most of the testimony of Dr. Munro. An hypothetical question, claimed by the district attorney to contain and embrace all the symptoms testified to by Dr. Munro, and other witnesses, which the deceased suffered in her last sickness, was addressed to the witness, and concluded with the questions: "What would you say was the matter with the patient?" and "What would be your diagnosis of the case?" This was objected to by the counsel of the prisoner, and the objection was overruled and exception taken, and the witness answered, "I should suspect that an irritant poison had been administered." He was then asked, "What irritant poison?" and he answered, "Arsenic." He was then asked, "Well, from the symptoms, as I have stated them, as compared with cholera morbus, which would you say the patient was suffering from?" and he answered, "I should say she was suffering from arsenical poisoning." On cross-examination the witness further testified that he had never seen a case of arsenical poisoning, and never treated one, or seen one in his practice, and that all he knows about it, in relation to the effects of an irritant poison, was what he got from books and authorities that he had read and consulted, and from what he was taught at the medical college, without any practical knowledge or experience aside from that. The testimony of these two medical witnesses was very material, if not indispensable, in proving an important element of the corpus delicti,-that the deceased came to her death by criminal means. Dr. Munro was her attending physician, and upon his diagnosis, from actual observation of her symptoms, depended all of the medical testimony in the case. The court, in instructing the jury, called their attention to the testimony of Dr. Munro particularly. It is true that there were two other medical witnesses who, in their practice, had each seen at least one case of poisoning by arsenic, who testified in answer to an hypothetical question embracing the symptoms testified to by others that such symptoms indicated arsenical poisoning, but we cannot say that the verdict would have been the same without the testimony of Doctors Munro and Olmstead, and that it was therefore immaterial. It seems to us that the jury must have relied very much on their testimony. It is both surprising and unfortunate that upon such a long, difficult, and expensive trial of a case of murder in the first degree, the result should have been hazarded upon such a question as that of the qualification of the medical witnesses to give an opinion that the symptoms of the last sickness of the deceased indicated poison by arsenic, when their disqualification was so apparent in the light of a recent decision. of this court. Neither Dr. Munro nor Dr. Olmstead had ever seen a case, or had any experience whatever on the subject of arsenical poisoning, and all that either of them knew upon the subject was derived from medical or scientific books, and medical instruction. In receiving their testimony, the court committed and repeated the very error by reason of which the judgment in the case of Boyle v. State, 57 Wis. 472, 15 N. W. Rep. 827, was reversed. In that case, Dr. Cody was allowed to testify as to what medical books and authorities said upon the subject of "strangulation," and to give an opinion of its fatal effect and consequence, when he had testified that he had never seen a case of "strangulation," and that he did not know by experience of it, and had no personal knowledge on the subject. That case was unusually well considered, and the logic of the opinion is perfectly conclusive, and numerous authorities are cited to sustain the decision. Many cases in this state and elsewhere are cited to show that medical works and authorities could not be read in evidence, and Mr. Justice TAYLOR well said: "Certainly, if the book itself cannot be read in evidence to the jury, the witness cannot be permitted to give extracts from it as evidence, depending upon his memory for their correctness. The palpable error in permitting Dr. Cody is apparent from the fact that he testified on the stand that he had no personal knowledge on the subject he was testifying about. He says: "I have not seen a case of strangulation, and do not know by experience." I have quoted the testimony of Doctors

Munro and Olmstead, by questions and answers, fully and correctly, that the application of Boyle v. State might clearly appear. The testimony of such medical witnesses is at best merely hearsay,-what medical books and teachers taught or told them, repeated from memory. The learned counsel of the state asks this court to review and overrule that case as not supported by authority. But it is supported by authority, and equally by reason. The decision was made deliberately, and we can see no reason for revising or changing it. It is to be deplored that it escaped the attention of the court and the counsel of the state in a case of such serious consequences. The result and consequence of such a palpable error must be the same as in the case of Boyle v. State. The judgment must be reversed. It is more important to the public and the state than the conviction of the prisoner, that he be convicted, if at all, on legal and competent evidence. It would seem not to be difficult to find a sufficient number of medical witnesses to testify, in such a case, who are competent from knowledge and experience. The judgment of the circuit court is reversed, and the cause remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Brown county, who will hold him in custody until he shall be discharged by due course of law.

