NEGLIGENCE-Continued.

did not appear to be any reason why such signals should be given, unless some
one should be seen on or approaching the track. The train was in sight for the
distance of two hundred yards, and the deceased could have seen it, if she had
looked, time enough to have crossed in safety, or to have waited till it had
passed. Held, 1. That it was impossible under the circumstances of the case
to ascribe the accident exclusively to the failure to give signals of the approach of
the train. 2. That before going upon the track or attempting to cross it, it was
the duty of the deceased to look for an approaching train, and her failure to do
so was negligence on her part. 3. That at the time and place when the accident
occurred, there was no obligation on the part of the defendant to give signals
of the approach of the train by sounding the whistle or ringing the bell, and
negligence could not be imputed to it if they were not given. 4. That it was
error to submit the case to the jury, there being no evidence of negligence on
the part of the defendant. Id.

28. Railroad companies are not bound to station flagmen at the crossing of
public highways, no matter how dangerous. If the bell is rung, or the whistle
sounded, as the train approaches the crossing, in compliance with section 806,
Revised Statutes, a company fulfils its whole duty, except, perhaps, in a case
where the crossing is of such a character that the employment of a flagmau is
one of the common and usual means of warning adopted by prudent railroad
companies. In such case the omission to employ one might be negligence.
Welsch v. Hannibal, etc., R. R. Co. 75.

29. The complaint alleged the negligent construction, by the defendant, of a
number of parallel railroad tracks across a public street at a point where the
plaintiff was attempting to cross when injured; also the negligent condition of
the sidewalk crossing such tracks; also the failure of the defendant to keep a
watchman at such crossing, as required by an ordinance of the common council
of the city within which were such street and crossing; also the failure of such
employees to sound the whistle and ring the bell of the engine when approach-
ing the crossing. The failure to sound the whistle having been proved by the
plaintiff, the defendant offered in evidence another ordinance of such council,
prohibiting the sounding of whistles and ringing of bells on engines while pass-
ing through the city. Held, that the exclusion of such evidence was erroneous.
Pennsylvania Co. v. Hensil, 79.

30. The rate of speed of such train, in connection with other circumstances,
may be considered in determining the question of negligence; but the rate of
speed at which a train can be run with safety to the passengers cannot, in itself, be
deemed negligence as against one who is injured thereby at a crossing. Terre
Haute, etc., R. R. Co. v. Clark, 84.

31. Where, in such action, it is shown that the deceased, possessed of all his
faculties, and knowing the existence and location of the railroad, and presum-
ably familiar with the time of the trains running thereon, approached the
railroad crossing in a covered wagon, with no opening except in front, without
stopping still at any point to look or listen for an approaching train, and, for a
distance of more than forty yards from such crossing, drove his team in a trot,
without stopping or looking, until he reached the crossing where he was run
over and killed, such conduct is contributory negligence on the part of the
deceased, and is sufficient to bar an action by his administrator to recover dam-
ages for his death. Id.

32. An old man, who was somewhat deaf, while driving a span of colts
towards a railway track down a narrow road from which the track was con-
cealed on one side by a high embankment, stopped to listen, but hearing nothing
drove on, and when close by the track a train appeared within a few rods.
Fearing that he could not control his horses where they were, he whipped them
up, and tried to cross the track, and the rear of the buggy was struck by the
locomotive. Held, that in an action for the resulting injury the question
whether plaintiff was guilty of contributory negligence was for the jury.
Chicago, etc., R. R. Co. v. Miller, 89.

33. Plaintiff, while crossing the railway of defendant upon a public street,
driving a span of horses with a wagon, was struck by a train of cars propelled

NEGLIGENCE-Continued.

by an engine. Evidence that the train was propelled at an unlawful rate of
speed; that no bell was rung, or signal given, as required by law; that it was
an unusually dangerous crossing, and that no flagman was stationed there to
warn travellers; and that a view of the passing train was obstructed from one
approaching on the street by a train of cars left standing upon a side track,
extending across the street, with an opening in the train for passage upon the
street. Held, sufficient evidence to charge defendant with negligence. Kelly v.
St. Paul, etc., R. R. Co. 93.

It appearing that plaintiff, before going through the opening in the train and
upon the track where the accident occurred, brought his horses to a walk, but
did not stop them, nor leave his wagon and go forward where he could see an
approaching train; that he looked and listened for a train, but could not see or
hear any signal of its approach. Held, that the evidence does not show, as a
matter of law, contributory negligence on the part of the plaintiff. Id.

