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the facts solely from the evidence, and to apply to the facts, as they found them to be, the law as laid down by the court, and bring in their verdict accordingly.

structions re

quested by plaintiff.

Plaintiff requested court to charge: (1) If the railroad company had by long consent allowed the public to pass and repass the trestle-work, then he was not a trespasser. (This was given.) (2) That if the engineer in charge was Further inincompetent, or if, from the circumstances of the case, the servant of the defendant (the engineer) exhibited a careless or reckless disregard of life or limb, the defendants are liable in damages. (This was given.) (3) That in coming into a populous town (as is admitted in the pleadings) more care is necessary than otherwise. Especially is this so when an engine is coming out of time, or at an unusual hour. (This was given.) (4) That if the deceased was guilty of contributory negligence, and the jury believe, that, if ordinary care had been used, the accident might have been avoided, then, though they believe the deceased contributed to the accident, the railroad is liable. (The court gave, instead of this, the words of Davies v. Mann, as quoted in Gunter v. Wicker, on top of p. 312.) (5) That what the damages are is to be fixed by the jury, under all the circumstances of the case; the same being left largely to the common sense and discretion. (This was given; the court explaining, however, it must be restricted. to actual damages, i.e., the money loss, calculating the annual net earnings and expectancy of life, etc.) (6) If the engine was without headlight, and did not ring the bell or blow the whistle coming into town, this of itself is evidence of negligence on the part of the railroad company, especially where human life is the forfeit of his failure to use the above ordinary care. (This was given; the court adding that it would be a circumstance, if true, to be weighed in connection with all the evidence in the case.)

Charges

defendant.

Defendant requested the following charges: (1) If the jury believe that Thomas McDonald was run over by engine of defendant at a place not a public crossing, but on private property of defendant, company would not be responsible, unless engineer knew of deceased's dan- requested by gerous position on the track, "or with reasonable care and diligence might have known it." (This the court gave, adding the words in quotation-marks.) .. (4) If deceased, in attempting to get off track, caught his foot, and was unable to get off, and was lying in such a position that he could not be seen by engineer, his accident was the result of his own recklessness, and company is not responsible, "unless there was such outcry that the engineer, with reasonable care, could have 34 A. & E. R. Cas. -2.

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prevented the accident." (This the court gave, adding the words in quotation-marks.) (5) If the jury believe the statement made by deceased to plaintiff's witness, to wit, "I saw the damned thing coming, and tried to get out of the way, but couldn't; and, "I saw the engine coming. Thought I had time to cross the trestle. Found I had not. Tried to get off, and got my foot hung," his conduct as thus stated was contributory negligence. "This, subject, however, to the condition that the defendant, with reasonable care and prudence, could not have avoided consequence of deceased's negligence." Gunter v. Wicker. (Given after adding words in quotation-marks). (6) If the jury believe the evidence introduced by plaintiff, and the uncontradicted evidence offered by defendant, they will find that deceased was guilty of contributory negligence. (This was not given, except as far as embraced in other charges given.)

To the first issue the jury answered "Yes;" to the second, "No;" and to the third, "$2,000." Judgment and appeal.

The charge of the court was given with care, and, we think, stated the law fully and fairly, as applicable to every view presented by the evidence. We have given it as sent up with the case on appeal. But only two exceptions (one to the first instruction asked for by the plaintiff, which was given, and the other to the sixth instruction asked for by the defendant, which was refused) were insisted upon in this court; and, as the other exceptions were not pressed, we dispose of them by saying that they were of no avail.

plaintiff was a trespasser.

1. The defendant says that the plaintiff's intestate was a "trespasser," and, being wrongfully on the track of defendant's road, the injury was the result of his own wrong. Whether For this position many authorities are cited, and especially Bacon v. Railroad Co., 15 Am. & Eng. R. R. Cas. 409, and the note, in which many cases are cited to the effect that persons walking upon the track of a railroad are trespassers, and generally considered to be guilty of such contributory negligence as to bar a recovery of damages for injuries sustained while so trespassing. We think that, upon a careful examination of the cases cited by counsel for the appellant, it will be found that in most of them the injury was the result of the contributory negligence of the party injured, proximately causing it, and not resulting directly from the negligence of the defendant; and where they have gone beyond this, they are not in accord with the rulings of this court, nor in harmony with the current of authority. In Byrne v. Railroad, 104 N. Y. 362, and 58 Am. Rep. 512, it was said "that when the public for a series of years had been in the habit of crossing the railroad, the acquiescence of the defendant in the public use amounted

