a "flying-switch," so called, the engine having passed the crossing toward the south and then backed toward it on another track, Ormsbee walked to and upon the track, "bent forward as an old man would walk, with his head bowed down looking toward the engine," as stated by the witnesses who saw him. Without looking to the north, whence the cars were approaching, he was struck by the forward car and instantly killed. Upon this state of facts the defendant claims that the plaintiff cannot recover, because Ormsbee was guilty of negligence in not looking both ways before he stepped upon the track, and asked for such a ruling.

It was however left to the jury to say whether the diversion of his attention by the passing and backing of the engine would excuse him for not doing so, or whether in view of that fact he was bound to look elsewhere.

That ordinary prudence requires one who enters upon so dangerous a place as a railroad crossing to use his senses, to listen, to look or to take some precaution for the purpose of ascertaining whether he may cross in safety is an established rule both of law and experience.

Railroad Co. v. Houston, 5 Otto, 697; Wright v. Boston & Maine R. Co., 129 Mass. 440; Hinckley v. Cape Cod R. Co., 120 id. 257; Allyn v. Boston & Albany R. Co., 105 id. 77; Butterfield v. Western R. Co., 10 Allen, 532; McGrath v. N. Y. Cent. etc. R. Co., 59 N. Y. 468; Gorton v. Erie R. Co., 45 id. 660; Harty v. Central R. Co., 42 id. 468; Wilcox v. Rome, Watertown, etc., R. Co., 39 id. 358; Wilds v. Hudson River R. Co., 24 id. 430; Chicago & North West. R. Co. v. Hatch, 79 Ill. 137; Illinois Central R. Co. v. Goddard, 72 id. 567; Chicago, Rock Island, etc., R. Co. v. Bell, 70 id. 102: St. Louis & South East. R. Co. v. Mathias, 50 Ind. 65; Haines v. Illinois Cent. R. Co., 41 Iowa, 227; Brown v. Milwaukee & St. Paul R. Co., 22 Minn. 165; Benton v. Cent. R. Co., 42 Iowa, 192; Pennsylvania R Co. v. Righter, 42 N. J. Law, 180; Zimmerman v. Hannibal & St. Joseph R. Co., 71 Mo. 476.

We have been referred to numerous cases in the elaborate brief of the plaintiff, which it is claimed, show that this is not a rule of law, but a matter of fact, the propriety or necessity of which is to be determined by the jury, An examination of these cases however shows that most of them are not in conflict with such a rule but may be classed as exceptions to it on the following grounds.

First. Where the view of the track is obstructed, and hence where the injured party not being able to see, is obliged to act upon his judgment at the time; in other words where compliance with the rule would be impracticable or unavailing.

Commonwealth v. Fitchburg R. Co., 10 Allen, 189; Craig v. New York & New Haven R. Co., 118 Mass. 431; Webb v. Portland & Kennebec R. Co., 57 Me. 117; Johnson v. Hudson River R. Co., 20 N. Y. 66; Continental Improvement Co. v. Stead, Otto, 161; Pennsylvania R. Co. v. Ogier, 35 Penn. 60; Fordham v. London, Brighton, etc., R. Co., L. R., 3 C. P. 368; Stubley v. London & North Western R. Co., L. R., 1 Exch. 13; Dublin, Wicklow & Wexford R. Co. v. Slattery, L. R., 3 App. Cas. 1155.

In this last case Lord Chancellor Cairns remarks: "If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were in broad daylight, and without any thing either in the structure of the line or otherwise to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man and not the carelessness of the company which caused his death."

Second. Where the injured person was a passenger going to or alighting from a train, and hence under

an implied invitation and assurance by the company to cross the track in safety.

Brassell v. New York Cent., etc., R. Co., 84 N. Y. 241; Gaynor v. Old Colony & Newport R. Co., 100 Mass. 208; Chaffee v. Boston & Lowell R. Co., 104 id. 108; Mayo v. Boston & Maine R. Co., 104 id. 137; Wheelock v. Boston & Albang R. Co., 105 id. 203; Stapley v. London, Brighton, etc. R. Co., L. R., 1 Exch. 21.

Third. Where the direct act of some agent of the company had put the person off his guard and induced him to cross the track without precaution. Warren v. Fitchburg R. Co., 8 Allen, 227. In this case the plaintiff was a passenger and shown across the track by the station agent.

Other cases cited by the plaintiff apparently, but most of them only apparently, sustain her claim that an omission to look where the view is plain is not negligence as a matter of law but a question for the jury. In Williams v. Grealy, 112 Mass. 79, the court refused to disturb a verdict for the plaintiff for an injury from a runaway horse, toward which it was claimed she did not look, on the ground that they were left in ignorance by the record "of what was proved as what to other objects were in the street or whether the horse could have been seen by her." A dictum follows that the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want of care, citing only Chaffee v. Boston & Lowell R. Co., 104 Mass. 108, which was the case of a passenger.