34. Where the plaintiff testified that as he approached, with his wagon and
team, a railroad crossing of a public street, adjoining the passenger depot of the
railway company, he looked to the west (the direction from which the train
came), and all he saw was a large pile of lumber, and didn't hear any bell or
whistle; and a witness stated that he was ten or fifteen feet from the depot, but
heard no signals until the collision, and would have heard them if any had been
given; and four other witnesses, who were present, testified that they did not
hear the whistle sounded or the bell rung until the instant of the collision; and
a passenger on the train and in a car next to the rear one stated that he didn't
hear any alarm; and on the part of the defence, the fireman and engineer testi-
fied that they whistled for station above the tank 300 or 400 yards west of the
crossing, and rang the bell continuously from the tank until the train stopped;
and five other witnesses stated that they heard the whistle sounded 300 or 400.
yards west of the crossing, and the ringing of the bell as the train came in, held,
that there was a sufficient conflict of evidence to raise a question of fact whether
proper and timely signals were given, and the trial court was justified in sub-
mitting the evidence to the jury for their consideration. Held, further, that
there was evidence sufficient to sustain the finding of the jury that proper sig-
nals of the approach of the train to the crossing were not given. Kansas Pacific
R. R. Co. v. Richardson, 96.

35. Where a person as he approached a railroad crossing at the main
thoroughfare of a city with his team and wagon, looked west (the direction from
which the train afterwards came), saw only a pile of lumber, and heard no bell
or whistle, then looked ahead, saw the street clear and attempted to drive across,
then tried to pull his team around to avoid the coming train, but too late to
prevent a collision, and evidence is produced tending to prove that the train was
coming in at too great a rate of speed, and that no timely signals of warning of
the coming of the train were given, but some witnesses testified that they
hallooed to him to stop as the train was coming, and one witness stated that he
took off his hat at him and told him the train was coming, and such person
testified, "He didn't hear anybody call," held, that it will be left to the jury to
say whether such person was guilty of contributory negligence. In such a case,
and under such circumstances, the question of negligence or want of proper care
is a matter of ordinary observation and experience of the conduct of men, and
the judgment of a jury ought to control. Id.

36. It was averred in the petition that the injuries were caused by the neglect
of the company in crossing the public street of the city with a locomotive and
train of cars at a very swift, rapid, dangerous, and reckless rate of speed, and
without giving any warning of the approach of the locomotive and cars by
sounding a whistle or ringing a bell, and that the view of the approach of the
locomotive and cars was obstructed by cars standing on the track and by lumber
piled in close proximity to the road: Held, not error, under the allegations, for
the trial court to permit the plaintiff to prove that the company had no flagman
at the crossing of the street, as one of the circumstances existing at the time and
place of the accident. Id.

37. The plaintiff testified that before attempting to cross defendant's track he
6 A. & E. R. Cas.-42

NEGLIGENCE-Continued.

had stopped, looked, and listened. The defendant adduced evidence to the
contrary. The court instructed the jury that the plaintiff could not recover
unless he established that he was using due care; that he did no act that contrib-
uted to the injury, nor omitted to take any precaution that would have prevented
it. Held, that the instruction was proper. Shaw v. Jewett, 111.

38. In the above case the negligence charged upon the company defendant
was failure to ring the bell of the engine. The evidence was contradictory
whether the bell was rung or not. Held, that the question was for the jury.
Id.

39. In the above case the court instructed the jury that the plaintiff had a
right to assume that the defendant would do its duty and ring a bell, adding
further that the plaintiff, though he might make that assumption, was not
relieved thereby from the duty on his part to vigilantly use his senses to avoid
danger. Held, that the instruction as qualified was proper. Id.

The

40. In the above case the defendant asked the court to instruct the jury that
if they believed the plaintiff could have seen the train at distance enough from
the track to have stopped his horse before reaching the track, his failure to see
the train was negligence on his part, and he was not entitled to recover.
court refused the point, instructing the jury that the question was not alone
whether the plaintiff could have seen the coming train at the indicated distance
from the track, but whether when at that distance he looked and listened for it,
and whether it was so plain that at that distance he could and would have seen
it if he looked, and that his not seeing it was proof that he did not look. Held,
that the instruction was proper. Id.

41. In the above case the court told the jury that he would leave it to them
whether or not the instinct of self-preservation would prevent a man from
attempting to cross a railroad if he saw that the engine was bound to reach the
point of crossing before he could cross, adding that it was for the jury to find
whether plaintiff took the precautions of a prudent man before attempting to
cross the track, and that the law exacted of him in such case a vigilant use of
his senses to look both ways and to listen. Held, that the instruction was
proper. Id.

