I think these extracts contain the law of the present case.

These men did

not only what prudent men usually do in such an emergency as that which. happened, but they did what the experience of railroad men and rules of prudence usually governing the running of railroads required them to do. § 21. Rule as to contributory negligence.

I have considered the case without any reference to the doctrines of contributory negligence. If a grown and responsible man had got upon that engine while in motion and suffered the injuries sustained by the boy Miles there would have been no semblance of blame attaching to the railroad officers. The fireman might have ordered him off peremptorily; and the engineer might have stopped the train as abruptly as he had chosen; all without incurring liability for fault, if they acted in good faith; and there could have been no recovery. But there are cases in which children and persons of unsound mind are considered incapable of responsibility for their acts and are not held to the consequences of them, however reckless or tortious.

If the boy in the present case had been too young to know that he was doing wrong and incurring risk of danger in getting on a running engine, then the conduct of the men on the engine could be judged wholly without reference to the boy's act, and, if they were guilty of fault, liability for damages would have been incurred. In what has been said I have treated the case in that point of view.

§ 22. When is a child capable of contributory negligence.

But, is a boy in his eighth year incapable of discerning that such an act as that of young Miles was wrong and perilous? This boy, it seems, was frequently on the street. His being often upon the street alone implies that his mother thought him capable of knowing how to keep out of danger; for they lived on the very street on which the freight trains and locomotives of the defendants habitually ran. It is not the case of a child two or three years old being run over by a train on the track of a railroad in the country, at a point distant from a depot, where trains pass at full speed and afford but short notice of their approach, as in Stell v. Receivers, 4 Hughes, 157, decided by me. Nor is it the case of a child being injured while on a street traversed by a railroad track in consequence of the train moving faster than is allowed by law, or of a car becoming detached in consequence of some omission or careless act of an employee, as in Ormsby v. Norfolk & Petersburg R. Co., 27 Gratt., 455. Here there was no surprise; no unusual speed; no act of carelessness. There was a lookout at each end of the train. The engine was properly manned and managed. The engine bell was ringing the alarm. The child was not a helpless, thoughtless, listless infant. He was not run over while unconsciously at his play. It is the case of a boy nearly eight years of age, frequently on the street, who himself got on an engine in wantonness, and who dropped off, probably of his own accord in fright, or possibly from inability to stay on a place not arranged to secure a safe footing for any one. I think it is a fair, if not a necessary, inference from the acts of this boy and his mother, that he was intelligent enough to know the nature and danger of what he was doing. In all the cases of injuries to children which I have seen in the reports they were the passive subjects of injury. Here, however, is the unusual, if not the unprecedented, case of the child being the actor on the occasion, and the originating author of the misfortune which befell him.

I think this child was capable of intelligent choice between what was wrong

and dangerous on one hand, and what was right and safe on the other, and that he intelligently chose the wrong and dangerous course.

If this be so the law is plain. The supreme court of the United States, in Railroad Co. v. Gladmon, 15 Wall., 408 (§§ 9-11, supra), say: "The rule of law in regard to the negligence of an adult, and the rule in regard to an infant is quite different. By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required; and the degree depends upon his age and knowledge. Of a child three years of age less caution would be required than of one of seven; and of a child of seven less than of one of twelve or fifteen. The caution required is according to the maturity and capacity of the child; and this is to be determined in each case by the circumstances of that case." The same proposition is repeated by the same court in Railroad Co. v. Stout, 17 Wall., 660 ($ 318-20, infra). In Lynch v. Smith, 104 Mass., 52, the court say, passim: "If the child has not acted as reasonable care adapted to the circumstances of the case would dictate, and the parent has also negligently suffered him to be there, both these facts concurring contribute to the injury, for which the defendant ought not to be required to make compensation." The child there was four years and seven months old. Plaintiff recovered. In Dowd v. Chicopee, 116 Mass., 93, it was held by the court that the plaintiff (an infant) was bound to prove that he exercised that degree of care and attention which may fairly and reasonably be expected from boys of his age and capacity. Wharton says, sections 310 and 322, that from a child diligence and care are only to be exacted in proportion to his age or capacity; and Bigelow says, page 320, that if a child be guilty of contributory negligence (supposing him capable of negligence) there can be no recovery; and that a child must exercise such care as he reasonably can, or as children of the same capacity ordinarily

exercise.

Irrespectively, however, of the law of contributory negligence as applicable to children competent to know when they are incurring danger, there can be no recovery here.

On the whole evidence and the law arising upon it, as laid down recently in the cases of Anderson v. Richmond & Danville R. Co., 31 Gratt., 812, and Railroad Co. v. Jones, 5 Otto, 443, and in my own decision in the case of Stell v. Receivers, 4 Hughes, 157, filed in the papers of that cause, I hold that the defendants in this case are not liable in damages to any amount; that an issue of chancery for a jury must be denied; and that the petition must be dismissed, but without costs against the petitioner; and I will so order.

