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or want of proper care and skill in the driver of the stage in which she was a passenger. But the fact that the stage was upset and plaintiff's wife injured is prima facie evidence that there was carelessness or want of skill on the part of the driver, and throws upon the defendants the burden of proving that the accident was not occasioned by his fault. (2) It being admitted that the carriage was upset and plaintiff's wife injured, the defendants must prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and that he acted on this occasion with reasonable skill, and the utmost caution and prudence; and if the disaster in question was occasioned by the least negligence or want of skill and prudence on his part then the defendants are liable. (3) If there was no want of skill, or care, or caution on the part of the driver, and the coach was upset by the act of the plaintiff or his wife, in rashly or imprudently springing from it, then the defendants are not liable. But if the want of skill of the driver placed the passengers in a state of peril, and they at that time had reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, then the plaintiff can recover, although it appears that, from the position in which the negligence of the driver had placed the carriage, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the carriage to upset, and although the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage. (4) If the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and the accident was occasioned by no fault or want of skill or care on his part or that of the defendants, but by physical disability in the driver, produced by exposure to extreme and unusual cold, which rendered him for the time incapable of doing his duty, then the defendants are not liable. Saltonstall v. Stockton,* Taney, 11.

§ 270. There were two stage lines on the route between Marietta and Zanesville. One carried the mail. Neil's line was run in opposition to the mail line. The plaintiffs took Neil's line for Marietta. The stages left Zanesville at about the same hour. The horses in both lines were driven rapidly, often at their full speed, against the remonstrances of the passengers in Neil's line. The driver of the mail line whipped his horses and tried to drive around the other stage. A race followed. The wheel of the mail coach locked in the fore wheel of the other stage, broke its doubletree and threw the stage and horses over a precipice, which seriously injured one of the plaintiffs. Held, in an action to recover damages, that if the driver of the defendant's stage did not say or do anything to provoke a reckless competition with the driver of the mail stage, and if, on the contrary, he evidently sought to avoid such competition, and if, when the driver of the mail stage attempted to pass him, he did all that could be reasonably expected from a skilful and prudent driver to prevent the upsetting of the stage, the defendant was not liable. Peck v. Neil,* 3 McL., 22.

§ 271. Every person who establishes a line of stages for the conveyance of passengers, and who holds out inducements to persons to travel in his stages, for which a compensation is charged, is bound to have skilful and prudent drivers, good coaches and harness and wellbroken horses, and the utmost skill and prudence of the driver under the circumstances must be exercised to avoid accidents. Ibid.

§272. In an action for damages for injuries to a passenger by the upsetting of a stage, which was alleged to have been negligently overloaded, defendant offered to prove that it had always been the custom on that route to carry as great a number of passengers as were in and on the stage. Held, that a party cannot prove a custom established by himself; only a general custom may be proved. Maury v. Talmadge,* 2 McL., 157.

273. Plaintiff was severely injured by the upsetting of a stage-coach on which he was a passenger. In an action to recover damages for his injuries he attempted to show a want of skill in the driver by proving that at one time his lines were not properly fastened on his horses, and that at another time he handled them unskilfully and nearly upset the stage. Held, that plaintiff could not be allowed to show the driver's incompetency by proving particular facts; that the inquiry must be limited to his general character as a driver. McKinney v. Neil,* 1 McL., 540.

$274. Miscellaneous.-The act of congress of March 30, 1852, does not exempt vesselowners from liability for injuries to passengers through the negligence of the employees on the vessel. It does not abrogate the relation of master and servant between the owners and such employees. Sherlock v. Alling, 3 Otto, 99.

§ 275. The plaintiff brought suit against defendant, a common carrier, in assumpsit for injuries to his wife. The plea was a former recovery in a like suit by husband and wife. Held, on demurrer to the plea, that a judgment in assumpsit, brought by a husband and wife on a contract by a carrier of passengers to carry her safely, for injuries to her while being carried, was a bar to another action of assumpsit on the same contract by the husband alone to recover for the same injuries. A different rule prevails when the action is in tort against the

carrier for a breach of his public duty, except, perhaps, in states like New Jersey, where by statute the husband may in such an action add claims in his own right to those of his wife. Pollard v. Railroad Co.,* 11 Otto, 223.

