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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 sible, foresees and forestalls danger. That high is said: "If infants were made an exception to degree of duty is owed to passengers only,the rule, and railroad companies were required but, where the danger of the trespasser is disto keep a lookout for them at all places along covered, it then becomes the duty of the railtheir track, on account of their helplessness, l'oad company to avoid the infliction of injury, the same principle would have to be applied to without regard to the fact that the trespasser idiots, lunatics, epileptics, the deaf, the blind. was himself guilty of contributory negligence. and the like. This would destroy the rule and It is then incumbent upon the company to do make it inconsistent with itself, for, if the all that can be done, consistently with its higher presence of no persons is to be looked for on duty to others, to save the trespasser from the the track, the presence of persons infirm or consequences of his own improper act." This unable to take care of themselves is not to be statement of the law is approved in Tucker v. anticipated, and the defendant cannot be le Norfolk & W. R. Co. 92 Va. 549, 24 S. E. 229; quired to guard against a danger which is not Vorfolk & W. R. Co. v. Dunnaway, 93 Va. 29, to be anticipated by a person of ordinary pru 36, 24 S. E, 698. dence."

In Blankenship v. Chesapeake & 0. R. Co. 94 The fact that a man sixty years of age, de Va. 449, 457, 27 S. E. 20, the rule making railcrepit, hard of hearing, and with defective road companies liable for injury to a trespasser sight, might have been discovered walking on after his peril was discovered, “or by ordinary a railroad trestle in time for the company's care and caution might bave been d'scovered," employees to stop the train which

lan

him which is supported by some authorities, is condown, if a proper lookout had been maintained. strued to mean, not that it is the duty of a railwill not render the company liable, if the in road company to keep a lookout for tresjured party was not in fact seen until too late passers, but that, where it has such notice or to avo'd injury. Maloy V. Wabash, St. L. & Telief that someone may be in danger as ought P. R. ('o. 84 Mo. 270.

to put a prudent man on the alert, it then Neither is the company liable for an error lecomes the duty of the company to be on the of judgment on the part of the engineer, in lookout. This case may be said, therefore, to failing to identify an object on the track 18 a overre Tyler v. Sites, 88 Va. 470, 13 S. E. sleeping man until it is too late to stop the 978. 90 Va. 539, 19 S. E. 174, where it is said, train. New York, N. II. & II. R. Co. v. Kelly. without qualification, that "a railroad company 35 C. C. A. 571, 93 Fed. 74.5; Murch v. West is jound to keep a reasonable lookout for tresern N. Y. & P. R. Co. 78 llun, 601, 29 N. Y. passers upon its track." Supp. 490.

The distinction made in the Blankenship Failure to stop a train upon first sight of an Case is important, thongh it is difficult to disobject, which the engineer then thought to be cover its application under the circumstances something other than a human being, but woich there presented. It is this,-that, while a railat length, Wils discovered to be a child, will road company does not owe to a trespasser the pot fix the liability of the railroad company duty to discover his presence upon the track, “The test of responsibility is, did the striking tet. where the attention of those operating a of the child by the train occur after the en train is arrested by seeing an indistinguishable gineer had seen,---not might or ought to have object on the track, which may be a human seen,-that is, discerned or distinguished, the being, it then becomes their duty to discover girl. Until the girl had been seen-discerned what that object is, and whether, because of to be a human being--the engineer was under some disability, if a human being. it will be no obligation to the trespasser to check or necessary to stop the train to avoid injury. stop his train, whatever may have been his The point is not always so clearly made, but obligation to the passengers who were being the principle finds general recognition in the hauled by him." Louisville, N. 0. & T. R. Co. decisions, which, in the language of Lord Denv. Williams. 69 Miss. 640, 12 So. 957.

man in ('olchester v. Brooke, 7 Q. B. 377, is In an action for injuries received by a mar that everyone in the conduct of that which who negligently sat down between two cross may be harmful to others. if misconducted, is ties of a railroad track, and went to sleep. bound to use due care and skill, even as to with his head resting on his hand. and in a wrongdoer. See in support of the rule, cases clined toward the tail nearest him, evidence is cited under div. VI., b, supru, and div. VII., not admissible to show that the track at the c. infru, place of the accident, and for a long distance And further, if the disabled trespasser is on either side of such place, is levol and in a place where the presence of persons may be straight, so that an object on it no larrer than l'ensonably expected, and by the exercise of

man's hat may be seen for 400 or 500 yards ordinary care he might be discovered, and the Denman v. St. Paul & D. R. Co. 26 Minn. 357. infliction of injury avoided, then the failure to 4 N. W. 60.5.

