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§ 1187. Running or Flying Switch - Backing Cars.Making a "running" or a "flying" switch - i. e., permitting cars to run over a crossing immediately after the train from which they have been detached- is negligence in the railroad. When the train is backing or cars are being pushed by a locomotive, extra precaution must be used to avoid injuries at crossings; the ringing the bell or sounding the whistle on the locomotive is not sufficient. One about to cross a railroad track on a highway is not negligent in not anticipating that a flying switch is about to be made.1

$1188.

Contributory Negligence -In General.Though the railroad company has been guilty of negligence, the traveler cannot recover damages if he has been guilty of contributory negligence. Under the rule of comparative negligence prevailing in Illinois and Georgia, slight negligence upon the part of the traveler will not exonerate the company from liability for a willful or reckless disregard of the safety of such traveler." But though a person comes on the track negligently, yet if the servants of the company after they see his danger can avoid injuring him, they must do so or the company will be liable." In the absence of evidence to the contrary, a person who

French v. R. R. Co., 116 Mass. 537; Brown v. R. R. Co., 32 N. Y. 597; 88 Am. Dec. 353; Hinckley v. R. R. Co., 120 Mass. 257; Chicago etc. R. R. Co. v. Garvey, 58 Ill. 83; Butler . R. R. Co., 28 Wis. 487; O'Connor v. R. R. Co., 94 Mo. 150; 4 Am. St. Rep. 364.

Bailey v. R. R. Co., 107 Mass. 496; Robinson v. R. R. Co., 48 Cal. 409; Romick v. R. R. Co., 62 Iowa, 167.

3 Illinois etc. R. R. Co. v. Ebert, 74 Ill. 399; Chicago etc. R. R. Co. v. Garvey, 58 Ill. 85; McGovern v. R. R. Co., 67 N. Y. 417; Maginnis v. R. R. Co., 52 N. Y. 215; Eaton v. R. R. Co., 51 N. Y. 544; Linfield v. R. R. Co., 10 Cush. 562; 57 Am. Dec. 124.

O'Connor v. R. R. Co., 94 Mo. 150; 4 Am. St. Rep. 364.

5 Toledo etc. R. R. Co. v. Riley, 47 Ill. 514; Eaton v. R. R. Co., 51 N. Y. 544; Steves v. R. R. Co., 18 N. Y. 422; Havens v. R. R. Co., 41 N. Y. 296; Spencer v. R. R. Co., 5 Barb. 337; Harlan v. R. R. Co., 64 Mo. 480; 65 Mo. 22; Hinckley v. R. R. Co., 120 Mass. 257; Rothe v. R. R. Co., 21 Wis. 256; Galena etc. R. R. Co. v. Dill, 22 Ill. 264. When a horse-car crosses the track of a steam-railroad the driver is bound to exercise the highest degree of care and prudence, the utmost skill and foresight: Coddington v. R. R. Co., 102 N. Y. 66.

6 Augusta etc. R. R. Co. v. McElmurry, 24 Ga. 75; Chicago etc. R. R. Co. v. Triplett, 38 Ill. 482; Macon etc. R. R. Co. v. Davis, 27 Iowa, 113.

7 State v. R. R. Co., 52 N. N. 528.

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has been killed by a train at a railway crossing will be presumed to have observed the precaution the law requires, and the burden of proof is on the railway company to show that he has not.1

§ 1189. Duty to Look and Listen. It is the duty of a traveler on approaching a track to look both ways and listen for trains before he crosses it, and where a person knowing that he is approaching a crossing, and with an unobstructed view of the track in both directions, and nothing to prevent his hearing a coming train, advances to the point of intersection without either looking or listening, his reckless conduct will constitute negligence per se, so as to preclude a recovery for the injuries inflicted upon him. The rule of law that a railroad track

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Pennsylvania R. R. Co. v. Weber, 76 Pa. St. 157; 18 Am. Rep. 407. But see Chase v. R. R. Co., 77 Me. 62; 52 Am. Rep. 744.

