\i il M ? a a •' i i. a n p-;r- , Lrt Iriot THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON THE LAW OF CARRIERS OF PASSENGERS IN TWO VOLUMES VOL. I. BY NORMAN FETTER In Author of a Handbook on "Equity Jurisprudence' St. Paul, Minn. WEST PUBLISHIN(] CO. 1897 ^1 1897 Copyright, 1897, BV Ts^ORMAN FETTER. d PREFACE. The law pertaining to carriers of passenjjers has jjrown with the growth of the carrying business; and the great bulk of the litigated cases, in the United States at least, has been decided since the close of the Civil War. With but few principles of the old common law to guide them, and with but little assistance from the legislative depart- ment, the courts have been compelled to grapple with new and interesting questions not foreclosed by the history of the past, "By free reasoning upon the actual facts of life," and guided by broad and comprehensive considerations of justice and public policy, the courts have practically created a new common law, instinct with all the vitality of youth. An effort has been made in the following pages to set forth, in an orderly manner, the living law on this subject as it exists to-day, and to give a concise account of its devel- opment, and of the reasons which have moved the judges to its adoption. To accomplish this object, the Reports have been ransacked volume by volume, and an attempt, at least, has been made to fuse and weld the great mass of material thus obtained into a clear and coherent narrative. The conflict uf opinion and the errors inevitably occurring in blazing the way through unexplored regions of jurispru- dence have been noted; but no attempt has been made to magnify ai)parent conflict of judicial opinion into a real con- flict. In taking leave of a task which has occupied several years, it is impossible to i-efi-aiii from paying a tiibute of respect (iii) 729678 IV PKXFAC'E. to the luj^ged sense of justice whicli has pervaded the great body of the judges in announcing the law on this subject. It is but the statement of a truism to say that the law which they have created in grappling with concrete questions day by day, and year by year, judge-made though it be, is more serviceable and more essentially just than any Code pro- mulgated by the legislative department on the advent of railways could possibly have been. In conclusion, the writer hereof acknowledges an indebt- edness to Mr. N. M. Thygeson, of the St. Paul bar, for many practical suggestions made during the progress of the work. N. F. St. Paul, Minn., Sept. 22, 1897. TABLE OF CONTENTS OF VOLUMES 1 AND 2. VOLUME 1. CHAPTER I. GENERAL PRINCIPLES GOVERNING CARRIERS LIABILTY. { 1. Liability Depends on Negligence or Willful Wrong. 2. Same— History of Rule. 3. Negligence Defined. 4. Essential Elements of Negligence. 5. Same— Duty to Exercise Care. 6. Same— Inadvertent Breach of Duty. 7. Same — Proximate Cause of Injury. 8. Degree of Care Required of Passenger Carriers. 9. Same — Reason of the Rule. 10. Standard of Care. 11. Higliest Practicable Care. 12. Unforeseen Accidents. 13. Duty to Adopt New Devices— Financial Ability. 14. Custom and Practice of Other Carriers. 15. Act of God and of Public Enemy. IG. Same Degree of Care Required Whatever Mode of Conveyance Adopted. 17. Same— Freight and Construction Trains. 18. Same— Street Cars. 19. Same — Stage Coaches. 20. Same— Vessels. V. 1 FET.CAR.PAS. (v) Vi TABLE OF CONTENTS. § 21. Ramc^Passonser Elovatoi's. 22. No Distinc-fion between Different Classes of Passengers. 23. Duty Extends to Vehicles Other than the One in Which the Pas- senger is Carried. 24. Statutory Liability. 25. Same— California Code. 26. Same— Goorfiin Code. 27. Same— Nebrasl^a Statute. 2S. I'rovlnce of Court and .Jury. CHAPTER II. DUTY OF CARE AS TO MEANS OF TRANSPORTATION. § 29. Duty as to Roadbed. 30. Same— Negligence of Employes and Independent Contractors, 31. Same— Act of God. 32. Same — Guarding against Act of God. 33. Same— Acts of Public Enemy. 34. Same — In.spection and Repair. 35. Same — Obstructions. 36. Same— Cattle on Track, 37. Same— Street-Car Tracks. 38. Duty as to Vehicles. 39. Same— Latent Defects. 40. Same — Liability for Negligence of Manufacturer. 41. Same — Inspection. 42. Same — Guarding Car Windows. 43. Same— Car Platforms. 44. Same— Motive Power for Street Cars. 45. Same— Statutory Requirements. CHAPTER III. DUTY OF CARE IN CONSTRUCTION AND MAINTENANCE OF STATIONAL FACILITIES. § 46. Extent of Duty. 47. Degree of Care. 4.y. Defects in Station Buildings. TABLE OF CONTENTS. Vll § 49. Station riatlonns. .".)). Same— Ad.justmont Bct\won riatforiu and Trains. r»l. Approaclit's. 52. Ownership by Third Persons. .")o. Snow and Ice. 54. Lights. CHAPTER IV. DUTY OF CARE IN RECEIVING AND DISCHARGING PAS- SENGERS. § 55. Degree of Care Reiiuired. . 56. Safe Facilities. 57. Same— Duty to Afford Passengers the Use of Stational Fa- cilities. 55. Same— Invitation to Alight. 59. Same— Failure to Bring Train up to Platform. (■)(). Same — Personal Assistance, til. Same— Moving Trains on Intervening Tracks, tili. Same— Existence of Safe and Unsafe Exit. t)3. Same— Freight Trains. 64. Same— Street Cars. 65. Same — Vessels. tiC). Reasonable Time to Get On and Off.' 67. Same— Signals for Starting. 68. Same— Sudden Movement of Train after Invitation to Get On or Off. (')!>. Same— Direction to Leave Moving Train. 70. Same— Specific Rules as to Receiving and Discharging Pas- sengers. 71. Same— Freight Trains. 72. Same— Street Cars. 7o. Same— Elevators. CHAPTER V. DUTY OF CARE DURING TRANSPORTATION. § 74. Degree of Care. 75. Formation- of Trains— Concussion of Cars. 76. Same— Position of Cars in Train. \iii TABLE OF CONTENTS. § 77. Same — Street Cars, 78. Rate of Speed. 71.». Same— Freight Trains. 80. Same— Street Cars. 81. Suddeu Jerlc of Cars. 8:.'. Crowded Cars aud Platforms. 80. Same— Street Cars. 84. Same— Stagecoaches. 85. Permitting Passenger to Ride on Platform of Street Car. 80. Yostlbided Trains and Sleeping Cars. 87. Slamming of Car Door. 88. Collisions— Between Trains Running on Same Track. 8'J. Same— Between Trains at Grade Crossings. 90. Same— At Street-Railway Crossings. 91. Same— Between Street Car and Vehicle. 9:.'. Other Breaches of Carrier's Duty during Transportation. 93. Statutory Provisions against Fires and Explosives ou Trains. 94. Stagecoaches. CHAPTER VI. DUTY OF CARE IN EMPLOYMENT OP SERVANTS. § 95. Must Furnish Careful and Competent Employes. CHAPTER VII. DUTY TO GUARD AGAINST ACTS OF THIRD PERSONS. § 96. Principle Governing Liability. 97. Assault on Passenger. 98. Same — Knowledge of Danger. 99. Same — By Insane Passengers. 100. Abusive Language and Disorderly Conduct. 101. Other Wrongs to Passengers. 102. Crowds at Stations. 103. Interference with Passengei'S Embarking on and Alighting from Trains. 104. Train Wrecking. 105. Missiles Thrown from Cars. TABLE OF CONTENTS. . IX CHAPTER Vm. DUTY TO PASSENGERS UNDER DISABILITY. § 106. Passenger under Disability Entitled to More Attention than Ordinai-y Passenger. 107. Sick and Infirm Passengers. 108. Same— Duty in Receiving and Discharging. 109. Same— Ejection and Carrying Past Destiuaiion. 110. Children. 111. Intoxicated Passengers. 112. Same — Ejection. CHAPTER IX. PROXIMATE CAUSE. I 113. Definition and General Principles 114. Province of Court and Jury. 115. Examples of Proximate Cause. 116. Examples of Remote Cause. 117. Intervening Cause. 118. Coml3ined and Concurring Causes. 119. Particular Injuries— Distinction between Actions on Contract and in Tort. 120. Same— Exposure from Failure to Carry Passenger to Destina- tion. 121. Same — Dangers Encountered from Failure to Carry to Destina- tion. 122. Same— Unusual Consequences of Personal Injuries. 123. Same— Predisposition to Disease. 124. Same— Pecuniary Loss. CHAPTER X. CONTRIBUTORY NEGLIGENCE. % 12.">. Tlie Common-Law Doctrine. 126. Willful Injuries. 127. Definition. X TABLE OK CONTENTS. § 12S. Dfjireo and Standard of Care. 121). Duty to Use Senses and Ascertain Facts. 130. Reliance oh Carriei-. 131. Same— On Carrier's Servants. 132. T'se of Station Platform— Knowledge of Defects. 133. T'sins I'nli.aiited Premises. 134. Standing,' near Ed^e of Station I'latform. 135. Standing betAveen Car Tracks. 1SC>. Cro.ssing Railroad Track at Station. 137. Same— At Intermediate Station. 3.3S. Same— Stepping from Car to Track. 131). Same— Street Cars. 140. AValking along or near Track. 141. Crawling imder or between Cars. 142. Boarding Car Ahead of Time. 143. Boarding Car Not Drawn up at Station Platform. 144. Boarding or Leaving Train on Wrong Side, or by Improper Entrance or Exit. 145. Same— Front Platform of Street Car. 146. Alighting at Dangerous Place— Invitation. 147. Same— .Tumping from Car Steps to Ground. 14S. Boarding or Alighting from Stationary Street Car. 141). Boarding or Alighting from Moving Train, 150. Same— Boarding Moving Train. 151. Same— Alighting from Moving Train. 152. Same— Aggravating Circumstances, 153. Same— Mitigating Circumstances. 154. Same— Advice or Command of Tiain Hands. 155. Same— Statutory Provisions. 15(i. Boarding Moving Street Car. 157. Same— Alighting from Moving Street Car. 15S. Same— Front Platform. 159. Same— Passenger Incumbered with Packages. IfiO. Passengers on Vessels, 161. Boarding Passenger Elevator. 162. During Transportation. 163. Placing Hand in Door .Tamb. Itt4. Projecting Limb or Head Outs,ide of Car. 165. Standing, or Occupying Dangerous Seat, in Car. 166. Passing from Car to Car on Moving Train, TABLE OF CONTENTS. XI § 107. Riding on riatform. 168. Same— Street Car. 169. Same— Front Platform of Street Car. lT. Person Engaged in Business on CaiTier's Vehicle. 21G. Person Assisting Gamer's Servant. 217. Gamer's Employes. 218. Soldiers. 219. Slaves. 220. Persons Engaged in Illegal Acts— Sunday Travel. 221. Prepayment of Fare. 222. Same — Fi'aud on Garrier. 223. Same— Fraudulent Use of Pass or Ticket. 224. Person Riding in Dangerous or Prohibited Places. 225. Persons on Freight Trains. 226. Persons on Other Non Passenger Carrying Vehicles. 227. I'ersons on Wrong Train. 228. When Relation Begins— Persons at Station. 229. Same — Omnibus and Street Car. 230. Same — Persons Boarding Moving Trains or Street Cars. 231. When Relation Terminates. 232. Same — Failure to Leave Train. 233. Samc^Street Cars. 234. Same— Passenger Leaving Conveyance at Intermediate Sta- tion. CHAPTER XVII. DUTY TO GRATUITOUS PASSENGERS AND PERSONS NOT PASSENGERS. § 23.5. Duty to Gratuitous Passengers. 230. Duty to Invited Persons, Licensees, and Trespassers. 237. Same — Escorts of Passengers. 238. Same — Persons Having Business at Saticus. Xiv TABLE OF CONTENTS. § 239. Saino-Lici'ii.stes at Stations. 240. Same— Trespa.ssers on Trains. 241. Same— Trespa.s.siug Cliildren. CH ALTER XVIII. DUTY TO ACCEPT AND CARKl' PASSENGERS, § 242. Carrier must Accept All Proper l*ersons. 24o. Who may be Rejected. 244. Same — Business Rivals. 245. Same— Exclusive Station Privileges. 246. Same— Waiver of Right to Reject. CHAPTER XIX. CARRIER'S RULES AND REGULATIONS. § 247. Power of Carrier to Make. 248. Province of Covut and .Tury. CHAPTER XX. DUTY AS TO ACCOMMODATIONS. § 240. ^lust Furnish Reasonable Accommodatious. 250. At Stations. 251. During Transportation— Seats. 252. Same— Heating Cars, 253. Sleeping Cars. 254. Chair Cars. 255. Separation of Passengers on Account of Sex. 256. Separation of Passeng(>rs on Account of Color, 257. Same— Statutes Requiring Separation. 25S. Same— Statutes Requiring Equal Accommodations. TABLE OF CONTENTS. XV CHAPTER XXI. FAKES. § 2.r»9. Right to— Rensonablouess. 260. State Kegulatiou. 201. Same— Of Street-Railway Fares by City. 262. Same — Interstate Commerce Act. 263. Same— Penalty for Excessi^ive Fare. 264. Same — Free Passes to Public Oflicers. 20'). Same— Sale of Tickets by Scalpers. 266. Mode of Payment. 267. Time of Payment. 268. Higher Train Fare. 269. Same— Reasonable Opportunity to Purchase Ticket. 270. Same — Excessive or Unreasonable Train Fare. 271. On Freight Trains. 272. Free Pass— Contract for. 273. Remedies of Carrier for Nonpayment. 274. Recovery Back by Passenger. CHAPTER XXII. TICKETS. § 275. Natxire and Effect. 276. Conditions and Stipulations in Ticket— Constrnotion. 277. Collection and Surrender of Tickets. 278. Same— Detaching Coupons from Mileage or Commutation Tickets. 270. Loss of Ticket. 280. Riding Extra Distance or Part of Distance. 281. Riding in Reverse Direction trom That Indicated on Ticket. 282. Assignability of Ticket. 283. Forli'ilure of Ticket. 284. Provision for Identification of Purchaser. 28.">. Limilatiouas lo Time. 28(!. Same— Limitation by Regulation not Expressed in Ticket. 287. Same— Limitation must be Reasonable. 288. .Same — Construction of Limitation. XVi TABLK OF CONTENTS. § 289. Same— Waiver of Limitiition. 290. Same— Maine Statute. 291. Continuity of Journey, -M-. Same— Coupon Tickets. 29o. Same— Stop-Over Privileges. 294. Same— California Statute. 293. Street-Car Transfers and Tickets. CHAPTER XXIII. DUTY TO CARRY PUNCTUALLY AND TO DESTINATION. 2!)0. Punctuality in Ruuning Time. 297. Same— Ferrymen. 298. Duty to Carry from Place of Departure to that of Destination. 29l>. Failure to Take on Passenger. 390. Failure to Carry to Destination. ."01. Same — Announcing Station. 302. Regulations as to Stopping Places for Trains. 303. Same— Pass(-nger's Duty to Know Regulations. 304. Same — Rights and Duties of Passenger on V/roug Train. 305. Same— Representations of Ticket Agent. 306. Same— Waiver by Conductor. 307. Same— Waiver by Custom. 308. Regulations Restricting Tickets to Particular Trains. 309. Restriction as to Train in Ticket. 310. Restriction as to Route. CHAPTER XXIV. EJECTION. 311. Right to Eject Passenger. 312. Refusal to Pay Fare, or to Exhibit or Surrender Ticket. 313. Same— Person Accompanying Passenger. 314. Same— Tender of Fare after Ejection Begun. 315. Same— Right to Resume Journey after Ejection. 310. Same— Loss of Ticlcet or Fare. 317. Same— :\Iistake as to Ticket or Fare. 318. Same— Demand of Exce.>. Same— Resistance of Passenger. 33(>. Same— Orders and Threats. 337. Same— Province of Court and Jury. 338. Refunding Fare. 339. Duty of Ejected Passenger. V. 1 FET.CAR.PAS. 6 Xviii TABLE OF CONTENTS. VOLUME 2. CHAPTER XXV. LIABILITY FOR SERVA^^T'S ACTS. 340. Master's Liability for Servant's Torts. 34L History anrl Reason of the Rule. 342. No Distinction between Corporations and Individuals. 343. Who are Servants. 344. Same— Independent Contractors. 34.J. Same— Physicians and Surgeons. 34(;. Same— Pilots. 347. Same— Double Employment. 348. Same— Police Duties. 34!). Same— Person Assisting Servant. 3r)0. Same— Evidence of Employment. 3.')!. Torts Commanded or Ratified by Master. 3~>2. Negligence of Servant. S,"),'!. Excessive or Erroneous Execution of Authority. 354. Same— Exploded Rule Exempting Master from Liability for AMllful Torts of Servant. 3.">."). Same— Misconduct at Stations. 3.")<;. Same — Directing or Assisting Passenger in Boarding or Aligiit- ing. 357. Same— Inviting I'ersons to Ride in Dangerous and Prohibited Places. 3.5S. Same — Ejection of Passengers. 3."it). Same — Ejection of Trespassers. StiO. Same — False Imprisonment and Arrest. 3(51. Same — Enforcing Payment of Fare. 3L>2. San)e — Directing Performance of Perilous Si"i vice. TABLE OF COXTENTS. XIX 363. Same — Warning Passengers of Danger. 364. Same— Violation of Master's Orders. 365. Absolute Liability of Common Carriers. 366. Same— Applications of Kule. 367. Same— Justitiable Assaults. 368. Same — ^yhen Terminates. 369. Indeiiendent Torts of Servants. 370. Contracts of Agents. CHAPTER XXVI. CONNECTING CAKRIEKS. AND LEASE AND OWNERSHIP OP RAILROADS AS AFFECTING CARRIERS LIABILITY. § "371. Connecting Carriers— Liability of Carrier for Its Own Torts. 372. Same— Liability of First Carrier for Torts of Connecting Car- rier. 373. Same— Partnership or Joint Management. 37-1. Same— Refusal to Honor Ticket. 375. Same— Rights and Liabilities as between Themselves. 376. Use of Another's Means of Transportation— Liability of Carry- ing Company. 377. Same — Liability of Track-Owning Company. 378. Same— Railroad and Sleeping-Car Companies. 37'J. Lease of Railroads— Liability of Lessee. 380. Same — Liability of Lessor. 381. Sale of Railroad. 38'-'. Consolidation of Railroads. 383. Ultra Vires Defense. CHAPTER XXVU. RECEIVERS AND MORTGAGE TRUSTEES AS CARRIERS. § 384. Receivers as Common Carriers. 385. Same— Actions against. 386. Same— Liability of Railroad Company. 387. Same— Effect of Discharge. 388. Mortgage Trustees. XX TABLE OF CONTENTS. CHAPTER XXVIII. LT^FTTATIOX AND DISCHAKGE OF LIABILITY. § 3S9. Power to Stipulate against Negligence. 390. Same— Statutory Proliibitions. 391. Same— Rule iu New Yorlv aud in Euglaud. 392. Same— Gross Negligence Rule. ^^■6. Same— Gratuitous Passengers. 394. Same— Who are Gratuitous Passengers. 395. Same— Express Messengers. 396. Same— Connecting Lines. 397. Same— Limitation as to Amount of Recovery. 398. . Conflict of Laws. 399. Mode in Wbicli Limitation may be Made. 400. Same— Contract with Third Person. 4U1. Construction of Contract. 402. Release and Discharge after Injury. 403. Same— Rescission. 404. Same— Ratification and Laches. CHAPTER XXIX. CARRIERS BY WATER. § 405. No Distinction in Principle between Carriers by Water and by Land. 40G. Duty to Carry to Destination without Delay. 407. Accommodations, 408. Authority and Power of Master. 409. Duty to Passengers in Shipwreck. 410. Admiralty .lurisdiction. 411. Same — Liability of Vessel. 412. Liability of Master. 413. Statutory Regulations— Emigi ant or Steerage Passengers. 414. Same— Steam Vessels. 415. Same— Carrying Excessive Number of Passengers. 41G. Same— Carrying Explosives. 417. Statutory Limitation of Vessel Owners' Liability. , TABLE OF CONTENTS. XXI § 41S. Same— To What Claims Statute Extends. 419. Same— To What Waters and Vessels Applicable. 420. Same — ^Ascertaining Value of Vessel. CHAPTER XXX. REMEDIES AND FORMS OF ACTION. § 421. Action for Damages and Writ of Mandamus. 422. Form of Action. 42.3. Same— Personal Injuries Negligently Inflicted. 424. Same— Failure to Receive Passenger, or to Carry to Destina- tion. 425. Same— Ejection of and Assaults on Passengers. CHAPTER XXXI. PARTIES. § 426. Distinction between Actions on Contract and in Tort. 427. Plaintiffs. 428. Defendants. CHAPTER XXXII. PLEADING. § 429. Statement of Plaintiff's Cause of Action— In Action Based on Negligence. 430. Same— Alleging Duty of Care— Relation of Carrier and Passen- ger. 431. Same— Alleging Negligence. 432. Same — Alleging Contributory Negligence. 433. Same — Actions for Ejection or Failure to Carry to Destina- tion. 434. Same— Alleging Damages. 435. Same— .Joinder of Causes of Action. 4.3(5. Defensive Pleadings, 437. Amendments. 438. Pleading and Proof— Variance. xxii TABLE OF CONTENTS. § 439. Same— Allesalions as to Place. 440. Same— Allegations of Negligence. 441. Same— Allegations of Gross Negligence and Willfulness. 4i-2. Same— Allegations by Plaintiff Negativing Contributory Neg- ligence. 443. Same— lu Actions for Ejection and Failure to Carry to Destimi- tiou. 444. Same— Allegations as to Damages and Injuries. 445. Same— Defendant's Pleadings. 446. Same— Waiver of Objections. CHAPTER XXXIII. EVIDENCE-COMPETENCY, RELEVANCY, AND MATE- RIALITY. § 447. Knowledge of Defects or Incompetency. 448. Custom and Usage. 440. Other Acts of Negligence. 450. Other Accidents. 451. Other Defects. 452. Subsequent Precautions and Repairs. 453. Declarations against Interest. 454. Same— By Agents or Employes. 455. Declarations in Favor of Party Making Them. 456. Same— Declarations and Exclamations of Pain. 457. Declarations and Acts of Third Persons. 458. Real or Demonstrative Evidence. 459. Photographs. 460. Physical Examination of Plaintiff. 46L Best Evidence— Evidence on Former Trial. 462. Miscellaneous Decisions— Negligence and Contributory Negli- gence. 463. Same — In Actions for Ejection and Wrongful Arrest, 464. Same— As to Damages and Injuries. 465. Opinion Evidence. 466. Same — As to Injuries and Damages. 467. Expert Evidence. 468. Same— On What Subjects Competent. 469. Same— Medical Experts. TABLE OF CONTENTS. XXIU § 470. Same— Medical Opinions Based on Statements Made out of Court. 471. Same— Examination of Experts. 472. Privileged Communications. CHAPTER XXXIV. EVIDENCE (Continued)-WEIGHT AND SUFFICIENCY. 47o. Burden of Proof. 474. Same— As to Breach of Duty. 475. Same— As to Damages and Injuries. 47G. Same— Contributory Negligence. 477. Degree of Proof. 478. Judicial Notice. 479. Presumption of Being Passenger. 4S(). Presumption of Negligence- Happening of Accident. 481. Same— Accidents on Road Vehicles. 482. Same— Derailment of Car or Train. 483. Same— Collision. 484. Same— Explosions. 48.5. Same— Defective Roadbed and Machinery. 486. Same— Concussion of Cars, and Jars of Trains and Boats. 487. Same— Injuries to Passengers While Embarking and Alight- ing. 4SS. Same— Falling Objects and Missiles. 48t>. Same— Death of Passenger. 49(». Same— Other Cases Where Presumption has Obtained. 491. Same— Other Cases Where Presumption has not Obtained. 492. Same— Contributory Negligence. 49:>. Same— Persons not Passengers. 494. Same— Rebutting tlie I'n sumption. 49.5. Same— Rule in Texas. 490. Same— Statutory Presumptions. 497. Credibility of Witnesses. 498. Same— Contradictory Statements. 499. Same— Falsus in Uno, Falsus in Omnilms. ".0(1. Positive and Negative Te.stimouy. .'(il. Failure to Call \Aitness. 502. Weighing Kxi rrt Evidence. Xxvi TABLE OF CONTENTS. § 5G3. Same— Female Troubles. 564. Same— Loss of Society, Services, etc. 5G5. Assault, Insult, and Arrest. 500. Failure or Refusal to Accept and Carry Passenger. 507. Denial of Accommodations. 5GS. Carrying Past Destination. 569. Ejection. 570. Same— Personal Injuries. 571. Same— Good Faith of Conductor. 572. Same— At Place Other Than a Station. 578. Compelling Payment of Two Fares. 574. Practice— Remittitur. 575. Inadequate Damages. CHAPTER XXXIX. DEATH BY WRONGFUL ACT. § 576. Common-Law Rule. 577. Modern Statutes. 57S. Same— Massachusetts Statutory Provisions Pertaining to Pa> sengers. 579. Same— Statutes of Missouri, Colorado, and New Mexico, CHAPTER XL. BAGGAGE. § 580. Carrier's Liability. 581. Same— Consideration for Carriage 582. Same— Act of God. 583. Same— Act of Public Enemy. 584. Same— Seizure on Legal Process. 585. Same— Instances Where Liability has been Enforced. 580. Duty to Carry. 587. What Constitutes Baggage. 588. Same— Province of Court and Jury. 589. Same— Wearing Apparel. 590. Same— Household Goods. 591. Same— Tools and Surgical Instruments. 592. Same— Manuscripts. TABLE OF CONTENTS. XXVll t 503. Same— Theatrical Paraplierualia, 594. Same— Jewelry, 595. Same — Bicycles. 590. Same— Firearms. 597. Same — Dogs. 59S. Same — Money. 599. Same— Duty to Disclose Value. 600. Same— Property of Tiiird Persons. 601. Same— Passenger to Accompany. 602. Merchandise. 603. Same— Custom and Usage. 604. Same— Carrier's Duty to Inquire. 605. Same— Payment of Extra Compensation. 606. Same— Knowledge of CaxTier. 607. Rights of Passenger as to Property not Baggage. 60S. Duration of Liability as Insurer. 609. When Liability Begins. 610. Same— Notice to Carrier. 611. Same— Purchase of Ticket. 612. Same— Agent's Authority to Receive Baggage. 013. Termination of Liability. 614. Same— What is Reasonable Time for Delivery. 615. Same— Delay for Convenience of Carrier. 610. Same— Delay for Convenience of Passenger. 617. Same— Delivery According to Custom. 61S. Same— Mistake. 619. Same— Passenger Stopping at Intermediate Station. 620. Same— Death of Passenger During Voyage. 621. LiabiHty as Warehouseman. 622. Same— Termination of Liability. 623. Connecting Carriers— Liability of Each as to Its Own Line. 624. Same— Liability of First Carrier Beyond Its Line. 625. Same— Liability of Connecting Carrier Beyond Its Line. 626. Same— Partnership and Joint Traffic Arrangements. 027. Limitation of Liability by Contract. 628. Same — Connecting Lines. 629. Same— Mode in Which Liability may be Limited. 630. Limitation as to Value of Baggage. 631. Same— Mode in Which Liability may be Limited. 032. Statutory Limitation of Liability. XXVlll TABLE OF CONTENTS. § 633. Conflict of Laws as to Limitation of Liability. 634. Carrier's Lien for Fare. 635. General Average Contribution. CHAPTER XLI. PROPERTi IN PASSENGEK S CUSTODY. § 636. Carrier's Liability. 637. Same— Railroad Companies. 638. Same — Steamboats and Vessels. 639. Same— Sleeping Cars. 640. Same — Liability of Railroad Company for Loss of Articles from Sleeping Car. 641. Same — Articles Left in Car. 642. For What Property Liable. 643. Contributory Negligence of Passenger. CHAPTER XLII. ACTIONS PERTAINING TO BAGGAGE. § 644. Parties. 645. Form of Action. 646. Pleading. 647. Admissibility of Evidence. 648. Same— Declarations of Agent or Employe. 64y. Same— Opinion Evidence. 650. Burden of Proof, and Presumptions. 651. Same— Possession of Baggage Checks. 652. Measure of Damages— Loss of Baggage. 653. Same— Delay in Delivery. TABLE OF CASES CITED. (Page 1555.) INDEX. (Page 1615.) t A TREATISE ON THE LAW OF CARRIERS OF PASSENGERS. VOL. 1. CHAPTER I. GENERAL PRINCIPLES GOVERNING CARRIER'S LIABILTY. § 1. Liability Depends on Negligence or Willful Wrong. 2. Same— History of Rule. 3. Negligence Defined. 4. Essential Elements of Negligence. 5. Same— Duty to Exercise Care. 6. Same— Inadvertent Breach of Duty. 7. Same— Proximate Cause of Injury. 8. Degree of Care Required of Passenger Carriers. 0. Same— Reason of the Rule. 10. Standard of Care. 11. Highest Practicable Care. 12. Unforeseen Accidents. 13. Duty to Adopt New I )evices— Financial Ability. 14. Custom and Practice of Other Carriers. 15. Act of (iod and of Pulilic Enemy. 16. Same Degree of Care Required Whatever Mode of Conveyance Adopted. 17. Same— P^'reight and Construction Trains. 18. Same— Strcet Cars. V. 1 FET.CAR.PAS 1 (1) § 2 CARRIERS OF PASSENGERS. (Ch. 1 I'J. Same— Stage Coaches. 20. Same— Vessels. 21. Same— Passenger Elevators. 22. No Distinction botweou Different Classes of Passengers. 23. Duty Extends to Vehicles Other than the One in Which the Pas- senger is Carried. 24. Statutory Liability. 25. Same— California Code. 2G. Same— Georgia Code. 27. Same— Nebraska Statute. 28. Province of Court and Jury. § 1. LIABILITY DEPENDS ON NEGLIGENCE OR WILL- FUL WRONG. A common carrier is not an insurer of passengers; and a passenger who has been injured on his journey is bound to show that the injury re- sulted either from the w^illful wrong or from the negligence of the carrier or his servants.^ § 2. SAME— HISTORY OF RULE. lu the ancient common law the leading idea seems to have been that a man ought to pay for all the liarm he docs his neighbors, without regard to any question of blameworthiness.^ "He that is damaged ought to be recompensed," was the maxim. ^ This principle seems SI. 1 Nicholls V. Railroad Co., Ir. R. 7 C. L. 40. § 12. 12 Pol. & M. Hist. Eng. Law, 474. 2 Brown v. Collins, 53 N. H. 442. In this case the court says: "The drift of the ancient English autlioiities on the law of torts seems to dif- fer materially from the view now prevailing in this country. P""or- merly, in England, there .seems to have been no well-defined tost of an actual tort. Defendants were often held liable, 'because,' as Ray- C2) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 2 to have applied with its full force to bailees of prop- erty. Mr. Justice Holmes ' has shown that from the earliest cases in the Year Books down to the great case mond says, 'he that is damaged ouj;bt to be recompensed'; and not because, upon some dearly-stated principle of law, founded upon ac- tual culpability, public policy, or actual justice, he was entitled to compensation from defendant." Even in very recent times cases have been decided on the principle that a man is liable for injuries to his neighbor without fault on his pait. The leading modern case is Fletcher v. Rylands. L. R. 1 Exch. 265, affirmed in L. R. 3 H. L. SoO. In this case it was held that one who on his own land constructs n reservoir, and collects water therein, must keep it in at his peril; anil if it escapes, and injures his neighbor's property, he must answer In damages, though he exercised proper care in the construction and maintenance of the reservoir. "He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of the vis major or the act of God:" but otherwise he is liable. This case has been followed in some or tne American courts, but for the most part the principle of the decision has been rejected as unsound. "No one is responsible for injuries result- ing from unavoidable accident while engaged in a lawful business," says the supreme court of the United States in Parrott v. Wells, Fargo & Co., 1.5 Wall. 524. Some years earlier. Chief Justice Shaw said: "We thinli, as the result of all the authorities, that the rule is that the plaintiff must come prepared with evidence to show that the intention was unlawful, or that defendant was in fault; for, if the injury was unavoidable, and the conduct of the defendant free from blame, lie will not be held liable. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury aris- ing therefrom." Brown v. Kendall, Cush. (Mass.) 292. The court of appeals of New York has announced the same doctrine: "One who does an act lawful in itself, from which damage results to another, is not answerable for such damage, unless lie has been guilty oi negn- gi'uce or other fault in the manner of doing the act." Losee v. Buch- anan, 51 N. Y. 470. In view of the fact that the liability of conunon carriers of passengers is now concededly based on negligence, it is un- necessary to pursue the sul>ject furtlier. 3 Holmes, Com. Law, c. 5, "I'.ailnients." § 2 CARRIERS OF PASSENGERS. (Ch. 1 of Soutlicot Y. Bennet,* decided in Lord Coke's time, re- affirmiug the old doctrine, "it was clear law that, if a person accepted the possession of goods to keep for another, even as a favor, and lost them by wrongful taking, wholly without his fault, he was bound to make good the loss, unless when he took possession he stipulated against such liability." ' This continued to be the law until 1703, when the old common law was overthrown by Lord Holt in the famous case of Coggs V. Bernard.^ In that case the chief justice dis- tinuuished between bailees for reward exercising a public employment and other bailees, denied the ap- plication of the old common law to the latter class, but on grounds of public policy held it applicable with something more than its pristine rigor to the former class.^ "The law charges the person, thus intrusted, to carry goods as against all events but the act of God and the enemies of the kin«*," is Lord Holt's dictum in this case. This dictum was formally adopted as the common law bv solemn decision in Lord Mansfield's time; ^ and now the fundamental principle of the com- mon law on this subject is that a common carrier of goods is answerable for their safety as insurer, except as against the acts of God and the public enemies, without regard to any question of negligence.^ For a time at least it seemed doubtful whether or 4 Cro. EUz. 815; 4 Coke, 83b. 6 Holmes, Com. Law, p. 179. See, also, 2 Bl. Comm. 452. 6 2 Ld. Raym. 909; 1 Smith, Lead. Cas. 369. " Holmes. Com. Law, c. 5. 8 Forward v. Pittard, 1 Term R, 27. 2 Kent, Comm. 597. (4) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 2 not the same principle would be applied by the courts to common carriers of persons. The earliest reported case where a common carrier was sued for personal in- juries to a passen«>('r is that of White v. Boulton/" de- cided in 1791. In that case it was contended ou be- half of defendant, who was proprietor of a mail coach, that the passenger traveled at his own risk, because the coach proprietor was primarily engaged in a branch of the public service, to wit, carrying the mails. But Lord Kenvon curtlv said that the idea Avas "too absurd to enter the head of any man." "When these coaches carry passengers, the proprietors of them are bound to carry them safely and properly." A number of other early decisions proceeded on the assumption that common carriers of passengers are in- surers of their safe transportation, at least so far as roadworthiness of vehicles is concerned. ^^ And in Alden v. New York Cent. R. Co.^- it was expressly held that a common carrier of passengers is bound, abso- lutely and irrespective of negligence, to provide road- worthy vehicles. The great weight of authority, how- ever, has always been that the liability of carriers of passengers depends on negligence. In 1809, Chief Justice Maustield charged the jury: ^^ "There is a difference between a contract to carry goods and a con- tract to carry passengers. For the goods the carrier is answerable at all events. But he does not warrant 10 reake, 113. 11 Sharp V. Grey, 9 Bing. 457; Bremuer v. Williams, 1 Car. & P. 414, 41*;: Israel v. Clark, 4 Esp. 259, i-2t;X. Y. 102. 13 Christie v. Griggs, 2 Camp. 79. (3) § 2 CARRIERS OF PASSENGERS. (Ch. 1 14 the safety of passengers." In Aston v. Heaven, Chief Justice Eyre rnled tliat an action against a car- rier for injuries to a passenger is founded on negli- gence: and the carrier is not, like a carrier of goods, liable in all cases except where the accident happens from the act of God or of the king's enemies. But it ^Yas not until 1869 that the question was finally settled in England. In the case of Readhead v. Railway Co.'' the court said: "We are of opinion, after considera- tion of the authorities, that there is no contract either of greneral or limited warranty and insurance entered into by the carrier of passengers, and that the contract of such a carrier and the obligation undertaken by him are to take due care (including in that term the use of skill and foresight) to carry a passenger safely. It of course follows that the absence of such care — in other words, negligence — would alone be a breach of this contract." ^" 14 2 Esp. 532. See, also, Crofts v. Waterhouse, 3 Bing. 319; Harris V. Costar, 1 Car. & P. 636. 15L. R. 4Q. B. 379. 16 In Bridges v. Directors, etc., of North London Railway Co.. L. R. 7 H. L. 231, Brett, J., said: "It is an implied part of tlie contract of carriage that defendants and their servants will use reasonable care and skill in the conveyance of passenger to his agreed destination. And if defendants or their servants have been negligent or wanting in i-easonable skiU in the conveyance, and the passenger has been injured, there has been a breach of contract, for which defendants are liable, and for which the passenger is entitled to compensation by way of damages." In Butler v. Manchester, S. & L. Ry. Co!, 21 Q. B. Div. 207, it is said: "The contract between the passenger and the carrier really is that, on his paying the fare for the jomney, it will carry him in its carriage on the journey for which he has paid the fare, using due care for his safety while so doing." (6) Ch. 1} GENERAL PRINCIPLES GOVERNING LIABILITY. § 2 In the United States the conrts have been equally emphatic in deelarinii- that carriers are not insurers of the safety of their passengers. As long ago as 1845 the supreme court of Massachusetts, in an able opin- ion/" declared the rule to be that carriers are bound to exercise due care for the safety of their passengers; but that, if an injury happens to a passenger which cannot be guarded against by the exercise of a sound judgment and vigilant oversight, the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no redress in the form of pecuniary recompense. "The analogies of carriers of freight have nothing to do with passenger carriers. These are liable only when there has been actual neg- ligence of themselves or their servants." '^ "A com- mon carrier of passengers is not an insurer of the pas- senger's safety against all the accidents and vicissi- tudes of travel, but is an insurer against all risks caus- ed or increased by the negligence of the carrier, where the passenger is not at fault. The negligence of a common carrier in carrying the passenger includes his negligence in all the departments of his undertaking: the condition of the road, the character of the ma- chinery, the quality of the cars, the sufficiency of the equipments, the skill and conduct of the agents and employees,— in everything, indeed, necessary to the safety of the passenger when he is not himself at fault." " 17 Ingalls V. Bills, 9 Mctc. (Mass.) 1. IS (Jrnnd Rapids & I. R. Co. v. Huntley, 38 Mich. 537. i» (iiaiid Rapids & I. R. Co. v, Boyd, 65 Ind. 526. (7) § 2 CARRIERS OF PASSENGERS. (Ch. 1 This rule is now in force throughout the United States, except in Nebraska, where it has been modified by statute." It has been adopted as law by the su- preme court of Louisiana, where the civil law pre- vails.-^ In Williams v. Pullman Palace-Car Co." that court said: "In dealing with matter of litigation growing out of the construction of railway law, in con- nection with railway accidents, the supreme court of Louisiana will endeavor to place its rulings in line and in harmony with the adjudicatious of the supreme court of the United States, and of courts of last resort of the American Union, in all cases in which they do not conflict with the special and exceptional system of laws prevailing in Louisiana." ^^ 20 For the NebrasJia statute, see post, § 27. An exception seems also to be created by the Code of California, for which see post, § 2o. 21 In Black v. Carrolltou R. Co., 10 La. Ann. 33, it is said: "It is an implied condition of the contract of railroad companies with each pas- senger that he shall not be put in jeopardy of life or limb by any fault, even the slightest, of tlie servants of the company." 22 40 La. Ann. 417, 4 South. 85. 2 3 The American cases on this subject are so numerous that a bare citation must suffice: ' George v. Railroad Co., 34 Ark. 613; Fairchild V. Stage Co., 13 Cal. 599; Sanderson v. Frazier. 8 Colo. 80. 5 Pac. 632. and cases cited; Hall v. Steamboat Co., 13 Conn. 319; Flinn v. Rail- road Co., 1 Houst. (Del.) 409; Chicago, B. & Q. R. Co. v. George, 19 111. 510; Illinois Cent. R. Co. v. O'Connell, 59 111. App. 463, and cases cited. "Carriers of passengers are not answerable for injuries to pas- sengers at all events; they are only liable for want of cine care.'' Stockton V. Frey, 4 Gill (Md.) 406. See, also, Baltimore & Y. T. R. Co. V. Leonhardt, 66 Md. 70, 5 Atl. 346; Huelsenkamp v. Railway Co., 37 Mo. 537, and cases cited; New York, L. E. & W. R. Co. v. Ball, 53 N. J. Law, 283, 21 Atl. 1052; Palmer v. Canal Co., 120 N. Y. 170, 24 N. E. 302, affirming 46 Hun, 486; Simmons v. Steamboat Co., 97 Mass. 361; Gilbert v. Railway Co., 160 Mass. 403, 36 X. E. 60; Feital v. Railr.ja 1 (8) Ch. 1) GENEKAI. PRINCIPLES GOVERNING LIABILITY. § 3. NEGLIGENCE DEFINED. Actionable negligence is the unintentional breach, of a duty to take care in the exercise of one's rights and duties, proximately producing dam- age to a person entitled to claim observance of that duty.' Co.. 109 Mass. 398; New Jersey Traction Co. v. Gardner (N. J. Err. & App.) 31 Atl. 89.3; Laing v. Colder, 8 Pa. St. 479; Meier v. Railroad Co.. (>4 Pa. St. 225; McClenagbau v. Brock. 5 Rich. Law (S. C.) 17. 2i;; Railroad v. Mitchell, 11 Heisk. (Tenn.) 400; Texas & P. Ry. Co. v. Buckelew, 3 Tex. Civ. App. 272, 22 S. W. 994; Stokes v. Salton-stall. 13 Pot. 181; Dnnlap v. The Reliance. 2 Fed. 240. § 3. 1 12 Quart. Law Rev. p. 187, April. 1896. The above definition of "negligence" .seems to be fairly accurate, including all the essential elements of negligence, and excluding all nonessentials. Numerous other definitions of negligence have been formulated. One of the most widely quoted is that of Baron Alderson in Blyth v. Waterworks,- 11 Exch. 784: "Negligence is the omission to do something which a rea- sonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." This definition has been criticised as being "no more a definition of negligence than of tlie opium habit, or the excessive use of intoxicating liquors, or gambling, or reckless speculation, or forty other things." Beach. C>intrib. Neg. § 2. Another definition by eminent English authority is that of Brett, M. R., in Heaven v. Pender, 11 Q. B. Div. 503: "Actionable negligence con- sists in the neglect of the use of ordinary care or skill towards a per- son to whom the defendant owes the duty of ordinary care and skill, by which neglect the plaintiff has suffered injury to his person t)r pro])- *^rty." One of the best definitions of "negligence" formulated by the judges is that in Caniff v. Navigation Co., 6(5 Mich. 638, 33 X. W. 744: "Actionable negligence consists in the omission of the duty to observe due care, according to the circumstances, to prevent injuiy to the per- son or property of one who has the right to expect that the duty will be performed." The supreme court of Louisiana has fornuilatod the fal- lowing definition in Summers v. Railroad Co., 34 La. Ann. 130: "Ju- (0) § 4 CARRIERS OF PASSENGERS. CCh. 1 § 4. ESSENTIAL ELEMENTS OF NEGLIGENCE. As will be seen from the forej^oing definition, the es- sential elements of negligence are: (1) The existence of a duty to exercise care; (2) the inadvertent breach of that duty; (3) injury, as a proximate consequence, to one to whom that duty is due/ ridicfil negligence is the inadvertent omission to do something which it would be the legal duty of a prudent and reasonable man, guided upon those considerations which ordinarily regulate the conduct of human af- fairs, to do, or the inadvertently doing something which it would be the legal duty of a prudent and reasonable man not to do. such act or omission being on the part of a responsible Iniman being, and being such as in ordinary natural sequence immediately results in the injury complained of." The court then proceeds to point out the merits of the definition as follows: "This definition, though, perhaps, redund- ant, includes unequivocally all essentials, and excludes acts not pro^.- eriy within the domain of negligence. It excludes offenses or inten- tional wi'ongs. It excludes mere moral duties. It excludes irre- sponsible persons, of whom vai'ious classes are mentioned by Mr. Whar- ton; and it excludes all acts av omissions which, though they may be negligent with reference to certain relations or contingencies, have no causal connection with the injury complained of." The civil law defi- nition is stated to be as follows in Pollock on Torts (Am. Ed.) p. 14: '"Nfgagcnce is the failure to exercise that care and circumspection which is due one man from anotlier." Other definitions are given in the following recent cases: L. Wolff Manuf'g Co. v. Wilson, 152 111. 9, 38 N. E. 694; Chicago, B. & Q. R. Co. v. Johnson, 10.3 111. 512; Brown V. Congress & B. St. By. Co., 49 Mich. 153, 13 N. W. 494; Flint & P. M. By. Co. V. Stark, 38 Mich. 714; Bridges v. Directors, etc., of North London By. Co., L, R. 7 H. L. 232. § 4. 1 In Shear. «S: R. Neg. § 5, negligence is analyzed as follows: "Negligence consists in (1) a legal duty to exercise care; (2) a breacli of that duty; (3) the absence of distinct intention to produce the pre- cise damage, if any, which actually follows. With this negligence, in order to sustain a civil action, there must concur: (1) Damage to the plaintiff: (2) a natural and continuous sequence, uninterruptedly (lOj Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 5 g 5. SAME— DUTY TO EXERCISE CARE. An essential element of negligence is a duty to exer- cise care. If there is no sucli dut}, there caji be no negligence.^ The duty of a carrier to use care for the safety of his passenger is imposed by the common law." It is true that the failure of a carrier to exercise proper care, re- sulting in injury to a passenger, may be, and sometimes connecting the breach of duty with the damage, as cause and effect." In Faris v. Ploberg, 134 Ind. 269, 33 N. E. 102S, it is said: "In every case involving actionable negligence there are necessarily tlu'ee ele- ments essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of whirli he complains; (2) a failure by defendant to perform that duty; and (3) an injury to the plaintiff from such failure of defendant. Wheu these elements are brought together, they unitedly constitute negli- gence. The absence of any one of these elements renders a complaint bad or the evidence insuflBcient." § 5. 1 Carpenter v. Cohoes, 81 N. Y. 21; Tourtellot v. Ro>ebiook, 11 Mete. (Mass.) 460; Sweeny v. Railroad Co., 10 Allen (Mass.i 372. It is not sufficient to show that a defendant owed a duty which it failed to discharge to some one or class of persons other than plaintiff. But it must appear that there existed a duty to the plaintiff" which the defendant failed to discharge. Mexican Nat. Ey. Co. v, Crum, 6 Tex. Civ. App. 702, 25 S. W. 1126. 2 The duty of a carrier to use due and proper care and skill in con- veying a passenger does not necessarily arise out of contract between the passenger and the carrier, but is imposed by law. Collett v. Kail- way Co. (1851) 16 Q. B. 984. "It is now settled that a railroad carrier, by its acceptance of a passenger as a passenger, comes under an obliga- tion to take due and reasonable care for his safe carriage, which obli- gation arises by implication of law, and independent of contract, in that it may exist although the contract of carriage is illegal, or there i.s no express contract of carriage." New York, L. E. & W. R. Co. v. Ball, 53 N. T. Law, 283, 21 Atl. 1052; Delaware, L. & ^V. R. Co. v. Trautwein, 52 X. J. Law, 169, 19 Atl. 178. § 6 CARRIERvS OF PASSENGERS. (Ch. 1 is, regarded as a breach of the carrier's contract. But in truth this duty has been imposed on carriers by the common law, as enunciated by the courts, quite re- gardless of any contracts which they may make with their passengers.^ At any rate, in determining what constitutes negligence on the part of the carrier, the result is the same whether we view the duty to exercise care as arising out of contract or as a tort independent of contract,* though there may be a material difference when we get to the question of pleading and damages.' § 6. SAME— INADVERTENT BREACH OF DUTY. In the next place, the decided weight of modern au- thorities is that, to constitute negligence, the breach of duty to exercise care must be inadvertent, and not in- tentional or willful.^ An intentional or willful in- jury, wrongfully inflicted on another, either in his per- 3 For example, courts have very generally denied earners the riglit to relieve themselves by contract from the consequences of their negli- gence, on the ground that the liability for negligence is imposed by the common law, and does not arise out of contract. See post, c. 28. 4 Pol. Torts (Am. Ed.) p. 534. c See post, §§ 119, 422-425. § 0. 1 2 Jag. Torts, p. 821. In Parker v. Pennsylvania Co., 134 Ind, 679, 34 N, E. .504, it is said: " •Willfulnef'.s' and 'negligence' are in- compatible terms. Negligence arises from inattention, thoughtlessness, or heedlessness, while willfulness cannot exist without purpose or de- sign. No purpose or design can be said to exist where the injurious act results from negligence, and negligence cannot be of such degree as to become willfuhiess." "A willful injury is that which flows from an injurious act purposely committed, with the intent to commit the injury. In determining whether an act is done wiUfully, the circum- stances of the case, the manner in which the act was done, and the effect thereof must be considered, in connection with the presumption (12) Ch. 1) GENKRAI. PRINCIPLES GOVERNING LIABILITY. § 8 son or property, renders the wrongdoer liable to the in- jured person, without regard to the question whether any duty to exercise care existed. But, when the duty to exercise care exists, an inadvertent breach of it is negligence, and constitutes the foundation for an ac- tion in damages, § 7. SAME— PROXIMATE CAUSE OF INJURY. In the third place, it must appear that the breach of duty alleged and proved is the proximate cause of the injuries for which plaintiff sues. The entire subject of proximate cause, so far as it relates to tJie subject of carriers and passengers, is treated in a subsequent chapter.* § 8. DEGREE OF CARE REQUIRED OF PASSENGER CARRIERS. For the safety of their passengers, common carriers are required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consis- tent with the practical prosecution of their busi- ness.^ that every person intends the natural and probable consequences of his wrongful acts; and an unlawful intent may be inferred from con- duct which shows a recliless disregard of consequences, and a will- ingness to do injury by purposely and voluntarily doing the act. with knowledge tiiat some one is in a situation to be unavoidably injured thereby." Citizens' St. Ry. Co. v. Willoeby, 134 Ind. .')63, 33 N. E. C27, citing Palmer v. Railroad Co., 112 Ind. 256, 14 N. E. 70. § 7. 1 Tost, c. 9. § S. 1 This is the rule expressly enunciated in some of the ca-ses.and § 8 CARRIERS OF PASSENGERS, (Ch. 1 EXCEPTION": In some states, the carrier is re- quired to exercise only ordinary care as to the construction and maintenance of stational facili- ties. - is believed to be the clear result of all the cases on the subject. "Com- mon carriers of liassengers are required to do all that human care, fore- sight, and vigilance can reasonably do, consistently with the mode and character of conveyance adopted, and the practicable prosecution of the business, to prevent accidents to passengers riding upon their trains or aligliting therefrom." Cliicago & A. K. Co. v. Byrum, 153 111. 131. 38 N. E. 578; citing Chicago. B. & Q. R. Co. v. Mehlsaok, 131 111. 61, 22 N. E. 812; Chicago & A. R. Co. v. Pillsbury, 123 111. 9. 14 N. E. 22; Keokuk N. L. P. Co. v. Ti'ue, 88 111. 608; Galena & C. U. R. Co. v. Fay, 16 111. 558; Chicago, B. & Q. R. Co. v. George, 19 111. 510. "While the law demands the utmost care for the safety of passengers, it does not require railroad companies to exercise all the care, skill, and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible risk. They are not re- quired, for the purpose of making their roads perfectly safe, to incur such expense as would make their business wholly unprofitable, and drive prudent men from it. They are, however, independently of their pecuniary ability so to do, required to provide all things necessary to the security of the passenger reasonably consistent with their busi- nes.s and appropi-iate to the means of conveyance employed by them; and to adopt the highest degree of practicable care, skill, and dili- gence that is consistent with the operation of their roads, and that will not render their use impracticable or inefficient for the intended pur- poses of the same." Aikansas Midland Ry. v. Canman, 52 Ark. 517. 13 S. W. 280, citing many cases. "When it is said that they are held to the highest degree of care and skill for the safety of their passengers, it is not meant that they are required to use every possible precau- tion, for that, in many instances, would defeat the very objects of their employment. There are certain dangers that are necessarily incident to that mode of travel, and these the passenger assumes when he elects to adopt it. But all that is meant is that they should use the highest degree of care that is reasonably consistent with the practical conduct of the business." Persliing v. Railroad Co., 71 Iowa, 561, 566. 32 N. W. 488, and cases cited. 2 For the degree of care as to safety of stations, etc.. see post, § 47. (14) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 9 § 9. SAME— REASON OF THE RULE. The attempt to ingraft on the common law the three degrees of negligence described by the terms "slight," "ordinary," and "gross," conceived by the schoolmen of the middle ages to correspond to the division of the subject in the Roman law, has generally been success- fully resisted by our courts as impracticable.^ As a general proposition, the tendency of the courts now is to hold that the degree of care required in a given case de- pends on circumstances, and must be commensurate with the situation.^ Carriers of passengers, who under- take for a reward to swiftly transport human beings from place to place by the powerful but dangerous in- strumentalities of steam and electricity, and who have intrusted to their safe-keeping the most valuable of all things, — human lives, — must exercise the highest de- gree of care, which simply means that they must take all these things into account, and exercise a degree of care commensurate with the situation.^ § 9. 1 "The theory that there are three degrees of negligence, de- scribed by the terms 'slight,' 'ordinary.' and 'gross,' has been introduced into the common law from some of the commentators of the Roman law. It may be doubted if the-e tenns can be usefully applied in prac- tice. Tlieir meaning is not fixed, or capable of being so. One degree thus described not only may be confounded with another, but it is quite impracticable to distinguish between them. Their signification neces- sarily varies according to the circumstances, to whose influence the courts have been forced to yield, until there are so many real excep- tions that the rules tliemselves can scarcely be said to have a general operation." Per Curtis, J., in Tlie New World, 16 How. 409, 474. a 2 Jag. Torts, pp. 816, 818, and cases there cited. 3 Mitchell, J., in Hall v. Railroad Co., 46 Minn. 140. 49 X. W. 2:!9. •'That rule does not rest upon any technical or artificial division of ueg- (15) I 9 CARRIERS OP PASSENGERS. (Ch. 1 Even before the application of steam as a motive power, when all passenger traffic on land was carried on by means of stage coaches, the courts united in holding that carriers must exercise the "utmost care and skill," * and provide for the safety of their pas- sengers "as far as human care and foresight will go." "* The reason for this rule probably lies in the fact that the courts were unwilling to extend to common car- riers of passengers the rule of the common law holding carriers of property liable as insurers; and by way of compromise this high degree of care was exacted of passenger carriers. And when, in comparatively re- cent times, the application of steam as a motive power revolutionized the face of the earth, and caused the en- tire carrying traffic to fall into the hands of wealthy and powerful corporations, the courts, on grounds of public policy, continued to exact from them the high- est practicable degree of care.® In the subjoined note ligence into grades or classes, but springs naturally from an applica- tion to such fac-ts of the general principle that a man of ordinary pru- dence is required to exercise a care proportionate to the risks he as- sumes to the business in hand. Where he undertakes a risk involving safety of life and limb to those with whom he deals, he is charged ■with a care proportionate to the peril. When a passenger commits his person to a carrier for hire for transportation over rivers, through cities, in the night,— it may be while asleep,— at a speed expressive of the progress of the age in wliicli we live, he may justly demand the exercise of such care on the part of the carrier against disaster as in the nature of things such undertaking would imply." Furnish v. Mis- souri Pac. Ry. Co., 102 Mo. 438, 13 S. W. 1044. 4 Lord Ellenborough in Jackson v. Tollett (1817) 2 Starkie, 37. 6 Christie v. Griggs, 2 Camp. 79. 6 In Farwell v. Railroad Co., 4 Mete, (^lass.) 49, Chief Justice Shaw says that "the rule is founded on the expediency of throwing the risk upon those who can best guard against it." In McDonough v. Lan- (10) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 9 is given the language of the courts as to the degree of care required of passenger carriers.^ pher, 55 Minn. 501. 57 N. W. 152, the reason for requiring a liigher de- gree of care from a carrier to a passenger tlian from a master to a servant is thus pointed out: "An obvious one is that in tlie case of the passenger he neither does know, nor is he called on to inform him- self, whether the carrier employs competent and careful servants and fit and proper machinery and means of performing the service, but he coumiits himself unreservedly to the care of the carrier; while the servant in most cases may know, and, if the matter is open to observa- tion, is bound to know, whether the machinery and appliances em- ployed by the master are fit and proper." ~ "Highest degree of care and diligence and skill." Montgomery & E. Ry. Co. V. Mallette, 92 Ala. 209, 9 South. 363; Richmond & D. R. Co. V. Greenwood, 99 Ala. 501. 14 South. 495; Alabama G. S. R. Co. V. Hill, 93 Ala. 514, 9 South. 722; Louisville & N. R. Co. v. Jones, 83 Ala. 376, 3 South. 902; Georgia Pac. R. Co. v. Love, 91 Ala. 432, 8 South. 714. See Gadsden & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439. "Highest practical degree of caro, diligence, and skill." St. Louis, I. M. & S. Ry. Co. v. Sweet, 57 Ark. 287, 21 S. W. 587; St. Louis & S. F. R. Co. V. Mitchell, 57 Ark. 418, 21 S. W. 883. But see George V. Railway Co., 34 Ark. 61E: Little Rock & F. S. R. Co. v. Miles, 40 Ark. 298; Railway Co. v. Sweet, 60 Ark. 550, 31 S. W. 571. "Utmost care which is consistent with the nature of tlie business." Murray v. Railroad Co., 66 Conn. 512, 34 Atl. 506; Derwort v. Loomer, 21 Conn. 245; Hall v. Steamboat Co., 13 Conn. 320. "Highest degree of care and prudence which is consistent with the practical operation of their road and the transaction of their business." Chicago, P. & St. li. Ry. Co. V. Lewus, 145 111. 67, 33 N. E. ti60; Chicago & A. R. Co. v. Arnol, 144 111. 261, 33 N. E. 204; TuUer v. Talbot, 23 111. 357. "Highest degree of care and skill." Moore v. Des Moines & Ft. D. R. Co., 69 Iowa, 491 30 X. "NY. 51; Kellow v. Railroad Co., 68 Iowa, 470, 23 N. W. 740. and 27 N. W. 466; Raymond v. Railway Co., 65 Iowa, 153, 21 N. W. 4a".: Sales V. Stage Co., 4 Iowa, 546. "Highest degree of care." liouisville & J. Ferry Co. v. Nolan. 135 Ind. 60, 34 N. E. 710; Louisville, X. A. & C, Ry. Co. V. Snyder, 117 Ind. 435, 20 N. E. 284; Bedford, S., O. cV: B. R. Co. V. Rainbolt, 99 Ind. 551. "Highest care and best precaution known to practical use, and which are consistent with the mode of transportation adopted." Southern K. Ry. Co. v. ^^'alsll, -15 Kan. 653, V. 1 FET.CAR.PA.S. 2 (17) § 10 CARRIERS OF PASSENGERS. (Ch. 1 § 10. STANDARD OF CARE. The courts have long ago laid down the rule that in cases of negligence defendant's conduct must be meas- ured by the foresight and caution of the average pru- 26 Pae. 45; Union Pac. Ry. Co. v. Hand, 7 Kan. 380. "Utmos^t care and skill which prudent men are accustomed to use under like circum- stances." Louisville City Ry. Co. v. Weanis, 80 Ky. 420; Louisville & N. R. Co. V. Ritter's Adm'r, 8") Ky. 368, 3 S. W. 591. "The diligence which a good specialist in that particular line of business woidd exer- cise." Lehman v. Railroad Co.. 37 La. Ann. 705; Hanson v. Trans- portation Co., 38 La. Ann. 111. "Are bound to use greater than ordi- nary care, — such care as is used by very cautious persons." Libby v. Railroad Co., 85 Me. 34, 20 Atl. 913; Knight v. Railroad Co., 56 Me. 234; Edv.ards v. Lord, 49 Me. 279. "Not the utmost and highest ab- solutely, but the highest o^hich is consistent with the nature of their business." I'hiladelphia, W. & B. R. Co. v. Anderson, 72 Md. 519, 20 Atl. 20. "Utmost care and diligent e in providing against those injuries which human care and foresight can guard against." Dodge v. Steam- boat Co., 148 Mass. 219, 19 N. E. 373; Warren v. Railroad Co., 8 Allen (Mass.) 227; White v. Railroad Co., 136 Mass. 321; McElroy v. Rail- road Corp., 4 Cush. (Mass.) 400. "Greatest care and foi-esight." Mc- Lean V. Burbank, 11 Minn. 277 (Gil. 189). "That care, pru lence, and caution which a very careful and prudent person would use and exer- cise in a like business and under like circumstances." Smith v. Rail- road Co., 108 Mo. 243, 18 S. W. 971; O'Connell v. Railway Co., 106 Mo. 482. 17 S. W. 494; Willmott v. Railway Co., 106 Mo. 535, 17 S. W. 490; Leslie v. Railway Co., 88 Mo. 50; Gilson v. Railway Co., 76 Mo. 282; Morrissey v. Ferry Co., 43 Mo. 380; Powers v. Union Ry. Co., 60 Mo. App. 481; Jacquin v. Cable Co., 57 Mo. App. 320; Haderlein v. Rail- road Co., 3 Mo. App. (jOl, Append. "Highest degree ( f practicable care." Kennon v. Gilmer, 5 Mont. 257, 5 Pac. 847. "Extraordinary care, and the utmost skill, diligence, and lumaan foresight." Si^ellman v. Ti'an- sit Co., 36 Neb. 890, 55 N. W. 270. "Utmost care and diUgence of very cautious persons." Taylor v. Railway Co., 48 N. H. 304. "Every pre- caution which human skill, care, and foresight can provide." Caldwell V. Steamboat Co., 47 N. Y. 282, affirming 56 Barb. 425; Hegeman v. Railroad Corp., 13 N. Y. 9. 24; Brockway v. Lascala, 1 Edm. Sel. Cas. (18) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 10 dent man standing in defendant's shoes. It therefore follows, whenever an adult of sound mind is charged with negligence, that it is no defense that he acted bona fide and to the best of his judgment. This rule was formally and decisively announced in Yaughan v. (N. Y.) 135. "High degree of care." Lambeth v. Railroad Co.. 6'i N. C. 494. "Greatest care that persons do wlio are engaged in business of the same character." Broolilyn St. R. Co. v. Kelley, 6 Ohio Cir. Ct. R. 15"». "All that human care, vigilance, and foresight reasonably can, in view of the character and mode of conveyance adopted." Elliott v. Railway Co., 18 R. I. 707, 28 Atl. 338, and 31 Atl. ()94; Boss v. Rail- road Co., 15 R. I. 149, 1 Atl. 9. "Such a high degi-ee of foresight, as to possible dangers, and .such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and compe- tent persons under the same circumstances." International & G. N. R. Co. V. Welch, 86 Tex. 203, 24 S. W. 390; Missouri Pac. R. Co. v. John- son, 72 Tex. 95, 10 S. W. 325; International & G. X. R. Co. v. Under- wood, 64 Tex. 463; Houston & T. C. R. Co. v. Corbett, 49 Tex. 573; Texas & P. Ry. Co. v. Davidson, 3 Tex. Civ. App. 542, 21 S. W. 68; Fordyce v. Chaucey, 2 Tex. Civ. App. 24, 21 S. W.181; Texas Cent. R. Co. V. Stuart, 1 Tex. Civ. App. 642, 20 S. W. 962; Fordyce v. Withers, 1 Tex. Civ. App. .540, 20 S. W. 76(1; Dallas C. T. Ry. Co. v. Randolph, 8 Tex. Civ. App. 213, 27 S. W. 925; Texas & P. Ry. Co. v. Orr. (Tex. Civ. App.) 31 S. W. 696; Gulf, C. & S. F. Ry. Co. v. Stricklin (Tex. Civ. App.) 27 S. W. 1093; Fort Worth & D. C. Ry.Co.v. Kennedy (Tex. Civ. App.) 35 S.AV. 335. "Gi-eatest possible care and diligence." Baltimore & O. R. Co. V. Noell's Adm'r, 32 Grat. (Va.) 394; Baltimore & O. R. Co. V. Wightman's Adm'r, 29 Grat. (Va.) 4-31; Parish v. Reigle, 11 Grat. (Va.) 697, 712. "Highest degi-ee of care and prudence." Stars v. Rail- way Co., 6 Wash. 227, 33 Pac. 389, 1081. "Greatest possible care and diligence." Searle v. Railway Co., 32 W. Va. 370, 9 S. E. 248. "Tlie carrier is required, as to passengeis, to observe the utmost caution char- acteristic of very careful, prudent men. He is responsible for injuries received by passengers in the course of their transportation which might have been avoided or guarded against by the exercise upon his part of extraordinary vigilance, aided by the highest skill." Pennsyl* vania Co. v. Roy, 102 U. S. 451; Goble v. Railioad Co., Fed. Cas, No. 5,488a; Meyer v. Railway Co., 4 C. C. A. 221, 54 Fed. 116; Philadel- (1!)) §10 CARRIERS OP PASSENGERS. (Ch. 1 Menlove/ In that case Tindall, C. J., said : "Instead of saying that the liability for negligence should be co-extensive with the judgment of each individual, — which would be as variable as the length of the foot of each individual, — we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe." This principle applies with full force to carriers of passengers. "Conduct actuated by good faith and an honest purpose to avoid injury to passengers is not equivalent to the highest care, or even necessarily of ordinary care. It is not what a man sincerely intends doing, and does with sincere purpose to a given end, phia & R. R. Co. v. Derby, 14 How. 485; The New World, 16 How. 409, 474. "High degree of cai-e." Readhead v. Railway Co., L, R. 4 Q. B. :id'.). In an earlier English case Chief Justice Erie charged the jury: "Carriers are intrusted with most important interests, — with hu- man lives,— and a jury may reasonably require an amount of care pro- portionate to those interests. At the same time a jury would not be entitled to expect the utmost care that could possibly be conceived, or the highest possible degree of skill. It is to be borne in mind that rail- ways themselves are of recent introduction, and that their manage- ment is a matter of experience and of practical knowledge which in- creases day by day. It is not to be expected that the directors sliall at once have in use every invention or discovery of science. It is suffi- cient if they use every precaution in known practical use for the safety and convenience of passengers." Ford v. Railway Co. (1862) 2 Fost. & F. 730. § 10. 1 3 Bing. N. C. 475, decided in 1837. See, also. Com. v. Pierce, 138 Mass. 165, where Holmes. J., said: "If a man's conduct is such as would be reckless in a man of ordinary prudence, it is i-eckless in him. Unless he can bring himself within some broadly-defined excep- tion to general rules, the law deliberately leaves his personal equation or idiosyncracies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation." (20) Ch. 1) GENERAL PRINCIPI.KS GOVERNING LIABILITY. § 11 that determines whether in doing it he has exercised the care demanded by the situation, but the inquiry is to be resolved upon a further consideration of the acts themselves. A negligent act is none the less negli- gently performed because of the good faith which char- acterizes it." - Hence the fact tliat trainmen did all they thought necessary to ascertain whether a grade crossing with another railroad was clear does not re- lieve the company from liability for injuries to a pas- senger in a collision, if they in fact did not do all that the dictates of the utmost prudence would have sug- gested to be done.^ An apparent exception to this principle exists where a man is confronted with a sudden peril. In sucli a case his failure to exercise the best possible judgment does not establish lack of care and skill on his part. This rule is most frequently applied in favor of plain- tiffs charged with contributory negligence,* but it was recently applied by the New York court of appeals in favor of a carrier of passengers charged with negli- gence." § 11. HIGHEST PRACTICABLE CARE. That the degree of care required of passenger car- riers does not extend beyond the highest practicable degree of care finds many illustrations in the decided cases. For instance, it is not required that the road- 2 RiclinioiKl & D. R. Co. v. Greenwood, 1)9 Ala. 501, 11 South. 495. aid. * See post, S§ If- 5-1.88. 6 Wynn v. Railroad Co., 133 N. Y. 575, 30 N. E. 721, reversing (Coin. PI.) 14 N. Y. Supp. 172. (21) § 12 CARRIERS OF PASSENGERS. (Ch. 1 bed of railroads should be laid with ties of iron and cut stone, though in that way the danger arising from wooden ties subject to decay would be avoided/ Nor is it required that railroad embankments be construct- ed of such a width that a derailed train or car will stop before reaching the edge.^ § 12. UNFORESEEN ACCIDENTS. Since carriers of passengers are bound to use only the highest degree of care reasonably to be expected from human foresight, it follows that they are not bound to guard against accidents which human fore- sight cannot reasonably anticipate. The test of lia- bilit}' is not whether the carrier used such particular foresight as is evident, after the accident, might have averted injury, but whether it used that degree of care and prudence which very cautious and prudent persons would have used, under the apparent circumstances of the case, to prevent the accident, without reasonable knowledge that it was likely to occur.^ "It is always § 11. 1 Pittsburg, C. & St. L. R. Co. v. Thompson, 56 111. 138; In- dianapolis & St. L. R. Co. V. Horst, 93 U. S. 291. 2 Pershing v. Railway Co., 71 Iowa, 561, 560, 32 N. W. 488. Negli- gence on the part of a street-car driver is the want of such care as a reasonably skillful and prudent street-car driver would observe under similar circumstances; and, where the only negligence complained of by a passenger i.s the negligence of the driver, the court is not bound to instruct further as to the degree of care required of street railwajs generally. Durnett v. Railway Co. (Tex. Civ. App.) 37 S. W. .336. § 12. 1 Libby v. Railroad Co., 85 Me. 44, 26 Atl. 943; Bowen v. Rail road Co.. 18 N. Y. 408; Fredericks v. Railroad, 157 Pa. St. 103. 27 Atl. G80. It is the duty of a street railway, in the construction of its cars, to provide against every danger to passengers that is probable and to (22) Ch. 1) GENERAL PK[NCIPLES GOVERNING LIABILITY. § 12 a question whether the mischief coiikl have been rea- sonably foreseen. Nothiii.u is so easy as to be wise after tlie event." - Perhaps, tlie most striking illus- tration of this rule is found in the ease of Cleveland \. ;Xew Jersey Steamboat Co.,'' which was in the courts of !Xew Yoi'k for manv years. As a ferryboat swung from its wharf, a man attempted to jump to the shore, and fell into the water. There was a cry of "Man overboard!" accompanied with an instantaneous rush of passengers to the side of the boat whence the cry proceeded, and plaintiff was shoved overboard, through an open gate, in the rush. The court of ap- j)eals finally held that the failure to guard against such an accident by closing the gate before the boat started from the wharf was not sufficient evidence of negli- gence to take the case to the jury. "The combination of circumstances was so extraordiuarv that the failure to foresee their possibility, and to guard against their happening, cannot, in any fair and proper view, be call- ed negligence." * As a corollary to this general x)roposition, it may be stated that where an appliance used in the carriage of be reasonably apprehended, 1)ut not against such as are so remote as to be barely possible. Keller v. Railway Co., 14!) l*a. St. (!."., 24 Atl. 159. 2 Bramwell, B., in Cornnian v. Railroad Co., 4 Hurl. & X. 7S1. 78(5. But, in an action for injuries sustained by tlie sudden starting of a car while alighting, it is proper to refuse to cliarge tiiat passenger carriers arc nol bound to adopt such particular precautions as it is apparent, aflcr the accident, might have prevented the injury. AVheatou v. Railroad Co., 30 Cal. 5*J0. s 12.-) X. Y. 2!)0, 20 X. E. 327, revensing 7 X. Y. .Supp. 28; s. c. 08 X. Y. :'i»>, sa X. Y. 027, 7 .\. Y. St. Kcp. .7.»s, .iiid r, Ilu.i. r>23. * Cleveland v. Steandjoat Co., 12.j N. Y. 2!Jli, 2i; X. E. :;27. (23) § 12 CARRIERS OF PASSENGERS. (Ch. 1 passengers is not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, it may be continued without the imputation of negligence/ Thus the fact that the bot- tom of the railing around a steamer's deck is two feet above the deck will not render the steamship company liable for the death of a passenger, who slipped through this open space while trying to recover his hat, which had been blown off by the wind.® Nor is it negligence for an elevated railroad company to maintain a guard rail at the end of its station platform of such a height as to strike a passenger who clings to a moving train/ But it should be borne in mind that the question is not whether the peril was one to which passengers had 6 Lafflin v. Railroad Co.. 106 N. Y. 136, 12 N. E. 599; Illinois Cent. R. Co. V. Hobbs, 58 111. App. 130. The proposition is quite well estab- lished by authority that it is competent to prove as to a structure uot apparently daujierous, and which has been in use a considerable time, that no accident has occurred from its use or maintenance prior to the time of an accident resulting in an injury to a person, and attributable to it, although such person was at the time a passenger of the party sought to be charged with liability for the injury. Wilder v. Railway Co., 10 App. Div. 364, 41 N. Y. Supp. 931. 6 Dougan v. Transportation Co., 56 N. Y. 1, affirming 6 Lans. (N. Y.) 430. The same principle was apphed Avhere a child slipped between the upper and lowei- rails of the guards alongside a ferry bridge, and fell into the water. Loftus v. Ferry Co., 84 N. Y. 455, aHirming 22 Hun, 33. 7 Robinson v. Railway Co. (Com. PI.) 25 N. Y. Supp. 91. A railroad company is uot chargeable with negligence in constructing acinder plat- form at its station, the distance between which and the lower cAr step is from 20 to 23 inches, and it is not liable to a passenger who, from Bome unexplained cause, sprained his knee while boarding a train when stationary at this place. Illinois Cent. R. Co. v. Hobbs, 58 111. App. 130. It is the duty of a street railway, in the construction of its cars, to provide against every danger to passengers that is probable or (24) Ch, 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 12 long been subjected, but whether it is such as might and ought, in tlie e:s:ercise of reasonable diligence, to have been known to and guarded against by the car- rier, in the exercise of that high degree of care which it owes to its passengers.® "'Accidents sometimes are extraordinarv in their character, and it is difficult to anticii)ate their occurrence; but, if there be negligence or want of the proper degree of caution and prudence on the part of the carrier, the extraordinary nature of the accident will not excuse from liability. The very object of the strictness of the rule in requiring the high- est degree of care and foresight to be exercised is to avoid all possible accidents and injury." " Thus, w^here a passenger, riding on the platform of an elevated car, was jostled into the opening between two cars, the fact that the road had been in operation for six years, and that 300,000 passengers had been carried daily, without an accident of this kind happening before, is not con- clusive in the company's favor on the question of negli- gence, but it is for the jiwj to determine whether or not the company should have foreseen the danger of such to be reasonably apprehended, but not against such as are so remote as to be barely possible. Keller v. Railroad Co., 149 Pa. St. Gr>, 24 Atl. lo9. ^ Illinois Cent. R. Co. v. O'Connell, 59 111. App. 463, affirmed in 100 111. G;5G. 43 N. E. 704. 9 Metropolitan R. Co. v. Falvey, 5 App. D. C. 176. In this case it appeared that an open summer car was so constructed that the seats projected beyond the floor at ilie sides, and a rail placed at the side to prevent parscngors from falling off was 18 inches above the floor. A four year old child, getting up from the seat, fell from the car, tlirough this open space, between the flfior and the rail, and was in- jured. Held, tiiat tlie question whether the cai was pi'operly con- structed was for the jury. (25) § 13 CARRIERS OF PASSENGERS. (Ch. 1 an accident, and guarded against it/" So, although the death of a passenger could not reasonably be antic- ipated from the use of a stool in alighting from a train, jet if the use of the stool was negligence on the part of the company, without contributory negligence by de- ceased, and the injury was tlie proximate result of that negligence, the company is liable/ 11 § 13. DUTY TO ADOPT NEW DEVICES— FINANCIAL ABILITY. Carriers of passengers are bouud to adopt such ap- paratus and appliances as science and skill shall from time to time make known, and experience shall prove to be valuable in a considerable degree in diminishing the dangers of railroad travel, provided such improve- ments can be procured at reasonable expense/ And when a railroad company finds out an expedient far bet- ter than an old one, the company is not, except in very peculiar cases, to wait till it has used up the old plant, but it is bound to adopt the new method at once/ Thus it has been held that the failure of a railroad com- pany, earning dividends, to equip its ijassenger trains with the Westing-house air brakes, which had been fully tested and gone into general use throughout the United States, was evidence of negligence/ So, too, 10 aierwin v. Railway Co., 48 Hun, 608, 1 N. Y. Snpp. 2GT, affirmed in 113 N. Y. 6.50, 21 N. E. 415. 11 Gulf, C. & S. F. R. Co. V. Southwiek (Tex. Civ. App.) 30 S. W. 592. § 13. 1 Kentucky Cent. R. Co. v. Thomas (1880) 79 Ky. 160, and cases cited. 2 Hanson v. Railway Co. (1872) 20 Wkly. Rep. 297. a Kentucky Cent. R. Co. v. Tliomas, supra. (26) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 13 the failure to equip a passenger elevator with an air cushion to resist a fall — a device known to the proprie- tor of the elevator — was held evidence of negligence.* To a certain extent, however, the duty of carriers to adopt expensive devices for the safety of passengers is limited by their financial ability, and the character of their business. "A common carrier of passengers con- tracts in law that the kind of conveyance he adopts shall be a reasonably safe and convenient mode of transportation, for its kind. The modes of conveyance in use by passenger carriers, both by land and water, vary as the exigencies of the traflic and its remunera- tive character require and justify. To require all car- riers to adopt alike expensiAe provisions for the safety of passengers, without reference to the nature of their employment, or the amount of their business, would be impracticable and absurd. It would be like requiring the public higlnvays in the commonwealth to be kept in a like state of repair, without reference to the nature of the country through which they pass, or the amount of travel which they accommodate."' "If the means of transportation are adapted to the reasonably safe car- riage of passengers upon that particular kind of con- veyance, and the carrier exercises the utmost skill in the use of such means, he has discharged his legal obli- gation." ^ A railway constructed through a thiuly-set- 4 Hodges V. Pcrcival, 132 111. 5.S. 23 N. E. 423. B Le Barron v. Ferry Co., 11 Allen (Mass.) 312. In this case the fail- ure of a ferry company to adopt an improved drop, in use by another ferry company, was held not to be nesligence per se, but a question for the jury. "Railroad companies must lieej) pace with .science and art and modern Improvements in their ai)plicatiou to the carriage of pas- (1!T) S 13 CARRIERS OF PASSENGERS. (Cll. 1 S tied country, moving but little freight and few passen- gers, and running its trains at a low rate of speed, can- not be expected to be equipped and operated in the same manner as is necessary in the case of a railway running through a densely populated territory, and moving a large volume of traffic/ Thus it has been held that the rule requiring a carrier to exercise the highest degree of care does not necessitate the running of separate trains for passenger traffic, if the business of the railroad company is not sufficient to warrant it in doing so.' So a short-line road, doing a small busi- ness, and running only mixed trains, is not required to apply all the delicate checks and guards that are in use/ But while x^overty niay be an excuse for not adopt' ing all minute safety devices, or for not running sep- arate passenger and freight trains, railroad companies are bound to furnish a roadbed and equipment reason- ably safe for travel, entirely independent of any ques- tion of financial ability. It has been held that the in- ability of a railroad company, for want of means, to build a sound bridge, is no defense in an action for in- juries to a passenger caused by the giving way of the bridge; for the company ought not to have undertaken to carry passengers until it could do so with safety.® Is'or Avill a railroad company be permitted to show that sengers, but are not responsible for the unknown, as well as the new." Meier v. Railroad Co., 64 Pa. St. 225. 6 Arkansas M. Ry. Co. v. Canman, 52 Ark. 517, 13 S. W, 2S0; Ken- tueky Cent. R. Co. v. Thomas, supra. 7 Arkansas M. Ry. Co. y. Canman, 52 Ark. 517, 13 S. W. 280. 8 International & G. N. Ry. Co. v. Copeland, 60 Tex. 325. 9 Oliver v. Raih'oad Co., 1 Edm. Sel. Cas. (N. Y.) 5S9. (28) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 14 it had furnished its passengers with a more expensive roadbed and equipment than its business would war- rant/" § 14. CUSTOM AND PRACTICE OF OTHER CARRIERS. Though the practice of the best and most skillfully operated railroads in the counti'v is not the test by which to determine whether a railroad carrier has ex- ercised the requisite degree of care, yet, if the practice of the railroads so managed has been found by actual experience to be sufiacieiit and safe, other roads, whose business is to be carried on under like circumstances, are warranted in adopting them. "To hold otherwise would be to hold that railroad companies, in the con- struction and operation of their roads, could not avail themselves of the experience of others, and that the construction and operation of every road must, to a great extent, be a matter of experiment." ' But the practice of other lines cannot serve for com- parison on a question of diligence, unless it is shown that these lines are properly equipped and managed, or are so recognized and reputed to be by experts in the business.' And if the appliances used by a railroad 10 GuU, C. & S. F. R. Co. V. Southwick (Tex. Civ. App.) 30 S. W. 51*2. § 14. 1 Pershins v. Railroad Co., 71 Iowa, 561, 569, 32 N. W. 488. In an action for injury to a passenger t-aused by tlie l)ri'alduy of a brake chain, it is error to cliarse that the '"apphances used by defend- ant must be the best that skill and science have contrived, and which are in practical use," where there is no evidence that any other or safer appliances than those used by defendant were in use. -SVynn v. Railroad Co., 10 App. Div. 13, 41 N. Y. Supp. ^Jo. As to evidence of custom and usase, see post. § 448. 2 Augusta Ry. Co. v. Clover, 92 Ga. 132, 18 S. E. 400. (29) § ]4 CARRIERS OF PASSENGERS. (Ch. 1 company in its passenger traffic are obviously unsafe, the use of similar appliances on other roads will not absolve it from liability.^ Thus a railroad company which has failed to construct a platform at one of its usual stopping places, and which compels passengers, in alighting, to use a narrow box, having a surface of about one square foot, is not absolved from liability, as matter of law, by the fact that such boxes are in gen- eral use on railroads, and that the box in question had been used by passengers for a long time without an accident/ So it is negligence to carry an extra coup- ling pin on a car platform in such a way as to project two or three inches above the platform, and the com- pany is liable for injuries to a female passenger, whose dress caught in the projecting pin as she was about to alight, and who was thrown to the ground, though the pin was in the place where extra pins are usually and customarily carried, and though no accident had ever before happened by reason thereof. ' « Dougherty v. Railway Co., 128 Mo. 33, 30 S. W. 317. 4 Missouri Pac. Ky. Co. v. Wortham. 73 Tex. 2.5, 10 S. AV. 741. "It would be unreasonable to say that a small box or stool which present- ed the surface of about one square foot, and rested upon a base but a little more extensive, and which Avas shown to be capable of being- overturned at least by an incautious step, could be as safe as a plat- form, such as is in ordinary use amons railroads. If it were not, the juiy were authorized to find that the company had not exercised the degree of care required of them." So the fact that for eight months a- railroad company persisted in the dangerous practice of throwing mail sacks from its moving trains on a station platform is not conclusive that it is not negligent to do so. Hughes v. Railway Co., 127 IVIo. 447, 30 S. W. 127. 5 Illinois Cent. R. Co. v. O'Connell, o\) 111. App. 463, affirmed 160 III. 636, 43 N. E. 704. (30) Ch. 1) GKNKRAL PRINCIPLES GOVERNING LIABILITY. ^ 15 Upon tlie other hand, AAiiere a passenger charges a carrier with iiegligence in using an unsafe appliance^ the use of safer api)liances by other carriers is an ele- ment to be considered by the jury on tlie question of negligence. For example, the question whether it is negligence in a steamship company to leave the rudder cliain exposed on the deck of its vessel is for the jury, where there is evidence that the rudder chain is gen- erally boxed in <»u well-constructed steamers.® But an omnibus proprietor is not chargeable with negli- gence becanse there is no back to an omnibus step; those Avithont backs, as well as those with backs, being in general use, and each having its advantage and dis- advantage; the solid back, while preventing all pos- sibility of the foot slipping through, being more liable to till with mud and snow, and cause the foot to slip, and it not appearing that there had ever been another accident by a person's foot slipping through an open back step/ § 15. ACT OF GOD AND OF PUBLIC ENEMY. A common carrier of passengers, who is not an in- surer of the passenger's safety, and is liable only for negligence, is of course entitled to the exemption en- joyed by a common carrier of property, whose liability as an insurer does not extend to the act of God or of 6 (jaroui v. Comyaguie Xatioiiale (Com. I'l.) 14 X. V. Supp. 797. af- firmed in 131 N. y. G14. 30 N. E. 8G5. • 7 Frobisher v. Transpoitation Co., l.jl N. Y. 431, 45 N. E. S-'jii, re- versing 81 Hun, 544, 30 N. Y. Supp. KI09. But see contra, with refer- ence to open steps on street cars, j^oeliucke v. Railnad Co., 3 Mi.-c. Rep. 40, 22 N. Y. Supp. 712. (31) §16 CARRIERS OF PASSENGERS. (Ch. 1 the public enemies. This subject, so far as it pertains to carriers of passengers, will be discussed in the fol- lowing chapter/ § 16. SAME DEGREE OF CARE REQUIRED WHAT- EVER MODE OF CONVEYANCE ADOPTED. While the same high degree of care is required of all common carriers of passengers, whatever mode of con- veyance is adopted, yet in the application of the rule the law will take into account the nature of the convey- ance; and the passenger must assume the usual risks incident to travel by the mode of conveyance he selects, when operated with the recjuisite degree of care and skill.^ § 35. 1 See post. §§ ^2, 33. lu Nichols v. ^NTarsland, 2 Exch. Div. 1, it is said: "Tli« ordinary rule of law is that wheu the law creates a duty, and the party is disabled from performing it,' without any default of his own, by the act of God or the king's enemies, the law will excuse him; but when a party, by liis own contract, creates a duty, he is bound to make it good, notwithstanding any act of inevitable neces- sity." § 16. 1 Inchanapolis & St. L. R. Co. v. Horst, 93 U. S. 2!)1 ; Topeka City Ey. Co. v. Higgs, 38 Kan. 375, 16 Pac. 667; Schilling v. Railroad Co. (Minn.) 68 N. AV. 1083. Of course, no distinction is to be made against a common carrier simply because it is a corporation. A rail- way company is not charged with a higher degree of care and diligence in the transpoi-tation of passengers than is exacted of private indi- viduals under similar circumstances. Gulf, C. & S. F. R. Co. v. War- lick (Indian Ter.) 35 S. W. 235. (32) Ch. 1) GE^ERAL PRINCIPLES GtA'KUMNG LIABILITY. § 17 § 17. SAME— FREIGHT AND CONSTRUCTION TRAINS. Thus one who is accepted as a passenger on a freight train is entitled to the same degree of care due passen- gers on regular trains, except that in taking the freight train the passenger assumes the usual risks incident to traveling in freight trains managed by prudent and competent men.^ While life and limb are as valuable, and the right to safety is the same, in the caboose as in the palace car,- yet it must be remembered that in the operation of freight trains the primary object is the transportation of freight, and the appliances used are, and are knov^-n by the passenger to be, adapted to that business.^ Hence the law does not require freight § 17. 1 McGee v. Railway Co., C2 Mo. 2-engers on a regular pas- senger train; but there is on that account no diminution in the obli- gation of those in charge of the freight train to carry its passengers with becoming and all necessary care, and to deliver them safely at, or conveniently near, their respective places of destination. It is the duty of a railroad company engaged in the transportation of passen- gers, whether by freight or passenger trains, to so run and manage its trains, and so liandle its pas.sengers, that no one shall be injured by its own negligence." New York, C. & St. I.. Ky. Co. v. Doane. 115 Ind. 435, 439, 17 N. E. 913. See, also, Chicago, B. & Q. R. Co. v. Ilaz- V. 1 FKT.CAR.PAS. 3 (33) § 17 CARRIERS OF PASSENGERS. (Ch. 1 trains to be fitted out with air brakes and bell pulli*, nor a brakeman to be stationed on every car, for that would destroy the use of the train for its primary purpose; but the law does emphatically require that the highest degree of care be exercised that is practicable and con- sistent with tlie efficient use of the means and appli- ances adopted.* One who voluntarily takes passage on a freight train takes the risk of any jolts or jars that may occur on such a train not caused by the negli- gence of train hands, but which are usual and conse- quent on such mode of travel.^ zaid, 26 III. 373; Pennsylvania Co. \. Newmeycr, 129 Ind. 401, 28 N. E. 860. 4 Indianapolis & St. L. R. Co. \. Horst, 93 U. S. 291; Chicago & A. R. Co. V. Arnol 144 111. 261, 33 N. E. 204. When the caboose which is usually attached to the fveiiiht train is in the repair shop, and a common box car, with temporary rade seats, is substituted to accom- modate passengers, and the use of such box car is more dangerous, the degree of care on the part of tlie company to prevent the starting of the train Avith a violent jerk is thereby increased. Missouri Pac. Ry. Co. V. Holcomb, 44 Kan. 332, 24 Pac. 467. A railroad company which andertakes to transport stock drovers on the top of its freight trains must manage and run the train with skill and prudence in order to prevent their being thrown off. The degree of care and diligence in running and managing the train must correspond, in a measure, with the mode of conveyance adopted by the company and the person or thing to be conveyed. There may be great negligence in subjecting a train, conveying passengers on top of the cars, to certain jerks and bumps which could not affect the safety of passengers transpoi'ted in inclosed cars. Tibby v. Railroad Co.. 82 Mo. 292. A passenger on a cattle train is entitled to demand the highest degree of care and dili- gence, the same as if he had taken any other ti'ain. Indianapolis & St. L. R. Co. V. Horst, 93 U. S. 291. 5 Crine v. Railroad Co., 84 Ga. 651, 11 S. E. 555; Guffey v. Railroad Co., 53 Mo. App. 462. One who rides on r freight train without pay- ment of fare, and who goes on an open flat car, rather than in the (34) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 17 In Mississippi it is enacted that railroad companies shall not be liable for injnry to "any passenger upon any freight train, not being intended for both pas- sengers and freight," "except for the gross negligence or carelessness of its servants." ' It has been held that a train which is strictly a freight train, with only the appliances of such a train, on which persons are not sought to be induced to take passage by the offer of other accommodations than are afforded by freight trains, cannot be said to be intended for both passen- gers and freight, though persons may become passen- gers by going into the caboose; and that consequently, for injuries to a passenger riding in the caboose, the company is liable only if caused by the gross negli- gence or carelessness of its servants.^ Where a railroad has not yet been opened for regu- lar passenger traffic, and only a mixed construction and passenger ti'ain is operated, the company cannot be expected to apply all the checks and guards that are in use on established passenger lines; and a passen- ger, who knows the facts, will be presumed to take passenger coach attached to the train, is only entitled to such security as that mode of conveyance affords, and cannot recover for injuries sustained by a sparli or cinder emitted from the locomotive strilvinj; his eye. Higgins v. Railroad Co., 73 Ga. 140. Failure to have a bell rope on a way freight and mixed accounuodation train will not justify the jury in finding the comjiany negligent, where all the evidence shows It to have been impracticable, owing to taking in or setting out cars at stations, the varying length of the train, the danger to brakemen from the bell rope, and the dithculty of pulling it on loug trains. Oviatt V. Railway Co., 43 Minn. 300, 45 N. W. 4:;0, 6 Ann. Code Miss. 1892, § 3'jo~. 1 Perkins v. Railroad Co., 60 Miss. 726. § 18 CARRIERS OF PASSENGERS. (Ch. 1 sucli risks as are necessarily incident to the new condi- tion of the track and the train on which he travels.^ § 18. SAME— STREET CARS. The rnle requiring the highest degree of care applies not only to carriers of passengers operating steam rail- roads, but also to those operating street cars and other vehicles drawn by horses/ There is a dictum to the contrary in one of the New York cases,- and also a de- cision that only ordinary care for the safety of the pas- senger is required at the hands of street-car lines oper- ated by horse power.^ But the great weight of au- thority, even in New York, requires the highest degree of care,^ bearing in mind that care and negligence are 8 San Antonio & A. P. Ry. Co. v. Robinson, 79 Tex. 608, 15 S. W. 584. A railroad company wiilcli carries passengers on construction trains must exercise the !-ame degree of diligence, with that character of trains, as with its regular pa-ssenger coaches, for the safety of the persons and lives of its passengers. Ohio & M. R. Co. v. Muliliug. 30 111. 9. § 18. 1 Heucke v. Railroad Co., G9 Wis. 401, 34 N. W. 243; Van de Venter v. Railroad Co., 26 Fed. 32; Louisville Ry. Co. v. Park, 96 Ky. 580. 29 S. W. 455; SuUivan v. Riiihvay Co., 133 Mo. 1. 34 S. W. .506; Brown v. Railway Co. (Wash.) 47 Pac. 890; West Chicago St. R. Co. V. Xash, 64 111. App. 548. As to its passengers, a street-railway com- pany is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons engaged in that business, in view of the instrumentahties employed and the dan- gers to be naturally apprehended; and it is error to instruct that only ordinary care is required. Payne v. Railway Co., 15 Wash. 522, 46 Pac. 1054. 2 Unger v. Railroad Co., 51 N. Y. 501. 3 Stierle v. Railway Co. (Com. PI.; 1895) 34 N, Y. Supp. 185, Pryor. J., dissenting. 4 Maverick v. Railroad Co., 36 N. Y. 378; Coddington v. Railroad Co., 102 N. Y. m, 5 N. E. 797. l3G) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 18 relative terms,' and that the means and instrumentali- ties used to protect the safety of passengers may differ with the different modes of conveyance." The rule it- self extends to the management of the cars and track, and to all arrangements necessary for the safety of passengers as respects accidents from collision or oth- erwise." AVhen electricity is used as the motive power, the rule is applied in all its strictness.' "The agent em- ployed, common experience has taught, is one dan- gerous to life, even when the utmost skill and prudence of best trained electricians are exercised. It is a subtle, imponderable, death-dealing element or fluid. Of its nature or the laws governing it very little is known, even among the few most advanced in the studv of it. It mav be harnessed, utilized as a motive power, and made to perform much economic service in mechanics, but as to its nature and vagaries nothing is known. It is full of surprises, and deals injury and death under Avhat is deemed the most prudent manage- ment, and under what are supposed to be the circum- stances least liable to inflict injury. In the use of 6 Dougherty v. Railroad Co., 81 Rio. 325. 6 Topeka City Ry. Co. v. Higgs, 38 Kan. 375, 16 Pac. G67. 7 Smith V. Railway Co., 82 Minn. 1, 18 N. W. 827. At a crossing of a street railway and an ordinary steam railroad, the street railway, for the safety of its passengers, is bound to exercise the highest degree of care and prudence, and the utmost human slcill and furesight, to guard against collision with engines on the steam railroad. Coddingtou v. Railroad Co., 102 N. Y. 66, 5 N. E. 797. 8 Cogswell V. Railroad Co., 5 Wash. 46. 31 Tac. 411; Denver Tram- way Co. V. Reid, 4 Colo. App. 53, 35 Tac. 209. (37) § 20 CARRIERS OF PASSENGERS. (Ch. 1 such an agent, extraordinary care in its management is required." ' § 19, SAME— STAGE COACHES. Very stringent terms have been employed by the courts in laying down the rule with respect to carriers by stage coach. Stage coach proprietors, who carry passengers for compensation, are responsible for all injuries and accidents to passengers which might have been prevented by human care and foresight. They are consequently bound to furnish good and strong coaches and harness, gentle and well-broken horses, skillful and prudent drivers, and the smallest degree of negligence in these particulars will render the pro- prietors liable for any injury to passengers.^ § 20. SAME— VESSELS. The rule that common carriers of passengers are bound to use a high degree of care applies to carriers transporting passengers on sailing vessels,^ as well as on steamboats ^ and ferryboats.^ The rule extends to » Denver Ti-amway Co. v. Reid, 4 Colo. App. 53, 35 Pac. 269. § 19. 1 Fi-ink v. Coe, 4 G. Greene (Iowa) 555; Peck v. Neil, 3 Mc- Lean, 22, Fed. Cas. No. 10.892; Maury v. Talmadge, 2 McLean, 157, Fed. Cas. No. 9,315; Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Ryan v. Gilmer, 2 Mont. 517. § 20. 1 The Oriflamme, 3 Sawy. 397, Fed. Cas. No. 10,572. 2 Russ V. The War Eagle, 14 Iowa, 363; Sherlock v. Ailing, 44 Ind. 184. 8 Hazman v. Improvement Co., 50 N. Y. 53, affirming 2 Daly, 130. (38) Ch. 1) GENERAL PRINXIPLES GOVERNING LIABILITY. § 22 all the machinery aud arrangements connected with the boats, and to their management and navigation.* § 21. SAME— PASSENGER ELEVATORS. Within the past few years, the courts have exacted from proprietors of passenger elevators the highest de- gree of care for the safety of passengers. It is held that no distinction in principle exists between the de- gree of care required from a carrier of passengers horizontally, by means of railway cars or stage coaches, and one who carries them vertically, by means of a passenger elevator.^ § 22. NO DISTINCTION BETWEEN DIFFERENT CLASSES OF PASSENGERS. The law makes no distinction, as to the degree of care required for the safety of passengers, between those traveling on first-class tickets and those travel- ing in a lower class for a smaller fare. The law im- poses on carriers of passengers the highest degree of practicable care, and no distinction has ever been made between carriers of particular classes of pas- sengers.^ 4 Sherlock v. AUing, 44 Ind. 184; Hazman v. Improvement Co.. 50 N Y 53, affirming 2 Daly, 130. See, also, post, § 405. § 21 1 Mitchell V. Maiker, 10 C. C. A. 306, 62 Fed. 139; Id.. 54 Fed. 637; Ti-eadwell v. Whittior, 80 Cal. 574, 22 Pac. 266; noodsell V. Taylor, 41 Minn. 207, 42 N. W. 873. See, also, po.st, § 209. § 22. 1 Garoni v. Compagnie Nationale (Com. PI.) 14 N. Y. Supp. 797 affirmed 131 N. Y. 614, 30 N. E. 865. The fact that a passenger travels in an emigrant car. for a less rate of fare than charged on regu- lar passenger cars, does not relieve the carrier of the duty to use duo (31)) § 23 CARRIERS OF PASSENGERS. (Ch. 1 § 23. DUTY EXTENDS TO VEHICLES OTHER THAN THE ONE IN WHICH THE PASSEN- GER IS CARRIED. Not only must the carrier exercise a high degree of care and skill with reference to the management of the particular vessel or vehicle in which he is carrying his passenger, but he must exercise the same high de- gree of care in the management of other vessels or ve- hicles under his control to prevent injury to the pas- senger. Thus, where a steamboat company owns two vessels, it owes to a passenger in one of them the exer- cise of the highest degree of care and skill in the man- agement of the other, to prevent a collision between them. It is not sufflcient that it uses ordinary care and skill in the management of the other. ^ The same principle applies to the management of railroad trains owned and operated by the same company.^ But this high degree of care is required to be exer- cised by a carrier only towards his own passengers, and not towards the passengers of another company. Thus a street-railroad company is not required to ex- ercise this high degree of care towards the passengers of another company having an intersecting track.^ care to see that berths are properly secured in the daytime, so that they will not fall on passengers. Northern Pac. R. Co. v. Hess, 2 Wash. St. 383, 2ij Pac. 836. § 23. 1 Sherlock v. Ailing, 44 Ind. 184. 2 See post, §§ 88, 89. 8 Schneider v. Railroad Co., 1.33 N. Y. 583, 30 N. E. 752, affirming 59 N. Y. Super. Ct. 536, 15 N. Y. Supp. 556. (40) Ch. 1) GENKRAL PRINCIPLES GOVERNING LIABILITY. § 25 § 24. STATUTORY LIABILITY. Tims far we have been considering; what may be called the common law of the subject in hand; that is, the principles evolved by the courts in dealing with common carriers of passengers, independent of any leg- islation on the subject. In some of the states, how- ever, the duty of the carrier for the safety of his pas- sengers has been defined by statute, but in the main the departure from common-law principles has been slight. Indeed, in Texas it has been expressly enacted that "the duties and liabilities of carriers in this state shall be the same as are prescribed by the common law, and the remedies against them shall be the same, ex- cept where otherwise provided by this title." * § 25. SAME— CALIFORNIA CODE. The California Code, which has also been adopted verbatim in several other states, provides that "a car- rier of passengers for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that j)urpose, and must ex- ercise to that end a reasonable degree of care and skill." ^ This statute practically adopts the common- law rule, and it is held in California that a common car- § 24. 1 Sayles' Civ. St. Tex. art. 277. Gen. St. Kan. 18S9, par. 1250, provides that railroad companies in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on tlie part of the companies. § 25. 1 Civ. Code Cal. § 2100; Code Mont. 1895, § 2790, and Comp. Laws Dak. 1887, § 3838, are identical with this section. (41) § 26 CARRIERS OF PASSENGERS. (Cil. 1 rier of passengers for hire is bound to use the greatest care and diligence in the transportation of passengers, consistent witli the carrying on of his business.- It has been further held that this statute creates no dig tinction, as to the degree of care required, between trains devoted entirely to passenger traffic, and mixed trains, carrying both passengers and goods. "Those who travel on mixed trains assume the extra risk necessarily incident to such trains or the traffic; the carrier using such diligence and care as the Code re- quires on passenger trains, so far as such care is pos- sible, and reasonably consistent with the freight busi- ness." ' § 26. SAME— GEORGIA CODE. The Georgia Code binds a carrier of passengers to "extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his pas- sengers; but he is not liable for injuries to the person after using such diligence." ^ Extraordinary dili- gence is defined to be "that extreme care and caution which very prudent and thoughtful persons use" in and about similar matters.- Under these statutes the carrier is bound to exercise something more than "all 2 CaiT V. Railroad Co., 98 Cal. 366, 33 Pac. 213. 3 Fisher v. Kailroad Co., 89 Cal. 399, 26 Pac. 894. In this connec- tion it should be noted that Civ. Code Cal. § 483, provides that when fare is talien for transporting any passenger on any baggage, wood, gravel, or freight train, the same care must be talien, and the same responsibility is assumed by the corporation, as for passengers on passenger cars. § 2G. 1 Code Ga. 18^2, § 20G7. 2 Code Ga. 18S2, § 2062. (42) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 2(> ordinary and reasonable care and diligeme'; ^ but, on the other hand, he is not bound to take the greatest possible degree of care in the discharge of duties to passengers,* nor even the utmost care and diligence.' "I'here is a substantial difference between the highest possible degree of human foresight and care and that degree of diligence which is actually observed by very prudent and thoughtful persons." " This extraordi- nary diligence is required, no matter what means of conveyance may be employed to carry the passenger. It applies as well when the passenger is carried on a street car ' or on a freight train,* as it does when he is carried on a regular passenger train. But what may amount to extraordinary diligence with respect to one class of trains may not amount to it with respect to another class. The standard of diligence is the same, but the manner of its exercise must depend upon the circumstances of the case, taking into consideration the character of the train, and the manner in which it is usually made up and run, aud in which the cars are usually coupled to one another,® 8 Crawford v. Railroad, 62 Ga. 566. * East Tennessee, V. & G. Ry. Co. v. Green, 95 Ga. 736, 22 S. B. 658. 6 East Tennessee, V. & G. Ry. Co. v. Miller, 95 Ga. 738, 22 S. E. 660. 6 Id. 7 City & S. Ry. v. Findley, 76 Ga. 311, citing Holly v. Railroad, 61 Ga. 215. 6 Ball V. Mabry, 91 Ga. 781, 18 S. E. 64, citing Crine v. Railway Co.. 84 Ga. 651, 11 S. E. 555; Chattanooga R. & C. R. Co. v. Huggins, 89 •Ga. 495, 15 S. E. 848. • BaU V. Mabry, 91 Ga. 781, 18 S. E. 64. (43) § 27 CARRIERS OF PASSENGERS. (Cll. 1 § 27. SAME— NEBRASKA STATUTE. A radical departure from the common law is made by the Nebraska statute. It is enacted that "every railroad company shall be liable for all damages in- flicted upon the person of passengers while being transported over its road, except in cases where the in- jury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice." ^ Though this statute has been in force since 1867, it does not seem to have been given its full effect until lately. In a case decided in 1873, the statute, though relied on in the brief, was ignored by the court, and it was held that a carrier of passengers is liable only for negligence, and that he does not warrant the safety of passengers, but, as far as human care or foresight go, he must provide for their safe conveyance.^ In later cases, however, it is held that railroad companies are insurers of the safety of their passengers, except as against the gross negligence of such passengers, or the violation of some rule of the company brought to their notice.^ Under this statute, to warrant a recovery § 27. 1 Comp. Laws Neb. 1S93, p. G2S. c. 72, art. 1, § 3. For crim- inal carelessness of passenger, see post, § 195. 2 McClary v. Railroad Co., 3 Neb. 44. The railroad company was held not liable for injuries to a passenger caused by the train being blown from the track by what undoubtedly state loyalty caused the court to call a "sudden gust"' of wind. 3 Chicago, B. & Q. R. Co. v. Landauer, 39 Neb. 803, 58 N. W. 434; Union Pac. R. Co. v. Torter, 38 Neb. 226, 56 N. W. SOS; Missouri Pac. (44) Ch 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 28 against a railroad company, it is only necessary to shoAv that the person injured was, at the time, being transported as a passenger over the defendant's line of railroad, and that the injury resulted from the man- agement or operation of the raih'oad. A presumption thereupon arises that such management or operation was negligent, and it can be met only by showing that the injury arose from the criminal negligence of tlie party injured, or that it was the result of the violation of some express rule or regulation of the railroad com- pany, actually brought to the notice of the passenger.* The statute applies, not only to actions by injured passengers, but also to actions by third persons for damages sustained in consequence of such injuries, as by a husband for loss of services, etc., caused by in- juries to his wife.'' But the statute does not seem to be applied to street railroads.® It goes without say- ing that this statute has been vigorously assailed by railroad companies as unconstitutional, but its valid- ity has been uniformly upheld/ § 28. PROVINCE OF COURT AND JURY ~- In actions for neg-ligence there may be a dispute (1) as to the existence of the facts relied on to establish negligence; (2) as to the exercise R. Co. V. Baier. 37 Neb. 2;«, 55 X. W. 910; Fiemout, E. & M. V. R. Co. V. French, 48 Neb. (538, G7 N. W. 472. 4 Chicago, B. & Q. R. Co. v. Hague, 48 Neb. 97, 6G N. \\'. 1000. B Omaha & R. V. R. Co. v. ChoUette, 41 Neb. .578, 59 N. W. 921. Spelhiiau v. Transit Co., 36 Neb. 890, 55 N. \V. 270. - Omaha & R. V. R. Co. v. Chollette, 41 Neb. 587, 59 X. W. 921 ; Un- ion Pac. R, Co. V. I'orter, 38 Neb. 22U, 5G N. W. 80S. (45) § 28 CARRIERS OF PASSENGERS. (Ch. 1 of a proper degree of care, assuming or admit- ting a certain state of facts to exist. As to the first class, the question is always for the jury- when there is any conflict in the evidence. As to the second class, by the great weight of au- thority, the question is also for the jury when- ever fair-minded men can honestly and reason- ably differ as to the inference to be drawn from the admitted or assumed facts; but, when there is no room for such difference of opinion, the question is one of law for the court. The proposition that the jury is the proper tribunal to decide an issue of fact depending- on conflicting evi- dence is so elementary that no extended discussion as to the first class mentioned in the black letter text is necessary at this time.^ On the question whether the inference of negligence to be drawn from admitted or assumed facts is for the court or for the jury, there are three classes of v^ases, each laying down contacting and irreconcilable doc- trines. One extreme class holds that when the facts are un- disputed, or when a certain state of facts is assumed to exist, the inference of negligence is always one of law for the court. "When the facts are agreed upon, or otherwise appear, what is ordinary care is a question for the court. When the facts are in dispute, the proper course for the judge is to explain what would be ordinary care under certain hypothesis as to the facts, and have the jury to apply the law to the facts § 2S. 1 See post, §§ 503-508. (46) Ch. 1) GENERAL PHINCIPLES GOVERNING LIABILITY. § 28 as tbev find them." ^ This view seems to have prevail- ed at one time in North Carolina,' and perhaps in Vir- uinia.* Another extreme class of cases holds that the infer- ence of jiegligence from admitted or assumed facts is al- ways for the jury, except when a certain course of con- duct is expressly declared negligence by statute. "The 2 Wallaet v. Railroad Co.. 08 N. C. 494, 4 S. E. 503. 3 Smith V. Railroad Co., 99 N. C. 241, 5 S. E. S9;j; Smith v. Railroad Co., 64 X. C. 2oo. But lately the supreme court of North Caro'.iua seems to have receded from tliis position to some extent, at least. What is negligence is a question of law Mhen the facts are undis- puted; but where the facts are controverted, or more than one infer- ence can be drawn from them, it is the province of the jury to pass upon an issue involving it. Tillett v. Railroad Co., US N. C. 1031, 24 S. E. 111. * Dun V. Railroad Co., 78 Va. 645, and cases cited. Mr. .Tustice Holmes, in his Lectures on the Common Law (pages 122, 123), says: "When a case arises in which tlie standard of conduct, pure and simple, is submitted to the jury, the exi.lauatiou is plain. It is that the court, not entertaining any clear views of public poUcy applicable to the mat- ter, derives the rule to be applied from daily experience, as it has been agreed that the great body of tlio law of tort has been derived. But the coiu-t further feels that it is not itself possessed of sufficient prac- tical experience to lay the rule doAvn intelligently. It conci>ives that twelve men taken fi-om the practical part of the community can aid its judgment. Therefore it aids its conscience by taking the opinion of the jury. But sui)posiug a state of facts often repeated in prac- tice, is it to be imagined that the court is to go on leaving the standard to the jury forever V Is it not manifest, on the contrary, that if the jury is. on the wliole. as fair a tribunal as it is represented to be. the lesson which can be got from that sourct? will be learned? Either the court will find that the fair teaching of experience is that the conduct complained of usually is or is not blameworthy, and therefoi-e, unless explained, is or is not a ground of liability; or it will find the jury v;icillating to and fro, and will see the necessity of making up its mind itself."' (47) § 28 CARRIERS OF PASSENGERS. (Ch. 1 cases involving tliis question are so different in their facts, so various, so complicated, and arising under so many different circumstances, that it would be utterly impossible to lay down an^^ general principle by which every special case could be measured and tested as to the fact of negligence, and which enables the judge to say to the jury, as matter of law, such and such facts showed the absence or presence of ordinary care. The general rule on the subject seems to be that the charge of the judge must simply be that negligence is the ab- sence of ordinary care, and the jury must determine whether the facts proved before them amount to negli- gence. They must determine what facts have been proved, and then say by their verdict whether these facts amount to the absence of ordinary care." ^ This is the law in South Carolina,^ in Georgia,' and in Texas.* In arriving at this conclusion, the courts 8 Quinn v. Railroad Co., 29 S. C. 381, 7 S. E. 614. 6 Quinn v. Railroad Co., supra; Bridger v. Railroad Co., 25 S. C. 30; Tetrie v. Railroad Co., 29 S. C. 303, 7 S. E. 515, and cases cited. "! "This court has repeatedly held for many years that negligence is a question for the jury; that what facts make a case of negligence is a conclusion which the jui-y must reach without aid from the court; and that the court errs if the judge, in charging the jury, tells them what facts make negligence, and thus reaches a conclusion for them, and in- structs them that they must adopt and enforce his conclusi n from the facts, so concluding tliem ou an issue the law gives them to try. and excluding their own judgment of what is negligence in the case before them. The only exception to this long line of decisions on this point is the case where the statute law makes a thing negligence in express terms." Central R. R. v. Thompson, 76 Ga. 770. See, also. South- western R. R. V. Singleton. 07 Ga. 300. 8 "With us it is well settled tliat, in the absence of statute defining the acts which constitute negligence, then it is a question of fact for the determination of the jury." Galveston, H. & S. A. Ry. Co. v. (48) Ch. 1) GENKRAL PKINCIPLES GOVERNING LIABILITY. § 25 have been intiiienced to some extent by constitutional and statutory provisions prohibiting the judges from charging as to the facts. BetAveen these two extreme views, the great ma- jority of the courts have talcen their stand. It has been held by the house of lords in England, b}- the su- j)reme court of the United States, and by most of the state courts of last resort, that the test to determine whether the inference of negligence is for the court or for the jury is whether or not there is room for differ- ence of opinion between reasonable and fair-minded men as to what inference should be drawn from the admitted or assumed facts. If there is no room for such difference of opinion, the question is one of law for the court. If there is room for such difference, it is one of fact for the jury. "Certain facts we may sup- pose to be clearly established, from which one sensible, impartial man Avould infer that proper care had not been used, and that negligence existed. Another man, equally sensible and equally im])artial, would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of a jury. Twelve men of the average of the community, compris- ing men of education and men of little education, men of learning and men whose learning consists in what they haA^e themselves seen and heard, — the merchant, the mechanic, the farmer, the laborer, — these sit to- French, 59 Tex. 400. See, also, Texas & r. Ry. Co. v. Murphy. 46 Tex. :r.<;; international & G. X. Ky. Co. v. Ormond. VA Tex. 485; (lulf. C. & R. I-\ Ry. Co. V. Bafjlcy, 3 Tex. Civ. Api). 20T, 22 S. W. (iS; S:ni An touio & A. P. Ry. Co. v. Lons, 4 Tex, Civ. Ayp. 4U7, 23 S. W. 41M). V. 1 FET.C.^R.T'AS. — I (49) § 28 CARRIERS OF PASSENGERS. {Ch. 1 gether, consult, apply their separate experience of the affairs of life to the facts proven, and draw a uuani- mons conclusion. This average judgment, thus given, it is the great effort of the law to obtain. It is assum- ed that twelve men know more of the common affairs of life than does one man ; that they can draw wiser and safer conclusions from admitted facts thus occur- ring than can a single judge. In no class of cases can this practical experience be more wisely applied than in what we are considering.'' ^ It must be admitted, however, that this test does not bring uniformity into the decisions as to the province of tlie court and jury in inferring negligence when ap- plied to concrete facts. One court will hold that on a certain class of facts there is no room for difference of opinion between reasonable and fair-minded men as to the inference to be drawn, while another court will hold on the same facts that there is room for such dif- ference. It does seem, however, that the tendency of recent decisions, if not to enlarge the province of the jury, is to arrest the process of curtailing it, and that the courts are not disposed to enlarge the class of cases holding a certain line of conduct to be negli- gence per se.^° In the subjoined note are cited the » Railroad Co. v. Stout. 17 Wall. 657, 663, 664. 10 "This rule must be applied in practice with caiition, lest the courts usurp the funetious of the .iury, and unwittiusiy deprive a party of his eonstitutioual i-ight to trial by jury." Scheiber v. Rail- lo.itl Co., ei.Miun. 499, 63 X. W. 1034. "We are constrained to hold tl'nt the provision of our constitution which gives parties to an ac- tion at law the right to trial by jury embraces even partits who brini^ actions at law against railroad corporations, and that tlie persistent effort to push precedents to the point of requiring trial judges to decide (50) Ch. 1} GENERAL PRINCIPLES GOVERNING LIABILITY. § 28 oases laving- down tlie general principle/^ and in the following- pages, as each subject is taken up, an at- tempt will be made to state what concrete facts have been held to require the inference of negligence to be submitted to the jury, and on what facts the courts have decided this question for tliemselves. as questions of law the issues most commonly joined in cases where recovery for personal injuries is sought should not be encouraged.'' McCormlck, J., in New Orleans & X. E. R. Co. v. Thomas, 9 C. C. A. 29. 60 Fed. 379. 11 "The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to thorn, negligence ought to be inferred. It is, in my opinion, of the greatest imi'ortance in the administration of justice that those sep- arate functions should be maintained, and should be maintained dis- tinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reason- ably be inferred, the judge were to withdraw the question from the jury upon the ground that, in his opinion, negligence ought not to bL^ inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary- man- ner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever." Lord Cairns, in Metropolitan Ry. Co. V. Jackson. 3 App. Cas. 193, 197. See, also, Bridges v. Rail- way Co., L. R. 7 H. L. 213, 221, 233. "A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the judge in leaving the case to the juiy. There must be evidence upon which they might reason- ably and properly conclude that there was negligence." Toomoy v. Railway Co., 3 C. B. (N. S.) 146, 150. '"The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same con- clusion from them; or, in other words, a case should not be with- drawn from the jury unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts which the eviilence tends to establish." Gardner T. Railroad Co., 150 U. S. 319. 14 Sup. Ct. 140. See, also, Richmond § 28 CARRIERS OF PASSENGERS. (Cll. 1 «fc D. R. Co. V. Powers, 149 U. S. 43, 13 Sup. Ct. 748. and cases cited; Hathaway v. Railroad (C. C. Ga.) 29 Fed. 489. "When it is said that a given act does or does not constitute negligence in law. the statement means no more than that, in thi? judgment of all reasonable men,— not judges alone, for it concerns a fact, and not a question of law,— it would be esteemed such, ^yhen it can be attirmed tliat all reasonable men would agree as to the qualitj' of an act in respect of its being either negligent or prudent, the court may give effect to such consensus of opinion, and direct a verdict in accordance there- with. The direction is given, not because it is the judge's opinion alone, but because the judge is able to say that it is also the opinion that all reasonable men would entertain of the question. If there is doubt as to whether all reasonable men would draw the same con- clusion from the evidence, then the question must be submitted to the 12 reasonable men appointed by the constitution to determine disput- ed or doubtful questions of fact." Bronson v. Oakes, 22 C. C. A. 520, 76 Fed. 734. "When, on the undisputed evidence, aided by legitimate inferences which may be drawn from it, the injury to plaintiff was caused by his own negligence, or by accident, without fault on the part of the defendant, the court is not required to submit the ques- tion of negligence to the jury, but may give the general affirmative charge in favor of the defendant." Smith v. Railway Co., 88 Ala. 538, 7 South. 119. Where the facts are admitted or proven without contradiction, the court will determine whetlier or not they estalilisli negligence, or show contributorj^ negligence; but. where the coQclu- sion is open to debate, it is one for the jury, under proper instruo tions from the court. Stephenson v. Southern Pac. Co., 102 Cal. 143, 34 Pac. 018, and 36 Pac. 407. See, also, Raub v. Railway Co., 103 Cal. 473, 37 Pac. 374. "Where the facts are disputed, where there is any reasonable doubt as to the inference to be drawn from them, or when the measure of duty is ordinary and reasonable care, and the degi'ee varies according to the circumstances, the question cannot, in the nature of the case, be considered by the court: it must be sub- mitted to the jury. But when the facts and inferences are undisput- ed, when the precise measure of duty is determinate.— the same under all circumstances,— where a rule of duty in a given exigency may be certified and accurately defined, the question is for the court, and not for the jury." Jackson v. Crilly, 16 Colo. 103, 26 Pac. 331, and cases cited. "Where the facts are such that there is room for difference of opinion between reasonable men as to whether or not negligence (52) Ch. 1) GENEUAL PRINCIPLES GOVERNING LIABILITY. § 28 sbould be inferred, the riijlit to draw the inference of negrliijence or no negligence therefrom is for the jury as one of fact, and not for the court TO be inferred as one of law." Cincinnati, I.. St. L. & C. Ry, Co. V. Grames, 13G Ind. 39, 3-i N. E. 714. overruling earlier cases; Evansville St. Ry. Co. v. Meadows, 13 Ind. App. 155, 41 N. E. 398; Hoehu V. Railroad Co., 152 111. 