Ciscover him is negligence. Fearons v. Kansas What appears to be a lucid and accurate City Elev. R. Co. 180 Mo. 208, 79 S. W. 394. statement of a railroad company's relation to And see cases cited under the last preceding trespassers upon its tracks is found in Sealoud division of this note. & R. R. Co. v. Joyner, 92 Va. 3554, 23 S. E. Second. The duty to discover a trespasser's 773, where a man was lying on the track with disability is likewise denied in those jurisdichis head in the hollow of his arm; and it is tions which repudiate the doctrine that such said that a railroad company has the exclusive care is due to one who has exposed himself to right to the uninterrupted enjoyment of its the risk of injury. In such jurisdictions the roadbed. track. and other property. It owes only duty owing a trespasser is to refrain from no special duty to mere trespassers ; but, when wilful or wanton injury. And this is true it is said that it owes to trespissers “only the whether he happens to be suffering from some duty of ordinary care, it is intended merely to visability or not. say that trespassers are not entitled to that I As to trespassers, the liability of a rail.

a

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 Atl. 987 ; Smalley v. Southern R. Co. 57 S. C. presence upon the track. That liability, bow. | 243, 35 S. E. 489. ever, after such knowledge, cannot be fixed by A child seven years of age, asleep upon a the negligence of such employees, and this for railroad track, being a trespasser, the engineer's the reason that, as to such negligence, the con duty is measured and covered by his abstention tributory negligence of appellee (trespasser) from wilful or wanton negligence. Louisville, would defeat his right of recovery.

No lia N. O. & T. R. Co. v. Williams, 69 Miss. 631, bility can arise, therefore, for the failure of 12 So. 957. a railroad company to discover a trespasser This seems formerly to have been the rule upon its right of way, though he is suffering in New York. For instance, in Tonawanda from some disability. Palmer V. Chicago, St. R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. L. & P. R. Co. 112 Ind. 250, 254, 14 N. E. 70. 239, 4 N. Y. 349, 53 Am. Dec. 384, which was trespasser upon

switch track lauid an action for killing an animal trespassing on through a parrow archway in a mill, from defendant's track, it is said that “a man is which there is no means of escape from a train under no obligation to be cautious and cir running thereon, cannot recover for injuries cumspect toward a wrongdoer." But it is from collision with a train run through the further said that “injuries inflicted by design arch at an excessive speed, although persons

are

not thus to be excused. A wrongdoer are in the habit of passing through the arch. is not necessarily an outlaw, but may justly since the railroad company is not required to complain of wanton and malicious mischief." anticipate their presence. Pauker v. l'ennsyl A boy injured while lying on his back on a vania Co. 134 Ind. 673, 23 L. R. A. 552, 34 railroad track, between two coal cars, with his N. E. 504.

legs over one rail, cannot recover damages from A railroad company owes no duty to dis- the railroad company where his presence was cover a trespasser who has his foot caught in not known until after the injury. McMullen its track, and it cannot be held liable for rrun. v. Pennsylvania R. Co. 132 Pa. 107, 19 Am, St. ning over him in ignorance of his situation. Rep. 591, 19 Atl. 27. It has the right to run its trains without In Cleveland, C. C. & St. L. R. Co. v. Cline, reference to such intrusion, and, even after the 111 m. App. 416, it is held that, although trespasser is seen upon the track by those in one is compelled to ieave the highway in order charge of a train, they may act upon the pre- to get around a freight train standing at the sumption that he will step aside in time to crossing, lie is a trespasser; and, since the avoid a collision, unless it is also obvious that, railroad company does not owe him the duty owing to his condition or circumstances over of ordinary care, it is not liable for backing which he has no control, he cannot extricate a train upon him without a lookout, where his himself from the danger which menaces him. foot is caught in the track. St. Louis, I. M. & S. R. Co. v. Monday, 49 Ark. A strong dissent from the doctrine of the 257, 4 S. W. 782; Louisville, N. A. & C. R. Co. foregoing cases is pronounced by Chief Justice v. Phillips, 112 Ind. 59, 2 Am. St. Rep. 155, | Agnew, though speaking for the court, in a 13 N. E. 132.

