that of Frazer v. South & North Ala. R. Co. 81 Ala. 185, 60 Am. Rep. 145, 1 So. 85.

When persons in charge of a railroad train discover an object upon the track which there is reason to believe may be a human being. what is their duty?

A railroad company is liable for injuries sustained from running over a child six or seven years of age, who was lying on the railway track asleep, where the engineer and fireman saw him in time to stop the train, but neglected to do so because they supposed him to be a bunch of weeds. The evidence in this case showed that plaintiff could have been seen and recognized as a boy on the track at a distance of from 300 to 350 yards. Meeks v. Southern P. R. Co. 56 Cal. 513, 38 Am. Rep. 67.

A man lying insensible upon a railroad track, near a crossing, was discovered by those in charge of an approaching train at a distance of 400 yards, but thought to be an inanimate object. When, however, within 125 or 150 yards, it became apparent that the object was a man, the engineer did all that could be done to stop the train, but without avail. If the speed of the train had been checked, and the brakes put on at the "blow post," as a statute of the state required, the train could have been stopped in time to avoid the injury. It was held that, under these circumstances. it was a question for the jury as to when the engineer became aware, or might, by proper diligence, have become aware, that the object on the track was a man. Hankerson V. Southwestern R. Co. 59 Ga. 593, 61 Ga. 114, 72 Ga. 182.

Where a child upon a railroad track was seen by those in charge of a train in time to

stop and save the child's life, but the engineer and fireman mistook it for an inanimate object. and debated what it really was until it was too late, and by exercising ordinary skill and caution they could have discovered the object to be a child, and have stopped the train in time to avoid an injury, the railroad company was held liable for the result. Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475.

If a locomotive engineer has sufficient notice or belief to put a prudent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief, he is guilty of negligence. But the fact that the engineer sees what he supposes to be an inanimate object lying in the ditch at the side of the track is not alone sufficient to impose upon him the duty of taking steps to stop his train. Seaboard & R. R. Co. v. Joyne", 92 Va. 354, 365, 23 S. E. 773; Tucker v. Norfolk & W. R. Co. 92 Va. 549, 24 S. E. 229; Murch v. Western N. Y. & P. R. Co. 78 Hun, 601, 29 N. Y. Supp. 490.

In Norfolk & W. R. Co. v. Dunnaway, 93 Va. 29, 21 S. E. 698, a sleeping boy on the railroad right of way, with his head upon the track, was seen by an engineer in time to stop his train, but was thought to be a dog. and no signals were given, nor any attempt made to stop the train, until within 160 feet of him, when his identity was discovered, but it was then too late to prevent injury. It was held that, under the rule that the duty of a railroad company to avoid infliction of injury to a trespasser arises only "when the danger of the trespasser is discovered, or by ordinary care

and caution might be discovered," the defendant was not liable.

As to trespassers, to whom a railroad company does not owe the duty of keeping a lookout, negligence cannot be predicated upon an engineer's error of judgment in taking a sleeping man upon the track, seen 1⁄4 of a mile distant, to be a coat, until within 150 feet of the object, when it is too late to stop the train. New York, N. H. & H. R. Co. v. Kelly, 35 C. C. A. 571, 93 Fed. 745. And see Murch v. Western N. Y. & P. R. Co. 78 Hun, 601, 29 N. Y. Supp. 490.

When an object on a railroad track is thought by the engineer of a train to be a dog or a bundle, he is not under obligation to stop his train to make sure what the object is; and if he fails to identify the object as a child until too late to stop the train, the railroad company is not liable for the result. Louisville, N. O. & T. R. Co. v. Williams, 69 Miss. 631, 12 So. 957.

VIII. Presumptions in absence of knowledge of disability.

a. Right to presume person in peril will help himself.

One has a right to presume, in the absence of knowledge to the contrary, that a person in peril is in the full possession of his faculties, and that, acting upon the natural instinct of self-preservation, he will get out of harm's way when he becomes conscious of the danger impending. To warrant such presumption, however, the circumstances must give support to the belief that such person's situation is known to him, and that he is able to extricate himself from his perilous position. Hence, there arise presumption, which are considered in the next certain limitations upon the exercise of this succeeding division of this note.

