run towards the track, then the jury were justified in finding that the driver was negligent in not stopping before the child reached the track. If, on the contrary, the driver did not see the child at all until the horses were within a few feet of him, then the jury were justified in finding that the driver was negligent in not seeing the child when he could have seen him by keeping a lookout. Heddles v. Chicago & N. W. R. Co., 74 Wis. 239, 39 Am. & Eng. R. Cas. 645. Had the jury found that the driver actually saw the child standing in charge of some one within a few feet of the track at the east crossing, when the car was 90 feet distant, and that the child and the person in charge continued to stand there until the horses had nearly passed him, and then suddenly ran in behind the horses, there would have been great force in the argument that there was an absence of negligence on the part of the defendant, or the presence of contributory negligence on the part of the person so in charge. But there is no such finding.

It is true the ninth finding is to the effect that the child ran between the horses and the car before he could be prevented, and before the car could be stopped. But, as indicated, the driver may have negligently failed to see the child until he got within a few feet of the track and the car, and when it was too late to prevent his going further, or to stop the car before it struck him.

True, the tenth finding is to the effect that the driver did not have any reason to expect that the child would undertake to cross the street at the time. That would be equally true, if the driver negligently failed to see the child until he got within a few feet of the track and the car, or if he saw him at the edge of Clybourn street, when the car was 90 feet distant, and then carelessly or negligently failed to observe him further, or keep any lookout for him until he got within a few feet of the track and the car, and when it was too late to prevent his going further, or to stop the car before it struck him.

True, the eleventh finding is to the effect that the defendant was not guilty of any other want of ordinary care which caused the injury, except the negligence of the driver. But the ordinary care required of the driver must, after all, be determined by the circumstances which accompanied the transaction. His vigilance was required to be commensurate with his reasons for apprehending danger. Hence the jury were bound to take into account the condition of the track, the number of citizens which was constantly, or ordinarily, passing and repassing on these public streets, the steepness of the grade, the facility, or want of facility, for

suddenly stopping the car, the character and disposition of the horses, and, in fact, all the circumstances, in order to intelligently determine what kind of speed would be careless or reckless driving, or what want of care in keeping a lookout, or want of vigilance in stopping the car in the presence of reasonably apprehended danger, would be negligence. The car moved and the child moved, and the circumstances necessarily kept shifting and changing as they approached each other, and hence the case was peculiarly for the jury.

The special findings must necessarily be considered and construed with reference to such shifting and changing circumstances. So considered and construed, we must hold that the negligence found in the first finding, is not wholly eliminated by any or all the other special findings. This ruling is not, as we understand, in conflict with any of the adjudications of this court. While we may differ with the learned counsel for the defendant as to the significance of some of those cases, yet our principal difference here is as to the construction and effect of the special findings in the case at bar. The judgment of the circuit court is affirmed.

Injury to Persons upon the Track of a Street Railway Company.

Boy Falling Down on Track in Attempting to Cross and Run Over-Accidental Injuries.--In Dorman v. Broadway R. Co., 117 N. Y. 655, the action was brought for the alleged negligent killing of a boy who was run over by one of defendant's cars. Upon the trial, it appeared from the evidence that the boy attempted to cross the track in front of the car, while the same was moving, and that when about two feet distant from the horses he fell upon the track and was run over. There was a conflict in the evidence as to how far deceased was in front of the horses when he first started to cross. It was shown that the distance from the horses' heads to the front wheel of the car was about 19 feet, and there was evidence that the car could have been stopped within the distance of from 15 to 18 feet. The driver testified that he was standing in position against the dashboard with one hand upon the brake, and with the reins in the ' other, and was looking for crossers, but on account of the darkness did not see the boy. He said that he put on the brakes so suddenly that the car was stopped with a jerk. He also testified that he could not stop the car as quickly as he might otherwise, because the horses jumped over the boy, jerking the car ahead, and also, because when the boy fell he rolled over towards the car in his struggles to extricate himself. Held, that there was no evidence that the boy came to his death from any fault or carelessness attributable to the defendant; that his death was due solely to his accidental falling upon the track, and that a judgment for the plaintiff should be reversed.