223, 38 N. E. 549; Dewald v. Rail- road Co., 44 Kan. 586, 24 Pac. 1101. Where the issue before the jury is upon the neghgence of the iiarties, and the testimony upon the points in controversy is conflicting and uncertain, it is not erroneous for the presiding judge, after stating to the jury, in language to which no exception is taken, the degree of care that is required on either side, and that plaintiff's right to recover depends upon proof to their sati.sfaotion that the injuries were received by the fault of the defend- ants, without fault on the part of the passenger contributing to the result, to decline, upon request, to determine, as matter of law, whether a certain state of facts, claimed on one side to exist, and denied on the other, would or would not constitute negligence. Hobbs v. Railroad Co., 66 Me. 572. Tlie case must be a very clear one to justify the court in taking upon itself the responsibility of deciding the question of negligence. It must present some decisive act, in regard to the ef- fect and character of which no room is left for ordinary minds to dif- fer. Baltimore & O. R. Co. v. Kane, 69 Md. 11, 25, 13 Atl. 387; Cum- berland Val. R. Co. V. Maugans, 61 Md. 53. "The question of ordinary care is in most cases, even wliere the facts are undisputed, a quest:o-i of fact, which it is peculiarly the province of the jury to settle. Rut if, as matter of common knowledge and experience, the courts can see that, upon all the undisputed facts, the plaintiff was not in the exer- cise of ordinary care, and that the injury he received was in part at- tributable to his want of it, the jury may properly be told, as mat- ter of law, that he cannot recover." Creamer v. Railway Co.. 156 Mass. 320, 31 X. E. 391, and cases cited. See, also, Gavett v. Railroad Co., 16 Gray, -501; Fox v. Sackett, 10 Allen, 535. '"If all the circum- stances of the case, wlien the facts are undisputed, are such that ordi- narily prudent men would be hable to differ in their views as to the negligence imiiutotl, then such negligence should not be determined by the court, but the question left to the jury, under proper instruc- tions." Ecliff v. Railway Co., 64 Mich. 196, 31 N. W. 180. "Where the facts as to the negligence of a party are undisputed or conclusively proved, and there is no reasonable basis for drawing different con- clusions froni them, the question is one of law for the court. It is (53) § 28 CARRIERS OF PASSENGERS. (Ch. 1 not sufficient that the facts are admitted, for the decisive test is wliether or not fair-minded men could honestly and reasonably dif- fer as to the inferences to be drawn from the admitted facts." Scheib- er V. Railway Co., 61 Minn. 499, 63 N. W. 1034. See, also, Oviatt v. Railroad Co., 43 Minn. 300, 4-5 N. W. 436; Abbott v. Railway Co.. 30 Minn. 482, 16 N. W. 263. "Negligence is a mixed question of law and fact. The court declares what is negligence, and the jury finds the facts, in the particular case, and reports to the court what such facts show on the question of negligence, viewed in the light of what the court has declared negligence to be." McMurtry v. Railway Co., 67 Miss. 601, 7 South. 401. "Negligence and contributory negligence are never questions of law, unless the facts are such that all reasonable men must draw the same inference from tliem." Eichhorn v. Rail- way Co., 130 Mo. 575, 32 S. W. 993. See, also. Weber v. Railway Co., 100 Mo. 194, 12 S. W. 804, and 13 S. W. 587; Florida v. Car Co., 37 Mo. App. 598; Taylor v. Railway Co., 26 Mo. App. 336. "The rule in this state is well established tliat questions of negligence and contributory negligence are for the jury where the facts are such that reasonable minds may honestly draw different conclusions therefrom. It is only where opinions cannot reasonably differ as to the inference to be drawn from the facts that the court is justified in withdrawing the case from the jury." Omaha St. R. Co. v. Loehneisen, 40 Neb. 37. 58 N. W. 535; Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007. "The wisdom of the time-honored nile of the common law which refers questions of fact to jurors, and questions of law to the judge, is not more conspicuous in any class of civil cases than in those which involve questions of negligence. Cases of that nature fre- quently come before the courts, in which men of equal intelligence and judgment differ in their conclusions simply because they differ in experience and habits, in temperament, or mental organization. A course of conduct which seems sufficiently careful to a self-relianT man, who is accustomed to act promptly, may appear feckless to one who is unusually circumspect or hesitating. That average judgment which is the result of the deliberations of twelve men of ordinai-y sense and experience is recognized by our jury system as a jnster standard than the judgment of one man of equal experience and sense in the determination of questions of fact, and is especially valuable in the decision of questions of negligence. On the trial of an issue of that nature, if there is any doubt, however slight, either as to what facts are established by the testimony, or as to the conclusion in re- (54) Ch. 1) GENERAL PRINCIPLES GOVERNING LIABILITY. § 28 spect to the fact of negligence that may be les:ithnatel.v drawn from the circumstances proved by the average of men of common sense, ordinary experience, and fair intentions, the case shonid not be taken from tlio jury. It is only when the case is entirely clear upon the testimony, where there is no room for rational doubt, either as to the circumstances proved, or as to the conclusion of fact which ni;iy be properly drawn from tliem. that a judge is jnstitied in deciding a question of negligence as matter of law."' AA'illis v. Railroad Co.. 34 X. Y. G70, U79. See, also. Keller v. Railroad Co., 2 Abb. Dec. 4S0, artirming 17 How. Prac. 102; Bernhard v. Railroad Co., 1 Abb. Dec. 131, affirming 32 Barb. 165; Filer v. Railroad Co., 49 N. Y. 47: Wolf- kiel V. Railroad Co., 38 N. Y. 49. The earlier rule in New York was that when the facts are uncontroverted, the question of negligence is one of law for the court. Gonzales v. Railroad Co., 38 N. Y. 440. "Xeghgence is the absence of care according to the circumstances, and is always a question for the jury when there is a reasonable doubt as to the facts, or as to the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the dog-ee of care varies according to the circumstances, the question of negli- gence is necessarily for the jury." Pennsylvania R. Co. v. Peters, IIG Pa. St. 206, 9 Atl. 317, and cases cited; Lehigh Val. R. Co. v. GreineB, 113 Pa. St. 600, 6 Atl. 246, and cases cited. See, also, Arnold v. Rail- road Co., 115 Pa. St. 135, 8 Atl. 213; iNIcCully v. Clarke, 40 Pa. St. 399. '"Though, generally, the question of negligence is a question of fact to be determined by the jury, yet when there is no controversy about the facts, or when it clearly appears from thein what course a person of ordinarj' prudence would pursue, it is a question for the court. So, too, when the standard of duty is fixed, or when the neg- ligence is clearly defined and palpable." Chaffee v. Railroad Co., 17 R. I. 658, 24 Atl. 141. See, also, Boss v. Railroad Co.. 15 R. I. 149. 1 Atl. 9. "In cases where the common experience of mankind and the conmion consensus of prudent persons have recognized that to do or omit to do certain acts is prolific of danger, we may call the doing or omission of them legal negligence." Carrico v. Railroad Co., 35 W. Va. .'589, 14 S. E. 12. "When the facts and circumstances, though un- disputed, are ambiguous, and of such a nature that reasonable men, unaffected by bias or prejudice, may disagree as to the conclusions to be drawn from them, then the case should be submitted to the jiuy. But when sucli facts and circumstances are not ambiguous, and there is room for two honest and apparently reasonable conclu- (55) § 28 CARRIERS OF PASSENGERS. (Ch. 1 sions, ihen the court may take the case from the jury. The same rules are applicable to questions of contributory negligence." Hart V. Railroad Co., 8G Wis. 483. 57 N. W. 91, and cases cited. See. also, ratten V. Railroad Co.. 32 Wis. 524. "When tlie law prescribes what shall constitute negligeuce.orwhen tli? act r lie 1 on to show n "gligence is isolated, then negligence becomes a question of law. But when the standard of negligence is not prescribed, and there is a combina- tion of facts and circumstances relied upon to show negligence, the question becomes one of law only when those facts and circumstan- ces are so decisive one way or the other as to leave no reasonable doubt about it,— no room for opposing inferences." Worthiugton v. Railroad Co.. 64 Vt. 107, 23 Atl. 5UU. In comlusion, it should be stated that the failure to observe a statu- tory requirement, resulting in injury to plaintiff, is generally held to be negligence as matter of law. Thus canyiug more passengers on a coach than permitted by statute, by reason of which the axletree broke, was held conclusive evidence of negligence in Israel v. Clark. 4 Esp. 259; and in a very recent case the failure of the employes on a street car to bring it to a stop, and go ahead of it on a crossing with a steam railway to see if the way was clear, was held negligence as matter of law, since a statute required these things to be done. Cin- cinnati St. Ry. Co. V. Murray (Ohio) 42 N. E. 590. See, however, Blamlres v. Railway Co., L. R. 8 Ex(;h. 283. (56) Cll. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 29 CHAPTER II. DUTY OF CARE AS TO MEANS OF TRANSPORTATION. § 29. Duty as to Roadbed. 30. Same — Negligence of Employes and Independent Gouti'actors. 31. Same— Act of God. 32. Same— Guarding against Act of (Jod. 33. Same^Acts of Publie Ent'niy. 34. Same — Inspection and Repair. 3o. Same— Obstructions. 3t>. Same— Cattle on Track. 37. Same— Street-Car Tracks. oS. Duty as to Vehic-les. S9. Same— Latent Defects. 40. Same — Liability for Negligence of Manufacturer. 41. Same — Inspection. 42. Same — Guarding Car Windows. 43. Same— Car Platforms. 44. Same— Motive Power for Street Cars. 45. Same— Statutory Requirements. § 29. DUTY AS TO ROADBED. A railroad company is bound to exercise the high- est degree of practicable care, not only in the construction of its roadbed, but in its inspection, its repair, and in keeping it free from obstruc- tions. But it is not an insurer, and is therefore not liable for defects caused by the act of God or of the public enemy. Since railroad corporations, nndor extraordinary grants of franchises, build, control, and generally have the exclusive use of their roadbeds and tracks, (57) § 29 CARRIERS OP PASSENGERS. (Cll. 2 the courts have exacted from them this degree of care M-ith respect to their passengers, whose personal safe- ty depends on a rigid enforcement of the rule.^ But, though railroad companies must exercise this high de- gree of care, they are not bound absolutely to provide a roadway free from defect, irrespective of the ques- tion of negligence." The duty in respect to the roadbed extends to every portion of it, including the fills or embankments, the I ridges, the cuts, the ties, and the rails.' It has even been held that in constructing and maintaining its Iridges, a railroad company is required to take into account the fact that accidents, such as the derail- ment of a train, may occur in the operation of its road, and must construct its bridges with reference thereto, and it must exercise a high degree of care in this re- § 29. 1 International & G. N. R. Co. v. Halloren, 53 Tex. 46; Mc- Elroy y. Railroad Corp., 4 Cusli. 400; Virginia Cent. R. Co. v. Sau- cer, l.j Grat. 230. It is said in these cases that a carrier of passengers by stage coacli is not responsible for the condition of the highway, since it is not under his control or supervision. 2 McPaddeu v. Railroad Co., 44 N. Y. 478. "Great care is required from railroad companies in the construction of their roads, hut abso- lute liability for defects has never been charged on them." Libby v. Railroad Co., 85 Me. 34. 26 Atl. 943. 3 In Gieeson v. Railroad Co., 140 U. S. 435. 11 Sup. Ct. 8-59. Justice Lamar said: "If it be the duty of the company, as it unquestionably is, in the erection of fills and the necessaiy bridges, to so construct them that they shall be reasonably safe, and to maintain them in a reasou- ably safe condition, no reason can be assigned why the same duty should not exist in regard to cuts. Just as surely as the laws of gravitj' will cause a heavy train to fall through a defective or rotten bridge to the desti'uction of life, just so surely will these same laws cause landslides, and consequent dangerous obstiiictions to the track Itself, from ill-constructed railway cuts." (oS) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. 5v 30 spect.* Moreover, the track must be in a reasonably safe condition, not only for passenger cars, but for all other yehieles which the company may use for the transportation of passengers over it.^ But, as has al ready been stated, a railroad company is not bound to guard against unforeseen accidents.* g 30. SAME— NEGLIGENCE OF EMPLOYES AND IN- DEPENDENT CONTRACTORS. A railroad company is answerable to its passengers for negligence in the construction of its roadbed, as well when the negligence is that of its employes as when it is that of independent contractors, their sub- contractors, and servants. That a railroad company has employed competent engineers to supervise the construction of its roadbed and bridges clearly does not exonerate it from the con- sequences of the negligence of the engineers in the construction, since a master is always liable for the negligence of his servant while acting within the scope of his employment.^ 4 Pershing v. Railroad Co., 71 Iowa, 561, 571, 32 N. W. 488. 5 Pool V. Railway Co., 56 Wis. 227, 233. 14 X. AV. 46; Id.. 53 Wis. 057. 11 N. W. 15 (hand car). c Ante, § 12. A loaded wagon broke down on a bridge, so as to ob- struct a street-car track, and a car was nece.ssarily lifted to the par- allel ti-ack, and run along it for a short distance, in the opposite diroc- tidii from which cars were usually moved on that track. Held, that the failure to have the frogs so placed as to prevent the car from being thrown from the track was pot negligence as matter of law, such frogs having been put in to prevent cars going in the proper direction from being thrown from the track. White v. Railroad Co., 61 Wis. 536, 21 N. W. 524. § 30. 1 Employment of competent engineer to construct bridge is no (59) § 30 CARRIERS OF PASSENGERS. (Ch. 2 As a general proposition, however, one who has contracted with a fit and competent person, exercisino- an independent employment, to do work not in itself dangerous to others or unlawful, according to the con- tractor's own method, and without his being subject to control, except as to the results of his work, is not answerable for the wrongs of such contractor, his sub- contractors or servants, committed in the prosecution of the work.^ But this principle cannot be applied so as to relieve carriers from any of their duties to pas- sengers. One of the very plainest duties imposed up- on a railroad company carrying passengers for pay is that it shall keep its track in good and safe condition, free from obstructions endangering those passengers. For the public to yield orwaive the performance of this duty would be to waive that which is of the highest importance to personal safety or life itself. The law is necessarily rigid as to this. Passengers are en- titled, by the clearest principles, to look in this re- spect to the carrier who has engaged to carry them, and cannot be told to follow some one, a stranger to them, and often irresponsible. The company cannot devest itself of or shift this obligation.^ defense to an action by a passenger injured by tliefallingof the bridge. Grote V. Railway Co. (1S4S) 2 Exch. 251. Where a passenger is in- jured by tbe waslaing away of an embankment of a railroad because of insufficient drainage, the company will not be relieved from liability l>y the fact that the road was constructed under the supervision of a com- petent engineer, and that the drainage, at tlie point of the accident, was provided for in a manner directed and approved by him. Phila- delpliia & R. R. Co. v. Anderson, 94 Pa. St. 351. 2 Carrico v. Railway Co., 39 W. Va. 8(3, 19 S. E. 571. And see 1 Jagg. Torts, 231. 3 Carrico v. Railway Co.. 39 W. Va. 8G, 19 S. E. 571 (company held (60) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 31 § 31. SAME— ACT OT GOD. Railroad companies must so constnut tlieir road- beds as to be capable of resisting all violence of weath- er wliicb may be expected, though rarely, to occur in the climate where they are located;^ but such com- panies are not bound to provide against such extraor- liable for act of independent contractor in negligently piling rock so close to the track as to scrape against passenger car); Virginia Cent. R. Co. V. Sanger, 15 Grat. 230 (liable for act of independent contractor in piling stones so near track tliat one of tlieni rolled under wheels of ■passing train, causing its derailment). Where a man causes a building to be erected for viewing a public exhibition, and admits persons on payment of money, the contract between him and the persons admitted is analogous to the contract between a carrier and his passengers; and there is implied in such a contract a warranty, not only of due care on the part of himself and his servants, but also of due care on the part of any independent contractor who may have been employed by him to construct the means of conveyance and of support. Francis v. Cock- rell. L. R. 5 Q. B. 184, 501, 23 Law T. (N. S.) 466. Proprietors of structures intended for public use, such as fair associations, theaters, etc., are held only to the duty of exercising reasonable care m con- structing or repairing them, keeping in view the uses to which they arc to be devoted. But this degree of care is charged upon them as a per- sonal duty to be discharged by them. The burden of seeing and know- ing that the building has been constructed with reasonable slcill and care and prudence is cast upon them, and they are held answerable for independent contractors employed by tliem, whose failure to use due o; ordinary care is to be deemed a failure of the proprietors. 'I'ueker v. Agiicultural Board, 52 111. App. 316. The proprietor of a liiU to which the public is invited is bound to use ordinary cai-e and diligence to put and keep the hall in a reasonably safe condition for persons attending in pursuance of sucli invitation; and if he neglects his duty in this re- spect, so that the hall is in fact unsafe, his knowledge or ignorance of tlic defect is immaterial. Currier v. Music Hall Ass'n, 135 Mass. 411. See, also, post, § 344. § 31. 1 (Jreat Western Ry. Co. V. Braid, 1 Moore, P. C. (N. S.) lul. (01) § 31 CARRIERS OF PASSENGERS. (Cll. 2 dinary and unprecedented storms, floods, or other inevitable casualties caused by the hidden forces of nature, unknown to common experience, and not rea- sonably to be anticipated by that degree of engineer- ing skill and experience required in the prudent con- struction of such road. In such case the injury can- not be held to be attributable to any fault or negli- gence of the company; it results from inevitable ac- cident — vis major — the act of God.- Thus a railroad company is not in fault in respect to the construction of a culvert over a brook, which has stood for more than 40 years, and which never in all that time had failed to discharge all the water flowing into it, but which was washed out by an unprecedented local cloud-burst of about two hours' duration, emptying volumes of water upon the track.^ And where a rail- way embankment through a marshy country has with- stood floods for five years, the company is not liable for the death of a passenger caused by the giving way of the embankment by reason of a flood resulting from a storm "such as had never before occurred." * Even 2 Libby v. Railroad Co., 85 Me. 34, 42, 26 Atl. &43. 3 Id. 4 Withers v. Railway Co., 27 Law J. Exoh. 417; s. c. at nisi prius, 1 Fost. & F. 16.5. A railroad company constructed its tracli in a sljillful manner, with a culvert of sufficient capacity to carry oft" all ordinary surface water. The embanlvment was undermined by an extraor- dinarily heavy local rain, which had not injured the surface of the track. Held, that the company was not liable for injuries in a wreck caused by the giving way of the embankment, where anotiier train had passed over the track two hours before the accident, and where the track had been examined by the sectionmen only an hour before the accident, and been found in an apparently good condition. In- ternational & G. X. R. Co. V. Halloren, 53 Tex. 46. (G2) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 31 a statute reqiiirino- railroad companies to construct ditches and drains along- the sides of their roadbeds does not require them to provide against floods which are extraordinary and nuprecedented/ Neither is a railroad company liable for the vis major of extreme cold, by which a sound rail is broken, without any want of care and skill on its part in the selection, test- ing, laying, and use of such rail." Upon the other hand, the company must provide its track with sufficient drains to carry off the waters of a storm which, though of unusual violence, is of such a . character as may reasonably have been anticipated." So the prevalence of continuous rain and snow in the winter, for a considerable time, is not an unprecedent- ed or unusual event in Texas, against the effects of which a railroad company cannot guard by proper care and skill. ^ And where the immediate cause of the washing away of a railroad embankment is the lack of proper drainage, the fact that a rain storm of unprecedented violence concurred in producing the accident will not relieve the company from liability.'-' Kor is a landslide in a railway cut, caused by an or- dinary fall of rain, an act of God.^" 6 EUtt V. Ral\v;iy Co., 76 Mo. 518. 6 McPadden v. Railroad Co., 44 N. Y. 478, reversing 47 Barb. 247; Canadian Pac. Ky. Co. v. Clialifoux, 22 Can. Sup. Ct. 721. lu the last- cited case, this was held to be the rule both at the common law and under the Civil Code of the Province of Quebec. 7 Great Western Ry. Co. v. Braid, 1 Moore. P. C. (N. S.) 101, affirm- ing 10 r. C. C. P. l.",7. 8 ^lissouri Pac. Ry. Co. v. Mitchell, 72 Tex. 171, 10 S. \V. 411; Missouri Pac. Ry. Co. v. .Johnson, 72 Tex. 95. 10 S. W. 325. Philadelphia & R. R. Co. v. Arr^^rson. 94 Pa. St. 3.")1. 10 Glee-son v. Railroad Co.. 140 U. S. 4:J5. 11 Sup. Ct. 859, reversing (63) § 32 CARRIERS OF PASSENGERS. (Cll. 2 § 32. SAME— GUARDING AGAINST ACT OF GOD. The carrier owes to his passenger the duty of exer- cising the highest degree of practical care to ascertain whether or not the track has been rendered unsafe by an act of God, and to avoid its effect. ''Under cir- cumstances of more than ordinary peril, as in the case of violent storms, the company should inspect its lines with more than ordinary promptitude, particularly those portions which are the most liable to injury by storm or flood. The greater the peril, the greater the vigilance demanded." ^ ''The duty of the company is to employ the highest degree of practicable care to guard against accidents, and where its agents or of- ficers have knowledge that a great storm or a great 5 Mackey (D. C.) 356. In this last case it was said: "Extraordiuaiy floods, storms of unusual violence, sudden tempests, severe frosts, great droughts, lightnings, earthquakes, sudden deaths, and illnesses have . been held to be 'acts of God' ; but we know of no instance in which a rain of not unusual violence, and the probable result thereof in soften- ing the superficial earth, have been so considered." To construct a railroad embankment of earth in a place which has indications of hav- ing at one time been a natural watercourse is negligence, rendering the company liable for the death of a passenger in a railroad disaster caused by the washing away of the embankment by a flood in a vio- lent, but not unprecedented, storm. Kansas Pac. Ry. Co. v. Lundin, 3 Colo. 1)4; Kansas Pac. Ry. Co. v. INIiller, 2 Colo. 442. § 32. 1 Libby v. Railroad Co.. 85 :Me. 45. 26 Atl. 943. In this case it Avas held that where a section crew knew that a severe rain storm hail occurred, and that an extensive watershed emptied into a cul- vert about Uyo miles from where they then were, and that a passen- ger ti-ain was due shortly after the rain ceased, the jury might find that their remaining in shelter for an hour and a half was negli- gence which rendered the company liable for injuries to a passenger caused by a washout at the culvert. (64) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 32 flood has probably made its track or bridges unsafe, it must, where there is reasonable time and opportunity, take measures to protect its passengers from injury." ^ Though a locomotive engineer has no knowledge of the extraordinary violence of a rain storm which se- cretly undermined the track, and caused the derail- ment of his train, yet the fact that he observed that the water was within eight inches of the ties— over three feet higher than he had ever seen it before— is, of itself, notice to him that there had been an unusual and extraordinary storm in that vicinity; and, in the absence of information on the part of the engineer as to how long the water had been at that height, or as to whether it had been higher, it is his duty to exer- cise the utmost circumspection before attempting to go over the embankment, and the utmost care and skill in the management of his train in going over it.^ But the dangerous condition of a railroad track from a heavy rain does not render it negligence for a rail- road company to run a train over the track, unless the 2 Louisville, N. A. & C. Ry. Co. v. Thompson, 107 Ind. 442, 8 N. E. 18, and 9 N. E. 357. 3 Ellet V. Railway Co., 76 Mo. 518. The only case holding a con- trary principle is that of Gillespie v. Railway Co., 6 Mo. App. .554. This ease holds that a carrier is bound only to the use of ordinary care to guard against an act of God. "So far as regards tlie perils for whicli the carrier is responsible, he is bound to tlie liighest degree of practicable care, and liable for slight neglect. But where the material issue conies in of act of God, or vis major, we have the operation of n peril for which llie carrier is not responsible; and this, as in a case where the point is as to the passenger's contributory negligence, raises the question whether the carrier, notAvithstanding tlie operation of perils which he does not assume, could, by the exercise of ordinary care, have avoided the catastroiihe." V. 1 KRT.CAR.P./^S. — 5 (65) § 32 CARRIERS OF PASSENGERS. (Cll. 2 coDipany or its employes knew, or by proper care would have known, the condition.* Nor is an elevat- ed railroad chargeable Avitli negligence in failing to suspend the entire operation of its road at the begin- ning of a blizzard of unprecedented violence, Avhere the weather forecast had been favorable, and it had stop- ped snowing for some hours before the blizzard be- gan. Hence the failure to so stop oiieratious does not render the company liable for a collision between a snow-bound train and another approaching from the rear.^' Nor is a carrier operating a railroad over mountains negligent in running a train during a se- vere snowstorm, and it is not liable to a passenger in- jured bv the train's derailment bv a snowslide: such an accident having never before occurred at this point and there having been no reason to anticipate one 5 6 4 International & G. N. R. Co. v. Halloren, 53 Tex. 4G. On a dark, rainy night, a passenger train rnnning on a ti'aek laid along the moun- tain side was frequently stopped at exposed places. At length the rain ceased, and the train reached ,a portion of the road regarded as perfectly safe, the track on which was laid on an eartli fill, supplied Avitli a culvert which had been adequate to carry off the water for 35 years. Owing to a waterspout at this place, the embankment had been washed away, and a pond had formed which floated the ties and rails unbroken. The ti-ain was running so slowly that the rear cars did not get on the fill, but the locomotive and front passenger coaches plunged into the pond, and many passengers were killed and injured. Held, tliat the company was not liable, no negligence being shown. Norfolk & W. R. Co. v. INIarsliall's Adm'r, 90 Va. 83(3. 20 S. E. S23. r> Connelly v. Railroad Co., 142 N. Y. 377, 37 N. E. 402, reversing 68 Hun. 4.50, 23 X. Y. Supp. 88. 6 Denver & R. G. R. Co. v. Pilgrim (Colo. App.) 47 Pac. 657. (CG) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 3 § 33. SAME— ACTS OF PUBLIC ENEMY. A railroad company is not liable for defects in its roadbed caused by the act of the public enemy. Hap- pily, there has not been very frequent occasion to ap- ply this principle. At the outbreak of the Civil War, however, a railroad bridge over the Platte river was burned by armed rebels on a sudden and hostile in- cursion a few hours before the arrival of a passenger train, and the sectioumen were overawed and driven off, so that no notice of the burning of the bridge had come to the trainmen. It was held that the company was not chargeable with negligence in failing to maiu- taiu a proper roadbed. It was further held that the failure to stop the train before going on the bridge was not negligence which would render the company liable for injuries to a passenger caused by the train's plunging into the chasm, especially where there was danger of the train's being fired into and captured.^ So, in a Georgia case, it was held that, though a car was derailed, and a passenger killed, by reason of de- fects in the roadbed, yet a verdict exonerating the com- pany from negligence was warranted by evidence that the accident occurred during the Civil War, when the ports of the South were under rigid blockade, and sup])lies of iron were not to be had.^ § :;3. 1 Sawyer v. Railroad Co., 37 Mo. liU, 2 Wright V. Bauking Co., 34 Ga. 330. (G7) § 34 CARRIERS OF PASSENGERS. (Ch. 2 § 34. SAME— INSPECTION AND REPAIR. A railroad company is not absolutely bound to know whether its tracks are in fit condition for safe passage, but it must do all that human care, foresight, and vigi- lance can do to ascertain their condition.^ The duty of inspection does not end when the materials are put in place, but continues during their use; for the com- pany is bound to test them from time to time, to ascer- tain whether they are being impaired by use or ex- posure to the elements.^ It is not enough that a track is in "apparently" good condition. If there are de- fects rendering it unsafe, which by the exercise of care and skill might have been discovered, it is the carrier's duty to discover them, and thus avoid danger to its passengers.^ ' § 34. 1 St. Louis C. R. Co. v. Moore, 14 111. App. 510. 2 Louisville, N. A. & C. R. Co. v. Snyder, 117 Ind. 435, 20 N. E. 284. s Cliicago, P. & St. L. Ry. Co. v. Lewis, 145 111. 67, 33 N. E. 960. It is the duty of a railroad company to have a good, substantial, and safe roadbed for the use of its passenger trains, and default in that duty, where the defect is patent to common observation, is negligence. Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 South. 714. To per- mit rotten cross-ties to remain on a railroad track is negligence, whie-h renders the company liable for injuries to a passenger caused by the giving way of the ties under the weight of the locomotive. Ruther- ford V. Railroad Co., 41 La. Ann. 793, 6 South. 644. It is evidence of negligence, in the conduct of the cariying, that the train was run over a rail known to have been defective and fractured. Pym v. Railway Co., 2 Fost. & F. 619. A railroad company is guilty of gross negli- gence in permitting the rails to become badly worn, having their ends so loose that they pass up and down with each passing car, such rails varying in length from 9 to 13 feet, some of them not meeting at the joints by 2^2 inches, the spaces being tihed in witli wooden plugs, and (G8) Cli. 2) DLTV AS TO MEANS OF TRANSPORTATION. § o5 § 35. SAME— OBSTRUCTIONS. It is the duty of a railroad company to exercise proper care and diligence, not only to free the track it- self from obstructions, but also to guard against the interference of objects near the track with passenger trains. Thus a railway company, as to its passen- gers, is bound to see that the cars which it uses on side tracks are secured in place, so that they will not come upon the track to overthrow any train that may come along. "^ And the fact that a freight car is mov- some of the ties being brolien iu tlie middle. Toledo, W. & W. Ry. Co. V. Apperson, 49 III. 480. Repairing a railroad track by cutting oin a portion of a broken rail, and inserting a sound piece, instead of sub- stituting an entirely new rail, is negligence. Peoria, P. & J. R. Co. v. Reynolds, 88 111. 418. Repairs of a railroad track were attempted to be made without interfering with the passage of trains. Th;' tune for the passage of the different trains was well uuderstood, aud to insure safety it was onlj^ necessary that the employes of the company shouUl have an accurate timepiece, to enable them so to conduct the work that the track should be in order on the arrival of the next train: Held, that it was the duty of the company to see to it that the men em- ployed in labor of that kind were furnished with a proper timepiece, and that where the company paid no attention to that subject, but left the foreman to procure aud to attend to the regulation of his own watch, it was a question for the jury whether or not the company was guilty of negligence. Matteson v. Railroad Co., 62 Barb. (N. Y.) 304. § 3o. 1 Union Pac. Ry. Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. 843. Failure to set brakes on freight cars on a side track is negligence, which renders the company liable for iujuries to a passengei', whose train was struck by one of the freight cars which had moved down the side track so near the main track as to render a collision inevitable. Id. In Spicer v. Railway Co., 29 Wis. 580, it was held to be negligence for the engineer of a freight train to uncouple cars standing on a side ti'ack, on a down grade, without blocking the wheels, or disconnecting the switch from the main track; aud the company was held liable for (CD) § 35 CARRIERS OF PASSENGERS. (Ch. 2 ed by the force of the wind from a side track to the main track is not alone sufficient to relieve the carrier from a charge of negligence, in an action by a pas- senger injured in a collision with the car. It is the duly of the company to secure cars on a side track so that no wind which may reasonably be anticipated will move them. Defendant's evidence that the car was secured by setting the brakes is not sufficient to take the case from the jury, where plaintiff's evidence shows that, if the brakes had been properly set, such a wind as there was prior to the collision would not have moved the car.- So, it is negligence in a rail- road company to allow coal bins so close to its track that passengers on an open excusion car cannot safeh^ stand, while passing them, on the running board that stretches along the side of such a car, and that takes the i>lace of the aisle in the ordinary passenger car.^ So, also, a street-car company, using electricity as a motive power, is bound to foresee the possible danger to which passengeis on the footboards of its cars ma}' be exposed by a slight turn of the body sidewise, or by a slight inclination of it backward, in consequence injuries to a passenger sustained in a collision between a passenger train and tlie freight cars, which had run onto the main track of their own momentum. 2 Webster v. Railroad Co., 115 N. Y. 112, 21 N. E. 72.3; Id., 40 Hun (N. Y.) IGl. But placing cars on a side track is not negligence which will render a railroad company liable for injuries to a passenger, whose train ran off the track at a switch, and into the cars standing on the side track. Grant v. Railroad Co., 108 N. C. 462, 13 S. E. 209. 3 Dickinson v. Railway Co., 53 Mich. 43. 18 N. W. 553. Code Tenn. 1884, § 1307, requires every railroad company to cut down on its lands trees more than six inches in diameter which might reach the roadbed if they fell. (70) Cll. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 35 of the proximity of its track to its trolley poles; and a jury may find it negli.uent in phuing- sncli a pole within 24 inches of the rail, and within 10 or 12 inches of the footboard of a movinsr car.* But it is not neu- liiience for a street-car company to continue to run its cars on its track after the erection, by another com- pany, of elevated railroad pillars in the street near its track; and where, on account of such pillars, it has purchased open summer cars six inches narrower than the ordinary cars, it is not liable for an injury to a pas- senger who was struck by one of these pillars while walking along the running board at the side of the car/ The same principle applies to overhead structures, so far, at least, as passengers are concerned. "Rail- way companies are under an obligation to all persons Avho have a right to be on top of their trains, in the 4 Elliott T. Railway Co., 18 R. I. 707, 28 Atl. 338, and 31 All. {\[)4. Where a street railroad, improving its tracks, places a temporary track so near the curb of the street as to place its passengers, in getting on and off the cars, and while upon them, in danger of being struck by a telegraph pole, it is a fair question for the jury whether the company is or is not guilty of negligence. North Chicago St. R. Co. v. Williams, 140 111. 275, 283, 29 N. E. 672, 40 111. App. 590. A street-railroad com- pany, which places its track in close proximitj^ to a derrick, must use all reasonable care to avoid exposing passengers to danger, and es- pecially is tliis so in view of the fact that passengers are allowed to stand on the side steps of the car. Seymour v. Railway Co., 114 Mo. 266, 21 S. AV. 739. 5 Murphy v. Railroad Co. (Super. Ct. X. Y.) 26 N. Y. Sui)p. 783; Vromau v. Railroad Co., 7 Misc. Rep. 2:14. 745, 27 X. Y. Supp. 257, 112S. The mere piling of dirt or clay on or near u street-railway track, for u.se in ballasting the track, wliere it has been undermined by a wasli- our. is not negligence on tin- part of the company. Noble v. Railway Co., 98 Mich. 249, 57 N. W. 126. (71) § 35 CARRIERS OF PASSENGERS. (Ch. 2 discharge of any duty, to so construct overhead bridges that they will not cause any peril that can easily, and without auv great outlay, be avoided; and, if any dangerous overhanging structures are for any reason maintained, it is the company's duty, in the ex- ercise of ordinary care, to give warning, either ver- bally or by suspended whiplashes, to persons thus ex- posed." ^ But it has been held that a railroad company is not under any obligation to construct its roadbed so as to render it safe for passengers to ride on top of a caboose, in violation of its rules, and one so riding as- sumes the risk of being struck by a projecting water spout from a water tank near the track." So, when a railroad company has nothing to do with overhead structures erected by a municipal corporation in mak- 6 So held incase of a stock drover, who was struck by a bridge while rightfully walking ou top of a cattle train from the engine to the ca- boose. Chicago, M. & St. P. Ry. Co. v. Carpenter, 5 C. C. A. 551. 56 Fed. 451, and cases cited. It is a question of fact for the jury to de- termine whether or not a railroad company is negligent in constructing snowsheds over the track so low that a cattle drover, rightfully walk- ing on top of a refrigerator car, and ignorant of the whereabouts of the shed, is struck on the head, and thrown from the car. Saunders V. Railroad Co. (Utah) 44 Pac. 932. A different rule has been laid down by some courts with respect to railroad employes. Baylor v. Railroad Co., 40 N. J. Law, 23; Baltimore & O. R. Co. v. Sti-icker, 51 Md. 47; Pittsburgh & C. R. Co. v. Sentmeyer, 92 Pa. St. 276; Gibson V. Railway Co., 63 N. Y. 449. Where a building contractor negligently suspends the guy rope of a derrick too low for a street car to pass un- der it, and the driver of the car negligently drives against the rope, so as to cause the derrick to fall upon and kill a passenger on the car, both the contractor and the i-ailway corporation may be held liable in an action by the widow of the passenger. Hunt v. Railroad Co., 14 Mo. App. 160. 7 St. Louis S. W. Ry. Co. v. Rice, 9 Tex. Civ. App. 509. 29 S. W. 525. (72) Ch. 2) DL'TY AS TO MEANS OF TUANSPORTATION. § 35 ing' a public improvement, it is not the duty of the rail- ^vay directors to assume that such works will be neg- ligently conducted by those who have contracted for their execution, and to take precautions against pos- sible negligence on the part of persons who are not in th^ir employment, nor under their control.^ The locomotive engineer and all other train hands are, of course, bound to exercise a high degree of care to avoid collisions with obstructions on or near the track. Thus an engineer of a passenger train is guilty of negligence in driving his train, in broad day- light, at the rate of 10 or 15 miles per hour, against sticks of wood lying directly across the track, visible for a distance of a quarter of a mile before reaching them, though he thinks that he can knock them out of the way.^ 8 Daniel v. Railway Co., L. R. 5 H. L. 45, affirming L. R. 3 C. P. 591, reversing Id. 216. In this case the facts were: The city of London was authorized by statute to execute certain worlis over the line of the Metropolitan Railway Company. These works consisted partly in plac- ing heavy iron girders upon the walls running along the line of rail- way, but therailway company had no control over these works, and they were executed by contractors engaged by the city. Several girders had been safely put in place by manual labor, but on this occasion the con- tractor brought into use for one of the girders a monkey steam engine, Avhich moved the girder with a jerk, and so caused it to overbalance and fall. It fell on a passing train, and injured a passenger therein. Held, that this was not a mischief, the occurrence of which the rail- way company was bound to anticipate, and against which it was bound to take precautions, and that therefore its failure to employ signalmen to warn the conti-actors of approaching trains, for the purpose of stop- ping work until they had passed, was not negligence; that duty being Incumbent on the contractors. « Willis V. Railroad Co., 34 N. Y. 670, affirming 32 Barb. 308. A railroad company is liable for any casualty, resulting in injuiy lo a (7;i) § 35 CARRIERS OF PASSENGERS. (Ch. 2, But a statute requiring the alarm whistle to be sounded Avhen any person, animal, or other obstruc- tion appears on the track applies only to actions for injury to persons or property on the track, and not to the case of a passenger injured in a collision between the train and an inanimate obstruction on the track/** Where a wreck obstructs a track, and necessitates a transfer of passengers from one train to another in the nighttime, compelling them to walk 900 feet, and to cross a ditch over which planks have been placed, the failure to place a light at the crossing, or to give any warning of the ditch, or to take some means to guard passengers from the extra hazard to which they are exposed in crossing, warrants the jury in finding neg- ligence, and in holding the company liable for injuries to a passenger who fell into the ditch in crossing.^^ passenger, which may occur fronl running with greater speed than is prudent, or on account of collisions with obstructions on the tracli, which tlie engineer or conductor saw, or might have seen, or which he miglit have avoided by the most sliillful and prompt use of all the means in his power. Nashville & C. R. Co. v. Messiuo, 1 Sneed (Tenn.) 220. The question of negligence in tlie management of a street car on approaching, at its usual rate of speed, a sti'ucture within an iucli of the track, is for the jury. Dahlberg v. Railway Co., 32 Minn. 4ti4. 21 N. W. 54.5. 10 Louisville & N. R. Co. v. McKenna, 7 Lea (Tenn.) 313. 11 Mcksburg & M. R. Co. v. Howe, 52 Miss. 202. The progress of a passenger train was interrupted by the wreck of a freight train, con- sisting principally of oil cars, the oil in which was burning. The pas- sengers were transferred to the other side of the wreck, 200 feet from the burning cars, to await another train. Held that, since the burning cars were obvious, and the danger of explosion of oil apparent, the railroad company was not bound to restrain the passengers by physical force from approaching so near the burning cars as to become endan- gered by an explosion, should one occur. There was no pitfall or trap. (74) C'll. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 30 § 36. SAME— CATTLE ON TRACK. Though, as between the owner of live stock and a railroad eompanj', the company is not bound to fence its track at common law, jet as to its passengers the company is bound to exercise the highest human care and skill to keep animals off its track; and where a passenger has been injured in a collision between his train and animals on the track, the failure to fence is sufficient evidence of negligence to take the case to the jur}'/ This principle is peculiarly applicable in states where it is the general custom to permit cattle to run at large. If a fence will render the track safe from intrusion of cattle, and no other precautions will suf- fice, the company's obligation to its passengers de- mands the more effective remedy." The duty to fence their ti'acks is now very generall}^ imposed on rail- road companies by statute. Many decisions affirm that these statutes are valid, because thev are enacted under the police power, and are intended to protect persons traveling on the railroads of the country. If nor any invitation to passengers to leave the place designated by the conii any to await the arrival of the other train, and approach to within about 80 feet of the burning cars. Conroy v. Railway Co. (Wis.) 70 N. W. 480. A railroail coniitany is guiltj' of negligence in requiring its passengers to walk over a bridge in the nighttime, without anj' guards on either side of it, and obstructed by a large piece of timber, and without any lights to guide them. Jamison v. Railroad Co., 55 Cal. 592. i 36. 1 Sullivan v. Railroad Co. US^S) :J0 Ta. St. li.U: T^aelca wanna & B. R. Co. V. Chenewith, 52 Pa. St. 382; Buxton v. Railway Co. (1868) L. R. 3 Q. B. 553. 2 Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597, and cases cited. (75) § 30 CARRIERS OF PASSENGERS. (Ch. 2 the duty to fence is negligently violated, and the vio- lation of duty is the proximate cause of injury to a pas- senger, his right of action is clear and complete.^ At intersections with public highways, it is the duty of the company towards its passengers either to con- struct cattle guards or station watchmen there.* Employes in charge of trains must exercise faith- ful watchfulness to prevent accidents by collision with cattle, and the company must keep a clear right of way to afford them the facility of performing that duty/ It is negligence for the engineer of a passen- ger train to run at full speed over any part of the road known to be frequented by cattle, unless that part of the road is properly guarded from invasion.® 3 Louisville, N. A. & C. Ry. Co. v. Hendricks, 128 Iiid. 462, 28 N. E. 58. 4 Brown v. Railroad Co.. 3-1 N. Y. 404. Though a cow gets on a rail- road track within the limits of a village, where the statute does not re- quire the company to maintain a fence, yet the company is negligent in failing to maintain a suttieient cattle guard at the village limits; and a passenger who is injured by the derailment of the train caused by striking the cow may recover from tlie company. Atchison, T. & S. F. R. Co, V. Elder, 149 111. 173, 36 N. E. 505; Id., 50 111. App. 276. 5 Fordyce v. Jackson, 56 Ark. 594, 20 S. W, 528, 597. 8 Brown v. Railroad Co., 34 N. Y. 404. Where cattle are habitually attracted to the tracks near a flag station by corn liable to be scattered on the ground, and cows have been run over at that station, a proper consideration for the safety of passengers very clearly imposes on the company the duty, either of checking the speed of a train intending to pass the station without stopping, so as to remove all danger of acci- dents, or of stationing a watchman there at the appproacli and pas- sage of such a train, for the purpose of keeping the track clear. If there is no watchman, it is inexcusable negligence to run a train past the station with more than ordinary velocity. Chicago, R. I. & P. R. Co. V. McAra, 52 111. 296. In an action by a passenger for injuries sus- tained in the derailment of his car in a collision with a bull in the (76) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § o7 § 37. SAME— STREET-CAR TRACKS. The rules fjoverning: the construction and main- tenance of the roadbeds of ordinary steam railroads are in the main applicable to street railways. Thus it is negligence in a street railway to construct its tracks so close together on a curve that cars going in opposite directions come into collision.^ Likewise proper care must be exercised by the company to keep the track in nighttime, the presumption of neghgence is completely rebutted by un- contradicted evidence tliat, owing to a curve in the track, the engineer could not have seen the bull in time to have stopped the train, so as to have avoided the accident. Brunswick & A. R. Co. v. Gale, 50 Ga. 322. It would seem that the court overlooked the company's duty to keep the track clear. § 37. 1 Germantown P. Ry. Co. v. Brophy, 105 Pa. St. 38. Where a passenger standing on the runuiug board of a crowded street car is struck by another car on a parallel track, the fact that the two tracks were closer together at the place of accident than at other portions of the line, and that by the sinking of one of the rails the cars at that point pitched towards each other, is sutticient to warrant a jury in find- ing negligence. Gray v. Railroad Co., 61 Hun. 212. 15 N. Y. Supp. 927. A street-railroad company constructed its parallel tracks so wnde apart that people frequently stood between them while cars were passing each other, and open cars had been run on tlie road for 20 years, and thousands of i)assengers had stood on the running boards of such cars witliout injury from cars on the other track. Held, that the company was not chargeable with negligence in failing to have more space be- tween the tracks, and that it was not Uable for injuries to a passenger standing on the nmning board in such an extraordinary position aS to be struck by a car on the parallel track. Craighead v. R.illroad Co., 12."{ X. Y. 391, 25 N. E. .387, reversing (City Ct. Brook.) 5 X. Y. Supp. 4'.'A. lUit where a street-railway company constructs its parallel traek.s so clo.se together that cars pa.ssing on a curve almost touch each other, it is negligence on the part of the company to take no precautions to prevent cars fi-om passing each other on the curve. Suiinucrs v. Railroad Co., 34 La. Ann. 139. (77) § 37 CARRIERS OF PASSENGERS. (Ch. 2 repair.- But a street railroad, by laying its tracks and rnnning its cars across a bridge bnilt by the state over a canal, and forming a continnation of the street, does not thereby make the bridge an appliance of its own, within the meaning of the rnle which exacts ex- treme care and caution from carriers in relation to the condition of appliances employed by them. While it might be negligence to drive over a bridge manifestly unsafe, or not strong enough to bear the proposed weight, the company is not liable for injuries to a pas senger caused by a latent defect in the bridge, even if discoverable in the process of manufacture 'S'-J 2 In an action by a passenger thrown out of an open street car, it appeared that the company had removed paving stones from the street for the purpose of repairing its tracks, and there was evidence that the absence of paving stones made the passage at this point dangerous, and that this caused the accident. Held, that tliere was suthcient evidence of negligence to take the case to the jury. Val- entine V. Railroad Co., 137 Mass. 28. While a street-railroad company has the right to remove snow from its tracks, it is bound to exercise reasonable care and diligence in so doing; and, if it negligently per- mits a ridge of ice and snow to accumulate for some weeks along its tracks, it is liable for injuries sustained by a passenger who slipped on this ridge, and fell under the wheels of a car he was about to board. Dixon v. Railroad Co., 100 N. Y. 170, 3 N. E. 6-5. 3 Birmingham v. Railroad Co., 137 N. Y. 13, 32 X. E. 995, reversing 63 Hun, 635, 18 N. Y. Supp. 649, 59 Hun, 583, 14 N. Y. Supp. 13. The court said: "Where a steam railroad has a right to build a brluge, and, instead of building, leases the right to cross the bridge of another, tlie reason for holding that such bridge is thereby adopted its own by the company using it is obvious. It is a voluntary matter on the part of the company whether to build its own, or ito lease tlie bridge of an- other; and, if it choose the latter mode of crossing the obstruction, it is but another way of obtaining a bridge of its own, and, when it thus contracts for its use, it, of course, adopts it as its own structure. The position of a street railway in attempting to carry on its business of (78) Oh. 2) DUTY AS TO MEANS OF TKANSPORTATOX. § 3S In conclusion, it should be stated that, while a iini- uicipal corporation, in the exercise of the police power, can prohibit such an adjustment of street-car tracks as will eudanuer the lives of passenjiers, the failure to exercise that power does not render the city liable to a i)assenger, who, wliile riding on the running board t)f an open car, was struck by a trolley pole near the track.* § 38. DUTY AS TO VEHICLES. Comnion carriers of passengers must use the best mechanical appliances in their vehicles, and exercise the highest degree of practicable care and skill to determine that all their appliances are safe for purposes of transportation; but they are not insurers, and consequently are not liable for latent defects not discoverable by the exercise of proper care and skill. ^ running cars through the public streets of a city has nothiiiir in com- mou with that occuiued by a steam raih'oad under the circumstances mentioned." It was held that the street-railroad company was not liable for an injury to a passenger while crossing the bridge, caused by the breaking of a bridge attachment, which was defective when placed in position: the defect being discoverable by the maker in the process of manufacture, but not discoverable from any examination that could be made by any person using the bridge for crossing. But in Catalanotto v. Railroad Co. (City Ct. Brook.) 7 N. Y. Supp. 62S, it was held negligence in a street-car driver to drive at a rapid rate of Bpeed over a draw bridge si)anning a canal, when he knew that the vacillation caused thereby was liable to dislodge a heavy weight sus- pmded near the car track, and used in operating the draw. 4 Kennedy v. City of Lansing, 9!i Mich. .")18, 58 X. W. 470. § 38. 1 Anthony v. Uaihoad Co., 27 Fed. 71' 1: Nashville & C. R. Co. V. Messino, 1 Sueed, 220. And see, ante, §§ 1, 2. (79) § 38 CARRIERS OF PASSENGERS. (Ch. 2 In behalf of the proposition that carriers of passen- gers absolutely warrant the roadworthiness of their vehicles, many a gallant legal battle has been fought, but generally without avail. Aside from a few dicta in the earlier English cases,^ and a decision of the New York court of appeals,^ now overruled, ■* the courts have uniformly held that in these respects, as well as in all others, the carrier's liability depends on negligence.^ In some of the states, however, by force of statute, a different rule prevails. The Civil Code of California provides: "A carrier of persons for re- ward is bound to provide vehicles safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care." ® The carrier's duty with respect to vehicles has been 2 Sharp V. Grey, 9 Bing. 457; Bremner v. Williams, 1 Car. & P. 414- 410; Israel v. Clark, 4 Esp. 259. 3 Aldeu V. Railroad Co., 26 N. Y. 102. 4 Carroll v. Railroad Co., 58 N. Y. 158; Mc-radden v. Railroad Co., 44 N. Y. 478. In Readliead v. Railway Co., L. R. 4 Q. B. 379, 392. it was said, with reference to Alden v. Railroad Co.: "The English courts are desirous to ti-eat the American decisions with great respect; but, as their authority here must mainly depend on the reasons on which they are founded, we have felt bound to examine the reasons on which this decision was based, with the result which has already been stated." 5 See, ante. §§ 1, 2; Readhcad v. Railway Co., L. R. 4 Q. B. 379; Car- roll V. Railroad Co., 58 N. Y. 138; Meier v. Railroad Co., 64 Pa. St. 225. A railroad company is not liable for injuries to a passenger who tripped on the car step, where he himself admits that he looked at the car step, and saw nothing wrong, and numerous witnesses agree that it was not defective. Hitchcock v. Railroad Co., 50 Hun, 606, 3 N. Y. Supp. 218. <■■ Section 2101. Comp. Laws Dak. 1887, § 3839, and Code Mont. 1895, § 2r91. are identical with this section. (80) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 38 enforced in many cases. A carrier, it is said, does not fulfill his duty to bis passenjiers by providing appli- ances wbicb are sound and complete wben tested by those in use on his line, but he must see to it that they are of a safe kind.' And extraordinary diligence will require the carrier to use the appliances he has, though it might not require him to provide them.^ In supplying grips and brakes, a cable railway company is bound to anticipate and take into consideration all such weather and conditions of the track as may be reasonably expected in the climate where operated." A railroad company which is unable, from causes be- yond its control, to provide a passenger coach accord- ing to its contract, and which substitutes a baggage car, is liable for injuries to a passenger caused by some defect in the car, unless it can show that it exercised the utmost care and diligence, and that the baggage car was a safe conveyance.^" But it must be borne in T Fill ish V. Reigle, 11 Grat. G'JT, 710. 8 Augusta R. Co. v. Glover, 92 Ga. 132, 18 S. E. 406. Although there may be no negligence whatever in the failure of an electric street-car company to have gates to the platforms of its cars, for the purpose of guarding against accidents to passengers by preventing them fron* leaving the cars on the wrong side, yet when a particular company has- 8uch gates to the platforms of its cars, the failure to keep them clused may or may not be negligence in the given instance, and this is a ques- tion of fact for the jury. Id. 9 Sharp V. Railway Co., 114 Mo. l>4, 20 S. W. 93. 10 Baltimore «S: P. R. Co. v. Swann, 81 Md. 4Q0, 32 Atl. 175. It is the duty of a railroad company, when placing ladders at the ends of cars, instead of on the outside, to provide such bumpers or agencies as will prevent cars that are coupled togetlier from coming so close to- gether as to imperil the life or limb of a peisDii who m:iy b(> lawfully employing such ladders,— such as a cattle drover iuspecliug Ids stock V. 1 FET.CAR.PAS. 6 <.^^) § 38 CARRIERS OF PASSENGERS. (Ch. 2 mind that conveyances are constructed with reference to their careful and prudent use by passengers, and that construction cannot be said to be defective which is only unsafe in view of the careless conduct of a pas- senger in voluntarily jumping on or off a car in mo- tion." So there is no principle of law which requires a carrier to furnish its road with new cars to transport passengers, or w^hich makes it liable for using old ones. Whether new or old, it is required to keep them in good repair, and fit for use, so as not to en- danger the safety of passengers.'- The fact that the sheathing of a wheel on a street car projects above the lloor is not evidence of negligence against the com- pany, where there is ample room to enter and leave the car; and a passenger who in broad daylight stum- bles over such a projection, while rising to signal the •while the train is in motiou. New York, C. & St. L. R. Co. v. iiiimu u- thal. 57 111. App. 538, affirmed in 160 111. 40, 43 N. E. 8 ti). In an action for injuries to a passenger ridinn' in a caboose attached to cars loaded with logs, it appeared that the train was derailed owing to the fact that one of the logs rolled from its place onto the track. It also ap- peared that the load in question was seven feet high, while it was usual to load the logs only from four to six feet high, and that the top log \\as secured by a block, because of a crooked log underneath it. Hi>ld, that the question of negligence was for the jury- Keating v. Railroad Co., 104 Mich. 418. G2 N. W. 575. Whether failure to put guards in front of the wheels of a street car, as required by an ori1i- nauee, is negligence, and, if so, whether the absence thereof was the cause of an injury to one who, trying to get on the front platform waule the car was moving, missed his footing, and got his foot under the wheel, while holding with both hands on the railing-;, are qu. sious for the jury. Finkeldey v. Cable Co., 114 Cal. 28. 45 Pac. 99l). 11 Werbowlsky v. Railroad Co., 8G Mich. 230, 4S N. W. 10U7. 12 Wormsdorf v. Railroad Co., 75 Mich. 472, 42 N. W. lOOQ. (82) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 39 conductor to stop the car, cannot recover for the in juries sustained. 13 § 39. SAME— LATENT DEFECTS. The law may now be regarded as settled, except where a statute exists to the contrary, that a common carrier of passengers is not liable for injuries to a pas- senger caused by a latent defect in tlie vehicle. The leading American case on the subject is that of Ingalls V. Bills,' and the leading English authority is Read- . head v. Midland E. Co.- In the Massachusetts case, which was an action for injuries to a passenger in a stage coach, it was held that, "where the accident arises from a hidden and internal defect, which a care- ful and thorough examination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no re- dress in the form of a pecuniary recompense." ^ In the English case it was ruled that a passenger could not recover for injuries caused by the breaking of the tire of one of the car wheels owing to "a latent defect in the tire which was not attributable to any fault on 13 Farlty v. Tractiou Co., 182 Pa. St. 5S. 18 Atl. lOUU. atliniiiiiii- I'a. Co. Ct. R. 347. .See, to same effect, Thompsoa v. Railway Co. (Mo. Sup. I 36 S. W. 025. § 39. 19 Mete. (Mass.) 1. a L. R. 4 Q. B. 379. 3 Injialls V. Bills, 9 Mete. (.Mass.) 1. (S3) § 39 CARRIERS OF PASSENGERS. (Ch. 2 the part of the manufacturer, and could not be de- tected previously to the breaking." * A "latent defect" has been defined by the New York court of appeals to be "such only as no reasonable degree of human skill and foresight could guard against." ^ It has been frequently held that a railroad company is not liable for injuries sustained in the de- railment of a train caused by a defect in the axle of one of its cars, which could not have been discovered by the highest degree of care known to the best railroad experts.® So it has been held that a carrier of pas- sengers is not liable for injuries caused by the bursting of a boiler owing solely to a latent defect not discov- erable on examination, or by the application of any 4 Readhead v. Railway Co., L. R. 4 Q. B. 379. 6 Palmer v. Caual Co., 120 N. Y. 170, 24 N. E. 302, affirming 46 Hun, 486. A carrier of passengers is liable for injuries wliicli happen by reason of defects in the carriage, which might have been discovered by the most careful and thorough examination, but not for an mjury which happens in consequence of a hidden defect, which could not upon examination have been discovered. Hadley v. Cross, 34 Vt. 586. In the case of a latent defect in an appliance for the carriage of passen- gers, the question is not whether the carrier had actual notice of it sufficiently long before the accident to have con-ected and repaired it; but is wliether, by the exercise of that high degree of care required of caiTiers of passengers, it might have been disc*overed and remedied. West Chicago St. R. Co. v. Stephens, 66 111. App. 303. 6 Texas & P. Ry. Co. v. Buckalew (Tex. Civ. App.) 34 S. W. 165: Hanley v. Railroad Co. (1846) 1 Edm. Sel. Cas. (N. Y.) 359. A railroad company is not liable for an injury to a passenger caused by the breali- ing of a car wheel, which was manufactured in a proper manner by reputable manufacturers, and, like the axle, without a blemish, and no defect was discoverable after the usual examination and test on the night of the accident. Frelsen v. Southern Pac. Co., 42 La. Ann. 673, 7 South. 800; Grand Rapids & I. R. Co. v. Boyd, 65 Ind. 526; Toledo, W. & W. Ry. Co. V. Beggs, 85 111. 80. (S4) Ch. 2) DUTV AS TO MEANS OF TRANSPORTATION. § 40 tests known or practicable/ Whore a cable company makes a thorongli examination of its cars every night, including grips and brakes, it is not liable for an ac- cident caused by the breaking of the grip, owing to some latent, hidden defect, not apparent to the eye, and not discoverable by examination and tests/ Nei- ther is a railroad company liable for mortification and discomforts endured by a female passenger while lock- ed in the water-closet of a car owing to a defect in the lock, where it appears that the lock was of the best manufacture; that the defect was not discoverable be- fore the accident; that as soon as plaintiff's predica- ment was discovered the train hands took steps to re- lease her; and that, with her husband's assistance, she got out of the closet through a window/ § 40. SAME— LIABILITY FOR NEGLIGENCE OF MANUFACTURER. Closely connected with the subject of latent defects is the question whether or not a carrier which pur- chases its appliances from reputable manufacturers is liable for defects therein which it could not have dis- covered by any test after the appliances came into its possession, but which could have been discovered by the manufacturers in the exercise of proper care. We 7 Carroll v. Railroad Co., 58 N. Y. 12(j; Robinson v. Railroad Co., 9 Fed. 877; Illinois Cent. R. Co. v. Phillips, ."".5 111. 194. 8 Carter v. Railway Co., 42 Fed. 37. A vessel is not liable lor in- juries to a passenger caused ))y a latent detect in a sail boom. The Nederland, 14 Fed. (!:3. aftirniinj,' 7 Fed. 92tj. 8 Gulf. C. & S. F. R. Co. V. Siiiitii (Tex. Civ. App.) 30 S. W. ^01. (85) § 40 CARRIERS OF PASSENGERS. (Ch. 2 have seen that a railroad company is chargeable with the neoiicence of independent contractors in the con- struction of its track,' and tlie weight of authority and of reason is in favor of its liability for the negligence of manufacturers. The leading case on the subject is Hegeman v. Western R. Corp.' which held that a rail- road company is liable for an injury to a passenger caused by the breaking of an axle of a car wheel owing to a latent defect, which would not be discovered by the most vigilant external examination, but which could have been ascertained by a known test applied in the process of construction by the manufacturer. The court said : "It was said that carriers of passen- gers are not insurers. That is true. That they were not required to become smelters of iron, or manufac- turers of cars, in the prosecution of their business. This also must be conceded. What the law does re- quire is that they shall furnish a sufficient car to se- cure the safety of tJieir passengers by the exercise of the utmost care and skill in its preparation. They may construct it themselves, or avail themselves of the services of others; but in either case they engage that all that well-directed skill can do has been done for the accomplishment of this purpose. A good reputa- tion upon the part of the builders is very well, in itself, but might not be accepted by the public or the law as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is not merely that the manufacturer had the requisite ca- pacity, but tliat it was skillfully exercised in the par- § 40. 1 Ante, § 30. « 13 N. Y. 9. (86) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § 40 titular instance. If to this extent they are not re- sponsible, there is no secnrity for in4. 24 N. Y. Supp. 140, af- fii ined 14.3 X. Y. 6fi(3, 39 N. E. 21. But a street-car company is not liable for the fracture of one of the slats comix)sing its platform, un- der the pressure of the cnitch of a passenger weighing 280 pounds, where the wood was entirely sound and undecayed. and the platform Av.is constructed in the same manner as all street-car platforms are c u trr.cted. Crogan v. Railroad Co., IS Alb. Law J. 70. 4 Ohio cS: M. Ry. Co. v. AUender, 59 111. App. 020. 6 Louisville, N. A. & C. Ry. Co. v. Stout, GfJ 111. App. 2;)S. Archer v. Railway Co., 87 Mich. Inl. 49 N. W. 4ss; West Thila- delpliia P. Ry. Co. v. (J.-ilLii-'lici', lOS Pa. Si. .'24; Matz v. Riuhvay Co., 52 Minn. 159, 53 N. W. 1U71 (rear platform). (93) §45 CARRIERS OF PASSENGERS. (Ch. 2 of a surbiirbau line, doin,i> a light busiuc^ss, it is not even evidence of negligence. "It must be run clieaply or not at all. Hence its cars were drawn only by single horses, and supervised by single persons; and, as they were used without turntables, their platform must, of necessity, be open." ^ § 44. SAME— MOTIVE POWER FOR STREET CARS. It is the duty of a street-railway company to exer- cise reasonable care in selecting horses for use on its cars, and to take reasonable steps to ascertain wheth- er they are safe for such use; and the company is char- geable with whatever knowledge a driver may have ac- quired or discovered, in the course of his employment, with respect to the character or disposition of the horses driven bv him.^ Where electricitv is the mo- tive power, knowledge must be imputed to the com- pany that, if the electricity escapes from a defective machine in the car, the iron handles of the platform are liable to be charged therewith, and to give a shock to any one passing from one car to the other.^ § 45. SAME— STATUTORY REQUIREMENTS. Statutes in Ohio and Connecticut require the plat- forms of passenger coaches to be guarded with flexible or movable bridges or aprons.^ A statute of Tenues- 7 Hestonville P. Ry. Co. v. Connell, 88 Pa. St. .j20. § 44. 1 Noble v. Railway Co., 98 Micb. 2i9, 57 N. W. 126. 2 Burt V. Railway Co.. 83 Wis. 229, 53 N. W. 447. § 45. 1 Gen. St. Conn. 1888, § 3540; Rev. St. Ohio 1890, § 3347. (04) Ch. 2) DUTY AS TO MEANS OF TRANSPORTATION. § -1 5 see requires railroad companies to provide a bell rope for each and even- passenger train on their respective roads,- and statutes in several states require passen- ger trains to be equipped with automatic air brakes.' 2 Code Tenn. 1S84, § 130(J. 3 Gen. St. Ky. 1894, § 778; 1 How. Auu. St. Mich. § 33(>:i: Laws \. T. 1884, c. 4.".9, § 6; Pub. St. R. I. lfeS2. c. ir.S. p. 407, § 12; St. Vi. 1894, § 3910. (95) §4(3 CARRIERS OK PASSENGERS. (Ch. 3 CHAPTER III. DUTY OF CARE IN CONSTRUCTION AND MAINTENANCE OF STATIONAL FACILITIES. § 4(). Exti'ut of Duty. 47. Degree of Care. 48. Defects in Station Buildings. 49. Station Platforms. 50. Same— Adjustment Between Platform and Trains. ni. Approaelies. 5L'. Ownership by Third Persons, .n."!. Snow and lee. 54. Lights. § 46. EXTENT OP DUTY. For the safety of its passengers, a rail-way com- pany is bound to exercise care, not only as to the construction and maintenance of its station buildings, but as to all portions of its platforms and approaches thereto to which the public do or would naturally resort, and all portions of the station grounds reasonably near the plat- form, where passengers or those who have pur- chased tickets with a view to take passage on its cars would naturally or ordinarily be liable to go.' Tt. is a general principle of the common law that cue who invites another to come on his premises under- takes with regard to that person a duty to exercise § 46. 1 Dillon, C. J., In McDonald v. Railway Co., 2(5 Iowa, 124, 14.-). See. also, Texas & St. L. Ry. Co. v. Orr, 46 Ark. 182. Ch. 3) DUTY AS TO STATK^NAL FACII-lTiES. § 46 care that the premises on which he invites the person to come, the approach to the premises, as well as the exit, shall be in such a state as not to expose the per- son using them, in consequence of the invitation, to undue or unreasonable danger. This principle lies at the foundation of the carrier's duty to any passenger who comes on his premises.- Wherever passengers are accustomed to be received upon a train, whether at the station house, at the water tank, or elsewhere, railroad companies are bound to keep in safe condition for transit the ordinary space in Avhich passengers go to and from the trains, and the latter have the right to assume that the ground adjacent to the cars, within the limits in which persons naturally and necessarily go to and from them, admits of their getting safely out and in, even on a dark night. ^ But this fluty does not extend to places where pas- 2 Paiuaby y. Canal Co., 11 Adol.,& E. 2^3; Gallin v. Railway Co., L. R. 10 Q. B. 212; Bennett v. Railroad Co., 102 V. S. .177. The law re- quires of railroad companies that they provide reasonably safe land- ings for their passengers, as also like means of access to and ogress from their stations and premises. They must have due regard for the safety of passengers, as well in the location, construction, and arrangement of their station buildings and platforms, as in their pre- vious transportation. Stafford v. Railroad Co.. 22 Mo. App. 333. See. also, Toledo, W. & W. Ry. Co. v. Grush. 67 111. 262. 3 Kulbert v. Railroad Co., 40 N. Y. 145. A railroad company which has been in the habit of stopping its trains at a street crossing, and receiving and discharging passengers there, and which has failed to indicate, by platform or otherwise, the bounds within which it will be safe for passengers to stand while awaiting the arrival of the train, momentarily expected, cannot complain if a person intending to take passage stations himself at any point adjoining the usual stopping place, where it might reasonably be expected that any part of the train adapted to the accommodation of passengers would V, 1 FKT.CAU.PAS. 7 C'^^) § 47 CARRIERS OP PASSENGERS. (Ch. O sonjioi's cannot bo reasonably expected.* The duty arises onlv where by contract or usajie the carrier is re- (| wired to be in nsidiness to receive his passengers.^ Xoi- is a raiii'oad company rnuning a construction train ovei- an nnlinished road under unj obligation to a i>assenger to have a safe and suitable platform at the end of its line, where there has not been suflftcient time to furnish the facilities, and the passenger knows tJie facts.*^ § 47. DEGREE OF CARE. By the weight of authority, only ordinary care is required of the carrier in the construction and maintenance of stational facilities, though in many of the states the highest degree of care is also exacted of the carrier in this respect. The diversity of judicial opinion as to the degree of care required of a common carrier for the safety of his passengers at the station finds a marked illustration in a recent case decided by the supreme court of South Cai'olina.' That court is composed of three justices, and each one of them took a different view as to this fundamental question. Justice McGowan was of oi)inion tliat the general rule requiring a carrier of passengers to exercise the highest practicable degree of care ai)plied here as elsewhere. Chief Justice Mc- ronio to a stand. Lake Shore & M. S. liy. Co. v. Ward. 35 111. Ann * -Murch V. Railroad Corp.. 29 N. H. 9. = The Anglo Norman, 4 isnwy. lS,i, Fed. Cas. No. Sm. « Cliicago, K. & W. Ky. Co. v. Frazer. 55 Kan. 5S2. 40 Par. 92.3. S 47. 1 .Johns V. RaUroad Co. (1892) 39 S. C. 102, 17 S. E 098 (98) Ch. 3) DUTY AS TO STATI>)XAL FACILITIES. § 47 Iver said that this rule was adopted only because of the great danger to human life during the process of transportation, that the reason of the rule ceased when the actual transportation ceased, and that there- fore the carrier is bound only to ordinary care at sta- tions. Justice Pope succeeded in tiuding a middle ground, and held that, as a general rule, the company need exercise only ordinary care at stations, but that when it used appliances of exceptional danger, such as a trestle 10 feet high, oyer which it inyited passen- gers to cross to reach its cars, the rule of extraordi- nary care applied. The decided weight of authority, however, seems to be in fayor of the proposition that the carrier is bound to exercise only ordinary care for the safety of pas- sengers, so far as the construction and maintenance of the station buildings, platforms, and approaches are concerned. The New York courts are fully commit- ted to this rule. In Kelly y. Manhattan Ry Co.,' Mr. 2 111' N. Y. 443, 20 N. E. 3S3. In this case it was held that au elevated railroad company which has furnished a covered stairway with hand rails, and placed pieces of rubber on each step to prevent slipping, is not guilty of negligence in failing to throw ashes or saw- dust on the steps within an hour and a half after the ceasing of a storm of snow and sleet, which continued to rage until 4 o'clock in the morning, and tliat it was not' liable for the death of a passenger who fell from the stair\Aay at about 5:30 a. m. In Palruer v. Penn- sylvania Co., Ill X. Y. 488. 18 N. E. 859, it was held that a railroad company is not bound to the highest degree of diligence in removing from its car steps and platforms ice and snow which lias accumu- lated while the train Avas in transit. The degree of care and dili- gence required of railroad companies in this respect is somewhat analogous to that imposed on municipal corporations in respect to the removal of snow and ice from the public streets. Tlie same (99) § 47 CARRIERS OF PASSENGERS. (Cll. 3 Justice Peckham uses this language: "The rule in re- lation to the liability of railroad corporations for inju- ries sustained by defects in the approaches to their cars differs from that which obtains in the case of an in- jury to a passenger while he is being carried over the road of the corporation, and where the injury occurs from a defect in the roadbed or machinery or construc- tion of the cars, or w^here it results from a defect in any of the appliances, such as would be likely to oc- casion great danger and loss of life to those traveling principle is announced in Lafflin v. Railroad Co., lOG N. Y. 136, 32 N. E. r.i)!). In that case a passenger in aligliting fell between the ear and the station platform, and she alleged that the space between the car and the platform (about two feet) was too great. It was held, as matter of law, that defendant was not liable, in view of the fact that the platform had been used for many years, and that no one else had ever suffered any injury or inconvenience on account of the distance between the platform and the cars. In Buck v. Railway Co., 32 N. Y. St. Rep. 51, 10 N. Y. Supp. 107, attirmed In 134 N. Y. 5Sy. 31 N. E. 028. it is held that the rule requiring the highest degree of care does not apply to in.iuries at stations caused by other pas- sengers running into or crowding a passenger about to alight, and in such a case the carrier is bound to exercise only reasonable care to guard agjiinst injuries. In Bateman v. Railway Co., 47 Hun, 429, it is said: "As to a sidewalk maintained on its land by a railroad company for the use of passengers in going between the depot and a public street, the measure of care due from the company to its passengers, whom it invites to use it, is the same that is required of a municipal corporation with respect to its public sidewalks, which it is required by law to maintain." See, also, O'Reilly v. Railroad Co,, 15 App. Div. 7!), 44 N. Y. Supp. 2(34. In Bruswitz v. Navigation Co., 04 Hun, 202, 19 N. Y. Supp. 75, it is held that the rule requiring the highest degree of care does not apply in an action for injuries to a passenger on a vessel caused by stumbling over sockets projecting above the floor, and used to secure the tables in the dining saloon" As to such matters not connected with the operating machinery the earner is bound only to the exercise of ordinary care and skill ' (100) Ca. o) duty as to stational facilities. § 47 on the road. The law in the latter case requires from the carrier of passengers the exercise of the utmost care, so far as human skill and foresight can go, for the reason that a neglect of duty in such a case is like- ly to result in great bodily harm, and sometimes death, to those who are compelled to use that means of conveyance. As the result of the least negligence may be of so fatal a nature, the duty of vigilance on the part of the carrier requires the exercise of that amount of care and skill in order to prevent accidents. But in the approaches to the cars, such as platforms, halls, stairways, and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can attain to are naturally of a much less se- rious nature. The rule in such cases is tJiat the car- rier is bound simply to exercise ordinary care in view of the dangers to be apprehended." Similar decisions have been made in California,' in Illinois,* in lowa,^ in Missouri,® in Oregon,^ in Wiscon- sin,- and by the federal circuit court of Ohio,*^ and such is believed to be the English rule.^*' 3 Falls V. Railway Co., 97 Cal. 114, 31 Pac. 901. * Illinois Cent. R. Co. v. Hobbs, 58 111. App. 130; Wabash, St. L. iS: P. Ry. Co. V. Wolff, 13 111. App. 437. 5 A railroad company is only required to use ordinary and rea- sonal)le care in lighting its station platform. Hiatt v. Railroad Co. (Iowa) m N. W. 7G(J. c (JnniliTman v. Railway Co.. 58 Mo. App. 370. 7 Skottowe V. Railroad Co., 22 Or. 430, 30 Pac. 222. 8 A railroad company is held to the liij^hest dejjree of care in re- '•• See note 9 on following page. 1" See note 10 on following page. (101) § 47 CARRIERS OF PASSENGERS. (Ch. 3 On the other hand, the highest practicable degree of care lias been exacted of carrier^, even as to their sta- tional facilities, by the conrts of last resort in Mich- igan,^ ^ Texas,'- and Kentucky. '" The supreme judicial court of Massachusetts, which is very rarely under the necessity of reconsidering its opinions, has wavered on this question, but its latest utterance is in favor of the highest degree of care. "This rule [requiring the highest care] is held not only in our own state and in England, but all over the Unit- ed States. It applies not only to carriers who use steam railroads, but to those who use horse railroads, stage coaches, steamboats, and sailing vessels. It ap- spect to the condition and management of its engines and cars, for negligence in that respect involves extreme peril to passengers, against which they cannot protect themselves. As to the safety of stations, temporary or permanent, the railroad company is bound to the exercise of only ordinary care and prudence, in view of thi^ situation and existing circumstances. Conroy v. Railway Co (Wis i 70 N. W. 486. » Taylor v. Pennsylvania Co.. 50 Fed. 755. 10 Paruaby v. Canal Co., 11 Adol. & E. 223, cited with approval in Gallin v. Railway Co., L. R. 10 Q. B. 212. 11 Cole V. Railway Co., 81 Mich. 156, 45 N. W. 983. folio win- Cross V. Railway Co., 69 Mich. 363, 37 N. W. 361. An early Michi- gan case apparently holds to the contrary. Michigan Cent. R. Co v Coleiimn. 28 Mich. 440. 12 Gulf, C. & S. F. R. Co. V. Butcher, 83 Tex. 309, 316. 18 S W 583. A carrier is required to exercise the highest degree of care in furnishmg appliances at destination to enable passengers to alight in Sivfety. Ft. Worth & D. C. Ry. Co. v. Kennedy (Tex. Civ. App.) 35 S. W . 335. 13 Louisville Ry. Co. v. Park, 96 Ky. 580, 29 S. W. 455. A street railroad is bound to exercise the highest degree of care to -et the steps of its street cars in a safe condition for alighting, and is bound to exercise more than ordinary care in this respect (102) Ch. o) DUTY AS TO STATIONAL FACILITIES. § 47 plies at all times when, and to all places where, the parties are in the relation to each other of passenger and carrier, and it inclndes attention to all matters which pertain to the business of carryinj>- the passen- ger." "Difficulty in the application of the principle has sometimes come from an improper interpretation of the expressions 'utmost care and diligence,' 'most ex- act care,' and the like. These do not nuan the utmost care and diligence which men are capable of exercis- ing. They mean the utmost care consistent with the nature of the carrier's undertaking, and with a due re- gard for all other matters which ought to be consid- ered in conducting the business. Among these are the speed which is desirable, the prices which passen- gers can afford to pay, the necessary cost of different devices and provisions for safety, and the relative risk of injury from different possible causes of it. With this interpretation of the rule, the application of it is easy. As applied to every detail, the rule is the same. The degree of care to be used is the highest; that is, in reference to each particular it is the highest which can be exercised in that particular, with a reasonable re- gard to the nature of the undertaking and the require- ments of the business in all other particulars." '* 14 Dodge v. Steamboat Co., 148 Mass. 21s. ' ' ' le Central R. & B. Co. v. I'tMiy. 58 Ga. 4(J1. (104) Ch. 3) DUTY AS TO STATIONAL FACILITIES. § 48 the door, where it can come in contact with a person's head, evidence of negligence.' The fact that a stair- way at a railroad station is constrncted with a strip of brass at the edge of each step, that these brass strips have become worn and slippery from constant use, and that there is no hand rail to the stairway, is not snffi- cient evidence of negligence to go to the jury in an action by a passenger, who slipped on the stairway, where it appears that brass strips are the ones gener- ally in nse on stairways, though a builder testifies that leaden strips would have been safer than the brass ones, because less slipijery.- But in a recent case the absence of a hand rail on a stairway at a station was held negligence, rendering § 48. 1 Graeflt" v. Railroad Co., 161 Pa. St. 230, 28 Atl. 1107. An illiterate person, while waiting at a station to take a train, inquired of a stranger on the platform where he could find a urinary. He was directed to go to the right, did so, and found two doors, upon one of which was printed the words, "For gentlemen," and upon the other the words, "Lamp room." Being in a hurry, and unable to read, he opened the wrong door, and fell down some steps, sus- taining serious injuries. Held, in the absence of evidence as to the character of the steps doAvn which plaintiff fell, or as to the state in which the door of the lamp room was ordinarily kept, that the judge was justified in nonsuiting plaintiff, on the ground that there was no evidence of negligence on the part of the company. Toomoy V. Railway Co., 3 C. B. (N. S.) 146. 2 Crafter v. Railway Co., L. R. 1 C. P. 300. It was said: "The lins' must be drawn in these cases between suggestions of possible precautions and evidence of actual negligence such as ought reason- ably and properly to be left to the jury." In Foley v. Railway Co., 8U Hun, 606. 34 N. Y. Supp. 1050, it was held that an elevated rail- w:iy company is not liable for injuries caused by the defective con- dition of the rubber covering its stairs, where the defect did not ex- ist long enough before the accident to charge the company witli knowledge of its existence, (105) § 48 CARRIERS OF PASSENGERS. (Ch. 3 the coinpaiiv liable for the death of one who resorted to the station to bnv a ticket, and who was killed by fallinii' from the stairway.^ So the existence of a hole in the floor of a toilet room at a station is evidence of nej^lijience in an action by a passenger who had occa- sion to nse the toilet room while waiting for a train.* And any obstrnction on a railroad station, placed or permitted to exist there, which renders the approach to the station dangerous, is negligence. Hence to per- mit a stairway at a station, nsed by all passengers, to be obstructed by an employe in such a manner that a passenger stumbles over the obstruction, will warrant a jury in finding negligence.^ It has also been held tliat the failure to rebuild a depot for more than five months after its destruction by fire, thus compelling- passengers to board trains as best they can, without any stational facilities, warrants the jury in finding the company negligent, and in holding it liable in damages to a female passenger who was injured while attempting to board a train, the lowest car step of which was over 30 inches from the ground."^ 8 Uilmore v. Railroad Co., 154 Pa. yt. 375, 25 Atl. 774. * Jordan v. Railroad Co.. 105 Mass. 34(5. 43 N. E. 111. So a rail- road company is guilty of negligence in leaving a hole in the floor of the depot, where its passengers are accustomed to alight from its cars, thus rendering the landing unsafe. Liscomb v. Transporta- tion Co., 6 Lans. (N. Y.) 75. 5 Lycett V. li.iilway Co.. 12 App. Div. 326, 42 N. Y. Supp. 431. The fact that a railroad company does not keep its central entrance for passengers to its station free from the violent acts of its own serv- ants, dangerous to persons entering for legitimate purposes, war- rants a finding of negligent management. Gray v. Railroad (Mass > 4G N. E. 3U7. s Eichorn v. Railway Co., 130 Mo. 575, 32 S. W. 993. (10(5) Cil. 3) DUTi' AS TO STATIONAL FACILITIES. § -ii) g 49. STATION PLATFORMS. A carrier of passengers owes to a passeniier ap- proaching; or leaving its trains the duty of keeping its station platform in a reasonably safe condition for convenient use; and a passenger, when leaving or ap- proaching a train, has a right to assume, in the ab- sence of information to the contrary, that the platform is in such reasonably safe condition.^ But a railroad company fulfills its duty when it furnishes a platform that can be used without danger by a passenger exer- cising ordinary care. It is not bound, for example, to furnish a platform from which passengers can safely board its trains while in motion.^ Nor is it liable to a passenger who, failing to use ordinary care, does not observe a descent of nine inches from one portion of the platform to the other, and who falls by reason thereof.^ Care must, of course, be exercised to keep the plat- form itself free from defects. Thus it has been liehl negligence per se to permit a hole eight inches wide and six feet long to remain for four days, after knowledge § 49. 1 Fullerton v. Fordyce, 121 Mo. 1. 25 S. W. 587; Pennsylva- nia Co. V. Marlon, 123 Ind. 415, 23 N. E. 973. ■^ Chicago & N. W. R. Co. v. Scates, 90 111. .1S6. 8 Graham v. Railroad Co., 139 Pa. St. 149, 21 Atl. l.")l. A railroad com- pany is not liable to a passenger who, on his way to a train in broad daylight, and while crossing an intervening track, strikes his toe against a rail, and falls to the ground, where the track and the rail are plainly to be seen, by any one who looks where he walks, and are constructed in the usual manner. Potter v. Railroad Co.. 92 ^^ C. 541. (1U7) § 49 CARRIERS OF PASSENGERS. (Ch. 3 of its condition by the station a^ent, in the floor of a platform commonly used by passengers.* But the mere existence of a hole, barely large enough to admit the heel of a man's shoe, is not negligence as matter of law; the question is one of fact for the jury.^ Nor is the arrangement of the platform in such a manner as to make it possible for horses to come upon it evidence of negligence; and hence a railroad company is not liable for injury to a passenger while on its station platform, who was struck by a runaway horse, not in defendant's care or use, and not led to run away by anything done by defendant.® If the platform is elevated above the adjacent ground, the duty exists of constructing guard rails for the safety of passengers who may be on the platform in the nighttime. Thus the failure to erect a guard rail along the sides of the platform of an elevated rail- road platform justifies the jury in finding negligence, which will render the company liable to a passenger vrho fell from the platform to the ground, 31 feet be- low, while searching for a urinal in the nighttime.' Obstructions on the platform which are not in the * Fullerton v. Fordyce, 121 Mo. 1, 25 S. W. 587. 6 James v. Knilway Co., 107 Mo. 480, 18 S. W. 31. The fact th.-U one of the plauks is a few inches shorter than the other is not evidence of negligence which will render the company liable to a passenger, who in broad daylight stepped into a hole caused by the short plank. Stokes v. Railroad Co.. 107 N. C. 178, 11 S. E. 991. 8 Brooks V. Railroad Co. (Mass.) 40 N. E. 566. 7 Jarvis V. Railroad Co. (City Ct. N. Y.) 16 N. Y. Supp. 96, affirmed In 133 N. Y. 623, 30 N. E. 1150. The same ruling was made with reference to a platform about three feet above the ground, in Mis- souri I'ac. Ry. Co. v. Neiswanger, 41 Kan. 621, 21 Pac 582 ' (108) Ch. 3) DUTY AS TO STATIONAL FACILITIES. § 49 nature of concealed traps or pitfalls are not defects for which the company is liable. Thus a railroad com- pany is not giiiltY of negligence in placing a weighing machine, of the usual description, on its platform, near the luggage counter, for the purpose of weighing lug- gage, and is therefore not responsible for injuries sus- tained by one who in broad daylight was pressed by a crowd of passengers against the machine, caught his foot in it, and fell oyer it.® Neither is a railroad com- pany guilty of negligence in depositing freight on the platform at a flag station, and is not liable to a pas- senger, who in broad daylight stumbles oyer a pack- age while on his way to the train.** And a passenger who stumbles oyer the feet of a baggage master while he is remoying baggage from the car in the ordinary manner, when 10 feet in widtli of the platform is not ob- structed by him, cannot recoyer, since there is no negli- gence on the baggage master's part.^° But a box con- taining signal levers, projecting about two inches above the level of the platform, is a concealed defect as to a passenger going over the platform with a crowd of other passengers, and a jury is warranted in holding the company liable to the passenger for injuries sus- tained in stumbling over the projection in the crowd.^' 8 Coruman v. Railway Co., 4 Hurl. & N. 781; Blackman v. Rail- ■nay Co., 17 Wkly. Kcp. 7(;!). » Falls V. Railroad Co., 97 Cal. 114, 31 Pac. 901. 10 Connor v. Railroad (N. H.) 30 Atl. 1121. A railway company is not chargeable with negligence because it leaves a baggage truck on its platform, so that a passenger endeavoring to board a moving train stumbles against it, and is injured. Haldan v. Railway Co., 30 U. C. C. I'. 89. 11 Sturges V. Railway Co., 00 J. P. (Kug.) -78. (lO:)) § 49 CARRIERS OP PASSENGERS. (Cll. 3 The duty of care in respect to its station platforms does not ahvaj's end with that portion d^sioned for the use of passen«^ers. The fact that a portion of a sta- tion platform was originally designed for freight and baggage use does not render a passenger thereon a trespasser, where the whole forms one continuous platform, and has been uniformly used for the accom- modation of passengers without objection by the rail- road company/^ A railroad company having a tele- graph office in one of its stations for the use of the public is responsible to one of its passengers, who is injured solely because of the company's negligence in failing to keep in proper condition the structure or platform erected by it, over which the passenger, in alighting from the cars, must pass to reach the tele- graph office.'^ A railway company which maintains a stairway leading from its depot to a platform owned and constructed by an express company must take proper steps to guard passengers from taking that way to leave its premises, if the way is unsafe; and, in the absence of any precautions, it is liable to a pas- senger, a stranger, who descended the stairway, and, thinking the lower platform of the express company 12 Waller v. Railway Co., 59 Mo. App. 410. But where a railroad company has provided a well-lighted and convenient platform for passengers on one side of its station building, about two feet lower than the approaches leading to a freight platform on the other side of the building, with no steps between the two platforms, a passenger waiting for a train, and knowing these facts, goes on the freight plat- form at his own risk, and cannot recover for injuries sustained by falling into an unguarded pit on the freight platform. Gundermaix V. Railway Co., 58 Mo. Apj). 370. 13 cn^sMuan V. Railroad Co., l;i(" fur tlie train; and a passenger who falls into the ditch on leaving the car may I'ecover from the company. Montgomery & W. 1*. R. Co. v. Boring, 51 Ga. 582. Where a passenger on a dummy line is carried past the street crossing which is his destination and ordinary stopping place to the next crossing, where the train come* to a full stop, it is proper to submit to the jury the question whether (laij) Ch. 4) DUTY AS TO RECEIVING AMD DISCHARGING. § 58 is different if the stop is made at a place not a station. ^'It cannot be successfully claimed that it is the duty of those in charge of a train to warn passengers not to attempt to leave a train when it is not at a station, unless they have said or done something calculated to lead passengers to think they have arrived at the station. In the running of trains of cars, exigencies frequently arise requiring them to come to a halt at a point when not at stations. It is incumbent on the passengers to be vigilant and attentive, and not to attempt to alight until they are in some way informed that their train has arrived at the station."^^ The stopping of a train at night at a point not a station, to allow a train expected fro^n the opposite direction to pass by, without aiy notice given by the servants of the company to passengers that they may leave the cars, constitutes no invitation to passengers to alight ; and one who leaves the cars, and walks into an open cattle guard, cannot recover for injuries sustained.'^ this is an implied invitation by those in charge of the train for hiiu to get off at that point. tTadsden & A. U. Ry. Co. v. Causler. 97 Ala. 235, 12 South. 439. 13 Davis V. Railroad Co., 64 Hun. 492, 19 N. Y. Supp. 516. In this case a train stopped near a station on a dark night, before crossing the tracks of another road. A passenger, thiniiing th»' train was at the station, stepped off, fell through a trestle, and was drowned. The station had not been announced, nor, on the other hand, had passengers l)een warned not to alight, though the stop was for about tive minutes. Held, that defendant had not been guilty of negligence. 1* Frost V. Railroad Co., 10 Allen (Mass.) 387. Where a train stops in the night upon a bridge over a stream to take water, it not being a stojtpiug place for passengers to get on and off, no duty rests on the company to notify pas.sengers not to get off the cars. (137) § 58 CARRIERS OF PASSENGERS. (Ch. 4: So the mere fact that, when a train leaves a station, the brakeman announces the name of the next station, does not put the company under any obligation to o-uard aaainst an exodus of passengers when the train stops at an intervening railroad crossing. It has a right to expect that its passengers will sit in the cars until stations are called, as is the common custom of railroads, or, if they do not, that they will inform themselves in relation to their whereabouts.'^ Another close question on this subject is this: Is it sufficient for the passenger to show that an an- nouncement of the station was made, or must he go further, and show that it was made by the carrier's servants? The supreme court of the District of Co- lumbia has held that the mere fact that a station has been announced in the train does not raise the pre- sumption that it was done by one of the company's servants; and hence that this fact alone does not ren- der the company liable for the death of a passenger, who leaves the train while it stops momentarily be- fore reaching the station platform, even though the announcement was not countermanded by the com- pany's employes.'® The supreme judicial court of and a failure so to do is not negligence. Illinois Cent. K. Co. v. Green. 81 111. 19. 15 Minock V. Railway Co., 97 Mich. 425, 56 N. W. 780. An an- nouncement by a brakeman, on the train leaving a station, of the name of the next station, is not an invitation for a passenger to that station to leave the train at the next stop, without further no- tice; and it is not negligence to stop the train before reaching the station, without warning passengers not to get off. Ward v. Rail- way Co., 1(55 111. 402, 46 N, E. 365. ic Pabst v. Railroad Co., 2 MacArthur. 42. (138) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 58 Massachusetts has, however, with better reason, reached a different conclusion. Evidence of the an- nouncement of a station, when the train reaches a city, and before it stops, whether the announcement was made by a railroad man, or by any other person, is competent both on the question Avhether a passen- ger's conduct in leaving the train while making a tem- porary stop, before reaching the station platform, was careful, and upon the question whether defendant's servants used due care to prevent her from attempt- ing to leave the train at a time when it was not stop- ped to deliver passengers. A passenger hearing such an announcement cannot be presumed to know that it was not made on authority of the carrier; and, if she does not know that the announcement is unauthor- ized, she is justified in alighting when the train stops. So, too, if, as a train is about to make a temporary stoj) at a station, before reaching a station platform, to keep out of the way of another train, an unauthor- ized announcement of the station is made by some third person, accompanied by a direction to "change" for another station, it is a question for the jury whether the fact that such a call has been publicly made does not impose on the carrier the duty to give a counter warning that passengers are not yet to leave the train, and whether it is negligence on the part of the carrier to suffer a passenger to get upon the plat- form, without warning, for the purpose of leaving the train. ^' iTFloytrup v. Railroad, 103 Mass. 152, 39 N. E. 797; England v. Railroad Co., 153 Mass, 490, 492, 27 N. E. 1. (13D) § 59 CARRIERS OF PASSENGERS. (Cil. 4 § 59. SAME-FAILURE TO BEING TRAIN UP TO PLATFORM. The question whether or not there has been an in- vitation to alight is quite important in those cases where a passenger is injured in alighting, by reason of the fact that the train has not been properly drawn up at the station platform. The principle governing the English cases is thus stated by Cockburn, C. J.: ^'Bringing a railway carriage to a standstill at a place at which it is unsafe for a passenger to alight, under circumstances which warrant the passenger in believ- ing that it is intended he shall get out, and that he may do so with safety, without any warning of his danger, is negligence on the part of the company, which will entitle the passenger to recover for injuries sustained in alighting, in the absence of contributory negligence on his part." ' In this case the train was brought to a standstill in such a manner that the last carriage, in which plaintiff rode, was opposite to a re- ceding portion of the platform, aud about four feet from it The night was dark, and the place where the last carriage stopped was not lighted. There was no express invitation given plaintiff* to alight, but the train had been brought to a final standstill, and did not move on again until it started on its onward jour- ney. Plaintiff' opened the carriage door, and, step- ping out, fell into the space between the carriage and the platform. It was held that there was evidence of negligence on the part of defendant's servants to go S 59. 1 Cockle v. Railway Co., L. R. 7 C. P. 321. (140) Ch. 4) DLTV AS TO RKCEIVING AND DISCHAKGING. § 5'.) to the jury. In a case decided in the house of lords,- the facts were as follows: A passenger train went only partially up to the main platform of a station, leaving the last two cars within a tunnel, which was not lighted. The last carriage came to a standstill op- posite a heap of rubbish. A witness, who was a passen- ger in the next to the last carriage, heard the name of the station called, and alighted in safety. He then heard a groan, and found a passenger, who had been riding in the last carriage, lying on the rubbish, with his leg broken, and other injuries, of which he died. The witness heard a warning, "Keep your seats," after he had alighted, and the. train moved on after he dis- covered the injured passenger. It was held that there was sufficient evidence of negligence to take tJie case to the jur}', and that it w^as error to enter a nonsuit. ' 2 Bridges v. Railway Co., L. R. 7 H. L. 213. 8 Tlie following is a summary of some of the other English cases on this subject: A long train was stopped at a platform, so that part of it Avas alongside the parapet of a bridge. In the dark, a passenger, after the train had stopped, and defendant's servants had called out the name of the station, stepped upon the parapet, believing it to be the platform, and fell over. Held, in an action for the injuries sustained in the fall, that the judge was right in sub- mitting to the jury the question whether the ciix-umstances amount- ed to an invitation to plaintiff to alight, and that there was evidence of negligence on defendant's part which justified a verdict in plain- tiff's favor. Whittaker v. Railway Co., 22 LaAV T. (N. S.) 545. A porter called out the name of a station, the engine driver oversliot the station platform, and the train came to a standstill. A pas- senger, hearing carriage doors opening and shutting, and seeing a person alight from the next carriage, stepped out of tlu^ carriage, and was injured in a fall on the embankment. It was night, and there was no light near the spot, and no caution was given. Held, tlir.t the passenger liad a right to assume that the train had come (141) C 59 CARRIERS OF PASSENGERS. (Ch. 4 A somewhat different ruling was made in the case of Lewis V. Kailway Co. As a train approached a sta- tion, an official on the station platform called ont the name of the station, and shortly afterwards the train came to a standstill, having overshot the station plat- form. A passenger proceeded to get ont, but w^as in- jured because of the backing of the train to bring it to the station platform. It was held that the com- pany was not guilty of any negligence, and that tJie calling out of the name of the station by the official on the platform was not an invitation to alight." This case would certainly be decided differently by most of the courts of this coijntry, and they would unquestionably permit it to go to the jury on the ques- tion of defendant's negligence. When the injury occurs in daylight, and tlie passen- to a final standstill, and that the jury was justified in finding defend- ant guilty of negligence. Weller v. Railway Co., L. R. 9 C. P. 120. Plaintiff, on arriving, after dark, at a station at which he was to alight, heard the name of the station called out two or three times by one of the porters. Plaintiff's carriage was drawn up at a place about 35 feet from the end of the platform. No lights were there, and plaintiff, in stepping out, fell on his head, and was in- jured. Held, that there was evidence of negligence on the part of defendant, which warranted the submission of the case to the jury. Gill V. Railway Co., 26 Law T. (N. S.) 945. ■i Lewis V. Railway Co., L. R. 9 Q. B. 66. From the remarks of Blackburn, J., in this case, one would infer tliat English railway porters are no better elocutionists than American brakemen. He says: "Every person must have heard porters at a railway station call out something, which, if he happens to know the narue of the station, he can recognize; if not, it frequently happens that the passenger cannot make out what name it is that the porters are calling out. Calling out the name of a station is not an invitation to alight." (142) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 59 ger is able to see the danger, the English courts also manifest great reluctance in permitting recovery for injuries sustained in alighting because of the failure of the train to be drawn up at the station platform. Thus where the front car in a long excursion train overshoots the station platform, the company is not guilty of negligence in failing to adopt special pre- cautions in assisting passengers to alight; and one of them, who sprains her knee in jumping from an iron step of the carriage to the ground three feet below, without using an iron footboard between the iron step and the ground, cannot recover for the injury.' The Irish courts seem to be more liberal than the English courts in this respect. In Nicholls v. Railway Co. the facts were as follows: Part of a railway train, includ- ing plaintiff's carriage, overshot the platform in day- light. A porter called out the name of the station, and let out some of the passengers, who were depart- ing from the station. A reasonable time for backing the train had elapsed, and there was apparently no intention to back it, and there was at hand no servant e Siner v. Railway Co., L. R. 3 Excb. 150. L. U. 4 Exch. 117. This case was distinguished and doubted in Robson v. Railway Co., 2 Q. B. Div, 87, 89. A station platform was of sufficient length to ac- commodate all ordinary traffic. A passenger, in alighting in broad daylight from a caiTiago whleli was beyond the platform because of tlie extraordinary length of the train, sustained injuries by the slipping of her foot from the step of the carriage. Held, that the place where plaintiff was required to alight being a safe place, and the cause of the accident being the slipping of her foot, which would equally have happened if her carriage had been opposite the platform, lliere was no evidence of negligence for the jury. Owen V. Railway Co., 4U Law J. (Q. B.) 48U. (143) § 59 CARRIERS OF PASSENGERS. (Cll. 4 of the company whom plaintiff couki request to have the train backed. Plaintiff, while cautiously attempt- ing to alight, fell, and was injured. It w^as held that there was sufficient evidence of negligence to go to the jury.* The principle governing the American courts in this class of cases is stated thus: It is the duty of a rail- way company to afford passengers reasonable facili- ties in alighting from the cars, both by a reasonably safe platform, and by stopping the train in such a manner that thev mav avail themselves of it, without unnecessary exposure.'^ The stopping of a railroad train at a station in such a manner that the rear end of a car is not at a platform, and at a place where it is not light enough for passengers to alight in safety, warrants the jury in finding the company negligent, though the front end of the car is at the station.* Where a train pulls up at a platform, so that nothing but the forward end of the smoking car is at the plat- form, passengers in the rear cars, especially ladies, are not bound to go through the smoker to alight; and 6 Xieholls V. Railway Co., Ir. R. 7 C. L. 40. A long excursion train was stopped so as to leave several carriases b(\vond the platform. A female passenger in one of these carriages, after waiting some time for assistance, descended from the carriage by herself, and was in- jured. It was held that the arrival of the train at the end of its journey, together with the fact that the officers of the company were letting passengers out, was evidence of an invitation to alight; and that evidence that the station master saw plaintiff when about to alight from the carriage, without warning her of the danger. was suflicient to take the case to the jury. Thompson v. Railway Co., Ir. R. 5 C. L. 517. T Dolamatyr v. Railroad Co., 24 Wis. 578. 8 McDonald v. Railroad Co., 88 Iowa. o4o, 55 N. W. 102. (144) Ch. 4) DrTY AS TO RECEIVING AND DISCHARGING. § GO if, in consequence of the position of the train, they are injured in «i;etting off the ear in which tliey have been riding, it is the fault of the company.® Where a train OYershoots its usual stopping place, but not the sta- tion platform, it is a question for the jury whether it is negligence to back it to the usual stopping place, without ascertaining whether there are passengers at- tempting to alight, and without warning them of the start.'" § 60. SAME— PERSONAL ASSISTANCE. A railroad company is under no obligation to fur- nish an able-bodied passenger personal assistance in getting on or oft' a train properly drawn up at a sta- tion platform; but if the train is stopped at a danger- ous place, or the passenger is under a physical dis- ability, the duty to furnish personal assistance arises. The cases on this subject are not altogether harmoni- ous, and those where the duty has been held not to exist will be first considered. In an early Wisconsin case it was said that a railroad company is not bound 9 Cartwright v. Railway' Co., 52 Mich. (!()(!, 18 N. W. 380. 10 Shoi-wood V. Railway Co., 82 Mich. 374, 40 N. AY. 773. See. also. Taber v. Railroad Co.. 71 N. Y. 489, 4 Hun. 76.5. The car on which plaintiff was a passenjrer ran past the station platform, and into a tunnel, where she could not alight on tlie side of the car that the platform was on. .Tust as she Avas about to alight on the oppo- site side, the train started suddenly, and she was thrown to the ground. Held, that defendant was negligent in failing to provide a safe alighting place, and also in failing to stop the car a reasonable lengtli of time. Onderdoiik v. Railway Co., 74 Hun. 42. 2(i X. V. Supp. 310. V. 1 FKT.CAU.PAS. 10 fl45) § GO CARRIERS OP PASSENGERS. (Ch. 4 to furnish passengers personal assistance in getting on and off at stations, or to station employes there to warn passengers against boarding moving trains, or to give general information about getting on board.' So, where access to a train at a station is easy, personal as- sistance from the carrier's employes cannot be requir- ed by passengers as matter of right.' Where a rail- road company has provided suitable and safe means for entering and alighting from its trains, and where it has stopped its train in a proper position to enable passengers to avail themselves of these means in en- tering and alighting, it is not bound to render a fe- male passenger, accompanied by two small children, personal assistance in alighting.' The same principle applies to street cars. Where a street car stops for passengers to alight, if there is a rush of passengers to get oft", crowding and jostling each other, it may be the duty of the conductor to use reasonable efforts to check it, to the end that passengers may not be in- jured or unnecessarily interfered with in their getting off; but it is not his duty to assist specially any one of the well, able-bodied passengers, unless he sees that one to be in special danger, or in some measure un- able to take care of himself."* § (K). 1 Detroit & M. R. Co. v. Curtis (1868) 23 Wis. 152. 2 Yarnell v. Railway Co., 113 Mo. 570, 21 S. W. 1. 3 Raben v. Railway Co., 74 Iowa, 732. 34 X. W. 621. 4 Jariny v. Railway Co., 55 :Minn. 271, 56 N. W. 813. A street-rail- way company is not liable for injuries to a passenger while alight- ing, caused by the pushing and jostling of other passengers, and by a passenger stepping on her dress, where the conductor was on the ground at the time, lifting the injured passenger's child from the car. Furgason v. Railroad Co. (Ind. App.) 44 N. E. 936. (140) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 60 In the followino: cases the duty of furnishing per- sonal assistance was held to exist. Failure to furnish a female passenger personal assistance in alighting, after bringing the train to a standstill beyond the platform, is sufficient to take the case to the jury on the question of defendant's negligence.^ So, in the absence of a platform at a station, the company is bound to afford other accommodations to a passenger arriving in the nighttime, or give her due assistance in descending from the carriage." While a railroad company does not owe a passenger the duty of per sonal assistance in alighting if a safe platform has been provided, yet the failure so to do is evidence o'f negligence, where it requires passengers to alight by means of a stool, which may be overturned by a step on the edge.' And where a female passenger, not ex- 5 Robson V. Railway Co., 2 Q. B. Div. 85; Alleuder v. Railroad Co.. 4.3 Iowa, 276; Memphis & C. R. Co. t. Whitlielcl, 44 Miss. 4G<). Where a train leaves a station before an intending passenger nns time to get on board, and stops at a place where the passenger is un- able to board it without assistance, and she is invited to enter the car at this place, it is the duty of the employes of the railway com- pany to assist her in boarding the train: and the company will be liable for their negligence in performing this duty. Western & A. R. Co. V. Voils (Ga.) 2(5 S. E. 483. 6 McGinney v. Railway Co., 7 Man. 151. In this case a femali' passenger, alighting from a train at night at a place where there was no platform, was lifted from the train by a brakeman; but Bhe was a rather heavy person, and the weight of her body on her knee in alighting caused a recurrence of synovites,— a disease with which she had theretofore been afllicted. Held, that defend- ant was guilty of no negligence which would render it liable for the injury. - Missomi Pac. Ry. Co. v. Wortham. 73 Tex. 25, 10 S. W. 741. Where a conductor requires a female passenger to get off a car (U7) § GO CARRIERS OF PASSENGERS. {Ch. 4 perienced in railroad travel, is directed by the ticket agent to get on a train standing several hundred feet from the depot platform, three tracks intervening, the question whether the company owed her the duty of assisting her to the train is one of fact for the jury.^ In some instances, however, the courts have gone further, and have seemingly held that it is the com- pany's duty to furnish assistance in all cases, or, at least, that the question whether it is negligent in fail- ing so to do is for the jury in all cases. Thus in a South Carolina case it was expressly held that it is for the jury to determine whether a conductor is guilty of negligence in failing to assist a lady passenger in alighting at her destination.^ So, in Texas, it has been held that, since it is the duty of a railway com- pany to exercise, the highest degree of care for the safety of its passengers in alighting from its cars, it is for the jury to determine whether such care in- cludes the duty of assisting a woman laden with bundles in alighting from the train. ^° In valuing these decisions, it should be remembered that both in which she has boarded, and to walk to another car not drawn up at the station platform, and a brakeman jerks her up the steps of that car with such violence as to injure her back, the company is liable. International & G. N. R. Co. v, Mulliken (Tex. Civ. App.) 32 S. W. 152. 8 Allender v. Railroad Co., 37 Iowa, 264. 8 Simms V. Railway Co., 27 S. C. 268, 3 S. E. 301. The jury may take into consideration the failure of the conductor to assist a lady passenger to alight from a train, in connection with the other cir- cumstances, in determining whether the railway company was neg- ligent in furnishing proper means for her to alight. Brodie v. Rail- way Co. (S. C.) 24 S. E. 180. 10 Texas & P. Ry. Co. v. Miller, 79 Tex. 78, 15 S. W, 264. (148) Ch. 4} DUTY AS TO RECEIVING AND DISCHARGING. § 01 Texas and South Carolina the inference of negligence is for the jury in all cases.'' In a Virginia case this lauiiuaae is used: "The care and attention which the carrier is bound to use in assisting passengers to alight from his train depends upon the necessity they are under for assistance; as, for instance, where the passenger is aged or decrepit, or a child, or a female unattended and helpless. In the present case the rail- way company was called upon, by every consideration of duty and humanity, to exercise the highest degree of vigilant care for the safety of the passenger. A fine snowstorm was raging. The platforms of the cars, and the steps leading therefrom, were necessarily covered with snow, and rendered dangerous, especial- ly to an unattended female passenger, as was this one. Yet she received no assistance, no attention Avhatever, and was permitted to walk forth into the blinding snowstorm, and to encounter all the perils of the situ- ation, her knowledge of which, and her capacity t:) avoid them, were almost as nothing compared to thos:' of the company's servants, who were present, and charged with the duty, but did nothing to aid her in her position of peril." '^ § 61. SAME— MOVING TRAINS ON INTERVENING TRACKS. It is a question for the jury whether or not a rail- road company is guilty of negligence in running a train at a high rate of speed past its station, at which 11 See ante. § 28. 1^ AlfXiindria & F. li. Co. v. Ueiudon, 87 Va. 193, 12 S. E. 289. (14!)) § (31 CARRIERS OF PASSENGERS. (Ch. 4 another train is receiving and discharging passengers, who are compelled to cross the track of the moTing train in going to and from the station/ It maj be as- sumed that a railroad corporation, in the exercise of ordinary care, so regulates the running of its trains that the road is free from interruption or obstruction while passenger trains stop at a station to receive and deliver passengers.- Failing in this, its employes should at least give ample warning of the approach- ing train. ^ The running of a railroad train at a high rate of speed, at an unusual hour, and without warn- ing, past a train standing at a platform, discharging its passengers, who, to reach their destination, must cross the track of the moving train, is negligence.* § 61. 1 Tubbs y. Railroad Co. (Mich.) 64 X. W. lOiU; Baltimore & O. R. Co. V. State, 81 Md. 371, 32 Atl. 201. As to coutributory negli- gence of passengers in crossing tracks in front of moving trains, see post, §§ 136-139. 2 Terry v. Jewett, 78 N. Y. 338, affirming 17 Hun (N. Y.) 395. 8 Denver & R. G. R. Co. v. Hodgson, 18 Colo. 117, 31 Pac. 954. * Robos'telli v. Railroad Co., 33 Fed. 796. To the same effect, see Armstrong v. Railroad Co., 66 Barb. 437, affirmed in 64 N. Y. 635; Hirsch v. Railroad Co., 53 Hun, 633, 6 N. Y. Supp. 162; Gonzales V. Railroad Co. (1870) 39 How. Prac. (N. Y.) 407, reversing 1 Sweeny (N. Y.) 506; Chicago, B. & Q. R. Co. v. Czaja, 59 111. App. 21; Dal- las & O. C. Ry. Co. V. Reeman (Tex. Civ. App.) 32 S. Vi. 45. The question whether a railroad company is guilty of negligence in kick- ing a freight car, detached from the engine, in front of its passen- ger depot while passengers are in waiting there, so that it strikes a passenger crossing the track on his way to the train, is one of fact for the jury. Hempenstall v. Railroad Co., 82 Hun, 285, 31 N. Y. Supp. 479. The same principle has been applied to street cars. At the junction of a cable and an electric street railway, the accumulated snow had been banked by the company to the height of four or five feet along the tracks, and passengers who were trans- (150) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § Gl So, to run a train at a speed of 25 miles an hour past a depot on a track across which passengers for a train of another railroad company have to go is negligence.* It is a question for the jury whether a railroad com- pany is liable for the death of a passenger, who was lighted off the steps by the conductor while the train was still slowly moving, and who was struck by an- other train on a parallel track as soon as he touched the ground.^ This principle does not, however, apply where the passengers have been discharged, and the passenger train is again in motion. A passenger got off the train on the side away from the depot, and in passing over another track was struck by the engine of another train, which was moving slowly. Neither the engineer nor the fireman saw the passenger, and he testified that he did not see the train, because the steam from the engine on his own train obstructed his vision. The train from which he alighted had already started from the depot at the time of the accident. It was held that the evidence failed to show any negli- ferrcd from one car to the other wore accustomed to walk along the track between the two snow walls until they reached the car they desired to take. Held, that it was negligence for the employes of the street railway to back an electric car towards the cable car, about a block away, with both conductor and motoneer on the front end of the electric car, when they both knew that passengers from the cable car were walking along the track towards their car. Cameron v. Trunk Line, 10 Wash. 507, 3'J Pac. 128. 