
    JAMES H. GRANT vs. BALTIMORE AND POTOMAC RAILROAD COMPANY.
    At Law. —
    No. 10361.
    The plaintiff was on his way to his p>lace of employment along Ninth street, in the city of Washington. The defendant’s train of freight-cars was lying along Maryland avenue, between Seventh and Eighth streets nearly to Tenth, and obstructing the cross-walk at its intersection with Ninth. The train had an engine attached at the west end. The plaintiff attempted to pass over said train between two of the cars, and, while so crossing, the train was started without any signal or warning, throwing the plaintiff so that Ms foot was caught between the bull-noses and crashed. The avenue was impassable except at the street crossings, and the plaintiff could not have passed to the opposite side without going ont of his way a distance of two squares. It was Held—
    l. That it was the duty of tho defendant to give notice of some kind before putting the train in motion;
    II. That it was correct to submit to the consideration of the jury whether the defendant had been in the habit of obstructing Ninth street, and whether foot-men had been in the habit of passing under or over the trains in presence of defendant’s employés, and with their acquiescence, when the trains were in this condition.
    III, The defendant is not relieved from the exercise of ordinary care, when his negligence is the direct and proximate cause of the injury.
    STATEMENT OR THE CASE.
    This cause is brought to recover damages sustained by the plaintiff by reason of a personaL injury sustained by him while.passing over or across a freight-train of the defendant at or near the intersection of Maryland avenue and Ninth, street, in the city of Washington.
    Upon the trial of this cause, the plaintiff offered evidence tending to prove that he was a journeyman carpenter by trade; that he resided on D street, between Ninth and Tenth streets southwest, in this city; thac, on the morning of the 13th of September, 1872, be started from Ms house at 6.20 o’clock a. m. to go to his work in the northern part of the city; that from his door he saw defendant’s train of freight-cars lying along Maryland avenue; that his route was by way of Ninth street; that, on coming up Ninth street, the train extended from between Seventh and Eighth streets nearly to Tenth street; that it was standing still, with an engine attached at the west end of the train; that, at the crossing on Ninth street, he attempted to pass over said train, between two of the cars, when the train, without any signal or warning of any kind, suddenly shoved back, throwing him so that his foot was caught between the bull-noses of the couplings of the cars and was badly crushed, rendering amputation of two of his toes necessary; that he was confined to his house under medical attendance for several months; that since the accident he had been unable to pursue his occupation as he had done previously, and would in the future be unable so to pursue his said trade; that said train remained across said Ninth street for about twenty minutes after he had been injured; that Maryland avenue had been dug up by the board of public works, and left in that condition; that it had rained the night before, and was impassable, except at those streets where there were crossings, on account of the mud; that there were crossings at Ninth street and Seventh street, but none at Eighth street; that, to have gone around said train, he would have gone down to Seventh street, a distance of two squares out of his way, unless he crossed in the mud. The plaintiff then offered evidence tending to prove that, long prior to the time of said accident, the defendant, with the knowledge of the plaintiff, had been constantly in the habit of obstructing said Ninth street with their trains, with the engines attached, for as long as half an hour at a time, and persons having occasion to cross said avenue at said Ninth street had theretofore been in the constant habit of passing under and over defendant’s cars, in the presence of defendant’s employés in charge of the trains, with their knowledge, and without their protest; to the admissibility of which evidence the defendant objected as irrelevant; but the court admitted the same, stating that while the action of the company in obstructing the streets does not constitute the predicate of an unjustifiable venture on the part of the plaintiff, yet it forms a part of the case. Whereupon the defendant, by its counsel, excepted to the ruling of the court admitting said evidence.
    The plaintiff also offered in evidence the act of the legislative assembly, approved August 23, 1871, requiring that no train of railroad-cars shall obstruct or encumber any ■cross-walk for a longer period than is absolutely necessary, -and there rested his case.