§ 23. In general What constitutes.— Negligence is failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion. Balto. & Pot. R. Co. v. Jones,* 10 Ch. L. N., 121.

§ 24. Negligence is doing some lawful act in a careless, unusual and improper way, or omitting the performance of some act required by law to be done, by which injury results to the person or property of another. Stout v. Railroad Co.,* 11 Am. Law Reg. (N. S.), 227. See § 318-20.

§ 25. Negligence is the failure to exercise that degree of caution which a man of ordinary intelligence would exercise under the circumstances of a particular case. The degree of care

which is required of a man is measured by the circumstances by which he is surrounded, by the nature of the duties in the performance of which he is engaged. What would be ordinary care and prudence under one set of circumstances might be negligence under another set of circumstances. Gravelle v. Minneapolis, etc., R. Co.,* 3 McC., 352; 10 Fed. R., 711.

§ 26. A prima facie case of negligence is established by proof of going on a conveyance, the accident and injury. Stokes v. Saltonstall, 13 Pet., 181 (§§ 189–91).

$27. The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own. The Nitro-Glycerine Case, 15 Wall., 524.

§ 28. If an occupation or employment requires skill, the failure to exert that needful skill, either because it is not possessed or from inattention, is negligence. Stm. New World v. King, 16 How., 475.

§ 29. It is negligence to moor a vessel in the winter on the north side of New York city, with only a seven-eighths-inch chain to hold her. Especially is it negligent to leave her, so moored in a high and increasing wind, augmented to a violent gale, in which her fastening parted. Bark Lotty, Olc., 329.

§ 30. The libelant, while a passenger on the defendant steamboat, and without fault on his part, was seriously injured by the boiler of the boat exploding. The evidence touching the character of the engineer in charge when the explosion took place was conflicting, but tended to show that he was negligent and careless. The evidence showed that the boilers and machinery of the boat were in good order just before the explosion. There was some conflict in the evidence whether it was customary on the boat to test the water by the water-cocks, it being shown that it was not prudent to rely entirely upon the glass water-gauge. After the explosion a piece of the bottom of one of the boilers was fɔund in the boat, which was hard and brittle, having lost much of its tensile strength, and had been burnt by fire. The evidence showed that it was the duty of the engineer to prevent the burning of the boiler, and that when it was allowed there was a presumption of negligence. The boat was allowed to carry eighty pounds of steam, but frequently carried from eighty-two to eighty-three pounds. Held, that the explosion of the boiler and the consequent injuries to libelant were of themselves prima facie evidence of negligence; that this presumption of negligence arising from the fact of the explosion was not removed, but greatly strengthened, by the evidence in the case, and the libelant could recover for the damage he had sustained. Dunlap v. Steamboat Reliance, 2 Fed. R., 249 (§§ 192–93).

§ 31. Plaintiff's arm was resting in the window of a passenger coach, when it was struck by lumber projecting from a passing freight train belonging to another company, thereby injur ing plaintiff severely. In an action to recover damages, held, that any carelessness in loading a freight train, or in not attending to the adjustment of a load of lumber, by which an injury is done to a passenger in another train, will make the owners of the freight train responsible. Curtis v. Central R. R.,* 6 McL., 401.

§ 32. Negligence in regard to keeping goods deposited in the custom-house is essential to charge the collector in damages if they be lost, and the habitual intoxication of the collector's book-keeper is not sufficient to establish such negligence if not connected with the loss of the goods. Brissac v. Lawrence, 2 Blatch., 121.

§ 33. Drunkenness is not negligence but only evidence thereof. Holmes v. Oregon & Cal. R. Co., 6 Saw., 262 (§§ 108-127).

§ 34. Where a landing from a steamboat was made by means of a pontoon, and a passenger fell in the water and was drowned, held, the failure to put lights and guards on the pontoon, it being a dark night, was negligence. Ibid.

§ 35. Where a siding is quite near a public road much used by market people with their wagons, so as to require engineers of passing trains to give their attention to vehicles coming along the same, the railroad company is liable for injuries to a fireman resulting from a collision caused by leaving a switch open, if the jury are satisfied that but for this necessity the engineer of the passing train would have seen the signal that the switch was open, and would have been able to slow his train in time to avoid the collision, and that the stationing of a flagman at the junction of the roads would have prevented the accident, as the failure to provide a flagman under such circumstances is negligence on the part of the company. Maryland v. Balt. & Pot. R. Co.,* 1 Hughes, 337.

