other way, and he stepped upon the track and was struck and injured. Others near by saw the lantern. Held, contributory negligence: Mahlen v. R. R. Co., 49 Mich. 585. Plaintiff, while caring for cattle in a car, crossed three or four tracks, and while standing on the fifth turned to look around in response to shouting, and was struck by an engine. The five tracks were on a level, fully exposed; and an engine could be seen for several hundred feet in either direction. Held, contributory negligence: Rogstad v. R. R. Co., 31 Minn. 208. There were two roads of about equal length leading to plaintiff's destination, and he took the one near the railroad, knowing that he was likely to meet a train, but not knowing that the road was not properly fenced on the side, and his horse, taking fright at the train, threw him over the banking where the fence was gone. Held, not per se negligence: Templeton v. Montpelier, 56 Vt. 328. The wife of a railroad employee carrying her husband his dinner started to cross six busy tracks, and stepping from behind some cars on one she was struck by an engine backing down on another. Held, contributory negligence: Pzolla v. R. R. Co., 54 Mich. 273. Plaintiff, a girl sixteen years old, was passing along the street across defendant's tracks (five in number). She looked both ways for trains, and when about midway of the crossing, stopped for a train to pass which was coming from the east. The position in which she stood was sufficiently near another track for her to be struck by the tender of a engine, which, unseen by her, backed up from the west, without any signals of warning. Held, that a nonsuit was error: Haycroft v. R. R. Co., 64 N. Y. 636. Plaintiff was standing at a railway crossing, in a street where there were many trains passing and much switching done; while waiting for one train to pass, he was struck behind by another train, which was running at the rate of ten miles an hour, in violation of a city ordinance. Held, that whatever negligence might be charged to the plaintiff was slight, and that of the company was gross: Pittsburgh etc. R. R. Co. v. Knutson, 69 Ill. 103. A postmaster at a station, hearing a train approach at about 8:40, P. M., the time the mail train usually passed, started with his mail-bags to cross the track to the platform. The train was then twelve hundred feet distant, but running at great speed. Relying on its stopping, he was struck by the locomotive and killed. The train was a freight train, which had been ordered to go without stopping, the mail train being behind time. Held, contributory negligence: Moody v. R. R. Co., 68 Mo. 470.

§ 1191. Persons under Physical Disabilities — Children. Physical disabilities of the traveler do not excuse

him from using care, but rather increase his duty to be vigilant; as, for instance, deafness, or drunkenness. It is contributory negligence for one of defective eyesight and hearing to walk upon a railroad track at a time when a train is known to be due. But a railroad sued for an injury to a passenger, who, while about to alight from a train, was thrown down by a collision with a switchengine violently run against the train, cannot defend on the ground that if the passenger had not been in feeble health he would not have been thrown down."

Where a traveler was so wrapped up to protect himself from the cold that he could not hear distinctly, it was held that he was under an obligation to exercise special vigilance. So a person approaching a crossing in a covered wagon, having an umbrella hoisted inside as an additional protection from rain which was falling at the time, is not in the exercise of reasonable care when looking only straight ahead." But the failure of a traveler in a covered buggy to let down his buggy-top before starting up after stopping his horse at the sign-board of a railroad crossing, and looking each way for trains, was held not to be neggence per se. A child of tender years, or an old or infirm person, is expected to exercise no more than that degree of care due from those of his age or condition.8

1 Cleveland etc. R. R. Co. v. Terry, 8 Ohio St. 570; Central R. R. Co. v. Feller, 84 Pa. St. 226; Purl v. R. R. Co., 72 Mo. 168; Zimmerman v. R. R. Co., 71 Mo. 476; Waldele v. R. R. Co., 19 Hun, 96. It is negligence for a deaf person to drive an unmanageable horse across a railroad track when a train is approaching: Illinois etc. R. R. Co. v. Buchner, 28 Ill. 299; 81 Am. Dec. 282. Where persons running a train, knowing that a man on the track is deaf, run him down, the company is liable: Int. & G. R. R. Co. v. Smith, 62 Tex. 252.

