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that of Frazer v. South & North Ala. R. Co. and caution might be discovered,” the defend81 Ala. 185, 60 Am. Rep. 145, 1 So. 85.

ant was not liable. When persons in charge of a railroad train As to trespassers, to whom a railroad comdiscover an object upon the track which there pany does not owe the duty of keeping a lookis reason to believe may be a human being. out, negligence cannot be predicated upon an what is their duty ?

engineer's error of judgment in taking a sleepA railroad company is liable for injuries sus ing man upon the track, seen 14 of a mile distained from running over a child six or seven tant, to be a coat, until within 150 feet of the years of age, who was lying on the railway object, when it is too late to stop the train. track asleep, where the engineer and fireman New York, N. H. & H. R. Co. v. Kelly, 35 C. C. saw him in

time

to stop the train, but A. 571, 93 Fed. 745. And see Murcb v. Westneglected to do so because they supposed him to ern N. Y. & P. R. Co. 78 Hun, 601, 29 N. Y. be a bunch of weeds. The evidence in this Supp. 490. case showed that plaintiff could have been seen When an object a railroad track is and recognized as a boy on the track at a dis- thought by the engineer of a train to be a dog tance of from 300 to 350 yards. Meeks v. or a bundle, he is not under obligation to stop Soutbern P. R. Co. 56 Cal. 513, 38 Am. Rep. his train to make sure what the object is; and

if he fails to identify the object as a child until A man lying insensible upon a railroad track, too late to stop the train, the railroad company near a crossing, was discovered by ihose in is not liable for the result. Louisville, N. 0. charge of an approaching train at a distance of & T. R. Co. v. Williams, 69 Miss. 631, 12 So. 400 yards, but thought to be an inanimate 957. object. When, however, within 125 or 150

VIII. Presumptions in absence of knowledge yards, it became apparent that the object way

of disability. a man, the engineer did all that could be done to stop the train, but without avail. le the a. Right to presume person in peril will help speed of the train had been checked, and the

himself. brakes put on at the "blow post," as a statute

One has a right to presume, in the absence of the state required, the train could have been stopped

of knowledge to the contrary, that a person in in time to avoid the injury.

peril is in the full possession of his faculties, It was held that, under these circumstances,

and that, acting upon the natural instinct of it was a question for the jury as to when the engineer became aware, or might, by proper

self-preservation, he will get out of harm's way

when he becomes conscious of the danger imdiligence, have become aware, that the object

pending. To warrant such presumption, howon the track was man. Hankerson

ever, the circumstances must give support to Southwestern R. Co. 59 Ga. 593, 61 Ga. 114, 72 Ga. 182.

the belief that such person's situation is known Where a child upon a railroad track was

to him, and that he is able to extricate himself

from his perilous position. Hence, there arise seen by those in charge of a train in time to stop and save the child's life, but the engineer

certain limitations upon the exercise of this and fireman mistook it for an inanimate object. succeeding division of this note.

presumption, which are considered in the next and debated wbat it really was until it was too

“In the absence of knowledge to the contrary, late, and by exercising ordinary skill and cau

or some fact which ought to arouse suspicion tion they could have discovered the object to

that this is not true, employees operating a be a child, and have stopped the train in

railway train may assume that a man seen at time to avoid an injury, the railroad company

a public crossing, or elsewhere on the track, was held liable for the result. Isabel v. Han.

is in possession of all his senses, and that nibal & St. J. R. Co. 60 Mo. 475.

care for his own safety will induce him to use If a locomotive engineer has sufficient notice them, and to act on the warnings conveyed or beliet to put a prudent man on the alert, through them." International & G. N. R. Co. and he does not take such precautions as a v. Garcia, 75 Tex. 589, 13 S. W. 223 ; Artusy prudent man would take under similar notice v. Missouri P. R. Co. 73 Tex. 191, 11 S. W. or belief, he is guilty of negligence. But the 177 ; Frazer v. South & North Ala. R. Co. 81 fact that the engineer sees what he supposes Ala. 185, 60 Am. Rep. 147, 1 So. Sý; Southern to be an inanimate object lying in the ditch R. Co. v. Bush, 122 Ala. 470. 26 So. 168: Daily at the side of the track is not alone sufficient

v. Richmond & D. R. Co. 106 N. C. 301, 11 to impose upon him the duty of taking steps

