Under a regulation requiring railroad tracks running through the
streets of a city to be fenced, whenever the grade is
"approximately even" with the adjacent surface of the streets, it
is proper for the jury to say whether a track elevated two feet two
inches above the surface of the street is within the
regulation.
Where the declaration averred that there was " no light" upon
the engine to indicate its approach, and the proof was that an
insufficient light was carried, it was held that there was no
material variance.
Where the regulation required that "a headlight or other
equivalent reflecting lantern" should be carried upon a train to
indicate its approach, it is for the jury to say whether an
ordinary hand lantern is a substantial compliance with the
regulation.
In determining the existence of contributory negligence, the
plaintiff is not liable for faults which arise from inherent mental
or physical defects or want of capacity to appreciate what is and
what is not negligence. He is only responsible for the exercise of
such faculties and capacities as he is endowed with by nature for
the avoidance of danger.
While under the circumstances of this case, the court might have
held the plaintiff liable for contributory negligence if he had
been a man of mature age and average intelligence, as he was a boy
of twelve years of age, it was held that the question was properly
submitted to the jury.
A person crossing the track of a railroad company in the streets
of a city for the more convenient performance of his duties is not
ipso facto a trespasser.
This was an action begun in the Supreme Court of the District of
Columbia by the plaintiff Cumberland, suing by his next friend,
against the Baltimore & Potomac Railroad Company, to recover
damages for personal injuries inflicted upon him by the alleged
negligence of the defendant company.
The undisputed facts were that the plaintiff, who was twelve
years and four months of age at the time of the accident, was a
street lamplighter by occupation, and for more than a year prior
thereto had been engaged, under his father's direction,
Page 176 U. S. 233
in lighting street lamps in the vicinity of the company's tracks
on Maryland Avenue in the City of Washington.
The accident occurred about dark on the evening of December 10,
1894. The weather was misty, according to some of the witnesses,
rainy, foggy, and very cold, according to others. The plaintiff,
having lighted a lamp on the south side of Maryland Avenue between
Thirteenth-and-a-half and Fourteenth Streets, started across
Maryland Avenue and the tracks of the company for the purpose of
lighting a lamp directly opposite on the north side of the street.
There was a curve in the tracks at this point, made by a turn in
the railroad from Long Bridge into Maryland Avenue. There was no
crossing for persons or vehicles between Thirteenth-and-a-half and
Fourteenth Streets, and the street on either side of the right of
way was separated therefrom by curbs which projected eight inches
above the adjacent roadway. These curbs were above five feet from
the outer rails on either side, and the tracks were carried upon
ties, elevated about eighteen inches above the level of the curbs
and about two feet higher than the surface of the street. The
plaintiff, having lighted a lamp on the south side, started across
the street, mounted the elevated roadway in front of a train coming
up from Long Bridge with the tender ahead of the engine, and just
as he stepped upon the track was struck by the tender, knocked
down, and run over. There was a hand signal lantern swung on the
advancing end of the tender, and at the time of the accident it
appeared to have been burning.
At this part of the avenue, there are four or five railway
tracks -- two main tracks on the north side, used for passenger
trains, a third to the south of these two, used for freight trains,
which was the one on which the accident occurred; south of that, a
track diverging eastwardly into the freight station of the Richmond
& Danville Railroad Company to the south of the avenue, and
still further south, and south even of the gas lamp which the boy
had lit, a switch diverging from the east into a private coal yard.
About the place of the accident, and thence westward towards
Fourteenth Street, the tracks begin a curve so as to reach the Long
Bridge
Page 176 U. S. 234
at the foot of that street, and to the south, upon the inner
side of this curve and about the line of Fourteenth Street, there
was a switchman's box which to some slight extent obstructed the
view from the east of trains coming to the avenue from the
bridge.
As the boy had passed or was passing the Richmond & Danville
track, and was approaching the freight track, his attention was
directed to a passenger train going out on the northernmost track
towards the bridge. When this had passed, he proceeded on his way
across, and having stepped on the freight track, he was struck,
knocked down, and injured by the tender attached to an engine
drawing the work train, which he states he had not seen, although
he testifies that he had looked in that direction, had listened for
approaching trains, and had neither seen nor heard any.
The engineer testified that, when he was between Fourteenth
Street and the place where the accident happened, he saw the form
of a person moving at a brisk walk in the direction of the tracks,
about fifteen feet away from them and about fifty or sixty feet in
front of the train. He could not tell whether it was a man or boy.
When in the neighborhood of thirty feet away, he saw he was coming
so near the track that he thought probably he was going to walk on
it. He then reversed the engine, applied the brake to stop, and the
train was brought to a standstill within the distance of eighty or
ninety feet.
The fireman testified that, when he first saw the boy he was
approaching the track at a brisk walk, and was about fifteen or
twenty feet from it, making his way north. He appeared to be
looking across towards the moving train on the south-bound main
track. He was carrying some object (a ladder). He saw him put his
foot on the end of the ties, and he (witness) called the engineer's
attention by "hollering."
The defense rested chiefly upon the contributory negligence of
the plaintiff in crossing the track at this point without
sufficient care in looking out for the approach of trains.
The trial resulted in a verdict for the plaintiff in the sum of
$8,000, upon which judgment was entered. The case was carried
Page 176 U. S. 235
by the defendant to the Court of Appeals, and the judgment of
the Supreme Court affirmed. 12 D.C.App. 598. Whereupon defendant
sued out a writ of error from this Court.
