[235] Grayson v. Lynch, 163 U. S. 476, 41 L. ed. 233, 16 Sup. Ct. Rep. 1064; Eckington & S. H. R. Co. v. Hunter, 6 App. D. C. 288; Willey v. Boston Electric Light Co. 168 Mass. 40, 37 L. R. A. 723, 46 N. E. 395. *Mr. Justice Brown delivered the opinion of the court: Upon the trial the court left it to the jury to say whether the defendant was guilty of negligence in either of four particulars: (1) In failing to protect the tracks by a fence at the point where the accident occurred; (2) in failing to provide a proper light to give warning of the approach of the train; (3) the distance passed over by the train after it struck the plaintiff and before it was brought to a stop, as bearing upon the question of speed; (4) and whether the persona in charge of the engine were keeping a proper lookout. These questions were all left to the jury, and presumptively, at least, determined against the defendant. 1. The regulations of the Commissioners of the District, adopted in pursuance of an act of Congress, approved January 26, 1887 (24 Stat. at L. 368, chap. 49), and a joint resolution of February 26, 1892 (27 Stat. at L. 394), require that "whenever the grade of a steam railroad track is approximately even with the adjacent surface" of the street. road shall be securely closed on both sides with a substantial fence," etc. There was no fence upon either side of the track where the accident occurred. The facts were that the track, at the point where the plaintiff was attempting to cross at the time of the accident, was not over 2 feet 2 inches higher than the level of the street, and was probably considerably less than that. The argument of the defendant is that, under this state of facts, the court had no right to submit the question to the jury, whether, within the [236] meaning of the regulations, the grade of the track at this point was "approximately even with the adjacent surface, the line of the There was also some testimony tending to show that it was impracticable to build a fence there consistently with the proper management of the road. Had the sole design of the fence been to prevent the crossing of vehicles at this point, it would be difficult to say that an elevation of 2 feet 2 inches above the surface of the street made the track approximately even with the adjacent surface; but evidently more than this was contemplated by this regulation, which looked to the protection of pedestrians as well as vehicles. The object of the fence is to prevent all crossing of the tracks, and unless the elevation be such as to render it practically impossible to cross, it is a question for the jury whether the track is not approximately even with the surface of the street. An elevation of 2 feet would afford no serious obstacie to the crossing of foot passengers, and apparently presented no difficulty to the plaintiff, as he had already mounted the track when he was struck by the tender. Had there been a fence upon either side of the track between Thirteenthand-a-half and Fourteenth streets, the plain tiff would have been obliged to cross the track at one of the street crossings, in order to reach the lamp which he intended to light, and the accident would probably not have occurred. As bearing upon the practicability of a fence at this point, it is pertinent to note that, after the accident occurred, a fence was erected along the north side of the track between these two streets, and still remains there. It was proper to leave the question of the fence to the jury, and we have no criticism to make of the charge upon that point. 2. It is also insisted that there was a material variance between the declaration and the proof with respect to the light on the advancing end of the tender, and, hence that the sufficiency of such light was improperly submitted to the jury. The regulations of the Commissioners require that "between sunset and sunrise of each day, a headlight or other equivalent reflecting lantern, to give due warning to persons near or crossing steam railroad tracks of the approach of *trains, locomotives, or cars, shall be dis- [237] played upon the advancing end of every train of steam railroad cars, and of single steam railroad cars and locomotives_not_in trains, in the District of Columbia. It shall be unlawful for any person to set in motion, or run, or operate any train of railroad cars, single railroad cars, or locomotives, without the said display of such lights or lanterns." The declaration averred that "there was no light upon the rear part of said engine to indicate its approach," and that, "by reason of the reckless and grossly careless manner in which the agents of said defendant operated said engine in failing to place any light upon the rear part of said engine," plaintiff was injured. The plaintiff showed that there was no regular headlight on the tender, but that there was a