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direction from which he had reason to expect the approaching train? Can we say that an ordinarily prudent man, with the same knowledge of the time when the train was due, and having lived so near the railroad at that place so long a time, would not have looked or listened before crossing the track? He took no precaution, and used no means whatever, to avoid the danger. He used no care and exercised no prudence whatever. He might as well have been blind and deaf. Did not his own want of common care and ordinary_prudence contribute to the injury that resulted in his death? It seems to us that this is one of the clearest cases for the application of the rule that it was his duty to have looked or listened before he attempted to cross over the track, a place of so much risk and danger. If he had looked back at any time within the distance of that 40 rods, and especially before he turned to cross over the track, he would have saved himself from death. The cases in this court touching this question are sufficiently numerous and to the point, without at this time concerning ourselves about cases elsewhere. The last case in which this duty to "look or listen" has been considered, and which is cited by the learned counsel of the appellant with the positive assurance that it is authority in point against this nonsuit, is that of Hoye v. Railway Co., 67 Wis. 1. In that case the circumstances are very peculiar, and quite different from those of this case in most all respects. It is sufficient to cite the language of Mr. Justice Cassoday, in the opinion in that case, to show its entire inapplicability to this. He said, "Undoubtedly she was bound to use her eyes in looking, and her ears in hearing, and to act prudently upon the knowledge thus acquired. . . . This being the fixed rule of law, it cannot be conclusively presumed that Mrs. Hoye did not, at the time and place in question, look and listen, and prudently act upon the knowledge thus acquired." In this case, it can be conclusively presumed that the deceased did not look or listen; for, if he had done so, he would most certainly have avoided the danger. There can be no other possible conclusion. It will be noticed, that in that case the rule is restated and re-affirmed, that a person placed in such circumstances must use his eyes to look and see, or his ears to listen and hear, the approaching train, or be guilty of such a want of care and prudence, and of such contributory negligence, as to preclude a recovery. Delaney v. Railway Co., 33 Wis. 70; Kearney v. Railway Co., 47 Wis. 144; and Williams v. Railway Co., 64 Wis. I; s. c., 23 Am. & Eng. R. R. Cas. 274, are closely in point. In this last case, the counsel of the respondent has collated numerous decisions in this and other States

affirming this rule. See also Rothe v. Railway Co., 21 Wis. 256; Langhoff v. Railway Co., 23 Wis. 43; Haas v. Railway Co.,

41 Wis. 44. If we should hold that the deceased was not guilty of contributory negligence in this case, it would virtually overrule all of the above cases. We think that the Circuit Court did not err in granting a nonsuit in the case. The judgment of the Circuit Court is affirmed.

Taylor, J., dissents.

HOUSTON & TEXAS CENTRAL R. Co.

V.

BOOZER.

(Texas Supreme Court, April 28, 1888.)

Action for Personal Injuries Damages Infant Instructions. In an action by an infant to recover damages for personal injuries, an instruction by the court that the plaintiff, who was a minor, and living with his mother, would be entitled to recover for his diminished capacity, if any, to labor and earn a livelihood, although excepted to, will not be ground for reversal where there is no complaint that the verdict of the jury was excessive.

Same - Persons crossing Track - Lookout - Conflict of Evidence.Where there is evidence tending to show that no lookout was kept upon the train, though upon this point there is a conflict of evidence, and it is not claimed that there was any warning given of the approach of the train other than such as would result from its movement, the question whether the plaintiff, a minor, used due care in crossing the defendant's track, or whether the accident was caused by the defendant's negligence, is properly left to the jury.

APPEAL from Grayson County District Court.

Action by John H. Boozer, a minor, by his next friend, against the Houston & Texas Central Railway Company, to recover damages for injuries sustained by plaintiff, through defendant's negligence. Judgment for plaintiff, from which defendant appeals. The opinion states the case.

R. De Armoud for appellant.

W. W. Wilkins and Woods & Cunningham for appellee.

as to measure of damages.

STAYTON, C. J.-This action was brought by appellee, through his next friend, to recover damages for an injury alleged to have been caused by the negligence of the employees of the appellant. At the time of the injury the appel- Instruction lee was a child in his tenth year, and he was injured while attempting to cross the railway track. The first assignment of error is as follows: "The court erred in the fifth paragraph of its charge to the jury, wherein it is stated by the court to the jury, that, in estimating the amount of damages

that plaintiff might recover, the jury might consider plaintiff's diminished capacity, if any, to labor and earn a livelihood, for the following reason: the plaintiff is a minor. The evidence shows that he was living with his mother at the time of the injury, and still is. She is therefore entitled to his earnings during minority; that his father is dead, and that his mother has now a suit pending against defendant for damages occasioned plaintiff from the same accident." The part of the charge complained of, considered with relation to an adult seeking to recover for an injury to himself, would be strictly correct; but in the case in which it was given, the court should have limited the liability for damages resulting from diminished capacity to labor, caused by the injury, to the period after the appellee's majority; for, until that period was reached, the appellee would not be entitled to the proceeds of his own labor, and would not be entitled to damages on account of his diminished capacity. We are of the opinion, however, that we would not be authorized to reverse the judgment on account of this charge, even if it was not the duty of the appellant to have asked a proper charge in this respect, for there is no complaint made that the verdict of the jury was excessive. The only effect the charge could have had would have been to cause an excessive verdict, and it in no way had a bearing on the question whether the appellant was liable at all under the facts.

