It is, therefore, a sound view that a mere mistake of judgment, made by him under such circumstances, will not excuse the company if it is negligent in running upon him; though if it give him sufficient time for a man of ordinary intelligence, exercising ordinary care, to get out of the way before being struck, it will not be liable.215

1785. Cases of this Kind where Contributory Negligence was not Excused.-Cases are not infrequent, however, where the courts refuse to excuse contributory negligence even under such circumstances:As where a person, on approaching a crossing where two trains had met and were standing, attempted to cross the tracks without stopping to look and listen, and was injured by one of the engines moving slowly behind him and without giving audible signals;216 or where a trespasser stepped off one track because a train was approaching behind, and, without looking around, walked along near to a side track, and was struck by a yard-engine, being well acquainted with the locality;217 or where a trespasser, walking on a track, on seeing an engine approaching in front, stepped over on another track without looking behind him, and was struck by an engine coming from the rear;218 or where a man employed in carrying posts across two railroad tracks, knowing the frequency of trains, unnecessarily stopped on one track while waiting for a train to go by on the other, and was struck by a train which he might easily have avoided by taking a single step backwards;2 or where a man absent-mindedly walked across two tracks at a street crossing, and, on reaching the second track, saw a train coming, and, stepping back to avoid it, was struck by an engine backing upon the first track;220 or where a person, walking along a railroad track at a point at which he knew that trains were constantly passing, stepped upon the track immediately after an engine had passed, without looking behind him, and was run over by cars which were following about 100 feet behind the engine;221 or where an intelligent boy, thirteen years old, saw a train approaching upon a railroad track on which he was walking, and stepped over upon another track, upon which a train going in the opposite direction had recently passed,

.219

215 Scott v. Pennsylvania R. Co., 30 N. Y. St. Rep. 843; s. c. 9 N. Y. Supp. 189.

210 East Tennessee &c. R. Co. v. Kornegay, 92 Ala. 228; s. c. 9 South. Rep. 557.

217 Austin v. Chicago &c. R. Co., 91 Ill. 35.

219 Roden v. Chicago &c. R. Co., 133 Ill. 72; s. c. 24 N. E. Rep. 425; aff'g s. c. 30 Ill. App. 354.

219 Harris v. Missouri &c. R. Co., 40 Mo. App. 255; distinguishing Gessley v. Missouri &c. R. Co., 32 Mo. App. 413.

220 McClary v. Chicago &c. R. Co., 46 Fed. Rep. 343.

221 Martin v. Georgia R. &c. Co., 95 Ga. 361; s. c. 22 S. E. Rep. 625. But see ante, §§ 1695, 1696, 1717.

without looking backward to see whether it continued to proceed in that direction, or was backing up, there being ample space for safety on either side of the tracks ;222 or where a person familiar with the locality, voluntarily and unnecessarily walked along a railroad track, and stopped between standing cars, in order to avoid a passing train, and then stepped out upon an adjoining track, without looking or listening to discover whether a train was approaching, although he knew that trains frequently passed, and was struck and killed by a train;223 or where a person walking near a railway track, after a moving car, not attached to any engine, had passed him, and after he had heard the puff of a locomotive behind him, stepped so close to the track without looking backward, that he was struck by other cars following at a short distance behind the first one ;224 or where a man went at night across railroad tracks, which were in constant use by passing trains, for the purpose of leaving a letter in a mail car, which was standing on a side track, and, in endeavoring to avoid one train, was struck by another, approaching rapidly from a different direction.225 And so, under the circumstances of the cases cited in the margin, except as noted.226

§ 1786. Going upon the Track Immediately in Front of a Moving Train. Going upon a railway track immediately in front of a moving train, especially without using one's faculties to discover its approach, is an act of gross negligence which the law does not excuse at a public highway or street crossing,227 and still less where there is no regular crossing, but where his position is that of a technical trespasser, bare

222 Meredith v. Richmond &c. R. Co., 108 N. C. 616; s. c. 13 S. E. Rep. 137.

223 Ryan v. New York &c. R. Co., 17 App. Div. 221; s. c. 45 N. Y. Supp. 542.

224 Smith v. Houston &c. R. Co., 17 Tex. Civ. App. 502; s. c. 43 S. W. Rep. 34.

225 Briscoe v. Southern R. Co., 103 Ga. 224; s. c. 28 S. E. Rep. 638.

220 Galveston &c. R. Co. v. Simon (Tex. Civ. App.), 54 S. W. Rep. 309 (error to refuse an instruction on an hypothesis supported by the evidence that the plaintiff was guilty of contributory negligence); Meyer v. Brooklyn &c. R. Co., 62 N. Y. Supp. 33; s. c. 47 App. Div. 286 (driver of a loaded truck, turning off a south bound street railroad track, struck by a car on the north

bound track-not guilty of contributory negligence as matter of law). In another case, evidence that the decedent was told that the train was standing in the depot, and would soon be along; that he continued to walk on one track until he met the train coming towards the depot, when he stepped over to the other track; that the bell of the train which caused his death was continuously rung, and the headlight burning; that the engineer sounded the whistle when but 50 feet from him; and that there was a good level walk along the side of the track,-required a judgment for the defendant: Pennsylvania Co. v. Meyers, 136 Ind. 242; s. c. 36 N. E. Rep. 32.

