but persists in going on, he cannot recover damages of the town; but if he merely knows that it is obstructed, but not so much as to indicate to him that he cannot get through with safety, and he meets with an injury while proceeding with due care, he can recover, in case the town was negligent in suffering the obstruction to exist.1 It was held a question for the jury whether the plaintiff was negligent in attempting to drive his horse and sled loaded with lumber across the tracks of a street-railroad company upon the sides of which snow had been heaped up so that the track lay in a trough twelve or fourteen inches deep. And so where the plaintiff endeavored to pass along the top of an embankment, by the side of the highway, which the defendant neglected to keep protected by a fence or railing, and while so doing was forced over the edge by the backing of a cart, which she saw there before she came to the place of injury. One who drives against an obstruction which he might readily have seen is negligent; and one who crosses a bridge with an unusually heavy load does so at his own risk. The fact that a husband knew of a defect in season to have warned his wife is no defense to an action by the husband and wife for an injury to the latter. Knowledge of a defect cannot be inferred from the fact that it customarily existed. A person with poor sight must use greater care in the streets to avoid defects and dangers than those with good sight; so of one far advanced in years, and feeble.9 ILLUSTRATIONS. Plaintiff knew that there were several waterbars on a hill about a quarter of a mile long over which her horse could not trot in safety. Thinking that she had crossed them all, she allowed her horse to trot, having a rein in each of her hands, the wheels in the regular ruts, and the horse under control. While so driving, the wagon came upon a bar which she failed to see, in consequence of which the wagon was overturned, and she was injured. Held, that there was evidence for the jury that she was in the exercise of due care: Blood v. Tyngsborough, 103 Mass. 509. A traveler driving on the highway, on coming to a bridge, stopped and ordered his servant to examine it, it being unsafe; he ordered him to examine the depth of the stream, which was reported as fordable. Held, ordinary care on the part of the traveler: Branan v. May, 17 Ga. 136. One who knew of a hole in the sidewalk, and was watching to avoid it, was prevented from so doing by a blinding snow-storm, and fell into the hole and was injured. The sidewalks on any other street leading in the direction of his home were equally unsafe. Held, not guilty of negligence: Aurora v. Dale, 90 III. 46. One unnecessarily undertakes to drive with a horse and wagon over a highway overflowed by a stream of water thirty or forty yards wide in some places, not less than three feet deep, with a current moving at the rate of five miles an hour, and carrying cakes of ice twenty-five or thirty feet in diameter, and is drowned by getting off the road into the deeper channel of the river. Held, that his negligence defeats an action for damages: Merrill v. North Yarmouth, 78 Me. 200; 57 Am. Rep. 794. Plaintiff attended an evening entertainment at the defendant's public hall, and on coming out, slipped on snow and ice accumulated on the plank sidewalk in front of the door, and was injured. Held, that he was not precluded from recovery by the fact that he noticed the snow and ice on going in: Dewire v. Bailey, 131 Mass. 169; 41 Am. Rep. 219. A started to cross a bridge, which was out of repair, on a dark, rainy night, in winter-time, when very much intoxicated. He was warned that the bridge was unsafe, and that there was another bridge which he could cross, which was safe, and within a few feet of the one from which he fell. Held, guilty of contributory negligence: Wood v. Village of Andes, 11 Hun, 543. One walking along the sidewalk in the night-time stepped upon some boards which he supposed had been placed there to prevent people from walking on the other part of the sidewalk, which had the appearance of having been freshly tarred, but which were in fact placed over an excavation, and one of the boards broke, so that he fell through and was injured. Held, not negligent: Hutchison v. Collins, 90 Ill. 410. CHAPTER LXI. INJURIES BY RAILROADS.1 § 1175. Railroad tracks in streets-Negligence in care of. § 1180. Railroad crossings - Rights of public-Liability of railroad for injuries. § 1183. Duty to give warning-Ringing bell or sounding whistle. § 1192. Trespassers on tracks - Duty and liability of company. § 1193. Persons on track by express permission. § 1194. Persons on track by license or custom. § 1175. Railroad Tracks in Streets-Negligence in Care of. A railroad company which has a right to lay its tracks in the public streets must lay them properly, and keep them in proper repair; otherwise they will be liable for any injuries caused by them. So where the railroad is by agreement with the city under the obligation of keeping a portion of the street in repair, it is responsible to any one injured by its neglect in this respect.3 1 As to injuries to passengers, see Bailments-Carriers. 2 Lowrey v. R. R. Co., 4 Abb. N. C. 32; Mazetti v. R. R. Co., 3 E. D. Smith, 98; Worster v. R. R. Co., 50 N. Y. 203; Rockwell v. R. R. Co., 64 Barb. 434; Oakland R. R. Co. v. Fielding, 48 Pa. St. 320; Fash v. R. R. Co., 1 Daly, 148; Carpenter v. R. R. Co., 11 Abb. Pr., N. S., 416; Woolly v. R. R. Co., 83 N. Y. 121. And the street within the rails: Conroy v. R. R. Co., 52 How. Pr. 49. 