the passage of trains upon the right of way of the company; for in such case the law is settled that the company owes no duty to trespassers upon its tracks except not to run them down willfully or maliciously. Railway Co. v. Phillips' Adm'r, 24 U. S. App. 489, 12 C. C. A. 618, 64 Fed. 823; Sheehan v. Railway Co., 46 U. S. App. 498, 22 C. C. A. 121, 76 Fed. 201. The locomotive driver has the right to assume that the object, if animate, will leave the track upon hearing the coming train. It is quite a different matter, however, where railway trains, whether propelled by steam or electricity, pass along the crowded thoroughfares of a populous city. The care to be exercised is relative, and must be proportionate to the dangers reasonably to be apprehended. Here the locus in quo was in the outskirts of the city of Chicago, but was sparsely populated; there being, according to the facts found and stipulated, no houses on the westerly side of the railway, and along the easterly side there was a sidewalk of some sort and a few houses. It was an open prairie. The track of the railway may have been laid upon ground that was platted as a street, but there was no roadway for the passage of teams, and there was a ditch on either side of the railway. There were no street lights, as is usual in a city. The motorman, on reaching the crest of the incline, saw at a distance of 65 feet an object upon the track, which both he and the messenger boy standing with him upon the platform of the car took to be a dog. He immediately applied the brake, checking the speed of the car, and sounded the gong to arouse the supposed animal, and cause it to leave the track.

It is stipulated that the motorman had no reason to expect a human being to be upon the track at that place or at that time. The record does not explain the presence of the man, and we are unable to ascertain with what purpose or for what object a human being should be in that situation. The stipulation of fact is certainly reasonable that the motorman had no reason to expect the presence of a human being upon the track. We do not think, therefore, that the duty was imposed upon him, upon perceiving an object, to bring his car to a stop to discover the nature of the object. He did no less than his duty required of him to check the speed of the car and sound his gong, and so soon as he perceived that the object did not respond to the signal he reversed to bring the car to a standstill. Upon a level, under such circumstances, the car could have been stopped within 40 feet, but, it being upon a downward grade, it could not be stopped within that distance. We cannot perceive that the motorman was lacking in any degree in the exercise of that prudence and care which, under the circumstances, the law imposed upon him. The decree will be affirmed.

NOTE.

Care Required of Motormen and Drivers as to Persons on or near Track.

1. In General.

[a] (Ill. App. 1895) It is negligence on the part of an electric street-railway company to require the motorman to leave his post to collect the fares of passengers.-Railway Co. v. Jones, 61 Ill. App. 183.

[b] (Mo. Sup. 1889) An instruction requiring the gripman to exercise or

40 C. C. A. REPORTS.

dinary care to prevent the injury is not erroneous, as requiring him to stop his train without regard to the safety of the train or its passengers.-Pope v. Railway Co., 12 S. W. 891, 99 Mo. 400.

[c] (N. Y. Sup. 1889) It is not error to refuse to charge that defendant owed plaintiff no active vigilance to guard him from accident, as it was defendant's duty to use at least ordinary care, and, incidentally, whatever "active vigilance" might be implied thereby.-Weiler v. Railway Co., 6 N. Y. Supp. 320, 53 Hun, 372.

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[d] (Tex. Sup. 1889) In an action for personal injuries, caused by being struck by defendant's street car, the court charged that if the injury "was caused by the carelessness of the driver of said car, and tiff was at the time exercising that care which a person of his age would ordinarily use under like circumstances, and if the plainhave been avoided by the use of ordinary care on the part of the driver of said car," the verdict should be for plaintiff. It also charged that the said injury might driver "was only required to use such care and caution in driving the car as a person of ordinary prudence * if he was using "that degree of care which prudence required under the cirwould usually exercise," and that cumstances, and his part," the verdict should be for defendant. the injury was not caused by any negligence on were correct, and that the court properly refused to charge that if the Held, that these instructions injury was "through misfortune and misadventure," and the driver exercised ordinary care and diligence, plaintiff could not recover.-Railroad Co. v. Witten, 11 S. W. 1091, 74 Tex. 202.

[e] (Tex. Civ. App. 1894)

car company to persons upon its tracks is not that high degree of care which it is required to exercise towards passengers is incorrect when applied to a company running electric cars on city streets.-Railway Co. v. Dunlap, 26 S. W. 877, 7 Tex. Civ. App. 471.

