prehend they cannot cross in safety. Stabenau v. Atlantic Ave. Ry. Co., ante, p. 553. Not bound to stop or slow car on seeing child standing in gutter, not apparently about to cross street, and company not liable for injury due to its suddenly stepping in front of the car. Fleishman v. Neversink Mountain R. Co., ante, p. 573. Not bound to slow car though seeing horse frightened, unless it is actually on track in front, or there is reasonable ground to believe that it may go on and cause collision. Doster v. Charlotte St. Ry. Co.. ante, p. 558. Seeing horse frightened and danger imminent should refrain from sounding gong or should stop car. Hair v. Citizens' Ry. Co., ante, p. 589. Should do both. Galesburg Elec. Motor, &c. Co. v. Manville, ante, p. 476. Company not chargeable with negligence because motorman in sudden emergency does not choose one rather than the other of two appliances for stopping the car. Stabenau v. Atlantic Ave. Ry. Co., ante, p. 552. No such general use of fenders on trolley cars in 1893 as to make failure to use them negligence. Mullen v. Springfield St. Ry. Co., ante, p. 492. Question for jury in given case whether company negligent in omitting to provide sand for track. Penny v. Rochester Ry. Co., ante, p. 535. Negligent to run car with motorman only, coupled with fact that motorman, after seeing traveler about to cross street, while car running rapidly, left brake and power handles unattended and went inside to collect fares. City Elec. Ry. Co. v. Jones, ante, p. 473. If electric light liable to go out when trolley leaves wire, company should provide other light. If light insufficient to reveal obstruction in time to stop car, going at given speed, speed should be reduced. Mahoney v. San Francisco, &c. Ry. Co., ante, p. 457.

DUTY OF TRAVELER.- Should carefully observe movements of cars and strive to avoid them. Flewelling v. Lewiston, &c. R. Co., ante, p. 488. Should not obstruct track of trolley car, of approach of which he has notice. Camden, &c. Ry. Co. v. Preston, ante, p. 523. Traveling along or across trolley railway, not bound to same diligence as in case of steam railway. Hall v. Ogden City St. R. Co., ante, p. 598. At crossing, bound to use only ordinary care. City Elec. Co. v. Jones, ante, p. 473. Not bound to look both ways for approaching trolley cars. Citizens' Rapid Trans. Co. v. Seigrist, ante, p. 583. Rule requiring persons to both look and listen before crossing steam railway not exactly applicable to trolley railway. Robbins v. Springfield St. Ry. Co., ante, p. 495; Consolidated Traction Co. v. Scott, ante, p. 516; Brozek v. Steinway Ry. Co., ante, p. 542 Contra: Everett v. Los Angeles Consol. Elec. Ry. Co., ante, p. 460; Doyle v. Albany Ry, ante, p. 532; Young v. Citizens' St. Ry. Co., ante, p. 479. Traveler has right to presume company will use its franchise in view of his rights. Mahoney v. San Francisco, &c. Ry. Co., ante, p. 457. Has right to assume that cars have proper appliances for reducing speed or stopping, and motormen to apply same; and not bound to refrain from crossing track for fear same will not be used. Consol. Traction Co. v. Lambertson, ante, p. 514. Not absolved from duty of vigilance by relying on those in charge of car obeying rule or custom of company that all cars stop before passing car at station. Doyle v. Albany Railway, ante, p. 532.

Hall v. Railway Co.

If guilty of contributory negligence cannot recover unless he could not and company could have prevented the injury. Everett v. Los Angeles Consol. Elec. Ry. Co., ante, p. 460.

Held contributory negligence per se: -To attempt to cross track, knowing car approaching at rapid rate and taking chances of getting over ahead of it. Watson v. Mound City St. Ry. Co., ante, p. 500; Meyer ▼. Brooklyn Heights R. Co., ante, p. 540; Morrissey v. Bridgeport Traction Co., ante, p. 470; Doyle v. Albany Railway, ante, p. 532. Under circumstances of given case, to attempt to cross track without looking or listening. Smith v. City & Suburban Ry. Co., ante, p. 561. To permit children of three and five years to play in streets where trolley cars frequently pass and to send them on errands where they must cross tracks. Albert v. Albany Railway, ante, p. 529. For boy ten years old, riding in end of wagon, and being warned, to jump in front of trolley car. Mullen v. Springfield St. Ry. Co., ante, p. 492. To ride bicycle on track in same direction usually taken by cars without looking back or listening. Everett v. Los Angeles Consol. Elec. Ry. Co., ante, p. 460.

