opinion to the effect that there may be enough of relation in the contract of hire to make a master liable for neglect, causing the death of a servant injured in the course of duty, the obligatory exercise of their duty being depend ent upon circumstances. Hunicke v. Meramec Quarry Co., 172 S. W. 43.

Judge Woodson, after quoting at length from many cases sustaining such recoveries, says: "In my opinion, there is no possibility of doubt but what the law is that whenever one person employs another to perform dangerous work and that, while performing that work, he is so badly injured as to incapacitate him from caring for himself, then the duty of providing medical treatment for him is devolved upon the employer; and that duty, in my opinion, grows out of the fact that, when we get down to the real facts in all such cases, there is an unexpressed humane and natural understanding existing between them to the effect that, whenever any one in such a case is so injured that he cannot care for himself, then the employer will furnish him medical treatment, as the case may be."

We would like to, but are wholly unable, to see the force of this reasoning, and especially to see how it covers sufficiently an action for the death of servant brought by those declared entitled under the statute. The statute being in derogation of the common law should receive strict construction.

And in any case there are so very many contingencies conditioning liability, that it is very difficult to formulate any principle of liability. Is it tort by the master in not regarding the relation that makes him liable, or is there breach of quasi-contract? Must a vice-principal know of the injury before he is bound to act, and is his judgment as to the necessity of immediate action to have any weight, no matter what others may think he ought to have done? If he acts in good faith, but shows bad judgment is he to be held liable? Must he not, indeed, be shown to act in gross disregard of the principles of humanity to make himself liable at all? And finally is there not importing into the contract a new condition, where there is no liability arising out of an injury itself?

There might be some basis for an inference of liability arising out of hospital dues, upon the theory of implied contract by master promptly to give its employes benefit of treatment therein, but even this would be stretching implication beyond all reasonable bounds. We greatly fear that courts following the rule above proclaimed allow their sympathies to control them them rather than principles of law.

THE DEGREE OF CARE REQUIRED OF AN AUTOMOBILE DRIVER APPROACHING Α RAILROAD CROSSING.

It is now clearly recognized that the use of any new mode of passage on the public streets and highways, cannot be prohibited on the grounds that such use was not anticipated at the time that such public passage ways were laid out and dedicated. Although it is true that locomotion upon the public roads, has, up to a time within the last decade, been chiefly by means of horses and similar animals, yet the persons using them have no prescriptive rights, and are entitled only to the same reasonable use of the ways, which they must accord to all othAutomobiles are clearly improved methods of locomotion, and so long as they are constructed and propelled in a manner consistent with the use of the highways, and are calculated to subserve the public as a beneficial means of transportation, with reasonable safety to travelers by others modes, they have an equal right with other vehicles upon the public highways.1

ers.

The following observation along this line is pertinent: "There is nothing dangerous in the use of an automobile when managed by an intelligent and prudent driver. Its guidance, its speed and its noise are all subject to quick and easy regulation, and under the control of a competent and considerate manager it is as harmless, or may soon become as harm-less, on the road, as other vehicles in common use. It is the manner of driving an automobile on the highway, too often indulged in by thoughtless pleasure seekers and for the exploitation of a ma-. chine, that constitutes a menace to pub

(1) Moses v. Pittsburgh, etc., R. Co., 21 Ill. 515; Masomber v. Nicholas, 34 Mich. 212, 22 Am. Rep. 522; Shinkle v. McCullough (Ky.), 77 S. W. 196; Christy v. Elliott (II.), 74 N. E. 1035; Indiana Springs Company v. Brown (Ind. Sup.) 74 N. E. 615.

lic safety. While it is the law that the owners of automobiles, subject to statutory restrictions, have equal rights with the owners of other vehicles to occupy the highways, it must be borne in mind that this equality of right imposes the reciprocal duty of managing one's vehicle, whatever its character, with care and caution to avoid causing injury to others with equal rights.""

The universal and increasing use of automobiles as a means of transportation for business and pleasure, makes the question of the legal duty resting upon the drivers of such cars one of importance, and one on which the practicing attorney is frequently called for an opinion. It is the purpose of this article to review the decisions covering one phase of this question with the view of arriving at the better rule.