An instruction that the care required of a street

[f] (Wash. Sup. 1892) In an action for injuries caused by the collision of a cable car with plaintiff's wagon, the court properly refused to charge that, if plaintiff was guilty "of any negligence whatever, or concurred with the negligence of defendant, if any," in causing the accident, then the verdict must be for defendant, as requiring too great a degree of care of plaintiff.-Spurrier v. Railway Co., 29 Pac. 346, 3 Wash. St. 659.

2. Children.

[a] (Ill. App. 1895) The failure of a street-car company to keep a conductor on the car, as required by ordinance, did not of itself render the company liable for injuries received by a child which jumped on the rear end of the car, in play, and fell therefrom.-Railway Co. v. Hair, 57 Ill. App. 587.

[b] (La. Sup. 1895) Where the driver of an electric car, while making change for a passenger, failed to notice a child three years of age, which was crossing the track, and the car ran into the child, the company was liable.Barnes v. Railroad Co., 17 South. 782, 47 La. Ann. 1218.

[c] (Minn. Sup. 1890) In an action for negligence causing the death of a child three years old, there was evidence that the accident was due to the driver's negligence in not observing the child in front of the car, because the former was occupied in making change for a passenger. Held, that evidence that the cars on defendant's line at the point of accident were habitually crowded with passengers was admissible. If the cars were habitually crowded, the defendant was chargeable with notice thereof, and also with knowledge that the attention of the drivers was thereby frequently distracted from the path of the car.-Anderson v. Railway Co., 44 N. W. 518, 42 Minn. 490. [d] (N. Y. App. 1891) front of a moving car, fell down, and was run over. A boy, attempting to run across a street-car track in car was not more than 20 feet distant. The place was not a crossing, and the When the boy fell, the driver applied the brake as soon as the boy fell. company was not responsible for the accident.-Fenton v. Second Ave. R. Co., Held, that the street-car 26 N. E. 967, 126 N. Y. 625, reversing (1890) 9 N. Y. Supp. 162, 56 Hun, 99. [e] (N. Y. Sup. 1887) The act of a driver of a street car, in running over a child on the track, is not voluntary, when the driver's attention is drawn to the inside of the car at the time, and he is unaware of the child's presence. -Stone v. Railroad Co., 46 Hun, 184.

[f] (N. Y. Sup. 1891) In an action for personal injuries caused by the negligence of a horse-car driver, it appeared that the car was going slowly up a hill at the time plaintiff, a child 2 years of age, was injured, and both the driver and tow boy testified that they were looking straight ahead, but saw nothing of the child until after the accident. Held, that an instruction that the highest degree of care is required of a driver who sees a person lying helpless on the track in front of his car was not ground for reversal, as it could not have injured defendant.-Giraldo v. Railroad Co., 16 N. Y. Supp. 774, 62 Hun, 620.

[g] (N. Y. City Ct. Brook. 1888) Deceased, a boy 10 years old, in attempting to cross defendant's track, fell two feet in front of approaching horses attached to a car, and the two front car wheels passed over him. The testimony of the driver and that of other witnesses tended to show that the car, if going at a proper speed, might have been stopped. Held, that the question of the negligence of the driver, and of contributory negligence of deceased, were properly submitted to the jury.-Dorman v. Railroad Co., 1 N. Y. Supp. 334.

[h] (N. Y. City Ct. Brook. 1894) Where plaintiff's intestate, a child six years old, was run over and killed by defendant's electric car while crossing the tracks, and there is evidence that the view of the track was not obstructed for a considerable distance, but that the motorman was not looking ahead, and did not see the child until the car struck him, the questions of negligence and contributory negligence are for the jury.—Keenan v. Railroad Co., 29 N. Y. Supp. 325, 8 Misc. Rep. 601.

[i] (Tenn. Sup. 1899) A charge that it is the duty of a motorman to keep a vigilant lookout for children on the street, and upon the first appearance of danger, or probable collision with a child, to stop the car in the shortest time and space possible, does not impose too great a degree of care on the motorman, where it is charged, in the same connection, that he is bound to act only as a man of ordinary prudence.-Railway Co. v. Dan, 52 S. W. 177, 102 Tenn. 320.

