used by the general public. But even if it were not a public crossing, the company allowed the public to use it, and trespasses of the public for twenty years had ripened into a right by sufferance. Kay v. P. and R. R. Co., 15 Smith, 273.

Duties grow out of circumstances, and where from any good reason a person may be expected to cross a railroad, the same rules apply as in case of a highway crossing. Shearman & Redfield on Negligence, sec. 482.

Under the circumstances the rate of speed was incompatible with public safety. P. R. R. Co. v. Lewis, 29 Smith, 33.

Whether the conduct of those who were in charge of the cars was negligent or not was properly for the jury. P. R. R. v. Dook, 2 Smith, 381; Smith v. O'Connor, 12 Wright, 218.

April 10, 1882. The Court.-Whilst there were many exceptions taken to the charge and rulings of the Court below, the substance of them all may be considered in the disposition of the defendant's second and fourth points. These points were: (1) That "there was no evidence of negligence in the case on part of the defendants." (2) "The plaintiff was a trespasser, and therefore guilty of contributory negligence." Both these points were refused. The case turns mainly upon the last recited, or fourth point. The place where the accident occurred was not in the open country, but in a small village of about fifty houses. On the north side of the railroad were a furnace and four or five dwellings; on the south, the depot, a hotel, store, etc. At this point, one hundred and six feet from the public road crossing, there was an old and well-used foot-path leading over the railroad, and it was while attempting to cross by this path that the plaintiff, a child of twelve years of age, was injured.

The Court below thought that a person using this path to pass over the defendant's tracks could not be regarded as a trespasser. We can discover nothing wrong in this conclusion. If this was a common and well-known foot-path, used by the public for many years, it must certainly have been well-known to the employees and officers of this company, and if, without let or hindrance, the use of it was permitted to persons desiring to cross and re-cross the roadway, we cannot see how one thus using it could be treated as a trespasser. Certainly, if a private person had so permitted his land to be used, an action of trespass by him against one passing over it, without previous notice or prohibition, would meet with little favor. But we cannot, in this respect, clothe corporations with powers superior to those of natural persons. Indeed, if we regard the case of the Pennsylvania Railroad Company v. Lewis (29 P. F. S. 33) as authority, even a trespasser may have some rights which a railroad company is bound to respect, à fortiori as to a person who is on the roadway by permission. To hold otherwise would be but

a poor comment upon our civilization and upon the wisdom of this Court.

As to the negligence of the employees having charge of the cars by which the injury complained of was done, there can be from the evidence no doubt. A more perfect trap for the destruction of any one, more especially for a child of tender years and weak intellect, could scarcely have been devised. The train designed for the flying switch is cut from the engine some three-quarters of a mile from, and out of sight of, the crossing; the locomotive is run forward, and stationed directly across the foot-path; the train comes down the track at a rapid rate, and when within one hundred and fifty-nine feet of the place where the child stood, by some sleight of hand, unknown to persons not skilled in the management of railroads, and without warning of any kind, it is suddenly turned on to the switch. When, in addition to this, we understand that the hands upon and about this train paid no attention whatever to the track upon which it was running, and that the engineer actually saw the child in the act of approaching, and did nothing to warn her of the coming danger, we cannot understand how any one can have the face to say that there was no negligence on part of those having charge of this train, or, indeed, that they were not guilty of very gross negligence.

As to the plaintiff's contributory negligence, we can find no evidence of it; certainly not of that conclusive kind which would require the Court to take the question from the jury. The plaintiff herself testified as follows: "When I got to the path I walked down towards the road. When I came to the track in the path I stopped. Then the engine came down. I went a piece down towards the road and looked up and down the road, and saw nothing but the engine. I think I took three steps. I was on the first track and the engine was on the third track. When I got to the track on the path, the engine was coming down on the third track, about fifty or sixty feet away. Then I stood still until the engine stopped. Then I walked down the track about three paces to walk around the engine. I know that the engine stood on the path, but how much of the engine stood on the path I don't know." It is true that John North, an engineer of the company defendant, but not the one having charge of the engine then on duty, says he saw her when she first stepped on the siding, and that she remained upon it two or three minutes before she was struck. But in this there is no material contradiction of her testimony. In events of this kind time is at best but a mere matter of guess-work, and she was as likely to be correct as he. Be this, however, as it may, it is no serious reflection on the prudence of a child of her age that she waited and watched until the locomotive had stopped, and until, so far as she could see, the track was entirely clear, even though standing upon the siding. To an ordinary observer, not aware that the

flying switch movement was about to be executed, her position was one of no danger.