French v. Taunton Branch R. Co., 116 Mass. 537, is a case exactly in point for the plaintiff; but as it is in conflict with the earlier and later decisions of the same court above cited, we cannot regard it as authority. Furthermore it purports to rest only on the authority of Wheelock v. Boston & Albany R. Co., 105 Mass. 203, and Chaffee v. Boston & Lowell R. Co., 104 id 108, both of which were cases of passengers, therefore not applicable, and that of Allyn v. Boston & Albany R. Co., 105 Mass. 77, which is directly contrary to the decision of the case, holding that as a driver did not look there was no evidence of due care for the jury, and that the fact that he did not know there was a railroad, there was no excuse, because he must have seen it if looking, and if he was not looking he was negligent.

In some of the New York cases, there was an evident inclination to hold the law as claimed by the plaintiff, not by direct statement to that effect, it is true, but substantially that, by allowing the plaintiff's case to be determined in view of the defendant's negligence.

In Brown v. New York Cent., etc., R. Co., 32 N. Y. 597, a case similar to the one before us, a majority of the court held that as there were no signals of danger, the driver's care was a question for the jury, even though he might have seen the cars in time to have stopped. But in this case there were obstructions to the view until one was close upon the track, and the driver stopped twice for cars to pass; so that it is by no means certain that the court meant to decide as much as their language would imply.

This case was affirmed in Stillwell v. New York Cent. R. Co., 34 N. Y. 29, another case growing out of the same accident. Again in Ernst v. Hudson River R. Co., 35 N. Y. 9, it was broadly laid down that a traveller is not bound to look up and down a track before crossing when there is no signal of approaching cars, and a nonsuit was reversed. After a trial the case came up again in 39 N. Y. 61, and a judgment for the plaintiff was affirmed, but by a majority, on the grounds that under all the circumstances it was doubtful whether the traveller did or did not look up and down the track as far as he could see it; whether in the short distance he had to drive, he could, if he did look, see the approaching train, etc.; clear questions of fact for a jury.

The doctrine of the former decision is repudiated in these words: "A traveller approaching a railroad track is bound to use his eyes and ears, so far as there is opportunity. Negligence in the railroad company in the giving of signals or in omitting precautions of any kind, will not excuse his omission to be diligent in such use of his own means of avoiding danger. And where, by such use of his senses, the traveller might avoid danger, notwithstanding the neglect to give signals or warning, his omission is concurring negligence, and should be so peremptorily declared by the court; and where proof of this is clear, the plaintiff thus negligent should be nonsuited."

But this very question, in its simplicity, was again before the court in Wilcox v. Rome, Watertown, etc., R. Co., 39 N. Y. 358. At a highway crossing, where approaching cars could be seen in season to avoid them, a shifting engine had passed in one direction, while a train, without sounding bell or whistle was coming from another. The rule was laid down with clearness and certainty that in such a case a man must look. Miller, J., says p. 366: "It is very plain that the deceased could have seen the approaching train had he looked for that purpose. There were no obstructions to his vision and no occasion to divert his attention which excused him from observing. To hold that a party is excused, where he has been careless, because the other party has failed to give the accustomed signals or for any other act of negligence on his part, strikes at the principle on which such actions are based. Such a rule is not sustained by any of the ad. judged cases." In this opinion the foregoing cases are reviewed, and an attempt is made to distinguish them. So far however as they hold that neglect by the railroad company to give signals exonerates a traveller from the duty of looking for what he may plainly see, they are practically overruled; and by reference to the later cases cited above it appears that this decision has been followed, and that the rule therein laid down is the law in New York.

In Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, it is to be noticed that after a verdict for the plaintiff, defendant in error, a new trial was granted upon questions of admissibility of evidence. Nevertheless the court approved the leaving of the plaintiff's negligence to the jury, but upon the ground that as the train was coming with extraordinary and unprecedented speed, but for which he could have crossed in safety, and as he had heard its whistle at a half mile post and had looked for it at a point before reaching the track without seeing it, he might properly rely on his calculations of ordinary time and distance without looking again, and hence be in the exercise of due care. Even upon this ground however Judge Campbell dissented, and Judge Cooley who gave the opinion, thought the jury should have found differently. The case is clearly distinguishable from the one before us.

