the rectly opposite to that of Davies V. Mann, right of the company to have it clear, persons which both courts assume to approve. For operating a train cannot act upon the presumpboth courts deny recovery to the plaintiff for tion that the track is clear, without being doing substantially the same thing that the responsible for the consequences." Therefore, owner of the donkey did in the English case, some vigilance is required of a railroad comviz., placing himself in a helpless condition in pany to discover trespassers on its tracks bethe highway, where he would be subject to tween streets in a town or city; and if an injury, unless others, while exercising ordinary injury to a little child on a railroad track, care, should observe and avoid him. It is true, between crossings in a city, might have been in the Maryland case, that, in being thrown avoided if the engineer, by the exercise of orfrom his carriage, the man fell a few feet dinary care, could have discovered it in time away from the highway; but the court bases to stop the train, the company is liable. Frick its opinion upon the fact that he was "lying v. St. Louis, K. C. & N. R. Co. 75 Mo. 595 ; upon the track," instead of being in the act of Bellefontaine & I. R. Co. v. Snyder, 18 Ohio passing over it, when the train struck him. St. 399, 98 Am. Dec. 175; Pennsylvania R. Co. The dissenting opinion of McCabe, J., in the v. Lewis, 79 Pa. 33; Kay v. Pennsylvania R. Indiana case is more in line with the doctrine Co. 65 Pa. 269, 3 Am. Rep. 628; Taylor y. of Davies v. Mann, as interpreted by the pre- Delaware & H. Canal Co. 113 Pa. 162, 57 Am. ponderance of authority. He says:

Even Rep. 446, 8 Atl. 43; Barry v. New York C. though the child be held responsible and guilty & H. R. R. Co. 92 N. Y. 289, 44 Am. Rep. 377; of negligence in falling asleep upon the rail. Daley v. Norwich & W. R. Co. 26 Conn. 591, road track with one leg across the rail, yet that 68 Am. Dec. 413; Sloniker v. Great Northern negligence is shown by the findings of the jury R. Co. 76 Minn. 306, 79 N. W. 168; Townley to have been antecedent and prior to the es- v. Chicago, M. & St. P. R. Co. 53 Wis. 626, tablisi:ed negligence of apprllee's engineer. For 11 N. W. 55 ; Whalen v. Chicago & N. W. R. 300 feet before reaching the chid thus sleeping Co. 75 Wis. 654, 44 N. W. 849 ; South & North on the track, the engineer had a clear, un- Ala. R. Co. v. Donovan, 84 Ala. 141, 4 So.

142; Roth v. Union Depot Co. 13 Wash. 525, 28 Tex. Civ. App. 613, 68 S. W. 539 ; Thompson 31 L. R. A. 855, 43 Pac. 641, 44 Pac. . 253; v. Missouri, K. & T. R. Co. 11 Tex. Civ. App. Crawford v. Southern R. Co. 106 Ga. 870, 307, 32 S. W. 191 ; Louisville & N. R. Co. v. 33 S. E. 826; Felton v. Aubrey, 20 C. C. A. Popp, 96 Ky. 99, 27 S. W. 992; Tully v. Phil436, 43 U. S. App. 278, 74 Fed. 350, 356; adelphia, W. & B. R. Co. 2 Penn. (Del.) 537, Garner v. Trumbull, 36 C. C. A. 361, 94 Fed. 82 Am. St. Rep. 425, 47 Atl. 1019. 321.

Where a railroad trestle has been in conIn such case, it is said, by Justice Andrews, stant and daily use as a walk-way for some in Barry v. New York C. & H. R. R. Co. / years by a large number of persons in the vicin. 92 N. Y. 289, 44 Am. Rep. 377, supra, that ity, and such use is well known to the railroad the railroad company “is an actor at the time company and its employees, it is the duty of in creating the circumstances which imperil the company to use reasonable care to discover, human life," and, therefore, owes to the people and not to injure, persons it may reasonably crossing its tracks the duty of exercising care expect to be on its track at such point, whether in the movement of its trains.