227 Ante, § 1666.

licensee, or volunteer.228 One court has held that it is negligence per se to go upon a railroad track immediately in front of an approaching train, no matter whether the person stops, looks or listens, or not.229 This rule was applied so as to defeat a recovery where a person, knowing that two trains would soon follow him, started to walk along double tracks, having a sufficient space between them to enable him to walk in safety in case the two trains should pass simultaneously, but who, although warned of their approach, remained between the tracks until they had nearly reached him, and then attempted to cross one of the tracks, and in doing so was struck by one of the engines and killed.280 It was applied so as to prevent a recovery of damages where a postmaster of a railway station, hearing a train approaching at the time when the mail train usually passed, started with his mail-bags to cross the track to the platform, relying on the assumption that the train would stop; but the train, being a freight train, under orders not to stop, passed by at a great rate of speed and struck and killed him.281 It was so applied where a person stepped immediately in front of a locomotive coming at a speed of more than eighteen miles an hour, without looking, although he had looked a short time before and saw the locomotive standing still at a point about 200 feet distant.282 But it does not follow from the preceding holdings that there can be no recovery of damages in any case of this kind. Here, as elsewhere, the rule applies that the .contributory negligence of the person so exposing himself to danger does not preclude a recovery for his death or injury, where the employés in charge of the advancing engine or train discovered him in time to warn him, or to stop the engine or train, or to check its speed, but made no effort to do either.283

§ 1787. Running in Front of Trains about to Start.-A person who attempts to reach a railway station across a railroad track in front of

29 Atchison &c. R. Co. v. Priest, 50 Kan. 16; s. c. 31 Pac. Rep. 674 (in a railway yard); Dell v. Phillips Glass Co., 169 Pa. St. 549; s. c. 36 W. N. C. 467; 32 Atl. Rep. 601 (deceased, who was employed to carry mails to and from the station, stood upon a sidetrack talking until a freight car, that had been standing upon the sidetrack and had been negligently loosened, ran upon and killed him).

220 Sheehan v. Philadelphia &c. R. Co., 166 Pa. St. 354; s. c. 31 Atl. Rep. 120; Dell v. Phillips Glass Co., 169 Pa. St. 549; s. c. 36 W. N. C. 467; 32 Atl. Rep. 601. See also Cincinnati

&c. R. Co. v. Lally, 14 Ohio C. C. 333; Chicago &c. R. Co. v. Argo, 82 Ill. App. 667 (volunteer, attempting to deliver a message from a telegraph operator to an employé in charge of a train).

230 Noyes v. Southern &c. R. Co. (Cal.), 24 Pac. Rep. 927.

231 Moody v. Pacific R. Co., 68 Mo. 470.

232 Nolan v. Milwaukee &c. R. Co. 91 Wis. 16; s. c. 64 N. W. Rep. 319.

233 Texas &c. R. Co. v. Brown, 14 Tex. Civ. App. 697; s. c. 39 S. W. Rep. 140.

a train which he knows is about to start at any moment, and who persists in his attempt after he knows that the train has started, is guilty of such contributory negligence as will bar a right of action for damages in case he is killed or injured, unless some of the qualifying circumstances, elsewhere stated,234 are found to exist.235

or

1788. Struck while Standing or Walking between Two Tracks. The Supreme Court of Pennsylvania have held that it is negligence as matter of law for a person to stand between two railway tracks while a train passes. 236 But that there can be no absolute rule of law upon this subject, will at once be perceived when it is considered that the question depends upon the distance of the tracks from each other, the speed of the approaching trains, and other circumstances which would ordinarily take it to the jury.237 The Court of Appeals of Maryland hold that the question of contributory negligence in a person struck by a train while standing between two tracks, which were in close proximity with each other, at a point where two trains, going in opposite directions, passed each other, is properly withdrawn from the jury, where he could not have failed to see and hear the trains if he had made proper use of his faculties, rendering it certain either that he did not look and listen, or that he did not heed what he saw or heard.238 Another court has held that a recovery can not be had for the death of one who voluntarily walked on a cinder path between railroad tracks, where a less dangerous route was available to him, and his death was due to the risk incident to the route which he selected.239 But it is apparent that negligence can not, as matter of law, be imputed to a person merely because he walks between two railway tracks which have been laid upon the surface of a public street, for here the public have a right of passage in common. with the railway company, though necessarily in subordination to its right.240