"In the absence of knowledge to the contrary, or some fact which ought to arouse suspicion that this is not true, employees operating a railway train may assume that a man seen at a public crossing, or elsewhere on the track, is in possession of all his senses, and that care for his own safety will induce him to use them, and to act on the warnings conveyed through them." International & G. N. R. Co. V. Garcia, 75 Tex. 589, 13 S. W. 223; Artusy v. Missouri P. R. Co. 73 Tex. 191, 11 S. W. 177; Frazer v. South & North Ala. R. Co. 81 Ala. 185, 60 Am. Rep. 145, 1 So. 85; Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168: Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320; Deans v. Wilmington & W. R. Co. 107 N. C. 686, 22 Am. St. Rep. 902, 12 S. E. 77; Clark v. Wilmington & W. R. Co. 109 N. C. 430, 443, 14 L. R. A. 749, 14 S. E. 43; Syme v. Richmond & D. R. Co. 113 N. C. 558, 18 S. E. 114; Maloy v. Wabash, St. L. & P. R. Co. 84 Mo. 270; Candee v. Kansas City & I. Rapid Transit R. Co. 130 Mo. 142, 31 S. W. 1029; Jackson v. Kansas City, Ft. S. & M. R. Co. 157 Mo. 621, 645, 80 Am. St. Rep. 650, 58 S. W. 32; Louisville & N. R. Co. v. Cooper (Ky.) 6 Am. & Eng. R. Cas. 5; Illinois C. R. Co. v. Hocker, 21 Ky. L. Rep. 1398, 55 S. W. 438; Florida C. & P. R. Co. v. Williams, 37 Fla. 406, 20 So. 558; Green v. Southern P. Co. 122 Cal. 563, 55 Pac. 577: Murch v. Western N. Y. & P. R. Co. 78 Hun, 601, 29 N. Y. Supp. 490; Sims v. Macon & W. R. Co. 28 Ga. 93; Cogswell v. Oregon & C. R. Co. 6 Or. 417; Campbell v. Kansas City, Ft. S. & M. R. Co. 55 Kan. 536,

40 Pac. 997; Omaha & R. Valley R. Co. v. Cook, 42 Neb. 577, 905, 60 N. W. 899; Raines v. Chesapeake & O. R. Co. 39 W. Va. 50, 24 L. R. A. 226, 19 S. E. 565; Smalley v. Southern R. Co. 57 S. C. 243, 254, 35 S. E. 489; Gulf, C. & S. F. R. Co. v. Hill (Tex. Civ. App.) 58 S. W. 255; Bump v. New York, N. H. & H. R. Co. 38 App. Div. 60, 55 N. Y. Supp. 962; Cleveland, C. C. & St. L. R. Co. v. Miller, 149 Ind. 490, 49 N. E. 445; Ullrich v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 358, 51 N. E. 95.

It is only when those in charge of a railroad train have reasonable ground to believe that a person on the track will not get off in time to avoid injury to himself, that they are bound to stop the train. Gulf, C. & S. F. R. Co. v. Hill (Tex. Civ. App.) 58 S. W. 255; Chamberlain v. Missouri P. R. Co. 133 Mo. 587, 33 S. W. 437. 34 S. W. 842; Teel v. Ohio River R. Co. 49 W. Va. 85, 38 S. E. 518.

"If, however, the person on the track be deaf, and unable to hear the noise of the train. he cannot be expected to provide for his own safety so promptly and certainly as one in full possession of all his senses. This fact should, of course, make him the more careful to avoid being placed in a situation likely to ren der him liable to an injury from which others would be exempt. But what are the duties and responsibilities of the railroad company in such a case? If unaware of the person's infirmity. they cannot be expected to treat him differently from other like trespassers upon their track. They may presume that he will step off in time to prevent being struck by the train, and they would be required to give him only such warning as would reasonably alarm his fears and cause him to leave the track. But if the employees in charge of the train know that the party is deaf, and not able to hear the ordinary noise of the train, their duty becomes entirely different." International & G. N. R. Co. v. Smith, 62 Tex. 254; Tyler v. Sites, 88 Va. 470, 13 S. E. 978; Johnson v. Louisville & N. R. Co. 91 Ky. 651, 25 S. W. 754.

In Texas & P. R. Co. v. Roberts, 2 Tex. Civ. App. 111, 20 S. W. 960, the correctness of an instruction to the jury, that train operatives. upon ringing the bell and sounding the whistle. may presume that a person on the track wil! leave it in time to escape injury, is doubted: and it is said, whether such presumption is warranted depends upon the facts of each particular case.

If railroad employees in charge of a train see a man on the track at a distance sufficient to enable him to get out of the way before the train reaches him, and are not aware that he is deaf or insane, or from some other cause insensible of the danger, or unable to get out of the way, they have a right to presume that he will act on the motive of self-preservation, and get out of the way, and to go on without checking the speed of the train until they see he is not likely to get out of the way, when it would become their duty to give extra alarm by bell or whistle, and, if that is not heeded, then, as a last resort, to check its speed, or stop the train. if possible, in time to avoid disaster. St. Louis, I. M. & S. R. Co. v. Wilkerson, 46 Ark. 513; Sibley v. Ratliffe, 50 Ark. 477, 8 S. W. 686.

