heard, his contributory negligence will defeat a recovery. Hughes
v. Galveston, etc., R. Co. (Tex.).
Contribuiory negligence. If by the exercise of reasonable care an acci-
dent might have been avoided the company is liable for injuries
sustained by a trespasser although he was guilty of contributory
negligence. Troy v. Cape Fear, etc., R. Co. (N. Car.). 13.
Contributory negligence: if deceased was guilty of, there can be no
recovery unless defendant's servants, after discovering him, or after
they might have discovered him failed to use proper means to avoid
injuring him. Guenther v. St. Louis, etc., R. Co. (Mo.). 47.
Contributory negligence. It is contributory negligence for a person
who had passed the point where he was struck daily, to step upon
the track with the view unobstructed and continue to walk on with-
out looking or listening. Guenther v. St. Louis, etc., R. Co. (Mo.).
47.
Contributory negligence. Where deceased, as soon as she heard the
whistle sound, commenced to run along track, and the train struck
her and killed her, held, that the want of ordinary care on the part
of the deceased was the proximate cause of her death. Houston v.
Vicksburg, etc., R. Co. (La.). 76.
Contributory negligence. Where those in charge of a train are guilty of
reckless negligence, question of contributory negligence does not
arise if the accident might have been prevented by the exercise of
reasonable diligence. Battishill v. Humphreys (Mich.). 69.
Deaf mute. If the engineer gives signals he has a right to expect the
trespasser to leave the track, and the company will not be liable for
his death, though the engineer when he first saw him had time to
stop the train and the trespasser was a deaf mute. Nichols v.
Louisville & N. R. Co. (Ky.).
Deaf mute, infants, etc.
Deaf mute: injury to. 38 n.
Deafness. Notice to conductor of deafness of plaintiff who was travel-
ling along the track; evidence of, held inadmissible as plaintiff's
own evidence established contributory negligence on his part.
Kennedy v. Denver, etc., R. Co. (Col.). 40.
Deaf person walking along track. 38 n.
Duty of company. If the person who is injured negligently trespassed
on the track and nothing contravened to relieve the act of its culp-
ability, his negligence contributed directly to his injury, and the
company did not owe him the duty of keeping a lookout. Galves-
ston, etc., R. Co. v. Ryon (Tex.). 30.
Duty of company. The company is liable if it discovers a trespasser on
the track and fails to use reasonable diligence to prevent the train
from running over him. Galveston, etc., R. Co. v. Ryon (Tex.).
30.
Duty of engineer. It is the duty of the engineer to keep a lookout to
warn trespassers and to use ordinary care to prevent any accident.
Virginia Midland R. Co. v. White (Va.). 22.
Evidence. Signals. Where several witnesses who were present state
that signals were given, and headlight was burning, testimony of
witness who lived some distance away, that the bell was not ringing
nor headlight burning, held, properly excluded. Hughes v. Galves-
ton, etc., R. Co. (Tex.). 66.
Failure to look and listen. 58 n.
Failure to look and listen held to be the proximate cause of the death
of a trespasser who, after walking alongside of the track, attempted
to cross without looking and listening, even though engineer might
have been negligent in failing to ring the bell. Schilling v. Chicago,
etc., R. Co. (Wis.). 60.
Gross carelessness. In an action for killing a child who had wandered
on to track, held, that the facts were sufficient to show that the
killing occurred through the gross negligence of those running the
locomotive. Reilly v. Hannibal & St. Jo. R. Go. (Mo.). 81.
Gross negligence, Walking along track in the dark, not knowing
whether train is due or not, and without looking or listening, is gross
negligence. Central R. & B. Co. v. Smith (Ga.). I.
Injury to trespassers on track: liability for. 5 n.
Intoxication. In action by a widow to recover for the death of her
husband, held, that the admission in evidence of plaintiff's remark
"that he always went on the track when drunk," was a harmless
error. Hughes v. Galveston, etc., R. Co. (Tex.). 66.
Licensee duty of company to, 20 n.
Licensees. Where the company has allowed its track to be used for a
number of years, a person using the track is a licensee, and the
company is bound to exercise prudence towards him. Virginia Mid-
land R. Co. v. White (Va.). 22.
Mental condition. The fact that the person killed was rendered men-
tally incapable of saving himself by his appalling situation will not
relieve him from the imputation of contributory negligence. Hous-
ton v. Vicksburg, etc., R. Co. (La.). 76.