2 Chicago etc. R. R. Co. v. Bell, 70 Ill. 102; Toledo etc. R. R. Co. v Riley, 47 Ill. 514.

3 Maloy v. R. R. Co., 84 Mo. 270.

East Line etc. R. R. Co. v. Rushing, 69 Tex. 306.

Illinois etc. R. R. Co. v. Ebert, 74 Ill. 399; Butterfield v. R. R. Co., 10 Allen, 532; Steves v. R. R. Co., 18 N. Y. 422; Chicago etc. R. R. Co. v. Still, 19 Ill. 508; 71 Am. Dec. 236; Hanover etc. R. R. Co. v. Coyle, 54 Pa. St. 396; Salter v. R. R. Co., 75 N. Y. 273.

339.

Sheffield v. R. R. Co., 21 Barb.

7 Stackus v. R. R. Co., 79 N. Y. 464.

8 Elkins v. R. R. Co., 115 Mass. 190; Chicago etc. R. R. Co. v. Becker, 84 Ill. 483; Costello v. R. R. Co., 65 Barb. 92; Phila. etc. R. K. Co. v. Spearen, 47 Pa. St. 300; 86 Am. Dec.

ILLUSTRATIONS. The plaintiff, or the driver of the wagon in which he was seated, knew not that they had arrived at the crossing, although the latter had previous knowledge that the road crossed at that point, but there was no sign to give them notice, and the train was running at the rate of thirty miles an hour, giving no signals of its approach. Held, that the facts that the driver, a boy ten years of age, had the lappets of his cap tied over his ears, and did not look or listen for the train, nor tell his companion what he knew of the crossing, though competent to go to the jury as evidence of negligence on the part of the plaintiff, were not conclusive: Elkins v. R. R. Co., 115 Mass. 190. A driver muffled up approached slowly in a covered wagon a railroad crossing with which he was familiar, without looking out or stopping at a place where one could not see up and down the track till within sixteen feet of it. Held, guilty of negligence: Hanover R. R. Co. v. Coyle, 55 Pa. St. 396. A came up from a cellar with two bags of shorts on his right shoulder, so that his view on that side was completely obstructed, and probably so as to prevent his hearing in his right ear, and knowing the precise location of the track, and that trains of cars were constantly passing, walked onto the track, where he was run over by the cars. Persons standing around saw the cars approaching. The space from the cellar to the track was open, and used by the public to pass and repass, but was not a public crossing. Held, that he was guilty of such negligence that the company were not liable: Rothe v. R. R. Co., 21 Wis. 256.

§ 1192. Trespassers on Tracks. -Duty and Liability of Company. It is held in some cases that a railroad company is under no duty towards trespassers on its track, and that except at railroad crossings, where, as we have seen, the public has a right of way, a person walking or being upon a railroad track does so at his peril,' and

544; Boland v. R. R. Co., 36 Mo. 484; Isabel v. R. R. Co., 60 Mo. 475; Chicago etc. R. R. Co. v. Murray, 71 Ill. 601; McGovern v. R. R. Co., 67 N. Y. 417; Paducah etc. R. R. Co. v. Hoehl, 12 Bush, 41; Thurber v. R. R. Co., 60 N. Y. 326; Warner v. R. R. Co., 6 Phila. 537; Haas v. R. R. Co., 41 Wis. 44; O'Mara v. R. R. Co., 38 N. Y. 445; 98 Am. Dec. 61, the court saying: "The old, the lame, and infirm are entitled to the use of the street, and more care must be exercised towards them by engineers than towards those

who have better powers of motion.
The young are entitled to the same
rights, and cannot be expected to ex-
ercise as good foresight and vigilance
as those of maturer years."