    The defendant then, on its part, gave evidence tending to ■show that, at the time the plaintiff got upon the freight-train •of the defendant, the said train was moving slowly forward and had just reached and partly passed the intersection of Maryland avenue and Ninth street, thus forming a continuous train on Maryland avenue, and that said train was then in process of stopping, and did stop almost instantaneously with the plaintiff’s getting upon it, by the engineer shutting off steam and by the brakesman putting down the brake on the end of the last car; and that said train was on an up-grade, and that by said stoppage, by the action of the law of gravitation, the bull-noses of all the cars were brought together, and the injury was thus inflicted upon the plaintiff; -and, further, that the foot of the plaintiff could not have gotten between the bull-noses of the cars if the plaintiff' had gotten upon the train of defendant after it had stopped, for the reason that the bull-noses were brought closely together upon the stoppage of the train, and so remained until the train again started forward, although, in the opinion of one of the witnesses produced on the part of the defendant, the bull-noses would not instantly close together, but the engine would hold the train for a time until the power was spent in the steam-chest, and the force of gravitation overcame the propelling force in the steam-chest remaining after the steam was shut off; and, further, the acts of Congress, approved February 5, 1867, chap. 29, volume 14, 387, and the act approved March IS, 1869, volume 16,1, of the Statutes, and the act approved J une 21, 1870, volume 16, Statutes at Large, 161; and also the ordinance of the corporation -of'Washington, as contained in the 6th section, dated May 24, 1866, to show that the defendant had the right to use the depot situated on the corner of Maryland avenue and Ninth street and the right to use Maryland avenue; and in the exercise of the right to stop its trains for a reasonable-time at said depot in the usual pursuit of its business ; and that, on the morning when the accident occurred, it was in the usual pursuit of its business, and had not delayed the public unreasonably or unnecessarily; and, further, that the defendant, prior to the time of this accident, by its printed orders and rules issued to the conductors in charge of its freight-trains, required that the crossings on the public highway should not be obstructed unreasonably; and also that, the superintendent of the defendant’s road, Edmund L. Dubarry, and the general agent in charge of the freight department, O. A. Stevens, gave ■ similar verbal orders to the employés in charge of its freight-trains, and that the employés of defendant had obeyed said orders; and that the longest period of time for which the crossings on Maryland avenue had been obstructed by the trains of the defendant was between five and six minutes, unless the obstruction was continued on account of some accident to defendant’s train which prevented its being moved without delay; and that the superintendent of the defendant’s road, Edmund L Dubarry, had requested the police to inform him of any un° reasonable obstruction of the crossings upon Maryland avenue by the trains of the defendant.
    And, further, that the superintendent of defendant, Edmund L. Dubarry, and the general agent in charge of its freight department, O. A. Stevens, prior to the time of the accident, had directed the conductors and employés in charge of its freight-trains, not to allow persons to pass across its trains while the same were in motion, or while an engine-was attached thereto, and that said superintendent, Edmund L. Dubarry, and general agent, O. A. Stevens, had personally, upon various occasions, warned persons against, and prevented them from, passing over or under the trains of defendant while in motion or with an engine attached; and that Carroll, the conductor of the train that inflicted the injury upon the plaintiff, had upon several occasions warned persons against getting upon the trains under his charge while in motion and before they stopped, and also against crossing them while still, but with an engiue attached. Arid, further, proved that the employé, Simmons, was not in. charge of the trains of the defendant, bat was an employe in the freight-office, attending to the receiving and delivery of freights; that after the train came to a stop subsequently to the plaintiff getting on the same, and prior to his receiving the injury, the engineer did not reverse the engine, or do anything to give the engine a forward or backward movement, and that, as soon as plaintiff’s foot was caught between the bull-noses, a signal was given to the engineer to move forward so as to open the bull-noses and extricate the plaintiff’s foot, and that he did so immediately upon getting the signal.
    And here the defendant rested.
    And, the evidence being closed, the counsel.for the defendant moved the court to strike out and exclude, as not admissible on the issue in this cause, all the testimony given on the trial, both by the plaintiff and defendant, in relation to the habit of the defendant as regards obstructing by its trains the crossings on Maryland avenue, and the habit of other persons in passing over or under the trains when so obstructing the crossing; and to instruct the jury that, in making up their verdict, they should not consider said testimony, but confine themselves to the evidence of what occurred on the morning of the accident, before and up to the time that the injury was received by plaintiff; but the justice ruled that the evidence referred to in said motion was good and admissible, and left the consideration thereof to the jury; whereupon the counsel for the defendant excepted.