DUAME v. CHICAGO & N. W. RY. Co.

(Supreme Court of Wisconsin. November 8, 1888.)

1. RAILROAD COMPANIES-ACCIDENTS AT CROSSINGS-DUTY TO LOOK AND LISTEN. The rule that a person approaching a railroad crossing is bound to look and listen for the approach of a train, is inapplicable to a case where the train has just passed the crossing while deceased was within a few rods of it, and driving upon a trot, and has passed on out of his sight in such manner as to induce the belief that it was to continue on in that direction, and where he has no reason to suppose that it would immediately return.1

2. SAME-DUTY TO SIGNAL.

In such case it was the duty of the railroad company to have had some one on the rear car, or in some position where he could have seen that no one was about to cross the track before it was backed down over the crossing, to give the deceased timely warning, and to signal the train to stop, if there was danger of a collision.1

Appeal from circuit court, Oconto county.

This was an action brought by Mary A. Duame, administratrix, against the Chicago & Northwestern Railway Company, to recover damages for the killing of her husband at a railroad crossing. The court upon the evidence directed a verdict for defendant. Plaintiff appeals.

E. H. Ellis, for appellant. Jenkins, Winkler, Fish & Smith, for appellee.

ORTON, J. This is a brief, yet substantially correct, statement of the facts: The track of the defendant's railway crosses Main street in the city of Oconto, nearly north and south. Near the south side of the street there are two side tracks, with switches, and about 70 feet north of the street there is another side track, with switch running south. There is a pile of wood 50 feet long, and 8 or 9 feet high, on the east side of the defendant's right of way, extending north from the north side of the street; and the ground for some distance east of the track north of the street is about 4 feet higher than the track, and there is a house about 40 feet north of the street, and a short distance east of the wood-pile. The train, which consisted of the locomotive, two box

1 Respecting the duty of railway companies at crossings, see Railroad Co. v. Schuster, (Ky.) 7 S. W. Rep. 874, and note. As to the duty of the traveler to look and listen, see State v. Railroad Co., (Me.) 15 Atl. Rep. 36, and note; Hanks v. Railroad Co., (Mass.) 18 N. E. Rep. 218, and note; McWilliams v. Railroad Co., (Pa.) 15 Atl. Rep. 654, and note; Brown v. Griffin, (Tex.) 9 S. W. Rep. 546, and note; Railway Co. v. Hill, (Índ.) 18 N. E. Rep. 461.

cars, and a caboose, had come out on the main track from one of the side tracks, and run north across the street; and, when it had passed about two or three car-lengths north of the street, it stopped, and immediately backed down towards the street. During this time the engineer and fireman were on the engine, the conductor stood in the door of the caboose on the east side, one brakeman stood upon the north platform of the caboose, and the other brakeman stood near the switch, south of the street. There was no flag-man at this crossing, and no one on the rear end of the train, to give warning to those about to cross the track at that place, and whether the bell was rung was a fact in dispute; witnesses for the defendant testifying that it was, and other witnesses testifying that they did not hear it. The deceased, in a onehorse vehicle, was driving west on Main street, towards his home, about seven miles in the country; and had approached within seven or eight rods of the crossing from the east, when the train passed over it, and went on north, out of his sight, and he continued on a trot towards the crossing, and, as his horse stepped on the track, the rear car of the train was very near it, and whether he attempted to back or turn around or pass over the evidence is uncertain, but his carriage came in contact with the rear car, and he was thrown under its wheels, and killed. The conductor of the train, from where he stood, in the east door of the caboose, saw the deceased as he was approaching the crossing, and gave no signal or warning to the engineer to stop the train, as he might have done, and took no precaution whatever to avoid the accident; and, when asked on the trial what he did, said that "he did nothing at all; if he hadn't sense enough, let him go." He could have kept watch of the deceased, but did not, and stood there looking over his way-bills, and did nothing. The brakeman standing near the switch, on the south side of the street, also saw the deceased approaching the crossing, and knew that the train was backing down towards the crossing, and yet gave no signal or warning to the engineer in time to stop the train before it came in contact with the deceased; and the other brakeman, standing on the front platform of the caboose and near the engineer, and who gave the signal to the engineer to stop the train when it was stopped, and whose business it was to look to the other brakeman for signals, was not looking that way all of the time. If the brakeman at the switch gave any signal to stop in time to prevent the collision, he did not see it, because not looking that way at the time, and yet it was his business so to look. The jury rendered a verdict for the defendant, by the direction of the court, and of course this is the error complained of on this appeal.