S. E. 320; Deans v. Wolmington & W. R. Co. to stop his train. Seaboard & R. R. Co. v.

107 N. C. 086, 22 Am. St. Rep. 902, 12 S. E. Joyner, 92 Va. 351, 365, 23 S. E. 773 ; Tucker

77; Clark v. Wilmington & W. R. Co. 109 N. v. Noi foik & W. R. Co. 92 Va. 519, 24 S. E.

C. 430, 443, 14 L. R. A. 749, 11 S. E. 43: Syme 229; Murch v. Western N. Y. & P. R. Co. 78

v. Richmond & D. R. Co. 113 N. C. 5.58, 18 S. E. Hun, 601, 29 N. Y. Supp. 490.

114 ; Maloy v. Wabash, St. L. & P. R. Co. 84 In Norfolk & W. R. Co. v. Dunnaway, 9:3

No. 270; Candee v. Kansas City & I. Rapid

Transit R. Co. 130 llo. 142, 31 S. W. 1029; la. 29. 21 S. E. 698, a sleeping boy on the

Jackson v. Kansas City, Ft. S. & J. R. Co. 157 railroad right of way, with his head upon the

Mo. 621, 645, 80 Am. St. Rep. 650, 58 S. W. track, was seen by an engineer in time to

32; Louisville & N. R. Co. v. Cooper (Ky.) 6 stop his train, but was thought to be a dog,

Am. & Eng. R. Cas. 5; Ilinois C. R. Co. v. and no signals were given, nor any attempt

Ilocker, 21. Ky. L. Rep. 1398, 55 S. W. 438; made to stop the train, until within 160 feet

Florida C. & P. R. Co. v. Williams, 37 Fla. of him, when his identity was discovered, but it

406, 20 So. 5.58; Green y. Southern P. Co. 122 was then too late to prevent injury. It was Cal. 63, 55 l'ac. 577 : Murch r. Western N. Y. held that, under the rule that the duty of a & P. R. Co. 78 Hun, 601, 29 N. Y. Supp. 490: railroad company to avoid infliction of injury Sims v. Macon & W. R. Co. 28 Ga. 93; Cogswell to a trespasser arises only "when the danger of v. Oregon & C. R. Co. 6 Or. 417; Campbell v. the trespasser is discovered, or by ordinary care l Kansas City, Ft. S. & M. R. Co. 55 Kan. 536,

40 Pac. 997; Omaha & R. Valley R. Co. v. engineer to stop his train, or even to lessen its Cook, 42 Neb. 577, 905, 60 N. W. 899; Raines speed, on the discovery of a trespasser upon the V. Chesapeake & O. R. Co. 39 W. Va. 50, 24 track; and the court approves the following L. R. A. 226, 19 S. E. 565 ; Smalley v. Southern rule from Wharton on Negligence, $ 389a: "AnR. Co. 57 S. C. 243, 254, 35 S. E. 489; Gulf, engineer who sees before him on the track a perC. & S. F. R. Co. v. Ilill (Tex. Civ. App.) 58 son apparently capable of taking care of himS. W. 255 ; Bump v. New York, N. H. & H. R. self has a right to presume that such person, Co. 38 App. Div. 60, 55 N. Y. Supp. 962 : Cleve. on due notice, will leave the track if there be land, C. C. & St. L. R. Co. v. Miller, 149 Ind. opportunity to do so; and the engineer will 490, 49 N. E. 445; Ullrich v. Cleveland, C. C. not in such cases be chargeable with negligence & St. L. R. Co. 151 ind. 358, 51 N. E. 95. if, in consequence of such person not leaving

