
    Railroad Company v. Houston.
    1. The neglect of the engineer of a locomotive 'of a railroad train to sound its whistle or ring its bell on nearing a street-crossing, does not relieve a traveller on the street from the necessity of taking ordinary precautions for his safety. Before attempting to cross- the railroad track, he is bound to use his senses, — to listen and to look, — in order to avoid any possible accident from an approaching train. If he omits fo use them, and walks thoughtlessly upon' the track, or if, using them, he sees the train coming, and, instead of waiting for it to pass, undertakes to cross the track, and in either case receives any injury, he so far contributes to it as to deprive him of any right to complain. If one chooses in such a position to take risks, he must suffer the consequences. They cannot be visited upon the railroad company. - ■
    2. To instruct upon assumed facts to which no evidence applies, is error.
    Error to the Circuit Court of the United States for the Western District of Missouri.
    This was "an action against the Chicago, Rock Island, and Pacific Railroad Company, brought under a statute of Missouri, - which subjects a corporation to a .penalty of $5,000 where death is caused by an injury resulting from. “ the negligence,.unskilfulness, or criminal intent ” of any of its officer's, agents, servants, or einployés, .whilst ’ running, conducting, or managing a locomotive,' car, or train - óf cars. In this case, the deceásed. was the wife of the plaintiff; her death was caused'by injuries inflicted by the defendant’s locomotive whilst the train was passing-through the-village of Cameron in that State. The defendant had two tracks, one'maim and the other a side track, which extended through a considerable portion of thevillage, and passed south of Second Street. The tracks were separated from each other by only a few feet. The house at which the deceased resided was' north of Second Street and.east .of Harris Street, 'which the tracks crossed.- South‘of the two tracks, and .about' ninety feet east from Harris ■ Street, was. situated, a-building belonging to the' company, called the section-house; near which was a. well of water. "The.building and well were on the company’s right of way. The train was due, on the evening when the accident occurred, at half-past six, and it entered the village from the west. • -At that time a gravel-train had been switched-on-the side track east of Harris -Street, between the" section- . house- and the depot. Freight-cars were. also Standing on the side track west of, but near, Harris Street. There was a plank--• crossing over .the. railway at Harris Street. When cars were not standing on -the tracks there was nothing to prevent one passing in á direct or nearly direct line from the.,libuse of the deceásed to the section-house, - Persons, in going to, the' well from that house, .sometimes'passed.'the rba'd at the public cross- • ing,. and sometimes on the right of way pi the company east of Harris Street.. The evidence disclosed by'the -record relating, .to the accident 'only shows that-.at about half-past-six in theeyening of the lBth^of March, Í872, the'deceased took a pail .upon, her arm and left .her house, and, it is supposed,^started for the well near the sectionrhouse.- She was se'en by'her daughter as she left, and by the engineer only a few'seconds before she was struck-by-the locomotive; It does not appear thát.she Was seen'by-any other person after deaying the hot.se-before: she was-injured..' When discovered-by the, engineer,-the locomotive was within four feet of her. "She was then.on the-main track, of the railway, about ninety feet-east of Harris'Street, and was . apparently passing from the track south. She.'was struck by the extreme end of the- beam of -timber running across the engine, known as the bumper, and was thrown into a. ditch, about ten-feet from the section-house. ' The engineer testified, thai when he discovered her it was impossible, to stop the train "so as to.avoid striking her. She diéd within-an hour after-receiving the injury.
    It .appears- from the evidence, also, that the railway was in plain view from the house of the deceased, and that a train approaching from -the west could be seen from it, an'd from any point between the-Harris Street crossing and the section-house'for a distance of three-quarters of -a. mile. At the time' of the accident- there’ was a bright moonlight;' and the headlight of the engine was burning, and the movement, "of the train created a loud noise. There was some conflict of evidence as .to the rate.,of speed at which the train was running at the time, and. whether its bell was rung and' its whistle sounded. As to - the other facts stated, the. evidence was all one way. ' .
    There was a verdict and judgment for the plaintiff', whereupon the company brought the. case. here. The substance of . the charge of the court below to the juijr is stated in the opinion . of the court.
    
