at a crossing, and station a flagman to warn people using the crossing, it will be deemed to have held out an inducement or invitation to the public to cross its track at that place, although in fact no highway exists there. Sweeny v. Old Colony & N. R. Co., 92 Mass. (10 Allen) 368. See also Wright v. Boston & A. R. Co., 142 Mass. 296; s. c., 28 Am. & Eng. R. R. Cas. 652; Murphy v. Boston & A. R. Co., 133 Mass. 121; s. c. 14 Am. & Eng. R. R. Cas. 675.

VIRGINIA MIDLAND R. Co.

V.

WHITE'S ADMR.

(Virginia Supreme Court of Appeals, Feb. 16, 1888.)

Trespasser on Track 1- Negligence Proximate Cause. - In an action by an administrator to recover damages for the death of his intestate, it appeared that the deceased had been employed repairing a house occupied by one of the defendant's employees, and belonging to the company; that the only means of access to the house was along defendant's track; that deceased, while returning from such house, stepped off the side track on to the main track to avoid a train; that a yard-engine and tender which were not in view when he did so, backed along the track in the direction in which he was moving, at a speed in excess of that limited by the ordinance of the municipality; that the engineer did not look out, and no warning was given by whistle or otherwise. Held, that the negligence of the company and its servants was the proximate cause of the injury, even though the deceased may not have been without fault, and that plaintiff was entitled to recover. Same Duty of Engineer Lookout Warning. It is the duty of a railway engineer to keep a prudent lookout upon the track, to warn trespassers of approaching danger, and to use ordinary care and diligence to prevent any accident.

-

Same Licensee - Duty of Company - Where the only access to a house is by way of railroad track, and the company has allowed the track to be used therefor for a number of years, a person using the track for such purpose is not a trespasser, but a licensee; and the company is bound to exercise ordinary care and prudence towards him.2

Same Excessive Damages - Amount. A brick-mason, who was killed while lawfully upon a railroad track, left a widow and a number of children. In an action against the company by his administrator, held, that a verdict for $5,000 was not excessive.

ERROR to Lynchburg Corporation Court.

Action by the sheriff of Amherst County, as administrator of W. H. White, to recover damages from the Virginia Midland Railway Company for negligently killing his intestate. opinion states the case.

1 TRESPASSERS ON TRACK. See post Guenther v. St. Louis, I. M. & S. R. Co.

2 DUTY OF COMPANY TO LICENSees. See ante Troy v. Cape Fear & Y. V. R. Co.

The

Kirkpatrick & Blackford for plaintiff in error.

Edward S. Brown, P. W. McKinney, and J. P. L. Fleshman for defendant in error.

Facts.

LEWIS, P. — This was an action in the Corporation Court of the city of Lynchburg, brought under the statute, to recover damages for the alleged negligent killing of the plaintiff's intestate by the defendant, the Virginia Midland Railway Company. The deceased was killed by being run over by a yard-engine of the defendant, in its yard, within the corporation limits of Lynchburg, on the 12th of May, 1885. At the trial there was a verdict for the plaintiff for $5,000 damages, whereupon the defendant moved to set aside the verdict, and for a new trial, on three grounds: First, because the verdict was contrary to the law and the evidence; second, because the court. had misdirected the jury; and third, because the damages awarded were excessive. But the court overruled the motion, and gave judgment on the verdict, whereupon the defendant obtained a writ of error and supersedeas. The bill of exceptions contains a certificate of the evidence, which was conflicting, and all of which was parol, so that, in passing upon the questions of fact in the case, we can look to the evidence of the plaintiff only. And unless the verdict, when viewed in this light, be plainly wrong, the judgment must be affirmed, provided the exceptions to previous rulings of the court in the progress of the trial be not well taken. It appears from the record, that, on the morning of the day on which he was killed, the deceased went to the house of a Mr. Field, in Lynchburg, where he had engaged to do certain work as a brick-mason. He was a resident of Amherst County, and went to Lynchburg the previous day. He was a brother-inlaw of Mrs. Field, and frequently visited her. Field was an employee of the defendant company, and occupied one of its houses, rent free, where he boarded a number of the company's hands. The house is situate on the company's land, at the foot of a steep bluff. A short distance north of it, and around the bluff, is the railroad bridge across James River, the northern boundary, at that point, of the city; and about a quarter of a mile south of it is the union depot in the city. The house fronts immediately on the company's tracks, at which point there are four tracks, three side tracks and the main track. There is no other footpath from the house, nor, indeed, from the railroad bridge, to the depot, than over these tracks, which, it seems, have been used for years by pedestrians going from the Field house and other places in its vicinity, to the depot and other business portions of the city. This user by the public has been with the acquiescence of the company. Without passing over the tracks the Field

