i arriving at the crossing Mr. Wheeler stopped his buggy parallel with, and from six to ten feet from, the track, turning his horses' heads towards the hill and away from the track to enable appellant and the child to alight and go to the boat across the track, intending to turn his team in the level space there, and return up the hill without crossing the track. He then got out holding the lines in one hand, assisted the appellant and child to alight, reached in the vehicle for appellant's travelling bag, and handed it to her, when there came a very loud exhaust of steam from the engine, or, as Wheeler describes it, "four or five or six explosions or exhausts or coughs," causing the horses to become immediately much frightened. Using Wheeler's words, ". . . I grabbed the lines in my other hand, in both hands, and surged back on them." . . . The appellant and child being between the buggy and the track, she grabbed the child by the hand, and backed away from the buggy and frightened horses upon the crossing of the railroad, and was there run over by the first car of a short train which was being pushed by an engine of respondent towards and upon the crossing. The cars were apparently being moved in switching operations. . . . No brakeman or any one was upon the first or second car to keep a lookout ahead, no bell was rung or whistle blown from the engine, no flagman was upon the crossing, and no employee upon the train was nearer than the top of the third car from the end of the train approaching the crossing. . . . Appellant testified she did not hear the train or the exhaust. She says: "I don't know what excited them [horses]. I was not thinking anything about it; I was thinking of getting away from the horses and getting the little girl away." . . . It was conceded that from the crossing one could see a train in the direction from which this one came a distance of 400 feet. Appellant's assignments of error present two principal questions. Was the evidence at the close of appellant's case such that the Court could decide as a matter of law (1) whether or not respondent's negligence was a proximate cause of the injury; and (2) whether or not appellant's negligence contributed to her injury to the extent that respondent was relieved of liability therefor? We will notice these in their order. 1. Viewing the evidence as it relates to the question of the respondent's negligence independent of any contributory negligence on the part of appellant, it seems to us it was beyond question sufficient for the jury's consideration. 2. Upon the question of appellant's contributory negligence we are at the outset met with the contention of learned counsel for respondent that the failure of appellant to stop, look, and listen for the approach of a train at this crossing makes her guilty of negligence per se, under the previous decisions of this Court, citing in support of this contention: . . . In all of these cases, however, the injured party knowingly and voluntarily went upon the track without obeying the well-estab lished general rule, here invoked by counsel. None of them were impelled to go upon the track other than by their own free will. And this we think clearly distinguishes the facts in those cases from the position of this appellant and the cause which impelled her to back away from the buggy and frightened team upon the crossing where she was run down by respondent's train. . . . The duty to look and listen is not an absolute one, but one the exercise of which is dependent on conditions. Certainly a person who should rush to rescue a child from danger on a highway, due to an approaching runaway team, might be excused for not stopping to look and listen for a possible train on a railway track which he must cross in order to reach the child. . . Learned counsel for respondent contends that the situation in which the appellant was placed did not relieve her from exercising the care required by the rule invoked; that is, her position was not fraught with such peril as relieved her from the duty to stop, look, and listen before approaching the crossing. We cannot so determine as a matter of law in view of the surroundings shown by the evidence in this case. She was between the track at her back and the buggy and frightened horses in front, with her attention directed upon the team, and, according to her own testimony, not knowing even what excited them, was not thinking of it; was thinking of getting away from the horses and getting the little girl away. Her failure to notice the loud exhaust from the engine so plainly heard by the others might well be attributed to the fright of the horses attracting her attention, which occurred practically at the same instant. Whether or not she acted at that moment as a reasonable person under the circumstances, as they appeared to her, was, it seems to us, a question of fact for the jury. . . . We are of the opinion that the learned trial Court committed error in taking the case from the jury, and thus determining the question of negligence as a matter of law. The judgment is reversed, with instructions to grant appellant a new trial. RUDKIN, C. J., and MOUNT, DUNBAR, and CROW, JJ., concur. 644. NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY v. MAIDMENT UNITED STATES CIRCUIT COURT, DISTRICT OF NEW JERSEY. 1909 168 Fed. 21 IN error to the Circuit Court of the United States for the District of New Jersey. James B. Vredenburg and Albert C. Wall, for plaintiffs in error. Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges. BUFFINGTON, Circuit Judge. In the court below, Maidment, here after styled plaintiff, sued the railroads, hereafter styled defendants, for damages sustained by him in a collision between an automobile driven by him, and defendants' passenger train. The plaintiff recovered a verdict, and to review the judgment entered thereon defendants sued out this writ. A number of errors are alleged, but in our view the case turns on the refusal to give binding instructions for the defendants. If the plaintiff was guilty of contributory negligence, the point was well taken. To that question we therefore address ourselves. At 7.21 on the evening of August 17, 1906, plaintiff drove his steam automobile westwardly on the Ft. Lee road to a point where the highway crossed at right angles the double-track main line of the defendants. A friend, Herrick by name, occupied the seat beside him. He states in his declaration it "was an extraordinarily dangerous crossing." He was familiar with the place, from crossing it that morning and several times before. A watchman was located there, but had left before plaintiff approached. At a point fifteen or twenty feet back from the east-bound track, plaintiff stopped