jury that they might charge the defendant with negligence because of the absence of one (Grippen v. N. Y. C. R. R. Co., 40 N. Y., 34; Weber v. N. Y. C. R. R. Co., 58 id., 451; McGrath v. N. Y. C. R. R. Co., 59 id., 468).

Irving G. Vann for respondent: The defendant was guilty of negligence (Renwick v. N. Y. C. R. R. Co., 36 N. Y., 132; Gaston v. Erie R. R. Co., 45 id., 660; Kissenger v. N. Y. C. & H. R. R. R. Co., 56 id., 543; Cordell v. N. Y. C. & H. R. R. R. Co., 64 id., 535; 70 id., 119; McGovern v. N. Y. C. & H. R. R. R. Co., 67 id., 417; Dolan v. Del. & Hud. Canal Co., 71 id., 285). Its negligence caused the injury to the plaintiff (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 522, 529). Plaintiff was not guilty of contributory negligence (Morrison v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 643; Johnson v. Lane, 20 id., 65; Jetter v. N. Y. C. & H. R. R. R. Co., 2 Keyes, 154; Beiseigel v. N. Y. C. R. R. Co., 34 N. Y., 622; Twombley v. N. & E. R. R. Co., 69 id., 158; Hackford v. N. Y. C. & H. R. R. R. Co., 53 id., 654; Coulter v. Am. Ex. Co., 56 id., 585). The questions as to defendant's negligence and as to the contributory negligence of the plaintiff were questions of fact for the jury (Wolfkiel v. The Sixth Ave. R. R. Co., 38 N. Y., 49; Ernst v. H. R. R. R. Co., 35 id., 10; Warner v. N. Y. C. & II. R. R. R. Co., 44 id., 465; Davis v. Same, 47 id., 400; Beiseigel v. N. Y. C. R. R. Co., 34 id., 622; Thurber v. Harlem Bridge, M. & F. R. R. Co., 60 id., 326; Bernhard v. Rensselaer & S. R. R. Co., 1 Abb. Ct. App. Dec., 131; Belton v. Baxter, 58 N. Y., 411; Hackford v. N. Y. C. & H. R. R. R. Co., 53 id., 654; Hoffman v. Same, MSS. opinion; Morrison v. Same, 63 N. Y., 643; Heber v. Same, 67 id., 587).

EARL, J.-This action was commenced to recover for personal injuries alleged to have been caused to the plaintiff by the carelessness of the defendant.

On the 25th day of September, 1875, between six and seven o'clock in the evening, the plaintiff, being then about ten years old, was passing northerly upon the sidewalk of Clinton Street, in the city of Syracuse, at a point where defendant's road crosses the same street in an easterly and westerly direction; and while he was endeavoring to cross the railroad tracks, he was struck by the tender of an engine backing easterly, and one of his legs was so crushed that it had to be amputated. The defendant defended the action upon the grounds that plaintiff's negligence contributed to the accident, and that it was free from any negligence contributing to the accident.

Whether or not there was any contributory negligence on the part of the plaintiff was fairly a question for the jury, and was properly submitted to them. But I am of opinion that there was

an entire failure of evidence showing any negligence on the part of the defendant.

I will notice separately the alleged grounds of negligence on the part of the defendant: First. It is said that the bell upon the engine was not rung as it was backing easterly. But it is impossible to perceive how that in any way contributed to the accident. The sole object of ringing a bell upon an engine is to notify persons who might be upon or near a railroad crossing of the approach of the engine, so that they can get or keep out of its way. If one sees the engine and knows that it is approaching, he needs not the warning of the bell, and as to him it is useless to ring it. Here the plaintiff saw the engine, at first standing still, then starting and going westward, and then backing easterly toward him, and while he was endeavoring to run across the tracks, one of his feet became fastened between a rail and planking, and he fell down and was run over. He thus had all the notice the ringing of the bell could have given him, and the omission to ring it had nothing whatever to do with the accident. Second. It is said that there was at this time no flagman at the crossing, although one had been usually stationed there. The duty of a flagman is to notify travellers crossing the railroad of the approach of trains; and when a traveller knows of the approach of a train, and sees it approaching, as to him the flagman has no duty to perform. The plaintiff's conduct was in no way influenced by the absence of a Hagman, as he did not know that one had usually been kept at that point. Besides, it was not the duty of the defendant to station or keep a flagman at that crossing; and so far as the trial judge in his charge instructed the jury that they could base a finding of negligence against the defendant on the absence of the flagman, he was clearly in error. McGrath v. N. Y. C. & H. R. R. R. Co., 59 N. Y., 468; S. C., 63 id., 522. Third. The regular fireman was just at that time off from the engine, but there is no proof and no just inference that that had anything whatever to do with the accident. It does not appear what he could or would have done if present to have avoided the accident. Fourth. It is said that there was no light on the rear of the tender which was backed upon the plaintiff, although the night was dark. But that could make no difference with the plaintiff, as he testified he plainly saw the engine from the time it started. It does not appear how the light would have aided him in any way. There was no proof showing, and the claim is not made, that the engineer upon the engine ought to have seen the plaintiff, or that he could have seen him in time to have avoided the accident.

