§ 7800. Omission of Signals at Crossings.-Failure to blow the whistle or ring the bell at crossings can be shown although the action is not based upon the section of the statute requiring these signals.12 Under the principle which forbids proof of other disconnected though similar acts of negligence, the plaintiff cannot show that other trains omitted to sound signals at the crossing in question,13 or that the engineer charged with negligence failed to sound signals at other crossings,1 unless at crossings within hearing of the traveller.15 It has been held that failure to sound signals at a farm crossing could be shown in a case where injuries were received at a crossing where signals were customarily given although not required by statute, it appearing that the train causing the accident was running at a very high rate of speed at an unusual time and the injured person's view of the track was obstructed.18 Where a failure to give the signals is denied, the plaintiff may sustain his contention by evidence of other persons at the place and in a position to have heard the signals if they had been given,17 and such evidence is not objectionable as the statement of a conclusion.18 It is also proper to show the custom and habits of flagmen at crossings in regard to signalling those about to cross the track of the fact that a train or engine is approaching." The failure of an electric bell at a railroad crossing to sound its usual alarm on the approach of the train which collided with a person may be considered by the jury on the question of contributory negligence, where the injured person knew that such a bell was maintained but did not know that it was out of order.20 12 Schnieder v. Missouri &c. R. Co., 75 Mo. 295. To recover damages for the death of his intestate at a railroad crossing, under Mass. Pub. Stat., chap. 112, §§ 212, 213, plaintiff must show that the deceased exercised due diligence and that the defendant failed to sound its whistle or ring the bell: Livermore v. Fitchburg R. Co., 163 Mass. 132; s. c. 39 N. E. Rep. 789. 13 Illinois &c. R. Co. v. Borders, 61 Ill. App. 55. 14 Chicago &c. R. Co. v. Durand, 65 Kan. 858; s. c. 69 Pac. Rep. 356 [overruling Atchison &c. R. Co. v. Hague, 54 Kan. 284; s. c. 60 Am. & Eng. R. Cas. 617; 38 Pac. Rep. 257]. But see Mack v. South Bound R. Co., 52 S. C. 323; s. c. 40 L. R. A. 679; 3 Chic. L. J. Wkly. 272; 29 S. E. Rep. 905. 15 Baltimore &c. R. Co. v. Alsop, 176 Ill. 471; s. c. 52 N. E. Rep. 253, 732; aff'g s. c. 71 Ill. App. 54. 19 18 Vandewater v. New York &c. R. Co., 74 Hun (N. Y.) 32; s. c. 56 N. Y. St. Rep. 208; 26 N. Y. Supp. 397. 17 Crane v. Michigan &c. R. Co., 107 Mich. 511; s. c. 65 N. W. Rep. 527; 2 Det. Leg. N. 757. Failure of a railroad company to give the statutory signals on approaching a crossing may be considered by the jury as a circumstance to show negligence, where an injury is inflicted by a train in such proximity to the crossing that the signals could have been heard by one lawfully on the track: Galveston &c. R. Co. V. Garteiser, 9 Tex. Civ. App. 456; s. c. 29 S. W. Rep. 939. 19 Crane v. Michigan &c. R. Co., 107 Mich. 511; s. c. 2 Det. Leg. N. 757; 65 N. W. Rep. 527. 19 Lingreen v. Illinois &c. R. Co., 61 Ill. App. 174. 20 Tobias v. Michigan &c. R. Co., 103 Mich. 330; s. c. 61 N. W. Rep. 514. In an action for injuries sus § 7801. Whether the Plaintiff Injured at a Railroad Crossing Exercised Due Care for His Own Safety.