42. In an action against a railroad company for running over and killing a
person who was driving across the track of the company, the court instructed
the jury as follows: If you find that defendant's train caused A. B's death, that
it was on the day of the accident behind time and running rapidly to make up
the same, that the track on which said train was running was obscured from
sight of the highway along which A. B. was driving by a cut and other obstruc-
tions; if you find that the team in which A. B. was driving stopped before
reaching the track, and that the driver looked and listened and could not see
nor hear the approaching train, and then drove on not hearing nor seeing said
train till it was too late to avoid the accident; if you further find that said train
was running on a down grade, that the employés of the defendant failed to
give any warning until too late to avoid the collision, and that A. B's death re-
sulted from such collision, you must find for the plaintiff. Held, that there
being other facts in the case the instruction was imperfect and indefinite, and
consequently erroneous. Held, further, assuming that all the facts in the case
were set forth in the instruction, that it was erroneous because the question of
both the defendant's negligence and the plaintiff's contributory negligence should
have been left to the jury. Pittsburg, etc., R. R. Co. v. Wright, 114.

43. Where a person crosses a railroad track by a common and well-known
footpath, used by the public for many years without let or hindrance on the
part of the employés of the railroad company, he cannot be regarded as a
trespasser. Phila., etc., R. R. Co. v. Troutman, 117.

44. A weak-minded girl of between twelve and thirteen years of age started
upon a footpath such as has been above described, which lay within the limits
of a village of about fifty houses. Upon approaching the tracks, which were
three in number, she stepped upon the first track on observing the approach of
an engine on the third track. The engine stopped directly abreast of her, and
seeing no approaching train, she started to walk down the track on which she

NEGLIGENCE-Continued.

had been standing, and so around the engine. While engaged in so doing she
was struck and injured by a train of stone cars which had been detached from
the engine above spoken of about three quarters of a mile above, and which
having attained a rate of speed of fifteen or eighteen miles an hour, had been
by a flying switch turned from the third track upon the track on which the girl
was walking only about one hundred and fifty feet from the point where she
was struck. There was no whistle blown or alarm of any kind given to the
girl. The engineer of the standing engine, the only one of the employés of
the railroad company who saw her, did not attempt to save her, because, as
he testified, he did not observe that she was upon the track. Suit having been
brought by the girl against the railroad company to recover damages for the in-
jury done her; held, that the evidence disclosed negligence on the part of the
company's employés. Held, further, that it disclosed no contributory negli
gence on the part of the plaintiff, or at least certainly no such contributory
negligence as would require the court peremptorily to instruct the jury that the
plaintiff was not entitled to recover. Îd.

45. The complaint averred in substance that, upon the arrival of the train
upon which plaintiff was a passenger at the station which was his destination,
said train slackened in speed so that plaintiff could have alighted safely had
there been a platform or other suitable place prepared for passengers to step on;
that the night was dark, the wind blowing, and the rain falling; that the plaintiff,
in obedience to the order of the conductor, stepped off the train expecting to
alight upon a platform, but that, through the fault of the company, there was
no platform, but an uneven piece of ground sloping from the track to a ditch,
wholly unsuitable for the accommodation of passengers, down which plaintiff
fell, injuring himself severely, the wheels of the car passing over his leg; where-
fore plaintiff sought to recover damages. Held, that the facts averred did not
clearly show that the plaintiff was free from contributory negligence, and that,
therefore, in the absence of an express averment to that effect, the complaint
was insufficient and demurrable. Cincinnati, etc., R. R. Co. v. Peters, 126.

46. A passenger train running at night at a high rate of speed upon a rail-
road track was thrown therefrom by a misplaced switch. The track walker
employed by the company had visited said switch only an hour before the acci-
dent, and found it in proper condition and safely locked. Shortly after that
inspection a train had passed thereover in safety. There was no light on the
switch, that not being the custom of the company; hence the engineer of the
wrecked train was unable to see that the same was misplaced until within about
ten rods thereof, when he observed that the red side of the signal target was par-
tially turned towards him. He hesitated for a moment, but before he was able
to determine what he should do, the train was thrown from the track. The en-
gine and train were not provided with the Westinghouse air-brake, but even if
they had been, the engineer thought he could not have brought the train to a
halt so as to avert the accident. In an action brought against the company by
a passenger on the train who was injured, to recover damages, the court charged
that if the defendant had done all that human prudence and forethought could
do to prevent the accident, the plaintiff could not recover, but that it was for
the jury to say whether it had exercised such prudence and forethought, and
whether it was not its duty to guard and light the switch, and to supply a proper
air-brake, and also that the jury had no right to find that the misplacing of the
switch was the work of a stranger without evidence to that effect. The jury
having found for the plaintiff: held, that the instructions of the court were not
erroneous. New York, etc., R. R. Co. v. Dougherty, 139.