2 Wichita etc. R. R. Co. v. Davis, 37 Kan. 743; 1 Am. St. Rep. 275; Brown v. R. R. Co., 22 Minn. 165; Ernst v. R. R. Co., 39 N. Y. 61; 100 Am. Dec. 405; Stackus v. R. R. Co., 7 Hun, 559; Chicago etc. R. R. Co. v. Kusel, 63 Ill. 180; Wilcox v. R. R. Co., 39 N. Y. 358; 100 Am. Dec. 440; Chicago etc. R. R. Co. v. McKean, 40 Ill. 218; Chicago etc. R. R. Co. v. Still, 19 Ill. 499; 71 Am. Dec. 236; Chicago etc. R. R. Co. v. Houston, 95 U. S. 697; St. Louis etc. R. R. Co. v. Manly, 58 Ill. 300; Linfield v. R. R. Co., 10 Cush. 562; 57 Am. Dec. 124; Chicago etc. R. R. Co. v. Hatch, 79 Ill. 137; Detroit etc. R. R. Co. v. Van Steinberg, 17 Mich. 99; North Penn. R. R. Co. v. Heileman, 49 Pa. St. 60; 88 Am Dec. 482; Penn. R. R. Co. v. Weber, 76 Pa. St. 157; 18 Am. Rep. 407; Penn. R. R. Co. v. Beale, 73 Pa. St. 504; 13 Am. Rep. 753; Schofield v. R. R. Co., 114 U. S. 615; Wabash etc. R. R. Co. v. Central Trust Co., 23 Fed. Rep. 622; Lesan v. R. R. Co., 77 Me. 85; State v. R. R. Co., 77 Me. 538; Thompson v. R. R. Co., 33 Hun, 16; Hixson v. R. R. Co., 80 Mo. 335; Union Pacific R. R. Co. v. Adams, 33

Kan. 427; Pence v. R. R. Co., 63 Iowa, 746; Clark v. R. R. Co., 35 Kan. 350; Chicago etc. R. R. Co. v. Hedges, 105 Ind. 398; Rhoades v. R. R. Co., 58 Mich. 263; Taylor v. R. R. Co., 86 Mo. 457; Shaber v. R. R. Co., 28 Minn. 103.

3 Gonzales v. R. R. Co., 38 N. Y. 440; 98 Am. Dec. 58; Chicago etc. R. R. Co. v. Damrell, 81 Ill. 450; Rockford etc. R. R. Co. v. Byam, 80 Ill. 528; Bellefontaine etc. R. R. Co. v. Hunter, 33 Ind. 335; 5 Am. Rep. 201; Allyn v. R. R. Co., 105 Mass. 77; Benton v. R. R. Co., 42 Iowa, 192; New Orleans etc. R. R. Co. v. Mitchell, 52 Miss. 808; Gorton v. R. R. Co., 45 N. Y. 660; Reynolds v. R. R. Co., 58 N. Y. 248; Cleveland etc. R. R. Co. v. Elliott, 28 Ohio St. 340; Lake Shore etc. R. R. Co. v. Sunderland, 2 Bradw. 307; Fletcher v. R. R. Co., 64 Mo. 484; Leduke v. R. R. Co., 4 Mo. App. 485; Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274; Brooks v. R. R. Co., 1 Abb. App. 211; Toledo etc. R. R. Co. v. Shuckman, 50 Ind. 42; Brendell v. R. R. Co., 27 Barb. 534; Payne v. R. R. Co., 39 Iowa, 523; 44 Iowa, 236; Cleveland etc. R. R. Co. v. Crawford, 24 Ohio St. 631; 15 Am. Rep. 633; Ernst v. R. R. Co., 39 N. Y. 61; 100 Am. Dec. 405; Wilcox v. R. R. Co., 39 N. Y. 358; 100 Am Dec. 440; Schofield v.