In Fenton v. Second Ave. R. Co. (New York Ct. of App., March 10, 1891,) 26 N. E. Rep. 967, the action was brought to recover damages for the death of plaintiff's son, who was run over and killed by one of defendant's street cars. It appeared that the boy fell down while attempting to cross the track in front of a moving car. At the time he fell the car was not more than 20 feet distant. The place was not a crossing, and the driver applied the brake as soon as the boy fell. Held, that the defendant was not responsible for the accident. EARL, J., said: “If it be assumed 46 A. & E. R. Cas.-13

that the boy fell twenty feet in front of the horses, as testified to by one of the plaintiff's witnesses, then the horses going at the usual rate of speed. assuming it to be six miles an hour, would have reached him in above two seconds, and that was all the time the drivers had to see the peril, apply the brake, and arrest the motion of the car before reaching him, and there is no evidence that, by the exercise of all the vigilance that the law requires of drivers under such circumstances, they could, after the boy had fallen upon the track, have arrested the car in time to save him from injury. If it be assumed that they saw him as he approached the track, they had the same reason to suppose that he would get across that he had; and he probably would have crossed in front of the horses in safety if he had not fallen. No negligence can be attributed to the drivers because they did not apply the brake before the boy fell, because then, for the first time. the peril commenced and became apparent. This accident did not happen at a street crossing, but between the upper and lower crossings of the street, and hence the drivers did not have the same reason to expect any one there as at a street crossing. There was nothing requiring this boy to run across the track at this particular place and time. If he had walked, he probably would not have fallen, and if he had waited two or three seconds the car would have passed, and he could then have gone over the street in safety. Street railway cars have a preference in the streets, and while they must be managed with care, so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way. The unfortunate death of this boy was due to his own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it. The judgment should be reversed, and a new trial granted, costs to abide the event."

In Manahan v. Steinway & H. P. R. Co. (New York Ct. of App., Feb. 24, 1891,) 26 N. E. Rep. 736, the action was brought to recover damages for personal injuries to a boy twelve years of age, injured by being run over by defendant's street car. The boy testified that he attempted to cross the track in front of defendant's car; that he saw the car coming but thought he would have time to get across. The only suggestion of negligence on the part of defendant was plaintiff's claim that the driver of the car accelerated its speed just as the boy was crossing. Held, that the evidence failed to show a case against the defendant.

Creeping Child on Track Run Over and Killed-Sufficiency of Allegations of Negligence.--In San Antonio St. R. Co. v. Caillonette (Tex. Sup. Ct., Jan. 26, 1891,) 15 S. W. Rep. 390, the action was brought to recover damages for the death of plaintiff's child, an infant fourteen months old, who had, without plaintiff's knowledge or negligence, as alleged, gone into the street to play. The petition alleged, that as the child was in the act of crossing the track, defendant's car driven by its employe at a rapid gait ran over the infant and killed it. It was alleged that the road was unobstructed in front of the car and that the driver acted" without proper regard, imprudently, carelessly, heedlessly, and negligently" and thereby caused its death. It was held, that the petition alleged facts constituting negligence and that it was not necessary to allege that such facts did constitute negligence if the conclusion of negligence could properly be drawn from them. Negligence of Driver, Warned by Passenger, in Running Over Child.—In an action for the death of an infant, killed by being run over by a street car, one of the passengers upon the car at the time the injury occurred testified that the car was moving rapidly and that the driver was urging his mule; that witness saw the infant standing near his mother's door suddenly commence to crawl rapidly towards the track; that the child was not seen by the driver who continued to urge his mule; that witness called to the driver to look out for the child, but that the driver did not heed;

that he warned the driver a second time, when the brakes were applied, but too late to avoid the accident. Held, that an instruction to find for defendant was properly refused. San Antonio St. R. Co. v. Caillonette (Texas Sup. Ct., Jan. 26, 1891,) 15 S. W. Rep. 390.

