The limitation is generally applied to errors of navigation by vessels made in extremis in attempting to avoid an impending collision. The limitation also applies to acts of passengers or employees on railroad locomotives or trains, in jumping from moving trains, done under the alarm caused by a collision of trains which is taking place or is likely to occur; and of travellers driving or on foot on public highways, when in danger, by the defendant's negligence, of collision, at a railroad crossing, with an approaching train, or upon public streets in a city, and of employees in manufactories or shops, and in other varying circumstances which, with the qualification of such limitation, will be considered in their order.

Collisions of Vessels.-The rule in Admiralty.-The general rule in admiralty, as declared by the Supreme Court of the United States, in several cases, is, that where a vessel has, either wholly or partly, by her own fault or mismanagement, placed another vessel in a position of extreme danger, the other ship will be excused, if in the moment of peril and excitement, in an effort to avoid the impending collision, she makes an error in judgment in manœuvres, contributing to, or inducing a collision: The Elizabeth Jones, 112 U. S. 514, 526; The Genesee Chief, 12 How. 461; N. Y. & L. Steamship Co. v. Rumball, 21 Id. 372, 383; The Favorita, 18 Wall. 603; The Falcon, 19 Id. 75; The Nichols, 7 Id. 656, 666; The Carroll, 8 Id. 302; The Dexter, 23 Id. 69, 76. Also by federal courts in collision cases: The Royal Arch, 22 Fed. Rep. 457; The E. B. Ward, Jr., 23 Id. 900; The Standard, Id. 207; The George Murray, 22 Id. 117, 123; The Nereus, 23 Id. 458; The B. B. Saunders, 25 Id. 727; Collins v. Davidson, 19 Id. 83; The John Mitchell, 12 Id. 511; Orhanovich v. The America, 4 Id. 337; The Alaska, 22 Id. 548; The Lavergne, 2 Id. 788; The Merrimac, 2 Sawy. 586; Bartlett v. Williams, 1 Holmes 229; Peck v. Burns, 5 Ben. 537; The J. H. Gautier, Id. 469; The Elm City, 6 Id. 58; The General William McCandless, Id. 223; The Manhasset, Id. 301. As said by Judge MCCRARY, in Collins v. Davison, supra, "In the case of sudden and unexpected peril, endangering human life, and causing unnecessary excitement, the law makes allowances for the circumstance that there is but little time for deliberation, and holds a party accountable only for such care as an ordinarily prudent man would have exercised under similar circumstances.'

The rule applies to all cases where the situation is such that, all

the circumstances being considered, a reasonable doubt might exist as to the best course to be pursued to avoid a collision on the part of those in charge of the vessel in a dangerous situation: The Nereus, 23 Fed. Rep. 448, 458. But a vessel which gives a signal to another vessel for a departure from the ordinary rules of navigation assumes the hazards of the consequences of making such a departure, whether she hears a response to the signal or not: The B. B. Saunders, 25 Fed. Rep. 727; The St. John, 7 Blatchf. 220; and where a steamer, under no constraint of circumstances, proposes such departure, requiring on the part of the other vessel strong and immediate measures to avoid collision, an error of judgment made by the latter, in a moment of peril is no defence: The Nereus, 23 Fed. Rep. 456. So, where a vessel, instead of following such rules causes damage by a mistaken manœuvre calculated on chance, she is responsible: The Titan, 23 Fed. Rep. 413, 416. A change of course on the part of a vessel which complied with the rules of navigation until a collision became apparently inevitable by the fault of the other, is not a fault when made at a moment of extreme peril, and is allowable as an act in extremis, although if not made, there might have been no collision: The E. B. Ward, Jr., 23 Fed. Rep. 900; The George Murray, 22 Id. 123. The rule as stated by the English Court of Appeals in the Admiralty Court in the leading case of The Bywell Castle, L. R., 4 Pr. D. 219, where the libelled vessel in a collision changed her course when, as said by Chief Justice JAMES, she was "in her very agony," is, that where a ship has, by wrong menœuvres, placed another ship in a position of extreme peril, that other ship will not be held to blame if, in that moment of extreme peril and difficulty she happens to do something wrong, and is not manœuvred with perfect presence of mind, accurate judgment and promptitude. "Although," added Lord COTTON, "those before whom the case comes to be adjudicated, with a knowledge of all the facts, are able to see that the course adopted was in fact not the best."