As long as public highways cross railroad tracks at grade we will have grade crossing accidents, and an elimination of all crossings at grade, is probably the best solution of the question as to the method of stopping accidents of this nature. The rules of law applicable to the driver of a horse drawn vehicle approaching a railroad crossing have been laid down in many cases. It is in general that he must look and listen in a reasonable way, so as if possible, to secure his safety. Ordinary care often requires that the traveler should stop, look and listen for approaching trains, from a place where such trains could be discerned and when discovered precaution could be taken to avert an accident. If, for instance, the noise is so great that an approaching train cannot be heard, and the obstructions are such that it cannot be seen, then the traveler must come to a halt and look and listen. It cannot be said that one who simply looks and listens, where he knows, or should know, such acts are fruitless and unavailing, exercises that

(2) McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359.

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degree of care which the law requires, While it cannot be justly affirmed, as a matter of law, that there is a duty to stop in all cases, yet there are cases where the failure to stop must be deemed such a breach of duty as will defeat a recovery by the plaintiff. There are very many cases holding that the surroundings may be such as to impose upon the traveler the duty of stopping, looking and listening, and these cases apparently assert the true doctrine. In the majority of cases, however, the question is one of fact, or a mixed question of law fact, rather than a pure question of law."

It has been claimed that there is a distinction, distinction, between automobiles and horse drawn vehicles as to the precaution which the driver must take before attempting to cross railway tracks, and that the courts should hold as a matter of law

(3) Winstanley V. Chicago, etc., R. Co., 72 Wis. 375, 39 N. W. 856; Reed v. Chicago, etc., R. Co., 74 Iowa 188, 37 N. W. 149; Union Pac. R. Co. v. Ruzicka, 65 Neb. 621, 91 N. W. 543; Peck v. Oregon, etc., R. Co., 25 Utah 21, 69 Pac. 153. Exceptional circumstance may also require him to stop, although this proposition generally presents itself as a mixed question of law and fact. Malott v. Hawkins, 159 Ind. 127, 63 N. E. 308, 311; Chicago, etc., R. Co. v. Thomas, 155 Ind. 634, 58 N. E. 1040, but see later Indiana cases apparently disapproving the Thomas case. Pittsburgh, etc., Ry. Co. v. Terrell (Sup.) 95 N. E. 1109; Central Ind. Ry. Co. v. Wishard (App.) 104 N. E., p. 596.

(4) Houghton v. Chicago, etc., R. Co., 99 Mich. 308, 58 N. W. 314;. Chase v. Maine, etc., R. Co., 78 Me. 346, 5 Atl. 771; Brady v. Toledo, etc., R. Co., 8 Mich. 616, 45 N. W. 1110; Greenwood v. Philadelphia, etc., R. Co., 124 Pa. St. 572, 17 Atl. 188, 3 L. R. A. 44; Northern Pac. R. Co. v. Holmes, 3 Wash. Ter. 202, 14 Pac. 688; Chicago, etc., R. Co. v. Williams, 56 Kan. 333, 43 Pac. 246; Abbot v. Divinnell, 74 Wis. 515; 43 N. W. 496; Sullivan v. New York, etc., R. Co., 154 Mass. 524, 28 N. E. 911; Louisville, etc., R. Co. V. French, 69 Miss. 121, 12 So. 338; Penn. Co. v. Morel, 40 Ohio St. 338; Clark v. Northern Pac. R. Co., 47 Minn. 380, 50 N. W. 365; Kelly v. Chicago, etc., R. Co., 88 Mo. 534; Missouri, etc., R. Co. v. Jenkins (Kansas) 87 Pac. 702; Fleming v. Western, etc., R. Co., 49 Cal. 253; Merkle v. New York, etc., R. Co., 49 N. J. L. 473, 9 Atl. 680; Colorado, etc., R. Co. v. Thomas, 33 Colo. 517, 8 Pac. 801; Chicago, etc., R. Co. v. Thomas, 155 Ind. 634, 58 N. E. 1040; Terre Haute, etc., R. Co. v. Clark, 73 Ind. 168; Cleveland, C. C. & St. L. Ry. Co. v. Pace (Ind.), 101 N. E. 479.

(5) Elliott on Railroads, 2d Ed., Sec. 1167 and cases cited.

