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he is entitled to recover.

Davies v. Mann, 10 | manner primâ facie dangerous and imprudent, if there is evidence of acts or omissions by which he might have been put off his guard. Dublin, Wicklow, and Wexford Ry. v. Slattery, 3 App. Cas., 1155; 39 L. T. 365; 27 W. R. 191-H. L. (Ir.)

M. & W. 546; 12 L. J., Ex. 10; 6 Jur. 954.
In an action for killing an ass, which the
declaration alleged to have been lawfully upon
the highway when it met its death, it appeared,
that the animal, fettered by the fore feet, had
been placed on the highway by the plaintiff, and
was killed by being unable to get away from the
defendant's waggon, which, without its driver,
was coming at a quick rate along the road :-
Held, that the jury was properly directed, that,
although it was an illegal act on the part of the
plaintiff to put the animal on the highway, still,
unless its being there was the immediate cause
of the accident, the plaintiff was entitled to

recover. Ib.

In all cases of collision, the question is whether the disaster was occasioned wholly by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the disaster by his own negligence, or want of ordinary and common care, that but for his default in this respect the disaster would not have happened; in the former case he recovers; in the latter not. Tuff v. Warman, 5 C. B. (N.S.) 573; 27 L. J., C. P. 322; 5 Jur. (N.S.) 222; 6 W. R. 693-Ex. Ch. S. P., Doyle v. Kinahan,

17 W. R. 679.

Also, if the defendant might, by the use of ordinary care, have avoided the consequences of the plaintiff's mere negligence, the plaintiff is to

recover.

Ib.

A person who is guilty of negligence and thereby produces injury to another, cannot set up as a defence that part of the mischief would not have arisen if the person injured had not himself been guilty of some negligence. Greenland v. Chaplin, 5 Ex. 243; 19 L. J., Ex. 293.

If an injury is occasioned partly by the negligence of the plaintiff, and partly by that of the defendant, the plaintiff cannot maintain any action. Williams v. Holland, 6 Car. & P. 23; 3 M. & Scott, 540; 10 Bing. 112; 2 L. J., C. P. 190. No action will lie for the consequences of a negligent act where the party complaining has by his own want of due care and caution been in any degree contributory to the misfortune. Witherley v. Regent's Canal Co., 12 C. B. (N.S.) 2; 3 F. & F. 61; 6 L. T. 255; 2 L. J., C. P. 190. To an action for bodily injury caused to the plaintiff through a breach of duty on the part of the defendant, it is a good defence, that although he was guilty of such breach of duty, the plaintiff wilfully, and contrary to the command of the defendant, committed the act which was the direct cause of the injury. Caswell v. Worth, 5 El. & Bl. 849; 25 L. J., Q. B. 121; 2 Jur. (N.S.) 116; 4 W. R. 231.

Risk Voluntarily Encountered-Necessity.]— In an action for damage occasioned by negligence, a material question is, whether or not the plaintiff might not have escaped the damage by ordinary care on his own part; but the defendant is not excused merely because the plaintiff knew that some danger existed through the defendant's neglect, and voluntarily incurred such danger. The amount of danger, and the circumstances which led the plaintiff to incur it, are for the consideration of the jury. Clayards v. Dethick, 12 Q. B. 439.

Standing on Dangerous Place.]-Where the plaintiff was injured through the fall of a grating in a public way :-Held, that the fact, that he was not passing along but standing on the grating for the purpose of talking to a person at a window above it, was no improper user of the grating. Gwinnell v. Eames, L. R. 10 C. P. 658; 32 L. T. 835.