escence of

company in

er may recover

to a license or permission to cross at the point, and imposed the duty upon it, as to all persons so crossing, to exercise reasonable care in the movement of its trains, so as to protect them from injury." And this position is supported Same. Acquiby abundant authority. But, even if he were a trespasser, we do not assent to the idea that the com- use of track. pany is thereby released from reasonable care. In Railroad v. McGowan, 62 Miss. 682, Campbell, C. J., says, "One may be technically a trespasser, and, if he uses due care to avoid injury from the wrongful act of another, he may recover; and he may not be a trespasser, and yet guilty of such contributory negligence as to preclude him from recovering." He says, "The criterion is whether he ob- When trespassserves due care, under the circumstances of his for injuries. situation, whatever it may be, to avoid harm from the act complained of." To constitute such contributory negligence as will defeat a recovery, it must be the proximate and not the remote cause of the injury. In Railroad Co. v. Trainor, 33 Md. 542, it is said, "By 'proximate cause' is intended an act which directly produced, or concurred directly in producing, the injury. By remote cause' is intended that which may have happened, and yet no injury have occurred, notwithstanding that no injury could have occurred if it had not happened. No man would ever have been killed on a railway if he had never gone on or near the track. But if a man does imprudently and incautiously go on a railroad track, and is killed or injured by a train of cars, the company is responsible, unless it has used reasonable care and caution to avert it; provided, the circumstances were not such, when the party went on the track, as to threaten direct injury; and provided that, being on the track, he did nothing, positive or negative, to contribute to the immediate injury." In Railway Co. v. Sympkins, 54 Tex. 615, it is said that a reasonable lookout, varying according to the danger and surrounding circumstances, is a duty always devolving on those in charge of a railway train in motion; and railway companies are bound to exercise due care to avoid injury to others, and a failure to do so will render them liable for injuries resulting, even to a trespasser who has not been guilty of contributory negligence." In Parker v. Railroad, 86 N. C. 221, relied on by defendant, the deceased could, by using ordinary care, have avoided the injury, and the defendant could not stop the engine in time to prevent it. We conclude that there was no error in giving the instruction complained of.

2. The second exception relied on here was to the refusal to give the sixth instruction asked for by the defendant. This instruction "was not given, except as far as embraced in other

charges given."

Refusal to give sixth instruction.

There was evidence tending to show that the negligence of the defendant was the direct and proximate cause of the injury; and there was evidence tending to show that the deceased, being on the track, under the circumstances detailed in the evidence (which was not, per se, such contributory negligence as relieved the defendant from liability for failure to use ordinary care), could not avoid the injury. These questions were left fairly to the jury, and we can see no error in the instructions of the court excepted to, or in refusing those asked and denied. There is no error.

Trespassers on Track. See post Virginia M. R. Co. v. Wite's Admr. Duty of Company to Licensees. The general rule seems to be, that if a person is upon a railroad track by the acquiescence of the company, evidenced by a general use on the part of the public, or even of certain individuals, the company owes a duty of care towards such persons which it does not owe to mere trespassers. Ísabel v. Hannibal & St. J. R. Co., 60 Mo. 475; Byrne v. New York C. & H. R. R. Co., 104 N. Y. 362; s. c., 58 Am. Rep. 512; Barry v. New York C. & H. R. R. Co., 92 N. Y. 289; s. c. 13 Am. & Eng. R. R. Cas. 615,44 Am. Rep. 377; Sutton v. New York C. & H. R. R. Co., 66 N. Y. 244; Bellefontaine & I. R. Co. v. Snyder, 18 Ohio St. 399; Davis v. Chicago & N. W. R. Co., 58 Wis. 646; s. c., 15 Ám. & Eng. R. R. Cas. 424; Townley v. Chicago, M. & St. P. R. Co., 53 Wis. 626; s. c., 4 Am. & Eng. R. R. Cas. 562; Delaney v. Milwaukee & St. P. R. Co., 33 Wis. 67; Griffiths v. London & N. W. R. Co., 14 L. T. 797.

Acquiescence in Crossing. Under the decisions, if the public have been permitted constantly and notoriously, and for a long period, to cross a railway at a place not a highway crossing, persons so crossing are not to be deemed trespassers. Kansas Pac. R. Co. v. Pointer, 9 Kan. 620; s. c., 14 Kan. 38; Kelly v. Southern Minnesota R. Co., 88 Minn. 98; s. c., 6 Am. & Eng. R. R. Cas. 264; Donaldson v. Milwaukee & St. P. R. Co., 21 Minn. 293; Brown v. Hannibal & St. J. R. Co., 50 Mo. 461; Huelsenkamp v. Citizens' R. Co., 37 Mo. 537; Byrne v. New York C. & H. R. R. Co., 104 N. Y. 362; s. c., 58 Am. Rep. 512; Barry v. New York C. & H. R. R. Co., 92 N. Y. 289; s. c., 13 Am. & Eng. R. R. Cas. 615; 44 Am. Rep. 377; Bellefontaine & I. R. Co. v. Snyder, 18 Ohio St. 399; Philadelphia & R. R. Co. v. Troutman, 6 Am. & Eng. R. R. Cas. 117; Taylor v. Delaware & H. Canal Co., 113 Pa. St. 162; s. c., 28 Am. & Eng. R. R. Cas. 656; 57 Am. Rep. 446; Pennsylvania R. Co. v. Lewis, 79 Pa. St. 33; Delaney v. Milwaukee & St. P. R. Co., 33 Wis. 67.