§ 276. Plaintiff was wounded in the head by a blow from a piece of iron which was thrown against him in a collision caused by the alleged mismanagement of defendant's servants. In an action to recover damages for his injuries, evidence was offered in his behalf to prove that he had been unable to pursue his business in consequence of the injury to his mental faculties. This was objected to on the ground that the declaration only alleged generally a loss by detention from business. On reference of the question to the supreme court by the judges of the circuit court, who had not agreed upon the point of the admissibility of such evidence, held, that the evidence was competent as assisting a jury to determine the extent of plaintiff's loss. Wade v. Leroy,* 20 How., 34.

§ 277. Delivery of ticket.- If a purchaser of a railway ticket is called away a moment after he has paid for it, it is no delivery thereof to him to lay it down on the counter. It is the duty of the ticket agent to see that it is delivered properly to the purchaser. Quigley v. Cent. Pac. R. Co., 5 Saw., 107 (§§ 844-46).

IV. RAILROADS.

[See CORPORATIONS.]

SUMMARY - Crossings; rights and duties of travelers, §§ 278-281.- Fire, §§ 282-290.- Child injured on turn-table, § 291.- Negligence of child, § 292.- Measure of responsibility, § 293.- Contributory negligence in permitting stock to enter through cattle-guards, §§ 294, 295, 298.- Fences and cattle-guards, §§ 296, 297.— Excavation in right of way, § 299.— Injury by open hatchway on depot grounds, § 300.

§ 278. The obligations, rights and duties of railroad companies and travelers upon intersecting highways (railway and ordinary) are mutual and reciprocal. No greater degree of care is required of one than of the other; and while travelers in wagons should exercise all the care of intelligent, prudent persons in avoiding collisions with the cars, which have precedence in crossing by reason of their great weight and momentum, yet the duty of avoiding collision cannot be imposed exclusively on travelers by foot or team. Continental Imp. Co. v. Stead, 301, 302.

$279. While railway companies may run fast trains and store empty cars on side tracks near highways, but must exercise reasonable care at highway crossings, high speed, failure to ring bells, etc., may all be considered in determining the existence of negligence while crossing highways. Thomas v. Delaware. L. & W. R. Co., §§ 303–305.

§ 280. Before attempting to cross a track a person must use all his faculties to see if it is safe to cross, and exercise all the care that may be expected of an intelligent, careful man. Ibid.

§ 281. Plaintiff was injured by a train while crossing defendant's track. The depot interfered with the view down the track whence came the train, but plaintiff, when thirty-three foot from the track, could have seen over twenty rods of the track beyond the depot, which was a distance of seventy rods from the crossing. The train in question was not a regular train and was moving at an unusual and dangerous rate of speed. It did not stop at the depot as trains usually do, and no warning was given of its approach by blowing the whistle or ringing the bell after the depot was passed. Held, that the neglect of an engineer of a passing train to blow the whistle or sound the bell on nearing a crossing does not relieve passers on the highway from the necessity of a sharp lookout for a coming train before attempting to cross; that plaintiff had been guilty of contributory negligence; and, such being the case, was not entitled to recover, however greatly at fault defendant might have been. Schofield v. Chicago, etc., R'y Co., §§ 306, 307.

§ 282. Property destroyed by fire from a railway, which spread beyond its original starting place, is proximately within the railway company's negligence, especially where a statute authorizes a recovery for damages by negligent fires caused by a railway company "along its route." Grand Trunk R. Co. v. Richardson, §§ 308-313.

§ 283. Location of property near a railway track is not contributory negligence in case a subsequent fire destroys it. Ibid.