Wanless v. North Eastern R. Co., L. R., 6 Q. B. 481, affirmed in North Eastern R. Co. v. Wanless, L. ¡R., 7 H. L. 12, in which a verdict for the plaintiff was sustained is quite like the present case, but the question of contributory negligence was not raised in it. Kelly, C. B. says: "I am far from saying that these circumstances which appear to have been proved at the trial were not evidence of contributory negligence; for I cannot say that any one crossing a railway, though it might have been intimated to him that he may cross in safety, still when he is upon the railway, ought not to look upon one side and upon the other to whether a train is approaching. But we are not called upon to determine any question of contributory negligence."

see

This review of the cases is sufficient to show the rule to be uniform and unquestionable, that a traveller

in crossing a railroad, even in the absence of ordinary signals, must look up aud down the track, except where he is unable to do so or where, as a passenger or otherwise, he has an assurance of safety from the company which excuses him. Indeed it is quite unusual to find so little difference in so many cases, and it must be for the reason that the rule is founded, not in opinion or judgment, but in common prudence and experience to such an extent that courts can declare it as law.

The question therefore which is decisive of this case, is whether Ormsbee was excused from compliance with this rule on account of the diversion of his attention from the north by apprehension of danger from the engine backing from the south.

Clearly not. To say that he was, would be to hold that danger apprehended in one direction excuses a person from looking to the other, which has never been claimed in any case. If danger threatens on one hand, a traveller on foot at least can stop until he sees whether there is safety on the other, and if he does not do this he takes the risk upon himself. It is no harsh rule that a man should turn his head to look for a train that may be in plain sight.

With reference to the manifest visible peril Ormsbee took no precaution at all, and as this precludes the plaintiff's recovery, whatever may have been the defendant's omission, it should have been so stated to the jury.

It is unnecssary to consider the exceptions as to damages, as a new trial must be granted for the reason given. Petition granted.

IMPLIED CONTRACT TO PAY AGENT AUTHORIZED TO BET NOT WAGERING.

ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, NOVEMBER 15, 1882,

REED V. ANDERSON, 48 S. T. Rep., N. S. 474. Where a person authorizes another to bet for him in the agent's own name, an implied request to pay if the bet be lost is involved in that authority; and the moment the bet is made and the obligation to pay it if lost incurred, the authority to pay (if coupled with an interest based on good consideration) becomes irrevocable in law; and it is immaterial that such obligation is not enforceable by process of law, if the non-fulfillment of it would entail serious inconvenience or loss upon the agent. CTION to recover moneys paid to witness on bets made by plaintiff for defendant. The opinion states the facts.

HAWKINS, J. This action was brought to recover 175l., the amount of three bets made by the plaintiff in his own name at the request of and for the defendant, and paid by the plaintiff to the winners thereof. The plaintiff is a turf commission agent, and a member of Tattersall's subscription room. The defendant is a licensed victualler at South Shields. According to well-established usage, known to the defendant, a turf commission agent, instructed by an employer to back a horse, backs it in his own name, and becomes himself alone responsible to the layer of the odds, or the person with whom the bet is made; and on the settling day after the event, he receives or pays, as the case may be, rendering his own account to his em ployer, paying to or receiving from him the balance of moneys won or lost. For some time before the Ascot meeting, 1881, the plaintiff had according to such usage, been in the habit of backing horses for the defendant, of receiving bets won, paying bets lost, sending accounts to the defendant, and paying to or receiving from him the balances thereof. On the Fri