North says: "If the conductor had not turned the switch, the girl would not have been hurt." Doubtless he, with all his skill in railway management, did not think she was in danger, otherwise we can hardly understand why he did not attempt her rescue. Even had she seen the train moving upon the main track, how could she know that it would not continue on that track? How could this child tell that by a single motion of a lever the cars would be upon her within a space of time measured by some ten or fifteen seconds? This would be too much to ask of a grown person, much more of one of such tender years. The charge of the learned Judge of the Court below, when considered as a whole, and not dislocated as we find it in the assignments, is a fair one, and as favorable to the defendant as he had reason to expect; therefore, without further discussion, we refuse to sustain the exceptions to it. The judgment is affirmed.

Opinion by Gordon, J.

The nine cases immediately preceding this note turn upon the very important question of the obligation of railroad companies to the public at railway crossings. The aim of this note is to illustrate these cases by the collection of the chief authorities bearing on the same or analogous points; but no attempt will be made to consider the question as complicated by the contributory negligence of those persons traversing the track. It is well settled, as a general principle, that a railroad company is bound to use every reasonable precaution to avoid injury to the public at railway crossings, although it is not incumbent upon them to use every possible one. Weber v. N. Y. Central and Hudson R. R. Co., 58 N. Y. 451; Balt., etc., R. R. Co. v. Breinig, 25 Md. 378; Cleveland, etc., R. R. Co. v. Terry, 8 Ohio St. 570; Johnson v. Chicago and N. W. R. R. Co., 1 Am. and Eng. R. R. Cas. 155. It is therefore bound to furnish efficient brakes and such other well-tested improvements and inventions as may contribute to safety. Smith v. N. Y. and H. R. R. R. Co., 19 N. Y. 127; Costello v. Syracuse, B. and N. Y. R. R. Co., 65 Barb. 92. See note to Daugherty v. N. Y., L. E. and W. R. R. Co., Am. and Eng. R. R. Cas. post, p. 145.

In the absence of specific statutory provision a train should, on approaching a crossing, give such usual and customary warnings of its approach as are required in the prudent and skilful management of trains. Continental Improvement Co. v. Stead, 95 U. S. 161; Reeves v. Del., L. and W. R. R. Co., 30 Pa. St. 454; Bilbee v. London, etc., Ry. Co., 1 C. B. (N. S.) 584; Cliff . Midland Ry. Co., L. R., 5 Q. B. 261; N. J. Transportation Co. v. West, 33 N. J. L. 91; North Car. R. R. Co. v. State, 54 Md. 113. And it is for the jury to say, under the instruction of the court, what warnings are usual and necessary under the circumstances. Thomas v. Delaware, etc., R. R. Co., 2 Am. and Eng. R. R. Cas. 643; Black v. Burlington, C. R. and M. R. R. Co., 38 Iowa, 515; Galena and C. V. R. R. Co. v. Dill, 22 Ill. 264; Bauer v, Kansas Pacific R. R. Co., 69 Mo. 219; Paducah and M. R. R. Co. v. Hochl, 12 Bush. 41; Cadell v. N. Y. Cent. and Hud. River R. R. Co., 64 N. Y. 535; Ellis v. Gt. Western R. R. Co., L. R. 9, C. P. 551; P. C. and St. L. R. R. Co. v. Wright Executor (supra); Kansas Pac. R. R. Co. v. Richardson (infra).

In some cases, it is true, it has been held or intimated that a train is bound, independent of any statute, either to ring or whistle before passing a cross

ing, and that a failure to perform this duty will constitute negligence per se. Phila., Wilm. & Balt. R. R. Co. v. Stinger, 78 Pa. St. 219; Zimmerman ɛ. Hannibal & St. Jo. R. R. Co., 2 Am. & Eng. R. R. Cas. 181. But the great weight of authority is to the contrary. Brown v. Milwaukee and St. Paul R. R. Co., 22 Minn. 165; Northern Central R. R. Co. v. State Co. Use (supra). It has been held that in no event are the employees of a railroad company bound to give any warning of the approach of a train to a bridge over which a highway passes. Favor v. Boston & L. R. R. Co., 114 Mass. 350.