It is only when those in charge of a railroad the track, the train cannot be checked in time train have reasonable ground to believe that a to avoid striking him. But it is otherwise with person on the track will not get off in time persons apparently not capable of taking care to avoid injury to himself, that they are bound of themselves, such as very young children and to stop the train. Gulf, C. & S. F. R. Co. v. Ilili persons lying helpless on the track." (Tex. Civ. App.) 58 S. W. 255 ; Chamberlain y. Where a man sleeping on a railroad track, Missouri P. R. Co. 133 Mo. 387, 33 S. W. 437. upon being aroused by the track walker, and 34 S. W. 842; Teel v. Ohio River R. Co. 49 warned of an approaching train, got partly up, W. Va. 85, 38 S. E. 518.

leaned on his elbow, and assented to the sug"If, however, the person on the track be gestion in such a way as to indicate he undeaf, and unable to hear the noise of the train. derstood the warning, and gave no appearance he cannot be expected to provide for his own of being intoxicated or otherwise disabled, the safety so promptly and certainly as one in

track walker had the right to presume that he full possession of all his senses. This fact would take such measures to protect himself should, of course, make him the more careful to from injury as would be taken by any reason. avoid being placed in a situation likely to ren able person under like circumstances. Virginia der him liable to an injury from which others Midland R. Co. v. Boswell, 82 Va. 932, 7 S. E. would be exempt. But what are the duties and 383. responsibilities of the railroad company in such Acting upon such presumption, a locomotive a case ? If unaware of the person's infirmity. engineer is not required to check the speed of they cannot be expected to treat him differently his train, merely because an apparently and from other like trespassers upon their track. presumably reasonable human being, though in They may presume that he will step off in time fact deaf, is crossing at a point far enough in to prevent being struck by the train, and they his iront to enable him to stop it, if he chooses, would be required to give him only such warn before reaching such person. Daily v. Richmond ing as would reasonably alarm his fears and & D. R. Co. 106 N. C. 301, 11 S. E. 320; cause him to leave the track. But if the em Birmingham R. & Electric Co. v. Bowers, 110 ployees in charge of the train know that the Ala. 328, 20 So. 315; Johnson v. Louisville party is deaf, and not able to hear the ordi & N. R. Co. 91 Ky. 651, 25 S. W. 754. pary noise of the train, their duty becomes A street car driver has the right to presume entirely different." International & G. N. R. that a woman seen approaching the track, and Co. v. Smith, 62 Tex. 254 ; Tyler v. Sites. 89 Va. not known by him to be deaf, will exercise 470, 13 S. E. 978; Johnson v. Louisville & her senses, and stop in time to avoid accident. N. R. Co. 91 Ky. 651, 25 S. W. 754.

Schulie v. New Orleans City & L. R. Co. 44 In Texas & P. R. Co. v. Roberts, 2 Tex. Civ. La. Ann. 509, 10 So. 811. App. 111, 20 S. W. 960, the correctness of an And the operators of a hand car and a flaginstruction to the jury, that train operatives, man at a crossing are not negligent in asupon ringing the bell and sounding the whistle. suming that a person approaching the crossing may presume that a person on the track wil! is able to hear a warning shouted from the leave it in time to escape injury, is doubtent : car, in the absence of knowledge of his deafand it is said, whether such presumption is ness. Piskorowski v. Detroit, G. II. & M. R. Co. warranted depends upon the facts of each par 121 Mich. 498, 80 Am. St. Rep. 518, 80 N. W. ticular case.

241. If railroad employees in charge of a train In Robbins v. Springfield Street R. Co. 165 see a man on the track at a distance sufficient Mass. 30, 42 N. E. 334, which was an action to enable him to get out of the way before the for injuries sustained by a man of nearly eighty train reaches him, and are not aware that he years, partially deaf, and blind in one eye, is deaf or insane, or from some other cause in through a street car running into his horse and sensible of the danger, or unable to get out of wagon while he was attempting to cross the the way, they have a right to presume that he track, the following instruction to the jury will act on the motive of self-preservation, and was approved upon appeal: "A motorman--a get out of the way, and to go on without check man in charge of an electric car-has a right, ing the speed of the train until they see he is as i general principle, to act upon the prenot likely to get out of the way, when it would sumption that persons whom he sees before him become their duty to give extra alarm by bell in the street, with teams or on foot, are in the or whistle, and, if that is not heeded, then, as enjoyment of their senses and their faculties, a last resort. to check its speed, or stop the because that is the ordinary experience with train. if possible, in time to avoid disaster. men. It is what is ordinarily true; and so he St. Louis, 1. J. & S. R. Co. v. Wilkerson, 46 has a right to act upon this assumption of Alk. 513; Sibley v. Ratliffe, 50 Ark. 477, 8 S. what is ordinarily true, and govern himself W. 686.

