almost immediately it reached the Boston & Maine track, when a collision took place between locomotive and team by which two of the three men were almost instantly killed. The way on which the parties were traveling was slightly descending towards the crossing, and a view of the coming train was mostly obstructed from the travelers by houses and other structures, and the plans and photographs show that there may have been no opportunity for the travelers to see the train, situated as they were while in motion.

The defendants contend that the travelers did not look and listen after their interchange of words about the direction of the sound from the whistle. We think a jury would be justified in the belief that they did. On this point the survivor was not very explicit in his testimony, but he was not asked about it, nor was he at all exhaustively examined. The men did not in fact see the locomotive until they were within an estimated distance of 15 feet from the track, the train being about 100 feet away,—and a collision may not then have been avoidable. At the place where the whistle was sounded the two railroads were within 300 feet of touching together, then diverging until at the crossing they were about 1,000 feet apart, the Eastern being the furthest away. It is reasonable to believe that the three men, as they approached the crossing, saw that the gates there were open and unattended by any person, and that there was no signal of any kind indicating that a train was expected. A red light was burning, the usual switch signal, which was not any warning to those using the common roads. The gates were of the double-arm pattern, operating on pivots on each side of the highway,—when open the arms standing erect, and these had been in use at this crossing for about three years. An employe was in daily attendance upon them from 7 o'clock A. M. until about 15 minutes after 7 P. M., when he usually locked the gates and left them for the night, doing so on the night of the catastrophe. The train which struck the wagon was the regular night Pullman train running from Boston to Bangor, on the Boston & Maine road. This train has run most of the time for many years over the Eastern Railroad, but had been running over the Boston & Maine road for about a month before the accident, and has also run on the same road for a period of eight months during the year before the accident. The two roads were managed by the same company. The survivor, and the same thing may be fairly assumed of his associates, had seen that the gates were in operation at the crossing, but had never noticed that they were not at all times used when trains were passing. They supposed that they were so used. The flag-man in the railroad employment testified that, when for any reason the gates were out of order, he used a green lantern by night and a yellow flag by day whenever a train passed.

It is not denied that the defendants were themselves guilty of negligence. They were running their train at a rate of speed upwards of four times the rate allowed by law. Chapter 377 of the Acts of 1885 prohibits a train running across a highway near the compact part of a town at a speed greater than six miles an hour, unless the parties operating the railroad maintain a flagman or a gate at the crossing. Had not the defendants been remiss in the discharge of this statutory duty, it is reasonable to conclude that the accident would not have happened. Nor would the accident have occurred, the defendants contend, if the deceased had not also been guilty of negligence. Great stress is placed by the defendant's counsel upon the position taken for his clients that the three men did not look and listen for the location of the train, or, if they did, that they paid no heed to the signals which their ears revealed to them. It certainly cannot be denied that it was an egregious blunder for the team to continue moving on so near the crossing, while the occupants could not tell from which railroad the sound of the whistle proceeded, unless other facts furnish an excuse for not stopping. The team should have halted. The very doubt felt by the men was notice enough of danger, unless they were, without their own fault, deceived by the surrounding circumstances.

The plaintiff's counsel insists that such excuse exists. It is contended on that side of the case that, taking into consideration that the train was not seen, though the deceased and his associates must have been intent upon their situation, as evidenced by their sudden silence as they were advancing on their way after their interchange of views on the subject, and considering also the fact that they had much reason to suppose that the Pullman train belonged upon the most distant road, the sight of the uplifted arms of the gates was evidence enough to dissolve the doubt in the minds of those men, and to induce them to believe that they could safely continue on without interruption. The plaintiff contends that such was the judgment of the three men, who for intelligence and experience would average well with men generally. The counsel for the defendants contends that the standing arms indicating open gates should not be regarded as any signal, or a sufficient signal, of safety, at any crossing where the law does not require gates to be maintained. At this place the gates were erected by the voluntary act of the company. But it is not a fair construction of the statute to say that it does not require gates to be maintained, or a flag-man to be present, at all grade crossings, as to trains moving more rapidly at such places than six miles an hour. And while a neglect of the company to perform its duties does not excuse the traveler in a neglect of the duties and degree of care which the law imposes on him, still, in making his calculation for crossing a railroad track safely, he is often justified in placing some reliance on a supposition that the company will perform the obligation resting on it, where there is no indication that it will do the contrary. If the gates were open and the crossing unattended by a flag-man, then these persons had a right to accept the fact as some evidence that the train would not attempt to pass the crossing at a faster speed than six miles an hour. Of course, full reliance cannot always be placed on an expectation that a railroad company will perform its duties, when there is any temptation to neglect them, because experience teaches us that it would not be practicable to do so. But such an expectation has some weight in the calculation of chances, greater or less according to the circumstances. But what essential difference can it make in the relation of the parties whether the statute requires a flag-man at any point or whether absolute necessity requires one,whether the legislature declares the necessity, or the company by its act cenfesses the necessity? The defendants, by their counsel, contend that the English and the New York authorities, cited by plaintiff, are based upon a statutory requirement that gates shall be maintained. That is not entirely correct. In a leading case (Stapley v. Railway Co., L. R. 1 Exch. 21) it was said that while there was no law requiring gates as to foot passengers, still the decision was that the footman in that case was fairly invited by the open gates seen by him to attempt a passage across the tracks. Nor do we find that the New York cases place the responsibilities of railroads wholly on what the statute law requires of them as to guards at crossings. It is said in Kissenger v. Railroad Co., 56 N. Y. 538, "though it is not negligence for a railroad company to omit to keep a flag-man, still, if one is employed at a particular crossing, his neglect to perform the usual and ordinary functions of the place may be sufficient to charge the company." See Glushing v. Sharp, 96 N. Y. 676. If the presence of a flag-man and closed gates indicate a passing train, certainly the absence of the flag-man and open gates must be evidence that a train is not presently due or expected. The annexed authorities touch nearly to the point involved in the facts here presented. Wheelock v. Railroad Co., 105 Mass. 203, Tyler v. Railroad Co., 137 Mass. 238; Sonier v. Railroad Co., 141 Mass. 10, 6 N. E. Rep. 84; Whart. Neg. §§ 385, 386, and cases; Pierce, R. R. 203, and cases.

