left the depot about 11:55 or 11:35, was passing there about the time of the accident; this train No. 78 is known as the midnight express for New York, and crossed South Capitol street, where Landrigan was hurt, going in an easterly direction; when witness saw Landrigan the latter was lying on the south side of the outside rail of the 'ladder track,' the most southerly track of the four tracks of the crossing; immediately before he saw Landrigan lying there the coach 'Lylete' passed over the crossing at South Capitol street and witness came right along behind this car, after train 78 passed, to see if the coach had done any damage down there and saw Landrigan lying there with some one around him; he went down where the car had stopped and came back and found out what the trouble was." As to the position of the gates, he said: "He first noticed the gates when he came down there after he had jumped off the end of the car; the gates were down then on both sides of the street. He did not notice the gates before 78 passed, because he had not been down that far; he stood on the southeast side of South Capitol street until 78 passed, and then started to run down the main track, and as he ran down the track he noticed that the gates were down on both sides." And further, "the runaway car passed the southwest crossing of South Capitol street before No. 78 reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of No. 78 began to cross the crossing; it was almost at the same time."

There was a white light in the dome of the vestibule of the runaway car or on the platform, and the effect of the light was testified to as follows by one witness:

"The lamp in the dome of the vestibule of the Pullman.car had a white shade or globe underneath; it gave a bright light— you could see it all right; the lamp was inside of the door and the door was closed; the glass in the door extended about half way down, and the light shown through the glass in the door."

VOL. CXCI-30

By another witness:

Statement of the Case.

191 U. S.

"That the light in the car was in the dome-in the vestibule -just on the outside of the door, over the platform; he knows there was a light in the west end of the car, the end going toward South Capitol street-which was the front end of the car the way it was moving; this light could be seen more plainly than a lamp; such lights contain two burners, are lighted by oil, and are more brilliant than a lantern; the reflector is over the top of the light; there is a kind of white shade over them; that the light in the vestibule of the car could be seen by people on the ground; it hung down low, and did not set right up in the dome; it had a shade over it, but he does not know whether you could call it a reflector or not; it was plain enough to be seen by anybody who was on the ground."

By another witness:

"That the light in the vestibule of a Pullman car is so located as to illuminate the platform only; that is the purpose of that light; that it does not throw the light more than a couple of feet beyond the end of the bumper of the car; it is not intended to illuminate the track.

'And thereupon, on cross-examination, said witness further testified that such a light was not intended for a locomotive headlight; that if a man was standing on the track some distance from the advancing end of a car showing such a light he would not see the source of the light, but would see the reflected light on the platform on the car; he could see the illuminated end of the car; that if he was not looking exactly in that direction this light would not attract his attention away from something else; that if he were looking up the track he could see the light if he were not too far away."

And the evidence showed "that a Pullman car running along an ordinarily straight track at a rate of speed a little faster than a man ordinarily runs, or can run, does not make any noise."

Landrigan was employed as a machinist and assistant boss on the night force at the round house, which was situated be

191 U. S.

Argument for Plaintiffs in Error.

tween H and I streets, on South Capitol street. He had been employed for eight years. His home was north of the railroad tracks on Virginia avenue, and the most usual and direct route to his home from the round house was up South Capitol street to the southwest crossing, "then right over to the north side of Virginia avenue; and it was the way Landrigan usually took." On the night of the accident he left the round house about 11:50 o'clock, and about twelve o'clock was found in the place and condition described in the testimony. The night "was not a clear night, nor was it a real dark night-there was no moon and there were a few clouds." The crossing was lighted up by street lamps located on each side of the four corners, and there was an electric light in the reservation north of the tracks, and another one south and east of the tracks near the signal tower.

There was testimony to the effect that to a person outside of the gate the flagman's box would "obstruct the view of the ladder track to the east, but one standing on the inside of the gate on the open space, you could look straight up the track to the eastward, and there was nothing to break your view." And also that two freight cars obstructed the view to the west.

There was no eyewitness to the accident, and Landrigan, in response to the inquiry, "How did this thing happen?" replied, "I came under the gates and something struck me, and a whole train of cars ran over me." He died about four o'clock without making further explanation.

At the close of the testimony the plaintiffs in error moved the court to instruct the jury to find a verdict for them. The court refused, and this is assigned as error. The case was then submitted on the evidence of the defendant in error.

Errors are also assigned upon the giving and refusing of certain instructions.

