In

R. R. of Iowa, 42 Iowa, 193, and the Lake Shore & Michigan Southern R. R. Co. v. Miller, 25 Mich., 274, two cases similar to this; also by Butterfield v. Western R. R. Corporation, 10 Allen, 532. In Illinois, where the doctrine of comparative negligence is recognized, in the case of St. L., A. & T. H. R. R. Co. v. Manly, 58 Ill., 306, a case analogous to this in its facts, the court observed: "That the fearful result of the sad accident must be attributed most largely to his (deceased's) own want of proper care." R. R. Co. v. Houston, 95 U. S., 702, the court observed, Field, J.: "The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employees in these particulars was no excuse for negligence on her part. She was bound to look and listen before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger." See, also, Morris & Essex R. R. Co. v. Haslan, 33 N. J. L., 149; Flemming v. W. P. R. R. Co., 49 Cal., 253. The authorities cited fully sustain the doctrine announced by this court in Fletcher v. A. & P. R. R. Co., and Harlan v. St. L., K. C. & N. Ry. Co., and adhering to what was held in those cases, we reverse this judgment. Sherwood, C. J., and Hough J., concur; Napton and Norton, JJ., dissent.

NAPTON, J., Dissenting. I entirely concur in the general principles govering cases of this character asserted in the opinion of the majority of the court, but I doubt their application to the facts of this case. The deceased was driving in a slow walk, and the question is, whether we can say, as a matter of law, that he was guilty of negligence in not stopping his wagon, in order to place himself in a better position for hearing, at a time when no train was due. It is plain that he neither heard nor saw the train, and it is plain that our law was disregarded by the defendant in neither ringing the bell or sounding the whistle. Was it then the duty of a traveller to assume that the railroad company would disregard the plain provisions of our statute, especially in running an extra train, and, therefore, he should not trust merely to his eyes and ears, but must put them in a position in which it could be ascertained with certainty whether such total disregard of the statute would or would not occur? I doubt if our previous decisions require us to go so far. I concede that a traveller has no right not merely to disregard his own safety but the safety of the passengers on the road by a reckless course; he must use his eyes and ears, and although the positive requirements of our statute are disregarded, he has no redress, if the injury occurs through his own recklessness; but the question of negligence is one of fact as well as law, and although, where the evidence clearly establishes such negli

gence the court may at once pronounce it to to be such as precludes all relief, there may be cases in which it must be left to a jury to say whether under the facts there was negligence or not. This was, in my opinion, such a case. The instructions were confessedly correct, and I am not prepared to say that the verdict was without evidence. I, therefore, am in favor of affirming the judgment. Judge Norton concurs in this view.

On Rehearing.

SHERWOOD, C. J.-This case has been re-argued, not upon the merits, however, but upon the point of the sufficiency of the bill of exceptions, i.e., whether it is to be regarded as part of the record in consequence of the steps taken in the lower court with that object in view.

1. Conceding that the original entry of record was insufficient to authenticate the bill of exceptions and show that it was "filed," we are all of opinion that any defect in this regard was remedied by the nunc pro tune entry made at a subsequent term. It is insisted by counsel for plaintiff that the entry just mentioned did not have the effect designed, for the reason that the requisite notice was not given as required by law. The record shows that notice of the intended application was served on one of plaintiff's attorneys of record two days prior to the time fixed for hearing the application, and one day before such application upon another of plaintiff's attorneys who resided in the town where the court was held. The statute with regard to notices in general provides that: "Notices shall, unless a different time is prescribed by law or the practice of the court, be given at least five days before the time appointed for the hearing of the motion, pleading or other proceeding." This statute, it will be observed, only fixes five days as a general rule, for giving notices, and that this general rule is to prevail, "unless a different time is prescribed." Doubtless a different time could have been prescribed by the practice of the Audrain circuit court for the service of notices, other than that fixed by general statutory regulation; and, if such practice were at all consistent with reason, we would not interfere with it. It is to be presumed that, in making the corrective entry, the court conformed to a different time prescribed by its own practice for the giving of notices in such cases. Such presumptions are constantly' indulged in, in respect to the action of the circuit courts. If the action of the lower court in the present instance did not conform with its rules of practice, it would be very easy to show it, and thus overthrow the course taken by that court in making the amendadatory entry in question. As there is nothing appearing to combat the presumption above mentioned, as the party who alleges error in this regard has not proved it, such presumption, in accordance with a familiar rule, must continue to prevail and give sanction

and validity to the course in this respect which the circuit court took.

