and this rule should operate for the benefit of the public as well as the company.

Authorities are not lacking in support of the position that a "reasonable look-out," varying according to the danger, and all the surrounding circumstances is a duty always devolving on those in charge of a railroad train in motion. Baltimore and Ohio Ry. Co. v. State of Maryland, for use of Hannah Dougherty, 36 Md. 366; Baltimore and Ohio Ry. Co. v. State, use of Trainor, 33 Md. 554; Harlan v. St. Louis, Kansas City and N. Ry. Co., 2 Thompson on Negligence, p. 439 (64 Mo. 480, and 65 Mo. 22), citing Hicks v. Pacific R. R. Co., 64 Mo. 430. The duty of watchfulness has often been enforced against railroads in cases of injuries to cattle trespassing on their track, and that, too, in the absence of any statutory provision or in cases outside of the statute. Isbell v. N. Y. and N. H. R. R. Co., 27 Conn. 393; Gorman v. Pac. R. R. Co., 26 Mo. 442; Chicago and Ill. R. R. v. Barrie, 55 Ill. 226; Kerwhacker v. C. C. and C. R. R. Co., 3 Ohio St. 172. We prefer that line of decisions holding railroads bound to exercise their dangerous business with due care to avoid injury to others, as correct in principle and sound in policy, and as protecting even a trespasser who is not guilty of contributory negligence. We are inclined, however, to the opinion that the charge given by the court in this case may have led the jury to believe that they could only find for defendants should they think that the engineer "could not and did not discover plaintiff on the track in time to stop, without running over him." Read as a whole, especially in connection with its final clause, the charge is not erroneous, and may not perhaps have been misunderstood. call attention to it because of our opinion that the watchfulness required depends on all the circumstances, having reference to all the duties of the engineer, and that it is for the jury to say whether, under the circumstances, he not only could, but should have discovered the plaintiff in time to have stopped the train. In other words, that the engineer, had he been exercising that ordinary and proper care which under the circumstances was his duty, would have discovered the plaintiff in time.

We

But we are of opinion that the court, its attention being called to the subject by a charge asked by defendant, should have given the jury an instruction as to their duty in the event they found that the plaintiff was intoxicated when the accident occurred. Whether he was so intoxicated or not, was under all the evidence an issue of fact for the jury. If they found, as claimed by defendant, that his fit was one of intoxication, the authorities seem to be that "such conduct is contributory negligence which constitutes a bar to his action for damages." 1 Thompson on Neg., p. 450, citing Ill. Cent. R. R. Co. v. Hutchinson, 47 Ill. 408; Herring v. Wilming ton and Raleigh R. R. Co., 10 Iredell, 402; H. and T. C. R. R. Co.

v. Smith, 52 Tex. 178. In such case the injured party would be precluded from rcovering for anything short of wanton or wilful neglect.

Because of this error the judgment is reversed and the cause remanded.

Reversed and remanded.

The five cases above reported all turn upon the obligation of railroad companies to persons trespassing on the line of their tracks. A great number of decisions have been rendered on this point by the various courts of this country, and the conclusions reached are by no means harmonious. An attempt will, however, be made to state briefly the leading principles which have been enunciated on this topic.

It is well settled that foot passengers have no right to walk upon the tracks of railway companies. If they do so, except at crossings, they become trespassers, and accordingly, in most cases, will be precluded from recovering against the companies for injuries inflicted upon them by passing trains, notwithstanding the negligence of the companies' employees. R. R. Co. v. Norton, 24 Pa. St. 465; Galena, etc., R. R. Co. v. Jacobs, 20 Ill. 478; Lake Shore, etc., R. R. Co. v. Hart, 87 Ill. 529; Little Rock and Fort Smith R. R. Co. v. Pankhurst, Vol. V. page 635; Mason v. Mo. Pacific R. R. Co., supra, p. 1.

In the recent case of Mulherrin v. Delaware, Lack. and W. R. R. Co., 81 Pa. St. 366, this doctrine is thus clearly and concisely stated: "Except at crossings where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right of way but such right is exclusive at all times and for all purposes. This is necessary not only for the proper protection of the company's rights, but also for the safety of the travelling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of one single foolhardy man, who desires to walk upon the track. In England it is a penal offence for a man to be found unlawfully upon the track of a railroad (3 and 4 Vict., c. 97, § 16). It would add materially to the public safety were there a similar law here."