[j] (Tex. Sup. 1887) In an action against a street-railway company to recover for running over a child 19 months old, it not appearing positively in evidence whether the driver saw the child on the track or not, but it appearing probable that he did not, held, that an instruction that the company should exercise the highest degree of diligence towards a child of tender years, and would be liable for slight negligence, was proper.-Railroad Co. v. Hewitt, 3 S. W. 705, 67 Tex. 473.

[k] (Tex. Sup. 1895) Where a child is discovered on the track in front of a moving street car by the servant operating it, or is seen approaching the track with the apparent purpose of crossing, the highest degree of care must be exercised to prevent injury.-Railway Co. v. Mechler, 30 S. W. 899, 87 Tex. 628, affirming (1894) 29 S. W. 202.

3. Persons under Disability.

[a] (N. Y. Sup. 1890) A man, 61 years of age, and a little deaf, was fatally injured by being struck by the horses of a street car while he was crossing the tracks. Before he started to cross, he was observed to look both ways. The car was then 50 feet away, but was going faster than usual, and did not slacken its speed until the man was struck. The driver did not see him until the horses were within six feet of him, when the accident could not be prevented. Held, in an action for damages for his death, that there was sufficient evidence of negligence on the driver's part to be submitted to the jury. -Wells v. Railroad Co., 12 N. Y. Supp. 67; 58 Hun, 389.

4. Wheelmen.

[a] (Ky. App. 1899) It was the duty of the motorman to use the highest degree of care to avoid injury to a wheelman in a public street.-Railway Co. v. Blaydes, 51 S. W. 820.

5. Signals and Lookout.

[a] (Mo. Sup. 1889) An instruction requiring a vigilant watch of the "track ahead" is not confusing, though there were several parallel tracks.-Pope v. Railway Co., 12 S. W. 891, 99 Mo. 400.

[b] (Mo. Sup. 1899) Acceptance by a street-railway company of the provi

sions of an ordinance declaring that motormen and conductors shall keep a vigilant watch for persons on or moving towards its track, and on the first appearance of danger to such persons the car shall be stopped in the shortest time and space possible, is not shown by the company agreeing to hold the city harmless from all damages that may occur to it by reason of its failure to comply with ordinance, as the city could not be held in damages for any failure of the company to obey such ordinance.-Murphy v. Railway Co., 54 S. W. 442.

[c] (N. J. Err. & App. 1897) It is not the duty of a motorman on an electric car to be on the lookout for pedestrians on the track while crossing a trestle on the private right of way of the company in the nighttime.-Young v. Railway Co., 37 Atl. 1013.

[d] (N. Y. Sup. 1889) A charge that it was the duty of the gripman to keep a strict lookout forward for obstructions or objects which might come upon the track is also erroneous, as it is a question for the jury to determine whether, in the absence of such a strict lookout, the car was managed with proper care.-Wright v. Railway Co., 5 N. Y. Supp. 707, 53 Hun, 630.

[e] (Tex. Civ. App. 1894) Under an ordinance requiring the motorman to watch for persons on the track or moving towards it, and at the first appearance of danger to stop his car as quickly as possible, it is negligence in the motorman to be looking backward, and talking to some one in the car, when the car is moving rapidly along a principal street, where people are always likely to cross.-Railway Co. v. Elliott, 26 S. W. 455, 7 Tex. Civ. App.

216.

[f] (Tex. Civ. App. 1895) Where a street-car motorman sees one working on the tracks in front of the car, and knows that he is not aware of its approach, he must use every precaution to avoid an accident, and a mere sounding of the gong will not relieve the company from liability.-Railway Co. v. Woodlock, 29 S. W. 817.

6. Rate of Speed.

[a] (N. Y. Sup. 1889) In an action for injuries received by being run over by a car, there was evidence, that the car was being propelled at a high rate of speed, one witness testifying that the horses were galloping. The driver was blind in one eye, one of the brakes was not in good order, and there was evidence that the driver had his head turned towards the car, away from the direction it was moving, and that there was nothing requiring his attention about the car. There was also evidence that, after plaintiff fell on the track in front of the car, an outcry was made to stop the car, but that the driver failed to heed the cry, or try to stop the car. Held, that the jury were warranted in finding the driver negligent, so as to render his employers liable.Silberstein v. Railroad Co., 4 N. Y. Supp. 843, 52 Hun, 611.