§ 1789. Sitting Down upon Railway Track.-It may be, and doubtless is, more comfortable to sit down on a railway track than to

234 Ante, §§ 1472, 1677.

255 French v. Detroit &c. R. Co., 89 Mich. 537; s. c. 50 N. W. Rep. 914.

236 Moore v. Philadelphia &c. R. Co., 108 Pa. St. 349.

237 See, for example, East St. Louis &c. R. Co. v. Reames, 173 Ill. 582; s. c. 51 N. E. Rep. 68; aff'g s. c. 75 Ill. App. 28.

238 Reidel v. Philadelphia &c. R. Co., 87 Md. 153; s. c. 10 Am. & Eng.

Rail. Cas. (N. S.) 91; 39 Atl. Rep. 507.

239 Settoon v. Texas &c. R. Co., 48 La. An. 807; s. c. 19 South. Rep. 759.

240 Ante, § 1375; McIlhaney v. Southern R. Co., 122 N. C. 995; s. c. 11 Am. & Eng. Rail. Cas. (N. S.) 100; 30 S. E. Rep. 127; rev'g on rehearing s. c. 120 N. C. 551; 26 S. E. Rep. 815; 6 Am. & Eng. Rail. Cas. (N. S.) 693.

stand up; but one who accommodates himself in this way, especially at night, is guilty. of contributory negligence, as matter of law, and can not make his own folly a ground of recovering damages from the railway company, if he is hurt in consequence of it.241

§ 1790. Lying Down on Railway Track.242-Subject to the qualifications already stated,243 a person who tries to make a bed of a railway track, by lying down upon it, is guilty of contributory negligence, and no damages can be recovered from the company if he is run over and killed or injured,244 unless after discovering his peril they might, by the exercise of reasonable care, have avoided the catastrophe,245 or unless the circumstances were such as to ascribe the accident to wantonness or willfulness on the part of the trainmen.246 But in a jurisdiction where the independence of juries is strictly upheld, the mere fact that a person was injured by being struck by a locomotive while lying on the track outside the limits of any street, did not, as matter of law, constitute such contributory negligence as would prevent a recovery; but it was a question for the jury, whether the fact of his being there was to be deemed negligence, or whether it resulted from some cause not inconsistent with the exercise of reasonable care on his part.247

§ 1791. Going to Sleep on Railway Track.248-A person who lies down and goes to sleep upon a railway track, although no train is in sight at the time, expecting any train that may approach to stop until he wakes up, or to get off the track and go around him, or in some way to climb over him without hurting him,-generally receives. even less favor from the courts. This is contributory negligence per se; and if he is killed, not willfully, wantonly or intentionally, his misconduct will not be allowed to be made the ground of recovering.

241 Parish v. Western &c. R. Co., 102 Ga. 285; s. c. 29 S. E. Rep. 715; 10 Am. & Eng. Rail. Cas. (N. S.) 374; 40 L. R. A. 364. A case of contributory negligence of this kind was shown where a boy sixteen years old, after being warned of the danger, sat down on a railway track behind a curve on a high "fill," which prevented his being seen by the engineer of an approaching train in time to stop the train: Roseberry v. Newport News &c. R. Co., 19 Ky. L. Rep. 194; s. c. 39 S. W. Rep. 407 (no off. rep.).

242 This section is cited in § 1815. 43 Ante, § 1734, et seq.

244 Parish v. Western &c. R. Co., 102 Ga. 285; s. c. 29 S. E. Rep. 715; 10 Am. & Eng. Rail. Cas. (N. S.) 374; 40 L. R. A. 364.

245 Louisiana &c. R. Co. v. McDonald (Tex.), 52 S. W. Rep. 649.

240 Houston &c. R. Co. v. Smith, 77 Tex. 179; s. c. 13 S. W. Rep. 972; Rozwadosfskie v. International &c. R. Co., 1 Tex. Civ. App. 487; s. c. 20 S. W. Rep. 872; Virginia &c. R. Co. v. Boswell, 82 Va. 932; s. c. 7 S. E. Rep. 383.

247 East St. Louis &c. R. Co. v. O'Hara, 150 Ill. 480; s. c. 37 N. E. Rep. 917; aff'g s. c. 49 Ill. App. 282.

248 This section is cited in § 1815.