properly upon that assumption. But it does In Omaha & R. Valley R. Co. v. Cook, 42 pot follow from that, that in no case is he Neb. 905, 62 N. W. 235, Allirming on rehearing required to qualify his conduct in any way. 12 Neb. 577, 60 N. W. 899, it is said that it is

The motorman here handling this car not "in every case" the duty of a locomotive would have a right to assume that the plaintiff

was a man in the possession of all nis ordi- | 482; Masser v. Chicago, R. I. & P. R. Co. 68 nary faculties, if he did not know to the con- Iowa, 602, 27 N. W. 776; Louisville & N. R. Co. trary, unless there was something in the con- v. Tinkham, 19 Ky. L. Rep. 1784, 44 S. W. duct and management of the plaintiff which, 439 ; Ninois C. R. Co. v. Hocker, 21 Ky. L. Rep. with reasonable attention on the part of the 1398, 55 S. W. 138; Teel v. Ohio River R. Co. motorman, would have informed him that there 49 W. Vu. 85, 38 S. E. 518; Finlayson V. was some imperfection in regard to the plain-Chicago, B. & Q. R. Co. 1 Dill. 579, Fed. Cas. tiff's condition."

No. 4,793. But see Texas & P. R. Co. The duty to avoid injury to a trespasser Roberts, 2 Tex. Civ. App. 111, 20 S. W. 960. seen upon a railroad trestle, it has been held, A railroad company cannot speculate upon arises not at the moment he is seen on the the chances of its warning signals being heard trestle by persons in charge of a train, but by persons on its tracks, and excuse its omisonly when the peril of his position becomes sion to give them upon the ground that they known to them. If at the time the engineer woud have been ineffectual. East Tennessee first discovers a trespasser on a trestle, the lat. & G. R. Co. v. St. John, 5 Sneed, 524, 73 Am. ter's position is such that he can readily, and Dec. 149. without risk of injury, step off to a place of The omission of such warning, however, cansafety, the engineer has the right to presume not be deemed the cause of injury to a deaf that he will do so, and to act on the presump- man who knows before going upon the track tion until it becomes apparent to him that of the approach of the train which injures him. the trespasser is ignorant of his danger. South | McDonald v. International & G. N. R. Co. 86 ern R. Co. v. Bush, 122 Ala. 470, 26 So. 168: Tex. 1, 40 Am. St. Rep. 803, 22 S. W. 939. Ullrich v. Cleveland, C. C. & St. L. R. Co. 151 And the failure to give warning signals, or Ind. 359, 31 X. E. 35.

