Implied by law cannot be limited by notice, and it is difficult to see why telegraph companies should be permitted to limit a much less onerous obligation by a mere notice.

The judgment should be affirmed, with costs.

BRADLEY and BROWN, JJ., delivered a dissenting opinion, of which the following is a synopsis: There was ample evidence in the case from which the jury could have found that the plaintiff knew of the regulations printed on form No. 2, and that all messages received and sent over the company's wires were subject thereto. If the jury had so found, it would have also been permissible for them to find that the message was sent subject to such conditions, and that the defendant's liability was limited to the amount charged for sending the message. A special and express contract is not necessary to limit the liability of the telegraph company for mistakes in the transmission of messages. In this respect such corporations differ from common carriers. The reason for this distinction is very clearly pointed out in Ellis v. American Tel. Co., 13 Allen, 226. There is no conflict between Clement v. Western Union Tel. Co., 137 Mass. 463, and Gott v. Dinsmore, 111 Mass. 45, cited in the prevailing opinion.

It has been decided in this state that a telegraph company is not a common carrier, and is not subject to the peculiar liability of common carriers: Breese v. United States Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526; Schwartz v. Atlantic and P. Tel. Co., 18 Hun, 158; Kiley v. Western Union Tel. Co., 109 N. Y. 231.

The authorities cited establish the rule that a telegraph company may limit its liability for mistakes in the transmission of messages by reasonable regulations brought to the knowledge of its customers, and had the jury found, as they might have done upon the evidence in this case, that the plaintiff knew that such regulations had been established, and tha the defendant's liability was limited to the amount charged for sending the message, unless it was ordered to be telegraphed back, it would also have been permissible for them to find that he contracted with the defendant upon such condition.

It was material to a proper disposition of the case that the regulations printed upon the blank put in evidence should have been read to the jury, and it was error for the court to exclude them, and for such error the judg ment should be reversed, and a new trial granted.

BAGES.

TELEGRAPH COMPANIES, DUTY OF, TO TRANSMIT AND DELIVER MESFor a discussion of the rights, duties, and liabilities of telegraph companies generally, see extended note to Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 486-500. Telegraph companies are common carriers and public servants, and must therefore act whenever called upon, their charges being paid or tendered; they must transmit and deliver messages given to them for that purpose: Western Union Tel Co. v. Dubois, 128 Ill. 248; 15 Am. St. Rep. 109. But see Western Union Tel. Co. v. Munford, 87 Tenn. 190 10 Am. St. Rep. 630, and note.

TELEGRAPH COMPANIES - PROOF OF NEGLIGENCE. — As to pleading and evidence in actions against telegraph companies for negligence, see note to Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 499, 500. Proving the contract and showing its breach casts upon the telegraph company the bur den of showing want of negligence on its part: Western Union Tel. Co. v. Dubois, 128 Ill. 248; 15 Am. St. Rep. 109.

- As to

TELEGRAPH COMPANIES-LIMITING LIABILITY FOR NEGLIGENCE. whether or not a telegraph company may by contract limit its liability for negligence, see note to Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 491; Gillis v. Western Union Tel. Co., 61 Vt. 461; 15 Am. St. Rep. 917, and note; Western Union Tel. Co. v. Munford, 87 Tenn. 190; 10 Am. St. Rep. 630, and note.

TELEGRAPH COMPANIES, MEASURE OF DAMAGES AGAINST, FOR LOSSES occasioned through neglect to transmit or promptly deliver messages: Western Union Tel. Co. v. Stevenson, 128 Pa. St. 442; 15 Am. St. Rep. 687; Western Union Tel. Co. v. Dubois, 128 Ill. 248; 15 Am. St. Rep. 109; Western Union Tel. Co. v. Edsall, 74 Tex. 329; 15 Am. St. Rep. 835; Alexander v. Western Union Tel. Co., 66 Miss. 161; 14 Am. St. Rep. 556, and note; note to Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 496-499.

TUCKER V. NEW YORK CENTRAL AND HUDSson River RAILROAD COMPANY.

[124 NEW YORK, 308.)

DUTY OF TRAVELER ON HIGHWAY TO LOOK AND LISTEN FOR APPROACH OF RAILWAY TRAINS. The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the approach of trains, and if he omits to do so, and suffers injury while crossing, he can. not recover. In an action to recover damages for injuries so sustained, the plaintiff must show that he did his duty in this respect, or at least prove facts from which the inference can reasonably be drawn that he did. It will not be presumed that he looked; it must be proven. Evi. dence that a person, killed by a locomotive while crossing a track on a highway, turned his face towards the approaching engine when he was eleven feet from the track on which it was running, but passed on, with out again turning his head in that direction, until he was struck, is not sufficient to justify the jury in finding that he did look, and thus observed that measure of care and caution which the situation imposed. But even if it could be inferred that he looked when at that point, to look then, and not again, and to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise. INFANT, WHEN SUI JURIS SO AS TO BE CHARGEABLE WITH NEGLIGENCE. In the absence of evidence tending to show that an injured infant twelve years old was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris, and chargeable with the same degree of caution that an adult would be.

ACTION to recover damages for the alleged negligent killing of the plaintiff's intestate. The deceased was about the center of the track when he was struck by a locomotive backing at a high rate of speed, and killed. The other facts appear from the opinion.

James Frazer Gluck, for the appellant.

Henry W. Hill, for the respondent.

