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N. E. 338; Porter v. Silver Creek, etc., Coal Epperson v. Postal Tel. Co., 155 Mo. 346, 50 Co., 84 Wis. 418, 54 N. W. 1019; Clark v. S. W. 795, 55 S. W. 1050; Fugler v. Bothe, 117 Liston, 54 Ill. App. 578. Indeed, 20 Am. & Mo. 475, 22 S. W. 1113; Aldridge, Adm'r, v. Eng. Ency. of Law (2d Ed.) p. 57, states a Midland Blast Furn. Co., 78 Mo. 559; Sulwell formulated rule on this subject in the livan v. India Mfg. Co., 113 Mass. 396. ACfollowing language: “If the place is unsafe cording to the testimony of the respondent, because of the nature of the work, and a he knew full well the resultant falling of servant suffers injury in consequence thereof, stones after these blasts, and gave testihe cannot hold the master liable, provided rea- mony to the effect that such stones, as large sonable precautions were taken by the mas- as his fist and smaller, had fallen around his ter to avoid injury. The risk of injury from place of refuge on the bridge frequently such cause is one of the risks assumed by theretofore, and that he had seen them fall the servant." It seems that this rule is from 100 to 300 yards in the river from conclusive of the case at bar. Here the in- block shots. It is a matter of common jury which befell the respondent came upon knowledge that a falling stone as large as him from a falling stone resultant of a one's fist is dangerous in the extreme and blast, and was incident of the employment. liable to produce death by striking upon It came about from the nature of the work the head. Respondent, then, had full knowl

STVO being performed at the quarry, and the mas- edge of the dangers, and by continuing in ter, having given plaintiff and all others the service thereafter he would be preemployed warning thereof by causing one cluded from recovery by virtue of assumof its employés to sound the usual alarm ing such risk in continuing therewith, with pres ! by whooping, prior to the exploding of the full knowledge of its dangers. blast, which was a reasonable precaution But, aside from this, we are not compelled * 11 12 taken by the master under the circumstances to depart from the primary rule of assump- 102 of the case to aid respondent in protecting tion of the risk to find the law which would himself from injury, the respondent is cer- preclude a recovery in this case; for the most ca. 11 tainly precluded from recovery thereby. stone which inflicted the injury upon re

What has been said above on the question spondent came as a result of a blast exof nonliability of the appellant for the in- | ploded in the necessary discharge of the jury in this instance is treated of in many work at the quarry and without negligence the free cases as arising by virtue of the nonappli- on the master's part. We all know that in cation of the principle of safe place, because the operation of stone quarries blasts are the danger from which the injury arose was discharged for the purpose of raising the but a passing danger, temporary in its na- stone from its stratum, and that as a reture, and arose from the prosecution of the sult of such explosion, fragments of stone, work itself. Upon the theory that the prin- large and small, are thrown high into the ciple of safe place does not apply in such air; that gravitation will bring them to the cases, recovery has been denied in the cases earth with such force as is liable to inflict above cited. The law, therefore, did not severe injury to one in their path. The require the master to furnish a safe place risk attendant upon the work which is so as against such temporary dangers, and the prosecuted is not an extra hazard, but is failure to provide such safe place was not essentially and necessarily an ordinary haznegligence on its part. The same result as ard and risk of the employment, and is that predicated upon the nonapplication of therefore assumed by the servant by implithe principle of safe place is usually reached cation in his contract of hire. The United in the application of the principle of as- States Court of Appeals for the Eighth Cirsumption of the risk. That doctrine can be cuit, in the case of Browne v. King et al., applied to this case with equal force as 100 Fed. 561, 40 C. C. A. 545, said: "In that last above discussed; for, upon entering entering the employment of the defendant the employment at the quarry, respondent the plaintiff assumed the ordinary risks inassumed the risks which were ordinarily in- cident to the employment engaged in. These cident to the employment in which he en- risks were such usual hazards, dangers, and gaged, and, in addition to such risks, by perils as belonged to the peculiar occupation entering or continuing in the employment of blasting rock with dynamite, including without complaint, he assumed the risks of the carelessness of those engaged with him extra hazards, the dangers of which he in the same work and employment. The emknew and understood, or the dangers of ployer was bound to furnish a reasonably which were obvious. Lee v. Railway (Mo. safe place and appliances with which to do App.) 87 S. W. 12; Mathias v. K. C. Stock- the work. But where the nature of the busiyards Co. (Mo. Sup.) 84 S. W. 66; Dean v. ness is extremely dangerous, and conditions St. Louis Woodenware Co. (Mo. App.) 80 S. are necessarily continually changing by reaW. 292; Browning v. Kasten, 107 Mo. App. son of placing and setting of blasts where59, 80 S. W. 354; Adolff v. Columbia Pretzel by dangerous conditions arise continually & Baking Co., 100 Mo. App. 199, 73 S. W. through the acts of the servant, without 321; Bradley v. Railway Co., 138 Mo. 293, 39 the knowledge of the master, the employer S. W. 763; Steinhauser y. Spraul, 127 Mo. 541, cannot be held responsible therefor without 28 S. W. 620, 30 S. W. 102, 27 L. R. A, 441; his fault, but such temporary dangerous con