284. Where a railway company licenses the erection of buildings upon its right of way, and they are negligently burned by sparks from its locomotive, in an action therefor the license may be introduced to show that the owner of the buildings was not a trespasser. Ibid.

$285. In an action for the negligent destruction of property by fire from a locomotive, evidence that it was not the custom of railways to employ a watchman is not admissible— the issue being as to the existence of negligence. Ibid.

§ 286. Evidence that at different times previous to the fire other locomotives of defendant scattered sparks, etc., is admissible without showing that the particular engine in question did so. Ibid.

§ 287. The fact that property burned was wrongfully on railway is immaterial, it being the duty of a railway to avoid injury even to a trespasser. Ibid.

§ 288. In Iowa, where under the statute the occupant of land under color of title is con. sidered as owner of improvements bona fide placed thereon by him, it is immaterial, in action for their negligent destruction by fire, whether he is in law the owner or not; and evidence impeaching his title will not be admitted. Milwaukee, etc., R. Co. v. Kellogg, $$ 314-317. § 289. Insurance men may testify as to the nature of an exposure of an elevator towards a lumber-yard. Ibid.

§ 290. It is error to name a specific number of feet of distance, and instruct the jury that if they believe one of the buildings was that far from the other property burned, then the injury was too remote from the place of origin to warrant a recovery. Proximity or remoteness is not a matter of mathematical distance, but something to be inferred by the jury from a consideration of all the circumstances surrounding the origin and spread of the fire. Ibid. § 291. The defendant operated a line of road running through the town of Blair. A turntable was located near a depot, which was left unlocked and unguarded. While some children were playing about it a boy six years of age was injured. Held, that a railroad company may be liable on the ground of negligence. Railroad Company v. Stout, §§ 318–320.

§ 292. Held, also, that while it is the general rule in regard to an adult, that, to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case. Ibid.

§ 293. A railway company is responsible for damages if it fails to take such care as prudent and careful men usually bestow upon dangerous articles. Ibid.

§ 294. The plaintiff was the owner of a field and granted a right of way to a railroad company. The company in constructing its road built cattle-guards at the points of entrance and exit into the field. The plaintiff joined her fences to the cattle-guards. These cattleguards were allowed to fill up, and by this means stock entered the field and destroyed the crops. The cattle and hogs doing the damage mostly belonged to the plaintiff. She knew that stock were passing the cattle-guards, but made no efforts to keep them out of the field. Held, that she was guilty of contributory negligence and could not recover for entire damages. Ward v. P. & M. R. Co., §§ 321-325.

§ 295. The plaintiff might, in consideration of her grant of the right of way, have imposed an obligation upon the company to maintain a fence between it and the land of the plaintiff, or she might have demanded, as a consideration, money enough to cover the costs of the necessary fences in the changed condition of her fields; but, not having used this precaution, she cannot supply the want of it by an implication of a contract imposing the obligation. Ibid.

§ 296. A railroad company, in the absence of any charter obligation or statutory duty to fence its tracks, is not bound to keep and maintain fences and cattle-guards, either as partition fences or otherwise. Ibid.

$297. No common-law or statutory regulation of Tennessee imposes upon railroad companies the obligation of constructing and maintaining cattle-guards for the protection of crops through which the roads pass. The act of 1875, chapter 64, does not apply to railroad companies, although their lands come within one general inclosure" made by abutting landowners joining their fences to the cattle-guards of the railroad. Ibid.

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§ 298. Where growing crops have been destroyed by stock that passed over a cattle-guard, damages cannot be recovered from the railroad company unless the plaintiff has exercised every diligence in trying to keep the stock out of the field. Ibid.

§ 299. Where a person goes upon the right of way of a railway company and falls into an excavation between its tracks, the company is not liable therefor. The fact that the plaintiff and other persons had crossed there before would not show an invitation to cross the tracks there, but at most a mere license so to do, and would not authorize a recovery. Morgan v. Pennsylvania R. Co., § 326.