Held not contributory negligence per se:— -In dark foggy night, with track of trolley railway on one side and gulch on the other, to drive on track. Mahoney v. San Francisco, &c. Ry., ante, p. 457. For person driving on one track, to turn upon the other to let car pass, result being injury by collision with car on other track. State, Consol. Tractior, Co., Pros. v. Reeves, ante, p. 505. For person driving on track to fail to look for cars in rear, even though motorman by ordinary care might have prevented collision. Fishbach v. Steinway Ry. Co., ante, p. 547. For person driving on track to fail to turn out on being warned of approach of car. Camden, &c. Ry. Co. v. Preston, ante, p. 523. To go upon track at crossing without looking both ways for approaching cars, attention being distracted by a runaway team. City Elec. Ry. Co. v. Jones, ante, p. 473. Having looked for car on entering street from alley, and seen none. to cross track without looking second time. Hall v. Ogden City St. Ry. Co., ante, p. 598. Having seen car approaching at a distance, to attempt to cross without looking again. Citizens' Rapid Trans. Co. v. Seigrist, ante, p. 583. To fail to look for approaching car. Brozek v. Steinway Ry. Co., ante, p. 542. To reasonably and carefully exercise horse, even though young and spirited, in presence of cars, to accustom him to them. Flewelling v. Lewiston, &c. R. Co., ante, p. 488. For deaf mute to travel unattended in streets traversed by or crossing electric railways. Robbins v. Springfield St. Ry. Co., ante, p. 495. To entrust child three years old with brother fourteen years old, to cross street in which electric railway ru is. Clyde Harkins v. Pittsburg, &c. Traction Co., ante, p. 571.

NOTE 2.-The following are memoranda of additional cases upon the same general subject of the reciprocal rights and duties of electric street railway companies and persons using the streets.

ARKANSAS.-Johnson v. Stewart, Supreme Court, March 14, 1896 (34 S. W. Rep. 889). Action for damages for loss of horse which became untied,

Hall v. Railway Co.

strayed upon the track of an electric street railway and was killed. Held, that the question of contributory negligence was for the jury; also, that it was improper to give an instruction which would overturn the doctrine of contributory negligence and substitute in its place the exploded heresy of comparative negligence.

GEORGIA.-Cain v. Macon Consol. St. Ry. Co., Supreme Court, July 29, 1895 (97 Ga. 298). Plaintiff held properly nonsuited for his contributory negligence.

INDIANA.-Citizens' St. Ry. Co. v. Albright, Appellate Court, Nov. 26, 1895 (14 Ind. App. 433). Question of plaintiff's contributory negligence held properly submitted to the jury.

"Counsel urged that we should apply to the consideration of appellee's duty the same strict rules which govern in cases of ordinary railroad crossing collision, and cite authorities to sustain their position. Such, however, is not the rule in Indiana, nor does it have the support of the weight of authority." (Citing among other cases, Newark Passenger Ry. Co. v. Block, 4 Am. Electl. Cas. 523; Shea v. St. Paul City Ry. Co., 4 Am. Electl. Cas. 481; Holmgren v. St. Paul City Ry. Co., 5 Am, Electl. Cas. 499.)

Evansville St. Ry. Co. v. Gentry, Supreme Court, June 10, 1896 (44 N. E. Rep. 311). The company was found negligent, but the decision turned upon the lack of evidence that the plaintiff's intestate, who was run over by a trolley car at a street crossing and killed, was not guilty of contributory negligence. Judgment for plaintiff was therefore reversed. With respect to the rights and duties of the parties, the court comment as follows:

"The rules that govern as to the crossing of steam railroads by travelers upon the highway are not fully applicable to street railroad crossings in cities. Foot passengers have special rights at street crossings, which crossings are, in effect, but extensions of the sidewalks over the streets; and, although a street car or other vehicle moving along the street has a right also to pass over the crossing, yet, as has been well said, it behooves the motorman of an electric car, or the driver of any other vehicle, to be vigilant in approaching a crosswalk, so as to avoid injury to a foot passenger, even though the latter may be careless in hurrying over. In a city the people must hasten to their business, and can not wait until all pass by that wish to use the roadway over which they must cross. The rule, therefore, to stop and look and listen, cannot apply as it does to the crossing of a steam railroad track. It is, of course, true here, as elsewhere, that every one must use his senses of sight and hearing and feeling, and so avoid injury to himself or to others; but it is also true that this rule applies to the controller of the vehicle on the street quite as much as to the foot passenger on the crossing. The street car, therefore, ought to be under full control as it passes over the crossing; and as said in Cincinnati St. Railway Co. v. Whitcomb, 66 Fed. 915 [5 Am. Electl. Cas. 602], it is not the law that persons crossing street railway tracks in a city are obliged to stop, as well as look and listen, before going over such tracks,

Hall v. Railway Co.

unless there is some circumstance which would make it ordinarily prudent to do so."

Other cases cited as authorities showing that the rule that must be observed in crossing the track of steam railroads does not strictly apply to the crossing of electric or cable car lines in cities, include Young v. Atlantic Ave. R. Co., 5 Am. Electl. Cas. 530; Kennedy v. St. Paul City Ry. Co., id. 492; Holmgren v. St. Paul City Ry. Co., 5 Am. Electl. Cas. 499; Citizens' St. Ry. Co. v. Spahr, 4 Am. Electl. Cas. 416.

