must, before attempting to cross, recognize the danger and make use of the senses of hearing and seeing in determining whether a train is in dangerous proximity; and if he neglect this duty, and venture blindly upon the track without making an effort to ascertain whether a train is approaching, that he does so at his peril: Clark v. Missouri Pac. R'y Co., 35 Id. 354. The supreme court of Iowa, in speaking of this question, said: "The instruction was properly refused. It requires too great a degree of care and circumspection. It makes no allowance for the ordinary imperfections of humanity. It requires absolute perfection of attention to surroundings, while the mind is concentrated upon a particular duty. So high a degree of caution the law does not enjoin. It requires only the exercise of reasonable and ordinary care": Greenleaf v. Dubuque & S. C. R. R. Co., 33 Iowa, 57.

The supreme court of the United States, referring to an instruction similar to that contended for by the defendant, said: "It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental diversion of the attention to which the most prudent and careful are sometimes subject, and assuming in effect that the duty of avoiding a collision lies wholly, or nearly so, on one side": Continental Improvement Co. v. Stead, 95 U. S. 168. See U. P. R'y Co. v. Adams, 33 Kan. 427.

But where the undisputed facts show that this rule has been disregarded, and no precaution has been taken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submitted to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side-track, and looked to see whether an engine was behind them, and saw none; and the fact that the train was moving backward,—are questions to go to the jury with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather and the character of the train, and he thought it to be on the side-track. It was said in Barnard v. Rensselaer & S. R. R. Co., 1 Abb. App. 131: "If there is any conflict in the evidence going to establish any of the circumstances upon which the question

depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved, this, involving as it generally must more or less conjecture, can only be settled by a jury."

In Webber v. N. Y. Cent. etc. R. R. Co., 58 N. Y. 465, the court said: "It is true that the vigilance and caution of the traveler must be proportioned to the known danger of the injury; but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of selfpreservation ordinarily will lead to the employment of all the precaution which the situation suggests to an individual; and whether they are such as would occur to or be adopted by men of ordinary care and prudence must necessarily, in most cases, be left to the jury. The intelligence and judgment, as well as the experience, of twelve men, must settle a question of that character as one of fact, and not of law": K. P. R'y Co. v. Richardson, 25 Kan. 391; U. P. R'y Co. v. Young, 19 Id. 488; K. P. R'y Co. v. Pointer, 14 Id. 37; Pa. R. R. Co. v. Weber, 76 Pa. St. 157; 18 Am. Rep. 407; Carr v. N. Y. Cent. etc. R. R. Co., 60 N. Y. 633; Thurber v. Harlem etc. R. R. Co., 60 Id. 331; Loucks v. Chicago etc. R. R. Co., 18 N. W. Rep. 651.

While this question is a close one, yet we do not feel called upon to disturb the judgment where it is so conclusively shown that the employees of the defendant in charge of the train were so grossly negligent in its management. Although the plaintiff may have been somewhat negligent, yet it is not clearly shown that his negligence contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south, he might with reasonable safety have crossed before it reached the crossing, provided the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is great, and that of the other but slight, notwithstanding the slight negligence the party may recover: Pacific R'y Co. v. Houts, 12 Kan. 328; K. P. R'y Co. v. Pointer, 14 Id. 37; Sawyer v. Sauer, 10 Id. 466.

Under all the circumstances of this case, we do not find that the plaintiff was guilty of such contributory negligence as to prevent his recovery. It is therefore recommended that the judgment of the court below be affirmed.

MUST USE EYES AND EARS. — Before attempting to cross railroad track, one is bound to use his eyes and ears to determine whether a train is approaching, and if he neglects to do so he will be guilty of negligence: Gonzales v. New York etc. R. R. Co., 98 Am. Dec. 58, and note.

CONTRIBUTORY NEGLIGENCE. - Person seeking to recover for injuries resulting from negligence of railroad company must be free from negligence contributing to such injuries: Gonzales v. New York etc. R. R. Co., 98 Am. Dec. 58, and note; Gaynor v. Old Colony etc. R'y Co., 97 Id. 96; New Orleans etc. R. R. Co. v. Statham, 97 Id. 478; Louisville etc. R. R. Co. v. Sickings, 96 Id. 320; Baltimore etc. R. R. Co. v. State, 96 Id. 528.

CONTRIBUTORY NEGLIGENCE BAR TO RECOVERY: Potter v. Chicago etc. R'y Co., 94 Am. Dec. 548; State v. Maine etc. R. R. Co., 49 Am. Rep. 622; Martin v. Western Union R. R. Co., 99 Am. Dec. 189; Frazer v. South etc. R. R. Co., 60 Am. Rep. 145; Bardwell v. Mobile etc. R. R. Co., 56 Id. 842; Darwin v. Charlotte etc. R. R. Co., 55 Id. 32.

NEGLIGENCE USUALLY QUESTION OF FACT: Gonzales v. New York etc. R. R. Co., 98 Am. Dec. 58, and note; Pennsylvania R. R. Co. v. Barnett, 98 Id. 346; Detroit etc. R. R. Co. v. Curtis, 99 Id. 141.

