Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/378

 § 374.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. circumstances of the case. 1 The circumstances of negligence cases are so diverse that a discussion of them would be of little practical value unless the greatest detail were gone into. On general principles, a person is not guilty of negligence or of contributory negligence for doing what he has a right to do. 2 Thus, every one has a right to cross the railroad track at a pub- lic crossing. To do so is not negligence. But if in so doing, a person does not make a vigilant use of his eyes and ears, he is negligent and cannot recover for injuries which would not have happened had he been vigilant. 3 1 Railroad Co. v. Stout, 17 Wall. 657; see Hays v. Miller, 70 N. Y. 112; Lambert v. Staten Island R. R. Co., ib. 104; Thurberr. Harlem, etc., R. R. Co., 60 N. Y. 331. A statute may render inapplicable the general principles of the law of contributory negligence. Thus, in Michigan, it is held that the liability of a railroad company for injuries to cattle resulting from its failure to fence its track, is not affected by the contributory negligence of the owner of the cattle. Grand Rapids, etc., R. R. Co. v. Cameron, 45 Mich. 451. 2 Thus, a person is not guilty of contributory negligence in pasturing his horses — as he has a right to do — on a town-common, even though it be dangerous; and he may still re- cover from a railroad company, if the latter injures them through its fault. Chicago R. R. Co. v. Jones, 59 Miss. 465; compare Lindsay v. Winona, etc., R. R. Co., 29 Minn. 411. Like- wise a railroad company has a right to use its own land for any legitimate purpose in the prosecution of its business. Such a use cannot be re- garded as unlawful or negligent be- cause it may obstruct the vision of those crossing the track. Cordell ». N. Y. C. and H. R. R. R. Co., 70 N. Y. 119. A passenger is not ordinarily guilty of contributory negligence in 358 acting on the assumption that the carrier is not negligent. Brassell v. New York C. & H. R. R. R. Co., 84 N. Y. 241 ; Chaffee v. Boston & L. R. R. Co., 104 Mass. 108; Baltimore & O. R. R. Co. v. State, 60 Md. 449. It is not contributory negligence for a passenger, in a railroad car, with a headache, to support his head on his hand with his elbow resting on the sill of an open window. Far- low v. Kelly, 108 U. S. 288; German- town Passenger Ry. Co. v. Brophy, 105 Pa. St. 38. But to ride with his arm outside the window is contribu- tory negligence. Todd v. Old Colony, etc., R. R. Co., 3 Allen (Mass.), 18; S. C, 7 Allen (Mass.), 207. 8 Salter v. Utica, etc., R. R. Co., 75 N. Y. 273; Lake Shore and M. S. R. R. Co. v. Miller, 25 Mich. 274; International and G. N. Ry. Co. v. Graves, 59 Tex. 330; Pennsylvania R. R. Co. v. Richter, 42 N. J. L. 180; Terre Haute and I. R. R. Co. v. Clark, 73 Ind. 168; C. C. C. & St. L. R'y Co. v. Miller, 149 Ind. 490; New Or- leans, J. and G. R. R. Co. v. Mitchell, 52 Miss. 808; Gahagan v. B. & M. R. R. Co., 70 N. H. 441; Carter v. Cen- tral Vt. R. R. Co., 72 Vt. 190; Cen- tral R. R. Co. v. Smalley, 61 N. J. L. 277; Berkeley v. C. & O. Ry. Co., 43 W. Va. 11; Phila. & Balto. R. R. Co. o. Holden, 93 Md. 447; Cole v. N. Y., N. H. & H. R. R. Co., 174 Mass. 537.