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disons arise from the nature of the employ- the habit of alighting, and of the car stopping Dest, and are among the natural and ordi- at the place where passengers were in the sary risks and hazards attending the em

habit of alighting from some other cause than

that of discharging passengers, were misleadpayment, for which the defendant is not

ing and confusing. lie" See, also, the following cases:

Appeal from Circuit Court, Jackson CounLeagood v. Joplin, etc., L. & Z. Co., 179 Ma 29, 77 S. W. 1077; Epperson v. Postal

ty; J. H. Slover, Judge. Te Co., 155 No. 346, 50 S. W. 795, 55 S. W.

Action by Sarah A. Corum against the Met2100; Bradley y. Railway Co., 138 Mo. 293,

ropolitan Street Railway Company. From a Sv. 763; Fugler v. Bothe, 117 Mo. 475,

judgment for plaintiff, defendant appeals.

Reversed. S. W. 1113; Steinhauser v. Spraul, 127 Vo. 511, 28 S. W. 620, 30 S. W. 102, 27 L. John H. Lucas and Ben T. Hardin, for apBA. HI; Junior v. Elec. Co., 127 Mo. 79, | pellant. Ellison & Turpin, for respondent. 9 S. W. 988; Aldridge v. Midland Blast Fara. Co., 78 Mo. 559; Lee v. Railway Mo.

ELLISON, J. Plaintiff was injured while 452) 87 S. W. 12; Bunt v. Sierra, etc.,

in the act of alighting from one of defendGud Min. Co., 138 U. S. 483, 11 Sup. Ct. ant's street cars. She charges that by rea164, 34 L Ed. 1031; Da v. Mining Co.,

son of the negligent act of defendant's servui Fed. 122, 54 C. C. A. 636; Finalyson y.

ants in starting the car too quickly she was [ca, etc., Min. Co., 67 Fed. 507, 14 O. C.

thrown to the ground while in the act of A $4?; Railway Co. v. Jackson, 65 Fed. 48, stepping off. The judgment was in her favor. 2 C. C. A, 507; Meehan v. Speirs Mfg. Co., It appears that plaintiff was at the corner 172 Pass. 375, 52 X. E. 518; Whittaker v.

of Twelfth and Main streets, in Kansas City, Bent. 167 Jass. 588, 46 N. E. 121; Durst

one evening when it was raining; that she 1. Carnegie Steel Co., 173 Pa. 162, 33 Atl.

desired to go to Walnut street (one block 3:19; O'Connell v. Clark (Sup.) 48 N. Y. Supp. east), and there take what was known as a 14; Sullivan v. India Mfg. Co., 113 Mass.

"Fifteenth Street car"; that she boarded a : 20 Am. & Eng. Ency. Law (2d Ed.) 57.

cable car at Twelfth and Main, intending to From what we have said, it is apparent take a transfer and get off at Walnut, but *2the judgment cannot stand. The injury before she was aware of it she had passed ich the poor man received was severe Walnut two or more blocks, and as the car od permanent, and no doubt hastened his

was approaching Oak street she signaled for th; but, under the law as it is, there

it to stop; that upon its stopping she attemptTIS no obligation upon the employer to com

ed to get off, and on account of not being esate him or his estate therefor, and we

given sufficient time she was thrown to the Ist apply the principles of law as we find

ground while alighting as stated. She had ben in the adjudicated cases, regardless of not paid her fare, but was ready to do so if De feelings of sympathy which we may en- the conductor had gotten around to her. stain for the injured party. It is wholly There was ample evidence tending to support Decessary to discuss the question of con- the charge of negligence against defendant; tutory negligence so ably presented in

but we have had the following suggestions De briefs.

