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use all reasonable care to prevent injury only | provident circumspection which, as far as posafter the peril of either is discovered. And it is said: "If infants were made an exception to the rule, and railroad companies were required to keep a lookout for them at all places along their track, on account of their helplessness, the same principle would have to be applied to idiots, lunatics, epileptics, the deaf, the blind. and the like. This would destroy the rule and make it inconsistent with itself, for, if the presence of no persons is to be looked for on the track, the presence of persons infirm or unable to take care of themselves is not to be anticipated, and the defendant cannot be re quired to guard against a danger which is not to be anticipated by a person of ordinary pru dence."

The fact that a man sixty years of age, de crepit, hard of hearing, and with defective sight. might have been discovered walking on a railroad trestle in time for the company's employees to stop the train which ran him down, if a proper lookout had been maintained. will not render the company liable, if the in jured party was not in fact seen until too late to avoid injury. Maloy v. Wabash, St. L. & P. R. Co. 84 Mo. 270.

Neither is the company liable for an error of judgment on the part of the engineer, in failing to identify an object on the track as a sleeping man until it is too late to stop the train. New York, N. II. & H. R. Co. v. Kelly. 35 C. C. A. 571, 93 Fed. 745; Murch v. West ern N. Y. & P. R. Co. 78 Hun, 601, 29 N. Y. Supp. 490.

Failure to stop a train upon first sight of an object, which the engineer then thought to be something other than a human being, but which. at length, was discovered to be a child, will not fix the liability of the railroad company "The test of responsibility is, did the striking of the child by the train occur after the en gineer had seen.--not might or ought to have seen, that is, discerned or distinguished, the girl. Until the girl had been seen-discerned to be a human being-the engineer was under no obligation to the trespasser to check or stop his train, whatever may have been his obligation to the passengers who were being hauled by him." Louisville, N. O. & T. R. Co. v. Williams. 69 Miss. 640, 12 So. 957.

In an action for injuries received by a mar who negligently sat down between two cross ties of a railroad track, and went to sleep. with his head resting on his hand, and in clined toward the rail nearest him, evidence is not admissible to show that the track at the place of the accident, and for a long distance on either side of such place. is level and straight, so that an object on it no larger than a man's hat may be seen for 400 or 500 yards. Denman v. St. Paul & D. R. Co. 26 Minn. 357. 4 N. W. 605.

What appears to be a lucid and accurate statement of a railroad company's relation to trespassers upon its tracks is found in Seaboard & R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773, where a man was lying on the track with his head in the hollow of his arm and it is said that a railroad company has the exclusive right to the uninterrupted enjoyment of its roadbed, track, and other property. It owes no special duty to mere trespassers; but, when It is said that it owes to trespassers "only the duty of ordinary care, it is intended merely to say that trespassers are not entitled to that

sible, foresees and forestalls danger. That high degree of duty is owed to passengers only,but, where the danger of the trespasser is discovered, it then becomes the duty of the railroad company to avoid the infliction of injury, without regard to the fact that the trespasser was himself guilty of contributory negligence. It is then incumbent upon the company to do all that can be done, consistently with its higher duty to others, to save the trespasser from the consequences of his own improper act." This statement of the law is approved in Tucker v. Norfolk & W. R. Co. 92 Va. 549, 24 S. E. 229; Norfolk & W. R. Co. v. Dunnaway, 93 Va. 29, 36, 24 S. E. 698.

In Blankenship v. Chesapeake & O. R. Co. 94 Va. 449, 457, 27 S. E. 20, the rule making railroad companies liable for injury to a trespasser after his peril was discovered, "or by ordinary care and caution might have been discovered," which is supported by some authorities, is construed to mean, not that it is the duty of a railroad company to keep a lookout for trespassers, but that, where it has such notice or Lelief that someone may be in danger as ought to put a prudent man on the alert, it then becomes the duty of the company to be on the lookout. This case may be said, therefore, to overrule Tyler v. Sites, 88 Va. 470, 13 S. E. 978, 90 Va. 539, 19 S. E. 174, where it is said, without qualification, that "a railroad company is bound to keep a reasonable lookout for trespassers upon its track."