5 Chicago, St. V. & K. C. Ky. Co. v. Hyan, 165 111. 88, 46 N. E. 208, affirming G2 111. App. 264. « McDonald v. Railway Co., 127 Mo. 38, 29 S. W. 848; Lewis v. Canal Co., 145 N. Y. 508, 40 N. E. 248, affirming 80 Hun, 1!»2. 30 N. Y. Supp. 28. (151) § 61 CARRIERS OF PASSENGERS. (Ch. 4 gence on defendant's part, and that it was error to submit the case to the jury.^ The decisions of the English courts are substantial- ly the same as those of our own. A passenger at a station attempted to cross the rails to a platform on the opposite side by a path which the railway com- pany had always allowed passengers to use for that purpose. While in the act of crossing, she was knock- ed down and killed by a train, which had been sudden- ly, and without any warning, driven backward along the line of rails which she was crossing. It was held that the jury was warranted in finding defendant guilty of negligence.^ A decision of one of the Irish courts seems, however, to be somewhat at variance from our own. A passenger's train was shunted, on a dark night, in his absence, to an unusual siding, out of sight of the platform. While crossing the main line, going in the direction of the station master's of- fice, presumably to make inquiry as to his train, the passenger was struck and killed by another train. It was held that, though there was no accommodation by a bridge for the passenger, and no servant at hand to direct him, there was no evidence of negligence which would warrant the submission of the case to the jury.^ 7 Goia])erg V. Railroad Co., 133 N. Y. oOl. :!0 N. E. nOT. reversing 60 Hun. n.sc:, 15 N. Y. Supp. 579. 8 Rogers v. Railway Co., 2G Law T. (N. S.) 879. In an action by one run over by a train while crossing a railroad track near a sta- tion on her way to take a train, the fact that the company per- mitted the gates at the crossing to be open, and the gate keeper to 9 Falkiner v. Railway Co., Ir. R. 5 C. L. 213. Ch. 4) DUTY AS TO KECEIVING AND DISCHAKGING. § 02 § 62. SAME— EXISTENCE OF SAFE AND UNSAFE EXIT. A railway company has not discharged its whole duty to the passenger when it has provided a safe exit from its cars, while at the same time there exists an- other way which is not safe, and which is in such gen- eral use by its passengers as to induce the belief that it is permitted, in part, at least, for that purpose.' Hence where a railroad company makes provision on- ly on one side of its track for passengers to leave its cars, and it is dangerous to leave on the other side, it is a question for the jury whether it is negligence in the company not to have provided some means to pre- vent passengers from leaving on the wrong side, or to notify them not to do so.^ A railroad company which, with full knowledge of tlie facts, permits a dangerous and unsafe way to be used by passengers in going to and from its stations and trains, is liable for injuries to passengers caused by defects in the way, though it has provided another way which they be absent, is evidence of negligence. Stapley v. Railway Co., L. R. 1 Excli. 21. § 6-J. 1 Missouri Pac. Ry. Co. v. Long, 81 Tex. 253. 10 S. W. 1016. 2 McKimble v. Railroad. 139 Mass. 542, 2 N. B. 97; Van Ostran V. Railroad Co., 35 Hun, .590. Though a railroad company has pro- vided a safe platform by which passengers may leave the train, yet where there is also a platform on the other side which passengers have also been accustomed to use for that purpose, it is the com- pany's duty to warn passengers alighting on that side of dangers which they may encounter by so doing, if such dangers are not ap- parent. Illinois Cent. R. Co. v. Davidson, 22 C. C. A. 300. 70 Fed. 517. § 62 CARRIERS OF PASSENGERS. (Cll. 4 might have used with safety.' And, though tJae com- pany has provided one safe and convenient way, yet if it permits the maintenance of another way by pri- vate persons, which has every indication of having been provided for the use of the public, a strange pas- senger, who takes the private way, and is injured by its faulty condition, may recover/ So the fact that a combination passenger and baggage car is furnished with a platform and steps in the rear does not release the company from liability for injuries to a passenger who left the car at the place generally used by pas- sengers, — the side door of the baggage compartment. "^ 8 Delaware, L. & W. R. Co. v. Trautwein. 52 N. J. Law, 109. 19 Atl. 178; Oldright v. Railway, 22 Ont. App. 286; Longmore v. Rail- way Co., 19 C. B. (N. S.) 183. 4 Delaware, L. & W. R. Co. v. Trautwein, 52 N. J, Law, 169, 19 Atl. 178. 5 Missouri Pac. Ry. Co. v. Long, 81 Tex. 253, 16 S. W. 1016. In tliis case it is said: "A railway company, it is true, is not bound to see that its passengers act in a prudent manner, or to use physical means to compel them to do so. But when its servants see that its passengers are in the habit of leaving its cars by a door not pro- vided for that purpose, it would seem to be the duty of such ser- vants at least to warn them that there is another door which they are expected to use." A rule of a railroad company requiring the rear door of the rear car of a passenger train to be locked while at the station is reasonable, and the company is not guilty of negli- gence in keeping the door locked, as to a passenger who boarded the rear end of the last car with knowledge of the rule, and who was injured by reason of his inability to enter the car. Missouri, K. & T. Ry. Co. of Texas v. Brown (Tex. Civ. App.) 39 S. W. ajij. In Nicholson v. Railway Co., 3 Hurl. & C. 534, the facts were these: A railway passenger was set down after dark on the side of the train away from the station and place of egress. The train was detained more than 10 minutes at this place, and from its length blocked up the ordinary crossing to the station, which was on the (154) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 02 An early Pennnsylvania case is, however, in conflict with these decisions. It holds that a railroad com- pany which provides a safe platform for its passen- gers on one side of its train is not liable for the death of a passenger who gets off on the wrong side, and is struck by an engine on a parallel track; and the fact that passengers were accustomed to get off on the wrong side is immaterial.® Certainly, as applied to a passenger unacquainted with the locality, this de- cision is radically unsound, for how can a stranger know that he is not taking the safe way when two ways are open to him, with the character of neither of which he is acquainted? In a recent case the su- preme court of Pennsylvania again held that a railroad company which has provided a safe and convenient means of ingress and egress to and from its trains, upon one side of its track, has in this particular dis- charged its whole duty to passengers, and is not bound to anticipate that they will alight on the opposite side; and hence a passenger who, in the nighttime, with knowledge of the facts, purposely gets off on the side having no platform, cannot recover for injuries sus- tained by falling into an unguarded excavation made level. The ticket collector stood near the crossing, with a light, telling the passengers, as the> delivered their tickets, to pass on. A passenger passed down the train, to cross behind it, and from the want of light stumbled over some hampers put out of the train, and was injured. The practice of passengers had been to cross behind the train, when long, without interference from the railroad com- pany. Held, that these facts disclosed negligence on the part of the company. « remisylvauia R. Co. v. Zebe, 33 I'a. St. 'SIS, 37 Ta. St. 420. (155) § 62 CARRIERS OP PASSENGERS. (Oil. 4 by the railroad company.' So, the court of appeals of Kentucky has recently held that when a railroad company has a platform and other facilities for enter- ino- and leaving- the cars in safety on the depot side of the track, the failure to have the opposite likewise prepared as a place for entering and leaving the cars cannot be regarded as negligence. It may select and adhere to such arrangement of its depot and platform as it may see fit, if those are made safe and commodi- ous. Nor is a railroad company required to so light tlie depot side of its platform as to admonish pas- sengers that that platform is exclusively used for pas- sengers. That would require the other side of the track to be lighted, so as to admonish the passengers that it was not used for passengers at all. All that is required is that it should be so lighted as that, by the exercise of ordinary care, the passengers can ascer- tain that it is the platform used for passengers. The other side, not being lighted at all, is notice that it is not so used.^ Of course, as to passengers acquainted with the dangerous character of the way, a warning or notice not to use it is useless, and the company is not charge- able with negligence in failing to give it. It has ac- cordingly been held in other states that, where a rail- road company has a platform and other facilities for entering and leaving its cars with safety on the depot side of the track, the failure to have the opposite side likewise prepared as a place for entering and leaving ^ Drake v. Railroad Co.. 137 Pa. St. 352, 20 Atl. 994. 8 Lcniisville & N. R. Co. v. Ricketts (Ky.) 37 S. W. 952. (15G) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 03- the cars cannot be regarded as neglioence, as to a pas- senger who knows the facts, and who purposely leaves the train on the wrong side, to save himself a short walk.^ § 63. SAME— FREIGHT TRAINS. A railroad company may require passengers desir- ing to travel on one of its freight trains to enter or leave the coach at a point on the depot grounds other than the station platform, where the way between the station house and the. point of embarkation is kept in proper condition.' It is not to be expected that there will be the same particularity in drawing a freight train up to a station as a train devoted to passenger service. The great length and weight of such trains, and the appliances necessary in their operation, ren- der them less easy of control.' But when a freight train is not drawn up to a station platform, passen- gers are entitled to receive such care and attention as are necessary to enable them to properly reach the station; and this is especially so where the place at which they are discharged is either inappropriate or inconvenient.^' And to stop a freight train carrying passengers, on a dark night, in such a manner that a cattle guard intervenes between the station i^latform Louisville & N. R. Co. v. Kicketts. 93 Ky. IIG, 19 S. \V. 1S2; Michigan Cent. R. Co. v. Coleman, 2S Mich. 44U. § (53. 1 Browne v. Railroad Co., lOS N. C. 34, 12 S. E. '.tr.S; Heni- mingway v. Railway Co., G7 Wis. 668, 31 N. W. 208; Hays v. Kail- way Co., 51 Mo. Api). 438. 2 Chicago & A. R. Co. v. Arnol, 144 111. 261. 33 N. E. 204. 3 New York, C. & St. L. Ry. Co. v. Doane, 113 lm\. 43.5. 440. 17 N. E. 913. (157) R (34 CARRIERS OF PASSENGERS. (Cll- 4 and the caboose, is negligence, which renders the com- pany liable for injuries sustained by a passenger on his way to the caboose, who fell into the cattle guard, of the existence of which he was ignorant/ Where stockmen accompanying their stock to market are re- quired to change from one train to another, the com- pany is bound to use reasonable care in providing them with a safe opportunity of alighting from the train in which they are, and entering the other, in which they are to continue the trip; and if they are induced by the conductor to enter a place of danger, and are injured without the want of due care on their part, the company is liable.'* § 64. SAME— STREET CARS. A street-car company, receiving and discharging passengers in the public streets, manifestly cannot be held to as strict an accountability to furnish a safe place for entering and leaving its cars as is an ordi- nary steam railroad, which has absolute ownership and control of its stational facilities. All that can be required of the street-railway company is that it ex- ercise proper care in the selection of the places at which it receives and discharges passengers, and, hav- ing exercised care in this respect, it is not in legal fault if the place proves unsafe.' This duty to select * Hartwig v. Railway Co., 49 Wis. 358, 5 N. W. 8G5. c Chicago & A. R. Co. v. Winters, 65 111. App. 435. § G4. 1 Conway v. Railroad Co., 87 Me. 283, 32 Atl. 901, citing Middlesex R. Co. v. Wakefield, 103 Mass. 201, and Creamer v. Rail- way Co., 156 Mass. 320. 31 N. E. 391. (158) Ch. 4) DUTY AS TO Rr:CKlVING AND DISCHARGING. § 6^ a safe landing place requires only that the place be safe for passengers who alight while the car is at rest, and not when in motion; nor does it apply to a pi ace where the car stops because of an obstruction on the track, and not for the purpose of discharging pas- sengers.- It is not negligence on the part of the ser- yauts of an electric street-car company to stop the car, in broad daylight, in the usual manner, opposite a place where the street paving has been removed, leav- ing an excavation about six inches deep; and a pas- senger who is injured in alighting, without looking to see where she is stepping, cannot recover, since, in considering the question of the negligence of defend- ant's servants, it must be taken that they "had a right to assume that plaintiff would look, and take heed un- to her steps.'' ' But it has been held that stopping a street car so that a little embankment of sod is within seven or eight inches of the running board is evidence of negligence, in an action by a fjassenger who was injured in stepping between the embankment and the car.* And unquestionably a street railroad is guilty of negligence in stopping its car in the nighttime, with the car steps protruding over an excavation in the street, without warning a passenger about to alight of the danger.^ So it is negligence in a street-railway company to run its car past the usual stopping place, and thus compel an intending passenger to walk in 2 Augusta Ry. Co. v. Glover, 92 Ga. 132, 18 S. E. 406. 3 Bigelow V. Railway Co., IGl Mass. 393, 37 N. E. 367. 4 Poole V. Railway Co.. 100 Mich. 379. .-)9 N. W. 390. 6 Richmoud City Ry. Co. v. Scott, SO Va. 902, 11 S. E. 404. (159) § 64 CARRIERS OF PASSENGERS. {Ch. 4 the dark along an elevated track, without a railing, in order to reach the car/ The jury may tind the driver of a street ear guilty of negligence in compelling a female passenger to leave the car in a crowded street, where a fire appara- tus, driven rapidly on the car track in the same direc- tion, is only 15 or 20 feet behind the car when it stops/ But where a passenger is thrown while attempting to board a street car, and falls on a parallel track, and is there run over by another car going in the opposite direction, the company is not liable if the driver of tliat car took all the measures that an ordinarily pru- dent man would have taken to prevent the collision.^ But where a street-railroad company contracts with a city, as a consideration for its franchise, to keep a portion of the streets in good order and repair, any one who suffers special damages from its breach of contract may recover against it in a direct action,- -in this case, a passenger who, in stepping from a slowly- moving car, caught his foot in a hole in the crosswalk, and was thrown to the ground/ 6 Vasele v. Railway Co. (Wash.) 48 Pac. 249. 7 Maverick v. Railroad Co., 3<) N. Y. 378. f> Pallez V. Railroad Co. (Sup.) 4 N. Y. Siipp. 384. affirmed 123 N. Y. (i52. 25 N. E. 954. Where a street car stops at a transfer station and passengers are invited to enter on both sides of the car, a motor- man on an approaching car on a parallel track, seeing passengers enter the stationary ear, is bound to exercise more care than when passing another car in motion, and particularly is this true when he knows that the company invites passengers to enter on tlie sides of the ear near his track. Gaffney v. Railroad Co., 6 Ml-sc. Rep. 1, 25 N. Y. Supp. 996. 9 Ober V. Railroad Co., 44 La. Ann. 1059, 11 South. 818. Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 65 § 65. SAME— VESSELS. Common carriers bv water, as Avell as by land, are bound to provide reasonably safe means of exit for passengers using due care.^ A steamboat proprietor, who uses a gang ])lank only a little over two feet wide, while the gangway on the boat is over four feet wide, is bound to warn passengers leaving the boat at night, either by light or otherwise, of the narrowness and lo- cation of the gang plank. ^ A steamboat owner, who departs from the ordinary' and proper method of land- ing his passengers, and who compels them to jum]) from the boat in motion, is responsible for injuries sustained by passengers in so doing. ^ It is negligence in the employes of a ferry company to order teams to pass off its ferryboat before the bridge, prepared for that purpose, is properly adjusted; and where, in con- sequence of such nonadjustment, a horse attached to a heavily loaded cart slips and falls, causing tlie cart to strike and injure a passenger, the company is li- able.^ The letting down of the chains which guard § 65. 1 Seanlan v. Teiiney, 72 Fed. 225; :\lMgoric v. Little, 25 Fed. 027. - Scauliin V. Tenney, 72 Fed. 225. "Where a stranger using a ferry after night is directed by a watchman in cliarge to take a certain direction, and, while following tliat direction, is injured, witliout fault of his, by a passing train, the proprietors of the ferry are liable. Magoric v. Little, 25 Fed. 627. 8 Cameron v. MlUoy. 14 U. C. C. P. :i40. * Hazman v. Improvement Co., 50 N. Y. 53, artirmlng 2 Daly (N. Y.) 130. It is negligence in the employes of a ferry company to open the doors of a crowded waiting room while heavy tracks are being driven rapidly from the boat, and the company is liable for V. 1 FET.CAR.PAS. 11 (IGl) § 65 CARRIERS OF PASSENGERS. (Ch. 4 the passage from a ferryboat to the bridge, by one of the servants of the ferry company, before the boat is properly secured to the bridge, is an act of negligence, which will render the company liable for injuries to a passenger, who, in alighting, steps into the open space between the boat and the bridge.' It is negligence for a deck hand of a steamer to let go a barrel of sugar on a gang plank considerably inclined towards the shore, and the boat owners are liable for injuries to a pas- senger leaving the boat, who was struck by the bar- rel." the death of a passenger who was pushed by the waiting crowd into the vehicle roadway, and run over by a truclc leaving the boat. Tonkins v. Ferry Co., 47 Hun, 562. 5 Ferris v. Ferry Co., 36 N. Y. 312. Common carriers of pas- sengers by a ferryboat do not perform their whole duty by maliing regulations forbidding passengers to leave the boat until the guard chains before the several gangways are lowered. It is their duty to enforce the rules, and they are guilty of negligence in permitting tliem to be habitually violated. The Manhasset, 19 Fed. 430. But the mere fact that a chain on a ferryboat, used to prevent the pi-e- niature egress of passengers, has been removed before the boat reached the landing place, is not evidence of negligence on the part of the owners of the ferryboat; and they are not liable to a pas- senger for injuries sustained in attempting to alight in the dark, where the servant charged with the duty of removing the chain tes- tifies, without contradiction, that he did not remove the chain, and it appears that there was a crowd of passengers on the boat, some of whom had pressed forward and left the boat ahead of plaintiff. Joy V. Winnisimmet Co., 114 Mass. 63. « Julien V. The Wade Hampton, 27 La. Ann. 377. (1G2) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 66 5 66. REASONABLE TIME TO GET ON AND OFF. A coramon carrier by railroad must stop his train at stations a sufB.cient length of time to enable passengers to get on and off in the exercise of ordinary diligence. The carrier's duty as to the time he must give pas- sengers to get on and off trains has been announced in terms similar to the above in very many cases.^ What is a reasonable length of time is generally a question for the jury,- but the stop may be so long or § 66. 1 St. Louis, 1. M. & S. Ry. Co. v. Person, 49 Ark. 182, 4 S. W. 755; Little Rocli & Ft. S. Ry. Co. v. Taukersley, 54 Ark. 25, 14 S. W. lO'JO; Carr v. Railroad Co., 98 Cal. 366, 33 Pac. 213; Atlanta & W. P. R. Co. V. Smith, 81 Ga. 620, 8 S. E. 446; Savannah, F. & W. Ry. Co. V. Watts, 82 Ga. 229, 9 S. E. 129; Chicago & A. R. Co. v. Aruol, 144 111. 261, 33 N. E. 204; Toledo, W. & W. Ry. Co. v. Badde- ley, 54 111. 19; Chicago & A. R. Co. v. Byrum, 48 111. App. 41; Illinois Cent. R. Co. v. Taylor, 46 111. App. 141: Ohio & M. Ry. Co. v. Smith, 5 Ind. App. 560, 32 N. E. 809; Jeffersonville, M. & I. R. Co. V. Parmalee, 51 Ind. 42; Lehman v. Railroad Co., 37 La. Ann. 705: Swigert v. Railroad Co., 75 Mo. 475; Richmond v. Railway Co., 49 Mo. App. 104; Murphy v. Rome, W. & O. R. Co., 56 Hun, 645, 10 N. Y. Supp. 354; Fairmount & A. St. P. Ry. Co. v. Stutler, 54 Pa. St. 375; Ft. Worth & D. C. Ry. Co. v. Viney (Tex. Civ. App.) 30 S. W. 252; Detroit & M. R. Co. v. Curtis, 23 Wis. 152; McSloop v. Railroad Co., 59 Fed. 431. A South Carolina statute requires rail- road companies to entirely stop passenger trains at stations where they are advertised to stop, for a time sufficient to receive and let off passengers. Rev. St. S. C. 1893, § 1687. 2 McSloop V. Railroad Co., 59 Fed. 431; Dickens v. Railroad Co., 1 Abb. Dec. 504, 40 N. Y. 23. Where there is a conflict in the evi- dence as to whether the train stopped only from 10 to 20 seconds, or whether it stopped a minute, while from 10 to 15 passengers got off, the question of defendant's negligence is for the jury. Penn- sylvaula R. Co. v. Lyons, 129 Pa. St. 113, 18 Atl. 759. (1G3) § 66 CARRIERS OP PASSENGERS. (Ch. 4 SO short as to enable tbe court to decide the question as matter of law. Thus the court will take judicial notice that ordinarily the stop of a passenger train for three minutes at a station, for the purpose of allowing passengers to get on or off the train, is reasonable and adequate, and if any special reason exists in a given case requiring a longer stop, such reason should be shown; otherwise a passenger who is injured by the sudden starting of the train, after such a stop, while he is attempting to leave it, cannot recover for the in- juries.^ .\s a general rule, however, the length of time which should be allowed depends on the number of passengers who are to leave the train, their agility, their incumbrances, and all the circumstances bear- ing on the particular occurrence, as shown by the evi- dence. A fleshy woman has a right to ride on a train, and to have a valise and parcels, and she is entitled to more time for alighting than might be required for a foot racer or a greyhound.* After holding a train long enough to disembark and receive passengers exercising ordinary diligence, a conductor is not bound to ascertain whether all pas- 8 Louisville, X. A. & C. Ry. Co. v. Costello, 9 Ind. App. 462, 36 N. E. 299. A stop of four minutes is sutticieut for a passenger to leave the car, and get out of the way of the train. Louisville & N. R. Co. V. Ricketts, 93 Ky. 116, 19 S. W. 182. Code Ala. § 1157, and Pub. Gen. Laws Md. art. 23, § 179, require trains to stop at least one half minute at stations. * I'ierce v. Gray, 63 111. App. 158. Where a railroad company takes upon its train a passenger incumbered with hand baggage and parcels, it must have due regard to his condition in this re- spect when the time comes for him to leave the train. Killian v. Banking Co., 97 Ga. 727, 25 S. E. 384. (104) Ch. 4) DUTY AS TO KKCKIVINt; AND DISCHARGING. § 66 sengei'S desiring: to embark are safely aboard the train, or whether those desirin«>' to aliiilit are safely on the ground, before starting the train/ A railroad company performs its duty when it stops its train a sufficient length of time to give passengers, using or- dinary diligence, a reasonable tiin-^ to alight. When the train is stopped for such a length of time, the train hands have a right to presume that all passengers de- siring to do so have left the cars; and it is no part of their duties to make personal inspection of, or inter- rogate, the remaining passengers, to see whether they intend leaving the cars.^ But, though a train has stopped at a station a reasonable length of time to en- able passengers to alight, yet a conductor is guilty of negligence, if, having reason to believe that a passen- ger is in the act of alighting, he starts his train, with- out examination or inquiry, when he might do so by simply looking in the passenger's direction.'^ Nor is there any obligation upon a railroad company to keep its train waiting until passengers can leave the sta- tion platform. It is sufficient if reasonable time is given them in which to safely get off the train, and out of the way of the cars.* B Browne v. Railroad Co.. 108 N. C. 34, 12 S. E. !).".S; Raben v. Railway Co., 73 Iowa. 57J>, 35 N. W. 645. '; Hurt V. Railway Co., 1)4 Mo. 255, 7 S. AV. 1; Clot wort liy v. Rail- road Co., 80 Mo. 220. 7 Straus v. Railroad Co., 86 Mo. 421. 75 Mo. 185. It is tho duty of a railroad company to afford a siilticiont time to pasyonycrs 1o ali;,dit in safety by the exen-ise of reasonable diliKonce and care on their part, and it is negligence on the part of such company to s Louisville & N. R. Co. v. Ricketts (Ky.) 37 S. AV. 952. (16.-,) § 67 CARRIERS OF PASSENGERS. (Ch. 4 § 67. SAME— SIGNALS FOR STARTING. On tlie question whether or not a railroad company is bound to sij-nal its passengers that the train is about to start, the authorities are in conflict. The weight of authority, however, is that no such duty rests on the company as to passengers about to alight. In the absence of custom, a railroad company is not bound to signal its passengers that the train is about to start, after having stopped it, and kept it standing at the station a sufficient length of time to allow them to alight by the exercise of ordinary and reasonable diligence on their part. If, after the allowance of such time, a train moves off without giving any sig- nal, and the passenger is then in the act of alighting, none of the employes knowing of his delay or of his exposed position, and he is injured in consequence of the movement of the train, the company is not liable for the consequences.^ But in an early Wisconsin case it was held that, even if a passenger has had a reasonable time to alight, the company is guilty of negligence in starting the train without notice, w^hile he is in the act of alighting.^ start a train when those operating it know, or by due diligence niiglit know, tliat a passenger is in the act of aligliting. Luse v. Railway Co. (Kan. Sup.) 4G I'ac. 708. § 67. 1 Atlanta &; W. T. R. Co. v. Diekerson, 89 Ga. 4.~>5. 15 S. E. 534; New York, C. & St. L. Ry. Co. v. Woods, 9 Ohio Cir. Ct. R. 322. ^ Imhoff V. Railroad Co. (1868) 22 Wis. 682. In Keating v. Rail- road Co., 49 N. Y. 673, aftirniing 3 Lans. (N. Y.) 469, it Avas held that to suddenly put a train in motion while passengers are getting on and off, without giving any signal, is an act of negligence. (ir,(;) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 67 As to passengers desiring to board the train, it seems that notice is required. Thus where an emi- grant train stops at a station over night, a passenger has the right to get out of the car the next morning to take the fresh air, provided he keeps within a reason- able distance of the train; and it is negligence to start the train under these circumstances without giving some reasonable notice or warning to enable passen- gers to take their seats before it starts.^ So it has been held in Georgia that the railroad company must use ordinary diligence to notify tardy passengers that the train is about to start,* In Texas it has been held that, where a train has stopped a reasonable length of time at a station, the failure to give a signal, by whistle or otherwise, of the intention to start, is not negligence per se, but the question is one of fact for statutes reqiiiring signals at stations and crossings do not apply in favor of passengers on the train, and the failure to give such a signal as the train is about to leave the station is not negligence in respect to a passenger on the car. Malcom v. Railroad Co., 100 N. C. 63, 11 S. E. 187. 3 Andrist v. Kailroad Go., 30 Fed. 345. 4 Central R. & B. Co. v. Perry, 58 Ga. 4G1. It is the duty of a rail- road company, through its agents, to give reasonable signals of the depai'ture of its trains from its stations and depots,— such signals as would ordinarily attract the attention of passengers and those Interested in the movements of the cars of the railroad company. Perry v. Railroad Co., 6G Ga. 740. If tlio train stop at a wood and water station, and start again in an unusually short time, or witli unusual speed, or without blowing the signal whistle at all, or suf- ficiently long before starting to put persons on their guard, and an injury happens at the time to a passenger, any one of those facts will be sufficient evidence of negligence and mismanagement to charge the company with liability for the injuries. Mitchell v. Railroad Co., 30 Ga. 22. (107) § 08 CARRIERS OF PASSENGERS. (Ch. 4 tile jury/ In New York it has been held that an ele- vated railroad company, professing to provide rapid transit, and making short stops at its stations, is un- der the duty of giving to intending passengers, for their safety, clear and intelligible signals, indicating when it had ceased to be safe or prudent to board the train.^ § 68. SAME— SUDDEN MOVEMENT OF TRAIN AFTER INVITATION TO GET ON OR OFF. Where a passenger, thinking that the train has made its final stop at a station, is injured by its sud- den movement while getting on or off, the carrier's liability generally depends on the question whether there has been an implied invitation to get on or off, and on this question the principles heretofore laid down in reference to the carrier's duty to furnish a safe landing place are likewise controlling. If a ti:iin, on being brought up to a station, comes to a stop in such a manner as to induce the belief on the part of a passenger in waiting on the platform that it has stopped for the reception of passengers, it is neg- 5 Gulf, C. & 8. F. Ry. Co. v. W^illiams, 70 Tex. 159, 8 S. W. 78; Galveston, H. & H. K. Co. v. Cooper, 70 Tex. 67, 8 S. W. G8. 6 McQuade v. Kaihvay Co., 53 N. Y. Super. Ct. 91. The fact that the conductor of a stationary elevated car has. his hand raised on the bell rope, in vie^v of a pa.sseuger about to get on board, is not au intelligible signal that it is too late for him to get on board, or that the conductor would not wait until the few seconds had elapsed n. o get off, and may recover for injuries sustained in being tluo^^n trom the train by its sudden starting; the stop ^^^l'^^^ and the station not reached. IK.oks v. Railway Co ^3 ^^--/4- 18 south. 925; Southern Kan. Ry. Co. v. I'avey. 48 Kan 4o-. _9 (109) § 68 CARRIERS OF PASSENGERS. (Ch. 4 Station, if the train is run so slow as to appear to a person of ordinary intelligence and observation to- liave stopped, ordinary care for the safety of passen- gers requires the train to be so run and managed as not to endanger their lives; and a sudden jerk or start, without any warning, when the passengers are upon their feet, is sufficient evidence of carelessness to imjjose liability on the company.* Pac. 593. The violent and unusual backward jerk of a car, with out notice or warning to passengers, after the train had stopped at the station, and the passengers were getting ready to leave the car in the usual manner, is sufficient evidence of negligence to take the case to the jury. Emery v. Railroad Co. (N. H.) 36 Atl. 367. Run- ning a train past a station platform, and stopping it at a place- where there are no lights, inviting passengers to use haste in get- ting off, and the jerking of the cars as passengers are getting off. warrant a finding of negligence. Zimmerman v. Railroad Co., 14 App. Div. 562, 43 N. Y. Supp. 883. 4 Bartholomew v. Railroad Co., 102 X. Y. 716. 7 N. E. 623. It is a question for the jury whether a railroad company is liable for injuries to a passenger caused by the sudden jerking of the car in a mixed train, while he was standing on the platform, whither he has gone after the conductor has called the name of the station. Newton v. Railroad Co., 30 N. Y. Supp. 488. 80 Hun, 491. This decision is doubtful, since a passenger on a mixed train, who goes on the platform while the train is still in motion, assumes the risk incident to the ordinary movements of the train. Where a train has almost come to a full stop at a passenger's station, and is mov- ing slowly, it is negligence for the engineer to suddenly and vio- lently increase its speed, thereby throwing to the ground a pas- senger in the act of alighting. Nance v. Railroad Co., 94 N. C. 619. On the arrival of a train at a station, a porter, before the stopping of the train, unlocked the door of plaintiff's carriage, threw it open, and said, "All out for H." Plaintiff, supposing the train to have come to a stand, begau to get out, and had placed one foot on the first step for that purpose, when the brake which had been applied to stop the train was suddenlj- taken off, causing (170) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 69 § 69. SAME— DIRECTION TO LEAVE MOVING TRAIN. "The rule is well established that it is culpable neg- ligence on the part of a railroad corporation for its officers to induce a passenger to leave the train while in motion, and a gross disregard of the duty it owes him not to stop the train entirely, and give the pas- senger ample time and opportunity to alight." ^ Simi- lar rulings have been made in other states.-' The St. Louis court of appeals has, however, held that an or- der or direction froin a trainman to a passenger to alight from a moving train does not necessarily con- stitute negligence. Whether it does or not will de- pend on the attending circumstances, and may be a question for the jury.^ an increase of speed, and throwing her on the platform. Held negligence on the part of the company. London & N. W. Ry. Co. V. Hellawell, 26 Law T. (N. S.) 557. § G9. 1 Bucher v. Railroad Co., 98 N. Y. 12S, 131, citing Filer v. Railroad Co., 49 N. Y. 51. 2 Jones V. Railway Co., 42 Minn. 183, 43 N. W. 1114; Atchison, T. & S. F. R. Co. V. Hughes, 55 Kan. 491, 40 Pac. 919; Georgia, R. & B. Co. V. McCurdy, 45 Ga. 288; Parker v. White, 27 N. B. 442. 3 Wilburn v. Railway Co., 48 Mo. App. 224, 30 Mo. App. 203. The jury may find a railroad company guilty of negligence in not stopping a train at a passenger's destination, but merely slowing the speed of the train. Edgar v. Railway Co., 11 Ont. App. 452, affirming 4 Ont. 201. As to contributory negligence of passenger in leaving moving train, see post, §§ 149-155. (171) § 70 CARRIERS OF PASSENGERS. C<^h. 4 § 70. SAME — SPECIFIC RULES AS TO RECEIVING AND DISCHARGING PASSENGERS. The rule requiring a railroad company to give a pas- senger a reasonable time to board the train does not apply where a passenger by mistake attempts to board a wrong train 20 or 30 minutes before the advertised time for the departure of his train ; and hence he can- not recover for injuries by the sudden starting of the train while attempting to get on board. ^ But a through passenger train arriving at a way station is ordinarily waiting for passengers so long as it remains there, and a person intending to take passage on such a train may presume that it is so waiting.^ So where a passenger presents himself for passage, and at- tempts to get on the train before a signal to start is given, the company must give him a reasonable tijjie to get on board; but to cast on the company this duty the passenger must present himself in due time as such, and signify his purpose to take the train." The § 70. 1 Flint & P: M. Ry. Co. v. Stark, o8 Mich. 714. 2 Chicago ,St E. I. R. Co. v. Chancellor, GO 111. App. 525. A pas- senger entered a detached passenger car standing on a side track before the brakeman in charge had arrived, and some time before thi' regular departure of the train. An eiglit year old boy un- fastened the brakes, and the ear, of its own momentum, ran down grade at the rate of 10 miles per hour, and plaintiff was injured. Held, that it was a question of fact for the jury whether or not the railroad company was guilty of negligence in not locking the car door, and in not securing the brakes so as to prevent an eight year old boy from opening them. Western Maryland K. Co. v. Herold, 74 Md. 510, 22 Atl. 323. 3 Ilickenbottom v. Railroad Co., 122 N. Y. 91, 25 N. E. 279. A passenger on a through train for a station at which it was not (172) Ch. 4) DUTY AS TO RECKIVING AND DISCHARGING. § 70 sale of a ticket before the arrival of a train, or when it is at the station, does not give the purchaser a spe- cific right to take that particular train, nor is the com- pany bound to know that she is coming, and hold the Train until her arrival. The company is bound to stop the train only a reasonable length of time to get on and off; and, if the passenger comes after the signal to start is given, it is not negligence, as against her, that the train starts in obedience to it.* An interesting question sometimes arises where a passenger is informed by the conductor that the train will stop a certain length of time at a station, and it starts after stopping a reasonable length of time, but before the expiration of the time announced by the scheduled to stop got off at the station beyond, and undertook to board a local train standing on the side track, for the purpose of getting back to his destination, and was injured by the sudden starting of the train. Held that, since the local train had already- made its stop, and was standing on a side track away from the station, and none of its employes knew of plaintiffs attempt to get on, the company was not chargeable with negligence. Philips v. Railroad Co., 62 Hun, 233, 16 N. Y. Supp. 909; Id., 139 N. Y. 650, 35 N. E. 207. 4 Paulitsch V. Kailioad Co., 102 N. Y. 281, 6 N. E. 577, rovorsiug 50 N. Y. Super. Ct. 241. Where a freight train stops at a place not a station, and not for tlie purpose of receiving passengers, and the conductor notifies people there assembled not to board the train there, but at a designated place near by, the company is not re- sponsible to one who was injured by the starting of the train as he was attempting to board it, though he did not hear the warning, where neither the conductor nor any other person on the train was aware of his intention to board it. Under these circumstances, it could not have been the duty of the company to keep the tiain standing at that place, which was not a usual place for passengers to get on. so as to afford plaintiff an opportunity to board the train there. Curry v. Railroad Co., 92 Ga. 293, 18 S. E. 422. § 70 CARRIERS OF PASSENGERS. (Ch. 4 conductor. Where a passenger about to take a train at a station is informed by the conductor that the train will stop 10 minutes, the passenger's failure to imme- diately board the train will not prevent a recovery for injuries sustained by the sudden starting of the train while he was boarding it before the 10 minutes had expired.' But a statement by a conductor to a pas- senger that the train will stop 5 minutes at an inter- mediate station does not cast on the company the duty of stopping the train there for that length of time. The contract of a railroad company with a passenger is to carry him to his point of destination. He is not expected to leave the cars at intermediate stations, and the carrier does not engage to afford him an op- portunity to do so, except at tlie usual stopping place for refreshments.* Is the railroad company bound to give the passen- ger a reasonable opportunity, not only to get on board the car, but also to be seated, before starting the train? On this question the supreme court of Mis- souri has held that a railroad company need not wait for a passenger to reach his seat before starting the train, unless there is some special reason therefor, as » Texas P. Ry. Co. v. Davidson, 68 Tex. 370, 4 S. W. 636. c Missouri Pac. Ry. Co. v. Foreman, 73 Tex. 311, 11 S. W. 326. But the court of civil appeals has held that where a passenger leaves a train at an intermediate station, on the conductor's assur- ance that it will stop for five minutes, and the conductor, with knowledge that plaintiff has left the train, starts it before the ex- piration of the five minutes, and before plaintiff is sufficiently ne'ar the track to board it before it Is put in motion, the jury may find the company guilty of negligence. Foreman v. Railway Co., 4 Tex. Civ. App. 54, 23 S. W. 422. (174) Ch. 4) DUTY AS TO BECKIVING AND DISCHARGING. § 70 ill the case of a weak or lame person, aiid then the car- rier must have notice of the fact before creating the exception.^ The Texas courts, however, hold that a railway train should stop at its station a reasonable length of time to allow all passengers to enter the cars, and a reasonable length of time thereafter for them to be seated; and, if the train starts before the passenger has time to get a seat, the company will be liable for the injuries sustained by reason thereof.* Where a passenger is directed at a station, by train hands, to pass through cars, either to reach the sta- tion platform in alighting, or to reach the proper car in getting on board, a failure to stop the cars long enough to enable the passenger to obey the direction, in the exercise of ordinary care and diligence, is negli- gence, which will render the company liable for in- juries sustained in being jerked from the car platform by the sudden starting of the train.^ One who becomes a passenger on a railroad car with his wife and little ones is their guardian and protect- or. He has supervision of their safety, and tJie fam- ily group, so far as the act of debarkation from the T Yarnell v. Railroad Co., 113 Mo. 570, 21 S. W. 1. 8 Gulf, C. & S. F. Ry. Co. v. Powers, 4 Tex. Civ. App. 228, 23 S. W. 32.'5. The train slioiild .stop a reasouablo leiisfh of time to al- low all passengers to enter the cars, and if, after the passeugers have all entered the cars, a reasonable time has elapsed to permit them to secure seats, the carrier may start; and in sucn a caSe it is not the duty of the conductor, or of other employes, to see that all passengers are in their seats before starting the train. Inter- national & G. N. R. Co. V. Copeland, GO Tex. 325. Smith V. Railway Co., 108 Mo. 243, 18 S. W. 071; Turner v. Railroad Co., 37 La. Ann. 048. (175) § 70 CARRIERS OF PASSENGERS. (Ch. 4 cars is concerned, is to be regarded, to all intents and purposes, as a unit,— an individual integer; and tlie same rule which accords to that family group a rea- sonable time to debark must, of necessity, include within it the right to take their personal belongings or baggage along with them in the act of leaving the car.^° The fact that a conductor does not know that a pas- senger intends to leave at a station where the train stops, and does not see him leaving the car, cannot fur- nish the company with an excuse for not giving him a reasonable time to get off, unless he was so situated as to conceal himself from observation.'' But starting a train from a station without giving a passenger a rea- sonable time to alight will not render the company lia- ble for injuries sustained in her attempt to alight, where the premature movement of the train was caus- ed by the unauthorized act of a fellow passenger in pulling the bell cord, and signaling- the engineer to start, and she knew this, and recognized the fact that it would put the train in motion.'* 10 Hurt V. Railway Co., 94 Mo. 255, 7 S. W. 1. A passenger alighting with a basliet and a package laid the package ou the car platform, got off the car steps, set down her basket, turned around, and got on the car step to reach for the package, when the train started, and she was injured. Held, that the company owed her the duty of stopping the car a reasonable length of time to en- able her to alight with her packages; and, there being evidence that she used all reasonable diligence in getting off, and that the train did not stop more than a minute, a verdict in her favor would not be disturbed. Simpson v. Railroad Co., 48 Hun, 113. 11 McDonald v. Railroad Co., 116 N. Y. 546, 22 X. E. 1008. 12 Mississippi & T. R. Co. v. Harrison, 66 Miss. 419, 6 South. 319. (176) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 72 § 71. SAME— FREIGHT TRAINS. The ooiidiutor of a freight train caiTying passengers should notify them of the phice to get off, if it does not stop at either the freight or the passenger station, and then afford them a reasonable opportunity to get off.^ But it is the duty of a passenger to ascertain whether a through freight train on which he embarks will stop at his destination; and, though the conductor has tak- en up his ticket, the conductor's refusal to stop the train is not such negligence as will render the com- pany liable for injuries sustained by the passenger in leaping from the moving train.- A railroad company which has stopped its freight train at a water tank a lid in the station yards for about 30 minutes is not chargeable with negligence b(Mjiuse the conductor gave the signal to leave town, so as to render it liable for injuries to a passenger who attempted to climb on a stock car before the caboose reached the station plat- form.^ § 72. SAME— STREET CARS. Like the ordinary steam railroad, a street-railroad company must afford passengers a reasonable oppor- tunity to get on and off its cars.' But the duty of a § 71. 3 llvhcv V. Bond, 'AS Fed. H-22. 2 St. Loui.s, I. M. & S. Ry. Co. v. Ro.sonbcir.v. 4r> Ark. 2.-)6. •■' Warren v. Kaihvay Co., 37 Kan. 408, l.l I'ac. (lOl. § 72. 1 Poulin V. Railroad Co., Gl N. Y. (VJl, allirniiug 34 N. Y. Super. Ct. 2'.H;: Black v. Railroad Co., 108 N. Y. 04O, 1.1 N. E. .-{SJ): Ferry v. Railroad Co., 118 N. Y. 497, 23 N. E. 822, affirnilns; .-)4 \. Y. Super. Ct. 325. A street-car company is bound to afford a pas- V. 1 FET.CAR.PAS. 12 ('"'') §72 CARRIERS OF PASSENGERS. (Ch. 4 street-railroad company is more onerous in this re- spect than that of an ordinary railroad company. We have seen that when the train of an ordinary railroad has been brought to a standstill at the proper and usual place for receiving and discharging passengers, and remains stationary for a sufficient length of time for this purpose, the duty of the trainmen in this re- spect has been performed, and that they are absolved from the further duty of seeing and knowing that the passengers are on or off, as the case may be.^ In the case of street-car companies, however, it is settled by the overwhelming weight of authority that the em- ploj^es who stop the car to permit passengers to get on or off are bound to ascertain and know whether this has been accomplished before starting the car, and it is not sufficient that the car has been stopped a rea- sonable time.* This rule applies to all street-car traf- senger a reasonable opportunity to alight with safety, and the crowded condition of a car is no excuse for lack of attention to a request of a passenger that a car stop for him to get off. West Chicago St. R. Co. v. Waniata, 68 111. App. 481. 2 Ante, § 66; Highland Ave. & B. R. Co. v. Burt, 92 Ala. 291, 9 South. 410; Birmingham U. Ry. Co. v. Smith, 90 Ala. 60, 8 South. 86. 3 Highland Ave. & B. R. Co. v. Burt, 92 Ala. 291, 9 South. 410; Birmingham U. lly. Co. v. Smith, 90 Ala. 60, 8 South. 86; Chicago City R. Co. V. Mnmford, 97 III. SOO; Anderson v. Citizens' St. Ry. Co., 12 Ind. App. 194, 38 N. E. 1109; Britton v. Railway Co., 9o Mich. 159, 51 N. W. 276; Finn v. Railway Co., 86 Mich. 74, 48 N. "S^'. (596; Pfeffer v. Railway Co., 24 N. Y. Supp. 490, 4 Misc. Rep. 465; Wolfkiel v. Railroad Co., 38 N. Y. 49; Cohen v. Railroad Co., 9 C. C. A. 223, 60 Fed. 698; Washington & G. R. Co. v. Harmon's^ Adm'r, 147 U. S. 571, 13 Sup. Ct. 557; Id., 18 D. C. 255. The fact that, while plaintiff was attempting to board one of defendant's street cars, a signal to start was given by an unauthorized person, does not exempt the railroad company from liability, if the con- ins) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 72 fic, whatever the motive power employed.* When- ever there is no regular stopping place or station for receiving or discharging passengers, and conductors are not informed in advance where passengers desire to alight, and cannot know how many are expected to alight, when the motion or signal to stop is given, the company's duty is not performed by merely stopping the car a reasonable length of time, but the conductor must inform himself, by looking and seeing, how many passengers desire and intend to alight, and, in any event, to see and know that no passenger is in the act of alighting, or in a position which would be rendered perilous by putting the car in motion. The reason- ableness of this rule is apparent when we consider that the structure of street cars is such as always to make it possible, by proper precaution, to see in a moment the position of the passengers, and whether any one would be endangered by a sudden start.^ ductor or agent of the railway company in charge, by the exercise of due care and diligence, could have prevented the moving of the car, and thereby avoided the injury. North Chicago St. II. Co. v. Cook, 145 Til. 551, 33 N. E. 95S; Id., 43 III. App. 034. 4 See cases cited supra. In Highland Ave. & B. R. Co. v. Burt, 92 Ala. 291, 9 South. 410, the rule was applied, though the motive power Avas a dummy steam engine. Where a public vehicle stops at the corner of public streets to permit passengers to alight, it is the duty of the driver, before starting the vehicle again, to look around, and see whether any one is alighting, though he has stop- ped for four minutes. Geirk v. Connolly, 13 Vict. Law R. 446. 5 Cawfield v. Railroad Co., Ill N. C. -597, 16 S. E. 703. Where a street car has stopped to take on passengers, it is the duty of the conductor, before giving the signal to start, to look around, and see that all persons desiring to take passage at tliat place are safely on board; and failure in the performance of this duty can- (17!)) § 72 CARRIERS OP PASSENGERS. (Ch. 4 Numerous cases hold that it is negligence to start a street car with a sudden jerk, or to suddenly increase the speed of a slowly-moving car, while the passenger is in the act of getting on board," or in the act of alight- ing,' or, at least, that the question is for the jury.* not be excused by the fact that the conductor did not actually see a person in the act of fretting on board. Dudley v. Railway Co.. 73 Fed. 128. Where the signal of an intending passenger is ob- served by the conductor and niotoneer, and the train is slowed down, and the passenger begins to board, it is incumbent on the employes of the compan.\- to know that he is on the train before they start it. Omaha St. Ry. Co. v. Martin. 48 Neb. 65, 60 N. W. 1007. A conductor of a train of street cars, two in number, stand- ing on the front platform of a rear car, is guilty of negligence in starting the train while a passenger is alighting from the rear plat- form of the front car. The conductor ought to have seen him, in the exercise of extraordinary care. Omaha & C. B. R. & B. Co. v. Levinston (Neb.) 67 N. W. 887. The rule, however, applies only to persons who attempt .to get on the car while it is standing still, and not after the car is in motion. Meriwether v. Railway Co., 45 :\r(). App. 528. Thus a street-railroad company is not liable for an injury to a child nearly seven years old caused by his sudden and unanticipated attempt to l)oard a slowly-moving car, which at- tempt could neither be foreseen nor guarded against. Hestonville r. R. Co. v. Connell, 88 Pa. St. 520; Pitcher v. Railway, 154 Pa. St. 560, 26 Atl. 559. The driver of a street car is bound to exercise only ordinary watchfulness to observe persons in the street de- siring to become passengers: and if, exercising such watchfulness, he fails to notice an intending passenger, the company is not liable for injui-ies sustained in an attempt to board the moving cai*. Lam- line V. Railroad Co., 14 Daly, 144. c Spearman v. Railroad Co., 57 Cal. 432; Conner v. Railway Co.. 105 Ind. 62. 4 N. E. 441; Sahlgaard v. Railway Co., 48 Minn. 232, 51 N. W. ni: Butler v. Railroad Co., 49 Hun, 610, 2 N. Y. Supp. 72; Schalscha v. Railroad Co. (Sup.) 43 N. Y. Supp. 251; Thompson V. Macklem, 2 U. C. Q. B. 300. To suddenly start a street car ' See note 7 on following page. 8 See note 8 on following page. (ISO) Cil. 4) DUTY AS TO RKCKIVJKG AND DISCHARGING. § 7- A street-ear company does not fill (141 its entire dnty by stopping its ears merely long enongh to permit a passenger to get on the platform. The conductor should see that a passenger who is lawfully entering wiiilo a passenger, boarding it, is still on the steps, and then to jerk it. as though slaokeniug in speed, throwing the passenger, who has sprung forward 1o reach a place of safety, against a seat, is evidence of negligence, sutticlent to take Th(> case to the .jury. Miller V. Railway Co. (Minn.) 68 N. AV. 8(12. AVhether a car was pre- maturely started is a question for the jury, whore tlie driver di- rected plaintiff to enter by way of the front plalforni. and. before she mounted the second step, the car was started, and she was thrown against the handles of the door, whereby she was injured. De Rozas v. Railway Co.. 43 N. Y. Supp. 27, 13 App. Div. 296. T City & S. Ry. v. Findley. 76 Ga. 811; Coast Line R. Co. v. Bos- ton. 83 (Ja. 387, 9 S. E. 1108; Wardle v. Railroad Co., 3.") La. Ann. 202; Howell v. Railroad Co.. 22 La. Ann. 603; Conway v. Railroad Co.. 46 La. Ann. 1429, 16 South. 362: Boikens v. Railroad Co. (La.) 19 South. 737; Nichols v. Railroad Co.. 38 N. Y. 131: .Mulhado v. Railroad Co., 30 N. Y. 370; Munroe v. Railroad Co., 50 N. Y. Super. Ct. 114; Morrison v. Railroad Co., 130 N. Y. 166, 29 N. E. 105. af- firming 8 N. Y. Supp. 436; Murphy v. Railroad Co.. 43 N. Y. Supp. 22;'. 19 Misc. Rep. IM. It i.s negligence on the ]iart of the em- ployes on a street car to permit it to move while passengers are in the act of alighting. Martin v. Railroad Co.. 38 N. Y. Supp. 220, 3 App. Div. 448. 8 West End & A. Ry. Co. v. Mozely. 79 (la. 463, 4 S. E. 324; Buck V. Power Co., 46 Mo. App. 555; Linch v. Traction Co.. 1.5.". Pa. St. 102. 25 Atl. 621; Crissey v. Railway Co.. 75 Pa. St. S3. Whctlicr or not the driver of a street car is negligent in st;irting up liis team wliile a passenger is alighting is a question of fact for tlic jury, and not of law for the court. Conner v. Railroad Co. (Ind. Suit.) 45 N. E. 662. The fact that a street car is suddenly started as a pas- senger, in the exercise of ordinary care, is atteminiiig to alight. after liaving signaled the conductor hei- desire \o do so, does not. as matter of law, render defendant liable; the (piestion of negli- gence l)eing for the jury. Chicago City Ky. <'o. v. DInsmore, l(i2 111. 658, 44 N. E. 887, reversing 62 111. Ai»p. 473. It is not negli- (18i; § 72 CARRIERS OP PASSENGERS. (Cll. 4 tlie cars is in a place of safety before giving the signal to the driver to proceed.® The company should allow passengers a reasonable time to enter and take a seat^ if there be one, or reasonable time to seize the straps furnished for passengers when standing; and while it may start its car before the passenger has had time to take a seat, or secure his hold on the strap, it must ex- ercise the utmost care in starting, so as not to jar or upset him/° If a street car has been stopped at a point usual for taking on passengers, the duty devolving upon those in charge of the car, of giving ample opportunity for safely mounting, is not limited to the person or per- prence, as matter of law, for the driver of a street ear to merely slacken its speed for one to set on, especiall.v where he, without in- dicating any desire that it be stopped, attempts to board it while in motion. Finkeldey v. Cable Co. (Cal.) 45 i ac. 99G. 9 Akersloot v. Railroad Co., 131 N. Y. 599, 30 N. E. 195: Dillon v. Railway Co., 49 Ilnn, G08, 1 N. Y. Supp. 679. 10 Dougherty v. Railway Co., 81 :Mo. 325; s. c. 9 Mo. App. 478: Holmes v. Traction Co., 153 Pa. St. 152, 25 All. 040; West Chicago St. Ry. Co. V. Craig, 57 111. App. 412; Losee v. Railroad Co., 63 Hun. 404, 18 N. Y. Supp. 297; Kinkade v. Railway Co., 29 N. Y. Supp. 747, 9 Misc. Rep. 273. It is the duty of the conductor of a street- railway car to stop it when hailed, and to hold it, and not permit it to start until the person hailing it has had a reasonable time to take a safe position inside; and a failure to perform this duty con- stitutes negligence. Auacostia &; i*. R. R. Co. v. Klein, 8 App. D, C. 75. The fact that an elevated train starts with a .ierk, while a passenger, who luis lingered in the choice of a seat, is in the act of sitting down, throwing her to the floor, does not show negli- gence in the management of the train. In the nature of things, a strong traction by the engine, involving necessarily some jerk, is inevitable in starting the train. De Soucey v. Railway Co. (Com. PI.) 15 X. Y. Supp. 108. See, post, § 81, as to sudden jerk of car dur- ing transportation. (1S2) Ch. 4) DUTY AS TO RECKIVIXG AND DISCHARGING. § 72 SOUS who mav have siunaled the car. It is their dutv to stop a sufficient time for others desiring to take pas- sage to do so safely/^ So where a street car has stopped, or is about to stop, in obedience to the signal of an alighting passenger, another i)assenger who de- sires to alight at the same x)lace is not bound, as mat- ter of law, to give notice that he also desires to alight. The stopping or slowing of the car, in response to the signal, may fairly be taken as notice by all passengers that all who desire to alight may take advantage of the opportunity.^- And though a str,eet car stops for a purpose other than discharging passengers, yet it is negligence in the employes to start it suddenly while a 11 Joliet St. Ry. Co. v. Dnggan. 45 111. App. 450. The tact that a passenger rides to the end of a street-car line does not authorize a legal Inference that she intends to ride back: and if the driver stops the car near the end of the track, on the return trip, at a place where passengers are in the habit of getting off. such passenger has the right to get off, without making any request or obtaining any permission; and if the driver laiew it. or by the exorcise of duo care could have kno^Yn it, it is negligence to start the car while the passenger is in the act of alighting. Chicago W. D. Ky. Co. v. Mills, 105 111. 63. On a former appeal in tliis case it was held that while a street car is passing from the ottice of the company to the terminus of the line,— a distance of about half a block.— the company Is not required to anticipate that passengers will be desirous of getting oft' the cars at any and every stoppage they make on this short circuit. And therefore, unless it should appear that the driver stopped the car for tlie purpose of letting passengers get off. the company is not chargeable with negligence because of his start- ing the car forward while the passenger is aligliting. Chicago W. D. Ky. Co. V. Mills, 91 111. :59. i-J Rathbone v. Railroad Co., 13 R. I. TOO; Wheaton v. Railroad Co., 30 Cal. 5U0. (183) K 7- CARRIERS OF PASSENGERS. (Cll. 4 passeno-er is in the act of alighting, provided they knew this fact.^^ In applying the rule that passengers must be given a reasonable opportunity to get safely on board, re- gard must be had to the circumstances of each partic- ular case; and the fact that the movements of a pas- senger are somewhat incumbered by packages in his hands may reasonably require more delay and care in starting the train, in order to insure his safety.^ 14 i.Jack.son v. Kaihvny Co., 118 Mo. 199, 223, 24 S. W. 192. In Pattor.-on v. Railway Co., 90 Iowa, 247, 57 N. W. 880, it was fur- ther held that, in such a case, it is negligence to start the car if the employes could, by the exercise of due diligence, have known that the passenger was in .the act of alighting. Where a .street car has been slowed down to let a passenger get ofE near a street crossing, and the driver sees him on the step preparing to get off, it is negligence for the driver to release the brake and start the horses, causing a jerk, throwing the passenger to the ground, though the car is between the cross walks of an intersecting street, and the cars are prohibited to stop there by ordinance. The driver is bound to use at least ordinary care in starting the horses forward. Medler v. Railway Co., 12 N. Y. Supp. 930. Where one hails a street car while it is crossing the track of an intersecting road, the conductor and driver have a right to assume that he desires the car stopped to enable him to get on, and that he does not intend to get on while it is in motion, before the intersecting track is crossed. Even if they believe that he entertains the idea of getting on the car while it is in motion, and they sliould doubt his ability to do so. they owe him no such duty as to warn liim off. He is the best judge of the risk of such an act. and the responsibility for it rests solely on him. Holohan v. Railroad Co., 8 Mackey (D. C.) 31G. 14 Steeg v. Railway Co., 50 Minn. 149, 52 N. W. 393. A street-car driver who knows that a passenger is about to alight, and has stooped to pick up a bundle which he has deposited on the platform, is negligent in releasing the brake, and, under the rule requiring the utmost diligence and care towards passengers, the company is li- able for injuries sustained by the passenger in being struck in the (184) Ch. 4) DUTY AS TO RECEIVING AND DISCHARGING. § 72 Where the only person in oharoe of a street car is driving on the front platform, with his back towards passengers, and a lady, without remonstrance, arises to leave the car by the rear platform while the car is in motion, it is a question for the jury whether there has been a violation of a city ordinance which requires con- ductors to prevent ladies or children from leaving cars while in motion/^ So, posting printed notices forbid- ding passengers from riding on the front platform, or from leaving a street car while in motion, does not af- fect the company's responsibility for injuries to a boy caused by the driver's failure to stop the car to enable him to alight.'^ But the fact that the conductor is inside the car when it slows up at a street crossing to permit a passenger to get on board is no evidence of negligence on the part of the company.^ ' A conductor is not absolutely bound to remember a notice, giveu him by a passenger, of the place where she intends to get off; nor is he absolutely bound, not only to stop the car at such a place, but also to give her notice that the car has stopped there, in order that she may get eye by the brake handle. Schuler v. Railroad Co. (Coin. PI.) 20 N. Y. Supp. 683, affirming (City Ct.) 17 N. Y. Supi*. s:J4. A street car stopped to let pa.ssengers off. Plaintiff, one of them, gathered up his tools, but before he got off, and while he wa.s on the foot- board, the car started. He requested the conductor to stop, and the latter rang the bell as a signal to stop, wheu phiintiff, by a Jolt or jerk, was thrown off. Held, that the (piestiou of the company's negligence was for the jury. Sniiih v. liiiiisit Co., IGT Pa. St, 209, 31 Atl. r)-u. i"' Fortune v. Railroad Co., 10 ^lo. App. 2.".2. 10 I5renuau v. Railroiid Co., 4ij Conn. 2.S4. 17 Picard V. Railroad Co., 147 Pa. St. Vjr>. 2;j Atl. oGG. (185) § To CARRIERS OF PASSENGERS. (Ch, 4- off. But the fact of notice is one circumstance to be considered, in connection witli others, on the question of the conductor's negligence, and of due care on the part of the passenger.'^ Where a passenger signals the motorman to stop at the next street crossing, and the car slows up, and comes almost to a standstill on the crossing, and then the iiassenger gives another sig- nal, the company is not liable for injuries sustained by reason of the sudden starting of the car, where the sec- ond signal was the usual signal to start, and the motor- man did not know, and could not have known by the exercise of due care and skill, that the passenger had not alighted when he started the car.^® § 73. SAME— ELEVATORS. The person in charge of an elevator must give a pas- senger reasonable opportunity to obtain a balance on entering it, before a rapid and sudden upward move- ment is begun, having a tendency to disturb the equi- librium of one vet in motion.^ 18 Robinson v. Railway Co., 157 Mass. 224, 32 N. E. 1. 19 Sirk V. Railway Co., 11 Ind. App. GSO, 39 N. E. 421. Laws N. Y. 1881, c. 399, requires all elevated trains to come to a stop be- fore passengers shall be permitted to leave tliem, and prohibits them from starting until every passenger desiring to depart shall have left the train, and until every passenger desiring to get on board shall have done so. This statute affords no justification for the act of a guard who closes the gate while a passenger has one foot on the car platform, and who gives the signal for starting while the passenger's foot is pinned fast by the gate. . Lee v. Rail- way Co., 53 N. Y. Super. Ct. 260. § 73. 1 Mitchell v. Marker, 10 C. C. A. 30G, G2 Fed. 139. (18G) Ch. 5) DUTi' Oi« CAKt: DURING TRANSPORTATION. § 74 ( CHAPTER V. DUTY OF CARE DURING TRANSPORTATION. S 74. Degree of Care. 75. Formation of Trains— Concussion of Oars. 76. Same— Position of Cars in Train. 77. Same— Street Cars. 78. Rate of Speed. 79. Same— Freight Trains. 80. Same — Street Cars. 81. Sudden Jerk of Cars. 82. Crowded Cars and Platforms. 83. Same — Street Cars. Si. Same — Stagecoaches. 85. Permitting Passenger to Ride on Platform of Street Car. 8(5. Vestibuled Trains and Sleeping Cars. 87. Slamming of Car Door. 88. Collisions— Between Trains Running on Same Track. 89. Same — Between Trains at Grade Crossings. 90. Same— At Street-Railway Crossings. 91. Same— Between Street Car and Vehicle. 92. Other Breaches of Carrier's Duty during Transportation. 9.3. Statutoi-y Provisions against Fires and Explosives on Trains. 94. Stagecoaches. § 74. DEGREE OF CARE. The rule requiring of the carrier the highest de- gree of care applies not only to the construc- tion of vehicles, roadbed, and machinery, but also to the control and management of the means of transportation from the time the pas- senger is received as such until he is discharged at destination.' § 74. 1 Mitchell v. Marker, 10 C. C. A. 30(3, G2 Fed. 130; Id.. 54 Fed. 637. (187) § 75 CARRIERS OF PASSENGERS. (Ch. 5 The foregoing is the only general principle that can be safely enounced as applicable to the rather hetero- geneous class of cases, involving the carrier's duty to provide for the safety of the passenger during trans- portation. The mode of making up the train, the rate of speed, the jolting and jarring of cars, the crowded condition of coaches, and collisions between trains, are the principal heads under which the carrier's duty dur- ing transportation has been discussed by the courts. These subjects will be treated in this chapter, along with others of lesser importance. § 75. FORMATION OF TRAIN — CONCUSSION OF CARS. If a railway company receives a passenger in one of its cars before the train is completely made up, the law requires the company to make up the train, couple, manage, and control its cars and engines, in such a <'areful, skillful, and prudent manner as to carry the passenger with reasonable safety; and it is liable for an injury to the passenger resulting from its neglect of this duty, if the passenger is not wanting in ordinary €are.^ A railway company, in coupling a freight train to a passenger car having passengers already on board, « 75. 1 Hannibal & St. J. K. Co. v. Martin, 111 111. lMU. 11 111. App. 38(3. A passenger tvIio goes on a train ready to receive passengers, and who is thrown across one of the seats by the concussion of the engine with the baggage car, just as he gets inside the door, may recover for the injuries sustained, where the blow given the car was much more severe than Avas proper. Richmond & D. R. Co. V. Childress, 86 Ga. 8."), 12 S. E. 301. ^A'here a train has separated, leaving the rear end stationary, the question whether the engineer (iS8) Ch. O^i DUTY OF CARE DURING TRANSPORTATION. § 75 is bound to exercise extraoidiuary diligence; that is, such diligence as very prudent persons would use with a like train under like circumstances." Thus to back cars against a caboose with such force as to throw a passenger in the caboose from his seat is sufficient to warrant a jury in finding defendant guilty of negli- gence, where there is evidence that the cars could eas- ily have been moved back in such a way as not to in- jure persons in the caboose.^ And where a train is stopped at a station to enable passengers to get a meal, it is negligence in the employes of the company to briua a switch engine in such violent contact with a passenger car as to injure a passenger in the act of leaving the car, if he had not been allowed a reason- able time to leave after the train had stopped.* is negligent in backing the front section against tlie rear, without giving any signal of its approach, is for the jury. AVinter v. Rail- way Co., 80 Iowa, 443, 45 N. W. 737. Failure to apply brakes to a moving train, when the discharge of that duty will avert all danger to passengers that might result from a collision oi concus- Rion of cars, is negligence. Tillett v. Railroad Co., 118 N. C. 1031. 24 S. E. 111. 2 Chattanooga. R. & C. R. Co. v. Huggins, 89 Ga. 494, 15 S. E. 848. 3 Quackenbush v. Railway Co., 73 Iowa, 458, 35 N. W. 523; Illinois Cent. R. Co. v. Axley, 47 111. App. 307. Where a train is so crowd- ed that passengers are compelled to ride on the platform, the July is wan-anted in finding the company negligent in making the coup- ling with an unnecessarily severe jolt. Choate v. Itailway Co., (!7 Mo. App. 105. * East Line & R. R. Ry. Co. v, Rusliiiig. G9 Tex. 30U, G S. W. 8:U. (189) § 76 CARRIERS OF PASSENGERS. (Ch. 5 § 76. SAME— POSITION OF CARS IN TRAIN. Statutes in many states provide that, in forming a passenger train, no baggage, freight, merchandise, or lumber car shall be placed in the rear of passenger cars/ These statutes doubtless express the popular belief that it is safer to ride in the rear portion of a train than in the front. Even without the aid of such a statute, it has been held that to place a freight car in the rear of a passenger coach is evidence of negli- gence; ^ and to place broad gauge cars, constructed to run on a track four feet eight inches wide, in a train on a narrow gauge road, three feet wide, is negligence, as matter of law, which will render the company liable for a derailment caused thereby.^ § 76. 1 Mansf. Dig. Ark. § 5477; Rev. St. Ind. 1894, § 5191 (Rev. St. Ind. 18S1, § 3927); 1 How. Ann. St. Mich. § 3373; Rev. St. Mo. 1889, § 2607; Pen. Code Mont. 1895, § 691; Gen. St. Nev. 1885, § 881; Revision N. J. p. 933, § 116; Code N. C. 1883, § 1971; Pub. St. R. I. 1882, p. 406, c. 158, § 10; 1 Rev. St. S. C. 1893, § 1680; Sayles' Civ. St. Tex. art. 4233; 2 Comp. Laws Utah 1888, p. 32, § 2352. 2 Philadelphia & R. R. Co. v. Anderson, 94 Pa. St. 351. In this case, a passenger train, consisting of an engine reversed, two pas- senger cars, and a milk car, was wrecked by running into a chasm caused by the washing out of an embankment. The engine and the two passenger cars fell into the chasm; the millk car was left standing on the track. Held, that running the engine reversed, es- pecially at night and in a storm, and placing the milk car in the rear of the train, were circumstances from which the jury might Infer negligence. Id. 8 East Line & R. R. Ry. Co. v. Smith, 65 Tex. 167. (190) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § /8 § 77. SAME— STREET CARS. A city ordinance, requiring street cars driven in the same direction to keep at least 300 feet apart, applies only to cars separately driven, and does not prohibit two street cars from being coupled together, and haul- ed by a single team.^ § 78. RATE OF SPEED. The mere fact that a train is run at a high rate of speed is not of itself sufficient to prove negligence on the part of the carrier. But nothing will justify or ex- cuse running a train at a high rate of speed, when the track is known, or might, by the exercise of proper care, skill, and diligence, be known, to be in a danger- ous condition. Since the speed of the train is a mat- ter which the railway company may lawfully regulate and control, subject to the limitation that the hazard of railway travel be not thereby materially increased, it follows that even a high rate of speed, if the condi- tions of railway and machinery will permit it without increasing the peril of the passenger, will not be neg- ligence.^ But the question whether or not a rapid § 77. 1 Bishop V. Railroad Co., 14 R. I. 314. § 78. 1 Cliicago, P. & St. L. Ry. Co. y. Lewis, 145 111. 67, 33 N. E. OGO; Id., 48 111. App. 274; Indianapolis, B. & AV. Ry. Co. v. Hall, lOG III. 371; Grand Riijiids &. I. R. Co. v. Huntley, 38 Mich. 537. The running of a mail train at the rate ol; 30 or 35 miles per hour past a flag station is not negligence, so as to render the company liable for an injury resTdting from the throwing of a mail bag from the postal car. Mustei- v. Railway Co., (il Wis. 3'-'5, 21 N. "VV. 223. In determining whctljer a rate of speed is dangerous, the (191) § 78 CARRIERS OF PASSENGERS. (Ch. 5 rate of speed on a down grade around a curve is- neg- ligence is one of fact for the jury, and it is proper to refuse an instruction that no rate of speed is negli- gence per se.- And a railroad company is guilty of negligence in running a heavily overloaded train of passenger cars at such a rapid rate of speed, over a curved track and cross tracks, as to occasion a jar or jolt severe enough to throw some of the passengers down, and to jolt off one of the passengers riding on the platform.^ jury cannot consider whether the velocity was greater than that which had been practiced before, with the tacit cou.sent of the com- mnnity, and without accident. Cleveland, C, C. & I. Ry. Co. v. Newell, 75 Ind. 542. This cas,e apparently overrules Ohio & M. Ry. Co. T. Selby, 47 Ind. 471. which held that, in determining whether or not a train was running at a higher rate of speed than was safe and prudent, the jury might take into consideration the rate of speed at which other trains had been run over that portion of the road, both before and after the accident. See, also, Beery v. Railway Co., 73 Wis. 197, 40 N. W. G87, where the rate of speed was held immaterial, in an action for injuries caused by the break- ing of the side rods of the engine. 2 Louisville, N. A. & C. R. Co. v. Jones, 108 Ind. 551, 571, 9 N. E. 476. In an action for injuries sustained in the derailment of a train at a point where the road crossed a stream, and where the roadbed was in a defective condition, evidence that the character of the place wa.s known to the engineer, and that melting snow and storm, with heavy fog, prevailed, and that the engineer had been notified of high water in the vicinity, warrants the submis- sion to the jury of the question whether or not a speed of 20 miles per hour at that place was excessive. Andrews v. Railway Co., 86 Iowa, 677, 53 N. W. 399. But it has been held not to be negli- gence per se for a train to round a curve at an unusually rapid rate of speed. Chesapeake & O. Ity. Co. v. Chnves. 93 Ya. ISJ, 24 S. E. 833. 8 Lynn v. Southern Pac. Co., 103 Cal. 7, 36 Pac. 1018. (192) Cll. 5) DUTY OF CARE DURING TRANSPORTATION. § 8U § 79. SAME— FREIGHT TRAINS. As applied to freii;bt trains i-arryiiig passengers, circnnistances may exist which wonld render a speed of 40 miles an hour negligence, though the track is in good and safe condition, and the cars pi-operly equip- ped and in safe condition, except as to latent defects. The train might be of unusual size, the cars improp- erly loaded, or loaded beyond their capacity, or there might be at the particular place danger of collision with stock, because the track was not fenced, or dan- ger of collisions with teams at crossings, on account of the absence of warnings, or many other circumstan- ces which would render it imprudent and unsafe to run a freight train at such a rate of speed.^ § 80. SAME— STREET CARS. The same principles which determine the liability of the ordinary railroad to its passengers for running pas- senger trains at a high rate of speed also apply to street railways. Thus the mere fact that a street car was going at an unusual rate of speed when derailed on a straight track in good repair does not prove neg- ligence, unless it is shown that the rate of speed was dangerous.^ Neither is a cable company liable for in- juries to a passenger thrown from the car by a lurch while rounding a curve, Avhere the speed causing the lurch was necessai*}^ to carry the car around the curve.- § 79. 1 Pennsylvania Co. v. Newnieyer, 121) Ind. lol, liS N. E. SUO. § 80. 1 Perry v. Malarin, 107 Cal. 30:j, 40 Pao. 489. 2 Ilite V. Railway Co., 130 Mo. 132, 32 S. W. :!3, and :!1 S. W. 2i;2. V. 1 FET.CAH.PAS. lo (193) § 80 CARRIERS OF PASSENGERS. (Oil. 5 But where a motor car, while going around a sharp curve, is run at so high a rate of speed that not only passengers standing, but those sitting, are thrown on their knees, the question of excessive speed and of the carrier's negligence is for the jury.^ And a cable rail- way, in running its train at a rate of speed prohibited by ordinance, is guilty of negligence per se.* The use of electricity as a motive power by passen- 3 Francisco v. Railroad Co., 88 Hun, 464, 34 N. Y. Supp, 859. See, also, Elgin City Ry. Co. v. Wilson, 56 111. App. 364. A jury is warranted in finding a street-car company negligent in running a car around a curve at such a rate of speed as to throw several pas- sengers from the platform to the ground, and to toss several others from their seats in the car. East Omaha St. R. Co. v. Godola (Neb.) 70 N. "W. 491. It is negligence for a street-car driver to run the car at an unusual rate of speed in approaching a switch which he knows to be dangerous. Seelig v. Railway Co., 18 Misc. Hep. 383, 41 X. Y. Supp. 656. 4 Weber v. Railway Co., 100 Mo. 194, 12 S. W. 804, and 13 S. W. 587. The driver of a street car left his team, and persisted in staying in the car, collecting fares and making change for passen- gers, after he was notified by passengers of the importance of go- ing to his team, on account of the unusual rapidity with which they were moving. Held, in view of the fact that he was con- scious of the near approach to a street where there was an abrTipt down grade, that the jury was warranted in finding him guilty of negligence, and in holding the company responsible for injuries to a passenger sustained in the derailment of the car owing to its un- governable speed. Wllkerson v. Railway Co., 26 Mo. App. 144. Where, owing to an accidental obstruction of a street-car track, a car Is necessarily lifted on a parallel track, and run in the oppos,ite di- rection from which cars are usually run on that track, it becomes the duty of the employes to exercise more caution to keep the car on the track than would be required were it run in the usual direc- tion; and if the car is driven rapidly, and jumps the track, the question whether defendant is guilty of negligence is for the jury. White V. Railway Co., 61 Wis. .536, 21 N. W. 524. (194) Ch. 5) DUTY OF CARK DURING TRANSPORTATION. § 81 ger railway companies lias created new couditious, from which new duties arise. The greater speed at which cars are moved increases the danger to passen- gers and to persons on the streets, and of those dan- gers all persons must take notice. When there is an invitation or permission to passengers to ride on rear platforms, it is the duty of the company to observe a higher degree of care in the running of the cars at points where there is danger that they may be thrown off. Hence it is a question for the jury whether a street-railway company is negligent in running an elec- tric car, the platform of w^hich is crowded with passen- gers, at the rate of 15 miles an hour down grade and around a sharp curve. ^ Servants of an electric street railway are bound to know the difficulty of controlling a car when there is snow on the rails; and where, at such a time, they approach a heavy down grade at such an unusual rate of speed as to cause their car to slide down the track, though the brakes are properly set, the company is liable for injuries to a passenger.* § 81. SUDDEN JERK OF CARS. We have seen that to start a street car with a jerk while a passenger is getting on or otl' is evidence of negligence.^ A different question, however, arises when a passenger already on the car is injured by its jolting or jerking. As a general rule, a street-cai- com- 6 Rol)er V. Traction Co.. (Pa.) 30 Atl. 245. 6 Danville Streel-Car Co. v. I'ayuc (Va.) 24 S. E. 904. § 81. 1 See ante, §§ U8, 72. (J 95) § 81 CARRIERS OF PASSENGERS. (Ch. 5 pany is not liable for injuries to passengers caused by starting its car in the usual and ordinary manner; but any unusual manner of starting raises a question of negligence which is for the jury.^ The fact that the car gives a sudden movement, when started, is entire- ly consistent with the supposition that the horses were started in a careful and prudent manner; for a car loaded w^ith passengers must necessarily require a strong pull of the horses to overcome the resisting in- ertia, and it must be a thing of constant occurrence, and unavoidable.^ Keither is it evidence of negli- gence in a driver of a horse car that he whipped the horses when about to start a car full of passengers, un- less there appears to be something unusual in his man- ner of whipping them; and a passenger who w^as thrown from the front platform of the car in which he 2 Continental P. Ry. Co. v. Swain (Pa.) 13 Wkly, Notes Cas. 41. In tliis case it was held that where the horses drawing a crowded street car are balky, and the conductor obtains the aid or a team of eight mules, starting the car with a sudden jerk, and throwing one of the passengers, the question of defendant's negligence is for the jury. 3 Hayes v. Railroad Co., 97 N. Y. 259. In an action for the death of a passenger who was hurled over the dashboard of the front platform, where he was standing, evidence by a fellow passenger tliat he experienced a jerk, as if the driver had put the brake on, and then let it off, or as if there was a rock on the track, does not show any negligence on the part of the driver in applying the brake. Bradley v. Railroad Co., 90 Hun, 419, 35 N. Y. Supp. 918. But it is negligence for a street-car driver, against warning, to drive in a trot into a trench six inches deep, excavated between the rails and along their sides by the company's employes, and it is liable for in- juries to a passenger in consequences thereof. Caub v. Railroad Co., 09 Hun, 138, 23 N. Y. Supp. 268. (196) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § 82 was riding should be nonsuited, where that is his only evidence of negligence.* The same principle applies to railroad trains. An engineer, who, on arriving at a station, has shut off steam, with the intention of letting the momentum of the train carr^' it to its destination, is not guilty of negligence, when he finds the momentum insufficient, in letting on more than the exart (juautity of steam necessary to overcome the friction of the frogs and switches, thereby creating a jerking motion of the train.^ § 82. CROWDED CARS AND PLATFORMS. The courts are divided on the question whether it is negligence, as matter of law, in a railroad company to permit a train to become so crowded that passengers, 4 May V. Railway Co., 49 N. J. Law, 44.3, 9 Atl. 688, reversing 48 K. .1. Law, 401, 5 Atl. 276. The mere fact that, after Avateriug his horses, a driver of a horse car lets go the l)rake. and starts np the horses, as a passenger who has been riding on tlie steps of the front l)latform is about to leave to go to the rear platform, is not negli- gence, though the driver had, about n minute before, told llie pas- senger to go on the rear platform. Brown v. Railway Co., 49 Mich. 153, 13 X. W. 494. 5 Chicago, B. & Q. R. Co. v. Ha/.z;ird. L'(! 111. :'.73. Failure of a railroad company to stop its train at a raihoad crossing, as retpiired by statute, is no breacli of duty towards a p.isscnger who desired to alight at that point; and hence a sudden iiu rc-ise of speed near the crossing, by means of which the passenger, while aligliting, was thrown tothe ground, does not render it lial)le. Avhere it had no notice that he had placed himself in a jtositioii wliere sucli jerk would subject him to peril. Louisville, IS'. A. &. C. Ry. Co. v. Jolui- son, 44 111. App. 56. (107) § 82 CARRIERS OF PASSENGERS. (Ch. 5 unable to obtain seats, are injured by reason of sud- den jolts or jars of tbe train. All autborities unite in bolding tbat it is tbe duty of railroad companies to fur- nisb suitable sittin<^ accomniodations for its ordinary number of ])assengers, or even for an extraordinary number, on reasonable notice. One class of cases, however, holds that, where passengers apply for trans- ])ortation in extraordinary or unexpected numbers, railroad companies should be held only to the exercise of such reasonable diligence in providing cars as may be consistent with the particular circumstances of <'ach case. The fact that the company sells tickets to more passengers than it can comfortably accommo- date does not render it guilty of negligence as matter of law, though doubtless greater care is required in the running and managing of the train thus crowded.^ This view seems to have been adopted by the supreme court of the United States, which holds that the fail- ure of a ferryboat to provide enough seats to accom- modate all its passengers on a particular trip is not negligence, as matter of law, which renders it liable to a standing passenger, who was thrown to the floor by a concussion of the boat with its dock, unless it appears that a less number of seats was provided than was cus- tomary or suthcient for those who ordinarily preferred to be seated." So it has been held that a passenger who voluntarily boards a crowded train, and takes his jjlace on the platform of a car without complaint, can- § SL>. 1 Chicago & N. W. R. Co. v. Carroll, 5 III. App. 201. 2 F.urton v. Ferry Co., 114 U. S. 474, 5 Sup. Ct. 9G0. (198) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § 82 not assign the overcrowding of tlie train as negligence on the part of the railroad company.^ On the other hand, the New York court of appeals has held that the stoppage of a railroad train at a reg- ular station is an invitation to the public to take pas- sage thereon, and the sale of tickets for that train binds the company to furnish its passengers a safe and secure place in which to ride. Proof of its omission so to do, whereby the passenger is obliged to ride on the car platform, is evidence of negligence.'* So the supreme court of Illiuois has held that, where the num- ber of passengers who have the right to take a certain train are in excess of its capacity, the railroad com- l^any must exercise the same degree of care, vigilance, 8 Olivier v. Railroad Co., 43 La. Ann. 8(M, 9 South. -131. 4 Werle v. Railroad Co., 98 N. Y. G50. It is uesligence in a rail- road company to allow its cars to become so crowded as to endan- jier the safety of those who tirst obtain the available room, or to permit persons to crowd upon the platform of the car in the vain hope of finding room inside. Chicago & A. R. Co. v. Dumpser, 60 111. App. 92. As a passenger approached an excursion train, the conductor called out, "There is lots of room inside." The passen- ger thereupon got on the car, but could not get inside, owing to its crowded condition, nor could he get off, because of the crowd behind, and he was compelled to ride on the front platform. He was jolted off by the crowd while the train was in motion. Held, that the question of defendant's negligence was for the jury. Den- nis v. Railroad Co., 105 Pa. St. ()24. 31 Atl. 52. Civ. Code Cal. § 2184, requires a common carrier of i)ersons to provide a sutlicient ntim- ber of vehicles to accommodate all passengers wlio can be reason- ably expected to require carriage at any one time. Section 2185 provides tliat a common carrier of persons must furnish every pas- senger with a seat. He must not overload his vehicle by receiving and carrying more passengers than its rated cai)acity allows. To the same effect, see Civ. Code Cal. §§ 48.i, 2102, 21U3. (11)9) o gg CARRIERS OF PASSENGERS, (Ch. 5 and forethought in providing additional cars as it Is bound to exercise in its other relations to its passen- gers.' § 83. SAME— STREET CARS. The exposure of a passenger to a danger which the exercise of reasonable foresight would have anticipat- ed, and due care avoided, is negligence on the part of the carrier. Hence the question whether the em- ployes on a street car are negligent in permitting more passengers to get on the car than can sit or stand with- in it, and to crowd both platforms, is one of fact for the jury, in an action for injuries to one who was crowded from the platform.' So it is evidence of neg- 5 Chicago & A. R. Co. v. Dumser, 161 111. 190, 43 N. E. 698. In Camden & A. R. Co. v. Hoosey. 99 Pa. St. 492. it is said: "Without assenting to the broad proposition contended for, that a railroad company, using steam motive power, is bound absolutely, and un- dei- all circumstances, to provide every passenger on the train with a seat, it cannot be questioned that, as a general rule, and under ordinary circumstances, it is the duty of such company to provide suitable car accommodations and seats for those whom it under- takes to carry; and if a passenger, exercising reasonable care and prudence, is injured in consequence of the company's neglect of duty in that regard, the latter is liable to respond in damages for the injury thus occasioned solely by its own negligence." As to duty of railroad companies to furnish suitable accommodations, see post, c. 20. § 83. 1 Lehr v. Railroad Co., 118 N. Y. 550, 23 N. E. 889. Where cars on an elevated train are so crowded that the trainmen can- not get at the hand brakes in time to avoid a collision, the ques- tion of defendant's negligence is for the jury. Dlabola v. Railway Co. (Com. i'l.) 8 N. Y. Supp. 334, athrmed in 134 N. Y. 585, 31 N. E. 628. A street-railroad company which takes on such a large num- ber of passengers that many are compelled to ride on the foot- boards is guilty of negligence in running the car so near the in- (200) Ch. 5) DUTY OF CARE DURING TRAiNSPORTATION. § 83 ligence for an elevated street-car company to permit its train to become so crowded that passengers are compelled to stand on tlie platform, and that the gates cannot be kept closed, as required by statute.' So the supreme court of Nebraska has held that it is evidence of negligence on the part of a street-railroad company to carry passengers greatly in excess of the seating capacity of its cars, and to permit them to stand on the platform and steps of the cars.^ A passenger com- pelled to stand on the front platform of a crowded street car may recover for injuries sustained in being thrown from the car by a jar caused by a defective track and the sudden starting of the car.* But these views, though they would seem to be un- questionably sound, have not been permitted to go un- challenged. One of the circuit courts of Ohio has held that it is not negligence to crowd street cars, or the platforms of street cars. It is daily and hourly done in all places where street cars are run.' tersection of a switch with the main traclv that the oars on the two tracks cannot pass each other without injury to the passengers on the footboards. Topeka City Ry. Co. v. lllsss. 38 Kan. 375. 10 Pac. r,07. 2 Graham v. Railway Co.. 141) N. 1. 330, i-- N- K- i>lT, reversing 8 Misc. Rep. :'.0.-.. 28 X. Y. Supp. 739. 3 Pray v. Railway Co.. 44 ^'el). 107, 02 N. W. 447. * Chicago City R. Co. v. Young, 02 111. 2;*.8. 5 Mt. Adams & E. P. I. Ry. Co. v. Reul. 4 Ohio Cir. Ct. 302. In Chicago City R. Co. v. Considiue, 50 111. A pp. 472. it is held that to permit a street car to become crowded with passengers is not neg- ligence, as matter of law, so as to render the company liable for an injury to a passenger crowded otf by the other passengers. (201) § 85 CARRIERS OF PASSENGERS. (^Cll. § 84. SAME— STAGECOACHES. A stagecoach proprietor is liable for au injury to a passenger from the upsetting of a coach caused by its beino- overloaded. To determine Avhether the coach was overloaded, tJie jury must take into consideration the number of passengers, the weight of baggage, the general character of the road, and especially the por- tion of it over which the coach was passing when the accident occurred.^ To load over 400 pounds of iron on a stagesleigh resting on narrow double runners, and heavily loaded with passengers, is negligence as a matter of laAV, which will render the carrier liable for injuries to a passenger caused by the overturning of the sleigh on a smooth and slippery part of the road." § 85. PERMITTING PASSENGER TO RIDE ON PLAT- FORM OF STREET CAR. To permit an adult, or a person reasonably compe- tent to care for himself, to ride on the front platform of a street car, whether crowded or not, is not negli- gence per se. The carrier, however, is bound to high- er care and vigilance when the x)latform is crowded, in § 84. 1 Maury v. Talmadge, 2 McLean. 147, Fed. Cas. No. 9,315. 2 Derwort v. Loomer. 21 Conn. 24.j. Luggage was placed on the roof of defendant's coach, without any iron railing between the lug- gage and the passengers. I'laiutiff, au outside passenger, seated with his back to the luggage, Avas, by a sudden jolt, thrown from the coach, and his leg was broken. Held, that the malconstruction of the coach, and the placing of luggage in an improper position, was evidence of negligence. Curtis v. Driukwaier, 2 Barn. & Adol. IG'J. (202) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § 85 proportion as that place is more dangerous than a seat inside the cai'; and, in the event of an injury, this fact should be considered by the jury, in connection with all the circumstances of the case, in determining the responsibility of the carrier.^ Where a female passen- ger is injured while alighting from a street car because she is prevented from taking hold of the dasher by a passenger leaning against it, the jury is the proper tribunal to find whether the carrier was guilty of neg- ligence in permitting a passenger to remain standing on the platform in such a position as to interfere with other passengers in alighting.^ ''But in the case of a passenger who is obviously and manifestly incompetent, either from extreme youth or other cause, to exercise any proper judgment or dis- cretion for his own safety, a somew^hat larger measure of duty may be said to devolve upon the conductor of the car than under ordinary circumstances. It must be conceded, of course, that he is not held to the exer- cise of critical skill or judgment; for the performance of his ordinary duties, in a crowded car, may give him little opportunity to observe closely the capacity or in- telligence of a particular person in his charge. He is, in this respect, held only to the exercise of that degree of discrimination which a reasonably prudent and ob- serving man would be expected to exercise under the circumstances. His duties require him to give his attention, not only to those who may wish to board the § 85. 1 Sandford v. Railroad Co., 13G Ta. St. 84, 20 Atl. 799. As to contributory ueglife'ence of passenger in riding on platform, see post. § 107. 2 Neslie v. Railroad Co., 113 Pa. St. 300, U Atl. 72. (203) I 85 CARRIERS OF PASSENGERS. ifih . 5 car, but to those who wish to leave it, as well as to such as reniaiu. It is his duty to collect the fares, reg- ulate the movemeuts of the car, aud generally to con- duct the affairs of the company in his charge. He may, therefore, when the car is crowded, and passen- gers are passing in and out, have little chance to test with accuracy the intelligence or capacity of the in- dividual passenger, but he is bound to give his undi- vided attention to his business; and, if any person boards his car who is obviously incompetent to choose a place of safety, or whom he knows, or as an observ- ing and prudent man ought to know, to be thus incom- petent, it is his duty to exercise the highest degree of care and vigilance consistent with the performance of his ordinary duties for his safety." ^ It is accordingly held that to allow a boy of tender years to ride on the front platform of a street car is evidence of negligence sufficient to go to the jury.* Aud the mere fact that s Pandford v. Railroad Co., 13(5 Pa. St. 84, 20 Atl. 799. In this case, a boy eiglit years old pushed through a crowded car to the front platform. He was there found by the conductor when taking up fares, and, becoming frightened by the conductor's accusation of another boy with attempting to steal a ride, he jumped from the moving car, and was injured. Held, that there was no evidence of negligence on the part of the company to go to the jiu'y. 4 Jensen v. Barbour, 15 Mont. 582, 39 Pac. 906; W'est Philadelphia P. Ry. Co. V. Gallagher, 108 Pa. St. 524; Philadelphia C. P. Ry. Co. V. Hasaard, 75 Pa. St. 307; PittsDurg, A. & M. P. Ry. Co. v. Cald- well, 74 Pa. St. 421. In this last case it was said: "It is high time that the directors of a passenger railway should understand that it is their duty, not only to make and publish rules forbidding their conductors and drivers from allowing 'children to get on and off the front platform,' or to ride there, Init to see ;hat these rul.^s are rigidly enforced by their employes. Under no ciix'umstances (2U4) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § 85 the driver has warned the child not to ride there does not relieve the company from liability, but it is the driver's duty to compel the child to ride in a proper place in the car.^ So it is negligence in the driver of a street car to needlessly withdraw from the front plat- form, leaving two boys thereon; and the company is liable for injuries to one of them, who fell from the car in a scramble engaged in by them to drive the horses." But the rule that the conductor of a street car should not permit children, to ride on the platform does not apply to a case where,, on approaching a boy's destina- tion, the conductor signals him to come on the plat- form, and says, "The next corner is yours." ^ It is doubtful, however, whether these decisions are applicable to the modern street cars, the platforms of which are not only guarded with screens and rails, but provided with doors or gates, so as to be completely inclosed during transportation. should they permit children to get on and ol¥ the front platform of a street car, much less to ride in a place of so much danger to life and limb. If they do, negligence is imputable to the company, and it will be held responsible for any injury occasioned thereby." 6 East Saginaw City Ky. Co. v. Bohn, 27 Mich. 503. 6 Metropolitan St. R. Co. v. Moore, 83 Ga. 453, 10 S. E. 730. It is negligence in the driver of a street car to go inside to collect fares, with no one in charge of the horses, and to permit a boy nine years old to stand on the steps of the front platform wiiile tli.i train is so abandoned. Saare v. Railway Co., 20 Mo. App. 211. 7 Cronan v. Railway Co., 4t) La. Ann. 65, 21 Soutli. 1(J3. (205) § 87 CARRIERS OF PASSENGERS. (Ch. 5 § 86. VESTIBULED TRAINS AND SLEEPING CARS. The purpose of vestibuled cars is to add to the com- fort, safety, and conyenience of passengers, more par- ticularly while passing from one car to another. The presence of such an appliance on a train is a procla- mation by the company to the passenger that it has provided him a safe means of passing from one car to another, and is an invitation for him to use it as his convenience or necessity may require. Hence, where a railroad company runs a vestibuled train, it is a ques- tion of fact for the jury whether the company is neg- ligent in leaving the vestibule connection w^ithout a light, and the outside door of the vestibule open, with- out a guard rail or other protection, while the train is running rapidly on a dark night; deceiving a passen- ger, who mistakes the open door for the one leading into the car, and who is thrown from the train through the open door.^ A sleeping-car company which places a passenger in an upper berth, must furnish reason- ably safe means for him to get out of it; and, where it provides electric call bells for such berths, it is negli- gence in the conductor or porter not to respond to a call when rung by a passenger.^ § 87. SLAMMING OF CAR DOOR. The question of the carrier's negligence when car doors slam on a passenger's hand is not free from diflft- culty. As a general proposition, where a passenger is § 86. 1 Bronson v. Oakes, 22 C. C. A. 520, 76 Fed. 734. 2 Pullman's Palace-Car Co. v. Fielding, G2 111. App. 577, (206) Ch. 5) DUTY OF CARE DL'RING TRANSPORTATION". § 87 injured iu this iiianuer, while entering or leaving tlie oar, by reason of the sudden starting of the train, the question of the carrier's negligence is for the jury, on the ground that he has not allowed the passenger a reasonable time to enter or to alight. A prima facie case of negligence is made out by evidence that, while getting on board a train, a passenger's finger was mashed, as he caught hold of the door sill, by the slam- ming shut of the door because of the sudden starting of the train/ A railroad company is guilty of negli- gence in starting its train so violently as to cause the door to slam on the hand of a passenger, who was standing on the platfonn, prepa;'atory to leaving the car.- Where a passenger is getting into a railway car- riage at a station, and places his hand on the back of the open door to aid him in mounting the step, it is negligence for the guard, without any wai'ning, to close the door, so as to jam his finger between the door and the door post.' And the fact that the door of a § 87. 1 Poole Y. Banking Co., 89 Ga. 320, 15 S. E. 321, distinguish- ing Hardwiclv v. Banking Co., 85 Ga. 507, 11 S. E. 832. 2 Kentucky & I. Bridge Co. v. Quinkert, 2 Ind. App. 244, 28 N. E. S38. 3 Fordham v. Railway Co., L. R. 3 C. P. 3G8, L. R. 4 C. I'. 019. A 12 year old boy entered a third-claims railway carriage at night, and as he was seating himself he placed his linger on a part of the door. His father was behind him, getting into the carriage, wh«Mi a porter violently closed the door, ciaishing the boy's fingers, and striking the father on the back. Held, th.it there was evidence of negligence on the part of the porter, which was properly submit- ted to the jury. Coleman v. Railway Co., 4 Hurl, it C. ("►!)!>. A passenger on an elevated railroad arose as the train approaclicd her station, and passed to the door of the car, which the brakeman held open. The jar of the train impelled her to place her hand ou the (207) § 87 CARRIERS OF PASSENGERS. (Ch. 5 railway carriage is imperfectly fastened is evidence of negligence on the part of the company, even if the train was not in motion when the accident happened.* But the rule is different after the passenger has safe- ly entered the car. It is not negligence in the train porter to close a car door, without giving warning of the fact in advance, so as to render the company liable for injuries to a passenger, whose hand rested in the door frame. Unless there is some special reason for giving notice or warning, no principle of law requires this to be done. It is sufficient, generally, if the door of the car is open and shut with usual and proper care, in the ordinary way,, without any public warning, or parade and ado over the matter.^ A railroad company is not liable for injuries to a passenger who put his hand in the door sill to steady himself just as the door was being closed by some one who did not know of plaintiff's danger, since the company is guilty of no negligence.* door casing, when, as the train stopped, the brakeman let go of the door, which slammed on her hand, injuring it. Held, that the brake- man, who had been so seated that he must have seen that plaintiff wished to get off at the station, was negligent in letting go of the door, in the absence of suitable appliances to hold it open when the train stopped. Colwell v. Railway Co., 57 Hun, 452, 10 N. Y. Supp. 636. See, also, McGlynn v. Railroad Co., 6 N. Y. St. Rep. 51. 4 Richards v. Railway Co., 28 Law T. (N. S.) 711. B Gulf, H. & S. A. Ry. Co. v. Davidson. 61 Tex. 204. A railway porter is not guilty of negligence in shutting the carriage door after a passenger has completely entered the carriage, but before he has taken his seat, and hence he cannot recover for having his thumb jammed in the hinge of the door. Maddox v. Railway Co., 38 Law T. (N. S.) 4.58. « Ham v. Banking Co., 97 Ga. 411, 24 S. E. 152. (208) Cll. O) DUTY OF CARE DURING TRANSPORTATION. § 88 §88. COLLISIONS— BETWEEN TRAINS RUNNING ON SAME TRACK. The principle exacting of the carrier the highest de- gree of care and skill applies nowhere more fittingly than in cases of collision between rapidly moving trains. As a rule, collisions do not happen unless some one has blundered, and in general the courts are disposed to hold railroad companies strictly account- able for accidents thus occurring. Where a railroad track is used by tAvo companies, it is their duty to adopt such rules and regulations for the running of trains as will insure safety, and, having adopted them, they must conform to them, or be responsible for all consequences resulting from a departure from them. Hence it is gross negligence for one of the companies to run a train several hours out of time, when a train of the other company, going in the opposite direction, is due; and the one so running its train out of time is liable for an injury to one of its passengers sustained in a collision between the two trains.' A railroad company which runs its line by telegraph Is bound to have a suitable telegraph line, with a proper number of operators; and in case of an accident it is for the. jury to decide whether its duty in this respect was per- formed." AYhere a train separates while going up a steep grade, and the rear portion, running down grade,, collides with another train, the jury is warranted in finding the company negligent in permitting the two S 88. 1 Chioaso. B. & Q. K. ("o. v. CJcortrc 1!» 111. filO. I Grand Trunk Ilv. Co. v. Walker, 154 U. S. 053, 14 Sup. Ct. 1189. V. iKKT.CAU..'xs.-i: (200\ § 88 CARRIERS OF PASSENGERS. (Ch. 5 trains to niii only eight minutes apart.^ Where rail- road men, runniuo- a locomotive and snow plow, know that a train is stalled on the track somewhere in the vicinity, the jury is warranted in finding- them guilty of negligence in running into the stalled train, without slacking speed.* A terminal railway is guilty of neg- ligence in running trains through its Aards without leaking any precaution against collision at a curve, ex- cept ringing bells and sounding whistles, since the adoption of a system of flagging would give almost ab- solute security against collisions with other trains.'^ The servants of a railroad corporation in charge of a mixed freight and passenger train are guilty of gross negligence in leaving the passenger car on the main track at a station, without using proper care to flag an approaching freight train in time to avoid colli- sion.^ The failure of the foreman of switch engineers to notify an engineer of the expected arrival of an ex- cursion train, of which fact the foreman had been no- tified by the station master, is negligence, which will render the company liable for the death of a passenger caused by -a collision between the switch engine and the train.' Where a freight train breaks into sev- eral i)arts in the nighttime, and two of the sections, without brakemeu, run backward, down grade, into 3 Louisville, N. A. & C. Ry. Co. v. Faylor, 12G lad. 126, 2.5 N. E. 8(;;». 4 Annas v. Railroad Co., G7 Wis. 4G, 30 N. W. 282. 5 Cnion Railway & Transit Co. v. Shacklet, 119 111. 232. 10 N. E. S[H>: Id., 19 111. App. 145. c Louisville & N. R. Co. v. Long, 94 Ky. 410. 22 S. W. 747. 1 Eddy v. Letcher, 6 C. C. A. 27G, 57 Fed. 115. (210) Ch. 5) DUTY OF CAKE DUR.NG TRANSPORTATION. § 89 the caboose, which is stationary, it is a question for the jury whether the absence of brakemen from the de- tached sections is neglioence; one of the brakemen be- ino in the caboose, and the other in the engine, in vio- hition of the company's rules.^ But where the chain brake of a street car breaks while the car is on a down grade, and the car collides with another ahead, the driver, who remains at his post until his car is within four feet of the one in front, and who does everything possible to prevent the acci- dent, is not chargeable with negligence, because in handling the brake he used more force than was abso- lutely necessary, or because he failed to shout to the driver of the forward car, at least in the absence of evidence that this would have been of service in pre- venting the collision." § 89. SAME — BETWEEN TRAINS AT GRADE CROSS- INGS. Trainmen know, and are bound to know, that all points where railway lines cross at grade are places of danger, and they must, in the handling of trains in- trusted to them, exercise the care which the presence of this known danger demands of them. It is negli- gence of the grossest kind to attempt to make a cross- ing without taking pains to see whether there is an- other train at or near the crossing, and without riMlu- cing the speed sufficiently to place the train under the » Delaware, L. & W. R. Co. v. Ashley. 14 C. C. A. 3G8. G7 Fed. 209. AVynn v. Railroad (^o., 133 N. Y. 5T.-i, 30 N. E. 721, roversiii}; (Com. I'l.) 14 N. Y. Supp. 172. (211) § 89 CARRIERS OP PASSENGERS. (Ch. 5 reasonable control of the engineer; for, unless these pre- cantions are taken, a collision is inevitable, if another train happens to be upon the crossing, even rightfully, when the other reaches it. As aids in securing the ex- ercise of proper care on the part of trainmen, the com- panies place, at proper points, stopping posts upon their roads, and adopt the rule requiring all trains to be halted thereat. The mere act of stopping the train, however, is not the purpose of the rule. That is mere- ly a means to an end. The ultimate purpose of the rule is twofold, and coincides with the requirement of the general rule of law upon the subject, to wit, to se- cure opportunit}^ to those in charge of the train to as- certain whether there is another train approaching the crossing, and to place the engineer in complete con- trol of the train.^ Further than this, it is the duty, § 89. 1 Kansas Citj% Ft. S. & M. R. Co. v. Stouer. 2 C. C. A. 437. 51 Fed. S49; s. c. 49 Fed. 209. In this case it was held that the mere fact that the train was halted near the stopping post, but at a point where the view of the crossing was obstructed, does not exonerate the train hands from negligence, if they kept no proper lookout for trains on the intersecting road approaching the cross- ing, and ran the train at such a rate of speed as to make it im- possible for the engineer to check its movement on discovering an- other train on the crossing. In Grand Rapids &, I. R. Co. v. Ellison. 117 Ind. 234, 20 N. E. 135, it was held that to stop an engine 700 feet from a railroad crossing, where the view of the intersecting railroad is obstructed, and then to go over the crossing, is not a comi)liance with Rev. St. Ind. 1881, § 2172 (Rev. St. Ind. 1894. § 2293), requiring engines to be brought to a full stop at a point near the crossing, and requiring the engineer to ascertain whether there is a train in sight or approaching on the other railroad: and hence the company is liable for injuries sustained in a collision with a train on the intersecting road. The duty to stop at crossings with intt'i-socting railroads is quite generally imposed by statute. See (212) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § 89 not only of the engineer, bnt of the fireman, when the train is in motion, and especially when nearing a cross- ing with an intersecting railroad, to be at his post and on the lookout; and, if a collision occurs with a train which the fireman could have discovered had he been at his post, the company is liable.^ A carrier is liable for an injury to a passenger sus- tained in a collision with a train of another railroad at an intersecting crossing, if the carrier could have avoided the collision by the exercise of that degree of care which it owed its passengers, though the employes of the other railroad may have been more grossly neg- ligent than its own employes.^ Mere considerations of convenience in handling bag- gage and express matter do not justify a railroad com- pany in permitting a passenger coach to stand on a crossing with another road; and the carrier is liable for the death of a passenger killed in a collision with detached freight cars, which ran down the descending- grade of the other road, and struck the passenger car, where the carrier took no precaution whatever to pre- vent such an accident.* But trainmen of one road, who have complied with the statute on approaching a crossing with an intersecting road, have a right to as- sume that trainmen on the other road will also comply Rev. St. Me. 1883. c. 51, § 76; 3 How. Anu. St. Mich. S 3370; Code Tenn. 1884. § 13(>1. 2 Grand Kapids & I. H. Co. v. Ellison. 117 Ind. 234, 20 N. E. 135. 8 Chicago. K. & W. K. Co. v. Ransom. 56 Kan. 559. 44 Pac. 7. 4 K.'ilcjw V. Railroad Co., 68 Iowa, 4'iU, 23 N. W. 74(i, and 27 N. W. 466. (213) § 90 CARRIERS OF PASSENGERS. (Ch. 5 with it, in the absence of any indication that they can- not or will not.' g 90. SAME— STREET-RAILWAY CROSSINGS. It should be noted at the outset that, where a street railroad crosses a steam railroad at grade, the duty of the employes of the steam railroad towards passengers on the street railroad is the exercise of ordinary care, while that of the street railroad is the highest order of care.^ It has accordingly been held that the driver of a street car, on approaching a crossing with another railroad, has no right, at the peril of the persons and lives of the passengers, to hazard the experiment of crossing the intervening track in the face of an ap- proaching train.^ So, while a street railroad is not bound, as matter of law, to keep a watchman at its in- tersection with a steam railroad, in the absence of a statute or ordinance requiring it so to do, it is a ques- tion of fact for the jury whether the absence of a watchman at such a crossing is negligence.^ And where the safety of the passengers of a street car at a railroad crossing depends on the street-car employes' going on the railroad track to see whether trains are approaching, it is negligence for them to omit so to do.* Where a street-car track is intersected at a cross- 5 Richmond & D. R. Co. v. Greenwood, 99 Ala. 501, 14 South. 495. § 90. 1 Philadelphia & R. R. Co. v. Boyer, 97 Pa. St. 91. 2 Barret v. Railroad Co., 45 N. Y. 628, affirming 1 Sweeney. 568. 8 .Tacquin v. Cable Co., 57 Mo. App. 320. 4 West Chicago St. R. Co. v. Martin, 47 111. App. 610, affirmed in 154 111. 523, 39 N. E. 140. (214) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § 00 iiio- bv several railroad tracks, and a street car is struck by an engine on the second track, it is for the jury to say whether the conductor, who had crossed the first track in advance of the car, was ouilty of nejili- o-ence in not crossino- ahead on the second track also.' Suppose, however, that a flapnan is stationed at the crossing- by the steam-railroad company, is the driver of the street car justified in relying on the flagman? In a Pennsylvania case, it is held that the driver of the street car is not justified in attempting to cross the track, without stopping, looking, and listening, no matter what the action of the flagman stationed at the crossing bv the steam railroad may be, if the driver has information Avhich would lead a prudent man to infer that there is danger to be apprehended from an approaching train.' The supreme court of Ohio has likewise held that the fact that a railroad company employs a gateman at a crossing with the tracks of a street-railway company does not excuse the failure of the employes on a street car from going ahead of the car, to ascertain whether the crossing is clear, as re- quired by statute.' Even the fact that a cable car is signaled to go forward by the flagman at an intersection with an electric line does not relieve the gripman from negligence, if he could see an electric car approaching the crossing in such a manner as to render a collision imminent if he proceeded.^ Negligence of a railroad Douglass V. Railway Co., 91 Iowa, 94. 58 N. W. 1070. 6 Philadelphia & R. R. Co. v. Boyor. 1)7 Pa. St. 91. T Cincinnati St. Ry. Co. v. Murray, 53 Ohio St. 570, 42 N. E. 590, aft;:ininK 9 Ohio Cir. Ct. 291. 8 Taylor v. Railway Co. (Mo. iiui>.) ^9 S. W. 88. (215) § 90 CARRIERS OF PASSENGERS. (.Ch. 5 gatekeeper in lowering tlie gates so as to pen a horse car on the tracks does not affect the liability of a street- railroad company to one of its passengers for its driv- er's negligence in going upon the track in front of an ai)proaching train.® The negligent conduct of a steam railway in failing to give the statutory signals on approaching a crossing with a street railroad does not excuse the negligence of the street railroad in running its car in the way of the locomotive.^" The fact that a street-car company violated a contract with a railroad company in failing to stop a car at a crossing with the railroad company, and in not sending forward the con- ductor, to see if the track was clear, is no defense to the railroad company in an action by a passenger on the street car who w^as injured in a collision with a train, the employes on which were also negligent.^' The federal circuit court in Ohio has, however, held that, when a gate established by a railroad company at a street crossing is open, a street-car driver may as- sume that the track is clear and safe, and is not negli- gent in passing through the gate, without stopping to look or listen for a train.^'' In case of collision between street cars at intersect- ing crossings, it is a fair question for the jury to de- termine whether the driver of one of the cars is guilty of negligence in approaching the crossing at a rate of 9 Washington & G. R. Co. v. Hickey. 17 Sup. Ct. GGl, affirming 5 App. D. C. 4(38. 10 Hammond, W. & E. C. E. Ry. Co. v. Spyzehalski (lud. App.) 4G N. B. 47. 11 Baltimore & O. R. Co. v. Friel, 23 C. C. A. 77, 77 Fed. 126. 12 Whelan v. Railroad Co.. 38 Fed. 15. (210) {Jh. 0) DUTY OF CARE DURING TRANSPORTATION. § 91 speed which would not enable him to stop his car al- most instantly upon discovering another car approach- ing- on the intersecting track. And if he do approach at such a slackened rate of speed, it would also be a question for the jury whether he was not guilty of neg- ligent conduct in attempting the experiment of cross- ing in front of the other car, when to remain where he was, and await its crossing, would have resulted in ab- solute safety.'' And a collision between two street- railway cars on an intersecting crossing is evidence of negligence, where the driver or gripman of either car could have seen the approach of the other in time to avoid a collision by stopping his own car.^* So the failure of a street-railroad company to provide means for informing the operatives of a car passing over a switch where two tracks unite whether another car, which should have passed that point a few minutes earlier, from the opposite direction, had done so, is negligence.^^ § 91. SAME— BETWEEN STREET CAR AND VEHICLE. As to its passengers, a street-car company is bound to exercise the highest practicable degree of care to avoid collision with vehicles in the street, while as to persons in the vehicles it is bound to exercise only ordi- nary care. It may therefore happen that a passenger injured in a collision with a vehicle may recover under 18 Schneider v. Railroad Co., 133 N. Y. 583, 30 N. E. 752, afHi-miug 15 N. Y. Supp. 557. 14 Kuttner v. liailwny Co., 29 Mo. App. ."»02. 15 Bailey v. Trattiou Co. (Wash.) 47 I'ac. 241. (217) § 91 CARRIERS OF PASSENGERS. (Ch. 5 circumstances where the occnpants in the vehicle could not' The driver, whether of horses or machinery, should be vigilant in observing his track, and prompt in the exercise of every reasonable precaution to guard against danger. ^^ Thus, where a motorman operating an electric car sees that the driver of a wagon on the track in front of him neither looks back, nor pays any attention to the ringing of the bell, nor increases his rate of speed, nor attempts to leave the track, it is his duty to bring his car under control, and even to stop, if necessar^^, to avoid a collision. His failure to do so is negligence, which will render tJie company lia- ble for injuries to a passenger sustained in the colli- sion.^ So the question whether a gripman on a cable car is guilty of negligence in going ahead at full speed when he observes a balky team near the track, instead of stopping his car, and waiting until the team can be removed, is for the jury.^ A street-car company is liable for injuries to a pas senger on a car who was struck, in a very narrow street, by the shaft of a wagon, where it ajjpears that the two vehicles had stopped in plain view of each other, and that the collision could not have occurred § 91. 1 Sears v. Railvray Co., 6 Wash. 227, 33 Pac. 389. 1081; Mt. Adams He E. F, I. Ry. Co. v. Lowery. 20 C. C. A. 596, 74 Fed. 4G3. 2 Mt. Adams & E. P. I. Ry. Co. v, Lowery, 20 C. C. A. 590, 74 Fed. 403. 3 Sears v. Railway Co., 6 Wash. 227, 33 Fae. 389, 1081. * Cook V. Railroad Co.. 00 Cal. 604. Where a driver of a street car keeps on when he sees that a horse attached to a truck in front has become ungovernable, and a passenger is injured in a collision with the truck, the question of the driver's negligence is for the jury. Seidiinger v. Railroad Co.. 28 Hun, 505. (218) Ch. 5) DUTY OF CARE DUUING TRANSPORTATION. § 91 had the car stood still for a very short time, and per- mitted the wagon, which was tirst in motion, to get by.' Where a street car is driven so rapidly that the driver cannot avoid collision with a van rrossing the track at midday, with no other obstruction in the street, the company is liable for injuries to a passenger in the collision.® Where a street-car driver urges his horses to a faster movement as a wagon on the track ahead,, loaded with lumber, is turning out, causing the for- ward part of the car to come in contact with the pro- jecting boards on the wagon with sufficient force to break the window and stanchion of the car, and to strike a passenger in the car, a jury is wai'ranted in finding the driver negligent.^ It has even been held that a driver of a street car, who knows that passengers are riding on the running- board, and who sees a truck in close proximity to the track, is bound to consider the possibility of a slight movement of the truck; and it is negligence for him to proceed at full speed, if the position of the truck is such as to apprise the motorman of the liability of a collision, even though it may be occasioned by a slight movement of the truck. ^ But the driver of a street car is not bound to be on the lookout for runaway' 5 Devlin v. Railroad Co., 57 Hun, ")!)!. 10 N. Y. Supp. 848. A ver- dict for a passenger is sustained by evidence that the driver of the car drove against a wagon standing across the track, and tliat tlie collision throw plaintiff to the street, and injured him. Fox v. Rail- road Co., 7 Misc. Rep. 2H5, 27 N. Y. Supp. 895. 