case where a trespassing child was killed by Where it appears that the person injured by a train running through a populous district a railroad train was lying upon the track, the at an excessive speed. He says:

"Does no burden is upon the plaintiff, and not upon the duty rest upon a railroad company because defendant, to prove that the presence of the de. it is running upon its own track, unfenced and ceased might have been discovered in time to unguarded? Surely we must not disregard the avoid injury, and that the railroad company habits. character, and condition of a people wilfully or recklessly killed him, St. Louis accustomed to run thoughtlessly and unheed& S. F. R. ('o. v. Townsend, 69 Ark. 380, 6:3 ingly into danger, We must take into acS. W. 994 : Parish v. Western & A. R. Co. 102 count the feebleness of age and helpless infancy, Ga. 285, 40 L. R. A. 364, 29 S. E. 715.

the infirmity of mind and body of many living 'Third. Another line of authorities recognizes on a railroad track. their want of reflection and the rule that the previous negligence of a party unthinking heedlessness, their want of appreexposing him to danger, is not in excuse for hension of danger, and entire absence of injury an injury through another's negligence, if by they suppose they do to the hard, rough track the exercise of ordinary care the injury might of a railroad: the many motives they have to have been avoided, but holds that trespassers do an act which, though a trespass, is seeming. are not within the rule, because a party wholy to them no cause of complaint. Surely the infringes upon the rights of others absolves courts have not lost their power to declare what them from using ordinary care and diligence is ordinary prudence and care in the use of its toward him. Hence, it is held, with the cases track by a railroad company merely because the cited above, that the only duty owing a tres track is its own, and no one may rightfully passer is to refrain from wilful or wanton in- trespass there. The circumstances which qualjury. As in the cases above cited, the rule ify this right must be taken into account and is applied without regard to the existence of submitted to a jury under proper instructions." any disability. Mason v. Missouri P. R. Co. 27 This authority, it will be seen, imposes upon Kan. 83, 41 Am. Rep. 40.5 : Kausils l'. R. Co railroad companies the reasonable duty, of exv. Whipple, 39 Kan. 531. 18 Pac. 730; Mor ercising ordinary care, even as to trespassers, rissey v. Eastern R. Co. 126 Mass. 377, 30 Am. in places where people are likely to be present. Rep. 686; Griswold v. Boston & M. R. Co. 18: Pennsylvania R. Co. v. Lewis. 79 Pa. 33. Mass. 434, 67 N. E. 354; Cleveland, C. C. & St. Fourth. In Maryland, North Carolina, TenL. R. Co. v. Cline, 111 Ul. App. 416; Johnson nessee, Texas, and West Virginia the frequency v. Truesdale, 46 Jinn. 345, 48 N. W. 1136 : with which railroad tracks are used as a highPhiladelphia & R. R. Co. v. Tummell. 44 Pal.

way, and

the consequent reasonableness for 375, 84 Am. Dec. 457 ; Cauley v. Pittsburgh, C. expecting the presence of persons in such places, & St. L. R. Co. 95 P'a. 398, 40 Am. Rep. 664 ; seem to have led the courts of those states to In later decisions the Texas courts have re 1?pon the track, is not negligence, where the fused to extend the rule of the foregoing cases child's presence was not discovered by the to persons going to sleep upon a railroad track. engineer until 150 feet distant, and he then but just why the duty should be imposed as to supposed it to be a hog, and blew the whistle, one class of trespassers, and not to another, is but, upon discovering it was a human being, not apparent. St. Louis S. W. R. Co. y. Shifet. reversed the engine, and endeavored to stop 94 Tex. 131, 58. S. W. 945; Smith v. Inter. the train, but without avail. national & G. N. R. Co. (Tex. Civ. App.) 78 But in Deans v. Wilmington & W. R. Co. S. W. 556.

seen

hold that if, in the performance of the general | boy upon the track, where he could have been duty of railroad companies to keep a vigilani seen for 14 of a míle distant, renders the rail. lookout for animals or other obstacles upon road company liable for his injuries. East Tentheir tracks, a trespasser may be discovered in nessee & G. R. Co. v. St. John, 5 Sneed, 524, time to avoid injury, then the failure so to dis 73 Am. Dec. 149. cover him is negligence.