2. But it is pressed upon our attention that, even if the nunc pro tunc entry accomplished all it was designed to accomplish, the plight of the defendant is not bettered thereby, because, although a motion for a new trial was filed at the term the trial occurred, and was continued over and not determined until the next term, that no bill of exceptions having been filed at the trial term, when certain exceptions were taken, that such exceptions could not be saved or preserved by a bill of exceptions filed at the next term, upon the overruling of the motion for a new trial, which motion was incorporated in such bill. The contrary view has twice been held by this court, and a number of years ago, Riddlesbarger v. McDaniel, 38 Mo., 138; Gray v. Parker, Ib., 160; and we see noreason to depart from the ruling then made, especially as no case is to be found in our reports making a different ruling to that made in the cases just cited; in fact, until now the precise point presented in the two cases in 38 Mo., supra, has never been before this court. The statute requires that "all exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions," but it was certainly never designed, where a motion for a new trial is made and then continued to the next term, that a bill of exceptions should be filed at the trial term to preserve the exceptions then taken, and then another bill of exceptions should be filed at the next term, whose sole office would be to preserve the motion for a new trial. And yet this must be plaintiff's position, if a motion for a new trial, when continued, has not the effect, as decided in 38 Mo., supra, of keeping the cause in the breast of the court, by reason of the pendency of the motion, until the motion is determined.

The case of the State v. Ware, 69 Mo., 332, bears no analogy to this one, for the reason that there the exception not saved by bill at the proper term was one occurring on a preliminary motion for a change of venue, and besides, the trial did not take place at that term, and consequently no motion for a new trial was made and continued so as to carry the case over. These features distinguish that case very broadly from this. It has been the constant practice in this state to file a motion for a new trial, and to let the same go over for determination to the next term, under the belief that the pendency of the motion would operate as above indicated. In imany instances, where the terms of the court are brief, or the verdict is returned near the end of the term, if the matters occurring at the trial could not be carried over in this way, especially if the trial involved the taking of a great deal of testimony and the saving of numerous exceptions, the practical result would be the affirmance of the judgment of the lower court. We shall

adhere to our former rulings in this regard, and doing so, the judg ment must be, as at first ordered, reversed. All concur.

See note p. 226.

THE PENNSYLVANIA RAILROAD COMPANY, Plaintiffs in Error,

v.

WILLIAM A. RIGHTER AND WIFE, Defendants in Error.
(42 New Jersey, 180. March Term, 1880).

It is a part of the rule of contributory negligence that the plaintiff's negligent act must proximately contribute to his injury; but if it so contribute, the comparative degrees of the plaintiff's and defendant's negligence will not be considered.

If the case presents a fairly debatable question whether the plaintiff's negligent conduct did so contribute, the solution of that question is for the jury; but if it clearly appears that such conduct did contribute, then the court should direct a nonsuit.

It is a primary rule of legal caution that a person about to cross a railroad is bound to use his eyes and ears, to watch for sign-boards and signals, to listen for bell and whistle, and to guard against the approach of trains by looking each way before crossing.

The failure of the company to provide or give a statutory signal will not relieve a person from making this observation, if he has an opportunity, by a view of the road, to avoid danger.

A servant driving a carriage along a street crossing a railroad, and having, while yet at a point distant over thirty feet from the railroad track, a view of the same for a mile to the south, drove across the track, and the rear of his wagon was struck by a train coming from the south, and the wagon was demolished and the persons within it injured. Held

1. That the negligent act of the servant contributed to the injury.

2. That the fact that a train was just starting from a station one-quarter of a mile north, and blowing a whistle could not have distracted the servant's attention so as to relieve him from his duty to look south.

An action was brought by Mr. Righter and wife against the Pennsylvania Railroad Company, for damages occasioned by a collision between a train of the company and a carriage of the plaintiffs below, driven by his servant, and containing, as occupants, Mrs. Righter and two daughters.

At the trial a verdict was returned in favor of the plaintiffs. The present writ of error brings up the judgment thereon and the record of the proceedings upon the trial.