The evidence tending to prove the negligence of the employes of the defendant is very strong, if not conclusive; and we infer, therefore, that the court directed the verdict on the ground of the contributory negligence of the deceased. We are asked by the learned counsel of the appellant to hold, in view of the evidence, that the killing of the deceased was not only the result of the want of proper care on the part of the conductor of the train and of other employes of the defendant, but that it was occasioned by their gross negligence, recklessness, and criminal misconduct; and that, therefore, the question of the contributory negligence of the deceased is not in the case. The conduct of the conductor was certainly very reprehensible, and, in connection with his own explanation of it, evinces a cold-blooded indifference which, I am happy to say, is not common among railway employes. But, without a finding by the jury on such an important question of fact, we would not feel warranted in first passing upon it. The evidence to such end ought to be perfectly conclusive and overwhelming, and we can scarcely believe that the omission of the conductor to signal the engineer to stop the train, until he could be assured of the safety of the deceased, was willful, or that he apprehended such a collision as the result of it. This is most properly a question for the jury, and not for the court. Inasmuch as the case must again be tried, and the questions of negligence be passed upon by a jury, we refrain

from expressing an opinion upon them further than to say that the circuit court erred in directing a verdict for the defendant, on the ground either that the defendant was not guilty of negligence, or that the deceased was; but we shall only consider the last as the probable ground for such direction. As a general rule, and unaffected by other circumstances, the proposition urged in the brief of the learned counsel of the respondent, that one approaching a railroad crossing who may, by looking, have a timely view of an approaching train, is bound to look and listen for its approach, before attempting to cross the track, and that a failure to do so is negligence, may be correct, and the circuit court most probably applied this strict rule to the plaintiff's case. We do not think that such a rule would be applicable to this case. There is a most important fact in this case, that materially modifies this strict rule, and makes it inapplicable, and that is that this train had just passed this crossing while the deceased was within a few rods of it and driving upon a trot, and had passed on out of his sight, and he had reason to suppose that it would continue on, it being upon the main track, like any other train upon its regular route, and had no reason to suppose that it would immediately return. The presumption was that it would go on, and not return. He was thus thrown off his guard. There was no reason to look or listen in that direction further, for it appeared impossible to him that any train from that direction would or could approach the crossing within so short a time. He was entrapped by this unexpected return of the train, for its sudden return over the crossing without warning was to him a trap. We know how it must have appeared to him, for it would have so appeared to any ordinary person with the same knowledge of the situation. Not knowing or supposing, or having any reason to suppose, that the train would immediately return, or that any train would come from that direction, he did as any other reasonable person would have done, and kept straight on, without lessening his speed, as if assured that the way was clear, and that there was no possible danger. To have stopped and looked and listened in that direction, under such circumstances, would have been unreasonable, and the law requires no such unreasonable thing as a duty or obligation. When he had come to within a few feet of the crossing, with no signal to attract his attention, he appeared to be suddenly conscious that the end of a box car was creeping down upon him; and what he did or tried to do in this sudden emergency and danger is not very clearly known, or just how he came to his death under the wheels. Under such circumstances, the law does not require that he should have acted or be judged according to any strict or fixed rule. He was evidently surprised and confused by the sudden appearance of the train so near him. I have said that the train went north out of sight of the deceased, and there was testimony to this effect; although it is contended by the counsel of the respondent that the top of the cars might have been seen by him all the time. But this was a question for the jury, when there was conflict of the evidence. But it is quite immaterial whether he could have seen the tops of the cars or not. He had no occasion or reason to look that way any longer after the train had passed on to the north in such a manner as to lead him to suppose that it would continue on in that direction. But enough has been said to show that the circumstances were such as to make the rule that a person approaching a railroad crossing is bound to look and listen for the approach of the train, inapplicable to the deceased. This would seem to be too obvious to require authority. But the principle involved has been often recognized by the courts. In Curtis v. Railroad Co., 27 Wis. 158, the train, in being brought up to the station, came to a stop in such a manner as to induce the belief on the part of the passengers waiting on the platform that it had stopped for their reception, and the plaintiff, in attempting to get on, was injured by the sudden starting of the train without signal. It was held "that, if the plaintiff so acted as persons of common sense and ordinary prudence and in