Use of Road-bed as Foot-Path. Nor are persons using the right of way in pursuance of a use by foot travellers which has been permitted without objection for a great number of years. Illinois C. R. Co. v. Hammer, 72 Ill. 347; Kay v. Pennsylvania R. Co., 65 Pa. St. 219; Davis v. Chicago & N. W. R. Co., 58 Wis. 646; s. c., 15 Am. & Eng. R. R. Cas. 424; Townley v. Chicago, M. & St. P. R. Co., 53 Wis. 626; s. c., 13 Am. & Eng. R. R. Cas. 615. See also Murphy v. Chicago, R. I. & P. R. Co., 45 Iowa, 661.

So, too, a company which has run its road in close proximity to a house, and has left a well where the family residing in the house got their water on the other side of the track, must increase its vigilance, when it knows that the family are accustomed to cross the track to obtain water. Isabel v. Hannibal & St. J. R. Co., 60 Mo. 475.

But an intending passenger, who, in his hurry to reach the station in order to take a train, in crossing a vacant lot, passed over a ditch and under a wire fence,

and climbed an embankment to reach the track and platform, was held to be a trespasser upon the track, although the path had been used as a means of access to the station by the public during several years; it being obvious that the company did not intend passengers to reach its station by the way and in the manner he chose to adopt. Comly v. Pennsylvania R. Co. (Pa.), in Cent. Rep. 206. In this the court say, "That Washington A. Comly was a trespasser, and brought upon himself the misfortune which befell him, is not doubtful. Nothing could be more obvious than that the railroad did not intend that passengers should reach its station by the way and in the manner he chose to adopt. The ditch and the character of the ground were of themselves sufficient notice of this fact; but, in addition, the wire fence under which he had to stoop to reach the point of the accident was positive warning, that, in passing it, he assumed every risk that might possibly occur on his way to the train which he intended to board."

Active and Passive Negligence. The distinction between active negligence causing an injury and mere passive negligence must be clearly kept in view. Byrne v. New York C. & H. R. R. Co., 104 N. Y. 362. Thus, if the company carelessly back its cars against a person using the track by acquiescence, it will be responsible. Barry v. New York C. & H. R. R. Co., 92 N. Y. 289; s. c., 13 Am. & Eng. R. R. Cas., 615. But if the casualty is caused by an omission merely, and without human agency, as by the neglect to properly fasten cars, which moved and ran against the party injured, there is no liability. Sutton v. New York C. & H. R. R. Co., 66 N. Y. 244; Nicholson v. Erie R. Co., 41 N. Y. 525.

In some States the courts adopt a different view, and hold that passive negligence, or negligence by omission, will render the company liable, provided the omission be the proximate cause of the injury. In Davis v. Chicago & N. W. R. Co., 58 Wis. 646; s. c., 15 Am. & Eng. R. R. Cas. 424, the negligence consisted in leaving on the defendant's track, unattended, an engine fired up, with water in the boiler, which exploded and injured plaintiff, who was walking on defendant's track at a place where the public had for many years been accustomed to pass. It was held that plaintiff could recover for the negligent omission of defendant's servants. So, too, the negligent omission of the company to remove a signal torpedo which had been deposited at a place where the public had long been accustomed to cross the track, although there was no public highway at the place, was sufficient to give a cause of action to a person who was injured by its explosion. Harriman v. Pittsburgh, C. & St. L. R. Co. (Ohio), 32 Am. & Eng. R. R.

Cas. 37.

Mere acquiescence in use of track, however, is held by some cases not to be sufficient to give the persons going upon the track the character of licensees, and that there must be in addition some inducement or invitation to the public, before the company will owe them any duty. Illinois Cent. R. Co., v. Hetherington, 83 Ill. 513; Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500; Murray v. McLean, 57 Il 378; Stewart v. Pennsylvania R. Co. (Ind.); 14 Am. & Eng. R. R. Cas. 679; Wright v. Boston & A. R. Co., 142 Mass. 296; s. c., 28 Am. & Eng. R. R. Čas. 652; Johnson v. Boston & M. R. Co., 125 Mass. 75; Gaynor v. Old Colony & N. R. Co., 100 Mass. 208; Carleton v. Franconia, I. & S. Co., 99 Mass. 216; Sweeny v. Old Colony & N. R. Co., 92 Mass. (10 Allen) 368.

In keeping with this doctrine, it has been held that a person using a railroad depot which extends between two streets, simply as a means of travel, and for the purpose of saving time, is not entitled to the privileges of a licensee, even though the public were in the habit of so using the depot, and he himself had a stop-over ticket entitling him to leave the city by a train departing from such depot. Johnson v. Boston & M. R. Co., 125 Mass. 75. If, however, the company construct and maintain the planking usually found

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