One

was

just what precautions should be taken by one operating an automobile for his own safety as well as that of the public. The tendency of horses to frighten when stopped close to a moving locomotive or train, has been taken into account by the courts in the consideration of crossing accidents with horse drawn vehicles. As said by one court, "There are very few horses that can safely be stopped within 15 or 20 feet of a railroad track to await the passage of an express train. driving there before the accident obliged to choose between the risk of driving across and being struck by an express train, whose approach he might fail to hear, and the risk of stopping to look, so near the track as to expose him to great danger from the fright of his horse, if an approaching train should be near." The absence of this danger in respect to automobiles has been commented on by the courts, and seized upon as a reason why the drivers should be held to a higher degree of care, as they have the power to make themselves safe by stopping up to within a few feet of the track, which could not be done by a driver of a team."

The Maidment Case' may well be called a leading case on the theory that the driver of an automobile, must, on account of the nature of his machine, exercise a higher degree of care and be held to a stricter performance of his duty to stop, look, listen, than a driver of a horse propelled vehicle. In that case, an automobile was struck on a railroad crossing and the court in holding that the driver was guilty of contributory negligence, barring a recovery said, "With the coming into use of the automobile, new questions as to reciprocal rights and duties

(6) New York Central and Hudson River R. R. v. Maidment, 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794; Chase v. New York Cent. R. R. Co., 208 Mass. 137, 94 N. E. 377.

(7) New York Central, etc., R. Co. v. Maidment, 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794.

of the public and that vehicle will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens not only the safety of its own occupants, but also those on the colliding train. And when to the perfect control of such a machine is added, the factor of high speed, the temptation to dash over a track at terrific speed makes the automobile, unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly controlled, this powerful machine possesses capabilities contributing to safety. When a driver of horses attempts to make a crossing and is suddenly confronted by a train, difficulties face him to which the automobile is not subject. He cannot drive close to the track, or stop there, without risk of his horse frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and if he goes forward to the track to get an unobstructed view and look for coming trains, he might have to lead his horse or team with him. These precautions, the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen, an automobile driver has the opportunity, if the situation is one of uncertainty to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety, and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such

reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossings make such care, and not chance their protection, the possibilities of automobile crossing accidents will be minimized. In the case of trolleys crossing railroads at grade, the practice is general for the conductor to go ahead and from the track signal the halted car to advance. This would, of course, be impracticable as a rule for automobiles, but it illustrates the trend of the law, as the size of crossing vehicles makes collisions with them more serious, to enforce greater safety precautions."

In the case of Brommer v. Pennsylvania Railroad Company," the court cites and approves the Maidment case, and in holding that the driver and the guest on the front seat were both guilty of contributory negligence in approaching the railroad crossing, said: "The plaintiff in error, Brommer (the driver), was clearly guilty of contributory negligence, and the court rightly gave binding instructions against him. His failure to stop, look and listen, at a point where stopping and where looking and where listening would have prevented the accident, directly contributed thereto." As regards the guest, Henderson, the court after stating that a guest could not sit dumb and inert in a vehicle as the driver drove it into a place of known danger and then recover damages, but must be observant and attempt to avoid danger by protest and suggestions, said, "Measured by this standard, and the rule is founded on sound reason and is conducive to safety, we see no escape from the conclusion that Henderson was equally culpable with Brommer. He knew that they were approaching a railroad crossing. As he approached, he saw the view was shut off from the track. Thus ignorant of the safety or danger of the crossing, pru

(8) Brommer v. Penn, R. Co., 179 Fed. 577, 29 L. R. A. (N. S.) 924.

dence, self-preservation, and the positive demand of the law called on him to stop before attempting the passage. The machine was under control, by his own account, only moving at a two mile rate. Under these circumstances, he was called on to act, or, if he chose to keep silent and join in chancing the crossing, the law will not hold him faultless of his share of bringing about the accident. The power, speed and control of automobiles are new factors in the crossing of railroads. They tempt a reckless driver to make flying crossings. On the other hand, they afford elements of safety and convenience to a careful one. The law contributes to the rational enjoyment of the automobile, to the safety of its occupants, and to the welfare of the railroad traveling public, when, in these early cases, it holds the automobile drivers rigidly to the rule laid down in the Maidment case."

