shown that the defendant company, after it discovered the danger, could have prevented the injury by the use of ordinary care and diligence." The last proposition contained in this instruction is obnoxious to the objection already indicated in respect to the first instruction, and is, moreover, objectionable in another point of view, which is this; namely, that it in effect assumes that the deceased, in entering the yard and walking on the tracks of the defendant, was a stranger, by which evidently was meant a trespasser. The evidence does not tend to show that he was; so that in this particular the instruction was not relevant to the case, and an irrelevant instruction ought not to be given. Railroad Co. v. Moose, supra, and cases cited. The evidence clearly shows that the deceased was not a trespasser, but a licensee; and whatever duty a railroad company may owe to a trespasser on its tracks, Railroad Co. v. Harmon's Ádmr. (not yet reported), — a different rule applies to a licensee. to the latter the rule is, that the company is bound to exercise ordinary care and prudence towards him, for the license creates this duty. Beach, Contrib. Neg. sect. 17, p. 54. This subject was very fully and ably considered by the Supreme Court of Wisconsin in the recent case of Davis v. Railway Co., 58 Wis. 646, 15 Am. & Eng. R. R. Cas. 424. In that case the plaintiff, while on the premises of the defendant company as a licensee, was injured by the explosion of a steam-boiler. The explosion was occasioned by the negligence of the defendant's agents, and it was held that the action was maintainable. The court, after an examination of many of the authorities, recognized the rule above mentioned, saying "that in the case of a mere trespasser the company or its servants have no cause to anticipate that he will be on its track or in the way of danger, and therefore that a mere neglect to keep a lookout may not be such neglect as will render the company liable for running upon and injuring him; but that in a case where the company knows that a portion of its premises is constantly used by the public, with its acquiescence, as a footway, its servants are charged with notice that it will be so used, and they cannot without fault proceed in a manner which must necessarily be dangerous to such persons; and that a plaintiff injured by the failure of the company's servants to observe this duty need not aver and prove gross negligence on their part." And referring to the case of Townley v. Railroad Co., 53 Wis. 626; s. c., 4 Am. & Eng. R. R. Cas. 562, which was an action to recover damages for injuries caused by the negligent running of a switch-engine, it was said, "It was taken for granted in that case, that, although the plaintiff was on the defendant's track simply by its license or acquiescence, yet that it owed a duty to such licensee to exercise

ordinary care in running its trains and engines, and that, if an injury was inflicted by reason of the want of such ordinary care, then the defendant was liable." It was also said, and the remark is applicable to the present case (Acts 1883-84, p. 705, sect. 7), that a statute making it an offence to walk along the track of a railroad company can have no effect in an action for damages against the company where the proof shows that the law has been constantly violated with the knowledge and acquiescence of the company, certainly not as against a licensee who is injured by the carelessness of the company's servants. In Railroad Co. v. Shearer's Admr., 58 Ala. 672, the defendant corporation was backing its train in the city of Opelika, pushing cars ahead of the engine, so that no one on the engine could see ahead of the train. There was no brakeman or other person to keep a lookout ahead; and the plantiff's intestate, walking on the track in the direction the train was moving, was overtaken by the train, run over, and killed. It was held that this fixed the charge of negligence on the company: citing Railroad Co. v. Dougherty, 36 Md. 366; Brown v. Railroad Co., 50 Mo. 461; Railroad Co. v. Triplett, 38 Ill. 483; Beisiegel v. Railroad Co., 34 N. Y. 622. In Railroad Co. v. State, 36 Md. 542, the court said, "There are no circumstances under which the defendant could be relieved of the duty of using ordinary care. What constitutes ordinary care may vary with varying circumstances; but, as a general rule, it is for the jury to determine." In this case the deceased had been killed while walking on the defendant's track. In Isabel v. Railroad Co., 60 Mo. 475, the court said, "Our decisions have been uniform, that, although a person may be improperly or unlawfully on the track of a railroad, still that fact will not discharge the company or its employees from the observance of due care; and they have no right to run over and kill him, if they could have avoided the accident by the exercise of ordinary caution and watchfulness." And it was further said, "Diligence and negligence are relative terms, and depend on varying circumstances. An act may be negligent at a particular place which would not be so at another place and under different circumstances." In that case the action was brought to recover damages for an injury to a child unlawfully on the defendant's track. And in all such cases the question has been held to be whether the defendant has exercised such care as, under the circumstances, the plaintiff had a right to expect; or, in other words, whether the defendant has been guilty of the breach of a legal duty, either in doing or omitting to do a particular act; for it is only where there has been such breach of duty that negligence can be predicated of the act complained of. Railroad Co. v. McKenzie, 81 Va. 71; s. c.,

24 Am. & Eng. R. R. Cas. 395; Railroad Co. v. Stout, 17 Wall. 657. In Finlayson v. Railroad Co., 1 Dill. 579, the plaintiff's intestate was killed while walking as a trespasser on the defendant's track. At the trial Mr. Justice Miller instructed the jury that the agents of the defendant in charge of the train by which the deceased was run over and killed had a right to presume that he was a man of sound mind and good hearing, and that he would take reasonable care to protect himself; but that it was their duty to give fair and reasonable notice of the approaching train by sounding the whistle or ringing the bell, and that, if they delayed doing so until too late for him to get off the track, such delay was negligence. Further citations are unnecessary. Undoubtedly there are cases to the contrary; but the true doctrine applicable to a case like the present is, we think, as we have stated it.

The fourth, fifth, sixth, and seventh instructions which were asked for and refused are faulty for reasons already stated. The court, therefore, did not, err in refusing to give them.