IOWA.-Wilkins v. Omaha & C. & B. Ry. & Bridge Co., Supreme Court, Jan. 24, 1896 (65 N. W. Rep. 987). Plaintiff was driving between the track and the curb when he was struck by a trolley car and complained that the motorman was negligent in running the car so rapidly that it could not be checked within a reasonable distance, and in giving no warning. The questions passed upon related to instructions to the jury and competency of evidence. The following was held to be a proper instruction, and sufficiently favorable to the company:

"If, however, when the plaintiff was first visible to the employes on the car, the motorman applied the brakes, and sounded the gong, and continued to do so until a short distance before the car overtook the plaintiff; and if, at such point, the plaintiff turned off or from the track, and was apparently going to one side to give the car an opportunity to pass; and if the motorman believed, and in the exercise of reasonable precaution and foresight had the right to believe, from all circumstances then before him, that plaintiff had heard the signal, and in answer thereto had turned to one side; and you further find that thereupon the motorman removed the brakes and increased the speed of the car; and you further find that the plaintiff then drew in toward the track, and that the employes were unable to stop the train and avoid the collision after they had discovered such movement on plaintiff's part; and you further find that, at the time, the motorman believed, and in the exercise of reasonable precaution and foresight had reason to believe, that he could pass the plaintiff without colliding with him or endangering him,—then the defendant will not be liable.

Eddy v. Cedar Rapids & M. C. Ry. Co., Supreme Court, May 27, 1896 (67 N. W. Rep. 676). An employe of the city, working about the track of an electric street railway, was injured by a car striking a plank which he had placed too near the track. Held, that he was guilty of contributory negligence in not listening for approaching cars. Also held that the motorman was not chargeable with negligence in assuming that a laborer on the street, who was not so near to the track as to be in danger of being struck by the car, would require a signal to keep him from putting himself in a place of danger.

McDevitt v. Des Moines St. R. Co., Supreme Court, Oct. 14, 1896 (68 N. W. Rep. 395). The following is a portion of the opinion:

The plaintiff did not look for a car from the south before driving upon the east track, and the appellant has devoted much time and space to show that he was negligent in failing to do so. This may be conceded,

Hall v. Railway Co.

for the purpose of this appeal; but it will be noticed that the plaintiff contends that he was injured after his peril was known to the motorman, and when the act which caused his injuries could have been avoided. He testifies that when his wagon was upset he went down with it, but remained in his seat and was unhurt; that when the car struck the wagon the horses broke loose, and the car and wagon stopped; that he then set his foot outside the seat at the side of the wagon; and that the car was then pushed against the wagon a second time, when his leg was caught and broken as stated. His statement that the car came to a stop at the moment of the collision, and that it was afterward moved forward, is corroborated by the testimony of five disinterested witnesses. If the motorman moved the car against the wagon a second time, and thus caused the injuries in question, the defendant is presumptively liable, even though the first collision was due wholly or in part to the negligence of the plaintiff. The evidence justifies the conclusion that the motorman knew, or should have known, that the plaintiff was in peril when the wagon was overturned, and it was his duty to use reasonable care to guard against further harm. It is sa id that the evidence does not show that the car was started by the motorman; that it may have been started without his volition, in consequence of some injury to its machinery which resulted from the collision, or that it might have been started in the excitement of the moment, under circumstances which would not constitute negligence, or that it was only checked by the collision, and afterwards went forward of its own momentum. There was evidence to the effect that the car came to a full stop, and that the motorman was at his post, in charge of the car. There is nothing to show any injury to the machinery, nor that the motorman, while laboring under excitement, did that which should not have been done, and for which the defendant should not be held responsible. It must be presumed from the evidence given that the motorman had perfect control of the car, and that its movements were according to his will. If this was not true, the fact might have been shown by the defendant.

LOUISIANA. Snider v. N. O. & Carrollton R. Co., Supreme court, November 18, 1995 (48 La. Ann. 1). Proof that the company may have failed in its duty in the employment of a particular motorman, or in furnishing a particular car with proper equipment, is not sufficient to warrant a recovery. It must also appear that the accident was caused by these particular breaches of duty.

Before attempting to cross the track of an electric car, a person should look to ascertain whether, prudently, the crossing should be attempted; and he should look at a time and place where it may be effective.

Culbertson v. Crescent City R. Co., Supreme Court, April 6, 1896 (20 So. Rep. 902). Action for killing child by trolley car. Held, that there could be no recovery if the accident was due to the sudden act of the child brought about by his thoughtless impulse, and the act could not have been foreseen or guarded against by the motorman or others in charge of the car; and this, whether or not the motorman saw the child.