his machine to await the passage of a long freight train on the nearest, or east-bound track. He waited until the freight was one hundred and eighty feet beyond the crossing, when he started his automobile down the sharp decline to the eastbound track and attempted to dart across the double track. At that instant a passenger train coming westward on the other, or west-bound track, struck and wrecked his automobile and seriously injured the plaintiff. Was he guilty of contributory negligence in making the crossing? ... With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. . . . When a driver of horses attempts to make a crossing and is suddenly confronted by a train, difficulties face him to which the automobile is not subject. He cannot drive close to the track, or stop there without risk of his horse frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and if he goes forward to the track to get an unobstructed view and look for coming trains, he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should in meeting these new conditions rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the travelling public. . . . Now, in the present case, we are clear, the plaintiff, in crossing with ... his automobile, unfortunately wholly omitted to take those reasonable precautions which the situation both demanded and permitted. It is true he stopped fifteen or twenty feet back from the tracks; but this was not to get a view of approaching trains. As will be seen later, he could not from that point get a sufficient outlook, and his stop there was merely to await the passage of the freight train. But the plaintiff was not without means of crossing in safety. A second man was in the automobile. He could have gone ahead to the east-bound track, or Maidment could have safely halted the machine there. Instead of doing this, and without sight of the west-bound track, save for the very short distance a swift train would quickly cover, he took the chance of dashing across. ... The duties of an automobile driver approaching tracks where there is restricted vision, to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty, and these safeguarding steps the plaintiff failed to take. He stopped where stopping served no purpose, and failed to stop where stopping would have disclosed danger. He made chance, and not sight, the guarantee of his safety. We are clear he was guilty of contributory negligence, and the judgment below should be reversed. 645. CHICAGO & ALTON RAILROAD COMPANY v. BYRUM SUPREME COURT OF ILLINOIS. 1894 153 Ill. 131, 38 N. E. 578 APPEAL from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Logan County; the Hon. GEORGE W. HERDMAN, Judge, presiding. Messrs. Blinn & Hoblit, for the appellant: While, generally, negligence is a question of fact, the fact that appellee intentionally jumped from a train that she knew to be moving being undisputed, the question of contributory negligence then becomes one of law. . . . Messrs. Beach & Hodnett, for the appellee: Whether alighting from a moving train is such contributory negligence as will bar a recovery, is, under all the circumstances of the case, a question of fact, for the jury. Mr. Justice BAKER delivered the opinion of the Court: Appellee brought case against appellant, in the Circuit Court of Logan County, and recovered judgment upon a verdict for $3,000. This is an appeal from the judgment of the Appellate Court for the Third District affirming that judgment. ... The facts in the case as found by the Appellate Court, and which we are forbidden to review, are, briefly, as follows: That on the morning of October 28, 1890, appellee was a passenger on appellant's train, returning from Broadwell to her home in Elkhart, where the train arrived shortly after daylight. She occupied a seat in the rear or north end of the chair car, which was crowded. When the brakeman announced the station and as the train slowed up, she started with her valise in hand to go down the car and out by the forward door, but was somewhat impeded by others coming in. The train stopped but a short time. Appellee got out upon the platform of the car as soon as she could, and then perceived that the train had started, but was moving so slowly that she thought she could step off without danger. When she made the attempt to alight the train had moved only about two-thirds the length of the car, or forty feet. In stepping off she was thrown down upon the platform by the motion of the car, her right arm was broken, and she was otherwise bruised, cut and injured. . . . ... Appellant further contends that the trial Court erred in modifying instructions numbered 2, 5 and 7, offered in its behalf. Said instructions, as asked, together with the modifications which were made by the Court by adding the clause in each of them contained in brackets, were as follows: ... "5. The Court further instructs the jury, that if they believe, from the evidence, that plaintiff got upon the cars of the defendant at Broadwell, to be carried to Elkhart, upon the line of defendant's road, and that when the train arrived at or near Elkhart, upon the line of defendant's road, and that when the train arrived at or near Elkhart the brakeman announced the station, which was heard by the plaintiff, [and that the train stopped a reasonable length of time to allow passengers in the exercise of reasonable care and diligence to get off the train,] and if the jury further believe, from the evidence, that the plaintiff, becoming bewildered, or from any other cause, did not get off the car while it was standing at the station at Elkhart, but remained on the car until the train was again in motion, then . . . if in getting off the cars while so in motion the plaintiff was injured, the company could not be held responsible for such injury." It is urged that the fact (being undisputed) that appellee knowingly and intentionally alighted from a moving train was such contributory negligence as would preclude a recovery, and that the Court should, as it was asked to do by appellant, have told the jury, as matter of law, that such an act was contributory negligence; and that it was error to so modify the instructions offered as to make the question of contributory negligence depend upon the fact whether or not the train had stopped a reasonable length of time to allow passengers exercising reasonable care and diligence to get off the train. This position is untenable. Whether or not appellee was guilty of such contributory negligence in alighting from a moving train as would bar a recovery, was a question of fact, to be determined by the jury under all the attendant and surrounding circumstances. ... The modifications made by the Court did not, to be sure, cure the |