69 ARF.] 9T. i„ouTs, f.. i. s. co. v. ToAtirsoif, 48p , ST. L017Is, 190N MOFNTAIN & SOUTHERN RAILWAY COMPANY V. ToNLTNsoN. Opinidn delivered July 6, 1901. 1. CARRIER — NEGLIGENCE. Deceased escorted a friend to his coach, Which was open for passengers, and on his return, while crossing an intervening track, was struck and killed by an engine, which was being backed at a high rate of speed without efficient lookout and without warning. Held, that, whether deceased was on the track as a mere licensee or by implied invitation of the COMpply; the latter was guilty of negligence. ( page 494.) 2. CONTRIBUTORY NEGLIGENCE. —If deceased, to keep off rain, enveloped his head in the cape of his coat, so that he could neither see nor ' hear an • approaching engine, and in this condition stepped on defendant's track, and was killed by an engine which he would have Seen or heard had his eyes and ears not been covered, he was guilty of contributory negligence. (Page 495.) 3. PAnmi r s—LiAsTi.rry TO pAsesrange's Escoar.—One who goes into a passenger coach to assist a friend, who desires to take passage and' . needed assistance to reach and enter the coach, goes upon an iMplied invitation of the carrier, which should use at least ordinary Scare to avoid injuring him whiie there. (Page 495.) 4, INsmumown—UNDIs p urEn FAcrs.--Instructions should not submit undispnted facts to the jury for decision. (Page 497.) CARRIER-DUTY TO tacENsEE.—One who, after . having escorted a passenger to his coach, returni to suCh coach ivithOnt . any necessity therefor and for his own pleasure merely, is a licensee, and cannot be said to have returned upon an implied invitation of the carrier, which owes him no duty save to do him nO wanton injury and to comply with the statutory requirements as to keeping a 1ookout. (Page 497.)
.490 ST. LOUIS, I. M. & S. R. CO. V. TOMLINSON. [69 ARK. 6. ' CONTRIBUTORY NEGLIGENCE — WHEN QUESTION FOR JUEY. — An instruction to • the effect that if deceased accompanied a departing passenger, who needed assistance, to his coach at a time when it was open for passengers, and when passengers were passing back and forth between the depot platform and the coach with the apparent acquiescence of the railroad company, then deceased was rightfully upon the premises, and it was not incumbent on him 'to be on the lookout for danger, if under the circumstances he had no reasonable ground to suspect that danger was to be apprehended, is erroneous where the train was not to leave for half an hour, and other 'trains were constantly passing; it being a question for the jury in such case whether deceased was guilty of contributory negligence. (Page 497.) 7. SAmm—INs t rnuartoN.—Where there was evidence that, before attempting to cross defendant's track, deceased, to protect himself from the rain, drew up the cape of his " coat over his eyes and ears, so that he could see directly in front only, it was error to instruct the jury that if deceased, in attempting to protect himself from the -- rain, did only what a man of ordinary prudence would have done under similar circumstances, he was not guilty of negligence. (Page 500.) Appeal from Saline Circuit Court: ALEXANDER M. DIIFFIE, Judge. STATEMENT BY ' THE COURT. Action by Regina Tomlinson, widow and administratrix of the estate of Arthur Tomlinson, against the St. 'Louis, Iron Mountain & Southern Railway Company, to recover damages for his death. The facts are stated in the opinion. On the trial in the circuit court the presiding judge gave to the jury the following instructions at the request pf the plaintiff : "1. If you find from a preponderance of the evidence that the defendant railway maintained a station or depot for the reception and discharge of passengers from its cars at Little Rock bn July 8, 1894; that on that day it placed pa'ssenger coaches for the reception of passengers in such a manner as to make it necessary to cross its railroad track or tracks in passing to and from the coaches and sti-tion platform; that Lieutenant Tomlinson accompanied to one of these coaches a departing passenger, who needed assistance, or that he visited the coach to look after the comfort of such passenger when the coaches were open and ready for the reception of passengers, and when passengers were passing back and forth between the