§ 300. A man going over the depot platforms and grounds of a railway company in the night fell through an open hatchway, which was unguarded and unlighted. Held, that the company was liable in damages. Bennett v. Railroad Co., §§ 327, 328.

[NOTES.-See §§ 329-354.]

CONTINENTAL IMPROVEMENT COMPANY v. STEAD.

(5 Otto, 161-168. 1877.)

ERROR to U. S. Circuit Court, District of Indiana.

Opinion by MR. JUSTICE BRADLEY.

STATEMENT OF FACTS.-This is a case of collision near the village of Lima, in Grange county, Indiana, between a train of passenger cars of the plaintiff in error and the wagon of the defendant in error. The latter brought the action below to recover the damages done to himself and his wagon, and recovered a verdict. The present writ of error is brought to review the instructions given by the court to the jury on the trial. The case, as appears by the bill of exceptions, was substantially as follows: The collision occurred in a cut about five feet in depth, in which the wagon-road crossed the railroad on a level therewith nearly at right angles, descending to it on each side by an excavation. The train was a special one, coming from the north, and did not stop at the station, which was four hundred or five hundred feet north of the crossing, and none of the regular trains were due at that time, although special trains were occasionally run over the road. The plaintiff was going east, away from the village, following another wagon, and in approaching the railroad track could not see a train coming from the north, by reason of the cut and intervening obstructions. There was evidence tending to show that the plaintiff, though he looked to the southward (from which direction the next regular train was to come), did not look northwardly; that his wagon produced much noise as it moved over the frozen ground; that his hearing was somewhat impaired; and that he did not stop before attempting to cross the track; also, evidence tending to show that the engineer in charge of the train used all efforts in his power to stop it after he saw the plaintiff's wagon on the track. The evidence was conflicting as to whether the customary and proper signals were given by those in charge of the locomotive, and as to the rate of speed the train was running at the time, some witnesses testifying that it was at an unusual and improper rate, and others the contrary.

The counsel for the railroad company requested the court to adopt certain specific instructions, to the general effect that the plaintiff should have looked out for the train, and was chargeable with negligence in not having done so; that there was nothing peculiar in the crossing to forbid as high a rate of speed as would be proper in the case of other important highways; that an engineer is not bound to look to the right or left, but only ahead on the line of the railway, and has a right to expect that persons and teams will keep out of the way of the locomotive; and that it is the duty of those crossing the railroad to listen and look both ways along the railroad before going on it, and to ascertain whether a train is approaching or not.

The judge refused to adopt the instructions framed by counsel, but charged, in effect, as follows: That both parties were bound to exercise such care as, under ordinary circumstances, would avoid danger; such care as men of common prudence and intelligence would ordinarily use under like circumstances; that the amount of care required depended on the risk of danger; that, where the view was obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides, as well on the part of those having the management of the train as of those crossing the railroad; that the former should approach the crossing at a less rate of speed, and use increased diligence to give warning of their

approach; and, if the train was a special one, it was still more incumbent upon them in going through such a place to slacken their speed and sound the whistle and ring the bell, than if the train were running on regular time; and, on the other hand, that the party crossing with a team should proceed with more caution and circumspection than if the crossing were in an open country, and not venture upon the track without ascertaining that no train was approaching, or at least without using the means that common prudence would dictate to ascertain such fact; but that, if a train were not a regular one, no train being due at the time, the same degree of caution would not be expected on his part as if it were a regular train and on usual time. In short, the judge charged that the obligations, rights and duties of railroads and travelers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other. He further charged that the plaintiff could not have a verdict unless the persons in charge of the train were guilty of negligence or want of due care, and unless the plaintiff himself were free from any negligence or carelessness which contributed to the injury. The evidence of the case was fairly submitted to the jury in the light of the principles thus announced.

§ 301. The reciprocal and mutual duties of travelers on common roads and officials on railroads as to avoiding collisions.

This is the general scope of the charge; and we think it is in accordanee with well-settled law and with good sense. If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other, to avoid a collision. Of course these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first: it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such, if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing.

On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them,- such,

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