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Baltimore & O. R. Co. v. State, 36 Md. 366; Isabel v. Hannibal & St. J. R. Co., 60 Mo. 475; s. c., 9 Am. Ry. Rep. 261; Sioux City & Pac. R. Co. v. Stout, 85 U. S. (17 Wall.) 657, bk. 21, L. ed. 745. Particularly is this so in the outskirts of public cities, where built on the line of the railway track, and persons are in the habit of using such track as a thoroughfare. See Pennsylvania R. Co. v. Lewis, 79 Pa. St. 33. Thus, it has been held that an engineer is bound to stop, or at least check, his train, on discovering a trespasser who is not apprised of his danger, or, if apprised, is unable to leave the track. Cook v. Central R. & B. Co., 67 Ala. 533.

It would seem, however, that under ordinary circumstances there is no obligation resting upon the company to stop or check up their train in approaching a person thus trespassing. See Maher v. Atlantic & Pac. R. Co., 64 Mo. 267; s. c., 17 Am. Ry. Rep. 231; Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375; Finlayson v. Chicago, B. &. Q. R. Co., 1 Dill. C. C. 579. Because, as it has been said, the law presumes that a person walking upon a railway track will leave the same in time to prevent injury from an approaching train of which he has knowledge, or should have by the ordinary use of the sense of hearing and seeing, and that the managers of the train may act upon this presumption. See Indianapolis & V. R. Co. v. McClaren, 62 Ind. 566; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 279; Houston & T. Cent. R. Co. v. Smith, 52 Tex. 178. See also Gonzales v. New York & H. R. Co., 50 How. (N. Y.) Pr. 126; Green v. Erie R. Co., 11 Hun (N. Y.), 333; Ellwood v. New York C. & H. R. R. Co., 4 Hun (N. Y.), 808; Tanner v. Louisville & N. R. Co., 60 Ala. 621; Mobile & M. R. Co. v. Blakeley, 59 Ala. 471; Teunenbrock v. South Pac. R. Co., 59 Cal. 269; Austin v. Chicago, R. I. & P. R. Co., 91 Ill. 35; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450; Toledo, W. & W. R. Co. v. Jones, 76 Ill. 311; Illinois Cent. R. Co. v. Hall, 72 Ill. 222; Lake Shore & M. S. R. Co. v. Hart, 87 Ill. 529; Indianapolis & V. R. Co. v. McClaren, 62 Ind. 566; Murphy v. Chicago, R. I. & P. R. Co., 45 Iowa, 661; Carlin v. Chicago, R. I. & P. R. Co., 37 lowa, 316; Mason v. Missouri Pac. R. Co., 27 Kans. 83; s. C., 41 Am. Rep. 405; State v. Baltimore & P. R. Co., 58 Md. 482; Laicher v. New Orleans, J. & G. N. R. Co., 28 La. An. 320; Bancroft v. Boston & W. R. Co., 93 Mass. (11 Allen) 34; s. c., 97 Mass. 275; Smith v. Minneapolis & St. L. R. Co., 26 Minn. 419; Donaldson v. Milwaukee & St. P. R. Co., 21 Minn. 293; Carroll v. Minnesota Val. R. Co., 13 Minn. 30; Lenix v. Missouri Pac. R. Co., 76 Mo. 86; Poole v. North Carolina R. Co., 8 Jones (N. C.), L. 340; Meek 7. Pennsylvania R. Co., 38 Ohio St. 632; Cogs well v. Oregon & C. Co., 6 Oreg. 417; Moore v. Pennsylvania R Co., 99 Pa. St. 301; s. c., 44 Am. Rep. 106; Hoover v. Texas & P. R. Co., 61 503; Rothe v. Milwaukee & St. P. R. Co., 21 Wis. 256; Finlayson v.

Tex.

Chicago, B. & Q. R. Co., 1 Dill. C. C. 579.

Thus it has been held, that where one without authority enters upon a railway track, and while there becomes insensible from providential causes, and while in this state, and in plain view, was run over by a train, the company will be held liable for the negligence of its servants to keep a good lookout. Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615; s. c., 38 Am. Rep. 632. See Meeks 7. Southern Pac. R. Co., 56 Cal. 513; s. c., 38 Am. Rep. 67; Chicago & A. R. Co. v. Kellam, 92 Ill. 245; s. C., 34 Am. Rep. 128; Kansas Cent. R. Co. v. Fitzsimmons, 22 Kans. 686; s. c., 31 Am. Rep. 203; Denman . St. P. & D. R. Co., 26 Minn. 357; Richmond & D. R. Co. v. Anderson's Admr., 31 Gratt. (Va.) 812; s. c., 31 Am. Rep. 750. But it seems that it would be otherwise if the trespasser's insensibility was caused by reason of his voluntary intoxication. Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615; S. c., 38 Am. Rep. 632. Yet it has been held, that, where a persons lays down upon a railroad track in a hopeless state of intoxication, the company will not be justified in running a train over him if it can be avoided in the

exercise of reasonable care, if the person is discovered in his exposed condition. Weymire v. Wolfe, 52 Iowa, 533.