6 Franklin v. Railroad Co., 50 Hun, 605, 3 N. Y. Supp. lili!). af- firmed in 121 N. Y. 673, 24 N. E. 1095. 7 O'Malley v. Railway Co., 3 App. Div. 2.59, 38 N. Y. Supp. 456. 8 Wood V. Railroad Co., 5 App. Div, 492, 38 N. Y. Supp. 1077. (219) § 91 CARRIERS OF PASSENGERS. (Ch. 5 horses, and is not cliargeable with negligence in failing to avoid a runaway horse, which was in sight only a short time before it ran into the car; the driver's at- tention being devoted to passengers getting on and off the car.^ When the car approaches a street crossing, it is the driver's duty to be on the lookout for approaching vehi- cles on the intersecting street, and the company is lia- ble for injuries to a passenger in a collision which could have been avoided if the driver had been on the lookout/** And the rule giving to the cars of a street- railway corporation the preference and a superior right of way in the street where its tracks are laid does not apply at street crossings. At such crossings, the cars have no right superior to those of vehicles moving in the streets crossed.^^ » Hamilton v. Railway Co., 163 Mass. 199, 39 N. E. 1010. But Where a team approaches a street ear at a crossing at such a rate of speed as to show that it is not under control, or that no reli- ance can be placed on the discretion of the driver, the question whether it was negligent in the driver to pass ahead of the team is a question for the jury. Watkins v. Railroad Co., 20 Hun, 237. 10 Heucke v. Railway Co., 69 Wis. 401. 34 N. W. 243. 11 O'Neil v. Railroad Co., 129 N. Y. 125, 29 N. E. 84. affirming 15 N. Y. Supp. 84. It is a question for the jury whether the driver of a horse car is negligent in driving rapidly on a descending grade, when he could have seen horses on a trot 60 or 70 feet away, draw- ing a heavy beer wagon, headed towards the track at right angles, and when he failed to check the rapid movement of the car until the collision took place. Hurley v. Brewing Co., 13 App. Div. 167, 43 N. Y. Supp. 259. (220) Ch. 0> DUTY OF CARE DURING TRANSPORTATION. § 92 § 92. OTHER BREACHES OF CARRIER'S DUTY DUR- ING TRANSPORTATION. No duty rests on a railroad eompauy to inform or warn a passenger on a caboose car that there is danger in standing near the open side door of the ear when the train is starting or in motion, since this is matter of common knowledge.^ Nor is it the duty of the con- ductor of an elevated car to notify a passenger, about to pass from one car to another as the train is start- ing, that there will be an open space between the plat- forms of the two cars when they begin to move, though they are in contact while standing still.' But a con- ductor who directs a woman and a child to leave the smoking car for another more comfortable for them is guilty of negligence in failing to furnish them assist- ance while attempting to pass from car to car.^ In running a train through a tunnel, requiring six or seven minutes, the failure to furnish lights, and to shut the car door, allowing smoke and cinders to enter the car, to the great inconvenience of passengers, is suffi- cient evidence of negligence to take the case to the jury, in an action by a passenger, w^ho was injured in attempting to shut the door." The fact that the em- ployes of a railroad company made every effort to no- tify those in charge of a train of an open switch does not excuse the negligence of such employiSs in leaving § 02. 1 Thompson v. Duncan, 76 Ala. o34. 2 Clune V. Railroad Co., 48 ilun, 618, 1 N. V. Supp. 239. 8 Cleveland, C, C. & I. R. Co. v. Manson. 30 Ohio St. 451. * Western Maiyland K. Co. v. Stanley, 61 Md. LltJU. (L»L>1) X 92 CARRIERS OF PASSENGERS. (Ch. 5 the switch open with full knowledge of the approach of the train.' So it is for the jury, and not the court, to determine whether it is negligence in a railroad company to keep locked the closet in a passenger coach, leaving no place for passengers to attend to calls of nature, and to stop the coach in the nighttime over a cut 20 feet deep, with all its servants away from the coach, and without notice to passengers of the danger to which they are exposed if they attempt to get out.' Where a bell rope in a passenger coach fails to work, and therefore the engineer receives no signal to stop the train on a fire breaking out in the car, it is a question for the jury whether the company has com- plied with a statute requiring it to provide the best- known appamtus on its passenger trains for immedi- ate communication with the engineer, and whether the failure so to do was the cause of an injury to a passenger who was burned in the fire.^ A street-railway company is not chargeable with negligence in ijermitting a passenger to place a basket between his feet, and another passenger attempting to pass over the obstruction assumes the risk and danger of so doing. ^ Where a street-car driver, attempting to drive some trespassing boys from the car, strikes at them with a stick, and, missing his aim, hits a window, B Louisville & N. R. Co. v. Kingman (Ky.) 35 S. W. 204. 6 Wood V. Railroad Co., 84 Ga. 3(>J. 10 S. E. 907. 7 Hay V. Railroad Co., 37 U. C. Q. B. 456. St. Vt. 1894, § 3909, re- quires all passenger trains to be supplied with a bell rope, connect- ing all passenger coaches with the locomotive hauling the train. 8 Van Winkle v. Railroad Co., 46 Hun, 504. Ch. 5) DUTV OF CARE DURING TRANSPORTATION. § 93 and injures a passenger, the company is liable if the driver is negligent.® § 93. STATUTORY PROVISIONS AGAINST FIRES AND EXPLOSIVES ON TRAINS. In many of the states statutes exist wliicli prohibit the illumination of passenger cars with oil which will ignite at a temperature of less than 300 degrees Fah- renheit' Still others require the heat to be generated outside and independent of the cars,^ or compel the use of heaters in the cars that will make it practically im- possible for fire to escape therefrom.^ Still others require passenger cars to be furnished with tools, such as axes, saws, and crowbars, to enable passengers to escape from wrecked cars.* And in a few the trans- portation of explosives in passenger trains is prohib- ited.^ These statutes have rarely come before the courts for enforcement. The New York statute, prohibiting the heating of cars by any stove or furnace inside of «> Allen V. Railway Co., 79 Tex. 631, 15 S. W. 498. § 93. 1 Ky. St. 1894, § 787; Laws N. Y. 1882. c. 292; Rev. St. Ohio 1890, § 3353; 1 Rev. St. S. C. 1893. § 1(583: Pub. St. R. I. p. 407, c. 158, § 10; Sanb. & B. Ann. St. Wis. § 1800. 2 Laws N. Y. 1887, c. 016. 8 3 How. Ann. St. Mich. § 3434b: Pub. St. N. H. 1891, p. 453. § 13. 4 1 How. Ann. St. Mich. § 34.33; Laws Minn. 1887. e. 18. § 2 Laws N. Y. 1884, c. 439, § 8; Saub. & B. Aun. St. Wis. § 1807. B Sanb. & B. Ann. St. Wis. § 1805; Rev. St. U. S. §§ 42 rS, 4279 5353, 5355. The locking of passenger cars while the train is in mo tion is prohibited in some states. Hev. St. Fla. § 2200; Rev. St Ind. S 2298; Code W. Va. 1891, p. 898, § 18; Sanb. & B. Ann. St Wis. § 1800. (223) § 94 CARRIERS OF PASSENGERS. (Cll. 5' the car, has been held valid as a police reoulation, even as to roads located partly without the state.® It has been further held that directors of the company oper- ating the railroad are subject to the penalty imposed bv the statute, if thev caused the car to be heated in the prohibited manner; but that they are not liable merely because they are directors or officers of the corporation, and it must be shown that they personally participated in the offense.'^ It has also been held that the prohibition in Rev. St. U. S. § 5353, against transporting nitroglycerine on vehicles engaged in interstate passenger traffic, ex- tends to dynamite, which is made by mixing nitrogly- cerine with some solid and inert absorbent substance, and which contains no other explosiA-e ingredient. And a freight train may be regarded as a passenger train, within the meaning of this statute, when passen- gers are conveyed thereby for compensation, in any kind of cars, by authority of the railway corcipany.^ § 94. STAGECOACHES. The law pertaining to carriage of passengers by stagecoach has become yearly of less importance, as the stagecoach has been supplanted by the railroad. Mr. Justice Story, in his work on Bailments,^ has stat- 6 People V. New York, N. H. & H. R. Co., 55 Ilun, 409. 008, 8 N. Y. Supp. 672, affirming 5 N, Y. Supp. 945. affirmed in 123 N. Y. 635, 25 N. E. 953. 7 People V. Clark (O. & T.) 14 N. Y. Supp. G42. 8 U. S. V. Saul, 58 Fed. 7(J3. § 94. 1 Story, Bailm. (4tli Ed.) §§ 592-594, 598, 000-602. (224) Ch. 5) DUTY OF CARE DURING TRANSPORTATION. § '.t4 ed the law on this subject in terms of chissic eloquence, traceable in many of the decisions involving railroad carriers. Indeed, it is not too much to say that the j)rinciples announced by the courts in the first few decades of the present century, governing the liability of carriers by stagecoach, have been the fruitful germs of our present voluminous law on railroad carriers. These general principles have already been note smallpox, with which the agent was afflicted. It was held that the railroad company was not liable for the consequent illness of the passenger, if neither it nor any of its superior officers had any knowledge that the agent was afflicted with tJie disease. "The employ- ment knowingly of an improper person to come in con- tact with the public would be gross misconduct, but if the master or railroad company is faultless in regard to employing an agent, and in continuing his employ- ment, the master or railroad company ought to be ex- cused civilly from the consequences of any secret dis- ease, or like infirmity, of the agent, in the absence of all knowledge thereof. Even a dog which has mani- fested no vicious propensities may be kept by its owner without being tied or otherwise secured; but if the ani- mal is vicious, and the owner has been notified of the fact, a duty is then imposed on him to keep the animal secure, and he is responsible for any mischief if he fails to observe this duty. The scienter must be estab- lished." Sometimes it has been sought to hold a carrier liable for its failure to employ a sufficient number of serv- ants. A statute in Maine requires railroad companies to furnish a brakeman for every two cars on its passen- ger trains.^ But in New York it has been held that the failure of a street-railroad company to provide a conductor, in addition to a driver, on a one-horse cai*, is not negligence.® « Rev, St. Me. 1883, c. 51, § 61. p. 481. » Lamline v. Kailroad Co., 14 Daly, 144. (228) Ch. 7 J DUTY AS TO ACTS OF THIRD PERSONS. § 96 CHAPTER VII. DUTY TO GUARD AGAINST ACTS OF THIRD TEUSONS. § 9G. Principle Governing Liability. 97. Assault on Passenger. 98. Same — Knowledge of Danger. 99. Same — By Insane Passengers. 100. Abusive Language and Disorderly Conduct. lUl. Other AYrongs to Passengers. lOli. Crowds at Stations. 103. Interference with Passengers Embarking on and Alighting from Trains. 104. Train Wrecking. 105. Missiles Thrown from Cars. § 96. PRINCIPLE GOVERNING LIABILITY. A common carrier is bound to exercise the highest practicable degree of care to guard his passen- gers against the assaults and all other wrong- ful acts of either fellow passengers or strangers. Carriers of passengers are not insurers of the entire immunity of their passengers from the misconduct of fellow passengers or of strangers, any more than they are insurers of the absolute safety of ])assengers in other respects.^ Nor can the carrier bo hold liable for such misconduct on tlio priuciplo of respondeat su]»ei'ior, as in the case of the misconduct of his serv- ants." But although the doctrine is of couii);n'ativ<'ly § 96. 1 Kinney v. Railroad Co. (Ky.) :'. I S. W. 1000; Chicago & A. R. Co. V. IMllsbury, 123 111. 9, 14 N. E. T2. 2 I'ittsburgh, Ft. AV. & C. Ry. Co. v. Hinds. -,:\ V;\. SI. 512; Mul- lan V. Railroad Co., 40 Minn. 474, 49 N. A^'. Iil9. § 96 CARRIERS OF PASSENGERS. (Cll. 7 recent growth, it is now firmly established that a car- rier of passengers must exercise the same high degree of care to protect fhem from the wrongful acts of their fellow passengers, or of strangers, that is required for the prevention of casualties in the management and operation of its trains, namely, the utmost care, vigi lance, and precaution, consistent with the mode of con- reyance, and with its practical operation.^ While not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it 3 A\iight V. Railroad Co., 4 Colo. App. 102, 35 Pac. 196; Flint v. Transportatiou Co., 34 Conn. 554: Id., 6 Blatchf. 158. Fed. Cas. No. 4.873, affirmed 13 ^yalI. 3; Kinuej- v. Railroad Co. (Ky.) 34 S. W. 10(i(>; Missouri, K. & T. Ry. Co. v. Russell, 8 Tex, Civ. App. 578, 28 S. ^V. 1042; Chicago & A. R. Co. v. IMllsbury, 123 111. 9, 14 N. E. 22; Simmons v. Steamboat Co., 97 Mass. 3G1. It is the duty of a carrier to protect its passengers from violence at the hands of a fellow passenger, when it can be done by proper care. Evans- ville & I. R. Co. V. Darting, 6 lud. App. 375, 33 N. E. 63U. How- ever, in Illinois Cent. R. Co. v. Minor. 69 Miss. 710, 11 South. 401. it is held that reasonable care and diligence, under all the circum- stances, is all that is required of the carrier in this respect, and that he is not bound to exercise great vigilance and care in main- taining order, and guarding i)assengers against violence. So in Morris v. Railroad Co., 106 N. Y. 678, 13 N. E. 455, it is said: "In guai'ding passengers from injury by the falling of articles placed in a rack over a seat by another passenger, a carrier of passengers is not held to the highest care which human vigilance can give. That measiu'e of care has been spoken of as due from them in the actual transportation of the passenger, and in regard to the results nat- ui-ally to be apprehended from a failure to furnish safe roadbeds, proper machinery, perfect cars or coaches, and things of that nature. But, in regard to a danger of this kind, a carrier of passen- gers is, we think, held to a less strict measure of vigilance. Rea- sonable care, to be measured by the circumstances surrounding each case, to prevent accidents of this, nature, is all that is required." (230) Ch. 7) DUTY AS TO ACTS OF THIRD PERSONS. § 96 is the carrier's duty to provide ready help, sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur, under the circumstances of the case and the condition of the parties; * and, having furnished such force, the carrier is chargeable with their neglect in failing to protect a passenger from assaults by strangers.^ This strict rule of duty must, however, be applied in view of the relation which the carrier sustains to all the passengers, and the circumstances of each particular case calling for its exercise." Knowledge of the exist- ence of the danger, or of facts and circumstances from which the danger may be reasonably anticipated, is necessary to fix a liability upon the carrier for dam- ages sustained in consequence of failure to guard against it/ * Britton v. Railway Co., 88 N. C. 536; Batton t. Railroad Co.. 77 Ala. 591; Flannery v. Railroad Co., 4 Mackey (D. C.l 111. B Wright V. Railroad Co., 4 Colo. App. 102, 35 Pac. lUO. 6 Miillan V. Railroad Co., 46 Minn. 474, 49 N. W. 249. 7 Wright V. Railroad Co., 4 Colo. App. 102, 35 Pac. 196; Sira v. Railroad Co., 115 Mo. 128, 21 S. W. 905; Royston v. Railroad Co.. 67 Miss. 376, 7 South. 320. A conduc-tor is only failed to act upon improprieties or offenses witnessed by or made known to him, auiv. 2, 4;j N. Y. Supp. 108G. (245) § lO.") CARRIERS Of PASSENGERS. (Ch. 7 whether the proper precautions were taken is for the jury.- Kut when the company has provided a staff of servants sufficient to discharge the duties of preserv- ing order among numbers, by guiding and instructing them as to the mode of obtaining and taking their pla- ces in the carriages, it need not go further, and furnish a staff sufficient to cope with the force and violence of a lawless crowd, rushing through the station.' § 103. INTERFERENCE WITH PASSENGERS EM- BARKING ON AND ALIGHTING FROM TRAINS. Neither the common law nor statute imposes on the carrier the duty of escorting outgoing passengers from the interior of the car to a place of safety outside the station grounds, nor incoming passengers from its waiting rooms to a seat inside the train. Nor is a com- mon carrier bound to protect its passengers from rude- ness or bad manners on the part of strangers or other passengers, unless such conduct amounts to a breach of the peace.'^ Thus, a railroad company is not liable for injuries to a female passenger, who, as she was 2 Hosan v. Railway Co. (1873) 28 Law T. (N. S.) 271. 3 Caiinou V. Midland Ry. Co., L. R. G Ir. C. L. 199. In this case a railroad company, which had sold a hirge number of harvest tickets, increased its force of servants from four to seven, in order to handle the crowd. While waiting for the train, a fight ensued in tlie village at which the station was located, between the harvest men and the villagers. When the train arrived, the outside crowd made a rush into the station, and pushed three of the harvest men from the platform, one of whom was killed by the approaching en- gine. Held, that the company was not liable for his death. S 103. 1 Ellinger v. Railroad Co., 153 Va. St. 213, 25 Atl. 1132; Graeff v. Railroad Co., 1(51 Pa. St. 230, 28 Atl. 1107. (24(5) Cll. 7) DUTY AS TO ACTS OF THIHD PERSONS. § lO:"^ about to alight from a street car, was jostled off by another passenger, rudely pushing by her to enter the car.^ Neither is a railroad company liable for inju- ries- to a passenger about to leave a station through a swinging storm door for injuries causeil by an impa- tient traveler entering the station, who heedlessly rushes ahead, violently pushes the door open, and causes it to forcibly strike plaintiff.^ Neither is it liable for the act of a passenger in catching hold of a bell rope to steady himself as the train is stopping, which has the effect of causing a signal to be trans- mitted to the engineer to start the train, and an injury 2 Ellinger v. Railroad Co., 153 Pa. St. 213, 2.5 Atl. 1132. 8 Graeft- v. Railroad Co., 161 Pa. St. 230, 28 Atl. 11U7. Where a boy, 14 years old, stands on the platform of a crowded street car. with one foot resting on the steps, and is pushed off by a passenger rushing out of the car as it approaches a transfer station, it is proper to charge that the company is not liable for the conduct of the passenger, unless it was unusual and disorderly, and could have been prevented by the persons in charge. Rani'.all v. Railroad Co., 139 Pa. St. 464, 22 Atl. 639. affirming 8 Pa. Co. Ct. R. 277. A rail- road company is not liable to a passenger, who was injured, while attempting to board a moving train, by stumbling over a person standing on the car platform, where no want of caie on the part of the company is shown in permitting him to be where he was. Ilollman v. Railroad Co., 2 Posey, Unrep. Cas. (Tex.) 557. A rail- road company is not liable for the act of an incoming passenger in stepping on the foot of a passenger about to alight, where the guard had requested people on the platform to allow the passeng<»rs to leave the car before they attempted to enter, and his request was not heeded. Thomson v. Railway Co., 75 Hun, 548, 27 N. Y. Supp. 008. A railway company is not liable for the act of a stranger, wlio crowded plaintiff from a car step just as the train was about to start, resulting in an injury to plaintitf by striking against a post near the track, while nmning along with the train, trying to get on. Chid that such acts wo\ild have been perpetrated? It would require a gift of omnis- ^id- -jTC. .577, 4 Atl. 891. In KeUer v. Railroad Co., 27 Minn. 178, 6 N. W. 486, it is said: "As rail- road companies cany not merely the vigorous and active, but also those who, from age or extreme youtli, are slower in their move- ments than vigorous and active persons, the time of stopping is noc to be measured by the time in which tlie latter may make their exit from the cars, but by the time in which the other class may, using diligence, but without hurry and confusion, alight. Those in charge of the trains axe bound to presume that there may be such person-s on the cars, and, unless they know they are not, they have no riglit to start the trains until they have waited long enough to allow such persons to alight; nor, even after waiting a reasonable time for such persons to get off, have they a right to start the trains without using reasonable care to ascertain if there are such persons in the act of getting off." This decision is certainly opposed to the weight of au- thority, in so far as it holds that the carrier is bound absolutely to know that passengers under disabiUtj' are on the train; and it prob- ably stands alone in holding that the carrier, after stopping the train a reasonable length of time at a station, is bound to ascertain whether passengers are in the act of getting on or off before starting the train. See ante, § 66. (256) Ch. 8) DUTY TO PASSENGERS UNDER DISABILITY. § 107 If they are iii(ai)able of takiiijj;- care of tlieiuselves, they should have attendants alouji, to care for them, or to render them such assistance as they reijuire in the cars, and to assist them from the cars at the point of de- barkation." ^ Now, in so far as this case hohls that the known disability of the i:)assenf»er casts no addi- tional duty on the carrier, it certainly is not sound. "In travel by ship, care and medical attendance are always provided by the company as one of the necessi- ties of the journey. In travel by rail no such neces- sitv exists, and therefore a railroad conipanv is under no obligation to furnish hospitals on wheels, or physi- cians or nurses to attend the sick on their journeys. But without hospitals, and Avithout ])hysicians and nurses of their own, still much can be done to alleviate the pains and aches of a sick passenger. While the train is in motion, the passenger is utterly helpless as to aid, except from those on the train. His fell<>w pas- sengers owe him no duty except humanity. The alter- native is presented of being cared for by his fellow pas- sengers, by the company, or to writhe in pain and sick- ness until relieved by death or the end of his journey. By taking passage and ])ayiug his fare, the relation of § U)7. 1 New Orleans. J. cV: G. N. U. Co. v. Sl.iih.iiii, 4-_* .Miss. GOT, fnlldwed in I'ullmau Palace-Car Co. v. HaikiT, 4 Colo. WW. In tlu> Mississippi case it was lield that the failure to stop a train at a station a sufficient length of time to enable a siclv passenger to get off does not render the company liable, where tlie conductor stopped the train a second time within r,(> feet of tlic plailonii. and liad the passenger carried on a chair into the station house, with ilie assist- ance of the company's employes, though he refused to back the train into the station. No fault can justly be found with tliis decision, but the language in the opinion quoted in tlie text is too sweeping. V. 1 FET.CAR.PAS. 17 (257) § 107 CARRIERS OF PASSENGERS. (Ch. 8 carrier and passenger is established between tbe com- pany and himself, and, as he is nnder the control of the company for many purposes, and debaiTed by the rapid movement of its train from receiving aid from the out- side world, it would seem to follow, as a necessity of the situation, that those who have received Ms money, and are thus rapidly transporting him, should assume the obligation of taking reasonable care of him, in case of sickness while on the train. The obligation is on the company, not only for the benefit of the sick per- son, but also for the comfort, and sometimes the safety, of other passengers. A sick person, by his cries and moans, may so annoy the other passengers as to re- quire his removal to a separate department of the train. In case of smallpox or cholera, or other contagious dis- ease, the comfort and safety of the other passengers would demand the early removal of the afflicted pas- senger. The company would in such case be charged with the duty of removal, and reasonable care there- after, until the afflicted person could be otherwise cared for." ^ It was accordingly held that, where a passenger becomes ill during the journey, the railroad company is under obligation to give him such care as is fairly practicable, with the facilities at hand, with- out thereby unduly delaying its train, or unreasonably interfering with the safety and comfort of its other passengers.^ And if the company voluntarily accepts 2 Lake Shore & M. S. Ry. Co. v. Saltzman, 52 Ohio, 558, 40 N. E. S91, affirming 9 Ohio, C. C. 230. 3 Id. In this case it was held that a passenger assisting in cairy- ing a sick passenger from one ear to another may recover for injuries sustained in stepping between the platforms, where there was not (258) Ch. 8) DUTY TO PASSENGERS UNDER DISABILITY. § 107 a person as a passenger, without an attendant, whose inability to care for himself is apparent or made known to its servants, and renders special care and assistance necessary, the company is negligent if such assistance is not afforded. In such a case, it must exercise the degree of care commensurate with the responsibility which it has thus voluntarily assumed, and that care must be such as is reasonably necessary to insure the safety of the passenger, in view of his physical and mental condition. This is a duty required by law, as well as the dictates of humanity.* The practical applications of these principles have been quite numerous. Thus a sick passenger on a street car is entitled to be treated as such, the conduct- or knowing of his condition." Where the only passen- ger on an electric car is taken suddenly ill, and re- quests the conductor to stop the car, so that she can get off, it is for the jury to say whether the conductor was negligent in refusing her request, and leaving her uncared for, when there was no other person at hand to render her assistance.' The fact that a passenger's arm was broken before he undertook a journey does not debar him from recovering for injuries sustained in a railroad wreck, though he would have escaped injury had he been physically sound.' A railway caiTier of passengers has no right, where care and diligence can suflifiont liyht to enable a person to see the danger, and no warning was given. * Croom V. liailway Co., 52 Minn. 296, 53 N. W. 1128. 6 Atlanta Consol. St. Ry. Co. v. Hardago, 93 Ga. 457. 21 R. R. 100. e McC'ann v. Railway Co. (N. J. Err. & App.) 34 Atl. 1052. 7 Allison V. Railroad Co., 42 Iowa, 274. (259) §108 CARRIERS OF PASSENGERS. (Ch. 8- prevent it, to leave a helpless passeiii;er, who has fallen from one of its trains, through its negligence, in a sit- uation of known danger; and where it knows of the fact that he is lying on the track in an unconscious con- dition, it must use proper care and diligence to prevent injury from passing trains.' Where an upper tier of berths in the steerage gives way in the nighttime, and a passenger in one of the lower berths, believing that the ship is going down, becomes paralyzed with fear,, she is entitled to such care in removing her from the berth as will furnish her protection in her prostrate condition; and the steamship company is liable for injuries sustained from the rolling of the ship, while she was lying on the floor, unable to control herself,, after her removal from the berth, ^ § 108. SAME-DUTY IN RECEIVING AND DISCHAR- GING. A passenger, blind, aged, sick, or infirm, whose con- dition is known to the carrier, is entitled to more care and attention, as well as to greater time and assist- ance, in getting on and off, than a physically sound pas- senger.^ Where a railroad company knows of an in- 8 CiiKinnati. 1., ^^t. L. & C. R. Co. v. Coopt-r. 120 Ind. 469, 22 N. E. 340. A coiuluctor, who is infonned of the diumess of vision and en- feebled toiulitioii of a passenger, should use such care as the passen- ger requires to prevent injury. Columbus, C. & I. C. Ry. Co. v. Pow- ell, 40 Ind. 37. 9 Smith V. Packet Co., 86 N. Y. 408, affirming 46 N. Y. Super. Ct. 86. § 108. 1 Hanks v. Railroad Co., 60 Mo. App. 274. A street-railroad company must stop its cars a sufficient length of time to enable a passenger to alight in safety. The length of such time must neces- (2G0) €h. 8) DUTY TO PASSENGERS UNDER DISABILITY. § 1U8 firmity of a female passenger, which renders it nnsafe for her to alight without the aid of a footstool, the fail- ure of the company to proyide a footstool, as was its custom, is a fact from which a jnrv mav infer negli- gence." A railroad company, howeyer, is under no obligation to furnish personal assistance to an iiilirm passenger in alighting, if its train hands haye no knowledge of the infirmity," But a conductor who knows that a passenger on his train is suffering from a disease which requires her to haye special assistance in getting on and off must furnish it.* sarily depend on the oiroumstanoes of <\'uli cnse. amonc: which are the a^e and condition of the passensor. A person wlio is a cripple, or otherwise feeble and infirm, is entitled to consideration on that account. Colt v. Railroad Co., 33 N. Y. Super. Ct. IS!), atlirnied in 4!» N. Y. (171. In determining: whether a train stoi)ped a reasonable lenjirh of time to permit a female passenger. (!."> ye;us old. and weisli- ing 170 pounds, to alight, the .liu'.v may talie into consideration her age. sex, and physical condition. Iliclvman v. Railway Co., 1)1 3Io. 433, 4 S. W. 127. See, also, ante, § 66 et seq. 2 Madden v. Railroad Co.. 3r> S. C. 381. 14 S. E. 71.3. 3 Daniels v. Railroad Co., 96 Ga. 786, 22 S. E. 5)56. 4 Madden v. Railroad Co.. 41 S. C. 440. 1!) S. E. {)ri1. and 20 S. E. <)5. A passenger was taken sick during his journey, and I'cceivod .some attention from the train hands. The train stopped at his des- tination for two niinulcs. No one saw tlie siclv passenger alight, but shortly afterwards lie was fomid beside the track near llie station l)latf()rni so severely injured by the train tliat he died soon after- wards. Held, that it i-ould not be said, as matter of law. that tlie failure of tlie train hands to assist liim in aligliting was nciiligence; and that tlie finding of tlic tri;il judge, trying llie cast' witliout a jury, that it was not, could not be set .aside on appeal. Hr.idy v. Railroad Co., 162 Mass. 408, 38 X. E. 710. (201) § lOU CARRIERS OP PASSENGERS. (Ch. 8- § 109. SAME — EJECTION AND CARRYING PAST DESTINATION. Although a comniou carrier of passengers owes obli- gations to its well passengers, as well as to those who are sick, and is bound to protect the rights of both; and although, when the condition of one passenger, from sickness or otherwise, is such as to be inconsist- ent with the safety, health, or even comfort of his fel- low passengers, regard for the rights of the latter will authorize the carrier to terminate the carriage, by ex- cluding him, — yet this right cannot be exercised arbi- trarily or inhumanly, or without due care and provi- sion for the safety and well-being of the ejected passen- ger.' The duty of the company to such a passenger § 109. 1 Conolly v. Railroad Co., 41 La. Ann. 57, 5 South. 259, and G South. 52G. In this case it was held that a passenger stricken witli apoplexy while riding in a street oar, although attended with severe vomiting, to the inconvenience and great discomfort of other passen- gers, cannot be removed while in a speechless and helpless condition, and laid in the open sti-eet on a bleak, drizzling December day, and there abandoned, with no effort to procure him attention, without a violation by the carrier of its duty as such, aud liability for resulting damage. It was further held that the mistake of the driver in sup- ])osing that the passenger was drunk, when the latter had ridden a considerable distance without misbehavior, and had been guilty of none, except the vomiting occasioned by his illness, cannot excuse the company. The court said: "It should need no parade of learned au- thorities to maintain the proposition that a common carrier cannot treat an unfortunate passenger stricken with apoplexy while under its charge, in the manner above indicated, without a breach of its plainest obligations of its contract of carriage. If there were any precedent to the contrary, humanity would revolt at it, and it would be one more honored in the breach than in the observance." In Lemont v. Railroad Co., 1 ?»Iaekey (D. C.) 180, however, it was held (2G2) Ch. 8) DUTY TO PASSENGERS UNDER DISABILITY. § 109 does not end, however, with his removal from the train, but it is bound to the exercise of reasonable and ordi- nary care in temporarily providing for his protection and comfort. But it performs this duty to a passen- ger without friends or money, when it carefully and prudently removes him from its train, and promptly places him in charge of the overseer of the poor.' that a conductor of a street car may remove from the car a person ■who has been guilty of disorderly and annoying conduct; and the fact that it afterwards appears that the passenger was sicli will not ren- der the company liable, where the passenger did not inform the con- ductor of the fact, and the conductor believed him to be drunk. 2 Atchison. T. & S. F. R. Co. v. Weber. 33 Kan. 543, 6 Pac. 877. Where a passenger on a train breaks out with eruptions, and the best medical advice that can be obtained is unable to disclose whether they proceed from smallpox, and the prior conduct and statements of tlie ])assenger warrant a well-grounded, clear, and honest belief that smallpox is developing, the ofticers of the train are justitied in eject- ing him, Though it afterwards turns out that they were mistaken. But they must eject him at a place where he can obtain accommoda- tions and medical treatment. Faddock v. Railroad Co., 37 Fed. 841. A lunatic was traveling with his father, who liad paid fare for botli. The father got off at an intei-mediate station for refresliments, and on his return to the train was unable to find the lunatic, who had changed his seat. The conductor, in the absence of the father, ap- plied to the lunatic for his ticket, not knowing him to be insane, or that his fare had been paid. Ou refusal of the lunatic to surrender his ticket or pay his fare, the conductor put him off the train at another station. Held that, since the conductor was ignorant of the fact of insanity, the company was not liable for the death of the lunatic, caused by being nm over by auotlicr train. Willi tts v. Rail- road Co., 14 Barb. (N. Y.) 585. A conductor wlio, in accordance witli the request of a disabled passenger, with i)aralyz;ed liands, claiming to liavo a ticket in his pocki-t. undertakes to search for the ticket, should do so properly, and in good faith and with rea.sonable diligence; but only so far as the passenger liimself asks. If the passenger lim- its his request to a .search of one pocket, Avhich he designates, the con- (2G3) § 109 CARRIERS OF PASSENGERS. (Cll. 8 Two cases from Mississippi ou this subject serve to show how the facts of each particular case control the courts in their announcement of general principles. In Sevier v. Vicksburg «Jc M. E. Co. it was held that, thouo-h a i)assenger is sick and drowsy when he enters a train, and informs the conductor of this fact, the con- ductor is not bound to arouse him at destination, and his promise to do so imposes no obligation on the rail- road company, and does not render it liable for carry- ing him four miles past his destination, compelling him to walk back in the nighttime.^ In Weightman v. Louisville, N. O. & T. Ey. Co. it was held that where a passenger, seriously ill, is accepted as such, with full knowledge of the conductor, under a promise that the i'duductor will take care of him, and assist him from the train, if necessary, the company is liable for his death, caused by being carried beyond his destination, diiftor is not bound to soarcli further, and may eject the passenger for refusal to pay fare after giving him a reasonable time to search for the ticket. Louisville, N. & G. S. R. Co. v. Fleming. 14 Lea (Tenn.) 12S, 150. :* 61 Miss. 8. The court said: "If persons siclc or under any dis- ability, which renders them unable to conform to the reasonable regu- lations for the community generally, are inconvenienced by tiieir dis- ability, they have no legal cause of complaint against the carrier, who undertakes to carry the public generally, according to a plan adopted to suit persons in a condition to travel, and not designed to meet the wants of those not In such condition. * * * Que too sick, or from any cause not able to do as travelers usually do in conforming to the usage in running trains for the traveling public, should avoid theui, or secure the assistance necessary to enable them to accomplish what is required of passengers generally. Cairlers are not required to adapt their methods to the circumstances of those not in condition to com- lily with the requirements made of travelers generally," (2G4) Ch. 8) DUTY TO PASSENGERS UNDER DISABILITY. § 110 and put off at night at a small way station, where he remained without care and attention for 40 hours.* § 110. CHILDREN The cases all recojjnize the rule that children of tender years are not to be treated as persons of mature years. This is a reasonable and humane rule, and any other would be a cruel reproach to the law.^ A com- mon carrier of passengers for hire is required to exer- cise the greatest care and precaution against the occur- rence of accidents, and to provide cars which will be safe, not only for the transportation of adults, but of infants as well.^ If, on account of a passenger's youth and inexperience, he is incapable of taking proper care of himself, the carrier is bound to exercise the highest care and vigilance necessary and proper to se- 4 70 Miss. .563, 12 South. .')S6. In this easo the court said: "That the wanton, feckless, inhuman conduct of the defendant in jiuttinu- an ahnost dying man from its train, under the revolting circumstances set out in the declaration in this case, creates liability on the wrongdoer's part, we do not hesitate to affirm. It was the wanton exi)osare to Almost certain deatli by the railroad company of one not a trespasser". — a passenger, to whom it owed a duty; at least the duty which com- mon humanity proclaims, and which the general law of civilized C'hristendom echoes, not to wantonly or recklessly injiu'e another. Trespa.s.sers on trains and tracks, wrongdoers and swinmmonwealth under the wide circuit of the sun." § 110. 1 Indianapolis. V. A: C. Ry. Co. v. IMIzi-r. 109 Ind. 179, 6 N. E. 310, and 10 N. E. 7<>. As ro the carrier's negligence in permitting children to ride on street-car jjlaifonus, see ante, § 85. 2 Metropolitan R. Co. v. Falvey, ■"') App. D. C. 176. (2G5) § 110 CARRIERS OF PASSENGERS. (Ch. S cure bis safety.^ Thus a railroad company is bound to jiive an 11 year old boy passenger, traveling unat- tended, such care and attention as his safety reason- ably requires or demands, in view of his tender years and presumable lack of experience, and much greater care than to an adult passenger.* So, where a 7 year old boy, without fault of his parents, wanders to a railroad station, and get? on a passenger train, it is- negligence for the conductor to expel him from the train at the next station, miles from home, without asking any one to look after his safety, or give him at- tention; and it is likewise negligence for the employes of another train, who discover him on the track a mile and a half from the station, to fail to stop the train, when it is within their power to do so, before it runs upon the child.' But the mere fact that a child 3 Philadelphia City Pass. Ry. Co. v. Hassard, 75 Pa. St. 367; West Philadelphia Pass. Ky. Co. v. (iallaslier, lUS Pa. St. .52-1. 4 Hemmiugway v. Railway Co., 72 Wis. 42, 37 N. W. 804. In thi.^ case it was held that the failuve of a conductor of a freight train ti> notify the boy that the train will not stop at the station platform, but at some distance beyond, warrants the jury in tinding that he did not exercise proper care and caution, which will render the company- liable for injuries sustained by the boy in jumping from the train to The platform, under the belief that he will be carried by the station. 5 Indianapolis. P. & C. Ry. Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310. and 10 X. E. 70. In the case of a boy nine years old, the duty of the carrier towards him while alighting must be performed with due re- gard to his apparent condition. Ridcnhour v. Railway Co., 102 Mo. 270, 13 S. W. 880, and 14 S. W. 760. Wliere it appears that passen- gers on an elevator are liable to lose their balance on its starting, and that the elevator car is not provided with a door, it is a question for the jiu'y whether the operator is negligent in starting the car witliouc instructing a nine year old child, his only passenger, as to how she can protect herself from falling, though ordinarily it woukl not be hi* (266) Ch. 8) DUTY TO PASSENGERS UNDER DISABILITY. §110" of tender years is permitted by the conductor to enter a passenger train at a regular station is not, of itself, sufficient to charge the company with negligence. No principle exists that requires railroad companies tO' keep watch to prevent persons, young or old, from en- tering their passenger trains at regular stations.^ So a carrier of passengers will not be held responsible for injury to a boy passenger caused by his own impru- dence, merely because of his age, — nearly 10 years.' In the case of children of tender years in the care of parents on a train, the carrier has a right to rely and act on the presumption that the pai'ent will take such care of them as the natural love of a prudent father or mother would prompt them to exercise under such cir- cumstances. But train hands, who see that children so traveling are or will be exposed to danger, or, see- ing them, and exercisi ag reasonable care and diligence, ought to know that they are or will be so exposed, liave no right to act upon such a presumption, and it is their duty to use all reasonable and practicable care and diligence to avoid the danger and avert the in- jury.^ But where a four year old child, a passenger on a street car, accompanied by a person of suflicieut age and discretion to take care of it, is put ofe the car by the conductor at the proper place, and the person duty to do so, McGrell v. Office Building Co., 90 Hun, 30, 35 N. Y.. Supp. 599. 6 Indianapolis, P. & C. Ry. Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310,. and 10 N. E. 70. 7 Cronan v. Railroad Co. (La.) 21 Sonth. 163. 8 St. Louis, I. M. & S. Ry. Co. v. Rexroad, 59 Ark. 180, 26 S. W, 10.37. (267) § 111 CARRIERS OF PASSENGERS. (Ch. 8 having charge of the child follows it, and both reach the street in safety, and are waiting for the passing of a car on a parallel track, the railway company is not responsible if the child runs towards the passing car, strikes it, and is thrown down and injured.* § 111. INTOXICATED PASSENGERS. Where the servants of a railroad company know that a passenger in a state of helpless intoxication is in a position of danger on a moving train, their failure to take him to a place of safety is negligence which ren- ders the company liable for his death. ^ But where a passenger's intoxication is not apparent, and the com- pany's employes do not in fact know of it, they are bound to use towards him only the care and prudence that a sober man would i-equire for his safety." Where a passenger, partially intoxicated, is riding on the platform of the car, it is the duty of the railroad <'(mipauy, after the conductor has notice of his condi- tion and exposure to danger, to use the ordinary pre- cautions, such as calling his attention to the danger, and the rules of the company forbidding such expo- sure, and inviting him to go inside the car. But, if the passenger fails to heed the warning or accept the in- vitation, the conductor is not required to use physical force to compel him to go inside, or put him off the train; and, where the passenger afterwards, without the conductor's knowledge, goes on the car steps, the 9 Schneidau v. Railroad Co., 48 La. Ann. 866, 19 South. '918. § 111. 1 St. Louis. A. & T. H. R. Co. v. Carr. 47 111. App. 353. 2 Strand v. Railway Co., 67 Mich. 380, 34 N. W. 712. 1208) Ch. 8) DUTV TO PASSENGERS UNDER DISABILITY. § 112 company is not liable for injuries sustained in falling, off, owing to the usual movement of the train.^ So where an intoxicated passenger reaches his destina- tion, voluntarily alights from his train at the station, makes arrangements for his baggage, and leaves the company's premises, and thereby ends all further obli- gations of the company to him, the company owes him no further duty as passenger, and is not responsible for his death, caused by his wandering back to the de- pot during the night, and lying down on the track, and falling asleep, where he is run over by a train.* § 112. SAME— EJECTION. While the right generally of railroad companies to put off their trains persons who refuse to pay their fare is unquestionable,' yet it does not follow that this riaht mav be exercised in such a manner, under such circumstances, or against a person in such mental or physical condition, as that death or serious bodily harm will necessarily or even probably result.^ If a passenger on a train is intoxicated to a degree to ren- der him unconscious of danger, — unable to take in his position, surroundings, and perils, and his duty to avoid them, — or he does not possess the power of loco- motion, and is put off the train by a conductor on ac- count of his misconduct, and the place where he is put off and left is dangerous to one in his condition, and 8 Fisher v. Railway Co., 39 W. Va. 366, 19 S. E. 578. * lUtzwadosfslde v. Railway Co.. 1 Tex. Civ. App. -187. 'J(t S. \V. ST2. § 112. 1 See post, e. 24. 2 Louisville. C. iV: S. R. Co. v. Sullivan, SI Ky. 624. / § 112 CARRIERS OF PASSENGERS. (Ch. 8 these facts are known to the conductor, the latter is guilty of reckless and wanton negligence, rendering the company in whose employment he is liable for damages resulting from his negligence, although the person ejected and injured might have been legally ejected in a proper manner, and at a proper place. ^ Hence, where a conductor, with knowledge of the facts, ejects a helplessh' intoxicated passenger be- tween stations, on a bitterly cold day, for refusal to l)iiy fare, the company is liable for injuries caused by freezing while he was lying helplessly in the snow. And if a passenger is so intoxicated that he is uncon- scious of danger, cannot grasp his position and sur- roundings and his duty to avoid danger from passing trains, or does not possess the power of locomotion, the conductor, who knows the facts, is guilty of neg- ligence in putting him off in a deep cut, where it is difficult to avoid passing trains; and the company is liable for his death in the cut, caused by being run over by another train.* But where the place of ejection is not such as to make it difficult to avoid passing trains, and the weath- er is not inclement, the company is not required to car- ry an intoxicated passenger, whose conduct is offen- sive and dangerous, to the next station before putting him off. All that is required of the company is to use no more force than is reasonably necessary for this purpose, and to place him off the track, out of the way of that train; and the company, having exercised prop- 8 Louisville & N, R. Co. v. Johnson, lOS Ala. 62, 19 South. 51. ^ Louisville, C. & S. R. Co. v. Sullivan, 81 Ky. 624. (270) Ch. 8) DUTY TO PASSENGERS UNDER DISABIIJTV. § 112 ^r care in putting Mm off, is not liable by reason of the fact that he went upon the track, and was run over by another train. ^ And where an intoxicated passen- ger is removed from the car at a station, and conducted 15 feet from the track bv the head brakeman, the com- pany is not liable for his death, caused by his lying down on the track, and being run over by the train, the emploves on which exercised ordinarv care.° So a railroad conductor is not negligent in leading an intox- icated passenger from the car, and placing him about two feet from the edge of the station platform, and leaning him against some trunks; and the railroad company is not responsible for his death, caused by his losing his balance, and falling from the platform, though, if he had been placed further from the edge of the platform, no serious accident would' have hap- 2)ened/ Johnson v. Railroad Co., 104 Ala. 241, 16 South. 75; Louisville & A. R. Co. V. Ellis' Adm'x (Kj-.) BO S. W. 979; Louisville & N. R. Co. T. Logan, 88 Ky. 232, 10 S. W. 655. A railroad company is not guilty of any wrong in putting off, between stations, a passenger who is lighting di-unk, has engaged in a serious conflict with a brakeman and with another passenger, and who is suffering from no physical pa- ralysis, so as to render it liable for his death caused by being run over by a train some time during the night. Railway Co. v. "N'alleley, 32 Ohio St. 345. Where a drunken passenger has been carried past his , 10 Sup. Ct. 39. "Proximate damages are the ordinaiy and natural results of the particular negligence, and there- fore such as might have been expected." Jackson v. Railway, la Lea (Tenn.) 491. "The test for drawing the distinction between proxi- mate and remote cause, in reference to tlie consequences of negligence, is the consideration whether the chain of events was so linked together as a natural whole that the final result was the natural and probable con.sequence of the wrongdoer's act." Havei-ly v. Railroad Co., 135 Pa. St. .50, 19 Atl. 1013; Hoag v. Railroad Co.. So Pa. St. 293. "Proxi- mate cause" literally means the cause nearest to the effect produced, but, in legal terminology, the tenns are not confined to their literal meaning. Though a negligent act or omission be removed from the injury by intermediate causes and effects, yet, if the guilty party ought reasonably to have foreseen the ultimate consequences, such negligence is deemed in law the pr6ximate cause of the injurious effect. Gulf, C. & S. F. Ry. Co. v. Rowland (Tex. Sup.) 38 S. W. 757. "A person is expected to anticipate and guard against all reasonable con- sequences, but he is not, by the law of England, expected to antici- pate and guard against that which no reasonable man would expect (27G) <;h. 9) PROXIMATE CAUSE. § 113 essary that the wrongdoer should be able to anticipate The very occurrences which resulted from his laches; it is enough if, after they have happened, they are seen to have followed from his misconduct in the natural course of things, and within the reasonable range of probability; and it must be left to the jury to deter- mine, according to the circumstances, whether the facts fit the standard of naturalness." ' In actions for injuries to passengers, the following general rules have been laid down: "If the injury to a passenger result- ed from the negligent act of defendant, that act will be deemed the proximate cause, unless the consequen- ces were so unnatural or unusual that they could not have been foreseen and provided against by the highest practicable care." ^ "^Yhen the negligence of the car- rier is established, and is of a character greatly to mul- tiply the chances of accident which happened, and nat- urally leading to its occurrence, and when the evidence tends to connect the accident with the negligence, the mere possibility that the accident might have hap- pened, even without the negligence, will not relieve the carrier from liability. Courts consider the natural and ordinary connection of events, and will not indulge in fanciful suppositions." ^^ to occur." Greenland v. Chaplin. T) Exch.. at page 248. Sec, also, ante. § 12, as to the carrier's lialiilily tVu- unforesoen and nui'Xix'cteil accidents. 8 McCann v. Railway Co. (N. .J. Err. & App.) 34 All. 1052. » Louisville, X. A. & C. Ry. Co. v. I.ucas, 119 Ind. :>s:i, 21 N. E. 968. 10 Reynolds v. Railway Co., 37 La. Ann. 694. The nej^liReuce of a common carrier will be deemed the proximate cause of an injiwy to a passenger, whenever the accident might reasonably have been fore- seen by competent and experienced men, under all the circumstances, (277) §114 CARRIERS OF PASSENGERS. (Ch. 9 In conclusion it should be noted that the cases on the subject of proximate cause are divisible into two classes. In the first class the question is whether or not plaintiff has anvvcause of action whatever for de- fendant's wrongful act. In the second class the ques- tion is, conceding that he has a cause of action, wheth- er or not a particular injury which he has sustained is too remote to become an element of damages. The general principles governing these two classes are the same, but they will be kept distinct, as far as possible^ in the following discussion, which, of course, deals primarily with actions for injuries to passengers. § 114. PROVINCE OF COURT AND JURY. Whenever, on either the question of negligence or proximate cause, there may be reasonable dif- ferences of opinion as to the inferences or con- clusions which may fairly be drawn from the undisputed facts, the question is one of fact to be submitted to the jury; but, w^hen there is no room for such difference of opinion, the ques- tion is one of law for the court. The foregoing is believed to be the true rule in the United States, and the test as to the relative functions of the court and jury on the question of proximate cause is the same as on the question of negligence. Where the connection between the act of negligence and the damages is so remote as to leave no ground for differ- ence of opinion between fair-minded men as to wheth- ■wliile in the exorcise of extraoidiuary care and prudence. Davis v. Railway Co. (Wis.) 67 N. W. 1132. (278) Ch. 9) PROXIMATE CAUSE. § 114 er the negligence Avas the natural cause of the dam- age, the judge should decide it, and should not submit it to the jury; but where a substantial doubt arises as to whether the damage was the natural and proximate, or a speculative and remote, result of the negligence, the question should be submitted to the jury under proper instructions.^ Thus, where a pas^senger is wrongfully ejected in the nighttime i« a railroad yard with which he is entirely unacquainted, and while at- temjjting to find his way out of the yard, and just as he has crossed a track, is struck a blow in the rear, and rendered unconscious, the question whether his injury is the proximate result of the defendant's wrongful act is for the jury.- In some cases, however, it is said that § 114. 1 Dunn v. Railway Co., 21 Mo. App. 188, 198; Pittsburgh. C. C. & St. L. Ry. Co. v. Klitcli. 11 Iml. App. 290, 295, 37 N. E. 5G0. 2 Lake Shore & M. S. Ry. Co. v. Rosenzweig, 113 Pa. St. 519, 511. 6 Atl. 545. A female passenger, while alighting from a street car. "was thrown against the railing, hurting her right arm and left breasr. From that time on, the breast became sore Avhere struck, and a can rer shortly afterwards developed, ultimately necessitating the removal of the entire breast, without success in extirpating the roots of the disease; the cancer being pronounced incurabl(\ All the medical ex- perts testified that the blow was sufficient to have causetl the devel- opment of the cancer. Held, that it was a question of fact for the jury Avhether the cancer was caused by the blow, and their finding that it Avas could not be disturbed by the court. Baltimore City Pass. Ry. Co. V. Kemp, Gl Md. 74. "Where an intoxicated passenger is wrongfully put off a train, and is killed by another train wiiile walk- ing along the track to his destination, the iiucstiou wlicilicr liis re- moval was the proximate caus«> of his death is for the jury, and it is eiTor for tiie court to nonsuit plaintiff. <;uy v. Railroad Co., 30 Ilun. 399. It is for the jury to determine whether the negligence of a rail- road (■onii)any in failing to warn passengers that the train Is about to start is tlie proximate cause of an iajiu'y to a passenger, who \in- (27i>) §115 CARRIERS OF PASSENGERS. (Ch. 9 while it is undoubtedly true, as a general proposition, that the question of proximate cause is for the jury, yet where there are no disputed facts the court may de- termine it.^ ]u Eniiland, however, the rule seems to be that the question of remote and proximate cause is for the court in all cases. This certainly appears to be the rule in actions for breach of contract. In McMahon v. Field,* Brett, L. J., said: "The question of the remoteness of damages has become a difficult one, since, according to the case of Hadley v. Baxendale, 9 Exch. 341, it is for the court and not the jury to determine whether the case comes within am^ of the following rules, namely — First, whether the damage is the necessary conse- quence of the breach; secondly, whether it is the prob- able consequence; and, thirdly, whether it was in the contemplation of the parties when the contract was made." § 115. EXAMPLES OF PROXIMATE CAUSE. The wrongful act of a railroad company in leaving on the track, in a dazed condition, a passenger who has fallen from the train through its negligence, is the proximate cause of his death, resulting from being run dertook to pursue the moving ti'ain, and was struck by the engine of another company while so doing. Perry v. Railroad, 66 Ga. 746. 3 South-Side Pass. Ry. Co. v. Ti-ich, 117 Pa. St. 390, 11 Atl. 627. When there is no conflict in the testimony, and all the causes to pro- duce an injury are known and unquestioned, whether a given act in the chain of causation is the remote or proximate cause of the injury is a question for the court. Henry v. Railway Co., 76 Mo. 288. * 7 Q. B. Div. 591. (280) Ch. 9) PROXIMATE CAUSE. § 115 over by another train.^ Where a driver of a stage coach requires passengers to get out and walk up a mountain side on a bitterly cold day, during a blinding snowstorm, and fails to wait on the summit for two passengers who have been unable to keep up with the coach, the proximate cause of an injury to one of such passengers, whose limbs are frozen by the exposure, is the reckless and inhuman conduct of the driver in de- serting the passengers.- The failure of the carrier to eject or restrain a passenger whom it knows to be vio- lently insane is the proximate cause of the death of a fellow passenger, shot by the insane passenger.^ Fail- ure of a railroad company to light its station plat- form in the nighttime is the proximate cause of an in- jury to a passenger, who is injured by a misstep while walking along it to the train.* Negligence in sudden- § 115. 1 Cincinnati, I., St. L. & C. R. Co. v. Cooper, 120 In.l. 4ri9, 22 N. E. 340. 2 McClelland v. Burns. 5 Colo. 390. 3 Meyer v. Railway Co., 4 C. C. A. 221, 54 Fed. 110. In order to charge the company with the duty of restraining the insane passenger. It was not necessary that it should foresee that if he was not re- strained he would kill the deceased passenger. If the situation was sucli that the company should have foreseen a reasonable possibility of injury being caused by the presence of the insane man on the train, then the obligation to take proper at-tion for the protection of passengers arose, although the company could not possibly anticipate which one of the passengers might be injured by him. in case he was not restrained, nor whether or not his violence woiUd cause death. 4 Alabama G. S. R. Co. v. Arnold, 80 Ala. OUO, 2 South. 337. A female passenger, over To years old, was set down in the dark at a country depot, not opened or llglited, and no one was there to give her information. She left the depot to search for a highway on which the house where she was to stay was situated. Failing in this at- tempt, she returned to the depot; and, in trying to reach the other (I'Sl) §115 CARRIERS OF PASSENGERS. (Ch. ly starting a street oar while a passenger is getting on the step is the proximate canse of an injury to a violin carried by him, which struck against a pillar beside the track as he was thrown from the car.' The negli- gence of a railroad company in permitting the gate of one of its cattle cars to be out of repair is the proxi- mate cause of injury to a shipper of stock, who, while endeavoring to secure the gate with a rope, was run over by the cattle, which had become frightened by the noise of a passing freight train. "^ The only passenger in an electric street car, a girl 18 years old, became sud- denly ill, told the conductor she felt sick, and twice requested him to stop the car, so that she might get off. He failed to do so, and, going to the front of the car, began talking to the motorman. Plaintiff, growing- worse, and becoming frightened and dazed, rose to her feet, and staggered towards the rear of the car, and there fell, unconscious, through the door. It was held that it was for the jury to determine whether the con- ductor's negligence in failing to stop the car, or to ren- der plaintiff any assistance, was the proximate cause of her injuries.' An intending cabin passenger on a steamer sailing from a cholera infected port intended to forfeit his ticket, rather than make the voyage, if end of the building, to shelter herself from a cold wind, she fell from the platform, and was injm-ed. Held, that the jury was justified in findhig that defendant's negligence in failing to liave a light at the depot, or any person tliere wlio could give strangers information, was the proximate cause of the injury. Patten v. Railway Co., 32 Wis. 524. B Schals( lia v. Railroad Co., 19 Misc. Rep. 141, 43 N. Y. Supp. 251. 6 Texas & P. Ry. Co. v. Bigham (Tex. Civ. App.) 3G S. W. 1111. 7 McCann t. Railway Co. (N. J. Err. & App.) 34 Atl. 1052. (282) Ch. 9) PROXIMATE CAUSE. § 116 steerage passengers were on board. The agents of the steamer falsely and fraudulently represented that no steerage passengers were on board, and he took pas- sage. During the voyage cholera broke out among the steerage passengers and the crew, the vessel was de- tained in quarantine, and the cabin passengers were put to inconvenience and suffering. It was held that the false representations were the i^roximate cause of the suffering in quarantine.* § 116. EXAMPLES OF REMOTE CAUSE. A speed in excess of the rate allowed by city ordi- nance is not the proximate cause of an injury to a tres- passer, who attempts to board a moving freight train. ^ Eunning a train past a station at a greater rate of speed than permitted by law is not the proximate cause of injury to one who voluntarily undertook to jump from the train.- Failure to stop a street car at the place where the conductor said it would stop is not the 8 The Normaniila, 62 Fed. 4G9. The damage did happen in part di- rectly from the subject-matter of the deceit, and not wholly from an independent cause, such as a cyclone or collision; and, as the pres- ence of the steerage passengers, and of the cholera among th( m. was certainly a contributing cause of the damage, that is sufficient to make defendant liable. § 116. 1 Western Ry. of Alabama v. Mutch, 07 Ala. 10-4, 11 South. 804. Same principle, Chicago, II. I. & P. Ry. Co. v. Koehler, 47 111. App. 147. In an action for injuries to a passenger sustained through falling down a .^airwaj' at a station, it is not enough to show that the stairs were of improper construction or in defective condition, but it must further appear that the fall was caused thereby. Davis v. Hnil- way Co., 2 Fost. & F. .'jSS. 2 Howell V. Railroad Co. (Miss.) 21 South. 74G. (2S3) § 116 CARRIERS OF PASSENGERS. (Ch, 9 proximate cause of injury to a passenger who under- took to leave tlie car while in motion, without making a further effort to stop it.^ Failure to heat a car is not the proximate cause of injury to a passenger who was thrown from the platform while passing from car to car in search of a warmer one.* A horse car in which plaintiff was riding approached a wagon, loaded with lumber, coming from the opposite direction, and using the parallel rails of the street-car track. When this wagon was abreast of the car, its driver suddenly turn- ed off the track, and a piece of the iH'ojecting lumber was thrust through the car window, striking plaintiff. It was held that the fact that the car was traveling at an unusual rate of speed was not the proximate cause of the accident, and that the street-car company was not liable.^ A mixed passenger and freight train was stopped at a station where there was no station house. The locomotive was emplo3'ed for some time in switch- ing cars onto a side track, and then returned with sev- eral freight cars to be coupled to the train. The coup- ling was done in the ordinary manner, and the concus- sion was not unusually violent. But a child, nearly three years old, standing on the platform of the pas- senger car, was thrown from it, and under the wheels. The child's mother, who observed the accident, jumped 8 White V. P.ailway Co., 105 Mass. 522, 43 N. E. 298. Failure to stop a street car on request is not tlie proximate cause of an injury result- ing from the act of the passenger in jumping from the car while in motion. North Chicago St. R. Co. v. Wrixon, 51 111. App. 307. * Sickles V. Railway Co. (Tex. Civ. App.) 35 S. W. 493. G Alexander v. Railroad Co., 128 X. Y. 13, 27 N. E. 950, reversing 59 Hun, 010, 12 N. Y. Supp. 085. (284) Ch. 9) PROXIMATK CAUSE. § 116 from the car, tlirnst her arms under the wheels, and saved her child, but her own arm was caught under the wheels, and badly broken. It was held that the fail- ure of the company to erect a station house at that place for the accommodation of passengers was not the proximate cause of the accident.*^ A wife, expecting her husband to arrive on a train in the evening in an intoxicated condition, sent her two sons to the station to bring him home. They were ordered from the depot by the agent in charge, without justification or excuse. After the boys had left, the husband arrived on the train, drunk, but knowing what he was doing. He left the train and the station, but returned some time during the night, went to sleep on the track, and was killed. It was held that the wrongful act of the ticket agent in driving the boys from the depot, thus prevent- ing them from conducting him home, was not the prox- imate cause of his death.^ Failure to stop a train as it passes a station house is not the proximate cause of an injury to a passenger, who follows the conductor to the open door of a car, to request him to stop it, and « De Mahy v. Steamship Co., 45 La. Ann. 132!), 14 South. Gl. 7 Rozwadosfskie v. Railway Co., 1 Tex. Civ. App. 487, 20 S. W. 872. **At the time the agent required the boys to leave the depot, ne did not know deceased was drunk, and would arrive in that condition, nor did he know that they were sent there to protect him on the way home on acef)unt of his expected helplessness from intoxication. He only knew that they were there to meet him. This being so, the wrong was too remote from the injury to create liability. Had he known all the facts, then his act would have included all its reasonable and probable conseiiuences flowing therefrom. He and his jiriii iiial could be held culi)ablc only for what was known to him, or wiiat he would be presumed to know." (285) § 116 CARRIERS OF PASSENGERS. (Ch. 9 whose finger is jammed by the slamming of the door, caused by the stopping of the train.* Before a passen- ger had time to enter a horse car, it started off at a rnpid rate, and, while she had one foot on the car plat- form and the other on the car step, the driver suddenly whipped up, and she was bounced from the car. She alighted on her feet without injury, but was almost im- mediately struck by a runaway horse, and severely in- jured. It was held that the proximate cause of the ac- cident was the runaway horse, and not the negligence of the driver.^ The failure of a railroad company to 8 Hardwick v. Railroad Co., 85 Ga. 507, 11 S. E. 832. The fact that a compartment on a train was negligently permitted to be overcrowd- ed is not the proximate cause of an injurj^ to a passenger in that com- partment, wlio at an intermediate station stood up to prevent other persons from entering the compartment, and who was jei'ked forward by the starting of the train, and put his liand on the hinge of the carriage door at the veiy moment it was being shut by the porter, thus crushing his thumb. Railway Co. v. Jackson, L. R. 3 App. Cas. 193. s.South-Side Pass. Ry. Co. v. Trich, 117 Pa. St. 390, 11 Atl. 627. "It was certainly not a natural consequence of a person being upon a street that he would be struck by a runaway horse. Nor is there the slightest reason for saying that it would be a probable consequence. The utmost that can be said would be that such a consequence might possibly happen. But things or results which are only possible can- not be spoken of as either probable or natural." Id. Where two street-railway cars, going in opposite directions, are approaching each other, and the conductor of one of them neghgently fails to stop the car to allow a passenger to alight, or negligently allows a woman or ch'ld, being a passenger, to leave the car while in motion, and such passenger, nevertheless, does alight safely on the opposite side from ■which the car is approaching, and, immediately turning to cross the street, is nin over by the other car, the negligence in failing to stop the car, or to prevent the passenger from alighting, is not the proxi- mate cause of the injury, as matter of law, and it is error to submit (2SG) Ch. 9) PROXIMATE CAUSE. § 117 l^rovide separate cars for tlie accommodation of white and colored ])asseugers, as required bj law, is not the proximate cause of an assault by a white passenger on n colored passenger, riding on the platform of a car." 3 Jobbery committed from the person of a passenger trav- eling in an overcrowded railway carriage is not such a natural and probable consequence of the overcrowd- ing as to make the company liable to the passenger, even if the overcrowding was caused by the negligence of the company's servants.^^ § 117. INTERVENING CAUSE. One of the most valuable criteria furnished us by the authorities on the subject of proximate cause is to as- certain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened, of itself sufficient to stand as the cause of mischief, the other must be con- the question to tho juiy. Dunn v. Railway Co., 21 Mo. App. 188. The act of tlie driver of a street car in strilving a trespassing boy witli a wliip, to make liim let go of tlio car bralce. is not the proximato cause of an injury 1o tlie boy, wlio thereupon jumps from the car. nud runs on a parallel track, wliere he is struck by another car. Mack V. Railway Co., 8 Pa. Co. Ct. K. 305. 10 Royston v. Railroad Co., 67 Miss. 370, 7 South. 320. 11 Cobb V. Railway Co. (House of Lords, 181)4) G Reports, 203, af- firming [1893] 1 Q. B. 450. An insurance company which lias paid a policy on the life of a deceased person, killed by tlie negligence of a railroad company wliile a passenger, cannot recovet from the rail- road company the amount paid by it, since the loss of the insurance company is a remote and indirect consequence of the misconduct of the railroad company. Connecticut Mut. Life Ins. Co. v. New York ic N. H. R. Co., 25 Conn. 205. (287) §117 CARRIERS OF PASSENGERS. (Ch. 9 sidered as too remote/ Thus a railroad company is not liable for the death by suicide of an insane person, who, eight months before, had been injured in a rail- road wreck, which produced the insanity. The prox- imate cause of the death was the insane man's own act of self-destruction. It was a new and a suiflcient cause of death. "The argument is not sound which seeks to trace this immediate cause of death through the previous stages of mental aberration, physical suf- fering, and eight months' disease and medical treat- ment to the original accident on the railroad. Such a course of possible, or even logical, argument would reach back to that ^great first cause, least understood,' in which the train of all causation ends. The suicide was not a result naturally and reasonably to be ex- pected from the injury received on the train. It was not a natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train." ^ The failure of a railroad company to stop its train at a station, and the command of the conductor to a passenger to jump from the train, are not the prox- imate causes of injury to such passenger, who alighted safely on the platform, but who was run into by a fel- low passenger, and thrown under the train by force of the collision.^ The negligence of a railroad company in permitting a locomotive, with banked tire, to stand § 117. 1 Insurance Co. v. Tweed, 7 Wall. 44, 2 Scheffer v. Railroad Co.. 105 U. S. 249. 8 Reibel v. Railway Co., 114 Ind. 476, 17 N. E. 107. The negli- gence of a carrier in leaving a hatchway on one of its boats open does not render it liable for injuries to a passenger, who was vio- (288) Ch. 9) PROXIMATE CAUSE. § 117 on a side track, witli several intervenin.o; tracks and switches between it and tlie main track, is not the proximate canse of an injury to a passenger on another train, in a collision with the engine, which Avas wrong- fnlly and malicionslv taken from the side track and run on the main track, and started along it, by some third person/ A shipper of stock, in the nighttime, Avent to the railroad yards to take passage on the train carrying his stock. He entered the caboose, and was told by one of defendant's servants that he could not remain inside, because the train was not ready. After remaining a short time on the platform of the caboose, the drover alighted, and while standing on an adjoin- ii)g track he was injured by another train. It was held that his expulsion from the caboose was not the proximate cause of his injury, since the spontaneous action of an independent will intervened between the lently pushed or pulled into it by strangers. Evnnsville. C. & M. ?!. Co. V. AA'ildmau. 63 Ind. 370. Where a street car which has gotten out of the control of the company's servants is running rapidly down grade, and a ]\Tssenger is pulled or crowded off by her fellow passengers, the fact that she was surprised, excited, or bewildere(f dees not render the company liable for the intervening agency that ] lulled or crowded her off the ear against her will. .Toliet St. Ry. (V). V. Mcrarthy, 42 111. App. 4!>. The failure of a railroad company to sitop its train a reasonably sufficient length of time to enable pas- sengers to get off is not the proximate cause of an injury to a child. Avho was put off the train, after it had started, by a fellow passenger, if the jury finds that the act of the fellow passenger was not a natural and probable result of the comjiany's negligent act. The act of the fellow jiassenger is an intervening cause, which relieves the company from liability. Texas & P. Ry. Co. v. Beck worth (Tox. Civ. App.) .•'►2 S. W. 347. 4 Mars v. Canal Co., 54 Hun, 025, S X. Y. Supp. 107. V. 1 I-ET.CAR.PAS. 19 (289) R 117 CARRIERS OF PASSENGERS. (Ch. U two events.' The mere fact that a trespasser on a train is intoxicated, but not unconscious, or in a stu- por, does not render his rightful expulsion from the train at a point not dangerous, and with which he is familiar, the proximate cause of his death, resulting from his being struck by another train while on the track.*' The assurance of the conductor of a stock train to a drover that cabooses would not be changed at a certain station is not the proximate cause of an in- jury to the drover, w ho got off the train at that station to examine his stock, and who climbed upon a stock car as the train started, and walked backward to the ca- boose, which was kicked from the train just as he was about to step on it, precipitating him to the track.' 5 Henry v. Railway Co., 76 Mo. 288. G Loui.sville & N. R. Co. v. Johnson, 92 Ala. 204, 9 South. 269. -"Left where passing trains would not injure him without some in- tervening agency, if he afterwards wandered on the track, and placed himself in a i>osition of peril, it was his own carelessness, for which defendant was not responsible." McClelland v. Railway Co., 94 Ind. 276. Where a drunken passenger is ejected at a station, and then lies down on the track, and is run over and killed by another train an hour later, about 200 yards from the place of ejection, the death is not the natural and probable consequence of the ejection. St. Louis & S. F. Ry. Co. V. Williams (Tex. Civ. App.) 37 S. W. 992. The expulsion of a drunlven passenger from an electric car, shortly after sunset, upon a public highway, and near dwelling.^, is not the proxi- mate cause of his death, caused by his wandering on defendant's tracks, and being struck by another car. Edgerly v. Railroad Co. S. \N'. 1117. (291) §117 CARRIERS OF PASSENGERS. (Ch. 9' track was an efficient intervening canse, and the engi- neer could not anticipate tliat liis failure to give the signals would injure a passenger at the station.** AVhile the combination of circumstances in this last case are remarkable, a recent case from Texas furnish- es a still more extraordinary chapter of accidents. A passenger carried with him into a train a sack contain- ing a jug filled with alcohol. He negligently placed the sack in a seat beside him, so that a part of the sack projected into the aisle of the car. Somehow or other the sack got untied, the jug fell on the floor and broke, and the alcohol was spilled. Another passenger, light- ing a cigar, carelessly threw a lighted match into the alcohol, and it blazed up to the ceiling of the car, burn- ing plaintiff, a third passenger, whose shoes and stock- ings had been saturated with the alcohol. It was held that the train hands, having no knowledge of the con- tents of the sack, were not negligent in permitting it to remain in the car, and that their negligence in per- mitting it to protrude over the seat into the aisle was not the proximate cause of plaintiff's injuries.^" But fright of a passenger at an impending peril caused by the carrier's negligence, which impels him to do some act that a person of ordinary prudence 9 Wood V. Railroad Co. (ISDn) IG Pa. Co. Ct. R. 2D0, affirmed 35 Atl. 690, where the supreme court of Peunsylvania said: "The in- jury to the passenger was not the natural and pre bable consequence of the nejjligence. It was not such a consequence as, under the sur- rciunding circumstances, might and ought to have been foreseen by the train hands as likely to flow from their omission to give the sig- nals." 10 Gulf, C. & S. F. R. Co, V. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652. (292) gligence in nds- placing the switch was the efticient cause of the injury. Caswell v. Railroad Co., 08 Mass. I'M. For contributory negligence of fright- ened passenger, see post, §§ lSo-188. (2ij;j) R 118 CARRIERS OF PASSENGERS. (Cll. ^ seen cause, results in damage to another, the wrongful act, and not the intervening cause, is considered the proximate cause of the damage/ (2) When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which it would not have happened, it may be attributed to all or any of these causes.' But in all cases the true rule is that the injury must be the natural and probable consequence of the negligence, such as, under the cir- cumstances, would have been foreseen by a person of average competence and knowledge, placed in defend- ant's situation, as likely to flow from his conduct. The leadino- case of this class is the famous Squib Case. There defendant threw a lighted squib into a building full of people. The person near whom it fell cast it from him, and a third person did the same. In this third flight, it struck plaintiff, exploded, and put out his eye. Defendant was justly held liable, notwith- standing the acts of the intermediate persons in cast- ing the squib from themselves.^ Another very good illustration is found in a recent case decided by the su- preme court of Pennsylvania. Defendant, the propri- etor of a coke furnace, used a railroad track in connec- § 118. ^ Salisbury v. Hei-clieuroder, lOG Mass. 458. 2 King V. City of Colioes, 77 N. Y. S3; Waller v. Railway Co., 59 Mo. App. 410. 3 Seott V. Shepherd, 3 Wils. 403, 1 Smith, Lead. Cas. 754. Where a vessel mounils ou a shoal through the negligence of her master and crew, and is inevitably impelled bj- wind and tide against plaintiff's sea Avail, the negligence of the master and crew is the proximate cause of the injury to the wall. Lords Bailiff Jurats of Roniney Marsh v. Corporation of Trinity House, L. R. 5 Exch. 204, L. R. 7 Lxch. 247. Ch. 9) PROXIMATE CAUSE. § 118 tion with his furnace. This track formed the arc of a circle, and was crossed twice by the track of a com- mon carrier railroad, which subtended the arc as a cord. Through the negligence of defendant's engi- neer, one of his engines on the furnace track collided, at one of the crossings, with a passenger train on the carrier track. Just before the collision, defendant's engineer reversed his engine, shut off the steam, and jumped to the ground. By the shock of the collision, the throttle on defendant's engine was reopened, and it started backward around the furnace track, and again collided with the passenger train on the second cross- ing, where it had been stopped, injuring plaintiff, a passenger. It was held that, though the shock of the first collision intervened to open the throttle, and to turn loose the destructive agency which inflicted the injuries, yet defendant was liable. Since the first col- lision was the result of the negligence of defendant's engineer, he must be bound to foresee whatever conse- quences might ensue from his negligence, without the intervention of some other independent agency, though, in advance, the actual result might have seemed im- probable. No intermediate cause, disconnected with the primary fault, and self -operating, existed to affect the question of defendant's liability. It was the en- gineer's negligence that caused the first collision, and what occurred in consequence of this collision was not broken by the intervention of any independent agent whatever.* Where a brakeman, on hearing a signal from the 4 I'.uiitiny V. Uogsett, l.'iO Pa. St. 3GL!, 21 Atl. 31, 33, 'M. (295) jj 113 CARRIERS OF PASSENGERS. (Oil, 9 o locomotive whistle, calls out in a loud voice, ''Jump for your lives," the fact that a fellow passenger there- after shouts, "Come on boys, let's get off," will not re- lieve the railroad company from liability to a passen- oer, Avho iiinn)ed from the car; no danger being in fact imminent.' Where a carrier is negligent in per- r. Ephland v. Railway Co., 57 Mo. App. 147. "If the negligent ac- tion of the brakeman was suih as might ordinarily be expected to prwluce panic among the passengers, and a belief of impending dan- ger, the fact that the resnlting action of the passengers added to plaintiff's terror, and operated as an additional inducement for his ac-tiun. will not relieve defendant." Id. The employes of a manu- faonu'cr undertook to move a freight car standing on a side track to a place on that track where they could load it more conveniently. The side track was on a down grade, and, owing to a defect in the l)r:ike rod, such employt's were unable to hold the car in- position, and it ran on the main track, injuring a passenger in a car stand- ing there. Held,' that the (luestiou whether the defective brake rod, and the failure of the trainmen to open the safety switch leading to the main track, were the proximate causes of the injury, was for the jury. St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448, 62 N. "\V. 887. The negligence of the engineer of a locomotive on an ele- vated train, in starting his engine when there are about 50 passen- gers on the track immediately in front of him, walking from the tijiin to the station platform, is the proximate cause of an injury to one of the passengers, who was pushed from the track, falling to the pavement bemath, by the other passengers, while endeavoring to get out of the way of the train. Lyle v. Railway Co., 53 Hun, (S7, G N. Y. Supp. 325. affirmed 127 N. Y. GG8, 28 N. E. 254; Mc- Cabe V. Railway Co., 53 Hun, 636, 6 N. Y. Supp. 418. The failure to light a depot platform may be considered as the proximate cause of an injury to a passenger, who, in the dark, stumbled over a box placed there by a third person. Waller v. Railway Co., 59 Mo. App. 4l(t. A stagecoach on which plaintiff's intestate was a passenger was thrown into a canal b.y the negligence of the driver. The lock ktH'per turned on the water, thereby causing the death, by drown- ing, of the passenger. Held, that the proprietor of the coach was liable. Byrne v. Wilson, 15 Ir. C. L. 332. It is dilficult to harmo- (296) Ch. 9) PROXIMATE CAUSE. § 119 mitting a passenger coach to stand on a crossing with another railroad, the fact that the negligence of the employes of the other road also contributed to the col- lision, and that such negligence may have been the im- mediate cause thereof, does not relieve the caiTier from responsibility.® § 119. PARTICULAR INJURIES— DISTINCTION BE- TWEEN ACTIONS ON CONTRACT AND IN TORT. When we come to consider the class of cases whei'e it is conceded that plaintiff has a right of action, but it is contended that a i)articular injury for which he claims damages is too remote, one great diflflculty which confronts us is the fact that the test of remote- nize this last case with a number of those cited iu the preceding sec- tion on the subject of intervening cause, and its soundness seems somewhat questionable. 6 Kellow V. Railway Co., 6S Iowa, 470, 23 X. W. 740, and 27 N. W. 406. A passeugtn- on a railroad train was injured at an intersectinir crossing in a collision with the train of another comiaiiy. The trad; of the carrier company had been signaled as clear, and it proceeded, without stopping, to cross the track of the other company. The track of the other company had been signaled as not clear, but its trainmen disregarded the signal, and thus caused the collision. Held that, as between the passenger and the carrier ctanpauy, the failure of its trainmen to stop the train for one minute before going on the crossing, as required liy statute, was negligence, and a sntliciently proximate cause of the collision to entitle tlie passenger to recover. Graham v. Railway Co.. 41 V. C. Q. R. :524. Where a street car is negligently started while a passenger is al)0Ut to alight, the com- pany is liable for all damages sustained l)y the pa.ssenger, though the fall is accelerated by the molion of tlic conductor's arm in en- deavoring to save her. :Macer v. Railroad Co., 47 N. Y. Super. Ct. 401. (297) §119 CARRIERS OF PASSENGERS. (Ch. ^ ness in actions for breach of contract differs from the test which obtains in actions of tort. This diflflcnlty is pecnliarly great in actions by passengers, since the relation of passenger and carrier exists by virtue of contract, and in Code states, where the formal distinc- tions in pleadings between actions of tort and of con- tract have been abolished, it is sometimes extremely difficult to say whether the action sounds in tort or on contract. The leading case on the subipct of remoteness of damages in actions on contract is Hadley v. Baxen- dale,^ where the rule is thus stated: Where a party has broken his contract, the damages w^hich the other party should recover should be such as may fairly and reasonably be considered to arise naturally — that is, according to the usual course of things — from the breach; or such as may reasonably be supposed to have been in the contemplation of both parties at the time thej' made the contract, as the probable result of its breach. This rule, though followed generally in England and in this country, has been subjected to a great deal of criticism. In a recent English case ^ it is said : "It is said that the rule is that the damages, to be recoverable, should be such as would be fairly in the contemplation of the parties at the time the con- tract was made; but in my opinion the parties never contemplate a breach, and the rule should rather be that the damage recoverable is such as is the natural and probable result of the breach of contract." If, in § 119. 1 9 Exch. 341. 2 Cotton, L. J., in McMahon v. Field, 7 Q. B. Div. 591. (298) Ch. 9) PROXIMATE CAUSE. § H^ actions for breach of contract, tne test of remoteness vrere whether the damages claimed are such as, at the time of the breach of contract, instead of its execution,, coukl be foreseen by a reasonable man placed in de- fendant's situation, and possessing his knowledge and opportunities of observation, as likely to occur, the rule in actions for breach of contract and in tort would be very nearly the same. Such a result would certain- ly do away with a great many very subtle distinctions, which have operated harshly and unjustly, so far, at least, as actions by passengers are concerned. Hobbs V. Kailway Co.' was at one time regarded as the leading authority on the question of the remote- ness of damages in actions by passengers for breach of the contract of carriage. In that case passengers were set down at midnight about three miles from their des- tination, and compelled to walk home. The night was drizzling, and one of the passengers caught cold, and contracted a severe illness, which lasted for several weeks. It was held that the inconvenience suffer^ in having to walk home was the immediate consequence of the carrier's breach of contract, and that damages therefor could be recovered, but that the cold and the illness were remote consequences, and that no recovery could be had therefor. This decision was place< N. Y. Supp. S04. Tor tin- wrongful act of a railroad company in cMUsiiig a passenger to alight In the evening at a station two miles from her destination, no re<-ov- ery can be had for injuries to plaintiff's health, caused by walking from such station to her destination, where she could have discovered a place to stay over night had she inciuircd, and she Uncw that Ikt health was such that she might be seriously affected by the walk. Id. V. 1 FI-T.CAK.PAS.— 20 (305) § 120 CARRIERS OF PASSENGERS. (Ch. 9 lighten the consequential damages as much as he can by the use of ordinary care and diligence. This ap- plies, in case of an expelled passenger, to the time and mode of traveling from the place of his expulsion to the station at which he was entitled to be set down. It applies also to fatigue, hardship, and injury to his health involved in reaching there.^ A female passen- ger, who is carried past her destination to the next station, where accommodations may be obtained, can- not recover for mental and physical suffering caused by walking back to her destination in a bitterly cold night. The fact that she did not know that accommo- dations could be obtained does not excuse her, if she made no inquiry of the station agent.'^ So the failure 6 Georgia R. & B. Co. v. Eskew, 86 Ga. &41, 12 S. E. 1061. 1 Texas & P. Ry. Co. v. Cole, 66 Tex. 562, 1 S. W. 629. If the fail- ure to malce an effort to procure slielter or a conveyance is due to tlie passenger's negligence in not having money with him to pay therefor, it is for the jury to say whether the walli is the result of such negli- gence, rather than the proximate consequence of the removal from the cars. Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea (Tenn.) 128, 155. Though a passenger is wrongfully ejected from a train at a station short of his destination, yet he cannot recover for the hardship sustain- ed in a drive of 45 or 50 miles, begun late in the afternoon, not to his destination, but to a place away from the railroad, where he wished to inspect some land. Chicago. B. & Q. R. Co. v. Spirk (Neb.) 70 N. W. 926. One who is wrongfuUy ejected from a train at a station, and vol- untarily leaves its shelter, and goes out and walks along the track, all night long, to his destination, in a storm, cannot recover for injuries caused by the exposure. Corrister v. Raih-oad Co., 25 Mo. App. 619. The fact that the driver of an omnibus compels a passenger to alight a mile from her residence on a cold winter's day, in the streets of a jiopnlous city, on the line of a street railway which passes close to her home, does not render the omnibus proprietor liable for a sickness from exposure to cold while walking home. Francis v. Transfer Co., Ch. 9) PROXIMATE CAUSE. §1-0 of a railroad train to stop at a station, and take on a passenger, is not the proximate cause of the passen- ger's sickness, resulting from his walking to the next station on an extremely cold day, but such sickness must be regarded as the result of the willful and wan- ton act of the passenger, who could have waited for the next train, due in a few hours, or have safely prose- cuted his journey by hiring a conveyance/ In a re- cent Indiana case, however, it is held that where a railroad compan}^ sets down a passenger at a place not her destination, and the passenger secures a team, and drives a distance of five miles to her destination, the court cannot say, as matter of law, that a sickness caused by the cold and exposure of the drive is due to her own negligence, or that it is not the proximate con- sequence of the companj^'s negligence; and a finding by the jury that the company is liable will not be dis- turbed.^ .5 Mo. App. 7. A passenger expelled at a point not a station eannot rer-over for an aggravation of a disease caused by a walk of six miles to his destination, where he might have walked back a quarter of a mile to the station at which he got on, or three-quarters of a mile to his own home, where he could have procured a conveyance. Chicago. R. I. & P. R. Co. v. Brisbane. 24 111. App. 463. A i>assonger wlio is ejected at a point not a station cannot recover, as part of his dam- ages, for an aggravation of a disease caused by unnecessarily walking to his home, several miles, when the station at which he boarded the train was within a few minutes' walk of the point of ejectment Ohio & M. R. Co. V. Burrow, 32 111. App. 161. 8 Indianapolis, B. & W. Ry. Co. v. Birney, 71 111. 391. 9 I'ittslmrgh, C, C. & St. L. Ry. Co. v. Klitch. 11 Ind. App. 290, 37 N. E. 560, disapproving Texas & P. Ry. Co. v. Cole, supra. (307) § 121 CARRIERS OF PASSENGERS. (Ch. 9 § 121. SAME -DANGERS ENCOUNTERED FROM FAIL- URE TO CARRY TO DESTINATION. If a railway carrier, instead of discharging a passen- ger at the place of destination called for by the con- tract of carriage, lands him at another place, from which he cannot reach the place of destination by any practicable route without encountering a serious dan- ger, and the passenger, immediately thereafter, pro- ceeding by the only practicable route to the place of destination, witJiout fault or negligence on his part, encounters such danger, and is hui-t, the hurt is a prox- imate consequence of the wrong done by the carrier.' Thus a passenger who is discharged at night at a place not his destination, and who, in walking to his destina- tion by the only practicable route, falls into a ditch,^ or a cattle guard,' or through a trestle,* of the existence of which he was ignorant, may recover from the rail- road company for the injuries sustained in the fall.° § 121. 1 Winkler v. Railway Co., 21 Mo. App. 99. 2 Houston & T. C. R. Co. v. Smith (Tex. Civ. App.) 32 S. W. 710. •T Winkler v. Railway Co.. 21 Mo. App. 99; Evans v. Railway Co- ll Mo. App, 4G3; New York, C. & St. L. R. Co. v. Doane, 115 Ind. 435, 442, 17 N. E. 913. i Houston & T. C. Ry. Co. v. Devainy, G3 Tex". 172. B A passenger was wrongfiilly eonipelled to leave the train in the (lark, several hundred feet from the depot, and at a point where she was compelled to walk along a side track to reach a highway. The conductor knew that she would be compelled to cross a cattle guard, but of this fact she was ignorant. She fell into it, and was very much friglitened by the placing of cars on the side track, while she was in the cattle guard; some of the cars approaching within 100 feet of her. Held, that the falling into the cattle guard, and the fright caused by the close approach of the cars, were the proximate (308) Ch. 9) PROXIMATK CAUSE. § 121 But a passenger who knows of the existence of the danger, and voluntarily chooses to encounter it, as- sumes the risk in getting- off at the wrong place, with- out requesting to be set down at his destination." This principle is illustrated in a Michigan case. A passenger was carried some distance past his station on a dark night, and on leaving the car he was misin- formed by the conductor as to where he was. He was well acquainted with the locality', and walked souther- ly along the track to reach a highway, but after pro- ceeding a short distance he discovered that he was already south of the highway', and retraced his steps. He walked carefully, because it was very dark, and he knew there was an open cattle guard on each side of the highway. When near the highway crossing, he was misled apparently by a visual deception, and moved forward under the supposition that the cattle guard, upon the brink of which he already stood, was some paces off; and this deception, combined with the slipping of his foot, caused him to fall into the pit. It was held that the wrong of the company in carrying consequences of the wrongful ad in fnilins to set her down at the depot. Stutz V. Railroad Co.. 73 AA'is. 147. 40 N. W. 653. A passen- ger on a freight train wa.*^ conippllod by the eonihiotor to get off on the raih-oad right of way, a quarter of a mile from the station. A barbed wii'e fenee prevented his getting off the right of way, and lie started towards the station, walking near the train, imtil his progress was barred by a t)ri(lge, on which a flat car, lorniing part of the ir.iin, was standing. He climbed on the flat cai'. and, reaching its fnml end. lie jumped to the ground. breai. \-2 S. W. (>;7, anil 13 S. W. .".0(>. e Winkler v. Railway Co., 21 Mo. Ai)i). 91). (:?00) ^121 CARRIERS OF PASSENGERS. (Ch. 9 him past his destination, and misinforming him as to his whereabouts, was not the proximate cause of the injury/ So the act of a railroad company in carry- 7 Lewis V. Railway Co., 54 Mich. 55, 19 N. W. 744. Cooley, C. J., said: "Before any iujuiy liad been sustained, the plaintiff discovered where he was, and started bark for the road he had intended to take. Whatever danger there was to be encountered in the way was to be found in the cattle guard, and this he understood and calculated upon." "The injury was an event Avhich happened unexpectedly and without fault. The defendant or its agents had not produced the deception or caused the foot to slip; and such wrong as defendant had been guilty of was in no measure connected with or related to the injury, except as it was the occasion for bringing the plaintiff where the accident occurred. It was after the plaintiff had been brought there that the cause of action unexpectedly arose. If lightning had chanced to strike the plaintiff at that place, the fault of defendant. an) PROXIMATE CAUSE. ^ - ino- a six Tear old .uirl and her father to the station be- yond the one to which it had agreed to carry them is not the proximate cause of an injury to the child, who while walking back along the track, became frightened by the approach of an engine on a parallel track, broke away from her father, and ran in front of the engme. Although a conductor is guilty of a wrongful act m requiring a female passenger, 16 or 17 years old, to get off the train, in the nighttime, before reaching her des- tination, a rape committed on her by a male passenger, who also left the train at that station, and who de- coyed her into a saloon under the pretense of conduct- ing her to an hotel, is not the direct and immedmte consequence of the conductor's wrongful act, where it appears that such station is not an inappropriate or unsafe place for a youthful and inexperienced female, traveling alone, to remain between trains.^ The neg- lio-ence of a railroad company in carrying a passenger hcalf a mile bevond her destination is not the proximat.. cause of an injury sustained from her manner of alight- ing, and not due to any defect in the place of alight- ing.^" , Ai r,iif p X^ «? F Rr Co. V. Jordan (Tex. Civ. App.) off whore he did. Gulf, u & ^• i • ^.^- '-"• 33 S. W. GOO. 8 Benson v. Railroad Co.. 98 Cal. 4.5. 32 Pac. 809. » Sira V. Railroad Co., 115 Mo. 127. 21 S. W. 905. 10 Texas & P Ry. Co. v. Woods, 8 Tex. Civ. App. 462, 28 S. ^^ . 41b. W Je a ;:«■ rightfully on a train leave, it in o.e.ience o he conductor's order, without any physical force being us,nl, an in.pn-y Gained >v the passenger by slipping as he is descending tl.e car s is no bo proxin.ate consequence of his wrongful ren.oval froin c Viiliamson v. Railway Co.. 17 U. C. C. P. 615. Negbgen r^r^in^a passenger beyond his s.ation is not tbe proxn..e c.u.e §122 CARRIERS OF PASSENGERS. (Ch. 9 § 122. SAME— UNUSUAL CONSEQUENCES OF PER- SONAL INJURIES. As a general proposition, one who wrongfully in- flicts a personal injury on another is liable for all the results on the human system produced by that injury, though such results do not at once fully manifest them- selves. Thus, where a blow on the head produces a degeneration or impairment of health of the blood ves- sels of the brain, and finally one of the blood vessels is ruptured, causing paralysis, the paralysis, though not occurring until seven months after the injury, may be ascribed to it as the proximate cause.^ Where pneumonia, caused by an injury received in the upset- ting of a stage coach, has developed into an incurable disease of the lungs, such disease may be considered a proximate consequence of the injury.^ Whether or not the failure of a railroad company to keep its sta- tion open, as required by statute, is the proximate cause of an illness of a passenger from exposure while standing on the platform, in inclement weather, wait- er an injury sustained by tlie passenger in attempting to get off the train when it stopped on a bridge for the purpose of taking on water. Illinois Cent. K. Co. v. Green, 81 111. 19. § 122. 1 Bishop V. Railway Co., 48 Minn. 2G, 50 N. W. 927. Where a blow received in a collision produces a bruise extending from a lit- tle below the lower rib to the shoulder blade, is followed by a swell- ing, afterwards by pleurisy, succeeded by consumption, from which th( injured person dies 10 months after the accident, it is a ques- tion for tilt' jury wlietlier tlie death was the proximate consequence of the collision. Hurley v. Brewing Co., 43 N. Y. Supp. 259, 13 App. Div. 107. 2 Sliafer v. Gilmer, 13 Nev. 331). (312) Ch. 9) PROXIMATE CAUSE. § 122 ing for a delayed train, is a question for the jury.' It has even been held that where an injury inflicted by the negligence of another is so serious as to produce death without a surgical operation, and the injured person employs a competent and skillful surgeon, and dies as the result of the operation, the original injury is the proximate cause of the death, though the sur- geon made a mistake of a nature which might have been made by the most skillful surgeon.* Injuries to women, while traveling, have given rise to some conflicting decisions. It may now be taken as the settled doctrine that where a physical injury to a female passenger causes a miscarriage, the carrier is liable for the sickness and suffering resulting therefrom, though its servants were ignorant of the woman's condition at 3 Boothby v. Railway, 6G N. H. :U2, 34 Atl. ir,7. The ncsli^Ji'iiee of a railroad company in falling to lieat a mail train in the winter will render it liable for the sickness of a mail agent caused thereby, resulting in lo'-s of the power of speech, unless his own negligence concurred in bringing on the illness. Tnrrentine v. Railroad Co., 92 N. C. 638. Where the failure of a sleeping-car company to properly heat its car brings on a violent cold, and produces permanent injury to plaintiffs eye, the question whether the injury to the eye is too remote as an element of damages is for tlie jury, and not the court. Hughes V. Car Co. (C. C. Mo.) 74 Fed. 4tMJ. If erysipelas springs from the Injury, the danger of that disease, as well as the sufferings produced by it, c-onstituto a portion of the injury itself. Houston & T. C. Ry. Co. v. Leslie. 57 Tex. 83. * Sauter v. Railroad Co.. 66 N. Y. .")(), attirming 6 Hun, 446. "He M-ould have died without the operation. Assuming that, by mistake of the surgeon, the operation was not successful, can it he justly said, In the first place, that tlic surgeon, and not the injury, killed him; and, in the second place, tliat tlic surgeon is to be regarded as a re- sponsiljle intervening tliird person, within the rule referred toV There is no authoritv that supports such a proposition." (313) § 122 CARRIERS OF PASSENGERS. (Ch. 9 the time of the injury. "To hold otherwise would be to require every pregnant w^omau to refrain from trav- el, to take all the risk of negligence of public carriers, or to proclaim her condition to the servants of the car- rier. We are not willing to sanction by our authority a rule that would so shock the delicacy, dignity, and sense of justice of our 'honorable women, not a few\' " * But in such a case damages cannot be recovered for loss of the unborn child. '^ Where injuries received by the sudden starting of a street car while a passenger is about to board it produces a premature birth a few days later, followed by tetanus, causing death, and there is evidence that tetanus, though comparatively rare, is one of the natural and probable consequences to be apprehended from childbirth and miscarriage, the question whether the injuries received in the street car were the proximate cause of the death is for the jury.^ In this connection, a Colorado case at variance with these decisions should be noticed. A sleeping car caught fire on a bitterly cold night in January. A 6 Mann Boudoir Co. v. Dupree, 4 C. C. A. 540, 54 Fed. 646. See, also, Sawyer v. Dulany, 30 Tex. 479. 6 Butler V. Railroad Co., 148 N. Y. 417. :is X. E. 4.54. reversing 4 Misc. Rep. 401. 24 N. Y. Supp. 142. "It is not in tlie interest of jus- tice to extend the field of speculation in jury trials beyond the present limits, and to sustain the ruling in this case would go beyond what has liitherto been sanctioned by the courts." ' Brasliear v. Traction Co. (Fa. Sup.) oC. Atl. 914. In this case it was said: "Tlie cau.sal connection was sliown. and the continuity of effect was traced through the succession of events. No other cause of death was assigned. True, it was shown that the disease was caused l)y specific infection, but by the same witnesses it wa.s shown that the miscarriage made the deceased especially liable to Infection." (314) Ch. 9) PROXIMATE CAUSE. § 122 female passenger, scantily clad, and in stocking feet, on leaving tJie car, was compelled to stand for a minute or two on the platform. By reason of this exposure, she caught a severe cold, which caused the cessation of her menses, and resulted in a long period of illness. It was held that the exposure was not the proximate cause of the illness, because her condition at the time was an independent intervening cause, appertaining exclusivelv to herself, with which the railroad com- pany had no concern, and to which it sustained no rela- tion, either by contract or by the general duty imposed by law upon carriers of passengers.' This decision has been justly repudiated, as being, not only unsound in point of law, but as brutal and inhuman.' The physical condition of an iujul'ed person has never been regarded as an intervening cause which would shield the wrongdoer from the consequences of his wrongful act; and it would be surprising, indeed, if this decision were followed anywhere in the United States. Suppose a personal injury undermines the vitality of the injured person, so that he becomes affected with « Pullman Palace-Car Co. v. Barker, 4 Colo. 344. 9 In Brown v. Railway Co., 54 Wis. 342, 11 N. W. 35G, 911, the court says of this decision: "It, in effect, says that, if an individual unlawfully compels a sick and enfeebled passenger to expose himself to escape worse consequences from his wrongful act, he cannot re- cover damages from the wrongdoer, because it was hi.s sick and en- feebled condition which i-endered his exposure injurious. Certainly Buch a doctrine does not commend itself to those kinder feelings which are common to humanity, and I know of no other case which sustains its conclusions." In Terro Haute & I. R. Co. v. Buck, im Inil. .'540, it is said that the Colorado case is not sustained by au- thority, nor can it be supported on principle. (315) § 122 CARRIERS OF PASSENGERS. (Ch. 9 a contagious disease prevailing in the neighborhood, and he dies of that disease; is the injury the proximate cause of his death, so as to render the original wrong- doer liable therefor? This question has been answer- ed in the afiirmative/° A passenger, alighting from a train negligently stopped on a trestle, fell through the trestle. He was picked up in a delirious condi- tion, suffering from a concussion of the brain and bod- ily injuries. These injuries and the shock to his nerv- ous system put him in a condition favorable to take any disease prevailing in the community. He grad- ually drifted into malarial troubles, which were then rife in the neighborhood, and he died of malarial fever about six weeks after the injury was sustained. The death was held to be the proximate consequence of the injury, in analogy to the rule of the criminal law thus stated by Mr. Bishop: "Whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible if death follows, he will be deemed guilty of the homicide, though the person beat- en would have died from other causes, or would not have died from this one had not others operated with it; provided the blow really contributed, either medi- ately or immediately, to the death in a degree suflftcient for the law's notice." ^^ So it has been held that the fact that a passenger, when injured, was suffering with pneumonia, and afterwards died of that disease, does not relieve the comi^any from liability, if the injury so 10 Terre Haute & I. R. Co. v. Buck, 96 Ind. 34G. 112 Bish. Cr. Law, § 637. lu Beanchamp v. Sagiuaw M. Co., 50 Mifli. 163, 1.") N. W. 6.J, a substantially s,iiiiilar ruling was made. (.310) Ch. 0) PROXIMATE CAUSE. § 123 impaired her strength and vital forces as to render the disease incurable, when, without the injury, it would have A-ielded to treatment.^* § 123. SAME— PREDISPOSITION TO DISEASE. Though a person has a predisposition to disease, yet if an injury caused by defendant's negligence excites or develops the germs of disease, defendant is liable to the full extent of the injury.^ The duty of care and of abstaining from the unlawful injury of another applies to the sick, the weak, the infirm, as fully as to the strong and healthy; and, when that duty is violated, the measure of damages is the injury done, even though it might not have resulted but for the peculiar physical condition of the person injured, or may have been ag- gravated thereby.^ A passenger injured by negli- 12 Ix)uisville & X. R. Co. a-. Jones, 83 Ala. 376, 3 South. 902. It was further said in this case that the fact th.it a passenger, when injured iu a laihvay aecitlent, was sufferinj; from an incurable dis- ease, which would ultimately cause death, does not, as matter of law, relieve the company from liability, if the injuries hastened death. But see post, § ."iT!*. § 123. 1 Louisville. N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409, 427. 3 N. E. 389, and 4 X. E. 908. Where a disease caused by the injury supervenes, as well as where tlie disease exists at the time of the injm-y. and is aggravated by it, the plaintiff is entitled to full compensatory ilamages. Ohio & M. R. Co. v. Hecht, 115 Ind. 443, 17 N. E. 297; Louisville, X. A. & C. R. Co. v. Jones, 108 Ind. 551, 557, 9 X. E. 470. 2 Lapleine v. Steamship Co., 40 La. Ann. mi, 4 South. 875. "Both on principle and autliority, an injured person may recover compen- satory damages for injuries su-tained, although the wrongdoer did not know or could not foresee that tlie special or particular injm-y would be greater to the person upon whom the wrong was actually (-IT) § 123 CARRIERS OF PASSENGERS. (Ch. 9 gence of tlic carrier is entitled to recover the full extent of the injury so caused, without regard to whether, owing to his previous condition of health, he is more or less liable to injury.^ Thus the liability of a railroad company for a personal injury is not diminished by the fact that plaintiff was at the time suffering from a syphilitic disease, which aggravated the injuries sus- tained, or rendered them more difficult to cure.* So, where a cancer develops as the result of a blow on the breast of a female passenger by being thrown against the platform of a street car in an attempt to alight, the cancer properly forms an element of damages to be considered in awarding damages, though plaintiff was predisposed to that disease.^ So where a blow on the head develops insanity, the fact that the injured person inflicted tlian to one in full strengtli and robust hiealtli. A person, feeble or strong, young or old, is entitled to recover full compensation for the injuries actually sustained by the act of the wrongdoer." Louisville, N. A. & C. Ky. Co. v. Wood, 113 Ind. 544, 567, 14 N. E. 572, and 16 N. E. 1J)7. It is no defense to an action against a common carrier for injuries received by a passenger by reason of its negligence that the injuries would not have occurred, or would not have been so great, had the passenger been in good health. Owens V. Railway Co., 95 Mo. 169, 8 S. W. 350. 3 Purcell V. Railway Co., 48 Minn. 184, 50 N. W. 1034. * Bi-own V. Railroad Co., 66 Mo. 588. Though the damage done to a child by an injury appears to be aggravated by a latent hereditary hysterical diathesis, which had never exhibited itself before the ac- cident, and might never have been developed but for it, the party in fault will be held for the entire damage as the direct result of the acci- dent. Lapleine v. Steamship Co., 40 La. Ann. 661, 4 South. 875. B Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 74. "That the female plaintiff may have had a tendency or predisposition to cancer can afford no proper ground of objection. She, in common with all other people of the community, had a right to travel or be carried in (318) Ch. 9) PROXIMATE CAUSE. § 123 liad a tendency to insanity will not relieve defendant from liability, though a blow on the head of a well per- son would not have produced that result." And the right of a passenger to recover for an injuiy caused by the negligence of a railroad company is not impaired by the fact that he was afflicted with Bright's disease when injured.' So, where a person wrongfully on a train is ejected with unnecessary violence, the com- pany is liable for aggravation of hernia, with which he had been suffering, though unknown to it, and though not cautioned by him in reference thereto.® So the aggravation and reopening of an old wound in a rail- road accident, and the increased pain and medical at- tention necessitated thereby, may be taken into consid- eration by the jury in assessing damages.® Where a person already ill is injured through another's negli- the cars of defendants, and she had a right to enjoy that privilege Avithout incurring the peril of receiving a wrongful injury that might result in intlaming and developing the dormant germs of a fatal dis- ease. It is not for the defendants to say that because they did not, or could not in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such conse- quences as ensued. They must be taken to know, and to contem- plate, all the natural and proximate consequences, not only that cer- tainly would, but that .probably might, flow from their wrongful act. The defendants must be supposed to know that it was the right of all (lasses and conditions of people, whether diseased or otherwise, to be carried in their cars, and it must also be supposed that they knew That a personal injury inflicted upon any one with a predisposition or tendency to cancer might, and probably would, develop the disease." 6 .Teffcisf.nville, M. & I. K. Co. v. Kilcy, :iU Ind. .",08, .^)S.'>. T Louisville, N. A. & C. Ry. Co. v. Snyder, 117 1ml. -ilio, 20 N. E. 284. 8 Coleman v. Knihnad Co., lUC Mass. IGO, 179. » Montgomery & E. II. Co. v. Mallette, 02 Ala. 209, 9 South. 363. (319) § 123 CARRIERS OF PASSENGERS. (Ch. 9 gence, additional expenses of the illness, whicli are caused bj the injury, are an element of damages/" But it has been held that plaintiif can recover only for such injuries as were sustained by reason of the accident in suit; and hence the fact that, at the time of such an accident, he had not recovered from other in- juries, should be considered by the jury in mitigation of damages.^^ And in all cases the connection l)e- tween the injury and the disease alleged to have been caused thereby must be shovi'n. The court cannot as- sume that the injury caused or predisposed a person to disease, in the absence of evidence on this point. This principle is illustrated by a recent Louisiana case. A passenger, wrongfully expelled from a train at a way station, remained in the station house about an hour, and returned to the point of his dei)arture in the ca- boose of a freight train. The night was cold, and, when he returned home, he complained of chilliness, and, two days later, of cold and indisposition. His ailment increased from day to day, and 17 days aftet his ejection he took to bed, ill with typhoid fever, then prevalent in the community, and he died of that dis- ease. The medical expert testimony was that typhoid fever is caused by the reception of poison germs in the system, either by the air we breathe or the water we 10 Emery v. Railroad (N. H.) 36 Atl. 3t>7. 11 Louisville & N. R. Co. v. Kingman (Ky.) 35 S. W. 2CA. Where a plaintiff, suing for permanent personal Injuries, has Bright's dis- ease of the kidneys at the time of the trial, and it appears that this disease was not caused by the injuries, that fact should be taken into consideration in determining his expectancy of life and loss of earn- ing power. Bunting v. Hogsett, 139 Pa. St. 3(33, 21 All. 31, 33, 34. (320) Ch. 9) PROXIMATK CAUSE. § 124 drink, and that it could not be produced by exposure to cold, thouoli the period of incubation might be af- fected thereb}-. It was held that the disease was not traced to the ejection, and the consequent exposure, as the proximate cause." § 124. SAME— PECUNIARY LOSS. As to pecuniary losses suffered by reason of a wrong- ful expulsion from the train, or of delay in transporta- tion, the rule in Hadley v. Baxendale, heretofore stat- ed,^ has in the main been strictly applied. A passen- ger who has taken passage on a railway train, and who has failed to reach his destination because there ^as no connecting train at an intermediate station, may recover the expense he has been put to in order to arrive at his destination; but he cannot recover for loss of profits owing to his inability to keep his appoint- ments with his customers, as these are too remote. - So, in an action for delay in the transportation of a theatrical manager and his troupe, he cannot recover for loss sustained through inability to give a perform- ance as advertised, and for which tickets to the amount of |2S8 had been sold, and which amount he was com- pelled to refund, where the railroad company was ig- 12 Randall v. Railroad Co., -io La. Ann. 778, 13 South. 166. "We w-ill not assume that the exposure was an inciting cause, without tes- timony connecting the disease, in its course, with such a disease as exposure may produce, or williout tlae least showing that exposure had a lowering effect on the system, or prodi-sposed him to talie the di.sea.se." g 124. 1 Ante, § liy. As to damages for failure to carry to des- tination, for ejection, etc.. see post, c. 36. 2 Hamlin v. liailway Co., 1 Hurl. & N. 408. V. 1 FET.CAR.PA,S. — 21 (321) § 124 CARRIERS OF PASSENGERS. (Ch. 9 noraut of tliis fact at the time it undertook their trans- portation.^ The loss of a job of worl-:, occasioned by a passenger's expulsion from a train, and his delay at the station, is too remote to be considered as an ele- ment of damages.* And the fact that a passenger was compelled to borrow money to pay fare illegally exacted is too remote to afford a basis for the assess- ment of damages.^ So wrongful imprisonment for one night is not the proximate cause of loss of earnings by plaintiff for nine months, resulting from his loss of employment.^ But where a miner purchases a ticket to travel to his w^ork by a train timed to start in ample time for that purpose, and he loses a day's work be- cause of the nonarrival of the train, his loss of wages for that day is the proximate, and not the remote, con- sequence of the delay, and he may recover the amount of his wages from the railroad company.'^ Where a passenger is wrongfully removed from a train, but without any more force than is necessary^ the loss of a pair of race glasses, which he left behind him when removed, is not the natural or probable con- sequence of defendant's act, since, if he had applied to be allowed to get the glasses, or asked one of the pas- sengers to hand them to him, this would have been done.® « Georgia R. R. v. Hayden, 71 Ga. 518. * Carsten v. Railroad Co., 44 Minn. 454, 47 N. W. 49, citing Brown V. Cnmmings, 7 Allen (Mass.) 507. B Hoffman t. Railway Co., 45 Minn. 53, 47 N. W. 312. 6 Carpenter v. Railroad Co., 13 Aiip. Div. 328, 43 N. Y. Supp. 203. 1 Cooke V. Railway Co., 57 J. P. 3«8. 8 Glover v. Railway Co. (lS(i7) L. R. 3 Q. B. 25. (322) Cb. 10) CONTRIBUTORY NEGLIGENCE. § 125 CHAPTER X. CONTRIBUTORY NEGLIGENCE. § 125. The Common-Law Doctrine. 126. WUlful Injuries. 127. Definition. 12S. Degree and Standard of Care. 129. Duty to Use Senses and Ascertain Facta. 130. Reliance on Carrier. 131. Same — On Carrier's Servants. 132. Use of Station Platform— Knowledge of Defects. 133. Using Uulighted Premises. 134. Standing near Edge of Station Platform. 135. Standing between Car Tracks. 136. Crossing Railroad Track at Station. 137. Same— At Intermediate Station. 138. Same— Stepping from Car to Track. 139. Same— Street Cars. 140. Walking along or near Track. 141. Crawling under or between Cars. 142. Boarding Car Ahead of Time. 143. Boarding Car Not Drawn up at Station Platform. 144. Boarding or Leaving Train on Wrong Side, or by Improper Entrance or Exit. 145. Same— Front Platform of Street Car. 146. Alighting at Dangerous Place— Invitation. 147. Same— Jumping from Car Steps to Ground. 148. Boarding or Alighting from Stationary Stroot Car. 149. Boarding or Alighting from Moving Train. 150. Same — Boarding Moving Train. 151. Same — Alighting from Moving Train. 152. Same— Aggravating Circumstances. • 153. Same— Mitigating Circumstances. 154. Same— Advice or Command of Train Hands. 155. Same — Statutory Provisions. 150. Boarding Moving Street Car. 157. Same— Alighting from Moving Street Car. (323) I 125 CARRIERS OF PASSENGERS. (Ch. 10 S 158. Same— Front Platform. 159. Same— Passenger Incumbered with Packages. 160. Passengers on Vessels. 161. Boarding Passenger Elevator. 162. During Transportation. 163. Placing Hand in Door Jamb. 164. Projecting Limb or Head Outside of Car. 165. Standing, or Occupying Dangerous Seat, in Car. 166. Passing from Car to Car on Moving Ti-ain. 167. Riding on Platform. 168. Same— Street Car. 169. Same— Front Platform of Street Car. 170. Riding on Footbo.ard or Steps of Car. 171. Riding in Baggage Car. 172. Riding in Other Places of Alleged Danger. 173. Riding on Freight and Construction Trains. 174. Riding on Top of Cars. 175. Riding on Locomotive or on Tender. 176. Riding on Hand Car. 177. Statutory Prohibition against Riding in Dangerous Places. 178. Saving Human Life. 179. After the Injury. § 125. THE COMMON-LAW DOCTRINE. At comnion law, actionable negligence on defend- ant's part does not render him liable for inju- ries to plaintiff, if there is contributory negli- gence on plaintiff's part. But contributory neg- ligence is no defense to a ■willful or -wanton ■wrong. "It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be showu that it would not have happened, except for the culpa- ble negligence of the party injured, concurring with (324) Ch. 10) CONTRIBUTORY NEGLIGEXCE. § 125 that of the other party, no action can be maintained." ^ Though this rule is said to have obtained from time im- memorial, its first definite formulation, as a part of the common law, is as recent as the year 1809. In Butter- field V. Forrester,^ decided in that year, which was an action for injuries sustained by running into an ob- struction in a highway. Lord Chief Justice Ellenbor- ough, in a. remarkably terse and lucid charge to the jury, said: "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, — an obstruc- tion in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." ^ This doctrine of contributory negligence prevails in all the states of the American Union,^ § 125. 