    The court, at the request of plaintiff’s counsel, instructed the jury:
    “If the jury find from the testimony that the train of the defendant was lying across Ninth street; that the plaintiff got on the train when it was standing still; that the injury to the plaintiff was occasioned by suddenly starting the train either backward or forward; that there was no notice given of the movement of the train either by ringing a bell, blowing a whistle, or otherwise, and that theretofore the defendant had been in the habit of obstructing Ninth street; that footmen had theretofore been in the habit of passing under and over the cars in the presence of the employés of the defendant having charge of the train with their acquiescence and without their protest — if you find these conclusions concurring, the defendant is liable. These facts concurring make it the duty of the defendant to give notice of some kind before moving.”
    To which the defendant, by its counsel, excepted.
    A series of nine instructions were submitted by the defendant and allowed by the court, covering the questions of contributory negligence, ordinary care, and the right of the defendant to occupy the street with trains of railroad-cars.
    The verdict was in favor of the plaintiff, and the cause is now here upon the foregoing exceptions.
    W. F. Mattingly and R. T. Merrick for plaintiff.
    All that the court decided was that if the defendant was in the habit of obstructing the street, and that persons with the knowledge and acquiescence of the defendant’s employés having charge of its trains were in the habit of passing’ over and under its trains while in a state of rest, then it was obligatory upon the defendant before moving a train to give notice of it in some way. 36 Md., 366, Baltimore and Ohio Railroad Company vs. The State. This was the case of a man walking on the track. 50 Mo., 461, Brown vs. Hannibal and Saint Joseph Railroad Company. In this case the plaintiff attempted to pass around a train obstructing a crossing. Same case, in 11 Am. Rep., 420; 65 Penn. St., 269, Kay vs. Pennsylvania Railroad Company, shows that evidence of persons being in the habit of crossing the track with the acquiescence of the company is admissible to throw the duty of exercising’ due care on the company, and to require it to give notice to avoid liability. 58 N. Y., 56, Sprong vs. B. and A. R. R. Co. Acquiescence of officers on the train in an act on previous occasions admissible in evidence. 1 N. Y. Sup. Ct., 297. Must give signal before starting. 17 Wall., 657; 8. and P. R. R. Co. vs. Stout.
    
    
      Daniel Clarke, of Baltimore, and Henry W. Garnett for defendants, among several other points and authorities, presented the following:
    The evidence being closed, the court, at the request of the plaintiff’s counsel, instructed the jury in the language of the instruction ; to the granting of which instruction the defend, ant excepted. It will be insisted that this instruction is erroneous. The instruction, upon the contingency that the jury shall find certain facts or conclusions, as matter of law, directs them to find for the plaintiff. It instructs the jury that the defendant is liable, although they may find that the plaintiff got in the train when it was standing still — (an engine being attached to the same, entering, of course, into the case, as the whole evidence shows this to have been the condition of the train) — and was injured by the train being suddenly started either backward or forward. The u conclusions concurring ” on this state of facts, which render the defendant liable, are, according to the instructions: 1. That there was no notice given of the movement of the train either by ringing a bell, blowing a, whistle, or otherwise. 2. That theretofore the defendant had been in the habit of obstructing Ninth street. 3. That footmen had theretofore been in the habit of passing under and over the cars in the presence of the employés of the defendant having charge of the train, with their acquiescence, and without their protest.
    It will be insisted, hirst, that the act of the plaintiff in getting on the train while it was standing still, but with an engine attached, and liable to move at any time, as shown by the proof, of itself shows such contributory negligence as takes away his right of recovery. Lewis vs. Baltimore and Ohio Railroad Company, 38 Md., 588 ; Chicago, Burlington and Quincy Railroad Company vs. Durey, administratrix, 26 Ills., 255. It is insisted that there is nothing in the evidence which shows that the absence or presence of either one of the three concurring conclusions would have prevented the injury to the plaintiff or that their concurrence caused the injury. There is no evidence to show that if the defendant had given notice of the movement of the train, either by ringing a bell, blowing a whistle, or otherwise, that the accident would not have occurred.