7. Care in Crowded Streets.

[a] (D. C. App. 1895) The gathering of a large crowd in the immediate vicinity of the tracks, and overflowing them, imposes upon the company's employés the duty of greater care and caution in the running of trains, but does not require the stopping of the trains altogether.-Railroad Co. v. Wright, 7 App. D. C. 295.

[b] (Del. Super. 1898) A street-railway company is held to greater caution in the densely populated portions of a city than in the less obstructed streets in the suburban parts.-Brown v. Railway Co., 40 Atl. 936, 1 Pennewill, 332. 8. Right to Presume that Person Will Leave Track.

[a] (La. Sup. 1892) Where a person is approaching a street-railway track, the driver of a car thereon has a right to presume the person sound of hearing, and that she will exercise her senses, so as to avoid an accident, by stopping in time to let the car pass freely.-Schulte v. Railroad Co., 10 South. 811, 44 La. Ann. 509.

[b] (Mo. Sup. 1895) The gripman of a cable street railway is not required to stop or check the car on seeing a pedestrian approaching the track, as he has the right to assume that the pedestrian will use reasonable precautions to avoid danger.-Bunyan v. Railway Co., 29 S. W. 842, 127 Mo. 12.

[c] (N. Y. City Ct. Brook. 1889) The driver of a street car, who sees a carriage crossing the tracks in front of him on a walk, is not justified in going

ahead, trusting that the carriage driver will get out of his way. The fact that the carriage driver can turn in any direction, and thus avoid the car, which is confined to its tracks, does not relieve the car driver of the duty to use ordinary care to avoid collision.-Gallagher v. Railroad Co., 4 N. Y. Supp. 870.

9. Injuries Avoidable Notwithstanding Contributory Negligence.

[a] (Ky. App. 1899) It is the duty of a motorman to use the highest degree of care to avoid injury to a person after discovering his peril.-Railway Co. v. Blaydes, 52 S. W. 960.

[b] (Mass. Sup. 1893) Plaintiff asked the court to charge that he was where he had a right to be, and, even if not, it was defendant's duty to use all possible means to prevent running into him, and defendant had no right to run into him; that, if plaintiff were where he had no right to be, and did his best to extricate himself, he could recover. The court refused, and charged that if plaintiff negligently got where. he had no right to be, and his presence there caused his injury, he could not recover; but if, without his negligence, he was where he had no right to be, it was defendant's duty to use all reasonable means to protect him, and not willfully injure him. Held, that plaintiff had no ground for exception. Glazebrook v. Railway Co., 35 N. E. 553, 160 Mass. 239.

[c] (Mo. Sup. 1889) Where plaintiff's evidence tends to show that the gripman saw deceased crossing the track when at such distance that he could have avoided collision by using promptly the appliances at his command for checking the train, the case is properly submitted to the jury.-Pope v. Railway Co., 12 S. W. 891, 99 Mo. 400.

[d] (Mo. Sup. 1895) A gripman of a cable street railway must, when it is apparent that a pedestrian is about to place himself in danger, use every possible effort, consistent with the safety of the passengers, to avoid injury to him. Bunyan v. Railway Co., 29 S. W. 842, 127 Mo. 12.

[e] (N. Y. City Ct. Brook. 1891) While plaintiff in the performance of his duties was flagging an approaching train at a public crossing he was knocked down by defendant's horse car, although he was in plain view of the driver for several hundred feet before the car came up to where he was standing. Held, that proof of these facts justified the inference of negligence on the part of defendant and want of negligence on the part of plaintiff.-D'Oro v. Railroad Co., 13 N. Y. Supp. 789.

10. Right of Way.

[a] (Ill. App. 1889) In an action against a street-railway company for personal injuries to a person on the track, it is error to charge that the company has an absolute right of way over its track, as against all foot passengers and vehicles, without regard to circumstances.-Railway Co. v. Ingraham, 33 Ill. App. 351, affirmed (1890) 23 N. E. 350, 131 Ill. 659.

[b] (Pa. Super. Ct. 1898) A street-railway company, occupying the streets with its tracks in common with the public, must exercise a watchful care to prevent accidents to persons properly using the streets by collisions with passing cars.-Jones v. Railway Co., 9 Pa. Super. Ct. 65, 43 Wkly. Notes Cas. 298. [c] (Tenn. Sup. 1899) Between street crossings, a street-railroad company's right of way is superior to, but not exclusive of, the right of a pedestrian.Railroad Co. v. Howard, 52 S. W. 864, 102 Tenn. 474.