Connection with Accident-Onus of Proof.] -A railway line crossed a public foot-path on the level, the approaches to the crossing being guarded by hand gates. A watchman who was employed by the railway company to take charge of the gates and crossing during the day was withdrawn at night. The dead body of a man was found on the line near the level crossing at night, the man having been killed by a train which carried the usual head lights but did not whistle or otherwise give warning of its approach. No evidence was given of the circumstances under which the deceased got on to the line. An action on the ground of negligence having been brought by the administratrix of the deceased, the jury found a verdict for the plaintiff :-Held, that even assuming (but without deciding) that there was evidence of negligence on the part of the company, yet there was no evidence to connect such evidence with the accident; that there was therefore no case to go to the jury, and that the railway company were not liable. Observations as to the onus of proof with regard to contributory negligence. Wakelin v. L. & S. W. Ry., 56 L. J., Q. B. 229; 12 App. Cas. 41; 55 L. T. 709; 35 W. R. 141; 51 J. P. 404—H. L. (E.).

Particular Instances.]-C. was, at the time of the accident which caused his death, and In an action for death caused, or injuries had been for some three weeks previously, sustained, through being run over by a vehicle employed by contractors in erecting a signaldriven by a servant, evidence that he might have box near a station on the defendants' line seen the plaintiff or the deceased in time to pull of railway, and it was necessary for C. and up, if he had not been looking at his horses the other men employed in the work to cross owing to the want of a skid in going down hill, the line to procure their tools, which were kept is sufficient evidence of negligence, and even al- in a box at the other side of the railway. though there was some negligence on the part of When C. was re-crossing on the morning of the the deceased in crossing the road, yet the master accident, carriages were being shunted, as was is liable if his servant by the exercise of reason-done every morning at that hour, to make up a able care could have seen the deceased and avoided the accident. Springett v. Ball, 4 F. & F. 472.

Plaintiff put off his guard.]—A man is not necessarily to be regarded as having caused or contributed to his own injury, by acting in a

train, and some of these passed over C., who was killed. In an action by C.'s administratrix under Lord Campbell's Act against the railway company, it appeared from the evidence of the plaintiff's own witnesses, that the view from the tool-box, at which C. was standing, to the point from which the carriages began to retrograde

the deck and the flap, even when it fell into the horizontal position, to save him from contact with it. The judge of assize found, and it was in fact admitted, that the defendants were guilty of negligence in not having the flap properly secured, and in permitting the place where the plaintiff ought properly to have stood to be obstructed with coal. He also found that there was contributory negligence on the part of the plaintiff in standing on the boards and tarpaulin, and in not removing them; and further, in not properly controlling the hoisting of the bale, as was his duty, and that he did not exercise reasonable care and caution, either as to his place or manner in which he stood, or the management of the hoisting of the bale. On a special case :-Held, that there was evidence of contributory negligence on the part of the plaintiff, and that the action should be dismissed. M'Evoy v. Waterford Steamship Co., 18 L. R., Ir. 159.

A new steamer, not yet out of the builders' hands, was sent on a trial trip, manned by a sufficient number of men to work the ship, but they were not regularly constituted officers and crew :-Held, not to amount to contributory negligence. Clyde Navigation Co. v. Barclay, 1 App. Cas. 790; 36 L. T., 379-H. L. (Sc.)