    The plaintiff does not testify that he got on the train as a consequence of no notice being given, or if notice had been given, that he would not have been on the train passing across the same. And yet the want of this notice of some kind before moving is the chief foundation of the defendant’s liability according to the instruction of the court.
    
      Again, how did the fact that theretofore the defendant had, been in the habit of obstructing’ Ninth street contribute to,, occasion, or cause the injury to the plaintiff? How, also, did the fact that footmen had been theretofore in the habit of passing under and over the cars in the presence of the employés of the defendant having charge of the train, with their acquiescence, and without their protest, occasion or cause this injury to this plaintiff? If it could do so in any way, it would be only upon the contingency that this was brought home to the knowledge of the illaintiff, and the prayer omits-this fact entirely.
    It is insisted that the portions of the prayer which put to the jury to find “ that the defendant had been in the habit of obstructing Ninth street; that footmen had theretofore been in the habit of passing under and over the cars in the presence of the employés of the defendant having charge of the train, with their acquiescence, and without their protest,” are wholly irrelevant so far as fixing the liability of the defendant, unless the jury were required to go further and find that these facts were known to the plaintiff, and amounted to a license or invitation to the plaintiff to get upon the cars, coupled with the obligation on the part of the defendant to give notice of some kind before moving, and that the injury resulted from the failure or neglect of the defendant to give notice. Chicago, Burlington and Quincy Railroad Company vs. Lee, 16 Ills., 501.
    It is further insisted that the facts of this case show that the plaintiff was guilty of an act of contributory negligence in getting upon the cars of the defendant when the same had an engine attached to the train and was liable to move at any time, and that the concurring conclusions set forth in the court’s instructions are not such as are shown to have caused or produced the injury to the plaintiff so as to render the defendant liable, notwithstanding the contributory negligence of the plaintiff. Chicago, Burlington and Quincy .Railroad Company vs. Bee, 60 Ills., 501.
    The court should at least have left it to the jury to find whether the failure to give notice of some kind before moving caused the injury to the plaintiff, and not instructed the jury, as an absolute proposition of law, that the failure to give notice of some kind before moving, with the other concurring ■conclusions, rendered the defendant liable. Eaton vs. Erie Railroad Company, 51 N. Y., 541; Havens vs. Erie Railroad Company, 41 N. Y., 296; Galena and Chicago Union Railroad Company vs. Loomis, 13 Ills., 548; McMahon vs. Northern Central Railroad Company, 39 Md., 438, 453. A failure to .give a signal by sounding a bell or whistle is not of itself evidence of negligence. Galena and Chicago Railroad Company vs. Bill, 22 Ills., 264; Spencer vs. Illinois Central Railroad Company, 29 Iowa, 55; Artz vs. Chicago, Rock Island and Pacific Railroad Company, 34 Iowa, 153. It should have been left to the jury to say whether the omission to give any signal was negligence which entitled the plaintiff to recover. Barton vs. New York Central and Hudson Railroad Company, 1 N. Y. Supreme Court, 297; Steves vs. Oswego and Syracuse Railroad Company, 18 N. Y., 422.
    That the defendant, previous to this occasion, had been in the habit of obstructing Ninth street; and that foot-men had theretofore been in the habit of passing under and over the •cars in the presence of the employés of the defendant having •charge of the train, with their acquiescence and without their protest, did not amount to an invitation to pass across the train and render the defendant liable, because no notice was given before moving. See Bancroft vs. Railroad Company, 97 Mass., 275; Sweeny vs. Old Colony and Newport Railroad Company, 10 Allen, 368; Bolch vs. Smith, 31 Law Journal, (Exch.,) 201; Homesell vs. Smith, 20 Law Journal, (Common Pleas,) 203; Southcote vs. Stanley, 25 Law Journal, (Exch.,) 339; Sullivan vs. Waters, 11 Irish Law, N. S., 460 ; Hickey vs. Boston and Lowell Railroad, 11 Allen.