In Omaha & R. Valley R. Co. v. Cook, 42 Neb. 905, 62 N. W. 235, Affirming on rehearing 42 Neb. 577, 60 N. W. 899, it is said that it is not "in every case" the duty of a locomotive

engineer to stop his train, or even to lessen its speed, on the discovery of a trespasser upon the track and the court approves the following rule from Wharton on Negligence, § 389a: “Anengineer who sees before him on the track a person apparently capable of taking care of himself has a right to presume that such person, on due notice, will leave the track if there be opportunity to do so; and the engineer will not in such cases be chargeable with negligence if, in consequence of such person not leaving the track, the train cannot be checked in time to avoid striking him. But it is otherwise with persons apparently not capable of taking care of themselves, such as very young children and persons lying helpless on the track."

Where a man sleeping on a railroad track, upon being aroused by the track walker, and warned of an approaching train, got partly up, leaned on his elbow, and assented to the sug gestion in such a way as to indicate he understood the warning, and gave no appearance of being intoxicated or otherwise disabled, the track walker had the right to presume that he would take such measures to protect himself from injury as would be taken by any reasonable person under like circumstances. Virginia Midland R. Co. v. Boswell, 82 Va. 932, 7 S. E. 383.

Acting upon such presumption, a locomotive engineer is not required to check the speed of his train, merely because an apparently and presumably reasonable human being, though in fact deaf, is crossing at a point far enough in his front to enable him to stop it, if he chooses, before reaching such person. Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320; Birmingham R. & Electric Co. v. Bowers, 110 Ala. 328, 20 So. 345; Johnson v. Louisville & N. R. Co. 91 Ky. 651, 25 S. W. 754.

A street car driver has the right to presume that a woman seen approaching the track, and not known by him to be deaf, will exercise her senses, and stop in time to avoid accident. Schulte v. New Orleans City & L. R. Co. 44 La. Ann. 509, 10 So. 811.

And the operators of a hand car and a flagman at a crossing are not negligent in assuming that a person approaching the crossing is able to hear a warning shouted from the car, in the absence of knowledge of his deafness. Piskorowski v. Detroit, G. H. & M. R. Co. 121 Mich. 498, 80 Am. St. Rep. 518, 80 N. W. 241.

In Robbins v. Springfield Street R. Co. 165 Mass. 30, 42 N. E. 334, which was an action for injuries sustained by a man of nearly eighty years, partially deaf, and blind in one eye, through a street car running into his horse and wagon while he was attempting to cross the track, the following instruction to the jury was approved upon appeal: "A motorman-a man in charge of an electric car-has a right, as a general principle, to act upon the presumption that persons whom he sees before him in the street, with teams or on foot, are in the enjoyment of their senses and their faculties, because that is the ordinary experience with men. It is what is ordinarily true; and so he has a right to act upon this assumption of what is ordinarily true, and govern himself properly upon that assumption. But it does not follow from that, that in no case is he required to qualify his conduct in any way.

The motorman here handling this car would have a right to assume that the plaintiff

Co. v. Evans, 87 Ga. 673, 13 S. E. 580; Gunn v. Ohio River R. Co. 42 W. Va. 676, 36 L. R. A. 575, 26 S. E. 546; Wren v. Louisville, St. L. & T. R. Co. 14 Ky. L. Rep. 324, 20 S. W. 215: Robbins v. Springfield Street R. Co. 165 Mass. 30, 42 N. E. 334.

These limitations upon the exercise of the presumption in question obtain in those juris dictions holding that the only duty due a person guilty of negligence is not wilfully to injure him, as well as in those where suca negligence is held to be no excuse for an injury subsequently inflicted by another's negligence: and there seems to be no reason for any dis tinction between them in this regard.

If a person seen upon a railroad track is known to those in charge of a train to be, or from his appearance gives them good reason to believe that he is, insane, or badly intoxicated. or otherwise insensible of danger, or unable to avoid it. they have no right to assume that he will get out of the way, but should act upon the hypothesis that he may not or will not. and should use a proper degree of care to avoid injuring or killing him. St. Louis, I. M. & S. R. Co., v. Wilkerson, 46 Ark. 513; Sibley v. Ratliffe, 50 Ark. 477, 8 S. W. 686; Anderson v. Hopkins, 33 C. C. A. 346, 63 U. S. App. 533. 91 Fed. 77.

The case of. Anderson v. Hopkins seems to make a distinction between trespassers hav ing the power to care for themselves and those suffering from some disability; and it is said that the rule that a trespasser is without re lief for an injury received, unless it was wilfully or maliciously inflicted, does not apply where the person injured was perceived to be in a position of peril, from which, by reason of in ability or inattention, he was not likely to ex tricate himself; and that a failure to exercise reasonable diligence to avoid injury to one per ceived to be so situated is an actionable wrong. if harm results.

