the same and of assuming the liabilities of the transferrer in respect thereto, is plainly deducible from the national banking act itself. But if any doubt could exist on this subject, it would be removed by the judicial decisions construing the provisions of the banking act in this regard and similar provisions in other legislative enactments.

In The Bank v. Lanier, 11 Wall., 369, arising under the national banking act, it was expressly held by the Supreme Court of the United States that the owner of shares in a national bank may transfer the same by an assignment and delivery of the certificates, and the transferee may compel the bank to register the transfer on its books. The learned justice who delivered the opinion of the court in that case after speaking of the additional value given to this species of property by reason of its tranferable quality, says: "Whoever in good faith buys the stock and produces to the corporation the certificates, regularly assigned, with power to transfer, is entitled to have the stock transferred," even if the transferrer is the debtor of the bank. The duty of the bank to make the transfer in such a case is held to be a corporate duty, in respect of which the bank is liable for the wrongful acts and omissions of its officers,

It was urged in the argument at the bar in the present case that the provision that the shares should be transferable on the books of the bank" gave the directors of the bank the power to approve or disapprove of any given transfer of shares, and to register or refuse to register the same, as in their judgment the interests of the bank or of the other stock-holders might require. Such, however, is not the object of this very common provision in charters and acts of incorporation. The purpose of requiring a transfer on the books of the bank is that the bank may know who are the shareholders, and as such entitled to vote, receive dividends, etc., and for the protection of bona fide purchasers of the shares and of creditors and persons dealing with the bank. That such is the meaning of the provision in question, and that it does not restrict the right of the owner to transfer his stock or clothe the corporation with the power to refuse to register bona fide transfers is settled beyond all question by numerous decisions in the English and the federal and state courts. Black v. Zacharie, 3 How. 483; Union Bank v. Laird, 2 Wheat. 390; Webster v. Upton, 1 Otto, 65, 71; Bank v. Lanier, II Wal. 369; St. Louis, etc., Ins. Co. v. Goodfellow, 9 Mo. 149; Chouteau Spring Co. v. Harris, 20 Mo. 382; Moore v. Bank, 52 Mo. 377; Hill v. Pine River Bank, 45 N. H. 300; Re London, etc., Tel. Co. Law Rep. 9 Eq. 653.

The general subject of the right to transfer, shares has been much discussed in the cases in England arising under the various Companies' Acts. Some of these acts give the directors express power to refuse to assent to or register transfers of shares, and some do not. The result of the English cases is that the directors can not refuse to register a bona fide transfer of stock unless the power to do so is expressly given in the act of parliament or the articles of association. The leading authority on this point is Weston's case, Law Rep. 4 Ch. Ap

peals, 20. See also Gilbert's case, Law Rep. 5 Ch. 559. In Weston's case, Law Rep. 4 Ch. 20, Lord Justice Page Wood, in considering this subject, said:

"I have always understood that many persons enter these companies for the very reason that they are not like ordinary partnerships, but that they are partnerships from which members can retire at once, and free themselves from responsibilty at any time they please by going into the market and disposing of and transferring their shares without the consent of directors or shareholders or anybody, provided only it is a bona fide transaction; by which I mean an out-and-out disposal of the property, without retaining any interest in them. But if it is desired by a company that such unlimited power of assignment shall not exist, then a clause is inserted in the articles, by which the directors have powers of rejection of members. Shortridge v. Bosanquet, 16 Beav. 84: which went to the House of Lords, was a case of that kind. In the absence of any such restriction, I think it is perfectly plain that the companies act, 1862, in the 22d section, gives a power of transferring shares. I think there is no such power given to the shareholders, and that the shares are at once transferable under the statute, unless something is found to the contrary in the articles of association. It would be a very serious thing for the shareholders in one of these companies to be told that their shares, the whole value of which consists in their being marketable and passing freely from hand to hand, are to be subject to a clause of restriction which they do not find in the articles. And, I may add, that if we were to hold that such powers were vested in the directors, it would be a very serious thing for them, and would impose upon them much more onerous duties than any which are really imposed upon them by this clause." In Gilbert's case, Law Rep. 5 Ch. Appeals, 559, 565, Lord Justice Giffard said: "I agree that, according to Weston's case, and according to what I have always considered to be the law, there is no inherent power in the directors, apart from the provisions of the articles of association, to refuse to register a proper and valid transfer, if that proper and valid transfer is submitted to them."