Where there is no express statutory provision a railroad company is not bound to place a flagman or to provide gates at a railway crossing, unless indeed the crossing be so dangerous that prudence would suggest the taking of such precautions. Welsch v. Hannibal & St. Jo. R. R. Co. supra, p. 75; Kelly v. St. Paul, Minn. & Manitoba R. R. Co. infra, p. 93; Kansas Pac. R. R. Co. v. Richardson, infra, p. 96; Grippen v. N. Y. Cent. & H. R. R. R. Co., 40 N. Y. 34; Culhane v. Same, 60 N. Y. 133; McGrath v. Same, 63 N. Y. 522; Commonwealth v. Boston & W. R. R. Co., 101 Mass. 201; Phila. & Reading R. R. Co. v. Kelleps, 88 Pa. St. 405; Del., Lack. & W. R. R. Co. v. Toffey, 9 Vroom, 525; State v. Phila., W. & B. R. R. Co., 47 Md. 76; Stapley v. London, B. & S. C. R. R. Co., L. R., 1 Exch. 21; Cliff v. Midland R. R. Co. L. R., 5 Q. B. 258; Pollock v. Eastern R. R. Co., 124 Mass. 158.

There is a strong disinclination on the part of the courts to leave to a jury. the determination of the obligations of the company in this respect. Dyer v. Erie Ry. Co., 71 N. Y. 228; Weber v. N. Y. Cent. & H. R. R. R. Co., 58 N. Y. 451.

But it is submitted that this is the proper course for the courts to pursue. Eaton v. Fitchburg R. R. Co., 129 Mass. 364; Penna. R. R. Co. v. Kelleps, 38 Pa. St. 405.

Where a company has undertaken to post a flagman, he is bound to stay at his post, and for a failure on his part to do so the company will be held liable. St. Louis, Vand. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; Kissinger v. N. Y. & H. R. R. R. Co., 56 N. Y. 538; Dolan v. Del. & Hud. Canal Co., 71 N. Y. 285; Casey v. N. Y. Cent. & Hud. River R. R. Co., 78 N. Y. 518. Of course where the company have once posted a flagman at a crossing, they have no right suddenly to remove him, without giving to the public due notice of their intention. Pittsburg, etc., R. R. Co. v. Junat, 3 Am. and Eng. R. R. Cas. 502.

In regard to the speed of trains, it seems that a railroad company is bound to so regulate it as to afford reasonable security to the public. The rate of speed which is allowable depends of course upon the locality. In towns and villages trains must be run far more slowly than in the open country, and this is so even if the matter be not regulated by statute. Penna. R. R. Co. v. Lewis, 79 Pa. St. 33; Pacific R. R. Co. v. Houts, 12 Kans. 328; Kansas Pac. R. R. Co. v. Ward, 4 Col. 30; Meyer v. Midland Pac. R. R. Co., 2 Neb. 319; Cordell v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 119; Daley v. Norwich & W. R. Co., 26 Conn. 591; Chicago & A. R. Co. v. Engle, 84 Ill. 397; Lafayette & I. R. Co. v. Adams, 26 Md. 76.

No one rate of speed, however, amounts to negligence per se. Chicago, Boston & Q. R. R. Co. v. Harwood, 80 Ill. 88; Maker v. Atlantic & P. R. Co., 64 Mo. 267; McKonkey v. C., B. & Q. R. R. Co., 40 Iowa, 205; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537; Grows v. Me. Central R. R. Co., 67 Me. 100; Bemis v. Conn. & P. R. Co., 42 Vt. 375; Cohen v. Eureka & P. R. Co., 14 Nev. 376; Warner v. N. Y. Cent. R. R. Co., 44 N. Y. 465.

Wherever the speed is great, the fact is submitted to the jury together with the attendant circumstances, and from it they may or may not infer negligence on the part of the company. Terre Haute & Indianapolis R. R. Co. t. Clark, infra, p. 84; Tony v. Jewett, 78 N. Y. 338; Kelly v. St. Paul, Minn. & Manitoba R. R. Co., infra, p. 93; Black v. Burlington, etc., R. R. Co., 38 Iowa,

515; Indianapolis, etc., R. R. Co. v. Staples, 62 Ill. 313; Wilds v. Hudson River R. R. Co., 29 N. Y. 315; Massoth v. Delaware, etc., Canal Co., 64 N. Y. 524; Reeves v. Del. & Hudson Canal Co., 30 Pa. St. 454.

The management of railroad trains when approaching crossings may be and often is regulated by statute. Western Union R. R. Co. v. Fulton, 64 Ill. 271; Pitts., Conn. & St. Louis R. R. Co. v. Brown, 67 Ind. 45.