A trespasser, however, merely because he is a wrong-doer, does not become altogether an outlaw. The company still owe a certain measure of duty to him from which they cannot escape. Rounds v. Del., Lack. and W. R. R. Co., 64 N. Y. 129; McCarty v. Delaware and Hudson Canal Co., 17 Hun, 74; Spofford v. Harlow, 3 Allen, 176; Lovett v. Salem and S. D. R. Co., 9 Allen, 557; Penn. R. R. Co. v. Sinclair, 62 Md. 301; Gillis v. Penn. R. R. Co., 59 Pa. St. 129.

Hence, in case of gross negligence or carelessness on the part of those in charge of the train, the company will be held liable for an injury inflicted even upon a trespasser. Teunen broock v. So. Pacific Coast R. R. Co., supra, page 8; Carroll v. Minn., etc., R. R. Co., 13 Minn. 30; Green v. Erie R. R. Co., 11 Hun, 333; Kenyon v. N. Y., etc., R. R. Co., 5 Hun, 479; Donaldson 7. Milwaukee, etc., R. R. Co., 21 Minn. 293; Herring v. Wilm., etc, R. R. Co., 10 Ired. 402; Johnson v. Boston and M. Ry., 125 Mass. 75; Morrissey 7. Eastern R. R. Co., 126 Mass. 377.

So, too, the company will be held liable if such killing or injury appears to be a mere wanton or malicious act, provided, of course, the employee is at the time acting within the scope of his duty. Terre Haute and Ind. R. R. Co. v. Graham, 46 Ind. 239; Illinois Cent. R. R. Co. v. Hall, 72 Ind. 222; Evansville, etc., R. R. Co. v. Wolfe, 59 Ind. 89; Kansas Pac. R. R. Co. . Ward, 4 Col. 30; Rothe v. Milwaukee and St. P. Ry. Co., 21 Wis. 256: 6 A. & E. R. Cas.-2

Phila. and Reading R. R. Co. v. Hummell, 44 Pa. St. 375; Pitts., Ft. Wayne and Chicago R. R. Co. v. Evans, 53 Pa. St. 250; Same v. Collins, 87 Pa. St. 405.

The amount of care and caution required of the engineer of a train in looking out for trespassers varies, of course, according to the locality. It is greater in densely populated districts than in the open country. Upon this point the court says, in Hicks v. Pacific R. R. Co., 64 Mo. 430: "The care and caution required of railroad companies in running their trains are commensurate with the danger to persons and property incident to that mode of transporting freight and passengers, and at some points on the road greater care is exacted than at others. In running through towns and cities and over public crossings, they are expected to be more careful than at other places where not so likely to injure persons or property."

There are many authorities which hold railroad companies to a much stricter measure of duty with regard to trespassers than has been already laid down. These seem to indicate that ordinary care will be exacted and that in the absence of such care the company will be held liable. Needham v. St. F. and St. J. R. R. Co., 37 Cal. 409; Kansas Pac. R. R. Co. v. Cranmer, 4 Col. 524; Hicks v. Pacific R. R. Co., 64 Mo. 430; Richmond and D. R. R. Co. v. Anderson, 31 Gratt. 812; Murphy v. Chicago, R. I. and P. R. Co., 38 Iowa, 539; S. C., 45 Iowa, 661; Isbell v. N. Y. and N. H. R. R. Co., 27 Conn. 393; Patterson v. Phila., W. and B. R. R. Co., 4 Houst. 103; Evansville and C. Ry. Co. v. Hiatt, 17 Ind. 102; Illinois Central R. R. Co. v. Godfrey, 71 Ill. 500.

In the case of Harlan v. St. Louis, etc., R. R. Co., 65 Mo. 22, the liability for ordinary care is thus defined and limited: "When it is said in cases where the plaintiff has been guilty of contributory negligence, that the company is liable if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable if by the exercise of reasonable care, after discovery by the defendant of the danger in which the party stood, the accident could have been prevented; or if the company failed to discover the danger through the recklessness or carelessness of its employees, when the exercise of ordinary care would have discovered the danger and averted the calamity." And see Finlayson v. Chicago R. R. Co., 1 Dill. 579; Balt., etc., R. R. Co. v. State to use, 36 Md. 366.