The distinction made in the Blankenship Case is important. though it is difficult to discover its application under the circumstances there presented. It is this,-that, while a railroad company does not owe to a trespasser the duty to discover his presence upon the track, ret. where the attention of those operating a train is arrested by seeing an indistinguishable object on the track, which may be a human being, it then becomes their duty to discover what that object is, and whether, because of some disability, if a human being. it will be necessary to stop the train to avoid injury. The point is not always so clearly made, but the principle finds general recognition in the decisions, which, in the language of Lord Denman in Colchester v. Brooke, 7 Q. B. 377, is that everyone in the conduct of that which may be harmful to others, if misconducted, is bound to use due care and skill, even as to a wrongdoer. See in support of the rule, cases cited under div. VI., b, supra, and div. VII., c. infra.

And further, if the disabled trespasser is in a place where the presence of persons may be reasonably expected, and by the exercise of ordinary care he might be discovered, and the infliction of injury avoided, then the failure to discover him is negligence. Fearons v. Kansas City Elev. R. Co. 180 Mo. 208, 79 S. W. 394. And see cases cited under the last preceding division of this note.

Second. The duty to discover a trespasser's disability is likewise denied in those jurisdictions which repudiate the doctrine that such care is due to one who has exposed himself to the risk of injury. In such jurisdictions the only duty owing a trespasser is to refrain from wilful or wanton injury. And this is true whether he happens to be suffering from some disability or not.

As to trespassers, the liability of a rail

Atl. 987; Smalley v. Southern R. Co. 57 S. C. 243, 35 S. E. 489.

A child seven years of age, asleep upon a railroad track, being a trespasser, the engineer's duty is measured and covered by his abstention from wilful or wanton negligence. Louisville, N. O. & T. R. Co. v. Williams, 69 Miss. 631, 12 So. 957.

road company is measured by the conduct of | Brague v. Northern C. R. Co. 192 Pa. 242, 43 its employees after they become aware of their presence upon the track. That liability, however, after such knowledge, cannot be fixed by the negligence of such employees, and this for the reason that, as to such negligence, the con tributory negligence of appellee (trespasser) would defeat his right of recovery. No lia bility can arise, therefore, for the failure of a railroad company to discover a trespasser upon its right of way, though he is suffering from some disability. Palmer v. Chicago, St. L. & P. R. Co. 112 Ind. 250, 254, 14 N. E. 70.

This seems formerly to have been the rule in New York. For instance, in Tonawanda R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239, 4 N. Y. 349, 53 Am. Dec. 384, which was an action for killing an animal trespassing on defendant's track, it is said that "a man is under no obligation to be cautious and cir

A trespasser upon a switch track laid through a narrow archway in a mill, from which there is no means of escape from a train running thereon, cannot recover for injuries | cumspect toward a wrongdoer." But it is from collision with a train run through the arch at an excessive speed, although persons are in the habit of passing through the arch. since the railroad company is not required to anticipate their presence. Parker v. Pennsyl vania Co. 134 Ind. 673, 23 L. R. A. 552, 34 N. E. 504.

A railroad company owes no duty to discover a trespasser who has his foot caught In its track, and it cannot be held liable for running over him in ignorance of his situation. It has the right to run its trains without reference to such intrusion, and, even after the trespasser is seen upon the track by those in charge of a train, they may act upon the presumption that he will step aside in time to avoid a collision, unless it is also obvious that. owing to his condition or circumstances over which he has no control, he cannot extricate himself from the danger which menaces him. St. Louis, I. M. & S. R. Co. v. Monday, 49 Ark. 257, 4 S. W. 782; Louisville, N. A. & C. R. Co. v. Phillips, 112 Ind. 59, 2 Am. St. Rep. 155. 13 N. E. 132.

Where it appears that the person injured by a railroad train was lying upon the track, the burden is upon the plaintiff, and not upon the defendant, to prove that the presence of the deceased might have been discovered in time to avoid injury, and that the railroad company wilfully or recklessly killed him. St. Louis & S. F. R. Co. v. Townsend, 69 Ark. 380, 63 S. W. 994: Parish v. Western & A. R. Co. 102 Ga. 285, 40 L. R. A. 364, 29 S. E. 715.