And although there is express power to the directors to refuse to assent to or register a transfer, this power must be exercised in a reasonable manner and bona fide, and they must have some valid and lawful reason for refusing to register. Exparte Penny, Law Rep., 8 Ch, App. 446; Nation's case, Law Rep. 3 Eq. 77; Fyfe's case, Law Rep. 9 Eq. 589; Allen's case, Law Rep. 16 Eq. 449; Ib., 559; Weston's case, Law Rep. 5 Ch. 614, 620; Ex parte Elliott, Law Rep. 2 Ch. Div. 104. In a case where the directors had power to approve or reject the transfer of shares, one of the vice-chancellors, speaking of the right of a share-owner to dispose of his shares, said: “One of the incidents (of this class of property) is the right to transfer it-a right to make a present and complete transfer of it. It is the duty of the directors to receive and register the transfer, or to

enhances the value of the stock. Although neither in form nor character negotiable paper, they (the share certificates) approximate to it as nearly as possible."

It would be a new, and, I apprehend, a startling doctrine o proclaim that the holder of shares in a corporation, where the only provision on the subject of transfers was one requiring them to be made on its books, had no right to make a complete and effectual disposition of them without the consent of the directors or other shareholders. No such power over the right of transfer has been given in the national banking act. Such a power is so capable of abuse and so foreign to all received notions, and the universal practice and mode of dealing in these stocks, that it can not, in the absence of legislative expression, be held to exist.

For these reasons and upon these authorities the proposition must be considered as established that a shareowner in a national bank, while it is a going concern, has the absolute right, in the absence of frand, to make a bona fide and actual sale and transfer of his shares at any time to any person capable in law of purchasing and holding the same, and of assuming the transferrer's liabilities in respect thereto, and that this right is not, in such cases, subject to the control of the directors or other stockholders.

Our second proposition is that Laflin did make a complete and effectual sale and transfer of his shares to James H. Britton individually, and that as to Laflin it was not a sale and transfer of the stock to the bank. Laflin sold through the broker or agent, Keleher; and the latter dealt with Britton as an individual, without knowledge that Britton intended to turn over the shares to the bank, and he received in payment for the shares the personal check of Mr. Britton, and delivered to him at the same time the certificates of stock assigned in blank, with powers of attorney in blank thereon indorsed, authorizing the transfer of the shares on the books of the bank.

As between Laflin and Britton, the transfer was complete by the sale, assignment.delivery and payment, without registration, and this whether it gave Britton before the registration the legal title to the shares as against Laflin or only a complete equitable title. Union Bank v. Laird, 2 Wheat. 390; Webster v. Upton, 1 Otto, 65, 71; Black v. Zacharie, 3 How. 483; Bank v. Lanier, 11 Wall. 369, 377; Choteau Spring Co. v. Harris, 20 Mo. 382; Moore v. Bank, 52 Mo. 377; N. Y., etc., R. R. Co. v. Schuyler, 34 N. Y. 80; McNeill v Bank, 46 N. Y. 325; Grimes v. Howe, 49 N. Y. 17, 22; Bank of Utica v. Smalley, 2 Cowen, 778; Bank of Commerce's Appeal, 73 Pa. St. 59; Ross v. S. W. R. R. Co., 53 Ga. 514; Hoppin v. Buffum, 9 Rhode Island, 513; Bank of America v. McNeil, 10 Bush (Ky.), 54; Davis v.

Lee, 26 Miss. 505; German, etc., Ass. v. Sendemeyer, 50 Pa. St. 67; Leavett v. Fisher, 4 Duer, 1. That the transaction is complete as between seller and purchaser of stock by the assignment and delivery of the certificate assigned with power to transfer and the receipt of payment is fully shown by these cases, and is also evident from the fact that thereupon the each of them has the legal right to have a transfer of the shares made on the books of the bank. The seller of the shares, for his protection against creditors of the bank in case of insolvency, may transfer the same on the books to the vendee, the purchase being the authority to the seller to do this. Webster v. Upton, 1 Otto, 65, 71.