The plaintiff's case is fortified by another consideration. He neither drove nor, as far as appears, had any control of the team on which he was riding. It is reasonable to suppose that the owner carried him either for hire or gratu

itously as a neighborly kindness. His position was not of the same degree of responsibility to the railroad as was that of the driver. He was a comparatively passive party. Not that he had no duty to perform. He could have asked the driver to stop the team, or he could have left it. But it would be natural, even though his fears were excited, that he should defer to some extent to the experience and discretion of the driver who was in the control of his own team; and before he had time to assert his own judgment against the driver's, or perhaps fully appreciate the situation, the inevitable event was upon him. We think this fact has considerable force in the combination of circumstances which weigh against the charge of contributory negligence. And we may consider this point in the argument in behalf of the plaintiff, unless we adhere to the doctrine of imputable negligence, which has been considerably practiced on in the courts, first promulgated in the case of Thorogood v Bryan, 8 C. B. 115,—a doctrine which ascribes to a passenger the contributory negligence of a driver over whom he has no control. This doctrine was never adopted in Scotland, nor by the English admiralty court, and was never at rest, but has been constantly doubted and criticised in other English courts, until, in 1887, it was overruled by the court of appeal, without a dissenting vote on the question, in the exhaustively considered case of The Bernina, 12 Prob. Div. 58. The action in that case, though originating in the admiralty, was brought under Lord Campbell's act, and was governed in all respects by common-law rules, and the full court of England unhesitatingly swept away the old rule, saying that it was a fictitious extension of the principle of agency unwarranted upon any rule or theory of law. It is remarked in that case that the preponderance of judicial and professional opinion in England is against the doctrine, and that the weight of judicial opinion in America is also against it. The same decision has been made in the supreme court of the United States in Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. Rep. 391, where it is said that the doctrine of Thorogood v. Bryan rests upon indefensible foundation. It is there declared that the identification of the passenger with the negligent driver, without his co-operation or encouragement, is a gratuitous assumption. The same view of the question is entertained by text writers generally, especially in last editions of their works. The older doctrine is rapidly fading out. A distinction has sometimes been attempted to be made between riding in a public or riding in a private carriage, but that idea has not prevailed to any considerable extent. The cases discuss, as an English court puts it, the broad question as to what is the law applicable to a transaction in which one has been injured, and in the course of the transaction there have been negligent acts or omissions by more than one party. In quite a number of the cases the facts were precisely as they are here, and the distinction is not heeded. A few cases like or nearly like the present case are the following: Robinson v. Railroad Co., 66 N. Y. 11; Masterson v. Railroad Co., 84 N. Y. 247; Cuddy v. Horn, 46 Mich. 596, 10 N. W. Rep. 32; Transfer Co. v. Kelly, 36 Ohio St. 86; Bennett v. Railroad Co., 36 N. J. Law, 225; Railroad Co. v. Steinbrenner, 47 N. J. Law, 161; Railroad Co. v. Shacklet, 105 Ill. 364. See Borough of Carlisle v. Brisbane, 113 Pa. St. 544, 6 Atl. Rep. 372, and cases in note. We are not committed to the doctrine of Thorogood v. Bryan in this state to an extent preventing its repudiation. In Dickey v. Telegraph Co., 43 Me. 492, the rule was acted on without any expression of dissent by counsel. The doctrine of imputable negligence as applicable to the relation of parent and minor child, which presents another and a somewhat different question, has been favorably alluded to in this state, but in cases where it did not affect the result reached on other grounds. Brown v. Railway Co., 58 Me. 384; Leslie v. Lewiston, 62 Me. 468. A class of cases against towns for injuries caused by defective highways, being statutory actions, stand upon a ground of their own, unaffected by the rule under discussion. On the terms of the submis.

sion of this case to the court by the parties, we think judgment must be entered for the plaintiff for the sum agreed upon as damages.