Municipalities are also sometimes empowered by the Legislature to pass advances regulating the management of trains within their corporate limits. These advances when passed have precisely the effect of statutes. Balt. & Ohio R. R. Co. v. State, 29 Md. 252; Massoth v. Del. & Hud. Canal Co., 64 N. Y. 524; St. Louis & S. E. R. Co. v. Mathias, 50 Md. 65.

Many statutes or ordinances passed as above mentioned require the company to sound a whistle or ring a bell invariably before approaching a crossing, and if the company fail to observe this regulation they will be liable. Wright v. Boston, etc., R. R. Co., 2 Am. and Eng. R. R. Cas. 121; Voak v. Northern Cent. R. R. Co., 75 N. Y. 320; Pollock v. Eastern R. R. Co., 124 Mass. 158; Memphis & C. R. Co. v. Copeland, 61 Ala. 376; St. Louis & S. E. R. R. Co. v. Mathias, 50 Md. 65; Peoria, Pa. I. R. Co. v. Siltman, 88 Ill. 529; Chicago & N. E. R. R. Co. v. Miller, infra, p. 89. See Hodges v. St. Louis, etc., R. K. Co., 2 Am. and Eng. R. R. Cas. 190; Shaw v. Jewett, infra, p. 111.

Other statutes or ordinances require the posting of flagmen or the maintenance of gates at crossings, and if the railroad company fails in its duty in this respect it will also be held liable. Stapley v. London, Brighton & S. C. R. R. Co., L. R., 1 Exch. 21; Wanless v. Ñ. E. R. R. Co., L. R., 6 Q. B. 481.

Sometimes railroad companies are expressly restrained from running their trains at any more than a given rate of speed. If in violation of their duty they run them faster, they are held liable. St. Louis, Va. T. H. R. R. Co. v. Dunn, 78 Ill. 197; Chicago & A. R. Co. v. Becker, 84 Ill. 483; St. Louis & S. E. R. Co. v. Mathias, 50 Ind. 65; Haas v. Chicago & N. W. R. R. Co., 41 Wisc. 44; Liddy v. St. Louis R. R. Co., 40 Mo. 506; Balt. City Pass. Ry. Co. . McDonnell, 43 Md. 534; Massoth v. Del. & Hud. Canal Co., 64 N. Y. 524. But it must clearly appear that the failure of the company to obey the directions of the statute or ordinance was the proximate cause of the injury complained of, otherwise the company cannot be held liable. Cordell v. N. Y. Central & Hudson River R. R. Co., 70 N. Y. 119; Briggs v. N. Y. Central & H. R. R. R. Co., 72 N. Y. 26; Chicago R. R. Co. v. Notzki, 66 Ill. 455; Fletcher 7. Atlantic, etc., R. R. Co., 64 Mo. 484; Penna. R. Co. v. Hensil, supra, 8 p. There are certain acts upon the part of those in charge of railway trains at crossings which are deemed to amount to negligence per se. Among these the following are of most frequent occurrence: The use of the "running" or "flying" switch without giving full warning to the public not to attempt to cross the track. Brown v. N. Y., etc., R. R. Co., 32 N. Y. 597; Sutton v. N. Y., etc., R. Co., 66 N. Y. 243; French v. Taunton, etc., R. Co., 116 Mass. 537; Hinckley v. Cape Cod R. R. Co., 120 Mass. 257; Chicago, etc., R. R. Co. v. Garvey, 58 İll. 83; Butler v. Milwaukee, etc., R. R. Co., 28 Wisc. 487; Illinois, etc., R. R. Co. v. Hammer, 72 Ill. 347; Illinois Cent. R. R. Co. v. Baches, 55 Ill. 379; Phila. & Reading R. R. Co. v. Troutman, supra, p. 117.

The backing of a train or the pushing of it before the engine without first using all imaginable care to warn the public of the danger. Bailey v. New Haven, etc., R. R. Co., 107 Mass. 496; Kennedy v. North. Mo. R. R. Co., 36 Mo. 351; Hathaway v. Toledo, etc., R. R. Co., 46 Md. 25; Leavenworth, etc., R. R. Co. v. Rice, 10 Kans. 426; Kansas Pacific R. R. Co. v. Proctor, 14 Kans. 37: McWilliams v. Detroit Cent. M. Co., 31 Mich. 247; Robinson v. Western Pac. R. Co., 48 Cal. 409.

The mere whistling of an engine attached to a long train of freight cars on a track near a crossing is not sufficient warning to the public of an intention