    Custom, accompanied by mere permission, does not create a right to do a negligent act. Hickey vs. Boston and Lowell Railroad Company, 14 Allen. In this case, the plaintiff was standing where it was customary for passengers to stand, under similar circumstances, with the permission of the conductor and brakesman in charge of the train, and without objection from the superintendent and directors, who knew of the practice. If custom and permission could not constitute a right in that case, is it possible that they could constitute any right in the case at bar ? And was it not error in his honor holding the circuit court to admit any evidence upon that point ? And especially do we respectfully submit that his honor committed error in his instruction to the jury. If habit can give the trespassers any right in these cases, when can this habit be said to be so established that the right commences ?
    In the case of Lewis vs. Baltimore and Ohio Railroad Company, 38 Maryland, folio 588, the plaintiff, upon arriving at the crossing of a public street, found it blocked by defendant’s train, and, while waiting for the crossing to be cleared, saw several persons cross over defendant’s train in safety, but upon attempting so to do received the injury complained of. In reviewing this case, which was taken from the jury by the court below, the court of appeals said: “For such negligence, it is no excuse to say that he had seen five or six of the crowd of persons there collected make a like attempt without injury, and especially in the face of the admonition given by the policeman, who in the very presence of the plaintiff had prevented two women from exposing themselves to a danger so imminent.” It is hard to distinguish between this case and the one at bar. Further on, in the same opinion it is said: “The fact that a train of cars is unlawfully blocking a crossing is no reason why a person should throw himself under the wheels or recklessly expose himself to danger. He is bound, notwithstanding such acts of negligence, to exercise proper care and prudence, and if he fails to do so, he cannot hold another responsible for an injury which may be fairly traced to his own negligence.”
    If, therefore, as is shown by'the record to be the fact, the plaintiff was a trespasser upon the property of this defendant, and availing himself of what was at best a bare license, it was error in the court to admit the evidence as to the custom of the plaintiff and his neighbors, and also of the defendant on other occasions, for the reason that the said custom, whatever it might have been, could and did not give the plaintiff any right upon the property of the defendant which would have imposed extraordinary care upon the defendant, and that the said evidence so erroneously admitted by his honor may have, and probably did influence the minds of the jurors; and his honor also erred in instruction to the jury, in instructing them that such custom, if it existed, could impose extraordinary care upon the defendant.
   Mr. Justice MacArthur

delivered the opinion of the court:

The responsibility of a railway company to a third person is quite distinguishable from that which it owes to a passenger. In the case of the latter, the very highest care and the greatest possible diligence are to be exercised for his safety, while toward a stranger ordinary care, adapted to the circumstauces of the case, is all that the law requires. The discretion which would be exercised in running a train of cars attached to a locomotive when passing through the open country would be very different from the prudence to be employed in traversing the streets of a crowded city. Hence, it is their duty to check their speed, to ring bells, or sound a whistle, and to employ generally the means at their command for the purpose of warning persons using the streets of the danger. A person driving a carriage or a wagon would not be required to use such method of signaling the public. What would be extraordinary care in their case would amount only to ordinary diligence upon the part of a company which wielded such powerful machinery as constitutes a running train of cars. These precautions are so> obviously necessary, that railroad corporations have required them to be used by their own regulations, and in many cases the statute makes them imperative. Indeed, the safety of the public demands that they should be regarded as matters of ordinary care where the danger is so great and the means of avoiding it so easy of exercise. We think, therefore, that the judge who tried the cause was justified in giving the instruction to the jury asked for by the plaintiff’s counsel, that if they should find there was no notice given of the movement of the train either by ringing a bell, blowing a whistle^ or otherwise, and should also find the other facts referred to in the instruction, the defendant would be liable, as these facts made it the duty of the defendant to give notice of some kind before moving. Another of the circumstances to be found by the jury in order to impose liability ■was,“ that the plaintiff got on the train when it was standing still; that the injury to the plaintiff was occasioned by suddenly starting the train either backward or forward.” If the train was standing upon the avenue where it is crossed by Ninth street, it surely was the duty of the defendant, in the exercise of