it. This question was asked for the purpose | dence tended to show that the bridge proper of supporting the defendant's claim that the fill at the point where the accident took place was not on the approach to the bridge. All the evidence referred to in the bill of exceptions tended to show that the fill extended 10 or 11 rods from the bridge proper for the purpose of making a practically level approach to the bridge, but though a fill of such length, 160 or 175 feet, may not have been necessary, that fact would have no tendency to show that a short fill covering the place of the accident was not necessary, and the question was properly excluded. and some 3 to 5 rods of the fill were constructed in 1867, following a washout in that year, and the bill of exceptions does not show that the witness knew or claimed to have any actual knowledge of its construction and placing, nor that any attempt was made to qualify him as an expert. The evidence of both the plaintiff and the defendant tended to show that the place of the accident was 2 or 3 rods from the end of the bridge proper and that there the team went off an embankment over which it was necessary for a traveler to pass. [10, 11] Whether the embankment at this place was a part of the bridge or a part of the highway was a question upon which the court received evidence, for the bill of exceptions recites that on this question the evidence of the plaintiff tended one way and the evidence of the defendant the other. But upon such a question the court was right in declining to receive evidence from persons whose qualifications to give it were not shown, otherwise the testimony would have degenerated into a mere matter of voting. Had the offered testimony been received, we might, as the case stands, well enough as [9] The road commissioner was asked the following question: "Now from your experience in the building of bridges and in the building of approaches to bridges, and from your knowledge of the highway leading from Guilford Center to Hinesburg, and from your examination and knowledge of the bridge lo- | cated on that road, what do you say, was it necessary to have any fill in that road 52 feet east from the east end of the bridge in order to make the bridge accessible and fit for use?" The question was asked for the purpose of showing that no fill was necessary at the point where the hole in the road was. The question was excluded, and the defend-sume that there was evidence from which the ant excepted. While the witness was shown to have had a great deal of experience in building roads and bridges, it does not appear what was his knowledge of the road and the bridge about which he was questioned and upon which he was required to base an answer. The fact that he was a county road commissioner carries with it no implication of knowledge as to the particular road and bridge in question; for whether he was a county road commissioner by appointment of the county court as the name given him would imply, or whether he was an appointee for Windham county of the state highway commissioner, he had in neither case any general or specific supervision over all the highways in the county. P. S. 4016, and sec tions following; P. S. 4004; Acts of 1908, §§ 1, 2. No error in the exclusion of the question appears. The witness was permitted to testify that, if there had been no fill, the bridge could have been approached at a grade of 121⁄2 per cent., but it does not appear that he was asked to say nor that it was claimed that he knew how far back from the bridge such a grade would carry the approach to the bridge. One of the selectmen of the defendant town was asked by the defendant whether in the construction and placing of the bridge it was necessary to have a fill back to a point 52 feet from the easterly end of the bridge. This question was put for the same purpose as was put to the road commissioner the similar question which we have considered. It was excluded, and no error in its exclusion is shown. The evi trial court found and was warranted in finding that the witnesses were qualified to give the offered testimony. But all reasonable assumptions are to be made in support of rulings below. So far as appears, all proper evidence bearing upon the question of whether the place of the accident was an approach to the bridge was received, and no exception was taken to the manner in which this subject or any other was submitted to the jury. Judgment affirmed. (86 Vt. 504) WILEY v. RUTLAND R. CO. (Supreme Court of Vermont. Windsor. May 8, 1913.) 