Minor crossing track. Where there is evidence to show that no look-
out was kept, and it is not claimed that any warning was given,
question whether plaintiff used due care, or whether accident was
caused by defendant's negligence, is properly left to jury. Houston,
etc., R. Co, v. Boozer (Tex.). 63.
Pennsylvania doctrine. 58 m.
Permission of the company. A railroad company having by long con-
sent allowed the public to pass along a trestle, persons doing so are
not trespassers. Troy v. Cape Fear, etc., R. Co. (N. Car.). 13.
Proximate cause. Where deceased while walking along track was run
over by yard engine running at excessive speed and giving no sig-
nal, held that the negligence of the company was the proximate
cause of the injury, and that plaintiff was entitled to recover.
ginia Midland R. Co. v. White (Va.).
Recovery under statute. Under Georgia statue giving a right to re-
cover partial damages where person injured has been guilty of con-
tributory negligence, plaintiff cannot recover if he has trespassed
upon track and been grossly negligent. Central R. & B. Co. v.
Smith (Ga.), I.
Ringing of bell and sounding of whistle. 56 n.
Rule under Kentucky and Tennessee statutes. 58 n.
Signal. Company is not rendered liable for death of trespasser on
accounts of its failure to ring bell if deceased was guilty of con-
tributory negligence in not paying heed to passing trains. Guen-
ther v. St. Louis, etc., R. Co. (Mo.). 47.
Speed. No rate of speed is negligence per se.
Speed. Statutory limit. Where an ordinance limits the rate of speed
in passing over crossings it is error to instruct the jury that if the rate
of speed exceeded the limit, that would be negligence if the injury
was caused to plaintiff between crossings. Central R. & B. Co. v.
Smith (Ga.). 1.
Trespasser must guard not only against negligence which he might dis-
cover in time to avoid the consequence, but also against ordinary
danger of their being negligence which he might not discover until
too late. Central R. & B. Co. v. Smith (Ga.). 1.
Trespassers on railway track. 55 n.
Use of right of way as foot-path. 20 n.
TURN-TABLE. See CHILDREN.
Louisiana code. Action may be brought to recover damages for wrong-
ful killing in the parish where the damage was done. Houston v.
Vicksburg, etc., R. Co. (La.). 76.
WATER. See BRIDGE; SURFACE WATERS.
Continuing nuisance. Where the erection of a bridge causing overflows
is a continuing nuisance, in consequence of which a recovery is
limited to damages accrued, a judgment in one action is no bar to
a second action. Omaha, etc., R. Co. v. Standen (Neb.). 179.
Flooding. Construction of road. After the construction of an embank-
ment, a wind storm carried the water over the land as far as the
embankment, where its flow was impeded and it was dammed back.
Held, that the engineeer having been informed of the danger of
constructing a solid embankment, the company was liable for in-
juries caused. Sabine & E. T. R. Co. v. Wood (Tex.). 190.
Injury to crops.
Variance. In an action for injury to crops where the
acts of negligence alleged are the construction of the road-bed
adjoining the lands, evidence that the road was negligently con-
structed at a point several miles above plaintiff's farm, which caused
the water to flow on to plaintiff's land, is inadmissible. Gulf, etc.,
R. Co. v. McGowan (Tex.). 210.
Overflow. Bridge embankment. Where an embankment as an ap-
proach to a bridge across a ereek is constructed, the company must
leave a sufficient opening for the water flowing along the creek so
as to prevent injury to adjacent lands, but is not bound to provide
against damages caused by extraordinary floods. Gulf, etc., R. Co.
v. Pool (Tex.). 187.
Overflow. Defective bridge. Where a bridge is so constructed as to
form an unlawful obstruction and cause an overflow of the river,
no right of action accrues to the land owner until he sustains an
actual injury caused by such obstruction. Omaha, etc., R. Co. v.
Standen (Neb.). 179.
Overflow. Measure of damages. In an action for injury to crops
through an overflow, the measure of damages is the market value
of the crops at the time they were destroyed, and the injuries to the
land. Gulf, etc., R. Co. v. Pool (Tex.). 187.
Overflow on land: measure of damages for. 196 n.
Overflow. Res adjudicata. In an action for overflowing land, caused
by the improper construction of bridge, a judgment in a former
suit is no bar to a recovery for injuries subsequently sustained.
Chicago, etc., R. Co. v. Schaffer (Ill.). 174.
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