signal lantern hanging on a hook on the rear or advancing end of the tender, and that such light was visible at a considerable distance. The court left it to the jury to say whether the light was substantially such an one as was required by the regulations, or such as approach of the train. was requisite to give proper warning of the As the light was clearly not an ordinary headlight, or other equivalent reflecting lantern, shedding a dazzling light which could scarcely fail to be noticed by a person crossing in front of an engine, but an ordinary lantern which might readily be mistaken for a lantern carried by a foot passenger, or even impossible to say that there was error in suba street lamp or other smaller light, it is mitting the question of the sufficiency of the light to the jury. The averment of the declaration, that there was no light, is satisfied by proof that there was no such light as was required by law. An insufficient light is, from a legal point of view, no light at all. The distinction between a powerful headlight, such as is ordinarily carried upon locomotives, and an ordinary lantern, is by no means a fanciful or immaterial one; and it would unquestionably have been error to re There was fuse to submit to the jury the question would be difficult to escape the conclusion whether the light in question was such as that he was guilty of negligence in crossing gave sufficient warning to persons of the ap- this track without taking more careful obproach of trains. Although the regulations servations of incoming and outgoing trains. [238]*of the Commissioners are satisfied, not only But he was not. He was a boy of twelve by a locomotive headlight, but by an equiva- years, apparently dull for his age, as he had lent reflecting lantern of sufficient power to attended school four or five years without give warning that a train of steam cars is having learned to read or write. approaching, it was at least a question for testimony tending to show that he had only the jury whether an ordinary lantern which the capacity of a child of six or seven. Cerrailway employees carry in their hands an- tain answers given by him upon his examswered the requirement. It is very clear ination indicated that his powers of observathat the variance between the declaration tion were limited or his memory defective. and the proof was not of a character to mis- He was employed by his father, who was a lead the defendant at the trial. Nash v. city lamplighter, to light about thirty lamps Towne, 5 Wall. 689, 700, 18 L. ed. 527, 529; upon or near Maryland avenue; had started Robbins v. Chicago, 4 Wall. 657, 18 L. ed. shortly before 5 o'clock on the evening in 427; Grayson v. Lynch, 163 U. S. 468, 476, question, which was dark and misty, to make 41 L. ed. 230, 233, 16 Sup. Ct. Rep. 1064. his accustomed rounds, and had just lighted 3. The case turned mainly, however, upon a lamp on the south side of the avenue, when the question of contributory negligence, and he started across to light a lamp on the upon the refusal of the court to direct a ver- north side, almost immediately opposite the dict for the defendant upon that ground. one he had just lighted. He says he looked The defense of contributory negligence is one both ways, up and down Maryland avenue, which admits, or at least presupposes, neg- for trains, waited for the passing of an outligence on the part of the defendant, and the going passenger train, but failed to notice party in fault thereby seeks to cast upon the an incoming train which was being drawn plaintiff the consequence of his own failure by a locomotive running backward. The to observe the precautions which the cir- light on the tender was obviously not powercumstances of the case demanded. In deter- ful enough to illuminate the tracks in front mining the existence of such negligence, we of the locomotive, since the engineer and fireare not to hold the plaintiff liable for faults man, who were looking at him as he stopped which arise from inherent physical or men- on the track in front of the locomotive, tal defects, or want of capacity to appreciate could not tell whether he was a man, woman, what is and what is not negligence, but only boy, or girl, and could not see the ladder he to hold him to the exercise of such faculties carried. It is probable that he was someand capacities as he is endowed with by na- what confused by the noise of the outgoing ture for the avoidance of danger. The de-train, by the ringing of the engine bell, and fendant is primarily liable for his own negligence, and can only escape liability for a nonobservance of such precautions as his observation or the experience of others teaches him to be necessary, by proving that the accident would not have occurred if the plaintiff had taken such precautions as his own observation and experience had taught him to be