check the speed of the train and ring the bell at a crossing within the limits of the town of Jonesboro, it was negligence; also that a failure to observe an ordinance of the town as to the rate of speed, if they found there was such an ordinance (which question he referred to the jury), would be negligence. He charged them touching that ordinance as if it applied to the whole town; whereas, in looking to the record, we find that the ordinance applies only to the crossings within the town. It was not an ordinance limiting the rate of speed in running all the way from one corporation line to the other, but simply limiting the rate of speed to not exceeding ten miles an hour on the crossings.

omission of

I. The omission of specific acts of diligence prescribed by statute or by a valid municipal ordinance is negligence per se, and the court may so instruct the jury. While negligence Negligence in is, always a question of fact when the law is silent statutory duty. touching the specific act done or left undone, yet, where a statute expressly enjoins an act, the act is then within all degrees of diligence, even the very lowest, and its omission is negligence as matter of law. Whether the prescribed act was done or not in the given case is, of course, by its very nature, a question of fact; but whether it should or should not have been done, the statute settles by prescribing it as a duty. Railroad Co. v. Wyly, 65 Ga. 120; s. c., 8 Am. & Eng. R. R. Cas. 262; Code, sects. 708, 710.

Ordinance limiting speed at crossings.

2. The next point we rule is, that an ordinance limiting the rate of speed in passing over crossings to ten miles an hour does not imply that this rate is not to be exceeded between crossings. The injury occurred between crossings, some sixty-five yards from the nearest, and the ordinance did not apply to that point; yet the judge instructed the jury, that if, at the time the injury occurred, the rate of speed was more than ten miles an hour, that would be negligence, provided there was an ordinance in evidence (as there was) applicable to the town of Jonesboro. This instruction was erroneous, because the ordinance did not apply to the place of the injury, the same not being a crossing.

3. The circumstances of the injury were very striking, and somewhat peculiar considering that there was a recovery. Smith, shortly before day, while it was still dark, got on the railroad track, in Jonesboro, at a crossing, and turned down the track,

Gross negli

gence of plaintiff.

using it for a walk, and had gone only about sixty or sixty-five yards when the train, running at high speed, struck him, threw him off the track, crushed his leg, and injured him seriously. The evidence as to the negligence of the railroad company was somewhat conflicting, but there was an admitted failure to ring the bell when approach

ing and passing over the crossing. Smith, however, was not on the crossing, nor on that side of it which the engine was upon in approaching it; he was on the farther side of the crossing. The train was probably running at a much higher rate of speed than it ought to have run so near to a crossing. There was some evidence tending to show that the speed was low; but grant that it was high, too high, and that there was very great negligence on the part of the railroad company, yet it is manifest that Smith was out of his place at the time he was injured. Grant that the track was often used by persons to walk along it; that there was no objection to such use; that Smith was there by implied or tacit license, he was there under circumstances that required him to have all his senses on the alert for trains, and to get out of the way when any of them approached. It would be flagrantly unreasonable and improbable to presume that he or any one else had the shadow of a right to use the track, especially at such an hour, on any other condition. The train was on its regular schedule time. He quietly walked along upon the track as if it belonged to him; the train struck him, knocked him down, and broke his leg, those on the engine not seeing him or being aware of his presence. It was, at least, as much his business to look for the engine as it was the engineer's business to look for him. The engine was a much larger object than he was; it carried a headlight, and could have been seen as far as he could. not possible for the engineer to have discovered him on the track sooner than he could have seen the headlight. The presence of the engine was more to have been expected by him than his presence was to be expected by the engineer. He had much less reason to be surprised than the engineer had. As matter of fact, to walk along the middle of a railroad track between crossings, when it is dark, and without knowing and remembering whether a train is due or not, and without looking out in both directions for trains that may be due, and without listening attentively and anxiously for the roar and rattle of machinery, as well as for the sound of bell or whistle, is gross negligence.

Duty to corpo

rations.

4. There is very frequently a mistake made in not considering our duties to the absent. Corporations are necessarily absent. They cannot be present otherwise than by a fiction. They are blind and deaf, and have no hands; and they are constrained to transact their business and conduct their operations by means of servants and agents. They are entitled to no more protection than a natural person employing such instrumentalities, but are entitled to as much. If there is any difference upon principle, a fair mind would be disposed to be rather more indulgent towards them, and to treat them like an infirm natural person who, by reason of having deficient

Plaintiff's duty to anticipate negligence.

