or to stand between two tracks while a train passes.1 That the company did not fence its road is immaterial; the statute as to fencing is for the benefit of dumb animals, not persons. The omission to give the signals required by law at a public crossing is not evidence of negligence in a suit by a person injured upon the track beyond such. crossing. The statute is for the benefit only of persons traveling upon the highway, and coming upon the track at such public crossing. By statute in Tennessee a railroad is required to keep a lookout for persons on the track, and to employ every possible means to prevent such accidents, and the burden of proof that it has done all required of it is on the railroad.1

ILLUSTRATIONS.-A portable wood-sawing machine belonging to a railway company was, by direction of its station-agent, fastened upon the rails of its track. A man was placed there at work. Trains did not pass frequently, and the person operating the machine depended upon his knowledge of the running of trains to remove it out of the way. A train belonging to a company having a right of way over the track collided with the machine, injuring the plaintiff. Held, that these circumstances demonstrated such negligence on the part of the plaintiff that he was not entitled to recover, even though the defendant's negligence concurred in the injury: Railroad Company v. Norton, 24 Pa. St. 465. A person in avoiding a runaway team stepped upon a railroad track and was injured by a hand-car, through the foreman's neglect seasonably to order the brakes to be applied. Held, that the railroad company was liable for the injury: Moore v. R. R. Co., 47 Iowa, 689. An infant six or seven years old lying insensible or asleep on a railroad track, near a highway crossing, was injured by a train. He was perceived by the fireman and engineer in time to stop, but they supposed him a bunch of leaves or weeds, until too late. No warning signal was given. His parents had forbidden

McMahon v. R. R. Co., 39 Md. 438;
Levis v. R. R. Co., 38 Md. 588; 17
Am. Rep. 521; Central etc. R. R.
Co. v. Dixon, 42 Ga. 327; Stillson v.
R. R. Co., 67 Mo. 671.

1 Moore v. R. R. Co., 108 Pa. St. 349. 2 Lehey v. R. R. Co., 4 Robt. 204; Van Schaick v. R. R. Co., 43 N. Y. 527.

3 Harty v. R. R. Co., 42 N. Y. 468; Elwood v. R. R. Co., 4 Hun, 808; Philadelphia etc. R. R. Co. v. Spearen, 47 Pa. St. 300; 86 Am. Dec. 544; O'Donnell v. R. R. Co., 6 R. I. 211; Holmes v. R. & B. Co., 37 Ga. 593.

Thompson and Steger's Stats., secs. 1166, 1168.

him to go on the track. Held, that a recovery was warranted:
Meeks v. R. R. Co., 56 Cal. 513; 38 Am. Rep. 67. A boy five
or six years old went for his own amusement on the platform
of a railway station, and stood at the edge to watch an approach-
ing train. The train drew up at the rate of three or four miles
an hour, and an iron step, bent and projecting a few inches out-
ward, struck and injured him. Held, that he could not recover
therefor: Baltimore R. R. Co. v. Schwindling, 101 Pa. St. 258;
47 Am. Rep. 706. An engineer, seeing nothing on the track,
though he saw children near it, and a woman running toward
the train and waving her hands, made no effort to stop the train
until when within a few feet he saw a child, but too late to
prevent running over it, as he might have done had he slack-
ened speed when he saw the woman.
Held, that the company
was liable even though the childs' parents were negligent
in letting it play so near the track: Donahoe v. R. R. Co.,
83 Mo. 543; 53 Am. Rep. 594. The body of a person who
had been run down by an express train at night was brought
to a station near at hand, and by the station-master placed
upon some rubbish in a warehouse, on the supposition that life
was extinct, without examination by a physician, although
the propriety of such examination was suggested to the com-
pany's agents. In the morning it appeared that the injured
man had revived during the night, and dragged himself a con-
siderable distance along the floor, where he was found
dead, with is body yet warm, in a stooping posture, pressing
his hand upon his leg to stop the flow of blood from
an artery which had been cut. There was evidence that he
bled to death for lack of assistance. Held, that even though
the accident was caused by the negligence of the deceased, it
was proper to submit to the jury whether his death did not
result from the subsequent neglect of defendant's servants:
Northern etc. R. R. Co. v. State, 29 Md. 420; 96 Am. Dec. 545.