1. EVIDENCE (§ 265*)—“JUDICIAL ADMISSION” -BY COUNSEL OR PARTY. A "judicial admission" made by a party or his attorney is a formal act done in court on the trial of a cause for the purpose of dispensing claimed by the latter to be true, and is of conwith proof by the opposing party of some fact clusive effect, unless relieved against in the discretion of the court; but a statement against interest constituting a part of the party's testiniony as a witness on the trial is not a judicial admission having conclusive effect in law. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.*] 2. RAILROADS (§ 327*)-CROSSING ACCIDENTS CONTRIBUTORY NEGLIGENCE QUIRED. CARE RE A person about to cross a railroad track is required to look and listen for an approaching train, and to stop to listen if necessary, and to be especially vigilant where his vision is obstructed or his hearing impaired, and such duty continues as long as the discovery of a train 19. TRIAL (§ 252*) - CHARGE· will enable him to avoid injury. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. § 327.*] 3. Carriers (§ 303*)-SETTING DOWN PASSENGERS-WAY FOR LEAVING STATION. TO ISSUES AND EVIDENCE. · APPLICABILITY Where the evidence was conflicting as to the distance at which a freight train stood when plaintiff attempted to cross the track, and as to its speed in backing up, and whether any warning at all was given, requested charges that Where a carrier impliedly invited its pas if defendant had given a warning which would sengers to leave its station by a certain way, it have allowed a person heeding it to have avoidwas bound to do what was reasonably neces-ed the accident, and if plaintiff did not hear or sary to insure the safety of passengers leaving heed it, she could not recover, and that if the by that way. conductor was standing on the rear end of the backing train, and warned her, he could assume that she would hear and heed the warning, and was not bound to resort to other means before attempting to avoid the accident by warning, were properly refused as inapplicable to the evidence. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*] 4. CARRIERS (8 347*)-CONTRIBUTORY NEGLIGENCE- - LEAVING CONVEYANCE-RELIANCE ON CARE OF CARRIER. A passenger leaving a station and seeing a freight train standing on the track some distance away had a right to assume that she would not be endangered by its backing while she was crossing the track, and was not, as a matter of law, guilty of contributory negligence in not again looking at it or in not keeping a constant lookout, though she was bound to exercise due care according to the circum stances. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. § 347.*] 5. CARRIERS (§ 347*)—PERSONAL INJURIESQUESTION FOR JURY-CONTRIBUTORY NEGLIGENCE. On evidence in a passenger's action for personal injuries while crossing the track in leaving a station, held, that the question whether she exercised due care was for the jury. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. § 347.*] Exceptions from Windsor County Court; Fred M. Butler, Judge. Action by Lucinda E. Wiley against the Rutland Railroad Company. Judgment for plaintiff, and defendant excepts. Reversed and remanded. Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ. William W. Stickney, John G. Sargent, and Homer L. Skeels, all of Ludlow, for plaintiff. E. W. Lawrence and T. W. Moloney, both of Rutland, for defendant. WATSON, J. The plaintiff's evidence tended to show that she, a passenger on the defendant's westward train arriving in Ludlow about 8:30 o'clock in the morning, alight 6. CARRIERS (§ 280*)—CarriAGE OF PASSEN-ed from the train and walked westerly along GERS-CARE REQUIRED. A carrier of passengers must exercise the highest degree of care respecting the roadbed, the machinery, and appliances, and the running of its trains. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*] 7. CARRIERS (§ 280*)-PERSONAL INJURIESLEAVING CONVEYANCE AND STATION-"DUE CARE""REASONABLE CARE"-"ORDINARY CARE." A carrier discharges its duty to do what is reasonably necessary for the safety of passengers leaving its station when it exercises ordinary care and prudence, in view of the dangers to be apprehended; the expressions "due care," "reasonable care," and "ordinary care" being convertible terms. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.* For other definitions, see Words and Phrases, vol. 3, pp. 2221-2222; vol. 8, p. 7643; vol. 6, pp. 5029-5042; vol. 8, pp. 7739-7740; vol. 7, pp. 5954-5956; vol. 8, p. 7779.] 8. TRIAL (8_296*) ERRONEOUS CHARGES CURE BY SUPPLEMENTAL CHARGE. In a passenger's action for personal injuries by being struck by a freight train while leaving a station, an erroneous charge as to the care required of the carrier was not cured by a supplemental charge confined to the duty of the conductor after he discovered plaintiff on the track in a place of danger and the train moving toward her. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. 296;* Carriers, Cent. Dig. § 1406.] the station platform to the west end thereof, and then in the same direction along the south side of the track to a point opposite a flight of stone steps, situated on the northerly side of the track leading down the bank to the public street by which the railroad was there paralleled; that these stone steps are on the land of the railroad company, and with a path across the track and along the south side thereof constitute the usual and customary approach to the station platform for passengers on foot coming from and going to the highways in the village of Ludlow, and have been so used for more than 40 years; that the plaintiff was traveling in this path toward the stone steps when injured; that, when she arrived at the point in said path on the south side of the track almost opposite the stone steps, she halted, looked up and down the tracks; that she saw the train from which she had just alighted standing beside the platform, and saw standing still on the track a freight train, the rear end of which was, as stated by one witness, about 20 feet westerly of the path across the track to the stone steps, but according to plaintiff's testimony it was much farther away; that seeing the two trains as stated, and "thinking the coast was clear," she "made a quick pass to go across" the track in the path toward the steps, and as she stepped upon the track the freight •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes made by a party, or his attorney, in court, on the trial of a cause. Such admissions are formal acts done for the purpose of dis pensing with the production of evidence by the opposing party of some fact claimed by the latter to be true, and are of conclusive effect, unless relieved against in the discretion of the court. United States, for Use of Lyman Coal Co., v. United States Fid. & Guar. Co., 83 Vt. 278, 75 Atl. 280; Wigmore on Ev. §§ 1057, 2590. The statement here claimed by the defendant to be conclusive against the plaintiff constituted a part of her testimony as a witness on the trial of the cause. Considered as a statement against her interest, it was not an admission, distinct and formal in character, nor was it made for the purpose of dispensing with the formal proof of any fact at the trial. It was not therefore in the nature of train was suddenly started backward, without warning of any kind that it was about to be moved, the rear car, striking her, knocked her down, ran over and cut off her right arm; that some of the passengers who arrived at the station on the same train with her crossed the track before her, and some were coming toward the place of crossing behind her; that when injured she was 66 years of age, had been troubled a little more or less with deafness for 40 years, but at times could hear as well as any one, and when traveling on cars could hear conversation plainly from one end of the car to the other, and could have heard a whistle blow at the time of the accident had one been blown; that she had more difficulty in hearing in the left ear than in the right, and sometimes used a trumpet; that she had been to Ludlow by train many times in the last 50 years, followed the same course (path) | a judicial admission, having conclusive effect at the station as on the day of the accident, and she testified, without objection, that on that day she was "exceedingly" careful. The defendant's evidence tended to show that the freight train was not standing still during the time the passengers were leaving the other train and the platform, but was backing at a speed of about six miles an hour toward the station on the same track there occupied by the passenger train, from a point several hundred feet westerly thereof, the conductor being on the back platform of the rear car to give warning; that the plaintiff was walking beside the track towards the stone steps, and, when the train was a short distance from her, she, without looking, started to cross the track, whereupon the conductor shouted to her, but, as she did not heed the warning, he then endeavored to get down the steps and push her off the track, and, seeing he could not do so, he jumped off the train and signaled the engineer to stop; that the engineer could not then stop the train in season to avoid hitting her. The defendant moved for a verdict on the grounds, among others, that upon the evidence the accident occurred through the contributory negligence of the plaintiff, and that upon all the evidence there was no issue for the jury. Was