It seems to be universally conceded that where the engineer of a train observes an adult trespassing upon the track, he is entitled to presume that that trespasser is in full possession of his senses, and that he will upon receiving proper warning of the approach of the train step from the track to a place of safety. Hence the engineer is not bound to stop the train but only to give such intimation of its approach by bell or whistle as is customary and proper. If he does this he has discharged his full duty. Poole v. North Car, etc., Ry. Co., 8 Jones L. 340; Harty v. Central R. R. Co., 42 N. Y. 468; O'Donnell v. Mo., etc., Ry. Co., 8 Cent. L. J. 414; Illinois, etc., R. R. Co. v. Moaglers, 85 Ill. 181; Cogswell v. Oregon, etc., R. R. Co., 6 Oreg. 417; Maher v. Atlantic, etc., R. R. Co., 64 Mo. 267; Holmes v. Central R. Ř. Co., 37 Ga. 593; Herring v. Wilmington, etc., R. R. Co., 10 Ired. 402; Telfer v. Northern R. R. Co., 1 Vroom (N. J.), 188; Frech v. Phila., W. and B. R. R. Co., 39 Md. 574; Chicago, B. and Q. R. R. Co. v. Lee, 68 Ill. 576; Chicago, B. and Q. R. R. Co. v. Damerell, 81 Ill. 450; Mobile and M. R. Co. v. Blakeley, 59 Ala. 471; Tanner v. Louisville and M. R. Co., 60 Ala. 621.

If, of course, the engineer should happen to know that the adult was deaf, blind, or otherwise incapable of appreciating the warning, a greater measure of duty would be required, but not otherwise. Herring v. Wilmington and Raleigh R. R. Co., 10 Ired. L. 402; Frech v. Phil., W. and B. R. R. Co., 39 Md. 574; Louisville and Nashville R. R. Co. v. Cooper's Adm'r, supra,

p.

Where the engineer perceives that the person on the track is a child, there he is bound to exercise great caution, for he cannot presume that the child will be able when the warning is given to appreciate the danger of his position and to escape from it. Penna. R. R. Co. v. Morgan, 82 Pa. St. 134; Kenyon . N. Y., etc., R. R. Co., 5 Hun, 479; Phila., etc., R. R. Co. v. Spearen, 47 Pa. St. 300; McMillan v. Burlington, etc., R. R. Co., 46 Iowa, 231; Meyer . Midland, etc., R. R. Co., 2 Neb. 319; Penna. R. R. Co. v. Lewis, 79 Pa. St. 33; Isabel v. Hannibal and St. Jo. R. R. Co., 60 Mo. 475; Bailey. Chicago, etc., R. Co., 4 Biss. 430; Frick v. St. Louis, etc., Ry. Co., 6 Cent. L. J. 317.

The same principle applies in cases of adults who are evidently so situated as to make their escape from the impending danger difficult or impossible. Where, therefore, an engineer observed a horseman who was riding away from the train at full speed through a deep railroad cut suddenly thrown 'from his horse and disabled, it was held that it was his duty not only to warn the person injured of the approach of the train, but to stop the engine as soon as possible; for the circumstances clearly forbade the possibility of the escape of the unhorsed man from his dangerous position. Tanner's Ex'r . Louisville and Nashville R. R. Co., 60 Ala. 621.

The same obligation is incumbent on the engineer in those cases where he sees a heavily loaded team attempting to cross the track, unless, of course, it is clear that the team will have passed before the engine can reach the point. Chicago and A. R. Co. v. Hogarth, 38 Ill. 370; St. Louis, A. and T. H. R. Co. v. Manly, 58 Ill. 300; Card v. N. Y. Cent. and H. R. R. R. Co., 50 Barb. 39.

It seems that where persons are lying asleep upon a railroad track, and are run over by a passing train, their conduct is generally considered such as to preclude recovery. Richardson v. Wilmington and Man. R. R. Co., 8 Rich. L. 120.

Where, therefore, a slave lay down and went to sleep upon a railroad track among such high grass that the engineer failed to see him until within twenty feet of him, and he was in consequence run over and killed, it was held that his master could not maintain an action against the company. Felder . Louisville, Cinn. and Charlestown R. R. Co., 2 McMull. (S. C.) 403. And the railroad company is in such case held exempt from liability even though its employees be guilty of negligence.