Third. Another line of authorities recognizes the rule that the previous negligence of a party, exposing him to danger, is not an excuse for an injury through another's negligence, if by the exercise of ordinary care the injury might have been avoided, but holds that trespassers are not within the rule, because a party who infringes upon the rights of others absolves them from using ordinary care and diligence toward him. Hence, it is held, with the cases cited above, that the only duty owing a trespasser is to refrain from wilful or wanton injury. As in the cases above cited, the rule is applied without regard to the existence of any disability. Mason v. Missouri P. R. Co. 27 Kan. 83, 41 Am. Rep. 405; Kansas P. R. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730; Mor rissey v. Eastern R. Co. 126 Mass. 377, 30 Am. Rep. 686: Griswold v. Boston & M. R. Co. 183 Mass. 434, 67 N. E. 354; Cleveland, C. C. & St. L. R. Co. v. Cline, 111 Ill. App. 416; Johnson v. Truesdale, 46 Minn. 345, 48 N. W. 1136: Philadelphia & R. R. Co. v. Ilummell, 44 Pa. 375, 84 Am. Dec. 457; Cauley v. Pittsburgh, C. & St. L. R. Co. 95 Pa. 398, 40 Am. Rep. 664;

further said that "injuries inflicted by design are not thus to be excused. A wrongdoer is not necessarily an outlaw, but may justly complain of wanton and malicious mischief."

A boy injured while lying on his back on a railroad track, between two coal cars, with his legs over one rail, cannot recover damages from the railroad company where his presence was not known until after the injury. McMullen v. Pennsylvania R. Co. 132 Pa. 107, 19 Am. St. Rep. 591, 19 Atl. 27.

In Cleveland, C. C. & St. L. R. Co. v. Cline, 111 Ill. App. 416, it is held that, although one is compelled to ieave the highway in order to get around a freight train standing at the crossing, he is a trespasser; and, since the railroad company does not owe him the duty of ordinary care, it is not liable for backing a train upon him without a lookout, where his foot is caught in the track.

A strong dissent from the doctrine of the foregoing cases is pronounced by Chief Justice Agnew, though speaking for the court, in a case where a trespassing child was killed by a train running through a populous district at an excessive speed. He says: "Does no duty rest upon a railroad company because it is running upon its own track, unfenced and unguarded? Surely we must not disregard the habits, character, and condition of a people accustomed to run thoughtlessly and unheedingly into danger. We must take into account the feebleness of age and helpless infancy, the infirmity of mind and body of many living on a railroad track. their want of reflection and unthinking heedlessness, their want of apprehension of danger, and entire absence of injury they suppose they do to the hard, rough track of a railroad: the many motives they have to do an act which, though a trespass, is seemingly to them no cause of complaint. Surely the courts have not lost their power to declare what is ordinary prudence and care in the use of its track by a railroad company merely because the track is its own, and no one may rightfully trespass there. The circumstances which qualify this right must be taken into account and submitted to a jury under proper instructions." This authority, it will be seen, imposes upon railroad companies the reasonable duty of exercising ordinary care, even as to trespassers, in places where people are likely to be present. Pennsylvania R. Co. v. Lewis. 79 Pa. 33.

Fourth. In Maryland, North Carolina, Tennessee, Texas, and West Virginia the frequency with which railroad tracks are used as a highway, and the consequent reasonableness for expecting the presence of persons in such places, seem to have led the courts of those states to

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hold that if, in the performance of the general
'duty of railroad companies to keep a vigilani
lookout for animals or other obstacles upon
their tracks, a trespasser may be discovered in
time to avoid injury, then the failure so to dis
cover him is negligence.

A man goes upon a railroad track at a time and place when no danger is nigh and while there, by some accident or providential cause, becomes insensible, and so remains perhaps. for hours, until the time for a train comes around. "Although he originally goes on the track wrongfully, it is under circumstances threatening no direct injury, nor, being on the track, does he do anything 'positive or negative to contribute to the immediate injury.'

boy upon the track, where he could have been
seen for 4 of a mile distant, renders the rail-
East Ten-
road company liable for his injuries.
nessee & G. R. Co. v. St. John, 5 Sneed, 524,
73 Am. Dec. 149.

one

cars.