And, even under circumstances not within the A man goes upon a railroad track at a time statute, it is held, in Patton v. East Tennesand place when no danger is nigh and while see, V. & G. R. Co. 89 Tenn. 370, 12 L. R. A. there, by some accident or providential cause, 184, 15 S. W. 919, that where a person walking becomes insensible, and so remains perhaps. on a trestle was killed by being run down by for hours, until the time for a train comes a detached section of a freight train, the rail. around. “Although he originally goes on the road company was negligent in not having sometrack wrongfully, it is under circumstances one on the lookout

on

the detached cars. threatening no direct injury, nor, being on the "Where cars are being moved by gravitation, track, does he do anything positive or negative and therefore with comparatively little noise, to contribute to the immediate injury.'

we think the duty quite clear that a railway If the engineer on the approaching train keeps company should have someone on the lookout that lookout which is required of him at all for the purpose of warning persons on the times, not only to secure the safety of the track.

At crossings and points where, train, but to avoid injury to any animal or by license, express or implied, the track is person on the track, this person lying there lised as a walk way, the more imperative the in open view must be discovered. Not to dis- duty. But the duty is not altogether relaxed cover him is, under the circumstances. negli. by the fact that this injury probably occurred gence, and that negligence is the proximate at a point where the public had no rights.” cause of the injury; whilst the negligence of The adoption of the above rule in North the party in going on the track is only a Carolina has been in repudiation of the rule remote cause." Ilouston & T. C. R. Co. v. of the earlier' cases in that state. In Herring Sympkins, 54 Tex. 620, 38 Am. Rep. 632.

v. Wilmington & R. R. Co. 32 N. C. (10 Ired. In Houston & T. C. R. Co. v. Harvin (Tex. | L.) 402, 51 Am. Dec. 395, it appeared that Civ. App.) 54 S. W. 629, where a man hard the engineer of a railroad train might have of hearing, who was walking on a railroad

two little negroes lying on the track track, was run down by a train while the en- asleep at a distance of from 200 yards to y gineer and fireman were looking backward in- mile, but

did

not actually discover them stead of forward, the court approved an in until within 25 or 30 yards of the place struction to the jury, "that it is the duty of the where they were lying, when it was too late to employees of a railway company operating its stop the train before running over them. It train to use reasonable care to discover and to was held that the railroad company was not avoid injuring persons who may be upon its liable for the neglect to keep a lookout, whereby track, the degree of such care being such as a the children might have been discovered; por person of ordinary prudence and caution would was it responsible for the engineer's failure to commonly exercise under like circumstances. use the appliances at his command to stop the and varying as the known probability of danger train until he actually saw the children asleep may vary along the different portions of the on the track. And in Manly v. Wilmington & route over which trains are run; and a failure | W. R. Co. 74 N. C. 655, it is held that runto use such care by its employees is negligence." ning a train over a child of ten years, asleep 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 his reckless driving. Finally, in Baltiniore of a railroad company to keep a vigilant look Consol. R. Co. v. Armstrong, 92 Md. 554, 54 L. out before its trains does not exist as to tres R. A. 424, 48 Atl. 1047, it is said : "The dif. passers on its track, and holds that if a per- ference between the modification of the gen. son thus asleep is injured through the failure to eral principle recognized as proper in Maryland maintain such lookout, when otherwise be could C. R. Co. v. Neubeur, 62 Md. 391, aud that have been discovered, and the catastrophe sanctioned by this court in the recent cases, avoided, the railroad company is liable.