PARKER, J. Whether the complaint should have been dismissed after the evidence was all in, on the ground that the negligence of the plaintiff's intestate contributed to the accident, presents the only question which we shall discuss on this review.

In its disposition we shall consider, first, whether, assuming the intestate to have been sui juris, the evidence adduced authorized the jury to find that plaintiff's intestate was free from contributory negligence; if not, whether the fact that the intestate was only a little over twelve years of age, considered in connection with the other circumstances proven, could be permitted to effect a different result.

The plaintiff, in order to recover for the damages sustained by the killing of his intestate, which was occasioned by his being run over and killed by a locomotive on the defendant's road while crossing its tracks on Smith Street, in the city of Buffalo, was burdened with the necessity of proving, — 1. That the defendant was guilty of negligence; and 2. That he was free from all fault contributing to that result.

The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the approach of trains. If he omit to do so, and suffers injury while crossing, he cannot recover because of such omission. That which it is his duty to do, he, or in the case of death his representative, must, in an action to recover for damages sustained, prove was done, or at least must prove facts from which inference can reasonably be drawn that he performed his duty in that respect. It will not be presumed that he looked; it must be proven. The plaintiff attempted to meet this requirement by the evidence of a witness who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the center of the switchtrack, eleven feet from the north rail of the track upon which the locomotive was running, and shifted the bag which he was carrying from one shoulder to the other, resting it upon the bumper of a car standing on the track as he did so, and that at this time his face was turned in the direction of the approaching engine. He then passed on in a southerly direction for the distance of about fourteen feet, when he was struck. The witness further testified that after changing the bag from one

shoulder to the other, he did not again turn his head to the left, as it would have been necessary for him to do in order to to see the approaching locomotive. It is urged that inasmuch as it appears that his face was turned in the direction from whence the locomotive came, that a jury could be permitted to find that he did look and thus observe that measure of care and caution which the situation imposed. We are unable to agree with that contention; for it appears that from the place where he was standing it was possible to see along the track a distance of 186 feet; that when he reached the south rail of the switch-track, a distance of eight feet and five inches from the north rail of the track upon which the locomotive was running, he could see for two streets away, and that before reaching such rail the view was unobstructed for nearly a mile. It seems to be clear, therefore, that the plaintiff did not meet the burden resting upon him by merely showing that his face was turned in that direction; for if he had looked he must have seen this engine approaching. But if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross, and was then eleven feet from the south rail of the first track. To look then, and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise: Cullen v. Delaware & H. C. Co., 113 N. Y. 668; Cordell v. New York Central & H. R. R. R. Co., 70 N. Y. 119; 26 Am. Rep. 550; Woodard v. New York etc. R. R. Co., 106 N. Y. 369; Young v. New York etc. R. R. Co., 107 N. Y. 500.

And this the plaintiff's intestate did, according to the evidence of the witness Martin, who was called by the plaintiff to prove that at the moment of shifting the bag Tucker was facing in the direction of the approaching locomotive. Indeed, it must have been so, for had he looked at any moment before reaching the track, he would have observed its coming.

It appears that the wind was blowing severely and snow was falling rapidly, and it is suggested that by reason thereof he may have been prevented from seeing the approaching locomotive; but the evidence introduced on the part of the plaintiff shows that such was not the fact. There were two little girls on the cars at the crossing at the point where the boy stood when shifting the bag from one shoulder to the other, and they saw the locomotive coming. Frank Surrnes

was on Smith Street, near the place of the accident, at the time of its occurrence, and he testified that he saw it approaching when it was at Oneida Street. The witness Martin also saw it when 350 feet distant. No witness pretends that it could not be seen, and no room exists for the inference that the plaintiff's intestate could not have seen it had he looked.

We are thus led to the conclusion that there was no evidence authorizing the jury to find that the plaintiff observed that degree of care and caution which the law imposes on one while in the act of crossing railroad tracks on a public street. If he had been an adult, therefore, it would have been the duty of the court to have dismissed the complaint. Does a different rule apply because the intestate was a boy only a little over twelve years of age? An infant of tender years is not expected to exercise the same care and caution which is required of a person of more advanced age, so that it frequently becomes a question for the jury, under proper instructions by the court, whether a child exercised that measure of care and caution which should be required and expected from it.

In the case of McGovern v. New York Central & H. R. R. R. Co., 67 N. Y. 417, a boy eight years of age, while crossing a railroad track, was struck by a backing engine, and killed. In that case this court held that it was a question for the jury to determine whether he exercised that degree of care and circumspection which a child of his years and maturity of judgment would be expected to exercise.

In the case of Wendell v. New York Central & H. R. R. R. Co., 91 N. Y. 420, the plaintiff's intestate, a boy of seven years of age, was held to have been guilty of culpable negligence, it appearing that he was a bright, active boy, capable of under standing the peril of the situation which he recklessly encountered, resulting in his death.

In Stone v. Dry Dock etc. R. R. Co., 115 N. Y. 104, the plaintiff's intestate, a child of seven years, was run over by a streetcar, and in that case it was held that he could not be deemed, as a matter of law, to be sui juris so as to be chargeable with negligence, but that it presented a question for the jury.

In Reynolds v. New York Central & H. R. R. R. Co., 58 N. Y. 248, a bright and intelligent boy thirteen years of age was killed while crossing a railroad track. The summer before, he had worked on a farm, and received thirteen dollars a month and board for his services, but at the time of the accident he was living at home, attending school. The plaintiff

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