thereof, is not, in the absence of any ordinance requiring it, negligence per se, it must be conceded, considering the longcontinued and well-known situation of affairs on defendant's road-bed at the place where deceased was struck, whether that point is within the limits of the street proper or not, the exercise of reasonable care and caution required that the bell should be continually rung on the engine of a train approaching that place, at that hour, at a speed of from 15 to 20 miles an hour; and the failure of defendant's servants to so keep the bell ringing, if found to be a fact, would be an act of negligence which may have been a cause, contributing directly to Guenther's death, for the injury to plaintiff resulting from which a recovery might be had, but for the further fact that the deceased, who the evidence shows was a man of mature years, in possession of all his faculties, and who for some time had been working in a quarry alongside the track, passing the point on the track where he was struck, daily, at or about the time of day at which the accident occurred, going to his work, and who must have known that this train was due about that time, instead of walking between the two tracks, where the evidence shows there was ample space to walk with safety, even when trains were passing each other on these tracks, on a bright morning, in broad daylight, entered upon the track, the view of which was unobstructed for several hundred yards, and continued to walk on it, without looking or listening for the approaching train, or paying any attention whatever to his situation, was also guilty of such negligence, contributing directly to his death, as would prevent a recovery; and the verdict of the jury must have been for the defendant, unless it further appeared that, after the deceased had by his negligence exposed himself to peril, the defendant's servants became aware of his perilous situation, or by the exercise of ordinary care might have discovered it in time to have avoided injuring him, and thereafter, immediately before and up to the time of actual collision, failed to use the means within their power, with a proper degree of care, consistent with the safety of those on board the train, to avoid killing or injuring him (Donahoe v. Railway Co., 91 Mo. 357; s. c., 28 Am. & Eng.' R. R. Cas. 673, 3 S. W. Rep. 848; Donahoe v. Railway Co., 83 Mo. 543; Bergman v. Railway Co., 88 Mo. 679; Kelley v. Railroad Co., 75 Mo. 138; Harlan v. Railway Co., 65 Mo. 22); and what would be due care, under such circumstances, would necessarily be a question for the jury under proper instructions. The plaintiff had no case on the evidence, unless the facts brought it within this qualification of the general rule on contributory negligence, and the court properly so declared in the first instruction; and if the case had been submitted to the jury

Same. Charges

on this instruction, in connection with the third and the defendant's refused instruction, the real and only issue in the case might be said to have been in a manner submitted to the jury; and while, in the first instruction, the jury were to jury. told, in effect, that although the deceased was guilty of such contributory negligence as would prevent a recovery, unless they found the facts to be as stated in the third instruction, they were also told, not only if they found the facts as stated in the third instruction to find for the plaintiff, but if they found them to be as stated in the second instruction to find for the plaintiff. By the use of the disjunctive conjunction in the first instruction, it is made possible to read the first and second instructions together as one instruction, or the first and third together as one instruction; but it is impossible to so read and understand the first, second, and third together as one instruction. Reading the first and second together, the jury were in effect told that, although the deceased had been guilty of negligence contributing directly to his death, yet if they found from the evidence that no bell was rung while the locomotive was passing over the street or road, immediately before the accident, and that the death of said Jacob Guenther directly resulted from the omission to sound the bell, they should find for the plaintiff. In other words, the jury were told, "Here are two acts of negli gence, one of the plaintiff in being on the track, the other of defendant in not sounding the bell, - concurring at the same time and place, the result of which is death. Now, if you find that the death resulted directly from the failure to ring the bell, you must find for the plaintiff," - practically ignoring deceased's contributory negligence, without which no death could have happened, by leaving the jury at liberty to select out the defendant's act of negligence, and say that was the direct cause of his death, and to render a verdict accordingly; and under it the jury had only to find that the bell was not being rung immediately before and at the time Guenther was struck, in a publicly travelled street, in order to find a verdict for the plaintiff, notwithstanding Guenther's act of negligence contributed directly to his death. It is not necessary to quote authorities to show that this is not the law. The death of Guenther resulting from the concurrent acts of negligence of defendant in failing to ring the bell, and of himself in being on the track, paying no heed to his situation or approach of trains, nothing further appearing, the verdict must have been for the defendant. In order for plaintiff to recover notwith standing deceased's negligence, a state of facts must have been shown bringing the case within the principle which the court undertook to declare in the third instruction. This reading of the second instruction receives a sort of negative emphasis from

the

the fifth, in which the jury are in effect told that if the servants of the defendant did ring the bell, and exercised ordinary care in the management of the train, and did all they reasonably could, in the circumstances, to stop the train, and avoid the injury, then they should return a verdict for the defendant. In the light of instructions 1, 2, and 5, the jury-might well conclude, that, in order to find for plaintiff, it was only necessary for them to find that the place where Guenther was struck was within the limits of the street, and that the bell was not being rung immediately before he was struck; but in order to find for the defendant, they must find that its servants had been guilty of no act of negligence whatever. This was not a fair presentation of the case to the jury. Nor was the vice of the second instruction cured in any manner by the third. They each presented a separate and independent hypothesis of facts, upon either of which the jury were instructed to find a verdict for plaintiff regardless of the other.

of case exam

ined. Proper method of presenting it to jury.