And for the like reason the seller of shares who has done all that is necessary to enable the purchaser to transfer the shares on the books may file a bill to compel the vendee to record the transfer. Shaw v. Fisher, 2 DeGex and S. 11; Cheale v. Kenward, 3 DeGex and J. 27; Wynne v. Price, 3 DeGex and S. 310; Webster v. Upton, 1 Otto, 65, 71.

So, also, the vendee of the shares, where the vendor has done all that is necessary to enable the transfer to be registered, may for his own protection compei the bank to register the transfer, or hold it liable in damages for a wrongful refusal. Bank v. Lanier, 11 Wall, 369; Hill v. Pine River Bank, 45 N. H. 300; Bank of Utica v. Smalley, 2 Cowen, 778; Commercial Bank v. Kortright, 22 Wend. 348.

The delivery of the share certificates assigned in blank and blank transfers will entitle the bona fide vendee to have the transfer registered. "Whoever in good faith buys the stock and produces to the corporation the certificates regularly assigned with power to transfer, is entitled to have the stock transferred" per Davis, J., Bank v. Lanier, 11 Wall, 369, unless there exists some valid and legal reason in favor of the bank for refusing to register the transfer, as in the case of the Union Bank v. Laird, 2 Wheat. 390. In that case the charter gave the bank a lien for the shareholders' debt to it, and provided that "stock shall be transferable only on the books of the bank." Under these circumstances the bank was held to have a lien on the shares to secure the shareowner's indebtedness to it, which was superior to the right of the unregistered transferee of the stock. Black v. Zacharie, 3 How. 483.

If the foregoing propositions are sound, Britton against Laflin had the right immediately on delivery and payment to register the transfer of the shares, and had the power to fill up the blank transfers and have the transfer registered. Re Tahite Cotton Co., Law Rep. 17 Eq. 273; German Union Ass. v. Sendmeyer, 50 Pa. St. 67; Leavitt v. Fisher, 4 Duer, 1; Commercial Bank v. Kortright, 22 Wend. 348. Nothing more was required to be done by Laflin or needed to enable Britton to make his title complete. And Laflin could have compelled Bricton to register the transfer. If Laflin had proceeded against Britton he could have forced him to have accepted a transfer of the stock in his own name or in the name of some person capable of taking and holding the same. Maxied v. Payne, Law Rep. 6 Exch. 132. It would have been no answer to Laflin for Britton

to have said "I bought this stock, not for myself, but for the bank." Laflin could have rejoined, "You purported to act for yourself. I supposed you were so acting, and you had no authority, and could have had none, to act for the bank."

It is held in England under the companies acts that the transferrer of shares is liable to be treated as a stockholder until he transfers to one who is in law capable of holding and liable in respect of the shares, and whose purchase is registered, unless, perhaps, where the neglect to register is entirely the fault of the corporation or its officers. Fyfe's case, Law Rep. 4 Ch. Appeals, 768; Lowe's case, Law Rep. 9 Eq. 589; Shropshire, etc., R'y and Canal Co. v. The Queen, Law Rep. 7 House of Lords cases, 496, 513; McEwen v. West London Wharves, etc., Co., Law Rep. 6 Ch. Appeals, 655; Weston's case, Law Rep. 5 Ch. Appeals, 614, 620; Gooch's case, Law Rep. 8 Ch. Appeals, 266; Gilbert's case, Law Rep., 5 Ch. Appeals, 559; Master's case, Law Rep. 7 Ch. Appeals, 292; Nickalls v. Merry, Law Rep. 7 House of Lords cases, 530; Symonds' case, Law Rep. 5 Ch. Appeals, 298; Heritage's case, Law Rep. 9 Eq. 5.