1 Mulherrin v. R. R. Co., 81 Pa. St.
366; Little Schuylkill etc. R. R. Co.
v. Norton, 24 Pa. St. 465; 64 Am. Dec.
672; Philadelphia etc. R. R. Co. v.
Hummell, 44 Pa. St. 275; 84 Am. Dec.
457; Nolan v. R. R. Co., 53 Conn. 461.
However fast a wild train may run,
the company is not chargeable with
negligence as to one who is crossing

that the company is not liable, except where the injury is wanton or intentional.'

On the other hand, it is held by other courts that even as to trespassers the railroad is bound to use ordinary care to prevent injury to them. This rule is stated in a Missouri case in these words: "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 a discovery by 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." The servants of the company are not obliged to stop the train on seeing a person on the track; they have a right

the track at a point not at a public crossing. Nor does it matter that no signal was given: Shackleford v. R. R. Co., 84 Ky. 43.

1 Little Schuylkill R. R. Co. v. Norton, 24 Pa. St. 465; 64 Am. Dec. 672; Heil v. Glanding, 42 Pa. St. 493; 82 Am. Dec. 537; Jeffersonville etc. R. R. Co. v. Goldsmith, 47 Ind. 43; Lafayette etc. R. R. Co. v. Huffman, 28 Ind. 287; 92 Am. Dec. 318; Pittsburg etc. R. R. Co. v. Collins, 87 Pa. St. 405: 30 Am. Rep. 371; Cincinnati etc. R. R. Co. v. Eaton, 53 Ind. 310; Evansville etc. R. R. Co. v. Wolf, 59 Ind. 89; Carroll v. R. R. Co., 13 Minn. 30; Herring v. R. R. Co., 10 Ired. 402; 51 Am. Dec. 395; Donaldson v. R. R. Co., 21 Minn. 293; Morrissey v. R. R. Co., 126 Mass. 377; 30 Am. Rep. 686; Terre Haute etc. R. R. Co. v. Graham, 95 Ind, 286; 48 Am. Dec. 719; Mason v. R. R. Co., 27 Kan. 83; 41 Am. Rep. 405; Frazer v. R. R. Co., 81 Ala. 185; 60 Am. Dec. 145; Houston etc. R. R. Co. v. Richards, 59 Tex. 373; Terre Haute etc. R. R. Co. v. Graham, 46

Ind. 237; Louisville etc. R. R. Co. v. Howard, 82 Ky. 212; Western etc. R. R. Co. v. Bloomingdale, 74 Ga. 604. One who without authority enters upon a railway track, and while there becomes insensible from providential causes, and while in this state, and in plain view, is injured by a train, may recover damages of the company, although the injuries were not wanton or willful; but otherwise if his insensiblity was by reason of his voluntary intoxication: Houston etc. R. R. Co. v. Sympkins, 54 Tex. 615; 38 Am. Rep. 632.

2 Harlan v. R. R. Co., 65 Mo. 22; Brown v. R. R. Co., 50 Mo. 461; 11 Am. Rep. 420; Isabel v. R. R. Co., 60 Mo. 475; Finlayson v. R. R. Co., 1 Dill. 579; Baltimore etc. R. R. Co. v. State, 36 Md. 366; Baltimore etc. R. R. Co. v. State, 33 Md. 542; Vicksburg etc. R. R. Co. v. McGowan, 62 Miss. 682; 52 Am. Rep. 205; Mo. Pac. R. R. Co. v. Weisen, 65 Tex. 443.