WALTON, VIRGIN, LIBBEY, FOSTER, and HASKELL, JJ., concurred.

NOTE.

RAILROAD CROSSINGS-DUTY OF TRAVELER TO LOOK AND LISTEN. It is the duty of a person about to cross a railroad track to make a vigilant use of his senses, as far as there is an opportunity, in order to ascertain if there is a present danger in crossing. Railway Co. v. Adams, (Kan.) 6 Pac. Rep. 529; Starry v. Railroad Co., (Iowa,) 1 N. W. Rep. 605; Abbott v. Railway Co., (Minn.) 16 N. W. Rep. 266; Clark v. Railway Co., (Kan.) 11 Pac. Rep. 134; Railroad Co. v. Davis, (Kan.) 16 Pac. Rep. 78; Donohue v. Railway Co., (Mo.) 2 S. W. Rep. 424; Mynning v. Railroad Co., (Mich.) 31 N. W Rep. 147; Harris v. Railway Co., (Minn.) 33 N. W. Rep. 12; Pennsylvania Co. v. Marshall, (Ill.) 10 N. E. Rep. 220; Glascock v. Railroad Co., (Cal.) 14 Pac. Rep. 518; Young v. Railway Co., (N. Y.) 14 N E. Rep. 434. A failure to listen or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company, in failing to give signal, contributed to the injury. Railway Co. v Adams, (Kan.) supra; Schofield v Railway Co., 8 Fed. Rep. 488; Holland v. Railroad Co., 18 Fed. Rep. 243; Mynning v Railroad Co., supra. The diligence required of the traveler in ascertaining the approach of a train to a highway crossing must be greater accordingly as the peculiar locality and the circumstances of the case seem to require greater caution. Morris v. Railroad Co., 26 Fed. Rep. 22. The fact that the approach of a railroad to a highway is obstructed from view imposes upon travelers by the highway special care to avoid collisions. Haas v. Railroad Co., (Mich.) 11 N. W. Rep. 216; Schaefert v. Railway Co., (Iowa,) 17 N. W. Rep. 893; Burns v. Rolling-Mill Co., (Wis.) 19 N. W. Rep. 380; Pence v. Railroad Co., (Iowa,) 19 N. W. Rep. 785. Where a crossing is particularly dangerous, and requires extraordinary effort to ascertain whether it is safe to attempt to cross, one familiar with the locality and the danger surrounding it must use care proportioned to the probable danger. Railroad Co. v Butler, (Ind) 2 N. E. Rep. 138, Merkle v Railroad Co., (N. J.) 9 Atl. Rep. 680; Seefeld v. Railway Co., (Wis.) 35 N. W. Rep. 278. Where the driver of a team brought his horses to a walk, but did not stop and leave his wagon, and go forward where he could see a train obstructed by cars standing on a side track, held not to be contributory negligence. Kelly v. Railway Co., (Minn.) 11 N. W. Rep. 67: Guggenheim v. Railway Co., (Mich.) 33 N. W. Rep. 161. Where the approach to a crossing was obstructed, and the plaintiff's attention was required in one direction, held, under the circumstances, he was not negligent for failing to look in the opposite direction, from which a train was rapidly approaching, without signal, bell, or whistle. Loucks v. Railway Co., (Minn.) 18 N. W. Rep. 651. Where one knows the dangerous condition of a crossing, that the approach of a train would be obstructed to both sight and sound, and also knew, or had reason to know, that a train is due, it is his duty to both look and listen, and, if need be, to stop for that purpose. Tucker v. Duncan, 9 Fed. Rep. 867. But there may be circumstances which will excuse the traveler from taking the usually necessary precaution of looking and listening. Railroad Co. v. Hedges, (Ind.) 7 N. E. Rep. 801; Abbott v. Railway Co., supra.