to check the speed of the train, will not render But generally no presumption can arise that a railro:ad company liable for injury to a tresa person upon a railroad trestle will be able passer upon a trestle, where his presence was to help himself : and it is the duty of those not discovered until the train was almost upon operating a train, upon discovering a person him. Tennenbrock v. South Pacific Coast R. Co. in such situation, to stop the train immediately. 59 Cal. 269. Clark v. Wilmington & W. R. Co. 109 N. C. And in Sibley v. Ratliffe, 50 Ark. 478, 8 S. 430, 14 L. R. A. 749, 14 S. E. 43; Atlanta & W. 686, the court appears to approve an inC. Air Line R. Co. v. Gravitt, 93 Ga. 369, 26 struction that the omission to sound the L. R. A. 153, 44 Am. St. Rep. 145, 20 S. E. whistle or ring the bell to give warning to a 530; Cook v. Centrul R. & Bkg. Co. 67 Ala. sleeping trespasser on the track must have been 533; Central R. & Bkg. Co. v. Vaughan, 93 wilful and reckless to waurant a recovery. Ala. 2099, 30 Am. St. Rep. 50, 9 So. 468: Peirce While no exact rule can be laid down as to v. Walters, 164 111, 560, 45 X. E. 1068, Affirming the precise distance at which it becomes the 63 111. App. 562; Purcell v. Chicago & N. W. R. duty of a railroad company to give the usual Co. 109 low:, 628, 77 Am. St. Rep. 557. 80 danger signals when a person is discovered upon N. W. 682; Vanarsdall v. Louisville & N. R. Co. its track, the warning must be timely. Central 23 kiy. L. Rep. 1666, 05 S. W. 858, 25 Ky. L. R. & Bkg. Co. v. Denson, 84 Ga. 774, 11 S. E. Rep. 1432. 77 S. W. 1103; St. Louis S. VV. 1039: Wren v. Louisville, St. L. & T. R. Co. R. Co. v. Bolton (Tex. Civ. App.) 81 S. W. 123. 14 Ky. L. Rep. 324, 20 S. W. 215.

It will be observed that the warning reb. Limitations upon erercise of such presump- quired by the above authorities is not that of tion.

the statutory signals which the law requires at

crossings, but is included in the obligation to 1. Tarning of danger gencrally necessary as exercise ordinary care to avoid injury to perbasis for presumption.

sons in dangerous situations, when their peril

is discovered. As to the duty of railroad comThe right to indulge the presumption that panies in general to give statutory signals of one will seek a place of safety from impending the approach of trains at crossings, see notes, danger necessarily fails where the situation or Giving the statutory signals as the measure conduct of the party in peril indicates that he of truinnen's duty at hiylway crossinys, 15 L. is either inconscious of his danger, or is unable

R. A. 426; for whose bencfit signals by ap. to save himself because of his helpless condition. proaching truins are required by stutute at railIn either of these situations, there is nothing Hay crossinys, 17 L. R. A. 254 ; and Failure to upon which to base the presumption until prop signal for crossings, 21 L. R. A. 723. er effort is made to inform the subject of his danger. Therefore, if a person upon a l'ail 2. Presumption may be repelled by circumroad track appears unconscious of an approach.

stances. ing train, as that he is standing or walking with his back to it, or is lying upon the track. If the person in peril, although not known and he is discovered in time, it is the duty of to be deaf, gives no heed to the usual signals, the railroad company to sound the usual warn. in other words, acts directly contrary to the ing signals in suflicient time for such person to instinct of self-preservation ; or if his situation act upon them, and for the railway employees otherwise indicates that he cannot, or will to observe their effect. International & G. N. not, avoid the impending danger, any preR. ('o. v. Smith, 62 Tex, 234; Houston & T. sumption that he will escape from his perilous C. R. fo. v. llarvin (Tex. Civ. App.) 54 S. W.

situation is wholly unwarranted; and it be629; Schierhold v. North Beach & M. R. Co, comes the duty of those coming into relation to 40 Cal. 447; Tennenbrock v. South Pacific C. him, if they perceive his conduct or situation R. Co. 59 Cal. 269, 272; Louisville & N. R. Co. in suficient time, to make every reasonable v. (ooper (Kr.) 6 Am. & Eng. R. Cas. 5 ; l'oole effort to avoid injuring him. Bump v. New v. North Carolina R. Co. 53 N. C. (8 Jones, L.) York, N. II. & 11. R. Co. 38 App. Div. 60, 55 340 ; Chicago, B. & Q. R. Co. v. Triplett, 38 111. N. Y. Supp. 962; Georgia Midland & G. R.

