whether the plaintiff placed his son on a horse over which he had no control. This is for you, and we cannot assume it. If it were true it would be strong evidence of negligence. It is for you to find under all the evidence in the cause whether there was negligence of the plaintiff or his son who was killed, which contributed to the production of the accident. If there was such contributing negligence, the plaintiff cannot recover."

The point must be considered with reference to the facts which the testimony would have warranted the jury in finding. From that they could have found that the train was running through the borough at the rate of twenty miles an hour, and no bell was rung nor whistle blown till after the accident; that the deceased was a remarkably stout and intelligent boy for his age, and was in the habit of working with his father; that he had often ridden the lead horse in the team, had, on the day he was killed, taken the horse by a way under the railroad to the place of loading, and geared him to the wagon while his father put on the load; that he got on the horse, and the team was driven near to the railroad and stopped; that the plaintiff went upon the track, looked both ways, listened, and neither seeing nor hearing an approaching train, started back, telling the boy to come ahead; that the team was started before the plaintiff reached it, he took the mule by the head, the horse got his forefeet on the track, and was struck within three seconds from the time a witness, who was standing by, saw the cars; that as soon as said witness heard the train he hallooed, the plaintiff hallooed, but the train was too fast-not a witness saw anything that could have been done to save the horse or boy, between the time of hearing the train and the accident. It cannot be pretended that any evidence shows the horse could have been got out of the way had a man sat in the place of the boy, or if the plaintiff had had a line on the horse.

It was

The assumption in the point forbade its affirmance. earnestly argued that the testimony authorized the court to assume the fact. Perhaps, in all the farming and mining portions of the State, there is not a judge or juror who would say a man could have no control of the lead horse unless he has a line on him. Be this as it may, it is not a question of law for the court to say. Where there is no line there is no control. The point could have been well refused without qualifying remark, and had it been there would have been no cause for complaint. Its assumed facts are but a fraction of the story, and the part omitted shows the plaintiff's care before his attempt to cross the track, and that he was caught too suddenly for escape. In the light of the evidence, the court could not say the plaintiff was negligent, unless it is negligence in itself for a teamster to cross a railway track with his little son riding the lead horse-a proposition which has not been advanced. Excepting one remark, the instructions to the jury were

accurate, adequate and applicable to the proofs, enabling them to intelligently dispose of the questions submitted. That remark was in the answer to the fifth point, the court saying, if the assumed facts were true it would be strong evidence of negligence. As an abstraction, we think that was error; for, on the verity of the facts as assumed, without reference to the other proofs, the plaintiff was guilty of negligence. Had the point been differently framed, submitting its isolated facts to the jury, it should have been affirmed; but the court would have reminded them, as it did, that they were to consider all the facts established by the testimony.

Unless it be certain that the error did the defendant no harm, the judgment must be reversed and the cause sent back for another trial. This is doubtful. The jury judge of the credibility of witnesses, and possibly they may have found the facts as contended for by the defendant; and, if so, the error was hurtful.

The opinion of the learned judge of the Common Pleas, on the motion in arrest judgment, comprises all that need be said respecting the fourth and fifth assignments.

Judgment reversed, and venire facias de novo awarded.

PURL

v.

THE ST. LOUIS, KANSAS CITY AND NORTHERN RY. Co., Appellant. October Term, 1880.)

(73 Missouri Reports, 168.

The plaintiff, a deaf man, being about to cross a railroad track in a buggy, saw the smoke of what he took to be a moving train east of him. He crossed, drove eastward a distance of 250 feet along a road which ran parallel with the railroad and within a few feet of it, turned and drove back the same way he had come, attempting to recross the track at the same place. He never looked to the east to ascertain the direction in which the train was moving, but assumed that it was moving away from him. The view to the east was unobstructed for more than half a mile. When in the act of recrossing the track, he was looking back over his shoulder to the southward. In this position he was struck and injured by the train coming from the east. Held, that the accident was the result of his own negligence, and the railroad company was, therefore, not liable. Held, also, that his deafness was no excuse. It should rather have added a spur to his vigilance, and prompted him to employ his other faculties so as to compensate, as far as possible, for the lacking one. Held, also, that although plaintiff was in full view of those operating the train for a long distance, yet they were not chargeable with negligence owing to the fact that the road forked just at the crossing, and they could not anticipate that plaintiff intended to take that branch which crossed the track. Held, also, that under the circumstances it was immaterial whether the proper signals for the crossing were given or Lot,

APPEAL from Montgomery Circuit Court.-Hon. G. PORTER, Judge. Reversed.

Wells H. Blodgett and Prosser Ray, for appellant.