Failure to Look and Listen. It has been held that one who without right, and with full knowledge of the location, voluntarily goes upon a railroad track where there is no crossing, and which is a known place of danger, is guilty of negligence per se (Pittsburgh, F. W. & C. R. Co. v. Collins, 87 Pa. St. 405), and that one who deliberately walks upon a railroad track, whether laid in a public highway, in a street, in an open field, or elsewhere, is presumed to assume the risk of any peril he may encounter (Illinois Cent. R. Co. v. Hall, 72 Ill. 222. See Kansas Pac. R. Co. v. Pointer, 9 Kans. 620), and is bound to look and listen, and make due use of all his faculties for the discovery of approaching trains, and to avoid danger. Laverenz v. Chicago, R. I. & P. R. Co., 56 Iowa, 689; Lang v. Holiday, C. R. & C. M. Co., 49 Iowa, 469; Benton v. Iowa Cent. R. Co., 42 Iowa, 192; Carlin v. Chicago, R. I. & P. R. Co., 37 Iowa, 316; Artzv v. Chicago, R. Í. & P. R. Co., 34 Iowa, 153.

Pennsylvania Doctrine. In Pennsylvania, and some other States, it is held that railways are entitled to a clear track (Little Schuylkill N. R. & C. Co. v. Norton, 24 Pa. St. 465; s. c., 64 Am. Dec. 672. Compare Lake Shore & M. S. R. Co. v. Hart, 87 Ill. 529; Galena & C. U. R. Co. v. Jacobs, 20 Ill. 478), and that railroads need not take precaution for the safety of trespassers, because, as the court say in Mulherrin v. Delaware, L. & W. R. Co., 81 Pa. St. 366, "except at crossings, where the public have a right of way, a man who steps his foot upon a railway track does so at his peril." Baltimore & O. R. Co. v. Schwindling, 101 Pa. St. 258; s. c., 47 Am. Rep. 706; Pittsburgh, F. W. & C. R. Co. v. Collins, 87 Pa. St. 405; s. c., 30 Am. Rep. 371; Mulherrin v. Delaware, L. & W. R. Co., 81 Pa. St. 366; Philadelphia & R. R. Co. v. Spearen, 47 Pa. St. 300; Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375; Reeves v. Delaware, L. & W. R. Co., 30 Pa. St. 454; s. c., 72 Am. Dec. 713; Little Schuylkill N. R. & C. Co. v. Norton, 24 Pa. St. 465; McClandlish v. Newman, 22 Pa. St. 465; New York & E. R. Co. v. Skinner, 19 Pa. St. 298. In those States where this rule prevails, railroad companies will only be held liable for any cases of wanton injury, and of such gross and aggravated negligence as amounts to intentional mischief. See Teunenbrock v. South. Pac. C. R. Co., 59 Cal. 269; Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500; s. C., 22 Am. Rep. 112; Terre Haute & Ind. R. Co. v. Graham, 95 Ind. 286; s. C. 48 Am. Rep. 719; Cincinnati & M. R. Co. v. Eaton, 53 Ind. 310; Ream v. Pittsburgh, F. W. & C. R. Co., 49 Ind. 93; Jeffersonville, M. & I. R. Co. v. Goldsmith, 47 Ind. 43; Lafayette & I. R. Co. v. Huffman, 28 Ind. 287; Indiana Cent. R. Co. v. Hudelson, 13 Ind. 325; Mason v. Missouri Pac. R. Co., 27 Kans. 83; s. c., 41 Am. Rep. 405; Morrissey v. Eastern R. Co., 126 Mass. 377; s. c., 30 Am. Rep. 686; Gaynor v. Old Colony & N. R. Co., 100 Mass. 208; Donaldson v. Milwaukee & St. P. R. Co., 21 Minn. 293; Carroll v. Minnesota Valley R. Co., 13 Minn. 30; Nicholson v. Erie R. Co., 41 N. Y. 525; Green v. Erie R. Co., 11 Hun (N. Y.), 333; Kenyon v. New York Cent. & H. R. R. Co., 5 Hun (N. Y.), 479; Herring v. Wilmington & R. R. Co., 10 Ired. (N. C.) L. 402; s. c., 51 Am. Dec. 395; Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. (5 Otto) 697, bk. 24, L. ed. 542.