-On the question whether the injured person exercised due care for his own safety, evidence is admissible to show all the surrounding circumstances and conditions under which he acted.21 The fact that the injured person had exhibited a want of care at some prior time cannot be shown, as this fact, if proved, would have no tendency to show that he was negligent at the time the injury was received.22 For like reasons, the negligence of the driver of a vehicle at the time of an injury on a crossing cannot be proved by reputation.23 It has been held proper, however, to show previous boasts by the plaintiff of his ability to keep out of the way of trains and not get hurt.24 On the issue of the plaintiff's care, it has been held proper among other things to show in the plaintiff's behalf that he was a stranger in the city and did not know that he was approaching a crossing;25 that gates and flagmen were maintained at the crossing and he relied on these agencies to warn him of the approach of trains;26 that trees or other obstructions interfered with the view of the track;27 that the reason he attempted to cross at a crossing out of repair was because the other crossings available to him. were also out of repair;28 that the speed of the train was in excess of that fixed by law and of other trains he was familiar with;29 that the approach to the crossing was in such condition as to interfere with a tained by being struck by an engine backing, evidence that the defendant had maintained a gong at the crossing to give warning, and that it had allowed the same to be out of repair, was admissible to show negligence, although the defendant was not required by law to maintain such gong: Cleveland &c. R. Co. v. Coffman, 30 Ind. App. 462; s. c. 64 N. E. Rep. 233. 21 Chicago &c. R. Co. v. Pearson, 82 Ill. App. 605; Baltimore &c. R. Co. v. Hellenthal, 88 Fed. Rep. 116; s. c. 31 C. C. A. 414. 22 Guggenheim v. Lake Shore &c. R. Co., 66 Mich. 150; s. c. 9 West. Rep. 903; 33 N. W. Rep. 161; Delaware &c. Co. v. Converse, 139 U. S. 469; s. c. 35 L. ed. 213; 11 Sup. Ct. Rep. 569. 23 Baldwin v. Western R. Co., 4 Gray (Mass.) 333. 24 Brouillette v. Connecticut River R. Co., 162 Mass. 198; s. c. 38 N. E. Rep. 507. 25 Cohen v. Eureka &c. R. Co., 14 Nev. 376. 26 Chicago &c. R. Co. v. Gunderson, 174 Ill. 495; s. c. 51 N. E. Rep. 708; Wilbur v. Delaware &c. R. Co., 85 Hun (N. Y.) 155; s. c. 65 N. Y. St. Rep. 664; 32 N. Y. Supp. 479. And this was the case, though the company was not required by law to maintain the gate: Baltimore &c. R. Co. v. Carrington, 3 App. (D. C.) 101; s. c. 22 Wash. L. Rep. 284. 27 Atchison &c. R. Co. v. Feehan, 47 Ill. App. 66; s. c. aff'd, 149 Ill. 202; 36 N. E. Rep. 1036; Ward v. Chicago &c. R. Co., 97 Iowa 50; s. c. 65 N. W. Rep. 999 (condition of approach); International &c. R. Co. v. Kuehn, 2 Tex. Civ. App. 210; s. c. 21 S. W. Rep. 58. See also, Leitch v. Chicago &c. R. Co., 93 Wis. 79; s. c. 67 N. W. Rep. 21. 29 Galveston &c. R. Co. v. Matula (Tex.), 19 S. W. Rep. 376 (no off. rep.). 20 Carraway v. Houston &c. R. Co., 31 Tex. Civ. App. 184; s. c. 71 S. W. 769. In proper handling of his team when he reached the crossing.30 some jurisdictions proof of the habit of care by a person killed at a railroad crossing is permitted,31 where the injured person did not survive and there were no witnesses to the accident.32 34 § 7802. Injuries Caused by Defects in Railway Crossings.-In an action of this character it may be shown that the railroad company was granted the right to cross streets upon the condition that it would put down and maintain planking at street crossings. The fact of a previous accident of the same kind at the same place may be shown on the question of notice to the company of the condition of the crossing. Similarly, evidence that a crossing had been in an almost impassable condition for several days is admissible to prove both the unsafe condition of the highway and its continuance so long as to charge the defendant with notice and with negligence in not removing the obstruction.35 In the case of one injured by having his foot caught in the track at a crossing, evidence of devices in use by other railroad companies to obviate this danger is generally admissible.38 37 § 7803. Injuries to Pedestrians while