69' ARK.] ST. LOUIS, I. M. & S.R. CO. V. TOMLINSON. 491 platform and coaches with the apparent acquiescence of the railway, then the court instructs you that Lieutenant Tomlinson was rightfully upon the railway's premises under an implied assurance that no engine or train would be permitted to run over an intervening track, unless the railway should use ordinary care and prudence to give timely and ample warning of the approach, and that he had a right to lessen his own watchfulness; and it was not incumbent upon him to be on the lookout for danger if, under the circumstances, he had no reasonable ground to suspect that danger was to be apprehended. If you further find, from 'a preponderance of the testimony, that Lieutenant Tomlinson; after seasonably visit.; ing the coaches for either of the purposes above mentioned, while returning therefrom tO 'the station platform by the usual route, in the exercise of ordinary care and prudence, was killed by an engine operated by the defendant railway without the observance of ordinary care and caution, your verdict should be for the plaintiff. "2. "What would be due care under some circumstances would be negligence under others. Negligence is the failure to use the care which a reasonably prudent man would determine, in view of all the circumstances, that the situation demands. If you find that the railway failed to exercise such care, you should find that it was guilty of negligence. "3. If you find from a preponderance of the evidence that the defendant railway backed one of its engines over a track between the coaches and the platform, without a guard or lookout, or not having such guard or lookout, without signal or 1;,arning, which, under the circumstances, would reasonably attract the attention of a man of ordinary prudence, who was rightfully engaged in passing between the coaches and station platform., the railway was guilty of negligence, and you should so find. "5. The burden of proving in a case like this that the deceased was guilty of negligence which contributed to his in jury rests upon the railway company, unless the plaintiff's evidence proves it. If therefore, you find that it is not proved by a preponderance of the evidence in the case that Arthur Tomlinson failed to exercise that care, caution and prudence which would be expected to be used under like circumstances by persons possessing ordinary care and prudence, you must.find that he was free from negligence. "6. If you find from a preponderance ,of the evidence that at -the time Lieutenant, Tomlinson left the coach it was raining, and that, in undertaking to.protect himself, from the rai • n, he did only
492 ST. LOUIS, I. M. & S. R. CO. V. TOMLINSON. [69 ATIK, what a man of ordinary prudence would have done under similar circumstances, you will find that Tomlinson was not guilty of negligence in that reapt. To the givbg of these instructions the defendant excepted. Th ere was a judgment il l favor of the plaintiff. for $20,000, from which defendant appealed. - Dodge & Johnson, for appellafit. Under the evidence appellant . was guilty of contributory negligence. Tomlinson was not a passenger. 96 Pa. St. 267; 5 Am. & Eng. Enc. Law (2d Ed.), 486; 48 Ark. 493 ; id. 369. Appellant owed him no duty except not to wilfully injure him. 48 Ark. 493; tilompson, Carr. Pass. 104, 105; 71 Ill. 500; 59 Pa. St. 129; 36 Ark. 50; id. 376; 41 Ark. 549; 46 Ark. 535. He was negligent in being where he had no right, and hence he cannot recover. 40 Ark. 322; 101 Pa. St. 258; 29 Oh. St. 367; Ell. Railroads, § 1248. But, if it be conceded that Tomlinson was a licensee by sufferance, he took his license with its incident risks. Elliott, Railroads, § 1250. Appellant's only duty to hi lt ; was to refrain from wanton or wilful: injury to him. 66 N. Y. 246; 102 U. S. 584-5; L. R. 4 Exch. 254. As to measure of care due by appellant, see further : 58 W1S. 656, 657; 51 Mich. 238; 34 N. J. L. 472; 10 Allen, 372; 29 Oh. St. 365; 59 Wis. 150; 10 All. 372; 99 Mass. 210; 59 Pa. St. 129; 47 Ind. 43; 111 Pa. St. 258; 84 Ga. 1. Tomlinson was guilty of contributory negligence such as to bar recovery. 151 Mass. 403; 155 Mass. 44; 165 Mass. 264; 156 Mass. 180; 158 Mass. 10 ; 4 L. R. A. 632; 97 Mass. 275; 135 Mass. 225; 12 W. : N. C. 348; 122 Pa: St. 58; 23 W. N. C. 189; 40 La. Ann. 800; 22 Minn. 22; 74 Ia. 607; 74 Fed. 299; 44 S. W. 703; 57 Fed. 926; 73 Fed. 627; 57 Fed. 926; 61 Ark. 655; 150 U. S. 248; 12 Am & Eng. R. Cas. (N. S.), 460. The first instruction asked by plaintiff was erroneous in that it told the jury that Tomlinson "had a right to lessen his own watchfulness, and it was not incumbent on him to be on the lookout for danger, if, under the surrounding circumstances, he had no reasonable grounds to suppose that danger was to be apprehended." 48 Ark. 493; 54 Ark. 431 ; 55 Ark. 430; 55 Ark: 428; 56 Ark. 434; 56 Ark. 278; 59 Ark. • 130; 61 Ark. 620;' 62 Ark. 156, 159; 61 Ark. 549; 64 Ark. 368; 65 Ark. 67. Cockrill Cockrill, for appellee. There being evidence to suataiii the verdict, it tvill be sus-Itained. 53 Ark. 75, 80; 54 Ark. 229, 234; 14 Ark. 21; 25 Ark.