Collision of Railroad Trains.-The limitation of the doctrine of contributory negligence referred to, applies, also, to passengers upon railroad trains. The rule is applied especially in cases where collisions of railroad trains have taken place or are likely to occur, and the passenger is injured while leaping therefrom. It may thus be regarded as settled law that where a passenger is riding upon a railroad train and a collision has taken place or is likely to occur,

and in the excitement of the moment, in presence of impending peril, without time for deliberation, he is obliged to choose between. two hazards, and makes such choice as a person of ordinary care and prudence would make under like circumstances, and by reason thereof he is exposed to greater peril, and injured, he is entitled to recover, the railroad company not being relieved from liability for its own negligence by the fact that the instinctive act of escape from imminent peril by jumping from a moving train was very hazardous and in law negligent, and that had he chosen the other hazard the injury would have been avoided: N. & C. Rd, v. Erwin, 3 Am. & Eng. R. R. Cas. 465; Twomley v. C., P., N. & E. Ry., 69 N. Y. 158; Buel v. N. Y. C. Rd., 31 Id. 314; Eldridge v. Long Island Rd., 1 Sandf. (N. Y.) 89; Collins v. Rd. Co., 12 Barb. 493; Plopper v. Rd. Co., 13 Hun 625; Southwestern Rd. v. Paulk, 24 Ga. 356; Wilson v. N. P. Rd., 26 Minn. 278; Hill v. N. O. & G. W. Rd., 11 La. Ann. 292; Rd. Co. v. Aspell, 73 Penn. St. 149; Knapp v. S. C. & P. Rd., 18 Am. & Eng. R. R. Cas. 60. See Lowery v. Manhattan Ry., 99 N. Y. 158, 162.

The rule was applied where a passenger fearing a collision from an approaching train, left his seat to go out of the train, believing by so doing he could better avoid the danger, and although his act contributed to his injury, it was held no defence to his action: Iron Co. v. Mowery, 36 Ohio 418. And also, where, a collision impending, the conductor called to the passengers to jump, and himself set the example: Southwestern Ry. v. Paulk, 24 Ga. 356; or where they followed a brakeman: Filer v. New York Central & H. R. Rd., 68 N. Y. 124; Pittsburgh, B. & W. Rd. Co. v. Bohrman, 12 Am. & Eng. R. R. Cas. 170.

The rule as to Employees.-A distinction is properly drawn between the circumstances which may justify a passenger in fear of an impending collision, to jump from a moving train, and the like act of an employee, such as an engineer. The former has only his own personal safety in question, while such employee has in his charge the lives and property of all the passengers and employees on the train. The passenger is also unskilled in the running of trains, and as to the imminence of the danger of collision. The engineer, however, knows from experience how soon a train can be stopped, and the danger of risk of collision as judged from the distances between the approaching trains. To justify jumping from his engine in such circumstances, there must be such an im

minent emergency upon him as requires him to do it; for what would be no fault in the passenger might be gross negligence in the officers of the train: Central Rd. v. Roach, 64 Ga. 635. Where, however, a collision was rendered inevitable by the negligence of the employer in retaining an incompetent servant, it was held where an engineer jumped from his engine, that, "if in the excitement of the moment, the deceased lost his own presence of mind, and adopted a mode of self-preservation, which proved most unfortunate for him, it was no excuse to the company, whose negligence in employing or retaining an incompetent servant caused the disaster:" E. T., V. & G. Rd. v. Gurley, 12 Lea 46.

The limitation also applies in favor of an employee, where, in the course of his employment, in a position of imminent peril, by the negligence of the employer, he adopts, in the terror of the moment, an unsafe course exposing him to greater peril: Schall v. Cole, 107 Penn. St. 1; Gumz v. Rd., 52 Wis. 672; Schultz v. Chicago & N.W. Rd., 44 Id. 638; Mark v. St. P., M. & M. Rd., 30 Minn. 493; Stevenson v. Chicago & A. Ry., 18 Fed. Rep. 493; Lalor v. Chicago, B. & Q. Rd., 52 Ill. 401; Bell v. Hannibal & St. J. Rd., 72 Mo. 50.