§ 1193. Persons on Track by Express Permission.Where persons are lawfully upon the track with the express permission of the company, the latter is obliged to use due care and vigilance to prevent injury to them.' Thus persons engaged in repairing or laying a track, or otherwise at work on the right of way, have a right to rely upon the company giving them notice of the approach of trains. A person having business with a railroad com

1 Thompson on Negligence, 461. As to passengers, see Bailments.

Haley v. R. R. Co., 7 Hun, 84;

Barton v. R. R. Co., 1 Thomp. & C.
297; 56 N. Y. 660; Stinson
v. R.
R. Co., 32 N. Y. 333; McWilliams v.

panye. g., in loading or unloading freight - has a right to occupy a position designated by the company's agent, hazardous though it may be, relying upon the company's diligence to protect him in such position.1

ILLUSTRATIONS.—The plaintiff had, by contract with a railroad company, the right to a certain portion of their track for loading his freight, and while so engaged, the servants of another company, which, by the sufferance of the company owning the track, was allowed to run its cars on the track where plaintiff was "when nothing was in the way," backed their cars against the car in which plaintiff was standing, and injured him. Held, that the plaintiff had a positive and exclusive right, as against the defendant company, to be on the track where he was, and that, even though the servants of defendant gave the usual signals that their train was about to move upon this side-track, as there was ample room for both, the plaintiff had a right to presume that their train would move no farther up the track than it lawfully might: New Orleans etc. R. R. Co. v. Bailey, 40 Miss. 395. Plaintiff, with two other persons, was engaged in repairing the track of a railroad. A freight train was backing towards them, but they did not preceive it; when nearly upon them they were aroused by the shouts of the brakeman, and jumped from the track they were working on to an adjoining one, and waited for the train to pass. At the same time the cars had been uncoupled from another train, and, moving by their own momentum along the track upon which the plaintiff was standing, ran over and injured him. No person was on the uncoupled cars to give warning of their approach, and they were not seen by the plaintiff until he was struck. Held, that the railroad was liable: Chicago etc. R. R. Co. v. Dignan, 56 Ill. 487.

§ 1194. Persons on Track by License or Custom. Where it appears that the track of a railroad company has been used for purposes of travel by pedestrians, with the permission, express or implied, of the company, such circumstance enhances the duty of servants of the corporation to exercise caution and prudence in the operation of their road at this place. If the public, with the knowl

Detroit etc. Co., 31 Mich. 274; Goodfellow v. R. R. Co., 106 Mass. 461; Schultz v. R. R. Co., 44 Wis. 638. 1Newson v. R. R. Co., 29 N. Y. 383.

2 Illinois etc. R. R. Co. v. Hammer, 72 Ill. 347; Murphy v. R. R. Co., 45 Iowa, 661; 38 Iowa, 539; Harty v. R. R. Co., 42 N. Y. 468; Brown v. R. R.

edge and acquiscence of a railroad company, have been long and constantly accustomed to walk upon its track, although it is a statutory offense to walk upon a railroad track, it amounts to a license, and the company is liable to one injured while so walking, by the negligent act or omission of its servants. But some cases hold that the railroad owes no more duty towards bare licensees than it does towards trespassers.2

ILLUSTRATIONS.-The direct and usual path to a railroad depot is over a switch on which freight-cars frequently stand with an opening habitually left between them so as to leave the path unobstructed. This path is constantly used by persons getting off and on at the depot, without such use being at any time discountenanced by the company or its officials, to whom it is known. Held, that if a person in passing between the cars. is injured by the cars being suddenly and without warning run together, the company is liable in damages for the injury: Nichols v. R. R. Co., 83 Va. 99; 5 Am. St. Rep. 257. A man walking on a path near the track, and on the right of way of the railroad, was injured by being hit by a cow, which, being on the track, was struck by the train, and thrown in the air. Held, that the railroad was liable: Alabama etc. R. R. Co. v. Chapman, 83 Ala. 453.