107 N. C. 686, 22 Am. St. Rep. 902, 12 S. E. Railroad companies being required to keep | 77, the court repudiates the rule of the above a lookout for live stock, and to use ordinary cases, and holds that it is the duty of an encare to prevent injury to it, certainly the same gineer to keep a careful lookout along the track care should be required so far as children, deaf 10 discover obstructions, whether at a crossing and other disabled persons are concerned, if no: or elsewhere, and that if thereby the engineer, as to others. While public interest and neces in the exercise of due diligence, might have dissity demand that a railroad company have sole covered a drunken man lying apparenuy helppossession of its track, yet. since people live

less upon

the track, in time to stop the and move along the route, and do go upon the train before it reached him, and failed, through track, and children, in their thoughtlessness and negligence, to make such discovery the railroad indiscretion, will go upon it, and stock will company was liable for the damage sustained. wander upon it, sheer necessity demands that The doctrine of the case last cited is rethose in charge of a train shall, by keeping a affirmed in Pickett v. Wilmington & W. R. Co. reasonable lookout, use ordinary care to dis 117 N. C. 616, 30 L. R. A. 257, 53 Am. St. Rep. cover animals and persons on the track, to save 611, 23 S. E. 264, which directly raises the both them and passengers from injury. Gund question whether a railroad company is liable v. Ohio River R. Co. 42 W. Va. 676, 36 L. R. A. for the death of a man who deliberately lies 575, 26 S. E. 546.

down upon its track, and either carelessly Under a statute of Tennessee requiring rail. or intentionally falls asleep there, unless the road companies to keep a constant and vigilant engineer of the train running over him actually lookout for objects on their tracks, the fail. sees him lying there in time to stop the train ure to discover and give warning to a sleeping by the reasonable use of appliances at his comthorities are not agreed, even in those jurisquestion are conflicting. In Baltimore & O.

The

is simply that in the former case the defendant position of the court is well stated in the fol was held liable if he could, by the exercise of lowing language of the opinion : “When this reasonable care after he became aware of the court declared it the duty of an engineer to plaintiff's peril, have a verted the accident, and exercise reasonable care in looking out for an in the latter cases he was held liable if he could inals on the track, it became equally a duty have prevented it after he became, or ought to as to all those classes of persons who, if actual have become, aware of the peril. There is no ly seen by him, would be entitled to demand difference in principle between these two forms that he use all the means at his command to of instruction to the jury, for it cannot be avert injury to them.

As we hold seriously contended that when the defendant is that the duty on the part of the engineer of in a position from which he ought to see, or by watchfulness to protect life is an ever-present the exercise of reasonable care could see, the one, attending him everywhere, and extending plaintiff's peril, he may avert bis face or close to the people in the remote country as well his eyes and not see it, and then escape liability as in the towns, it necessarily follows that the for an injury resulting from such conduct on opportunities that grow out of duty performed his part." are coextensive with the duty prescribed, and may arise wherever it exists. We are of opin

c. What is sufficient notice of peril or disability. ion that when, by the exercise of ordinary

The notice which imposes the duty of using care, an engineer can see that a human being is lying apparently helpless, from any cause, on

precautionary means to avoid injury to a perthe track in front of his engine, in time to stos

son in peril need not amount to positive knowl.

The duty may arise before the presence the train by the use of the appliances at his edge. command, and without peril to the safety on

of the person is discovered, where there are

circumstances indicating the probability of persons on the train, the company is liable

danger to human life, such as would induce acfor any injury resulting from his failure to per form his duty." To the same effect are Smith

tion by a person of ordinary prudence. It huis

been so held where a locomotive engineer sees v. Norfolk & S. R. ('o. 114 N. C. 755, 25 L. R. A. 287, 19 S. E. 863, 923: Norwood v. Raleigh

persons running toward the track, and signaling & G. R. Co. 111 N. (. 240, 16 S. E. 4; Upton

him to stop, though a person on the track is V. South Carolina & G. Extension R. Co. 128

not seen by him. Upon the same principle, it

would seem that, when a person is seen in a N. C. 173, 38 S. E. 736 : Carter v. Southern R.

place where he is liable to be injured by anCo. 135 N. C. 498, 47 S. E. 614.

other's action, ordinary care requires that a An idiot may recover for injuries sustained from being run over by a railroad train, if the