Rule under Kentucky and Tennessee Statutes. It would seem that under the Kentucky statute (Gen. Stats. of Ky. 1883, chap. 57, sect. 3; 2 Stanton's Ky. Rev. Stat. 500, sect. 3) and the Tennessee statute (Thom. & Steg. Tenn. Stats. sect. 166, subsect. 5, sect. 1168) that the courts have gone to the opposite extreme from the Pennsylvania and similar decisions, and hold railroad companies responsible for injury to trespassers on slight evidence of negli gence, there being a tendency to construe as "wilful" many acts and omissions which in other jurisdictions would not be so severely regarded. Louisville & N. R. Co. v. Brooks's Admx., 83 Ky. 109; Kentucky Cent. R. Co. v. Gastineau's Admr., 83 Ky. 119; Jones's Admr. v. Louisville & N. R.

Co., 82 Ky. 610; Claxton v. Lexington & B. S. R. Co., 13 Bush (Ky.), 636; Lexington v. Lewis's Admr., 10 Bush (Ky.), 677; Board of Internal Improvements v. Scearce, 2 Duv. (Ky.) 576; Louisville & N. R. Co. v. Collins, 2 Duv. (Ky.) 114; Smith v. Nashville & C. R. Co., 6 Coldw. (Tenn) 589; Louisville & N. R. Co. v. Burke, 6 Coldw. (Tenn.) 45; Railroad v. Walker, II Heisk. (Tenn.) 383; Hill v. Louisville & N. R. Co., 9 Heisk. (Tenn.) 823 ; Louisville & N. R. Co. v. Connor, 9 Heisk. (Tenn.) 19; Eastern T. & G. R. Co. v. St. John, 5 Sneed (Tenn.) 524.

See generally as to Duty of Company to Trespassers on track, note, 2 Am. & Eng. R. R. Cas. 124; Moore v. Pennsylvania R. Co., 6 Ib. 569, note 572; Louisville, etc., R. Co. v. Cooper, 6 Am. & Eng. R. R. Cas. 5; Teunenbrock v. Southern Pac. R. Co., 6 Ib. 8; Houston, etc., R. Co. v. Sympkins, 6 Ib. 11, note 17; Northern Cent. R. Co. v. State, 6 Ib. 66; Frick v. St. Louis, etc., R. Co., 8 Ib. 280; Meeks v. Southern Pac. R. Co., 8 Ib. 314; Colorado Central R. Co. v. Holmes, 8 Ib. 410; Parker v. Wilmington, etc., R. Co., 8 Ib. 420; International & G. N. R. Co. v. Jordan, 10 Ib. 301; Yarnell v. St. Louis, etc., R. Co., 10 Ib. 726; Paducah, etc., R. Co. v. Letcher, 12 Ib. 61; Baltimore, etc., R. Co. v. Depew, 12 Ib. 64; Terre Haute, etc., R. Co. v. Graham, 12 Ib. 77; Louisville, etc., R. Co. v. Watkins, 12 Ib. 89; note, 14 Ib. 662; note, 13 Ib. 626; McGeary v. Eastern R. Co., 15 Ib. 407; Bacon v. Baltimore, etc., R. Co., 15 Ib. 409, note 414; Carter v. Columbia, etc., R. Co., 15 Ib. 414; Davis v. Chicago, etc., R. Co., 15 Ib. 424, note 438; Nashville, etc., R. Co. v. Smith, 15 Ib. 469; East Tennessee, etc., R. Co. v. Humphreys, 15 lb 472, note 477-478; Dinwiddie v. Louisville, etc., R. Co., 15 Ib. 483; McClelland v. Louisville, etc., R. Co., 18 Ib. 268; International, etc., R. Co. v. Smith, 19 Ib. 21, note 24; Burnett v. Burlington, etc., R. Co., 19 Ib. 25, note 41; Central R. Co. v. Brinson, 19 Ib. 42; Baltimore, etc., R. Co. v. State, 19 Ib. 283; Keyser v. Chicago, etc., R. Co., 19 Ib. 91; Louisville, etc., R. Co. v. Green, 19 Ib. 95, note 97; Louisville, etc., R. Co. v. Howard, 19 Ib. 98, note 102; East Tennessee, etc., R. Co. v. Fain, 19 Ib. 102; McAllister v. Burlington, etc., R. Co., 19 Ib. 108, note 111; Schmittelhelm v. Louisville, etc., R. Co., 19 Ib. 111; Scheiffler v. Minneapolis, etc., R. Co., 19 Ib. 173; note, 19 Ib. 326; Grethen v. Chicago, etc., R. Co., 19 Ib. 342; Rudd v. Richmond & D. R. Co., 23 Ib. 253: Chicago & Eastern Ill. R. Co. v. Hedges, 25 Ib. 550; Rine v. Chicago & A. R. Co., 25 Ib. 545; Wright v. Railroad Co., 28 Ib. 652; Achackleford v. Louisville, etc., R. Co., and note, 28 Ib. 591-594; Louisville, etc., R. Co. v. Ginestra, 29 Ib. 297; Palmer v. Chicago, etc., R. Co., 31 Ib. 364, note 373; Baumeister v. Grand Rapids & I. R. Co., 31 Ib. 376; East Tennessee, etc., R. Co. v. King, 31 Ib. 385; Louisville, etc., R. Co. v. Colman, 31 Ib. 390; Alabama, etc., R. Co. v. Chapman, 31 Ib. 394; Keyser v. Chicago & G. T. R. Co., 31 Ib. 399; Chrystal v. Troy & B. R. Co., 31 Ib. 411, note 415; St. Louis, etc., R. Co. v. Monday, 31 Ib. 424; Gregory v. Cleveland, etc., R. Co., 31 Ib. 440; Mobile & O. R. Co. v. Stroud, 31 Ib. 443, note 447.