Person Run Over While Walking on the Track-Contributory Negli gence-Failure to Look for Car.-In Warner v. People's St. R. Co. of Luzerne County, (Pa., April 20, 1891), 21 Atl. Rep. 737, it appeared that plaintiff while attempting to pass through a cut in a snowdrift on defendant's track, was overtaken by a horse car which she endeavored to avoid by stepping to one side. She was knocked down by the body of the car and injured. Plaintiff could have seen the car for a quarter of a mile when she got upon the track, and the bells could have been heard at a distance of 40 rods. Plaintiff did not notice the car until it was nearly upon her. Held, that she was not entitled to recover. MITCHELL, J., said: "The place of the accident was in the public road, where both parties had a right to be, and where each, therefore, was bound to be on the lookout for the other. Schmidt v. McGill, 120 Pa. St. 405. But the right of the defendant's cars was superior. They were confined to the track, and on that they had the right of way, to which the use by other parties, on foot or otherwise, was of necessity subordinate. The plaintiff, on the other hand, could use the whole road, and which part of it she took was merely a matter of convenience. That defendant in clearing its track from snow for the passage of its cars had made it also more convenient for plaintiff to walk on, could not be turned to its disadvantage, or enlarge the plaintiff's rights over that part of the public road. They were still subordinate to defendant's right of way. Jatho v. Green & C. St. R. Co., 4 Phila. (Pa.) 24; Thomas v. Citizens' Pass. R. Co., 132 Pa. St. 504; Adolph v. Central Park, N. & E. R. R. Co., 76 N. Y. 530. These being the respective rights of the parties, the plaintiff came to a point on the road where the defendant's track ran through a snowdrift for a distance estimated by plaintiff herself at half a block, where the snow had been removed from the track, leaving a passage just wide enough for the cars, with vertical walls of snow two or two and a half feet in height. It was plainly a place of danger for a foot passenger in case a car should reach it, and therefore a place for unusual caution and vigilance. But the rest of the road was, as plaintiff testified, ankle deep in snow and slush, and plaintiff took the more dangerous, but more confortable, way. She says she looked just before she went into the cut, to see if there was a car behind her, and saw none. But on this, the pivotal point of the case, the uncontradicted evidence is overwhelmingly against her. The drift was at the top of a hill or rise, from which there was an unobstructed view in the direction from which the car was coming, fixed by plaintiff's own witnesses at quarter to half a mile, and up this hill the car came at a moderate speed, with bells that could be heard for 40 rods. Yet plaintiff herself says she had got but a little way into the passage before the car came upon her. It is unquestionable that the car must have been plainly in sight at the time she entered this dangerous path, and if she looked at all it must have been a mere heedless glance, which all the evidence shows was not an adequate performance of the duty the situation required. The case belongs clearly to the class of Carroll v. Railroad Co., 12 W. N. C. (Pa.) 348, and required the court to pronounce plaintiff negligent as matter of law."

THOMAS

ข.

CITIZENS' PASSENGER R. Co.

(132 Pa. St. 504.)

Street Railway-Collision of Car with Carriage-Negligence of DriverQuestion for Jury.-Plaintiff sued for damages resulting from the collision of a street car with her carriage, while she was attempting to cross the track, in front of the approaching car. It was shown that the driver of the car was, at the time looking up and down the street to see if any passengers desired to board the car. But it also appeared that his attention was not unneccesarily, or for any unreasonable time withdrawn from a view of the track. There was no evidence that he neglected to apply the brakes promptly, or that he failed to do anything which he might have done to avoid a collision. Held, that it was error to submit the question of such driver's negligence to the jury.

Same-Duty of Person in Carriage with Curtains Drawn to Look. The fact that the curtains of a carriage with which a street car collided were drawn, will not excuse the occupant of such carriage from the duty of looking for an approaching street car, before attempting to cross the track, especially as such occupant heard the bells of an approaching car.

Same Opinion Evidence as to Whether Driver Might Have Avoided Col· lision. In such a case, the opinions of witnesses having no knowledge or experience in the handling of cars, or in the operation of brakes, as to whether or not the driver might or might not have stopped the car in time, upon a descending grade, to have avoided the collision, are of little importance.

Same-Burden of Proof.-In an action against a street railway company to recover damages on account of a collision of plaintiff's carriage with defendant's street car, plaintiff has the burden of proving the negligence of the defendant, and her own want of contributory negligence.

ERROR to Montgomery County Court of Common Pleas. The plaintiff, Helen L. Thomas, while driving across the track of the defendant company, was injured by a collision of her carriage with one of defendant's cars. The jury returned a verdict for the plaintiff. Defendant brings error from a judgment overruling a motion for a new trial.

Joseph Fornance and Irving P. Wanger, for plaintiff in error. N. H. Larselere and M. M. Gibson, for defendant in error.

Evidence to

CLARK, J.-The plaintiff in this case, Helen L. Thomas, concedes that if the conductor or driver of this car could not have stopped it in time to avert the accident he show driver's was guilty of no negligence; but her contention is that if he could have done so, and did not, he was negligent, and she is entitled to recover. The only negligent act complained of, therefore, is that the conductor

negligence.