Assuming, without deciding, that this principle applies in all its force under the national banking act, if Laflin had sold to an infant, his liability would remain, notwithstanding the transfer was registered. Nickalls v. Merry, Law Re p. 7 House of Lords cases, 530; Symonds' case, Law Rep. 5 Ch. Appeals, 298. If he had sold to the bank, he would remain prima facie, if not actually, liable, if the bank should so elect. And if the seller of shares remains liable under the national banking act until there is a registered valid transfer that is, until some person succeeds to the stock who is capable of holding it and liable in respect to itthis principle will not make Laflin liable under the facts of the present case. Here the transfer was registered, but Britton, instead of registering it in his own name, as it was his duty towards Laflin to do, registered it in his name as "trustee," without Laflin's knowledge. But the act Rev. Stat., (sec. 5 152), authorizes the holding of stock by a trustee. If Laflin, in order to relieve himself of liability, is bound to see the transfer of the stock registered, the registry actually made would not charge him with constructive notice that the bank was in reality the cestui que trust.

Britton is responsible personally, inasmuch as he had no authority to act for the bank, and as there is no cestui que trust who is liable. He is liable for the unauthorized investment and use of the trust moneys of the bank, and can be compelled to refund it. Great Eastern Ry. Co. v. Turner, Law Rep. 8 Ch. Appeals 149. If it becomes necessary to assess the stockholders he will be estopped to say that he is not individually responsible, since he was not acting by authority of any cestui que trust capable of taking and holding the shares. If the sale of this stock had been registered to Britton individually it is clear that Laflin would not have been liable to the bank or its creditors; and as the matter now stands, the bank and its creditors have every right and remedy against Britton which they would have had if the shares had been transferred

to him individually instead of to him as "trustee." Our third proposition is, that Laflin is not liable, because the money received for the stock was unlawfully taken by Britton from the bank. The reason for this conclusion is that Laflin parted with value with his shares, with his power of control over them, and the right to sell them to others, and had no notice at or prior to the consummation of the transaction that Britton was acting ultra vires, and intended to misappropriate the funds of the bank. If he had dealt directly with the bank, or if he or his agents had known what took place inside the counter before the transaction with Britton had been completed, he would have been liable.

It is urged by the receiver's counsel that Laflin had constructive notice. Mr. Shields, in his argument, bases Laflin's liability on the proposition that being a shareholder in the bank he is charged with constructive notice of the condition of the bank, and of what was done by the president in violation of law and of his official duty in respect of these shares. I admit that if in a transaction directly with the bank he had received moneys to which he was not entitled, he could be made to pay back the same irrespective of the question of knowledge on his part. Curran v. Arkansas, 15 How. 304; Railroad Co. v. Howard, 7 Wall. 392.

But it is to be remembered in this case that Laflin is sought to be made liable in respect of the sale and transfer of his shares, which sale and transfer he had the perfect right to make, if he acted bona fide; and he has the same right to sell his shares to another shareholder that he would have to sell them to a person not a shareholder.

Even directors have the right to make a bona fide sale of their shares, and thus get rid of liability, if they pursue the articles or charter and take no advantage of their position and commit no fraud. Gilbert's case, Law Rep. 5 Ch. App. 559; ex parte Littledale, Law Rep. 9 Ch. Appeals, 257.

And share-holders in the exercise of their right to transfer shares are not bound, it seems, to take notice of irregularities on the part of the directors in respect to the transfer of shares. Bargate v. Shortridge, 5 House of Lords cases, 297, 323; Taylor v. Hughes, 2 Jones and Lat. 24; ex parte Bagge v North Coal Co., 13 Beav. 162.

Nor are directors, it seems, much less shareholders in the transfer of their stock bound to take notice of the books of account of the company. Cartmell's case, Law Rep., 9 Ch. App. 691; Hill v. Manchester, etc.. Co., 2 Nev. and M., 573; 5 Barn. and Adol. 874; Haynes v. Brown, 36 N. H. 568.

We are of opinion, therefore, that the sale and transfer of the stock, as between Laflin and Britton, was complete as soon as the stock was delivered assigned in blank, with the power to transfer, and payment received; and that what Britton, without Laflin's knowledge, afterwards did, although on the same day, in transferring the shares to himself as trustee for the bank, and in reimbursing himself out of the funds of the bank, could not retroact upon Laflin, whose status had already been fixed, and whose rights had already been acquired. Bank of America v. McNeill, 10 Bush. (Ky.) 54,58.