SCHILLING

ข.

CHICAGO, MILWAUKEE, & ST. PAUL R. Co.

(Wisconsin Supreme Court, March 27, 1888.)

Trespasser on Track 1- -Contributory Negligence Failure to Look and Listen. In an action by an administrator to recover for the death of his intestate, it appeared that deceased was walking on a path by the side of the railroad track; that he knew that the train by which he was killed was due at that place about that time, and therefore had reason to expect and look out for it; that he did not look and listen; that he might have seen along track for a distance of forty rods; that, when the train came within forty feet of him, deceased attempted to cross the track, and was run over and killed. Held, that the failure of deceased to look and listen was the proximate cause of his death, and that a nonsuit was properly granted, even though the engineer might have been negligent in some measure in failing to ring the bell. Taylor, J., dissenting.

APPEAL from Dodge County Circuit Court.

Action by Catherine Schilling, as administratrix of Casper Schilling, against the Chicago, Milwaukee, & St. Paul Railway Company, for damages for negligently killing her intestate. Plaintiff appeals from a nonsuit.

The opinion states the facts.
Harlow Pease for appellant.

John W. Cary (Burton Hanson of counsel) for respondent.

Facts.

ORTON, J.-The undisputed facts of this case seem to be as follows: A very long and heavily loaded freight-train of the company, being hauled by a very large and heavy engine, was going from the junction at Watertown northwesterly, a short time before one o'clock in the afternoon, somewhat behind the time of half-past twelve o'clock, the regular time of its passing at that place, and where and when it had passed, about on time, for about eleven years before. The wind was blowing strongly from the north-west, the direction in which the train was moving. From the place where the accident occurred, and south-eastwardly towards the junction, the track was open and straight for nearly half a mile, and the train could have been easily seen that distance by any one at the place of the accident, and any one on or near the track at such place could have been easily seen by the engineer on the train for that distance. When the train was about 40 rods behind him, the deceased was walking

I 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.

on a pathway about three feet on the south side of the railroad track, and towards the north-west, and was so seen by the engineer. When the train came within about 40 feet of him, the deceased attempted to cross over the track, apparently for the purpose of going towards his house, about 200 feet north or north-west of the track at that point, and where he had lived. for a great many years. The attention of the engineer had been diverted by some duty to be performed in a place on the engine from which he could not look ahead on the track, until the train had come within said 40 feet of the deceased, just as he attempted to so cross the track in front of the engine. Whether at that time signals were given by whistle or bell, or both, is a question in dispute, as also whether the usual signals had been given in crossing the streets of Watertown in the vicinity, and before arriving at that point. An attempt was made to stop the train before it reached the deceased; but it was too near him to be successful, and the train was stopped only after the locomotive had passed over and beyond him about 80 feet. The rate of speed the train was going at the time was also a question in dispute. The Circuit Court, on these facts, granted a nonsuit in the case. The negligence of the company, if any, consisted in either the signals not having been given, or the train having been run with greater speed than six miles an hour; and both of these questions, depending upon a conflict of evidence, were proper to be determined by the jury, and not by the court. We presume, therefore, that the only ground upon which the nonsuit was granted was the contributory negligence of the deceased. The deceased knew that this freight-train was due at that place about that time, and therefore had reason to expect and look out for it. It is quite evident that he did not. look to see whether this train was coming towards him in all that distance of at least 40 rods, or he would have kept it within observation up to the time of his attempt to cross over the track; and that he did not look towards the train within that last 40 feet, or he would have stopped, or jumped from the track instantly to save his life. The conclusion is inevitable, therefore, that the deceased did not look and did not listen. He used neither his eyes nor his ears in this place of great danger. The train made a great noise, and, as the engineer Deceased's testified, as much as the whistle or bell could make. contributory The strong head-wind may have prevented the sound negligence in of either coming to the deceased. But he was aware failing to look of this disadvantage, as well as of the fact that the train was due, and might be expected at any moment. Was he guilty of a want of ordinary care and prudence in thus attempting to cross over the track without hesitating to listen or look in the

or listen.

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