The controversy in the lower court, and here, is as to whether, under the facts, the appellant is liable at all. The appellee was

Injury to person crossing track. Conflict of evidence.

injured while attempting to cross the track at a path leading from the thickly populated part of the city of Denison to houses on the opposite side of the railway, which seems to have been frequently used by many people for a considerable period without objection. In such a case, as said by the Supreme Court of Pennsylvania, "if an owner of property has been accustomed to allow to others a permissive use of it, such as tends to produce a confident belief that the use will not be objected to, and therefore to act on the belief accordingly, he must be held to exercise his rights, in view of the circumstances, so as to not mislead others to their injury without a proper warning of his intention to recall the permission." Whether, in view of the facts attending the use of the path, the railway company used that care which it ought to have used to guard persons from injury, was a question for the jury, and there was evidence tending to show that no lookout ahead of the train was exercised, though upon this point there was a conflict of evidence; but that there was any warning given of the approach of the train other than such as would result from its movement, is not claimed. Although

it might not be the statutory duty of a railway company, at such a place, to give the signals of an approaching train, as is required at a public crossing, yet the failure to do so might be negligence. The engineer stated that he was looking ahead, and that he did not see the boy at all; but from the other evidence in the case the jury may have come to the conclusion that his statement was not true. The degree of care that should be used must be proportioned to the nature of the act performed, the place where performed, and the extent of danger and injury likely to result from a failure to use due prudence and care in avoidance of injury to others. We cannot say, under the evidence in this case, that the employees of the appellant used that care which the law requires.

This cause was before this court at a former term, when a judgment in favor of the appellee was set aside, on the ground that it appeared from the evidence that the injury resulted from the contributory negligence of the appellee. Another jury has passed on the case, under evidence tending to relieve the appellee from the charge of contributory negligence, which was not before the jury on the former trial. As the case now stands, were the appellee an adult, it seems to us the verdict should be set aside; but we cannot say that the same degree of care should be exacted of a boy of the appellee's age as must be of an adult. Whether he used that care in attempting to cross the track, and in ascertaining the danger that attended his act, incumbent on one of his age, was a question submitted to the jury by a charge which, on this point, and all others bearing on the question of the liability of the appellant at all, was as favorable to the appellant, and as exacting on the appellee, as the facts would have warranted. Two juries have passed upon the facts; twice have judges of the District Court refused to grant new trials. The appellee was of tender years; there was evidence from which the jury might find the employees of the appellant did not use that care which, under the circumstances, should have been used; and the jury were in position to determine whether the acts of the appellee were, in one of his age, the exercise of such care as such a person should exercise. The rules by which this court is necessarily governed in setting aside verdicts on the ground that they are contrary to the evidence, have been too often announced now to require repetition. clear to the granting of such relief in this case, and the judgment must be affirmed. It is so ordered.

34 A. & E. R. Cas. - 5.

We cannot see our way

HUGHES

ย.

GALVESTON, HOUSTON, & SAN ANTONIO R. Co.

(67 Texas, 595.)
Intoxication

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Trespasser on Track 1 Evidence-Prejudice. - In an action by a widow to recover damages for the death of her husband, who had been killed on defendant's track, plaintiff was asked whether, when informed of the injury, she did not say that “he always went on the track when drunk.” An objection to the question was overruled, and plaintiff stated she made no such remark. Held, that, in the absence of objection to testimony tending to show that she did make the remark, the overruling of the objection to the question was a harmless error.

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Same Headlight-Ringing Bell - Evidence-Competency. In such action, several witnesses who were present when the accident occurred, stated that the bell on the locomotive which killed plaintiff's husband was ringing for some distance prior to reaching the point where deceased was first seen, and so continued, and that the headlight was burning. Held, that, in this state of the evidence, the testimony of a witness who lived at some distance from the place of the accident (but how far, not shown), that the bell was not ringing, or the headlight burning, when the locomotive passed his house, was properly excluded.

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Same-Contributory Negligence. If a person fully capable, mentally and physically, to take care of himself, enters upon and remains on a railroad track until he is injured by an approaching train or locomotive, which he might have seen and heard by the use of his senses, the contributory negligence of such person will defeat a recovery.

APPEAL from District Court, Bexar County.

Action to recover damages for the negligent killing of plaintiff's husband. Verdict and judgment for defendant. Plaintiff appeals.

The opinion states the case.
Teel & Haltom for appellants.
Waelder & Upson for appellee.

STAYTON, J.-This action was brought by the widow of Michael Hughes, in her own right, and for the benefit of the minor children of herself and her deceased husband. She seeks to recover damages for an injury which she alleges was caused by the negligence of the railway company and its servants, that resulted in the death of her husband. It is now

Facts.

1 TRESPASSER ON TRACK. See ante, Kennedy v. Denver, S. P. & Pac. R. Co., 40, and note 47; Guenther v. St. Louis, I. M. & S. R. Co., 47, and note 55.

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