was unobstructed; that they were visible during | there would have been sufficient space between the whole of the shunting to any person at the tool-box; that they were retrograding in the direction of C. when he started to cross the line, and that he must have seen them moving had he looked towards them, and that there was nothing unusual in what took place that morning in the mode of shunting:-Held, that the judge at the trial ought to have directed a verdict for the defendants, as the undisputed facts showed affirmatively that C. in crossing the line acted negligently, and that his negligence, if not the sole, was at least a contributory cause of the accident. Coyle v. G. N. Ry., 20 L. R., Ir. 409. An action was brought under Lord Campbell's Act by a widow for the loss of her husband. The deceased took his ticket at the defendants' station, at 9.30 p.m., intending to travel by a train leaving at 9.50 p.m., from the up platform, which was opposite to that on which the booking office was situated. There was no sufficient accommodation for passengers waiting, except on the booking office side, where there was a waiting room. The deceased remained there until the train was heard approaching. On hearing the train approaching the deceased attempted to reach the up platform by a level crossing, at each end of which lamps were fixed. There was no bridge or subway across the line. 'The train was about twenty yards from the cross- The defendants' railway crossed a public footing when the deceased attempted to cross. He path on the level. About half-past four o'clock was struck by the engine of the train and killed. in the afternoon of the 29th of March, the At the approach of the train it was usual for a plaintiff, a foot passenger, while crossing from porter to stand at the crossing and warn pas- the down side to the up side of the railway, was sengers. But on the night in question there was knocked down and injured at the crossing by a no porter at the crossing, and no notice was given train of the defendants on the up line. Owing of the approach of the train; no whistle sounded, to the position of certain buildings which stood and no bell was rung. The judge at the trial by the line it was impossible for anyone crossleft the question of the defendants' negligence to ing from the down side to see a train coming the jury, who found a verdict for the plaintiff :- until he got within a step or two from the down Held, that the judge ought to have withdrawn line, but a person standing on the down line the case from the jury, on the ground that the or the six-foot had a clear and uninterrupted case upon the plaintiff's evidence disclosed such view up and down the line for several hundred a want of care on the part of the deceased, as yards. The plaintiff, who lived near and was showed that he had so far conduced by his negli- well acquainted with the crossing, stated that gence to the accident as to disentitle the plaintiff before crossing he looked to the right along the to recover. Wright v. Midland Ry., 51 L. T. 539. down line, but he admitted that he did not look The plaintiff was engaged in the loading of a to the left along the up line, and that if he had cargo on board the defendant's steamer. His duty looked he must have seen the train coming. was to direct the management of the crane by The engine-driver did not whistle. There was a which bales were slung into the hold, and to call servant of the defendants employed as a gateout to the men working the crane "high enough" keeper at the crossing, whose duty it was to open when the bale was hoisted sufficiently high to the carriage gates there when carriages could be lowered into the hold. For this purpose his safely be admitted, and to close them at other proper place was to stand in a particular part of times. He was standing at the time on the the deck; but at the time of the accident there opposite side of the crossing talking to two boys, was a quantity of coal on this spot, which pre- with a furled flag in his hand; but he gave no vented the plaintiff from standing there, and he warning to the plaintiff that a train was coming. accordingly stood upon a plank, called a flap, The plaintiff having brought an action against working on hinges, and necessarily raised when the defendants to recover compensation for his cargo is being put into the hold, the flap being injuries, was nonsuited on the above facts being then secured by a rope passing through a block proved at the trial-Held (Baggallay, L. J., in the rigging and hooking on by an ordinary open dissenting), that the nonsuit was right, as hook to a ring in the flap. One of the bales was although there was evidence of negligence on hoisted too high and struck the flap, causing the the part of the defendants, yet according to the ring to slip out of the open hook, and the flap undisputed facts of the case the plaintiff had falling in horizontal position struck the plaintiff, shown that the accident was solely caused by his who was severely injured. The plaintiff ad- omission to use the care which any reasonable mitted that he knew that a short time pre-man would have used. Davey v. L. & S. W. viously the flap had slipped from the hook in a similar manner and been broken. There was . also evidence that at the time of the accident the plaintiff was standing on some boards and tarpaulin, which might have been removed, and -that if he had been standing on the clear deck

Ry., 53 L. J., Q. B. 58 ; 12 Q. B. D. 70 ; 49 L. T. 739; 48 J. P. 279-C. A.

Plaintiff, an intending passenger by the defendant's railway, having received his ticket, was obliged to cross the line by a level crossing in order to get from the booking-office to the plat

form from which his train would start. Whilst crossing he was knocked down and injured by a train which he was unable to see till it was about twenty yards from him, owing to a sharp curve on the line. The night was dark, and there was no one at the crossing to warn the plaintiff of the approaching train, which was a special train running through the station at a fast speed, and not mentioned in the time-tables. The learned judge at the trial directed a nonsuit on the authority of Davey v. L. & S. W. Ry., (12 Q. B. D. 70):-Held, that the case ought not to have been withdrawn from the jury, and that the nonsuit was wrong. Brown v. G. W. Ry., 52 L. T. 622.