69 Anil ST. LOUIS, I. M. & S. R. CO. if. TOMLINSON. 40.3 90; 17 AiL 385; 13 Ark. 285 ; 13 Ark. 694. The evidence warranted a finding of negligence on the part of the railway. 65 Ark. 235; 48 Ark. 491; 48 Ark. 366; 55 Ark. 428; Deering, I■Teg. 248, 251; 54 Ark. 159; 12 Am. & Eng. R. Cas. (N. S.), 370, note; 122 N. Cat. 832, 840; 27 S. W. 44; 25 So. Rep. 338; 26 N. J. Eq. 474. It is not incumbent upon a passenger, WhO is reqiiired to, cross a railroad track at a station to reach his train, to be oii the lookout for danger, unless he is specially , apprised that danger ia . to be apprehended. 59 Ark. 122; 168 U. S. 339; Hutch. Carr. § 616; Beaeh, Contr. Neg. g 160; Fetter, Carr. Pas. § 136; 149 U. S. 43; 78 N. Y. 338, 334; 113 N. Y. 363; dif N. Y. 246; 60; Miss. 126; 18 Colo. 368 ; 72 Md. 519, 530 ; 60 Md. 449, 463, 465; 88 Pa. St. 327, 333, 334; 27 N. J. Eq. 530'; 20 M. J. Eq. 474T 105 Mass. 203; 31 Lad. 408; 88 Fed. 435, 466; 40 N. Y. Siipp. 783; 60 Ill. App. 265; 59 Ill. App. 21; 60 Ill. App, 525; 39 La. . Ann. 649; 36 Kan. 769; 2 S. W. 181; 8 Tex. Civ. App. 89; S. C. 22 S. W. 242; 41 Mich. 667;* 161 N. Y. 232; S. C. 55.N. E. 819; 80 Ill. App. 675; 122 N. Car. 905 ; 80 Ala. 600. As to duty in general to passengers and prospective passengers at depots, see 88 Fed. 455; 12 Am. & Eng. R. Cas. 170. A passenger's. escort may rely upon the railroad's fmplied assurance of safety, just as the passenger can Thomp. Carr. 106; 72 Mo. 392; 64 Tex. 231; 31 S. W. 737; 113 N. Y. 383; 64 Miss. 54; 36 Kan 765; 91 Fed. 466, 472; 54 N. Y. Supp. 760; 39 Pa. St. 129, 143; di Mich. 501; 65 Ga. 370, 375; 119 Ind. 342; 59 Mo. 27; 6 Gray, 64 ; 60' Me. 183; 42 La. Ann. 1156; 34 La. Ann. 648; 46 Ark. 182, 106; 60 Ark. 106, 110; 122 N. C. 832; 52' S. W. 7; 11. Tomlinson was under duty to look and listen. 3 Eli. Railroads, §§ 1171, 1157; 20 Atl. 258: 118 hid. 3; 1 Exch. 21; 122 N. Y.. 234; 06 N. Y. 676 -; 80' Me. 430; 38 l i ed. 15 ;- 43 Oh. St. 67 g ; 173 111. 183; 10 Allen, 368; 24 Oh. St. 631; 54 N. Y. g upp. 76d ; 64 Miss. 584. Appellant impliedly invited Tomlinson to pass over the track. 54 Ark. 139; 59 Ill. App. 21; 39 La. Ann 649. The question of contributory negligence was for the fury. 9 Am. & Eng. R, Cas. (N. S.), 166; 152 U. S. 107, 113; 168 U. S. 339, 348 ; 93 Fed. 384. Tomlinson Was not guilty of contributory negligence, as a matter of law, merely because of the use he made of his cape. 92 Peci. 846 ; 163 U. S. 333, 336; . 4 Am. & Eng. tnc. taw, 75; note 2; 74111. App. 387, 306; 86 SW. 819; 79 ' Ms: 404; 87 Ann, 295; 59 N. Y. 681; 155 Mass. 190.