For the plaintiff in error, John P. Jackson and E. T. Green cited:

Penn. Canal Co. v. Bentley, 66 Penn. St., 30; Penn. R. R. Co. v. Matthews, 7 Vroom, 531; Allen v. B. & A. R. R. Co., 105 Mass., 77; Penn. R. R. Co. v. Beale, 73 Penn. St., 504; Runyon v. Central R. R. Co., 1 Dutcher, 556; Taff v. Warman, 5 C. B.

(N. S.), 585; Ellis v. R. W. Co., 2 H. & N., 424; Cliff v. R. W. Co., L. R., 5 Q. B., 258; Kennard v. Burton, 25 Me., 49; State v. R. R. Co., 52 N. H., 528; Robinson v. Cone, 22 Vt., 213; Gahagan v. R. R. Co. 1 Allen 187; Berge v. Gardiner, 19 Conn., 507; Welds v. R. R. Co., 24 N. Y., 430; Moore v. R. R. Co., 4 Zab., 284; R. R. Co., v. Haslan, 4 Vroom, 147; D., L. & W. R. R. Co. v. Toffey, 9 Vroom, 525; Harper v. R. R. Co., 3 Vroom, 88; Runyon v. R. R. Co., 1 Dutcher, 556; Blake v. R. R. Co., 3 Stew., 240; R. R. Co. v. Van Horn, 9 Vroom, 133; Penn. Canal Co. v. Bentley, 66 Penn. St., 30; R. R. Co. v. Kirkpatrick, 35 Md., 32; Flynn v. R. R. Co., 40 Cal., 44; R. R. Co. v. Dixon, 42 Ga., 327; Klein v. R. R. Co., 17 Gratt., 400; Watson v. Transp. Co., 52 Mo., 434; R. R. Co. v. Godard, 25 Ind., 185; Fallon v. Boston, 3 Allen, 39; McCully v. Clarke, 40 Penn. St., 399; Stinson v. R. W. Co., 32 N. Y., 333; Shaw v. B. & W. R. W. Co., 8 Allen, 45; Baxter v. R. W. Co., 41 N. Y., 9; Lake Shore R. R. Co. v. Miller, 25 Mich., 274; Whart. on Neg., ch. 9, § 300; Camp. on Neg., §§

81-83.

For the defendant in error, Thomas N. McCarter cited:

Bonnell v D., L. & W. R. R. Co., 10 Vroom, 189; N. J. R. R. Co. ads. West, 3 Vroom, 95; Weber v. N. Y. Cent. R. R. Co., 58 N. Y., 451; Penn. R. R. Co. v. Matthews, 7 Vroom, 531; Cliff v. Midland R. R. Co., 5 L. R., Q. B. 258; Bilbee v. R. R. Co., 18 C. B. (N. S.), 584; Johnson v. Hudson River R. R. Co., 20 N. Y., 75; Biesegel v. N. Y. Cent. R. R. Co., 40 N. Y., 12; Harty v. Cent. R. R. Co., 42 N. Y., 472; Richardson v. N. Y. Cent. R. R. Co., 45 N. Y., 846; Eaton v. Erie Railway Co., 51 N. Y., 544; Weber v. N. Y. Cent. R. R. Co., 57 N. Y., 458; Cordell v. N. Y. Cent. R. R. Co., 70 N. Y., 123; Bradley v. Boston & Me. R. R. Co., 2 Cush., 543; Longfield v. Old Colony R. R. Co., 10 Cush., 569; I. & St. L. R. R. Co. v. Stables, 62 Ill., 317; I. C. R. R. Co. v. Burton, 69 Ill., 178; Webb v. Portland & Kennebec R. R. Co., 57 Me., 134; Phila. & Reading R. R. Co. v. Kelley, 19 Alb. L. Jour., 263; Spencer v. I. C. R. R. Co., 29 Ia., .59; Artz v. Chicago, R. I. & P. R. R. Co., 34 Ia., 153; Robinson v. W. P. R. R. Co., 45 Cal., 409; Belfontaine Railway Co. v. Hurston, 33 Ind., 335; Louisville R. R. Co. v. Commonwealth, 13 Bush (Ky.), 388.

The opinion of the court was delivered by

REED, J.-The first and leading contention of the counsel for the plaintiffs in error, is that the plaintiffs below should have been nonsuited at the trial.

This is claimed upon the ground that, from the case there made by the plaintiffs, it clearly appeared that the negligent act of the plaintiffs' servant contributed to the causation of the collision by which the plaintiffs' family was injured.