day of the Ascot meeting (17th June, 1881), the plaintiff being at Ascot received from the defendant a telegram to this effect. "Put me fifty on Limestone, first race; pony all Archer's mounts; fifty Sword Dance, hundred Elf King, Wokingham; hundred Red Rag filly, Castle Stakes. Reply." This telegram, though handed in at South Shields at 12.8 P. M., and received at Ascot at 1.29 P. M., did not reach the plaintiff until 1.40 P. M., at which time the first race for the day, in which Limestone ran, was over, that race having been run at half-past one; for that race, therefore, Limestone could not be backed. The second race of the day was the Wokingham Stakes, which was set down for two o'clock. For that race Sword Dance and Elf King, mentioned in the telegram and Valentino, ridden by F. Archer, were entered; the plaintiff accordingly, acting on the telegram, backed in his own name Elf King for 100l.; Sword Dance for 501., and Valentino (as one of Archer's mounts) for 25l. Neither of these horses won; the consequence was that these bets, to the amount of 175l., the subject of the present action, were lost. At 2.15 P. M., the plaintiff handed in at the telegraph office at Ascot the following message to the defendant: "Nothing done Limestone or Archer's mounts the first race-your message came ten minutes after the race.' In this message, which was not delivered to defendant until 3.14 P. M., it will be observed nothing is said about the second race; but at 3.5 P. M., the plaintiff telegraphed the result of that race to defendant in these terms: "Your message received; Viridis won." This was evidently a mistake, for no such animal as Viridis ran in the race. The Wokingham was won by a colt by St. Albans out of Viridis. The mistake however is immaterial. This message was not received at South Shields until 3.35 P. M., and then defendant had received information by telegram from another person of the result of the first two races. On the evening of the same day the defendant repudiated these bets and all liability in respect of them by the following letter to the plaintiff:Exchange Vaults, South Shields, 17th June, 1881. Mr. Read, -1 find your message was not handed in before the race for the Wokingham Stakes; I had the result of the race ten minutes before I received your reply. I enclose you the message, which please return to me; they were both handed in at 2.15, that being fifteen minutes after the order of running; so I shall consider I am not on any thing for two first races today, as I cannot stand the mersages being sent away after the race is over to say I am on. In haste, I remain yours respectfully, J. Anderson." In reply to this letter the plaintiff wrote to defendant as follows: "Dear Sir,-The reason you did not get your message about Elf King, S. Dance, and F. Archer mounts sooner was on account of so many messages being sent about the results of the Wokingham Handicap. The following bets I took for you. I inclose you the names: 100800 Elf King; Jacob, A. 50-225 S. Dance; Robinson, J. 25-150 Valentino; Masterman." With this letter the plaintiff sent a detailed account of the various bets he had made for the defendant during the Ascot meeting, and of the amounts which he would have to receive from and pay to the defendant. In number there were between fifty and sixty, and the account showed that upon these the defendant's losses, including the bets in question, amounted to 1,4201. 08. 5. whilst his Winnings were 7051. 17s. 4d. leaving a balance of 7141. 38. 1d. to be paid by the defendant. The defendant in reply, on the 19th of June inclosed a check for 5391. 38. Id,, as being the real balance due, and with regard to the difference, 175l., wrote thus: "I cannot think about paying the other, as I have other people to please as well as myself, and paid for reply, and you say you received message ten minutes too late for first race, but you cannot give any excuse for not answering it

until the next race was over. I am quite satisfied that had any of them won I should not have been on." Other correspondence followed, but is not material for the question 1 have to decide. On the settling day the plaintiff paid the three bets in question to the winners of them. Had he not done so he would have been a "defaulter" within the meaning of the 3d rule of Tattersall's new subscription room; and if upon complaint made to the committee of the room, the committee adjudged him to be so, his membership of the room would thereupon have ceased, and he would have been thence forward excluded from it, and by the 50th of the rules of racing made by the jockey club, if he had been reported by such committee as being a defaulter in bets, he would until his default had been cleared, have been subject to certain disqualifications mentioned in rule 49 of the rules of racing as to entering and running horses. The consequences of becoming a defaulter would therefore have been very serious to the plaintiff. For the defendant it was contended, first, that the authority to make the bets in question was subject to an express condition that the defendant should be informed by the plaintiff, by telegram delivered at the telegraph office before the race was run, that he was on;" that is, that the bets had been made on his behalf; secondly, that if there was no such express condition, there was an universal usage and custom importing a condition to that effect into every authority conveyed by telegram to back horses, when a reply was paid; and that inasmuch as no reply telegram was handed in by the plaintiff for the defendant until a quarter of an hour after the race was run, the defendant was entitled to repudiate the bets as he did by his letter. The defendant further insisted that the bets were wagering contracts; that he had never given any authority to the plaintiff to pay them, and even if he had, that authority was revoked before the money was actually paid. I am of opinion, and I find as a fact, that there was no such express condition, nor is there any such usage or custom as contended for. The payment for a reply to a telegram requesting the plaintiff to back the horses, no doubt was an intimation to the plaintiff that the defendant desired to be speedily informed of what had been or what was about to be done on his behalf; but it did not constitute a condition to the plaintiff's authority to make the bets. As a matter of fact, where it can be done, a message in reply is no doubt usually handed in at the office before the race, but no universal custom or usage was established before me making it imperative upon the commission agent to do this as a condition to his binding his customer. Long and unreasonable delay in replying until after the race is run, and the event known, might under certain circumstances afford strong ground for suspecting that in fact the agent did not make the bets on behalf of his customer, and was fraudulently attempting to saddle him with the loss. There is however no evidence before me to justify such an imputation in the present case. It was clearly established to my satisfaction that the bets were made bona fide by the plaintiff for the defendant, in pursuance of the telegram, and that the plaintiff paid those bets in discharge of his liability to the persons with whom they were made. The objections of fact therefore fail. This brings me to the consideration of the legal objections to the plaintiff's claim. I am of opinion that neither of them can be sustained. At common law, wagers are not illegal, and before the passing of 8 & 9 Vict., c. 109, actions were constantly brought and maintained to recover money won upon them. The object of 8 & 9 Vict., c. 109 (passed in 1845) was not to render illegal wagers which up to that time had been lawful, but simply to make the law no longer available for their enforcement, leaving the parties to