The evidence of the defendant tended to prove the facts hypothetically stated in defendant's refused instruction, and no Circumstances good reason is perceived why it should not have been given. There would seem to be no difficulty in presenting the issue of fact to be tried in this case properly to the jury. The place where the accident occurred, and the defendant's road-bed along there, cannot, in the common acceptation of the terms, be called a public street, road, or highway; nor are there any public crossings, properly speaking, such as are contemplated in the statute requiring a bell to be rung on approaching them. Nevertheless, for many years a street has been dedicated to public use, running parallel with defendant's track. It may, and probably in some places is, within the limits of that street. However that may be, for years the space alongside the track between it and the bluff has been used by quarry teams, and at places they have been in the habit of crossing the track to get to the river; while the road-bed for years has been made use of by pedestrians, and especially by the workmen in the adjacent quarries in going to and returning from their work. In the morning, about the time this train is passing the point of the accident, large numbers of them are to be found passing over this ground to their work. The track is straight, clear, and unobstructed, and a person on it in plain view to an approaching train from the north for several hundred yards. The servants of the defendant on this train, approaching this point, at this hour, at the rate of speed testified to, while such rate of speed is not unlawful, and while it may not have been their duty absolutely, under the law, to keep the bell ringing, ought to have been at their posts on the alert

watching the track before them, and if the deceased was seen to be walking on the track, apparently unconscious of their approach, to give the alarm by both bell and whistle, and, if these were unheeded, to stop the train, if need be, in time, if possible, with safety to those on board, to prevent running over and killing him; and if his death by these means could have been avoided, and they were not used, the defendant is liable, although the deceased may have been guilty of negligence in entering and walking upon defendant's track, which contributed to his death; and the defendant is alike liable if its servants did not, but, by the exercise of such caution and care as the exigencies of the situation demanded of an ordinarily prudent man, could have discovered the perilous situation of the deceased, and could have made use of the means that would have prevented the injury after such discovery. The theory of the plaintiff, on the evidence, was, that the deceased was and could have been seen on the track by the defendant's engineer and fireman, if they had been at their posts, on the watch, several hundred yards before the engine reached the place where he was struck; that they had plenty of time to give the alarm, observe its effect on the deceased, and, if it failed to alarm him, afterwards to have stopped the train before it reached him, and thus have prevented the tragedy, all of which they failed to

do. The theory of the defendant was, that the deceased stepped upon the track a short distance in front of the engine, was immediately discovered in his perilous situation, and every effort made to stop the train before it struck him, but that the train could not be stopped in time. That was the only issue on the evidence that should have been presented to the jury, and to which, if sharply presented, they could have responded intelligently.

For the error in giving the second instruction, and in refusing defendant's instruction No. 13, without discussing the other instructions, the judgment will be reversed, and the cause remanded for new trial.

All concur.

Trespassers on Railway Track. It is generally held that a railway track is private property at all places except established crossings and public highways, and that all persons, except agents and servants of the company in the discharge of their duty, who go upon the track are trespassers (see Galveston, H. & S. A. R. Co. v. Ryon, ante, p. 30); and particularly is this so where they use the track as a foot-path or thoroughfare on which to walk or travel. See Kansas Pac. R. Co. v. Ward, 4 Colo. 30; Patterson v. Philadelphia, W. & B. R. Co., 4 Houst. (Del.) 103; s. c., 7 Am. Ry. Rep. 207; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510; Sweeney v. Boston & A. R. Co., 128 Mass. 5; s. c., I Am. & Eng. R. R. Cas. 138; Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277; s. c., 12 Am. Rep. 689; Hazen v. Boston & M. R. Co., 68 Mass. (2 Gray) 574, 580; Isabel v. Hannibal & St. J.