they are trespassers or licensees, and although And in Kay v. Pennsylvania R. Co. 65 Pa. at each end of the trestle is placed, in con269, 3 Ani. Rep. 628, supra, Justice Agnewspicuous letters, the warning, “Caution. Keep says: “Conceding the right of the railroad com- off the bridge." Chesapeake & O. R. Co. v. pany to the exclusive use of its tracks over the Rodgers, 100 Va, 324, 41 S. E. 732; Cassida lot, as the learned judge held, the true question v. Oregon R. & Nav. Co. 14 Or. 551, 13 Atl. is whether the circumstances created a different 438; Patton v. East Tennessee, V. & G. R. Co. duty. ... Duties grow out of circumstances. $9 Tenu. 370, 12 L. R. A. 184, 15 S. W. 919; the authorities tell us, and that which in one Hooker v. Chicago, M. & St. P. R. Co. 76 Wis. case would be an ordinary and proper use of 542, 44 N. W. 1085. one's rights may, by a change of circumstances, A man of the age of seventy-seven years, and, become negligence and a want of due care. .. feeble in mind, was found by one of defendant's In the present case the negligence charged employees walking between tracks in its tunnel. consisted of a positive act of carelessness, in Upon the direction of the employee, he atsending a car round a curve out of sight, on tempted to take a position close to the side a descending grade, at a place where persons of the tunnel, to get out of 'the way of an apmight be expected to be, from the permissive proaching car, and fell into a conduit. The use suffered by the company. It was the duty employee then undertook to lift him out of his of the court, therefore, to have submitted the perilous position, but before he could do so the facts to the jury for their determination wheth- car came upon them, and, the man refusing to er there was negligence or not."

put his head down in the conduit while the car But according to some authorities, upon a passed over him, he received injuries from similar state of facts, the railroad company is which he died. There was evidence that, if the not liable, unless the injury was wilful, or was motorman had maintained a lookout ahead, he inflicted maliciously, as with gross and reck- would have discovered the men in time to less carelessness. Morrissey v. Eastern R. Co. prevent the accident. It also appeared that, 126 Mass. 377, 30 Am. Rep. 686; Wright v. while defendant maintained the sign “No admitBoston & A. R. Co. 142 Mass. 296, 7 N. E. 866 ; tance" at the entrance of the tunnel, it was Byrnes V. Boston & M. R. Co. 181 Mass. 322, used by numbers of people daily to the knowl63 N. E. 897; Griswold v. Boston & M. R. Co. edge of defendant's motormen. It was held 183 Mass. 434, 67 N. E. 354; Baltimore & 0. that defendant was negligent in not discoverR. Co. v. Allison (Md.) 19 Am. & Eng. R. Cas. ing the perilous position of the men in time 83; Glass v. Memphis & C. R. Co. 94 Ala. 581, to stop the car. “Whenever the motorman or 10 So. 215, versing, in effect, South & North engineer, in the operation of its cars, fore Ala. R. Co. v. Donovan, 84 Ala. 141, 4 So. 142. reaching a point along the line of its railway,

"Where a number of children, ranging in has reasonable ground to expect or anticipate age from six to fifteen years, are, with the the presence of persons so near the railroad knowledge and without the disapproval of the track to endanger them, then the law, employees of a railroad company in charge of through its high regard for the preservation of its trains, permitted to board and ride upon human life, requires and demands such operathe trains while they are passing over a side tives to be on the alert, and to keep a lookout track through a playground of the children for the realization of the anticipation or exto a point beyond, and while they are returning pected presence of the person.