See, also, as to the duty of the traveler and of the railroad company at railroad crossings, Howard v. Railway Co., 1 N. Y. Supp. 528, State v. Railroad Co., (Md.) 14 Atl. Rep. 685; Brown v. Railroad Co., 1 N. Y. Supp. 286; Railway Co. v. Wheeler, (Ind.) 17 N. E. Rep. 563, and cases cited in note; Railway Co. v. Schneider, (Ohio,) Id. 321, Railway Co. v. Kuehn, (Tex.) 8 S. W. Rep. 484; Granger v. Railroad Co., (Mass.) 15 N. E. Rep. 619, and note; Railway Co. v. Kuhn, (Ky.) 6 S. W. Rep. 441; Bloomfield v. Railway Co., (Iowa,) 38 N. W. Rep. 431; Railroad Co. v. Perkins, (Ill.) 17 N. E. Rep. 1.

(80 Me. 488)

STATE v. DAVIS.1

(Supreme Judicial Court of Maine. August 3, 1888.)

NUISANCE-COMMON NUISANCE-STATIONARY STEAM-ENGINE-INDICTMENT.

An indictment for maintaining a stationary steam-engine as a common nuisance, under Rev. St. c. 17, §§ 17, 19, is bad on demurrer unless both its erection without the prescribed license and its use are alleged as of a certain specified time and place." Exceptions from superior court, Kennebec county.

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

As to the necessity of an indictment or information conforming to the wording of the statute creating the offense, see State v. Carville, (Me.) 14 Atl. Rep. 942, and note; State v. Horan, (N. H.) ante, 20, and note.

Indictment for erecting and using a stationary steam-engine as a common nuisance, under Rev. St. Me. c. 17, §§ 17, 19, without a license. The defendant demurred to the indictment, and, the demurrer being overruled, alleged exceptions. The indictment was as follows: "The jurors of said state, upon their oath present that Simeon G. Davis of Winthrop, in said county of Kennebec, on the 1st day of January in the year of our Lord 1887, at Winthrop, in said county of Kennebec, did, without having been granted license therefor by the municipal officers of the said town of Winthrop, designating the place where the buildings therefor should be erected, the materials and mode of construction, the size of the boiler and furnace, and such provisions as to height of chimneys or flues, and protection against fire and explosion as they, the said municipal officers of said town of Winthrop, then and there judged proper for the safety of the neighborhood, where said stationary steam-engine was erected, erect a stationary steam-engine; and so the jurors aforesaid, upon their oath aforesaid, do say and present that the said Simeon G. Davis did then and there erect a common nuisance. And the jurors aforesaid, upon their oath aforesaid, do further say and present that said Simeon G. Davis, at Winthrop aforesaid, in the county of Kennebec aforesaid, on the 1st day of January in the year of our Lord 1887, without having been granted license therefor from the municipal officers of the said town of Winthrop, designating the place where the buildings therefor should be erected, the materials and mode of construction, the size of the boiler and furnace, and such provisions as to height of chimneys or flues, and protection against fire and explosion as they, the said municipal officers of said town of Winthrop, judged proper for the safety of the neighborhood, erect a stationary steam-engine; and so the jurors aforesaid, upon their oath aforesaid, do say and present that the said Simeon G. Davis, at said Winthrop, in said county of Kennebec, on the said day of January in the year of our Lord 1887, did cause a common nuisance. And the jurors aforesaid, upon their oath aforesaid, do further say and present that the said Simeon G. Davis, on the said 1st day of January in the year of our Lord 1887, and from that day until the day of the finding of this indictment, at Winthrop aforesaid, in the county of Kennebec aforesaid, a stationary steam-engine before that time unlawfully erected in said town of Winthrop by the said Simeon G. Davis, without any license to him the said Simeon G. Davis, granted by the municipal officers of the said town of Winthrop, in said county, designating the place where the buildings therefor should be erected, the materials and mode of construction, the size of the boiler and furnace, and such provisions as to height of chimneys or flues, and protection against fire and explosion as they, the said municipal officers of said town of Winthrop, judged proper for the safety of the neighborhood, unlawfully did use; and so the jurors aforesaid, upon their oath aforesaid, do say and present that the said Simeon G. Davis, on the said 1st day of January in the year of our Lord 1887, and thence continually until the day of the finding of this indictment, unlawfully did continue a common nuisance, against the peace of the state, and contrary to the form of the statute in such case made and provided."

L. T. Carleton, Co. Atty., for the State. John H. Potter, for defendant.

DANFORTH, J. This is a demurrer to an indictment for maintaining a common nuisance, under Rev. St. c. 17, §§ 17, 19. Section 17 provides that "no stationary steam-engine shall be erected in a town, until the municipal officers have granted license therefor," under certain restrictions therein named. Section 19 provides that "any such engine erected without a license shall be deemed a common nuisance, without other proof than its use." Thus it will be seen that the erection of an engine without the prescribed license, though prohibited, is not legally a nuisance, but the use of such an one is. It would therefore seem to be immaterial whether the person using is the same as the person erecting, or otherwise. But the use and the want of a license