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In a Massachusetts case, it appeared from the evidence that the car which was struck was being driven along a country road at about noon on a bright day, and approached the grade crossing. with which the driver was familiar, at a speed of from 12 to 15 miles per hour, when very close to the track he reduced his speed to eight miles an an hour, and while crossing the track, the machine was struck by a train proceeding at not more than 25 miles an hour, the approach of which the driver did not see until within 15 feet of the track. The court, after pointing out the danger attending the driving of a horse propelled vehicle close to the track, said: "The driver of an automobile is in no such danger. If his machine is a good one, it can be controlled perfectly, and there is no danger from it if he stops to look and listen within six feet of the track. The difference between automobile and vehicles drawn by horses; in the applica

tion of the rule, has been recognized by the courts." The court then cites and quotes from the Maidment case and states that it entirely agrees with the law as there stated. It further said, "With proper care on the part of the driver, there is no danger in crossing a railroad with an automobile upon an ordinary highway in a country town. In this case, considering that part of the testimony which is most favorable to the plaintiff, there is no evidence that Hancock was in the exercise of duc care; but on the contrary, the accident seems to have been caused by his great carelessness."

In the Spencer case,10 a chauffeur was held guilty of contributory negligence in not discovering the approach of a train which struck him and in failing to stop his machine, where it appeared that he looked south when about 25 or 30 feet from a crossing which he approached at about three or four miles an hour, and saw no train approaching; that his automobile was surrounded by a crowd proceeding in the same direction in which he was going; that he did not stop as he approached the crossing, and as he was passing over the first rail of the north bound track, some of the people shouted and fell back, and he then looked south again, and saw the train which struck him approaching about 400 feet away, and he at once gave the machine more power in an effort to cross ahead of the train but failed and was struck. The court in its opinion said: "The evidence establishes to our entire satisfaction, that the train which collided with the automobile was in plain sight. long enough to have enabled him to shut off the power and bring the machine to a standstill before reaching the track. At the rate of speed at which he was moving, he might have stopped the car almost

(10) Spencer v. New York C. & H. R. R. R., 123 App. Div. 789, 108 N. Y. Supp. 245, affirmed in 197 N. Y, 507, 90 N. E. 1166.

be

immediately. It is impossible to lieve that with the exercise of ordinary care the plaintiff could not have seen the approaching train and avoided the accident. The only diligence shown to have been exercised by plaintiff was to look. from two different points to the south where the train was approaching in plain view without seeing it. He passed over the last 30 feet before reaching the tracks, the most dangerous part of the route, without looking, and it is no excuse to say that he was hemmed in by the people bound for the station. These conditions were only temporary and would shortly pass away. Common prudence. if necessary to properly handle his machine required him to stop and proceed no further until he could exercise full vigil

The rule as asserted in the above cases has been vigorously assailed by several reputable courts. In a Montana case,1 the court after citing the Maidment and Brommer cases, said: "Both of the decisions, just cited, emanated from the circuit court of appeals for the third district, speaking through Judge Buffington, and they proceed upon the mistaken idea that a railroad has some sort of a paramount right to the use of a public highway crossing, and that whether a citizen using the highway on approaching such crossing must stop, look and listen, depends upon the motive power he is using and its amenability to control; where as the true rule, as we understand it, is that

(11) See Huddy, Automobiles, 3d ed., sec. 164, p. 194; Horandt v. Central R. Co., 78 N. J. L. 190, 73 Atl. 93, subsequent appeal, 81 N. J. L. 488, 83 Atl. 511; Lassen v. New York, N. H. & H. R. Co. (Conn.), 87 Atl. 734; Read v. New York C. & H. R. R. Co., 123 App. Div. 228, 107 N. Y. Supp. 1068; 28 Cyc. 41; Chappell v. United R. Co. (Mo. App.) 156 S. W. 819; See 8 Thomp. Neg., p. 279; Dickinson v. Erie R. Co., 81 N. J. L. 464, 37 L. R. A. (N. S.) 150; 81 Atl. 104; See note in 46 L. R. A. (N. S.) 702; McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972.

(12) Walters V. Chicago, Milwaukee and Puget Sound R. W. R. Co. et al. (Mont.) 133 Pac. 357, 46 L. R. A. (N. S.) 702.