I have now noticed all the grounds of negligence, and it will be seen that none of them furnishes any basis for this action. Upon the evidence this was a pure accident. The plaintiff could have passed over the railroad in safety if his foot had not been so caught.

that he could not pass on. That was something that could not have been anticipated by any one. It does not appear, and there is no evidence tending to show, that the engine was carelessly handled in any way. The injury was all the work of but a moment. 'Plaintiff's misfortune excites commiseration, but it cannot justly be visited upon the defendant.

The judgment should be reversed and a new trial granted.

FOLGER, C.J., RAPALLO and MILLER, JJ., concur; ANDREWS, DANFORTH, and FINCH, JJ., dissent.

Judgment reversed.

See Eaton v. Fitchburg R. R. Co., ante, p. 183; Shaher v. St. Paul, etc., R. R. Co., ante, p. 185; Johnson v. Chicago, etc., R. R. Co., 1 Am. & Eng. R. R. Cas., 155.

CHICAGO, BURLINGTON & QUINCY RAILROAD Co.

v.

CHLOE M. SYKES, Adm'x.

(Illinois Reports, 162. September 25, 1880.)

Where a railroad company is guilty of negligence in leaving a freight car across a sidewalk leading to a passenger depot, about the time for the arrival of a passenger train, without opening the freight train so as to permit passengers to pass, and a person seeking to make the passenger train is also guilty of negligence in attempting to pass under the end of a freight car, though invited or directed by the conductor of that train to do so, if such act was dangerous, and would be so considered by prudent persons generally, and the person in passing under the car is injured by the freight train suddenly starting, it should be left to the jury by the instructions to say whether such person's negligence was slight, and that of the agents of the company gross, in obstructing the passage to the depot and in inviting the passenger to pass under the freight car. Where a person in going to a railroad depot to take passage on a passenger train, finds a freight train across the sidewalk, and is told by the freight conductor to pass under the end of a freight car-that he has plenty of time and while passing under is injured, section 54 of the railroad and warehouse law will have no application to the case or bearing upon such person's negligence. That section applies only to climbing, stepping, standing upon, clinging to, or in any way attaching one's self to a locomotive engine or car, either stationary or in motion on the track. Where a conductor has control over his train as to its starting or stopping, a person will have the right to act on his invitation to pass under a freight car when the train is obstructing the passway, unless he has reason to suppose it hazardous. The person in such case has the right to suppose the train will not be started until he can pass through, and that the conductor has the power to control the train, and will do so, knowing the dangerous position in which the person is placed by his direction. When a railroad conductor is engaged in the performance of his duty to the company and about its business, the company will be held responsible

for his acts, although he may not have been free from fault on his part and may have acted beyond his duty.

An instruction as to the right of a party to act upon the direction of a railroad conductor to pass under a freight car in a train which was obstructing the sidewalk leading to a depot, which refers to many of the circumstances bearing upon the question of negligence, but not to all of them, and which is argumentative, and not explicit in announcing the rule of law sought to be presented, should not be given.

In a suit against a railroad company to recover damages for a personal injury resulting in death, through negligence, it is error to instruct the jury that if they find the defendant guilty they may assess the plaintiff's damages at any sum not exceeding $5000, the amount claimed in the declaration, without reference to any proofs of the amount of damages sustained. The trial court has no power to take the decision of facts from the jury by an instruction. If there is evidence tending to prove the issue, it must be submitted to the jury, and the court cannot properly instruct the jury to find against what the evidence tends to prove.

Appeal from the Appellate Court for the Second District.

William C. Norcross for the appellant: The court erred in overruling the defendant's motion for a new trial, because the verdict is contrary to the law and the evidence. The deceased was guilty of such negligence contributing to the injury as to bar the plaintiff's right of recovery in any view of the case. Chicago & Alton R. R. Co. v. Meiche, Administratrix, 83 Ill., 427; Illinois Central R. R. Co. v. Hall, 72 Ill., 222; Toledo, Wabash & Western R. R. Co. v. Brooks, 81 Ill., 250.