494 ST. LOUIS, I. M. & . S. R. CO. V. TOMLINSON. [69 ARK. RIDDIcx, J., (after stating the facts). This is an action brought by the widow and administratrix of the estate of Arthur Tomlinson, deceased, to recover damages for his death, which plaintiff .alleges was 'caused by the negligence of the employees of the defendant railway company. The death of Tomlinson took place under the following circumstances : In July, 1894; there was a meeting in Little Rock of several military coMpanies for the purpose of a competitive drill. One of the companies, the Indian-apolis Light Artillery, was scheduled to leave Little Rock on its return the evening of the 8th of July: To accommodate the members of this Company, the Iron Mountain Railway Company had two passengers coaches placed on its second and third tracks from the depot in Little Rock, Arkansas. Between these coaches and the depot there was the main track of the railroad, and possibly a side track also, which passengers were compelled to cross in order to reach the coaches. Tomlinson was lieutenant of a company from Washington, D. C., which had also attended the drill, and he was acquainted with the officers of the artillery company. Late in the afternoon of the day of their departure he accompanied an officer of the artillery company to the depot, and assisted him to his coach. This officer was somewhat intoxicated by strong drink and needed assistance, and the theory of the plaintiff is that "Tomlinson accompanied him for that purpose. The time for the departure of the train had not arrived, and the coaches were not attached to the train, but they were open for the reception of passengers, and Tomlinson and his friend entered the coach, passing on their way over the intervening main track of the railway. There is some conflict in the evidence as to whether Tomlinson made a second visit to the coach in which his friend was seated, but, in any event, on his return from the_ coach to the ' depot, either the first•or second time, he was struck by the tender of an engine of the company, backing along the main • track, and was instantly killed. This was after 7 o'clock in the afternoon, and, though objects were visible, it was Jaining and, rather dark for that time .of day. As before stated, the coaches from which Tomlinson was returning were open for the reception of passengers, 'and there was evidence tending to show that about this time, with the apparent adqui-epcence of the company, passengers and their friends were passing to and fro between the • station. and the coaches. There was also evidence to show that, although this . was known to the employees of the company, the engine at the time it struck Tomlinson • was •••■
69 ARK.] ST. LOUIS, I. M. & S.- IL CO. V. TOMLINSON. 495 •being backed at a rapid speed along the main track, between the coaches and the depot ; that no efficient lookout was kept, and that no warning of its approach was given by bell or whistle, or in any •other way. This evidence clearly justified the jury in finding that the employees of the cornpany were guilty of negligence in backing 'the engine in that manner, at such a time, between the coaches and the depot. If the facts above referred to are true, the employees of the company were guilty of negligence, without regard to whether Tomlinson be considered a mere licensee or as one on the premises of the company by an implied invitation of the company. The law requires that a lookout be kept for trespassers. and certainly it was the duty of the employees of the company to have kept a lookout in this instance, and whether they did so or not was, under the evidence, a question for the jury. If the only question in the case was whether the company was negligent, we could say without any hesitation that the evidence justified a finding in favor of plaintiff. But, conceding that the negligence of the company contributed to the injury of Tomlinson, there is, under the evidence in this case, the further question- whether he .was not also guilty of negligence contributing to his injury. It is the theory of the defendant that Tomlinson, to keep off the rain"which was falling at the time he left the coach on his return to the depot, enveloped his head in the cape of his coat, so that he could neither see nor hear the approaching engine, and that in this condition he stepped on the track, and was killed by an engine, which he must have heard or seen had his eyes and ears not been covered in that way. If this contention be true, it is clear that no recovery should be -allowed; for, whether Tomlinson should have looked and listened for an approaching engine or not, it was certainly his duty to have exercised ordinary care, and this required that he should not put himself in a condition that the could not be warned of the approach7 ing engine. On the other side; there was evidence to rebut this contention, and to show that Tomlinson did not wrap the cape of his coat about his head, but that he merely held it so as to keep off the 'rain, but not so as to obstruct his vision or sense of hearing. Now, if Tomlinson went' to the cars, not out of mere idle curiosit y, but • to assist a friend who desired to take passage, and needed •assist--ance tO reach and enter the coach,. it is evident that he w . a's nOt : a- trespasser,' and the rules' that apply in a case where . a trespasser 'is injüred would ncit be applicable in stich a case. An escort of
496 ST; iOITIS; 1. M. & S. B. C6. 1). tOMLII s iSON. [69 Atli. that kind petforMs a . serVice in the denirnen intereat Of the Carrier And the paSsenget. His entry lift& the prethise g of the conipally i g upon an implied infitation Of the cattier, which shonld At least ordinary eare to avoid injury to him while there. Railway aompan y v. Lawton, 55 Atk. 433; 18 S. W. 543: • Not, under such circtmstances, eatt -it be said; AS a .intittet of law, that Toinlinain wa g bound to leok and liSteri fof apprOaChing traina befote attempting to eroSS the track between the - depot and the ears if this wa g s tittle when the' cOaches from Which lid Was re--turning weté open for the reception of passengers, and when pASSeri-gers and their escOrts were passing to And frO between the cats and the depot. The rule that one should loOk and listen for approaching trains before attempting to paSS a tailway track is often Applied in cases for injnrieS to travelers on highways at railway CroSsings. In Steh a Case, where there is no invitation on the part of the coin--pany fOr the traveler to cross; the eourts can say; as a mattet Of law, that he should look and listen for approaching trains, and, if he lails tO . do so, And by reason of such failure is injured, he can recover nothing by way of damages ; for, even if the company he negligent, his own negligence contributes to his injiitY. But the ease ik different where the injured 1:;ason comes on the track by the invitation of the' railway company. In g uch a case he intst Still .exercise ordinary eare-, but, As he has the right to rely to softie extent -upon an implied assurance of the company that the way is safe, the courts, tot knowing to what extent his acts May be' influenced by the conduct of the company, cannot in such a case say as• • matter of law that the Mere _failure to look arid listen is such negligence as precludes a tecoVery. If, then, a passenger or . his -escort is injured while attempting to pass an . intervening track to reach a depot or train when the' circumstances . justify him believing that he is invited by the . emiipany to' pass over the track, it becomes a question for the jniy; after considering all the circuni-stances, to say whether or not he is . guilty of a want of ordinary cAre. In determining that qriestion the jury should no doubt consider whether he did or did not look And listen, Along With the other 'circumstances in proof ; hilt the mere fact, if . proved, that he *did not look and lieten doee not,' under such cireurristance g , concln--sively establish negligence; it being fOr the juti to • say Whether he should have looked' or lietened; and whethet 'under all of the circumstances, he was guilty-of negligende or tot. Railway Coin-;pow v. Johnson, 59 Alt. 122; Lcingan .Lbuis; 1. M: & S.
69 moil ST. LOUIS, I. M. & S. A. CO. V. TOMLINSON. 497 ..Ry, Co. 72 Mo. 392; Brassell v. N. Y..C., etc., R. CP. 84 N. Y., 241; Atlantic- City R. Co. y. Goodwin, 62 , N. J. Law, 394; B. tE O. R. Co.- y. :State, 60 Md. 449; 1 Fetter, Carr. pass...§ 136. Now the ovidence bearing on the question of whether Tom,- linson was guilty , of negligence contributing to his injury Was conflicting: . At least, the evidence of neglig,ence on his 'part . was not .so clear and convincing as to justify the ' court in withdrawing that question from the jury; and, had that question been properly presented to them, we should have felt boUnd by their decision. l3nt a careful consideration of the instructiOns iiyen to the jury. at . request of the . plaintiff has convinced us that .spme of them Were erroneous and misleading. These instructions. are set - out in tbe statement of facts, and we need not repeat them heie in fnll. Thp first instruction is rather long, and made so partly for the reason that it commences by submitting to the . , jiiry for decision certain undisputed questions -of fact. There was certainly no 1-.Ason the question as to whether the defendant railroad company on the Sth day of July, 1894, had a. passenger depot A t Little Rock'should bave been submitted to a jury for decision; for. not only was there no conflict in the ,eyidence on that point, but it is a matter of general information that the ' Iron Mountain Company has , inain-'rained such a depot here for over a .quarter of , a century. The only _effect of submitting such , undisputed facts to the Jury as' if tboy were disputed is to more or less, oloud and obscure the real questions , of fact . at issue, yqiich tile jury aro required to. determine. • Pacifi,c.Nytygl Ins. Cp. y, Tycil4r, 7 Arl -But, pas F. . 147. sing this matter, to Iyhiph we have p alled attention only because the case must be retried, We will now notice some more serious objections. The instruction . tells _the jury that, .if Tomlin-- son accompanied to the poaches ,depar;ting ,passenger who needed assistance, ,or if he visited the coach to lo'ok after , the .cpmfort - of such passenger, when the ooaches were open and ready . for the reception of passengers, and' when passengers were pasSing back and forth between the platform WI the . coaches with the .apparent acquiescence of the railroad company, then, .,to guote from - the instruction, •"Tomlinson was -rightfully upon the i . ailway premises -under an implied assurance that •o egine yir,ould Jje p.rm.med run on an inter y ening . track unless oe railway should use ordinary care .. A pci p r IlciP4ce t giye timely and:ample warning a , Of -the pp rP a eh, ,and he had a Tieit . f t9 ln s -pwn .WatchfUlness, and it was not incumbent upon him i to be on the Jookout for 4an-69.
498 ST. LOUIS, I. M. & S. R. CO. V. TOMLINSON. [69 ARR. ger, if, under the surrounding circumstances, he had no reasonable ground to suspect that danger was to be apprehended." Now, there was evidence tending to show that Tomlinson m'ade two visits to the coaches,—one to accompany and assist his friend, who intended to leave on the train ; and another when he returned apparently without any necessity except his own pleasure, to have another talk with his departing friend. If Tomlinson returned to the coach a second time as a matter purely of his own pleasure, he could hardly be said to be there on an implied invitation of the company. His situation would then be that of a licensee, who must take the license with its risk. The company could, of course, do him no wanton injury, nor could they dispense with the statutory requirements of keeping a lookout, but in such a case it had the right to conduct its business in . the usual and lawful way without regard to his comfort or convenience, and to expect of him that he would use due care to keep out of the way of its engines and trains. Hein-loin v. Boston & P. R. Co. 147 Mass. 136. But let us suppose that Tomlinson was killed either on his return from the first trip to the coach, made by hini to assist a passenger, or on his return from a second trip, made to look after the: comfort or ;welfare of the passenger, still we think the instruction is erroneous and misleading, for it states that in that event "it was not incumbent on Tomlinson to be on the lookout for danger, if, under the surrounding circumstances, he had no reasonable ground to suspect that danger was to be apprehended." Undoubtedly, • this might be the correct rule under some circumstances. A person on a platform or in. the depot or cars of the company by its invitation, express or implied, need not, as a rule, be on the lookout for danger, for such places are intended for the convenience and security of passengers and others who go there on business with the company. But a railway track, where engines and cars may be • ,expected to pass, is a different thing, and of itself is suggestive of danger. While it can not be said as a matter of law that a person crossing the track of a railroad by invitation of the company should under all circumstances look and listen for approaching trains, .neither on the other hand can it be said that they should not do so; the question, as before stated, being usually one . for the jury to determine. Yet certainly a person in such situation should not lose sight of the het that he is in a place of danger to a careless person. He should not close his eyes or stop his ears, so that warnings of danger may not reach him; for, although it is the duty of the_ company by
69 Aim] ST. LOUIS, I. M. & S. R. CO. V. TOMLINSON. 499 lookout, by signals and by such other means as ordinary prudence may dictate, to endeavor to protect him, it has the right to assume • that he has knowledge.of his surroundings, and knows that engines and trains may pass, and that he will use ordinary care himself, and be ready to detect signals of danger and act upon them when given. This case, we should remember, is not exactly similar to a case where a train has stopped at a depot to remain only a minute or two, and where passengers. discharged from the irain are going to the depot, and others wishing to board the train are passing from the depot to the train. In such a case a passenger deairing to board the train has no time to lose, and must ' promptly get aboard the train, or he may be left. The instruction we are now considering would be more appropriate in Such a case than in this, for then the passenger Would have More reason to assume that during a minute or two, while the train stopped to discharge and take on passengers, the company would not permit another engine or train to pass over an intervening track between the depot and train; and thus endanger passengers coming or going to the train. Whether such ' an instruction would be proper in a case of that kind, we need not say. But in this case, as before stated; the coaches from which Tomlinson was returning were not attached to a train. The train to which they were to be attached had not yet arrived, and Jit was yet some half hour before the tirn.e of its departure. There was, therefore, no occasion for hurry, either in boarding or leaving these coaches. There was no reason for persons coming to and from the coaches to assume that traffic on the main line would be suspended until the departure of the train, and more reason why they should exercise care in crossing than there would be in the case of a train s th to e p c p ir ing for a moment only to discharge passengers. Considering cumstances in proof, the instruction complained of does not, in our opinion, fairly submit to the jury the question as to whether a T s o a m linson was guilty of contributory negligence, but tells them, matter of law, tbat it was not incumbent upon him "to be • the lookout for danger if he had no reasonable ground to belie v o e n that danger was to be apprehended." • We. have said that this inay be good law, but it has no application to this case; for, as before stated, Tomlinson, at the time he was • g truck, was' walking across the main track of a railroad at the dePot of a city, where irains and • engines pass at all hours' of the" day; and where the circiinstanees were suggestive of danger. Yet under this inatruction the jury were left free to-say that he had no reason to apprehend da.nger, atel.
500 ST. LOUIS, I. M.A4 S. R. CO. V. TOMLINSON. [69 ARK. therefore was not guilty of negligence, Though he exercised no-care whatever. Tinder this instruction the jury may have concluded that- he had no reason to apprehend danger, -and therefore was jus-tifted in pnlling his cape over his ears and eyes, and in attempting to cross the track inthat condition. As there was evidence tending to .show -that Tomlinson did attempt to cross with his eyes end. ;ears .e9 y ered. in-that way, we have concluded that the instruction w_as, for the reasons above stated, erroneous and prejudicial to appellant. It assumes that the evidence was such that the jury might possibly conclude that Tomlinson ' had no reason -to apprehend danger, while, as before stated, the fact that he was crossing the main line of the road at a place where engines and trains often passed conclusively shows that there Was danger to one proceeding withont care. In the latter clanse of this instruction the presiding judge no doubt intended to convey the idea that it was the duty 'of Tomlinson to have exercised ordinary care himself, but the language used lnight, to . a careless person, convey the idea that the judge was assuming that Tomlinson did in fact exercise such care. But, waiving ,this defect of form, and granting that the instruction had the meaning intended, it was-of no avail, for -the preceding portion of the instruction had laid down the rule that it was not incumbent on Tomlinson to be on the lookout for danger if. he had no reason to -suspect daliger ; leaving -the jury,..as before stated, at liberty to conclude that he had no reason to . suSpect danger, though he was crossing the main track of a . great railroad line. Again, in the :sixth instruction given at the request of the plaintiff the judge told the jury that if Tomlinson, in attempting -to protect himself from the rain, at. the time • e left the .coach, did only what . A man of ordinary prudence would have done under eirnilar . Orcinnetanees, he was not guilty of negligence. Now, while this may be abatractly Lcorrect, yet . , under the facts as shown there, it was too broad, and left more to the- jury than was necessary or .proper. There eon .o_nly be two Ariews, nnder the evidence, as to what Tomlinson did to protect himself from the rain. Some of the se s f stated 4hat he only raised Js Rape above his bead, .not -Witne. s obstructing his yision or hearing; others stated that he pulled this .espe oyer his head,.covering his eyes and ears, so that he could see ,direetly :in-frOnt ' only, and plunged, 'IA this : condition, on the track, just berfor,e the tender nf the backing engine; If this view was true, , the taiAg Appidliate , bePii . for 'the defendant, ' for 'there tould he :no difforgnee .of -opinion hetween reasonable men ,concerning the
.69 A ' mt.] 601 reeklOg Snes g of Such doildnet. BUt the in g thiction givet loayea the jiffy free to find that this Wa g true, and yet find for plaintiff, if they found that a man of Ordinary prudence *oiild haVe thu g aeted under similar circuin g tances. Thi g Wag ihiproper. Whether Or not Tomlinson did cover his eyes and ears in that way while attempting to cross the railway track at the time of his injury was .a disputed question of fact for the jury to determine; but, that question being once determined in the affirmative, it was for the judge to say that such conduct constituted negligence, for that would follow as a matter of law. This i g ati interesting and iMportant tate. While the eVidence is voluminous aiid conflicting, the disputed facts ate few; and should be Clearly atibirdtted to the jUry, et their deei g ion Will be little better than guesswork.. We have given Careful attention to the able argument of coun g el: The result i g that, while we . can agree with nearly all the conclusions Of la* urged by learned counsel for appellee, we cannot agree that the law was well stated, or. the facts fairly submitted by the instructions; . and for this error the judgment is reversed, and a new trial ordered:
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