Deafness.]-Deafness of a person crossing a line of railway is contributory negligence in him if by reason of that defect he is unable to hear a warning given to him by the company's servants in charge at the crossing. Skelton v. L. & N. W. Ry., 36 L. J., C. P. 249; L. R., 2 C. P. 631; 16 L. T. 563; 15 W. R. 925. S. P., Stubley v. L. & N. W. Ry., 35 L. J., Ex. 3; L. R. 1 Ex. 13; 11 Jur. N. S. 954; 13 L. T. 376; 14 W. R. 133; 4 H. & C. 83. See Smith v. Browne, 28 L. R. Ir. 1.

When Case should be left to Jury.]-To justify leaving a case to the jury, notwithstanding the voluntary act of the injured person contributing to the injury complained of, the circumstances must be such as either-1, to make the question, whether that act was negligent (either per se or having regard to the conduct of the defendants inducing or affecting it) a question of fact; or, 2, to render reasonable an inference of fact that the defendants, by using due care, could have obviated the consequence of the plaintiff's negligence. Coyle v. G. N. Ry., supra.

In an action for damages for negligence it is not sufficient to entitle the plaintiff to have his case submitted to a jury that he has proved some negligence on the part of the defendants, if it also appears that the plaintiff was guilty of such contributory negligence that no reasonable jury could find a verdict in his favour. Wright v. Midland Ry., 51 L. T. 539.

In an action of negligence if the plaintiff gives evidence of negligence on the part of the defendant, and also gives evidence which may or may not be considered as amounting to contributory negligence on his own part, the case ought to be left to the jury. Brown v. G. W. Ry., 52 L. T. 622.

Where in an action for damages for personal injuries it appears from the plaintiff's own evidence that the injuries sustained were partially attributable to his omission to take ordinary precautions against a danger created by the defendant's breach of duty, there is no case to go to the jury. Sayer v. Hatton, 1 Cab. & E. 492.

Contributory Negligence of Children.]-The rule of law, that a plaintiff who has contributed to an injury occasioned by the negligence of the defendant, cannot recover a compensation in damages, does not apply where the plaintiff is a person incapable of exercising ordinary care and caution. Lynch v. Nurdin, 4 P. & D. 672; 1 Q. B. 29; 10 L. J., Q. B. 73; 5 Jur. 797. See Lygo v. Newbold, 9 Ex. 302; 23 L. J., Ex. 108; 2 C. L. R. 449; 2 W. R. 158.

Where, therefore, the defendant's servant left a horse and cart unattended in a public street,

and a child under seven years of age, during his absence, climbed on the wheel, and other children urged forward the horse, whereby he was thrown to the ground, and the wheel fractured his leg-Held, that the jury was justified in finding a verdict for him, if of opinion that there was negligence on the part of the servant. Ib.

Held, also, that the co-operation of third parties in the injury was not a ground of defence, if the means of injury were negligently left where it was extremely probable that they would be set in motion Ib.

The defendant exposed in a market-place a machine for crushing oil-cake, without the handle being fastened or its being thrown out of gear or in the care of any person. The plaintiff, a boy four years old, on returning from school under the care of his brother, who was seven years old, stopped with other boys at the machine, and whilst one of them was turning the handle, put his fingers in the cogs of the wheels, on being told by his brother to do so, and three of his fingers were crushed :-Held, that the defendant was not liable, as there was no negligence on his part, and the injury was caused by the act of the plaintiff and the boy who turned the handle. Mangan v. Atterton, 35 L. J., Ex. 161; L. K. 1 Ex. 239; 14 L. T. 411; 14 W. R. 771 ; 4 H. & C. 388.