Crossing Highways Obstructed by Trains. In actions of this character evidence that people were passing between the cars is admissible, as bearing upon the alleged negligence of the defendant in moving the train without warning. Where the injured person was a child, it was held proper to admit evidence that he saw others cross before him, and that there was no flagman at the crossing, on the question of the defendant's knowledge of the danger of moving the train without some notice of an intention so to do.38 In this class of cases it is not allowable 20 Tetherow v. St. Joseph &c. R. Co., 98 Mo. 74; s. c. 11 S. W. Rep. 310. 31 See ante, § 7672. See also, McNulta v. Lockridge, 32 Ill. App. 86; s. c. aff'd, 137 Ill. 270; 27 N. E. Rep. 452; Louisville &c. R. Co. v. Clark, 105 Ky. 571; s. c. 49 S. W. Rep. 323. 32 Gulf &c. R. Co. v. Hamilton, 17 Tex. Civ. App. 76; s. c. 42 S. W. Rep. 358; Glass v. Memphis &c. R. Co., 94 Ala. 581; s. c. 10 South. Rep. 215. 23 33 Valley R. Co. v. Keegan, 87 Fed. Rep. 849; s. c. 40 Ohio L. J. 167; 58 U. S. App. 377; 31 C. C. A. 255; 11 Am. & Eng. R. Cas. (N. S.) 507. But see Hudson v. Chicago &c. R. Co., 59 Iowa 581; s. c. 44 Am. Rep. 692. 34 Southern R. Co. v. Posey, 124 Ala. 486; s. c. 26 South. Rep. 914; Toledo &c. R. Co. v. Milligan, 2 Ind. App. 578; s. c. 28 N. E. Rep. 1019; 35 Phelps v. Winona &c. R. Co., 37 Minn. 485; s. c. 35 N. W. Rep. 273; 5 Am. St. Rep. 867. 36 Gulf &c. R. Co. v. Walker, 70 Tex. 126; s. c. 7 S. W. Rep. 831. 37 San Antonio &c. R. Co. v. Green, 20 Tex. Civ. App. 5; s. c. 49 S. W. Rep. 670. 38 Schmitz v. St. Louis &c. R. Co., 119 Mo. 256; s. c. 23 L. R. A. 250; 24 S. W. Rep. 472. to show former delinquencies of either the defendants or the plaintiff, as such evidence manifestly cannot aid in determining the question of negligence on the particular occasion. § 7804. Glare of Head-Light.-Where the injured person was struck at a crossing immediately after another train with a bright head-light had passed, evidence was held admissible to show how long the eye required to recover its natural power of sight after looking at a brilliant light.11 44 § 7805. Injuries to Trespassers on Railroad Track or Premises.The question of the admissibility of evidence in cases of injuries to trespassers has received attention elsewhere.42 In addition to what is there said, it may be stated that evidence is generally held admissible to show long use of the track by pedestrians with the knowledge of the company, as charging an engineer with the duty of being on the lookout for persons at such places and regulating the speed of his engine in accordance with this knowledge. This notice is not to be imputed by proof of occasional trespasses on the track with or without the knowledge of the railroad company.45 It has been held proper to show that persons were in the habit of crossing railway tracks at a place where a pedestrian was killed, and that the surroundings were such as to give the place the appearance of being a public street. Evidence that the train running over a person was equipped with brakes throughout is admissible, where there is evidence that a slight diminution of its speed would have enabled the deceased to escape.* It is not competent for the defendant to show a habit of the deceased to jump on moving trains near the place where his body was found, 39 Rumpel v. Oregon Short Line &c. R. Co., 4 Idaho 13; s. c. 22 L. R. A. 725; 35 Pac. Rep. 700. 40 International &c. R. Co. v. Ives, 31 Tex. Civ. App. 272; s. c. 71 S. W. Rep. 772. 41 Shaber v. St. Paul &c. R. Co., 28 Minn. 103. 42 See Vol. II, § 1861, et seq. 43 Wabash R. Co. v. Jones, 53 Ill. App. 125; Eckert v. St. Louis &c. R. Co., 13 Mo. App. 352; Cassida v. Oregon R. &c. Co., 14 Or. 551; Ludtke v. Lake Shore &c. R. Co., 24 Ohio C. C. 120; Jones v. Charleston &c. R. Co., 65 S. C. 410; s. c. 43 S. E. Rep. 884; Lindsay v. Canadian &c. R. Co., 68 Vt. 556; s. c. 35 Atl. Rep. 513. 