SLIGHT NEGLIGENCE AS BAR TO RECOVERY: Dreher v. Town of Fitchburg, 99 Am. Dec. 91; slight negligence, ordinary care, and ordinary negligence defined: Id., and note.

CONTRIBUTORY Negligence, WHEN DOES NOT BAR RECOVERY: Louisville etc. R. R. Co. v. Sickings, 96 Am. Dec. 326, note.

WHAT CONSTITUTES NEGLIGENCE ON PART OF ONE INJURED TO BAR RECOVERY: Baltimore and Ohio R. R. Co. v. State etc., 96 Am. Dec. 532, and note; Northern Central R. R. Co. v. State, 96 Id. 545.

FIREMAN RUNNING ENGINE-NEGLIGENCE. - Permitting fireman to run engine is a fact from which jury may find negligence on the part of the company: O'Mara v. Hudson River R. R. Co., 98 Am. Dec. 61.

FAILURE TO RING BELL, AS REQUIRED BY STATUTE, AS QUESTION OF NEGLIGENCE: O'Mara v. Hudson River R. R. Co., 98 Am. Dec. 61; St. Louis etc. R. R. Co. v. Terhune, 99 Id. 504.

BURDEN OF PROOF - CONTRIBUTORY NEGLIGENCE: Indiana etc. R. R. Co. v. Greene, 55 Am. Rep. 736.

OBLIGATION OF RAILROAD COMPANY TO GIVE WARNING OF APPROACHING TRAINS: Pennsylvania R. R. Co. v. Barnett, 98 Am. Dec. 346, note.

WHAT IS DUE CARE IS QUESTION FOR JURY: Gaynor v. Old Colony etc. R'y Co., 97 Am. Dec. 96, and note. Care to be used by one crossing railroad track: Id.

REASONABLE CARE AS TO GIVING NOTICE OF APPROACHING TRAIN is a question of fact: Byrne v. New York Central etc. R. R. Co., 58 Am. Rep. 512.

WHETHER ACT OF PLAINTIFF UNDER CIRCUMSTANCES WAS NEGLIGENCE: Lawrence v. Green, 59 Am. Rep. 428; Gullim v. Lowell, 59 Id. 102, and note; Harris v. Hannibal etc. R. R. Co., 59 Id. 111, and note.

DEFENDANT NOT LIABLE WHERE INJURY TO PLAINTIFF was not proximate result of defendant's misconduct: Jackson v. Nashville etc. R. R. Co., 49 Am. Rep. 663.

LIABILITY OF RAILROAD COMPANY FOR NEGLIGENT ACTS OF ITS SER. VANTS: Kline v. Central Pacific R. R. Co., 99 Am. Dec. 282, and note.

LIABILITY OF Defendant FOR INJURIES SUSTAINED BY PLAINTIFF, limited to what cases: Kline v. Central Pacific R. R. Co., 99 Am. Dec. 282, note 289.

NEGLIGENCE OF CARRIER OF PASSENGER, who is injured by the concur rent negligence of carrier and another, is not contributory negligence of such passenger: Holzab v. New Orleans etc. R. R. Co., 58 Am. Rep. 177.

ADMISSIBILITY OF CONVERSATION OF AGENT OF RAILROAD COMPANY: Pennsylvania R. R. Co. v. Books, 98 Am. Dec. 229.

EVIDENCE OF SIZE OF PLAINTIFF'S FAMILY, his habits and pecuniary cir cumstances, when admissible: Pennsylvania R. R. Co. v. Books, 98 Am. Dec. 229, and note.

DAMAGES, WHAT INCLUDED AS SUCH, and amount, how determined: Pennsylvania R. R. Co. v. Books, 98 Am. Dec. 229, and note.

WHEN EXEMplary DamagES MAY BE FOUND: New Orleans etc. R. R. Co. ▼. Statham, 97 Am. Dec. 478, note 493.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MAINE.

OAK V. DUSTIN.

[79 MAINE, 23.1

DEFENSE OF DURESS OF PRINCIPAL cannot be made by surety against whom no duress was employed.

SCIRE FACIAS. The principal was not a party to the action. The surety defended on the ground that the bond was obtained by duress of the principal.

Crosby and Crosby, for the plaintiff.

Thomas H. B. Pierce, for the defendant.

By Court, WALTON, J. This is an action of scire facias on a bail bond. The defense is duress. Not duress of the surety, against whom the action is brought, but duress of the principal in the bond, who is not sued. It is claimed that he was unlawfully arrested on a writ, the oath, as the defendant contends, not being sufficiently formal to justify his arrest. The defense cannot prevail. The person on whom the duress was practiced is the only one who can take advantage of it as a ground of defense. It cannot be set up by a stranger, nor by a surety, on whom no restraint was imposed: Springfield Card Mfg. Co. v. West, 1 Cush. 388; Robinson v. Gould, 11 Id. 55.

In the case last cited, it is said that this distinction rests on sound principle; that he only should be allowed to avoid his contract upon whom the unlawful restraint or fear has operated; that the contract of a surety, if his own free act, and