Where a railroad company voluntarily employs a watchman, and the practice is known to the traveler upon the highway, and such traveler has been educated into reliance upon it, the company establishes for itself a standard of due care while operating its trains across the highway. Having led the traveler into reliance upon such standard, a duty arises from or attaches to these precautions. The practice may not be discontinued without exercising reasonable care to give warning of such discontinuance. The duty is not absolute, in the same sense as where it is imposed by statute. Still, it cannot be less than that the company must use reasonable care to see that reliance by members of the educated public upon its representation of safety is not converted into a trap. Responsibility for injury will arise if the service is negligently performed or abandoned without other notice of that fact.
A truck passenger got injured when the truck was struck by a train at a railroad crossing. The passenger filed a negligence action against the railroad. At trial, it was found that a watchman voluntarily employed by the railroad gave a warning that was too late. The passenger, however, obtained a jury verdict for negligence against the railroad. On appeal, the railroad argued that the passenger was guilty of contributory negligence as a matter of law and that the jury was improperly instructed that defendant was negligent as a matter of law.
Was the passenger guilty of contributory negligence?
The court agreed with the railroad, holding that while the passenger had a duty to exercise reasonable care, there was a qualified assurance of safety in the absence of a flagman, so the contributory negligence issue was for the jury. The jury was properly instructed that the railroad was negligent, since the railroad voluntarily undertook to employ a watchman, and the passenger relied on that fact, so the railroad was under a duty to use reasonable care in performance of the duty, which it failed to do.