4 O'Conner v. Illinois Cent. R. Co., 77 Ill. App. 22. 46 47 45 Thomas v. Chicago R. Co., 93 Iowa 248; s. c. 61 N. W. Rep. 967. 40 Lake Shore &c. R. Co. v. Bodemer, 139 Ill. 596; s. c. 29 N. E. Rep. 692. Evidence that a railroad at a place not in the vicinity of a public crossing was used by the public as. a public road or passway is inadmissible to relieve the act of walking thereon from the character of a trespass, in the absence of proof that the company authorized or acquiesced in such use: Hoskins v. Louisville &c. R. Co., 17 Ky. L. Rep. 78; s. c. 30 S. W. Rep. 643 (no off. rep.). 47 Louisville &c. R. Co. v. Orr, 121 Ala. 489; s. c. 26 South. Rep. 35. for the purpose of raising an inference that his death resulted from such an attempt, but the testimony should be confined to his acts on the particular occasion in issue capable of being directly or circumstantially proved.48 In the case of injuries to a child from an unfastened turn-table, evidence that another child was previously hurt at the same place, and that suit has been brought against the company therefor, is admissible to show knowledge by the railroad company of the injury and of the condition of the turn-table. In such a case it was held that it was proper to admit evidence of certain printed rules of the company, providing that turn-tables should be kept locked when not in use, and that it was the duty of agents at the stations where there was no engine-house foreman to see that such turn-tables were locked after being used, and that immediately after the accident the station agent went to the turn-table and locked it.50 49 § 7806. Injuries to Animals on Track.-The reader is referred to an earlier article on the subject of evidence in cases of this character.51 In addition to what is there said, it may be here noted that the plaintiff is entitled to show the absence of cattle-guards at or near the place of the accident as bearing on the degree of care required in the control of the train and the rate of speed by reason of that fact.52 Similarly, the absence of cattle-guards at a private crossing may be shown, although not required by statute, the evidence being admissible to show that if the animals had entered the right of way at a place where the fence was defective, they would have had an unobstructed passage along the track to the place where they were killed.53 On the question of the insufficiency of the cattle-guards plaintiff may prove that animals which ought to have been kept off were seen to walk over a cattleguard with apparent ease.54 Evidence of prior accidents at the same place and the settlement of claims for the animals killed is not admissible, as it injects a collateral issue into the case.55 Evidence of the dis 48 Louisville &c. R. Co. v. McClish, 115 Fed. Rep. 268. See Thompson v. Yazoo &c. R. Co., 72 Miss. 716; s. c. 17 South. Rep. 229, where it is held that evidence of a habit of plaintiff of jumping off trains was admissible to show whether a conductor might reasonably have assumed that he would safely get off the train under the circumstances. "Fort Worth &c. R. Co. v. Measles, 81 Tex. 474; s. c. 17 S. W. Rep. 124. Chicago &c. R. Co. v. Krayenbuhl, 65 Neb. 889; s. c. 91 N. W. Rep. 880; 59 L. R. A. 920. 50 si See Vol. II, § 2188, et seq. 52 Rafferty v. Portland &c. R. Co., 32 Wash. 259; s. c. 73 Pac. Rep. 382. 53 San Antonio &c. R. Co. v. Robinson, 17 Tex. Civ. App. 400; s. c. 43 S. W. Rep. 76. New York &c. R. Co. v. Zumbaugh, 11 Ind. App. 107; s. c. 38 N. E. Rep. 531; Lake Erie &c. R. Co. v. Murray, 69 Ill. App. 274. See also, Miller v. Northern &c. R. Co., 36 Minn. 296; s. c. 30 N. W. Rep. 892 (timbers of cattle-guard rotten, cross-bars loose and pit partially filled with sand). 55 Georgia R. &c. Co. v. Walker, 87 Ga. 204; s. c. 13 S. E. Rep. 511; |