1 Black, J., in Railroad Co. v. Aspell, 23 Pa. St. 147. 2 11 East, 60. 8 A case decided in New Jersey two years before Butterfield v. For- rester is based on the same principle. Defendant had talien plain- tiff's flat from his ferry on the Delaware river, and plaintiff, being obliged to search for the flat in order to cross the river, left his wagon and horses on the beach. While he was gone, the horses ran into the river, and were drowned. It was held that defendant was not liable for the value of the horses, because it was plaintiff's own negligence to leave them without first securing them. Gorden v. Butts (1807) 2 N. J. Law, 242. 4 It is well settled at common law, whatever doubts may exist as to the justice of the rule, that the party who claims damages for the neglect of duty of others to exercise proper care cannot recover if it appears that the injury he sustained was in any degree caused by his own negligence or want of proper care. Murch v. Kaih-oad Corp., 29 N. H. 9. One seeking to recover for injuries occasioned by the negligence of another must be shown to lie free from negligence contributing in any degree to occasion the injury complained of. Gon- zales V. Railroad Co., 38 N, Y. 440. One wlio lias by his own ncgli- (:i25) § 125 CARRIERS OF PASSENGERS. (Cll. 10 thoiijxh in some it has been considerably modified by statute.'' Even in Louisiana, tlie jurisprudence of which is founded on the civil, rather than the common, law, it is well settled that contributory negligence on the part of the plaintiff is a bar to a recovery, although defendant be in fault.® This principle of contributory negligence does not rest on the idea that one wrong sets off the other, or that one justifies the other. It is founded on the broader ground that, when the negligence of the plain- tiff has contributed proximately to the injury, the damage is considered of his own producing, and it is difficult, if not impossible, to determine the quantum of injury which resulted from the defendant's tortious or negligent conduct. It is not that, in such case, de- fendant has done no wrong. His dereliction of duty may be so patent as to render it morally certain that, without such dereliction, tlie injury would not have resulted. This is not the test; for it is equally true, in cases of proximate contributory negligence, that without the plaintiff's fault the injury w^ould not have resulted. To allow such plaintiff to recover would be to permit a recovery for the proximate' consequences gence contributed to an injury of his person cannot recover damages from anoflier person, who has also heeu guilty of a negligent act which concurred in producing the injury. Florida South. Ry. Co. v. Hirst, 30 Fla. 1, 11 South. 50G. Among the leading cases in this country are Robinson v. Cone, 22 Yt. 213; Railroad v. Norton, 21 Pa. St. 469. » See post, c. 13. « Odom V. Railroad Co., 45 La. Ann. 1201, 14 South. 734, and cases cited; Hanson v. Transportation Co., 38 La. Ann. Ill; Summers v. Railroad Co., 31 La. Ann. 131). (326) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 126 of the plaintiff's own negligence/ Hence, if the plain- tiff's fault, of omission or commission, has been the proximate cause of the injury, he is without remedy aiiainst one also in the wrong.* § 126. WILLFUL INJURIES. The doctrine of contributory negligence is applicable only to cases where it is sought to hold defendant lia- ble on the ground that he has been guilty of negligence. Contributory negligence is no defense to an action for 7 Memphis & C. R. Co. v. Copeland, Gl Ala. 37G; Alabama Great South. R. Co. V. Hawk, 72 Ala. 112. It would certniuly be very un- just to allow a person who has sustained an injury by the nej:;ligence of another to recover damages for such injury when it is made to appear that he himself contributed by his own negligence to the cause of such injury, or when, by proper care on his part, he might have avoided it altogether. This would, in effect, be giving one com- pensation for his own default, and would amount to the offer of a premium for negligence or want of proper care of one's own person, Darwin v. Railroad Co., 23 S. C. 531. 8 Little V. Hackett, 116 U. S. 366, 371, 6 Sup. Ct. 391. "In order that a man's negligence may entitle another to a remedy against him, that other must have suffered harm whereof this negligence is a ■proximate cause. Now I may be negligent, and my negligence may be the occasion* of some one suffering harm, and yet the immediate cause of the damage may be not my want of care, but his own. Had I been careful, to begin with, he would not have been in danger; but had he, being so put in danger, used reasonable care for his own safety, or that of his property, the damage would not have happened. Thus, my original negligence is a comparatively remote cause of the harm, and, as things turn out, the proximate cause is the sufferer's own fault, or rather (since a man is under no positive duty to be care- ful in his own interest) he cannot ascribe it to the fault of amither. In a state of facts answering this general description, the person harmed is, by the rule of the common law, not entitled to any rem- edy." Pol. Torts (Webb's Ed.) p. 566. (327) §126 CARRIERS OP PASSENGERS. (Ch. lO a willful wrong.^ Thus the doctrine of contributory negligence has no application to an action for an un- lawful and forcible ejection of a passenger from a train by the servants of a railway company.^ Such ejection is an intentional and willful assault," and no degree of carelessness on the part of an assaulted person fur- nishes any excuse for an unlawful invasion of the right of personal security." So, in an action for injuries to a trespasser riding under a freight car, who was pushed from the train while in motion by one of the company's servants, the fact that he may have been guilty of negligence in riding in a perilous position is no defense/ But the omission of a railroad company to prepare a station house for the comfort of its pas- sengers, or to have the place lighted up, does not con- stitute such wanton or willful negligence as to over- come the defense of contributory negligence in an ac- tion by a passenger waiting for a train at a station, who stepped on the track in front of a moving locomo- tive, plainly visible had he looked/ § 126. 1 Alabama G. S. R. Co. v. Frazier, 93 Ala. 45. 9 South. 30.3; Highland Ave. & B. R. Co. v. Winn, 93 Ala. 306, 9 South. 50J; Ind'auar B. & W. Ry. Co. V. Burdge, 94 Ind. 46. Where both* parties act will- fully, neither party would probably be entitled to recover; as, for example, where the drivers of two vehicles headed towards each other intentionally drive into each other, or where two persons vol- untarily engage in an assault and battery on each other. 2 Louisville, N. A. & C. Ry. Co. v. Goben, 15 Ind. App. 123, 42 N. E. 1116, and 43 N. E. 890. 8 Sanford v. Railroad Co., 23 N. Y. 343, reversing 7 Bosw. 122. * Chicago, St. L. & P. R. Co. v. Bills, 118 Ind. 221, 20 N. E. 775. B Thurman v. Railroad Co. (Ky.) 34 S. W. 893. e Chewuing v. Railway Co., 100 Ala. 493, 14 South. 204. (328) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 1 i" § 127. DEFINITION. Contributory neglig-ence may be defined to be the want of ordinary care on the part of the plaintiff, which, concurring or co-operating with defendant's negligence, produced the injury complained of as a proximate cause. ^ The two essential elements of contributory negli- gence are (1) plaintiU's want of ordinary care; and [2} connection between that and the injury as a proximate cause.^ It is proposed to take up (1) the subject of want of ordinary care on the part of a normal adult passenger; (2) variations of the rule in favor of passengers under § 127. 1 Contributory negligence consists, in contemplation of law, in such acts or omissions, on the part of the plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent acts of defendant, are a proximate cause or occasion of the injury complained of. Richmond & D. R. Co. v. Pickleseiuier, So Va. 798, 10 S. E. 44; International & G. N. R. Co. v. Garcia, 75 Tex. 5S3, 13 S. W. 223; Beach, Contrib. Xeg. § 3. 2 In Baltimore & P. R. Co. v. Jones, 95 U. S. 439, it is said: "One who by his negligence has brought an injury upon himself cannot re- cover damages for it. Such is the rule of the civil and of the com- mon law. A plaintiff in such case is entitled to no relief. But where defendant has been guilty of negligence also in the same connection, the I'esult depends upon the facts. The question in such cases is: (1) Whether the damage was occasioned entirely by the negligente or improper conduct of the defendant; or (2) whether the plaintiff him- Eelf so far contributed to the misfortune by his own negligence, or want of ordinary care and caution, that but for such negligence or v,-ant of care and caution on his part the misfortune would not have happened. In the former case, the plaintiff is entitled to recover; in the latter, he Is not." See, also, to same effect, Richmond & D. R. Co. V. MiiiTis, 31 Grat. (Va.) 2(J0. (.32;)) § 128 CARRIERS OP PASSENGERS. (Cll. 10 disability; (3) the subject of proximate cause; (4) va- riations from the common law in different jurisdic- tions. § 128. DEGREE AND STANDARD OF CARE. Unlike the carrier, the passenger need not exercise the hio-hest degree of care and skill for his own safety. The passenger is bound to exercise only ordinary care and prudence to preserve himself from injury.' "The principle that one who has himself used reasonable care, but has, notwithstanding, suffered an injury from the negligence of another, should have redress for that injury, is so obviously just that it carrie.is with it its own vindication." ^ The standard by which to determine whether or not a normal adult passenger has failed to exercise this degree of care is the conduct of a prudent, reasonable man in possession of his ordinary senses and capaci- ties, placed in plaintiff's situation.^ "It is certainly very vague and uncertain to make proper care vary § 128. 1 Mackoy v. Railway Co., 18 Fed. 236; Smith v. Railway Co., 32 Minn. 1, 18 N. W. 827; Keokuk North. Line Packet Co. v. True, 88 111. 608; Bland v. Railroad Co., &r, Cal. 626, 4 Pac. 072. 2 Huelsenkamp v. Railway Co., 37 iMo. 537. 3 Simms v. Railway Co., 27 S. C. 268, 3 S. E. 301. Whether or not the act of a person is negligent depends on whether or not a per- son of "ordinary prudence" would have done, or omitted to do, the same thing. Galloway v. Railway Co., 87 Iowa, 458, 54 N. W. 447. The test of the liability of one to a charge of contributory negligence is whether a prudent person in the same situation, and having the knowledge possessed by the one in question, would do the alleged negligent act. Texas & P. Ry. Co. v. Best, 66 Tex. 116, 18 S. W. 224. See, also, Curtis v. Railroad Co., 27 Wis. 158. (330) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 129 with the varying capacities and infirmities of men. When the rights and obligations of one party are made to turn upon the proper caution of another, it would seem that there should be some common standard by which to test the fact, and we know of none practica- ble, other than that of a prudent, reasonable man in the possession of the ordinary senses and capacities," * Where, however, the passenger belongs to a class un- der a recognized disability, — a child, for example, — a different rule obtains. ° In conclusion, it should be stated that the relative functions of court and jury in deciding the question of contributory negligence are the same as their functions on the subject of defendant's negligence.' § 129. DUTY TO USE SENSES AND ASCERTAIN FACTS. A man may be negligent in ascertaining his sur- roundings, no less than in his conduct with respect to a known situation. Of course, plaintiff's previous knowledge, or want of knowledge, of his surroundings is a material circumstance to be considered by the jury in determining the question of contributory negli- gence, but it is not the only circumstance to be consid- ered. Whether or not he had any past experience of the dangers of the situation, he is bound to exercise his senses. He must use his eyes and ears, and exercise the care and prudence which a man of ordinary care 4 Renneker v. Railway Co., 20 S. C. 219. See iX)St, § 183. « See ante, § 28. (331) §129 CARRIERS OF PASSENGERS. (Ch. 10 and prudence would be expected to use in the same circumstances to avoid accident/ Such care and pru- dence may require more or less exercise of the senses, as the situation and surroundinojs vary. In some in- stances a person of ordinary prudence would give but little heed to the things surrounding him; while in others, where danger is quite apparent, he would exer- cise a much higher degree of diligence to avoid danger. The extent to which one's faculties must be exercised to constitute ordinary care depends on the particular surroundings.'' Thus a passenger at a station, who is perfectly acquainted with the location of the tracks, is guilty of contributory negligence, as matter of law, in "unconsciously" or "inadvertently" stepping on the track, right in front of a slowly moving locomotive, which could have been seen by him at any time while within 200 feet of the track.^ So, where a passenger has knowledge of the presence of a pile of lumber on a station platform, and that there is sufticient room to pass between the lumber and the edge of the platform, § 129. 1 Illinois Cent. R. Co. v. Davidson, 12 C. C. A. 118, 64 Fed. 301. A passenger who unnecessarily and negligently exposes him- self to danger after alighting from a train, by walking between tracks. Is guilty of contributory negligence, which precludes recovery for Injuries sustained by being caught between trains on both tracks, even thougn he did not know of the dangers to which he exposed him- self while so walking. Id. 2 Prothero v. Railway Co., 134 Ind. 4:n, 33 N. E. 7(35. A person who enters a transfer car two feet above the surface of the street, and used as a waiting room for passengere on street cars, is not jus- tified in closing eyes and ears to the natural and ordinary use of the premises, and in leaning against a door liable to be opened towards the outside at any moment, thus permitting her to fall. Id. 8 Chewning v. Railway Co., 100 Ala. 493, 14 South. 204. (332) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 130 his mere forgetfulness of, or inattention to, this fact, while passing along the platform in the nighttime, on his way to the train, constitutes contributory negli- gence as matter of law, which will preclude him from recovering for injuries sustained in stumbling over the lumber/ But the mere fact that a street car was stop- ped during a trip, and that a trap door in the rear plat- form was raised, is not notice to a passenger that the trapdoor was defective, so as to charge her with con- tributory negligence in passing over the door in alight- ing from the car.^ When, however, a person has been duly careful to ascertain his surroundings, his conduct must be tested by the facts as they appear to him, not as they really are, — in other words, he is not bound to see. He is bound to make all reasonable efforts to see that a care- ful, prudent man would make in like circumstances. He is not to provide against any certain result. He is to make an effort for a result that will give safety, — such an effort that care, caution, and prudence would dictate.^ {^ 130. RELIANCE ON CARRIER. A passenger on a railroad train has a right to con- fidently rely on the care and watchfulness of the car- rier to make all things safe for his transportation, with its necessary incidents. While passively submitting 4 Wood V. Railroad Co., 100 Ala. 660, 13 South. 552. This decisiou Is doubtful. See post, § 132. 6 Wa-shington v. Railway Co., 13 Wash. 9, 42 Pac. 628. e Highland Ave. & B. R. Co. v. Donovan, IM Ala. 299, 10 South, lait; Greany v. Raik-oad Co., 101 N. Y. 419, 5 N. E. 425. (333) § 130 CARRIERS OF PASSENGERS. (Ch. 10 himself to his care during the journey, or while enter- ing upon or leaving its cars in the usual place and ordinary time and manner, he is not to be deemed guilty of negligence, unless knowledge of a defect or peril is thrust upon him, and he then fails to use ordi- nary care to avoid injury/ Thus a passenger walking along a station platform in the nighttime has a right to rely, within reasonable limits, on the presumption that the company has done its duty, and that the platform is safe; and he may recover for injuries sus- tained from falling into a hole which he did not see." So, where a bridge has become dangerous for the pas- sage of cars, and the company requires passengers to change cars, and walk across it, a passenger is not guilty of contributory negligence, as matter of law, in making the attempt in the nighttime, without calling for a light, since she had a right to presume that the carrier would do its duty to make the passage safe.^ A passenger on a stagecoach, with knowledge that it is not provided with lights, does not take the risk of accidents arising from the failure to provide lights.^ But while one may, in the exercise of reasonable care, rely, to a certain extent, upon the performance of his duty by the other, no negligence of such other can § 130. 1 Ohio & M. Ry. Co. v. Stansberry, 132 Ind. 533, 32 N. E. 21S. 2 Louisville, N. A. & C. Ey. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968. 8 Jamison v. Railroad Co., 55 Cal. 593. 4 Anderson v. Scholey, 114 Ind. 553, 17 N. E. 125. "Unless the in- strumentalities provided by the carrier are so glaringly defective as to make it apparent to every prudent person that they are insufficient, and that the journey could not be undertaken with safety, the pas- senger may rely on the care and foresight of the carrier." (334) Ch. 10 ■ CONTRIBUTORY NEGLIGENCE. § lol be SO dominant as to relieve him from his own obliga- tion; and, if a performance of such obligation might have prevented the injury, his failure so to perform must be considered as contributory thereto."* § 131. SAME— ON CARRIER'S SERVANTS. A passenger may safely rely on the judgment of those placed in charge of the train, where it is not plainly open to his observation that that reliance will expose him to danger that a prudent man would not incur; but he cannot rely on their judgment where it would expose him to a risk that a reasonably prudent man would not assume.^ Thus where an empty car is apparently coupled to a train, and the conductor cries out, "All aboard!" a passenger who, in the dark, c Hinckley v. Railroad Co., 120 Mass. 257. § 131. 1 Cincinnati, H. & I. R. Co. v. Carper, 112 Ind. 26, 13 N. E. 122. and 14 N. E. 352. "First. Advice or direction given to a passenger by conductors or others In the management of vehicles and railroad trains, even though plain and unambiguous, cannot be held to excuse an act of negligence on the part of an adult passenger which would be so apparent to common prudence as to make it an obvious act of recklessness or folly. Second. Where the net advised to be done is one where the danger would not be apparent to a per- son of reasonable prudence, and the passenger acts under the influ- ence of such advice, given by the conductor or manager in the liui' of his ordinary duties, it becomes the i roviiice of the jury to say how far the plaintiff's negligence may be excused." Soutli & N. A. R. Co. v. Schaufler. 75 Ala. 136. See, also, Irish v. Railroad Co., 4 Wash. 48, 20 Pac. 845, and cases cited; Davis v. Railway Co., G9 Miss. 13G, 10 South. 450; Maher v. Railroad Co., 67 N. Y. 52, affiruiiug ;;9 N. Y. Super. Ct. 155. As to direction to b(jard moving train, see post. § 154. As to direction to ride in dangerous place on train, see post, §171. (335) § 131 CARRIERS OP PASSENGERS. (Ch. 10 proceeds to this empty ear for a seat, is not chargeable with contributory negligence in failing to notice that the coupling had not been effected, and that the cars were several feet apart, by reason of which she fell into the opening.' So, where the conductor notifies a shipper of stock that his cattle are down, and that he had better look after them, the shipper is justified in believing that there is no danger from passing trains while so doing; and his failure to watch, in the dark, for an approaching train, while engaged in getting cattle up, does not bar a recovery for injuries sustain- ed in being struck by such a train while at work/ 2 Lent V. Railroad Co., 120 N. Y. 467, 24 N. E. 653, affirming 54 N. y. Super. Ct. 817. See, also, to same effect. Hannibal & St. J. R. Co. V. Martin, 111 111. 219; Id., 11 111. App. 3SG. 3 Fowler v. Railroad Co., IS W. Va. 579. See, also, Chicago & A. R. Co. V. Rayburn, 52 111. App. 277. A passenger making a transfer from one street car to another, pursuant to the directions of the driver, has a right to assume that an opportunity will be given him to make the change in safety, or that be will be notihed of any apparent dan- ger foreseen by the employes who are at the point of danger, and he need not be on his guard against being run into by another car while he is making the transfer in plain view of the driver. Citizens' St. R. Co. V. Merl, 134 Ind. 609, oS N. E. 1014. If, in obedience to the direction of the carrier's servant, a passenger, standing in a safe place, where injury would not have occurred, moves to another part of the car, unaware of the fact that the place is unsafe, the company Is liable for an injury received by reason of assuming such position; and. in the absence of apparent danger, the passenger has the right to assume that the place to which she is directed is safe. Prothero v. Railway Co., 134 Ind. 431, 33 N. E. 765. A passenger is not guilty of contributor}' nogligence in obeying the conductor's direction as to the method of getting on the car; and such obedience does not bar him from recovering for injuries sustained by the unexpected starting of the engine. Irish v. Railroad Co., 4 Wash. 48, 29 Pac. 845. A passenger by mistake on a wrong train, who voluntarily leaves it (836) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 131 Where passengers, expecting- to take a river steamer, are at the appointed place for embarking, with no fences or gates to keep them back, they must generally have a right, if they do so in good faith, to assume that no dangerous orders will be given, and that they may safely act on the directions of officers to jump a dis- tance of 20 inches from the dock to the gangway of the steamer. Some allowance must also be made for such conditions as stand in the way of full deliberation. It is applying too harsh a rule to hold that persons who have apparently but a few moments to decide between following the directions of the officers, and losing their last chance for passage, should be held to be negligent in doing as they are invited to do, unless the danger is very obvious.* But the negative side of the rule — that the passenger cannot rely on the judgment of the carrier's servants when it is obviously dangerous to do so — must also be borne in mind. Thus a railroad employ^, carried on a construction train to and from his place of work, is guilty of contributory negligence, as matter of law, in riding on the pilot of the locomotive, when there is room on a box car, and he cannot recover for injuries sustained in a collision, even if he occupied his perilous position with the knowledge, or by the direction, of Bome distance from the station, is not guilty of contributory negli- gence in obeying the conductor's direction to walk back to the sta- tion on the track; and a recovery may be had for his death, caused by being struck by another train on a trestle, of the existence of which he was ignorant when he undertook to walk back. Cincinnati, H. & I. R. Co. V. Carper, 112 Lnd. 2G, 13 N. E. 122, and 14 N. E. 352. * Clinton v. Root, 58 IMich. 182, 24 N. W. GUT. v. 1 FKT.CAR.PAS. — 22 (337) § ]32 CARRIERS OF PASSENGERS. (Ch. 10 the foreman. As well might he have obeyed a sugges- tion to ride on the cowcatcher, or put himself on the track in front of the advancing wheels of the locomo- tive/ g 132. USE OF STATION PLATFORM— KNOWLEDGE OF DEFECTS. A passenger at a railroad depot waiting for his train is not bound to remain in the waiting room until it ar- rives, nor is he guilty of negligence in going on the platform before it becomes necessary to board the train, so as to preclude recovery for an injury sus- tained by being run into by a baggage truck.^ Nei- ther does the mere knowledge of a passenger that a station platform is in a defective condition render him guilty of negligence in using the platform; nor is he bound to keep the knowledge of its defective condition constantly in mind, since the presumption is that the company will do its duty and repair the defect." All that can be required of him is that he should exercise ordinary care and prudence in using the platform.^ Neither is a passenger alighting from a train in the daytime guilty of contributory negligence, as matter of law, in failing to be on the lookout for a hole in the station platform, since he has a ri*ght to rely on the carrier's care and watchfulness, and it must appear that he knew of the defect, and failed to use ordinary « Baltimore & P. R. Co. v. Jones, 95 U. S. 439, § 132. 1 Chicago & A. R. Co. v. Woolridge. 32 111. App. 237. 2 Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973. • White V. Railway Co., 89 Ky. 478, 12 S. W. 936. (338) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 132 care to avoid injury, before lie can be said to be guilty of contributory negligence as matter of law.* So the question whether a passenger is guilty of negligence in passing over a sloping part of a station platform in going to a train, instead of going down steps, — there being ice and stiow on the platform, — is one for the jury, under all the evidence.^ But a passenger getting off at a station in the night- time has no right to assume that the station is entire- ly free from obstructions, such as mail bags thrown from the train; and is chargeable with contributory 4 Ohio & M. R. Co. V. Stansberry, 132 Ind. 533, 32 N. E. 218. A train was stopped in sucli a position tliat tlie forward end of a pas- senger car was opposite a baggage triicli;, 37 feet long and 7 feet wide, witli its top on a level with the car platform. A number of pas- sengers got off at the forward end of the car, all stepping on the truck, including plaintiff. Supposing the truck to be the regular station platform, she walked along it, as others before her were doing, without looking to see where she was walking, and after taking two or three steps she fell off the truck. Held, that it could not be said, as matter of law, that she was negligent in getting off from the front platform upon the truck, instead of going back upon the rear platform, nor in failing to carefully scrutinize the floor of what she supposed was the station jilatform before beginning to walk forward on it. Bethmann v. Kailrcjad Co., 155 Mass. 352, 29 N, E. 587. B Rathgebe v. Railroad Co. (I'a. Sup.) 3(> Atl. IGO. A passenger was injured by falling on steps leading to defendant's railway station, which were worn and hollowed, and covered by a light layer of snow, troflden down and frozen over. Held, that the mere facts that the passenger knew the stairway was dangerous, that he could have taken another stairway which was safe, and that he went down cai-e- fully, holding the hand rail, are not sufficient to show that, with full knowledge of the nature and extent of the risk he ran, he impliedly agreed to incur it, and that therefore the maxim, "Volenti non fit in- juria," was not applicable. Osborne v. Railway Co., 21 Q. B. Div. 220. (339) .§ 138 CARRIERS OF PASSENGERS. (Ch. 10 neiilii^ence in failing to observe such bags before stum- bling over them, where there is sufdcient light to en- able her to do so.'' And a passenger waiting for a train, who leaves a comfortable w^aiting room and Avell liglited passenger platform, and saunters forth into the darkness and onto the freight platform, at the oppo- site side of the station, without giving any heed to timbers, pieces of plank, sewer pipe, shingles, and dirt which impede his progress, is guilty of contributory negligence, as matter of law, which will bar a recovery for injuries sustained in falling into a pit dug by the railroad company in its freight platform/ A passen- ger alighting from the train at a meal station, who at- tempts, under circumstances fully apprising him of the risk, to reach the eating house by passing so close to the baggage car, while the baggage is being unload- ed, as to be injured by a trunk falling on his foot, is guilty of negligence, though the passage he chooses to select is used by passengers; there being another path to the eating house as convenient and direct, free from all risk or obstruction, provided by the company for passengers to reach the eating house.* § 133. USING UNLIGHTED PREMISES. A passenger is not, as matter of law, guilty of con- tributory negligence in walking along an unlighted platform in the nighttime, to see whether there is an- other coach on the rear end of the train he is about to 6 Sargent v. Railway Co., 114 Mo. 348, 21 S. W. 823. 1 Gundermau v. Itailway Co., 58 Mo. App. 870. • Duveriiet v. Steamship Co. ('La.) 21 South. 044, (340) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 13S board/ So, tlioiigli a passenger might have observed, when arriving at a station in daylight, that the plat- form at one end is three feet above the ground, the failure to bear this fact in mind does not convict her of contributory negligence, as matter of law, which will bar a recovery for injuries sustained in falling from the platform in the nighttime, while waiting for a delayed train.' The question whether a passenger is guilty of contributory negligence at a station with which he is well acquainted, in walking across the platform obliquely in the nighttime, and thus missing the steps, instead of going straight ahead, is for the jury.' But the unexplained failure of a passenger, on leav- ing a station in the nighttime, to use lighted stairs, and passing into utter darkness in search of another pair of stairs, is prima facie evidence of negligence on § 133. 1 Buenemann v. Railway Co., 32 Minn. 390, 20 N. W. 379. 2 Missouri Pac. Ry. Co. v. Neiswauger, 41 Kan. 621, 21 Pac. 582. It is for the jury to determine -whether a person accompanying an in- tending passenger to the station, who goes on the platform at a place where it is nearly level with the ground, is guilty of contributory negligence in attempting to step from it in the dark at a place four feet above the ground, where she testifies that she looked, and thoughi the ground near enough to be reached by a step. Missouri, K. & T. Ry. Co. V. Turley (Indian Ter.) 37 S. W. 52. 3 Alabama G. S. R. Co. v. Arnold. 84 Ala. 159, 4 South. 359. A. passenger descending a dark stairway at an elevated station, who has carefully felt her way until she thought she was at the bottom. Is not chargeable with negligence, as matter of law, in stepping out as though the bottom had been reached; but it is a question for the jury whether she should have continued to feel her way until she touched the ground. Flagg v. Railway Co., 49 N. Y. Super. Ct. 251. (341) § 133 CARRIERS OF PASSENGERS. (Ch. 10 his part.* So a passenger at a station, who knows that his train is approaching, and who walks away from the light to the point where he thinks the bag- gage car will stop, and who in so doing steps off the edge of the platform in the dark, and is struck by the engine, is guilty of contributory negligence as matter of law/ So a passenger alighting on a crowded sta- tion platform in the nighttime is guilty of contributory negligence in pressing through the crowd, and walk- ing off the edge of the platform, after being warned of the danger by a railroad official.® A passenger who, on a dark night, instead of walking along the platform to a highway, voluntarily steps off the side of the plat- 4 Bennett v. Railroad Co., 57 Conn. 422, 18 Atl. 668. A passenger who, on alighting from a train in the nighttime, inquires of a mere stranger for a privy, instead of some railroad employe, and who goes In the direction indicated, beyond the depot platform, and falls over a steep bluff, is guilty of contributory negligence, and cannot raise the question whether it is the duty of the company, Independent of statute, to keep such accommodation lighted and visible, so that a passenger can, without danger, find it. Montgomery & E. Ry. Co. V. Thompson, 77 Ala. 448. B Bradley v. Railway Co. (Mich.) 65 N. W. 102. « Missouri Pac. R, Co. v. Texas & P. Ry. Co., 33 Fed. 359. A fe- male passenger, leaving a train late at night, was shown by the light of a lamp up the steps of the platform into the reception room of the depot. She declined going to an hotel, and announced her intention to wait at the depot for another train, to arrive early next morning. While the platform lamp was being trimmed in her presence, she hurriedly walked out upon the platform, and, without taking the pre- caution to inquire or ascertain whether or not she could safely do so, turned at right angles from the lighted reception room, and walked in the dark to the end of the platform, where she fell off, and was injured. Held, that she was guilty of contributory negligence. Reed V. Axtell, 84 Va. 231, 4 S. E. 587. (342) Ch. 10) CONTRIBUTORY NEGLIGENCE. §13-1 form next the track, with the intention of going ob- liquely to the highway, and without doing anything to ascertain what would be found on stepping off the platform, is guilty of contributory negligence, and can- not recover for injuries sustained in stepping into a cattle guard/ § 134, STANDING NEAR EDGE OF STATION PLAT- FORM. A passenger on a platform erected by the company for the accommodation of passengers is not charge- able, as matter of law, with knowledge that passing trains may project a few inches over tJie edge of the platform; and the question w^hether he is guilty of contributory negligence in standing near the edge, where he was struck by a train, is one of fact for the jury.^ So a passenger is not, as matter of law, guilty of contributory negligence in walking along the edge of the platform, near a railroad track, in the direction of his train, without looking to see whether a train is approaching him from behind, since he has a right to rely to some extent upon the giving of proper and usual signals of danger, or other suitable warning, in case of the approach of a train; and he may recover 7 Forsyth v. Kailroad Co., lo:] Mass. 510. § 184. 1 Doblecki v. Sharp, 88 N. Y. 203. A passenger has a right to regard the platform as a safe and prober idace; aud, where he is ignorant of the existence even of a traclc near the edge of tlie plat- form, he is not chargeable with negligence in standing so near the edge as to be struck by an incoming train, rnniiing at a high rate of speed, which swept a portion of the platform. Archer v. Kailroad Co., 100 N. Y. GS;J, 13 N. E. 818. (343) § 134 CARRIERS OF PASSENGERS. (Ch. 10 for injuries sustained by being struck by a projecting step on a train, which gave no signal of its approach.^ But in Pennsylvania it has been held that a person at a railroad station at night, who is warned of the ap- proach of his train, who leaves the station to take it, and who could have heard it and seen its headlight for a long distance, is guilty of contributory negligence, as matter of law, in walking so near the edge of the plat- form as to be struck by the locomotive.^ And a pas- senger, waiting for his train, who stands so near the edge of a freight platform as to be struck by an engine, is guilty of contributory negligence, as matter of law, where he would have been perfectly safe had he re- mained on the platform intended for passengers.* 2 Sonier v. Railroad, 141 Mass. 10, 6 N. E. 84. One who is right- fully on the platform at a station is not guilty of contributory negli- gence in failing to look out for an approaching locomotive, the bump- ers of which projected 18 inches over the edge of the platform, and struck the plaintiff. Langan v. Railway Co., 72 Mo. 392. A person laAvfully on a platform at a station, who hears a train approaching, and who then moves to the middle of the platform, where he would be safe from trains of ordinary width, is not guilty of contributory neg- ligence in failing to notice that the train is one of a peculiar build, having brake wheels projecting 14 inches from the car; and he may recover for injuries sustained by being struck by one of them. Sul- livan V. Railroad Co., 39 La. Ann. 800, 2 South. 586. A passenger waiting for a car in a depot, at the terminus of a street-railroad line, is not bound to anticipate the shifting of the car from one track to another by a side movement, and is not chargeable with negligence In standing so near the movable platform as to be injured by the shifting, in the absence of all warning by the employes, or of any knowledge of the structure for shifting the cars. Gordon v. Railroad Co., 40 Barb. (N. Y.) 546. 8 Pennsylvania R. Co. v. Bell. 122 Pa. St. 58. 15 Atl. 561. 4 Matthews v. Railroad Co., 148 Pa. St. 491, 24 Atl. 67. Where a (344) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 135 § 135. STANDING BETWEEN CAR TRACKS. It is contributory negligence, as matter of law, for a person to stand between two street-car tracks, and to board a street car in that situation, when he sees an- other car approaching on the other track, which strikes him just as he is about to get on board.' So it is neg- ligence, as matter of law, for a person intending to take a cable car to deliberately stand, after dark, be- tween double tracks, so near together that cars going in opposite directions pass within two feet of each other, and in that situation wait for, and attempt to take passage on, cars coming on one track, without paying any attention as to whether cars are approach ing within dangerous proximity on the other track. - railroad company has provided a safe platform for passengers at its station, a passenger who stands on the baggage platform, on the op- posite side of the track, which is so nai-row as not to admit of his standing between it and an approaching train, is guilty of contribu- tory negligence which bars an action for his death. Little Rock & Ft. S. Ry. Co. V. Cavanesse, 48 Ark, lOG, 2.S. W. lOo. § 135. 1 Davenport v. Railroad Co., 100 N. Y. 632, 3 N. E. 305; Halpin v. Railroad Co., 40 N. Y. Super. Ct. 175. But in an earlier case it was held that it is not necessarily negligence for a person to endeavor to board a street car on the side next to a parallel track, BO as to bar a recovery for injuries sustained by reason of the start- ing of the car, dragging him along until he is struck by a car on the adjoining track. Dale v. Railroad Co., 1 Hun, 14G, affirmed in eO N. Y. G38. 2 Miller v. Railway Co., 42 Minn. 454, 44 N. W. 533. One who mounts a street car between parallel tracks, without looking to see whether another car is coming, cannot recover for injuries sustained in being struck by the other car. Schreiner v. Railroad Co., 5 Mo. A pp. 59G. § 135 CARRIERS OF PASSENGERS. (Ch. 10 A passenger, standing between two street-car tracks, is guilty of contributory negligence in stepping back on one of the tracks as her car is approaching, without looking to see whether another car is approaching on the track on which she has stepped.^ The same rule has been applied to passengers stand- ing between tracks at stations. A passenger at a rail- road station, who, in anticipation of the approach of his train, stands on the planking between two tracks, and is injured in consequence of a coal train backing up on one track, while his train is arriving on the other track, is guilty of contributory negligence as matter of law; there being a safe place beyond the tracks, pro- vided by the company, at which he could have remain- ed until the actual arrival of his train." But in New- York it has been held that one intending to board a train is not guilty of contributory negligence, as mat- ter of law, in standing on a sidewalk between two par- allel tracks in front of the depot, so as to bar a recov- ery for injuries sustained in being caught on the walk between two trains on the parallel tracks.'' 8 Bailey v. Railway Co., 110 Cal. 320, 42 Pac. 914. 4 McGeehan v. Railroad Co., 149 Pa. St. 188, 24 Atl. 205. Ordi- nary prudence requires that one standing on a station platform be- tween two tracks, .sufticiently wide to give liim abundant room for safety, should give rea^^onable attention to his surroundings. He can- not recover where he becomes so abstracted in thought as to be ob- livious to his surroimdings, and where he stands so near the edge as to be struck by an approaching engine. Chicago, B. &, Q. R. Co. v. Mahara, 47 111. App. 208. 5 O'Toole V. Railroad Co., 58 Hun, G09, 12 N. Y. Supp. 347, affirmed 128 N. Y. 597, 28 N. E. 251. (346) •Ch. 10) CONTRIBUTORY NEGLIGENCE. § 136 § 136. CROSSING RAILROAD TRACK AT STATION. The rule requiring a person to stop, loolv, and listen before crossing a railroad track does not apply to the case of a passenger who is compelled to cross an in- tervening track at a station in order to reach his train. In such a case, the rule, as established by the weight of authority, is that the passenger is justified in assuming that the company has, in the exercise of due care, so regulated its trains that the road will be free from in- terruption or obstruction when passenger trains stop at a station or depot to receive and deliver passengers. Upon any other principle, the lives of passengers might be most dangerously exposed, in the hurry, noise, and confusion that generally attend the arrival and depar- ture of passenger trains at stations. Hence the rule which quite generally prevails is that the court can- not declare a passenger guilty of negligence, as mat- ter of law, in failing to look and listen for an approach- ing train before crossing an intervening track on his way between the station and the train; but that the question is one of fact for the jury.^ Thus, where the § 136. 1 Baltimore & O. R. Co. v. State, GO Md. 449; Atchisou, T. & S. F. R. Co. V. Shean, 18 Colo. 368, 33 Pac. 108; Denver & R. G. R. Co. V. Hodgson, 38 Colo. 117, 31 Pac. 954; Baltimore & O. R. Co. V. State, 81 Md. ::71, 32 A-tl. 201; Malmsten v. Railroad Co., 49 Mich. 94, 13 N. W. 373; Chicago & E. I. R. Co. v. Chancellor, 60 111. App. 525; Terry v. Jewett, 78 N. Y. 3:J8, attirmiug 17 Hua, 395; Bra&sell V. Railroad Co., 84 N. Y. 241; Parsons v. Railroad Co., 113 N. Y. 355, 21 N. E. 145; S. O. 37 Hun, 128; Hlrsch v. Railroad Co., 53 Huu, 033, 6 N. Y. .Supp. 162; Pinoo v. Railroad Co., 34 Hun, 80; Van Ostran v. Railroad Co., 35 Hun, 590; Gonzales v. Railroad Co., 39 How. Prac. (N. Y.) 407, reversing 1 Sweeney (N. Y.) 506; Green v. CUT) § 136 CARRIERS OF PASSENGERS. (Ch. 10 name of a station is called in the nighttime, and the train is brought to a standstill on a side track near the station, a passenger, having no notice of danger, is jus- tified in accepting the company's implied invitation to alight; and his failure to look and listen before at- tempting to cross the main track on his way to the sta- tion is not contributory negligence, as matter of law, which will bar a recovery for injuries sustained by be- Railway Co.. 11 Hun, 333; Armstrong v. Railroad Co., 66 Barb. (N. T.) 437, affirmed in G4 N. Y. 635: Jewett v. Klein, 27 N. J. Eq. 550; Boss V. Railroad Co.. 15 R. I. 14'J, 1 Atl. 9; Robostelli v. Railroad Co., 33 Fed. 796. One who, while cros.sing a railroad track from a depot to go to his train on the next track, is struck by a train running 2') miles an hour, which he did not see, and which, owing to a curve in the track, could have been seen only when within a short distance of the depot, is not necessarily guilty of contributory negligence. Chi- cago, St. P. & K. C. R. Co. V. Ryan (111.) 46 N. E. 208, reversing 62 111. App. 264. The rule requiring a person, before crossing a railroad at a highway, to stop, and look and listen for approaching trains, does not apply to persona who are crossing the track on a Avalk at a sta- tion, for the purpose of boarding a train. Warfield v. Railroad Co.^ 8 App. Div. 479, 40 N. Y. Supp. 783. A similar rule prevails in Eng- land. A person accompanying a passenger to a station was killed at the station by a collision with a train, while walking across the track. The accident happened in the nighttime, and, standing on the plat- form from which he started, deceased's view of the approaching train was cut off by another train on an intervening track, but after he had passed this intervening track there was a distance of six feet to the other track, and he could have seen the approaching train at any point of this six feet had he looked. The approaching train, how- ever, failed to sound any whistle, as it was required to do by de- fendant's rules. Held, that it was for the jury to determine whether or not plaintiff's failure to look for approaching trains while on the six-foot way, or the negligence of the company in failing to sound the whistle, was the proximate cause of the accident, and that a ver- dict could not be directed for defendant on the ground of contributory negligence. Dublin, W. & W. Ry. Co. v. Slattery, 3 App. Gas. 1155. (3-18) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 136 ing struck by an approaching train, but the question is one of fact for the jury.^ So where a passenger is car- ried beyond the station, and into the switching yard, and is struck by an engine while attempting to cross a track on her way out of the yard, it is for the jury to determine whether she, with such knowledge as she possessed of the peril of the place, and witJi the pre- sumption she "VN^as entitled to indulge as to the degree of care which defendant's employes would exercise for her protection, was herself guilty of negligence which proximately contributed to her injury.^ It has been 2 St. Louis S. W. Ry. Co. v. Johnson, 59 Ark. 122, 26 S. W. 593. A passenger whose hat has blown off is not guilty of negligence, as mattei- of law, in stepping on a railroad track to pick it up, so as to bar a recovery for injuries sustained by being struck by a locomo- tive. Bernhard v. Railroad Co., 1 Abb. Dec. (N. Y.) 131, affirming 32 Barb. (N. Y.) 1G5. It is a question of fact for the jury whether a passenger on his way to take a train, who steps back on a track to avoid an approaching train on another, is guilty of negligence in failing to observe a detached freight car moving slowly along the track on which he has stepped. Hempenstall v. Railroad Co., 82 Hun, 285, 31 N. Y. Supp. 479. The same rule applies, to a mall and express man, while on his way to the train to get the mail. Tubbs v. Railroad Co. (...ich.) 64 N. W. 1061. 3 Franklin v. Motor Road Co., 85 Cal. 63, 24 Pac. 723. Where a railroad company constructs a platform for the use of passengers be- tween two parallel tracks, a passenger who is walking along it on his way to the train, and whose progress is Impeded by a crowd of other passengers, is not guilty of negligence, as matter of law, in stepping on one of the tracks, to pass around the crowd, without looking for a rapidly approaching train, which strikes him as he steps on the track. Union Pac. Ry. Co. v. Sue, 25 Neb. 772, 41 N. W. 801. A passenger, leaving the station, passed along the platform, until he renfhed a stairway. On arriving at the bottom of the stairs, his further progress was obstructed by a pile of shells placed there by the company, and he was compelled to step aside, on the ends of (349) § 136 CARRIERS OF PASSENGERS. (Ch. 10^ held by the supreme court of the United States that a passenger who is compelled to cross an intervening track in alighting from a train, in order to reach the station, is not guilty of contributory negligence, as matter of law, in failing to be on the lookout for an ap- proaching train, where the ties have been covered up- with earth, and it does not appear that he knew that he was on a railroad track.* The supreme judicial court of Massachusetts has held that where it is necessary for a passenger to cross an intervening track in going from the station to his train, and he is asked by the station agent to cross over, it cannot be said, as matter of law, that he is guilty of contributory negligence in walking across the track, so as to preclude recovery for inju- ries sustained by being struck by an engine; but it is- a question of fact, to be determined by the jury in view of all the circumstances. ° So where a passenger alights at the station, on a narrow platform, between two tracks, and is struck by an engine while attempt- ing to cross one of them, the question whether she ex- ercised due care is for the jury, on her testimony that she looked up and down the track before stepping on it, and that she was unable to see any indication of an the cross ties, on a side track. After taliing a few steps, he was struck by an engine and injured. Steam was escaping from the en- gine on the main track, so that he did not hear the approaching train,, and he did not know that it was due. Held, that his failure to look for the approaching train, when stepping on the side track, was not negligence, as matter of law. Sanchez v. Railway Co., 3 Tex. Civ.. App. 89, 22 S. W. 242. * Richmond & D. R. Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748. e Warren v. Railroad Co., 8 Allen (Mass.) 227. (350) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 136 approaching train. ^ And a passenger going from the station house, in the direct and usual course, to enter cars which are waiting to receive passengers, who is obliged, by the location of the tracks, to pass over an unoccupied track, has a right to rely, to some extent, upon proper and usual signals of warning being given by trains or cars passing the unoccupied track at such a phice, and under such circumstances.^ In Pennsjd- vauia it has been held that, where the onlv Avav bv which a passenger can reach his train is across an in- tervening track at a station, no presumption of neg- ligence arises against him because he took that way; nor is it necessarily negligence for him to start across before the train which he intends to take has come to a full stop.* But in neither Massachusetts nor Pennsj'lvania is 6 Gaynor v. Railroad Co., 100 Mass. 208. 7 Chaffee y. Railroad Corp., 104 Mass. 108. "It cannot be main- tained, as matter of law, that the plaintiff was negligent in not look- ing up and down the track at the moment when, in a dark night, he stepped from the platform upon it. He had assured himself, shortly before, by looking each way, that there was no car approaching which •would make the crossing hazardous. His attention, with due care to his own safety, may haYe been properly turned for the instant, to see if there was any obstruction before him on the track, or oxcaYa- tion in his way, or danger of collision with other passengers passing to or from the cars." 8 Kohler y. Railroad Co., 135 Ta. St. 34G. 19 Atl. 1049. In an ac- tion for the death of a pas^senger, killed while crossing a track on his way from the station grounds by a frequented path, generally used by pas.sengers, the evidence was conflicting as to the exact position of the engine when she started to cross, and as to whether it was Btill on the track when she started. Held, that the question of her contributory negligence was for the jury. Delaware, L. & W. R. Co. V. Jones, 128 Pa. St. 308, 18 Atl. 330. (351) § 13G CARRIERS OF PASSENGERS. (Ch. 10 the rule as broad as that which obtains in most of the states. In Massachusetts it is held that a passenger alighting from a train at a station has no right to assume that trains will not cross each other at a sta- tion, and to shut his eyes and walk ahead on that as- sumption; and he cannot recover for injuries sustain- ed by being struck by an engine, while walking across a track at the station, where it appears that he must have seen the engine had he looked before going on the track.® In Pennsylvania it is held that a passenger who, under the mistaken belief that his own train is about to start, runs across an intervening track in front of an approaching train in plain view, without stopping to look and listen, is guilty of contributory negligence as matter of law.^" A similar ruling has been made in Canada.^^ 8 Connolly v. Railroad Co., 158 Mass. 8, 32 N. E. 937. A passenger at a railroad station is guilty of negligence in attempting to cross a track, in broad daylight, in front of an approaching engine, at a point not acquiesced in by the railroad as a crossing place, and without any invitation on the part of its employes. Young v. Railroad Co., 156 Mass. ITS, 30 N. E. 5G0. A person at a railway station, intend- ing to take a train, was struck by a locomotive, while crossing a track at a place not designed or adapted for a crossing, though used by persons as such for nearly 20 years. The accident happened in broad daylight, and the track was straight for a quarter of a mile, with nothing to obstruct plaiutitf's view. Held, that plaintiff was guilty of contributory negligence in failing to look, though a ti-ain had just passed on that track, and though she knew of one of de- fendant's rules which prohibited trains from passing each other at stations, or from following each other within five minutes. Wheel- wright V. Railroad Co., 135 Ma^s. 225. 10 irey v. Railroad Co., 132 Pa. St. 563, 19 Atl. 341; Foreman v. Railroad, 159 Pa. St. 541, 28 Atl. 358, affirming 11 Pa. Co. Ct. 475. 11 See note 11 on following page. (352) Ch. 10) CONTRIBUTORY NEGLIGENCE § 136 In all cases, however, the implied invitation and as- surance that a passenger compelled to cross an inter- vening track to reach his train may safely do so con- tinues only so long as the train is stoppc^i at the st£t- tion for the purpose of receiving passengers and allow- ing them to alight. Where a reasonable time for this I^urpose has been given, and the train has started on its way, such implied assurances are at an end, and the obligation to look both ways before crossing the track revives. The failure to do so, under such cir- cumstances, is contributory negligence as matter of law.^^ So the invitation to cross the tracks at a sta- tion extends only to persons who have a desire to get on or off the train, and does not extend to people whose only object in crossing the track is to do that with which the railroad company has no concern.^^ So a passenger, who undertakes to cross a track without necessitA', when the company has provided another and a safe way, is guilty of contributory negligence, as matter of law, in failing to observe a train in plain A passenger "o-ho gets off ou the wrong side of the train, and is killed while crossing the track, by a locomotive which he could not have failed to see had he used his eyes, is guilty of conti'ibutory negligence. Morgan v. Railroad Co. (Pa. Sup.) 16 Atl. 353. 11 A person who goes to a station to meet an arriving passenger Is guilty of negligence, as matter of law, in proceeding to cross a side track between the train and the station, without looking for an approaching train, which strikes him as he is about luilf way across the track. Casey v. Railway Co., 15 Out. 574. 12 Chaffee v. Railroad Co., 17 R. I. 658, 24 Atl. 141; "Weeks v. Rail- roail Co., 40 La Ann. 800, 5 South. 72. 13 Illinois Cent. R. Co. v. .Tames, 07 111. App. VAd. V. 1 FET.CAR.PAS. — 23 (353) § 187 CARRIERS OF PASSENGERS. (Cb. 10 view, which strikes him while he is crossing the track.'* § 137. SAME— AT INTERMEDIATE STATION. The supreme court of Minnesota has held that a pas- senger who leaves his train at an intermediate station is gnilty of contributory negligence, as matter of law, in failing to look and listen for an approaching train before crossing an intervening track on his w^ay back to his train. To a passenger who thus leaves his train at an intermediate station the company gives no as- surance that trains will not pass while he is crossing or recrossing the track, and the passenger assumes the risk. Neither is the conductor's cry of "All aboard" an assurance to a passenger who has left his train that 1-1 Bancroft v. llnilroad Corp., 97 Mass. 275; Gonzales v. Railroad Co.. 38 N. Y. 440; Parson.s v. Kailroad Co., 85 Hun. 23. 32 N. Y. Snpp. .598; Warner v. Kailroad Co., 7 App. D. C. 79. A passens^er who lias alighted from a train, and is ^Yaiting for another train on a branch line, is guilty of coulributory negligence, as matter of law, in stepping on the track, and cannot recover for injuries sustained in being struck by an engine approaching behind him, the headlight on which could have been seen for 80 yards. Ensley Ry. Co. v. Chewn- ing. 93 Ala. 24, 9 South. 458. One employed to carry mails from a rail- road station to the trains stopped on a side track for Ave or ten min- utes, with the mail bag on his shoulder, to convex'se with some friends. He was killed by a freight car running along the side track. Held, that he was guilty of contributory negligence, as matter of law. Dell V. Glass Co., 1G9 Pa. St. 549, 32 Atl. 601. The burden of proving freedom from .contributory negligence is not sustained by evidence that a person at a station was run over by a train visible for 900 feet, where it further appears that the company had provided bridges and stairways to enable persons to cross the tracks, and had forbidden persons from going on the tracks. Riester v. Railroad Co. (Sup.) 44 K. Y. Supp. 739. (354) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 138 he may cross the main track in safety, without looldnjji: for approaching- trains.^ But in New York it has been held that where an excursion train stops at a junction point, and one of the excursionists leaves the car to get a drink of water, the question whether, on his return, he is guilty of contributory negligence in running across an intervening track when he hears the signal to start, without looking for an approaching train, is for the jury.' § 138. SAME— STEPPING FROM CAR TO TRACK. A passenger who steps from a train in the nighttime, after the name of his station has been called, and the train has come to a stop, is not, as matter of law, guilty of conti'ibutory negligence in failing to look for an ap- proaching train on a parallel track, which strikes him almost immediately after he leaves his train/ So a passenger getting off a slowly moving train, with the assistance of the conductor, is not guilty of negligence in failing to be on the lookout for a train on a parallel track, which strikes him as soon as he touches the ground.' § 137. 1 De Kay v. Railway Co., 41 :Minn. 178, 48 N. W. 182. 2 Wandell v. Corbin, 38 Hun, 391, 49 Hun, G08, 1 N. Y. Supp. 795. § 138. 1 Philadelphia, W. & B. R. Co. v. Anderson, 72 Md. 519, 20 Atl. 2; Keller v. Railroad Co., 2 Abb. Dec. (N. Y.) 480. affirm- ing 17 How. Prac. (N. Y.) 102; Penu.sylvania R. Co. v. White. S8 Pa. St. 327. In this last ca.se it was said that the rule to stop, look, and listen is not always applicable to passengers leaving a train and crossing the track to reach the depot at the point of destination. They may rely, to some extent, on tlio i)r«'sumption that the company will perform its duty, and fm-nisli tliem a safe means of egress. 2 McDonald v. Railroad Co., 127 Mo. 38, 29 S. W. 848. (355) § 139 CARRIERS OF PASSENGERS. (Ch. 10 *§ 139. SAME— STREET CARS. In most States the rule is that a passenger who alijihts from a street car in a place of safety is guilty of contributory negligence, as matter of law, in walk- ing around the rear end of the car onto a parallel track, without looking, right in front of another car, which strikes him the instant he sets foot on the track.^ And a passenger on a street railway, who, while the car is moving, jumps from it on the side next to the parallel track, and who is struck by a car running in the op- posite direction as soon as he lands on the ground, is guilty of contributory negligence as matter of law.^ In Nebraska, however, it has been held that a pas- senger who alights from a street car on the side next to a parallel track, from car steps not barricaded to prevent it, is justified in believing that due care will be exercised by the company in regard to approach- § 139. 1 Buzby v. Traction Co., 126 Fa. -t. 559, 17 Atl. 895; Smith V. Railway Co. (Or.) 46 Pac. 186; Toledo Cousol. St. Ry. Co. v. Lut- terbeck, 11 Ohio Cir. Ct. 279. A passenger who alights from a street car. and proceeds to cross a parallel track, is guilty of contributory negligence in failing to observe another car on the parallel track, in plain view, while he was between the two tracks. Doyle v. Railway, 5 App. Div. 601, bJ N. Y. Supp. 440. 2 Weber v. Railway Co., 100 Mo. 194, 12 S. W. 804, and 13 S. W. 587; MacLeod v. Graven, 19 C. C. A. 016, 73 Fed. 627. A 15 year old boy, stealing a ride on a street car, who jumps from the platform of the car, in obedience to the driver's orders and a threatening gesture by the latter, and is run over by another car on a parallel track, is chargeable with contributory negligence, where that car was in plain view for some time before the accident. Hogan v. liailroad Co.. 121 N. Y. 647, 26 N. E. 950, reversing 58 N. Y. Super. Ct. 322, 11 N. Y. Supp. .588. (356) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 139 ing trains on that track, and he is not guilty of neg- ligence, as matter of law, in failing to look for an ap- proaching train before stepping thereon/ So, where a cable railroad has a rule in force that at a junction east-bound trains shall clear the junction before west- bound trains shall approach on a parallel track, a pas senger who leaves an east-bound train is not charge- able with contributory negligence, as matter of law, in failing to stop and look and listen before crossing the parallel track. He has a right to rely on the rule that no west-bound train shall approach the junction until it is cleared bv the east-bound train.* And the question whether a passenger, on alighting from a street car at night, in a violent hailstorm, is guilty of contributory negligence in crossing a parallel track, with umbrella raised, is for the jury, where he testi- fies that he was a stranger in the city, was ignorant of the existence of the parallel track, and did not see it because covered with water. ^ 3 Omaha St. Ry. Co. v. Loehneisen, 40 Neb. 37, 58 N. W. 535. 4 Burbridge v. Railway Co., 36 Mo. App. G6i>. 6 Boyer v. Railway Co., 54 Minn. 127, 55 X. W. 825. A passenger who gets off a street car, and stops to look for another car on a parallel track before trying to cross it, is not negligent, as matter of law, and may recover for injuries sustained in being struck by a car on the parallel track, which he had not seen, owing to the fact that his view was obstructed by the car from which he had alighted. Snell V. Railway Co., 9 Ohio Cir. Ct. 348. To avoid a truck on a crowded street, a boy jumped on the rear platform of a street car. which blocked the crossing. The conductor kicked at him. and, to avoid tlie kick, the boy jumped from the i)latform, landing on the parallel track, without looking for approaching cars, and was struck by a car moving at an unlawful rate of .>,Tcss to the station barred by a freight train on an interven- ing track, and who starts to go around the train, and falls into a cattle guard, with the location of which he is familiar, is guilty of contributory negligence, as matter of law, whether the night is dark or not." A train approaching a flag station at night was signaled by a bystander, but it did not come to a stop until it had passed the station platform about 200 feet. It was held that an intending passenger was guilty of contributory negligence, as matter of law, in running along the track to reach the train, and that there could be no recovery for his death caused by the train's back- ing towards the station; he being unable to see its movement in the dark.^ But a passenger, who has injuries sustained by reason of tlie luiexpectecl baoliinj; of the eliH-tric car, crusliiiig Iier between it and tlie snow banl<. Cameron v. Trunk Line, 10 Wasli. 507, 39 Tac. 128. 2 St. Louis, L M. & S. Ky. Co. v. Cox. m Aik. KM), 29 S. W. .".S. 3 St. Louis & S. F. K. Co. v. ^^■hit;k^ 20 C. C. A. 190, 74 Fed. 296. .Tu(lj-^e Caldwell dissented very vijjurously, and it would seem justly, in this eas(>. He said: "In the ease at bar, 10 men— 12 jurymen and 4 judges— have been called upon to draw a eouclusion from the same evidence. Of this number, the 12 men appointed liy lh(> constitution to be the exclusive triors of the (luestiou have found WMiitile was not suilty of contributory negligence, anil the learuiMl and experienced trial judge and one mendier of this court have found that the testi- mony abundantly sup];orts the verdict of the Jury, and two judges of lliis court ai-e of a diffcrt-nt oi)ini()u. The rule of the supreme court is that, unless 'all reasonalile men' would draw the conclusion that the party was guiltj^ of eontributoi-y negligence, the verdict of the Jury must stand; but the majority of th(> court liave substituted for the rule of the supreme court a rule wiiich, if i)ut into words. would read that if, out of 16 reasonable men. 2 can 1)0 found wlio draw conclusions different from the 14, the verdict of the 2 sli.ijl iire- (331)) § 140 CARRIERS OF PASSENGERS. (Ch. 10 been carried beyond her destination, and discharged some distance from the station, and directed to walk to the station house over the track, is not guilty of con- vail over that of the 14. But this statement of the uew rule falls far short of illustratiup the extent of the invasion of the functions of the jury in tliis case; for I hazard nothing in saying that a fair and impartial jury cannot be found in this circuit of 11 states who would not, upon the evidence in this record, return the same verdict that was returned by the jury that tried this case. * * * It is only in X'ecent times, and since corporations have absorbed the capital and business pm-suits of the country, that a tendency has developed, in some- courts, to impinge on the functions of the jury and the constitu- tional rights of suitors. This invasion of the functions of the jury is attempted to be justified upon the ground that juries are prejudiced against corporations, and that it is the duty of the courts to protect them from such prejudice. This is an unfounded assumption. The danger to life and property growing out of the management and operation of railroads has been greatly lessened in recent years, and this improvement is largely due to the verdicts of juries. Cor- porations formed for pecuniary profit act from pecuniary considera- tions alone, and it was not until it became obvious that it was cheaper to incur the expense necessary to give greater security to life and property in the operation of their roads than it was to pay the damages awarded by the verdicts of juries for negligently failing to provide reasonable safeguards that railroad companies exercised more care, and adopted better and safer methods, for the operation of their roads. Juries whose intelligence and impai'tiality are im- pugned have no opportunity to be heard in their own defense. If they were accorded an opportunity to answer this charge of the judges against them, they would probably content themselves with a reference to the 'mote' and the 'beam,' with an earnest asseveration that the beam was not in their eye." In Mills v. Railroad Co., 5 App. Div. 11, 39 N. Y. Supp. 280, the facts were as follows: PlaintlfE. who was familiar with the surroundings, alighted from , a train a short distance from the passenger station, at a village where it stopped only for coal and water. Starting for the station, on another ti-ack, while under the coal chute, which extended over the tracl\, and left no room to get off at the sides, he was struck by a train coming from (360) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 141 tributory negligence, as matter of law, in attempting to walk over a cattle pit in the track/ g 141. CRAWLING UNDER OR BETWEEN CARS. A passenger or otJier person on his way to or from a railroad station is guilty of negligence, as matter of law, in attempting to crawl through or under cars in a train which obstructs his further progress, where he knows that an engine with steam up is attached to the train, and is liable to start at any moment. It is diffi- cult to conceive of an act more recklessly careless than such an attempt.^ But where a passenger is directed bv the ticket agent to take a train awav from the de- f C7 I. pot, the question whether she is guilty of contributory negligence in passing through an open space between two cars is one of fact for the jury, where she testifies that she looked for approaching cars before going into the open space, and failed to discover slowly moving cars detached from the engine, w^hich struck one of the standing cars, and thus closed up the open space while plaintiff was walking through it.^ iu front, and which he knew was flue at about that time. The train could have been seen some distance ahead, but, just before being struck, smoke from an engine got in his eyes. There was also con- sidoralile noise from other engines, and it was imi)ossi1)le to move quickly, owing to the track's being wet from tlie water tank. Held that, as matter of law, he was guilty of contributory negligence. * New York, C. & St. L. Ry. Co. v. Doane, ll.l Ind. 4:^5, 17 N. E. 913. § 141. 1 Smitli v. Kailroad Co., 55 Iowa, 33, 7 N. W. 31)8; Chicago & X. W. R. Co. V. Coss, 73 111. 304; Chicngo. K. & Q. U. Co. v. Dewey, lit; 111. 2."): .Memphis ic C. K. Co. v. Coiie'and, Gl Ala. 370. a Alleuder v. Ituilroad Co., 37 Iowa, 274. (3G1) § 143 CARRIERS OF PASSENGERS. (Ch. 10 § 142. BOARDING CAR AHEAD OF TIME. It is not contributory negligence, as matter of law, for a passenger to enter a passenger car a few minutes in advance of the time fixed by the rules of the com- pan}-, of which he is ignorant/ Neither is it negli- gence per se for a passenger to enter a coach at a sta- tion, at about the time designated for the departure of the train, and in apparent readiness for passengers, ex- cept that the locomotive has not yet been attached, where the passenger is ignorant of the rule of the com- pany forbidding passengers to get on the cars until the train is made up." § 143. BOARDING CAR NOT DRAWN UP AT STATION PLATFORM. A railroad company may make reasonable rules re- specting the time, mode, and place of entering the cars, and the passenger must comply with them if they are known to him. He cannot violate them, and pursue another course, and hold the company liable for dam- ages thus occasioned, which could have been avoided by conforming to the rules and regulations of the com- pany, even though the jury may believe that an ordi- narily prudent person would or might have adopted, the same course. But the mere existence of a plat- form in front of the depot is not, as matter of law, nec- essarily notice to the passenger that the train will be drawn up at that place to receive him, and that the § 142. 1 Western Md. R. Co. v. Heiokl, 74 Md. 510, 22 Atl. 323. 2 Root r. Railway Co., 33 Fed. 8.5S. (362) •Ch. 10) CONTRIBUTORY NEGLIGENCE. § 143 company prohibits passengers from entering them else- where. If a station room is full, or if it is intolerably offensive by reason of tobacco smoke, so that a passen- ger has good reason for not remaining there, it will justify his endeavor to enter t-he cars at as early a period as possible, though they are not drawn up at the station platform, but are standing some distance away; and if, in so doing, he receives an injury from the unsafe or dangerous condition of the station plat- form or steps, in a place where passengers would nat- urally go, the company is liable therefor.^ So where the sleeping coach of a long train is outside of the de- pot yard, it is not contributory negligence for a pas- senger to approach the coach by a sidewalk outside the depot yards, leading to it in a direct route, and con- structed by the railroad company, instead of entering one of the front coaches at the depot platform, an4. § 150. 1 Solomon v. Railway Co., 103 N. Y. 437, 9 N. E. 430. In this case a passenger attempted to board an elevated train after the signal to start had been given, and the train was slowly moving. He placed his feet on the car platform, and took hold of the stan- chions of the car with both hands, when the conductor closed tlie gate. He was carried along a few feet, when he was stnick by a water pipe near the ti-ack. Trains ran every five minutes. Hold, that Uaere could be no recovery. Id., affirming Card v. Railway Co.. 103 N. Y. €70, 9 N. E. 433. (370) § 150 CARRIERS OF PASSENGERS. ^ (^Ch. 10 would render the consequences of a misstep possibly, if not certainly, serious, is guilty of contributory neg- ligence, as matter of law, though the train was mov- ing only one or two miles per hour, and though he was invited to get on by the conductor.^ "If impatient travelers will persist in making leaps at flying trains, and knowingly taking the chances of frightful hurt, or death itself, in one of its most horrible forms, — that of being ground into quivering pieces under the wheels of a rushing train, — and such disaster befalls, they must understand that the consequences of their mad- ness must be visited on their own heads." * 2 Hunter v. Railroad Co., 126 N. Y. 18, 26 N. E. 958; Id., 112 N. y. 37, 19 N. E. 820. See, also, Myers v. Railroad Co., 88 Hun, G19, 34 N. Y. Supp. 807; Id., 82 Hun,. 36, 31 N. Y. Supp. 153; Fahr v. Railway Co., 9 Misc. Rep, 57, 29 N, Y. Supp. 1; Phillips v. Railroad Co., 49 N. Y. 177, reversing 57 Barb. 644. 3McMurti'y v. Railroad Co., 67 Miss. 001, 7 South. 401. In this case it was held that an old man, 65 years of age, benumbed with cold, and incumbered by a valise in his right hand, was guilty of contributory negligence, as matter of law, in attempting to board a train on a dark night, in the midst of rapidly falling snow, as it was moving out of a flag station, where there were no accommodations for passengers, and where it had either not stopped at all, or failed to stop long enough to permit him to get on. A passenger who at- tempts to board a moving train, which has stopped a sufficient length of time to enable all to get on board, and who is struck by an ob- struction near the track. Is guilty of contributory negligence, as mat- ter of law. McLaren v. Railway Co., 100 Ala. 506, 14 South. 405; Chicago & N. W. Ry. Co. v. Scates, 90 111. 586; Harper v. Railway Co., 32 N. J. Law, 88. A passenger who, in an attempt to board a moving train, catches his foot in a hole in the station platform, and falls under the car, and is killed, is guilty of contributory negligence, as matter of law, and there can be no recovery for his death. Bacon V. Railroad Co., 143 Pa. St, 14, 21 Atl. 1002. Attempt to board moving train held negligence per se in Knight v. Railroad Co., 2C La, (380) Cll. 10) CONTRIBUTORY NEGLIGENCE. § 150 In some jurisdictions, however, it cannot be affirmed, as a universal proposition of law, that it is negligence per se for a person to attempt to board a moving train. The age and physical condition of the person making the attempt, the rate of speed of the train, the nature of the car and of the place, and all the attendant facts and circumstances, enter into the question; and, while any one of these facts might possibly be sullicient to justify the conclusion of negligence as matter of law, ordinarily it is a question of fact for the jury; the test being whether a person of ordinary care and prudence would, uuder the circumstances, have made the at- tempt/ So, if a reasonable time has not been given a passenger to board the train, and its motion is so slight that no danger is apparent, his attempt to get on board is not negligence as matter of law, but the question is for the jury,' So the New York court of appeals has Ann. 462; Denver, S. P. & P. E. Co. v. Pickard, 8 Colo. 163, 6 Pac. 149; Hays v. Railway Co., .51 Mo. App. 438; Mi.*:souri Pac. R. Co. v. Texas & P. R. Co.. 36 Fed. 879; Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 34 Fed. 92; Harkey v. Railroad Co., 11 Fed. Cas. 522. Failure of a railroad company to stop its train for five minutes at a station, as required by statute, will not justify one in boarding the train, if such act, under the circumstances, was negligence contribut- ing to the injury. Galveston, H. & S. A. R. Co. v. I.e Giei-se, 51 Tex. 189. It is contributoiy negligence, as matter of law, for a young man to attempt to jump on a train moving at least six or seven miles per hour, where the jump is made in opposition to, and not with, tlie direction In which the train is moving; and it is inuuaterial that the conductor told him to jump on. Heaton v. Railroad Co., 65 Mo. App. 479. 4 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 54.''.. 13 .'^outh. IS; Baltimore & O. R. Co. v. Kane, GO" Md. 11, 13 All. 387; Swigort v. Railroad Co., 75 Mo. 475. 6 Johnson v. Railroad Co., 70 Pa. St. 357; Brooks v. Railroad Co., (381) I 150 CARRIERS OP PASSENGERS. (Ch. 10 recently held that one who, at the conductor's bidding, attempts to board a train moving from two to three miles per hour, past an unobstructed station platform, at a station where trains do not stop, is not negligent per se.* 21 Wkly. Dig. (N. Y.) 4G4. It is not, as matter of law, contributory negligence for a passenger to attempt to board a car after a signal to start the train has been given, wliere the train is at rest when the signal is given. He may not know that the signal has been given, or, if he does know it, there may be reason to think that he can get on before the train actually starts. Dawson v. Railroad, 156 Mass. 127, 30 N. E. 4GG. In Texas the question whether an attempt to board a train in motion is contributory negligence is a matter of fact, to be determined by the jury. Texas & P. Ry. Co. v. Murphy, 46 Tex. 356. It is for the jury to ascertain whether, under all the facts, the effort was made to board the train when an ordinarily prudent man would not have attempted it. It is for the jury to determine whether the danger of boarding the train when in motion is so ap- parent as to make it the duty of one desiring to board it to refrain from the attempt. Kansas & G. S. L. Ry. Co. v. Dorough, 72 Tex. 108, 10 S. W. 711. 6 Distler v. Railroad Co.. 151 N. T. 424. 45 N. E. 937, reversing 78 Hun, 252, 28 N. Y. Supp. 8G5. Commenting on the Hunter Case, 112 N. Y. 371, 19 N. E. 820; Id., 126 N. Y. 18. 26 N. E. 958,— the court said: "It may be said of the decisions in that case that in the first it was held that it was negligence per se to board a train moving from four to six, or six to eight, miles per hour, on account of its com- paratively rapid motion; and, in the second, as the danger was mani- fest, unusual, and peculiar, and must have been understood, that, although moving at a less rate of speed, it was negligence, as matter of law, to attempt to board it while in close proximity to a prominent object, so situated that in case of failure, or of a misstep or other slight misadventure, the risk of being thrown against the obstruction and injured would be imminent" (382) Ch. 10) CONTRIBUTORY NEGLIGENCE. § ] 51 § 151. SAME— ALIGHTING FROM MOVING TRAIN. All courts are united on tlie proposition that it is neuliueuce, as matter of law, for a passeu<>er to vol- nntarily jump from a rapidly moving train. ^ "If there be any man who does not know that such leaps ai'e ex- tremely dangerous, especially when taken in the dark, his friends should see that he does not travel by rail- road." ^ So, also, to jump from a moving train in the dark is generally held to be negligence as matter of law.^ The earlier cases seem to go still further, and to hold that in all cases a passenger who leaves a mov- ing train is guilty of negligence, as matter of law, no § 151. 1 MeLarin v. Railroad Co., 85 Ga. 504, 11 S. E. 810; Coleman V. Railroad Co., 84 Ga. 1. 10 S. E. 498; Dixon v. Railroad Co., 80 Ga. 212, 5 S. E. 49G; Jarrett v. Railroad Co., 83 Ga. 347, 9 S. E. 681; At- lanta & ^Y. P. R. Co. V. Dlckerson, 89 Ga. 455, 15 S. E. 534; Barnett V. Railway Co., 87 Ga. 766, 13 S. E. 904; Watson v. Railway Co., 81 Ga. 476, 7 S. E. 854; Ohio & M. Ry. Co. v. Stratton, 78 111. 88; Houston & T. C. Ry. Co. v. Leslie, 57 Tex. 83; [Missouri, K. & T. Ry. Co. V. PeiTy, 8 Tex. Civ. App. 78, 27 S. W. 496; Victor v. Railroad, 1G4 Pa. St. 195, 30 Atl. 381. A passenger who alights from a train moving so rapidly that she thinks she cannot alight in safety is guilty of contributory negligence, as matter of law. Williams v. Rail- way Co. (Tex. Civ. App.) 36 S. W. 329. 2 Railroad Co. v. Aspell, 23 Pa. St. 147. 8 Richmond & D. R. Co. v. Moms, 31 Grat. (Va.) 200; Jacob v. Railroad Co., 105 Mich. 450, 03 N. W. 502; Railway Co. v. Mayes. 58 Ark. 397, 24 S. W. 1076; East Tennes.<;ee, V. & G. Ry. Co. v. Holmes, 97 Ala. 332, 12 South. 286. But the rule is different if the passenger does not know that tlie train is moving. In such a case the question Is whether the passenger ought to have known that tlie train wa-s in motion, and it is error to direct a verdict for defendant on the theory that it is negligence for a passenger to alight from a moving Li'ain. Brooks v. Railroad, 135 Mass. 21. (3s:i) § 151 CARRIERS OF PASSENGERS. (Ch. 10 matter how slowly the train may be moving.* But the o-eneral rule now is that courts will not, as matter of law, declare a person guilty of contributory negligence who attempts to leave a train while it is moving slow- ly, especially at a platform. The question as to wheth- ■er the act constitutes negligence depends upon wheth- er the danger was so obvious that a prudent person would not, under the circumstances, have made the at- tempt, and is to be determined by the jury upon a con- sideration of the rate of speed acquired by the train, the place, the conduct of those in charge of the train, and all the circumstances connected with the act of alighting.^ Thus it has been held not negligence per * Damont v. Railroad Co., 9 La. Ann. 441; Blodgett v. Bartlett, 50 Ga. 353; Secor v. Railroad Co., 10 Fed. 15; Lucas v. Railroad Co., 6 Gray (Mass.) 64; Gavett v. Railroad Co., 16 Gray (Mass.) 501. In a recent Massachusetts case it laas been held to be contributory neg- ligence, as matter of law, for a passenger to alight in a dark place from a moving train, under the belief that It has stopped, when the circumstances do not amount to an invitation to alight, or an assur- ance that it is safe to do so. England v. Railroad Co., 153 Mass. 490. 27 N. E. 1. So it has been held that, where a train stops a sufficient length of time to give passengers a reasonable opportunity to alight, a passenger is guilty of contributory negligence, as matter of law, in waiting until the train starts, and in jumping off while it is in mo- tion. McClintock v. Raikoad Co., 21 Wkly. Notes Cas. (Pa.) 133; Pennsylvania R. Co. v. Lyons, 129 Pa. St. 113; Illinois Cent. R. Co. V. Slatton, 54 111. 133; Central Railroad & Banking Co. v. Miles, 88 Ala. 256, 6 South. 696. The true basis for these decisions would seem to be the absence of negligence on the carrier's part. 5 Little Rock & Ft. S. Ry. Co. v, Atkins, 46 Ark. 425; St. Louis, I. M. & S. Ry. V. Person, 49 Ark. 182, 4 S. V>\ 755; Little Rock & Ft. S. Ry. Co. V. Tankersley, 54 Ark. 25, 14 S. W^ 1009; Carr v. Railroad Co., 98 Cal. 366, 33 Pac. 213; Covington v. Railroad Co., 81 Ga. 273. 6 S. E. 593; Chicago & A. R. Co. v. Byrum, 153 111. 131, 38 N. E. 578; Illinois Cent. R. Co. v. Able, 59 111. 131; Pennsylvania Co. v. Marion, (384) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 151 se to leave a train moving three miles per hour/' or even five miles per hour/ But when the rate of speed 123 Ind. 415, 23 X. E. 973; Louisville & N. E. Co. v. Crunk, 119 Ind. 542, 21 N. E. 31 : .Teffersouville, M. & I. R. Co. v. Hendricks, 41 Ind. 48; Louisville. E. & St. L. C. R. Co. v. Bean. 9 Ind. App. 240, 30 X. E. 443; Nichols v. Railroad Co.. 68 Iowa, 732, 28 N. W. 44; Rabeu V. Railroad Co., 74 Iowa. 732, 34 N. W. G21; Atchison, T. & S. F. R. Co. V. Huglies, 55 Kan. 491, 40 Pac. 919; Cumberland Val. R. Co. v. Maugans, 61 Md. 53; McCaslin v. Railway Co., 93 Mich. 553, 53 K. W. 724; Strand v. Railway Co., 64 Mich. 216. 31 N. W. 184; Georgia Pac. Ry. Co. v. West, 66 Miss. 310, 6 South. 207; Schaefor V. Railway Co., 128 Mo. 64, 30 S. W. 331; Fulks v. Railway Co., Ill Mo. 335, 19 S. W. 818; Leslie v. Railroad Co., 88 Mo. 50; AValler v. Railroad Co., 83 Mo. 608; Clotworthy v. Railroad Co., 80 Mo. 220; Sti-aus V. Railroad Co., 75 Mo. 185; Price v. Railroad Co.. 72 Mo. 414; Kelly V. Railroad Co., 70 Mo. 604; Doss v. Railroad Co.. 59 Mo. 27; Taylor v. Railway Co., 26 Mo. App. 336; Jackson v. Railway Co., 29 Mo. App. 495; Richmond v. Railway Co., 49 Mo. App. 104; Nance V. Railroad Co., 94 N. C. 019; Thomas v. Railroad Co., 38 S. C. 485. 17 S. E. 226: Louisville & N. R. Co. v. Stacker, 86 Tenn, 343, 6 S. W. 737; Galveston, H. & S. A. Ry. Co. v. Smith, 59 Tex. 406; Kelly v. Railroad Co., 70 Wis. 335, 35 N. W. 538; .Tones v. Railroad Co., 4 Api». D. C. 158, athrming 21 D. C. 346; lOdgar v. Railway Co., 11 Out. App. 4.52. "If the train stops, and does not remain a reason- able time, and a passenger, to avoid being carried beyond his destina- tion, gets off a slowly starting train, and he is thus injured, he is not guilty of contributory negligence. If, however, the train only slows up, and does not stop, and is moving with accelerating speed, and a pa.ssenger had knowledge, or by reasonable observation might have obtained knowledge, of such increasing movement, and lie jumped off and is Injured, he Is guilty of contributory negligence, and cannot recover." McSloop v. Railroad Co.. 59 Fed. 431. In Texas, it is generally held that the attempt to leave a moving train is not negligence per se, and the jury must determine whether the at- tempt and method of its execution constitute contributory negligence. International & G. N. R. Co. v. Satterwhite (Tex. Civ. App.) 38 S. W. 6 Suber v. Railway Co., 96 Ga. 42. 23 S. E. 387. T New York, P. & N. R. Co. v. Coulbouru, 09 Md. 360, 16 All. 208. V. 1 FET.CAU.PAS. 25 (3b0) § 151 CARRIERS OF PASSENGERS. (Ch. 10 is six miles per hour, or more, the courts generally hold it to be negligence per se to jump therefrom.' 401. And this nile obtains even tlion.sli the conductor tells the pas- senger that the train will stop at the station. Missouri, K. & T. Ry. Co. V. Meyers (Tex. Civ. App.) 35 S. W. 421. A passenger about 70 years old, and large and coiimlent, arose from his seat in the smok- ing car as soon as the train stopped at his destination, made his way to the door as speedily as possible, but when he reached the door he was delayed by a group of incoming passengers. He pushed his way through them; and, when he reached the last, or next to the last, step leading down from the platform, he discovered that the train had commenced to move. The impetus which he had acquired rendered it difficult for him to stop himself, and he was thrown to the ground. Held, that the question of his contributory negligence in attempting to leave a moving car was for the jury. Pennsylvania R. Co. V. Peters, 116 Pa. St. 200, 9 Atl. 317. A passenger started to leave a train as soon as it stojiped. The stop was momentary,— less than a minute.— but she did not know that the train had started till she reached the car platform, and had descended one of the car steps. She then souglit to return to the train, but became dizzy in attempt- ing to turn around, and fell backward from the car. Held, that she was' not guilty of contributory negligence, as matter of law. Mahar V. Railroad Co., .5 App. Div. 22, 39 N. Y. Supp. 03. A passenger who is in the act of stepping from the lower car step to the station plat- form when the train starts may step ofC if he believes he can do so with reasonable safety, without being guilty of negligence, as mat- ter of law. Sanderson v. Railway Co., 64 Mo. App. 655. Where the testimony is conflicting as to wliether the train was in motion when plaintiff started to descend from tlie car. the question of plaintiff's contributory negligence is for the jury. Enches v. Railroad Co., 135 Pa. St. 194, 19 Atl. 939. 8 Six miles: Reibel v. Railroad Co.. 114 Ind. 476. 17 N. E. 107; Lake Shore & M. S. Ry. Co. v. Bangs. 47 Mich. 470, 11 N. W. 276; Dewald v. Railroad Co., 44 Kan. 586, 24 Pac. 1101; Central Railroad & Banking Co. v. Letcher. 69 Ala. 106. Six to ten miles: Scully v. Railroad Co., 80 Huu, 197, 30 N. Y. Supp. 61. Ten or twelve miles: Jeffersouville R. Co. v. Swift, 26 Ind. 459. Eighteen miles: Brown V. Railroad Co., 80 Wis. 162, 49 N. W. 807. "If to get on or off a train running at the rate of four miles an hour is not negligence per (380) Ch. 10) CONTRIBUTORY NEGLIGENXE. § 152 § 152. SAME— AGGRAVATING CIRCUMSTANCES. Aggravating circumstances may exist which impel courts to declare an attempt to get on or off a moving train negligence per se, though in the absence of such circumstances the question might be one of fact for the jury. Thus the attempt of a passenger incum- bered with bundles to leave a moving train is generally held to be negligence per se.^ So it is contributory negligence, as matter of law, for a passenger carrying a 12 year old girl in one arm to attempt to leave a train which was in motion before he got out of the car, and se. would such an act be so regarded \f the train was running at twice that rate of speed? In our opinion, it would be, and this opin- ion is based on our linowledge and experience in such mattei*s. While we are satisfied with this conclusion, yet we must confess it lias the appearance of being somewhat arbitrary. But the limit must be placed somewhere." Murphy v. Railway Co., 43 Mo. App. 342. § 1.52. 1 Toledo, St. L. & K. C. R. Co. v. Wingate, 14;i lud. 125. 42 N. E. 477, affirming 37 N. E. 274; Pennsylvania Co. v. Hixon, 10 Ind. App. 520, 38 N. E. 56; Burrows v. Railway Co., 63 N. Y. 556, re- versing 3 Thomp. & C. (N. Y.) 44; South & N. A. R. Co. v. Schaufler, 75 Ala. 136. A drover accompanying stock, who, in the niglittime. with one hand filled with a lantern and a prod pole, attempts to climb on a freight car, when its speed is so great and increasing as to induce a belief in his mind that it will be unsafe for him to get onto the caboose when it reaches him, is guilty of contributory negli- gence, as matter of law. McCorlvle v. Railway Co., 61 Iowa, 555, 16 N. W. 714. A drover, who. with a valise in his hands, attempts to climb the ladder of a moving freight car, is guilty of contributory negligence, as matter of law. Richmond & D. R. Co. v. I'iclilesimer, 89 Va. 389, 16 S. E. 245; Id., 85 Va. 798, 10 S. E. 44. It is negli- gence, as matter of law, for a person, both of whose arms are full of bundles, to attempt to board a train moving from four to seveu miles i)('r liour. Birmingham Electric Co. v. Clay, 108 Ala. 233, 19 South, 309. (387) ^ 152 CARRIERS OF PASSENGERS. (Ch. 10 had passed tlio station platform when he made the at- tempt.' So, also, a passenger who persists in an at- tempt to alight from a moving train, after he has been warned by the condnctor or other train hands not to do so, is guilty of contributory negligence, as matter of law.^ So, where a female passenger makes the at- tempt in face of a warning from a fellow passenger that the train is in motion. Though she is not bound to yield obedience to the warning, she disregards it at her peril, and takes the risk of exposing herself unnec- essarily to known danger.* And a passenger who at- tempts to alight from a moving train, after two other passengers who had preceded him were thrown down in the attempt, is guilty of contributory negligence, as matter of law.' It is contributory negligence, as mat- ter of law, for a passenger to jump in the nighttime from the side door of the baggage compartment of a smoking car, while the train is moving slowly, even though the rear door of the car was locked, where the front door was open.^ 2 :Morrison v. Railway Co., 56 N. Y. 302. 3 Ohio & M. R. Co. V, Schiebe, 44 111. 4W; Nelson v. Railroad Co., 68 :vrn. .593; Jewell v. Railway Co., 54 Wis*. 010. 12 N. W. 83. 4Kili)atrick v. Railroad Co., 140 Pa. St. 502, 21 Atl. 408. 6 Brown v. Barnes, 151 Ta. St. 562, 25 Atl. 144. It is negligence for a passenger to attempt to alight at a point not a regular stopping place while the train is in motion. Louisville, N. A. & C. Ry. Co. v. Johnson, 44 111. App. 56. < Geogagn v. Railroad Co., 10 App. Div. 454, 42 N. Y. Supp. 205. (388) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 153 ^ 153. SAME— MITIGATING CIRCUMSTANCES. Fright and dismay caused at the prospect of being carried beyond his destination does not excuse the act of a passenger in jumping from a rapidly moving train/ In a recent case,- the supreme court of Louisi- ana says: "We consider the law to be settled by the oyerwhelming weight of authority that, while a rail- road company is bound to stop its train at a station to which it has contracted to carry a passenger, and to land him safely and conyeniently, the fact that the train is about to pass such a station without stopping does not justify the passenger in jumping off the mov- ing train, unless expressly or impliedly invited to do so by the company." Even the anxiety of the passen- ger to see his sick child does not relieve him from the legal consequences of his reckless conduct in jumping from a rapidly moving train. ^ So the negligence of a railroad company which leads a passenger to get upon a wrong train is no excuse for his jumping from the train while it is moving at a rapid rate.* § 153. 1 Toledo, St. L. & K. C. R. Co. v. Wingate. 143 Ind. 125, 42 X. E. 477; Dougherty v. Railroad Co., 86 111. 467; Illinois Cent. R. Co. V. Chambers. 71 111. r.l<); Illinois Cent. R. Co. v. Lutz, 84 111.. 59.S. 2 Walker v. Railroad Co., 41 La. Ann. 795, 6 South. 916. 3 Kurgin v. Railway Co., 115 N. C. 673, 20 S. E. 473. * Rf)th.stein v. Railroad Co., 171 Pa. St. 620, 33 Atl. 379; Whelan V. Railroad Co.. 84 Ga. 506, 10 S: E. 1091. A passenger who is in- formed by the ticket agent at the station tliat the train is an hour late lias no riglit to infer from such statenicnt that the tniin will be an liour behind its .scliedulcd time wlien it rcadn's tlie station; and if he leaves the station, and returns just as the train is about to pull § 153 CARRIERS OF PASSENGERS. (Ch. 10 But where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligence for a passen- ger to attempt to leave a train which has not stopped at his destination." So, where a railroad train starts while a female passenger, accompanied by her chil- dren, is engaged in getting off the train, she is not guilty of contributory negligence, as matter of law, in jumping from the car steps to the platform, where one of her children has fallen prostrate.' And where wo- men waiting for a train in a passenger station are in- vited by the station agent to take seats in an empty car while the waiting room is being cleansed, it is a question of fact for the jury whether it is uegligeuce to jump from the car when the train to which it is at- tached begins to move, without signal or notice of any kind, startling the women, and alai'ming them lest they might be carried away from their intended desti- nation.^ out, such statement furnishes no excuse for his boarding It while in motion. Ohio & M. R. Co. v. Allender, 59 111. App. 620. The mere fact that a conductor agrees to stop the train for a passenger at a station where it does not usually stop, and that the bell is rung as it approaches the station, does not authorize the passenger to assume that the ti-ain has stopped after it passed the platfoiTo, when in fact it was in motion, and had been seen by the passenger to be in motion a few seconds before, as it passed the platform; and the passenger cannot recover for injuries sustained in jumping from the moving train, though he believed it to have stopped when he made the jump. East Tennessee, V. & G. R. Co. v. Massengill, 1.5 Lea (Tenn.) 328. 6 Cousins V. Railway Co., 96 Mich. 386, 56 N. W. 14. 6 Pennsylvania R. Co. v. Kilgore, 32 Pa. St. 292; Loyd v. Rail- way Co., 53 Mo. 509. 7 Shannon v. Railroad Co., 78 Me. 52, 2 Atl. 678. (390) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 154 § 154. SAME— ADVICE OR COMMAND OF TRAIN HANDS. The mere fact that a passeiiiier acts on the advice or comiiiaud of the conductor does not iiistifv him in at- temi)ting- to alight from a train when it is obviously dangerous to do so; and the fault of the conductor in this respect will not relieve the passenger from the consequences of his own reckless acts. But if the train is moving very slowly, and the passenger, upon the suggestion or request of those in charge of the train, attempts to alight, and is injured, it is a proper ques- tion for the jury whether it was a prudent or ordinarily careful act, or whether it was a rash and reckless ex- jjosure to peril and hazard.^ The passenger has a right to expect that the carrier has employed a skillful and j)rudent conductor, who will not expose passen- gers to dangerous risks, and who has experience and knowledge in his business sufficient to correctly advise § 154. 1 Atchison, T. & S. F. R. Co. v. Hughes, 55 Kan. 491, 40 Pac. !)19; St. Louis, I. M. & S. K. Co. v. Cantrell, 37 Arlc. .^>l!t; East Tennessee, V. & G. Ry. Co. v. Hu-iios. 92 Ga. 388. IT S. E. 949; Jones v. Railway Co., 42 Mhm. 183. 4:', X. W. 1114; Filoi- v. RaiU-oad Co., 49 N. Y. 47, 59 N. Y. 351, 08 X. Y. 124; Bucher v. Rail- road Co., 98 N. Y. 128; Lewis v. Canal Co.. 145 X. Y. ,508, 40 X. E. 248, affirming 80 Hun, 192, 30 N. Y. Siipi). 28; Watkins v. Railio.-id Co., IIG N. C. 901, 21 S. E. 409; Pittsburgh, C. & St. L. Ry. Co. v. Krouse, 30 Ohio St. 222; DehiAA'are & H. Canal Co. v. Welistor (Pa. Sup.) 6 Atl. 841; Gulf. C. & S. F. Ry. Co. v. RroAvn, 4 Tex. Civ. Api». 435, 23 S. W. 018; Te.xas ^: 1>. Ry. Co. v. Ha- will. 3 'ICx. Civ. Api). 250, 22 S. AV. 829; Texas A: X. O. Ry. Co. v. Bingliani, 2 Tex. Civ. App. 278, 21 S. W. 509; Eddy v. Wallace, 1 C. C. .\. I.;5. t;> Fed. 801; Thoinsuu v. Commissioner of Railways, 2 Sup. . Liability is imposed on tlie carrier for only such acts of the servant f»r cmijloyf^ as are within the scope of his employment; and the advice of a porter or brakeman to a pas.senger that it would not be dangerous to get off a moving train cannot be considered as the discharge of a delegated duty. Missouri. K. & T. Ry. Co. V. Perry, S Tex. Civ. Ai»p. 78, 27 S. W. 40<;. c Filer v. Railroad Co., 50 N. Y. 351, OS N. Y. 128. § 154 CARRIERS OF PASSENGERS. (Ch. 10 mine what words by a conductor amount to an advice or command to leave a moving train. Tlie words <'.Tnmp quick, if you are going to," addressed by a con- ductor to a passenger as the train is leaving the station of his destination, are merely words of advice, and do not amount to a positive direction to get off/ "Jump with the train," or "Don't jump sideways," is not an advice or direction to leave the train, but merely a suauestion of the safest method of doing so if the pas- senger is resolved on making the attempt/ A state- ment by a conductor to a passenger, anxious to get off as soon as possible, that passengers sometimes get off at a point 50 or 60 feet from the station, while the train is in motion, is not equivalent to a direction or order by the conductor to get off' at that place/ So the silence of the conductor, on hearing another passenger tell plaintiff that the car is not going to stop, and that he had better get off, will not justify him in jumping from the car/'' But the words, "You get off," address- 1 Vimont v. Railway Co., 71 Iowa, 58, 32 N. W. 100. 8 McDonald v. Kailroad. 87 Me. 466, 32 Atl. 1010. 9 Chicago, B. & Q. R. Co. v. Hazzard. 26 111. 373. A statement by a conductor to a passenger, who demurs to jumping from the train a.s it is passing the station platfonii, that he could take the risk if he would, does not amount to an order or direction to jump from the ti'iiin. Jeffersonville R. Co. v. Swift, 26 Ind. 459. 10 Masterson v. Railway Co., 88 Ga. 430, 14 S. E. 591. An an- nouncement of the name of a station, and a statement "All out for" such station, made l)y the conductor, does not justify a passenger in getting off the train, in the dark, several hundred yards from the station, and while it is running 18 or 20 miles an hour. Louisville & N. R. Co. V. Depp (Ky.) 33 S. W. 417. An expression of opuaion by a conductor that a passenger can leap from a train in safety at a station at which it does not stop does not relieve the passenger of (394) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 155 ed by a brakeman to the escort of a female passenger after the car is in motion, and while the parties are on the car platform, accomi)anied by the brakeman's act in shutting the vestibule door of the car after the es- cort is on the car steps, are a positive order, and not mere information, advice, or opinion; and the passen- ger is not, as matter of law, guilty of contributory neg- ligence in obeving it.^^ And where the conductor pulls the bell rope as a signal for the engineer to stop as the train is leaving the station, and opens the door of a vestibule car, and informs a passenger, "You can get off now," the question whether the passenger is guilty of contributory negligence in stepping from the train in the dark, under the belief that it had stopi)ed, is for the jury, though it was still in motion.^^ g 155. SAME— STATUTORY PROVISIONS. Statutory prohibitions, more or less sweeping, against getting on or off moving trains, exist in many of the states. In New Jersey it is provided that one injured by jumping on or oft' a car while in motion shall be deemed to have contributed to the injury sus- tained, and shall not recover any damages therefor.^ In Iowa it is made a misdemeanor for any person to the duty to exercise liis judgment whether or not such a leap Is safe; and if the conductor only gives it as matter of opinion, still, if the danger is so apparent that a prudent man. similarly situated, would not have attempted to leap from the train, then tlie passenger was guilty of negligence, and should not be pernrttcd to recover. Chicago & A. R. Co. v. Randolph, r)3 111. 510. 11 Galloway v. Railway Co., 87 Iowa, 458, 54 N. W. 447. 12 Evansville & T. H. R. Co. v. Athon, 6 lud. App. 205, 33 X. E. 4C.9. § 155. 1 Revision N. J. p. 920, § 07. (:}!)5) § 155 CARRIERS OF PASSENGERS. (Ch. 10 get on or off a moving train, without the consent of the person having the same in charge." Under this stat- ute, it is contributory negligence, as matter of law, in all cases for a passenger to get off a moving train with- out the conductor's consent. The law will not afford a party a remedy for an injury sustained by him as the consequence of his own act, when it has forbidden him in advance to do that act.^ The conductor's consent, however, need not be express, but it may be inferred from his conduct. This inference is for the jury as one of fact, and it is error for the court to determine it as one of law.* But, though plaintiff testifies that some one told him to jump oft", yet where he is an experi- enced railroad man, and is unable to state whether it was the conductor who addressed him, and the con- ductor and brakeman each testify that neither of them told plaintiff any such thing, a verdict in plaintiff''s favor cannot be sustained.^ 2 Acts IGth Gen. Assom. c. 148 (McClain's Ann. St. 18S4, p. 985), Laws N. Y. 1878, c. 261, makes it a mi.stlemeanor for any person not a railroad employe to get on or off a freight car or engine in motion. In other states it is declared unlawful for any one, not a passenger or an employe, to get on or off moving trains. Rev. St. Ind. 1894, § 2290: Gen. St. Ky. 1894, § 805; 2 How. Ann. St. Mich. § 9122; Ann. Code Miss. § 1272. 3 Raben v. Railway Co., 74 Iowa, 732, 34 N. W. 021. It makes no difference that a female passenger, whose children were already on the station platform when the train started, was impelled to get ofE by the fear of being caiTied away from her children, or that she had reason to believe that she could do so in safety. Id. One who is injured while boarding a moving ti-ain, in violation of statute, caunol recover. Young v. Railway Co. (Iowa) 09 N. W. 682. * Raben v. Railway Co., 74 Iowa, 732. 34 N. W. 021. B Herman v. Raihvay Co., 79 Iowa, 161, 44 N. W. 298. (39G) Ch. JO) COXTRIBUTORY NEGLIGENCE. § 156 § 156. BOARDING MOVING STREET CAR. The strict rules laid down' in the preceding,- sections, as to attempts to board or alight from moving trains propelled b^' steam, are not applicable to attempts to board or alight from moving street cars. "Ordinarily, it is perfectly safe to get upon a street car moving slowly, and thousands of people do it every day with perfect safety. But there may be exceptional cases, where the car is moving rapidly, or where the person is infirm or clumsy, or is incumbered with children, packages, or other hindrances, or where there are other unfavorable conditions, where it would be reckless to do so; and a court might, upon undisputed evidence, hold as matter of law that there was negligence in do- ing so. But in most cases it must be a question for the jury." ^ Numerous cases support the proi)osition that it is not, as matteijof law, contributory negligence for a person to board a slowly moving street car which has been signaled to stop.^ § 156. 1 Eppendorf v. Railroad Co., 69 N. Y. 195. 2 Id.; Conner v. Railway Co., 105 Ind. 62, 4 X. E. 441; Sahlj^aard V. Railway Co., 48 Minn. 232, 51 N. W. Ill; Valentine v. Railroad Co. (Com. PI.) 4 N. Y. Supp. 481; McSwyny v. Railroad Co., 54 Hun, 637, 7 N. Y. Supp. 456; Seitz v. Railroad Co. (Com. PI.) 10 X. Y. Supp. 1; Morri.sou v. Railroad Co., 130 N. Y, 166, 29 N, E. 105, affirm- ing 55 Hun, 608, 8 N. Y. Supp. 436; Thompson v. Macklem. 2 U. C. Q. B. 300; West Chicago St. R. Co. v. Dudzik, 67 111. App. 681. It is not negligence per se for a person to get on or off a street car drawn by horses while it is in motion. It depends upon the circumstances surrounding each case, and the question is ordiiiaiily (401) § 157 CARRIERS OF PASSENGERS. (Ch. 10 rimiiing from 7 to 12 miles an hour, or else is on tlie car step, in the act of getting off, and is jerked off by the motion of the car, is guilty of contributory negligence as matter of law.* It has even been held to be con- tributory negligence, as matter of law, for a passenger to alight from an electric car running four or five miles ptr hour/ So a passenger who, without notice to any one, rings the bell, and without the knowledge of the driver or conductor proceeds to get off, acts at her peril, and cannot recover for injuries sustained b}' the sudden starting of the car while she is alighting.^ 4 Saiko V. Railway Co. (Minn.) 69 N. W. 473. 6 Jagger v. Railway Co. (Fa. Sup.) 3G Atl. 8G7. 6 Nichols V. Ra-ilroad Co., 106 Mass. 46.3. The failure of the con- diictor to immediately stop a street car when requested by a passen- ger does not excuse the contributoiy negligence of the passenger in jumping from the i-apidly moving car. Hagan v. Railway Co., 15 Phila. 278. An electric raih\ay company is not bound by its em- ployes' practice in slacking the speed of a car to enable a particular passenger to alight, while the car is in motion, at a point where no stop is ordinarily made. Jagger v. Railway Co. (Pa. Sup.) 36 Atl. 867. A female passenger on a train of street cars pulled by a dummy steam engine is guilty of contributory negligence in attempting to get off the car wliile in motion, in violation of the rules of the com- pany, and without any act on the part of the train hands to cause her to take the step. Galderwood v. Railway Co., 96 Ala. 318, 11 South. 66; North Birmingluim St. Ry. Co. v. Calderwood, 89 Ala. 247. 7 South. 360. A passenger on a street ear, who delays in attempting to alight at the terminus of the line until he sees the horses passing along the side of the car, foi' the puiiiose of being attached to the other end, so as to proceed on the return ti'ip, is guilty of negligence in persisting in the attempt after the car is in motion. Dickson v. Railroad Co., 33 N. Y. Super. Ot. 330. Though a street-car driver has failed to stop when requested by a passenger, yet the latter can- not recover for injuries sustained in alighting from the car in motion by reason of a sudden jerk, where he did not again notify the driver (402) Cli. 10) CONTRIBUTORY NEGLIGENCE. § loS g 158. SAME— FRONT PLATFORM. There is no rule of law that boardinc: the front plat- form of a street car when in motion is nejilijit'nce.^ The fact that the attemjjt is made at the front platform is undoubtedly a circumstance to be considered in con- nection with the fact that the car was at the time in motion, jet neither one of these circumstances, nor both of them together, can, as matter of law, be held to constitute negligence.^ But one who attempts to board the front platform of a moving trolley car is bound to exercise the care of a reasonably prudent person, and more care is necessary than if he had wait- of his intention to aliglit, and it does not appear that tlie latter Icnew of tliis fact when he started up his horses. Outen v. ItnnnpMd Co.,. 94: Ga. 662, 21 S. E. 710. Where the issue is whether a passenger was thrown from the car by its sudden starting Avliile attemi)ting to alight, or whether .she attempted to step from it wliilc In motion, an instruction is proper that plaintiff cannot recover if she failed to ex- ercise ordinary care on her part, as by leaving the car when in mo- tion. Centi-al Ry. Co. v. Smith, 74 :\Id. 212. 21 Atl. 7(X;. Where a street car is being slowed down in response to a passenger's signal and he undertalces to get off before the car has stopped, the company is not liable for injuries sustained by reason thereof, since it is guilty of no negligence. Saffer v. Railroad Co., 53 Hun, 621), 5 N. Y. Supp. 700. § l.")8. 1 McDonough v. Knilroad Co., 137 Mass. 210. To attempt to board a moving cable car by tlie front platfonu is not neg.igcnce per se, where the car has slackened speed in response to plaintiff's signal. Finkeldey v. Cable Co., 114 Cal. l-'S. 4.". Par. !>!»(;. 2 Stager v. Itnilway Co., 119 Pa. 7(). VJ. Ail. S21. Where a 13 year old boy riding on the front platfonu states that lie is going to get off, and the driver .slackens speed, the question wliether he is guiUy of contributory negligence in getting off before the car has come to a full stop is for the jury. Crissey v. Railway Co., 75 I'a. S.">. (403) I 158 CARRIERS OF PASSENGERS. (Ch. 10 ed to board the rear step, or for the car to stop.' An attempt to board the front platform of an electric- street car, moving at its ordinary rate of speed of seven or eight miles an hour, is negligence per se.* And so is the attempt to alight from the front platform of a horse car moving at full speed, though the passenger is directed to get off by the driver. =^ So it is negli- gence per se for a 15 year old boy to attempt to board a moving street car at the front platform, where the step is entirely off, though he made the attempt at the invitation of the driver.^ 8 Paulson V. Railroad Co.. 34 N. Y. Snpp. 244. 13 Misc. Rep. 387. 4 Woo Dan v. Power Co., 5 Wash. 466, 32 Pac, 103. 6 Ginnon v. Railroad Co. (1864) 3 Rob. (N. Y.) 25. An 11 year old boy, who is a passenger on a street car. is guilty of contributory neg- ligence, as matter of law, in jumping off the front platform, with his back to the horses, and without asking the driver to stop. Purtell v. Railway Co., 3 Pa. Co. Ct. R. 273. « Dietrich v. Railway Co., 58 Md. 347. The negligent or willful re- fusal of a conductor of a horse car to stop it when requested by a passenger, a Child six years old, does not, of itself, justify the child in getting off the front platform of the car while in motion. Cram v Railroad Co., 112 ;\Iass. 38. Act Mo. March 3, 1869 (page 207, § 4). relating to street railroads in St. Louis, provides that passengers shah not be permitted to get on or off any car. while in motion, by the front platform, and each car shall be furnished with such adjustable gate or guard as shall effectually prevent it. This act was passed to secure safety to life and limb, and should not be narrowly con- strued. Hence the fact that a boy passenger gets oft' the front plat- form, while the car is in motion, is no defense to an action for inju- ries thereby sustained, if the car is not furnished with a gate which prevents him from so doing. Muehlhauseu v. Railroad Co., 91 Mo. 332, 2 S. W. 315. (404) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 160 § 159. SAME— PASSENGER INCUMBERED WITH PACKAGES. It is contributory negligence, as matter of law, for a person to attempt to board a moving street car, where one of his hands and arms is incumbered with his coat and dinner bucket, leaving only one of his hands free, and rendering him unable to hang onto the car.^ So to step from the platform of a moving street car, with a heavy keg in one's hand, is contributory negligence as matter of law." But it is not per se negligence for a person with an umbrella in one hand, and a handker- chief in the other, to attempt to board an electric street car while it is in the act of stopping, and before it has come to a full stop. Such attempt may or may not be negligence, according to the circumstances.* § 160. PASSENGERS ON VESSELS. The duty a ferry company owes to passengers, going on and off its boats, is simply to conduct its business with such caie and skill as will make the entrance upon its boat safe for persons of ordinary prudence; and if a passenger is injured because of failure to exercise such § 159. 1 Roddington v. Traction Co., 132 Pa. 154, 19 Atl. 28. 2 Ricketts v. Railroad Co., 85 Ala. 600, 5 South. 353. A man 45 yoars old. and weighing 200 pounds, who attemi)ts to board a strw^t car moving 6 miles per hour, or more, with a bottle in his right hand and a baslcet on his left arm, is guilty of (•ontril)Utor.v negligence, as matter of law. Baltimore Traction Co. v. State, 78 Md. 40t», 28 AtL 397. 8 White V. Ilailroad Co., 92 Ga. 494, 17 S. E. G72. (405) § 160 CARRIERS OF PASSENGERS. (Ch. 10 priidence, the company is not liable.^ Thus one who, in passing from a ferryboat to a dock, puts himself in so dense a crowd that he cannot see his footing, and in that situation gets his foot crowded between the boat and the dock, is guilty of contributory negligence, as matter of law.- So a passenger has no right to pre- sume that a ferryboat has arrived at its dock because § 160. 1 Race v. Ferry Co., 138 N. Y. 644, 34 N. E. 280, reversing (City Ct. Broolc.) 19 N. Y. Siipp. 675. See. also. ante. § 65. 2 Dwyer v. Railway Co., 47 N. J. Law, 9. In tliis ease Beasley, C. J., said: "The point of junction of the ferryboat and its docli must, of necessity, be a point of danger. It is idle to liken the transit over sucli a place to the passing along an ordinary thoroughfare, for, un- der ordinary conditions, the latter is a place of safety, while the former must, of necessity, be liable to be pei-ilous, for its safeness is altogether dependen^t on the exercise of incessant caution on the part of human agents, which, while man remains the imperfect creature that he is, cannot be entirely trustworthy. I can, looking at the rea- son of things, see no difference between the man who, with eyes closed, crosses a railroad track, trusting his safety to the fact that the flagman is at his post, and him who, waiving the use of his eyes, attempts to pass from one of those boats, concluding that all is rignt because the gates have been opened. A man's ej'es are the sentinels that usually warn him of the approach of danger, and, if he chooses to abandon them, it is the general rule of law that he does so at his own cost." Tliis case limits or overniles New Jersey R. Co. v. Palmer, 33 N. J. Law, 90, which held that where a feriyboat has arrived at its dock in the evening, a passenger carried along with the crowd, whose foot is crowded between the boat and the dock on alighting, is not chargeable with contributory negligence, as mat- ter of law, because at the very instant of stepping onto the dock he did not examine particularly to see whether there was a vacant space between the boat and the dock. In Fogassi v. Railroad Co., 19 Misc. Rep. 108, 43 N. Y. Supp. 268, reversing IS Misc. Rep. 735, 41 N. "£. Supp. 1115, following 13 Misc. Rep. 102, 34 N. Y. Supp. 116, it was held that a passenger on a ferryboat is chargeable with contributory negligence where her fall into a space about two feet wide between the boat and the dock would not have occurred if she had looked (40G) Ch. 10) CONTRIBUTORY NEGLIGENCE. §160 the chain guard and barriers across the bow of the boat are down, when warned and presumably ncnitied by those in charge that a landing has not been niade.^ Where a steamboat company has provided a safe and convenient landing place for passengers, a passen- ger who uses the freight landing place, after being warned not to do so, is guilty of contributory negli- gence." And where a ferryboat has two gangways by which passengers can leave, a passenger cannot recov- er for injuries sustained while attempting to leave by the gangway intended for teams.^ So it is negligence, where she was walking, or had followed the other passengers leaving the boat. 3 Davis V. Railroad Co.. 8 Or. 172. But an adult passenger is not chargeable with contributoiy negligence in attempting to leave a feny before the guard chains are down, where it appears that a rule of the company forbidding passengers to do so was permitted by it and its employes to be habitually violated. The Manliasset, 19 Fed. 430. • 4 Dodge V. Steamboat Co., 148 Mass. 207, 19 N. E. 373. "A pas- senger is bound to obey all reasonable rules and orders of the car- rier in reference to the business. The carrier may assume that he will obey, and the earner owes him no duty to provide for his safety when acting in di-sobedience. His neglect of his duty in disobeying, in tlie absence of a good reason for it, will prevent his recovery for an injury growing out of it." 5 riraliam v. Railroad Co., :v.) Fed. .")!t(j. Hut a passenger leaving a ferryboat is not guilty of contributoiy negligence, as matter of law. in leaving the boat by tlie veliicle way, instead of tlie passenger way. on invitation of tlie ferry emi)loyes, so as to be precluded from re- covering for injuries .sustained by being run over by a runaway horse owned by tlie feny company, whicli bolted into tlie veiiide way. Watson v. Railroad Co., 5.5 N. J. Law, 125, 2(5 Atl. 13(5. In this ca.se it was said: "The use for wliicli the way he tonk was designed was the transfer of controlled vehicles to and from tlie boat. Passage over it brouglit to him liiiowledge of its customary (407) § IGO CARRIERS OF PASSENGERS. (Ch. 1'^ as matter of law, for a passenger to jump from the boat to the wharf as the boat is approaching or leaving it/ But a passenger on a ferryboat is not, as matter of law, guilty of contributory negligence in taking a position, use, and suggested a prudent watchfulness against the danger attend- ant on that use; in other words, it was a place of obvious, danger from a certahi use, against which it was plaintiff's duty to guard, and the invitation to pass that way did not absolve him from the reasonable performance of his duty in this i-espect. But the duty did not extend to causes ab extra that use. such as the rapid, uncon- trolled career of a wild liorse, whose course was undirected, irregu- lar, and regardless of any way. and who, as he rapidly ran at ran- dom, happened to spring over the end of the bow to the place wiiere plaintiff was injiu-ed. We think it was not the plaintiff's duty to anticipate the use of the driveway by a runaway horse of the defend- ant, and, speaking with more particularity, to anticipate the bolting of such horse over the end of the bow into the driveway." A passen- ger who. in broad daylight, ascends a narrow gangv/ay to a vessel in a careless and awkward manner, walking abreast of his wife, and who stumbles and loses his balance, is guilty of contributory negli- gence. The Anglo Norman, 4 Sawy. 185. Fed. Cas. No. 303. 6 Keokuk Packet Co. v. Heniy, 50 111. 2G4; Fish v. Ferry Co., 4 Phila. 103. But a passenger on a steamer, who is informed by the ofhcers in charge that the boat will not stop at his destination, but will be slowed down at the wharf, so that he can jump ashore, is not guilty of contributory negligence in making the attempt. Cam- eron V. Milloy, 14 U. C. C. P. 340. A passenger on a steamboat, well acquainted with tliat mode of travel, and of the jar generally incident to contact with the wharf in effecting a landing, Avho attempts to go to the upper deck by means of a stairway unprotected by a railing, as the steamer is approaching a wharf, assumes the risk of being thrown from the stairway by such a jar, though she was in charge of one of the boat's employes, who undertook by that means to land her on the wharf, in advance of other passengers. De Graf v. Naviga- tion Co., 10 Wash. 408. 38 Pac. 1006. The soundness of this decision is questionable. In New York it has been held that the fact that a passenger stands at the head of a stairway on a ferryboat as it is entering its slip is not contributory negligence, as matter of law, (408) Ch. 10) CONTRIBUTORY NEGLIGENCE. ^ lO 1 as the boat approaches the landing place, in the pas- sageway leadings from tJie cabin to the gate, where it ajjpears that such passageway, though not provided with seats, is often occupied by passengers, without ob- jection, during the journey.^ So the failure of a pas- senger on a ferryboat to keep his seat until it is moored to the dock is not contributory negligence, as matter of law, which will defeat a recovery for injuries sus- tained by being thrown by an unusual shock as the boat struck the dock.* § 161. BOARDING PASSENGER ELEVATOR. An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed, when the door ■which will preclude a recovery for his being thrown down the stairs by an unusually violent concussion of the feriyboat with the slip. Eartlett v. Transportation Co., 57 N. Y. Super. Ct. 348, 8 N. Y. Supp. r.OO. affirmed 13i N. T. Sillier. Ct. 3U4. It is not negligence, as matter of law, for a pas- senger on an clmated railroad to arise in her seat as the car is ap- proaching her station, and to go to the door of the car, which is held open by one of the trainmen; and where she grasps hold of the door frame, to keep herself from falling by reason of a sndden jar of the car, she may recover for injuries sustained by reason of the trainman's act in negligently permitting Ihe door to slam on her hand. Colwell v. Railway Co., 10 X. Y. Supp. U3tJ, 57 Hun, 4.->2. 3 Fordham v. Railway Co., L. R. 3 C. 1'. 3G8, L. R. 4 C. P. 019. (413) §164 CARRIERS OF PASSENGERS. (Ch. 10 § 164. PROJECTING LIMB OR HEAD OUTSIDE OF CAR. The weight of authority and of reason is in favor of the proposition that it is negligence per se, to be so declared by the court as matter of law, for a passen- ger on a steam railroad to voluntarily or inattentively protrude his arm, hand, elbow, or head through the Avindow of a car while in motion, and beyond the outer edo-e of the window, or outer surface of the car; and a recovery cannot be had for any injury which, but for such negligence, could not have been sustained.^ "Windows are not provided in cars that passengers may project themselves through or out of them, but for the admission of light and air. They are not intended for occupation, but for use and enjoyment without oc- § 1G4. 1 Georgia Pac. Ry. Co. v. Underwood, 90 Ala. 49, S South, IIG; Indianapolis & C. R. Co. v. Rutlierford, 29 Ind. 82; Favre v. Railroad Co., 91 Kj-. 541, 10 S. W. 370; Louisville & N. R. Co. v. Sicldngs, 5 Bush (Ky.) 1; Morel v. Insurance Co., 4 Bush (Ky.) 535; Pittsburg c^c C. R. Co. v. Andrews. 