Mr. Henderson's argument for the receiver went mainly upon the ground that Laflin was chargeable through Mr. Girault, with constructive notice of Britton's wrongful acts in the purchase of these shares, and in the use of the bank's money to reimburse himself therefor.

This argument rests upon these propositions: First, that the sale was not complete until the transfer was registered; that, in making the transfer, Girault, although acting under Britton's directions, was solely Laflin's agent, (by virtue of his inserting his name in the blank power of attorney), and that, inasmuch as Girault knew of Britton's acts in directing the transfer for the benefit of the bank, and in paying himself for the purchasemoney out of the general means of the bank, the law imputes this knowledge to Mr. Laflin. The first branch of this proposition is inconsistent with the one which we have above attempted to maintain, viz: that the transaction between Laflin and Britton was complete without registration of the transfer, and that it is equally complete as to the bank, unless the bank had some valid reason for refusing to register the transfer. Britton had the right to register the purchase in his own name. He was in good credit with the bank and in the community. He was not then known to be insolvent. Indeed, it is not shown by the proofs that he is now insolvent. Laflin could have compelled him to register the transfer in his own name In the eye of the law the transfer to Britton, as "trustee," is a transfer to Brittor individually, for, as above shown, Britton could not set up his ultra vires acts to defeat his personal responsibility. Ashurst v. Mason, Law Rep., 20 Eq., 225; ex parte Littledale, Law Rep., 9 Ch. Ap., 257. If Laflin had a completed right, immediately on receiving payment for the shares, to have Britton register the transfer of the shares; and if, immediately on such payment, Britton had the right to register the transfer to himself, and if the bank could not have resisted Laflin's application to compel a registration of the transfer to Britton, it is obvious that notice subsequently received by Laflin personally, or through an agent, would be immaterial.

If this view is sound, it is unnecessary to decide the further question whether Girault in consequence of his relations to Britton and the fact that he acted as his servant and implicitly obeyed his directions, is to be regarded, in making the formal act of transfer on the books, as the agent of Laflin, in such sense that knowledge acquired by him from Britton is to be imputed to Laflin. It deserves consideration whether under the circumstances Girault was Laflin's agent so as constructively to affect Laflin with notice of what was being done, not in the necessary or lawful execution of his authority, but in violation of that authority and in hostility to his rights as well as those of the bank. These are the positions taken by Mr. Slayback in Mr. Laflin's behalf and they certainly have great force. For in this view, if the name of some one outside the bank, having no knowledge of what was going on inside the bank had been filled in by Britton as the attorney to make the transfer, or if Britton bad it filled in his own name, Laflin would

not be liable. It is certainly extremely narrow ground to make Laflin's liability depend upon the accident whose name shall be used to make the formal transfer and upon what knowledge of the interior working of the bank such person may happen to possess, especially in view of the custom to transfer stock in blank through many hands before any registry is made.

It was strongly urged at the bar by Mr, Henderson for the receiver that the foregoing views of the right of the shareholder to transfer his shares will have the effect to permit transfer to persons not able to respond to the double liability imposed on share-holders, and thus work an injury to the solvent shareholders and to creditors. But we must hold to the absolute right of the shareowner to transfer his stock in good faith, or the alternative that the directors may have the right to refuse their assent to such transfer, thus putting a shareholder in their power. Not a syllable can be found in the banking act giving the directors such a power; while on the other hand the right to transfer shares is expressly recognized. If it is desirable for the security of the shareholders or creditors that the existing members should, through the directors. have a veto on the right of a shareholder to transfer his shares such a power must be plainly conferred. It has not been given and cannot therefore be held to exist.