ordinary care, to give some signal when it was put in motion, and if no such notice was given, the omission was clearly negligence in law. The questions were left to the consideration of the jury upon the evidence whether the defendant had been in the habit of obstructing Ninth street, and whether foot men had theretofore been in the habit of passing under or over the cars in the presence of defendant’s employés, and with their acquiescence. These are circumstances which would probably and naturally influence the conduct of persons in the habit, as was the plaintiff, of using the street at the point where the accident occurred. The plaintiff started from his house in the morning to go to his employment as a journeyman carpenter, and found the train of freight-cars lying along Maryland avenue. This avenue had been dug up, and rendered impassable for the distance of two blocks, except at the crossing, by a rain the night previous. Now, if the parties having occasion to use Ninth street had been accustomed to pass over the cars when they obstructed the -street, and especially when there was no other way, except at the crossings, on account of the mud, it was certainly an important circumstance as affecting both the responsibility and the conduct of parties. The plaintiff’s testimony, tended to prove that the company were constantly in the habit of obstructing Ninth street with their trains, having engines attached thereto, for as long as half an hour at a time, and that on this occasion the train remained across said street for about twenty minutes after the defendant was injured. It is true that defendant had the right to run their trains upon the avenue, and it may be to stop them there for such reasonable length of time as might be necessary for the business of the road. This of course interfered with the free passage way of a public thoroughfare. It is equally clear that plaintiff could not have crossed the avenue without going considerably out of the way, owing to its impassable condition at the time. The circumstances of inconvenience, therefore, which surrounded this particular case might well induce the company to allow parties to pass freely over the platform of their trains thus situated. I am aware that the testimony of the defendant contradicted that of the plaiutiff on this subject, but the learned judge who tried the case left the fact to be determined by the jury, saying, in substance, that if they •determined that fact in favor of the plaiutiff, the defendant would then be liable. After attentive consideration, we are of opinion that the province of the jury was not infringed, and that the rule of law was properly expressed in the plaintiffs instruction. We have been cited to the case of Lewis vs. Baltimore and Ohio Railroad Company, 38 Md., 551; but the case at bar is unlike that one in several important particulars. There was no testimony in that case as to a custom having prevailed by which the railroad permitted foot-men to go over the cars in order to reach the other side of the street without objection on the part of the employes of the .road. In that case, also, the party injured attempted to cross, •although it was dark, and a policeman was stationed there to prevent any one passing over in that manner. We are of opinion that it is not an authority in point, although some of the circumstances are similar.

It was also said on the argument that the plaintiff was a trespasser on the defendant’s cars, and is, therefore, entitled to no redress; but if it be true, and the j ury have found that it is true, that the defendant permitted persons to pass over their trains under the same circumstances as existed in this instance, the plaintiff can hardly be regarded as a trespasser; and even if we assume that he had no right to be there, yet this would not absolve the defendant from the exercise of ordinary care. We do not forget the doctrine that a plaintiff cannot recover for an injury unless he was himself free from fault, but it would be a serious injustice to apply this rule if the party had done no more than act in conformity to a custom or habit which had grown up with the acquiescence of the defendant. The act of the plaintiff in attempting to pass -over the cars, at most, was only a technical trespass, so that, even if the jury had found the facts to be as claimed by the plaintiff, it is doubtful whether he would be»precluded from a right to recover, as the conduct of defendant in neglecting the ordinary precautions at the time of starting the train was the direct and proximate cause of the injury. In Isbell vs. New York and New Haven Railroad Company, 27 Conn., 393, S. C., 2 Redf. Railway Cases, 474, the court held the doctrine that the negligence on the part of the plaintiff which will preclude his recovering damages for the -negligence of the defendant must be the actual proximate cause, and not a mere technical wrong, contributing either incidentally or remotely, or not at all, toward the injury. The decisions bearing upon this doctrine are fully discussed in the case last cited, and Mr. Redfield, in an elaborate note to it, maintains the same ground, and also reviews the law in regard to the effect of contributory negligence on the part of the plaintiff-in actions of this description. We, however, have said enough to indicate our views, and conclude by saying that the judgment below ought to be affirmed.  