Mr. Frederic D. McKenney and Mr. J. Spalding Flannery, with whom Mr. Wayne McVeagh was on the brief, for plaintiffs in error:

Argument for Plaintiffs in Error.

191 U. S.

The railroad company cannot, as to the backing up of the Pullman car, be held liable for doing unintentionally what it had a right to do. Stewart v. Washington & Great Falls Ry. Co., decided Nov. 4, 1903, by Court of Appeals, Dist. Col.

There is a distinction between remote and proximate causes of an accident. The proximate cause was the passing over the tracks by the plaintiff below while the gates were down. Insurance Co. v. Boon, 95 U. S. 130; Scheffer v. Railroad Co., 105 U. S. 249; W. & G. R. R. v. Hickey, 166 U. S. 528; Cullen v. Railroad Co., 8 D. C. App. 69; Granger v. Boston & Albany, 146 Massachusetts, 276; Allerton v. R. R. Co., 146 Massachusetts, 241; Schmidt v. Phila. & Reading R. R. Co., 149 Pa. St. 337; Debbins v. R. R. Co., 154 Massachusetts, 402; Marden v. Boston & Albany, 159 Massachusetts, 393; Peck v. R. R. Co., 50 Connecticut, 379; B. & O. v. Colvin, 118 Pa. St. 230; Cleary v. R. R. Co., 140 Pa. St. 19; Sheehan v. R. R. Co., 166 Pa. St. 354; Duvall v. Michigan Central R. R. Co., 105 Michigan, 386; Douglass v. R. R. Co., 100 Wisconsin, 405; 76 N. W. Rep. 356; Railway Co. v. Schneider, 45 Ohio St. 678; Railway Co. v. Ehlert, 63 Ohio St. 320.

Either plaintiff did not look or, having looked, he disregarded what he saw. In explaining the occurrence he made no mention of having looked up and down the tracks before venturing upon them, and if his statement is to be accepted at all, it should be accepted as conclusive, and the case should also have been taken from the jury on this ground, for by his reference to a "whole string of cars" he must have meant the express train No. 78; it was conceded that if he was injured by that train he could not recover.

If he did not look and listen before attempting to cross the tracks, or if he looked and failed to heed the warnings of his senses, he was guilty of such contributory negligence as will prevent plaintiff from recovery here. Northern Pacific R. R. Co. v. Freeman, 174 U. S. 384; Hook v. Mo. Pac. Ry. Co., 63 S. W. Rep. 360; 21 A. & E. R. R. Cas. (N. S.) 787.

191 U. S.

Argument for Defendant in Error.

The true rule in cases of this character is that there is no presumption of law either way or in favor of either party. Beach on Contributory Negligence, § 182; Missouri Pacific v. Foreman, 73 Texas, 311; Phila., W. & B. R. R. Co. v. Stibbing, 62 Maryland, 504; Texas & Pacific v. Gentry, 163 U. S. 353.

One is not entitled to say that he was injured by the negligence of another if he, by the use of ordinary care, might have escaped the damage. Davey v. London & S. W. Ry. Co., 12 Q. B. D. 70 (1883); Wakelin v. London & S. W. Ry. Co., 12 App. Cas. 41 (H. L. 1886); The Bernina, 12 Probate Div. 58 (1887); Sewall v. N. Y., N. H. & H. R. Co., 171 Massachusetts, 302; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408; Patton v. Texas Pacific Ry. Co., 179 U. S. 658.

Mr. J. J. Darlington and Mr. Charles A. Douglass, with whom Mr. Joseph D. Wright was on the brief, for defendant in error:

The trial judge could not have directed a verdict for defendants below. As to respective functions of judge and jury, see Douglass v. Railroad Co., 100 Wisconsin, 407; Grand Trunk Railroad Co. v. Ives, 144 U. S. 408; Texas & Pacific v. Gentry, 163 U. S. 353, 369; Cowen v. Merriam, 17 App. D. C. 186.

Defendants charge that this contributory negligence which they impute to deceased consisted of two distinct acts on his part: (1) going under the closed gates; (2) failing to look and listen.

Appellants cite many authorities and quote in extenso from the opinions of the courts in support of the general proposition that to go under closed gates and on a railroad track constitutes negligence per se.

The principle as stated, and when applied to the ordinary case, where the gates are used as signals of danger or safety -danger when closed, and safety when opened-is obviously wholesome and sound.