3 Harlan v. R. R. Co., 65 Mo. 22,

to assume that he will obey the warning signals,' except it seems, where the trespasser is a young child, or a person who it is clear does not hear or understand the signals.3

In general, a trespasser on a railroad track who fails to get out of the way of an approaching train, and is injured, is guilty of contributory negligence, and will be without remedy against the company, even though it also has been guilty of negligence. One who in traveling on a railroad track is overtaken upon a trestle by a train can maintain no action for his injuries. A railroad is not liable for the death of one who, while walking on its track without right, intermeddled with a torpedo which had been placed there as a danger-signal, and was killed by its explosion." It is contributory negligence barring a recovery to go to sleep on the track, or walk or sit down there while drunk, or to crawl under cars which have temporarily stopped;"

Herring v. R. R. Co., 10 Ired. 402; 51 Am. Dec. 395; Poole v. R. R. Co., 8 Jones, 340; Harty v. R. R. Co., 42 N. Y. 468; Terre Haute etc. R. R. Co. v. Graham, 46 Ind. 239; Frech 7. R. R. Co., 39 Md. 574; Manly r. R. R. Co., 74 N. C. 655; Holmes v. R. R. Co., 37 Ga. 593; Maher v. R. R. Co., 64 Mo. 267; Kenyon v. R. R. Co., 5 Hun, 479; Maloy v. R. R. Co., 84 Mo. 270; Ohio etc. R. R. Co. v. Walker, 113 Ind. 196; St. Louis etc. R. R. Co. v. Monday, 49 Ark. 257.

Pa. R. R. Co. v. Morgan, 82 Pa. St. 134; Phila. etc. R. R. Co. v. Spearen, 47 Pa. St. 300; Meyer v. R. R. Co., 2 Neb. 319; McMillan v. R. R. Co., 46 Iowa, 231; Kenyon v. R. R. Co., 5 Hun, 479; East Tenn. etc. R. R. Co. v. St. John, 5 Sneed, 524; 73 Am. Dec. 149; Lafayette etc. R. R. Co. v. Huffman, 28 Ind. 287; 92 Am. Dec. 318.

Frech . R. R. Co., 39 Md. 574; Cook v. R. R. Co., 67 Ala. 533.

Gonzales v. R. R. Co., 50 How. Pr. 126; Green v. R. R. Co., 11 Hun, 333; Poole v. R. R. Co., 8 Jones, 340; Illinois etc. R. R. Co. v. Hall, 72 Ill. 222; Illinois etc. R. R. Co. v. Hetherington, 83 Iil. 510; Harlan v. R. R. Co., 64 Mo. 480; Carlin v. R. R. Co., 37 Iowa, 316; Murphy v. R. R. Co.,

45 Iowa, 661; 38 Iowa, 539; Laicher v. R. R. Co., 28 La. Ann. 320; Bancroft v. R. R. Co., 11 Allen, 34; 97 Mass. 275; Michigan etc. R. R. Co. v. Campau, 34 Mich. 468; Carroll v. R. R. Co., 13 Minn. 30; 97 Am. Dec. 221; Donaldson v. R. R. Co., 21 Minn. 293; Lake Shore etc. R. R. Co. v. Hart, 87 Ill. 529; Rothe v. R. R. Co., 21 Wis. 256; Elwood v. R. R. Co., 4 Hun, 808; Grethen v. R. R. Co., 22 Fed. Rep. 609; Hughes v. R. R. Co., 67 Tex. 595.

5 Tennenbrock v. R. R. Co., 59 Cal. 269; Virginia Midland R. R. Co. v. Barksdale, 82 Va. 330.

Carter v. R. R. Co., 19 S. C. 20; 45 Am. Rep. 754.

7 Illinois etc. R. R. Co. v. Hutchinson, 47 Ill. 408; Felder v. R. R. Co., 2 McMull. 403; Richardson v. R. R. Co., 8 Rich. 120; Herring v. R. R. Co., 10 Ired. 402; Manley v. R. R. Co., 74 N. C. 655.

8 Id. As to person slightly drunk, see Indianapolis etc. R. R. Co. v. Galbreath, 63 Ill. 436.

9

Ostertag v. R. R. Co., 64 Mo. 421; Chicago etc. R. R. Co. v. Dewey, 26 Ill. 255; 79 Am. Dec. 374; Chicago etc. R. R. Co. v. Coss, 73 Ill. 394; Gahagan v. R. R. Co., 1 Allen, 187;