39 Md. 329; Todd v. Old Colony R. Co.. 3 Allen (Mass.) IS, 7 Allen (Mass.) 207; Pittsburg & C. R. Co. V. McClurg, 50 Pa. St. 294, disapproving New Jersey R. Co. v. Kennard, 21 Pa. St. 203, and overruling Laing v. Colder, 8 Pa. St. 479; Richmond i«c D. R. Co. v. Scott, 88 Va. 958, 14 S. E. 763; Dun V. Railroad Co., 78 Va. 045. A passeng. r who inadvertently and vol- untarily protrudes his arm out of an open window, though not more than two inches beyond the exterior surface of the car, while the train is going through a tunnel, is guilty of contributory negligence, as matter of law. "We cannoit furnish any rule by which to meas- ure the distance a passenger may protrude his arm before it can be said that he is guilty of negligence. It is the fact that he does si), without any qualifying circumstances impelling him, not the dis- tance so protruded, that constitutes negligence." Clark's Adm'x v. Railroad Co. (Ky.) 39 S. W. 840. (414) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 164 cnpation. No possible necessity of the passeiijier can be subserved by the protrnsion of his person through them. Neitlier his convenience nor comfort requires that he should do so. It may be — doubtless is — true, that men of oidinary prudence and care habitually hau ui)on, or rest their arms upon, the sills or windows by which they ride. But this is a very different thing from protrusion beyond the outer edge of the sills, and bevond the surface of the car." ^ In Kentucky the courts have even gone so far as to hold that there can be no recovery for the death of a passenger who, while the train is going through a tunnel, protrudes his head from the car window to vomit, unless the train hands knew of his illness or his perilous position, or could have known of it by the exercise of reasonable care, and then failed to take proper precautions for his safe- ty.^ In an early Wisconsin case, however, it was held that whether or not a passenger is guilty of contribu- tory negligence in permitting his arm to protrude be- yond the exteftial surface of the car is a question of fact for the jury, and not of law for the court.* The 2 (leorjiia Pac. Ky. Co. v. Underwood, fiO Ala. 49, 8 South. 116. 3 Shelton's Adm'r v. Railroad Co. (Ky.) oO S. W. 842. 4 Spencer v. Railroad Co., 17 Wis. 487. "It is probably the habit of every person while riding in the cars to rest the arm upon the base of the window. If the window is open, it is liable to extend slightly outside. This we suppose is a common habit. There is, al- ways more or less space between the outside of the car an.l any structure erected by the side of the track, and must necessarily I e s«, to accommodate the motion of the train. Passengers knoAV tliis. and regulate their conduct accordingly. They do not suppose tliat the agents and managers of the road suiier obstacles to be so placed as barely to miss tlie car while i-assing. And it .seems to us almost absurd to hold that in every case, and under all circumstance s, if the (415) I 1(54 CARRIERS OF PASSENGERS. (Ch. 10 « same niliug has been made in South Carolina/' in Texas,' and in Australia.' In Illinois, also, under the now exploded doctrine of comparative negligence, it lias been held that the negligence of a passenger in permitting his arm to rest on the base of a car window, and to slightly project outside, is slight, when compar- ed with the negligence of the railroad company in per- mitting freight cars to stand on a parallel track, within a few inches of the passing passenger train; and hence the passenger may recover for the breaking of his arm by coming in contact with the freight traiu.^ Of course, a passenger Avho rests his elbow on the sill of an open window, without projecting it beyond the car, and whose arm is thrown outside of the car by the force of a collision, and is injured, does not contribute to the cause of the injury by his own negligence.® So where there is evidence that it is necessary for a mail party injured had his arm the smallest fraction of au inch beyond the outside surface, he was wanting in ordinary care and prudence." Id. 6 Quinn V. Railroad Co., 29 S. C. 381, 7 S. E. Glij, 8 C. C. A. 571, 60 Fed. 210; Carrico v. Railroad Co., 35 W. Va. 389, 14 S. E. 12; Winters v. Railroad Co., 39 Mo. 4G7. (416) Ch. 10) CONTRIBUTORY XEGLIGEXCE. § 16-4 aiient to put his head out of the window of his car on approaching the various stations, and it is shown that this is generally done, the question whether a mail agent is guilty of negligence in so doing is for the jury/" A distinction is made in this respect by some of the courts between street cars and the ordinary' steam- railway carriages. It has been held in some cases not to be negligence, as matter of law, for a passenger to project his hand or his arm a few inches beyond the external surface of a street car/^ In Louisiana, in a case arising in New Orleans, it is said: "The evidence, as well as common observation, establishc^s that it is customary practice for persons riding in street cars of this city, when not crowded, to sit with an arm rest- ing on the window, and projecting more or less outside of the car. This practice is suggested, if not invited, by the construction of the windows, which are of a height that renders such a position easy and comforta- ble, and also by the natural inclination to face the di- rection in which one travels, to look out at passing ob- jects, and, in a climate like ours, to turn the face so as to catch the breeze." ^^ In Tennsylvania, however, it 10 Houston & T. C. Ry. Co. v. Ilaiupton, 04 Tex. 427. The fact thnt a passenger's elbow projects siijihtly out of au opeu window does not. as matter of law, preclude a recovery for injuries to his hand and wri.st, which were insiide, and Aviiieh were struck by a stick of cordwood falling through the opeu window from a pile near the (rack. The projection of the elbow is not the proximate cause of the accident. Moakler v. itailway Co., 18 Or. ISU, 22 I'ac. '.)48. 11 Miller v. Railroad Co., 5 Mo. Apj). 471; Summers v. Railroad Co., 34 La. Ann. 139. 12 Summers v. Railroad Co., 34 La. Ann. 139. iUil a i assi'uger ou V. 1 FET.C.Mt.FAs. 27 if^^^ ) § 164 CARRIERS OF PASSENGERS. (Ch. 10 is negligence, as matter of law, for a passenger on a street car to protrude any portion of his arm out of the car window, whether he does it consciously or uncon- sciously." But if his arm is on the window sill, wholly within the car, and is thrown out by a jolt, then the question of his contributory negligence is for the jury/* And where a passenger in a street car, while taking his seat, rests his hand on and partially over the base of an open window, and it is immediately struck by an obstruction within an inch of the car, the question of contributory negligence is for the jury/^ So where a street car runs off the track, and is driven over cobble stones for a distance of two squares, it is not negligence for a passenger to grasp the window post a street car is guilty of negligence in putting his liead out of the win- dow in the nighttime, to ascertain the color of tlie car, and identify it, and cannot recover from an electric light company which has put a pole so near the track that his head came in contact therewith. Moore v. Illuminating Co., 43 La. Ann. 792, 9 South. 433. 13 People's P. Ry. Co. v. Lauderbach, 4 Penny. (Pa.) 406. If a passenger on a street car projects his arm from the window, and that arm is injured, or injury results from that projection, he cannot re- cover. Goorin v. Traction Co. (Pa. Sup.) 36 Atl. 207. 14 Germantown P. Ry. Co. v. Brophy, 105 Pa. St. 38. 15 Dahlberg v. Railway Co., 32 Minn. 404, 21 N. W. 545. Whether a passenger on an open electric car, who, leaving his seat, goes to the platform, where the conductor is standing, and, for the purpose of ob- serving a fire, projects his head beyond the side of the car, so that he is struck by a tree, is guilty of contributory negligence, is a question for the jury. Sias v. Railway Co., 92 Hun, 140, 36 N. Y. Supp. 378. A passenger on a street car is not, as matter of law, guilty of contribu- tory negligence in standing on the rear platform, with his hand on the railing, and may recover against the owner of a dray for injuries sustained by his hand being struck by the dray. Seigel v. Eisen, 41 Cal. 109. (418) Ch. 10) CONTRIBUTORY XEGLIGEXCE. § 10-i in such a manner that the back of his hand protrudes from the car.^® But a passenger on an open street car, who, while the car is in rapid motion, phices one of his feet on tiie running board, and permits a portion of his body to extend beyond the exterior surface of the car, is guilty of contributory negligence, as matter of law, which precludes recovery for his death caused by his head striking against one of the poles planted in close proximity to the track/' In Massachusetts it has been held that a passenger who stands on the low- est step of a street car moying four miles an hour, with one hand on the dasher rail and the other on the body rail, facing towards the street, and who intentionally leans out beyond the car to look in the direction from which it came, is guilty of contributory negligence, as matter of law, and cannot recover for injuries sustain- ed hj striking his head against a post standing within three feet of the track, and visible from the car a quar- ter of a mile; but a momentary or casual leaning out, such as would be incident to an effort to secure a safe or more comfortable position, is not negligence, as mat- ter of law/® The rule that it is negligence per se for a passenger to protrude any portion of his body outside of the windows of a car does not apply to a passenger on a stagecoach. Etiilway coaches pass along an undevi- ating track, and often within a few inches of signal posts, switch bars, cattle guards, bridge timbers, and 16 North Baltimore Pass. Ky. Co. v. Kaskell, 78 Md. 517, 28 All. 410. Instate V. K;ill\vny Co. (Md.) 34 Atl. 1130; Gilly v. Kai.road Co. (La.) 21 South. 830. 18 Cummiiiics v. Itailway (Mas.«.) 41 N. E. 12G. (419) § 165 CARRIERS OF PASSENGERS. (Ch. 10 cars upon side tracks, rendering it dangerous for pas- sengers to expose any portion of the body beyond the outer line of the coaches, which themselves project be- yond the wheels and the truck. But stagecoaches do not, in this particular, differ from other road vehicles^ the wheels of which project laterally beyond the body of the vehicle, which circumstance, in connection with the different character of the roadway and mode of transportation, is an immunity against danger from the mere projection of an arm outside the window, or beyond the line of the body of the vehicle.^* § 165. STANDING, OR OCCUPYING DANGEROUS SEAT, IN CAR. A passenger is not, as matter of law, guilty of con- tributory negligence in arisiug in his seat as the train is approaching his station, for the purpose of hasten- ing his departure from the car, but the question is one of fact for the jury.^ The fact that he stands near the open car door does not alter this rule.^ Neither 19 Sandersou v. Frazier, 8 Colo. T!t, 5 Pae. (>32. § 1G5. 1 Barden v. Railroaa, llil Ma-g. 42G; Wylde v. Railroad Co., 53 N. y. 15G; Newton v. Railroad Co., 80 Him, 491, 30 N. Y. Snpp. 488; Chicago & A. R. Co. v. Aruol. 144 111. 201, 33 N. E. 204. A passenger on a train so crowded that the passageways, platforms, and even the roof were occnpied, was promised by the conductor that the train would be stopped at a flag: station, to enable him to get off. Held, that it could not be said, as matter of law, that the passenger was careles,s, because, a.s the train approached the flag station, where the stop would ordinarily be very short, he rose from his seat, endeavored to make his way to the door, and, having reached 2 Worthen v. Railway Co., 125 Mass. 99; Condy v. Railway Co., 13 Mo. App. 587, 588. (420) Ch. 10) CONTRIBUTORY NEGLIGEXCE. § 165 is a passenger gniltT of contribntorv nogligence, as matter of law, in arising from his seat, during the journey, to pick up a bundle which has fallen to the tioor,^ nor to stand near a stove, for the purpose of warming himself.* A passenger who, before he had seated himself in a car, was injured by the negligence of defendant in causing another car to come into vio- lent contact with the former, is not precluded from re- covering merely because he did not occupy the first vacant seat he came to, nor because he incumbered himself with bundles, or with the care of children, which impeded his movements.^ Discomforts and dangers are more incident to travel on freight than on passenger trains, and a passenger on the former is called on to exercise a higher degree of care than the latter.*' The fact that a passenger in a caboose is standing, when there are some vacant the platform, there fell, or was pushed out by the surging crowd which occupied it. Treat v. Railroad Corp., 131 Mass. 371. 3 Coudy V. Railway Co., 85 Mo. 79. 4 Northern Pac. R. Co. v. Hesa, 2 Wash. St. 383, 26 Tac. S60. A passenger has the right, while on his journey, to go from his seat to the water-closet of the car in which he is riding, and may recover for injuries sustained by being thrown out of an open door by a vio- lent jerlc of the train. I.avis v. Railroad Co., 54 111. App. 036. 5 Tillett V. Railroad Co., 118 X. C. lo:n. 24 S. E. 111. 6 Harris v. Railroad Co., Si> Mo. 2;i3, 1 S. W. 325; Felton v. Horner. ^7 Tenu. 57!>, 37 S. W. (>!)ti. A passenger on a freight train, who. ))y the exercise of ordinary care, may know that tlie tr.'iin has stopju'd to do switching, and tliat a part of the train is likely to be barUcd against the part to which the caboose is attached, is guilty of contrii>- utorj- negligence in leaving his seat, and standing u]) in the car, with- out thinking of these tilings. Harris v. Railroad ("o., 8!) Mo. 2:1'!, 1 S. W. 325. (421) § 165 CARRIERS OF PASSENGERS. (Ch. 10 seats, is some evidence of contributory negligence, wliich ouglit to be submitted to the jury, in an action for injuries sustained in being thrown down by the sudden starting of the train."^ But a passenger is not guilty of negligence, as matter of law, in arising from his seat in the caboose on the sounding of a whistle indicating approach to a station.^ Kor is a passenger on a freight train guilty of contributory negligence, as matter of law, in leaving her seat to get a drink of water, nor does she assume the risk of a sudden and violent jar, caused by the negligent application of the air brakes.^ A passenger who occupies the arm of a seat in a coach on a freight train when he knows that there are other cars to be coupled,^*' or who sits in the conductor's chair, near the open sliding door of the caboose, when there are vacant seats away from the door for the use of passengers/^ is guilty of negligence^ as matter of law. 7 Wallace v. Railroad Co., 98 N. C. 494, 4 S. E. 503. 8 Lusby V. Railrcad Co., 41 Fed. 181. « Indiana, I. & I. R. Co. v. Master.son (Ind. App.) 44 N. E. 1004. But a woman 63 years old, and crippled by a former dislocation of her hip, traveling in the caboose of a freight train, is negligent in leaA^- Ing her seat to get a drink, while the engine is switching cars; and she cannot recover for injiu'ies in a fall caused by the jolt in coupling cars, where it appears that the jolt Avas not greater than us.nal in such cases, and tliat she was aware that such jolts necessarily fol- lowed coupling of cars. Felton v. Horner, 97 Teun. .579, 37 S. W. 696. 10 Smith V. Raih'oad Co., 99 N. C. 241, 5 S. E. 896. 11 Norfolk & W. R. Co. v. Ferguson, 79 Ya. 241. Though there are stationary seat.s in a caboose, yet a passenger is not guilty of c?ontributor}' negligence, as matter of law, in sitting on a movable chair, so as to preclude recovery for injuries sustained in being thrown from the chair by a concussion with cars, which were violently (422) Ch, 10) CONTRIBUTORY NEGLIGENCE. § 1G'> TS'ith respect to street cars, the rule seems to be even less stringent tlian in respect to ordinary railway cars. A passenger is not guilty of negligence, as matter of law, in moving about tlie floor of a horse car while in motion; but it is a question of fact for the jury wheth- er, under all the circumstances existing at the time, it shows a want of reas-onable care/- So a person who enters an open street car, the seats of which are all occupied, is not guilty of negligence, as matter of law, in standing between two seats, holding onto tJie scat in front/' Where the only passenger on a street car, backed against the caboose. Quackenbiish v. Railway Co.. 73 Towa. 458, 35 N. W. 523. A passenger on an excursion train, who avats liini- self on the rear end of the box of an open car, not exceeding two and one-half inches in thickness, with his feet elevated by being placed In the seat directly in front of him, and with no possible oppor- tunity of protecting himself in case of a sudden jolt of the car, when he might have found a safe seat in an ailjoiuing car, or stood up in the one in question, ia guilty of contributory negligence, as matter of law; and, in an action for his death, caused by falling from his seat while the train was in motion, it is error to submit the question of contributory negligence to the jury. Jackson v. CrlFy. Hi Colo. 103, 2(> Pac. 331. 12 Baltimore & Y. T. Uoad v. Leonliardt. C,C> Md. 70, 5 Atl. 310. 13 Lapointe v. Ylailroad Co., 144 Mass. IS, 10 N. E. 497. Nor is standing in the aisle. Griffin v. Railroad Co., 63 Hun. 020, 17 N. Y. Supp. 002. Owing to a snowstorm, a street-car company used conches on runners, kept for that purpose. A woman hailed one of tlu>si> coaches, the driver stopped, and, owing to the crowded condition of the car, she was thrown out by the sudden jerk in starling. The court said: "If the female plaintiff, when she stopped the defend- ant's omnibus, and undertook to take a place in it as a paass,„« trom one ,ar .o auo he :;:. : driu,:ot water, whiie ..,e .rain is , iug si.wi.v. ,» .■, .,u.. .o > for" .he jury, and the court erred iu granting a uousu.t. t ot, h, tt v „ , way CO 84 Ua. 687, 11 S. E. r,..3. A passenger »•■-«--''; train was aiiowed hy .he condu..or .0 leave one car, a . g n^o an other .0 sell tickets. He had lolt his wilo >u one cat. -Much w.is Tn open one .he seats heing reached from an ou.sidc ruon.ug hoard. In,.e.ad otao aisle. The running hoard was us.d hy the condtjcto M traiuiuen in passing tron e portion ot .he '-;--»'-- Held that It was not ncgiigcnce. as matter ol; law, toi .he passeng. r " urosl that he also .ould use it saiViy, and to try to do so m re- tun r.o his Wire. .v.,d supposing i. .0 he safe, as i, ^'-';' ^»; ' was „; negiigonce ,. it to ,o..U on, t.n- structures - « » *; track as to eudanjrer iicrsoiis -m ilu- iuimiu« Railway Co., 53 Mich. 4:',, is N. W. ■'>•"•:•>• • n . e- V Tl 4 Melntvre v. Ra Iroad Co. d^i'O ■^' '^- ^- -^'' ^ CO. ; Keliy, 92 Ind. 371; 0avis v. ICailway Co., 09 .x.,s,. 130. 10 South. 450. ^^25) § 1G6 CARRIERS OP PASSENGERS. (Ch. lO' b gence in attompting to pass, of his own motion, from one car to another.^ Of conrse, in going from one car to anotlier of a rapidly moving train, merely for liis own convenience, the passenger takes the risk of all accident not arising from any negligence of the carrier. A passenger who collides with a fellow passenger while crossing the platforms between the cars, and who is throAvn from the car bv the force of the collision and an ordinary Inrch of the train, cannot recover from the company, since it has been guilty of no negligence." But a passenger going from car to car in search of a seat does not assume the risk of a collision with a loco- motive engine or another train.^ It has, however,^ been held that to i:)ass from one car to another in the nighttime, while the train is under full headway, is. negligence, as matter of law.^ So a passenger who B Cleveland, C, C. A: I. R. Co. v. Manson, :!0 Ohio St. 451. 6 Stewart v. Railroiid Co.. !-!(.; Ma-s. GU5, IG X. E. 4GG. So the pas- senger assumes the risk of all ordinary jerks of the train inculent to stopping the train at a Sitation which it is approaching. Choate v. Railway Co. (Tex. Sup.) .3G S. W. 247, affirming (Tex. Civ. App.) 3.S S. W. 180; Sickles v. Railway Co. (Tex. Civ. App.) .35 S. W. 493. 7 Dewire v. Railroad Co., 148 Mass. 343. 19 N. E. .523. 8 Sawtelle v. Insurance Co., 15 Blatclif. 21(;, Fed. Cas. No. 12,392. "The din and clamor of the train, the ru^^hing of the wind, and dust and smoke, the consciousness that a misstep or miscalculation of dis- tances may be fatal, tend to confuse or excite the faculties, and dis- turb the judgment; and, although it is a common practice thus ta pass from car to car, it ia rarely accomplished without experiencing a sense of relief when it has been safely done. When darkness adds another condition of uncertainty to the attempt, there can be no justillcation of the act in the mind of any prudent man." Id. In Louisiana, where the supreme court passes on the facts as. a jury, it has been held that stepping from one car to another without in- ducement or invitation, or on a necessary errand, while the train is in (420) Ch. 10) CONTRIBUTORY NEGLIGENCE. § l(j<> has gone from the coach to the engine to get a drink of water is guilty of contributory negligence, as mat- ter of law, in attempting to return to the coach wliile the train is on a sharp curve, going at a rapid rate of speed.® It is generally hazardous to pass from one street car to another, because of the distance between the car phitforms and the manner in which the cars are fasten- ed together. Thus a passenger who leaves his seat in an open car, and goes onto the running board, to pass into another car,is guilty of contributory negligence, as matter of law, if there was no necessity for leaving his seat, and he cannot recover for injuries sustaineil in be- ing struck by an iron column near the track; but if he desired to make a change because his seat was so crowded as to be uncomfortable, the question is one of motion, is negligence. Bemiss v. Railroad Co., 47 La. Ann. IGTl, 18 South. 711. » McDauiel v. Railroad Co., 00 Ala. 64, 8 South. 41. If a passenger on a railroad car is guilty of negligence, by uunecessari'y exposing himself to danger, by wrestling or scuffling in the cars, or by im- prudently or unnecessarily passing from one car to another -while the train is in motion, and receives an injury, and his carelea-.l) § 167 CARRIERS OP PASSENGERS. (Ch. 10 to stand aside and allow ladies to occupy the safest and most desirable positions in a public conveyance.* So, though a number of passengers leave a crowded train at an intermediate station, the question whether plaintiff is guilty of contributory negligence in contin- uing to ride on the platform, instead of searching for a place inside of some other car, is for the jury, where it does not appear that he might have gotten a safer or better position, or that he received any notice from the conductor, or any one else, that he might find room in some other car.^ By the weight of authority, it is negligence, as mat- ter of law, for a passenger to leave a car, and stand on the platform, while the train is rapidly moving, in order to be ready to alight when it shall stop at his station, which it is approaching, where his act is in violation of notices posted in the car, and where there is no necessity for him to do so.^° But where it is cus- 8 Chicago & A. R. Co. v. Fi.-her, 141 111. G14, .">1 N. E. 406. But a pa.s.senger on a vestibuled train, about to enter a car, lias been held guilty of negligence in stepping backward, to permit a lady passenger to enter, without looking to see whether there is an opening between the cars into which he steps. Louisville, N. A. & C. Ky. Co. v. Stout. CO 111. App. 298. 9 Chicago & A. R. Co. v. Fisher, 141 111. 614. 31 N. E. 406, 38 111. App. 33. A different ruling was made in Chicago & X. W. R. Co. v. Carroll, 5 111. App. 201, which held that where a number of passengei-s on a crowded train leave at an intermediate station, it is the duty of a passenger riding on the platform to ascertain whether there is room inside; and if he fails to do so, and continues riding on the platform, when there is in fact room inside, he cannot recover for injuries sus- tained in being jolted off the car. 10 Scheiber v. Railway Co., 61 Minn. 499, 63 N. W. 1034; Patersou V. Railway Co., 85 Ga. 653, 11 S. E. 872; Alabama G. S. R. Co. v. (432) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 167 tomarv for a traiu to merely slow down at a station, instead of eoniin,u to a full sto]), a passeujier is not guilty of negligenfe in going on tlie platform as the train is approaching the station. ^^ So, a passengei- who, at the invitation of a brakeman, takes a position on the car platform, to be in immediate readiness to aliiiht when the train comes to a stop, is not guilty of contributory negligence as matter of law. The plat- form is not such a position of obvious danger that a reasonable man would not have obeyed the servant, or accepted the invitation. ^^ As a general proposition, a passenger is not guilty of contributory negligence in standing on the platform of a car at rest, and his so standing there will not Hawk. 72 Ala. 112; Bon v. As^suiaiK-e Co., 5(J Iowa. ()(U. 10 N. W. 2-_'5; Jammison v. Railway Co., 92 Va. 827, 2.3 S. E. 7.jS; Fletcher V. Commissioner of Railways, 7 New S(Mitli Wales, 251. The mere announcement of a station by a conductor, and a remark to a pas- senger, '"I wi.sh I was as near home as you are," do not justify a jias- senger in going on the car platform; and he cannot recover for inju- ries sastained in being jolted off the platform. Klitch v. Railroad, 7(! Ga. 333. A passenger wlio is a.sleep when his station is reached is guilty of negligence in leaving the car after it has attained a rapid speed, and in going on the car steps, with the intention of aliglitiug, if the speed should slacken, though he was advised by the brakemau to get off quickly; and lie cannot recover for injuries sustained in being thrown from the slcjis l)y a jerk of the traiu. Liudsej^ v. Rail- road Co., 64 Iowa, 407, 20 N. W. 737. But in Schultze v. Railway Co., 32 Mo. App. 438, it was held that, after the whistle has sounded, an 1 the name of a pas-senger's station has been calle 1, a i)as-enger is not guilty of contributory negligence, as matter of law. in going on till' 'Jir platform, and in ste])ping on tlie <"ir steps as llie train is ap- proaching the station platform. n Brashear v. Raihi ad Co., 47 La. Ann. 7;'.r>, 17 Snutli. 200. 1-' Baltimore &: O. R. Co. v. Meyers, li» C. C. A. -Is:.. ti2 F.-d. :;07; Kentucky A: I. Bridge Co. v. Quinkert, 2 lud. App. 2 11. 2S .\. i:. ;i:{S. V. 1 i-::t.c.m:."as.— 28 0138) §107 CARRIERS OF PASSENGERS. (Ch« 10 defeat the right to recover for injuries sustained in a collision Avith another car/^ But a passenger who leaves his seat in a car on a freight train while at a station, and stands on the car platform, without even taking the simple precaution of supporting himself b}^ holding to the railing, or anything else, is guilty of negligence, as matter of law, which will preclude a recoverw for injuries sustained in being jerked from the platform h\ the sudden starting of the train." So a passenger who leaves his seat in an ordinary car, and goes on the platform, knowing that the train is about to start, and who is thrown down by the starting of the engine, Avith no unusual or unnecessary jerk, is guilty of negligence, and cannot recover from the company for the injuries sustained.^^ 13 Walter v. Railroad Co., 39 Iowa. 38; Collius v. Railroad Co., 12 Barb. (X. Y.) 402. AVhere a train has been .s.ojped between stations, to put off trami s, a passt»nger is not gudty of contributory negligence, as matter of law, in going on the ca'r platfi rm to see Avhat is going on. and is not thereby precluded from ;;ecovering for injuries sus- tained by the accidental discharge of the conductor's pistol as he swung hiuLself on the car after the train bad started. Gerstle v. Railway Co., 23 Mo. App. 361. "Whether or not it is negligence for a passenger to ride on the platfonn of a car as the train is leaving the station, and before it has attained full speed, is for the jury. Good- rich V. Railroad Co.. 29 Hun. ."iO. li Malcom v. Railroad Co.. KX! N. E. va, 11 S. E. 187; Smotherman V. Railway Co., 29 Mo. App. 2(;.j. A passenger on a freight train, which, on a dark night, stops on a liigh trestle near its destination, pursuant to a signal, is guilty of negligence, as matter of law, in go- ing on the platform of the caboose car, Avithout making inquiry of the conductor as to whether it is prudent, or as to the length of time the train will stop. Rockford, R. I. & St. L. R. Co. v. Coultas, 67 111. 398. 15 Torrey v. Railroad, 147 Alass. 412, 18 N. E. 213. A mother, who, Willi a small child, not three years old, takes passage on a mixed pas- (434) Ch. lOj CONTRIBUTORY XEGLIGE.NXE. § 108 § 168. SAME— STREET CAR. It is not contribiitoi y iie La. Ann. 1329, 14 South. 01. § liJS. 1 Meesel v. Kailroa t Co.. 8 Allen (Mass.) 23.5; Germantown P.' Ky. Co. V. Walling. U7 Ta. St. .j."). Not negligence, in absence of notice to the contrary. Augusta cV: S. K. Co. v. lienz, ."(5 (in. 12(J. It is not contributory negligence per se for a passenger to ride on the lla'.f.rm of an electric strtet-rai'.way car. Marlon St. K. Co. v. Shaffer, it Iii-t O aha St. R. Co. v. Godola (Neb.) 70 N. AV. 4'.tl. Where an electric car is too crowded to permit a passenger to enter, he is not, as matter of law. guilty of contributory mgigeuce in standing on the rear plat- form near the ^,;eps, holding to the rail behind liini wit.i ene li;in;l.— a lositiou the conductor told him to take. Itebcr v. '1 la lion ("n. (Pa. Si p.) -.W Atl. 24.-. - <;ermant(i\vn 1'. Ky. Co. v. Walliug, !i7 I'a. St. o.j. § 1G8 CARRIERS OF PASSENGERS. (Cll. lO that tliey stop liabitnally to receive passengers to stand inside till tlie car is fnll, and tlien to stand npon the platforms till they are full, and coutiune to stop and receive them even after there is no place for them to stand, except on the steps of the platform.^ A passen- ger on an elevated train is not guilty of negligence, as matter of law, in riding on the platform of an elevated car, though when he gets on lie knows that the car and platform are crowded,* Even Tvhen there is room inside, standing on the rear platform of a moving street car is not, under ordinary circumstances, contributory negligence per se on the part of a passenger, at least in the absence of any published rule of the carrier forbidding it.^ Neither 3 Meesel v. Railroad Co., 8 AlUn (Mass.) 235. 4 Graham v. Kaihvay Co.. 14!» X. Y. 38(). 43 N. E. 917, reversing 8 Misc. Rep. 30.j. 2H N. Y. Sni)i). 7.39; Merwiu v. Railroad Co.. 48 Hun. (108. 1 X. Y. Supp. 207, affirmed, 113 X. Y. (>o9. 21 N. E. 41.5; Suther- land V. Insurance Co., 87 Iowa, .505, 54 N. W. 453. Voluntarily ridiny on the rear jjlalform of a croAvded .street car is not negligence per .se. Metropolitan R. Co. v. Snashall, 3 App. D. C. 420. This case must be taken to overrule Andrews v. Raih'cad Co.; 2 Macliey (D. C.) 137, liolding that a passenger who rides on the rear platform of a street car is guilty of contributory negligence, as matter of law, if there is stamling room inside, where there are pendent straps, which he may hold while standing. It is not. as matter of law, contributory negli- gence to stand on the back platform of a street car, especially where all the seats are filled. I'endergast v. Railway Co., 10 App. Div. 207, 41 X. Y. Supp. 927. ^ Matz Y. Railway Co., .52 Minn. 159, 53 X. W. 1071; Fleck v. Rail- way Co., l.">4 Mass. 480. The fact that a pas.senger on a street car stands on the platform, ^^iien there is opportunity to take a seat in- side, is no defense in an action against the owner of a truck, which ct)llided with the street car. injuring the passenger. Connolly v. Ice Co., 114 X. Y. 104, 21 X. E. 101. (43G) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 1^9 does the omission of the ])a8senoer to take liohl of the rail on the platform, of itsi'lf, amount to contributory negiip,ence; nor, in view of the connnon experience and practice, can it be said, as matter of law, that the two facts coni?i>iued constitute negli«>ence. It is a question for the jury.** The existence of snow and ice upon the platform is not necessarily such an element of dano-er as to be conclusive proof of neoli X. Y. Supp. 1(142; .Sceliy: v. Railway Co., 18 .Misc. Rep. as:;. 41 X. (437) § IG'J CARRIERS OF PASSENGERS. (C'h. 10 is crowded, the passeno-er oannot be blamed for riding on the front platform.- It has even been held that knowledge hj a passenger of a rule of the company prohibiting passengers from standing on the front platform does not make his standing there negligence, Y. Supp. 656. It is not negligence per se for a passenger to ride on tlie front platform of a street car, though there are vacant seats in- side. Hastings v. Railroad Co., 7 App. Div. 312, 40 N. Y. Supp. [)?.. It is not negligence, as matter of law, for a passenger to ride on the front platform of an electric car, in the absence of a rule forbidding It. Bailey v. Traction Co. (Wash.) 47 Pac. 241. It is not neghgente per se for a passenger to stand on the front platform of the trail car in a moving cable train, in the absence of any rule of the company against it, where it has been customary for passengers to occupy that position. Muldoon v. Railway Co., 7 "Wash. .528, 3.") Pac. 422. In an earlier New York case, however, it was held to be negligence, as matter of law, for a passenger to get on a street car so crowded that there is liarely room for him to stand on the front platform. Tregear V. Railroad Co., 14 Abb. Prac. (N. S.) 49. It is for the jury to say whether a passenger on a street car propelled by electricity is guilty of contributory negligence in standing on the iilatform, where ther > are vacant seats in the car. and their finding that he was will not be disturbed by the court. Beal v. Railway Co., 157 ilass. 444, 32 N. E. 653. 2 Archer v. Railway Co., 87 Mich. 101, 49 X. W. 488; West Phila- delphia P. Ry. Co. V. Gallagher. 108 Pa. St. 524. A passenger who cannot get on the rear platform of a street car owing to its. crowded condition is justified in getting on the front platform, and remaining there, where the car "appeared" to be full inside. He is justified in acting on appearances. Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 290, 10 South. 139. A boy passenger is nr)t guilty of negligence, as matter of law, in riding on the front platform of a crowded street car, where he has been compelled by the conductor to give up his seat, and to stand on the platform. Sheridan v. Railroad Co., 30 N. Y. 39. A passenger is not guilty of negligence, as matter of law. in surrendering his seat to his wife, and in standing on the front platform.— the orly plaie Avhere he can be accommodated. I.ehr v. Railroad Co., 118 N. Y. 550, 23 N. E. 889. It is not negligence per (488) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 169 as matter of law, but it is a question of fart for the jury, where the ofmductor accepted his fare without objection, and there is evidence that such a position is not obviously danj>erons.^ But a contrary ruliu'' has been made in Maryland.* 9. Of course, circumstances may exist which will ren- der ridinfj; on the front platform nej^lij^ence per se. Thus, where there is room inside, it is nHj;li«>ence, as matter of hnv, for a passen<:,er to continue to ride on the front platform,- after he has been notified by the driver that it is unsafe and aj;ainst the company's rules. ^ So it is contributory negligence, as matter of se for a passenger on a motor tar to staud ou the front platform, holdiufi with both hands onto the iron rod behind him, while the car i.s going rapidly over a toad with eurves; he having been directed by the conductor to stand there while smoking. Francisco v. Kail- road Co., 88 Hun, 4U4, 34 N. Y. Supp. So!), distinguishing s. c. 78 Hun, 13, 2i) N. Y. Supp. 247. A passenger Avho. in the nighttime, boards a street car in which there is no conductor, is not guilty of contributory negligence, as matter of law, in wallving to the front platform, to ask the driver as to the destination of the car. and is not thereby debarred from recovering for injuries sustained by its de- railment. Farrel v. Railroad Co., ol Hun, ()40. 4 X. Y'. Supp. .7.)7. 3 Iligliland Ave. & B. K. Co. v. Donovan. i)4 Ala. 2!>9. lU South. 13;>. * Baltimore & Y. Turnpike Kl. 5 Wills V. Railroad Co., 121) Mass. 3r>l. A passcugi-r who. on a cold, snowy night, when the tracks are icy. stands ou the front plat- form of a street car. in which there are vacant seats, is guilty of con- tributory negligence, as matter of law. Bradley v. Railroad Co., Ou Hun, 419, .■>.") X. Y. SuiM'- ■'l'^- -^ jiassenger who stands on the very et\}H^ of a crowded sfr;'rt-iar idalform. without holding onto any- thing, is guilty of neg'ig nee. as matter of law. Ward v. Itai'.road Co.. 33 N. Y. Super. Ct. .•;:)2. (43D) § 169 CARRIERS OF PASSEXGERS. (Ch. 10 law, for a passenji- r to ride on the driving bar of a street car, — a thin iron rail, not exceeding an inch in thicliuess, — even at the driver's invitation, if there is room inside. ** So a passenger on a horse car, who, without invitation, when there is plenty of room inside, goes on the front platform, which is uninclosed, and there occupies the driver's stool, which is high, and without arms or other protection, is guilty of negli- gence, as matter of law; and there can be no recovery for his death, caused by his being thrown from his seat while the car was being rapidly driven onto a switch/ So, while, as a general proposition, it is not negligence, as matter of law, for a passenger to ride on the front platform of a street-railway car, yet a passenger who voluntarily so rides assumes the usual and ordinary dangers of his position. He is compelled to stand, and is not protected from the jolts and sudden move- ments of the car, except by the use of his e3'es and hands. Hence a passenger injured by falling from the front platform of a street car cannot recover merely on i^roof that the driver whipped his horses, and that they made a sudden plunge, wliich caused the car to lurch. The driver has to use his whip, and it is not negligence for him to do so, any more than it would be on the part of a driver of any other vehicle.^ 6 DoM-uey v. Heudrie, 4G Micli. 4U8, 9 N. W. S28. 7 .Manu V. Tract iou Co., 175 Pa. St. 122, 34 Atl. 572. 8 Cassidy v. Railroad Co., 9 Misc. Rep. 275, 29 X. Y. Supp. 724. (440) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 170' § 170. RIDING ON FOOTBOARD OR STEPS OF CAR. I\idiiieuce, as matter of law, where the ear is so crowded that there is no room either in the car or on the phitform. No differ- ence exists in this respect between electric cars and § 170. 1 Topeka City Ry. Co. v. Higgs. .'iS Kan. 375, IG Pac. GG7;. Bruno v. Railroad Co.. .") ;Misf. Rep. 327, 25 X. Y. Snpp. r)07; Wood v. Railroad Co.. 5 App. Div." 492. 38 X. Y. Snpp. 1077; City Ry. Co. v. Lee. r>0 X. J. Law, 43."). 14 Atl. 883; West Chicago St. R. Co. v. Mc- Nulty, G4 111. App. .")40. It is not negligence, as matter of law, for a passenger to ride on the footboard of a crowded street car; and, where he is struck by a trolley pole in clo.se proximity to the track, while reaching into his pocket to get his fare, the company will be liable for the injuries. Elliott v. Railway Co.. 18 R. I. 707. 28 Atl. 338, 31 Atl. G94. A passenger on a vehicle running in a highway for the carriage of passengers has a right to assume that those parts of the vehicle prepared for the use of passengers, and destined to receive them while in transit, are suitable and safe for the purpose, and that the care of the driver will avoid any special risks which attach to- the particular position. Hence, whore a stage sleigh is in-ovided with wide footboards or guards, on the .sides of which passengers usually ride when the seats are occupied, a passenger so riding is not chargeable with contrilnitory negligence, as matter of law. Spoouei" v. Railroad Co., 54 X. Y. 230, reversing 30 Barb. (X. Y.) 217, 31 Barb.. (X. Y.) 419. 2 Clark v. Railway Co., 30 X. Y. 13."). affirming 32 Barb. (N Y,> <)-")7; Saltzuian v. Railroad Co., 73 Ilun. .")07. 20 X. Y. Supp. 311; HueLsenkamp v. Railway Co., 37 Mo. 't'.iS. dverrnling 34 Mo. 45; Pray v. Railway Co., 44 Xeb. 107. 02 X. W. 447. It is not negligence, as matter of law, for* a passenger to stand on the stej) of a car, outside of the gate placed between the step and the car platform, where he does so by direetion of the driver, and because the car is so crowded that there is no room in the c.Mr or on the iilatform. Seymour v. Railway Co., 114 Mo. 200, 21 S. ^^■. 7:;9. (441) § 170 CARRIERS OF PASSENGERS. (Ch. 10 horse cars.' So, a passenger who has requested a street car to be stopped is not guilty of contribntoi-y negligence, as matter of law, in getting on the lower step of the car, to be in position to alight when it does stoi)/ It has even been held that riding on the foot- board or car steps is not negligence per se, without reference to the question whether there is room in the car; ^ but there are authorities to the contrary. ° A 3 Wilde V. Railroad Co., 103 Mass. 538. 40 N. E. 8.51; McGratli v. Eailroad Co., ST Hun. 310. 34 N. Y. Supp. 3(r.. ■i Bowie V. Railway Co., 09 Miss. 190. 10 South. r>74; Nichols v. Rail- road Co., 38 N. Y. 131. For a passenger on a street car, after sig- nalinj; the car to stop, to walk to the place from where thej^ expect to alight, and there stand, waiting for the car to stop, is so common that such conduct cannot be said to be lack of ordinary care. North Chicago St. R. Co. v. Southwick,»G6 111. App. 241. The question of the negligence of a passenger on an electric street car, in leaving his seat, and stepping onto the footboard, whi!e the car is still in motion, is one of fact for the jury. Denver Tramway Co. v. Reid, 22 Colo. 349, 45 Pac. 378. 5 Geitz V. Railway Co., 72 Wis. 307. 39 N. W. 800; Schwartz v. Rail- way Co., 8 Ohio Cir. Ct. 484. The jury is justiiied in tindiug a pas- senger guilty of contributory negligence in standing on the running board of an open street car when there is room inside. Schoenfeld T. Railway Co.. 74 Wis. 433, 43 N. W. 102. 6 Aikin v. Railroad Co.. 142 Pa. St. 47, 21 Atl. 781; Ashbrook v. Railroad Co., 18 Mo. .\pp. 290. It is negligenc3 for a passenger on a street car to ride on the lower car step, without holding onto any- thing,- if there is abundant room inside tlie car. McDonald v. Rail- way (Ala.) 20 South. .■')17. One who bi anls an elevated steam-railway car in motion, by getting on the sheet iron covering of the steps of the last platform on the train, and who keeps himself in that position by holding to tlie iron gate that bars his entrance there, until struck by a structure near the track, and knocked into the sti-eet below, is guilty of negligence, as matter of law. Carroll v. Transit Co., 107 Mo. 0.")3. 17 S. W. 889. (442) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 170 passengor who rides on a car step assumes the ordinary hazards of that position, such as the^isk of being thrown from the car by its usual motion. But lie as- sumes no risk created by any unusual or dangerous rate of speed resulting from the negligent conduct of the driver/ or the hazard of a collision with a lar t)n another track at a point where the two tracks are un- usually close together.* Of course, it is negligence, as matt(M' of law, for a I)assenger to ride onthe car step of a rai)i(lly moving passenger train.' But it is not contributory negli gence, as matter of law, for a passenger to go upon the lower step of a slowly moving car, and standing there, and waiting, while the car is slowly moving, with the intention of alighting when the train should cease to move; and this is true, although the passenger is carrying a child in her arm.^° 1 Willmott T. Tlaihvay Co., 100 Mo. 5:^.'), 17 S. W. 490. 8 Herdt v. Itailroad Co., Go Hun. (>25, 20 N. Y. Supi). 340. The de- fense of contrilmtory negligence, in tliat plaintiff, a newsboy, was standing on the footboard of a street car. when he was knocked off by defendant's wagon, is not available to defendant, though it mighty 1)6 to the street-eai- coniitany. Mills v. ^^'t)lvertou, 9 App. Div. S2, 41 N. y. Snpp. 90, following Connolly v. Ice Co., 114 X. Y. 1U4, 21 X. E. 101. aCinciunali, I., St. L. & C. Ry. Co. v. McClaiu dud. Sup.) 14 X. K. 30(;. A 1.") year old boy. of average iutelligeuce, is guilty of contribu- tory negligence, as matter of law. iu going upon the lowest stej) of the car to vomit, though there is only standing room in the car. Cleveland, C, C. & St. L. Ily. Co. v. Moneyhun (liid. Sup.) 44 X. !•:. 1100. 1" Cincinnati, H. & I. R. Co. v. Revalee (Ind. App.) 4t; X. l:. :'..j2. But see ante, § 157. (443) § 171 CARRIERS OF PASSENGERS. (Cll. 10 g 171. RIDING IN BAGGAGE CAR. A piisseiiger who willfully violates a known rule of a railroad company, prohibiting passengers from riding in the baggage car, is guilty of contributory negligence, as matter of law, and cannot recover for injuries sustained in consequence of his so riding.^ '^The baggage car,'' it is said, "is a known place of dan- ger. In this respect it differs from the cowcatcher and the platform only in degree. It is jjlaced ahead of the passenger car, and next to or near the locomo- tive. In cases of collision, it is the first car to give way to the shock, and is frequently the only one seri- ously injured." ^ Circumstances, however, may justify the passenger in riding in the baggage car. Thus, where, during a journey, a railroad company drops off its passenger coaches from a mixed train, and offers to passengers conveyance in the baggage car, a passenger who ac- cepts the offer does not assume the risk, nor is he guilty of negligence in so doing.^ So an express messenger is not chargeable with contributory negligence in rid- ing in the baggage car, as required by his contract of S 171. 1 Pennsylvania R. Co. v. Lansdon, 92 Pa. St. 21; Peoria & K. I. R. Co. V. I.ane, So III. 4-lS. A passenger on a I'aihvay train. Avlio. instead of occnpying a coadi provided for i)asseuf>:ers, remains, Avithout necessity Iherefor. in tlie bajigage car, and there receives an injnry in tlie wreck of the train, wliich he would have -avoided had he remained in the passenger coach, is giiilty of contributory negli- gence. Houston & T. C. R. Co. v. Clemnions. oo Tex. SS. 2 Pennsylvania R. Co. v. I>angdon. 92 Pa. St. 21. 3 Baltimore & P. R. Co. v. Swanii. Si Md. 400. 32 Atl. 175. (444) C}t_ 10) CONTRIBUTORY NEGLIGENCE. § 171 employment, and may recover for an injury caused l>y the eniiiue and bai>j>a«ie car fallinii tliroui;li a brid-e, though none of the passenger coaches went tlirough. He assumes only the risks incident to the character of the baggage car, and the goods carried thereon, and not the risk incident to the defect of the roadbed/ So, where it has been customary for a railroad com- pany to transport its employes on a baggage ear to and from their work, they are not guilty of contributory neulii-ence, as matter of law, in riding there.' So it is not negligence, as matter of law, for a passenger to go into the baggage car while the train is standing at a station.® Does a conductor's permission to ride in the baggage car, or in any other dangerous place, relieve the pas- senger from the charge of contributory negligence? The true view would seem to be that no permission or invitation of a conductor will justif;^ a passenger in riding in a place so obviously dangerous that a man of ordinary prudence would not assume the risk.' 4 San Antonio & A. P. Ky. Co. v. Adams, U Tex. tUv. AvV- I"-- -* S. W. 8;{i). 5 O'DonnelJ v. Allegheny R. Co., 5!) Fa. St. 239. e GarduLT v. Railroad Co., 94 Ga. 538. 19 S. E. 757; Jones v. Rail- way Co., 43 :^Iiun. 279. 45 N. W. 444. Wlu-ro a passenger, while the train is staudin- at tlie station, goes into ilie basjiage i-omi.artniont of a combination passenger and baggage car, for the purpose of seeing the conductor upon legitimate business connected with the jouni.'v. the (piestion whether or not the passenger was rightfully in the I Mg- gage compartment is for the jury; ana it is error Ua- llie c.aiii to di- rect a noasuit in an action for injuries sustained in a .-..mussion be- tween it and another c.ir while bi-iug coupled, (iardn.r v. Kaiboad Co.. 97 Ga. 4S'J. 25 S. K. :'.34. 7 Downey v. Ilendri,.. 4.; Mi.h. 4;iS. 9 N. W. S2S. Where .-i ,.as.sen- (4 43) § J71 CARRIERS OF PASSENGERS. (Ch. 10 Now, a baggage car does not seem to be a place of such obvious danger, and it would seem to be a proper ques- tion for the J!iry whether a passenger who rides in the baggage car with tlie conductor's permission is guilty of conti'ibutory negligence. This is the rule adopted by some of the courts.' This position, however, has been vigorously criticised by the supreme court of Pennsylvania, which holds that a conductor's permis- sion to ride in the baggage car will not render the com- pany liable, if the passenger knew the company's rule prohibiting it.^ Suppose a passenger injured while riding in a bag gage car would have been injured in a wreck or colli- fit'i- assnmes a Inakeinau's iiosition ou a train at the conductor's re- quest, the mere fact that the position thus assumed is one of greater hazard than his seat Is not such negligence, as matter of law, as Avill debar a recovery for injuries sustained. The taking of a haz- ardous position at the conductor's request is not negligence, unless it is so obviously dangerous that no prudent person would take it. Chamberlain v. Railroad Co., 11 Wis. 248. See, also, ante. § 131. s.Tacobua v. Railway Co., 20 Minn. 12.-> (Gil. 110); Watson v. Rail- way Co.. 24 IT. C. Q. B. 9S. The fact that a railw^ay company has a .rule prohibiting passengers from being carried in its baggage cars does not absolve it from the duty of care towards passengers who are in a baggage car. if it habitually disregards the rule, and permits passengers to ride in such cars. Jones v. Railway Co., 43 Minn. 278, 45 N. W\ 444. 9 Pennsylvania R. Co. v. Langdon, 02 Ra. St. 21. The court says: "There can be no license to commit suicide. It is true, the con- ductor has charge of the train, and may asisign passengers their seats. But he may not assign a passenger to a seat on the cowcatcher, a po- sition on the platform, or in the baggage car. We are unable to see how a conductor, in violation of a rule of the company, can license a man to occupy a place of danger, so as to make the company re- sponsible. It is otherwise as to rules w^hich are intended merely for the convenience of the company or its passengers." (440) (^'jj JQ\ CONTRIBUTORY NEGLIGENCE. § I'l rion even if he bad bec'ii in his proper phue in the train, is he still prevented from recoverinj-? The court of appeals of New York holds that the mere pr.s- eiu-e of a passen-er on a bao-a.ue car at the time of a collision is not contributory neiilioence, as matlcr of law, if his beino there did not contribute to the in- jury.^" AVhen contributory ne-Hiience is interposed as a defense to an action against a railroad company for nej;lii;entlv injurino- a passeniier, and the supposed ne^liii-ence consists in the fact that the passen-er vol- untaiilv occupied a position in the train which was more dan-erous than the position he shouhl have oc- cupied, the nature of the accident should be consid- ered; and if, upon such consideration, it appears that the danger of injurv from that particular accident was materially increased by the fact that the passenger was in that particular place, instead of the place lit' should have occupied, he ought not to recover. But if the nature of the accident be such that the danger of injurv was not enhanced in consequence of the posi- tion*occupi(Ml by the passenger, or if the accident was of such a nature as was as likely to occur in one posi- tion of the train as another, his right to recovery will not be affected by the fact that he was in an improper place.^^ T, M wv. ii-> v Y 11" "1 N" E. 72'.. Jirtirniing 40 '';Ti<^!L.Uv ('.nt. K. CO. V. Th-unas- A....-,-. 7. Ky. U- In this ,,.c. it was h.1.1 ilK.t a i.a^sniger ri.lins en the e-xpress c-ar. whn-h m U, front of the regnhu- i.assen.-er coaches, cannot recovc-r lor m- juvics Hustained in a collision of the engine with anin.als on the nuK m in n.Mit, E. .K: M. V. K. Co. V. Root (Neb.) CM N. NV • •«»-, (447) § 172 CARRIERS OF PASSENGERS. (Cil. 10 § 172. RIDIIJG IN OTHER PLACES OF ALLEGED DANGER. A railroad company is responsible for the safety of passengers in any place which it provides for their ac- commodation; and riding in the smoking car, next to the locomotive, which is perhaps not the safest place on the train, is not contribntory negligence.^ So a postal clerk not on duty, and returning to his home from a rnn, is not guilty of contributory negligence, as matter of law, in riding on the postal car, with the con- ductor's permission, and in the absence of a rule of the company prohibiting it.^ But it has been held con- it was held that, if the iireseuce of a passenger in the express car is the proximate cause of liis injury, he cannot recover; but if not the proximate cause of the injury, or if the rislv of such particuhar injury was not increased by the action of the passenger, then it is no de- fense that lie voluntarily assumed the position in the express car. In Carroll v. Railroad Co., 1 Duer (N. Y.l r,71, it was said that the presence of a passer ger in a baggage car does not contribute to a col- lision with anotlier train. Hence, if he is injured in such collision, he may recover, tliough he would not have been injured if he had been in a passenger car on the train. This position is radically un- sound. The question is not whether the passenger's position con- tributed to the collision, but to his injury. § 172. 1 Goble v. Railroad Co., 10 Fed. Cas. 502. 2 Baltimore & O. R. Co. v. State, 72 Md. :^(>, IS Atl. 1107. The court said: "There was no rule of the company forbidding the deceased to enter the car, and occupy the same, if he was not in actual service. It was his habit to occupy it wlien he was returning from duty, when- ever lie chose; and the conductor, who is conLe;led to be the general agent of the company, not only made no objection, but permitted him. from time to time, to do so. There are cases, no doubt, where the invitation or permission of the conductor would not protect a man in running a risk Avhich was so obviously dangerous that a prudent man would not thiuli of incurring it. To justify a ccanr in saying (448) (Jll 10) CONTKIBUTORY NEGLIGENCE. § iT'i tributory nojiliiience for a passeiijier to ride in an ex press car, in violation of a known rule of the comi)any, where such violation brin<;s on the passen.iier an injury from which he would have escaped had he been in the re};ular passenger coach.^ Where the train on a cable railway consists of a "dummy" or "grip" car and a trailer, a passenger is not chargeable with negligence in taking a seat in the dummy car, instead of in the trailer.* So a passenger on a stagecoach riding on the outside, who refuses to take an inside seat when requested by the agent of the stage line, assumes only the peculiar risk of his ex- posed position, but not that resulting from the negli- gence of the driver.^ that conduct is per se negligence, the case must present some such feature of recklessness as would leave no opportunity for diffrri'iK-o of opinion as to its imprudence in the minds of ordinarily prudent men." An emploj-e of a theatrical company was riding in a show oar. to care for the company's property carried therein, as was his duty. The car was sti-ong and well built, and was fitted up for the accommodation of theatrical employes, whuse duty it was to remain there. Held, that llie fact that such e:nploy('' left a passenger coacli. and was riding in the show car next to the engine when a collision occurred, was not negligence, as matter of law, but that it was a question of fact for the jury. Blake v. Kaihvay Co., 8'.» Iowa. 8. r>t: N. \\'. 405, distinguishing s. c. 78 Iowa. 57, 42 N. W. .>S0. 3 Florida South. Ky. Co. v. Hirst, .:() Fla. 1. 11 Soutli. 500. It was further held that the conductor is without authority to waive such a ride, but that the habitual violation of the rule with the permission of the company amounts to a waiver. 4 Hinvkins v. Railway Co., 3 Wash. St. 5i»L', 28 Tac 1021; Cohi-n v. Kaihvay Co., 9 C. C A. 22:5. (50 Fed. <;'.»8. & Keitli v. rinkham, V.\ Me. 5ul. V. llKT.CAK.I'.vs.— 29 (-1-19) §1,3 CARRIERS OF PASSENGERS. (Ch. 10 § 173. RIDING ON FREIGHT AND CONSTRUCTION TRAINS. Riding- in the caboose of a mixed freight and pas- senger train, with the permission of the condnctor, is not such negligence as will prevent a passenger from recovering for injuries sustained through a misplaced switch.^ As a general rule, when passengers are ac- cepted on freight trains, it is their duty to ride in the caboose. A passenger who seats himself on a coal car,- or a freight car,- when he could have taken a seat in the caboose, is guilty of contributory negligence, as matter of law, though he does so at the invitation of a brakeman.* But a stoc k drover carried free of charge, for the pur- pose of looking after his stock, is not guilty of contrib- utory negligence, as matter of law, in riding on the stock car, in accordance with the custom in such cases. ^ And even where the rules of a railroad com- pany forbid drovers or their servants to ride in stock cars, there is no presumption against the authority of the conductor to allow them to visit the car, and look after the stock, while the train is stopping at the sta- tion." But a written contract with a railway company, signed by a shipper of live stock, providing that such § 17.3. 1 Cieetl v. llailiond Co.. 86 Fa. St. 139. 2 Woods V. .roups. :'A La. Ann. 1086. 3 Player v. Railway Co.. CL' Iowa, 723, 16 N. W. 347. 4 Atchison, T. cV- S. F. Ky. Co. v. Johnson. 3 Old. 41, 41 Vac. 641. 5 I.aw.-ou V. Itaih-oad Co., (;4 Wis. 447, 24 N. W. 618. 6 Olson V. Railroad Co.. 4.j Minn. .536, 48 N. W. 445; Florida Ry. & Nav. Co. V. Webster, 2.j Fla. 3t)5, 5 South. 714. (450) Ch. lO) CONTRIBUTORY NEGLIGENCE. § 173 shipper, while beini»' carried on the train transporting his stock, shall remain in the caboose car attached to the train while the same is in motion, is valid and bind- ing as between the parties thereto. Such a contract is a reasonable one, intended for tlie safety and conven- ience of the shipper, as well as for the protection of the railwa}' company carrying him. It does not con- travene any law or a sound public policy." And a drover who rides in the stock car, in violation of such a contract, is guilty of negligence, as matter of law, and there can be no recoverv for his death caused by the derailment of the stock car.^ But a condition in a stock pass that the drover shall remain in the ca- boose while the train is in motion does not prevent him from entering the stock car, for the purpose of looking after his cattle, while the train is stationary.® So a custom on the part of conductors permitting owners of fine horses to ride in the car with them waives a stip- ulation in the shipping contract requiring the owner to ride in the caboose.^** 7 Ft. Scott, W. & W. R.v. Co. V. Sparks. 55 Kan. 288, 39 Pae. 1032, 8 Honmpbieus v. Kaiiroad Co. (S. D.) 05 X. W. 4(5(3. « Texas cV: P. Ky. Co. v. KecnUr. 22 C. C. A. 314, 76 Fed. 550. 10 .Missouri, K. ^V: T. Ity. Co. of Texas v. Cook (Tex. Civ. App.) 33 S. W. (ill!). A ((iiKlitiou ill a sliippiiijr contract requiring tlie owner of stock to ride in the caboo.se may lie waived by the agents of the company having the lej^al or apparent power to act. Both tlie station apent sif,'ninjj the contract and tlie cotKhictor of the train liave tliis liower. Such a waiver is valid, whether in writinj; or by parol, and no additional consitleiatinn is necessary to make it valid. The dec- liuatiiiii of the conductoi-. in takinj? up the shipper's tieket, that he could ride in the car with his horse, is admis>^ilile as iiart of tlie res j;est;e. So it is conspetent to ]irove a custom of <()iidu<'tors to allow shippers of fine slock U> ride in the car with it, as bearinj.' on the (131) § 174 CARRIERS OF PASSENGERS. (Ch. 10 Persons ridins' on a construction train, which has no caboose attached, are not .unilty of contributory neg- ligence, as matter of law, in riding on the flat car next to the engine, though there is a box car immediately in the rear of the flat car/' So, the fact that a passen- ger on a construction train was told to ride on the ten- der, and not to get on the gravel cars, will not prevent recovery for an injury sustained, while on a gravel car, in a collision with another train, unless it is shown that his disobedience of the order contributed to the injury/' § 174. RIDING ON TOP OF CAR. One who rides on a projection or cupola several feet above the roof of a caboose, instead of inside the ca- boose, is guilty of contributory negligence, as matter of law/ A passenger who rides on top of a box car, instead of in the caboose, is guilty of negligence, as matter of law, and there can be no recovery for his conductor's power to waive the stipulation requiring tlie drover to ride in tlie caboose. Missouri. K. & T. Ky. Co. v. Cook, 8 Tex. Civ. App. 376, 27 S. W. 700. TlKiuiili a contract for tlie sliipment of stal- lions prohibits tlie drover from riding in the same car with them, it is not error to admit evidence that, in shipping two stallions in the same car, it is necessary for some one to he in the car with them, and also that a custom exists between the company and shippers of stallions and other valuable horses permitting drovers to accompany stock and take care of it. Such evidence is competent as showing a waiver of the prohiliitory clause in the contract. Chicago, B. & Q. R. Co. V. Dicksun. 14:^ HI. 3GS. 32 N. E. 380; s. c. 42 111. App. 303. 11 Berry V. Railway Co., 124 Mo. 223, 2.5 S. W. 229; Wagner v. Railway Co., 97 Mo. ,512, 10 S. W. 480. 12 I.awrenceburgli & (T. :m. R. Co. v. Montgomery, 7 Ind. 473. § 174. 1 Tuley v. Railroad Co., 41 Mo. App. 432. (452) (^\^ 10) CONTRIBUTORY NEGLIGENCE. § 1 * -i (lentil in a dorailmciil. wlicre no one in the caboose was injured.- So a drover, who rides on the top of a cattle cnr, when there is a passeniier car attached to the train, is o-nilty of contributory nejili^euce, as niattc^r of law, and cannot recover for injuries sustained from the de- railment of the car.^ But where a railroad company cuts out the caboose on its stock trains, a stock drover is not guilty of neji- ligence in riding on top of a car to the stockyards, in accordance with a uniform custom, sanctioned by the company." So a drover who goes forward to examine his stock while the train is stationary is not guilty of contributory negligence, as matter of law, in climbing on top of tlie train as it suddenly starts, and in walk- ins- back to the caboose, as it is customary for drovers to do in the circumstances. Nor is he chargeable with negligence in failing to look towards the front of the train while so walking, and he is not thereby de- barred from recovering for injuries sustained by being- struck by an overhead bridge, of the location of whicli he had no knowledge or warning.' Consent of the train hands to a drover's riding on top of a cattle car makes the question of his contributory negligence one of fact for the jury, though in so doing he ignorantly violates a rule of the company." J'»ut a direction of a 2Bt'yor V. Kailroad Co. (Ala.) 21 So-itli. !t5L'. 3 Little Kock & Ft. S. Ky. v. Miles^, 40 Aik. -J08. 4 Tibby v. Railway Co., 82 Mo. 2U2. 5 Chicago. M. & St. V. Ry. Co. v. CarixMitcr. Tj C. C. A. "A. r>fi Fod. 451. 6 New Orloaus & N. I-:. R. Co. v. Thomas, 1) (". C. A. 2'J, GO Fod. .'{79. (4.-.:{) § ]74 CARRIERS OF PASSENGERS. (Ch. 10 station agent to a cattle drover to ride on top of the cattle car, instead of in the passenger car attached to the train, does not relieve the drover of contributory negligence in riding on top of the car. The station agent has no implied anthority to direct a passenger where to ride. That is the business of the conductor.' The courts, however, have not as yet gone so far as to require the conductor to use force to compel a passen- ger to remain in the car provided for him. A request by the conductor of a mixed freight and passenger train to a passenger riding on top of a freight car, that he come into the passenger car, is sufficient; and, if unheeded, the carrier is not liable for injuries to the passenger, who fell from the train while in motion.* But in St. Louis S. W. Ry. Co. v. Rice. 9 Tex. Civ. App. 509, 29 S. W. 52'j, it was lield that the fact that a caboose is crowded does not jus- tify a passenger in riding- on top thereof, even with the conductor's consent, if it was a place of obvious danser, and not allotted by the company for the use of passengers. In Atchison, T. & S. F. R. Co. V. Lindley, 42 Kan. 714, 22 Tac. 70:j. it was held that a shipper of ■stock, who obeys the order of a conductor to get on top of the car at a station, and signal to the train hands to enable them to perform their duties, voluntarily places himself in a position of known danger; and. as he is not on top of the train to look after or care for his stock, the company is not liable for injuries sustained in being thrown from the train by a sudden jerk of the engine. 7 Little Rock & Ft. S. Ry. Co. v. Miles, 40 Ark. 298. 8 Aufdenberg v. Railway Co., 1.j2 Mo. .5G5, 34 S. W. 4S5. See, al,«o, ante. $ liiT. (454) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 175 § 175. RIDING ON LOCOMOTIVE OH ON TENDER. It is contributory neglijicnce, as matter of law, for a passenger to ride on the locomotive.^ Tlie fait that he is theri^ at tlie invitation of the conductor or en- gineer is immaterial; and so is the fact that he was ignorant of a rule prohibiting all persons except the engineer and fireman from riding there." Ho, it is neg- ligence, as matter of law, for a passenger to ride on the footboard of the engine," or on the pilot or cow- catcher.* i^o an employe of a railroad company, who, while being carried from his work on a ti-aiii consist- ing of an engine, tender, and gondola car, sits on a uar- § 17.">. 1 MeGucken v. Kailnad Co., 77 Hun. (>!), 28 N. Y. Siii)i). 29S. 2 Texas & P. Ky. Co. v. Boyd, C Tex. Civ. \]n>. 20."). 24 S. W. 1086. A locomotive eugiueor has no authority or vijiht to say who shall be upon the train, or give permission to any one to ride upon his engine, against the rules of the company. Chicago 2. Knowledge or consent of train hands is immaterial. Id. A full-blooded negro, having the ordinary intt'lligence of his race, may be found by the jury to be guilty of contributory negligence in riding on the pilot of a locumotive engine, though directed ao to do by the train hands. Huckcr v. Railway Co., 61 Tex. 401). A trespasser lidiiig on the jiilot of a loco- motive engine is guilty of contributory negligence, which will jne- clude recovery for injui-ics sustained in a collision, though the com- pany's servants were guilty of negligence, and knew of the dau^erouii position of the tresi as.scr, and did not warn him off. Dai win v. Kail- road Co.. s.', s. c. rr.'A. ( I')." I § 175 CARRIERS OF PASSENGERS. (Ch. 10 row platform in the rear of tlie tender, with his legs and feet hanging over the edge, in spite of repeated warnings from his sni)eriors and fellow servants, is gnilty of contribntory negligence, as matter of law.^ Bnt to take a seat in the cab of a locomotive by the direction of the engineer, in sole charge of the train, is not contribntory negligence, as matter of law, on the part of a passenger who has paid his fare, where iDas- sengers are habitnally or occasionally carried in the same or like places on the train, ^ So, where it is cus- tomary for a railroad company to carry stock drovers on the stock car or the switch engine from a point near Chicago to the stock yards, and no other mode of trans- portation is provided, it is a question for the jury whether a stock drover, who rides on the footboard of the engine by direction of the engineer, is guilt}^ of neg- ligence. "It cannot be said, as matter of law, that a prudent and ordinarily cautious man would not, under any circumstances, ride a short distance upon an en- gine. Experience has shown there is some danger in the safest mode of railway travel, and it cannot be said that one must not take a particular mode of travel because it is dangerous. The question can only be de- termined, as before stated, by a consideration of all the attending circumstances." ^ 5 LehiKli Val. R. Co. v. Greiner, 113 Pa. St. rm. 6 Atl. 246. 6 Hausuu V. Trausiicrtatiou Co., 3. lUO, § 110; (Jen. St. Xcv. iss.".. S ss-J; Revision X. .1. i>. '.r.'A, § 121; C'dniii. ]..i\vs X. .M. I.ss4. S 2(i74; Laws (■t">T) § 177 CARRIERS OF PASSENGERS. (Cll. 10 to be strictly construed; and, in order that it be ap- plicable to a passen«;er riding- on the platform, the car must be in motion when the accident occurs, and there must be some connection of cause and effect between the injury of the passenger and his being on the plat- form.'^ To render applicable a statutory prohibition against riding on the platform if there is sufficient room inside the car "for the proper accommodation of passengers," the company must furnish a seat for the passenger, and not merely standing room; and unless it does so a passenger is not guilty of contributory neg- ligence, as matter of law, in riding on the platform.' So the statute does not apply to a passenger who, see- ing that a collision with another train is inevitable, at- tempts to escape from the car, and reaches the plat- form just as the collision occurs; * nor to a passenger who, at the invitation of the brakeman, goes on the platform, to be in readiness to alight as soon as the train shall stop.^ So the statutory prohibition against :N'. Y. is.")!), c. 140, § 4G; Code N. (". 188:1. § 1978: 2 Comi). Law.s Utah 1S8S. 1). 32. § 2o.j3. I>aws N. Y. 1878, c. 2G1, make.s it a ini.sdemeanor for any persoii not a railroad employe to ride ou a wood or freight ( ar. Civ. Code Cal. § 483, provides that when fare is taken for trans- pirtinji' passengers on any baggage, wood, gravel, or freight train, the same care must be taken, and the same responsibility is assumed, by the corporation as for passengers ou passenger cars. 2 On aha & K. A'. Ky. Co. v. Chollette, 41 Neb. 578, 50 N. W. 921. 3 Choate v. Itailway Co., 67 Mo. App. 105. 4 Buel V. Railrcad Co., 31 X. Y. 314. Nor does the statute apply to the case of -a passenger who goes on the platform in fear that some disaster will occin- 1 ccause of the speed of the train, and with the intention of jumping into a pile of sand. Mitchell v. Railroad Co., 87 Cal. 62, 25 Pac. 245. 5 Baltimore & O. R. Co. v. :Meycrs, 10 C. C. A. -:S">. (;2 Fed. 367. (458) Ch. 10 CONTRIBUTORY NEGLIGENCE. § 178 riding on the platform does not apply to street rail- ways.'' And where a railroad company does not post notices in its i)assenger oars ])rohibiting passengers from riding in the baggage car, the presence of a i)as- senger in a baggage car Avlu^n injured in a collision does not bar a recovery, if he was there with the knowl edge and consent of the conductor.' But the statutory prohibition against riding on the platform is not waiv- ed by the conductor's failure to object, if there is sufti- cient room inside for the accommodation of passen gers.* 178. SAVING HUMAN LIFE. It is not contributory negligence in a person to risk his life, or place himself in a position of great danger, in an effort to save the life of another, or to rescue an- other from sudden peril or great bodily harm. "The law has so great a regard for human life that it will not impute negligence to an effort to preserve it, nn less made under such circumstances as to constitute negligence in the judgment of prudent persons." ^ Thus a passenger at a station, noticing an intoxicated 6 Vail V. Railroad f"o.. U7 X. Y. .'wT. 4'_' X. E. 4, affirming (> Misc. Rep. 2(», 2; Lax v. Railroad Co., 46 N. Y. Super. Ct. 448. A statute providins,' that street-raihvay coniitanios shall not he liable for injuries to persons gotting ou or off at the forward end of the car does not apply to a passenger not getting on or off at the time of his injury, but riding on the steps of the [tlatforni. with th«' knowledge and consent of t!ic (hiver. Seymour v. JJailway Co., 114 Mo. '2m, 21 S. W. 739. 7 Carroll v. Railroad Co., 1 Duer (.^. Y.i r>71. slliggins V. Railnad Co.. 2 F.i sw. (X. V.) i:'.2. § 178. 1 I'eytou v. K:i:l\vay Co., 41 I.a. Ann. sr.l, (5 S >\\\\\. (ino. (t .-,!)) § 179 CARRIERS OF PASSENGERS. (Ch. 10 friend on the track, in dangerous proximity to an ap- proacliing- train, and apparently unconscious of peril, is not guilty of contributory negligence in rushing on the track, and pushing his friend off, though he is him- self strucl^ by the pilot beam of the locomotive." So, where a child is thrown from a car platform at a sta- tion bv a concussion of cars, its mother is not charge- able with contributory negligence in thrusting her arm under the wheels to save her child from being crushed to death. ^ Tn Michigan, however, it was held that an attempt to board a train running at the rate of four miles per hour is negligence, as matter of law, though made for the purpose of informing the conductor of a broken rail, and thus avert a threatened disaster.* § 179. AFTER THE INJURY. It is the duty of one who receives personal injuries from the negligence of another to use ordinary care and ■prudence to have himself cured, and he forfeits his right to recover damages that might have been saved, and which resulted from his own negligence in failing to adopt means of cure.^ But the injured person is not re- 2 Id. h De Maliy v. Stfamsbip Co.. 45 I.a. Ann. 1:^2;). 14 South. 61. 4 Blair v. liail\va.\' Co., CO Micb. 124. 2r) X. W. S.'..">. This case was probably corrt-c-tly decided on the ground that defendant had dot beeu guilty of negligence, but it is very questionable whether an attemp; to board a moving train under these circumstances is contributory negligence, as matter of law. 5 179. 1 Gulf, C. .V S. F. Ky. Co. v. Coon, 09 Tex. 730, 7 S. W. 492: Louisville, N. A. & C. Ry. Co. v. Falvey, ICNl Ind. 4()9. 424, 3 N. E. 389. 4 X. E. 908; Secord v. Railway Co., 18 Fed. 221. The failure (400) Ch. 10) CONTRIBUTORY NEGLIGENCE. § 170 spousible for a mistake; autl when lie actsin j^ood faith, and imder the advice of a eompi'teiit physician, eveu if it is eiToueons, the error will not shield the wron«i- doer.- And a person injured by the negl licence of an- other, who does an act which a.ujiravates the injury, may recover for the a. One who receives a physical injury at the hands of another cannot be expected to know in every' instance the most prudent thing for him to do. and should not be lield negligent because his sufferings are such that they impel him to a course apparently favorable to his recovery. Culf. C. & S. F. Ry. Co. V. McManuewitz. 70 Tex. 7:i. S S. AV. fJd. Wlieie a \voman four moiuiis advanced in pregnancy steps into a hnU- in the station plat- form, and receives a jar. the failure of herself and husband to call a physician immediately is not contributory negligence, if no api>rehen- sion of immediate injury to health was created by the injury. Texas & P. Ry. Co. V. Xeal (Tex. Civ. App.) :V.i S. W. («:5. Tliat liie in- jured parly does not follow the best remedies, or that he may not implicitly follow the directions of his physician, is not siuli contribu- tory negligence which will, as matter of law. iireclude recovery f<>i an injury negligently inllicted, which produced, as its db-ect elb-ct. a disease from which death ensued. Tlu' law lays down no exact slandjird of duty here. It should be left to the jury as to tlie rea- sonalileness of the conduct, and wlietin r oi- not deatii was caused by the injury. Texas & St. L. Ky. v. Orr, 40 Ark. ISli. (401) §179 CARRIERS OF PASSENGERS. (Cll. 10 neolioeiit.^ So the use of a patent medicine by plain- tiff upon liis hnrts is no evidence of want of care in treating lii>s injnries, unless it is shown that such med- icine is injurious to health. A patent medicine may or raav not be a curative agent.* 8 Hope V. Railroarl Co.. 40 Hun, 438. 4 Gulf, C. & S. F. Ky. Co. v. Brown. 4 Tex. Civ. App. 435, 23 S. W. 61S. (462) L'll. 11) C0.>TRIBUT011V XEGLiGENCE. § liO CHAPTER XI. CUXTRIBT'TORY XE(iLl(iKX("E (Contiimed)— PERSONS UNDER DISABILITY. ? m\ The (Jenernl Rule. 181. rersons uuiler l*liy.sical Disability, 182. Sji me— Women. 183. Persons with Detective R( asoninir FaeuUies— Children. 184. Same— Intoxicated Persons. 185. Persons in Po-ition of IVril. 180. Same- Defendant must he (Juilty of Nej;li;ience. 187. Same — Aiiprehension of Danger must be Reasonable. ISS. Same— Avoiding Inconvenience. § 183. THE GENERAL RULE. While the standard of care does not vary with the ability of each individual, yet an individual need exercise only such care as can be reason- ably expected of persons of the recognized class to vT'hich he belongs. In addition to normal persons, the la^v recognizes t"wo excep- tional classes: (1) Persons laboring under some physical disability, such as the blind, deaf, or crippled. (2) Persons whose reasoning facul- ties are defective, such as children, lunatics, intoxicated persons, and persons in position of peril. So fill* MS tlic snbj(Ht of contribiitorv iK^iiiiuciiic is (•oii(('i-ii('(l, tlic courts have cleiirly rocojiiiizcd the doc- trine that responsibility is j;radujiteon of tliat fact steps into an unguarded and uulighted opening between the ferryboat and the dock, dues not show li(>r guilty of contributory negligence, though a person with good eye- siglit nnght liave discovered the danger. Drake v. Town of Dart- iuouth, 25 X. S. 177. Ch. 11) CONTRIBUTORY NEGLIGENCE. § 182 train, the noise of wliich could be lieard for a mile.' So a lame passenger is required to exen-ise more cautiou in oettiutr on a train than otherwise mijiht b,' dcmaiKlcil of liim/ But the fact that a passeu.uer is crippled, and uses a crutch and cane, does not render it con- tributory neiiliueuce for bim to ride on the footboard of a crowded street car, so as to preclude a recovery for injuries sustained in beino- squeezed by another car, near the intersection of a switch track with the main track. ^ § 182. SAME— WOMEN. In determiniu<; whether a woman has exercised rea- sonable care, the jury may take into consideration her age, sex, and physical condition.' Thus, where a wo- 3 Gonzale.s v. Railroad Co., li'd N. Y. Super. tU. r>7. But see same case on appeal, 38 N. Y. 440. 4 Snowden v. Railroad. 1;")! Mass. 220, 24 N. E. 40. It is iK'j;li.i;i'U(i> per se for a mau so crippled that lie cau scarcely get ou or off a train while at rest to attempt to bDjinl a moving train. Cincinnati. H. & D. Ry. Co. V. Nolan, 8 Ohio Cir. Ct. ;!4T. 3 Topeka City Ry. Co. v. IligitsT 38 Kan. 37."., IC Tac. G(57. A pas- senger who understands the EnfjUsh languairi' imperfectly is not chargeable with contributory negligence in not giving heed to warn- ings of an Impending collision with another train, and in resisting friendly efforts to drag him from the car. if he did not understand the words addressed to bim, or know the object and reason of the violent efforts made by the person who, attempted to remove liim from the danger. Walter v. Railroad Co., 30 Iowa, 3:;. § 182. 1 Hickman v. Railway Co., 01 Mo. 434. 4 S. W. 127. Thi-; was a case where a woman (',.-) years old. .iiid weighing 17o pounds was injured while alighting fn.ni a train. Tiie conrl said: •'Slie was required to use only sucli ordinary care ami diiueiMc as a pru lent per.son in her situation would use; and how (oukl the jury deiermine whether she had acted with the ordinary care and diligence with V. 1fet.c\u.i'as.— 30 (405) § ib2 CARRIERS OF PASSENGERS. (Ch. 11 mau jumps from a street car when the horses are run- uing away, the question Avhether she is s;uiltY of con- tributory negligence depends on the question whether a person of ordinary prudence, of the same class to Avhicli she belongs, would act in a similar manner.- But, on the other hand, a young, active man may pru- dently alight from a moving train, when the attempt would be reckless in an old or a lame man; and any man may do so prudently when it would be dangerous for a woman in female attire to attempt it.^ The fact of pregnancy is also to be taken into ac- count by the jury in determining whether or not a fe- male passenger exercised reasonable care. Thus, it has been held that the question whether a married woman in the early stages of prospective maternity is guilty of negligence in jumping from the car steps to the ground, with the conductor's assistance, and in aft- erwards riding in a buggy to her home, rather than re- main at the station, and take immediate precautions to obviate the threatened consequences, is for the jury. In this case, Chief Justice Bleckley said: "Such which a prudent person would have acted in hev situation, unless they cons^idered that situation, her environment. Ikhv a prudent mind would have guided the action of such a body as she po.ssessed? And how could they do this without consi^^enng that body, its sex, Its age, and its physical condition':"' 2 Dimmey v. Railroad Co., 27 W. Va. 'S2. 3 Little Rock & Ft. S. Ry. Co. v. Tankersley, 54 Ark. 25, 14 S. W. 1099. A female passenger in an enfeebled conditivin. who, not hav- ing time to leave the train during its slop at her place of destination, leaps therefrom after it gets in motion, without any Avarniug to the conductor or otlier employe, is guilty of negligence, as matter of law. Louisville & N. R. Co. v. Lee, 97 Ala. 325, 12 South. 48. (4G6) CIj. 11) CONTRIBUTORY NEGLIGENCE.' § 1S2 knowledge as we possess in respect to risks wliicli \)vn- dent women may or may not take in the early stages of prospective maternity does not enable us to «letect, in the light of the record before us, the mistake of the jury, if they committed any, in deciding the question of fact with which they had to deal. The conformity of their verdict to law and to the charge of the court depends on whether they had a correct standard of the prudent pregnant Avoman in their minds, and whether they correctly coni])ared therewith the conduct of plaintiff. We can only hope the jury went right in both these respects, for the plain truth is we do not know whether they did or not." * In the days before the advent of the new woman, with her bicycle costume, railroad companies attempt- ed to fasten a charge of contributors' negligence on fe- male passengers because their style of dress impeded their freedom of motion. Xo court, however, had the temerity to permit this attempt to succeed. In a case where a female passenger refrained from grasping a pendent strap in a street car because she could not con- veniently reach it, and because to do so would have * Georgia Railroad & Banking Co. v. Vary, 812 CJa. 'A, 8 S. E. 186. WhiMc a train does not stop at a station platform, but at a point :W0 feet beyon ^lo. App. 555. 6 Bay Shore K. Co. v. Harris. (>7 Ala. 6. 7 Connolly v. Ice Co., 114 N. Y. 104, 21 N. E. 101. A seven year old boy, who is a passenger on a steamer, cannot be said to be neg- ligent, as matter of law, in placing his foot on an exposed rudder chain. The jury is the judge as to whether or not the act was negli- gent in a child of that age. Garoni v. Compagnie Xationale De Navigation of Marseilles (Com. PI.) 14 N. Y. Supp. 797, affirmed 131 N. Y. G14, 30 N. E. SG5. A lad eight years of age is held to the exercise of that degree of care and discretion ordinarily to be expected of a child of that age. Sandford v. Railroad Co., 136 Pa. St. 84, 20 Atl. 790. 8 Ridenhour v. Railway Co.. 102 Mo. 270. 13 S. W. 889. and 14 S. W. 760. A nine year old boy, who has safely alighted from a moving (470) Ch. 11) CONTRIBUTORY NEGLIGENCE. § ISo mind of a bov 10 vcars of aiie is suttieieiitlv mature to make liim respousible for his OAvn contributory nejili- gence is a question for the jury. It shouhl not be de- cided by the court on demurrer to tlie petit ion.' So a bov 11 years old is not chariieable with contributory nejj^lii^ence, as matter of laAy, in riding on the steps of the front platform of a street car, but the question whether he could, by the exercise of that degree of care and diligence to be expected of a boy of his age, bare avoided an injury to himself occasioned bv the rapid driving of the car around a curve, is for the jury/" strtt-t car. is not guilty of negiigence, as matter of laAV, In runiiiiif: around the rear end of the car, and attempting to cro.s.s a parallt'l tratk, wliere lie is struck by a car going in tlie opposite direction: but the question is for the jury. Dunn v. Itailway Co.. 21 Mo. Ai)p. 188. AVhere an injured < hild nine and one-half years old is before the jury as a witness, they sliould be left free to determine for them- selves, from his appearance and his tesiimony, and the testimony of others on this subject, what liis capacity was for exercising care for his own safety at the time he was injureil. without l)eing liampered by presumptions of law eitlier for or against tlie competency of tlie child. Savaimah, F. & W. Ky. Co. v. Smitli, la Ga. 74-_>. 21 S. E. i:>T. 9 Avery v. Railway Co., 81 Tex. 24;j, IG S. W. 1015. A 10 year old boy. in getting off a street car, need use only as much care, caution, and prudence as can be expected from one of his age. Brennan v. Railroad Co., 4.1 Conn. 2S4: Malicr v. Railroad Co., G7 N. Y. 52. aftifming .^9 N. Y. Super. Ct. 155. A boy 1(» years old is not guilty of contril)Utory negligence, as matter of law. in arising from his seal, and following adult pa.ssengers to tlie platform, as tlu' train is enter- ing the station at his destination. Schreiner v. Railroad Co. (Sup.) 42 X. Y. Supp !(>'.. 1" Wynn v. Railway, 91 Ga. ^44. 17 S. E. (;41>. Wlielher or not a boy 11 years old is guilty of contril)Uf()iy negligence in jimipiiig from a moving train as it passes thf station platftirni, under tlie belief that he will be carried away if he does not do so, is a «nicstii)ii of fan tor die (471) § 1S3 CARRIERS OF PASSENGERS. (Ch. 11 But a 12 year old boy, of ordinary intelligence, liv- ing in the immediate vicinity of railroads, and accus- tomed to them, knows as well as an adult that the front of an engine, when reversed, between that and the cars, is not a safe place to ride when the train is moving. The fact that a boy of that age is more reck- less and not as cautious as a man in the face of sucli danger is not, of itself, enough to excuse him; and in an action for his death, caused by a collision with an- other train, it is proper for the trial court to refuse to subnut the question to the jury, and to rule on it as a question of law.^^ So, where, by law, a boy over 14 3'ears of age is presumptively capable of committing jury. Hemmingway v. Railway Co., 72 Wis. 42, 87 N. W. 804. So is the questiou wlietber a boy of that age is guilty of contributory negligence in ol)eying the conductor's order to get off the train -while in motion. Benton v. Railroad Co., 55 Iowa, 49'G, 8 N. W. 330; or in voluntarily jumping from the engine while in motion after the train hands have thrown cold Avater ou him, Brauham v. Railroad, 78 Ga. 35, 1 S. E. 274. 11 Ecliff V. Railway Co.. 04 Mich. ItKI, 31 N. W. ISO. But the court cannot say, as matter of law, that it is negligence for a 12 year old boy to walk along a station platform within a foot and a half of a train moving at the rate of two miles an hour. New York, C. & St. L. R. Co. V. Mushrush. 11 Ind. App. 102, 37 N. E. 954, and 38 X. E. 871. A 12 year old boy. who has jimiped on a projection in the rear of a street car, is not guilty of contributory negligence in jumping from the moving car. where the conductor came out and spit at Siim. and made a punch at his face. Hagerstrom v. Railroad Co., 07 UL App. 63. A 13 year old boy should be held to the exercise of that degree of care and diligence ordinarily to be expected of a child of hia age,— neither more nor less. Crissey v. Railway Co., 75 Pa. St. 83. But it is negligence, as matter of law, for a bright, active boy, 13 years old, a trespasser on a train, who knew the attendant danger, to voluntarily attempt to jump from a train which is running 20 miles- an hour. Howell v. Railroad Co. (Miss.) 21 South. 740. (472) Ch. 11) CONTRIBUTORY NEGLIGENCE. ^ 184 crime, he is presumptively chargeable with diligence for his own safety against palpable and manifest peril, snch as that of jumping from a railroad train in rapid motion. In the absence of any evidence of want of or- dinary capacity in the particular boy, he should not be treated as a child of tender years, but as a young per- son who has passed that period, and become charge- able with such diligence as might fairly be expected of the class and condition to which he belongs.'- So a 17 year old girl is not to be treated, with respect to the duty to take care of herself, as a child of tender years, but as a person who is presumptively charge- able with the exercise of ordinary discretion possessed by young persons of her class and condition.'^ § 184. SAME— INTOXICATED PERSONS. In testing the question of negligence, the law rec- ognizes no distinct class in favor of intoxicated per- sons. Drunk or sober, a man must exercise that de- gree of care which an ordinarily prudent and sober man would exercise. A man cannot voluntarily place him- self in a condition whereby he loses such control of his brain and muscles as a man of ordinary prudence and caution, in the full i)ossession of his faculties, would 12 Central liailioad & Banking Co. v. l'liillii;s. 91 (Ja. r.Jt;, 17 S. K. fi.-.2: ficorgia. C iV: ^. Ky. Co. v. Watkius. 1)7 Ca. ."Wl, 24 S. E. 'M. A 14 year oM lioy is not alrsolvt'd from the exercise (if «are in Imanl- ii;j: a niovinj; street car, but he must exercise that care and caution wliieli H iiiht be reasonably exju'Cted from one of his ajje. experience, and intelliyenee. Sly v. Kaihvay Co. (Mo. Svip.} 'M S. W. li.T.. 1 ! Kast Teuut>s>ee, V. &: CI. Ky. Co. v. lluj^hes. lili «;a. .iss. 17 S. i:. W.>. (47::) •§184 CARRIERS OF PASSENGERS. (Ch. 11 exercise, and thereby contribute to an injury to him- self, and then require of one ignorant of liis condition recompense therefor/ Thus, though a train is so h)ng that some of the cars stop on a bridge just beyond the station, the comj^any is not liable for the death of an in- toxicated passenger, who gets off on the bridge, and falls into a stream beneath, where the bi-idge is planked, and the distance from the track to the edge of the bridge is at least 14 feet.^ But an intoxicated man is not required to exercise a § 184. 1 Strand v. Railway Co., 67 Mich. 380, 34 N. W. 712. Hence, in an action for injuries to a pa.sseuser. caused by au alleged failure to give him a reasonable time to alight, where there is evi- dence that plaintiff had drunk more or less iutoxicating li(iuor before taking passage, he cannot recover if the liquor interfered at all with his diligence in starting to leave the train, or lessened his caution and prudence in getting off. Id. The self-intlicted disability of intoxi- cation will not excuse the passenger from the exercise of such care as is due from a sober man. Fisher v. Railroad Co. (W. Ya.) 24 S. ]{). .570. Mere drunkenness which does not take away consciousness and the power to consider the danger to which one is exposed, nor deprive him of physical capacity to take care of himself and avoid danger, does not relieve him from the responsibility of exercising due care to escape the danger; and, if killed in consequence of s,ueh neg- lect of duty on his part, there can be uo recovery on account of the injury. 'Louisville iVc N. R. Co. v. Johnson, 108 Ala. 02, 19 South. ."51. 2 Deselms v. Railroad Co., 149 Pa. St. 4.32, 24 Atl. 283. Where a drunken passenger steps from a ferryboat into the river, the fact of drunkenness is a defense. Davis v. Railroad Co., 8 Or. 172. In au action for injuries sustained by a passenger in being thrown from a street car, it appeared that plaintirf was drunk at the time of the accident: that, shortly before the accident, he was standing on the front platform, with his hands on the guard rails, and his body sway- ing back and forth. There was no evidence of any defect in the rails or roadbed. Held that, as matter of law, the intoxication contributed to the accident, and that plaintiff could not recover. Holland v. Rail- way Co.. 1.55 Mass. 387, 29 N. E. G22. (474) Ch. 11) CONTRIBUTORY NEGLIGENCE. § 184 greater degree of care than a sober man; and, if his conduct is characterized by a proper degree of care and prudence, his inebriety does not bar a recovery. ' So, if an occasion arises, bv reason of the carrier's ne^li- gence, when a prudent sober man could not, by the ex- ercise of all ordinary diligence, ju-otect himself, i( would be of no consequence that a passenger injured by such negligence had by voluntary intoxication in- capacitated himself for the exercise of ordinary yer V. Railroad, 40 Mo. 151. Tlic mere fact of intoxication is not suthcient to establish contributoi-y negligence, but it licars on ilic I)robability or improbability that plaintiff was guilty of negligem-c which contributed to tlie injury which he sustained. Milliman v. Railroad Co., GG N. Y. G42, altirnung 4 Hun, 400, Into.xication of an Injured person i.s not proof of negligence per .se. Ralliicore & (). K. Co. V. State, 81 Md. 371, 32 Atl. 201. If a passenger on a linrsc car is injured while into.xif at; d, tins far-t alone does not ijrevent his iii:iin .taiuing an action; but if liis inloxicilion conlributcd to the iiiiury in (47.->) § 185 CARRIERS OF PASSENGERS. (Ch. li ^ 185. PERSONS IN POSITION OF PERIL. "It is settled law that if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to es- cape therefrom, to nse the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, Avithout having time to deliberate, and acting upon the instinct of self-preser- vation, and as a prmlent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true, though no injury would have resulted had no attempt to escape been made." ^ The leading case any degree he cannot recover. Maguire v. Railroad Co., 115 Mass. 239; Holland v. Railway Co., 155 Mass. 387, 29 N. E. 622. The mere fact of intoxication will not defeat recovery for injuries sus- tained in being jerked, by a sudden motion of the train, from the car while alighting. Newton v. Railroad Co., oO Hun, 491, 30 N. Y. Supp. 488. The mere fact of the intoxication of a passenger, who was drowned by falling through an unguarded opening on the wharf- boat, where passengers were discharged from a steamer, does not, as matter of law, establish contributory negligence, but such intoxi- cation is a fact from which the jury may infer contributory negli- gence. Buddenberg v. Transportation Co., 108 INIo. 394. 18 S. W. 970. The fact that a passeuger standing on the running board of an open street car was intoxicated does not preclude recovery for injuries sustained in being negligently pushed off by the conductor, but it is a question for the juiy whether the passenger Avas in the exercise of due care in standing on the running board while in an intoxicated condition. Kingston v. Railway Co. (Mich.) 70 N. W. 315. § 185. 1 Bischoff v. Railway Co., ll'l Mo. 210, 25 S. W. 908; Klei- ber V. Railway Co., 107 Mo. 240, 17 S. W. 94G. See, also, Twomley V. Railroad Co., 09 N. Y. 158; Wil-on v. Railroad Co., 2(j Minn. 278, (47(1) (;h. 11) CONTRIBUTORY NEGLIGENCE. § 1S5 on this subject is Jones t. Boyce,' (UH-idcl in ISH;. The action was for injuries to a ]);isseni;er, who leapiMl from a stagecoach after the liorses had become nn o-overnable. Lord Ellenboroniih sai Or. ai4, '^'j Pae. 0130. (177) § 185 CARRIERS OF PASSENGERS. (Oh. li moving * or stationary,^ to escape an impending col- lision, is not chargeable with negligence. The same rule applies to passengers on street cars.'' So where a car has been derailed, and is bouncing along the ties at a rapid rate, a passenger is not chargeable with con- tributor^' negligence in jumping therefrom to escape the apparent danger." So a passenger standing on a 4 Buel V. Railroad Co., 31 N. Y. 314; South Western R. Co. v. Paulk, 24 Ga. 35G. 5 St. Louis, I. M. & S. liy. v. Maddry, 57 Ark. 300, 21 S. W. 472: Iron R. Co. v. Mowery, 30 Ohio St. 418. W'here a freight oar runs down grade on a side track towards the main track, on which a passenger train is standing, and a cry, ".luraiJ for your lives'." is raised by persons observing the runaway car, and the passenger train is suddenly started, a passenger is not chargeable with contributory negligence in l-'aping from the train to escape the apparently imminent collision; and the fact tliat the engineer succeeded in getting the passenger train out of the way of the freight car. and that the danger therefrom was not real, will not exonerate the carrier. St. Joseph & G. I. R. Co. V. Hedge, 44 Neb. 448, 02 N. W. 887. Where a pas- senger in the smoking compartment of a combination smoking and baggage car becomes apprehensive of a collision with a train which hfr knows is past due. and goes into the baggage car, with his hand on the knob of the door, prepared to jump, and does jump just before the trains collide, the fact of his being in the baggage car, in viola- tion of the company's rules, does not, as matter of law, preclude a recovery; but the question whether he conducted himself as a person of ordinary prudence in going into the baggage car is one of fact for the jury. Cody v. Railroad Co., 151 Mass. 402, 24 N. E. 402. <■■ Innninent collision between street cars. South Covington & C. St. Ry. Co. V. Ware, S4 Ky. 207, 1 S. W. 493; Heath v. Railroad Co., 90 Hun. 500, 30 X. Y. Supp. 22; Avith train at railway crossing. Bischoff V. Railway Co.. 121 Mo. 210, 25 S. W. 90«; Holzab v. Railroad Co., 38 La. Ann. 185; Twomley v. Railroad Co., 09 N. Y. 158. -' Dimmitt v. Railroad Co., 40 Mo. App. 3. § 187. 1 Woolery v. Kailway Co., 1(»7 Intl. 381, 8 N. E. 22(5. (4.s;{) it 187 CARRIERS OF PASSENGERS. (Ch. 11 escape, bj the circumstances as they at the instant appear to him, and not by the result. He acts upon the probabilities as they appear to him; and if he acts as a man of ordinary prudence, placed in the same circumstances, and under a like necessity of immediate action and decision, would have acted, and in so doing makes an effort to escape, and is injured, the railroad company is responsible to him for his damages." Thus where a collision between a street car and a locomo- tiA'e on an intersecting track is apparently imminent, and the car and horses are inclosed between the gates across the railroad track, and all is confusion, excite- ment, and terror, a passenger is not chargeable with negligence in jumping from the street car, though the locomotive is under the complete control of the en- gineer, is barely moving, and no actual danger of col- lision exists.^ So wdiere a brakeman in the lookout of a caboose, on a signal for brakes to stop the train, excitedly calls to passengers in the caboose, "Jump! jumjj for your lives!" a passenger who knows there is a train on the track ahead, and another behind his train, is not chargeable with contributory negligence in leaping from the moving train, without stopping to investigate, although there is no danger from any 2 St. Louis & S. F. Ry. Co. v. :MmTa.v. 55 Ark. J4S. 18 S. W. 50. In this ca.se it was held that where a train is periuilted to reiuaiu stall- ing on the track in the nighttime, a passenger in the rear coach, who sees another train approaching from the rear on the same track, is justified in acting on the appearance of danger, and in leaving the car, though the employes on tlie rear train were on the lookout for the passenger train, and were able to stop the rear train, and did stop it, Avitliout a collision. 3 Kleiber v. Railway Co., 107 Mo. 240. 17 S. W. 940. (484) C'h. 11) CONTRIBUTORY NEGLIGENCE. § 18S source.* Of course, the right to escape from au im- pending peril is not restricted to cases where on 'V life is in danger, but extends to cases of apparent peril of severe bodily injuries. ° § 188. SAME— AVOIDING INCONVENIENCE. As a general rule, a passenger is not justified in run- ning into danger of life or limb to avoid some incon- venience to which he has been subjected by the car- rier; but if the inconvenience is very great, iind the danger run in avoiding it very slight, it may not be un- reasonable to incur that danger.^ Thus, we have seen that the inconvenience in being carried beyond a pas- senger's station does not authorize him to put his life in peril by leaping from a rapidly moving train. ■ But a passenger who, on a dark niglit, starts to leave the train without delay, and finds it in motion when sl»e gets on the car steps, is in a position of sudiU'ii dan- ger, and cannot be held responsible for a mistake in * McPeak v. Railway Co., 128 Mo. CIT, 30 S. W. 17(1. Where a brakoman nofrligently gives a fals>e alarm of danger, and calls out in a loud voice, ".Jump for your livesl" the (luestiou whetlier a jjasseuger acted under a reasonable apprehension of danger must be determined by the circumstances as they appeared to him. And iit is error to sub- mit to the jury the additional fact that an alarm whistle was sonuded, which the passenger did not hear. Ephhmd v. Hail way Co.. 57 Mql App. 147. 5 La Prelle v. Fordyce. 4 Tex. Civ. Ajip. yui, 23 S. W. 453. § 188. 1 Adams v. Railway Co.. I>. R. 4 C. P.. 730. See. also. Siner V. Railway Co., L. R. 3 Exch. ITrC; (;(•<• v. Railway Co., L. It. S Q. B. 101. 2 Ante, § 1,">1. See, also, Railroad Co. v. A.-p<';]. L'."! i'a. St. 147; ]jike Shore «& M. S. Ry. Co. v. Bangs. 47 Mich. 47(i, 11 \. \V. Ii7t;. § 188 CARRIERS OF PASSENGERS. (Ch. J 1 judgment in stepping from the car without any con- scious effort on her part to do so.' So a passenger on a street car who is put in peril of falling off by the starting of the car w^hile attempting to alight, is not guilty of contributory negligence in jumping from the car, if a person of ordinary prudence might have done the same thing.* In an English case it was held that, though a door to a railway carriage flies open as the result of the company's negligence, yet, where the inconvenience suffered by the passenger from the open door would be slight, and the peril incurred in an attempt to shut it considerable, an injury sustained in falling from the carriage while making the attempt cannot be consid- 8 Legsett V. Railroad Co., 143 Pa. St. 39, 21 Atl. 996. A female passenger who is on the steps of a car. with an infant in her arms, about to alight, when the car starts, and who thus has the perilous alternative presented to her either to remain there, and run the risk of being thrown from the train as it accelerates its motion, or to step from the train before it increases its motion, is, not chargeable with contributory negligence in stepping from the car. Odom v. Railroad Co., 45 La. Ann. 1201, 14 South. 734. Where a train starts while a passenger, with his wife and children, is in the act of alighting, and the wife, with an infant in her arms, is thrown to the ground, the husband's act in jum])ing off to her assistance, and leaving his other children of tender years on the car platform, and the act of one of surh children in attempting to jump off after her parents, do not bar recov- ery for injuries to the child. The acts of both the father and the child were the direct consequences of defendant's own misconduct, and fall within the well-settled rule that contributory negligence can- not be set up as a defense when such negligence is the result of tremor and excitement produced by defendant's misconduct, or when the latter puts the plaintiff to a sudden election between the course which he took, or submitting to a grave inconvenience. Lehman v. Railroad Co.. 37 La. Ann. 70.j. 4 Piper V. Railway Co., .52 :^Iiun. 2(39. 53 N. W. 1060. (486) Ch. 11) CONTRIBUTORY NEGLIGENCE. § ISS ered as the immediate consequence of defendant's ne^- licence.^ In an American case, however, it was held that where a railroad com]>:in.v fails to furnish any liiihts while a train is passini;- thron.uli a tunnel, re- quiring six or seven minutes' time, and leaves the car door open, so that smoke and cinders enter in great quantities, to the inconvenience of passengers, one who sits near the door is not guilty of negligence, as mat- ter of law, in making a careful attem])t to shut the door.'' So where a passenger car overshoots the sta- tion platform, and the alternative is presented to a female passenger either of jumping to the ground, — a distance of three or four feet, — or to descend by step- ping on the bumper or connecting link at the rear of the car, the question whether she was guilty of con- tributor^^ negligence in choosing the latter alternative, during which her foot was crushed by a movement of the train, is for the jury/ B Adams v. Railway Co., L. R. 4 C. P. 7:J!). 6 Western Maryland R. Co. v. Stanley. (Jl Md. 200. 7 Johnson v. Railroad Co.. 11 Minn. 2!)(; (Uil. 204). Whore the train overshoots the station platform, and no intention is manifested by the train hands to back the train, and the alternative is presented to a female passenger of getting out where the carriage is, or of being car- ried on to the next station, her action in getting out is not such an assumption of the risk as will prevent recovery for injuries sustained in so doing, where tlw^ danger is not actual or obvious, and the de- scent is only awkward and ditticult, and she uses due care. Nicholls V. Railway Co., Ir. R. 7 C. L. 40. (487) §189 CARRIERS OF PASSENGERS. (Cll. 12 CHAPTER XII. CONTRIBUTORY XEX^LKJENCE (Couuinied)— PROXIMATE CAUSE. § ISO. Plaintiff'.^ Neijligence must be a Proximate Caiise of Injury. 190. Defendant's Negligence after Discovery of Plaintiff's Peril. § 189. PLAINTIFF'S NEGLIGENCE MUST BE A PROXIMATE CAUSE OF INJURY. Contributory negligence does not defeat a recovery^ unless it is a proximate cause of .the injury. It is a well-settled principle of law that where a man negligently, and without excuse, places himself in a position of known danger, and thereby suffers an in- jury at the hands of another, either wholly or partially by means of his own act, he cannot recover damages, for the injury sustained. The contributory negligence which prevents recovery for an injury, however, must be such as co-operates in causing the injury, and with- out which the injury would not have happened. The true test is found in the affirmative of the question, did the plaintiff's negligence directly contribute in any degree to the production of the injury complained of? If it did, then there can be no recovery; if it did not, it is not to be considered.^ Thus a passenger's negli- § ISO. 1 Lehigh Val. R. Co. v. Greiner, 113 Pa. St. 600. 604, 6 Atl. 246. In Thoiiipson v. Duncan. 76 Ala. 334. it was held that negli- gence of plaintiff Avhich contributes '"in any way" to the injury does not in all cases bar a recovery. It must conti'ihute proximately to the injury. In Dougherty v. Railroad Co.. !»7 Mo. 647, 11 S. W. 2.">1„ (488) Cb. 12) CONTRIBUTORY NEGLIGENCE. § J 8i> gence in riding on the platform of a moving train - or of a street car "' does not affect his right to recover for an injury suffered in properly alighting after the car has stopped, or in being struck by the train after he has gotten off.* So, where a passenger has establish- the followinjr iustruction was condemued as inconsistent with itsolf. and as aliolishinfj the doctrine of contributory nejrlifience: Negli- gence on the part of the plaintiff Avill not defeat a recovery if it did not conirilmte or cause the injury, or if the in.lury wouhl not have happened but for d?fpndaut's negligence, notwithstanding p'ain- tiffs negligence. In some of the cases it is intimated iliat plaintiffs negligence will not bar a recovery if it did not contribute to the acci- dent, as distinguished from the injury. Thirteenth A: F. St. P. Ky. Co. v. Boudrou. 1)2 Ta. St. 47.:.. It is hardly necessary to say that this view is entirely untenal)le. IMaintiff s negligence which pr.ixi- mately contributes to the injury bars recovery. Otherwise, a man riding on the cowcatcher of a locomotive might recover for injuries sustained 'in a collision with another train, du the ground that his presence on the cowcatcher did not contribute to the colli-ion. 2 Wood V. Railway Co.. 4!) Mich. :!70, l.'i X. W. 77i»: Van Horn v. Railroad Co.. 38 N. J. I.aw. V.V.\. ■■■ Omaha H. Ry. Co. v. Doolittle, 7 Neb. 4S1; Lax v. Railroad Co.. 4G N. Y. Super. Ct. 44S. 4 Gadsden & A. U. Ry. Co. v. Causlcr. !t7 .Ma. 2:!."). t2 South. 4:i0. Even if it be negligence for a passenger to ride on ilu- rear platform of a street car. such negligence cannot be considered as the ])roximate cause of an injury resu.wiig from being struck by a ]iole of a folloAv- ing car. Thirteenth iK: F. St. P. Ry. Co. v. Boudrou, 1)2 Pa. St. 475. Riding on the platform of a street car is no't the proximate cause of a passenger's death, who was struck by a derrick, .-igainst the guy rope of which the car was negligently driven. Hunt v. Railroad Co.. 14 :Mo. App. ](jf). In this case the court said: "It is claimed that if the passenger had been seated within the car. instead of standing on the rear plnirnrni. he would not have been slrmk by llic latal der- rick. If this l)e good reasoning, then every uunirtnnate who was ever blown up in a steamboat cxi)losion was guiliy of contributory negligence in going on the boat, or in being within reach of the boiler. Had he stayed on .shore, or had he occupied some nihcr pari (it ihr (4JSiJ) § 189 CARRIERS OF PASSENGERS. (Ch. 12 ed himself safely on the car steps, his negligence in boarding the train while in motion is not the proximate cause of injuries sustained in being pushed or pulled therefrom bj' one of the company's employes.^ So the act of a passenger in boarding a moving train is not, as matter of law, the proximate cause of an injury, Tviiere the train gave a sudden jerk after he had got- ten on the car platform, and he was throw^n off.*^ The act of a passenger in leaving an elevated train before it reaches the station, on the invitation of the conduct- or, even if it is negligent, is not the proximate cause of an injury resulting from the train's starting up while there are 50 such passengers on the track, who became panic stricken, and, in their fright, crow^ded each other off the track, causing some to fall to the boat, he might have been safe." AVhere a passenger is injured in an attempt to escape from a street car, the horses on which have be- come frightened or ungovernable, and pulled the car off the track, the fact that she was riding on the front platform cannot be said to be the proximate cause of the accident, so as to bar a recovery on thc^ ground of contributory negligence. Noble v. Railroad Co., 98 Mich. 249, 57 N. W. 120. 5 Sharrer v. Paxson, 171 Pa. St. 26, 33 Atl. 120; Harrold v. Railway Co., 47 Minn. 17, 49 N. W. 389; Pennsylvania R. Co. v. Reed, 9 C. C. A. 216, 60 Fed. 694, attirming oQ Fed. 184. The getting on board of a moving train is not the proximate cause of an injury sustained in being forced from the train by water thrown in such person's face by one of tlie train hands. Clark v. Railroad Co., 40 Hun, 605. The wrongful act of a boy in boarding a moving train, with the intention of stealing a ride, is not the proximate cau.se of an injury sustained in being ejected from the moving train after his entry had become an .accomplis,hed fact. Kline v. Railroad Co., 37 Cal. 400. 6 Distler v. Railroad Co.. 151 N. Y. 424, 45 N. E. 937, reversing 78 Hun, 252, 28 N. Y. Supp. 805. (490) * Ch. 12) CONTRIBUTORY NEGLIGENCE. § 189 pavement beneath.'' So tlie mere fact tliai a passen- oer on a street car alights when the car stops before making- a street crossing, instead of waiting nntil it has reached the phice at which passengers nsnally alight, is not the proximate canse of an injnry sus- tained by her dress catching in a projecting bolt of the car.* So the unlawful act of the owner of a freight car in persuading the companj-'s employes to attach it to a passenger train, in violation of the company's rules, is not the proximate cause of an injury to the owner resulting from a collision of the train with an animal on the track." So the fact that a train was delayed 25 minutes at its starting point, to enable a drover to load his cattle, is not such contributory neg- ligence on the part of the drover as will prevent his T W^eiler v. Railway Co., 53 Hun, .372, 6 N. Y. Supi). 320. affirmed in 127 X. Y. 669, 28 X. E. 255. Leaviug a moviujr train is not the proxi- mate cause of an injury sustained in beinj? struck by another train while crossing a parallel track. Van Ostrau v. Railroad Co., 35 llun. 590. 8 Xorth Chicago St. R. Co. v. Eldridge. 1.31 111. .-542, 38 N. E. 240. 9 Lackawanna & B. R. Co. v. Cheuewith, 52 Pa. St. 382. The lourt said: -it has Ixen sugg(>s,tc(l that, if the car had not been attached, the plaintifE would not have been injurel. Doubtless this is true, and it is true of every injury. In all cases, if the party injured liad been absent, it is presumable he would not have l)een injured by tlic agency operating. The voluntary presence of tlie traveler, if not wrongful, is so much a matter of individual clioice that its propriety is never an element to be inquired into in claiming or resisting dam- ages for injury. I'eople have a right to travel -when they please, and will be compensated for injuries if occasioned by (lie negligence of those engaged in transporting them, if they have not contributed to the immediate disaster l)y their own negligence, whah'vcr ndghi be said against the pm; riety of tlieir journeying." (4'Jl) § 189 CARRIERS OF PASSENGERS. (Ch, 12 recovering for injuries snstained in a collision, while on the journey, with another freight train, which over- took the one on which he was riding/" One of the tests by which to determine whether plaintiff's negligence is a proximate cause of his injnry is this: If defendant's negligence would have caused the injury if plaintiff had been in no wise negligent, then the fact that he was negligent Avill not defeat a recovery. "It is now well settled that a passenger on a railroad train, who is injured by the negligence of the railroad company, is not debarred from a right to a recovery because he was, at the time of receiving the injury, negligently riding on the platform of a car, or in some other exposed or dangerous position, if such action on his part did not contribute in any degree to the accident or his injury. If the accident which occasioned the injury would have happened, and would have been attended with the same results to the pas- senger, if he had been in his proper place on the train, then his negligence is not contributory negligence, in a sense that would preclude recovery, because it in no 10 Fliun V. Railroad Co., 1 Honat. (Del.) 4(JJJ. 503. "It wa.s entirely optional with the company's .>ers, a ])assenger, unable to obtain a seat, who goes into the baggage com])art- meut, with permission of defendant's em])loyes, is not guilt}' of contributory negligence whirh defeats a re- covery for injuries sustained in a rear-end collision, though a rule of the company, of which he is ig- norant, prohibits passengers from riding in the bag- gage compartment/" So the negligence of a passeu- ger in permitting his arm to slightly protrude out of the window is not the proximate cause of an injury which would have happened had his arm been entirely inside.^^ 11 Kansas & A. V. Ry. Co. v. White. 14 C. C. A. 483, G7 Fed. 4Sl. 12 New York. L. E. & W. R. Co. v. Ball. ^,:^ N. J. 'Law, 283, 21 Atl. 1052. See, also, ante, § 171. i> Carrico v. Railway Co., 3t) W. Va. 8G, 1!) S. K. .ITl. In the lol- lowing oases plaintiff's nesligenee was lielil the proximate cause of his injuries: A railroad company carried a passenger beyond his desti- nation, and put him off at one end of a trestle, and his gun at the other end. He crossed to get the gun. and gnt his fi-et mmldy w lieu he stepped from the trestle to the embankment. In recrossiiig the trestle, his foot slipped by reason of this mud, and he was injured. Il'dd.that the prf)ximate cause of his injury was his own neg i;,'eni e in attempting to cross the bridge with his muddy boots, and the cnm- pany was not liable. International iV: G. N. R. Co. v. Folliard. 0'> Tex. (H)3, 1 S. W. G24. A lire I)roke out in a passenger car ihiDUiiii the negligence of the company's servants, riaintiff, a passenger, .after having tried from that car to signal the engineer to stop, and having failed 1)C( ause the bell rope did not work, went into the smok- ing car for tliat purpose. There he nirlilicd the conductor of (lie uc- § 190 ' CARRIERS OP PASSENGERS. (Ch. 12 § 190. DEFENDANT'S NEGLIGENCE AFTER DISCOV- ERY OF PLAINTIFF'S PERIL. Contributory negligence does not bar a recovery, if defendant, after becoming a-ware of plaintiflTs danger, fails to exercise due care, in the cir- cumstances, to avoid harm. In the circumstances above stated, the contributory negligence of the injured person is not the proximate cause of the injury, but the negligence of defendant, being the later negligence, is the sole proximate cause. As has been said by one of the text writers on this sub- ject: "The party who has a last clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible." ^ The rule may also be upheld on another ground: A failure to exercise ordinary care by a defendant in such circumstances amounts to a degree of reckless con- duct that may well be termed willful and wanton; and when an act is done willfully and wantonly, con- ciilent, and then went back to the burning car to get his valise. He was prevented from setting ont of that car by the fire, and was se- verely burned. Held, that his voluntary act of returning to the burning car was tlie proximate cause of his injuries, and prevented recovery, as matter of laAv. Hay v. Railway Co., 37 U. C. Q. B. 450. Where the defense is, that plaintiff .iumped from a moving train, it is error to instruct that, if his negligence was not the proximate cause of his injuries, he could recover, since, if he was injured by jiimplng from the moving train, his act was the immediate cause of his injury, and hence there was no question of proximate cause in the case. Gulf, C. & S. F. Ry. Co. v. Rowland (Tex. Sup.) 38 S. W. 75(j. § 1J10. 1 Shear. & R. Neg. § 90. (494) Ch. 12) CONTRIBUTORY NEGLIGENCE. § 190 tribiitory nej;ligence on the part of the person injured is not an element which will defeat a recovery. - The pioneer case on this subject is the famous "don- key case" of Davies v. Mann.^ There plaintitT had neiiliiientlv turned his donkey loose on a hiuhwav, with his forefeet fettered, and it was run over in broad day- lij>ht by defendant's wagon, driven at an imprctper rate of speed. Plaintiff recovered, notwithstanding his an- tecedent negligence, since defendant's driver, by prop- er care, could have avoided the accident. Tliis case has been uniformlv followed in the Enulish courts,* though it has been the subject of considerable, if not alwavs wise, criticism bv American text writers. The principle is, however, fully recognized by the American courts, and has often been applied in the decision of passenger cases.^ Thus, though a person may be 2 p:srey v. Pacific Co., 103 Cal. 541, 37 Tac. 500; Id., SS (.'al. 399. 2G rac. 211. 3 (1SJ2) 10 Mees. & W. 540. 4 In Tuff V. Warman (1858) 5 C. H. (X. S.) 573, 585. it was said: "Mere negligence or want of onlinary cari' and cauiion w.mld nut. however, disentitle plaintiff to recover, unless it were such that, but for that negligenc-e or want of ordinary care and caution, the mis- fortune could not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the conse(iuence of the neglect or carelessness of the plaintiff." In KadU-y v. Railway Co., 1 App. Cas,. 754. it is said: "Though plaintiff may have been guilty of negligence, and although that negligence may in fact have contrib- uted to the accident which is the subject of the action, yet. if the defendant could, in the result, by the exercise of ordiiiaiy can' and diligence, have avoided the mischief which happened, the iilaiiiiilTs negligence will M(jt excuse liim." & "The rule is that contributory negligence on the part of plaintiff will not disentitle plaintiff to r< cover, if it appears that defendant might, by the exercise of reasohalile care and prudence, have av feel away when he started to cross the track. Hell, iliai the failure ..f the driver to stop the car, after becoming aware of i)laiut ill's |.erilous position, was the proximate cau.se of the accident, and that there- fore plaintiff's contrilmtory negligence did not bar a recovery. Fcr- wood V. City of Toronto, 22 Onl. :!.'.!. 8 South Covington & C. St. Ky. Co. v. McCleave (Ky.) :!S S. W. Wruy. V. 1 l-KT.C.Mt.PAS.— 32 C'l'J^) §190 CARRIERS OF PASSENGERS. (Ch. 12 But the rule is properly applied ouly in those cases where plaintiff's negligence was the remote, and not the proximate, cause of the injury; that is, where the negligent acts of the parties were independent of each other, the act of the person injured preceding that of defendant. This principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury comes to one or both of them.° Hence the failure of a railroad engineer to sound the alarm whistle on seeing a person near the track does not render the company liable for his death, where he ste})ped on the track a few feet in front of the engine, Avithout looking or listening for the api)roach of the train, since the deceased himself could have prevented the accident by the exercise of ordinary care.^° So the rule does not apply to the case of a passenger riding on the locomotive against the rules of the company, who was injured in a colli- sion with another train, though the employes of the train on which he was riding knew of his position/^ Of course, no liability attaches to defendant if, after discovering plaintiff's peril, he exercises due care to avoid the injury. Thus, where a person negligently steps backward on a street-car track, 10 or 15 feet in front of an approaching cable car, the employes of the cable company are not guilty of negligence after dis- covering plaintiff's i)eril, if they make an effort in good « Holmes v. Railway Co., 97 Cal. 161, 31 Pac. 384. 10 Id. 11 Downey v. Railway Co., 28 W. Va. 732. (498) Cll 12) CONTRIBUTORY NEGLIGENCE. § 1^0 faith to stop the car, and actually stop it within one foot of the point of collision with plaintiff.'- Another question that arises in this connectic^i is this: Must defendant actually have discovered the peril to which plaintiff has exposed himself by his own neiilioence, or is it sufficient that defendant ought to have discovered it by the exercise of reasonable care? As a general proposition, it would seem that defendant ought to have actual knowledge of plaintiff's danger, since no one is bound to anticipate another's negli- gence/^ Thus, where a passenger negligently places his finger in the jamb of an open door, a brakeman is not chargeable with negligence in closing the door without ascertaining the dangerous position of plain- tiff's finger, though it would be otherwise if he had known this fact. "If it had been the duty of the brake- man to see that the plaintiff was taking proper care of himself, the fact that he should have discovered the danger would have been material. But such was not 12 Bailey v. Railway Co., 110 Cal. :'.20. 42 Pac. 914. Where a pas- senger riding on the driving bar of a street car falls off backward, and the driver makes every effort to rescue the falling man. and stops his car as soon as he can. the rule that a defendant, after discovering plaintiff's peril, caused by his own negligence, is bound to exercise due care to avoid injuring him, is fully satisfied. Downey v. Hendrie, 4G Mich. 408. N. W. S2S. 13 I'laiutift' in an action for personal injuries, who seeks to escape the consequences of his own negligence upon the ground tliat tlie in- jury complained of was caused 1)y the recklessness and willful neg- ligence of defendant, must show that defendant had actual kin)wl- edge of plaintiff's danger, and could, by tlie exercise of ordinary »-are and prudence, have avoided the resulting injury- Ki, It was said that defendant would be liable if he was guilty of negligence after he might have discovered plaintiff's peril by the exercise of rea- sonable care; but it was held that where a passenger, on leaving a train in the night, crosses a railroad track, and is struck by a moving car. the brakeman on which was unable to see him, it Is error to charge the rule as to defendant's negligence after discovering plain- tiff's peril. (501) 191 CARRIERS OF PASSENGERS. (Ch. 13 CHAPTER XIII. CONTRIBUTORY NEGLIGENCE (Cont'nuprl)— VARIATIONS FROM COMMON-LAW RULE. 191. Admiralty Rule. 192. Comparative Negligence. 