The defendants were the occupiers of a warehouse on one side of a street into which their cellar opened. The public had a right of way over the whole street subject to the existence of the cellar; but the only flagged footpath was on the other side. The defendants took off the lid which covered their cellar and left it nearly upright against their wall. A child jumped from the lid, pulled it over, injuring himself and another child-Held, that the defendants were not liable at the suit of the first child, who had voluntarily meddled for no lawful purpose with that which, if left alone, would not have hurt him; but that they were liable at the suit of the second child, if not a joint actor with the first. Hughes v. Macfie, 2 H. & C. 744; 33 L. J., Ex. 177; 10 Jur. (N.S.) 682; 9 L. T. 513; 12 W. R. 315.

A boy, twelve years of age, entered a thirdclass railway carriage at night time, and was about to seat himself, when he placed his fingers on a part of the door. His father was behind him getting into the carriage, when a porter violently closed the door, which crushed the boy's fingers, and struck his father on the back:Held, that there was evidence of negligence on the part of the porter, which was properly submitted to the jury, and that there was no contributory negligence on the part of the boy. Coleman v. S. E. Ry., 4 H. & C. 699; 12 Jur. (N.S.) 944.

Of Infant's Attendant.]—A child of five years old was under the care of his grandmother, who purchased a ticket for him, and another for herself, to go from A. to B., on the railway of the company. While crossing the line at A., to be ready for their train, they were both knocked down and injured by another train. The accident was partly owing to the company's negligence, and partly to such negligence on the part of the grandmother as would disentitle her to recover damages from the company for injury :-Held, that the infant not being able to take care of himself, and being under his grandmother's care.

there was such an identification between the grandmother and the child that, by reason of her negligence, he was unable to maintain an action for the injury to himself. Waite v. North Eastern Ry., El. Bl. & El. 728; 28 L. J., Q. B. 258; 5 Jur. (N.S.) 936; 7 W. R. 311-Ex. Ch.

B. IN MANAGEMENT OF RAILWAY.

1. INJURY BY TRAFFIC.

User of Crossing-Acquiescence of Company.] -There is no duty upon a railway company acquiescing in persons crossing a portion of its line in no definite track to use care for the Harrison v. North protection of those persons. Eastern Ry., 29 L. T. 844; 22 W. R. 335. A railway company drove trains over a line belonging to a dock company, and running between the dock and a public promenade. The public were allowed to cross the line at all points, but there was one regular crossing where they more usually crossed. The plaintiff crossed the line at a point some distance from the regular crossing, and was knocked down and injured by a train of the railway company driven at four miles an hour. There was a short curve at the spot, but no whistle or other warning was given: -Held, no evidence of negligence. Ib.

Crossing Line.]-Where a railway company have provided a bridge for passengers to cross over the line at a station, of which the plaintiff was aware, and there was no evidence of an invitation on the part of any servant of the railway company to cross where he did, the company was not liable for the injuries which he had sustained thereby. Wilby v. Midland Railway, 35 L. T. 244.

A wife having arrived at a station, proceeded to cross the rails, to a platform on the opposite side by a path which the railway company had always allowed the passengers to use for that purpose. While in the act of crossing she was knocked down and killed by a train which had been suddenly, and without any warning, driven backwards along the line of rails which she was so crossing. In an action by her husband against the company :-Held, that there was evidence of negligence on the part of the company. Rogers v. Rhymney Ry., 26 L. T. 879; 21 W. R. 21.

A passenger, travelling by railway, whose train, from which he had alighted at a junction, was shunted to an unusual siding, out of sight from the platform, on a dark night, was killed while crossing the main line :-Held, that although there was no accommodation by a bridge for the passengers, and no servant of the company at hand to direct them, there was no evidence of positive negligence on the part of the company. Falkiner v. Great Southern and Western Ry.,

Ir. R. 5 C. L. 213.