- a

physical powers of his own, had to employ servants and agents necessarily. But the law places all persons, natural and artificial, simply upon equal terms as to the short-comings of their employees. Everybody knows that servants and agents are prone to be less attentive to the business of employers than men are to their own affairs. Has anybody a right, by an act of gross negligence on his own part, to put an employer to the risk of injuring him by the negligence of a careless servant? You send your servant to do something upon your premises. I have leave, express or implied, to be upon the same premises. By my negligence I get in the way of your servant; he proves to be negligent also, and I am injured. I bring an action, and maintain it, against you for the negligence of your servant. If I am in my right place, and in the use of proper care and diligence, you ought to answer for your servant the same as for yourself; but if I am out of place, and thereby put you to the hazard of your servant approaching me negligently, and hurting me, it ought to be a strong case that would entitle me to recover against you, very strong case. The case before us is very weak. A person, while grossly negligent himself, has no legal right to count on due diligence by others, but is bound to anticipate that others, like he has done, may fail in diligence, and must guard not only against negligence on their part, which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late. Smith shows by his own testimony that he did not discover his danger. If he had been on the crossing, or at any place he was by right entitled to be, he would have been warranted in assuming that the whole world would be diligent in respect to him and his safety; but, as he was engaged in an act of gross negligence himself, he ought to have anticipated that somebody else might fail in diligence, and the consequences might come down upon him before he discovered the negligence. This view of the law of the case was not presented by the court in charging the jury; but, on the contrary, it seems to have been the opinion of the judge, and so announced in the charge, that unless Smith could have avoided the consequences of the company's negligence by the exercise of ordinary care (his duty to exercise that care beginning when he might or ought to have discovered the company's negligence), he could still recover partial damages under the rule of apportionment laid down in the Code for cases of contributory negligence. The error of this. position, under the facts of the present case, is, that Smith was under obligation, when grossly negligent himself, to anticipate negligence as well as to discover it. He could not discover it

until it had begun; he ought to have anticipated that it might begin, and that he might not find it out in time to shun the Con sequences.

There are various grounds in the motion for a new trial, varipoints made; but what we rule disposes of the case upon its real merits, and it is unnecessary to deal with every point. We reverse the judgment with the rulings which I have read from the bench in the notes prepared to be used as a syllabus to this opinion. The court erred in the charge, and the verdict was not warranted by the evidence. Judgment reversed.

Injury to Trespassers on Track. - Liability for. See post Guenther v. St. Louis, I. M. & S. R. Co., and note.

It was held in Strong v. Canton, A. & N. R. Co., decided by the Supreme Court of Mississippi Jan. 23, 1888, that the Mississippi statute which prohibits locomotives and cars from being run through corporate limits at a greater speed than six miles an hour, does not render the company liable for an injury done while the statute is being violated, to a person who trespasses upon the track, and goes upon a trestle without looking or listening to discover moving trains or locomotives, if before the accident the engineer or employees in charge did not see him. The court say,

"It is the settled doctrine of this court, that sect. 1047 of the Code, which prohibits locomotives and cars from being run through towns, cities, and villages at a greater rate of speed than six miles an hour, does not impose absolute liability on a railroad company for an injury done while the statute circumstances under which the injury occurred; and that, when a railroad

company

violates the statute, one who could by the exercise of ordinary care

avoid injury resulting from the act of the company, and fails to do so, cannot recover for such injury. Co. v. Stroud, 64 Miss. 784; s. C., 31 Am. & Eng. R. R. Cas. 443.

66

Railroad Co. v. McGowan, 62 Miss. 682; Railroad

Appellant was grossly negligent, and guilty of a flagrant disregard of personal safety, in going on the trestle without looking or listening to discover moving trains or locomotives; but, notwithstanding this, if the engineer or employees in charge of the locomotive saw her on the trestle, where she could not readily leave the track with safety, they were bound to stop the locomotive, or do all they could to stop it, and to avoid the injury. Jamison v. Railin the record which shows that the engineer or other employees of the company saw appellant in her perilous position on the trestle, or from which it before she was struck; and the court properly instructed the jury to find for Can be fairly inferred that she was seen in that position by him or them, appellee. Railroad Co. v. Doyle, 60 Miss. 977."

Omission of Statutory Duty as affecting Company's Liability. - See Mobile & Ohio R. Co. v. Stroud, 3Am. & Eng. R. R. Cas. 443, note, 447.

GULF, COLORADO, AND SANTA FÉ R. Co.

ข.

GASCAMP.

(Texas Supreme Court, Jan. 27, 1888.)

Action for Personal Injuries. Defective Bridge. - Contributory Negligence. - Where a person, travelling on horseback, attempted to cross a bridge constructed and maintained by a railroad company as a portion of a crossing over its right of way, and such bridge is the only practicable crossing for him in the direction in which he is travelling, he is not guilty of negligence contributing to injuries caused through defects in such bridge, although he attempted to cross in the knowledge of such defects.

APPEAL from Washington County District Court.

Action by H. W. Gascamp against Gulf, Colorado, & Santa Fé Railway Company, for damages for personal injuries sustained by plaintiff while attempting to cross a bridge over its right of way. The defendant appeals from a verdict and judgment for the plaintiff. The facts are stated in the opinion.

Garret, Searcy & Bryan, for appellant.

C. R. Breedlow for appellee.

Facts.

GAINES, J.-This was an action, brought by appellee against appellant, to recover damages for personal injuries alleged to have accrued to the plaintiff by reason of the failure of the defendant to keep in repair a bridge upon a public road where the highway crossed its track. There was testimony showing that the bridge was out of repair, and that it was dangerous to cross it, and the plaintiff knew of this. But it also appeared that many persons habitually passed over on horseback and in vehicles; and, so far as the witnesses knew, no injury had occurred previous to that complained of by plaintiff. He testified himself to the defective character of the bridge, and to his knowledge of the fact, and also that this was the only public road from his house to the city of Brenham. He further swore that he was on his way to Brenham on the day of the accident, riding on horseback, and that, in attempting to cross the bridge, a plank which was loose and rotten became displaced, and frightened his horse, and caused him to be thrown across the iron of the railroad track, thereby inflicting upon him serious personal injuries. The defendant attempted to show that the bridge was kept in proper repair, but the evidence to the con