necessary. Hence the plaintiff is liable only for the proper use of his own faculties, and what may be justly held to be contributory negligence in one is not necessarily such in another. There is no hard and fast rule applicable to every one under like circumstances. To an adult, in full possession of his mental and physical powers, one standard may be applied; to a boy, particularly if he be of limited intelligence, another standard; and to an infant not sui juris and totally ignorant of danger, still [239]*another. Washington & G. R. Co. v. Glad mon, 15 Wall. 401, 21 L. ed. 114; Sioux City & P. R. Co. v. Stout, 17 Wall 660, 21 L. ed. 745; Union P. R. Co. v McDonald, 152 U. S. 262, 281, 38 L. ed. 436, 443, 14 Sup. Ct. Rep. 619. Indeed in the last case the only contributory negligence with which he is chargeable is that of his parent or custodian who permits him to stroll into a place of danger. Had the plaintiff in this case been a man of mature age and average intelligence, it by a number of vehicles which had just We do not think that under these circumstances plaintiff could be considered a trespasser in crossing the tracks. This term is doubtless applicable to those who unnecessarily loiter upon, or walk along, a railway track as a convenient path. But to say that the plaintiff, who was lighting lamps on both sides of Maryland avenue, was bound every time he crossed the track to do so at a street crossing, is to apply too stringent a rule. The lamp which he had lighted and the one which he had started to light were upon op posite sides of the street, at a distance of from 100 to 150 feet from the crossing of Thirteenth-and-a-half street. The rule contended for would require the plaintiff, after having lighted the lamp on the south side, to return to Thirteenth-and-a-half street, cross the avenue at that point, and then go about half a block to a point opposite the other, nearly double the distance required to cross the tracks directly. This method would have to be repeated every time he had occasion to cross the avenue. Of course, if fence had been built this would have been necessary, but in the absence of such fence we do not think that the mere crossing of the track in the convenient performance of his duties made him a trespasser per se. We have examined the many cases cited by the plaintiff in error upon this point, and find that nearly all of them either turned upon the question whether loitering upon, playing upon, or walking along a railroad track made a person a trespasser, or, whether in crossing a track, sufficient care was used to avoid approaching trains. We are not pre41]pared to give our adherence to the *doctrine UNITED STATES, Appt., v. TENNESSEE & COOSA RAILROAD COM- (See S. C. Reporter's ed. 242-257.) Forfeiture of land grant-necessity of af- 1. 2. 3. Some affirmative action, legislative or judi- Lands opposite completed road are not for- An assignment of error is not necessary to give the court on appeal authority to notice a plain error. A prayer in a bill for a forfeiture of an entire land grant does not preclude a forfeiture of a part of it. [No. 53.] announced in a very few cases, that a man jury upon the ground that he was ipso facto a trespasser. We have no desire to limit or qualify anything said by us in Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 24 L. ed. 542, or in Northern P. R. Co. v. Freeman, 174 U. S. 379, 43 L. ed. 1014, 19 Sup. Ct. Rep. 763, both of which involved the question of care at a regular highway crossing, and we have no doubt that in the case under consideration such care should have been used as the nature of the case required and the intellectual capacity of the plaintiff admitted. But these were all questions for the jury, and were conclusively answered by the verdict. We cannot say that the court should have taken the case from the jury, or that it erred in any material particular. We cannot even say that we should have come to a different conclusion upon the facts. The judgment of the Court of Appeals was right, and it is therefore affirmed. February 5, 1900. APPEAL from a decree of the Circuit 81 Fed. Rep. 544, 26 C. C. A. 499. Statement by Mr. Justice McKenna: [242] The bill alleges that Congress by an act approved the 3d of June, 1856, granted to the state of Alabama in trust for certain railroads, of which the respondent, the Coosa bered section for 6 sections in width on each Railroad, was one, every alternate odd-numside of the road, with the right of selection *of others if rights had attached to such al-[243] ternate sections, within 15 miles of the line' of the road, as follows: "That a quantity of land not exceeding 120 sections, for each of the roads named in said act, and included within a continuous NOTE. As to land grants to railroads,-see Mr. Justice White and Mr. Justice Mc- note to Kansas