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is in itself a warning of danger applies as well to a sidetrack as to a main line. But the fact that one in attempting to cross a railroad does not at the instant of stepping on it look to ascertain if a train is approaching is not conclusive evidence of a want of due care on his part; but his omission to do so is for the jury.2

Some cases hold that he should come to a halt; and where the peculiarities of the situation require such pre

R. R. Co., 2 McCrary, 268; Wabash etc. R. R. Co. v. Hicks, 13 Ill. App. 407; Schaefert v. R. R. Co., 62 Iowa, 624; International etc. R. R. Co. v. Graves, 59 Tex. 330; Chicago etc. R. R. Co. v. Houston, 95 U. S. 697; South. etc. R. R. Co. v. Thompson, 62 Ala. 494; Powell v. R. R. Co., 76 Mo. 80; Allyn v. R. R. Co., 105 Mass. 77; Indiana etc. R. R. Co. v. Hammock, 118 Ind. 1; Glascock v. R. R. Co., 73 Cal. 137; Atchison etc. R. R. Co. v. Townsend, 39 Kan. 115; Damrill . R. R. Co., 27 Mo. App. 202. In North Penn. R. R. Co. v. Heileman, 49 Pa. St. 60, 88 Am. Dec. 482, the court say: "The evidence justified the defendants in proposing their points to the court, the first of which was as follows: "That it is the duty of a traveler approaching a railroad crossing to look along the line of the railroad and see if any train is coming; and if the jury believe the plaintiff failed to take such a precaution, he was guilty of negligence, and cannot recover in this suit.' This point the court answered by saying: 'This is one of the reasonable precautions a man is bound to use, and its absence is evidence of neglect.' This was not a full answer to the point. The court conceded that looking out for the approach of a train is a duty, when a traveler is about to cross a railroad track; but instead of charging the jury that failure to look out is negligence, instructed them that it was evidence of negligence. This was not all the defendants asked, nor all they were entitled to have. Absence of such a precaution was more than evidence of negligence. It was negligence itself, and it was such as may have contributed directly to the injury;

for the uncontradicted evidence was, that the plaintiff drove his horse and wagon slowly upon the track in front of the passing locomotive. If he did this without looking along the track, he acted without any precaution against a known danger, and he was not entitled to recover if his want of precaution contributed to his hurt. That what constitutes negligence in a particular case is generally a question for the jury, and not for the court, is undoubtedly true, because negligence is want of ordinary care. Το determine whether there has been any involves, therefore, two inquiries: 1. What would have been ordinary care under the circumstances; and, 2. Whether the conduct of the person charged with negligence came up to that standard. In most cases, the standard is variable, and it must be found by a jury. But when the standard is fixed, where the measure of duty is defined by the law, entire omission to perform it is negligence. In such a case, the jury have but one of these inquiries to make. They have only to find whether he upon whom the duty rests has performed it. If he has not, the law fixes the character of his failure, and pronounces it negligence."

1 Mynning v. R. R. Co., 59 Mich. 257.

2 Plummer v. R. R. Co., 73 Me. 591.

3 Wilds v. R. R. Co., 29 N. Y. 315, 328; Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30; Kelly v. R. R. Co., 88 Mo. 534; Seefeld v. R. R. Co., 70 Wis. 216; 5 Am. St. Rep. 168; contra, Leavenworth etc. R. R. Co. v. Rice, 10 Kan. 426, 438; Bunting v. R. R. Co., 14 Nev. 351.

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cautions, get out of his wagon and approach, and look along the track in both directions.' But where these precautions would be unavailable, as where the time necessarily consumed in going from the wagon to the crossing, returning to the wagon, and then driving to the track, would have enabled the train, at the rate of speed it was running, to have reached the crossing in about the same time, from a point at which it was not visible from the traveler's point of observation, he is under no obligation to do so; nor where the want of care of the managers of the train would have rendered such a precaution of no avail. The degree of diligence required of the traveler is such as a man of ordinary prudence would exercise under similar circumstances." One who fails to hear a train because rattling bottles in his wagon, which he does not stop before crossing the track, prevent his hearing, has only himself to blame if he is struck by the train." So one who walks in front of moving cars with an umbrella over his head is guilty of negligence. It does not excuse the traveler from looking that he supposed the train had passed at the usual hour, it being in fact behind time; or that the railroad omitted to give warning signals, or that the railroad has just made a flying switch; or that he had to obstruct his sight to prevent his hat from being blown away, and that he relied upon his hearing; or that he had forgotten that he was in the vicinity

Pennsylvania R. R. Co. v. Beale, 73 Pa. St. 504; 13 Am. Rep. 753.