      Mr. Thomas F. Withrow for the plaintiff in error.
    The court below erred in charging 'the jury upon assumed facts of which no evidence was offered. Blichigan Bank v. Fldred, 9 Wall. 544; United States v. Br citing,-20 How. 252; Goodman v. Simonds; id. 343 ; .Chandler v. Won Boeder et id., 24 id. 224; Improvement Company S. Bluhson, 14 Wall. •442, -Bliliwatukee St. Paúl Baihoay Co. v. Arms-et al., 91 U. S. 489;- Artz v. Chicago, Bock Island, $ Pacific . Bailroad- ’ Co., 34 Iowa, 154. ■ '
    Under -the evidence, the court should have instructed the-jury to find for the'defendant. The deceased was a trespasser, and the company only liable for wilful negligence. Marian v. St. Louis, Kansas City,-Northern-Bailroad Co., 64 Mo. 480;* . Philadelphia Beading Bailroad Co. v. Hummell, 44 Pa. St. 375; Finlay son v. Railroad Gojnpany, 1 Dill. 579; Illinois Central Railroad Co. v. Godfrey, 71 111. 501.
    Where it is manifest that, upon the evidence, the court should set aside á verdict against a party, it is its duty to charge the jury not to return such a verdict. Pleasants v. Fant, 22 Wall. 116 ; Improvement Company v. Munson, supra; Wilds v. Hudson River Railroad Co., 24 N. Y. 480; Lake Shore Michigan Southern Railroad Co, v. Miller, 25 Mich. 274.
    The deceased did not exercise that degree of care and. diligence required of her. . Wild v. Hudson River Railroad Co., 29 N. Y. 315; Pennsylvania Railroad Co. v. Beale, 73 Pa. St. 504; North Pennsylvania Railroad Co. v. Heileman,. 49 id. 60; Butterfield v. Western Railway Corporation, TO Allen (Mass.), 532; Wheelock v. Boston f Albany Railroad Co., 105 Mass. 203; Gaynor v. Old Colony f Newport Railroad Co., 100 id. 208; Burns v. Boston f Lowell Railroad Co., 101 id. 50; Lucas, Admit', v. Taunton f New Bedford Railroad Co., 6 Gray (Mass.), 64; Wild v. Hudson River Railroad Co., supra ; F. nst v. Hudson River Railroad Co., 39 N. Y. 61; Wilcox v. Rome f Watertown Railroad Co., id. 358; Davis v. New York Central f Hudson River Railroad Co., 47 id. 400; Wilds v. Hudson River Railroad Co., supra; Gorton v. Frie Railway Co., 45 N.> Y. 660 ; Steves v. Oswego ‡ Syracuse Railroad Co., 18 id. 422 ; Sheffield v. Rochester Syracuse Railroad Co., 21 Barb. (N. Y.) 339 ; Gonzales v. New York Harlem Railroad Co., 38 N. Y. 440; Morris f Fssex Railroad Co. v. Haslan et ■ al., 33 N. J. L. 149; Telfer v. Northern Railroad Co., 30 id. 188; Pennoyer v. Central Railroad Co., 25 id. 558; Toledo ¿• Wabash Railroad Co. v. Shuckman, Adm'r, 50 Ind. 42; Pittsburgh.,. Fort Wayne, £ Chicago Railroad Co. v. Vining, 27 id. 513 ; Lafayette S; Indianapolis' Railroad Co. v. Huffman, 28 id, 287..; Toledo Sf Wabash Railroad Co. v. Goddard, 25 id. 185; : Chicago f Rock Island Railroad Co. v. Still, 19 111. 500; Galena Chicago Union Railroad Co. v. Bill, 22 id. 265; Chicago $ Alton Railroad Co. v. Gretzner,- 46 id. 74; Chicago f Northwestern Railway Co. v. Sweeney, 52 id. 325.
    
      Mr. Jefferson Chandler, contra.
    
    
      ' ■ The charge given the jury covers every aspect of the cáse as presented by the' evidence.
    