urged upon us by defendant, as showing that The judgment must be reversed. It is so

it has not had such a trial as is vouchsafed dered.

by the law:

The petition, instead of charging outright BLAND, P. J., concurs. GOODE, J., ab- that plaintiff was a passenger, alleged that

she got upon the car for the purpose of becoming a passenger. The instructions she had given in her behalf submit for the jury

to find whether she was a passenger. DeTPTY 5. METROPOLITAN ST. RY. CO.*

fendant contends that such instructions made Kassas City Court of Appeals. Missouri.

and submitted an issue not offered by the peJune 5, 1905.)

tition, and in support thereof cite the case of : ERRONEOUS INSTRUCTIONS OBJECTIONS

Raming v. Street Ry., 157 Mo. 504, 57 S. W. 4.73 VEBDICT.

Wtere plaintiff alleges that she boarded a 268, where it was held that an allegation of for the purpose of becoming a passenger, boarding a car with intention of becoming a z tant cannot complain, after verdict, of in

passenger was not an allegation of being a accos submitting to the jury to find wheth

passenger. But whatever error there may be de 28 a passenger.

in the instructions in this case in this respect ::M:SLEADING INSTRUCTIONS.

19 an action for injuries sustained in alight- is against the plaintiff, since it puts upon her fra a street car, where plaintiff alleged the additional burden of showing that she after the car came to a full stop at the

was an actual passenger, though not alleged 72. lice for cars to stop for the purpose of

to be in her complaint. We think defendant's ting passengers to alight, etc., and there Tu to esidence that the car stopped from any mode of attack should have been by demur

mose than to discharge passengers, in- rer. Having gone to trial, we think no com603 submitting the hypothesis of the car

plaint should be heard after verdict. s at a place where passengers were in

Again, the petition charges that "after the Letering decied June 26, 1965.

car arrived at the corner of Twelfth and Oak

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..... $207 05

streets in said city, and came to a full stop Appeal from Circuit Court, Boone County; at the usual place for cars to stop for the A. H. Waller, Judge. purpose of permitting passengers to alight," Action by John W. Keene against J. L. while the instructions only submit the hy. Sappington. From a judgment on appeal pothesis of the car "stopping at a place where from a justice's court adjudging costs against passengers were in the habit of alighting.” plaintiff, he appeals. Affirmed. Again, instruction No. 3 for plaintiff sub

Webster Gordon, for appellant Tydings mits the hypothesis of the car stopping at & Anderson, for respondent. the place where passengers were in the habit of alighting from some other cause than that BROADDUS, P. J. This cause was instiof discharging passengers, that plaintiff had

tuted before a justice of the peace, where a right to alight from said car without mak- 1 plaintiff obtained a judgment, and defendant ing a request therefor, etc. There is no evi

appealed. The plaintiff's statement was as dence whatever that the car stopped at the

follows: usual place for passengers to aligbt from any

J. L. Sappington, Dr. other cause than to discharge passengers. It To John W. Keene

$205 00 is true that witnesses stated that a man came Interest on same from January, 1904.. 2 05 out into the street and got on the moving car

Total amount due.... before it got to the usual stopping place, and that the car slowed up seemingly for him to On appeal, defendant moved to dismiss the get on, but did not stop, though it was going case because plaintiff failed to file an itemvery slow. So, if we should say the jury ized account of his cause of action, and for were authorized to infer that the car came to the reason that his complaint did not state a stop at such place, and plaintiff attempted

a cause of action. The court sustained said to get off, it would not show liability on de motion, and rendered judgment against plainfendant, since plaintiff had no right to at

tiff for the costs of the suit. Afterwards, on tempt to leave the car at such place. Rail- the same day, the court, on its own motion, road v. Mills, 91 Ill. 39; Jackson v. Ry. Co., set aside the order dismissing the suit, and 118 Mo. 221, 24 S. W. 192.