It makes no difference whether Anderson invited Sykes to come under the car or not, because it is proved that even if he had invited him, the deceased knew that Anderson could not extend such an invitation within the scope of his agency, and the invitation not being within the scope of the agency, would not bind the defendant. 1 Greenlf. Ev., sec. 114; Davidson v. Porter et al., 57 Ill., 300; Snyder v. Hannibal & St. Jo. R. R. Co., 60 Mo., 413.

The facts being conceded, whether a given act is within the scope of a servant's employment is a question of law for the court. Story on Agency (4th ed.), sec. 456; Wharton on Agency, sec. 136.

A third party dealing with an agent is bound to exercise the caution of a good business man, to know whether or not the agent has authority; and if he acts without exercising such care, he does so at his own peril. Wharton on Agency, p. 91, sec. 137.

When there are any just grounds to suspect that an agent had not authority, or where there is any good reason to put the third party on inquiry as to whether or not an agent has authority to do the particular act, the third party is bound to go to the principal to ascertain whether or not the agent has authority, or else he deals with the agent at his own peril. Wharton on Agency, p. 94, sec.

139.

Where an agent acts beyond the scope of his employment, or

contrary to his principal's wishes, and the party dealing with him knows the fact, he deals at his own peril, and cannot hold the principal responsible for the acts of the agent. Wharton on Agency, pp. 87-88, sec. 131 and sec. 132; Illinois Central R. R. Co. v. Green, 81 Ill., 19.

If the deceased were guilty of any negligence, no matter how slight, that contributed to the injury, then the plaintiff cannot recover in his action unless the plaintiff proves by a preponderance of evidence on her part two things, namely: 1. That the defendant was guilty not of negligence that contributed to the injury, but of gross negligence that contributed to the injury. And, 2d. That the negligence of the deceased was but slight compared to the negligence of the defendant. Illinois Central R. R. Co. v. Hammer, 85 Ill., 526; Chicago & Alton R. R. Co. v Langley, 2 Bradwell's Rep., 505; Illinois Central R. R. Co. v. Hall, 72 Ill., 222; Village of Kewanee v. Depew, 80 Ill., 119; City of El Paso et al. v. Causey, 1 Bradwell's Rep., 531.

The deceased also violated sec. 54 of the statute relating to railroads and warehouses, R. S. 1874, p. 810.

A higher degree of care is required of an adult than of a child. Chicago & Alton R. R. Co. v. Murry, 71 Ill., 601; Chicago, Burlington & Quincy R. R. Co. v. Dewey, 26 id., 258; R. R. Co. v. Gladman, 15 Wall., 408.

That in law the negligence of the deceased contributed to the injury complained of to such an extent as to bar plaintiff's right of recovery, admits of no doubt, as the following cases abundantly show, in each and all of which the verdict and judgment of the lower court have been set aside, and the appellate court decide the same as a matter of law. Chicago, Rock Island & Pacific R. R. Co. v. Bell, Adm'x, 70 Ill., 102; Lake Shore and Michigan Southern R. R. Co. v. Hart, 87 id., 529; Chicago & Alton R. R. Co. v. Mitchie, Adm'x, 83 id., 428; Village of Kewanee v. Depew, 80 id., 119; Illinois Central R. R. Co. v. Hall, 72 id., 222; Illinois Central R. R. Co. v. Chambers, 71 id., 519; Bevier v. Galloway, 71 id., 517; Toledo, Wabash & Western R. R. Co. v. Barlow, 71 id., 640; Illinois Central R. R. Co. v. Greene, 81 id., 19; Toledo, Wabash & Western R. R. Co. v. Jones, 76 id., 311; Keokuk Packet Co. v. Henry, 50 id., 264; Ohio & Mississippi R. R. Co. v. Stratton, 78 id., 88; Adams Express Co. v. Jones, 53 id., 463; Chicago & Alton R. R. Co. v. McLaughlin, 47 id., 265; Chicago & Alton R. R. Co. v. Langley, 2 Bradwell's Rep., 505; Toledo, Wabash & Western R. R. Co. v. Miller, 76 Ill., 279; Central R. R. & B. Co. v. Dixon, 42 Ga., 327; C., C., C. & Í. R. R. Co. v. Elliott, 28 Ohio St., 340; Allyn v. B. & A. R. R. Co., 105 Mass., 77.

When the question is, whether the defendant was guilty of gross negligence that contributed to the injury, and all the evidence is