R. Co., 60 Mo. 475; s. c., 9 Am. Ry. Rep. 261; McCarty v. Delaware & Hudson Canal Co., 17 Hun (N. Y.), 74; Pittsburgh, F. W. & C. R. Co. v. Collins, 87 Pa. St. 405; Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375; Finlayson v. Chicago, B. & Q. R. Co., 1 Dill. C. C. 579. And a person so intruding upon the track cannot recover on proof of ordinary negligence merely, but must show that he himself used extraordinary care, and was wantonly or wilfully injured by the company or its employees. See Railway Co. v. Monday (Ark.), 4 S. W. Rep. 782; Railroad Co. v. Smith (Ga.), 3 S. E. Rep. 397; Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500; s. c., 22 Am. Rep. I12. See also Kennedy v. Railroad Co. (Colo.), 16 Pac. Rep. 210; Patterson v. Philadelphia, W. &. B. R. Co., 4 Houst. (Del.) 103; s. c., 7 Am. Ry. Rep. 207; May 7. Banking Co. (Ga.), 4 S. E. Rep. 330; Warren v. Chicago, R. 1. & P. R. Co., 68 Iowa, 602; Pennsylvania Co. v. Sinclair, 62 Ind. 301; Nichols's Admr. v. Louisville & N. R. Co., ante, 37; Railroad Co. v. Colman's Admr. (Ky.), 6 S. W. Rep. 438; Morrissey v. Eastern R. Co., 126 Mass. 377; Johnson v. Boston & M. R. Co., 125 Mass. 75; Baumeester v. Railroad Co. (Mich.), 34 N. W. Rep. 414; Donaldson v. Milwaukee & St. P. R. Co., 21 Minn. 293; Scheffler v. Railroad Co., 32 Minn. 125; Strong v. Railroad Co. (Miss.), 3 South. Rep. 465; Isabel v. Hannibal & St. J. R. Co., 60 Mo. 475; s. c., 9 Am. Ry. Rep. 261; Rounds v. Delaware, L. &. W. R. Co., 64 N. Y. 129; s. C., 21 Am. Rep. 597; 3 Hun (N. Y.), 329; 5 T. & C. (N. Y.) 475; McCarty v. Delaware & Hudson Canal Co., 17 Hun (N. Y.), 74; Finlayson v. Chicago, B. & Q. R. Co., 1 Dill. C. C. 579.

Deaf Mutes, Infants, Etc. An exception, however, is made in those cases where the trespasser is a deaf person (see Laicher v. New Orleans, J. &. G. N. R. Co., 28 La. An. 320; Cogswell v. Oregon & Cal. R. Co., 6 Oreg. 417), or an infant who is supposed not to have the faculties requisite for the apprehension of danger, or at least incapable of exercising such faculties with adults, and the railroad company is required to exercise a higher degree of care and caution than in respect to adults. See Meeks v. Southern Pac. R. Co., 56 Cal. 513; s. c., 38 Am. Rep. 67; Schierhold v. Northern Beach & M. R. Co., 40 Cal. 447; Nagel v. Missouri Pac. R. Co., 75 Mo. 653; s. c., 42 Am. Rep. 418; Isabel v. Hannibal & St. J. Co., 60 Mo. 475; s. c., 9 Am. Ry. Rep. 261; Telfer v. Northern R. R. Co., 30 N. J. L. (1 Vr.) 188; Eastern T. &. G. R. Co. v. St. John, 5 Sneed (Tenn.) 524; Evansich v. Gulf, C. & S. F. R. Co., 57 Tex. 126; s. c., 44 Am. Rep. 586.

Ringing the Bell and sounding the Whistle. While it is not the duty of the agents and servants of the railway company, on discovering a trespasser on the track, to ring the bell and sound the whistle (see Zimmerman v. Hannibal & St. J. R. Co., 71 Mo. 476), yet it would seem, that, as a matter of ordinary prudence and care, they should sound the whistle and ring the bell, warning the trespasser of the approaching danger. Finlayson v. Chicago, B. & Q. R. Co., 1 Dill. C. C. 579. But see Harlan v. St. Louis, K. & N. R. Co., 64 Mo. 480; s. c., 17 Am. Ry. Rep. 300.

In Tennessee, and perhaps in some other States, this matter is regulated by statute. In such States railway companies are required to sound the whistle and to use every possible means to stop the train and prevent an accident; and on failure to make such effort, are absolutely liable. See Hill v. Louisville & N. R. Co., 9 Heisk. (Tenn.) 823; s. c., 19 Am. Ry. Rep. 400; Louisville & N. R. Co. v. Robertson, 9 Heisk. (Tenn.) 276; s. c., 20 Am. Ry. Rep. 9; Louisville & N. R. Co. v. Connor, 9 Heisk. (Tenn.) 19; s. c., 19 Am. Rep. 368.

The reason for this rule would seem to be, that, although the person injured was guilty of negligence in going upon the track, his negligence does not exonerate the railroad company from the use of ordinary and proper care. See Kansas Pac. R. Co. v. Cranmer, 4 Colo. 524; Chicago, B. & Q. R. Co. v. Payne, 49 Ill. 499; Pittsburgh, F. W. & C. R. Co. v. Bumstead, 48 Ill. 221;