In Schall v. Cole, supra, where the employee unexpectedly found himself in a position of imminent peril in which there was no time for reflection, by reason of the breaking of a part of a machine, the court say: "Assuming it to be true that he might have escaped had he not paused to look after his machine, such an error of judgment at such a time ought not to prevent a recovery." And, in a similar case of imminent peril, the Supreme Court of Wisconsin, in Schultz v. Chicago & N.W. Rd., supra, held that "it would be most absurd and unjust to hold him negligent because the instinct of self-preservation did not suggest a more effectual method of escape from peril."

Collisions at Railroad Crossings.-A traveller, on a highway or a city street, approaching a railroad crossing where the view of the track is by any means obstructed so as to render it impossible or difficult to learn the approach of a train, or where there are conflicting circumstances calculated to deceive or throw him off his guard, and who is obliged to act upon his judgment at the moment of peril, caused by the defendant's negligence, in failing to give signals, and who, under such circumstances, acts as would a person of ordinary intelligence, will be entitled to recover, although at the

last moment he be guilty of an error of judgment in his attempting to avoid collision with the approaching train: Hart v. Devereux, 41 Ohio St. 565; Penn. Rd. v. Werner, 89 Penn. St. 59; Kelly v. St. P., M. & M. Rd., 29 Minn. 1; Brownell v. T. & B. Rd., 55 Vt. 218; Rosenberger v. G. T. Ry., 8 Ont. App. 482; aff. 9 Sup. Ct. Can. 311; Copley v. N. H. & N. Rd., 136 Mass. 6; Cont. Imp. Co. v. Stead, 95 U. S. 161; Plummer v. Eastern Rd., 73 Me. 591; Penn. Rd. v. Coon, 17 W. N. C. 137; P. & R. Rd. v. Killips, 88 Penn. St. 405; Penn. Rd. v. Beale, 73 Id. 504; Bunting v. Rd. Co., 14 Nev. 351; L. & C. L. Rd. v. Goetz., 79 Ky. 442; C., B. & Q. Rd. v. Lee, 87 Ill. 454; P. § P. Rd. v. Clayberg, 107 Ill. 644; Johnson v. Rd. Co., 77 Mo. 546; Richey v. Rd., 7 Mo. App. 150; Zimmerman v. Rd. Co., 71 Mo. 476; Gaynor v. Rd. Co., 100 Mass. 208; Chaffee v. Rd. Co., 104 Id. 108; Pollock v. Rd. Co., 124 Id. 158; Kissenger v. Rd. Co., 56 N. Y. 538; W., St. L. & P. Rd. v. Cent. Trust Co., 23 Fed. Rep. 738; Cosgrove v. Rd. Co., 87 N. Y. 88; Salter v. Rd., 88 Id. 42; s. c. 75 Id. 273; Cordell v. Rd., 70 Id. 119; Dolan v. Del. & H. Canal Co., 71 Id. 285; B. & O. Rd. v. Whitacre, 35 Ohio St. 627; Schierhold v. Rd., 40 Cal. 447; Penn. Rd. v. Matthews, 36 N. J. L. 531; Gothard v. Rd., 67 Ala. 114; Nehrbas v. Rd., 62 Cal. 320; Faber v. Rd., 29 Minn. 465; Trout v. Rd., 23 Gratt. 619; H. & T. C. Rd. v. Wilson, 60 Tex. 142; Funston v. Rd., 61 Ia. 452; Skelton's Case, L. R., 2 C. P. 631; Bilbee v. L. & B. Ry., 18 C. B. N. S. 584. Even in the absence of statutory requirement to give signals: Artz v. C., R. I. & P. Rd., 34 Iowa 153; Funston v. C., R. I. & P. Rd., 61 Id. 452; Eilert v. Rd., 48 Wis. 606.

And also at private crossings where the same have been opened to the use of the public: Webb v. Rd., 57 Me. 117; P., F. W. & C. Ry. v. Dunn, 56 Penn. St. 280; Delany v. Rd., 33 Wis. 67; Thomas v. Rd., 8 Fed. Rep. 729; s. c. 19 Blatchf. 533; Barry v. Rd., 92 N. Y. 289; Delaney v. Rd., supra; Jamison v. Rd., 55 Cal. 593; Murphy v. Rd., 133 Mass. 121. Even where the company had put up a sign "This is not a public way, and is dangerous:" O'Connor v. B. & L. Rd., 135 Mass. 352; Ill. Cent. Rd., v. Frelka, 110 Ill. 498.

A traveller upon a street in a city, where the speed of trains has been regulated by city ordinance, may presume that the company will comply with such regulation, and if, acting in accordance with