And, even under circumstances not within the statute, it is held, in Patton v. East Tennessee, V. & G. R. Co. 89 Tenn. 370, 12 L. R. A. 184, 15 S. W. 919, that where a person walking on a trestle was killed by being run down by a detached section of a freight train, the railroad company was negligent in not having somethe detached on the lookout on "Where cars are being moved by gravitation, and therefore with comparatively little noise, we think the duty quite clear that a railway company should have someone on the lookout for the purpose of warning persons on the track. At crossings and points where, or implied, the track is by license, express used as a walk way, the more imperative the But the duty is not altogether relaxed duty. Not to disby the fact that this injury probably occurred at a point where the public had no rights." The adoption of the above rule in North Carolina has been in repudiation of the rule In Herring of the earlier' cases in that state. Houston & T. C. R. Co. v. Sympkins, 54 Tex. 620, 38 Am. Rep. 632.

If the engineer on the approaching train keeps that lookout which is required of him at all times, not only to secure the safety of the train, but to avoid injury to any animal or person on the track, this person lying there in open view must be discovered.

cover him is, under the circumstances. negligence, and that negligence is the proximate cause of the injury; whilst the negligence of the party in going on the track is only a remote cause."

In Houston & T. C. R. Co. v. Harvin (Tex. Civ. App.) 54 S. W. 629, where a man hard a railroad of hearing, who was walking on track, was run down by a train while the engineer and fireman were looking backward instead of forward, the court approved an in struction to the jury, "that it is the duty of the employees of a railway company operating its train to use reasonable care to discover and to avoid injuring persons who may be upon its track, the degree of such care being such as a person of ordinary prudence and caution would commonly exercise under like circumstances. and varying as the known probability of danger may vary along the different portions of the route over which trains are run; and a failure to use such care by its employees is negligence." In later decisions the Texas courts have re fused to extend the rule of the foregoing cases to persons going to sleep upon a railroad track. but just why the duty should be imposed as to one class of trespassers, and not to another, is not apparent. St. Louis S. W. R. Co. v. Shiflet. 94 Tex. 131, 58 S. W. 945; Smith v. International & G. N. R. Co. (Tex. Civ. App.) 78 S. W. 556.

Railroad companies being required to keep a lookout for live stock, and to use ordinary care to prevent injury to it, certainly the same care should be required so far as children, deaf and other disabled persons are concerned, if not as to others.

While public interest and neces sity demand that a railroad company have sole possession of its track, yet. since people live and move along the route, and do go upon the track, and children, in their thoughtlessness and indiscretion, will go upon it, and stock wil wander upon it, sheer necessity demands that those in charge of a train shall, by keeping a reasonable lookout, use ordinary care to dis cover animals and persons on the track, to save both them and passengers from injury. v. Ohio River R. Co. 42 W. Va. 676, 36 L. R. A. 575, 26 S. E. 546.

Gunn

Under a statute of Tennessee requiring rail road companies to keep a constant and vigilant lookout for objects on their tracks, the failure to discover and give warning to a sleeping

seen

.

v. Wilmington & R. R. Co. 32 N. C. (10 Ired.
L.) 402, 51 Am. Dec. 395, it appeared that
the engineer of a railroad train might have
the track
two little negroes lying on
asleep at a distance of from 200 yards to
them
mile, but did not actually discover
until within 25 or 30 yards of the place
where they were lying, when it was too late to
stop the train before running over them.
was held that the railroad company was not
liable for the neglect to keep a lookout, whereby
the children might have been discovered; nor
was it responsible for the engineer's failure to
use the appliances at his command to stop the
train until he actually saw the children asleep
And in Manly v. Wilmington &
on the track.

It

W. R. Co. 74 N. C. 655, it is held that run-
ning a train over a child of ten years, asleep
upon the track, is not negligence, where the
not discovered by the
child's presence was
engineer until 150 feet distant, and he then
supposed it to be a hog, and blew the whistle,
but, upon discovering it was a human being,
reversed the engine, and endeavored to stop
the train, but without avail.