3 Jenkins v. Fahey, 11 Hun, 351; Brooklyn v. R. R. Co., 47 N. Y. 475; 7 Am. Rep. 469; Troy v. R. R. Co., 49 N. Y. 657; Oakland R. R. Co. v. Fielding, 48 Pa. St. 320; Masterson v. R. R. Co., 84 N. Y. 427; 38 Am. Dec. 510. 2 Thus a railroad has been held guilty of negligence where by the sinking of the pavement a spike in the rail was left exposed, with which the plaintiff's carriage coming in contact the plaintiff was thrown out and injured;1 in leaving so wide a space between the rail and the planking in that part of its cotton-yard designed for hauling, that while a teamster is using due care his mule, in slipping upon the planking, catches his foot therein; in negligently constructing a highway crossing. But a streetrailway company bound to keep its track in repair and on a level with the grade of the street, and so constructed as not to impede carriage travel, is not responsible for an accident caused by the unevenness of the surface of the street, where it had worn away below the established grade.* And it is not negligence per se for a railroad company not to block the joints of its switches." § 1176. Trains Frightening Horses of Travelers.Railroad companies running their trains in a proper and usual manner are not responsible for damages caused by the horses of travelers or others taking fright at the sound or appearance of the passing train. So a traveler on a road running parallel with a railroad has no cause of action against the railroad company for injuries caused by his horse taking fright from smoke caused by coaling up an engine coming in the opposite direction." Where a railroad is entitled by law to run its trains along a street, it is not liable for damages caused by the horses of a 1 Fash v. R. R. Co., 1 Daly, 148. Central R. R. and Banking Co. v. Gleason, 69 Ga. 200. Mann v. R. R. Co., 55 Vt. 484; 45 Am. Rep. 628. Galveston City R. R. Co. v. Nolan, 53 Tex. 139. Chicago etc. R. R. Co. v. Lonergan, 118 Ill. 41. Favor v. R. R. Co., 114 Mass. 350; 19 Am. Rep. 364; Norton v. R. R. Co., 113 Mass. 366; Hall v. Brown, 54 N. H. 495; Coy v. R. R. Co., 23 Barb. 643; Culp v. R. R. Co., 17 Kan. Lamb v. R. R. Co., 140 Mass. 79; traveler taking fright at the necessary blowing off of steam from one of its locomotives; but if the steam were blown off negligently, it would be liable.' Courts will judicially know that the blowing of a whistle is one of the ordinary signals used in the running of a railway train, and that in the management of locomotive-engines it is at times necessary to open the valves and permit the escape of steam.2 Whether the act was proper or not under the circumstances is generally a question for the jury.3 The following have been held to amount to negligence on the part of railroad companies in this respect, viz.: To discharge a sudden jet of steam upon a passing team, or in the yard near a highway; to sound the steamwhistle under a bridge while a traveler was passing over Hahn v. R. R. Co., 51 Cal. 605; Culp v. R. R. Co., 17 Kan. 475; Borst v. R. R. Co., 4 Hun, 346; Hill v. R. R. Co., 55 Me. 438; 92 Am. Dec. 601; Manchester etc. R. R. Co. v. Fullarton, 14 Com. B., N. S., 53; Pennsylvania etc. R. R. Co. v. Barnett, 59 Pa. St. 259; Billman v. R. R. Co., 76 Ind. 166; 40 Am. Rep. 230; Gibbs v. R. R. Co., 26 Minn. 427; Stamm v. R. R. Co., 1 Abb. N. C. 438; Chicago etc. R. R. Co. v. Dunn, 52 Ill. 451; 4 Am. Rep. 606. 2 Toledo etc. R. R. Co. v. Harmon, 47 Ill. 298; 95 Am. Dec. 489; Nashville etc. R. R. Co. v. Starnes, 9 Heisk. 25; Philadelphia etc. R. R. Co. v. Stinger, 78 Pa. St. 219, the court saying: "What is proper care cannot be determined by any fixed rule of law. It must depend upon the facts of the particular case. That which would be due care in running a train through a sparsely settled rural district might be negligence, if not actual recklessness, in approaching a large city. The steam-whistle is one of the recognized methods of signaling the approach of a train. Its universal use upon railroads is a strong argument in favor of its efficiency. It is shrill and piercing; can be heard for a great distance, and can be mistaken for nothing else. Yet it has disadivantages. More than all other sounds, it is a terror to animals unaccus tomed to its warning. Where trains are passing through the built-up portions of towns and cities, it is not needed nor often used. In such cases they move slowly, and the ringing of a bell sufficiently answers the purposes of an alarm, and is not so likely to frighten horses. But where it is necessary to warn crossings or bridges at a distance in advance of the train, no sufficient substitute has yet been found for the whistle. It can be heard in any condition of wind and weather. In the absense of the discovery of any suitable substitute, and in view of its use upon all roads operated by steam, the mere fact of the whistling furnishes no presumption of negligence. Was the whistle used in such a wanton manner as to amount to negligence? The learned judge left this question to the jury, and in so far he was right." 3 Hill v. R. R. Co., 55 Me. 438; 92 Am. Dec. 601; Philadelphia etc. R. R. Co. v. Stinger, 78 Pa. St. 219. The plaintiff may show that the sound of the whistle frightened other horses at the same time and place, and also show the usual effect of that whistle on ordinary horses at the same place: Hill v. R. R. Co., 55 Me. 438; 92 Am. Dec. 601. Stamm v. K. R. Co., 1 Abb. N. C. 438; Petersburg etc. R. R. Co. v, Hite, 81 Va. 767. |