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2 Duffy v. R. R. Co., 32 Wis. 269. Pennsylvania R. R. Co. v. Ackerman, 74 Pa. St. 265; McGuire v. R. R. Co., 2 Daly, 761.

4 Indianapolis etc. R. R. Co. v. Stout, 53 Ind. 143; Kennedy v. R. R. Co., 36 Mo. 351; Bernhard v. R. R. Co., 1 Abb. App. 131; 32 Barb. 165; 19 How. Pr. 199; 18 How. Pr. 427; McGrath v. Hudson etc. R. R. Co., 32 Barb. 144; 19 How. Pr. 211; Central R. R. Co. v. Moore, 24 N. J. L.

824; Continental Improvmemt Co. v. Stead, 95 U. S. 161; Cleveland etc. R. R. Co. v. Crawford, 24 Ohio St. 639; 15 Am. Rep. 633.

5 Merkle v. R. R. Co., 49 N. J. L. 473.

6 Yancey v. R. R. Co., 93 Mo. 433. 7 Toledo etc. R. R. Co. v. Jones, 76 Ill. 311.

8 Ormsbee v. R. R. Co., 14 R. I. 102; 51 Am. Rep. 354; Ernst v. R. R. Co., 35 N. Y. 7; 90 Am. Dec. 761.

9 Butterfield v. R. R. Co., 10 Allen, 532; 87 Am. Dec. 679.

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of the crossing.' But it is an excuse that his looking or listening would have been unavailing, as where the train came from a direction where it could not have been seen in time; or where other noises drowned the rumbling of the approaching train; or where he could not see if he had stopped to look, and could not have heard because the train made so little noise.5 But one on a public highway who approaches a railroad track, and can neither see nor hear any indications of a moving train, is not chargeable with negligence in assuming that there is no car sufficiently near to make the crossing dangerous. He has a right to presume that in handling their cars the railroad companies will act with appropriate care, and that the usual signals of approach will be seasonably given." While the rule of law requires a traveler on the highway on approaching its intersection with a railroad to stop, look, and listen for approaching trains, yet in the absence of evidence the presumption is that the traveler did his duty in that respect.7

ILLUSTRATIONS.-A, approaching a railroad crossing in his wagon, in the daytime, in a city, fails to look both ways for approaching trains, and is run over by a train which is approaching at a rate of speed greater than that allowed by the ordinances of the city. Held, contributory negligence in A: St. Louis etc. R. R. Co. v. Mathias, 50 Ind. 65. A drives his team along a road running parallel with and near to a railroad track. As he approaches the crossing, the air is so filled with dust that he cannot see the railroad, and his wagon makes some noise. Nevertheless he attempts to cross without stopping to listen for an approaching train, and his horses are killed. Held, that he

1 Baltimore etc. R. R. Co. v. Whitacre, 35 Ohio St. 627.

2 Davis v. R. R. Co., 47 N. Y. 400; Hackford v. R. R. Co., 6 Lans. 381; Leonard v. R. R. Co., 10 Jones & S. 225.

McGuire v. R. R. Co., 2 Daly, 76; Chicago etc. R. R. Co. v. Lee, 87 Ill.

454.

Davis v. R. R. Co., 47 N. Y. 400; Leonard v. R. R. Co., 10 Jones & S. 225.

5 Donohue v. R. R. Co., 91 Mo. 357.

6 Tabor v. R. R. Co., 46 Mo. 353; 2 Am. Rep. 517; Ernst v. R. R. Co., 35 N. Y. 9; 90 Am. Dec. 761; Beisiegel v. R. R. Co., 34 N. Y. 622; 90 Am. Dec. 741; Cosgrove v. R. R. Co., 87 N. Y. 88; 41 Am. Rep. 355.

7 Schum v. R. R. Co., 107 Pa. St. 8; 52 Am. Rep. 468; Wilcox v. R. R. Co., 39 N. Y. 358; 100 Am. Dec. 440.

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