But in Deans v. Wilmington & W. R. Co.
107 N. C. 686, 22 Am. St. Rep. 902, 12 S. E.
77, the court repudiates the rule of the above
cases, and holds that it is the duty of an en-
gineer to keep a careful lookout along the track
to discover obstructions, whether at a crossing
or elsewhere, and that if thereby the engineer,
in the exercise of due diligence, might have dis-
covered a drunken man lying apparently help-
time to stop the
less upon the track, in
train before it reached him, and failed, through
negligence, to make such discovery the railroad
company was liable for the damage sustained.

The doctrine of the case last cited is reaffirmed in Pickett v. Wilmington & W. R. Co. 117 N. C. 616, 30 L. R. A. 257, 53 Am. St. Rep. 611, 23 S. E. 264, which directly raises the question whether a railroad company is liable for the death of a man who deliberately lies down upon its track, and either carelessly or intentionally falls asleep there, unless the engineer of the train running over him actually sees him lying there in time to stop the train by the reasonable use of appliances at his com

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of his reckless driving. Finally, in Baltimore Consol. R. Co. v. Armstrong, 92 Md. 554, 54 L. R. A. 424, 48 Atl. 1047, it is said: "The difference between the modification of the general principle recognized as proper in Maryland C. R. Co. v. Neubeur, 62 Md. 391, and that sanctioned by this court in the recent cases, is simply that in the former case the defendant was held liable if he could, by the exercise of reasonable care after he became aware of the plaintiff's peril, have averted the accident, and in the latter cases he was held liable if he could have prevented it after he became, or ought to have become, aware of the peril. There is no difference in principle between these two forms of instruction to the jury, for it cannot be seriously contended that when the defendant is in a position from which he ought to see, or by the exercise of reasonable care could see, the plaintiff's peril, he may avert his face or close his eyes and not see it, and then escape liability for an injury resulting from such conduct on his part."

mand. In a well-considered opinion, the court | he has been thrown from his buggy, as a result expressly repudiates the doctrine that the duty of a railroad company to keep a vigilant look out before its trains does not exist as to trespassers on its track, and holds that if a person thus asleep is injured through the failure to maintain such lookout, when otherwise he could have been discovered, and the catastrophe avoided, the railroad company is liable. The position of the court is well stated in the fol lowing language of the opinion: "When this court declared it the duty of an engineer to exercise reasonable care in looking out for an imals on the track, it became equally a duty as to all those classes of persons who, if actual ly seen by him, would be entitled to demand that he use all the means at his command to avert injury to them. As we hold that the duty on the part of the engineer of watchfulness to protect life is an ever-present one, attending him everywhere, and extending to the people in the remote country as well as in the towns, it necessarily follows that the opportunities that grow out of duty performed are coextensive with the duty prescribed, and may arise wherever it exists. We are of opinion that when, by the exercise of ordinary care, an engineer can see that a human being is lying apparently helpless, from any cause, on the track in front of his engine, in time to stor the train by the use of the appliances at his command, and without peril to the safety of persons on the train, the company is liable for any injury resulting from his failure to per form his duty." To the same effect are Smith v. Norfolk & S. R. Co. 114 N. C. 755, 25 L. R. A. 287, 19 S. E. 863, 923: Norwood v. Raleigh & G. R. Co. 111 N. C. 240, 16 S. E. 4; Upton v. South Carolina & G. Extension R. Co. 128 N. C. 173. 38 S. E. 736; Carter v. Southern R. Co. 135 N. C. 498, 47 S. E. 614.

An idiot may recover for injuries sustained from being run over by a railroad train, if the engineer saw him, or by the exercise of ordinary care could have seen him, and had actual knowl edge. or reasonable ground for the belief, that. on account of some mental or physical infirm. ity, he could not assume that the idiot would step off the track in time to avoid injury. Daily v. Richmond & I. R. Co. 106 N. C. 301. 11 S. E. 320.