repeated the order against plaintiff for costs, The instructions have mingled causes of whereupon plaintiff and his lawyer left the liability under certain states of evidence and courtroom, and did not again appear in court pleading not found in this case with causes during the term. The court, without the ap. which are in the case, and thus tend to mis- plication of either party, continued the cause lead and confuse the jury. On retrial they until the next term. At the term subsequent should be drawn so as to clearly present the to that which the court rendered judgment issues as made by the pleadings and evidence against him for costs, plaintiff filed bis moin this case, without confounding such issues tion to have the costs retaxed, which the with those which have heretofore arisen in court overruled. From this judgment, plainother cases, the particulars of which are not tiff appealed. The plaintiff made no excepfound in this. An idea which might be per- tion to the judgment against him at the term fectly clear as shown by pleadings and evi- during which it was rendered. We are theredence in Railroad v. Mills, 105 Ill. 63 (ap- fore in no condition to review the action of proved in Jackson v. Ry. Co., 118 Mo. 221, 24 the court in that particular. It was too late S. W. 192) would be confusing and mislead- to except to the action of the court at a ing in this case, which had not the same fea- subsequent term. This is well-settled law. tures disclosed by the evidence. Railroad v. Affirmed. All concur. Mills is first reported in 91 Ill. 39, and it will be found from that report that the case was reversed for new trial on an instruction with much less tendency to confuse than is found ROSS v. METROPOLITAN ST. RY. CO. in the instructions here considered.

(Kansas City Court of Appeals. Missouri. The judgment is reversed and the cause re

June 5, 1905.) manded. All concur.


In an action against a street railroad com

pany for injuries to a pedestrian who was KEENE V. SAPPINGTON.*

struck by a car, evidence held to show plain

tiff guilty of contributory negligence. (Kansas City Court of Appeals. Missouri. 2. SAME-DUTY TO CONTINUE TO LOOK AND May 22, 1905.)


It is the duty of a person crossing railway APPEAL-Costs_TAXATION-EXCEPTION.

tracks to devote his attention to his line of Where a party made no exception to a judg- travel during the time he is within the range ment against him for costs at the term at which of passing cars, and to look and listen until he it was rendered, such judgment will not be re- is safely across, and it is not sufficient merely viewed on appeal.


look before going on the track. (Ed. Note.-For cases in point, see vol. 13, [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Costs, 88 803-810.)

Cent. Dig. Street Railroads, $8 207, 208, 215.]

*Rehearing denied June 26, 1905.

*Rehearing denied June 26, 1906.

& SAVE-DISCOVERED PERIL-HUMANITARIAN stepped from the curb to "he first rail, he DOCTRINE.

traveled a distance of 7 feet #inches. A few Ttough one cannot recover for injuries wbere his own negligence contributes in any

feet beyond this—the evidence does not disdegree to the immediate cause of the injury, close just how far-he was struck by a Tee if he has negligently exposed himself to Holmes street car rounding the curve from dargar, shich another perceives in time to avoid

west to south, and injured. No claim is made ity, but fails to do so, such other is liable, be contributory negligence of the injured

of an excessive verdict. Therefore it is unperson is no defense.

necessary to describe the injuries inflicted. Ei Note.-For cases in point, see vol. 37, It is asserted by defendant, and we think Cear. Dig. Negligence, $ 115.)

conclusively shown by the evidence, that 4. SAVE-DUTY OF MOTORMAN.

plaintiff failed to act with proper care for his It is not the duty of a motorman operat

own safety. In broad daylight, with nothing ing a street car to stop merely because he obsrres a pedestrian approaching the track, but to obstruct his view, and knowing of the be is only required to stop when something in presence of the car, he walked into the collithe conduct of the pedestrian indicates that he

sion. He attempted to exonerate himself is 192 ware of the presence of the car, and apt

from blame with the following account of his to be struck by it. [Ed. Note.-For cases in point, see vol. 44,

misadventure: He had been standing upon Cebt Dig. Street Railroads, 8197.)

the sidewalk 25 or 30 feet-the exact disÁ SAVE-QUESTION FOB JURY.

tance is unimportant-west of the corner, enla an action against a street railroad com- gaged in conversation. As he started on his pany for injuries to a pedestrian who was struck

way he saw the car standing on Fifteenth by a car, evidence held to justify submission to the jury of the question whether defendant's

street at the entrance to the curve, about potornan observed plaintiff's danger in time 35 feet from where he was afterwards struck. to bare avoided the injury.