      As to the negligence of tbe defendant.. Railroad- Company v,. Whitton, 13 Wall. 270; Maginnis v. Railroad Company,• 52 N. Y. 215; Philadelphia Railroad Co. v. Hagan et at, 47 Pa, St. 244; Chicago, Burlington, Quincy Railroad Co. v. Payne, 59 111. 634; Arte v. Chicago <f* Rock Island Railroad Co., '34 Iowa, 154; Railroad Company v. A£om£,-17 Wall. 657;' Baltimore Ohio Railroad Co. v. Trainor, 33 Md. 542; /Same V. Boteler, 38 id. 568; O'Mara v. Railroad Company, 38 N. Y. 445 ; Renwick v. New. For7c Central 'Railroad Co., 36 id. 132; Beisiegel y. Same, 34 id. 622; Richardson v. Same, 45 id. 846; White v. Phillips, 15 C. B. N. s. 245; State v. Manchester Sr Lawrence Railroad, 52 N. H. 528; Brown v. The Hannibal St. Joseph Railroad Co., 50 Mo; 461.
    As to contributory negligence. Railroad Company v. Whit-ton, supra; Railroad Company v. Stout, sup? a ; Smith v. Union Raihvay Co., 61 Mó. .588; Kennayde v. Pacific Railroad Co., 45 id. 255; Burhám y. St. Louis P. M. Railroad Co., 56 id. 338; Tabor v. Missouri Valley Railroad Co., 46 id, 353; Brown v. The Hannibal f St. Joseph Railroad Co., 50 id. 461;: Walsh v. Mississippi Valley Tr.ansportatio?i Co.', 52 id. 434 ; Arte v. Chicago, Rock Island, Pacific Railroad Co., supra; Baltimore Ohio Railroad Co. v; Trainor, supra; Same v. Fitzpatrick, 35 Md. 32; Railroad Company v. State, 36 id. 366; Brown v; Lynn, 31 Pa. St. 510; Railroad Company v. Ohendworih, 52 id. 382; Cray v. Scott, 66 id. 345; Butler v. Milwaukee $ St.. Paul Railroad Co., 28 Wis. 487 ; The Lafayette Indianapolis Railroad Co. y. Adams, 26 Ind. 76; The Bellefontaine Railroad Co. v. Hunter, 33 id. 365 ; Kerwhacker v. ‘ The Cleveland, Columbus, Cincinnati Railroad Co., 3 Obio St. 172; Same v. Terry, 8 id. 570; Macon f Western Railroad Co. v. Davis, 18 Grá. 679; Central Railroad and Banking Co. v. Davis, 19 id. 437; Daley y. Norwich <f* Worcester Railroad Co., 26 Conn. 59l; Trow v. The Vermont Central Railroad Co.,-.24 Vt. 487 ; Bridge v. The Grand Junction Railway' Co., 3 M. & W. 244; Lane v. Atlantic Works, 107 Mass. 104; Britton v. Inhabitants, fc., id. 347.
   Mr. Justice Field,

after stating the case, delivered the opinion of the court.

If the positions most advantageous for the plaintiff be assumed as correct, that the train was moving at. an unusual rate of speed, its bell not rung, and its whistle not sounded, it is still difficult to see on what ground the accident can be attributed solely to' the “ negligence, unskilfulness, or criminal intent ” of the defendant’s engineer. Had the train been moving at an ordinary rate of speed, it would have been impossible for him to stop the engine when within four feet of the deceased. And she was at the time on the private right-of-way of the company, where she had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle or ring the bell, if such were. the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employes in. these particulars was no excuse for negligence on- her part. She was bound to listen and to look, before attempting to cross' the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which -was coming. If she omitted to use them, and walked thoughtlessly upon the '-track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain -of others. If, using them, she saw.the train' coming, and yet undertook to cross the-track, instead of waiting for the train to pass, arid was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure. Upon the facts, disclosed by the undisputed evidence in the case we canriot see’ any ground for a recovery by the plaintiff. Not even a plausible pretext for the verdict can be suggested, unless we. wander from the evidence into the region of"conjecture and speculation. Under these circumstarices, the court would not have erred(had it instructed the jury, as requested, to render a. verdict for the. defendant.. . .

But the plaintiff in error specially complains that the court below gave instructions which assumed as established matters not in. proof, and thus directed the attention of the jury to subjects which might mislead their judgment. Thus, while the train coming from the west could be seen, as already stated, at any point between Harris Street crossing and the section-house for a distance of three-quarters' of a mile, the court in its charge assumed that the light from the train might have been obstructed by cars on the side track in the. vicinity of the place where the injury was inflicted, and told them that whether the view was thus obstructed was for them to determine. Again, there was no evidence of any attempt on the part of the deceased to cross the railway at the Harris Street crossing. She was not seen, as already stated, except when leaving-her house, until immediately previous to her injiiry, and then she was ninety feet -.east of the crossing. Yet -¿he court, at the request of the plaintiff, instructed the jury, as to the right of the deceased in passing the railway upon a public crossing, to rely, upon a substantial compliance by the servants of the company with the duties required by law in giving signals and warnings of approach; and as to its liability if the deceased was killed by the cars while they were running to and over a public street-crossing, without giving the required and usual signals of approach: and further instructed them, upon its own motion, that there was a controversy upon the evidence whether she crossed or attempted to cross the railway at the Harris Street crossing, or at a place not a crossing; and that this was a question of fact for their determination.

To instruct a jury upon assumed facts to which no evidence applied was error. Such instructions tended to mislead them, by withdrawing their attention from the proper points involved in the issue. Juries are sufficiently prone to indulge in conjectures, without having possible facts not in evidence suggested for their consideration. In no respect could the instructions mentioned have aided them in reaching a just conclusion.

The judgment must be reversed and the cause remanded fox a new trial; and it is So ordered. '

Mr. Justice Harlan did not sit in this case.  