In Maryland, likewise, the decisions upon the question are conflicting. In Baltimore & O. R. Co. v. State, 33 Md. 542, it is held that a public notice at the entrance of a railroad viaduct, for persons to keep off, does not re lieve the railroad company from the duty to exercise ordinary care to keep a lookout from its trains, and to give the usual warning to one trespassing on the track. and about to ente the viaduct. But in Western Maryland R. Co. v. Kehoe, 83 Md. 434, 452, 35 Atl. 90. it is said that, "until the employees are made aware of the peril arising from an act of neg ligence on the part of the plaintiff. they are under no obligation to assume that he will be negligent, or will be in a dangerous place which he has no right to occupy and conse quently they owe him no duty to anticipate that he will be where he ought not to be, or to guard in advance against the possible, or even probable, results of his unknown wrongful oc cupancy of the tracks." Therefore a railroad company is not negligent in not discovering a person lying beyond the limits of the highway. with his leg across a rall of its track, whither

c. What is sufficient notice of peril or disability.

The notice which imposes the duty of using precautionary means to avoid injury to a person in peril need not amount to positive knowl edge. The duty may arise before the presence of the person is discovered, where there are circumstances indicating the probability of danger to human life, such as would induce action by a person of ordinary prudence. It has been so held where a locomotive engineer sees persons running toward the track, and signaling him to stop, though a person on the track is not seen by him. Upon the same principle, it would seem that, when a person is seen in a place where he is liable to be injured by another's action, ordinary care requires that a watch be kept of his movements; and if thereby it becomes apparent that the person is under some disability, which prevents him caring for his own safety, due effort must be made to avoid injury. And the same is true where an object in the path of danger is discovered, but doubt exists as to whether it is animate or inanimate. But, as to the sufficiency of the notice in such cases to require a resort to precautionary measures. the authorities are not agreed, even in those jurisdictions imposing the duty of ordinary care to avoid the consequences of another's negli. gence. And no such obligation exists, of course, toward trespassers, in those states which hold that the only duty owing such persons is not wilful or wantonly to injure them. In any event the notice must be in time to allow s resort to preventive effort.

When persons in charge of a railroad train discover the peril of a person on the track, "or are in a position were they ought to have discovered it,-a position in which the circumstances, movements, or condition of the person injured would manifest to a vigilant observer that such person is unaware of his neril, or, if aware of it, is unable to extricate himself.-a culpable omission to use the means in hand to prevent an accident, when a prompt resort thereto might have prevented it. without endangering the freight or passengers being transported on the train, will be regarded as reckless or intentional negligence. On the other hand, the rule 'does not apply where the manifestation of the peril and the catastrophe are

so close in point of time as to leave no room for preventive effort.'" Frazer v. South & North Ala. R. Co. 81 Ala. 185, 60 Am. Rep. 145, 1 So. 85; Louisville & N. R. Co. v. Cole man, 86 Ky. 556, 6 S. W. 438, 8 S. W. 875; Robbins v. Springfield Street R. Co. 165 Mass. 30, 42 N. E. 334.

In an action against a railroad company for running over a deaf-mute on its track, the question is not whether the man was bereft of any of his faculties, but whether there was enough in his appearance to indicate any such infirmity on his part to the engineer of the train. Tyler v. Sites, 90 Va. 539, 19 S. E. 174.

If there is anything disclosed in the conduct or appearance of a person on a rail. road track which raises a suspicion that he is deaf, or blind, or helpless, then the obligation on the part of the trainmen immediately arises to use all necessary and proper care to avoid injuring him, and to stop the train if neces sary. Cincinnati, H. & D. R. Co. v. Murphy. 17 Ohio C. C. 223: Mobile & O. R. Co. v. Stroud, 64 Miss. 784, 2 So. 171; Omaha & R. Valley R. Co. v. Cook, 42 Neb. 577, 60 N. W. 899.

"It makes no difference how short an interval occurs between the negligent act of the plain tiff, in going upon the trestle and that of the defendant, if the latter has time to discover the danger and avert it by the exercise of ordinary care." Clark v. Wilmington & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43; Missouri P. R. Co. v. Weisen, 65 Tex. 443.