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staff from the engine driver of an incoming train, and hand it to the engine driver of the next succeeding train, as an indication that the line was clear. The plaintiff having omitted to obtain the staff from the driver of a goods train, which, after its arrival at the station was shunted to a siding to allow a passenger train, due about fifteen minutes later, to pass, left the platform for the purpose of getting the staff, and while returning with it, and running on the "six-foot way was struck by the engine of the incoming passenger train, and severely injured. He was aware that this train was due at the time. evidence as to whether the engine of the passenger train whistled at all or not was contradictory, but it was admitted that it had not whistled continuously from the time the plaintiff was observed to be on the line. The plaintiff having brought an action against the company for the injuries sustained by him :-Held, that, under the circumstances, the omission of the engine to keep up a continuous whistle, or to whistle at all (assuming it had not done so), did not constitute actionable negligence on the part of the defendants, that on the admitted facts the accident had been entirely caused by the plaintiff's own negligence, and that the verdict and judgment should be entered for the defendants. M'Donnell v. Great Southern and Western Ry. 24 L. R., Ir. 369—C. A.

Though Warning Customary.]-S. attempted to cross the line of railway at night at a spot where persons were in the habit of crossing with the acquiesence of the company. At the time that he attempted to cross there was a train standing still on the up line in such a position as to prevent a person on the line behind it from seeing anything approaching on the down line. S. came from behind the train on the up line, and, on crossing on to the down line, was struck by an express train and killed. It was a rule of the company that express trains should whistle at that point, but evidence was produced that the train had not in fact whistled on that occasion. This evidence was contradicted by the servants of the company, who also proved that the train carried lights, and might have been seen by S. before he stepped on to the down line :-Held, that there was evidence of negligence on the part of the company, and that the case was properly left to the jury. Dublin, Wicklow and Wexford Ry. v. Slattery, 3 App. Cas. 1155; 39 L. T. 365; 27 W. R. 191-H. L. (Ir.)

The defendants' railway crossed a public footway on the level. About half-past four o'clock in the afternoon on the 29th of March, the plaintiff, a foot passenger, while crossing from the down side to the up side of the railway, was knocked down and injured at the crossing by a No Warning Given.]-The plaintiff's hus- train of the defendants on the up line. Owing band was killed whilst passing over a level cross-to the position of certain buildings which stood ing. The acts of negligence alleged against the by the line it was impossible for any one crossdefendants were, (a) not having whistled, (b) ing from the down side to see a train coming obstruction of the view of the train by a signal until he got within a step or two from the post, and (c) the absence of a porter at the cross-down line, but a person on the down line or ing:-Held, that as none of these acts or omissions were against any statutory precaution, the defendants were not liable. Newman v. L. & S. W. Ry., 55 J. P. 375.

The plaintiff acted as station master at a small railway station where the line was single and the "the staff system," traffic was conducted on according to which it was his duty to obtain a

the six foot had a clear and uninterrupted view up and down the line for several hundred yards. The plaintiff stated that before crossing he looked to the right along the down line, but he admitted that he did not look to the left along the up line, and that if he had looked he must have seen the train coming. The engine-driver did not whistle. There was a servant of the

company employed as a gatekeeper at the crossing standing near the crossing, but he gave no warning to the plaintiff that a train was coming. The plaintiff having brought an action against the company to recover compensation for his injuries, was nonsuited on the above facts being proved at the trial:-Held, that the nonsuit was right, on the ground that the undisputed facts of the case showed that there was no negligence on the part of the defendants, and that the plaintiff's own want of caution was the sole cause of the accident. Davey v. L. & S.W. Ry., 53 L. J., Q. B. 58; 12 Q. B. D. 70; 49 L. T. 739; 48 J. P. 279-C. A.