193. Rule in Tennessee. 194. Rule in Georgia and Florida, 195. Rule in Nebraska. § 191. ADMIRALTY RULE. Courts of admiralty are not bound by the common- law rule governing contributory negligence, but, in cases of mutual fault, they may appor- tion damages bet-w^een the parties according to the principles of equity and justice. This rule applies to marine torts resulting in personal injuries, as well as to cases of prize and col- lision. The doctrine of an equal division of damages in the case of collision between vessels, where both are guilty of fault, has long prevailed in England. It was said by Sir William Scott in The Woodrop-Sims,^ decided in 1815, that, if a loss occurs through a collision between two vessels, where both parties are to blame, the rule of law is "that the loss must be apportioned between them, as having been occasioned by the fault of both of them." This rule was approved by the house of § 191. 1 2 Dod. 83, 85. (502) Ch. 13) CONTRIBUTORY NEGLIGENCE. § 191 lords in 1S24." With lis the riilc was first established by tlie siii)reme court of tlie United States in tlic case of The Catharine v. Dickinson,"' and has been followed in nnmerons cases since. The rule is apparently derived from early medieval codes or customs, and seems to have been founded upon the difficulty of determinin Truro, 31 Fed. l.jS; Tlie Kddystone. .•i3 Fed. •.»_•.-.; Olson v. i'lavei. M Fed. 477; MeCord v. The Tiber. (> Kiss. 401). Feil. Cas. NO. S.71.".. 6 137 U. S. 1, 11 Sup. Ct. 21), uHirnung 24 Fed. 8W), aud 2S i',.,!. ssi. § 102 CARRIERS OF PASSENGERS. (Cll. 13 jury to the libelant but for the fault of the vessel; and while, on the one hand, the court ought not to give him full compensation for his injury, where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence sliould not deprive him of all recovery of damages. As stated by the district judge in the present case, the more equal distribution of justice, the dictates of hu- manity, the safety of life and limb, and the public good will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libelant in a case like the present, where their fault is clear, provided the libelant's fault, though evident, is neither willful nor gross nor inexcusable, and where the other circumstances present a strong case for re- lief. We think this rule is applicable to all like cases of marine tort founded upon negligence and prosecuted in admiralty, as in harmony with the rule for the divi- sion of damages in cases of collision. The mere fact of the negligence of the libelant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the vessel, does not debar him entirely from recovery." § 192. COMPARATIVE NEGLIGENCE. Negligence of an injured person does not defeat recovery, if he was only slightly negligent, and the other party was grossly negligent, as compared with each other. This doctrine, though generally repudiated elsewhere, pre- (504) Ch. 13) CONTRIBUTORY NEGLIGENCE. § 1\V2 vailed for many years in Illinois, but no-w. by force of recent decisions, it is obsolete even in that state. The history of the rise and fall of the (lottriue of comparative negligenee shows most strikinjilv that nii- soiiml leiial principles cannot stand the test of every- day use dnring a lono- period of time. At an early day, the courts of Illinois adopted the common-hiw principle that want of ordinary care by plaintiff, which I)roximately contributes to his injury, bars recovery. The doctrine of comparative nejiliiience oriiiinated with Justice Breese in the case of (xaleiia «S: (\ V. T\. Co. V. Jacobs,^ decided in 1858, and was stated by hi in as follows: "The degrees of negligence must be meas- ured and considered; and, wherever it shall a])]>(nir that plaintiff's negligence is comparatively slight, and that of defendant gross, he shall not be deprived of his action." He did not profess to find ex])ress au- thority for this rule in prior adjudications, but he thought he discovered a "vein of it very perceptible, running through very many" of what he considereil the leading cases, English and American, on the sub- ject of contributory negligence. The doctriiu- was an- nounced in numerous other cases, and finally it became the established law in Illinois.- § 192. 1 20 111. 478. a Chicago & A. R. Co. v. Grotzncr. 4r, 111. 7.".: ('lni;ii:o v^- N. N\'. K.v. Co. V. Swoenoy. .j2 111. ^23. In Toledo W. .V W. K.v. Co. v. .\I<-(;iiniis, 71 III. .■;4r,, Juilgc Wiilkcr said: "Tlif s^'ttlcd iiilc of Imw ii; iliis court on the (iiustion of Ufgligeiico is that, tliou^'li a iilaiiitilT may lie- guilty of negligence which may have conliiliuted to liic in.lmy. lie may still recover if his negligence is slight, and that of delendant (505) § 192 CARRIERS OF PASSENGERS. (Ch. 13 Exactly what the supreme court meant by the term ^'slij>htly negligent'' was one of the puzzles for the legal profession in Illinois while the doctrine prevail- ed. Probably the court at an early day intended to establish a rule that Avould aid an injured party to recover, in case he had not come (juite u}) to the stand- ard of ordinarv care, but nearlv so, where he could prove the other party was grossly negligent, in com- parison with his slight failure.^ But one of the re- markable things about the doctrine of comparative negligence was that the court was never recpiired to ascertain the exact relation between the doctrine of comparative negligence and the common-law doctrine of contributory negligence until the case of Stratton v. Railwav Co.* arose in 1880. In that case the trial court charged tJiat "it was an essential element to the right of action that plaintiff showed he was in the exer- cise of ordinarv care." This instruction was held er roneous, as ignoring the rule of comparative negli- gence. The question came again before the supreme jKioss, as compared with that of plaintiff. The rule is, uo doubt. a moditication of the languajje of the earlier decisions of this court, although not a material moditication of the common-law principle. V^'here courts state the rule differently, they hold that, wliere the neji- ligence of the plaintiff is slij^ht, and that of the defendant gross, the plaintiff's negligence did not contribute materially to the Injury." The rule is also asserted in the following, among other, cases: Chi- cago & A. R. Co. V. Mock. 72 111. 141; Illinois Cent. R. Co. v. Hammer, Id. 347; Chicago & N. W. Ry. Co. v. Co.ss, 73 111. 394; Indianapolis & St. L. R. Co. V. Evans, 88 111. 63; Chicago & A. R. Co. v. Bonitield, 104 111. 223; City of Mt. Carmel v. Guthridge, 52 111. App. 032. 3 City of (ialesburg v. Benedict, 22 111. App. 111. * 95 111. 25. (506) Q-l 13) CONTRIBUTORY NEGLIGENCE. § 1^2 court in Cliicaj?o, B. & Q. "R. Co. v. Johnson,' w'.umi it reversed itself. In tliat case the trial court uavc the following iustruotion: "If the jury believe from the evidence that plaintiff did not exercise ordinary care, yet that his negligence was slight, and that the negli- gence of defendant was gross, in comparison with each other, then the plaintiff nuist recover." This was em- phatically held to be erroneous, because a person guilty of want of ordinary care could not be guilty of merely ^'slioht negligence." This princi])le was reaffirmeil in Calumet Iron & Steel Co. v. Martin." In that case defendant's counsel contended that whenever plaintifl was guilty of slight negligence, he must show that de- fendant was guilty of gross negligence before he could recover. But the supreme court laid down this prin- ciple: "If plaintiff is in the use of ordinary care, and defendant not in the Use of ordinary care, and injury happens in consequence, plaintiff can recover without proof that defendant's negligence was gross in com- parison to the plaintiff's negligence, which was slight, even if plaintiff was guilty of slight negligence." These two decisions completely stripped the principle of comparative negligence of its vitality, though the force and effect of the decisions were not at once appre- hended by the supreme court itself." At length, m the case of City of Galesburg v. Benedict,^ dechled in 1880 by one of the appellate courts of Illinois, Mr. 5 KCJ HI. .j12 (1S.S2). 6 lin 111. 358, 3 N. K. 456 (18S5). 7 ,n Willnnl v. Sw.-.ns.-u. V2V. 111. ::S1. IS N. 10. .548. th.. -l.-trino of 0<;n>i:nativ urj;lii;cuce wa.s ivitcrutcHl in a in^.dili.Ml f.-nn. « 22 111. App. 111. (307) § 192 CARRIERS OF PASSENGERS. (Cll. IS Justice Lacey, in a remarkably clear and hicid opinion, reviewing the entire history of the law of comparative negligence, as expounded in that state, pointed ont the fact that it was virtually abolished by these two deci- sions. "In all cases plaintiff is bound to show ordinary care on his part, and lack of ordinary care on defend- ant's part. This entitles him to recover if the injurj^ was caused by such negligence of the defendant. Now, admitting that plaintiff, while in the exercise of ordinary care, was slightly negligent, which he may be under the rule in the Johnson Case, supra, what benefit would this comparative negligence doctrine be to him, he having a complete right to recover without it? Why should he desire to prove, in excuse of his slight negligence, that defendant was grossly negligent in comparison, especially as the defendant cannot take advantage of the fact that he does not prove it?" Fi- nally, the supreme court itself announced the abolition of the doctrine in unmistakable terms. In Lake Shore & M. S. Ey. Co. V. Hessions,** it said: "We have repeat- edly held, in effect, in the later decisions, beginning with (^alumet Iron & Steel Co. v. Martin,'^ that the doctrine of comparative negligence, as announced in the earlier cases, was no longer the law of this state, and it is no longer to be considered as a correct rule of law applicable to cases of this character. The doctrine as announced in the later decisions, as applied to this class of cases, requires, as a condition to recov- 9 150 111. 54G. 550. 37 N. E. 005. citing I'ullinan Palace-Car Co. v. Laack, 143 111. 242, 32 N. E. 2S5; Village of :\laustield v. iloore, 121 111. 133, 16 X. E. 246. 10 115 111. 358, 3 N. E. 450. Ch. 13) CONTRIBUTORY NEGLIGENCE. § 193 ery bv the plaiutiti', that the person injured be fouuil to be iu the exercise of ordinary eare for his own safety, and that the injnry resnlted from the negligence of the defendant." In numerous other cases, the doctrine of comparative negligence is declared to be obsolete in Illinois.'' The doctrine never obtained much of a foot- hold elsewhere, though traces of it are to be found in some decisions.'^ S 193. RULE IN TENNESSEE. The doctrine of comparative negligence has been emphatically repudiated in Tennessee.' Nevertheless, a modification of the common-law rule as to contribu- 11 City of Lanark v. Dougherty, 158 111. 163. 38 N. E. 892: Wenoiia Coal Co. V. Holmqnist. 152 111. .".Sl. :^S X. E. 946; North Chicago St. R. Co. V. Eldridge. 151 111. 542. 548. ...^ X. E. 24f.; Cli'Vi'lniul, C, C. & St. L. K. Co. V. -Maxwe.., .59 111. Apj). f.T:!; Illinois Cent. K. Co. v. Ashliue, 56 111. App. 475; Chicago c^: E. I. U. Co. v. .Johu.son. 01 111. App. 465. 12 The doctrine of comparative negligence, recognized iu the coiu'ts of Illinois, and. in a modified form, of Georgia and Tennessee, is nut the law of this state. McDonald v. International iV: C. X. Ry. Co., 86 Tex. 1, 22 S. W. li.sn; (iulf. C. & S. F. Ky. Co. v. Ruford. 2 Tex. ,Civ. App. 115, 21 S. W. 272; Missouri. K. v*c T. Ky. Co. v. Rodgers (Tex. Sup.) 36 S. W. 243, reversing 35 S. W. 412; Atchi.son. T. A: S. F. R. Co. V. O'Melia. 1 Kan. App. bi4, 41 Pac. 4;{7: Atchison. T. iV S. F. R. Co. V. Henry (Kan. Sup.) 45 Pac. 576. But in Kentucky Cent. Ry. Co. V. Smith. 9;{ Ky. 449, 20 S. W. ;!92. it was held that where a railroad company is gi'ilty of the highest degree of neglect, resulting in Ihc injury of a person crossing its tracks at a puhlic crossing in a city, the fact that the person injired was guilty of ordinary uegligtMice c n-titutes no defense to the c.,mpany. S 193. 1 Railway Co. v. Hull, ss Tenn. .•'.:•., 12 S. W. 119; E.ist Tennes.si-f. \'. & (}. R. Co. v. (JurU^y. 12 Lea (Teuu.) 55; East Teu- "oessee, V. iV- C. R. Co. v. Fain, Id. 35. {50U) § 193 CARRIERS OF PASSENGERS. (Ch. 13 torv nealiiicnce obtains. The Tennessee rule is tlms stated by the supreme court of that state: - "Where both parties are guilty of some negligence, if the negli- gence of the plaintiff is the proximate and efficient cause of the accident, he cannot recover, and if the defendant's negligence is the proximate and efficient cause of the injury, it is liable; but in such case the negligence of the plaintiff should be taken into consid- eration bv the iurv in mitigation of damages." In a still later case =' the rule is thus stated: "Plaintiff's contributory negligence or wrongful conduct may be considered in mitigation of damages, however wanton, willful, and reckless the act of the defendant which produced the injury may have been." The principal difference between the Tennessee and the common-law rule is in allowing damages to be mitigated by the conduct of the injured party.* To the extent that it 2 East Tennessee, V. & G. K. Co. v. Conner, 15 Lea (Tenn.) 254, . citing Wliirley v. Whiten: an, 1 Head (Tenn.) 610. In the case first cited the facts were these: A station was announced, the train was stopped, and the conductor told a female passenger to get off. She hurried to the door, but the train had started Avhen she got on the car i)latform. In the darkness and confusion, seeing that the train was moving off, she jumped and was injured. As a matter of fact, the- train had not arrived at the station. Held, that she had a right to assume that the train had arrived at the station, and to rely on the conductor's direction, and that she was entitled to recover against the company, but tliat her conduct in leaping from the moving train should be considered by the jury in mitigation of damages. 3 Railway Co. v. Wallace, 90 Tenn. 53, 15 8. W. 021. 4 Louisville, N. cV- G. S. It. Co. v. Fleming, 14 Lea (Tenn.) 128. In this case it was held that, in an action for wrongful ejection of a pas- senger from a train, plaintiff's negligence in failing to make a th;)r- ough search for his ticket could be considered by the jury in mitiga- tion of damages. (510) Ch. lo) CONTRIBUTORY NEGLIGENCE. § 194 permits niitijiatioii of daninjies for Avillful wron^, Ww- Tennessee rule is more onerous than the (•oninion hiw, for at common law contributory neuliuence is no de- fense in an action for a willful wronu. § 194. RULE IN GEORGIA AND FLORIDA. By statute ^ adopted in (Jeoriiia originally in IS,")'), ii is enacted: "No person shall recover (laiuaucs from a railroad company for injury to himself or his ])roi»erty, Avhere the same is done by his consent, or is caused by his own negligence. If the com])lainant and the agents of the company are both at fault, the foiuier may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him." Another statute ■ declares: "If the plaintiff, by ordinary care, could have avoided the consequences to himself caused by defendant's negli- gence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff mav in some wav have contributed to the injury re- ceived." Still another statute"' raises a presumption of negligence against a railroad coni])any from the fact of the accident. In Vickers v. Atlanta .V: \V. P. \l. Co.,' Justice Bleckley said, in reference to these statutes: § 104. 1 Code Ga. 1882, § :W:J4. A similar statute has receutly bieu ('na< ted iu Florida. Rev. St. Fla. 18!»2, § 2;i45, 1! ( ode (ia. 1.SS2, S 12;»72. 8 Cede Ga. 1882, § ms^. ■4 (187!t) ()4 Ga. 30(i. In iliis case it was held that it was fur tlic jury to determine whether a boy 10 years old. who is injurcil in an attempt to board a moving engine on invitation of tli- cniiim cr, is eutitled to recover from the comijany. (oil) § 194 CARRIERS OF PASSENGERS. (,Ch. 13 "We discover that a presumption of uej-ligence is rais- ed against the company from the mere fact of inflicting the injury, and that, on combining that presumption with the whole run of tlie evidence, one of four results may follow: First, if the presumption is wholly over- come, the verdict should be for the company; secondly, whether it is overcome or not, if the plaintiff either caused the injury by his own negligence, or could, by ordinary care, have avoided it, the verdict should be for the company; thirdly, if the plaintiff was faultless, neither contributing to the injury, nor omitting ordi- nary care to avoid it, the verdict should be against the company for full damages; and, fourthly, if the plain- tiff contributed to the injury, but did not himself cause it, and could not have avoided it by ordinary care, the vprdict should be against the company, not for full damages, but for the damages diminished in proportion to the default attributable to the plaintiff." In a later case ' it is said : "It seems to be the clear meaning 5 Aniericus, P. & L. R. Co. v. Luckie, 87 Ga. 0. 13 S. E. lOo. In Macon & W. R. Co. v. Johnson (1SG8) 38 Ga. 400. it is said: "If a pas.>-enger on a railroad be injured by a collision of trains, and the evi- dence shows that, though the company or its agents were guilty of negligence, yet the injured party could, by the exercise of ordinary diligence, have avoided the consequences to himself of that negli- gence, he is not entitled to recover any damages, from the company. If, in such case, it appears that both parties were guilty of negli- gence, and it dot s not further appear from the evidence that deceased could, at the time of the injury, have avoided the consequences to him- self of the negligence of the railroad company or its agents, he is eu- ftled to recover; but it is the duty of the jury to lessen the amount of their verdict in proportion to the negligence and want of ordinary care of the passenger." In Western & A. R. R. v. Wilson, 71 Ga. 22, it was held that, where a boy attempts to board a moving train on the (512) Ch. 13) CONTRIBUTORY NEGLIGENCE. § 195 of our law that the plaintiff can never recover in an action for personal injuries, no matter what the no(»; O'Toole v. Railroad, 158 Pa. St. 99, 27 Atl. 737; Downey v. Traction Co., 101 Pa. St. 588, 29 Atl. 128, 14 Pa. Co. Ct. R. 2.-.1; Gulf, C. & S. F. Ry. Co. v. Pendry, 87 Tex. 553, 29 S. W. 1038; Whelan v. Railroad Co.. 38 Fed. 15; Wo(5ii!ey v. Raili-oad Co., 8 Mat-key, 542. It was at one time held in New York that a passenger in a horse car is chargeable with the negligence of llie driver, ami cannot recover against a steam-rail- road company for injuries caused by the cmicuiring negligence of its servants and of the street-car driver. Mooncy v. Railroad Co., 5 Rob. (N. Y.) 548. But this is no longer the law. » Becke v. Railway Co., 102 Mo. .544, 13 S. W. 10.5:'.. in New York it was held at one time that the negligence of the driver of a stage ■coach will be imputed to the passenger. Brown v. Railroad, 32 N. Y. § 198 CARRIERS OF PASSENGERS. (Ch. 14 directions as to tlie place he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad com- pany for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and of the driver.^'* On the question whether the negligence of the driver of a private vehicle can be imputed to his invited guest riding with him, there is a conflict of authority in the United States. But the decided weight of authority is in favor of the proposition that the negligence of the driver or owner of a private vehicle is not imput- able to another person riding by invitation in the vehicle, unless that person had some right, or was under some duty, to control or influence the driver's conduct/^ Such right might arise by reason of the 597. But this case must be taken to be overruled by Robinson v. Railroad Co., G6 N. Y. 11. 10 Little V. Hackett, 116 U. S. 366, 6 Sup. Ct. 391. This case was referred to in The Bernina, 13 App. Cas. 1, 10, as follows: "That was a decision by the supreme court of the United States, whose decisions, on account of its high character for learning and ability, are always to be regarded with respect." The same principle is announced in the following cases: Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co.. 41 Fed. 316; East Tennessee, V. & G. Ry. Co. v. Markens, 88 Ga. 60, 13 S. E. 855; Perez v. Railroad Co., 47 La. Ann. 1391, 17 South, 869; Randolph v. O'Riordon, 155 Mass. 331, 29 N. E. 5S3; New York, L. E. & W. R. Co. V. Steinbrenner, 47 N. J. Law, 161. 11 Elyton Land Co. v. Mingea, 89 Ala. 521, 7 South. 666; Pitts- burgh, C. & St. L. R. Co. V. Spencer, 98 Ind.186; Town of Knightstown V. Musgrove, 116 Ind. 121, 18 N. E. 452; City of Michigan City v. Boeckling, 122 Ind. 39, 23 N. E. 518; Lake Shore & M. S. Ry. Co. y. Mclntcsh, 140 Ind. 261, 272, 38 N. E. 476; Lake Shore & M. S. Ry. Co, (524) Ch. 14) NEGLIGENCE OF THIRD PERSONS. § lOS two being engaged at the time in a joint enterprise for their common benefit; an(i if iliis were not so, the duty miulit arise from obvious or Ivuown incompe- teney of the driver, resulting from drunlvenness or other cause.'^ So, the negligence of a servant, to whom the master has committed the control of the V. Boyts (luU. App.) 4:^ X. E. 6(37; Lake Shore & M. S. Ry. Co. v. Boj-ts (Ind. App.) 45 X. E. 812; City of Leavemvortli v. Hatch (Kau. Sup.) 45 Pac. Co; Cahill v. Railway Co., 92 Ky. 845. IS S. W. 2: Bal- timore & O. R. Co. V. State, 79 Md. 385, 29 Atl. 518; Alabama & V. Ry. Co. V. Davis, 69 Miss. 444, 13 South. 693; Follmau v. City of Mankato, 35 Minn. 522, 29 X. W. 317; Xoyes v. Boscawen, 64 X. H. 361. 10 Atl. 690; Robinson v. Railroad Co.. 66 X. Y. 11; Kessler v. Railroad Co., 3 App. Div. 426. 38 X. Y. Supp. 799; Strauss v. Railway Co., 6 App. Div. 264, 39 X. Y. Supp. 998; Street-Railway Co. v. Eadie. 43 Ohio St. 91. 1 X. E. 519; Carlisle Borough v. Brisbane. 113 Pa. St.. 544. 6 Atl. 372; Carr v. Easton City, 142 Pa. St. 139, 21 Atl. 822; Gal- veston, H. & S. A. Ry. Co. v. Kultac, 72 Tex. 643, 11 S. W. 127; Union Pac. Ry. Co. v. Lapsley, 2 C. C. A. 149. 51 Fed. 174. aflirming 50 Fed. 172; Pyle v. Clark. 79 Fed. 744. attiruiing 75 Fed. 614. In Iowa the negligence of a driver of a vehicle will not be imputed to a pas- senger or invited guest. Xesbit v. Town of Garner. 75 Iowa, 314, 39 X. W. 516. But (1) when several parties are engaged in a common enterprise, and one is in.1ured by the joint negligence of one of his as- sociates and another, the negligence of his associates will be impute.l to him, and will defeat all right of recovery against the other party; and (2) when a person is in.iured through the common negligence of one who. from their relation, is bound to care for and protect him. and another, the negligence of the former will be imputed to the lat- ter, and will defeat a recovery against the other party. Payne v. Railroad Co., 39 Iowa, 523; Yahn v. City of Ottumwa, (30 Iowa, 429. 15 X. W. 257; Slater v. Railway Co., 71 Iowa. 209, 32 X. W. 2i;4: Stafford v. City of Oskaloi sai, 57 Iowa, 74S, 11 X, W. 66S. 12 Roach V. Railroad Co., 93 Ga. 785, 21 S. E. 67. The nogllgence of the driver of a private vehicle will be imputed to a person riding M-ith him, where the vehicle is being used by both for the transpnria- tion of their personal property. Omaha .^- R. V. Ry. Co. v. Talbot. 48 Xeb. 627. 67 X. A\'. 599. (525) § 198 CARRIERS OP PASSENGERS. (Ch. 14 horses, and with whom he is riding, is imputable to the master.^^ In some of the states, however, the negli- gence of the owner and driver of a private vehicle is imputable to one voluntarily riding with him by invi- tation, and defeats the right of the latter to recover damages against a third person for injuries caused by the concurring negligence of both.^* In New York it is held that the rule that the negligence of a driver of a vehicle may not be imputed to a passenger in an action for injuries alleged to have been caused by de- 13 Smith V. Railroad Co., 4 App. Div. 493, 38 N. Y. Supp. 666. But a motlier riding in a cab driven by ber son is not cliargeable with contributory negligence on account of his want of care. Weldon v. Railroad Co., 3 App. Div. 370, 38 ^. Y. Supp. 206. One who, unin- vited or without the knowledge of the driver of a private vehicle, gets upon such vehicle for the purpose of riding, and rides thereon, does not thereby assume the relation of master or superior to such driver; and therefore he is not chargeable with the negligence of the driver in driving or managing siuch vehicle. Cincinnati St. Ry. Co. v. Wright (Ohio) 43 X. E. 688. 14 Prideaux v. City of Mineral Point. 43 Wis. 513; Otis v. Town of Janesville, 47 AVis. 422, 2 N. W. 783; Mullen v. City of Owosso, 100 Mich. 103. 58 N. W. GOd (following Lake Shore & M. S. R. Co. V. Miller, 25 ;Mich. 274, which the court said has never been departed from); Whittaker v. City of Helena. 14 Mont. 124, 35 Pac. 904. In Prideaux v. City of Mineral Point, 43 AVis. 513, Ryan, C. J., said: "A woman may and should refuse to ride with a man if she dislikes or distrusts the man or his horse or his carriage. But, if she volun- tarily accepts his invitation to ride, the man tnay, indeed, become lia- ble to her for gross negligence; but, as to third persons, the man is her agent to drive her; she takes man and horse and carriage for the jaunt, for better, for worse." If the driver of a vehicle is to be regarded as the agent of his invited gues;t, riding with him, it would follow that the guest is liable to third persons for the negligence of the driver. It would be a ditficult task for the eloquence of even Chief Justice Ryan to establi-sh this proposition. (52G) Ch. 14) XEGLIGEXCK OF THIRD PERSONS. § 19i> feiidant's neglij;enoe is only applicable to cases where the relation of master and servant and ])rin(ipal ;in2. » Reed v. Railway Co., 34 Minn. 557, 27 X. W. 77; Fitzgerald v. Railroad Co., 29 Minn. 336, 13 N. W. 16S; City of St. I'aul v. Kuby. 8 Minn. 154 (Gil. 125). 10 Waite V. Railway Co. (1858) El., Bl. & El. 719. In this case it was held that the negligence of a grandmother in attempting to cross a railroad track at a station in the face of an advancing train must be imputed to the child. 11 Kol>inson v. Cone (1850) 22 Vt. 213. per Rcdlicld, .1. 12 Even m states where the doctrine is recognized, it has no ai)pli- eation in a case where, notwitlist.inding negligence on the part of the parents in permitting their child to be exposed to peril, the child V. 1 FET.c.\n.i'AS. — 34 (52*.)) § 1!)9 CARRIERS OF PASSENGERS. (Ch. 14 riiilits distinct from tbeir parents, among wliicli is the right to security from personal injuries occasioned by the negligence or willful wrong of others. Negligence or dereliction of the parent or custodian of children is no justification for others to injure them." ^^ "Noth- ing could be more to the prejudice of an infant than to conver-t, by construction of law, the connection be- tween himself and his custodian into an agency to which the harsh rule of respondeat superior should be applicable. The answerableness of the principal for the authorized acts of his agent is not so much the dictate of natural justice as of public policy, and has arisen with some propriety from the circumstances that the creation of the agency is a voluntary act, and that it can be controlled and ended at the will of its creator. But, in the relationship between the infant and its keeper, all these decisive characteristics are entirely wanting. The law imposes the keeper on the child, who, of course, can neither control nor remove him; and the injustice, therefore, of making the latter responsible, in any measure whatever, for the acts of the former, would seem to be quite evident. Such subjectivity would be hostile in every respect to the natural rights of the infant, and consequently cannot, with any show of reason, be introduced into that pro- vision which both necessity and law establish for his protection. Nor can it be said that its existence is itself exercised due care. O'Brien v. McGlinchy, 68 Me. 552; Lynch V. Smith, 104 Mass. .52: Lanueu v. Gas Light Co., 4G Barb. (N. Y.) 264; Ihl V. Railroad Co., 47 N. Y. 317; McGarry v. Loomis, 03 N. Y. 104; Huerzeler v. Railruad Co., 1 Misc. Rep. 136, 20 N. Y. Supp. 676. 13 Westbrook v. Raik-tad Co., m Miss. 560, 6 South. 321. (530) Ch. 14) NEGLIGENCE OF THIRD PERSONS. § 199 necessary to give just enforcement to the rights of others. When it haj^pens that both the infant and its custodian have been injured by the co-operative negligence of such custodian and a third party, it seems reasonable, at least in some degree, that the latter should be enabled to say to the custodian: 'You and I, by our common carelessness, have done this wrong, and therefore neither can look to the other for redress.' But when such wrongdoer savs to the in- faiit: 'Your guardian and I, by our joint misconduct, have brought this loss upon you. Consequently you have no right of action against me, but you must look for your indemnification to your guardian alone,' — a proposition is stated that appears to be without any basis either in good sense or law. The conversion of the infant, who is entirely free from fault, into a wrong-^ doer by imputation, is a logical contrivance, uncon- genial Avith the spirit of jurisprudence. The sensible and legal doctrine is this: An infant of tender j^ears cannot be charged with negligence, nor can he be so charged with the commission of such fault by substi- tution, for he is incapable of appointing- an agent; the consequence being that he can in no case be considered to be the blamable cause, either in whole or in part, of his own injury. There is no injustice or hardship in requiring all wrongdoers to be ansAverablo to a per- son who is incapable either of self-protection or of be- ing a participator in their misfeasance." ^* For reasons Buch as these, the doctrine has been rejected by the 14 Newman v. Hailn ad Co., 52 N. J. Law, 440, I'J All. 1102. (Wl) § lyj CARRIERS OF PASSENGERS. (Ch. 14 courts of Alabama, ^^ Arkansas/" Connecticut,^' Geor- gia,^* Illinois,^'' Iowa,-° Kansas,^^ Louisiana," Michi- gan,-" ]Mississij)pi,-* Missouri,'^ Nebraslia,-® New Jer- sey,-' Nortli Carolina,-'* Oliio,-^ Pennsylvania,^*' Ten- nessee,^^ Texas,^- A^ermont,^" and Virginia.^* >5 Goverumeut St. R. Co. v, Hanlon, 53 Ala. 70; Pratt Coal & Iron Co. V. Brawley, S3 Ala. 371, 3 South. 555. In the tirst of these cases it was said: "It seems repulsive to our seuse of justice that, because the parent is negligent of the cliild, others may with impunity be equally negligent of its helplessness, and ecpially indifferent of its necessities. The law may not compel active charity for the relief of . tlie child, but it does shield him from positive wrong or neglect." ic St. Louis, I. M. &. S. Ry. Co. v. Rexroad, 59 Ark. 180, 26 S. W. 1037. 1' Daley v. Railroad Co., 26 Conn. 591. 18 Ferguson v. Railway Co., 77 Ga. 102; Atlanta & C. Air- Line Ry.- Co. v. Gravitt, 93 Ga. 309. 20 S. E. 55U. i» Chicago City Ry. Co. v. Wilcox. 138 111. 370, 27 N. E. 899, affirm- ing 33 111. App. 4.jO; Elgin, J. & E. Ry. Co. v. Raymond, 47 111. App. :242. 20 Wymore v. Mahaska Co., 78 Iowa, 396, 43 N. TV. 264. 21 Union Pac. Ry. Co. v. Young, 57 Kan. 168, 45 Pac. .580. But see, contra. Smith v. Railroad Co., 25 Kan. 738, 28 Kan. .541. 22 Westerfield v. Levis, 43 La. Ann. 63, 9 South. 52. 2 3 Battishill v. Humphreys, 64 Mich. 494, 31 N. W. 894; Shippy v. Village of An Sable. 85 Mich. 280. 48 N. W. 584: :Mullen v. City of Owosso, 100 :Mich. 103, 58 N. W. 663. 2 4 Westbrook v. Railroad Co., 66 Miss. 560, 6 South. 321. 2 5 Winters v. Railway Co., 99 Mo. 509, 12 S. W. 652. 26 Huff V. Ames, 16 Neb. 139, 19 N. W. 623. 27 Newman v. Railroad Co., 52 N. J, Law, 446, 19 Atl. 1102. 28 Bottoms V. Railroad Co., 114 N. C. 699. 19 S. E. 730. 2 8 Belief ontaine & I. R. Co. v. Snyder, 18 Ohio St. 399: Cleveland, C, C. & I. R. Co. V, Manson, 30 Ohio St. 451; Street-Railway Co. v. Eadie, 43 Ohio St. 91, 1 N. E. 519. so-3 4 See notes 30-,i4 on following page. (532) Ch. 14) NEGLIGEiNCE OF THIRD PERSONS. § 199^ Of coiu'se, if Tlic iiejiligonce of a child's custodian is the sole or the proximate cause of injuries to it, there can be no recovery against a third person, whose negli- o-ence contributed only remotely to the result." A different question is presented when the action is brought, not by the child (.r in the child's behalf, but by the parent or guardian, for the damages he has sustained by reason of the loss of the child's services, medical expenses, etc. In this class of case^* it is 3 Erie City Pass. Ry. Co. v. Schuster, llo Va. St, 411i, G Atl. '2y\\}; North rennsylvania R. Co. v. Mahoney, 57 Ta. St. 187; Kay v. Raj^ road Co.. 05 Pa. St. 2G9. 31 Whirley v. Whiteman, 1 Head (Tenn.) 609. 3 2 Texas & P. Ry. Co. v. Beckworth (Tex. Civ. App.) 32 S. W. 800; Texas & P. Ry. Co. v. Fletcher, 6 Tex. Civ. App. 7;'.<). 26 S- W. 446; Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64; Williams v. liaU- road Co.. 60 Tex. 205. 3 3 Robinson v. Cone. 22 Vt. 213. 34 Triimbo's Adm'r v. Street-Car Co.. 89 Va. TSO. 17 S. E. 124; Nor-- ^ folk & W. R. Co. V. Groseclose's Adm'r, 88 Va. 267. 13 S. E. 454: Norfolk & P. R. Co. v. Ornisliy. 27 Grat. (Va.^ 4.55. 3 5 A three year old child injured by the rudder chain, guarded as Is customaiT on steamships, cannot recover, as the accident is attrib- utable solely to the negligence of the nurse, who permitted it to run around unattended. The Burgundia, 29 Fed. 464. The negligenoiv of a parent or guardian having in charge a child of tender years will not excuse a carrier by rail from using all the means in its power to • prevent injury to the child; yet if the negligence of the parent is the proximate cause of injury to the child, by unnecessarily and impru dently exposing it to danger, the carrier cannot l>e held rcsjM^usihle,'. unless it is shown to have omitted duties the discharge of which would have averted the injury. Hence the negligence of a fatlier in pl.R-ing his child on the lower step of a moving car, to enable thciii to leave (lUickly when the train should come to a stop at a station, precludes a recovery against the company for injuries sustained by the child in falling from the car before it has stopped. Oliio A: M. Ry. Co- v. Stratton, 78 111. 88. <533) § 199 CARRIERS OF PASSENGERS. (Ch. 14 settled tbat the negligence of the custodian of the child is a good defense. The reason is obvious. It rests upon the principle that one whose negligence has contributed to bring an injury upon himself cannot re- cover from another whose negligence has concurred in producing this result. Even in those jurisdictions which have repudiated the doctrine of imputable negli- gence, as announced in Hartfield v. Iloper, there has been no departure from this principle, and this rule has been universally recognized and strictly enfor- ced.^'^ It is equally well settled that, though the father was not himself present, but the injury to the child oc- curred while it was under the care and charge of an- other person, to whom its safety had been intrusted, the rule would still apply in all its strictness. It be- ing the imperative legal duty of the father to guard * and shield his child from injury, if he delegates that duty to another, he is legally responsible for the con- duct of that other, whose every act is, in legal contem- plation, the act of the father himself." 3 6 Westbrook v. Railroad Co., 66 Miss. 560, 6 Soutli. 321; Shippy v. Village of Au Sable, S5 Mich. 280, 48 N. W. 584; Glassey v. Railway Co., 57 Pa. St. 172; Erie City Pass. Ry. Co. v. Schuster, 113 Pa. St. 412, 6 Atl. 269; Belief ontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Street-Railway Co. v. Eadie. 43 Ohio St. 91, 1 N. E. 519; AVilliams v. Railroad Co., 60 Tex. 205; Chicago City Ry. Co. v. AVilcox, 138 lU. 370, 27 N. E, 899, affirming 33 111. App. 450; Chicago & A. R. Co. v. Logiie, 158 111. 621, 626, 42 N. E, 53; Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371, 3 South. 555; Huff v. Ames, 16 Neb. 139, 19 N. W. 623; Norfolk & W. R. Co. v. Grost'close's Adm'r, 88 Va. 267, 13 S. E. 454; Wymore v. Mahaska Co., 78 Iowa, 396, 43 N. W. 264; Jeffersonville, M. & I. R. Co. V. Bowen, 49 Ind. 154, attirming 40 Ind. 545, 87 Belief ontaine Ry. Co. v. Snyder, 24 Ohio St. 630. (534) Ch. 14) NEGLIGENCE OF THIRD PERSONS. § 199 WlietluM' this rule should be extended to cover a case where an administrator sues for the wron her, because the right to recover for such injuries is com- munity property, which the husband has the riglit to control. So, in Illinois* it has been licld tlmt, where § 200. 1 Pennsylvania K. Co. v. Goodeuougli, 55 N. .T. Law, 577, 2S Atl. .3. 2 McFadden v. Railway Co., 87 Cal. 4G4, 25 Vac. GSl. 8 Missouri Pac. Ky. Co. v. Whito, SO Tex. 2(12, 15 S. W. SOS. 4 Toledo, St. L. & K. C. K. Co. v. Crilti-nden, 42 III. Aw. AiY), cltius. City of liock Island v. Vanlaudst-licot,. 78 111. -185. (537). § 200 CARRIERS OF PASSENGERS. (Ch. 14 a team is in tlie control of the plaintiff's husband, a want of ordinary care on his part in its management, contributing to an injury to her, is chargeable to her, and will bar a recovery against a railroad company for its negligence in frightening the team. But in most of the states the ox)posite view prevails. Under the Missouri married woman's statute, which declares that a marrie48. Davis V. Guarniori, 4.5 Oliio St. 470, 15 N. E. 350. 10 Atlanta & C. Air-Liue Ry. Co. v. Gravitt, 93 Ga. 3G9, 3S0. 20 S. E. 550. See, also, Sheffield v. Telephone Co., 36 Fed. 1G4; Sli.iw v. €raft, 37 Fed. 317. 11 Reading Tp. v. Telfor (Kan. Sup.) 48 I'ac. 134. § 201. 1 59 Fed. 423. {7M)) § "202 CARRIERS OF PASSENGERS. (Ch. 15 CHAPTER XV. WHO AKE COMMON CARRIERS. g 202. Common Can-ier of Passengers Defined. 203. Railz'oad Companies. 204. Union-Depot Companies. 205. Sleepinjr-Car Companies. 206. Street-Railroad Companies. 207. Pi'oprietors of Road Vehicles. 208. Vessel Owners. 209. Passenger Elevators. § 202. COMMON CARRIER OF PASSENGERS DEFINED. A common carrier of passengers is one who un- dertakes for hire to carry all persons, indiffer- ently, -who may apply for passage.^ To constitute one a common carrier, it is necessary that he should hold himself out to the community as § 202. 1 Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) 220. A common carrier is a person or corporation pursuing the public em- ployment of conveying goods or passengers for hire. Quimby v. Rail- road Co., 150 Mass., at page 371, 23 N. E. 205. A common can'ier is one whose usual business it is to carry. Fuller v. Railroad Co., 21 Conn. 557. The tenn is defined by statute in some of the states. "Every one who offers to the public to cany persons or property is a common carrier of whatever he thus offere to carry." Civ. Code Cal. § 2168; Civ. Code Mont. 1895, § 2870; Comp. Laws Dali. 1887. § 3881. "One who piu'sues the business of transporting the property or persons of others constantly and continuously for any period of time is a common carrier." Code Ga. 1882, § 2066. Sanb. & B. Ann. St. Wis. § 3214, provides that every company formed for the pur- jiose of transporting passengers or property shall be deemed a com- mon carrier. Qh. 15) WHO ARE COMMON CARRIERS. § 203 such. This may be done, not only by advertisiuo-, otr., but by actually eniiaging iu the business and pursuiug the occupation as an employment.' It is not, however, every carrying of passeugers for hire that constitutes a party a common carrier. The test is the occupation of cariTing all membei-s of the public who uiay offer themselves for transportation. "Common carriers are such by virtue of their occupation, not by virtue of tlu- responsibilities under which they act. Those respon- sibilities may vary in different countries, and at dif- ferent times, without changing the character of the em- ployment. * * * The theory occasionally an- nounced that a special contract as to the terms and re- sponsibilities of carriage changes the nature of the employment, is calculated to mislead. The resp.)nsi- bilities of a common carrier may be reduced to those of an ordinary bailee for hire, while the nature of his duties renders him a couimon carrier still." ' ^5 203. RAILROAD COMPANIES. Railroad companies are by far the most important class of our common carriers at the present day. AH the older methods of land transportation have been practically rendered obsolete whenever and wherever they have come into competition with the railroads. Being incorporated by law for the transportation of 2 Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) '220. 3 New York Cent. R. Co. v. Lockwood. 17 Wall. :5.->7. per Bradley. .1. The obligations and liabilities of a con.nmn carrier are not dei.end- ent on eontraet. though they may be nioditied and limited by coulmot. Hannibal & St. J. R. Co. V. Swift, 12 Wall. 262. (541) § 203 CARRIERS OF PASSENGERS. (Cb. 15- persons and propert}' for hire over the lines of their respective roads, and being vested with the power of taking private propert}^ for a public use, railroad com- panies are common carriers of both persons and prop- erty. These are the objects for which they are con- stituted by law. It is their public employment, their principal and direct business, and not a casual or occa- sional occupation with them; and this beyond doubt constitutes them common carriers of both descrip- tions.^ In many states they are declared to be such by statute.^ But a railroad company is a common carrier of pas- sengers only by the vehicles which it holds out to the public as designed for the transportation of passen- gers. It is not, for example, a common carrier in re- spect to its hand cars, unless it has held itself out to the public as such, or authorized its agents so to do.^ § 203. 1 Flinn v. Railroad Co., 1 Houst. (Del.) 469; Caldwell v. Railroad Co., 89 Ga. 550, 15 S. E. 678. One engaged in the business of transporting passengei's for hire on a railroad operated by him is a common carrier. Davis v. Button, 78 Cal. 247, 18 Pac. 133, and 20 Pac. 545. 2 Mills' Ann. St. Colo. p. 350, § 494; Hill's Code Or. § 3254; Rev. St. Mo. 1889, § 2G31; Const. W. Va. art. 11, § 9; and Code W. Va.. p. 530, § 71,— declare railroads to be public highways, free to all per- sons for transportation on payment of regular charges. Const. Mo. 1875, art. 12, § 14, which declares railroads public highways, does not authorize one to I'ide on their ears without their consent and without payment of fare. Farber v. Railway Co., 116 Mo. 81, 22 S. W. 631,, citing Hyde v. Railway Co., 110 Mo. 272, 19 S. W. 483. ■^ Hoar V. Railroad Co.. 70 Me. 65. The mere fact that a section foreman invites a person to ride with him on a hand car does not impose on the railroad company the responsibility of a common car- rier to such pei"son, A section foreman has no right to accept pas- (542) Ch. I5j WHO ARE COMMON CARRIKRS. § 203 So, it lias been said that railroad companies are not to be regarded as common carriers of passengers by their freight trains, nnless they make it an habitual busi- ness.* So, railroad contractors engaged in building a railroad and running a construction train not adapted for passengers are not common carriers as to a person who takes passage on the train, and pays the fare, and as to him they are bound to exercise onlv such care and skill in the management and running of the trains as prudent and cautious men, experienced in that busi- ness, are accustomed to use under similar circumstan- ces/ So, a superintendent of construction and civil engineer of a railroad has not power, as such, to con- vert a construction train into a passenger train, and cannot open an incomplete road for passenger traffic without the consent of his superior officers.^ So, a logging company operating a logging railroad on its own land, in connection with its business, is a private, and not a common, carrier, even though it permits persons to ride gratuitously on its trains; and a con- stitutional provision that all railroads are public high- sengers for transportation, and bind the company for their safe car- riage, and every man may be safely presumed to linow this much. Id. 4 Murch V. Raih-oad Corp., 29 N. H. 9. A company, though not do- ing a general business as a carrier of passengers, but which allows passengers to ride on its engines, and receives fare, is liable to a per- son who, wliile so carried, is injured by a defect therein which might have been prevented. Millwood Coal & Coke Co. v. Madison (Pa. Sup.) 2 Atl. 39. 6 Shoemaker v. Kingsbuiy, 12 Wall. 369. »Evansvllle & K. R. Co. v. Barnes, 137 Ind. :\W>. P,(> S. K. 14. 1 Indianapolis Union Hy. Co. v. Cooper, 6 Ind. App. 201i. 33 N. E. 219. v. 1 KKT.CAR.PAS. — 35 (545) §'205 CARRIERS OF PASSENGERS. (Ch. 15 § 205. SLEEPING-CAR COMPANIES. It is sometimes loosely said that sleeping-car com- panies are not common carriers, meaning thereby to convey the idea that they are not liable as insurers of the passenger's personal effects carried by him into the car. But, manifestly, sleeping-car companies are common carriers, subject to all the duties of common carriers, so far as the construction and maintenance of their coaches and the personal safety and comfort of their passengers are concerned. Like a railway com- pany, the sleeping-car company exercises special priv- ileges and franchises granted to it by the state, and its business is transacted almost exclusively with the traveling public. Its cars on the various lines of road are extensively advertised all over the country, set- ting forth, in fitting terms, the accommodations and comforts they afford, rates of charges, etc.; and the public are earnestly invited to avail themselves of the advantages and comforts they offer. In no respect, therefore, does a sleeping-car companj^ differ, in its re- lation to the public, from an ordinary railway com- pany, in so far as the safety of its cars is concerned.^ But the federal circuit court for Missouri has re- cently said: "While it is true the owners of sleeping cars, as ordinarily operated on our railroads, are not § 205. 1 Nevin v. Car Co., 106 111. 222, 229. A sleeping-car com- panjr owes its passeng-ers the duty of exercising a high degree of care for their safety. Pullman's Palace-Car Co. v. Fielding, 62 111. App. 577. Pub. St. N. H. 1891, p. 458, § 10, declares all persons and cor- porations operating sleeping and parlor cars within the state common carriers. See, also, post. §§ .378. G39. (540) Ch. 15) WHO AKE COMMON CARRIERS. § 200 to be treatecl as common carriers with respect to their liability to patrons, it is equally true, from tlie nature and character of their business, in which they are brought into close and important relations, affecting the comfort and safety of a large portion of the trav- eling public, they ought to be, and must be, held re- sponsible for the discharge of certain general duties, involving the exercise of ordinary and reasonable cave towards them." ^ § 208. STREET-RAILROAD COMPANIES. A street-railroad company is a common carrier of passengers, with duties and responsibilities entirely analogous to, and substantially the same as, those of a railroad company in the carriage of passengers. Both are "railway companies," within the usual meaning of that term, and the same general rules and degree of care must be observed by each/ 2 Hughes V. Car Co., 74 Fed. 499. § 200. 1 Citizens' St. Ry. Co. v. Twiname, 111 Ind. 587, 13 N. E. 55; Jackson v. Railway Co., 118 Mo. 199, 224, 24 S. W. 192; Smith V. RailAvay Co., 32 Minn. 1, 18 N. AV. 827; Watson v. Railway Co., 42 Minn. 46, 43 N. W. 904; Pray v. Railway Co., 44 Neb. 107, 62 N. W. 447; Spellman v. Transit Co., 30 Neb. 890, 55 N. W. 270. A street-railway couii any, by undertakinj; the transportation of pas- sengers for hire, assumes towards its patrons the relation of a com- mon carrier, without regard to the cliaracter of tlie easement pos- sessed by it in its right of way. East Omaha St. R. Co. v. Godola (Neb.) 70 N. W. 491. See, also, ante, § 18. (547) ^ 207 CARRIERS OF PASSENGERS. (Ch. 15 g 207. PROPRIETORS OF ROAD VEHICLES. Proprietors of stage coaches carrying passengers for hire from place to place are common carriers/ So, courts take judicial notice that the owner of an omni- bus line is a common carrier of passengers and their baggage; and, if it is otherwise, he must make it ap- pear.^ So, a hackman, who transports persons from a railroad depot to various parts of the city for hire, is a.common carrier,^ On the question whether or not a livery stable keep- er, who lets out his horses, carriage, and driver for a specitied journey, is a common carrier, the authorities are divided. In England it is held that he is. "A person who lets out carriages is not, in my opinion, responsible for all defects, discoverable or not. He is not an insurer against all defects ; nor is he bound to take more care than coach proprietors or railway com- panies who provide carriages for the public to travel in; but, in my opinion, he is bound to take as much care as they; and, although not an insurer against all defects, he is an insurer against all defects which care and skill can guard against. His duty appears to me to be to supply a carriage as fit for the purpose § 207. 1 See ante, § 19. How. Ann. St. Mich. § 3G56, declares that stagecoach companies shall be common carriers. 2 Parmelee v. McNulty, 19 111. 550. 3 Lemon v. Chanslor, 68 Mo. 341. A street railroad whij:h uses hacks to convey passengers from the terminus of its line to a ceme- tery is required, as a common ean-ier, to use the utmost care and skill to preserve the safety of its passengers. Bonce v. Railway Co., .53 Iowa, 278, 5 X. W. 177. (548) Ch. 15) WHO ARK COMMON CAUKIERS. § 207 for which it is hired as care and sldll can render it; and if, Avhile the carriage is bein- properly used for such purpose, it breaks down, it becomes incumbent on the person who has let it out to show that the break- down was, in the proper sense of the word, an accident, not preventible by any care or skill. * * ♦ Kor does it appear to me to be at all unreasonable to exart such vigilance from a person who makes it his business to let carriages for hire. As between him and the- hirer, the risk of defects in the carriage, so far as care and skill can avoid them, ought to be thrown on the owner of the carriage. The hirer trusts him to sup^ ply a fit and proper carriage. The lender has it in his power, not only to see that it is in a proper state, and to keep it so, and thus protect himself from i-isk, bin also to charge his customers enough to cover this ex- pense." * A similar ruling has been made by the su- preme court of Vermont,' and by one of the appel- late courts of Illinois.' But a contrary view has been take*a by another appellate court of Illinois,' and by the St. Louis court of appeals.' Both of these courts * Hyman v. Nye (1881) 6 Q. B. Div. 685. To same effect, see Jones V. Page, 15 Law T. (N. S.) 619. 6 Hadley v. Cross (1861) 34 Vt. 586. « TSenner Llverj- & T^ndertaking Co. v. Busson. 5S 111. App. 17, citing Tullor V. Talbot, 23 111. 298: Krink v. Potter. IT 111. 41(i. 7 Payne v. Hnlstead, 44 111. App. 97. sSiegrist v. Arnot, 10 Mo. App. 197. In an adM.n against n liv erj-man for injuries sustained from a defect in Che vehicle, an inslnic- tion that defendants were required to use onlinary care and diligence in discharging their obligations to plaintiff, inchiding ordinary care and skill in driving the team, is as favorable to defendants as they are entitled to have it stated; and, though the peUtion allcg.'s thai (r.iU) § 209 CARRIERS OF PASSENGERS. (Ch, 15 lield that a livery stable keeper is merely a private car- rier for hire, aud, as such, bound to exercise only that degree of care which a prudent man experienced in the business is accustomed to use under similar cir- cumstances; that is to say, ordinary skill, diligence, and ijrudence. § 208. VESSEL OWNERS. Owners of vessels carrying passengers for hire are common carriers.^ This includes ferrymen.^ § 209. PASSENGER ELEVATORS. Proprietors and managers of passenger elevators are the latest addition made by the law to the cate- gory of common carriers. The relation between the owner and manager of an elevator for passengers and those carried in it is similar to that between an ordi- nary common carrier of passengers and those carried by him.^ The aged, the helpless, and the infirm are daily using these elevators. The owners make profit by them, or use them for the profit they bring. The injury from a careless use of these elevators is likely to fall on the weakest of the community. All, includ- ing the strongest, are without the means of self-pro- defendants are common carriers, a refusal to charge that defendants are not common carriers is not prejudicial. Erickson v. Barber, 83 Iowa, 367, 49 N. W. 838. § 208. 1 See post, c. — . 2 Jabine v. Midgett. 25 Ark. 474; May v. Hanson, 5 Cal. 3G0; Mor- rissey v. Ferry Co., 47 Mo. 521; Smith v. SeAvard, 3 Pa. St. 342. § 209. 1 Goodsell v. Taylor, 41 Mhiu. 207, 42 N. W. 873. (550) Ch. 15) WHO ARE COMMON CARRIEKS. § 209 tection upon the breaking down of the machinery. The law therefore throws around such persons its pro tection, by requiring the highest care* and diligence.- It has been held that the proprietor of an elevator must exercise great care and caution in the construction and operation of the elevator, even as to his employes; "' but the true rule undoubtedly is that, as to em])loyes, the owner need exercise only ordinary care and pru- dence.* 2 Treadwell v. Whittier, SO Cal. 578, 22 Pao. 2it('.: Kentucky Hotel Co. V. Camp (Ky.) 30 S. W. 1010; McGrell v. Building Co., DO Hun. M, oZ> X. Y. Supp. 509; Southern Building & Loan Ass'u v. Lawson (Tenn. Sup.) 37 S. W. 86. 3 Wise V. Ackerman, 76 Md. 375. 25 Atl. 424. * McDonough v. Lanpher, 55 Minn. 501, 57 N. W. 152. (551) § 210 CARRIERS OF PASSENGERS. ^^Cll. 16 i CHAPTER XVI. WHO ARE PASSENGERS. § 210. "Passenger" Defined. 211. Postal Agents. 212. Express Messengers. 213. Porter on Sleeping Car. 214. Drover Accompanying Stock. 21.5. Person Engaged in Business on Carrier's Vehicle. 216.. Person Assisting CaiTier's Servant. 217. Carrier's Employes. 218. Soldiers. 219. Slaves. 220. Persons Engaged in Illegal Acts— Sunday Travel. 221. Prepayment of Fare. 222. Same— Fi'aud on Carrier. 223. Same— Fraudulent Use of Pass or Ticket. 224. Person Riding in Dangei'ous or Prohibited Places. 22.5. Persons on Freight Trains. 22G. Persons on Other Non Passenger Cariying Vehicles. 227. Persons on Wrong Train. 228. When Relation Begins— Persons at Station. 229. Same— Omnibus and Street Car. 230. Same — Persons Boarding Moving Trains or Street Cars. 231. When Relation Terminates. 232. Same— Failure to Leave Train. 233. Same— Street Cars. 234. 'Same— Passenger Leaving Conveyance at Intermediate Sta- tion. § 210. "PASSENGER" DEFINED. One ■who, with the consent, express or implied, of a common carrier, rides in a conveyance pro- vided by the carrier for the transportation of passengers, is a passenger w^hile so riding, and (552) Ch. 16} WHO ARE PASSENGERS. § -U) •while on the carrier's premises going to aid from the conveyance, provided he is not in tl:e carrier's employment. It is not easy to construct a dL'tiuition of the term "passenger" which, on the one hand, will accurately include all persons entitled to the rights of passen- gers, and, on the other, exclude all those who are not.' The best that can be done in such a definition is to state broadly the essential elements on which the courts have insisted in deciding whether or not a par- ticular person is a passenger. Laying out of view for the present the question as to when the relation of carrier and passenger begins and ends, we shall first inquire as to the classes of per- sons entitled to the rights of passengers. In the great majority of cases, there can be no question on this- score, because a person riding in a passenger coach who has prepaid his fare is necessarily a passenger. The cases which have turned on the question whether a person is a passenger are in reality exceptional cases, § 210. 1 Not many detinitions of the torm have been attempted bv the courts. The following is by the supreme court of Pennsylvania: "In its legal sense, a passenger is one who travels in some public conveyance by virtue of a contract, expres.s or implied, with the car- i-ier, as the payment of fare, or that which is accepted »is equivalent therefor." I'ennsylvania R. Co. v. Price, 96 Pa. St. 25G, 2t!7, quoted lu. Pricker v. Railroad Co., 132 Pa. St. 1, 18 Atl. 983. "It is es.«;enlial to constitute one a pas.senger riding on a train of the can-ier (ipernt- ing such ti-ain that such person should be rightfully on sucli train, or should be thereon with the knowledge or consent of the carrier, or his agent in charge of the train." Woolsey v. Railroad Co.. 3i). N'eb. 703, 801, 58 N. W. 444. (55:i) § 211 CARRIERS OF PASSENGERS. (^Ch. 16 and it is to these exceptional cases that our attention must be turned. § 211. POSTAL AGENTS. A United States postal agent riding on a railroad train in the discharge of his duties, under a contract between the government and the company, occupies the position of a passenger with respect to the com- pany's liability for its negligence.^ "Essentially the relation of carrier and passenger exists in every case in § 211. ^ Mellor v. Railway Co., 10.j Mo. 4.j.j, 16 S. W. S19; Magof- fin V. Railway Co., Uri Mo. 540, 15 S. W. TO; Libby v. RaLroad Co.. S.^ Me. 34, 26 Atl. 943; Seybolt v. Railway Co., 95 N. Y. 562, affirm- ing 31 Hun, 100: Hammond v. Railroad Co., S. C. 130; Norfolk & W. R. Co. V. Sbott, 92 Va. 34, 22 S. E. 811; Louisville & N. R. Co. V. Kingman (Ky.) 35 S. W. 264; AiTowsmith v. Railroad Co., 57 Fed. 165. A railway company is under a duty to exercise due care and skill in the transportation of a postal official designated by the post- master general, as required by statute, to travel with mails carried on defendant's road. The duty to cany with reasonable skill and diligence does not ari.se out of contract, but is imposed by law. Col- lett V. Railway Co. [1851] 16 Q. B. 9S4. A different rule obtained at one time in England. Defendant had entered into a contract with the postmaster general to provide the mail coach for the transporta- tion of the mail over a certain route, and a third person had entered into another contract with the postmaster general to supply the horses and coachmen. One of the coachmen so employed was in- jured while driving the coach, by its breaking down from latent defects in its constniction. Held, that defendant was not liable to the coachman, because there was no contract between the two, de- fendant's only obligation being to the postmaster general. "The owly safe rule is to confine the rig'ht to recover to those who enter into the contract. If we go one step bej'ond that, there is no reason why we should not go fifty." Wintei-bottom v. Wright, 10 Mees. & W. 109. It is needless to add that the principle of this decision is repudi- ated by all th > American cases on the subject. (554) Ch. 16) WHO AKE PASbENGKRS. § 211 which the carrier receives and aiii'oes to transport an- other not in its employment, whether this be by con- tract between them, or between the carrier and some other person in whose ehiployment tlie person to be carried is, for the purpose of transactin<>- on the train the business of his employer. * * ♦ Whether th<' public carrier of passengers receives an ajireed com- pensation for the carriage of such persons, is compen- sated therefor by the charge for the car, or for ti'ans- jjortation of the property of which the person to be carried has charge, or receives no compensation what- ever for the carriage of such person, is a matter of no importance. It is enough that he is lawfully on the car, and entitled to transportation, to give him the char- acter of a passenger, and to entitle him to recover for an injury resulting from the negligence of the carrier or its servants, if this occurs without fault on his own part. If there be necessarily^ more danger in traveling in the coach prepared and used for the transportation of mail, even when due care is used, than in traveling in the coaches prepared and used for transportation of ordinary passengers, then it may be held that a mail agent assumes the risk of danger necessarih* thus aris- ing from the position of the mail car in the ti'ain, but he does not assume any risk of danger that may result from the negligence of the carrier or its servants." ■ {Such a postal agent is a passenger, not only while in 2 Gulf, C. & S. F. K. Co. V. Wilson, 79 Tex. 371, 15 S. W, 280. Whatever may be the prei ise .«tatu.s of a niiiil ilcik oy travel- ing on such a pa.ss of any of the rights of a passenger, where the conductor received him on the train as a passenger, with knowledge of the facts. Texas & P. R. Co. v. (Jarcia, 02 Tex. 28.^.. 2 Carroll v. Railway Co., S8 Mo. 2:51). (55!)) § 214 CARRIERS OF PASSENGERS. (Ch. 16 lug to ride free, does not thereby become a passenger, but is a trespasser.^ It has been held, however, that a shipper of cattle, who, for the purpose of enabling him to care for his stock in transit, receives a drover's pass, is not, while ac companying his stock, entitled to all the rights and privileges of an ordinary passenger for hire; but he takes passage under the implied condition that lie will submit to whatever inconveniences are necessarily inci- dent to his undertaking to look after the stock.* But a condition in a pass given to a shipper of stock that he shall be deemed an employ^ of the company while trav- eling with the stock, and that the liability of the com- pany to him shall be that of master, is ineffectual to deprive him of the rights of a passenger, except as to 8 Riclimond & D. R. Co. v. Burused, 70 Miss. 4.37, 12 South. 958. So though he intends to pay fare when called upon. Gardner v. New Haven & N. Co., 51 Conn. 143. A shipper of stock and household goods employed plaintiff to accompany him, and take care of the property. Plaintiff rotle in the box car with the stock, and paid his fare to the conductor. At the end of this conductor's division, the •car was side tracked, and the next morning was placed in another train, in charge of a different conductor and crew. Plaintiff again got into the box car, without notifying any of the train hands, and tr.ey locked the car door in the usual manner, without knowledge of plain- tiff's presence in the car. Later the goods caught fire from sparks fi'om the locomotive, and plaintiff" was burned before the door was •opened. Held that, since pl;ii..ciff was riding in a box car without the knowledge of the ti'ain hands, the relation of carrier and passen- ger difl not exist, and the fact that plaintiff had paid his fare, and that the conductor of the first train knew of his riding in the box car on the preceding day, does not alter the case. Jenkins v. Kail- way Co., 41 Wis. 112. 4 Omaha & R. V. R. Co. v. Crow, 47 Neb. 84, 66 N. W. 21. (oGOj Ch. IG) WHO ARE PASSENGERS. § 215 such risks and inconveniences as necessarily attend on caring- for stock.° § 215. PERSON ENGAGED IN BUSINESS ON CAR- RIER'S VEHICLE. As a general rule, one who, with the carrier's con- sent, goes upon its trains or boats to carry on a busi- ness ^or his own profit, is a passenger. Thus, one who rents a room on a steamboat at a stipulated monthly rental, for the purpose of selling liquor and cigars, and w^ho is entitled to his carriage and board as part of the contract, is not an employ^ of the steamboat company, but a passenger, so far as the company's lia- bility for injuries to him is concerned.^ So, one who agrees to pay a railroad company a specified sum per annum, and to supply passengers on one of its trains with iced water, for the privilege of selling popped corn on its trains, and for free passage on its regular trains, is, while traveling on the railroad under this contract, a passenger, and not a servant of the railroad com- pany.^ But a dilferent rule prevails when one seeks to can-y on his business in the carrier's vehicles without the e Missouri Pac. Ry. Co. v. Tietken (Neb.) OS X. W. .336. § 215. 1 Yeonians v. Navijintion Co.. 44 Cal. 71. 2 Com. V. Yeniiont & M. R. Co., 108 Mass. 7. A newsboy who. ■with the inipliod permission of a street-ear company, jumps on a street car to sell his papers to passengers, is not engaged or empl<\ve.l about the car, within the meaning of the Pennsylvania slatute which makes a person so employed a fellow servant wiiii the conductor, and the company is lial)le for injuries sustained by the boy by rea.son of the conductor's negligence. Philadelphia Traction Co. v. Orbann. 119 Pa. St. 37, 12 Atl. 816. V. 1 FET.CAU.PAS. 36 (•'^''l) § 216 • CARRIERS OF PASSENGERS. ' (Ch. 16 carrier's knowledge and consent. Thus, a boy riding on a train from day to day, not as a passenger or em- plo3^e, but by the connivance of the conductor, and in violation of the Ivuown rules of the company, in order to sell newspapers, is a trespasser on the train, and the company owes him no duty of care/ So, a newsboy who boards a street car to sell papers, without objec- tion by the employes on the car, is, at most, a mere licensee or A^olunteer. and not a gratuitous passenger, and must take the car as he finds it.* § 216. PERSON ASSISTING CARRIER'S SERVANT. It is generally held that one who voluntarily under- takes to pjrform service for another, or to assist the servants of another in the service of the master, either at the request or without the request of such serv- ants, who have no authority to employ other serv- ants, is a volunteer or intermeddler, to whom no duty of care is due. Thus one who goes on a train to assist the brakeman, at the request of the conductor or other train hands, is a trespasser, if the conductor had no express authority to employ him, and there was no exigenc}' which called for the exercise of implied au- 8 Duff V. Railroad Co., 91 Pa. St. 438. 4 Blackmore v. Railway Co., 38 U. C. Q. B. 172; North Chicago St. Ry. Co. V. Thurston, 43 111. App. 587. In an action for injuries to a newsboy while attempting to take passage in an elevator, it is com- petent to show^ tliat plaintiff was notified of the fact, prior to the accident, that newsboys were not allowed in the elevator, and that he could not do so, since in that event he would be a mere trespasser. Springer v. Byram, 137 Ind. 15, 36 X. E. 3(jl. (562) Ch. 16) WHO ARE PASSENGERS. § 216 tliority.^ So, one who rides on a locomotive onp;ine under an agreement with the fireman that he is to shovel coal in consideration for his ride, bnt withont the knowledge of the conductor in charge of the train, is not a passenger, but a trespasser engaged in an at- tempt to defraud the company.^ But, in the case of a bona fide passenger, the fact that he undertakes to assist the carrier's servants does not necessarily terminate the relation. Thus, a pas- senger on a street car, who, at the driver's request, as- sists in pushing the car on a side track, so as to enable another car to pass, is, while so engaged, still a passen- ger, and is neither a servant of the company nor a tres- passer or volunteer.^ So the relation of carrier and passenger is not terminated by the fact that the pas- senger alights from the train, and aids the carrier's servants in identifying and removing his baggage, nor does the act of so doing make him a servant of the car- rier.* § 216. 1 Railroad Co. t. Dial. 58 Ark. 318, 24 S. W. 500; Cooper V. Kallroad Co., 136 Ind. 360, 36 N. E. 272; Everhart v. Railroad Co.. 78 Ind. 202. 2 Wool.-; Gillshau- non V. Railroad Co.. 10 Cush. (Mar,s.) 228; Moss v. Johnson, 22 111. G33; Tuuney v. Railway Co.. L. R. 1 C. l\ 291. A painter employed by a railroad company to paint depots, bridges, tracks, and switches along the line of the road is an employe, and not a passenger, while being transported over the road to discharge the duties of his em- ployment. McQueen v. Railroad Co., 30 Kan. G89, 1 Pac. 139. A locomotive engineer, riding free on a freight train from his, home to the end of a division to take charge of his engine, is not a passenger. but an empioy§. Kansas Pac. Ry. Co. v. Salmon, 11 Kan. 83. A sectionman of a street-railway company, whose custom is to furuis'A such employes transportation to and from their work, is not a mere trespasser while riding on one of its. cars by order of his foreman, but is lawfully on the car, though not a passenger. Denver & B. P. Rapid-Ti-ansit Co. v. Dwyer, 20 Colo. 132. 36 Pac. 1106. A rail- road employe, hired by the month, was directed to go to a certain station, and there take charge of a gravel train the next day. In- stead of stopping at the point designated, he passed it, and stopped overnight at his home.— a station beyond. On returning the next morning, he was injured by the negligence of the train hands. HeW (564) Ch. 16) WHO ARE PASSKNGERS. § -17 ditor of a railroad company, whose duties ai-e to travel on the company's cars from station to station on its road, and audit accounts, is, while so traveling, a serv- ant of the company, and not a passenger.- So, one who travels on a railroad train on a free ticket issued to him as an agent of the company is not a passenger, but an emplo}'^ of the company, and the principle governing the master's liability for injuries caused by the negli- gence of a fellow servant applies to him.^ So, an em- ploy^ who uses an elevator in the employer's building, while going to and from her work, is still a servant, and not a passenger, and the employer is bound to use only ordinary care for her safety.* So, a laundress, while being conveyed, either gratuitously or as part of the contract of employment, from her house to that of her employer, in his wagon, is a fellow servant of the coachman, and cannot recover for an injury caused by that, while so traveling, he was a servant of the railroad company, and not a passenger, and hence the railroad companj' is not liable for the negligence of his co-servants. Manville v. Railroad Co., 11 Ohio St. 417. 2 Minty v. Railroad Co., 2 Idaho, 4::58, 21 Pac. («0. 8 Central R. Co. v. Hendcr.son, ()9 Ga. 715, reafiirmed in Henderson V. Railroad, 73 Ga. 71S. In an earlier case, however, it was held that a workman, employed as a tracli laborer on a railroad, is to l)c regarded, not as an employ^, but as a itasseuger, while being carrio.I on a train from tlic place of his worli to wliore he stays at night. Atlanta «& R. Air-Line Ry. Co, v. Ayers, 53 Ga. 12. This decision was influenced by several provisions of the Georgia Code. Section 2083 renders railroad companies liable for injuries to servants caused by the negligence of fellow servants; section :«):U! bars a recovery by an employe guilty of negligence; but section 3034 permits a recovery by a passenger guilty of negligence. * McDonough v. Lanpher, 55 Minn. 501, 57 N. W. 152. (505) § 217 CARRIERS OF PASSENGERS. (Ch. 16 his negligence." Tlie fact that the conductor of a train receives and treats a person riding therein as a passen- ger does not make him a passenger, if in fact he is a servant of the company." In Pennsylvania and Indiana, however, a different rule prevails, and it is held in these states that an em- ploy^ of a railroad company is a passenger while be- ing carried to and from his wort,^ especially where he hires out at a less price per day than if he had been re- quired to pay fare.^ It has also been held that a rail- road company which invites a station agent on board of its pay train to receive his wages must exercise the same degree of care and diligence for his safety, while on or leaving its train, as if he were a passenger.* So, it has been held that a detective, employed by a rail- road company to ferret out thefts from its cars, is to be regarded as a passenger, rather than as an employe, while being carried from station to station in connec- tion with his business.^" It is agreed on all hands, however, that an employe of a railroad company, entitled to ride free, whether in the service of the company or on his own private busi- B McGuirk v. Shattnck, 160 Mass. 45, 35 N. E. 110. 8 Texas & P. Ry. Co. v. Scott, 64 Tex. 549. T Gillenwater v. Railroad Co., 5 Ind. 339; Fitzpatrick v. Railroad Co., 7 Ind. 436. 8 O'Donnell v. Railroad Co., 59 Pa. St. 239, 50 Pa. St. 490. In Downey v. Railway Co., 28 W. Va. 732, an employe of a railroad company, transported to its machine shops on a work train, with other emploj'gs, in consideration of his employment, was treated as a pas- senger without discussing the question. 9 Louisville & N. R. Co. v. Stacker, 86 Tenn. 343, 6 S. W. 737. 10 Pool V. Railway Co., 53 Wis. 657, 11 N. W. 15. (5G(i) Ch. 16) WHO ARE PASSENGERS. § 217 ness or pleasure, is a passenger, and not a servant, while so traveling on his own private business, when his time is his own.^^ Thus, a brakeman who has been released from duty on a Raturdav night, and who, with the conductor's permission, undertakes a journey on that day to visit his family at the other end of his "run," is not an employe of the company while so trav- eling, but a passenger, and hence the company is liable for injuries sustained by him thro\igh the negligence of its servants.^- It has also been held that an employ^ of a railroad contractor, transported on a train furnished by the railroad company to carry the contractor's employee 11 Dojie V. Railroad Co., 102 Mass. 6G, 37 N. E. 770; McUaiiiel v.' Railroad Co., 90 Ala, 64, 8 South. 41. 12 state V. Western Md. R. Co., (« Md. 4."«. In this ca.se, the ciurt, after reviewing the cases, says: "In whatever else they may ditftT, these cases all agree upon one principle, and that is that if the plain- tiff is not at the time of the accident engaged in the actual service of the company, or in some way connected witli such service, the company is liable for the negligence of its employes." A day yard master, after being relieved from duty at (5 p. m., took a passuniger car and engine to give himself and fellow servants a free ride to and from a public meeting, without notice or permission from any officer who had authority to permit the pas.^age of .such a train. Held, that such act not having been done in the course of his employment, but for his own ends exclusively, and without real or apparent authority to carry passengers for the company, the company was not liable a.s to a passenger for injury to one on the train. Chicago, St. r., M. & O. Ry. Co. V. Bryant, 13 C. C. A. 249, 03 Fed. 909. On a prior ai)- peal in this case, it wa.s held to be a question of fact for the J my whether employes of a railroad company, carried free of charge, un a special train, from its shops to a depot, two miles away, for the pur- pose of attending a public meeting, are passei-gcrs In going .■md ic turning. Bryant v. Railway Co., 4 C. C. A. 14(!. r.3 Fed. HUT. Uiii see, contra, Davis v. Railroad Co., 4o Fed. .'43. (•">IH) § 218 CARRIERS OF PASSENGERS. (Ch. 16 from their place of residence to their worl^', and back again, and operated by the servants of the railroad company, is a passenger lawfully on the train, and not a fellow servant with the train hands. ^* § 218. SOLDIERS. A soldier in the regular army, transported on a spe- cial train, under a contract with the railroad company and the federal government, is a passenger while being so transported, so far as the company's duty to exercise care for his safety is concerned, though it merely fur- nishes the motive power and the crew to operate the train. ^ But a soldier who is being transported by ves- sel under such a contract is not a passenger, even after his discharge from the service during the voyage, in such a sense as to render the master of the vessel lia- ble for his ill treatment by the commanding officer of 13 Torpy V. Railway Co., 20 U. C. Q. B. 446. But where a car fur- nished by a railroad company for the transportation of its own em- ployes is also used, as matter of convenience, by a contractor and his employes in going to and from their Avork, an employe of the con- tractor cannot be regarded as a passenger, though the company ac- quiesced in such use of the car. He is a licensee, to whom the com- pany is responsible only for wanton and intentional injury. Mc- Cauley v. Railroad Co., 93 Ala. 35G, 9 South. Gil. A laborer in the employ of a lumber company, engaged in loading and unloading cars hauled by a railroad company, is not to be deemed a trespasser in riding on a train made up of such, cars, with the consent or permis- sion of the conductor, and hence he is not debarred from recovering for an injury inflicted by the negligence of the i-ailrcad company while so riding. Gradin v. Raihvay Co., 30 Minn. 217, 14 N. W. SSI. § 218. 1 Galveston, H. & S. A. Ry. Co. v. I'arsley. 6 Tex. Civ. Apix 150, 25 S. W. 64; Truex v. Railway Co., 4 Lans. (N. Y.) 19S. Ch. 16) WHO ARE PASSENGERS. §219- the troops; ^ nor is he a passeniior Avithin th<* iiicjm- iujj, of the rule Avhich denies conipeusalion lo passen- gers for salvage services.^ g 219. SLAVES. In the days of slavery, a question arose whether a common carrier's liability in the transportation of slaves was that of an insurer, as in the case of other property, or whether he was liable only for negligence, as in the case of passengers. It was uniformly held that slaves, in this respect, were to be treated as pas- sengers, and not as property.^ "A slave's transporta- tion, by land or water, is not paid for either by weight or measurement. He is not stowed away as goods. He eats and sleeps and has loconu)tion, and must be provided for accordingly. These attributes, however, do not elevate him above the brute, which stands in a stall or secured in a cage. He has, however, reason. In this respect, however degraded his caste, he is far elevated above the brute creation; and, as a man, he is to be carried and treated far differently from goods or brutes. He is therefore paid and cared for as a pas- senger, and it is in this character that the carrier's lia- bilitv is assumed and is to be enforced."^ 2 White T. McDononuh, 3 Sawy. 311, Fed. Cas. No. \7J>')2. 8 The Morriniac, 1 Ben. 201, Fed. Cas. No. !),473. § 219. 1 Boyce v. Anderson, 2 Pet. 150; Clark v. >[eDoniild (1827t 4 McCord (S. C.) 223; Folse v. Transportation Co., 19 La. Ann. !(«»; Mitchell V. Railroad, 30 Ga. 22. ■■: McCk'n:if,'lian v. Brock, 5 Ri<-li. Law (S. C.) 17, citing' Sill v. Knll- road Co., 4 Kicli. Law (S. C.) ir»4. § 220 CARRIERS OF PASSENGERS. (Ch. It) § 220. PERSONS ENGAGED IN ILLEGAL ACTS— SUN- DAY TRAVEL. It is now well settled that a carrier, bj its accept- ance of a passenger as a passenger, comes under an obligation to take due and reasonable care for his safety, which obligation arises by implication of law, and independent of contract, so that it may exist though the contract of carriage is illegal, or though there is no express contract of carriage.^ Hence the fact that a contract of carriage is entered into on Sun- day, and that plaintiff, when injured, was traveling on Sunday, in violation of a statute, does not preclude him from maintaining an action against the carrier for the injuries.- In the language of the New York court of appeals, "it is certainly a startling proposition that the thousands and tens of thousands of persons who travel on business or for pleasure on Sunday, upon railroads and steam and ferry boats in this state, are at the mercy of incompetent or careless engineers and servants, and that there is no remedy for loss of life or limb resulting from this negligence." ^ § 220. 1 New York. L. E. & W. R. Co. v. Ball, 53 N. J. Law, 28:',. 21 Atl. 1052. 2 DelaAvare, L. & W. R. Co. v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178; Knowlton v. Railway Co., 59 Wis. 278, 18 N. W. 17; Opsahl V. Judd, .30 Minu. 12G, 14 N. W. 575; The D. S. Gregory, 2 Ben. 226, Fed. Cas. No. 4,100. The provision of the statute (Revision N. J. p. 1227) prohibiting Sunday travel, which renders it lawful for railroad companies to i*un one passenger train over their roads each way on Sunday, makes it lawful for persons to travel on those trains. Smith V. Railroad Co., 46 N. J. Law, 7. 3 Carroll v. Railroad Co., 58 N. Y. 126, aftirmiug 65 Barb. (N. Y.) 32. (570) Ch. 16) WHO ARE PASSENGERS. § 220 In Massachusetts, however, it was at one time held that a passenger traveling on Sunday, not from neces- sity or charity, in violation of statute, rannot recover for injuries caused by the carrier's negligence while so traveling.* But the statute ^ which prohibits travel- ing on the Lord's day, except from necessity or char- ity, has been amended so as to provide that "this sec- tion shall not constitute a defense to an action against a common carrier of passengers for a tort or injury suf- fered by the person while so traveling." ® So, in Con- * Stanton v. Railroad Co., 14 Allen (Mass.) 485. But one who travels on Sunday to visit a sick friend is traveling for "charity," within the meaning of the Lord's day act (Gen. St. Mass. c. 84, §§ 1, 2), which prohibits traveling on that day, "except from necessity or charity." Doyle V. Railroad Co., 118 Mass. 195, So, the facts that the exercises of a Spiritualist camp meeting included a show to which an admit- tance fee was charged, and that some of the speakers declared that they would throw away the Bible in their search after truth, are not conclusive that a person who traveled on the Lord's day to attend tlie meeting did so unlawfully; but the question whether she did so from necessity or charity, within the exception of the act, is for the jury. Feital v. Railroad Co., 109 Mass. 398. In Bucher v. Railroad Co., 125 U. S. 555, 8 Sup. Ct. 974, it was held that the decisions of the supreme judicial court of Massachusetts that the statute prohibiting Sunday travel, except in cases of necessity or charity, will preclude a person from recovering against a railroad company for injuries sus- tained through the negligence of its servants, while traveling in viola- tion of this statute, are binding oq the federal courts; and, thongli such a construction is believed to be wrong by the federal supreme court, yet a person injured in Massachusetts while traveling on the Lord's day cannot recover in the federal courts. 6 Pub. St. Mass. c. 98* § 3. 6 McDonough v. Railroad Co., 137 Mass. 210. Tr.iv.'liii« on Sun- day is no defense to the carrier for personal injuries, slm e llie statut.' expressly excludes tliat defense. Jordan v. Railway Co., 105 Mas.s. 340, 43 N. E. 111. (571) § 220 CARRIERS OP PASSENGERS. (Ch. 16 necticut, the statutes, since 1883, do not prohibit Sun- day travel; and an action lies against a street-railroad company for negligence resulting in an injury to a pas- senger riding for pleasure on a Sunday, though Gen. St. Conn. § 15G9, still prohibits any person from en- gaging in "any sport or recreation on Sunday, between sunrise and sunset." ^ So, it has been held that the fact that a free pass was given in viohition of law does not make the person rid- ing thereon a trespasser, or destroy his right, as a pas- senger, to recover for injuries caused by the carrier's negligence.* In some of l.lie Southern states, however, during re- construction days, it was held that one engaged in the Confederate military service, injured by the car- rier's negligence while traveling from place to place, could not recover against the carrier, on the ground that he was engaged in an illegal act, to wit, rebellion against the United States.® The judges composing these courts were probably a great deal stronger as patriots than as lawyers, and these decisions are so ob- viously unsound as to require but little comment. Whatever the passenger's purpose may be on arriving at his destination, the act of traveling is certainly not 7 Horton v. Tramway Co., G6 Conn. 272, 33 Atl. 914. 8 Buffalo, P. & W. R. Co. v. O'Hara, 3 Penny. (Pa.) 190. 9 Martin v. Wallace, 40 Ga. 52; Wallac-e v. Cannon. 38 Ga. 199; Muscogee R. Co. v. Redd, 54. Ga. 33, 48 Ga. 102; Turner v. Railroad Co., 63 N. C. 522. In this last case it was said: "The act of goi-ng to the field of operations was illegal, and the contract of the defendant to aid him by carrying him to the field was an illegal contract; and, upon the supposition that both parties were rebels,— the most favor- able one for the plaintiffs,— there can be no recovery upon it." (572) Ch. 16) WHO ARK PASSEXGKRS. § 221 illogal. And even if it were, under the principle of the "Sunday cases," it cannot be considered as the proximate cause of his injuries, which are directly at- tributable to the negligence of the carrier. § 221. PREPAYMENT OF FARE. The purchase of a ticket or the prepayment of fare is not necessary to constitute the relation of passenger and carrier. Taking a seat in a vehicle provided by the passenger for the transportation of passengers, with the intention of paying fare on demand, is all that is necessary.^ Common carriers have the right to de- mand of passengers, applying for transportation, pre- payment of fare; but, in the absence of such demand, the failure to pay fare does not release the carrier from his obligation to the passenger. In such a case it is presumed that the carrier relies on the integrity and responsibility of the passenger, or on its lieu on his baggage.^ So, one who procures a ticket at a station § 221. 1 Cbattanoosa. R. & C. R. Co. v. Hn.ir;rins. S(t Ca. 4!>4. 15 S. E. 848; Florida Soutli. Ry. Co. v. Hirst. 30 I'la. 1. 11 South. r.iHi; Cleveland, C, C. & St. L. R. Co. v. Best, 68 111. Api). r..H2: Stoiior v. Pennsylvania Co., 98 lud. o84; Xorfolk & \\'. K. I'o. v. ( ; losedose's Adm'r, 88 Va. 207, i:{ S. E. 454; Houston & T. C. R. Co. v. Washinj,'- ton (Tex. (^iv. Api).) :;0 S. W. 719. 2 Hurt V. Railroad Co., 40 Miss. .391. A contract is iuii)lii'il. win-re one takes passage with a common carrier, that he shall pay a reason- ;ihl(' price or reward for being carried, .-ind that llu' carrier shall exercise due care, diligence, and skill in trai'simrting him safely and siieedily to the journey's end; and it is not nt'ccssary to pnivc an express contract or the actual payment of the reward. I'rink v. Schroyer. IS 111. 410. When a person is on a train as a passenger, tlif only inquiry is whether he is lawfully tlicre, and iKjt wln'lln-r he § 221 CARRIERS OF PASSENGERS. (Ch. 16' on his promise to pay the agent therefor on his return, there not being time before the starting of the train, and who thereafter makes such payment, is to be treat- ed as a passenger while on the train. ^ So, the mere fact that a person riding on a regular passenger train leaves his car without surrendering his ticket or pay- ing his fare, not having had an opportunity so to do, does not establish, as matter of law, that he is not a passenger, and not entitled to protection as such, on leaving the car; since it cannot be assumed that he intended to evade payment of fare, or left the car for that purpose.* So, one who gets on a street car for the purpose of becoming a passenger, expecting and willing to pay fare, is a passenger, though the con- ductor, owing to the crowded condition of the car, mav fail to collect fare from him.° So, one who enters on a passenger steamboat, in good faith, to take pas- sage thereon, is there in the relation and character of a passenger; and the owner of the boat owes to him the duty of a carrier of passengers, although no fare has been paid.*' • had paid his money for the privilege. Ohio «& M. R. Co. v. Muhling, 30 111. 9. 3 Ellsworth V. Railway Co. (Iowa) 63 N. W. .".84. 4 McKimble v. Railroad, 189 Mass. 542, 2 N. E. 97. The wife of a railroad employe, tiaveling, without a ticket and without a pass, to- the point where her husband is at work, is not a trespasser, so as to be withdrawn from the protection of the law applicable to pa.'^sengers. althouLh, before she boarded the train, the conductor stated to her that he could not take her without a pass, but that she was entitled to one. Galveston, H. & S. A. Ry. Co. v. Sneed, 4 Tex. Civ. App. 31, 23 S. W. 277. 5 Cogswell V. Railway Co.. 5 Wash. 46, 31 Pac. 411. 6 Cleveland v. Steamboat Co., 68 N. Y. 306, reversing 5 Hun, 523.. (574) Ch. 16) WHO ARE PASSENGERS. § 222 It is also entirely immaterial from what source the carrier is compensated, — whether by the jiassen^er or by some one else. This fact has clearly app: aretl in the preceding sections, touchinu the carrier's diiiies to postal clerks, express agents, etc. So, where a society hires a special train from a railway company for the purpose of an excursion, one who buys a ticket i'vom the treasurer of the society is a passenger, and the rail- way company is bound to use due care in his transpor- tation/ § 222. SAME— FRAUD ON CARRIER. A very different rule, however, obtains when it ap- pears that a person is fraudulenth' seeking to evade the payment of fare. "The rule is well settled that when one gets on a passenger train, with the deliberate pur- Where a 10 year old child pays her fare one way in getting on a ferryboat, and does not leave the boat at all. the failure to demand or pay fare on the retiu'n does not preclude a recovery for injuries sustained on the return trip by reason of the negligence of the ferry company's employes. Doran v. Ferry Co., 3 Lans. (N. Y.) 10"). Thj failure of a passenger on a ferryboat to pay fare does not relieve the carrier from liability for injuries during the trip, since she may have intended to paj', and may have had no proper demand made on her. Bartlett v. Transportation Co. (Super. N. Y.) 8 N. Y. Supp. 309. affirmed 130 N. Y. 659, 29 N. E. 1033. One who, after boarding a steamer, learns that a certain landing where he intends to stop is off the steamer's route, and that he must pay extra fare in order to .s-top there, and who declines to do so, but does not change his purpose of taking passage, is a passenger from the time he goes on board, and. as such, can hold the steamer responsible for negligence whereliy he is injured, though he does not prepay his fare or purchase a tii-ket; it being the cu.stoni for the purser to collect fares ou lio.-ii-d. The Wasco, 53 Fed. 540. 7 Skinner v. Railway Ck)., 5 Exch. 7S7. (57-)) § 2'22 CARRIERS OF PASSENGERS. (Ch. 16 pose not to pay fare, and adheres to that purpose, or if, being on the train, and having money with which he conki pay his fare, he falsely and fraudulently rep- resents to the conductor that he is w^ithout the means to pay his fare, and, by means of such fraudulent rep- resentations, induces the conductor to permit him to remain on the train without payment of fare, the rela- tion of carrier and passenger, and the obligations re- sulting from that relation, are thereby not established between him and the company, and the company owes him no other duty than not to willfully or recklessly injure him. * * * The law will do nothing to stim- ulate fraud and dishonesty, and that would be the effect of holding that a railroad company owed to one riding on the train, under the conditions named, the duties and obligations it owes to a jMissenger who has honestly paid his fare. Railroad companies are as much entitled to protection against fraud as natural persons. It is a matter of common knowledge, of which the court will take judicial notice, and of which the public are bound to take notice, that railroad pas- senger trains are operated to carry passengers for hire. They are not eleemosynary^ agencies. It is equally well known that the authority of a railroad conductor •does not extehd to the carrying of passejigers without the payment of the regular fare. But, if he had such authority, his assent obtained by the fraudulent means mentioned would confer no rights. One riding on a train by fraud or stealth, without the payment of fare, takes upon himself all tlie risks of the ride; and if injured by an accident happening to the train, not due (57G) Ch. 16) WHO ARE PASSENGERS. § -'-2 to recklessness or willfulness on Llu' pai-t of tlie com- pany, lie cannot recover." ^ So, one who clandestinely enters a locomotive --or a freight car,^ to beat his way over the road, is a trespasser, and the only duty the company owes him is not to wantonly injure him. The same rule applies to one who pays a brakeman, for his own personal use, a sum less than the regular fare, tor permission to ride in a freight car.* So, where a per- § 222. 1 Caldwell, J., in Condian v. Railway Co., 14 C. C. A. 50(5. 67 Fed. 522. To the same effect, see North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545, 13 South. IS; McVeety v. Railway Co., 45 Minn. 2G8, 47 N. W. 809; Toledo, \V. & W' . Ry. Co. v. Brooks. 81 111. 245. The fact that a person furnishes the conductor with liquor, in order to get his consent to ride on a freight train which he knows does not carry passengers, gives him no rights as a passenger. Hoehu V. Railroad Co., .52 111. App. 662. One who rides on a mixed pas- senger and freight train, without payment of fare, by the invitation and permission of the conductor, is uot a passenger. Conductors and employes in charge of a train are not clothed with authority to invite persons to take passage with them as their guests, and especially is this true of conductors and employes of freight trains. Nor does the fact that plaintiff was rendering .services on defendant's train as brakeman, with the acquiescence, knowledge, consent, and permis- sion of the conductor, render him a servant of defendant, so as to en- title him to recover damages as such for injuries caused by defend- ant's negligence. Stalcup v. Railway Co. (Ind. App.) 45 N. E. 8o:i. But the fact that a mother does not take a ticket for her child, three years and two months old, traveling with her, does not prevent the child from recovering for injuries sustained in an accident on the journey, though a statute requires all children over three years old to pay half fare, there being no intention on the part of the mother to defraud the company. Austin v. Railway Co., L. R. 2 Q. B. 4 12. 2 Chicago & A. R. Co. v. Michie, 83 111. 427. sHendryx v. Railroad Co., 45 Kan. 377, 25 Pao. 893; St. L<.uis. I. M. & S. Ry. Co. V. Ledbitter, 45 Ark. 240; I'lanz v. Railroad Co.. 157 Mass. .377, 32 N. E. :i56. 4 Janny v. Railway Co., 63 Minn. 380, 05 \. W. 45.); M.Namara v. V. 1 FET. CAR. PAS. — 37 ( O M ) § 223 CARRIERS OF PASSENGERS. (Ch. 1& son, without the knowledge of tlie conductor, gets into the caboose of a freight train, after his application for permission to ride iias been denied by the conductor, the fact that the conductor, from motives of humanity, does not eject him in the niglittime, after discovering his presence in the caboose, does not constitute him a passenger, so as to render the company liable for his death in an accident caused by a defect in the car.'"^ And one who enters a stagecoach, and declines to pay fare when requested, and who is notified to leave the coach, but who continues therein, with a threat that he will resist expulsion, is a trespasser, and not a pas- senger, and the carrier is not liable for injuries caused by its negligence." § 223. SAME— FRAUDULENT USE OF PASS OR TICKET. One who fraudulently attempts to ride on a non- transferable pass or commutation ticket issued to an- other is not a passenger to whom the carrier owes the duty to carry safely.^ This rule is founded on sound principle, since it is a fundamental doctrine of law that one who is guilty of a fraud cannot enforce any Railway Co., Gl Minn. 29G, G3 N. W. 72G; Atchison, T. & S. F. R. Co. V. Johnson, 3 Ok\. 41. 41 Pac. 641. One who bribes a freight brakeman to permit liim to ride among the freight in the freight car is not a passenger, but a trespasser. Brevig v. Railway Co., G4 Minn, 1G8, 66 N. W\ 401. 5 Atchison, T. & S. F. R. Co. v. Headland, 18 Colo. 477, 33 Pac. 185. 6 Higley v. (Kilmer, 3 Mont. 90. § 223. 1 Louisville, N. A. & C. Ry. Co. v, Thompson, 107 Ind. 442, 8 N. E. 18, and 9 N. E. 3.57; ^Vay v. Railway Co., 64 Iowa, 48, 19 N. W. 828; Handley v. Railroad Co. (Tex.) 2 Posey, Unrep. Cas. 282. (578) CI J. 16) WHO ARE PASSENCiEKS. § . 2"/. rights arising' out of bis own wroni;. Tt is nlsd in close agreement Avitli tlie rule that a caii-irr owrs im ra;;e and ra- tions being transpoi-ted on liie train, does not cliangc liis relatiun of passenger. (Jalveston, H. ^ S. A. Uy. Co. v. I'arsley. (J Tc.x. Civ. App. 150, 25 S. W. 64. 3 Illinois Cent. R. Co. v. O'Kccfc. C.:? 111. App. Kcj. 4 Lackawanna & B. R. Co. v. Chcnewitii. 52 Pa. St. .SS2. A cattle drover, whose cattle wen' l)ein;; transpdrlcd on a ir.-iiii cciiiiaininK notJiing but box cars, I'ode on liic engine, willi ilic consent of tho company's employes, and was injured liy the dei-.-iiliiieiit of Die en- gine. Held that, though tlie comiiaiiy's rule forbade persons riding on the engine, yet the comi)any was lial»U' if tlie ilrover was ignoraul (581) ■§ 224 CARRIERS OF PASSENGERS. (Ch. 16 fact tliat a person, after paying his fare, rides on the steps on the front platform of a street car does not sever the relation of passenger and carrier, and he does not thereby forfeit his right to exact the same care of tiie carrier that he would haye been entitled to exact if he had taken his place inside the car.^ A different principle, however, applies when one takes an exjiosed position on a train, with or without the knowledge or consent of the carrier's servants, for the purpose of obtaining a gratuitous ride. In such a case he is committing a fraud on the carrier, and will be treated as a trespasser, and not as a passenger.® Thus, a brakeman who has been off duty for several days, and who gets on the baggage car of a passenger train on a journey for his own private ends, and who pays no fare, is not a passenger, where he knows that the rules of the company forbid persons from riding in the baggage car.' So, one ^\ ho rides, witliout the Jinowledge of tlie railway comi>any's employes, in a car devoted to the railway mail service,^ or who rides on the front platform of the express car,'' or on the loco- of the rule, and if the company had by its conduct held out its em- ployes as authorized to cons;ent to the canying of drovers on the en- gine. Waterbury v. Railroad Co., 17 Fed. 671. 5 Willmott V. Railway Co., lOG Mo. 53.3, 17 S. W. 490. « See ante, § 222. ' Higgins V. Railroad Co., 36 :slo. 418. « Bricker v. Railroad Co.. 132 Pa. St. 1, 18 Atl. 983. ' » Ohio & M. Ry. Co. v. Allender, 59 111. App. 620. One so riding does not become a passenger by paying to the brakeman the fare demanded. Chicago & E. R. Co. v. Field, 7 Ind. App. 172, 34 N. E. 406. (582) Oh. 16) WHO ARE PASSKNGERS. § 225 motive,"' or on the footboard of the cnoiiu'/' with the knoM'ledge or at tlie invitation of the (*n«;iiUH*r, or even of the condnctor, is not a passc^nger, l)iit a trespasser, if his pnrpose is to obtain a gratnitons ride. § 225. PERSONS ON FREIGHT TRAINS. As to the statns of a person ridiniz: on a freight train, there is some conflict in the authorities. In consid- ering the subject, it Avill be convenient to take up — First, the cases where it appears tliat a railroad com- pany has made a complete separation between its par senger and freight business; and, second, cases where it appears that the company permits passengers to ride on some of its freight trains, and prohibits them from doing so on others. There can be no question tliat railroad companies have the right to make a com])lete separation between tlieir freight and passenger business. When such a separation has been made, the conductor of a freight train has no power, real or ap])arent, to accej)! i»as- sengers on freight trains, and his consent to a jxm-- son's riding on his train will not make that person a loAirginia M. R. Co. v. Roach, 83 Va.' 37.1. 5 S. E. 17.": Robertson V. Railroad Co., 22 Barb. (X. Y.) 01. One who artciiiins to get into the cab of a locomotive enjilne attached to a freight train on a rail- road used exclusively for freight, to ride for hi.s own convenience, by invitation of the conductor of tlie train, docs noi :ni|iiirc ilie rights of a pa.ssenger, even if lie inis i)rcvioiisIy ridilen ni liie loco- motive by a similar invitation, and has seen tlie .servants of tlie corpo- ration do so. Files V. Raihoad Co.. 14!) Mass. 204, 21 X. K. :U1. 11 Wilcox V. Railway Co. (Tt'X. Civ. App.) 33 S. W. 37'.»; Harklcy v. Railway Co., 37 111. Apii. 2'J3. (5S3) § 225 CARRIERS OF PASSENGERS. (Ch. 16 passenger, or render his presence on the train law- ful, so as to make the company liable for injuries caused by negligence/ But although a railwaj^ com- pany may not authorize the carriage of passengers on its freight trains, or may prohibit it, yet if its serv- ants carr}' passengers on such trains to the knowk'dge of the company's officers, authorized to make and en- force rules, or if it is carried to such an extent that such officers, in a proper discharge of duty, should know the facts, and no effort is made to stop it, then a pas- senger is authorized to presume that it is permitted by the company, and will be protected as a passenger on such trains. But it cannot be said that a disobedi- ence of orders can annul an order, except upon the principle that the officers, knowing of the violation, ratif}' it. Whatever falls short of this will not serve to confer authority upon or enlarge the powers of the agent.^ In some cases, however, it is held that, even though the rules of a railroad company prohibit the ti'ansportation of passengers on freight trains, yet on(^ § 225. 1 Eaton v. Railroad Co.. 57 X. Y. 3S2: Powers v. Railroad Co., 153 Mass. 188, 26 N. E. 440; San Antonio & A. P. Ry. Co. v. Lynch, 8 Tex. Civ. App. 513, 28 S. W. 252; St. Louis S. W. Ry. Co. V. White (Tex. Civ. App.) 34 S. W. 1042. A brakeman employed on a freight train in charge of a conductor has no implied authority to bind the ccmipany by a contract of passage, and his permission ro a person to ride does not make such person a passenger. Canditf v. Railway Co., 42 La. Ann. 477. 7 South. 601. 2 Texas & P. Ry. Co. v. Black, 87 Tex. 160, 27 S. W. 118; Burke V. Railway Co., 51 ]Mo. App. 491. The testimony of freight con- ductors on a railroad that they had, contrary to rule, themselves rid- den on freight trains without a pass, and had permitted former em- ployes of the I'ailroad to so ride, is, in the absence of knowledge thereof on the part of the otticers of the company, insufficient to (584) Ch. 1 '•) . WHO ARE PASSENGERS. § 22-> who enters the caboose attached to siuh a train, ami remains in it with the knowledge of the condnclor, and pa^'S the nsiuil (are, is entitled to protection as a ])assenger, nnless i1 is shown that he had hnowledge (if the rnle.^ Where, however, a railroad company has n(lo]>t('(l the system of carrying passengei*s on some <»l its freight trains, — the usual system in the Western states, at least, — one who goes on a freight train in good faith, supposing it to be also a train for carrying passengers, is entitled to all the rights and remedies of a passenger as against tlie company, thongh the con- ductor of that particular train is i^rohibited from cai rying passengers.* These decisions rest on the prim-: establish a custom wliicli vaU entitle au ex-eniploy6 so riding: to the riiflits of a passenger. Powers v. Kailroad, 153 Mass. 188, 26 N. E. 446. 3 Dunn V. Railway Co., 58 :Me. 187; Hanson v. Transportation Co.. 38 La. Ann. Ill; Wagner t. Railway Co., 07 Mo. 512. 10 S. W. 4S(i; :M(rGee v. Railway Co., 92 Mo. 208, 4 S. W. 739. In Dunn v. Rail- way Co., 58 Me. 187, it is said: "Tlie regulations of the dofemiani corporation are binding on its servants. Passengers are not pif- sumed to know thtnu. Tlieir Icnowlodge must be affirmatively proved. If the servants of the corporation, who are bound to know- its regulations, neglect or violate them, the principal should bear ilif loss or injury arising from sucJi neglect or violation, rather than strangers. The con)oration .selects and appoints its servants, and it should be resi)onsil)le for their conduct wliile in its employmoni. it alone has tlie liglit and the power of removal." In Wliitelicad v. Railway Co., 99 Mo. 263, 11 S. W. 751. it was held that a conductor of a freight train, who has entire charge tliereof. and wlio Is under the duty of preventing persons from riding thereon, either witJi or without payment of fare, is acting in the scope of his emph.yin.'iii when he permits a person to ride in the caboose, and the coiuimny is thereafter bound to use at least ordinary care towards sucli person. 4 l^ucas V. Railway Co., 33 Wi.-^. 41; Roeinu v. Itailway Co., 91 ^.185) § 225 CARRIERS OF PASSENGERS. (Cll. 16 pie that, by permitting- passengers to ride on part of its freiglit trains, the company has clothed its freiglit conductors with apjjarent authority to receive passen- gers, as to the general j)ublic unable to distinguish, by their general api^earance, the passenger carrying Wis. 592, 65 N. W. 506: Everett v. Railway Co., 9 Utah, 340, 34 Pac. 289. So, if a railroad company accepts a passenger's fare, and permits him to ride on a freight train, he is a passenger, within the meaning of the law, and the company is bound by the same degree of care as though it was a passenger train. International «& G. \. Ry. Co. V. Irvine, 64 Tex. 534; Edgerton v. Railroad Co., 39 N. Y. 227, affirming 35 Barb. (N. Y.) 389; Whitehead v. Railway Co., IH) Mo. 263, 11 S. W. 751. See, also, ante, § 17. One riding on a freight train on which passengers are allowed to be carried is a passenger, though he may have boarded the train without the conductor's knowl- edge or permission, and paid no fare, if the conductor, after becom- ing aware of his presence, permits him to remain. Sheiinan v. Rail- road Co., 72 Mo. 62. One who rides in a freight train which occa- sionally carries passengers, and pays his fare, is a passenger. Mo bile & O. R. Co. v. McArthur, 43 Miss. 180. Where a railroad com- pany, in accordance \^ith its custom, pertuits a drover to accompany his stock on the train, in consideration of the freight paid for the stock, the rights of the drover as a passenger are not affected by the fact that passengers are not permitted to travel on the freight train. Flinn v. Railroad Co., 1 Houst. (Del.) 469. A shipper of freight who, by direction of the company's agent, gets on the caboose of that train for the puri>ose of being transported, is a passenger, whether he has paid fare or not. Secord v. Railway Co., 18 Fed. 221. Evidence that a railroad company is accustomed to carry pas- sengers on freiglit trains, and that there were several passengers on the freight train from which plaintiff was expelled, is sufficient to show that passengers were entitled to be carried on that train. Illi- nois Cent. R. Co. v. Sutton, 53 111. 397. Where a passenger makes due in(iuiry of a ticket agent whether a freight train carries passen- gers, and is informed that it does, and gets on boai'd with the knowl- edge of the conductor, the couipauy is liable for his ejection from that train by the coii("uctor. who relusts to receive his ticket. Boehm V. Railway Co., 91 Wis. 592, 65 N. W. 506. , (580) Ch- 16) WHO AKE PASSENGERS. § 225 from the iion passenger carrying freight trains/ So, where a statute requires all railway companies to cari'y passengers on local freight trains, a peison wlio is permitted to board a freight train without objec- tion, and whose fare is accepted by the condiutor, has a right to presume that the train is a local freight, and he is entitled to all the rights of a passenger. 6 B The principles wbicn oujrlit to govern this class of cases arc- rery clearly and forcibly stated by Sherwood. J., in Beriy v. Rail- way Co., 124 Mo. 223. '^U, 25 S. W. 221), 2.->9. "From those au- thorities this principle is clearly deducible: That the conductor of a freight train cannot create the relation of passenger and common car- rier between his principal, the company, and the applicant for pa.s- sage, unless such conductor has authority so to do: that tiiis au- tlicrity may be either real or apiiareut, and, if the latter, the appli- cant must be ignorant that the authority thus apparent is not real; and that, notwithstanding such apparent authority, if the applicant be advised that the authority is morely simulated, by reason of hi!ii,' In violation of the rules of the company, he cannot become a passen- ger, either as to passage, privileges, or protection; and this because of the lack of power in the conductor to create an.v contractual relation ■between his principal and the person seeking tran.-!it. The initial question in all such cases is the simple one of agency. If the con- ductor has been by his principal held out as possessing power to make such a contract, or has apparently l>een clothed willi tlie habili- ments of such authority,— as, ex. gr., by reason of some freight trains being allowed to carry passengers, and others being forbid len s > to do, and the public being unable to distinguish by ilicir general apiK-ar- ance such passenger cairying from tlie non passenger carrying trains, — in that event a party, not being aide to distinguish one kind of train from tlie other, and unaware of any rule of the company forbid- ding it, may in good faith go on such non passenger carrying freight ti-ain, paj' his fare, and enjoy all the privileges .lud lu-otection imm-- taining to the position of passenger. The principle here ainnumced is but in conformity to one of tlie most familiar doctrines of tlie law of agency, which remains immutably tlie same, no matter what the varied circumstances or conditions in whicli it may be applied." 6 Arkansas Midland Ky. Co. v. (irillith (Ark.) :\i) .S. \V. .'..")(». (587) § 226 CARRIERS OF PASSENGERS. (Ch. 16 All the cases, however, unite in holding that one who knows that he is violating- tlie rules of the com- pany by riding on a fieight train, is not a passenger, though he has the conductor's j)ermission, and though he has jjaid fare.^ § 226. PERSON ON OTHER NON PASSENGER CAR- RYING VEHICLES. The principles above laid down are also applicable in determining whether or not a person riding on a non passenger carrying vehicle other than a freight train is a passenger. If a person, by his own solicitation or consent, is carried on a vehicle which is not used for passenger carriage, there can be no presumption that he is a ijassenger, though the owner be a common car- rier by other and different means of conveyance.^ A 7 Railroad v. Hailey, 94 Tenn. 383, 29 S. W. 367; Houston & T. C. Ry. Co. V. Moore, 49 Tex. 31; Whitehead v. Railway Co., 22 Mo. App. 60; Texas & P. Ry. Co. v. Hayden, 6 Tex. Civ. App. 745. 2(i S. W. 331. Where the eouductor refuses permission to a person to ride on a freight train, tehing him that it is contraiy to niles to so ride, tlie faet that a brakeman afterwards permits such person to ride will not constitute him a passenger. Gulf, C. & S. F. Ry. Co. v. Campbell, 76 Tex. 3 74, 13 S. W. 19. A purchaser of a round-trip ticket has no right to ride on his return trip on a freight train, in kuown violation of the company's rules, and he may be ejected there- from. Claybrook v. Railway Co., 19 Mo. App. 432. § 226. 1 Snyder v. Railroad Co.. 42 La. Ann. 302. 7 South. ."582. In this case, a railroad company, for its convenience anil that of shipper-, had constructed, at the termination of its track at Black river, an elevator or platform car, Avhich was used in lowering and raising freight on an incline track, extending from its depot on the bank to the water's edge. Held, that a shipper of fish, who undertakes to ride on the car up the incline to the depot, without defendant's cou- (088) Ch. 16) WHO ARE PASSENGERS. § 220 person riding' on a tni^boat, not designed for tlie car- riage of passengers, is not a passenger, though invited aboard the boat bv employes thereon, where the em- ployes have been forbidden to carry passengers, and passengers have never been carried on the boat with the consent of the company's representatives." One transported on a hand car which is us(m1 by the railway company for the convenience of its em- ployes, and on which the carriage of passengers is for- bidden by the rules of the company, does not occupy towards it the relation of a passenger, though he may be ignorant of such rules, if there is no custom to per- mit persons to ride on the hand car, shown to have been known to or acquiesced in by the officials of the com- pany.^ But if it is shown that a hand car is sometimes used by the company for the transportation of passen- gers, and that none of its rules are violated thereby, a person riding on a hand car at the invitation of one of the company's agents is a passenger.* So, a train sent, is not a passenger, but a trespasser, and there can bo no recov- ery for his ileatli caused by the breaking of the wire rope by which the car was operated. 2 Coolv V. Navigation Co.. 76 Tex. 353, 13 S. W. 47.">. 3 Gulf, C. & S. F. Ry. Co. v. Dawkius, 77 Tex. 22H, 13 S. W. !>,S-J: Railway Co. v. Boiling, ,59 Ark. 395, 27 S. W. 49:2; International .V G. N. R. Co: V. Cock, CS Tex. 713, 5 S. W. 635. Owing to the wreck of a freight train, a railroad company declined to nui Its passenger train. The conductor of the train, without knowledge of his supe- riors, procured a hand car to go to the scone of the wreck, and took plaintiff on board, collecting from her the usual J'aie. The li:uid car jumpe* the track, and plaintiff was injured. Held, that pl.-iiiiiitT was not a passenger, and could not recover. Cincinnati, J. tt .M. K. < o. v. Morley, 4 Ohio Cir. Ct. R. 559. 4 Prince v. Railway Co., 64 Tex. 144. A prison who ri.lcs on a liund car, at the invitation of a section lor<'iu:iii, is not ii itiissciigcr, (5SD) § 226 CARRIERS OF PASSENGERS. (Ch. J 6 master, who is the representative of the company on his division of the road in respect to all matters con- nected with the use of the road, cars of all kinds, and the service of employes, is acting- within tlie apparent scope of his authority when he directs certain persons to be transported on a hand car, though the company's rules forbid the use of hand cars for that purpose.^ One who, without invitation of an authorized agent, and without payment of fare, takes passage on a tim- ber train, which is forbidden to carry other than those engaged in the shipment of lumber, he not being of that class, is not a passenger, but a trespasser.® So, one unless he can show that the foreman had express authority from the company to receive passengers on hand cars, or that there was such a general an^i continuous custom on the part of the foreman to receive passengers as would be notice to the company and the public. Willis V. Railroad Co. (N. C.) 2G S. E. 784. 5 International & G. N. R. Co. v. Prince, 77 Tex. 5G0, 14 S. W. 171. Where a detective employed by a railroad company to ferret out thefts from its; cars is directed by an authorized agent to go at once from one station to another on its road, and, on going to the station, finds a hand car ready for his reception, on which he is requested to make the journey, it will be presumed that the hand car was furnished and tendered to him by an authorized agent of the company. Pool v. Railway Co., 56 Wis. 227, 14 N. W. 40. 6 Railroad Co. v. Meacham, 91 Tenn. 428, 19 S. W. 232. Deceased, who had been hired to go to work for a logging company, was in- structed by the superintendent to get his blanket and outfit some distance from the camp, and return and report for duty, and to ride on one of the lumber company's logging trains for that purpose. Held that, while so riding, deceased was neither a servant nor a passenger, but that he was legally on the train, and that the company owed him the duty of exercising ordinary cai-e in the management of its train, though it had never authorized the use of such train for passeuger traffic. Albion Lumber Co. v. De Nobra, 19 C. C. A. 1G8, 72 Fed. 739. Several persons got on a caboose attached to a construction (590) Ch. 16) WHO ARE PASSENGERS. § L'iT Avho enters a car attached to a provision nnd pay nai:i, kiiowiug its character, without the consent of the <(.i-- poration or its ajients, and in violation of its rules, is a trespasser.' Wliere a private corporation c*ni;a^ed in making iron and mining coal operates a railroad in con- nection with its business, the unautli(»ri/,('d act of iis yard master in permitting an excursion train from an- other road to go upon its traclv does not render it liable for an injur3' to a passenger in a collision with one of its cars, caused by the negligence of its employes. The excursion train was on defendant's track without law- ful authority, and it would be liable only iu case of wanton and willful or intentional wrong.** 227. PERSON ON WRONG TRAIN. It is a principle of law too well settled to require further elucidation that a person who, by mistake, gets on a passenger train other than the one upon which he expected to take passage, is, nevertheless, a passenger train. >\ithoiit olijection from tlie conductor. A short distance from the station the train brolve down, and the caboose had to lie left behind. The conductor demurred to these jiersons ridinj; any fur- ther, but niade no imiierative objection. Wlien the train re:iciH''2. 8 Vormus v. Railroad Co., U7 Ala. :i2(J, 12 South. 111. 1.1!) 1) § 228 CARRIERS OF PASSENGERS. ((Jll. IG upon the trjuii lie is on; and, wliile on the train, the company owes him the same duty of protection against negligence as to other passengers/ § 228. WHEN RELATION BEGINS— PERSON AT STATION. To become a passenger, and entitled to protection as such, it is not necessary that a person shall have en- tered a train or paid his fare, but he is such as soon as he comes within the control of the carrier at the sta- tion, through the usual approaches, w^ith intent to be- come a passenger.^ There can be no doubt that a car- rier is under the duty of exercising care for the safety of such a person, since he conies on the carrier's prem- ises by invitation. But, as to the degree of care that the carrier is bound to exercise towards such a person, there is, as we have seen,considerable conflict in the au- thorities.^ The supreme judicial coui-t of Massachu- setts has recently said: "When one has made a con- tract for passage upon a vehicle of a common carrier, § 227. 1 Lewis v. Caual Co., 14.") X. Y. .jOS. 40 X. E. 248, affirmiug 80 Hun, 192, 30 X. Y. Supp. 28; Cincinnati, H. & I. R. Co. v. Carper, 112 Ind. 2G, 13 X. E. 122, 14 X. E. 352; Columbus, C. & I. C. Ry. Co. V. Powell, 40 Ind. 37; International & G. N. Ry. Co. v. Gilbert, t or waiting room, with the intention of takini:: a train aiul paying his fare, does not create the relation of passen- ger and carrier, there being nothing to show that the carrier was aware of his intention to board the train.^* So, one wlio, by signals, causes a passenger train to stop at night at a point not a stopping place, and while endeavoring to enter, though with proper .•a.ni..iK is injured bv the sudden starting of tlie train, cannot re- cover for the injury, if his purpose to take passage was unknown to the conductor au4o 30 N. K. 101!). One who. without invi.atinu. e.xpress or ;,nplie; ;oes on board a steanu-r lying at her do... at a , in. when it is not open to the public, is a uumv licensee, il n..t a fesp. s.so . and cannot -recover for iujurh-s susiaiu.-d by -he '-^ •«'-;■;;; '" Ship's crew. Met,.alfe v. Stcan,ship Co.. 147 Mass. M.. H. V K_ .-l. § 229 CARRIERS OF PASSENGERS. (Cll. 16 But, if a common carrier is in the habit or has the cus- tom of receiving and discharging passengers at a phice other than a regular station, — as, near a crossing over an intersecting railroad, — a person who, knowing of such a custom, attempts to boarn. § 2:i(). 1 Merrill v. Railroad Co., KiJ) Mas.';. 'S.IS, 1 X. K. .-.48: S<'haofer V. Railway Co., 128 Mo. G4, 30 S. W. 331; Spannayh' v. Uailn.a.l C^... 31 111. App. 400. A passenger whose fare was 2.-> cciiis liainli'il tin- conductor a .?5 bill, and the conductor, being unal>le to chaiige ii, re- tained it, under an agreement that he would get it cliangeil ai llu' next station, which was also the passenger's deslinalion, and rel\M-n the balance to him. On arriving tliere, the passenger left the train, whi.h stopped 2.". or :V) minutes. The conductor forgot almnt tin- matter, and, as the train w:i< moving olT, the pa.ssenger boarded it l.i § 230 CARRIERS OF PASSENGERS. (Ch. 16 ticket at the ticket office, and who is told by the agent to get on a train, — a freight train, — and pay his fare to the conductor, is a passenger; and tlie question wheth- er he forfeits his right by climbing on the ladder of a freight car, because the train was already in motion when he got out of the ticket office, is one of fact for the jury.' The same principles apply to persons boarding mov- ing street cars. One who attempts to board a street ear while it is moving so rapidly as to make such at- tempt contributory negligence as matter of law is not a passenger, to whom the company owes extraordinary care, but it is bound only to the use of ordinary care for his safety after its employes have discovered his dan- ger.^ But a person is not to be considered a trespasser get his money. The concluctor handed him back his bill, and lie jumped off at a point not intended for passengers. Held, that his so boarding the train for the sole purpose of getting his money did not create the relation of passenger and carrier between the parties, but that he could not be regarded as a trespasser, but was a person law- fully OD the train. Pittsburgh, C. & St. L. R. Co. v. Krouse, 30 Ohio St. 222. As to contributory negligence in boarding moving train, see ante, §§ 149, 1.50. 2 Ramm v. Railway Co. (Iowa) G2 N. W. 751. One who attempts to get on the caboose of a slowly-moving train at a s,tation, in obedience to the conductor's command, is a passenger while making the attempt, and entitled to prote< tion as such. Murphy v. Railway Co., 43 Mo. App. M2. 3 Baltimore Traction Co. v. State, 78 Md. 409, 427, 28 Atl. 397. One does not become a passenger by a mere attempt on his part to board a street car while in motion. There must have been some act on the part of the carrier indicating an acceptance. Schepers v. Railway Co., 126 Mo. C>6o, 29 S. W. 712; Stager v. Railway Co., 119 Pa. St. 70, 12 Atl. 821. The failure or refusal to stop a street car does not jus- tify a person in running after it, and attempting to board it, and he (GOO) Cll. 16) WHO ARE PASSENGERS, § 2oI while getting ou a lioi'sc car in iiiotioii, llimigli in \ iohi- tiou of the compauy's rules, where the coiulntior lias waived the rule by making no objection ami givini: no warning when he sees such person making the at- tempt.* § 281. WHEN RELATION TERMINATES. A passenger on a railroad train continues to be such until the ti'ain has arrived at his destination, and he has had a reasonable opportunity, by safe and conven- ient means, to leave the car and the station.^ An ap- cannot recover for injuries sustained in tlie attempt. Basch v. Kail way Co., 40 111. App. .')So. 4 North Chicago St. R. Co. v. AN'illianis. 140 111. 275, 29 N. E. (>7l'. In this case it was said: "But we are not prepared to hold that a party is a trespasser after he gets on a horse car, even though no fan- has been collected of him before he meets with an injury, simply be- cause he has violated a rule of the company as to the mcKle of getting on." A 12 year old boy attempted to get on a moving horse car. He had placed one foot upon the step, and was holding to the railings with both hands, when the driver started the horses with a jerk, and the boy was thrown down and Injured. Held, that the boy was .a passenger. McDonough v. Kailroad Co., 137 Mass. 210. The court said: "The length of time he had been upon the car. and his position upon it, and the fact that he was changing his position, ;in(l hail not assumed his seat or taken his .stand upon the platform, are imni:iterial. Ho was in the car, and being carried by it on his journey. The in- struction that, if he was there in the exercise of due care, lu- had tin' rights of a passenger, was correct." § 231. 1 McKimble v. Railroad, l.-^O Mass. rA2, 2 N. E. !I7. But in Dodge v. Steam.'^hip Co., 148 Mass. 207, 10 .