Co. V. Evans, 87 Ga. 673, 13 S. F. 580; Gunn company was not liable. Little v. Carolina v. Ohio River R. (o. 42 W. Va. 676, 36 L. R. A. C. R. Co. 118 N. C. 1072, 1077, 24 S. E. 514. 575, 26 S. E. 546; Wren v. Louisville, St. L. The circumstances which may be deemed suf. & T. R. Co. 14 Ky. L. Rep. 324, 20 S. W. 215 : ficient to repel the presumption, and impose Robbins v. Springfield Street R. Co. 165 Mass. the duty of active effort to avoid injury, where 30, 42 N. E. 334.

the person's d'sability is not previously known, These limitations upon the exercise of the may be classified as follows: presumption in question obtain in those juris First. Those which make it apparent that dictions holding that the only duty due a person the person in peril is unconscious of danger. guilty of negligence is not wilfully to injure Tanner v. Louisville & N. R. Co. 60 Ala. him, as well as in those where suco negligence 621, 040; Frazer v. South & North Ala. R. Co. is held to be no excuse for an injury sub- 81 Ala. 185, 60 Am. Rep. 145, 1 So. 85 ; Mobile sequently inflicted by another's negligence : & O. R. Co. v. Stroud, 64 Miss. 784, 2 So. 171 ; and there seems to be no reason for any dis- Murch v. Western N. Y. & P. R. Co. 78 Ilun, tinction between them in this regard.

001, 29 N. Y. Supp. 490. If a person seen upon a railro:1d track is The engineer of a train cannot rely upon the known to those in charge of a train to be, or presumption that a trespasser will save himself, from his appearance gives them good reason to after he has been in any manner advised, or he believe that he is, insane, or badly intoxicated. sees, that such person is unconscious of his or otherwise insensible of danger, or unable to peril, or so disabled that he cannot protect bimavoid it, they have no right to assume that he self and avoid injury. Pittsburgh, C. C. & St. will get ont of the way, but should act upon 1.. R. Co. v. Judd, 10 Ind. App. 213, 37 N. E. the hypothesis that he may not or will not. 773. and showd use a proper degree of care to avoid The presumption that a person upon a street injuring or killing him. St. Louis, I. M. & railway track will leave it before an approachS. R. Co., V. Wilkerson, 46 Ark. 513; Sibley v. ing car reaches him cannot he indulged as to Ratliffe, 30 Ark. 477, 8 S. W. 686; Anderson v an infant of tender years ; and, if its presence Hopkins, 33 C. C. A. 346, 63 U. S. App. 533. is discovered by the driver, it is his duty to 91 Fed. 77.

exercise all the diligence then possible to avoid The case of. Anderson v. Hopkins seems to injury to it. Galveston City R. Co. v. Hewitt, make a distinction between trespassers hav 67 Tex. 473, 60 Am. Rep. 32, 3 S. W. 705; ing the power to care for themselves and those Omaha & R. Valley R. Co. v. Cook, 42 Neb. suffering from some disability; and it is said .177. 60 N. W. 899), 42 Neb. 905, 62 N. W. 235, that the rule that a trespasser is without re. 337 Neb. 435, 5. N. W. 943. lief for an injury received, unless it was wilfully Neither is there any presumption that a child or maliciously inflicted, does not apply where on a railroad track will heed signals of danger; the person injured was perceived to be in a and a locomotive engineer is bound to stop position of peril, from which, by reason of in his train if he sees the child making no attempt ability or inattention, he was not likely to ex to leave the track. Indianapolis, P. & C. R. Co. tricate himself; and that a failure to exercise v. L'itzer, 109 Ind. 179, 58 Am. Rep. 387, 6 reasonable diligence to avoid injury to one per

N. E. 310, 10 N. P. 70. ceived to be so situated is an actionable wrong. And in Campbell v. Kansas City, Ft. S. & if harm results.

M. R. Co. 55 Kan. 536, 40 Pac. 997, it is seid If persons in charge of a train are in doubt that, if a man is lying or sitting upon a railroad as to the condition or situation of a person track, apparently intoxicated or asleep, it is on the track, it is their duty to resolve all the duty of those in charge of a train to make reasonable doubts in favor of saving life. Clark an earlier effort to stop than would be required v. Wilmington & W. R. Co. 109 N. C. 430, 14 if the person were walking. L. K. A. 749), 14 S. E. 43; Little v. Carolina C. Although railway employees are unaware R. ('o. 118 N. C. 1072, 1077, 24 S. E. 514 : that a person walking upon the track is deaf, Seaboard & R. R. Co. v. Joyner, 92 Va. 354. yet if, as ordinary, prudent men, they have 365, 36 S. E. 773; Central R. & Bkg. Co. v. reason to believe that an injury will occur unVaughan, 93 Ala. 209, 30 Am. St. Rep. 50. less the train is checked, it should be stopped 9 So, 468; Purcell v. Chicago & N. W. R. Co. at once. Louisville & N. R. Co. v. Cooper (Ky.) 109 Towa, 628, 77 Am. St. Rep. 557, 80 N. W. 6 Am. & Eng. R. Cas. 5; Lexington & C. C. 682.