Co., 50 Mo. 461; 11 Am. Rep. 420;
Kansas etc. R. R. Co. v. Pointer, 9
Kan. 620; 14 Kan. 38; Kay v. R. R.
Co., 65 Pa. St. 269; 3 Am. Rep. 628;
Pennsylvania R. R. Co. v. Lewis,
79 Pa. St. 33; Daley v. R. R. Co., 26
Conn. 591; 68 Am. Dec. 413; Slattery
. R. R. Co., 3 App. Cas. 1155; Davis
. R. R. Co., 58 Wis. 646; 46 Am.
Rep. 667; Barry v. R. R. Co., 92 N.
Y. 289; 44 Am. Rep. 377; Taylor v.
R. R. Co., 113 Pa. St. 162; 57 Am.
Rep. 446; Dublin etc. R. R. Co. v.
Slattery, 3 App. Cas. 1155; Byrne v.
R. R. Co., 104 N. Y. 362; 58 Am.
Rep. 512; Wright v. R. R. Co., 142
Mass. 296; Kansas Pacific R. R. Co.
. Ward, 4 Col. 30; Harriman v. R.
R. Co., 45 Ohio St. 11; 4 Am. St. Rep.
507. As to injuries to passengers on
platforms and tracks, see Bailments
-Carriers.

1 Davis v. R. R. Co., 58 Wis. 646; 46 Am. Rep. 667; Townley v. R. R.

Co., 53 Wis. 626; Western etc. R. R.
Co. v. Meigs, 74 Ga. 857; Barry v. R.
R. Co., 92 N. Y. 289; 44 Am. Rep.
377; McDermott v. R. R. Co., 28 Hun,
325.

2 Gaynor v. R. R. Co., 100 Mass.
208; 97 Am. Dec. 96; Illinois etc. R.
R. Co. v. Hetherington, 83 Ill. 510;
Jeffersonville etc. R. R. Co. v. Gold-
smith, 47 Ind. 43; Finlayson v. R. R.
Co., 1 Dill. 579; Bancroft v. R. R. Co.,
97 Mass. 276; Illinois etc. R. R. Co.
v. Godfrey, 71 Ill. 500; 22 Am. Rep.
112; Galena etc. R. R. Co. v. Jacobs,
20 Ill. 478; Pennsylvania etc. R. R.
Co. v. Lewis, 79 Pa. St. 33; Sutton v.
R. R. Co., 4 Hun, 760; 66 N. Y. 243;
O'Donnell v. R. R. Co., 7 Mo. App.
190; Hoover v. R. R. Co., 61 Tex.
503; Baltimore etc. R. R. Co. v. State,
62 Md. 479; 50 Am. Dec. 233; Phila-
delphia etc. R. R. Co. v. Hummell, 44
Pa. St. 375.

$ 1197.

§ 1198.

Requisites of contributory negligence - Want of ordinary care.
Must be proximate cause of injury.

§ 1200.

What not contributory negligence - Failing to anticipate another's fault or wrongful act.

§ 1201.

§ 1202.

Plaintiff's want of care produced by defendant's wrong.
Intoxication.

§ 1205.

§ 1206.

Rule of "comparative negligence"- Illinois - Georgia - Kansas.
Rule where plaintiff a law-breaker.

§ 1208.

Contributory negligence of children and persons non sui juris.

§ 1195. Contributory Negligence of Plaintiff a Bar. If the plaintiff or party injured, by the exercise of ordinary care under the circumstances, might have avoided the consequences of the defendant's negligence, but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof. If both parties were in fault, the plaintiff cannot recover damages, for "the law has no scales to determine, in such cases, whose wrongdoing weighed most in the compound that occasioned the mischief."

'Little Schuylkill etc. R. R. Co. v. Norton, 24 Pa. St. 469; 64 Am. Dec. 673; Tuff v. Warman, 5 Com. B., N. S., 585; Davies v. Mann, 10 Mees. & W. 545; Simpson v. Hand, 6 Whart. 311; 36 Am. Dec. 231; Butterfield v. Forrester, 11 East, 60; Forks Township v. King, 84 Pa. St. 230; Nor. Cent. R. R.

Co. v. Price, 29 Md. 420; Frech v. R. R.
Co., 39 Md. 574; Lewis v. R. R. Co., 38
Md. 588; 17 Am. Rep. 521; Baltimore
etc. R. R. Co. v. Mulligan, 45 Md. 486;
Trow v. R. R. Co., 24 Vt. 487; 58 Am.
Dec. 191; Needham v. R. R. Co., 37
Cal. 469; Hearne v. R. R. Co., 50 Cal.
482; Barnes v. Cole, 21 Wend. 188;