the overruling of this motion error? is one of the questions before us. [1] It is said that the plaintiff, as a witness, testified that the only time she looked up the track and saw the freight train was when she was some distance easterly of the point opposite the stone steps-within a few steps of the platform—and consequently, notwithstanding other evidence introduced by her, tended to show her looking at that train when she was almost opposite the stone steps, her own testimony in this respect being as to a matter within her own knowledge, was in the nature of a judicial admission, and therefore, as against her in this case, of conclusive effect. But this is overlooking the dis in law. It has been held by this court that admissions made by a party in giving testimony as a witness on the trial of a cause are not controlling against him, as a matter of law, when shown by the opposing party on a subsequent trial of the same cause. La Flam v. Missisquoi Pulp Co., 74 Vt. 125, 52 Atl. 526. Neither are they, being informal, conclusive in law on the trial at which the party gives the testimony. Matthews v. Story, 54 Ind. 417; Shepard v. St. Louis Transit Co., 189 Mo. 362, 87 S. W. 1007; Zander v. Transit Co., 206 Mo. 445, 103 S. W. 1006; Wigmore on Ev. § 2594; Chamberlayne on Ev. §§ 1263, 1264. [2] It is argued that, with the plaintiff's knowledge of the conditions at Ludlow station, she was aware that the freight train must back up to let the other train pass, as there was no siding west of the station, affording a means of such passing, and that, having an impairment of hearing, to go upon the railroad track without taking further notice of the freight train should be held, as a matter of law, to be contributory negligence, preventing recovery. This position is taken, relying upon the well-established rule in this state requiring a person about to cross a railroad track to look and listen for an approaching train and to stop to listen, if necessary, to make his listening effective, and to be specially vigilant respecting listening if his vision is obstructed, and respecting his vision in case of impaired hearing, continuing as long as the discovery of a train will enable him to avoid injury. [3] Yet this rule in all its strictness is not applicable to the case before us. Here the plaintiff, as a passenger on one of the defendant's trains, had just alighted at the station of her destination and was leaving the station to go to the public highway on the opposite side of the railroad, by crossing the defendant's tracks and its premises in the path and by the stairs, accustomed to be used by passengers walking to or from Indeed, the evidence showed an implied invitation by the railroad company to such passengers to go to and from the station over this course. There can therefore be no doubt that, under the laws of this state, the defendant was in duty bound to do what was reasonably necessary to insure the safety of passengers thus going to or leaving this station. Beard v. Conn. & Pass. Rivers R. Co., 48 Vt. 101; Hale v. Grand Trunk Railroad, 60 Vt. 605, 15 Atl. 300, 1 L. R. A. 187. [4] When the plaintiff, after alighting from the passenger train and when walking on the south side of the tracks toward the usual place of crossing them, saw the freight train standing still on the track some distance westerly, all within the tendency of her evidence, she had a right to assume that her safety in crossing the tracks would not be endangered by the backing of that train while she was so doing, and she was not, as a matter of law, guilty of contributory negligence in not again looking at it or in not keeping a constant lookout. While the plaintiff was bound to exercise due care according to the circumstances, her watchfulness would naturally be diminished by her right of reliance upon the company's discharge of its duty to passengers to exercise reasonable diligence in providing them a safe passage to and from its trains. [5] Whether, in the circumstances of this case, she exercised due care was a question for the jury, and in overruling the motion for a verdict there was no error. Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241; Terry v. Jewitt, 78 N. Y. 338; Besecker v. Delaware, Lackawanna & Western R. Co., 220 Pa. 507, 69 Atl. 1039, 123 Am. St. Rep. 714, 14 Ann. Cas. 21; Weisenberg v. Lackawanna & Wyoming Valley R. Co., 237 Pa. 33, 85 Atl. 74; Atlantic City R. Co. v. Goodin, 62 N. J. Law, 394, 42 Atl. 333, 45 L. R. A. 671, 72 Am. St. Rep. 652; Rodick v. Maine Cent. R. Co., 109 Me. 530, 85 Atl. 41; Atchison, Topeka & Sante Fé Ry. Co. v. McElroy, 76 Kan. 271, 91 Pac. 785, 13 L. R. A. (N. S.) 620, 123 Am. St. Rep. 134; Tubbs v. Michigan Cent. R. Co., 107 Mich. 108, 64 N. W. 1061, 61 Am. St. Rep. 320; Warner v. Baltimore & Ohio R. Co., 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491. [6, 7] On the degree of care to be exercised by the defendant after the plaintiff alighted from the train, the court charged the jury that the carrier of passengers is bound to use the utmost care and caution which may be reasonably expected of a careful and prudent man in like circumstances; that, in short, the plaintiff was a passenger not only while leaving the car, but also while rightfully leaving the company's station and the platform, path, or way provided by it for passing from the station to the highway over its own property; and if the company has provided a way of passage for exit from its station over its tracks, and invites its passengers either expressly or impliedly to use such way in leaving its station to reach the street, it owes the same duty as it owes to a passenger or passengers who are passing along the platform. In other words, this charge required the defendant to exercise the same degree of care toward the plaintiff after she alighted from the train and was leaving the station, going across the defendant's premises to the public highway, as when she was a passenger upon its train. To this an exception was saved. The charge in this respect seems to be in accordance with the rule, which obtains in some jurisdictions, that the duty of the carrier to a passenger is to exercise the highest degree of care at all times while that relation exists-from the time a person becomes a passenger until he ceases to be such by the completion of his journey, and he has left the carrier's premises (see Fremont, etc., R. Co. v. Hagblad, 72 Neb. 773, 101 N. W. 1033, 106 N. W. 1041, 4 L. R. A. [N. S.] 254, 9 Ann. Cas. 1096; Brackett v. Southern Ry., 88 S. C. 447, 70 S. E. 1026, Ann. Cas. 1912C, 1212); but such is not the law of this state. In Beard v. Conn. & Pass. Rivers R. Co., cited above, the plaintiff was injured in going down a certain open stairway in defendant's depot where she had gone in the evening to take a train which she had been informed would leave there between 9 and 10 o'clock. The court said there was no question as to the duty of the railroad company to do what was reasonably necessary on the depot premises to insure safety to the person of the plaintiff in doing what she did; she being in the exercise of proper care. It is manifest, from the holding touching the charge, that the duty of the carrier to do what was "reasonably necessary," as there stated, meant that it was bound to exercise ordinary care and prudence, for the court told the jury that, "in order to entitle the plaintiff to recover, she must establish that the defendant was guilty of negligence or was wanting in the exercise of ordinary care and prudence to persons rightfully on the upper platform," etc. This was held to be without fault. In Hale v. Grand Trunk R. R., 60 Vt. 605, 15 Atl. 300, 1 L. R. A. 187, it was held that, by accepting the carriage of the mail for the United States government, the defendant became under the duty to furnish the plaintiff a "reasonably safe passage" to its mail train while stopping at the station named for the purpose of mailing his letters; he being there at the invitation of the defendant to transact business which it had been hired to perform for and with him by the government. This case involved the same legal question as did the Beard Case, and the holding was in law the same. The expressions "due care," "reasonable care," and "ordinary care" are convertible terms. Baltimore, etc., R. Co. v. Faith, 175 Ill. 58, 51 N. E. 807; Raymond v. Portland R. Co., 100 Me. 529, 62 Atl. 602, 3 L. R. A. (N. S.) 94; Nesbit v. Crosby, 74 Conn. 554, 51 Atl. 550; | same degree of care is required in all cases, In Geno v. Fall Mountain Paper Co., 68 Vt. 568, 577, 35 Atl. 475, the terms "reasonably safe" and "ordinary care" were used as of the same purport, thus: The court said the real question was whether, in the circumstances of the case, "this projecting head was reasonably safe"; and in a later paragraph on the same page it is said: "The question for the jury being whether the defendant was in the exercise of ordinary care. * Whether the appliance was reasonably safe or not might depend," etc. As expressive of the same degree of care, the words "ordinary and reasonable care" are sometimes used (Hiatt v. Des Moines, etc., Ry. Co., 96 Iowa, 169, 64 N. W. 766), also "reasonable or ordinary care." Louisville & N. R. Co. v. Reynolds (Ky.) 71 S. W. 516. but means, when rightly understood, that the degree of care required in the particular case must