Instruction as to burden of

proof.

The eighth is as follows: "The court instructs the jury that the plaintiff, in order to recover in this cause, is under the burden of proving that the accident which resulted in the death of William H. White was the result of the failure of the defendant company to use ordinary care and vigilance to prevent the injury. If the defendant relies for its defence on the contributory negligence of the plaintiff, the burden of proving such contributory negligence rests on the defendant company. If the plaintiff claims a right to recover in this case, notwithstanding the contributory negligence of said White, on the ground that the defendant company could have prevented such accident notwithstanding such contributory negligence, then the burden of proving that the accident could have been so avoided is on the plaintiff." There is certainly nothing in this instruction which states the law too favorably for the defendant, and it is not easy to see why it should have been refused. The court, however, did refuse to give it; and its refusal would undoubtedly be ground for reversing the judgment but for the fact that in the second instruction asked for by the defendant, and which was given, the jury were substantially told what was asked for in the eighth instruction, and in even more favorable terms for the defendant : so that, by refusal of the court to give the last-mentioned instruction, the defendant has not been prejudiced. "It is well settled, that when instructions are given which cover the entire case, and which properly submit the case to the jury, it is not error to give others, even though in point of law they are correct; though it is safest for the court to give instructions asked for,

when they correctly propound the law, and are relevant to any evidence in the case. Lunatic Asylum v. Flanagan, 80 Va. 110; Laber v. Cooper, 7 Wall. 565; Railroad Co. v. Horst, 93 U. S. 291. The instructions given by the court in lieu of those which were offered by the defendant, and refused, propound the law, when taken as a whole, in accordance with the views already expressed, and need not be more particularly referred to or considered.

Damages not excessive.

It only remains to say that the court did not err in refusing to set aside the verdict on the ground that the damages awarded were excessive. The evidence shows that the deceased left a widow and a number of children, and the question as to the quantum of damages,was a matter peculiarly within the province of the jury. In such a case, therefore, the verdict ought not to be set aside, unless the damages awarded are so excessive as to warrant the belief that the jury were influenced by prejudice or partiality, or were misled by some mistaken view of the merits of the case. Farish v. Reigle, II Grat. 697-722; Benn v. Hatcher, 81 Va. 25; Railroad Co. v. Taffe, 37 Ind. 373.

The judgment is affirmed; Richardson, J., dissenting.

GALVESTON, HOUSTON, & SAN ANTONIO R. Co.

ย.

RYON et al.

(Texas Supreme Court, Feb. 21, 1888.)

Trespasser on Track - Negligence - Duty of Company.-If a person who is injured negligently trespassed on a railroad track, and nothing has intervened to relieve the original act of trespass of its culpability, his negligence contributed directly to his injury, and the railroad company did not owe him the duty of keeping a lookout for his safety, although it would be liable if it had in fact discovered him on the track, and failed to use reasonable diligence to prevent the train from running over him.1

APPEAL from District Court, Fort Bend County.

This suit was brought by the widow and five minor children of John Ryon, deceased, who was struck by an engine while on or near appellant's track, between stations and not at any cross

1 TRESPASSER ON TRACK. Liability for injury to. See ante, Troy v. Cape Fear & Y. V. R. Co.; Virginia M. R. Co. v. White's Admr.; post Guenther v. St. Louis, I. M. & S. R. Co.,

and note.

ing, and so injured that he died. Verdict and judgment for $13,722.50. The following outline of the facts and circumstances attending and surrounding the accident is extracted from appellee's brief, and adopted as correct: On the day he was killed, Ryon, who lived in Richmond, had been gathering corn on the Worthington farm, which lies adjoining and south of appellant's track, and about a mile east from Richmond. A public road leads from Worthington's farm, coming out of his gate crosses the railroad to the north side, and runs in a somewhat roundabout way to Richmond. A shorter way, used by the people around, is by a path from the gate which goes along the edge of the railroad ditch on its south side for some 400 yards, then enters inside the railroad fence, where there is a plank off, and crosses the track to the north, and, running inside the railroad fence, leads into the town, which is just west of the Brazos River. On the day in question it had been raining, and the dirt road, the longer route, was muddy and sticky, while the roadbed was high and dry. Leaving the farm, Ryon started home by way of the path, on foot, and was killed by the passenger-train on top of the embankment, where the path crosses from the south to the north side. An eye-witness stated, that, when struck by the engine, he was standing on the end of a cross-tie, on the south side, facing rather towards Richmond, scraping the mud from his feet, and looking down at his feet. Ryon was deaf, but could hear such a sound as the whistle of an engine, while he could not hear the roar and rumbling of a moving train. The train was moving rapidly, and was behind time. No signal of warning was given, nor was the speed of the train slackened; the train-men stating in excuse for this that no one of them saw Ryon, nor knew he was on the track until his body was flung up by the cow-catcher onto the pilot. From the Brazos-river bridge to where Ryon was killed is 550 yards, and is a straight, open stretch, so that one looking down the track from the bridge could not avoid seeing a man, or even a smaller object, if on the track where Ryon was struck. At the time of the injury the conductor was taking up tickets, the engineer was out on the engine oiling the cups, the fireman was shovelling coal, and no one was watching the track. Ryon was struck at a point just opposite his brother's butcher-pen, through whose field the railroad here runs, and 400 yards from the public crossing at Worthington's gate. It was shown, that, when the engineer is out on the engine, the fireman is in charge of the engine, and is charged with the duty of watching the track ahead; and it also appeared that from Richmond to the next station the railroad runs through farms and fields, with residences and cabins all along, while several public roads cross it