Watch be kept of his movements; and if thereengineer saw him, or by the exercise of ordinary by it becomes apparent that the person is

under some disability, which prevents him carcare could have seen him, and had actual knowl edge, or reasonable ground for the belief, that ing for his own safety, due effort must be

made to avoid injury. And the same is true on account of some mental or physical infirm

where an object in the path of danger is ity, he could not assume that the idiot would

discovered, but doubt exists as to whether it step off the track in time to avoid inju'y

is animate or inanimate. But, as to the sufDaily v. Richmond & I. R. Co. 106 N. C. 301.

ticiency of the notice in such cases to require 11 S. E. 320.

resort to precautionary measures,

the auIn Maryland, likewise, the decisions upon the

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dictions imposing the duty of ordinary care R. Co. v. State, 33 Md. 542, it is held that

to avoid the consequences of another's negli. a public notice at the entrance of a railroad

sence. And no such obligation exists, of course, viaduct. for persons to keep off. does not le lieve the railroad company from the duty to

toward trespassers, in those states which hold

that the only duty owing such persons is not exercise ordinary care to keep a lookout from

wilful or wantonly to injure them. its trains, and to give the usual warning to one

event the notice must be in time to allow trespassing on the track. and about to enter

resort to preventive effort. the viaduct. But in Western Maryland R

When persons in charge of a railroad traia Co. v. Kelioe, 83 Md. 434, 452, 35 Atl. 90.

discover the peril of a person on the track, it is said that, "until the employees are made

"or are in a position were they ought to have aware of the peril arising from an act of neg

discovered it,-. il position in which the circumligence on the part of the plaintiff. they are

stances. movements, or condition of the perunder no obligation to assume that he will

son injured would manifest to a vigilant obbe negligent, or will be in a dangerous place

server that such person is unaware of his which he has no right to occupy : and conse neril, or, if aware of it, is unable to extricate quently they owe him no duty to anticipate that

himself.--» culpable omission to use the means he will be where he ought not to be, or to in hand to prevent an accident, when a prompt guard in advance against the possible, or even resort thereto might have prevented it, without probable, results of his unknown wrongful oc endangering the freight or passengers being cupancy of the tracks." Therefore a railroad transported on the train, will be regarded as company is not negligent in not discovering a reckless or intentional negligence. On the other person lying beyond the limits of the highway. hand. the rule 'does not apply where the manwith his leg across a rail of its track, whither ifestation of the peril and the catastrophe are

in any lung, and within 100 yards the whistle was actually on the track is pot discovered untii

on

a

so close in point of time as to leave no room the engineer to stop, are sufficient to give nofor preventive effort.'” Frazer v. South & tice of the danger, and to render the railroad North Ala. R. Co. 81 Ala. 185, 60 Am. Rep. company negligent in not stopping the cars in 145, 1 So. 85; Louisville & N. R. Co. v. Cole time to avoid injury, is a question for the man, 86 Ky. 556, 6 S. W. 438, 8 S. W. 875 ; jury. Goodrich v. Burlington, C. R. & N. R. Co. Robbins v. Springfield Street R. Co. 163 Mass. 103 lowa, 412, 72 N. W. 653. 30, 42 N. E. 334.

"The true test of the [locomotive) engineer's In an action against a railroad company duty is involved in the question whether he for running over a deaf-mute on its track, the has reasonable ground to believe, with all the question is not whether the man was bereft of knowledge of the surroundings which due dilany of his faculties, but whether there was igence l'equires of him, that the life of a felenough in his appearance to indicate any such low man is in peril, and that the danger to his infirmity on his part to the engineer of the person can only be averted by stopping or retrain. Tyler v. Sites, 90 Va. 539, 19 S. E. ducing the speed of the train. When an en174.

sineer sees a man persistently putting himself If there is anything disclosed in the con. in peril on a trestle or bridge, so that he can duct or appearance of a person

rail no more get off the track than one who is lying road track which raises a suspicion that he is on it in an apparent stupor, except by exposing deaf, or blind, or helpless, then the obligation himself to danger, why is it not reasonable in on the part of the trainmen immediately arises him to act instantly on the natural inference to use all necessary and proper care to avoid that one whose conduct is so extraordinary is injuring him, and to stop the train if neces either drunk or bereft of reason from sudden sary. Cincinnati, H. & D. R. Co. v. Murphy. terror ?" Clauk v. Wilmington & W. R. Co. 17 Ohio C. C. 223: Mobile & O. R. Co. v. 109 N. C. 430, 445, 14 L. R. A. 749, 14 S. E. 43. Stroud, 64 Miss. 784, 2 So. 171 ; Omaha & Where the motorman of a street car sees a R. Vauley R. Co. v. Cook, 42 Neb. 577, 60 N. boy approaching the track with the apparent W. 899.