P. R. Co. v. Atchison, T. & S. F. Kenna dicsented. R. Co. 28 L. ed. U. S. 794. length of 20 miles of each of said roads | Carlisle, by which it attempted to convey That the state accepted the grant by an act of its legislature approved January 20, 1858, upon the terms and conditions expressed in the act of Congress, and granted a portion of the lands to the Coosa Railroad. That the railroad constructed 10 and 22100 miles of road along the line of definite location of survey, to wit, from Gadsden northward toward Gunter's Landing, but did not construct any portion thereof prior to June 3, 1866, and never constructed or completed 20 miles of railroad prior to September 29, 1890. That said instruments were executed more than twenty years after the expiration of the time required for the construction of the railroad; that the company had no right or power to convey any title or right; that its officers and Carlisle knew the fact, and for the purpose of preventing the reversion of the lands to the United States the company executed and Carlisle accepted the conveyances. That, while they recite a valuable consideration paid by him, no money or valuable thing was paid, but that the whole transaction was merely a device to mislead and deceive for the purpose of enabling Carlisle to set up a claim that he held the lands as a purchaser for value and in good faith from the railroad company. That he is a purchaser mala fide, well knowing that the purchase was in violation of the act of 1856; that he holds them under a secret trust for said company and its stockholders, and that he and his relatives are the largest stockholders, and elected themselves and others subject to *their control directors, and[245] by directors so composed the conveyances to him were executed. That by virtue of the act of Congress all That there is valuable timber on the lands in the bill within the 6-mile limit and those A number of persons beside Carlisle are That the selections and approval were made upon the filing of a map of definite location, and not upon the certificate of the governor of the state showing that 20 con[244]tinuous miles of road had been constructed, for no section of 20 miles had been constructed before the passage of the act of Congress of September 29, 1890. That the United States became entitled to the possession of the lands on the 4th of June, 1866, and the right to recover both the title to and the possession of them. the Nashville, etc., Railway Company and The prayer is for a receiver and an injunc- The Exhibits A and B contain a list of lands respectively within the 6 and 15-mile limit, and Exhibits D and E are the conveyances to Carlisle. A receiver was appointed upon the bill without notice, and an injunction pendente lite issued. The injunction was subsequently modified to exclude from its operation cer That by the act of September 29, 1890, the United States resumed the title to all the lands which were opposite to and conterminous with any portion of such railroad not completed and in operation at the date of the passage of the act; and that none of the lands described in paragraph 1 and Ex-tain of the lands. hibit A were opposite to and conterminous with road constructed and completed at that date. Carlisle filed a demurrer and answer to the bill. The answer admitted all the allegations of the bill material to the propositions That the railroad company on the 4th of presented on this appeal, except those charg April, 1887, executed and delivered to Hugning deception and fraud in the conveyances Carlisle an instrument purporting to be a to him, but specifically alleged that they quitclaim deed, by which the company pretended to convey to him 17.010 acres of the land granted to it for the consideration of $21,790; and on the 7th of February, 1887, executed another instrument to were executed in good faith and for valuable of completed road. By an amendment to the |ing such conveyance there still remained due answer it was alleged that said lands were him $26,401.27. within 6 miles of the line of definite location of the road and within the primary granted limits. due the respondent as aforesaid, and the conveyance was absolute and without any trust or reservation. That on the 2d of April, 1888, the com pany conveyed to him about 16,400 acres of land, described in Exhibit D attached to the [246] *It was further alleged that he contracted original bill, at the price of $1.25 per acre, with the railroad company in 1859 to build which was the full value of the interest of the road; that in 1860 the company executed the company in the lands, because they a mortgage upon its franchises and other lay within the conflicting limits of the property, especially upon the lands granted grants to the company and the Alaby Congress, to secure 400 bonds, each of the bama & Chattanooga Railroad Company, and value of $1,000, issued