Year: 1874

there is no evidence that they looked out
after, and we are bound to presume they
did not; they kept on until they got on the
track and were struck. Such are the facts
1t is manifest they relied principally
upon seeing the headlight; it was usual
for them to see one and its absence led
them to the conclusion that no train was
near; it is also nearly as manifest that
the light they thought they saw at Cousin
Dal's was the lantern in front Of the loco
motive; we know trains are liable to ac-
cidents, but they must make their trips !;
trains run other than passenger trains and
that by day or night, as best suits their
convenience. 1t would be dangerous
rule to announce that persons should reg
ulate their conduct according to the time
tables of the road. 1t would be equally
dangerous to say that people should place
any reliance upon the absence or presence
of a headlight. If there had been head
light that night, it is true the accident
might have been avoided, but there are
other circumstances which might show
the dangerousness of relying upon seeing
the headlight. In our judgment, as there
is no statute in this State requiring rail-
road companies TO carry headlight in
front of the engine, it is not per Sc negli-
gence to omit to do Sc. although it might
be imprudent. Assuming, however, that
the railroad was guilty Of negligence, still
the question romans, is this plaintiff onti-
tied to recover? They looked out when
some hundreds of feet from the railroad
and did not look out afterwards. 1t was
cold and dark, with frozen ground, the
noise of horse hoofs deadened their hear
ing. and they were also mutfled up. Did
the defendant use caution Let me cite
the general rule of law, as drawn from a
numerous body of cases.


One who is injured by another cannot
recover in law or equity, if by any acts of
himself or agent he contributed to the in
jury, by doing that which helped to pro-
duce the injurious act. Did the plaintiff
in this case by any act of omission or com
mission, contribute to the complained in
jury? If she did, in cur opinion, she is
not entitled to recover. To recover, her
action must be without fault. If she con-
tributed in any degree she cannot recover.
Did she consider the circumstances Re-
member she is considerable distance eff
the railroad. Suppose she had got over
that distance to the track where there was
ample room to stand, and had locked out,
would they not have displayed more eau
ton than BY looking out at the other
point alone? If they had paused at the
mouth of the lane but one instant, then
there would have been no collision. What
were the dictates of prudence and common
sense, on dark night, approaching a
railroad they intended to cross? They
could not have avoided seeing the cars
pass had they stopped, as they would have
shot past them in two seconds time. Can
this Court say that although they failed
to use this preeauiion, yet they used all
due precaution? 1t is in vain to tell US
that the east wind carried away the noise
of the train laundering along at the rate
of 25 niles an hour. 1t was the rattling


of their carriage that prevented them from
hearing it. Can we say, now, in view OF
these facts, which stand undisputed, that
this plaintiff has legal right to recover
We think not, and grant the motion for a
non suit.


Mr.. Bird declined to receive a non suit,
and the Judge instructed the jury to re.
turn verdict for the defendant. The
plaintiff will take the case up to the Court
of Errors and Appeals on writ of error.