US SUPREME COURT DECISIONS

Under a regulation requiring railroad tracks running through the streets of a city to be fenced, whenever the grade is "approximately even" with the adjacent surface of the streets, it is proper for the jury to say whether a track elevated two feet two inches above the surface of the street is within the regulation.

Where the declaration averred that there was " no light" upon the engine to indicate its approach, and the proof was that an insufficient light was carried, it was held that there was no material variance.

Where the regulation required that "a headlight or other equivalent reflecting lantern" should be carried upon a train to indicate its approach, it is for the jury to say whether an ordinary hand lantern is a substantial compliance with the regulation.

In determining the existence of contributory negligence, the plaintiff is not liable for faults which arise from inherent mental or physical defects or want of capacity to appreciate what is and what is not negligence. He is only responsible for the exercise of such faculties and capacities as he is endowed with by nature for the avoidance of danger.

While under the circumstances of this case, the court might have held the plaintiff liable for contributory negligence if he had been a man of mature age and average intelligence, as he was a boy of twelve years of age, it was held that the question was properly submitted to the jury.

A person crossing the track of a railroad company in the streets of a city for the more convenient performance of his duties is not ipso facto a trespasser.

This was an action begun in the Supreme Court of the District of Columbia by the plaintiff Cumberland, suing by his next friend, against the Baltimore & Potomac Railroad Company, to recover damages for personal injuries inflicted upon him by the alleged negligence of the defendant company.

The undisputed facts were that the plaintiff, who was twelve years and four months of age at the time of the accident, was a street lamplighter by occupation, and for more than a year prior thereto had been engaged, under his father's direction, chanrobles.com-red

Page 176 U. S. 233

in lighting street lamps in the vicinity of the company's tracks on Maryland Avenue in the City of Washington.

The accident occurred about dark on the evening of December 10, 1894. The weather was misty, according to some of the witnesses, rainy, foggy, and very cold, according to others. The plaintiff, having lighted a lamp on the south side of Maryland Avenue between Thirteenth-and-a-half and Fourteenth Streets, started across Maryland Avenue and the tracks of the company for the purpose of lighting a lamp directly opposite on the north side of the street. There was a curve in the tracks at this point, made by a turn in the railroad from Long Bridge into Maryland Avenue. There was no crossing for persons or vehicles between Thirteenth-and-a-half and Fourteenth Streets, and the street on either side of the right of way was separated therefrom by curbs which projected eight inches above the adjacent roadway. These curbs were above five feet from the outer rails on either side, and the tracks were carried upon ties, elevated about eighteen inches above the level of the curbs and about two feet higher than the surface of the street. The plaintiff, having lighted a lamp on the south side, started across the street, mounted the elevated roadway in front of a train coming up from Long Bridge with the tender ahead of the engine, and just as he stepped upon the track was struck by the tender, knocked down, and run over. There was a hand signal lantern swung on the advancing end of the tender, and at the time of the accident it appeared to have been burning.

At this part of the avenue, there are four or five railway tracks -- two main tracks on the north side, used for passenger trains, a third to the south of these two, used for freight trains, which was the one on which the accident occurred; south of that, a track diverging eastwardly into the freight station of the Richmond & Danville Railroad Company to the south of the avenue, and still further south, and south even of the gas lamp which the boy had lit, a switch diverging from the east into a private coal yard. About the place of the accident, and thence westward towards Fourteenth Street, the tracks begin a curve so as to reach the Long Bridge chanrobles.com-red

Page 176 U. S. 234

at the foot of that street, and to the south, upon the inner side of this curve and about the line of Fourteenth Street, there was a switchman's box which to some slight extent obstructed the view from the east of trains coming to the avenue from the bridge.

As the boy had passed or was passing the Richmond & Danville track, and was approaching the freight track, his attention was directed to a passenger train going out on the northernmost track towards the bridge. When this had passed, he proceeded on his way across, and having stepped on the freight track, he was struck, knocked down, and injured by the tender attached to an engine drawing the work train, which he states he had not seen, although he testifies that he had looked in that direction, had listened for approaching trains, and had neither seen nor heard any.

The engineer testified that, when he was between Fourteenth Street and the place where the accident happened, he saw the form of a person moving at a brisk walk in the direction of the tracks, about fifteen feet away from them and about fifty or sixty feet in front of the train. He could not tell whether it was a man or boy. When in the neighborhood of thirty feet away, he saw he was coming so near the track that he thought probably he was going to walk on it. He then reversed the engine, applied the brake to stop, and the train was brought to a standstill within the distance of eighty or ninety feet.

The fireman testified that, when he first saw the boy he was approaching the track at a brisk walk, and was about fifteen or twenty feet from it, making his way north. He appeared to be looking across towards the moving train on the south-bound main track. He was carrying some object (a ladder). He saw him put his foot on the end of the ties, and he (witness) called the engineer's attention by "hollering."

The defense rested chiefly upon the contributory negligence of the plaintiff in crossing the track at this point without sufficient care in looking out for the approach of trains.

The trial resulted in a verdict for the plaintiff in the sum of $8,000, upon which judgment was entered. The case was carried chanrobles.com-red

Page 176 U. S. 235

by the defendant to the Court of Appeals, and the judgment of the Supreme Court affirmed. 12 D.C.App. 598. Whereupon defendant sued out a writ of error from this Court.