On the from such point to the main line of the road. other hand, the operatives of a railway are the children alighting from the trains at the

entitled to the presumption that there is a clear limits of the playground both going and re- track, and, while care and caution should be turning; and this custom is a continuous one, exercised in the operation of their trains, they engaged in whenever the trains enter the play- are not responsible to trespassers for failure ground,-it is the duty of the employees of a to be on the alert to discover them, in the abtrain, who are aware of this custom, to an- sence of any reasonable grounds for the exticipate that when the train enters the play pectation or anticipation of their presence on ground the children will attempt to ride upon the track." Fearons v. Kansas City Elev. R. it and alight from it at the point where they Co. 180 Mo. 208, 79 S. W. 398. have been accustomed to do so; and they are under a further duty, consequent upon the first, b. Whether duty exists as to trespasser8. to take proper measures to prevent injury to such children." Ashworth v. Southern R. Co. Upon the duty of railroad companies to 116 Ga. 635, 59 L. R. A. 592, 43 S. E. 36.

maintain a lookout for persons generally, inThe opinion in the last-cited case refers to cluding trespassers, see notes, Duty as to perthe following cases in which railroad companies son8 exposed to danger on railroad tracks, 6 were heid under similar circumstances to the L. R. A. 243; Railroad company; duty owed to exercise of care to discover persons on their intruders and trespassers, 10 L. R. A. 139; tracks: St. Louis S. W. R. Co. v. Abernathy, | Railroad company; duty to avoid injury to tres

as

on

passers on its premises, 13 L. R. A. 248; and guard, locomotive, brake appliances, Duty to maintain lookout on railroad train, 25 or of the speed or manner of running the train L. R. A. 287.

up to the moment of notice, because no breach If a trespasser is injured through the proper of positive duty is involved. It is confined to and usual use of premises, when the owner is the evidence relating to the discovery. by the without knowledge of his presence, the fault engineer and fireman of the plaintiff's peril, would seem to be his own, for the owner has and to the efforts then made to avert the innot been guilty of any wrong in such use of jury, and, out of that, to ascertain whether, his own property. But does the owner of in any view which may justly be taken, it is property owe any duty to a trespasser to use shown that these men or the engineer, in disordinary care to discover his presence, and the regard of the duty which then confronted them, fact that because of some disability he is un- neglected to employ with reasonable promptconscious of his peril, or unable to escape from ness the means at hand for stopping the train." it, and on that account to endeavor to avoid Since a railroad company is not bound to the infiiction of injury, when the ordinary use watch for trespassers on its tracks, it is not of his property is calculated to have such chargeable with negligence in not discovering result? The conclusive answer to this question a boy trespasser blinded with smoke and cinwould seem to be, that the owner has the right ders from a passing train, although he might to presume that persons will not be found where have been discovered in time to avoid a colli. they have no business to be, and to rely upon sion. Masser v. Chicago, R. I. & P. R. Co. 68 that presumption until he has actual knowl. | Iowa, 602, 27 N. W. 776. edge of their presence. The authorities which Nor for its failure to discover a girl, who has deny the existence of a duty to discover the seated herself upon the track in the night. presence of trespassers reach that conclusion time, and there fallen asleep, or been taken from three different standpoints or premises. suddenly ill. Parish v. Western & A. R. Co. while another line of authorities affirms the 102 Ga. 285, 40 L. R. A. 364, 29 S. E. 715. existence of such duty :

The fact that a person walking on a railroad First. The rule ipproved by the preponder. I track is suddenly overcome by sickness, and ance of authority, is that the duty of exercis- then rendered helpless, does not impose upon ing ordinary care to avoid injury to another is

the company any greater degree of care than it due to trespassers as well as to other persons, owes to persons in full vigor of mind and body, but that such duty does not arise as to tres which is to guard against injury to them, after passers until their presence or disability is dis

it is made aware of their peril. It is not bound covered, and hence no duty exists to discover

to anticipate their presence

the

track. their presence.