be such as is commensurate with the circumstances that call for its exercise." We think, upon principle and by the great weight of authority, the carrier does what is reasonably necessary to insure the safety of those who as passengers have alighted from the train at the station of their destination and are leaving the station premises when it exercises ordinary care and prudence in view of the dangers to be apprehended. Among the many cases from other jurisdictions supporting this rule are the following: Lafflin v. B. & S. W. R. R. Co., 106 N. Y. 136, 12 N. E. 599, 60 Am. Rep. 433; Kelly v. Manhattan R. Co., 112 N. Y. 443, 20 N. E. 383, 3 L. R. A. 74; Moreland v. Boston & Providence R. R., 141 Mass. 31, 6 N. E. 225; Maxfield v. Maine Cent. R. Co., 100 Me. 79, 60 Atl. 710; Woodbury v. Maine Cent. R. Co. (Me.) 85 Atl. 753; Bacon v. Casco Bay Steamboat Co., 90 Me. 46, 37 Atl. 328; Dotson v. Erie R. Co., 68 N. J. Law, 679, 54 Atl. 827; Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874; Falls v. San Francisco, etc., R. Co., 97 Cal. 114, 31 Pac. 901; South And in Fassett v. Roxbury, 55 Vt. 552, it was held "that the words 'ordinary care and prudence' and the like, when rightly interpreted, convey the true idea, and doctrine of the law on this subject and import that degree of care and prudence that careful and prudent men would exercise in the same circumstances." To the same effect is Rey-ern R. Co. v. Reeves, 116 Ga. 743; 42 S. E. nolds v. City of Burlington, 52 Vt. 300. From the carrier of passengers the law requires the highest degree of care respecting the roadbed, the machinery, the cars, the appliances, and the running of the trains, because negligence in such respects is likely to result in great bodily harm, and in many instances loss of life to those using that means of conveyance. But as to approaches to the cars, such as the platform, the halls, stairways, or the like, and as to paths across the station grounds accustomed to be used by passengers under the company's implied invitation, in passing between the station and the public highway, as in this case, a less degree of care is allowed, because the consequences of negligence in respect thereof are naturally much less serious in nature; the degree of care being measured by what may reasonably be expected, considering the consequences which may follow, rather than solely by the relation of carrier and passenger. Briggs v. Taylor, 28 Vt. 180, 187; More land v. Boston & Providence R. R., 141 Mass. 31, 6 N. E. 225. In this Massachusetts case, after stating how the degree of care is to be measured, the court said that a railroad company would not act reasonably if it did not exercise greater care in equipping and running its trains than in respect to the condition of its station grounds. This court said in Fassett v. Roxbury, 55 Vt. 552, that "care and prudence always vary according to the exigencies that require vigilance and attention, conforming in amount and degree to the particular circumstances in which they are to be exercised." And in Parker v. Boston & Maine Railroad, 84 Vt. 329, 79 Atl. 1015; Georgia, etc., Ry. Co. v. Brown, 120 Ga. 380, 47 S. E. 942; Bennett v. Louisville & N. R. Co., 102 U. S. 577, 26 L. Ed. 235; Warner v. Baltimore & Ohio R. Co., 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491; St. Louis, Iron Mountain & S. Ry. Co. v. Barnett, 65 Ark. 255, 45 S. W. 550; Hiatt v. Des Moines, etc., Ry. Co., 96 Iowa, 169, 64 N. W. 766; Louisville & N. R. Co. v. Reynolds, (Ky.) 71 S. W. 516; McCormick v. Detroit, G. R. & M. Ry. Co., 141 Mich. 17, 104 N. W. 390; Robertson v. Wabash Ry. Co., 152 Mo. 382, 53 S. W. 1082; Crowe v. Michigan Cent. R. Co., 142 Mich. 692, 106 N. W. 395; Batton v. South., etc., R. Co., 77 Ala. 591, 54 Am. Rep. 80. The same rule is laid down by the leading text-writers: 3 Thomp. Neg. §§ 2691, 2748; 4 Elliott on Railroads, § 1590; 2 Hutch. Carr. § 941. [8] It is said, however, that, even though the charge was erroneous in the respect named, the error was cured by the supplemental charge, to which no exception was saved. But this can hardly be so, for the supplemental charge was in the amendment of another part of the charge, and is confined to the duty of the conductor after he discovered the plaintiff on the track in a place of danger and the train moving toward her, if it was, "in the emergency, if there was an emergency." In connection therewith the court gave further instructions regarding the duty of the plaintiff in such emergency. Nothing further. [9] Concerning the defendant's seventh request that, "If the defendant gave a warn ing at the time of the accident which would have allowed a person hearing and heeding |