47. Under section 1808, Wisconsin Rev. St., it is the duty of a railway train
approaching a railway crossing to come to a stop, not immediately at the 400-
foot post, but somewhere between that post and the crossing. Lockwood v.
Chicago, etc., R. R. Co. 151.

48. There was no error in refusing to submit to the jury the question whether
the defendant railway company was negligent in running its train at the rate
of eight or ten miles an hour on a certain curve, when all the evidence in the
case, as well as common experience, shows that trains are daily run with safety

NEGLIGENCE-Continued.

at a much greater speed over similar curves, and where it appears conclusively
that the track was in good condition. Id.

49. The fact that one in attempting to cross a railroad does not, at the instant
of stopping on it, look to ascertain if a train is approaching, is not conclusive
evidence of a due want of care on his part. Plumer v. Eastern R. R. Co. 165.
50. His omission to do so is to be submitted to a jury for their consideration.

Id.

51. The evidence showed that the plaintiff, while riding in a car of the de-
fendant, got up and gave his seat to an elderly lady. The car being crowded
he was obliged to pass out on to the front platform. While standing there the car
ran off the track, and at the request of the driver the plaintiff, with others on
the platform, got off and assisted in getting the car again on the track. When
this was done the passengers got on the front platform again by stepping over
an enclosure three feet high surrounding the same; and while the plaintiff was in
the act of getting on the platform in the same manner, the driver, without a signal
or warning, started the horses. By the sudden jerk in starting, the plaintiff was
thrown down on the side of the car and was dragged some distance, and his foot
crushed by the wheel. The accident occurred in the daytime, and there was
proof tending to show that the driver might have seen the plaintiff in the act
of boarding the car. Proof was also offered to show there was a notice on the
inside of the car requiring passengers to enter and leave the car by the rear
platform. Held, 1. That considering there was negligence on the part of the
plaintiff in attempting to enter the car by the front platform, the question was
whether the driver of the defendant's car, by the exercise of proper care and
prudence, might have seen the position of the plaintiff, and thereby have avoided
the injury. 2. That under the circumstances of the case, taking into considera-
tion that the plaintiff had paid his fare, and that owing to the crowded condi-
tion of the car he was obliged to stand on the front platform, that he had gotten
off at the request of the driver to help in getting the car again on the track, and
the other facts in the case, there was an obligation on the part of the driver to see
that the plaintiff and others had an opportunity to get on the car again before
he started the horses; and if he saw, or by the exercise of proper care might
have seen, the position of the plaintiff and thereby have avoided the injury, the
defendant was liable. 3. That there was evidence legally sufficient to submit
this question to the jury. People's, etc., R. R. Co. v. Green, 168.

52. The defendant is the owner of a street railroad. The cars are
propelled
by means of an endless cable, and to each car is attached a dummy, carrying
the gripping apparatus. Seats are arranged on the sides and at the end of the
dummy for the use of passengers. The railroad has two tracks, the northern
track being for cars going up-hill, and the southern track being for descend-
ing cars. Plaintiff's husband seated himself as a passenger at the lower end of
the seat, on the south side of the dummy. A two-horse express wagon had
crossed the northern track and was standing on the southern track, at a point
about one hundred and fifty feet distant, at the time the dummy in question
started; the wagon was so cramped that the horses were headed toward the
north track, their heads projecting so far over it that the approaching dummy.
would have struck them, and the rear end of the wagon pointed obliquely down
the hill, also toward the northern track. As the dummy came up to the wagon
two passengers seated on the southerly seat jumped over the back of the seat;
as the rear end of the dummy came up a hind wheel of the wagon collided with
the dummy, and plaintiff received injuries from which he died. Verdict for
plaintiff for $8000. Judgment affirmed. (See Pleading and Practice, 31, 39.)
Cook v. Clay, etc., R. R. Co. 175.

53. The injury consisted in the throwing of a jet of water from a water tank
on the appellee. It being charged in one paragraph of the complaint that it was
done wrongfully and purposely by the servants of the appellant in charge of the
train, and in a second paragraph that it was done carelessly and negligently.

Terre Haute, etc., R. R. Co. v. Jackson,

178.

54. The doctrine is now well settled that a corporation is liable for the wilful
acts and torts of its agents, committed within the general scope of their em