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 persons 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. 368, c. 49, and a joint resolution of February 26, 1892, 27
Stat. 394, require that
"whenever the grade of a steam railroad track is approximately
even with the adjacent surface, the line of the 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 two feet two 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
meaning
Page 176 U. S. 236
of the regulations, the grade of the track at this point was
"approximately even with the adjacent surface" of the street. 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 two feet two 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
two feet would afford no serious obstacle 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 Thirteenth-and-a-half and Fourteenth Streets, the plaintiff
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
Page 176 U. S. 237
trains, locomotives, or cars, shall be displayed 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 was requisite to give proper warning of the approach of the
train.
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 a street lamp or
other smaller light, it is impossible to say that there was error
in submitting 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 unquestionable
have been error to refuse to submit to the jury the question
whether the light in question was such as gave sufficient warning
to persons of the approach of trains. Although the regulations
Page 176 U. S. 238
of the Commissioners are satisfied not only by a locomotive
headlight, but by an equivalent reflecting lantern of sufficient
power to give warning that a train of steam cars is approaching, it
was at least a question for the jury whether an ordinary lantern
which railway employees carry in their hands answered the
requirement. It is very clear that the variance between the
declaration and the proof was not of a character to mislead the
defendant at the trial.
Nash v. Towne,
5 Wall. 689,
72 U. S. 700;
Robbins v.
Chicago, 4 Wall. 657;
Grayson v. Lynch,
163 U. S. 486,
163 U. S.
476.
3. The case turned mainly, however, upon the question of
contributory negligence, and upon the refusal of the court to
direct a verdict for the defendant upon that ground. The defense of
contributory negligence is one which admits, or at least
presupposes, negligence on the part of the defendant, and the party
in fault thereby seeks to cast upon the plaintiff the consequence
of his own failure to observe the precautions which the
circumstances of the case demanded. In determining the existence of
such negligence, we are not to hold the plaintiff liable for faults
which arise from inherent physical or mental defects, or want of
capacity to appreciate what is and what is not negligence, but only
to hold him to the exercise of such faculties and capacities as he
is endowed with by nature for the avoidance of danger. The
defendant 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 everyone 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
Page 176 U. S. 239
another.
Railroad Co. v.
Gladmon, 15 Wall. 401;
Railroad Co. v.
Stout, 17 Wall 660;
Union Pacific Railway v.
McDonald, 152 U. S. 262,
152 U. S. 281.
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 would be difficult to escape the
conclusion that he was guilty of negligence in crossing this track
without taking more careful observations of incoming and outgoing
trains. But he was not. He was a boy of twelve years, apparently
dull for his age, as he had attended school four or five years
without having learned to read or write. There was testimony
tending to show that he had only the capacity of a child of six or
seven. Certain answers given by him upon his examination indicated
that his powers of observation were limited, or his memory
defective. He was employed by his father, who was a city
lamplighter, to light about thirty lamps upon or near Maryland
Avenue; had started shortly before five o'clock on the evening in
question, which was dark and misty, to make his accustomed rounds,
and had just lighted a lamp on the south side of the avenue when he
started across to light a lamp on the north side, almost
immediately opposite the one he had just lighted. He says he looked
both ways, up and down Maryland Avenue, for trains, waited for the
passing of an outgoing passenger train, but failed to notice an
incoming train which was being drawn by a locomotive running
backward. The light on the tender was obviously not powerful enough
to illuminate the tracks in front of the locomotive, since the
engineer and fireman, who were looking at him as he stepped on the
track in front of the locomotive, could not tell whether he was a
man, woman, boy, or girl, and could not see the ladder he carried.
It is probable that he was somewhat confused by the noise of the
outgoing train, by the ringing of the engine bell, and by a number
of vehicles which had just come over the bridge from the Virginia
side, and were rumbling and rattling over the cobblestone pavement.
It may be that these noises prevented
Page 176 U. S. 240
his hearing the shouting of the engineer and fireman, and of two
men at a switch lower down the track toward the bridge who were
calling to him to keep away. It is by no means improbable that if
there had been a strong reflecting light on the tender, as the
regulations required, it would have compelled his attention, when
an ordinary signal lantern might easily pass unnoticed. Indeed, a
witness who was standing on the corner of Thirteenth-and-a-half
Street and Maryland Avenue and saw the plaintiff going from the
lamp toward the railroad track saw no train coming up from the
bridge, although he was looking in that direction.
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
opposite 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 a
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 prepared to give our
adherence to the
Page 176 U. S. 241
doctrine announced in a very few cases, that a man who steps his
foot upon a railroad track, except at a crossing, does so at his
peril, though such doctrine, when applied to the facts of the
particular case, may not have been an unjust one. We are rather
disposed to say that where tracks are laid through the streets of a
city, upon or substantially upon the level of the street, a person
is not limited in crossing such tracks to the regular street
crossings, but may cross them at any point between such streets in
the convenient performance of his daily duties. We cannot say that
there was such danger to an active boy crossing the track at this
point as to authorize the case to be taken from the jury upon the
ground that he was
ipso facto a trespasser.
We have no desire to limit or qualify anything said by us in
Railroad Company v. Houston, 95 U. S.
697, or in
Northern Pacific Railroad v.
Freeman, 174 U. S. 379,
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.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA dissented.