that the line was clear. The plaintiff's husband, on a dark but clear night, crossed the line at the level crossing to make some inquiries at the cottage, and, having done so, left the cottage to return across the line without receiving any warning from the signalman, who remained in the cottage and did not leave it, that a train was approaching the crossing. Almost immediately after the plaintiff's husband left the cottage a train was heard whistling, and after it had passed he was found dead on the line at a short distance from the crossing. One of the gates had a lamp upon it, and when the gate was opened across the line would show a red light up and down the It is the duty of a railway company, whose line, which was straight for about 500 yards one line crosses a public road at a level crossing, way, and for about a mile and a quarter the to take reasonable precautions to warn persons other :-Held, that there was evidence of negliusing the crossing of the approach of trains. In gence on the part of the defendants to go to the an action under Lord Campbell's Act, against a jury, and also that there was evidence upon railway company, for negligently driving over, which the jury might come to the conclusion and so causing the death of the husband of the that there was no want of reasonable care on plaintiff whilst he was crossing the defendants' the part of the plaintiff's husband. Smith v. line at a level crossing, the defendants called S. E. Ry., 65 L. J., Q. B. 219; [1896] 1 Q. B. evidence to the effect that it was the invariable 178; 73 L. T. 614; 44 W. R. 291; 60 J. P. 148 custom for drivers of engines to blow the whistle-C. A. before reaching the crossing. There was a conflict of evidence at the trial as to whether the whistle was blown on the occasion in question, and the jury found a verdict for the plaintiff. A rule for a new trial having been obtained, the court refused to disturb the verdict. Gray v. N. E. Ry., 48 L. T. 904.

C.

A few minutes after three o'clock p.m., in clear daylight, C., who was a resident in the locality, had occasion to traverse a level crossing on the line of the defendant railway company, close to the L. station. There was a large swing-gate on each side of the line at the crossing for heavy traffic, besides a wicket for foot The defendants' railway crossed a level cross-passengers. An express train, which usually ing which was some twenty yards distant from a footbridge. Both the crossing and the bridge were private crossings, intended for the use of persons employed in a neighbouring manufactory. About thirty yards from the crossing was a box where a railway man was commonly stationed, who was sometimes shouted to by persons wishing to pass the level crossing with carts, and answered " All right." The plaintiff, a boy of eleven years of age, who was employed at the manufactory, having occasion to go over the line, was waiting at the level crossing until one train had passed, but was knocked down and severely injured, when in the act of crossing, by another train which he had not observed, and which was passing in the opposite direction immediately afterwards. At the trial there was evidence that the bridge was dirty and not lighted at the time of the accident; that the train did not whistle; that the plaintiff knew the bridge, having crossed it several times; and that the man at the box used to bring out a stick to stop him from going over the bridge, but that when the accident happened he was not present. There was no evidence to show what the man's special duties were, or whether he had any duties in respect to foot passengers. Upon this evidence the learned judge was asked to nonsuit the plaintiff :-Held, that there was evidence of negligence to go to the jury, and that the conduct of the railway man was a distinct breach of duty which amounted to negligence and contributed to the accident. Clarke v. Midland Ry., 43 L. T. 381.

The defendants had on their railway a level crossing which was protected by gates, and was used by foot passengers and also by vehicles. A signalman who resided in a cottage close by was placed by the defendants at the crossing, and it was his duty and practice on receiving notice on a gong of an approaching train to go out on to the line and signal to the engine-driver

VOL. X.

travelled at the rate of about thirty miles an
hour, was timed to pass this point at 2.30 p.m.,
but was about forty minutes late on the day in
question, and another train was due at 3.15.
The large gates were closed, but no attempt was
made by the company's servants to prevent C.
from crossing, or to warn him of impending
danger. Just after getting on the line, C. made
an inquiry from a person who was standing on
the platform of the station, and immediately
afterwards another person on the platform
shouted to C. to "look out for the train."
was then on the "six-foot way," and the
approaching express was about twelve yards
distant on the rails towards which he was
walking. C. became confused, and, instead of
going back, ran forward, and was killed. There
was evidence that the express train usually
whistled about a mile before reaching the
station; but a witness stated that, on this
occasion, he heard it whistling while passing
through the station. It was further proved
that the line, in the direction from which the
train came, was visible for at least 200 yards,
and, according to some of the witnesses, for half
a mile from the crossing. The company, after
the accident, took additional precautions, as to
locking the wicket and otherwise, when trains
were expected. In an action, under Lord Camp-
bell's Act, by C.'s personal representative against
the company :-Held, that there was no evidence
of negligence on the part of the defendants, and
that the jury had been rightly so directed. Curtin
v. Great Southern and Western Ry., 22 L. R.,
Ir. 219-C. A.

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