by John Marshall Harlan

“ Of course, when persons are acting under dangerous circumstances and conditions, it is their duty to act with respect to the danger that surrounds them, and to use a greater degree of care where there is much danger than where there is but little.'
The jury were also instructed that it was their duty to take into consideration all the evidence bearing upon the question of negligence, and, in the light of it all, determine whether the defendant was guilty of the negligence charged, or whether the plaintiff was guilty of negligence contributing to the injury. ”

“ The jury might well have understood the instruction to mean that the possibility or probability of personal injury to the plaintiff by leaving his wagon was an immaterial circumstance if, by adopting that course, he could have escaped injury by actual collision with the cars of the defendant. The railway company could not escape responsibility for the negligence of its servants, resulting in personal injury to the plaintiff, by showing that the latter might not have been so seriously injured if he had left or jumped from his wagon. ”

“ You have a right to take into consideration the observation that he made, so far as the evidence shows it,-whether he looked out, as he should have done, for the danger of coming cars or whether he listened. ”