The moment that an aged man is seen upon a railroad trestle over 8 feet in height his peril is manifest and imminent, a warning that he is taking no heed for his own safety, and the railroad employees in charge of a train are required to exercise reasonable care to avoid a collision. They are not permitted to speculate whether he will jump from the bridge, or lie down, or in some other way get out of harm's way. Purcell v. Chicago & N. W. R. Co. 109 Iowa, 628, 77 Am. St. Rep. 557, 80 N. W. 682, 117 Iowa, 667, 91 N. W. 933; Central R. & Bkg. Co. v. Vaughan, 93 Ala. 209. 30 Am. St. Rep. 50, 9 So. 468.

An engineer's discovery of a woman running toward a train and waving her hands excitedly, at a distance of 1,000 feet ahead, after having previously seen children playing near the track, is sufficient notice that the life of a human being is in danger, and that the train should be stopped, or its speed materially checked, although the presence of a child actually on the track is not discovered untii too late to avoid injury. Donahoe v. Wabash, St. L. & P. R. Co. 83 Mo. 543.

Where an engineer sees an object upon the track in sufficient time to stop the train, but mistakes it for an abandoned cross tie, and disregards the signals of two men running on either side of the track toward the engine, and waving their hats, he not only fails to exercise reasonable care, but is guilty of reckless neg. ligence, in not acting promptly upon the evi dences of danger forced upon his attention, which a reasonably prudent man would have acted upon. Seaboard & R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773.

Whether an outcry made by several persons upon a boy getting his foot caught in a railroad track at a crossing, and a signal given to

the engineer to stop, are sufficient to give notice of the danger, and to render the railroad company negligent in not stopping the cars in time to avoid injury, is a question for the jury. Goodrich v. Burlington, C. R. & N. R. Co. 103 Iowa, 412, 72 N. W. 653.

"The true test of the [locomotive] engineer's duty is involved in the question whether he has reasonable ground to believe, with all the knowledge of the surroundings which due diligence requires of him, that the life of a fellow man is in peril, and that the danger to his person can only be averted by stopping or reducing the speed of the train. When an engineer sees a man persistently putting himself in peril on a trestle or bridge, so that he can no more get off the track than one who is lying on it in an apparent stupor, except by exposing himself to danger, why is it not reasonable in him to act instantly on the natural inference that one whose conduct is so extraordinary is either drunk or bereft of reason from sudden terror?" Clark v. Wilmington & W. R. Co. 109 N. C. 430, 445, 14 L. R. A. 749, 14 S. E. 43. Where the motorman of a street car sees a boy approaching the track with the apparent intention of crossing in front of the car, and observes that the boy is unconscious of the approach of the car, notwithstanding his efforts to attract his attention, and that it is likely to hit him, it is not enough that he uses every effort to prevent injury when the boy gets upon the track, and he realizes that danger is imminent, but he should act as soon as he sees that an injury is probable, although not aware that the boy is deaf. When it is seen that a person in such situation pays no attention to the warnings given, ordinary care requires that the speed of the car be checked. Galveston City R. Co. v. Ilanna (Tex. Civ. App.) 79 S. W. 639; Sloniker v. Great Northern R. Co. 76 Minn. 306, 79 N. W. 168.

But in Stabenau v. Atlantic Ave. R. Co. 155 N. Y. 511, 63 Am. St. Rep. 698, 50 N. E. 277, it is held that the motorman of a street car was not negligent in not checking the speed of his car upon seeing little girls near the track start to run across it, nor until one of them fell before the car, where they had time to get across, if they had not fallen. To the same effect is Fenton v. Second Ave. R. Co. 126 N. Y. 625, 26 N. E. 967.

And in Louisville & N. R. Co. v. Black, 89 Ala. 313, 8 So. 246, the engineer of a train discovered a man walking upon the track half a mile distant, but no signal was given until within about 200 yards, when the bell was rung, and within 100 yards the whistle was sounded. It then being discovered that the man did not get off the track, nor look around, the engineer concluded something must be the matter with him, and endeavored to stop the train, but it was too late to avoid a collision. It was held that the railroad company's liability dated not from the time the intestate was discovered upon the track, but from the time its employees learned he was ignorant of the approaching train. "If, after decedent's ignorance of his peril was brought to their knowledge, actual knowledge, for they owed the intestate no duty to find it out, they failed to apply all the instrumentalities at their command to stop the train and save him, then, and only in that event, is plaintiff entitled to a verdict." This case apparently conflicts to some extent with

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