house is virtually inaccessible. Beyond the curve, and near the bridge above mentioned, is a water-tank, which, owing to the bluff, is not in sight from a point on the tracks opposite the Field house. Soon after arriving at the house, the deceased inquired for Mr. Field, and was informed that he had gone down the track in "the direction of the sand-house" near the depot; whereupon he started out to find him. He stepped on one of the side tracks in front of the house, and walked in the direction of the sandhouse, but had not gone far when, seeing a freight-train moving northward and approaching him on the same track, he got upon the main track, and, after proceeding on the latter track about 70 yards, he was suddenly struck and instantly killed by a yardengine and tender moving backwards in the direction he was walking, the tender being in front. This engine was at the water-tank above mentioned when the deceased got upon the track at the Field house, and consequently was not then visible to him. And, according to the evidence for the plaintiff, no signal was given, by ringing a bell or otherwise, to warn persons of its approach, either when it left the water-tank, or in coming around the curve, or afterwards at any time before the deceased was killed. One of the plaintiff's witnesses, who says it "thundered" by him, about 30 or 40 yards from the deceased, testifies as follows: "I do not think the engineer and fireman on the engine were aware that he [the deceased] was on the track. I don't think they saw him. I did not see them looking out towards him. There was no watchman on the tender, and neither bell was rung nor whistle blown. I had to be pretty peart myself to get out of the way." The same witness also testifies, "I knew the track pretty well. Persons were in the habit of passing along it very frequently. They passes mighty nigh, as much so as on the streets. Persons from Amherst were in the habit of passing along the tracks." He also said, "I know the position of the Field house. I do not suppose it is more than a foot and a half from the step to the outside rail. There was no entrance to the house except from the track, that I know of, because there is nothing but a bluff on the other side. It has been the custom of the people to pass along that track as long as I can recollect. I was well acquainted with the deceased. I think his ordinary faculties were perfectly good. As to his hearing, I have talked to him very often, and I never talked to him louder than to any other person." There is some conflict in the evidence of the plaintiff as to the speed at which the engine was backing when the deceased was killed. Several of the witnesses say it was moving rapidly, one of them estimating its speed at about the rate of 18 or 20 miles an hour; another at about 10. The latter estimate, we think, is established as the correct one by the pre

ponderance of the testimony. One of the general ordinances of the city of Lynchburg provides as follows: "Every locomotive. moving upon any railway track in the city shall have attached thereto a bell weighing at least 20 pounds, which shall be rung so long as such engine is moving in the city. Nor shall any such locomotive be moved at a greater speed than four miles an hour."

negligence

This summary of the principal facts established by the plaintiff's evidence shows a clear case for the plaintiff, unless the deceased was guilty of such contributory negligence as to defeat a recovery. The defendant contends Contributory that he was. It contends that it was negligence on of plaintiff. his part not to look and listen for the approaching engine, but there is no evidence that he did not. The engine was not in view when he got on the side track, and the evidence does not show that it had rounded the curve and come in view when he left the side track and got on the main track. He had a right to rely on the performance of their duties by the agents of the defendant, and to suppose that in a frequented place within the city, limits, as the evidence shows the company's tracks in the vicinity of the fatal spot to have been, they would obey the ordinance above mentioned, both as respects the signals and the speed it prescribes. By their failure to do so, they doubtless lulled him into a fatal belief of security, and there can be but little doubt, that, had they performed their duties, the deceased would not have been injured. It was gross negligence on the part of the servants of the company in charge of the yard-engine to have neglected to give the necessary signals, and to have moved a backing engine, with a tender before it, at the high rate of speed at which the evidence shows the engine was being propelled when the deceased was killed. They ought to have exercised greater precaution to avoid danger to human life, in such a locality; and for their failure to do so, the company is liable. In other words, their negligence was the proximate cause of the injury, even though the deceased may not have been entirely without fault. Railroad Co. v. State, 29 Md. 421.

Instructions.

No recovery un

It is contended, however, that the court below erred in refusing to give to the jury certain instructions asked for by the defendant, and in giving certain other instructions in lieu thereof. The defendant asked for eight instructions, all of which, except the second, were refused. The first is as follows: "If the jury believe, from the evidence, that the plaintiff's intestate was killed by the engine of the defendant company while he was walking on one of the tracks of the defendant, in its yard in the city of Lynchburg, the plaintiff cannot recover for such injury

less engineer could have pre

vented accident.

unless he proves to the satisfaction of the jury that the engineer controlling the engine by which the deceased was killed, after he discovered the danger in which the deceased was placed, could, by the use of ordinary care, have prevented the accident.' This instruction was properly refused. Its vice is, that it ignores the duty of the engineer, or of those who were controlling the engine, to have exercised ordinary care and diligence in keeping a lookout to avoid injuries to the deceased; and, if given, would have in effect told the jury that, notwithstanding the engineer may have been guilty of gross negligence in running the engine, yet the company was not liable if, after discovering the deceased, he used ordinary care to prevent the accident. Such is not the law. It was the duty of the engineer to use ordinary care, not only after discovering the dangerous position of the deceased, but in keeping a lookout to warn him of the approaching danger. The law applicable to such a case is accurately laid down in Tuff v. Warman, 5 C. B. (N. S.) 573, where the qualification of the general rule relating to the effect of contributory negligence is thus stated: "Mere negligence, or want of ordinary care or caution, would not, however, disentitle him [the plaintiff] to recover, unless it were such that but for that negligence, or want of ordinary care and caution, the misfortune could not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequence of the neglect or carelessness of the plaintiff." This statement of the law, though it has been criticised and disapproved of by some courts, notably in Murphy v. Deane, or Mass. 455,- has received the sanction of the House of Lords in subsequent cases, and is undoubtedly established doctrine of this court. Railroad Co. v. Anderson's Admr., 31 Grat. 812; Dun v. Railroad Co., 78 Va. 645; s.c., 16 Am. & Eng. R. R. Cas. 368; Railroad Co. v. Moose, 3 S. E. Rep. 796. And if in any of the decisions of this court there may be any language in apparent conflict with the doctrine, such language must be construed with reference to the particular circumstances of the cases with which the court was dealing.

The second instruction asked for by the defendant was given by the court, and will be referred to presently.

The third instruction asked for is as follows: "The defendant corporation has the legal right to the full, free, exclusive, and

Same. Deceased not a trespasser. Licensee.

uninterrupted use of its track and yards for the conduct of its business; and strangers who go into said yards and upon such tracks for their own convenience, assume all the risks of injury which may arise therefrom, and are bound to use the highest degree of care and caution to avoid such injury; and, if so injured, no damages can be recovered therefor, unless it be