Every one attempting to cross a railroad should do it with his eyes open. He should listen for the signals, notice all the signs that may be put up as warnings, and look up and down the road.[265] If, however, he is driving across, it does not appear that he is bound to get out of his carriage, or even stop for the purpose of listening.[266] If, by the use of one’s optics, the train could have been perceived, it is presumed in case of a collision, that the man hurt did not look, or did not heed, and so under ordinary circumstances, the company will not be liable.[267] Contributory negligence on the part of the afflicted excuses the railroad, whether the proper signals have been given or not, or whether the company is guilty of any other negligence or not.[268]
When a carriage-way crossed a line on the level, and the gates on the down side of the line being open, young Wanless, with some other boys, entered on the railway at the time when a train on the up side was passing, intending to cross as soon as the train had passed; meanwhile another train, on the down side, which he could have seen if he had looked, knocked him down and injured him. The Court of Queen’s Bench and the House of Lords both held that the company were guilty of negligence;[269] and that having the gate open was an intimation to the public that the line was clear. However, in New York State it was decided that a similar breach of duty only gave a right to the penalty affixed thereto, and was not evidence of negligence:[270] and that one must keep a lookout, even though no danger signal is given.[271] On the other hand, other American cases hold that one has a right to expect a company to do its duty, and give the proper notices and warnings.[272]
When on the point of crossing a track about the time a train is due one should not bundle up his head, so as to impair the sense of hearing, and then go straight ahead without looking out for the cars. If a man does so and is made mince-meat of, he has only himself to blame, even though neither bell nor whistle sounded.[273] One must not even hold his hat on with his hand on a rainy, blowy, stormy, snowy night, if he is thereby prevented seeing an approaching train.[274]
A railway company is not bound to use the same amount of care towards strangers who voluntarily and wilfully go on their track as they owe towards their passengers. This, Mr. Brand found out after he had his legs cut off while walking on the track through the city.[275] If one is unlawfully on the track, or contributes to the injury by his own carelessness or negligence, yet if the injury could have been avoided by the company’s servants using ordinary care, the railway is liable for damages.[276] An engine driver, however, is not bound to slacken speed when he sees before him, on the track, one whom he may reasonably suppose can take care of himself, until he sees that otherwise the man, woman, or child will be run over; but it is his duty to check the train so soon as he spies a very young child, or apparently helpless person in the way; if he does not do so and a collision ensues, the company will be liable for the consequences.[277]
A company is bound so to lay their line at a crossing that no injury will be done by reason of the rails being above the level of the road.[278]
Near the station and forming one way of access thereto is a bridge, said to be in a dangerous state, and across this I saw several persons hurrying, but I preferred to go round by a longer way, for although it has been decided that a company is liable for the death of a passenger through the faulty construction of a bridge erected by them for the more convenient access to the station, when there is a safe one about one hundred yards further off which the unfortunate deceased might have used,[279] still I considered discretion the better part of valor and chose keeping sound bones in a whole skin to my wife enjoying plenty and prosperity out of my life insurances. Besides, I recollected that Mr. Justice Clesby had once said, that where a passenger having full knowledge of the fact, still preferred using a dangerous way and in consequence was injured, it would seem that such a foolish body would have no ground of complaint, on the principle of the old maxim volenti non fit injuria.[280] What risks men will run to save a few minutes or a few steps; verily well saith the poet,—
“Of all the creatures that fly in the air
Swim in the sea, or tread earth so fair,
From Paris and Rome to Peru and Japan,
The most foolish beast, as I think, is man.”
On entering the station-yard I found engines puffing and snorting, backing and switching on every side, and really it was at considerable danger of my journey being summarily put an end to ere well commenced, that I made my way to the platform. This rather annoyed me and ruffled the habitual serenity of my temper (and the serenity of the most serene would be tried by a locomotive spirting and squirting out a jet of steam at one’s nether garments), for it is the duty of railway companies to take all reasonable care to keep their premises in such a state that those whom they invite there (and they invite all who may desire to be carried to any place whither the line runs) will not be unduly exposed to danger.[281] But they need not go so far as to put a hand-rail upon a stairway for unsteady folks to steady themselves with, where the stair is protected on either side by walls; and they may put brass on the steps instead of lead, although it is more slippery.[282]
I had scarcely stepped on to the platform when one foot slipped from under me, and down with a whack I descended upon the back of my head; my carpet-bag, too, fell with a crash, telling of ruin to some valuable therein contained. Up rose I in wrath and found that a strip of ice had been the cause of my discomfiture, and I registered an oath on high that the company should answer to me in solid gold for the damages I had sustained; for I knew of one Shepherd, who having fallen on a slippery place, while he tramped up and down the platform waiting for a train, recovered a goodly sum from the company; and Martin, B., said, railway servants ought to be alert during cold weather to see whether there is ice upon the platform, and to remove it, or make it safe by sanding it, or otherwise, if it is there.[283]
On I strode in ire—for I saw some girls snickering at me—to where the baggage-master was checking the luggage.