intention of crossing in front of the car, and "It makes no difference how short an interval observes that the boy is unconscious of the occurs between the negligent act of the plain approach of the car, notwithstanding his efforts tiff, in going upon the trestle and that of the to attract his attention, and that it is likely defendant, if the latter has time to discover to hit him, it is not enough that he uses every the danger and avert it by the exercise of effort to prevent injury when the boy gets upordinary care." Clark v. Wilmington & W. on the track, and he realizes that danger is R. (o. 10. N. C. 430, 14 L. R. A. 749, 14 S. imminent, but he should act as soon as he E. 43; Missouri P. R. Co. v. Weisen, 65 Tex. sees that an injury is probable, although not 443.

aware that the boy is deaf. When it is seen The moment that an aged man is seen upon that a person in such situation pays no ata railroad trestle over 8 feet in height his peril tention to the warnings given, ordinary care is manifest and imminent, a warning that requires that the speed of the car be checked. he is taking no heed for his own safety, and Galveston City R. Co. v. Ilanna (Tex. Civ. the railroad employees in charge of a train | App.) 79 S. W. 639 : Sloniker v. Great Northare required to exercise reasonable care to ern R. Co. 76 Minn, 306, 79 N. W. 168. avoid a collision. They are not permitted to But in Stabenau v. Atlantic Ave. R. Co. 155 speculate whether he will jump from the bridge, N. Y. 511, 63 Am. St. Rep. 698, 50 N. E. 277, or lie down, or in some other way get out of it is held that the motorman of a street car harm's way. Purcell v. Chicago & N. W. R. was not negligent in not checking the speed of Co. 109 Iowa, 628, 77 Am. St. Rep. 557, 80 his car upon seeing little girls near the track N. W. 682, 117 Iowa, 667, 91 N.

W. 933 ; start to run across it, nor until one of them Central R. & Bkz. Co. v. Vaughan, 93 Ala. 209, fell before the car, where they had time to get 30 Am. St. Rep. 50, 9 So. 468.

across, if they had not fallen. To the same An engineer's discovery of a Woman run

effect is Fenton v. Second Ave. R. Co. 126 N. ning toward a train and waving her hands ex- Y. 625, 26 N. E, 967. citedly, at a distance of 1,000 feet ahead, after And in Louisville & N. R. Co. v. Black, 89 having previously seen children playing near

Ala. 313, 3 So. 246, the engineer of a train the track, is sufficient notice that the life of

discovered a man walking upon the track half a human being is in danger, and that the train

a mile distant, but no signal was given until should be stopped, or its speed materially

within about 200 yards, when the bell was checked, although the

presence of child

sounded. It then being discovered that the man too late to avoid injury. Donahoe v. Wabash,

did not get off the track, nor look around, the St. L. & P. R. Co. 83 No. 543.

engineer concluded something must be the matWhere an engineer sees an object upon the track in sutlicient time to stop the train, but

ter with him, and endeavored to stop the train, mistakes it for an abandoned cross tie, and

but it was too late to avoid a collision. It was disregards the signals of two men running on

held that the railroad company's liability dated either side of the track toward the engine, and

not from the time the intestate was discovered waving their hats, he not only fails to exercise upon the track, but from the time its employees reasonable care, but is guilty of reckless neg.

learned he was ignorant of the approaching ligence, in not acting promptly upon the evi

train. "If, after decedent's ignorance of bis dences of danger forced upon his attention, peril was brought to their knowledge, actual which a reasonably prudent man would have knowledge, for they owed the intestate no duty acted upon.

Seaboard & R. R. Co. v. Joyner, to find it out, they failed to apply all the in92 Va. 354. 23 S. E. 773.

strumentalities at their command to stop the Whether an outcry made by several persons train and save him, then, and only in that upon a boy getting his foot caught in a railroad event, is plaintiff entitled to a verdict." This track at a crossing, and a signal given to case apparently conflicts to some extent with

a

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