Min. Co. v. luffman, 17 Ky. L. Rep. 775, 32 The ordinary rule of all railroad companies S. W. 611 ; Louisville & N. R. Co. v. Tinkham, is said to be. "In all cases of doubt take the side 19 Ky. L. Rep. 1781, 44 S. W. 439. of safety." Dent, J., in Raines v. Chesa peake While, as a general rule, a locomotive en& 0. R. Co. 39 W. vu. 50, 24 L. R. A. 220, 19 zineer, may assume that a person walking upS. E. 563.

on the track is in possession of ordinary sight But this rule does not impose upon an en- and hearing, yet, where the conduct of the gineer the duty of providing against what he traveler is such as to excite a doubt of this, bas no reasonable ground to believe will happen. the engineer is bound to use greater caution "The legal obligation is to take proper precau. and to stop the train, if necessary to secure tion to guard against what is the usual or just bis safety. Clark v. Wilmington & W. R. Co. ly expected consequence of one's acts: not 109 N. C. 430, 444, 14 L. R. A. 749, 14 S. E. 43. against unexpected, unusual, or extraordinary The negligence of an intoxicated person in results." Therefore, where an engineer checked walking upon a railroad track will not excuse the speed of his train upon discovering a man the subsequent negligence of the railroad comon a trestle, but l'esumed his course upon seeing pany in running him down, where its employees him take a position which other's had occupied discovered him on the track when the train was with sifety from passing trains, and the man 300 feet distant, and at the distance of 200 was injured because he failed to hold his head Teet the engineer noticed something unusual in back far enough, it was held that the railroad | his manner, but made no effort to check the

a

speed of the train. Texas & P. R. Co. v. lying prone upon the track, or his team is Robinson, 4 Tex. Civ. App. 121, 23 S. W. 433. delayed in moving a wagon over a crossing, it

Likewise, the motorman of an electric car is has been declared that the engineer, having rea. required to qualify his conduct toward persons son to believe that life or property will be imgenerally, if he perceives a very aged man at- periled by going on without diminishing his tempting to drive across the track on the near speed, is negligent if he fails to use all the approach of his car, and after the gong has means at his command, consistent with the been sounded. Robbins v. Springfield Street R. safety of the passengers and property in his Co. 165 Mass. 30, 42 N. E. 334.

charge, to stop his train and avoid coming in When the motorman of a street car sees that contact with the person so exposed. Deans his efforts to attract the attention of a person V. Wilmington & W. R. Co. 107 N. C. 686. 22 approaching the track, by sounding the gong Am. St. Rep. 902, 12 S. E. 77; Bullock v. Wiland hallooing to him, are unavailing, and that mington & W. R. Co. 105 N. C. 180, 10 S. E. no attention is paid to the warnings, ordinary 988. The same rule prevails where the engicare requires that he at least lessen the speed neer knows, or ought to know, that a human of his car, and not attempt to run by such being has passed a milepost which marks the person, until satisfied that he is aware of the end of a trestle nearest to him, and can see approach of the car, although not aware that that the person, despite his signal, persists in he is deaf. Galveston City R. Co. v. Hanna running along the track from which he can(Tex. Civ. App.) 79 S. W. 639.

not step aside, and from which he can escape The driver of a vehicle is not warranted in instantly only by a perilous jump or unusual continuing his course after shouting a warn- activity. The law expects him, when he sees ing to a pedestrian in the highway, where he a man still lying motionless, after he has given sees his warning is not heeded, although he is the alarm signal, to take precaution against the not aware that the person in the highway is possibility of his being drunk, or, where one deaf. Smith v. Browne, Ir. L. R. 28 C. L. 1. does not move his team at a crossing under