If persons in charge of a train are in doubt as to the condition or situation of a person on the track, it is their duty to resolve all reasonable doubts in favor of saving life. Clark v. Wilmington & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43; Little v. Carolina C. R. Co. 118 N. C. 1072, 1077, 24 S. E. 514: Seaboard & R. R. Co. v. Joyner, 92 Va. 354. 365, 36 S. E. 773; Central R. & Bkg. Co. v. Vaughan, 93 Ala. 209, 30 Am. St. Rep. 50. 9 So. 468; Purcell v. Chicago & N. W. R. Co. 109 Iowa, 628, 77 Am. St. Rep. 557, 80 N. W. 682.

The ordinary rule of all railroad companies is said to be, "In all cases of doubt take the side of safety." Dent, J., in Raines v. Chesapeake

company was not liable. Little v. Carolina C. R. Co. 118 N. C. 1072, 1077, 24 S. E. 514. The circumstances which may be deemed sufficient to repel the presumption, and impose the duty of active effort to avoid injury, where the person's d'sability is not previously known, may be classified as follows:

First. Those which make it apparent that the person in peril is unconscious of danger. Tanner v. Louisville & N. R. Co. 60 Ala. 621, 640; Frazer v. South & North Ala. R. Co. 81 Ala. 185, 60 Am. Rep. 145, 1 So. 85; Mobile & O. R. Co. v. Stroud, 64 Miss. 784, 2 So. 171; Murch v. Western N. Y. & P. R. Co. 78 Ilun, 601, 29 N. Y. Supp. 490.

The engineer of a train cannot rely upon the presumption that a trespasser will save himself, after he has been in any manner advised, or he sees, that such person is unconscious of his peril, or so disabled that he cannot protect himself and avoid injury. Pittsburgh, C. C. & St. L. R. Co. v. Judd, 10 Ind. App. 213, 37 N. E. 775.

The presumption that a person upon a street railway track will leave it before an approaching car reaches him cannot he indulged as to an infant of tender years; and, if its presence is discovered by the driver, it is his duty to exercise all the diligence then possible to avoid injury to it. Galveston City R. Co. v. Hewitt, 67 Tex. 473, 60 Am. Rep. 32, 3 S. W. 705; Omaha & R. Valley R. Co. v. Cook, 42 Neb. 577, 60 N. W. 899, 42 Neb. 905, 62 N. W. 235, 37 Neb. 435, 55 N. W. 943.

Neither is there any presumption that a child on a railroad track will heed signals of danger; and a locomotive engineer is bound to stop his train if he sees the child making no attempt to leave the track. Indianapolis, P. & C. R. Co. v. Pitzer, 109 Ind. 179, 58 Am. Rep. 387, 6 N. E. 310, 10 N. E. 70.

And in Campbell v. Kansas City, Ft. S. & M. R. Co. 55 Kan. 536, 40 Pac. 997, it is seid that, if a man is lying or sitting upon a railroad track, apparently intoxicated or asleep, it is the duty of those in charge of a train to make an earlier effort to stop than would be required if the person were walking.

Although railway employees are unaware that a person walking upon the track is deaf, yet if, as ordinary, prudent men, they have reason to believe that an injury will occur unless the train is checked, it should be stopped at once. Louisville & N. R. Co. v. Cooper (Ky.) 6 Am. & Eng. R. Cas. 5; Lexington & C. C. Min. Co. v. Huffman, 17 Ky. L. Rep. 775, 32 S. W. 611; Louisville & N. R. Co. v. Tinkham, 19 Ky. L. Rep. 1784, 44 S. W. 439.

While, as a general rule, a locomotive en

not

But this rule does not impose upon an engineer the duty of providing against what he has no reasonable ground to believe will happen. "The legal obligation is to take proper precau tion to guard against what is the usual or just ly expected consequence of one's acts: against unexpected, unusual, or extraordinary results." Therefore, where an engineer checked the speed of his train upon discovering a man on a trestle, but resumed his course upon seeing him take a position which others had occupied with safety from passing trains, and the man was injured because he failed to hold his head back far enough, it was held that the railroad

on the track is in possession of ordinary sight and hearing, yet, where the conduct of the traveler is such as to excite a doubt of this, the engineer is bound to use greater caution and to stop the train, if necessary to secure his safety. Clark v. Wilmington & W. R. Co. 109 N. C. 430, 444, 14 L. R. A. 749, 14 S. E. 43. The negligence of an intoxicated person in walking upon a railroad track will not excuse the subsequent negligence of the railroad company in running him down, where its employees discovered him on the track when the train was 900 feet distant, and at the distance of 200 feet the engineer noticed something unusual in his manner, but made no effort to check the