§ 36. On board ship — Care and management.-Libelant was one of a gang of men under a foreman about to stow the between-decks of the Helios with a cargo of “oil cake." The foreman asked the first officer of the ship if they could commence the work. He replied that everything was ready. Thereupon the men, among whom was libelant, under the direction of the foreman, proceeded to stow away the bags of oil cake as they were lowered. While engaged in this work plaintiff fell through a hatch negligently left open in a dark part of the vessel and was seriously injured. Action was brought against the vessel for damages. VOL. XXVIII - 4 49

Held, that when the first mate told the foreman the vessel was ready for him to proceed to stow the cargo, that was a virtual warranty against all such traps in the darker parts of the vessel, which could not be, or would not be, perceived in the ordinary course of stowage. The Helios,* 12 Fed. R., 732.

§ 37. While engaged in the work of stowing the between-decks of the Helios, libelant fell through a hatch negligently left open in a dark part of the vessel, and was seriously injured. It was the chain-locker hatch and had no reference to the cargo. Action for damages against the vessel. Held, that as the hatch through which libelant fell was not a hatch for the usual stowage of cargo, such as stevedores must at their peril look out for, and are presumed to know about, those in charge of the Helios had been guilty of negligence in leaving the hatch open and unprotected. Ibid.

§ 38. It is not negligence to leave a hatchway open on board ship; and where one is covered with a grate which, when stepped upon, tipped up and let deceased fall through, held, that the defendant was not liable. Dwyer v. National Steamship Co., 4 Fed. R., 495; 9 Rep., 736.

$ 39. Fumes of crude petroleum stored in a tank on a vessel escaped into an adjacent locker which, during the night and while no watchman was on duty, was entered by a thief, who lighted a match, causing an explosion of the petroleum gas, which demolished libelee's vessel, and the vessel of libelant which lay alongside. Held, that the absence of a watchman was not negligence such as would make libelee liable in damages for the destruction of libelant's lighter. Scofield v. Sommers, 9 Ben., 526.

$ 40. It is negligence for a steamboat not to carry two white lights, one forward and one aft, elevated above the deck. The Santa Claus, Olc., 429.

§ 41. On part of attorney.-To charge an attorney with damages for negligence in the management of a case damages must be shown to have been the direct result of his negligence. Spangler v. Sellers, 11 Rep., 527.

§ 42. Accident prima facie evidence of.- Fire on a vessel is not per se proof of negligence. The Buckeye, 7 Biss., 23.

§ 43. An explosion of the boiler of a railroad locomotive establishes a prima facie case of negligence on the part of the railroad company. Robinson v. New York Cent., etc., R. Co..* 9 Fed. R., 877.

§ 44. Where a defective boiler of a steamer exploded, causing the death of the husband of plaintiff, who brought suit to recover compensation, held, that an explosion proved makes a prima facie case of negligence on the part of the owners of the vessel or its officers, and such negligence was not repelled by proof that there was a snagging “which tore a hole in the hold of the boat twelve or fifteen feet aft of the forward hatch, on the port side, nearly under the forward mud-drum, and broke off the mud-drum leg, and tearing open the timbers of the hull, and causing the bows to be raised up suddenly very high and then to fall, causing the boat to be hogged amid-ships, and upsetting the boiler, by the effect and cause whereof said boiler exploded," etc. Posey v. Scoville,* 10 Fed. R., 140.

§ 45. Negligence may be inferred by a jury from the fact of the explosion of a boiler. Rose v. Stephens, etc., Co., 13 Rep., 421. See §§ 12, 13.

§ 46. Contributory negligence — What constitutes.

It is negligence for a passenger to

pass from one car to another while the train is in full motion; or to ride on the platform under such circumstances. Sawtelle v. Railway Pass. Ass. Co., 15 Blatch., 217.

§ 47. Contributory negligence is matter of defense. Holmes v. Oregon & Cal. R. Co., 6 Saw., 262 ($ 108-127).

§ 48. The burden of proving contributory negligence is on the defendant, who must make it out by a preponderance of evidence. Indianapolis, etc., R. Co. v. Horst, 3 Otto, 291 (§§ 221-27).

§ 49. A man stopped his horse and chaise near an open cellar in the street, turning the animal to one side to let some one in the vehicle. The horse began to back, the driver urged him to go forward, but the wheels of the chaise had got over the cellar wall, and horse, vehicle and man rolled into it. Held, that there was no contributory negligence, and the man could recover for his injuries from the town. Nichols v. Brunswick,* 3 Cliff., 81.

§ 50. In an action by the owner of a warehouse situated on the banks of a navigable river, against the owner of a steam-vessel for negligently setting fire to the warehouse by means of sparks proceeding from the chimney of the vessel, it is no answer to say that the plaintiff's warehouse was composed of wood, and the combustible materials ordinarily used in such building, or that it was in an exposed situation. King v. American Transportation Co.,* 1 Flip., 1.