by the company, and the Coosa company only owned an undivided eleven of them were pledged with him to se-moiety; that the consideration was money cure the amount due him for work done prior to 1861, and that at the time the Civil War broke out he had 400 hands working on the road, and was progressing rapdily with the building of the same. That during the war and after the war his and the company's financial condition prevented further construction. In 1871 the company made a conditional sale of the road to the East Alabama & Cincinnati Railroad Company to complete the road, but that company only built 5 miles of it between Gadsden and Attalla; that in 1883 the Coosa company resumed possession; and passed a series of resolutions approving and ratifying what he had done, constituting him its financial agent with power to construct, equip, and put in running order the road from Attalla to Guntersville, and empowered him to use all the assets of the company; and agreed to pay him out of the assets the original cost and expenses that he should incur in the construction, equipment, and putting the road in running order, together with 20 per cent in addition for superintendence and advances made by him; and that he retain a lien on the railroad and its franchises, both real and personal, until the costs and ses incurred by him be fully paid off, together with said 20 per cent in addition. The said resolutions also revived and renewed the indebtedness due to him for work done prior to 1860. expen That he put forth every energy to build the road, and expended in the work under a contract with the company large sums of his private resources; that the company had no money and no other resources except said lands, and no means except as supplied by him. That all the lands described in Exhibit E are a part of the first 120 sections of the grant, and are opposite to and conterminous with the first 20 miles of the railroad as shown by the map of the definite location, which was duly filed in accordance with the act of Congress, and are included in the lands which the company was authorized to sell in advance of the construction of any portion of the road. And it was alleged in an amendment to the answer that the company sold lands within the first 120 sections at divers times to divers persons for 2 and 50-100 dollars per acre, usually on credit and notes taken and placed in his, Carlisle's, hands as collateral security for the money due him, and most of the notes still remain in his hands, and only a small amount has been paid thereon; that the vendees of the company are in possession, and that he *during[248] the years 1887 and 1888, sold for a valuable" consideration the lands described in Exhibit E of the original bill to purchasers in good faith, who paid for the same and received his warranty deed. A list of the purchasers is attached to the answer. The answer of the railroad company was substantially the same as that of Carlisle, and the answers of the other respondents allege their respective relations to the lands, but are not otherwise material to the propositions in controversy. Upon the testimony submitted, oral and documentary, the circuit court found as follows: "First. That prior to the 29th day of September, 1890, the Tennessee & Coosa RailThat in 1886 the road was completed as road Company had sold to bona fide purfar as Littleton, a distance of 10 and 22-100 chasers all the lands embraced in the first miles; that during all this time the money 120 sections which by the terms of the grantdue him for work done prior to 1861 had not ing act it was authorized to sell in advance been paid, and that sum, amounting to $47,- of the construction of the road. That these [247]000, and the money *expended afterwards by sales were bona fide and made to aid in the him, amounted to $85,750.92, and that his construction of the road. That the allegaaccount was submitted to the board of directions of the bill that the sale to Carlisle was tors of the company and was credited and approved. That in February, 1887, the directors, desiring to pay him, and having no assets, offered to convey the lands described in Exhibit E to the bill in payment pro tanto of his account at $2.50 per acre; that he finally agreed to accept 23,739 and 57-100 acres at said price, and the company conveyed the same to him absolutely, without any trust or reservation whatever, and that after receiv without consideration and colorable are not sustained by the evidence, but the sale to Carlisle was bona fide and based on good consideration, and the proceeds of the sale used in the construction and equipment of the road. "Second. The court finds that the Tennessee & Coosa Railroad from Gadsden to Littleton, a distance of 10 and 22-100 miles, was completed and in operation on and before the 29th day of September, 1890, and that |