Purcell v. Chicago & N. W. Louisville & X. R. Co. v. Thompson, 14 Ky. R. Co, 109 Iowa, 628, 77 Am. St. Rep. 557, 80 L. Rep. 815. N. W. 682, 117 Iowa, 667, 91 N. W. 933 : Neither does the fact that a trespasser on Thomas v. Chicago, M. & St. P. R. Co. 93 lowa. the track is deaf alter the rule, if those in 248, 257, 61 N. W. 967 ; Western Maryland R. charge of the train causing the injury are not Co. v. Kehoe, 83 Md. 435, 35 Atl. 90; Omaha

aware of his disability. Louisville & N. R. Co. v. & R. Valley R. Co. v. Cook, 42 Neb. 577, 60

Cooper, 7 Ky. L. Rep. 102 ; Mobile & O. R. Co. N. W. 899, Opinion on rehearing. 42 Neb. 905, v. Stroud, 64 Miss. 784, 2 So. 171 ; Carrier v. 62 N. W. 235; Donahoe v. Wabash, St. L. & P. Missouri P. R. Co. 175 Mo. 470, 74 S. W. 1002. R. Co. 83 Mo. 543 : Barker v. Hannibal & St. Though the engineer of a train is reading in. J. R. Co. 98 Mo. 50, 11 S. W. 254 ; Zumault stead of being on the lookout, and in conseKansas City Suburban Belt R. Co. 175

quence runs over a man asleep on the track, Mo. 288, 74 S. W. 1015; Carrier v. Missouri

the railroad company is not liable, although P. R. Co. 175 Mo. 470, 74 S. W. 1002 ; Central

if the usual lookout had been kept the engiR. & Bkg. Co. v. Vaughan, 93 Ala. 209, 30

neer would have discovered the trespasser, and Am. St. Rep. 50, 9 So. 468; Pannell v. Nash

could easily have prevented the accident. Wilville, F. & S. R. Co. 97 Ala. 298, 12 So.

liams v. Southern P. R. Co. 72 Cal. 120, 13 236; Southern R. Co. v. Bush, 122 Ala. 470,

Pac. 219. 26 So. 168; St. Louis, I. M. & S. R. Co. v.

In Newport News & M. Valley Co. y. Howe, Hill (Ark.) 86 S. W. 303; Esrey V. Southern

3 C. C. A. 121, 6 U. S. App. 172, 52 Fed. 362, P. R. Co. 88 Cal. 399, 26 Pac. 211, 103 Cal.

it is said that an engineer who fails to keep 541, 37 Pac. 500; Becker v. Louisville & N. R.

a sharp lookout upon the track is not wanting Co. 110 Ky, 474, 53 L. R. A. 267, 96 Am. St.

in due care with respect to a man asleep upon Rep. 459, 61 S. W. 997; Vanarsdall v. Louis

the track, because of the presumption, upon ville & N. R. Co. 23 Ky. L. Rep. 1666, 65 S.

which the engineer has a right to rely, that no W. 858: Anderson v. Chicago, St. P. M. & 0.

one would be so grossly negligent in courting R. ('o. 87 Wis. 195, 23 L. R. A. 203, 58 N. W.

death. 79; New York, N. II. & II. R. Co. v. Kelley,

Neither is there any reason for anticipating 35 C. C. A. 571, 93 Fed. 745.

the presence of an infant, more than of an In Sheehan v. St. Paul & D. R. Co. 22 C. C.

adult, lying on a railroad track, at a point A. 121, 46 U. S. App. 498, 76 Fed. 201. where

where he has no right to be. Goodman v. recovery was denied to a boy injured by a Louisville & N. R. Co. 63 L. R. A. 657, 25 Ky. railroad train running over him while his foot L. Rep. 1086, 77 S. W. 174; McMullen v. was caught in a cattle guard, it is held that, Pennsylvania R. Co. 132 Pa. 107, 19 Am. St. as to trespassers, the duty of a railroad com- Rep. 591, 19 Atl. 27. pany is not “pre-existing. but arises at the In Louisville & N. R. Co. v. Logsdon, 26 moment of discovery, and is negative in its Kr. L. Rep. 457, 81 S. W. 657, it is held that nature, --a duty which is common to human elsewhere than in towns and cities, or where conduct, to make all reasonable effort to avert for any reason the presence of persons on the injury to others from means which can be con- track should be anticipated, a railroad is under trolled.

It excludes all inquiry re. no more obligation to keep a lookout for a child specting the character of the roadbed, cattle trespasser than for an adult, and is bound to

V.

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