§ 51. John Brady and a companion got on a bridge in the Chicago river when it was being opened to allow a vessel to pass through. When the bridge was being closed they proceeded toward one end of it, intending to jump off as soon as it came to the abutment on the land.

Just beside the abutment stood a group of piles intended as a "protection " of the abutment against vessels. Brady was warned by his companion to be careful, but mistook the "protection" piles for the abutment (it being night and somewhat dark), and stepped upon the piles, from which he fell into a boat, sustaining such injuries that he died. In an action by his administratrix for damages, held, that the negligence by the city of Chicago (defendant) in not providing proper lights and safeguards must be proved; that the deceased must be proved to have been free from contributory negligence, and that the jury were to estimate the damages, not exceeding the statutory limit ($5,000), taking into consideration the occupation, and probable earning capacity of the deceased. Brady v. City of Chicago,* 4 Biss., 448. § 52. The plaintiff on a dark night attempted to walk through an alley which, as the evidence showed, the city had not been in the habit of lighting. He fell into an excavation and was seriously injured. On the trial it was contended that, although the city might have been guilty of negligence in permitting the excavation, still the plaintiff could not recover, as he had been guilty of contributory negligence. Held, that the question, so far as this point was concerned, was this: Was the conduct of the plaintiff, under the circumstances of the case, that of a prudent man? Did he exercise that degree of caution which a prudent man ought to have exercised? In order to determine this, it is proper to take into consideration the condition of the alley, the fact that it was unlighted, and that he had the means of reaching his point of destination by a public highway, a lighted street. If he acted as a prudent man, then, the city having been guilty of negligence, he is entitled to recover. If he did not exercise that care and caution which a prudent man ought to have exercised, then, although the defendant has been guilty of negligence, he cannot recover. Lombard v. City of Chicago,* 4 Biss., 460.

§ 53. Where plaintiff sustained injury while standing upon the deck of a vessel, caused by a block giving way while the sail was being drawn up, occasioned by the shoulder of the swivel, through some defect, drawing out of the block, held, that the plaintiff had not been guilty of contributory negligence in so standing upon the deck when the sail was being hoisted, as no danger could reasonably be apprehended by him. And if his situation upon the deck, under the circumstances, was one of danger, it was the duty of respondent to remove him or distinctly warn him of his danger before attempting to draw up the sail. And held, also, that the respondent, being responsible for such accidents only as could be avoided by the highest degree of care for the passenger's safety, and was not an insurer, he was not responsible for plaintiff's injuries, as the block could not be apprehended to be liable to such an occurrence as the shoulder drawing out, and the defective condition of the shoulder could not have been discovered because of its being imbedded in the wood of the block and covered with an iron strap which was firmly affixed thereto. The Nederland,* 7 Fed. R., 926.

§ 54. — on part of servant.-A., who was in the employ of B., was injured by the falling of an elevator while operated by the latter. The accident was caused by the slackness of a wire rope used in connection with the elevator. A. knew that the rope was slack when B. started to ascend, but did not adjust it, although he might easily have done so, or notify B., but immediately the elevator ascended went under it to sweep, and was injured. Held, that this was such negligence on the part of A. as to preclude him from recovering damages. Hammergren v. Schurmeier, 7 Fed R., 766; 2 McC., 520.

§ 55. A servant is not guilty of contributory negligence in going into danger upon the order of his employer, given by a superior servant, unless the danger was so glaring that no prudent man would have encountered it under anybody's order. Miller v. Union Pacific R'y,* 12 Fed. R.. 600.

§ 56. A railroad employee who rides down a grade on a push-car which he knows to be unsupplied with brakes is guilty of contributory negligence, and in case of injury cannot recover against the railroad company employing him. Miller v. Union Pacific R'y Co., 2 McC., 87; 27 Int. Rev. Rec., 58.

$57. The plaintiff was employed as a laborer to help remove the cargo of the propeller of the defendant. While plaintiff was at work at 4 o'clock in the morning, he fell through a hatchway which had been left open. The action was brought against the defendant company to recover damages for the injuries received, plaintiff alleging that it was the duty of the master and mates of the vessel to use due care and diligence for the protection of the plaintiff from injury, and that they failed to do so. Held, that as there was no substantive allegation of negligence on the part of defendant itself in not providing a safe boat or one constructed in the usual manner, the case must be considered as standing solely on the allegations as to the negligence of the master and mates. Held, also, that the plaintiff must be presumed to possess the usual knowledge in regard to the construction of steamboats, and he certainly ought to have known the hatch was there; that it was as much his duty to see that the hatch was closed, or properly protected if open, as it was the captain's or mate's. Malone v. Transportation Co.,* 5 Biss., 315.