In Herring v. Wilmington and Raleigh R. R. Co., 10 Ired. 432, the facts were these: Two slaves belonging to the plaintiff fell asleep upon a railroad track. They were visible by the engineer of an approaching train for fully half a mile from the point where they were lying. Whether said engineer actually saw them or not did not appear. He, however, made no signal, nor did he endeavor to stop the train until within thirty or thirty-five yards of the prostrate figures. It was then, of course, too late to avert the accident and both slaves were killed. It was held that the engineer had a right to suppose that the slaves would, on the approach of the train, clear the track and that he had been guilty of no negligence in the premises.

To a similar effect was the case of Wilmington and Weldon R. R. Co., 74 N. C. 655. Here two children aged respectively ten and fifteen years seated themselves on a railroad track, and becoming drowsy lay down and fell asleep. The engineer of an approaching train might have seen them at a distance of 200 yards. As a matter of fact he failed to see them until within 150 feet. He then whistled loudly thinking they were hogs on the track, and finding they did not move very shortly afterwards tried to stop the train. He failed, however, to do so in time, and both children were killed. It was held, that under the circumstances no recovery could be had against the company.

It is presumed, however, that if the employees of a railroad should actu

ally run over a sleeping or intoxicated person wilfully or through such gross neglect as in law would be tantamount to a wilful act, the company would be held liable. See in support of this proposition the case of I. C. R. R. Co. v. Hutchinson, Adm'x, 47 ÎlÌ. 408, where the court reversed for a failure to affirm the following point, which it pronounced to be the law. "If the jury believe from the evidence that the deceased, while intoxicated, placed himself about dark, or in the dusk of the evening, on defendant's track, running along a public street where the defendant's trains were constantly passing and repassing, and so remained there until run over by the passing engine of defendants, then deceased was guilty of such gross negligence that you should find the defendant not guilty, unless you further believe from the evidence that the agent or agents of defendant wilfully caused the death of deceased, or were guilty of such gross neglect on their part as amounts in law to a wilful neglect of duty." And see also, H. and T. C. Ry. Co. v. Sympkins, supra, p. 11, which contains substantially the same doctrine.

Where a railroad company has expressly licensed the use of its track as a highway by the public, its measure of duty as to persons walking on the track is of course enhanced. Daley v. Norwich, etc., R. Co., 25 Conn. 691; Kay v. Pennsylvania R. R. Co., 65 Pa. St. 269; Brown v. Hannibal and St. Jo. R. R. Co., 50 Mo. 461; Kansas, etc., R. Co. v. Painter, 9 Kans. 620; Harty v. Cent. R. R. Co., 42 N. Y. 468; Murphy v. Chicago, etc., R. R. Co., 45 Iowa, 661; Illinois Cent. R. R. Co. v. Hammor, 72 Ill. 347.

But the mere fact that persons in the vicinity have become accustomed to use the track in this manner does not alter the liability of the company. Illinois Cent. R. R. Co. v. Hetherington, 83 Ill. 510; Finlayson v. Chicago, etc., R. R. Co., 1 Dill. 579; Galena, etc., R. R. Co. v. Jacobs, 20 Ill. 478; Bancroft v. Boston, etc., R. R. Co., 97 Mass. 276; Huckly v. Boston and L. R. Co., 14 Allen, 429; Nicholson v. Erie R. R. Co., 41 N. Y. 526; Sutton v. N. Y. Cent. and H. R. R. Co., 66 N. Y. 243; Matze v. N. Y. Cent. and H. R. R. Co., 1 Hun, 417. But see Indianapolis and St. Louis R. R. Co. v. Galbreath, 63 Ill. 436.

PENNSYLVANIA R. R. Co.

V.

Воск.

(93 Pennsylvania Reports, 427.)

In an action by a father to recover damages for the death of his son by the alleged negligence of a railroad company, the defendant requested the court to charge that the plaintiff, being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse, over which he (the father) had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of the life of his son or his horse killed by the passing train; which the court answered: "This point, assumes a fact, the existence or non-existence of which is a question for your determination, to wit: That the plaintiff placed his son on a horse over which he had no control. This is for you, and we cannot assume it. If it were true it would be strong evidence of negligence. It is for you to find, under all the evidence