The opinion of the court was delivered by
McEnery, J.The plaintiff sued the defendant company for $28,300 damages for the death of his son, who was killed on the track of said company by one of its trains on the 15th December, 1890. The ease was put at issue by a general denial. There was judgment for plaintiff for $20,000, and the defendant appealed.
In this case the facts are few, and the law well settled applicable to the same.
. The plaintiff’s son was a deaf mute and was walking on the railroad track, his back toward an approaching train, which was a special train, running at a high rate of speed. The engineer of the train gave the usual signal for the crossing, about one-half mile above Duke Station, near which the plaintiff’s son was killed.
When about a quarter of a mile from Duke Station another signal of four whistles was sounded. These signals could be heard two miles on a still day. The day was clear and bright. When the last crossing signal was sounded, the engineer saw a man valking on the track. This man was the deceased son of plaintiff. The engineer did not know of his infirmity. The man paid no attention to the signal,, and when within one hundred yards the engineer blew the danger signal rapidly, “very vicious and quick for anumber of times.” When within thirty or forty feet of the man, the engineer reversed the engine and applied the air brakes. But this last effort to avert the accident was too late and the deceased was run over.
The plaintiff’s contention from these facts is that the company was guilty of negligence in running a special train at a furious speed; that proper signalsjhad not been given before reaching Duke’s Station, and that he failed to give notice to the deceased son of plaintiff of the proximity of the train.
'The defendant company has the exclusive use and control of its tracks and road-bed, and it is within its discretion to run on said *251tracks as-many trains, regular or special, as its interests demand. There is no law regulating the speed of trains except in cities, whose crowded thoroughfares render this necessary. In the country, passing places where it is known that persons are in the habit of crossing the track in necessarily going from one place to another greater caution is required of a railroad company in running its trains than in unfrequented and scantily populated sections. In the absence of statutory regulations, common prudence requires this.'It is a necessity in many places, in fact, along the entire road, for it to be crossed at certain points by persons whose business or pleasure takes them across it. In these instances the party attempting to cross the road, before going on the tracks, has to exercise prudence and care, and to look and listen for an approaching train. If he does this, it is not negligence on his part to go on the track when no train is seen approaching. But where the party goes on the track for the purpose of using it as a highway, he, to a certain extent, assumes all risks, and it would require very gross negligence, amounting to malice, to make the railroad company liable for an injury to him. And this rule is particularly applicable when the deceased or party injured has a safer mode of travel by a public highway, as in the instant case.
' The deceased was a deaf mute. Greater care, caution and prudence were required from him than from one in full possession of all his senses. Knowing his infirmity, his use of the road as a highway, upon which trains at any time must pass, was in itself negligence.
The defendant company exercised all due diligence in running the train which killed the deceased. The usual and customary signals were given at the crossing, within the hearing of one not afflicted with deafness, and on the approach of the train to deceased he was given ample time, by signals, to get off the track. It was his unfortunate infirmity which caused the accident, and he was to blame for placing himself in a situation where hearing was one of the essentials of his safety.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided' and reversed, and it is now ordered that there be judgment for the defendant and plaintiff’s sui dismissed, with all costs.