If an engineer sees two men on the track in similar circumstances, to act upon the idea that front of his train, and one of them risks his the wagon is fastened in some way." Clark v. safety in an effort to signal the foremost man Wilmington & W. R. Co. 109 N. C. 443, 444, to leave the track, the engineer will be guilty | 14 L. R. A. 749, 14 S. E. 43. of a wilful wrong if he does not use ordinary Omaha & R. Valley R. Co. v. Cook, 42 Neb. care to stop the train, although without knowl. 90, 62 N. W. 235, affirming on rehearing 42 edge that the foremost man is deaf. Palmer v. Nel), 577, 60 N. W. 899, approves the following Chicago, St. L. & P. R. Co. 112 Ind. 250, 14 statement of the rule as to the duty of railN. E. 70.

road employees to helpless persons discovered Second. Circumstances which indicate upon the track in time to stop the train, taken situation that may prevent the party in peril from Beach, Contributory Negligence, 203: from extricating himself in time to avoid | “Nor is the company liable for a failure on the danger.

part of its employees to stop the train. on The presumption that persons upon the track. seeing a person walking on the track, even and apparently able to take care of themselves. though there was time enough to do so, prowill leave it upon the approach of a train, is vided the proper signals of warning were given. not applicable where a girl having her foot The company may presume that the trespasser caught between the rail and planking at a is in full possession of his senses, and that be crossing is facing the train, and waving her will appreciate his danger and act with discrehands wildly in an endeavor to signal the en- tion. Biit an engineer who sees a helpless pergineer to stop the train. While the engineer. son incapable of moving, on the track, is guilty in such case, may not be able to see the foot of negligence if he fails to make all prudent fast in the crossing, the facts that the person efforts to avoid the collision, and this without does not leave the track, and that her conduct reference to the cause of the person's disabilindicates that something unusual has happened. ity." require him to act on the instant; and his failure to stop the train in time to avoid injury. 3. "Last moment" to which presumption may if it can be done, is negligence. Whether the

de indulged. engineer acted with reasonable promptness under the circumstances is a question of fact for How long may the presumption that a person the jury. Spooner v. Delaware, L. & W. R. Co.

in peril will escape to a place of safety be 115 N. Y. 22, 21 V. E. 696.

induged, in the light of countervailing cirWhere a trespasser on a railroad track was

cumstances ? on a bridge of considerable elevation, and could

According to some authorities, if a person not, therefore, step out of danger, it was held discovered upon a railroad track is apparently proper to refuse to instruct the jury that an

in the possession of all his faculties, and not engineer is not bound to stop his train the mo

Suffering from any disability, and is given warnment he sees a person on the track, but has the ing of the approach of a train, the engineer right to presume that such person will leave has the right to act upon the presumption that the track in time to escape danger, and, with he will get off the track, "until the last mo. out being negligent, may continue to run the ment," and until it is too late to avoid contact. train until he discovers that such person is indianapolis & V. R. ('o. v. McClaren, 62 Ind. heedless of danger. Peirce v. Walters, 164 572; Campbell v. Kansas City, Ft. S. & M. R. Ill. 560, 45 N. E. 1068. Affirming 63 111. App (0. 55 Kan. 536, 40 Pac. 997: Schemnaydre . 562. That it cannot be presumed that a per- Texas & P. R. (o. 46 La. Ann. 248, 49 Am. St. son in such a situation will escape to a place Rep. 321, 14 So. 513; Nichols v. Louisville & of safety, see div. IV., C, 3, supra; div. VIII. N. R. Co. (Ky.) 6 S. W. 339; Poole v. North a, supra.

Carolina R. Co. 53 N. C. (8 Jones, L.) 340; "Where it is apparent to an engineer, who Herring v. Wilmington & R. R. Co. 32 N. C. is keeping a proper outlook, that a man is (10 Ired. L.) 402, 51 Am. Dee. 395; Norwood

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