It is proper to remark in order to preclude erroneous inferences from the views here maintained, that it is probable that the unrestricted right of transfer has reference to transfers in solvent and going concerns and are not intended to enable share-holders to escape from liability where the association has committed an act of insolvency or has ceased to be a going concern. Allen's case, Law Rep., 16 Eq., 449, per Lord Chancellor Selbourne; Chappell's case, Law Rep., 6 Ch. App. 902. While we maintain the right of a shareholder to dispose of his shares absolutely, by an out and out sale and registered transfer and thus escape liability, provided the sale is made bona fide, and the purchaser is in law capable of assuming the liabilities of the transferrer, yet this does not involve the right to transfer shares for a fraudulent purpose, or under circumstances which the transferrer knows will make the transfer, if it is sustained, work a fraud upon the other shareholders or upon the creditors of the bank.

The result is that there must be a decree dismissing the bill as to Laflin, and as the bill is not framed for separate relief against Britton, dismissing the same as to him also, but without prejudice. Bill dismissed.

FOR sharp practice the following, which a prominent lawyer of Ohio vouches for, is certainly unique: "Suit is brought by A v. B, and B's wages garnished; on return day of process, A's attorney discovers B is a minor, and he can not recover of him on his cause of action. So he has the case continued, and then goes to the justice and has himself appointed guardian ad litem for B, and then at once confesses judgment in favor of A; and then as A's attorney has an order made on the garnishee to pay the money, and as attorney gobbles it."

CONTRIBUTORY NEGLIGENCE.

CHICAGO, ROCK ISLAND & PACIFIC R. R. v. HOUSTON.

Supreme Court of the United States-October Term, 1877.

1. CONTRIBUTORY NEGLIGENCE NEGLECT ΤΟ SOUND WHISTLE DOES NOT EXCUSE NEGLECT OF PARTY TO TAKE PRECAUTIONS.-The neglect of an engineer of a locomotive of a railroad train to sound its whistle or ring its bell on approaching a streetcrossing, does not relieve a party from the necessity of taking ordinary precautions for his safety. He is bound to use his senses-to listen and look-before attempting to cross the railroad track, in order to avoid any possible accident from an approaching train. If he omit to use them, and walk thoughtlessly upon the track, he is guilty of culpable negligence; and if he receive any injury, he so far contributes to it as to deprive him of any right to complain. If, using them, he sees the train coming, and undertakes to cross the track instead of waiting for the train to pass, and is injured, the consequences of his mistake and temerity can not be cast upon the railroad company. If one chooses in such a position to take risks, he must bear the possible consequences of failure.

2. TO INSTRUCT UPON ASSUMED FACTS to which no evidence applies is error. Such instructions tend to mislead the jury, by withdrawing their attention from the proper points involved in the issue.

In error to the Circuit Court of the United States for the Western District of Missouri.

Mr. Justice FIELD delivered the opinion of the court:

This was an action against the defendant, the railroad company, brought under a statute of Missouri, which subjects a corporation to a fine of $5,000 where death is caused by an injury resulting from the negligence, unskillfulness or criminal intent" of any of its officers, agents, servants or employees, while running, conducting or managing a locomotive, car or train of cars. In this case the deceased was the wife of the plaintiff'; her death was caused by injuries inflicted by a locomotive of a railway train belonging to the defendant, whilst the train was passing through the village of Cameron, in that state. The company had two tracks, one main and the other a side track, which extended through a considerable portion of the village, 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. Both building and well on the company's right of way. The train was due, on the evening when the accident occurred, at haif-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 track there was nothing to prevent one passing in a direct or nearly direct line from the house of the deceased to the section-house. Persons, in going to the well from the Houston house, sometimes pass the road at the public crossing and sometimes on the right of way of 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 the evening of the 13th of March, 1872, the deceased took a pail upon her arm and left her house, and, it is supposed, started for the well near the section-house. She was seen by her daughter, as she left the house, and by the engineer, a few seconds before she was struck by the locomotive. It does not appear that she was seen by any other person after leaving the house 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 that when he discovered her it was impossible to stop the train so as to avoid striking her. She died 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, and 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. If then, 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, unskillfulness, or criminal intent" of the defendant's engineer. Had the train been moving at an ordinary rate of speed it would have been imposible for him to stop the engine 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 employees in these particulars was no excuse for negligence on her part. She was bound to listen and 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 see and hear the train