telligence usually act in like cases, there was no such negligence on his part as would prevent his recovery in the action." And it was further held "that this was an act of negligence on the part of the company; and that it was the duty of the company, if passengers were not to enter the cars under these circumstances, to have some one there to warn and prevent thein, and of the persons in charge of the train, not to start it without previous caution or signal given." The application of that case to this is very clear. The deceased had the right to act as ordinarily sensible persons would be likely to do if this train passed on in such a manner as to induce the belief that it was to continue on in that direction, and drive on, as he did, towards the crossing, without further attention to that train; and, to further apply the case, it would seem that the company was negligent in not having some one there to prevent persons from attempting to pass over the crossing in the mean time, if the train was to be almost immediately backed down over the crossing, and the persons in charge of the train should not have so backed the train over the crossing without previous caution or signal given. In Bower v. Railway Co., 61 Wis. 457, 21 N. W. Rep. 536, it was held "that a person approaching a railroad crossing with a team, and having reason to suppose that a regular passenger train has recently passed from one direction, is not guilty of negligence if he fails to look constantly in that direction." In Eaton v. Railway Co., 51 N. Y. 551, the train was standing with the rear car nearly over the crossing, and the plaintiff attempted to cross with a horse and buggy, and it was suddenly backed upon him. It is said in the opinion: "The plaintiff had a right to expect that some previous warning would be given that the train was about to back, to put him in fault. The measure of precaution which prudence suggests is in due proportion to the probability of danger." If, by the negligence or omission of those in charge of the train, the plaintiff's vigilance was allayed, they are not at liberty to impute the consequence of their acts to his want of vigilance; and, if their acts brought him within the boundaries of peril, they must answer for the results. Railroad Co. v. Ogier, 35 Pa. St. 72. If in this case those in charge of the train allayed the vigilance of the deceased by running the train over the crossing, and on towards the north, in such manner as to cause him to believe that it would continue, and not return, and immediately run it back over the crossing, they are not at liberty to impute the consequence of such act to his want of vigilance, and, if such unexpected return brought him into peril, they must answer for the result. It is contended that the train did not return without warning or signal, but that the bell was rung constantly on its return. It is true that many of the defendant's witnesses testified that the bell was so rung, but many of the plaintiff's witnesses testified that they did not hear it, and some of them were so situated that they would have heard it had it been rung. This certainly made a conflict of evidence, and a question for the jury. But if the bell were rung on the engine at the other end of the train, if he did not see the train, and did hear the bell, he could not have known with any certainty whether it was rung for the going forward or the return of the train. On this appeal we must assume that no warning or signal was given. As said before, it would seem that, under the circumstances, there ought to have been some one on the rear car, or in some position where he could have seen that no one was about to cross the track before it was backed down over the crossing, to give the deceased timely warning, and to signal the train to stop if there was danger of a collision. This may not be important as affecting the question of the defendant's negligence, as its negligence seeins to have been established by other facts as well, but it may be important as affecting the question of the negligence of the deceased. It can readily be seen that the peculiar circumstances of this case make the contributory negligence of the deceased a question for the jury, and not for the court to decide as a question of law; nor would it be a question of law to decide that the deceased was