As he stepped from the curb, he looked again, Appeal from Circuit Court, Jackson Coun

noticed the car had not moved, and, dismisst; James Gibson, Judge.

ing it from his attention, proceeded at an Action by Myron E. Ross against the Metro

ordinary walk. The bell was not rung and politan Street Railway Company. From a

no warning given until the car was upon

him. He was struck by the south corner of eigent for plaintiff, defendant appeals.

the fender which projected from the front Afirmed

end of the car. Owing to the sharpness of John H. Lucas, for appellant. Frank P.

the curve in the track, this corner of the Walsh and E. R. Morrison, for respondent.

fender was at the time, as near as can be as

certained from the evidence, from 3 to 4 feet JOHNSON, J. Action to recover damages from the inside rail, so that the distance for personal injuries alleged to have been from the curb where plaintiff last observed apsed by defendant's negligence. Judgment the car to the place of contact was from was for plaintiff in the sum of $2,000.

10 to 11 feet. The cable which furnished the Tbe refusal of the trial court to direct a motive power did not round the curve. The rerdict for defendant is assigned as error. grade slightly declined to the east and south,

The pertinent facts disclosed by the evi. Therefore, with the car standing as described decce are as follows: On the evening of July by plaintiff, it could be moved only by force 31, 1901, plaintiff was injured at the inter- of gravity. To credit plaintiff's story resection of Fifteenth and Holmes streets- quires the belief that while he was walking To public thoroughfares in Kansas City. a distance of 11 feet-an act which did not Ito lines of cable cars operated by defend- consume more than two seconds—the car ant had their junction at that place. One started, gained headway, and traveled 35 be Fifteenth street line) ran east and west feet. A few figures and a moment's reflec

Fifteenth street. The cars of the other tion will demonstrate the impossibility of tie Holmes street line) ran to and from the occurrence as described, particularly in their western terminus on Fifteenth street view of the fact that no witness gave the to Holmes, and thence south. The junction speed of the car beyond 7 miles per hour, Tis effected by curved tracks, one of which

and the great weight of the evidence fixed it that connecting the south track on Fifteenth at about 5. But accepting plaintiff's stateTith the west track on Holmes) was used ment, even in the face of the physical condiby cars south bound. The length of the tions which so plainly contradict it, his conere, measured upon the rail nearest the duct must nevertheless be pronounced grossly Eith test corner, was 70 feet. Where it be- careless. He had no right to assume when 23 on Fifteenth street, the rail was 17 feet he stepped from the curb that his way was 3 bebes from the curb; at its end on Holmes clear. A person crossing railway tracks, in

as 12 feet; and at a point 40 feet from the observance of ordinary care, must devote beginning, 5 feet 9 inches. Plaintiff, com- his attention to his line of travel during the

from the west on the sidewalk along the time he is within the range of passing cars. th side of Fifteenth street for the purpose He should not content himself with a last boarding an east-bound car, left the side look when entering into the sphere of danger, 77% a few feet west of the corner, and pro- and then blunder on, oblivious to his survel in a northeasterly direction to cross roundings, but must continue to look and the curred tracks. From the point where he listen until safely across.

88 S.W.-10

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Plaintiff's counsel evidently recognized the the car even before plaintiff left the side met indefensibility of their client's pretension walk. One answer to this contention is suffithat he acted with due care in walking cient to dispose of it. Plaintiff is bound by against a moving car, for they refrained from his own admissions. In his anxiety to defend submitting to the jury, in the instructions his conduct, he asserted with emphasis that may be es asked by them, any other issue of negligence up to the time he stepped from the sidewalk than that involved in the alleged neglect of he was watching the car. If this is true, o spis the gripman to make proper effort to stop which must be conceded in the consideration the car after becoming aware of plaintiff's of this question, for it is an admission of 30 danger.

against interest, there was nothing in plain. Assuming, then, that plaintiff was negli. tiff's actions prior to his step from the curb gent in failing to observe the approach of the to indicate that he was proceeding to enter car, that defendant also was negligent in not into danger, and the gripman was under no ringing the bell or giving other warning, and obligation to infer that, because he was walkthat both of these acts concurred in placing ing in the direction of the track, he might not plaintiff in a position of danger, no recovery stop before reaching it. On the contrary, can be permitted without it appears that while it was the duty of the gripman, in tak