H. W. Johnson and E. M. Hughes, for respondent.

SHERWOOD, C. J.-Action for damages for injury done plaintiff and his property while crossing defendant's railroad. In the view we take of this case, it is unnecessary to do more than to determine the point of the sufficiency of the plaintiff's evidence to authorize a recovery; in other words, whether, if the facts thereby established are taken as admitted, and they are to be so taken in consequence of the demurrer thereto, the plaintiff has made out a prima facie cause of action against the defendant. The evidence thus for examination establishes, as we think, and establishes very clearly, that plaintiff has shown no such cause of action. That evidence discloses the customary diversity of opinion as to whether the usual signals were given by the approaching train; some of plaintiff's witnesses testifying to having heard the whistle, and others that they did not. Whether the signals were given or not, we regard as unimportant in the circumstances of this case. The morning of the accident Purl started in his buggy from the north side of the railroad track to take a kettle to Camp's hotel, which was on the south side of and near that track, and distant from the crossing about 250 feet. Before crossing the track, and when near the lumber yard, and going toward the hotel, he saw smoke to the east, seemingly a good way off, which looked like the smoke of a train made by an engine in motion. He proceeded, passed over the crossing, then turned east, following the road which ran parallel with, in full view of and but a few feet from, the railroad track, until he reached the hotel, where delivering the kettle, he turned around immediately and drove west on the same road on his way home. When proceeding to Camp's hotel, he says that as he was facing east, that of course if there had been a train in sight he would have seen it, but he does not state that he looked. Nor did he pay any further attention to the smoke, which he took to be that of a moving train, although the testimony shows that when in front of Camp's hotel he would have had an unobstructed view of the railroad track to the east of the hotel for nearly one fourth of a mile. Nor after starting west to recross the railroad track did he look back east, because he says he "thought the train, the smoke of which I saw when I went over, was going east, and if there was any danger at all, it would come from the west." Nor when he reached the crossing where he was injured, did he look to the east, though an unobstructed view of the track in that direction could have been had for nearly half a mile, for the reason that he still clung to the assumption that danger was to be apprehended from the west, and not from the east. And the testimony also

shows that at the very time he attempted to cross the track, the train was just passing the depot 250 feet east of the crossing, but he neither looked in that direction nor stopped; on the contrary, when he made the turn to make the crossing, one of his witnesses testifies that he was "looking back over his left shoulder;" going north and looking south. "The last time I saw him he was looking back and his horse was on the track." More than that, several of Purl's witnesses, who were in excellent situations to view the whole occurrence, state that when they saw the train approaching, and saw him driving along parallel with the track, they became apprehensive that he would be struck if he attempted to cross, and so watched him until that event happened.

We see nothing in the foregoing testimony to distinguish this case in principle from others heretofore decided by us or to relieve the plaintiff from the consequences of his own folly. Fletcher v. A. and P. R. R. Co., 64 Mo. 484; Harlan v. St. L., K. C. and N. Ry. Co., 64 Mo. 480; Henze v. St. L., K. C. and N. Ry. Co., 71 Mo. 636; Moody v. P. R. R. Co., 68 Mo. 472. This case, indeed, exhibits features of recklessness that to some extent are wanting in the cases just cited; for in all those instances the parties injured at least had their faces turned toward the track they were about to cross. The very fact that Purl saw indications of a train moving upon the track, though such train seemed distant, ought of itself to have sounded an alarm in the ear of his caution and kept his faculties on the alert. Instead of that, however, the mute warning of the smoke of a moving train seems to have silenced the promptings of prudence and led him to disregard its most obvious dictates. If, therefore, he has suffered an injury in either person or property, he must be content to abide the result of his own rashness, a result which could have been averted on his part by the exercise of the very minimum of care.

And the case is not altered, nor does it become more favorable for the plaintiff by reason of his deafness. Such an affliction, so far from excusing one who might have seen the train, should rather add a spur to his vigilance and prompt him to employ his other faculties so as to compensate, as far as possible, for the lacking 1 Thompson on Neg., 430, and cases cited; Shearman and Redfield on Neg., § 488.

one.

If it be said that the road on which plaintiff was driving was parallel with and in full view of the railroad track, that, therefore, defendant's servants were lacking in the proper care, or else the accident would not have occurred, the reply is an obvious one, that where the road on which plaintiff was driving makes an abrupt curve to the north to cross the railroad track, it is only some ten or twelve feet from that track; and at that point it also continues west for a short distance and then turns in a southerly course, so that defendant's servants had no cause to suspect, nor were they

bound to anticipate that plaintiff intended to cross the track, and especially to do this in front of the train. R. R. Co. v. Manly, 58 Ill. 300; Shearman and Redfield on Neg., § 481; 1 Thompson on Neg., 426 et seq.; N. C. R. R. Co. v. State to use of Burns, 10 Reporter, 663. The judgment is reversed, and as it is apparent, from plaintiff's own showing, that he has no standing in court, we shall not remand the cause.

All concur.

See note, p. 49.

THE PENNSYLVANIA COMPANY

v.

THOMAS RUDEL.

(100 Illinois Reports, 603. November 10, 1881.)

Where the defendant's counsel, on the 16th day of the month, withdrew from the case, and on the same day other counsel were retained, who moved for a continuance to enable them to prepare for trial, which was refused, and the trial did not take place until the 23d of the same month, it was held, there was no abuse of discretion in denying the motion, calling for a reversal.

A question to jurors asking them to state briefly their idea of the duties of a juror, with a view of ascertaining whether they were men of sound judgment and well informed, is not proper for that or any other purpose.

A mere technical error in the admission of evidence of an unimportant character is no ground for reversal.

Evidence of what a flagman of a railroad company said and did at the time and just before a person about to take passage on a train was struck by another train passing on another track at a rapid speed, is pertinent in an action to recover for the injury, under an allegation that the company failed to keep a flagman at the spot to signal and warn of the approach of impending danger. Such allegation means more than that there was no flagman employed there.

Where the court gives an instruction of its own in place of others refused, which fairly states the law of the case, the party asking those refused will have no cause of complaint.

Under peculiar circumstances going to excuse the plaintiff from taking the usually necessary precautions to avoid danger, an instruction in a suit to recover for a personal injury from a passing train at the intersection of the track with a street crossing, that if the plaintiff knew of the existence of the track at the place of the injury, and that trains frequently passed along the same, and could have looked for and seen, or have listened and heard, the approaching train before going upon the track, and did not thus look and listen for the train, and that by reason of such neglect he failed to avoid the injury, may be properly refused, although ordinarily such an instruction should be given.

APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. Willard & Driggs for the appellant: