Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-02-13

the question Of contributory negligence, and
upon the refusal of the court to direct a
verdict for the defendant upon that ground.
The defense of contributory negligence is
one which admits, or at least presupposes,
negligence on the part of the defendant,
and the party in fault thereby seeks to cast
upon the plaintiff the consequence of his
own failure to observe the precautions
which the circumstances of the case de-
manded. In determining the existence of
plaintiff liable for faults which arise from
inherent physical or mental defects. or
want of capacity to appreciate what Is and
what Is not negligence, but only to hold
capacities as he is endowed with by nature
for the avoidance of danger. The defend
ant Is primarily liable for his own negli-
gence, and can only escape liability for a
non-ooserVance of such precautions as his
observation or the experience of others
teaches him to be necessary by proving
that the accident would not have occurred
II the plaintiff had taken such precautions
as mis- own observation and experience had
taught him to be necessary Hence the
plalntln Is liable only for the proper use
OF MS own faculties, and what may be
Justly heid to be contributory negligence in
one Is not necessarily such in another.
fhere is no hard and fast rule applicable to
every one under like circumstances To an
aduit, IN full possession of his mental and
pnys1cal powers, one standard may be ap-
UNITED intelligence. another standard; and
TO an infant not sui juris and totally ig-
norant of danger, still another. Indeed, in
the last case the only contributory negli-
sence with which he is chargeable is that
OF his parent or custodian who permits him
TO stroll into place of danger.
HAD the plaintiff in this case been a
nan OF mature age and average intelli-
gence, 1t would be difficult to escape the
conclusion that he was guilty of negligence
In crossing this track without taking more
careful observations of incoming and out
going trains. But he was not He was a.
boy OF twelve years. apparently dull for his
age, as he had attended school four or five
years without having learned to read or
write There was testimony tending to
snow that he had only the capacity of a
chlld OF six or seven. Certain answers given
by him upon his examination indicated that
his powers of observation were limited or
his memory defective"
The Question of Tresspassing.
AS the plaintiff was a lamplighter, en-
gagged in his work at the time of the acct
dent, he could not be considered trespass-
er on the tracks. Had there been a strong,
reflected headlight on the train, as the
regulations required. it would have COM
PEELED his attention. The opinion continues:
we have examined the many cases cited
by Inc plaintiff In error upon this point,
and find that nearly all of them either
turned upon the question whether lettering
upon, playing upon, or walking along
railroad track made a person trespasser
or whether in crossing q track sufficient
care was used to avoid approaching trains.
We are not prepared to give our adherence
to the doctrine announced in very few
cases. that man who steps his foot upon
railroad track, except at a crossing does
so at his peril, though such doctrine when
applied to the facts of the particular case
may not have been an unjust one. We are
rather disposed to say that, where tracks
are laid through the streets of a CITY, upon
or substantially upon the level of the street,
a person is not limited in crossing such
tracks to the regular street crossings but
may cross them at any point between such
streets in the convenient performance of his
daily duties. We cannot say that there
was such danger to an active boy crossing
the track at this point as to authorize the
case to be taken from the jury upon the
ground that he was ipso facto a treSpaSser.
We have no desire to limit or qualify
anything said by in Railroad Company
vs. Houston, or in Northern Pacific Rail
road vs. Freeman, both of which involved
the question of care at a regular highway
crossing. and we have no doubt that in the
case under consideration such care should
have been used as the nature OF the case
required. and the intellectual capacity OF
the plaintiff admitted. But these We're all
questions for the jury, and were conclusive
ly answered by the verdict. We, cannot say
that the court should have taken the case
from the jury, or that it erred in any ma
terial particular. We cannot even say that
we should have come to a different conclu-
sion upon the facts.
The judgment of the Court of Appeals
Mr.. Justice White and Mr.. Justice Nc
Kenna diSsented