:: BC these concurring acts of negligence were su- ing his car around this busy junction corperseded as a proximate cause of injury by ner, to proceed cautiously and to keep a sharp the sole negligence of the defendant, for the lookout (Holden v. Ry. Co., supra; Winters rule is elementary that if the plaintiff, by V. Ry., 99 Mo., loc. cit. 517, 12 S. W. 652, 6

070 his negligent act, contributes in any degree L. R. A. 536, 17 Am. St. Rep. 591) he was not to the immediate cause of injury, he has no required to assume that approaching pedescause of action, whatever the negligence of trians would act carelessly in going upon the

27 the defendant may be. The doctrine of com- track in front of him. His duty to stop beparative negligence has been repudiated re- gan when he saw or might have seen that .-** peatedly by the appellate courts of this plaintiff was negligently proceeding to a colstate. Boyd v. Railroad, 105 Mo. 371, 16 S. lision, unobserving and unaware of the presW. 909; Holwerson v. Ry. Co., 157 Mo. 216, ence of the car. The fact that a person 23 57 S. W. 770, 50 L. R. A. 850; Fellenz v. Ry. leaves the sidewalk and comes near the track Co. (Mo. App.) 80 S. W. 49; Moore v. Ry. is not enough in itself to impose the duty to Co., 176 Mo. 528, 75 S. W. 672. But when a stop. People frequently do this. There must plaintiff has reached a position of peril, not be something noticeable in the conduct of the in wantonness nor with intent to expose him- approaching footman to apprise an observer self to injury, but through inattention and of his contemplated movement into danger carelessness, and is unconscious of his dan- to make it incumbent upon the defendant to ger until too late to extricate himself, the stop. A rule more favorable than this to penegligence of the defendant, who, compre

destrians would seriously impede the operahending bis situation in time to avoid in- tion of street cars, and unfairly interfere jury, deliberately runs him down, occupies with the progress of their passengers, who the the whole field of culpability, to the exclu- have an equal right with others to the use sion of all other acts of negligence, and pre- of public ways. Bunyan v. Ry. Co., 127 Mo. Cited

17, 29 S. W. 842.

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such case the contributory" negligence of plain T

ain. The gripinan (a witness introduced by de


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titt but serves to afford a condition for the fendant) testified that he first became aware operation of the final act. Bunyan v. Citiof plaintiff's peril when he saw him step :

ICS zens' Ry. Co., 127 Mo. 12, 29 S. W. 842; from the curb; that his car was going at Holden v. Mo. Ry. Co., 177 Mo. 456, 76 S. W. half speed (about five miles per hour) and 973; Heinzle v. Ry. Co. (Mo. Sup.) 81 S. that it was then from 14 to 18 feet from the W. 848; Sepetowski v. St. Louis Transit Co., place of collision; that he instantly applied 102 Mo. App. 110, 76 S. W. 693; Jett v. Ry. the brakes to stop in the shortest possible Co., 178 Mo. 664, 77 S. W. 738; Meeker v. distance, and brought the car to a full stop Ry. Co., 178 Mo. 173, 77 S. W. 58; Cooney v. in 10 feet from where plaintiff was struck. Ry. Co., 80 Mo. App. 226; Morgan v. Ry. Co., From this testimony it must be conceded that 159 Mo., loc. cit, 275, 60 S. W. 195.

defendant's humanitarian duty began with Under this view, the inquiry arises, is there the act of plaintiff in stepping from the sideany substantial evidence in the record from walk. The gripman then knew that plainwhich, as a reasonable inference, it may be tiff was moving to a collision unaware of said defendant failed to follow the "humani. his situation, and fully realized the impertarian rule"? Some witnesses testified that, ative necessity of stopping. If he did all that from the time plaintiff separated from bis he reasonably could have done to that end, companion, they observed from his conduct defendant cannot be held liable; but, if he that his attention was distracted, and that failed to attempt the performance of his plain he was proceeding in the direction of the duty, it was proper to let the case go to the track without looking to see if his course was jury. The gripman, standing with his hands clear; and it is argued that, if this was no- upon the brake lever, was in a position to ticeable to others, it must have been to the set the brakes instantly, and this he claims gripman, whose duty it then became to stop to have done. Plaintiff bad 10 or 11 feet to

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