\. E. :17:5, it is said: "It has sometimes been said that a jtassenger at tiic end of his Jour- ney retains the same relation to the carrier until he has left the car- rier's premises. But there are cases which indicate that the con- tract of carriage is performed when the passenger at tlic end of his journey has reached a safe und inoper iii.ire, where persons seek- ((JUl) § 231 CARRIERS OF PASSENGERS. (Cll. IG proacli to a railway depot on premises belonging to a railroad company constitutes a part of the station grounds, and the relation of passenger and carrier does not cease until after the passenger has left the ap- proach.- So a passenger set down several hundred yards from a station is not a trespnsser in walking along the track to the station/ So the fact that a pas- senger, after alighting from a train, walks along the ing to become passengers are regularly received and passengers are regularly discharged, and that the degree of care to which he is then entitled is less than dnring the continuance of his contract, as a car- rier of goods is held to a liability less strict after they have reached their destination and been put in a freight house than while they are in transit." 2 Gulf, C. & S. F. Ity. Co. v. Glenk (Tex. Civ. App.) .30 S. W. 27S; Stewart v. Railroad Co., r,3 Tex. 289. 3 Central R. R. v. Thompson, 76 Ga. 770. Where the only egress from a railroad track near a crossing with another railroad is a highway some distance from tlie crossing, a passenger who leaves the train at the crossing, which is recognized as a stjition by the railroad company, is lawfully on the railroad track, and not a tres- passer, while walking along it to reach the highway; and the com- pany is liable for his death w-hile so walking, caused by the negli- gence of the train hands of a following train in failing to give the statutory signals on approaching the highway. Anderson v. Railway Co., 27 Ont. 441. At the terminal station of a railroad there was snow to a considerable depth on both sides of the track. A brake- man beat down the snow by the side of the car to make a place for plaintiff to alight, Avho was a woman 60 years old, and the only pa.ssenger on the train. After standing there for some time, w^aiting for an engine to remove some flat cars which obstructed her passage, she objected to remaining there any longer. The brakemau request- ed that she should pass over these cars, and leave the train that way. She did so, but in attempting to get down from the last car her clothes caught in the coupling pin, and she fell and was injured. Held, that hex* relation as a passenger had not terminated at the time of the accident, and that defendant was bound to use due care in (602) vCh. IH) WHO ARE PASSENGERS. § 231 platform with the intention of ci'0ssin«» the trark at a point where she has no right to cross, does not make her a trespasser or a licensee while on the i)latform.* So, where a railroad company, at a stopping place, pro- vides means for ingress and egress of passengers on onlj one side of its tracks, a ])assenger does not forfeit his rights as such by intentionally leaving the finin -.». the wrong side. He would still be a passenger, if, by reason of the company's neglect of ])recautions which it should have taken, he leaves the cars ui>on the wrong side, and thereby loses his life by being struck by a passing train on a parallel track." And a passenger who falls from the train through the negligence of the company, and who is knowingly left in a dazed state on the track, is not a trespasser.*^ But a passenger ceases to be such by stepping off a train while in motion, and is thereafter not entitknl to furnisliing her means to alight. Hartzig v. Railroad, 154 Pa. St. 364, 26 Atl. 310. 4 Keefe v. Railroad, 142 Mass. 2.51. 7 N. E. 874. But a passenger ceases to be such when he leaves the train at destination, and pro- ceeds in a rever.'^e direction from that which passengers usually take In departing from the station platform, and undertakes to see the engineer of the train on private business, and the company is under no duty of care to furnisli him a safe way for this purpose. Hen • drick V. Railroad Co. (Mo. Sup.) 38 S. W. 2'.)~. sMcKimble v. Railroad, 141 Mass. 463, .5 X. E. 8i>4. A passengi-r does not forfeit his rights as such by leaving the train at a pohit where the company was obliged by law to stop before oro.ssing lii.' track of an intersecting road, and at wliirh iioiiit llie company liad erected a iMiilding and ])l:iir(>nn adaini-d for tlie usi- (if passrngers. and used by them to enter its trains, as well as l.y iis worUuu-u at Its shops in the immediate vi( iniiy. Id. >■• Cincinnati, I., St. L. & C. R. Co. v. Cooper, 120 In.l. ic,;i. _- N. E. . 3-40. (<;o3) § 232 CARRIERS OF PASSENGERS. (Ch. 16 the rights of one/ And so with a passenger who has reached his destination, alighted from the train, and taken a position on the sideAvalk of a highway'/ § 232. SAME— FAILURE TO LEAVE TRAIN. The severing of the rehation of carrier and passenger is not necessarily dependent on the question whether or not the passenger has left the train. One who re- mains after a reasonable time has elapsed for him to leave the car at his destination is no longer a passen- ger; and a reasonable time is the time within which persons of ordinary prudence and care, under like cir- cumstances, get off the car.^ So, one who, having had a reasonable opportunity to leave the train at his desti- nation, remains for the unlawful purpose of assaulting a train employe, must be considered as having aban- doned the protection afforded him by his contract.^ But where a freight train stops at some distance 7 Cona. V. Railroad. 120 Mass. '}()0. 8 Allei-ton V. Railroad, 146 Mass. 241. 15 N. E. 621. § 232. 1 Imhoff v. Railway Co., 20 Wis. 362. One who has had about half an hour's time to leave the train at destination, which is also the terminus of the railroad, can no longer be con.«idered a passenger, and the company thereafter owes him no duty as such. Chicago, K. & W. R. Co. v. Frazer. r,.5 Kan. .182. 40 Pac. 923. a Chicago. R. I. &• T. Ry. Co. x. Barrett, 16 111. App. 17. One who enters a railroad station in the evening to take a train, and, after finding that the last ti-ain has gone, remains therein for his own con- venience several minutes longer, during which the station master, the usual closing time having arrived, puts out the lights, becomes at most a mere licensee, and cannot recover for injuries sustained, in leaving the station, by reason of the extinguishment of the lights. Heinlein v. Railroad Co., 147 Mass. 136, 16 N. E. 698. (004) Ch. 16) Wno ARE PASSENGEltS. § 2o3 from the station platform, and the brakenian assures a passenger about to alight that the train will stop at the platform, and that he had better not get oft" until then, the company is estoppetl from claiming that the passenger is in fanlt in not leaving the train at that time, and it is also estopped from asserting that the re- lation of passenger ceased when the train had stopped long enough to enable the passenger to leave the car.^ § 233. SAME— STREET CARS. One who steps from a street car to the street ceases to be a passenger when he alights. The street is in n > sense a passenger station, for the safety of whidi th;' street railway is responsible. When a passenger steps from the car upon the street, he becomes a traveler uji- on the highway, and terminates his relations aud rights as a passenger, and the railway company is not responsible to him as a carrier for the coudition of th«* street, or for his safe passage from the car to the side- 3 Eddy V. Wallfifp. 1 C. C. A. 435, 49 Fetl. 801. PlaintilT. travel- Inj? in charge of a horse, assumed, by a contract with the company, the duty of carin,2: for it wliile in transportation. Tlic car cuntain- ing the horse arrived at its destination about 2 a. m.. and was placed on a side trade. PlaintiCf left it for a few minutes, but re- turned, and lay down. He was subsequently injured in a collision bet^-een a locomotive and the car. Held that, th<.u«h the relation of passenger and carrier had ceased, and though tlie degree of care owing to him by defendant might not be so great, yet. if prndfui attention to his horse rendered it proper for him to he on ilie v.w. of which question the jury was the judge, he was riglil fully thero. and defendant owed him the duty of exercising ordinary ••are to avoid injuring him. Orcutt v. Railroad Co., 45 Minn. :ti:s 17 N. W. KK'iS. ((105) § 234 CARRIERS OF PASSENGERS. (Ch. IG- walk/ Thus, after a person alij'lits from a street car, on the side away from the track, in a place of safety, his relation as a passenger ceases; and when he after- wards walks around the rear of the car, and attempts to cross a parallel track, his rights are only those of a traveler about to cross a public street.^ V § 234. SAME— PASSENGER LEAVING CONVEYANCE AT INTERMEDIATE STATION. "Whenever performance of the contract, in a regular and proj^er way, necessarily involves leaving a vehicle and returning to it, a passenger is entitled to protec- tion as such, as well while so leaving and returning a^ at any other time. * * * To determine the rights of the parties in every case, the question to be answered is, what shall they be deemed to have contemplated by their contract? The passenger, without losing his^ rights while he is in those pla.ces to which the carrier's care should extend, may do whatever is naturally and ordinarily incidental to his passage. * * * Wher.^ one engages transportation for himself by a convey- ance which stops from time to time along his route, it § 233. 1 Creamer v. Railway Co., 156 Mass. 320, 31 N. E. 391: Smitt V. Raihvay Co., 29 Or. 539, 46 Fac. 13G. 2 Buzby V. Traction Co., 126 Pa. St. 559, 17 Atl. 895. See, also, riatt V. Railroad Co., 2 Hun, 124. But in Burbridge v. Railway Co., 36 Mo. App. GC9. it was held that where a cable railroad has a rule , in force that, at a junction point, east-bound trains shall clear the .iunction before west-boimd trains shall approach on a parallel track, one who leaves an east-bound train is still a passenger, in so far that he is entitled to protection against the negUgent movement of defendant's trains on its north track, while he is crossing it, on hl& way to the sidewalk. (606) Cll. 16) AYHO ARE PASSENGERS. § 234 iniiy well be implied, in tlie absence of anything; to the contrary, that he has permission to alif;ht for his own convenience at any reiiiilar stoi)]»in,u- phu-c fitr passen- gers, so long as he properly regards all the carrier's rules and regulations, and provided that his doing so does not interfere Avith the carrier in i he performance of his duties." ^ Thus a passenger does not cease to be such while going to and returning from a ])lace of re- freshment at a station where the train has stopped for the purpose of enabling passengers to jtaitake of a meal.- So one who must necessarily change cars to ar rive at his destination, and must pass over tne inter vening track of the carrier in crossing from one train to another, continues to be a passenger, and is entitle! to the degree of care that the carrier owes passengei-s. ' So, where the progress of a passenger train is obstruct- ed by a wreck of a freight train, and the passengers ai-e transferred to the other side of the wreck to await an- other train, the passengers, while so waiting, are still passengers, and are entitled to all the rights of passeu gers.* Even where a passenger leaves a train at an iiitcniie- diate station to speak to some one on the platform, the § 2.34. 1 Dodge v. Steamship Co., 148 Mass. 207. 10 N. K. ."iT.".. A passenger on a railroad train does not lose his character as such by alighting from the cars at a regiilar station from motives of either business or curiosity, although he lias not yet arrived at tlie tenninns of the journey. Parsons v. Railroad Co., 113 N. Y. .'{.Vi, 21 N. K. 145; Id., 37 Hun. 128. 2 .Teffersonville, .M. i^- I. R. Co. v. Riley, 30 Ind. .'>(i8; Atchison, T. & S. F. R. Co. V. Shean, 18 Colo. 308, 33 Pac. 1(»8. ."■ Baltimoie & O. R. Co. v. State. (iO Md. 44!t. « Conroy v. Railway Co. (Wis.) 70 N. W. 48li. ((•,07) ;§ 234 CARRIERS OP PASSENGERS. (Clj. IG railroad company must exercise ordinary care to en- able liim to board the train in safety.^ In the case of passengers on vessels, the rule seems to be very liberal. It has been held that a passenger for hire, traveling on a vessel, has a right to go ashore at an intermediate landing place, even for the purpose of buying tobacco,*' without forfeiting his rights as a passenger to safe egress and ingress/ So a passenger on a steamer may properly go on shore to get his breakfast at an interme- n) § 235 CARRIERS OF PASSENGERS. (Ch. 17 Sometimes, however, it is difficult to distinguisli a gratuitous passenger from a trespasser, especially in the cases of children riding free on street cars. The true rule would seem to be that a child who rides on a street car with the knowledge and permission of the person in charge, and without any intention to evade payment of fare, is a passenger, and not a trespasser, though he has paid no fare.* If tliere is no conductor on the car, the driver's consent or invitation will make a child so riding a passenger; ° but where there is a conductor, and the driver is charged merely w^ith the duty of driving the team, mere knowledge of the driver of a boy's presence on the car, and his failure to make the custody of any person, is not a passenger, and the company need exercise only ordinary care for her safety. Atcliison & N. R. Co. V. Flinn, 24 Kau. 447. These cases do not seem to be correctly decided. If the conductor of a train has authority, either real or ap- parent, to receive passengers on his train without payment of fare, then such persons are passengers, and entitled to all the rights of passengers. If the conductor has no such authority, then a person ■riding free would seem to be engaged in an attempt to evade pay- iment of fare, with the connivance of the conductor, and the carrier is under no duty to exercise care for his safety. 4 Muehlhausen v. Railroad Co., 91 Mo. 332, 2 S. W. 315. 6 Wilton V. Railroad Co., 107 Mass. 108, 125 Mass. 130; Metropoli- tan St. Ry. Co. V. Moore, S3 Ga. 4.53, 10 S. E. 730. Since it is within the scope of the authority of the conductor and driver of a street car to receive passengers and let them off, the act of the driver in per- mitting a boy to ride free ou the car is binding on the company, and the boy is a passenger, and not a trespasser. Brennan v. Railroad Co., 45 Conn. 284. A small boy riding on a street car, free of charge, with the consent of the driver, is a passenger, and entitled to pro- tection as such. Buck v. Power Co., 108 Mo. 179, 18 S. W. 1090. Such a child is not a trespasser, and tlie company owes him the duty of exercising care for his safety. Evansville St. Ry. Co. y. Meadows. 13 Ind. App. 1.55, 41 X. E. 398. (G12) Ch. 17) TO WHOM LIABLE AS PASSENGERS. § 2o6- any demand for fare, or to take any measures to ascor- tain whether the boy intended to pay fare, are not an assent to the boy's riding- free of charge, so as to change his relation from a trespasser stealing a ride to that of a gratiiitons passenger.^ § 236. DUTY TO INVITED PERSONS, LICENSEES^ AND TRESPASSERS. The owner or occupant of real estate owes a dutjr of exercising care towards a person who comes on his premises by invitation, either express or implied; but, as to a licensee or a trespasser, he is under no such duty, but only under the duty of abstaining from willful and wanton in- jury as to trespassers, and, in ad'dition, of giv- ing a licensee notice of hidden dangers or traps. The distinction between the duty owing to a licensee and a trespasser is comparatively unimportant in tlie class of cases with which we have to deal. The inijxjr- tant question is. Towards what persons coming oniti* premises is a railroad company under the duty of exer- cising care? Now,it is agreed on all hands that there is a wide differem e between the obligation which a p rso.i or corporation owes to a mere licensee, and the duty- which the same person or corporation owes to one who. conies upon his premises by an invitation, either ex- press or implied. In the first case, it is geiuM-ally ad mitted that the licensee comes at his own risk, and en joys the license subject to its concomitant risks or per e Wynn v. Itaihvay Co., 91 Ga. 344, 17 S. E. G49. § 236 CARRIERS OF PASSENGERS. (Ch. 17 ils, and that in such case no duty is imposed upon the owner or occupant to keep the premises in safe and suitable condition for his use. In other words, the licensee takes the premises as he finds them. But where the owner, directly or indirectly, induces or in- vites persons to enter and pass over his premises, he thereby assumes an obligation that they are in a safe condition and suitable for such use; and, if a person be injured by his breach of such obligation, the owner is liable therefor in damages/ All the property of a railroad company, including its depot and adjacent yards, are private property, on which no one is invited, or can claim the right to enter, save those who have business with the railroad. As to this class of persons, the railroad company is bound to exercise care in the construction and maintenance of all portions of its platforms and approaches, station grounds, and waiting rooms to which the public do or would naturally resort. But the rule of obligation is essentially different when the asserted rights of mere idlers or sightseers are presented. To such the corpo: ration owes nothing beyond the observance of the du- ties of good neighborhood. Among these may be prom- inently classed the universal duty of doing no willful or wanton injury, and of erecting or continuing no nui- sance, trap, or pitfall from which personal injury is likely to ensue.' § 236. 1 Nichols' Adm'r v. Railroad Co., 83 Va. 99, 5 S. E. 171; Indiana, B. & W. Ry. Co. v. Barnliart, 115 Ind. 400, 408, 16 N. E. 121. « Montgomery & B. R. Co. v. Thompson, 77 Ala, 448. (614) Ch. 17) TO WHOM LIABLE AS PASSENGERS. § -Ot § 237. SAME-ESCORTS OF PASSENGERS. One who escorts a passenger to a station or t.. a s«nit in a train is not a mere trespasser, to whom the coiii- panv owes no duty except to abstain from willful inju- ries; nor, on the other hand, is he a passenger towards whom the company is bound to the exercise of the high- est degree of care and skill; but he is on the company's premises on its implied invitation, and it is bound' to exercise ordinai-y care for his safety/ This impbod in I 237 1 Little Rock & Ft. S. R. Co. v. Lawton, 55 Ark. 4-JS^ IS S W 543; Cherokee Packet Co. v. Hilson. 95 Teun. 1, 31 S. ^^^ .3.; Missouri, K. & T. Ry. Co. v. Miller, 8 Tex. Civ. App 241, 2. S. VV^ 905; Hamilton v. Railway Co., G4 Tex. 251. This rule also pnna.l.s in Canada and in New South Wales. York v. Ca,Kul.. .c A. b^ Co 22 Can. Sup. Ct. 167; Trice v. Xavigahoz. Co L. R. 5 N. S. ^a.e 137 But in Watkins v. Railway Co. (187.) 46 Law J. C. P. 81.. .t was said that the duty of a railway company towards those who >n practice they allow to aeco..pany passengers, in order to see tho.n off bv ti-ams, without asking special permission, is "ot -vor H.an towaMs those whom they accompany. So, in Evansvdle & H K CO V. Athon, 6 Ind. App. 205, 33 N. E. 469, it was sa.d that a father who assists his invalid daughter on a train is a pa.s.^ng.. whi^e so assisting and departing. In Xew .ork, C. & St. L. R Co V Mushrush, 11 Ind. App. 192. 37 N. K. 9..4. and liS N. E. 8.1 U is said that the duty of a railroa.l company to keep its ^t'^t.on p a - form in a reasonably safe condition extends to tho.^e who co >e o meet friends, or welcome the coming or speed the parfng guo.t. In " nin V. Board of Land and Works, 6 Vict. Law Rop. 31... u was ^d^hat railway proprietors owe a duty to friends of a passenger, going to a station to receive hin. to pn.t.ct tl-.en. from -;>"-«■ !us place not only in the way provid.nl for access to the sta ion. bnt alsoranV other way of access allowcl to be .onunon.y us.d by per- ^^resoriing to th. station. One not a friend . an i.-.n.n^^^^^^^^ senger, but accompanying friends go.ng tu nu.-t Inn.. 1> u..nl..l the same protection. (t.l.>) § 237 CARRIERS OF PASSENGERS. (Ch. 17 vitation and consequent duty to tliose who go to wel- come the coming or speed the parting guest is founded on the amenities and social observances which are an inseparable concomitant of modern railway and pas senger traffic. The duty to exercise ordinary care extends to one who, having an appointment with a passenger, enter.5 the company's premises intending, in case the appoint- ment is met, to become a passenger himself.^ So, a no- tice forbidding all persons not having business with tli ^ railroad company from entering its cars does not apply to one who escorts a female passenger to a seat on the train. ^ But the rule that it is the duty of a railway company to exercise ordinary care for the safety of persons ac- companying an intending passenger, who is about to take a train in the course of regular passenger traffic, does not extend to one who, in the nighttime, goes on the freight platform to accompany a person who is about to leave on a train in charge of live stock. "A railway company has a right to expect that an arriving passenger or an intending one may be met or accompa- nied by friends, and so it may be said that, in virtue of the relation between the passenger and the company, there is an implied invitation in their case, and that it owes them a corresponding duty. Not so, however, in 2 Texas & P. Ry. Co. v. Best. 66 Tex. 116, 18 S. W. 224. 3 Little Rock & Ft. S. Ry. CJo. v. Lawton, 55 Ark. 428, 18 S. W. 543. But, if railway employes offer to assist a woman to a seat, lier escort has no right to enter the coach for that purpose, and the rail- way company owes him no duty, except to refrain from willful anti wanton injury. Id. (016) Ch. 17) TO WHOM LIABLE AS PASSENGERS. § 2^7 the exceptional case, in freiuht traffic, where hidies, «n- others even, attend one who is about to leave in a freight car, riding in charge of live stock, — one who cannot be said to be a passenger except in a very lim- ited and restricted sense." * So, also, the rule that trains must be stopju'd a r(»a- sonable length of time for all passengers who desire to stop at the station to get on and oif does not api>l.v t.* one going on the train to escort a departing passenger to a seat, unless the company knows that he is merely an escort, and does not intend to bectune a passenger.' 4 Dowd V. Railway Co., 84 Wis. 105. 54 N. W. 24. Wlieie a pas- senger train stops temporarily several hundred yards from tin- (h'pot. because its way is obstructed by a freight train, one who Icaws ihr depot, and gets on the passenger train, for the purpose of niecting his wife and child, is not a passenger, and cannot recover for inju- ries sustained by falling into a culvert while stepping from the train. Stiles V. Railroad, 65 Ga. 370. 5 Lucas V. Raih-oad Co., 6 Gray (Mass.) 64; Coleman v. Railroail Co., 84 Ga. 1, 10 S. E. 498; Griswold v. Railway Co.. 64 Wis. 652. 26 N. W. 101; Missouri, K. & T. Ry. Co. v. Miller. 8 Tex. Civ. App. 241, 27 S. W. 905; Texas & T. Ry. Co. v. Mcciilvary (Tex. Civ. App.) 29 S. W\ 67; Dillingham v. Pierce (Tex. Civ. App.) 31 S. W. 2(>:'.. The mere fact that a train fails to stop tlie usual and reasonable time to enable passengers to get on and off does not constitute neg- ligence as to a person who gets on to assist a passenger, and who is injured in getting off after the train has started. International & G. X. R. Co. V. Satterwhitf (Tex. Civ. App.) 38 S. W^ 401. It seems to have been held at one time in Missouri that an escort of a pas- senger is entitled to have sufficient time to accompany the passenger to a seat, and then to leave the car. Doss v. Railroad Co. (1875) 59 Mo. 27; Stoneseifer v. Sheble, 31 Mo. 243. But those cases would seem to be overruled by Yarnell v. Railway Co., 113 Mo. 570, 21 S. W. 1, where it was held that a railroad company dues not owe a duty to afford a reasonable opportunity to alight to a person escort- ing a pas.senger on a train, unless it has knowledge of the fact thai .617) § 237 CARRIERS OF PASSENGERS. (Ch. 17 The duty to afford such an escort a reasonable oppor- tunity to leave the train is dependent upon the knowl- edge of his purpose by those in charge of the train; for, without such knowledge, they may reasonably con- clude that he entered to become a passenger, and may cause the train to be moved after allowing him a rea- sonable time to get on board. The law could not, in reason and justice, impose as a duty the doing of that which, in the light of everything known to the train- men, would not appear necessary or proper, nor hold that the cars should be stopped when there is no reason to stop them.® But when a person is permitted, with- out objection, to enter a car in a railway train, at a sta- tion, to assist a passenger to a seat, and before entering he states to the conductor that he intends to get off, it is the duty of the conductor to so regulate the movement of the train as to give him a reasonable time to leave the car without injury.^ So, where a passenger is in so enfeebled a condition as to require the assistance of others to carry him on the train, the train hands, who observe these facts, owe an obligation to those assisting and carr^^ing him into tlie car to stop the train a suffi- cient length of time to give them a reasonable oppor- he is merely an escort, and does not intend to become a passenger. In Keoknli Pac-liet Co. v. Henrj-. 50 111. 264, it was held that there is no presumption that persons going aboard a steamboat at a regu- lar stopping place do so with tlie intention of becoming passengers, BO as to relieve the company from the duty of giving to a person accompanying a female passenger on the boat proper tune and facili- ties to get ashore. 6 Little Hock & Ft. S. Ry. Co. v. Lawton. 5.5 Ark. 428. 18 S. W. C43. 7 Missouri. K. & T. R. Co. v. Miller (Tex. Civ. App.) 39 S. W. 583. (618) €h. 17) TO WHOM MABLK AS PASSEXOERS. § 238 tiiiiitj to leave.' So, where a conductor of a street car is informed that a person boarding the car with another is not a passenger, and he sees such person turn, and start to leave the car, it is a question for the jury wh tli er he was guilty of negligence in starting the car be- fore she got off.* § 238. SAME— PERSONS HAVING BUSINESS AT STATIONS. It is the duty of a railroad company to exercise ordi- nary care to keep its station houses and platforms in a safe condition, and to furnish safe and easv ingress and egress to and from them for the benefit of all persons who have business at such station houses.^ This duty 8 Louisville & N. R. Co. v. Crunk, 119 Ind. 542, 549, 21 N. E. 31. 9 Rett V. Railroad Co. (Super. N. Y.) 1 N. Y. .Supp. 518. The fact that a person who attended a child in boarding a street car on a particu- lar occasion, for the purpose of placing in the car small packages which the child was to have in charge, had frequently before done the same thing at the same place when the same driver was in charge, Is admissible in evidence, as tending to show that the per- son on this particular occasion intended to get off after depositing the packages, as she had done on previous occasions, and did not in- tend to remain on board, so as to justify the driver in starting the oar suddenly while she was engaged in getting off. Houston v. Rail- road Co., 89 Ga. 272, 15 S. E. .323. § 2.38. 1 St. Louis, I. M. & .S. Ry. Co. v. Fairbairii, 4.S Arli. VM. 4 S. W. .50. There is no doubt that a higher degree of care and dili- gence is required towards a passenger than towards a stranger right- fully on the premises of a railroail company. In the former case, the utmost care and skill are required: in tlie other, only such dill gence as would be exercised by piudciit, skillful, and iliscreet men. having due regard to the ilglits and demands of llie public, and a proper desire to protect life and property. Illinois Cent. R. Co. v. Phillip.s, 55 111. 194. § 238 CARRIERS OF PASSENGERS. . (Ch. 17 it owes to a person who goes to a station to mail a letter on a mail train,- or to ijrocure a time-table to see wheth- er there has been a change in the running time of trains; ^ to a hackman conveying a passenger to a depot for transportation; * and to a consignee of goods who goes on its premises to assist in the delivery of his goods, with its consent. ^ So, where the direct and usual path to a railroad company's depot lies over a side track on which freight cars often stand, and it is the custom of the comjiany to leave an opening between them, so as not to obstruct the path, and this path is habitually 2 Hale V. Railroad, GO Vt. G05. 15 Atl. 300. But in Spence v. Rail- way Co. (1896) 27 Ont. 303, it was held that one who goes on the prem- ises of a railwaj' company to post a letter in the postal car of a train is a bare licensee, who goes on the premises solely for his own use, without any reciprocal advantage to the railway co.npany; and hence the company is not liable to him for injuries sustained because of a defect in its premises, unless in the nature of a trap. 3 Bradford v. Railroad, 160 Mass. 392, 35 N. E. 1131. 4 Tobin V. Railroad Co., 59 Me. 183. c Holmes v. Railway Co., L. R. 4 Exch. 2.!)4, L. R, 6 Exch. 123. Nor is a consignee sk3 assisting in the delivery of his goods a servant of the carrier, within the fellow-servant rule. Wright v. Railway Co., L. R. 10 Q. B. 298, 1 Q. B. Div. 252. But under Act Pa. April 4, 1868. which provides that any person injured while lawfully engaged or employed on or about the premises or cars of a railway company of which he is not an employe shall have the same rights as an em- ploye, a consignee who goes to a railroad depot to receive his goods takes the risk upon himself. Gerard v. Railroad Co., 12 Phila. 394. A Sitock owner, or a friend or agent for him, may rightfully go upon the platform at a railroad station to examine a notice of killing stock by trains, which the statute requires to be posted there; and if, in the exercise of ordinary care, he is injured from a defect in the plat form which could have been avoided by ordinary care ot the com- pany, he may recover for the injury. St. Louis, I. M. & S. Ry. Co. v. Fairbairu, 48 Ark. 491, 4 S. W. 50. Ch. 17) TO WHOM LIABLE AS PASSENGERS. § 239 used by the patrons and employes of the company, with the knowledge and withont the disapproval of the officials, it may be assumed that the company invites persons having business at the depot to use tliat i)ath between the cars; and if, by a sudden, unsignaled art of the company's servants, the cars are run together, thereby crushing a person who was on his way to Ww depot, the company is liable in damages for the injury." § 239. SAME— LICENSEES AT STATIONS. One who goes to the station house of a railroad com- pany, not for the purpose of any business, or to meet expected friends, or to see others depart, but as a mere spectator, for his own pleasure and convenience, is there at his own risk and peril, and cann t recover dam- ages for personal injuries received in consequence of a defective platform or station grounds. To entitle such a person to recover, he must show such gross and wan- ton negligence on the part of the company as is equiva- lent to intentional mischief.^ Within this class is in- cluded a person who goes to a station for shelter from a storm; - one who goes to a telegraph ottice, not a station, maintained by a railroad company near its track, to pay the operator a friendly visit; ^ one w li<» goes on the land of a railroad company, near a iiiMil crane, to witness a catch of the mail pouch by ilir pos- tal clerk on the train while it is in inntion; ' and one 6 Nichols' Adm'r v. Railroad Co., S3 Va. O:), 5 S. E. 171. § 2;iO. 1 Burbauk v. liailroad Co., 42 L:\. Aim. ll.'<;. S SdUlli. TiSi). 2 T'itl.sbnrgli. Ft. W. & C. Ry. Co. v. Kiii-liaiii. 211 olil.i SI. lirA. « Woohvine's Adni'r v. Railway Co.. ;;•; W. Va. [i'2U. 1.". S. lO. 81. * Poliug V. Railroad Co., \iS W. Va. G45, 18 S. E. 7S-_'. (0-1) § 240 CARRIERS OF PASSENGERS. (Cll . 17 who goes to a railroad station to see and hear the pres- ide']t of the United States, who is being carried over the railr(jad on a special excursion train.^ § 240. SAME— TRESPASSERS ON TRAINS. The only duty due by a railroad company to one who is an intruder or a trespasser on its train is to refrain from wantonlv, willfully, or intentionally injuring him. It is not liable for an injury caused by the mistake, in- adyertence, or negligence of its employes.^ Thus, a trespasser riding on a hand car at night cannot com- plain of the company's failure to haye a headlight on an approaching locomotive; ^ nor can one who climbs on a moving freight car recover for injuries sustained in being thrown off b}' reason of a concussion of the car with another.^ But, after discovering that a trespaf-s e Gillis V. Ilaihoad Co., .".9 Pa. St. 129. § 240. 1 Railroad v. Meacliam, 91 Tenii. 428, 19 S. W. 2:32; Chicago, B. & Q. R. Co. V. Mehlsack, 181 111. Gl, 22 N. E. 812, 44 111. App. 124; Darwin v. Railroad Co., 23 S. C. 531. "To the trespasser on its trains, just as to trespassers on its track, the railroad company owes precisely the same duty which it owes to all mankind; and this duty is exactly what each man owes to eveiy other, viz. abstention from wanton and willful injury in the use of one's property." Alaba ra G. S. K. Co. V. Harris, 71 Miss. 74, 14 South. 263. One who rides on a freight train, with the intention of stealing a ride, without invitation or sufferance of the train hands, is a tresiiasser, to whom the com- pany owes no duty, save not to willfully or recklessly injure him after discovering him on the train. Farber v. Railway Co., IIG Mo. SI, 22 S. W. 631. Although a person stealing a ride on a freight train is a trespasser, the servants of a railroad company have no right to reck- lessly and wantonly inflict injury on him. Planz v. Railrcad Co., 1.37 Mass. 377, 32 N. E. 356. As to ejection of trespassers, see post, § 359. 2 Eastern Kentucky Ry. Co. v. Powell (Ky.) 33 S. W. 629. 3 Buckley v. Railroad Co., 43 N. Y. Super. Ct. 187. A trespasser (622) Cll. 17) TO WHOM LIABLE AS rAS>r.N(, IKS. § 240 er or volunteer on its road or cars has plftced liinisflf in a position of danger, tlie servants of a railroad company must exercise reasonable car;- to avert the danger/ In some states, however, it is held that a railruatl eoni- pany owes the duty of exercising care towards a pia-son wrongfully riding on a train, with the knowledge and consent of the conductor; ^ but the true rule wmild seem to be that such knowledge does not impose on i h" company the duty of exercising care for his safety.® In wlu) was injured Avhile trying to climb upon a car in a slowly moving freight train, whicti he was prevented from doing by a braki'inau. cannot recover damages from the railroad company, unless the injury was caused by the use of unnecessary force by the brakeman. Louis- ville & N. R. Co. V. Bernard (Ky.) 37 S. W. S41. A yard master who jumps on the aide ladder of a passing freight train, and in that posi- tion rides into the yards of another company, to ascertain whether any cars are to be transferred, is, while so riding, a trespasser; and the other company is not liable for injuries sustaiued by him in its yards, caused by being struck by a switch, and thrown from his posi- tion. Grunst v. Railway Co. (Mich.) 67 X. W. :«o. 4 Pettit V. Railway Co., 58 Minn. 120, u'J N. W. 1082; Id.. 02 Minn. 530. G4 N. W. 1019. s See ante, § 220. In Berry v. Railway Co., 124 Mo. 224, 2.". S. W. 229, it was held, per Black, C. J., and Brace and Barclay, .I.J., that a railroad company owes the duty of exercising ordinary care to per- sons on a construction train with the knowledge and consent of the train hands, thoiigh they paid no fare, and are not entitled to tlie protection of passengers. It was .said: "I'ersons in charge of a train are not ordinarily under any duty to look out for trespassers; but. when a person is known to be on a train liy thoso in charge of it. they are in duty bound to use ordinary care to avoid injuring iiinj. though he may be a wrongdoer. Knowledge of the presence of tlie wrongdoer carrits this duty. A failure to uscordinaiy care u-ider su.h circumstances is but little short of willful injury." Sherwoo.1. Cantl. and Burgess, JJ., dissented, and held that to i>ersons not i^asscngers. 6 McXamara v. Railway Co., 61 Minn. 29(i, 63 N. W. 72G. § 241 CARRIERS OF PASSENGERS. (Ch. 17 Iowa, a statute ' renders a railroad company liable for "''all damages sustained by any person * * * in con&equence of the neglect of agents, or by any misman- agement of engineers or other employes." Under this statute, willfulness or an actual intent to injure is not necessary to render the company liable for injuries to a person wrongfully on one of its trains.* g 241. SAME— TRESPASSING CHILDREN. As a general rule, an owner of property is under no different a duty towards trespassing children than to- wards trespassing adults. One difference, however, ex- ists. It is this: The owner of dangerous machinery, who leaves it in an open place, though on his own land, where he has reason to believe that young children will be attracted to play with it, and be injured, is bound to use reasonable care to protect such children from the danger to which they are thus exposed.^ The line of argument adopted in support of this rule is that such but trespassers on its trains, tlie company is not liable except for gross negligence and willful wrong. Id. 339. 7 Code Iowa, § 1307; McClain's Code 18S8, § 2002. 8 Way V. Railway Co., 73 Iowa, 4G3, 35 N. W. 525. In Texas & P. Ry. Co. V. Watkins, 88 Tex. 20, 24, 29 S. W. 232, it is said: "The doctrine held by some courts, that a railway owes no duty to a tres- passer wrongfully on its tracks, has, never been adopted in this state, but has been expressly repudiated. It is the duty of the servants of a railway company operating itsi trains to use reasonable care to dis- cover persons on its track, and a failure to use such care is negli- gence on the part of the company, for which it is liable in damages for an injury resulting therefrom, unless defeated by evidence of con- tributory negligence on the part of the person injured." § 241. 1 Lynch v. Nurdin, 1 Q. B. 29; Railroad Co. v. Stout, 17 ^\n]\. 657; Keffe v. Railway Co., 21 Minn. 207. (024) Ch. 17) TO WHOM LIABLE AS PASSENGERS. § •_>41 machinery, being attractive to young cliildivu, pivs(Mit.s to them a strong temi)tation ta phiy with it, and thus allures them into a danger whose nature and (-xti-ut they, being Avithout judgment and discrt-tion. .an uri- ther apprehend nor appreciate, and against whidi thy cannot protect themselves; that such children may be said to be induced by the owner's own conduct to come upon the premises; that Avhat an express invitation is to an adult an attractive plaything is to a vh\U\ of ten der years; that, as to them, such machinery is a hid den danger, — a trap.^ This principle has been generally applied against railroad companies in what are known as the "Turn-Ta- ble Cases." ^ Some of the courts have applied the same principle to children riding on street cars and trains. "The duty resting upon a street-railroad company t<» employ the proper precautions to avoid injury to chil- dren entering its cars would comprehend tiie exeirise of reasonable diligence to guard and shield from dan- ger a child not of the age of discretion to understand and appreciate the peril of riding in an unsafe and ex- posed position. Accordingly, it would generally b«* negligence to allow' such a child to ride upon the steps of the front platform wdien his presence in a situation thus exposed to danger is actually known, or the eir- cumstances are such as would nuike failure t(» note his peril palpable neglect and inattention to 2. V. 1 FET.CAR.PAS. 40 {(ili/i) § -41 CARRIERS OF PASSENGERS. (Cll. 17 car." * So, it has been held that the train hands of a railroad company who permit a passenger car to stand on a side track, within a few feet of a depot, must exer- cise ordinary care to ascertain whether there are any trespassing children in it before they back against oth- er cars for the purpose of coufjling them together; and failure to exercise care for this purpose renders the company liable for injuries sustained, in the concus- sion, by children inside the car, though the train hands did not know^ they were there.^ It has even been held that a railroad company is liable for injuries to a tres- passing boy who climbed on a moving train at a public street crossing, if its employes could have ascertained bis position of danger by the exercise of ordinary care.* 4 Wynn v. Railway Co., 91 Ga. 344, 17 S. E. G49. In .some of the cases the principle has been so applied as to require the servants of the carrier to exercise care for tlie safety of a child riding on the vehicle by their invitation. New Jersey Traction Co. v. Danbech (N. J. Sup.) 31 Atl. 1038; Cook v. Navigation Co., 76 Tex. 353, 13 S. W. 475. Where a child, deaf and dumb, and 10 years of age, is led to frequent the cars of the companj', in ignorance of the danger and the illegality of the act, by the well-meant, though injudicious, kindness of the employes, and is hurt through their negligence while they are perfomiing services within the scope of their employment, the com- pany cannot escape liability on the mere ground that the child was there without having permission under the lawful rules and regula- tions of the corporation managing the railroad. Lammert v. Rail- road Co., 9 111. App. .388, 5 Louisville & N. R. Co. v. Popp (Ky.) 27 S. W. 992. 6 Thompson v. Railway Co. (Tex. Civ. App.) 32 S, W. 191. In Hicks V. Railroad Co., 64 Mo. 430, it was held that a boy on a sta- tion platfoi-m, built for the accommodation of passengers, though he has no business there, is not a trespasser, and willfulness and wan- tonness need not be proved to render the company liable for an in- jury caused by his being struck by a piece of timber projecting from (626) Ch. 17) TO WHOM LIABLE AS PASSENGERS. § 241 But the true rule undoubtedly is that a railroad com- pany owes no duty of active vi«;ihincc to keep boys out of its station yards, or from jumpinji' on moving trains wliile in such yards or on its trades. Siicli boys are trespassers, and the company owes no duty to them, ex- cept that of not wantonly or recklessly injuiiui; tlicni after discoyering them to be in peril." Boys, l") and 17 a freight ear two feet over the station platform. Hicks t. Railroad Co., 64 Mo. 430. But in Baltimore & O. K. Co. v. Sfhwiiullinjr, 101 Pa. St. 258, it was held that a railroad company owes uo duly lo a boy who stands on the edge of tlie station platform, without any invi- tation from its agents and employes, and having no business with them; and hence there can be no recovery for injuries sustained by being struck by a slight projection from the side of a passing freight car. As will app^r from the next paragraph, the rennsyl- vania decision is correct. 7 Barney v. Kailroad Co., I'JO Mo. 372. 28 S. W. lOGii; Catlett v. Railway Co., ~u Ark. 461, 21 S. W. 1002; Chicago cV: A. R. Co. v. Lammert, 12 lU. App. 408. A railroad company is not liable for injuries to a small boy who is enticed onto a slowly moving train by other boys, riding thereon by permission of tlie brakeman. and who falls off while climbing the steps of the rear car. where Uiere is no evidence that the brakeman at his post of duty saw him. Wood- bridge V. Kaih-oad Co., 105 Pa. St. 4G0. A railroad company Is not responsible for the death of a 13 year old boy. who rode some dis- tance on a wild train, stepped from it while in motion, retaining his hold on the railing, and, running along for a short distance, then swung himself back onto the car step, from which he fdl or jnuiiu'd ■while the train was in motion, when- there Is no eviilcnce that the train hands saw his position of peril. Powers v. Railway Co.. .17 Minn. .3.32, .59 N. W. 307. A boy eight years old, standing near a railroad track as a freight train passed along on a slinrp upgrade, nt a speed of eight miles an horn-, wa.^ waincd by tiie enginc-r lo g.-i away. He s-tepped back, but came up to the train agahi, and svVmhI the mounting appliance attached to tlie end of a <-ar. and hung on. Tlic fireman saw him, and made motions warning hlni to p-i oH'. In doing so, he fell under the moving train, .Ind was Injmvd. il-ld. ((127) § 241 CARRIERS OF PASSENGERS. (Cll. 17 years old, playing about moving ears, jumping on and off, must take the risk of life and limb if they will per- sist in such dangerous sport.* So, a street-car com- pany which is hauling two empty cars over its track to its repair shop is under no obligation of keeping watch to see that boys do not jump on the caj" while being so driven; and a boy who jumps on the car while in mo- tion, and is injured by falling off or jumj)ing off, cannot recover where the driver was ignorant of his presence on the car.^ It has even been held that train hands making up a freight train are not obliged to be on the lookout to prevent trespass- ing boys from entering cars standing on a side track/ "^ So, a railroad company that the railroad company was not liable, as the failure to stop the train and remove the boy (which it was not sliown could have been safely done) did not amount to willfulness. IMttsburgh, C, C. & St. L. Ry. Co. V. Redding, 140 Ind. 101, 39 N. E. 921. s Michaud v. Railway Co. (Me.) 34 Atl. 172. » Bishop V. Railroad Co., 14 R. I. 314. 10 Ciu-ley V. Railway Co., 98 Mo. 13, 10 S. W. 593. A railroad com- pany which stops its freight trains at a crossing with another road, near a school house, is not under any obligation to exercise active vigilance to see that children do not board a train while so stopping: and, if none of its employes know of the attempt of a child to climb the train, it is not liable for injuries sustained by his being thrown from the car by the starting of the train. Atchi.son, T. & S. P. R. Co. V. Plaskett, 47 Kan. 107, 26 Pac. 401. Where a boy gets on the footboard of a switch engine in a railroad yard, the engineer owes him no duty of care, unless he actually sees him there. Hughes v. Railway Co., 65 Mich. 10, 31 S. W. 603. It is not within the scope of the employment of a baggage master connected with a railway train, but not shown to have been put in charge of the same, to in- vite or permit any person or persons to enter and ride on a passenger coach in such a train. Hence his permission to a number of little girls to get on a coach in a passenger train while it is being switched • on a side track for the night does not create the relation of passenger (028) Ch. 17) TO WHOM I.lAni.K AS TASSKNGERS § 24L owes no diitv of care to a bov who, instead of ^oinji around ears standing on a laivate switeli, underiakos to CO tlironcli them, without the knowUnljie of Jinv of the company's employes, and avIio is kiUed by a lurch of the train, which causes a slidiuj; iloor on tlie sidr nf the car to close against the boy's head.^^ Of course, no liability ean attach ar its st-rv- ants in being in the car would create no duty on ilif part of the company, except to refrain from acts willfully and knowingly inju- rious to him. (3) If he was not upon the cars at llie Invitiillon of the company, or by its permission, he was an inlrulcr; and in ili:il event he was not entitled to recover, exceiit for injuries kmtwingly or willfudy inflicted." . § 241 CARRIERS OF PASSENGERS. (Ch. 17 stoaltliilj got on a slowlj-moving locomotive, and who fell from it by reason of a jar caused by its stopping in the usual and ordinary manner.^^ So, where a boy stealing a ride on the front platform of a street car has been repeatedly warned off, and once put off by the driver, the driver, whose attention was taken up witli passengers who had just gotten on the car, cannot be deemed guilty of negligence in failing to notice that the boy had again gotten on the front platform. 13 12 Miles V. Receivers, 4 Hughes, 172, Fed. Cas. No. 9.544. 13 Wrasse v. Traction Co., 14G Pa. St. 417, 23 Atl. 34.3. Failure of the driver of a street car to compel a boy, who had jumped on the platform, to leave it, does not render the company liable as for a per- missive riding on the front platform, where the attention of the driver was properly directed to a switch which he was approaching when the boy got cu, and where it appears that the boy was not on the car exceeding 30 seconds when he jumped off and was injured. Hestonville, etc., K. Co. v. Kelley, 102 Pa. 115. No negligence on the part of a street railway is shown by the fact that a 13 year old boy, without the knowledge of the conductor, seated himself on the front platform of a crowded car, in such a position that he was struck on his projecting knees by a mortar box in the street. Butler v. Railway Co., 139 Pa. St. 195, 21 Atl. 500. (630) Ch. 18) DUTY TO ACCEPT AND CAKUV J'ASStNGtRS. § 242 CHAPTER XVIIL DUTY TO ACCEPT AND CAllUY PASSENGERS. S 242. Carrier must Accept All Proper Persons. 24o. Who may be Kejected. 244. Same — Business Kivals. 245. Same— Exclusive Station I'riviiejres. 24G. Same — Waiver of Kiglit to Reject. § 242. CARRIER MUST ACCEPT ALL PROPER PERSONS. A common carrier of passengers, upon being paid or tendered the usual fare, must receive and carry all persons who offer themselves as pas- sengers to whose character and conduct there is no reasonable objection, provided there is room in the conveyance. The idea that lies at the very base of the law of runi- mon carriers, both of property and of persDiis, is ihai they are public servants, aud serve all alike.^ By en ga*;iiig- in the business of a common eai rier, the owikm- of a vessel or vehicle devotes it to a public nse, and everybody' constitnting a part of tiie public is eiiliih-d to an equal and impartial j)art i(i|)at i.',. § li42 CARRIERS OF PASSENGERS. (Cll. IS in some of the states.^ Tliis principle is applicable with special force to railroad companies. "Kailroads are creatnres of the law, and are intrusted v.itli the ex- ercise of sovereign powers to promote the public inter- est, and are therefore bound to conduct their affairs in furtherance of the public objects of their creation. The interest of stockholders in their profits is secondary, and in the main subsidiary to the interests of the pub- lic. It is in view of their public character that the courts are authorized to determine and enforce the pub- lic duties enjoined on them. The duties which thej owe to the general public and the state cannot be shirked or evaded.'' * Under this principle, it has been held that one who has purchased a full fare ticket has a right of action against a railroad company for refus- ing him admittance to a regular passenger train, and compelling him to wait two hours, and take a crowdee- (632) Ch. 18) DUTY TO ACCEPT AND CARRY PASSENGERS. § 243^ liable to an action on the case for dania^ies resulting from a refusal to set a passenjier across the stream over which he keeps his ferry, though there is a stnniK' giv- ing- a fixed i)eiialtY for such neglect of dutY.* g 243. WHO MAY BE REJECTED. A common carrier may exclude all ixmshus from its vehicles whom it has reasonable grounds to bdicYe will injure or annoy tlu^r fclloNY ]>assengers. This is manifestly just, since, as we haYe seen,' the admission of such persons to its vehicles is negligence, which ren- ders the carrier liable for the injuries AYliich they mav inflict on their fellow passengers." Thus, a carri -v li;is the right to exclude from its train a person, not accom pauied with proper attendants, whom its servants know to be dangerously insane, though at the time »»f olTcr ing to become a passenger he was apparently hariule.ss, and conducted himself in no way different from other cuniai'v damage or of any iiorsoual injury resulting in any loss. Mnr tin V. Piailioad Co.. :J2 S. C. .7.12. 10 S. 10. Mu. 6 Wallen v. McIIeury, 3 Ilumpli. (Tonn.) 24.1. A ItM ivhimii is not liable to the statutory penalty for failure to transport a p:«ssi'ni;»'.* across the Ohio river fr. ni Ohio to Keutui ky. since llie Keiitu ky -l:r- ute requires ferrymen to transport only from Kentucky to I'w djiji .si:e shore. Reeves v. Little. 7 Bush (Ky.) 4t!!t. § 243. 1 Ante, S 'M et seq. 2 Code Ga. 1S.S2. § 2082, provides tliat conunon carriers of passenuf r» may refuse to admit or may eject from their conveyanci s all i e .s wiili i»ri\;it(' rliaiacti-r m- ron- chict, except so far as it furnislies liini witli evidtMue «>f ^ probable injury abont to be inflicted on bis otlier pas- sengers or his business. He must carry all who come properly dressed, and who behave genteelly, and can- not classify them according to their general moral rep- utation." To permit a railroad company to do so ■would practically place the character of every woman, virtuous or not, for trial before every railroad conduct- or; and the reputation of her private life might be at any time called in question by him/' The fact that the holder of a commutation ticket, who has left it at home by inadvertence, refuses to pay his fare, excejjt on con- dition that it be refunded on his presentation of the commutation ticket the next day, does not justify the company in refusing to sell him commutation tickets thereafter.'' So, a carrier cannot reject a person as a passenger, otherwise qualified, on the sole ground that he is blind. ^ 6 Browu V. Railroad Co., 7 Fed. 51. 7 State V. Railroad Co., 48 N. J. Law, 55, 2 Atl. 803. Disoharsod ■railroad laborers, who are entitled to carriage free of charge, may go on a train peacefully, and remain there until carried to destinatimi; but if the conductor refuses to carry them, .stops the train, and under- takes to detach the mail car, and to send it forward with the mail, they are guilty of obstructing the pa.ssage of the mail if they iirfvent him from so doing in order to compel him to carry them on ilu- train. .U. S. V. Kane, 19 Fed. 4L». 8 Zackery v. Railroad Co. (Miss.) 21 Soutii. -Mij. (G35) § 244 CARRIERS OF PASSENGERS. (Cll. 18 § 244. SAME— BUSINESS RIVALS. A common carrier of passenoers may refuse to carrj a person whose object in taking passage is to solicit other passengers to give their patronage to business ri- vals of the carrier. The vessel or vehicle which the carrier uses is his own; and except to the extent to which he has devotefl it to the public use, by the busi- ness in which he has engaged, he may manage and con- trol it for his own profit and advantage, to the exclu- sion of all other persons. The leading case on this subject is Jencks v. Coleman,^ decided in 1835, in one of the federal district courts. In this case it was held that a passenger was rightly refused admittance to a steamer where his sole object was to solicit other pas- sengers to complete their journey, after leaving the steamer, on a rival line of stagecoaches. So, also, a carrier may establish, for the convenience of passen- gers, and for his own profit, on his car or vessel, an agency for the delivery of baggage of passengers, and of express matter, and exclude all other persons from entering, to solicit or receive orders from passengers in competition with the agency established by him. This is in no just sense a monopoly. It is simply saving to the carrier a legitimate advantage which his position and business give him.- The fact that a carrier waiver* his rights, in this respect, in regard to one person, does § 244. 1 2 Sumn. 221, Fed. Cas. No. 7,258. The case was tried be- fore Mr. Justice Story. Daniel Webster was one of tlie counsel for plaintiff, and it was reported bj^ Charles Suniuei. 2 Barney v. Steamboat Co., 67 X. i'. :M)1; The D. R. Martin, 11 Blatchf. 233, Fed. Cas. No. 4,002. (036) Ch. 18) DUTY TO ACCEPT AND CARRY TASSEXGEUS. § 244 not bind liiiii to waive tliem in rejiard to anotlu'i- ])t'r- Boii.' It has even been held that a railroad corpora- tion may exclude all persons whom ir pleases when they come to transact their own private busini'ss with passengers or other third persons, and admit whom it pleases when they come to transact such business. This applies to persons selling lunches to passengers, or soliciting orders from passengers for ihc sale of lunches/ But in Florida it has been held thai a rule of a rail road com])any which prohibits passengers on its trains from wearing the uniform of a line of steamers running in opposition to a line of steamers having a traffic ar- rangement with the railroad company is not reason- able, and hence not binding on the public, ami the ex- pulsion of a passenger for wearing such uniform is ille- gal.^ So, it is not a lawful excuse for tlie refusal of the proprietors of a stagecoach to accept a passenger that they have a traffic agreement with the proprietor of a connecting line of coaches, whereby they have agreed not to receive passengers who have come on a rival line of coaches over the route traversed by the connecting line.® 3 The D. R. Martin, 11 Blatclif. 238, Ted. Cas. No. 4.u9J. 4 Fluker v. Railroad Co., 81 Ga. 4(51, 8 S. E. 52!t. .V pnssi.njr.T cm a steamer chartered for an excursion has no rijiht to sell im r.h.iii.lis.' on tlie boat (peanuts, popcorn, watermelons, and the like) witJH.vit p.-r mission of those in charge uf the boat. Smallnian v. Whilter. S7 HI. 54o. South Florida R. Co. v. Rhodes, 25 Fla. 40, 5 South. (Kl't. • Bennett v. Duttou, Hi N. II. 1«1. ((;:5T) § 245 CARRIERS OF PASSENGERS. (Cll. 18 § 245. SAME— EXCLUSIVE STATION PRIVILEGES. By the weight of anthority in this country, a railroad comi^any cannot legall}'^ give to one liack and omnibus company the right to the use and the occupancy of a portion of its depot grounds, to the exclusion of others engaged in the like business of the carriage of freight and passengers from its depot. To permit a railroad comijany to do so is against j)ublic policy, since it would thereby be enabled to control largely' the trans- portation of passengers and merchandise beyond its own line, and would establish a monopoly' not granted by its charter, which might be solel3' for its own ben- efit, and not for the benefit of the public. Such a reg- ulation also violates a constitutional or a statutory pro- hibition againist discriminations in charges or facilities for transportation of freight and passengers.^ But a rule by which a railroad company reserves the right to assign places upon its own grounds to the different hackmen, and to exclude from such places others not § 245. 1 Kalamazoo Hack & Bus Co. v. Sootsma, 84 Micb. 194, 47 N. W. 667; Moutaua Union Ry. Co. v. Lauglois. 9 Mont. 419, 24 Pac. 209; Cravens v. Kodgers, 101 Mo. 247, 14 S. W. lOG; McConnell v. Pedigo, 92 Ky. 465, IS S. W. 15. In England the rnle seems to be tbat the granting of exclnsive station privilege is imlawful. if delay and inconvenience result to the public by reason of such an arrangement, but otherwise not. In re Marriott, 1 C. B. (N. S.) 499; Beadell v. Railroad Co., 2 C. B. (N. S.) 509; Ex parte Painter, Id. 702; Barret V. Railroad Co.. 1 C. B. (N. S.) 423; Barker v. Railway Co., 18 C. B. 46. See, also, in support of proposition in text, Summitt v. State, 8 Lea (Tenn.) 413; In re Palmer, L. R. 6 C. P. 194; In re Parkinson, Id. 554. Ch. 18) DUTY TO ACCEPT AND CARRY rAPSRNGKKS. § -45- assigned thereto, is reasonable, an«l the cdnipany has a riuht to eufort-e it." In Massachusetts and New York, hoAvcvcr. n .lilTcr- ent rule prevails. A coninioii caiiit'i- of passengers and their baggage to and from a railroad station lias no right, without the consent of tlu' ronipany. i-. use the grounds, buihlings, and platforms of the station to solicit the patronage of passengers; and a rcgulaiinn of the company which allows such use by pariicular persons, and denies it to others, violates neither tlie common law,nor a statute which requires railroad com- panies to give all persons reasonable and equal t the exclusion of anotlier; and tliey deprive no connnon .arrier of necessary approach to the d?pot .^rounds to carry on his business of carrier of freiglit and passengers. The rules touch and alT.vt all nlik.. The mere fact that the railroad company fixes an.l defrmmes the place where each particular hack shall stan.l is nnt a disc-rindna- tion between hackmen, but is a necessary rul- t.. pr-vm .p.a.n.ls lor place, so often seen among hackmen around ns to the character of a passenger, or to his peculiar position, provided he vio- lated no inflexible rule in getting on board; and thai, wliile the ap- prehended danger sliould be taken into consideration to mitigate •lam- ages, it did not afford a justification for the ejection of the pjussenger during the journey. V. 1 FKT.CAR.PAS. 41 (''•11) § 247 CARRIERS OF PASSENGERS. (^Ch. 19 CHAPTER XIX. CARRIER'S RULES AND REGULATIONS. § 247. Power of Carrier to Make. 248. Province of Court and Jury. § 247. POWER OF CARRIER TO MAKE. A CDinnion carrier of passengers may make rules for the conduct of his business, and may re- quire passengers to conform to them, if they are public, uniform in their application, and reasonable.* The riglit of a raih'oad company to make reasonable rules for its protection, and for the safety and con- venience of passengers, has never been denied.^ Com- mon carriers are very properly held to a strict meas- iiie of responsibility in cases of injuries to passengers. It is not unreasonable that they should have the right to require passengers to observe such proper regula- tions as are essential to their own convenience or safety.^ § 247. 1 Civ. Code Cal. § 2186; Comp. Laws Dali. 1887, § 3895; Code Mont. ISM.l. SS 2S;tG. 218G. 2 Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21; Sullivan v. Rail- road Co., 30 Pa. St. 234; Deery v. Railroad Co., 1G3 Pa. St. 403, 30 Atl. 162; Crawford v. Railroad Co., 26 Ohio St. 580. 3 Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21. It is not de-igned, in the present chapter, to gather up the various rules and regulations of common carriers that have bsen upheld by the courts. Thes-e are treated in connection with the various duties which the carrier is re- quired to perform, and will be found grouped in the Index under the title, "Rules and Regulations." (642) Ch. 19) caruiek's rules and regulations. 5 247 On principle, it would seem that a passenger ouulit not to be bound to know the various rules and rej^ula- tions w^hich a common carrier may i)rescrib<^ for the conduct of his business. They iU-e not in thf nature of public statutes enacted by the state, which t-vrry one is conclusively presumed to know. In addition to this, the rules and rejiulations of a railroad t-om- pany, with its thousands of employes, must, of neces- sity, be many, and, to the uninformed, intricate. The passenger's purpose is travel or transportation to a given point, and the railroad officials must supply the details. Paying for the ticket the price demanded un- der the tariff of charges, he has done all required of him to secure his right of transit over the railway t<. the point or station to which he requested his ticket.' Nevertheless, the courts have very generally held that a passenger is bound to know certain regulations of the carrier. Among these may be mentioneil regula- tions fixing the running time and stopping places for trains.' It is also very generally held that regulations of a railroad company may be waiveil by its duly-au- thorized agents.^ In Pennsylvania, however, a distinc- tion is made, in this respect, between regulations in tended for the passenger's safety and those iinciHhd for his and the carrier's convenience. A conductor, it is said, cannot waive the former, but he may waive the latter.' 4 South & N. A. R. Co. V. Huffman, 7G Ala. 402. 6 See post, § Hf>;{. « See po.st, §§ 30G, 307. 7 Pennsylvania K. Co. v. Lanplon, 92 Pa. St. 21; Doery v. Itnllnmi! Co., 163 Pa. St. 403, 30 Atl. 162. ((J4:{) § 24^ CARRIERS OF PASSENGERS. (Cli. IV) § 248. PROVINCE OF COURT AND JURY. Where the fact^ are undisputed, the reasonableness of a regulation of a common carrier affecting the trans- portation of passengers is one of law for the court, and not of fact for the jury.^ The necessity for this rule lies in the fact that it is only by this method that fixed and permanent regulations can be establislied. If the question were left to juries, one rule would be ap- plied by them to-day and another to-morrow. In one trial a railway would be held liable, and in another, presenting the same questions, not liable. Neither the companies nor passengers would know their rights or their obligations. A fixed system for the control of the vast interests connected with railways would be impossible, while such a system is essential equally to the roads and to the public.^ § 248. 1 St. Louis, A. & T. Ry. Co. v. Hurdy, 55 Ark. 134, 17 S. W. 711; St. Louis, I. M. & S. Hy. Co. v. Adcock, 52 Ark. 406, 12 S. W. 874; South Florida R. Co. v. Rhodes, 25 Fla. 40, 5 South. G33; Gregory v. Raihvay Co. (Iowa) G9 N. W. 532; Chilton v. Railway Co., 114 Mo. 88, 21 S. W. 457. But the question whether the facts are such in a given case that the regulation can be properly enforced may be for the jury. Hoffbauer v. Railroad Co., 52 Iov\-a, 342, 3 N. W. 1210. But in State v. Overton (1854) 24 N. J. Law, 435, and in Morris & E. R. Co. V. Ayers, 29 N. J. Law, 393, it was held that the reason- ableness of regulations made by railroad companies with regard to the conduct of passengers is a question of fact for the jury. But in Compton V. Van Yolkenburgh, 34 N. J. Law, 134, Beasley, 0. J., said, in reference to these cases: '"There is no doubt that the rule thus Intimated is in opposition to recent American authorities. * * * The submission of such a question to the jury appears on many grounds objectionable, and in opposition to legal analogies." 2 lUiaois Cent. R. Co. v. Whittemore, 43 111. 420; Louisville, N. & G. S. R. Co. V. Fleming. 14 Lea (Tenu.) 128. 144:. (G44) Ch. 20) DUTV Ai TO ACCOMMODATIONS. § 249 CHAPTER XX. DUTY AS TO ACCOM.MoKATKtNS. § 249. ;Must 1-^iruish Ko.Tsonalile AcoomiiiodationB. 250. At Station?. 251. During Transportation— Seats. 252. Sanio--Heating Cars. 253. Sleeping Cars. 254. Chair Cars. 255. Separation of Passengers on Account of Sox. 256. Separation of Passengers on Account of Color. 257. Same— Statutes Requiring Separation. 258. Same— Statutes Requiring Equal Accoinmodations. § 249. MUST FURNISH REASONABLE ACCOMMODA- TIONS. A common carrier of passengers is bound to fur- nish passengers the usual and reasonable ac- commodations incident to the mode of convey- ance adopted by the carrier. The contract of transportation iiKludes, bv iiii|»li ca- tion of law, the ordinary comforts incident to the iinKh' of conveyance adopted by the carrier, iu the abscMUM* of express stipulations to the contrary. Statutes in soni<' of the states expressly require tlie carrier to furnish reasonable accommodations for passengers,* and to fur nish sufficient accommodations for nil passrn^ors rea- sonably to be expected to i(Mjiiiio ( arrJMizc :if any onr § 249. 1 Civ. Code Cal. S 21S4; Conip. Ijiws Dji!;. § 3S41; Civ. Code Mont. 1895, § 2793; 1 Hcv. St. S. C. 1M!I3, § 171U. § 249 CARRIERS OP PASSENGERS. (Ch. 20 time,^ or offering themselves as passengers a reason- able time before the advertised starting time of the con- veyance.^ These statutes are probably merely a re- enactment of the common law. The supreme court of Illinois has recently held that a railroad company does not fulfill its duty to the pub- lic by attaching a passenger coach to a freight train, and the courts will compel it by mandamus to run a passenger train, where its business will warrant the expense of putting on such a train. ^ 2 Civ. Code Cal. § 21S5; Civ. Code Mout. 1895, § 2895; Comp. Laws Dak. § 3893. 3 Mansf. Dig. Arlj. § 5475; Rev. St. Ind. 1894, § 5185; Gen. St. Kan. 1889, § 1212; Ky. St. 1894, § 783; 1 How. Ann. St. Mich. § 3324; Ann. Code Miss. 1890, § 4306; Comp. Laws N. M. 1884, § 2671; Laws N. Y. 1850, c. 140, § 36; Code X. C. 1883, § 1963; Sayles' Civ. St. Tex. art. 4226. A carrier of pas.sengers must not overload his ve- hicle. Civ. Code Cal. § 2102; Civ. Code Mout. 1895, § 2792; Comp. Laws Dak. § 3840. Every railroad corporation "shall furnish suffi- cient accommodations for the transportation of passengers and freight, and shall take, transport, and discharge all passengers to and from such stations as the ti-ains stop at, from and to all places and stations on their said road, on the payment of fare." Comp. Laws Neb. 1893, c. 16, § 121, p. 312. Gen. St. Conn. 1,S88, § 3540, requires railroad com- panies, from the lat of May to the 1st of November, annually, to carry through each passenger car, once an hour, a suitable quantity of good drinking water for the free use of passengers, with suitable appurte- nances for carrying it, and a clean tumbler for using it. Laws N. Y. 1864, c. 582, requires railroad companies to furnish passenger cars with drinking water; and Code Ala. § 1155, requires them, in addi- tion, to keep gooa lights on night trains. 4 People V. St. Louis, A. & T. H. R. Co. (III. Sup.) 45 N. E. 824. The court said: "What we hold is that there cannot be a suitable and proper operation of the railroad as a carrier of passengers where the car in which it carries its passengers is part of a freight train, be- cause freight trains are inferior to passenger trains, and travel in them is aUended with less comfort, convenience, and safety than (64G) Ch. 20) DUTY AS TO ACCOMMODATIONS, § 250 § 250. AT STATIONS. The New York court of apjx'jils has lifl.l that, at common law, a common carrier of i>ass(Miji('is aii«l freight is under no obligation to i)r()vi(le di'pois toi- passengers awaiting transportation, nv wareliouscs for freight.^ But where a station building has been cicri - ed by a railway company, to which passengers are in yited while waiting for trains, a common-law diiiv rests on the company to proyide reasonable ar< oniiiio dations for those who accept its invitation." Thus, ir travel in passenger trains. The inferiority of a freight train to a passenger train as a mode of carrying jia.ssengers is so obvions tli;it no man of ordinarj^ understanding would regard tlie use of a frciulii train for the purpose of hauling a passenger car as a suitalilc and proper operation of the railroad in the ii'attcr of transporting pas- sengerSv" it was further held that, in determining whether a rail- road's business is sutticient to require it to run a sei»arate passt-ngcr train, the court will take into consideration the business of the mad as a whole, and not merely of the branch line on which it runs md passenger train. If the business of the whole road shows a large net profit, it will be compelled to run a passenger train on the branch line, which passes through a fairly populous country, witli inimcrous towns, ranging in population from l.:00 to .j.UUt). § 2.")0. 1 People v. New York. L. E. iV: N\ . U. Co., li>4 N. Y. .".s. 9 N. E. 856. It was further held tuat no such obligation is imiMis d l)y the general railroad act of New York (Laws 1850, c. 140), or the various amendments thereof, upon railroad corporations orgaid/.c 1 under it. The supreme court of the United States has also held tliai it rests entirely within the discretion of the company as to where it is best to locate its stations, and, in ilic abscme of a statute ur o( a valid contract requiring the location at a certain place, a eoml has no authority, by mandanms, to compel its location tlicre. Nnrlin'rn I'ac. R. Co. V. AVashington Territory, IfJ U. S. 4:f_', I'J Sii].. ri. js ;. reversing 3 Wash. T.t. :'.o:!, i:{ I'a<'. tJot, 2 McDonald v. Uailr« ad Co., 2G Iowa. 1-1. (CIT) § ^50 CARRIERS OF PASSENGERS. (Ch. 20 is the duty of a railroad company to use ordinary care in cold weather to heat the passenger waiting room for a reasonable time before the departure of its trains." But a carrier is not liable because the agent at the CI? depot was cross, and refused to inform an arriving pas- senger of the name of the town, or where she could find an hotel; and because, on her asking for water, he merel}^ pointed to a tank some distance away, or be- cause men and boys around the station jeered and laughed at her.* In a number of states statutes exist which require railroad companies to maintain comfortable waiting rooms for passengers at stations; ^ and in others stat- utes exist requiring railroad companies to keep the 3 Texas & P. Ry. Co. v. Cornelius (Tex. Civ. App.) 30 S. W. 720. Snpp. Sajies' Rev. Civ. St. Tex. art. 4238, -vs-hicli requires every rail- road company to keep its passenger houses warmed for one hour be- fore the arrival of trains, does not relieve it from liability to a pas- senger vrho becomes ill because he had to wait several hours for a delayed train In a cold station room, though a fire may have been built within an hour of the actual arrival of his train. Id. But a passenger who is informed that a depot will not be opened during the night must use reasonable care to protect herself from the con- sequences of exposure to the inclement weather while waiting for a train, and the railroad company Is not liable for a sickness caused by exposure which could have been avoided by her by the exercise of reasonable care. Texas & P. Ry. Co. v. Pierce (Tex. Civ. App.) 30 S. W. 1122. A railroad company is liable to an mtending passenger for injuries sustained from its failure to keep its station open and warmed in inclement weather, as required by statute. Boothby v. Railway, 66 N. H. 342, 34 Atl. 157. 4 Missouri, K. &. T. Ry. Co. v. Kendrick (Tex. Cix. App.) 32 S. W. 42. 6 Code Ala. § 1154; Rev. St. Ind. 1894, § 5188; Ky. St. 1894, § 772; Gen. Laws Minn. 1885, c. 190, § 1; Rev. St. Mo. 1889, § 2582; 1 Rev. St. S. C. 1893, § 1712. (G48) Ch. 20) DUTY AS TO ACCOMMODATIONS. § 2')1 ticket offiee or reception room open a speeifie*! lenjjth of time before the arrival and departure of trains.' g 251. DURING TRANSPORTATION— SEATS. There im S Mo. 317. § 252. 1 Ft. Worth & D. C. Ry. Co. v. Jlyatt (Tex. Civ. App.) 34 S. W. 677. It is the duty of a railroad company to heat its lars in cold weather for the comfort of its passengers; and where a pas- senger repeatedly complained of the cold on a cool Octolier nlglit, an. I requested the conductor and brakemen to kindle a lir.' in tiie stoves on the car, and testifies tliat he idtimately sulTiTed a si-vere sickness as a consequence of tlie cold contnided on tlic jounn'y. liie tincstion of defcniaut's nt g'.igtiice is for the jury, Taylor v. Kailn ad Co. (Mo. Sup.) 38 S. W. 304. ((;5i) § 253 CARRIERS OF PASSENGERS, (Ch. 20 senger contracts a disease by the failure of the carrier to keep up fire in a car in extremely cold weather, the carrier is liable.^ A passenger traveling by railroad in cold weather, in a car without a fire, is not guilty of contributory negligence, as matter of law, because he did not leave the car at some station, made no effort to procure ad- ditional wraps from his trunk in the baggage car, took off his overcoat at one time to give his wife the benefit of the warmth, and wore inadequate clothing to meet the demands of the climate and season.^ § 253. SLEEPING CARS. A sleeping-car company is bound to furnish a berth to a passenger holding a first-class ticket, if he applies for it at the proper time and in the proper manner, offers the customary fare, and there are vacant berths at its disposal.^ But a rule of a railroad company re- quiring a passenger to have a first-class ticket for his transportation, before he can be assigned to a berth in a sleeping car, is a reasonable one, and can be legally enforced.^ A demand for a berth, and a promise to furnish it, constitute a contract, the mutual obligations and prom- ises being a valid consideration. And it is no excuse for a sleeping-car company's breach of contract to re- serve a certain berth for plaintiff that another person 2 Hastings v. Railroad Co., 53 Fed, 224, 3 Taylor v. Railroad Co. (:Mo. Sup.) 38 S. W, 304. § 253, 1 Nevin v. Car Co., 1U6 111. 222. 2 Pullman Palace-Car Co. v. Lee, 49 111. App. 75. (652) Ch. 20) DUTY AS TO ACCOMMODATIONS. § 253 demanded it before plaintiff presented himself to pay for and occupy it, and that there was no otlior uik.. m pied.^ By selling a passenger a ticket good im- a |.ai- ticular berth, the company binds its.-ir to funiish ih,' particular b( rth in the car desiguate. * Pullman Palace-Car Co. v. Taylor, 05 Ind. 153. B Searles v. Car Co., 45 Fed. 330. WlK-ro a IhtiIi in a sln-iiiiiK oar has been sold for occupancy to a certaiu puiiil, no unust' ol' action arises for the refusal of the conduclor, l)oforo that imliit Is rnicin'd, to sell another person a ticket eulilliug him to sucii hcrtli Iroiii ihcrf to the end of the journey. Id. 6 Mann Boudoir-Car Co. v. Dupre, 4 t;. (". A. rih», •".» It- 1. •;»<:. § 253 CARRIERS OF PASSENGERS. (Ch. 20' ter/ But though the company's rules require a per- son desiring to use the berth as a bed during the day- time to purchase an entire section, yet where a pas- senger, on purcliasing a single-bertli ticket, informs the conductor that he is suffering with rheumatism, and wants the berth to lie down on account of that sick- ness, he is entitled to the use of the berth as a bed in the daytime.* A sleeping-car company imperatively owes to the traveling public the duty of seeing that men and wo- men who do not occupy to each other the relation of husband and wife shall not occupy the same berth. But it has no right to deny the right to jointly occupy a berth to a husband and wife. When a berth is con- tracted for by the husband, either with an express un- derstanding that it is engaged for the joint occupancy of himself and wife, or under circumstances that are- not misleading within themselves, the refusal to per- mit such joint occupancy, without other reason than- the difference of sex, would give the injured party a right of action for damages, in which might be con- sidered circumstances of insult and aggravation at- tending the breach. But Avhere a wife, traveling with 7 Pullman's Palace-Car Co. v. Ehrman, 65 Miss. 383, 4 South. 113. In tills case it was held that a passenger who requests that his berth be made up at 8:30 p. m., and who makes an angry demand on the porter to that effect when the latter states that he has some lunches to serve first, has no right of action against the aleepiug-car company for the refusal, and for angry language used by the porter, where the- berth was made up for him at about 9 o'clock, though he refused to occupy it then, and remained in the smoking saloon all night. 8 Pullman Palace-Car Co. v. Fowlor, G Tex. Civ. App. 755, 27 S.. W. 268. (654) Ch. 20) DUTY AS TO ACCOMMODATIONS. § 254 lier husbaud, pars for a separate berth, the company is not liable for the acts of its servant in coniprllinjr her to leave her husband's berth, with wh.mi she re- tired during the night, unless such servani in fact knew that the relation of husband and wife existed.' ^ 254. CHAIR CARS. The payment of first-elass passenger faro doos not en- title one to demand carriage in a car (M|uip]>f'd with adjustable reclining chairs and lavatoiy, ami scivc'd by a special porter. And where a railroad company furnishes sufficient first-class cars, with the usual ap- pliances and service, for the accommodation of tln.so entitled to first-class passage, and upon the same train carries a chair car wdiich furnishes the extra service and accommodations above indicated, it may lawfully demand a reasonable extra compensation of passengers who from choice take passage upon it.^ This right is not denied or restricted by the statute which limits the sum which railways may charge for first-class passage. Nor does the fact that a railway company advertises that chair cars will be run upon its ntad wan ant the inference that such cars are free to all passengers un- der all circumstances.^ » Pullman Palac-e-Car Co. v. Bales, 80 Ti'X. 1211, If. S. W. is:,. § 254. 1 Wrife'lit v. Railway Co., 78 Cal. 'M'>0, 20 Tac. 747 ) § 256 CARRIERS OF PASSENGERS. (Ch. 20 shall abridj^e the privileges or immunities of citizens of the United States, or from depriving any person of life, liberty, or property vrithout due process of law, or denying any person the equal protection of the laws, it seems to have been thought b}' some of the state courts that common carriers had no power to separate passen- gers on account of race or color. Thus, in 1873, Chief Justice Billon,^ of the supreme court of Iowa, said: "A common carrier of passengers has no authority to enforce and establisli regulations depriving colored persons of the privileges and rights accorded to white persons. These rights and privileges ^rest upon the equality of all before the law, — the very foundation principle of our government. If the negro must sub- mit to different treatment, to accommodations inferior to those given to the white man, when transported by public carriers, he is deprived of the benefits of this very principle of equality. His contract with a carrier would not secure him the same privileges and the same rights that a like contract made with the same party by his vv'hite fellow citizen would bestow. This prin- ciple is enforced by the fourteenth amendment to the federal constitution, which declares that no state shall abridge the immunities or privileges of citizens of the 3 Coger V. Packet Co., 37 Iowa, 145. Iu> this case it was held that a rule of a steamboat company excluding colored passengers from the regular table, and requiring them to take their meals upon the guards of the boat or in the pantry, is not reasonable, and cannot be en- forced. The point decided in this case goes no further than to require equal accommodations. In several other cases it has been held that a carrier of passengers has no right to exclude colored persons from its cars. Pleasants r. Railroad Co. (18GS) :u Cal. 586; Turner v. Rail- road Co.. Id. 594; Derry v. Lowry, G Phila. 30. (658) Ch. 20) DUTY AS TO ACCi)MXIOD\TIOXS. § 256 Uuited States, or deuy to any iti-rson Aviihin its juris- diction the equal protection of tlie laws.'' In 1875, congress, acting under tin* iH.wers which it conceived were conferred on it by this aintinlincut, passed what is kuown as the ''Civil liights IJill," * which, in effect, declared tliat colored citizens, whi'thi-r formerly slaves or not, should have the same accommo- dations and privileges in all inns, public cdnvcyances, and places of amusement as are enjoyed by white citi- zens. The constitutionality of this legislation soon came before the federal courts, and was passinl on by the federal supreme coui-t in what are known as the "Civil Rights Cases." ^ It was held in these cases i liat the fourteenth amendment is aimed solely at state ac tion, and not at the action of individuals not sanc- tioned by state legislation or the authoiity of the state. "The wrongful act of an individual, unsupported by any such authonty, is simply a piivate wrong, or a crime of that individiml,— an invasion of the rights of the injured party, it is true, whether they affect his per- son, his property, or his reputation; but if not sanc- tioned in some why by the state, or not done uml.-r state authority, his rights remain in full force, and may hr presumably vindicated by resort to the laws of tlir state for redress. * * * In all these cases, where the constitution seeks to protect the^rights (.f tin- citi zen against discriminative and unjust laws of the state, by prohibiting such laws, it is not indivi.lual offenses, but abrogation and denials of rights which it .huouu ces and for which it clothes the congress with pnun- 4 Act March 1. 1«75, S§ I, 2. ^ 1<^'.' I'. S. li, :! S,,,.. r,. is. § 256 CARRIERS OF PASSENGERS. (Oil. 20 to provide a remedy. This abrogation and denial of rights for which the states alone were or could be re- sponsible was the great seminal and fundamental wrong which was intended to be remedied." Hence, because this amendment conferred on congress no power to interfere with individual action, the act was held void, as relating to a subject wholly within the purview of state legislation. It was further held that the act could not be sustained under the thirteenth amendment, abolishing slavery, since the refusal to any person of the accommodations of an inn, or a public conveyance, or a place of public amusement, by any individual, and without any sanction or support from any state law or regulation, does not inflict upon such person any manner of servitude or form of slavery, as these terms are understood in this country.** Ever since this decision, and even before it was ren- dered, it has been held that a common carrier, in the management of its complicated interests, may be au- thorized in law — on showing a proper or sufficient state of facts to establish, in the opinion of the court, the rea- sonableness of the rule — in setting apart one or more cars for the use exclusively of colored passengers, and a like number, more or less, as the service may require, for the use exclusively of white passengers; but when- ever the company enforces such a rule it is charged with the duty of furnishing colored people, who pay first-class fares, cars that are as safe and comfortable 6 The validity of this act was repeatedly denied by the inferior fed- eral courts before the question was tinally set at rest by the suineme court. Cully v. Itailroad Co.. 1 Hughes, 536, Fed. Cas. No. 3,460; U. S. V. Washington, 20 Fed. 630; Suioot v. Railway Co., 13 Fed. 337. (G60) Ch. 20; DUTY AS TO ACCOMMODATIJNS. § 256 ill tlieir conditions and appointments as the cars fur- nislieil to white passeno;ers who pay first « lass fares.* Equality of aecomniodation, it is said, does not mean identity of accommodation; and it is not unreason- able, under certain circumstances, to se]»arate white and colored passen«iers on a railroad train, if attention is given to the requirement tluit all jtaying the sajue price shall have substantially the same comforts, priv- ileges, and pleasures furnished either class/ Thus, it has been held that a colored passenger on a steamboat who refuses to leave the supper table, on objection be- ing made by Avhite passengers, has no right of action against the owner and captain for the latter's act in or- dering another table to be set for the other passengers; his supper being served, and he not being obligl«»ix'(l passengers from the first-class sleeping :- ist so long as white men are distinguishcil from tho other race bv color — has no tendencv to destrov the le- gal equality of the two races, or re-establish a state of involuntarv servitude."* Xor do these statutes vio late the fourteenth amendment. ''The object of th.' amendment was undoubtedly to enforce the absolute violation, tlie state alone can sue. Id. lUit a n(^gi-i> pa-^senser may recover for pain suffered by reason of the failure of a railroad cnm- pany to furnish the car set apart for colored passengers with equal accommodations to those furnished for wliilt> passengers, fain suf- fered from retention of urine, because of the failure of a railroad com- pany to furnisb lue car set apart for negro passengers with a water closet, will enable a colored passenger to maintain an .utiou for dam- ages. Henderson v. Railway Co. (Tex. Civ. App.) 38 S. W. li:;<; The separate coach law does not give a riglit of action merely btn aiis • equal accommodations are not furnished colon>d passengers, but it must appear that such a pa.ssenger has sulTered some special liamag.'s by reason of the unequal accommodations. Id. .V lailioad comiiany which has furnished a trail} with separai-- <:ir accommodations for colored persons, as required by statute, caimot be convicted criminally for the refusal of third jiersons, who have ( liartered it. to p.-rmlt .ol ored passengers to use the cars intended lor them. LoiiisvilU' A: .\. 11. Co. V. Com. (Ky.) 37 S. W. 79. 3 ■Louisville, N. O. & T. Ky. Co. v. Mississippi. i:53 II. S. r>.S7. 10 Sup. Ct. 348, aftiriuiug GG Miss. GG'J, G South. lii U. S. 5:J7. IG Sup. Cl. lliJS. allln.iinu I.". La. Ann. 80, 11 South. VMS. § 257 CARRIERS OF PASSENGERS. (Ch. 20 equality of the two races before the law; but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce so- cial, as distinguished from political, equality, or a com- mingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contract, do not necessarily imply the in- feriority of either race to the other, and have been gen- erally, if not universally, recognized as within the com- petency of the state legislatures in the exercise of their police powers." "So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute is a reason- able regulation, and with respect to this there must necessarily be a large discretion on the part of the leg- islature. In determining the question of reasonable- ness, it is at liberty to act with reference to established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the pres- ervation of the public peace and good order. Gauged by this standard, we cannot say that a law which au- thorizes, or even requires, the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate^schools for colored chil- dren in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures." ° 5 Id. The court further said: "We consider the underlying fallacy of plaintiff's argument to consist in the assumption that the enforced (6G4) Ch. 20) DUTY AS TO ACCOMMODATIONS. {j 2oS § 258. SAME— STATUTE REQUIRING EQUAL ACCOM- MODATIONS. In mtinY of the yortlieru states, and in sdnn- of iIk- Southern states?, during reconstrn* lion tinics and shortly after the Civil War, statutes were passeil se separation of tlio two races stamps the colored race with a l>a(l;:<' of inferiority. If this be so, it is not by reason of anytliiug foniul in tlio act. but sohly liecausc tlu' colored race chooses to put that coustruc- liou upon ir. The argument necessarily as-umes that if. as has more Thau ouce Vieen the case, and is not unlikely to be so aRain, the col- ored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position, ^^■e imagine that the white race, at least, would not acquiesce in this assumpti.m. Tbe .•irgument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro ex- cept by an enforced commingling of the two races. We cannot ac- cept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural aftinities, a muiunl appre- ciation of each other's merits, and a voluntary consent of Individuals." Mr. Justice Harlan delivered a powerful dissenting opinion in this case. Among other things, he said: "It was said in arginnent thai the statute of'Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argiunent does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not .so much to exclude white persons from railroad cars occupied by tlie blacks, as to exclude colored persons from coaches occupied by or a.ssigne«l to white persons. Railroad corporations of Louisiana did not make dis- crimination among whites in the matter of accommodation for trav- elers. The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks, to compel the latt.-r to kee]. to themselves while traveling in railroad pa-ssenger coaches. No one would be so wanting in candor as to assert the contrary. The fun.Ja mental objection to the statute, therelore. is that it ini.Tleres with the personal fn-edom of citizens, q-ersonal lilM-rty.' it has U-en well said 'consists in the power of locomotion, uf cl.unglni; .sli.iatl.m. or § 258 CARRIERS OF PASSENGERS. (Cll. 20 cui-ing to all persons, irrespective of color, the right to the full and equal enjoyment of the accommodations and privileges of inns, public conveyances, and places removiug one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.' 1 Bl. Comm. 134. If a white man and a black man choose to occupy the same public convej'ance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each." "State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which musi do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and the black races in this country. That argument, if it can be properly regarded as one. is scarcely worthy of consideration; for social equality no more ex- ists between two races when traveling in a passenger coach or a pub- lic highway than Avhen members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of a oters, or when they approach the ballot box in order to exercise the high privilege of voting." "The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the "law established by the constitution. It cannot be justified by any legal grounds. If evils will result from the conmiingling of the two races upon public highways established for the beuetit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our peojile above all other peoples. But it is difficult to reconcile that boast with a state of the law which practi- cally puts the l)rand of servitude and degradation upon a large class of our feUow citizens,— our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done." (66G) ('h. 20) DUTY AS TO ACCOMMODATIONS. § 258 of amusement.' It was held by the fei»lies to interstate commerce.- But such statutes, under the re- cent decisions above mentioned, would certaiiil.v seem to be a valid exercise of the police power of i In- states, if confined to commerce within the states. It has also been held that an act of con«;ress giving a railroad com pany the right to construct its road in the District of Columbia, with a proviso that no person shoidd be ex- cluded from the cars on account of color, is binding on the compau}^ after it has acted on the grant; and sm Ii legislation, enacted in 1803, is not satistie3, p. 1283, c. 14a, S 1; Laws N. Y. 1881, c. 400. 2 Hall V. De Cuir, [)o U. S. 485, reversing De Cuir v. Buu-son, 27 La. Ann. 1. 3 Railroad Co. v. Brown, 17 Wall. 445. Under Act Ta. .March 22. 1867 (P. L. 38), which prohibits railroad companies from oxchidin;,' colored persons from trains, or from setting apart cars for their usf. the mere fact that a colored person was excluded from a particiilnr car in the train is not sufticiont to sustain a recovery of the penalty provided by the act, but it must appear that the exclusion was on account of race and color. Central K. Co. v. Green, 86 Pa. St. 421. This penalty is given by way of punishment to the (iffrnder, nilhiT than by way of compensation to the person aggrieved; ami where, therefore, two colored per.sons, husliand and wife, are e.xduded from a car at the same time and by the same employe, a recovery in riglii of llie wife bars a recovery by the husband, on liie principle liiiii penal statutes must be strictly construed. Id. A eulnre*! passenger, accompanied l>y hi.s family, who liad pnicliaseil tickets on a steainlMiai entitling him to Ijcrlhs, rcviuested thai the berths be exchanged for u ((il>7) §218 CARRIERS OP PASSENGERS. (Ch. 20 Stateroom. On the refusal of the otHcers to do so, he demanded a return of his passage money, which was refunded, and he voluntarily left the boat. Held, that there was no evidence of discrimination on account of color; that after having sold their berths to plaintiff, and he having secured them, defendant was not bound to rescind the con- tract, and buy back the berths, and run the risk of selling them over again. Miller v. Steamboat Co., 58 Hun, 424, 12 N. Y. Supp. 301, af- firmed Vio N. Y. (jlL', 32 N. E. 645. (6G8) Ch. 21) FARES. § 259 CHAPTER XXI. FAKES. ^ 2r.9. Right to— Reasonableness. 2(J0. State Regulation. 2G1. Same— Of Street-Raihvay Fares by City. 262. Same — Interstate Commerce Act. 263. Same— Penalty for Excessive Fare. 264. Same— Free Passes to Public Officers. 265. Same-^Sale of Tickets by Scalpers. 266. Mode of Payment. 267. Time of Payment. 268. Higher Train Fare, 269. Same— Reasonable Opportunity to Pun-liase Ticket 270. Same— Excessive or Unreasonable Train Fare. 271. On Freight Trains. 272. Free Pass— Contract for. 273. Remedies of Carrier for Nonpayment. 274. Recovery F.ack by I'assenger. § 259. RIGHT TO— REASONABLENESS. At common law, a common carrier has the right to charge a reasonable compensation for the transportation of passengers and property, but he must not unjustly discriminate against any person or place. As a matter of course, a common carrier is entitled to compensation for his services in transport! n-; either property or persons. In cases of cori)()rati<)iis, no ex- press grant of power is necessary to (M.nrci- i li«' i'iliIii to charge and collect compensation for sii.li scivi.-.s. I.iii such right is implied In.m llio jiiitliority to cii^a-r in HWJ) § 2G0 CARRIERS OF PASSENGERS. (Ch. 21 the business of carrying.^ The only limitation, at common law, on the carrier's power to make charges, is that they must be reasonable,^ and that he must not unjustly discriminate against particular persons and localities/ g 260. STATE REGULATION. A state legislature has the power to fix rates for the transportation of passengers and property by railw^ays, in the absence of a charter con- stituting a contract with the corporation, pro- § 259. 1 Boyle v. Railroad Co., 54 Pa. St. 310; Pennsylvania R. Co. V. Sly, 65 Pa. St. 205, 211. 2 In Interstate Commerce Commission v. Railroad Co., 145 U. S. 263. 12 Sup. Ct. 844, it was said that, prior to the enactment of the inter- state commerce act, "railway ti-afflc in this country was regulated by the principles of the common law applicable to common carriers, which demanded but little more than that they should carry for all persons who applied, in the order- in which goods were delivered at a particu- lar station, and that charges should be reasonable." 3 In Atwater v. Railroad Co., 48 N. J. Law, 55, 2 Atl. 803. it was said : 'At this day it would be superfluous to enter upon a discussion to- support the doctrine, so well settled, that common carriers are public agents transacting their business under an obligation to observe equal- ity towards every member of the community, to serve all alike, with- out giving any unjust or unreasonable advantages by way of facilities- for the carriage or rates for transporting them." In this case it was- held that a railroad company, chartered as a carrier of passengers and fi'eight, is under no obligation to establish commutation rates for a particular locality; but when it has established such rates, and com- mutation tickets are sold thereat to the public, the refusal of such a ticket to a particular individual, under the same circumstances and upon the same coiulitions as such tickets are sold to the rest of the public, is an uuju:-.t discrimination against him, and a violation of the principle of equality which the company is bound to observe in the- conduct of its business. (C70) Ch. 21) FARES. § 2G0 vidad that what is done does not amount to a regulation of forei^^n or interstate commerce; and the extent of judicial interference is pro- tection against unreasonable rates. In Mimu y. Illinois,^ the supreme court of tlie I'nitetl States hiid down this broad j)rin«.ii»le: "Pr<»]K*iiy does become clothed with a iniblic interest whiu iiscd in a manner to make it of public eouseqiu'iicc, and af- fect the community at large. When, therefore, one de votes his proi^ertv to a use in which the public has an interest, he, in effect, grants to the public an iiiter(»st in that use, and must submit to be controlled bv the public for the common good, to the extent of the inter- est he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control." h was ;ic cordingh held that the legislature of Illinttis liad the power to regulate the charges for the storage of grain in the elevators and warehouses in that state. In < Mii- cago, B. & Q. E. Co. v. Iowa,- decided at the same time, it was further held that railroad companies, being en- gaged as common carriers in a public emph>ynieut af- fecting the common interest, are subject to legislative control as to their rates of fare and freight, unless pro- tected by their charters. Since these decisions have been rendered, it has become the settled law (»f iliis country that the legislature of a state lias power to § 2G0. 1 94 U. S. 113. In this case it is said tliat in J-.n;:lan(i tin- chartres of common cnnicrs liave been rejiulated by slainic since the reife'n of William and Mary. 2 04 U. S. 15.J. (<:71) § 260 CARRIERS OF PASSENGERS. (Ch. 21 prescribe the charges of a railroad com pan}' for tlie carriage of iDassengers and merchandise within its lim- its, in the absence of any provision in the charter of the company constituting a contract vesting in it au- thority over those matters, subject to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use witliout compensation, and that what is done does not amount to a regulation of foreign or in- terstate commerce.^ In most, if not all, the states, a constitutional provision at present exists reserving to the state the power to alter, repeal, or amend char- ters of corporations, or the laws under which they are organized. Under such a constitutional reservation, the legislature has the power to regulate the charges for the carriage of passengers, without impairing the obligation of any contract, provided the regulations are not so unreasonable as to work injustice to the corj^oration.* In many of the states, laws have ac- 3 Georgia Railroad & Banking Co. v. Smitli, 128 U. S. 274, 9 Sup. Ct 47; Ciiicago & G. T. Ky. Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. 400; Storrs v. Railroad Co., 20 Fla. 617, 11 South. 226. A statute re- quiring railroads operating in this state to issue, at a certain rate, mile- age books entitling the holder to "travel one thousand miles on the lines of such railroad," is intended to make such mileage books good ■only for passage between points -in the state, and therefore does not, as regards railroads extending beyond the state, interfere with interstate commerce. Beardsley v. Railroad Co., 15 App. Div. 251, 44 N. Y. Supp. 175, affirming 40 N. Y. Supp. 1077; Dillon v. Railroad Co., 19 Misc. Rep. 116, 43 N. Y. Supp. 320. 4 St. Louis & S. F. Ry. Co. v. Gill, 54 Ark. 101, 15 S. W. IS; St. Louis & S. F. Ry. Co. v. Ryan, 56 Ark. 245, 19 S. W. 839. See, also, Hinckley v. Railway Co., 38 Wis. 194; Attorney General v. Chicago & :s'. W. Ry. Co., 35 Wis. 4:.'5. In the absence of such a reservation of (072) Cll. 21) FAKKS. § 2G0 cordingly been passed fixino- tlie maximum rate of fare for passengers at a certain sum per iuil(\' in oiliers, railroad commissions have been created, with |>o\vrr lo tix a schedule of rates. It has been licl.l iluit ilir .on- ferring of this authority on the commissiiui is Udi void as a delegation of legislative or jiKliciji! powers to a body not authorized to exercise tJKMu." So, congress has power, in the ease of railroad comiianics which power, liowever, the charter of a raiho.-ul coiniiany is a luiiiract Im-- tweeu tlio state and the coinijany: ami the rej^uhiliou by thi" U';L;ishilun' of Charlies for freijrht and passeni^ers impairs the ol»li;,'ation of thai contract, within tlie meaning of tlie federal eonstinninn. and is void. PhihKlelphia, W. & B. R. Co. v. Bowers. 4 Houst. (Del.) 50G. i> Between two and three ('(>nts per mile, accordinj; to tlu' gross earnings of each company. 1 How. Ann. St. Mich. § li:i2:\. sultd. !•. Three cents ])er mile. Pub. Gen. Laws Md. art. 23, p. 353, § 170; Conip. St. Neb. 1803, c. 72. art. 9. §§ 1, 2; Rev. St. Ohio 1SJ)0. § 3374: Sayles' Civ. St. Tex. art. 42.J8b, § 9. Three and one-half cents, McClain's Code Iowa 188S, § 20(>n. Between three and four cents per mile, according to classification of roads. Rev. St. Mo. ISSii. s 22i;. requires railroad companies to charge for Sunday travel the highesi regular fare charged on week days, and prohibits connuutation tickets on that day. Under Act Ohio March 30, 1875, whicli limits the maxi- mum fare for passengers on railroad trains to thrtv cents ])er mile, "for a distance of more than eight miles, provided the fare shall al "ways be made th.it multiple of live nearest reached by multiplying the rate by the distance," a railroad company has the rigid to charge in least 25 cents for any distance greater than eiglit miles; and for a distance less than eight miles any rea.sonaltle sum not exe. § 2(n. 1 Sternberg v. State. 3(1 .Neb. .307, ."4 N. W. .".."..•.: Soiiih Civ- ington & C. St. Ry. Co. v. Berry, i>3 Ky. J."!, is S. \V. Kn'i;; State v. Inliabitants of Trenton. .^.3 N. .T. I.au. ITS, i:n .Ml'. KiTC; St. l.uuls v. Railroad Co., S!» .Mo. 44. 1 S. \V. .Xi'.. ((175) § 261 CARRIERS OF PASSENGERS. (Ch. 21 may confer siuh power upon munici])alities.^ Gener- ally, the power to regulate these companies is expressly reserved by the cities in grants to them of the right to nse the streets. Under a reservation of power to fix fares, the city may require tickets, 6 for 25 cents, to be kept for sale by each conductor of a street ( ar.^ But an ordinance limiting the fare of street railwavs to five cents does not require a company to carry to his desti- nation, for a single fare, a passenger who boards a car which goes only part of the way, and then diverges, but it may charge him another fare when he enters the con- necting car, though, if he had taken that car in the first instance, he could have gone through for one fare/ So, an ordinance granting a franchise to a street-rail- way company, authorizing it to charge persons resid- ing in a distant section of the citv double the fare it may charge persons residing in other portions, is not invalid, as an unreasonable discrimination in favor of common carriers; and a passenger residing in the pro- hibited district may be expelled for refusal to pay th'^ double fare.^ 2 Dean y. Railway Co., 64 111. App. 1G5. 3 Sternberg v. State. 30 Neb. 307, 54 X. W. ."..j3. In this case it was said: "A street railway has no depots. Its stopping places are on each street corner, and it transacts its business with the public in its cars, and its ticlvets should be kept on sale where it transacts its busi- ness with the public." 4 Ellis V. Railroad Co., 07 ^^'is. 135, 30 N. W. 218. 5 Robira v. Railroad Co.. 4.j La. Ann. 1308. 14 South. 214; Forman V. Railroad Co., 40 La. Ann. 440, 4 South. 240; Dc^ L-cas v. Railroad Co., 38 La. Ann. 930. (670) Cll. 21) FAKES. § 2i>2 g 262. SAME— INTERSTATE COMMERCE ACT. On February 4, 1S87, ((Hiiiress, uiulor tlio power con- ferred on it by the eoniiuerce clause of the fcMh-ral con- stitution, empowerinu it to rejLiulate coniinci-cc wiih foreign nations, and auiou^i; the several stales, |.;iss.m1 what is known as the "Interstate Comnu'rce Act."' § 2G2. 1 24 Stat. 379. The provisions of this act. so far as aiii>ll«n))h' to carriers of passeujrers. are as follows: "Section 1. * * * All cliarires for any service rcndcrcil in tlie transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving:, delivering, storage, or handling of sucli property, sliall be reasonable and just: and evciy nnjiist and unrea- sonable charge for such service is prohibited and declared unlawful. '•See. 2. That if any common carrier subject to tlie provisions of this act shall, directly or indirectly, by any special mte. rel»ate. dnnv- back. or other device, charge, demand, collect, or receive from any per- son or persons a greater or less compensation for any service render- ed or to be rendered in the transportation of passengers or property, subject to the provisions of this act, tlian it c-harges. demands, col- lects, or receives from any otlier person or persons for doing for him or them a like and contemiwraneous service in tlie transportation of .i like kind of traffic under substantially similar circumstances and con- ditions, such conmion carrier shall be deemed guilty of unjust dis- crimination, which is hereby proliibited, and declare«l to be unlawful. '•Sec. o. That it sliall be unlawful for any common carrier sul»ject to the provisions of this act to make or give any imdue or mircasonubl.- preference or advantage to any particular per.son, coini>any. linn, or locality, or any particular description of traffic, in any respeii * "Sec. 4. That it shall be unlawful for any .-ommon carrier s\ibj«vi to the provisions of tliis act to charg.' or receive any greater cmiK'n sation in the aggregate for th.. trans,„.itaiinn of passengers or of like kind of property, under substantially similar .in un.stances an.! con (r i-ecei\ c diieci Iv from one person a greater oi- less compeiisaiion ilmn from anotlier, or must acconi])lish the same ihing in directly bj means of a special rate, rebate, or other d vice; but in eitlier case it must be for a "like ami « on temporaneous service in the transportation ol a liUe kind of traffic, under substantially similar ciicumstan ces or cjnditions." - Hence it was held that a railroad company may issue and sell a i)arty-i-ate ticket, good for ten or more persons, at a lower price per cajtil a t h:i n a single ticket for a single ])assenger. ' So, the pio\ i sion against unjust discrimination is not vi> , 1 IT. I . S. "Jt:.".. \- Sup. Ct. 844, affinuiiif,' -i'-i I''n, and to cunipt'l the jtay- ment of such a sum by the company viohitin^ the law as will effectually stop the praetice.^ The faet that plaintiff took passaut the penalty for refusal to jjive a transfer to "any passt'ujri'r dt'sir injr to make one eontinuous trip" lietween any two points on a strct't- raihoad system cannot be recovered by one who demanded a tninsf.-r with the sole object of recovering for a refusal. lie did not ih-sirc lo make a continuous trip between two points on tiic conneciiiin lint's. His whole purpose was not to be transferred at tin- point wIum-c lie made his demand. Myers v. Railroad Co.. Hi App. l>lv. li:',o, 41 N. V. Sui)p. 7!)8. -o Railway Co. v. Smiili. r.e \vk. 221. 2;> S. \V. 7:.2. c Railway Co. v. Clark. .'S Ark. 4!t0, 25 S. W. .Mil. 7 Railway Co. v. Smitli, <;<» Ark. 221. 2'.i S. W. 7.V2. .ludyment r..r llu' ();S1) § 263 CARRIERS OF PASSENGERS. (Cll. 21 vent extortion by railroad companies does not apply to street railroads, whose fare for the transportation of passengers is fixed or regulated by contract with th;^ city authorities bestowing the grant.** statutory penalty for an alleged overcharge of fare is not a bar to an action by the passenger for his wrongfnl ejection from the train be- cause of his refusal to pay the alleged overcharge. St. Louis & S. F. Ky. Co. V. Trimble, M Ark. 3.j4, I.j S. W. 899. 8 Moneypenuy v. Railroad Co., 7 Rob. (N. Y.) .328; Hoyt v. Rail- road Co., 1 Daly (X. Y.) .')28. The New York general railroad act of IS.jO, which confers on existing railroad companies all powers and privileges conferred on railroad companies to be organized under it, enables railroads theretofore ci-eated by special charter to charge a fare of three cents per mile,— the fare prescribed by the general law.— thougli the charter limits it to a smaller sum. Johnson v. Railroad Co., 49 N. Y. 4.">."), reversing 2 Sweeney (N. Y.) 298. Where a domes- tic company organized under Laws N. Y. 1860, c. 70.3, as amended by Laws N. Y. 18()9, c. 722, which does not prescribe any limit as to fares, is opei'ated by a foreign corporation under a lease, it must ap- pear that the domestic corporation was afterwards organized under the general railroad act of 18.j0, and its amendments, prescribing the rate of fare, before the lessor is liable for the penalty prescribed by that act for extortion. I'alni v. Raih-uid Co., .58 X. Y. Super. Ct. r>02. 12 N. Y. Supp. 5.14. ( )n motion to set aside the service of a sunnnous on the ground that tlie action is for a penalty given by statute, and that a copy of the complaint was not delivered to defendant with the copy of the sunnnous sei'ved, as required by Code Civ. Proc. X. Y. § 1897, an averment on information and belief in tlie moving atlldavits as to the nature of the action is insufficient, without stating the source of information or the grounds of belief. Delisser v. Railroad Co.. 20 Civ. Proc. R. 312, 14 X. Y. Supp. 382. Laws X. Y. lS.-)7, c. 185. which provides that a passenger charged an excessive fare may recover a penalty of !?50, gives a right of action only to the person aggrieved, -and not to a common informer; and hence the snnuuons need not be served by the sheriff, as required liy Code Civ. Proc. § 1895, in actions by common informers for penalties. C^uade v. Railroad Co., .59 X. Y. Super. Ct. 479, 14 X. Y. Supp. 875. In such action, an objection that the summons was not served by the proper person can only be made (GS2j Ch. 21) FAKES. § 2G4 § 264. SAME— FREE PASSES TO PUBLIC OFFICERS. Quite recently the issuance of free passes to piblic ofticei's has been forbidden by statntorv (»i- coiisiitti- tional provisions in various states.' It has bt-cii lu'ld that even a notaiT public is a public otlicer, witliin the meaning of a constitutional inhibition a,i:aiiisi ili.- transportation of any "public officer" on a lice i»;iss; and, tliotigli he rightfully receivecl the free pass before the constitution went into effect, yet he is prohibited from thereafter using it while he continues to hold i h-- ofiice.^ Btit the railroad commissioners, in tJie dis- charge of their official dnties, nuiy travel on passes signed by the secretary of state, requiring railntad on motion to set aside tlie service, and is waived by ansnerin?. Aimer V. Railroad Co.. 20 Civ. Proc. R. 818. 14 X. Y. Supp. :i(;.-,. Rut in Burlie V. Railroad Co., 15 N. Y. Supp. 14S. it was held tliat an allejia- tion in the answer that the summons was not ijrojierly served nnist he speeifieally pleaded as a defense, and must he sei)arately stati-il .md numbered. Under the United State.s internal revenue aet of 18U4 d.". Stat. 28(j), which imposed a tax of 214 per cent, on the ^n-oss receipts of railroad companies, and authorized tliem to adortiou:il amount of liie tax on each passenger is only a fraction of a cent. Rlacii v. Railn>;id Co., 1 Daly (N. Y.) .-..i'i. § 2M. 1 Rev. St. l-'la. 18!)2, § 2(i8'.); ("oust. Ky. S I'.iT (C.-u. St. 1S!M. p. 1.3S); Rev. St. Mo. 1889, §§ :J8H:{, :JS(!4; Const. .\". V. IS'.C. art. 1.'.. § .5. Rev. St. Fla. 1892, § 2091, al.so proliihits iln- issii.-iii.c i>f sm-h passes to delegates to political conventions. Ann. Cnilr .Mi.ss. S 12.".ii. malies it a misdemeanor for :iiiy public olliiial tn iiavd (»n railio;ids Avitliout paying full fare. I'lib. St. .\. 11. IS'.U. p. I.VJ. SS .''i 7. pro- hibit the issuance of free passes exiM'jii to rallnad olllclals and iK)or .persons. 2 People V. Rathbone, 145 N. Y. 4:; I. In N. K -Au:,. (US.J) § 2G5 ' CARRIERS OF PASSENGERS. (Ch. 21 companies to carry them without charge, as provided by statute.-^ But a public officer traveling on a free pass issued by a street-railroad company is estopped, in an action for injuries caused by the negligence of the company, from setting up that the pass was void under the constitu- tion, prohibiting the issuance of free passes to public officers, and that the conditions attached to its accept- ance and use were consequently inoperative.* § 265. SAME— SALE OF TICKETS BY SCALPERS. If a business, as that of common carrier, is a proper subject of police regulation, so are its incidents aud accessories; as, for example, the issue and sale of transportation tickets.' A statute which require? railroad companies to issue tickets only through au- thorized agents appointed in a particular manner, and which prohibits the transfer of tickets by purchasers who fail to use them, but requires their redemption by the railroad, is not unconstitutional, as depriving the purchaser of his property without due process of law. The ticket is not destroyed or taken from the holder, nor is his right to ride on it at all limited. The only limitation is on his right to transfer it. A man has no constitutional right to insist that these contracts for transportation shall be transferable. Neither is such a statute unconstitutional as "class legislation," grant- 3 Laws X. Y. 1SS2, c. 3.'.:;; In re Board of Railroad Com'rs, 11 Misc. Rep. 103. 82 N. Y. Su])i.. 111.",. 4 Muldoon V. Railway Co., 10 Wash. .311, 38 Tac. On.j. § 2(!.j. 1 State V. Corbett, .57 IMiiiu. 34r>, 59 X. W. 317. (084) Ch. 21) FARKS. § •2iti\ ing special privileiies to carriers, nor as a tl (^legation of the police power of the state to urani licenses t(» m gage in bnsiness, or as an inicrrcrence with intcrsiare commerce." Bnt a sale of a raili'oad tickcl ]>y a seal])!-!-, if \;ili. 4 Elstou V. Fieldiiuiii. 'u .Minn. 70, .">S .\. W. S.".0. § 266 CARRIERS OF PASSENGERS. (Ch. 21 future. Only two decisions touching this question seem to ha^ e been reported. Both are b^' inferior courts in New York, and they are squarely in conflict. In Moneypenny y. Kailroad Co.^ it was held that if a city railroad company secures a charter allowing it to receive a five-cent fare for each passenger at a time when specie is the lawful currency, and subsequently the general government issues a paper currency, which enhances the value of the original fare, the company will be justified in enhancing the fare to six cents, if paid in paper. But in Lewis v. Kailroad Co.^ it was held that a railroad company is bound to accept United States notes, issued in pursuance of the legal-tender acts of congress, at the value expressed on the face of them, in payment of fare upon its road; and if it ex- acts payment of the legal fare from a passenger, in ad- vance, in gold or silver coin of the United States, it will be guilty of extortion, and liable to the penalty imposed by statute for asking and receiving a greater rate of fare than allowed by law. The probabilities are that the courts, especially if reconstructed by the party in favor of the free coinage of silver at less than its commercial value, would ultimately hold that rail- road companies are bound to accept all legal-tender monev at its face value. A railroad company is under no obligation to trans- port a passenger who has innocently purchased his ticket with counterfeit money, and may eject him from the train if he refuses to rectify the wrong.^ But so § 266. 1 7 Rob. (N. Y.) 328. 2 49 Barb. (N. Y.) 330. 3 Memphis & C. R. Co. v. Chastine, 54 Miss. .503. Ch. 21) FARES. § '2m loiiir Hs a iieimine silver coin is worn onlv l»v lumual iibrasion, is not appreciably diniinislit'd in wriuln. ami retains the ap])earauce of a coin duly issinMl Iritm ilu- mint, it is a leual tender for car fare lo ilir i-Mcin i\\' its orii!,inal valne; and, if ejected for refusal lo makf any other i)aynient, llio passeujier may iiaxc an a«ii\*l 6 Barrett v. llailuay ('<.., «1 Cal. •_".«;. "Jli IMc S.V.I. The tender of a five-dollar gold piece in i.ayin.-nt of a live-cent fare by a pa^senuer oi. (bS7| § 2C6 CARRIERS OF PASSENGERS. (Cll. 21 held that a rule of a street-railroad company requiring the conductor to furnish change to passengers to the amount of two dollars is reasonable as matter of law, that the tender of a five-dollar bill in payment of a five- cent fare is not a valid tender, and that a passenger who declines to pay fare except with such a bill may be ejected, though he was ignorant of the rule.^ .A passenger on a street car, who, by mistake, places in the fare box more money than is necessary to pay his fare, is entitled to have the error corrected in the car; and a rule of the company refjuiring him to make his claim at the office of the company is unreasonable. Where another passenger hands her fare to him, it is entirely reasonable for him to retain it for the purpose of reimbursing himself.* So, where a conductor, by mistake in making change, returns to a passenger too much money, and afterwards informs the passenger of the mistake, and the passenger declines to correct it, a street car is not a refusal to pay fare, within Civ. Code Cal. § 2188, authorizing tlie ejec-tiou of passengers who refuse to pay fare. Id. But the tender, to a conductor on a train, of a !f20 gold piece in pay- ment of a $1.35 fare, is not a reasoualjle tender. Fultou v. Railway Co., 17 U. C. Q. B. 428. ' Barker v. Railroad Co., 151 X. Y. 237. io X. E. 550. The court said: "When the defendant enacted the rule requiring its conductors to furnish change to a passenger to the amount of two dollars, it did all that could reasonably be expected of it in consulting the conven- ience of the general public, and it would be unreasonable and burden- some to extend the amount to five dollars. It would require conduct- ors to carry a large amount of bills and small change on their persons, and greatly impede the rapid (■olIe( tion of fares." s Corbett v. Railway Co., 42 Hun, 587; s. c. 114 X. Y. 570, 21 X. E. 1033. (688) Ch. 21) FARES. § 21.7 the conductor may expel liiui fii'in ilic train at a [M.int to which the money received actually pays the* fare." § 287. TIME OF PAYMENT. A common carrier of passengers may demanil pay ment of fare either at the bejiiuniii.ii of ilir jnuin. \ ..r at any subsequent time.^ On street ijiilr(.ani <»n ordinary railroads the general cnsioni is fm- ilic pas- senger to pay fare by the purchase of a ti* kct lirfoi-c the journey begins, thouoii payment of fare to tin- ton- diictor of the train, on demand, is also practiccMl. I'.ni it has been held that a railroad company has tin- ri.ulit to make and enforce a nile reiiniring i)ass('nii<'i-s at a crowded depot, where trains are constantly arrivinj^ and departing for different points an, the railroad i'i\r^^ of such passenger is the ordinary tiiket fan- and 25 cents additional. Moore v. Rabroad Co.. .38 S. C. 1, IG S. E. 781 . ^'ll- -0 FARES. § 2(;S passengers, who may, if tliev desire to do so, pay tln-ii- fare and procure tickets at the h)w-er rate bcfuiv cu teriiio- the cars; and it tends to protect tlie c<»rpoi'a- tion from the frauds, mistakes, and inconveniences in cident to collecting- fares and makin<» change on trains while in motion, and from imposition by those who may attempt to ride from one station to aiioTlici- wiiliuui payment, and to enable conductors to aticiMl to the various details of their duties on the train an«•- tweeu ticket fare and train fare, but this fact must be pleaded and jiroved. Avey v. Kailrnad Co., 11 Kan. IIS. a Chicasjo, B. A: (}. K. ("o. v. Parks, 18 111. Hid. 4 Sage V. Uailruad Co., i:!4 1ml. KK), :« N. i:. 771. Uni. in an a<- tion for ejecting a passenger wIki refused tti pay tiic hl^zlnr train fare, evidence of the custom of the road not tn make ;iny dlsc-rludna- tion between ticket and train fare is adiiHssilile tt Ih-.-u afforded a reasonable opportunity to purchase a ticket at the station where the journey began, he is not bonud to leave the train at a station en route, and iiurdias ■ a ticket back to the station whence he started, and an- other to his destination. If he is riglitfnlly on the train without a ticket, it is his right to compleie his jdiiiiicy by paying the ticket rate for his fare.'^ ^'o, a < arrier 2 Cleveland, C, C. & St. L. Ry. Co. v. Beckett, 11 In.l. Ap].. :.17. ;i!t N. E. 429; Jefifersonville R. Co. v. Rogers, 28 Ind. 1; St. Louis, A. \ C. R. Qo. V. Dalby, li) 111. 352; Forsee v. Railroad Co., (y{ Mi;c. 7 Id. 8 St. Louis. A. & T. H. H. Co. v. Soulli. 4:*. 111. ITC; Clilcap>. R. 1 & r. R. Co. V. Brisbane. 24 111. -Vpp. 4(;:{: Swan v. Ualln.a.l Co.. l.!-' Mass. 110. A railroad com] any is not liound to keep a liikot aK«-ni at the office, at an ordinary way station, to sell tii-Ucts din-iim the stoppajie of the train, li is sntficient tli:ii ilic n^'cni was liu-n- np to the time of the ai rival of llic train, ol'.yrne v. itailroad Co.. -'tJ I'n. l.;i\\- .T. 117. It is not the comiiany's dtity lo Urcp tin- otll«r open \:ilil the time for the departnrc of the train arrives, jind It heyins to ii:ove. sinee. as a matter of imlilic policy. nrsnn (K.iu. .\pp » 45 I'ac. 075. 14 Missouri Pac. Ry. Co. v. McClaii.ili:iii, tjO Tex. 5:;n, 1 S W. 57il. § 270. CARRIERS OF PASSENGERS. (Ch. 21 facilities for purchasing tickets are such as are re- quired for the convenience of the public at that place/ ^ § 270. SAME— EXCESSIVE OR UNREASONABLE TRAIN EARE. A railroad company cannot establish a train fare in excess of the limit of fare fixed by statute, though the ticket fare is within the limit.^ But the authorities 15 Everett v. Railroad Co., (19 Iowa, 15, 28 N. W. 410, construins? Laws Iowa 1874, o. 68, § 2. Tinder the laws and rules prescribed by the railroad commission of (it'or.yia, it is the duty of railroad com- jianies to keep their ticket ottices open a reasonable time before the departure of trains from all stations, provided that offices at way stations may be closed at one minute before the arrival of trains; and it is the duty of passengers to use proper diligence in supplying them- selves with tickets before getting upon trains. A railroad company is not bound to keep a ticket otfice open eacli and every minute up to the time it may lawfully close the same, provided a reasonable oppor- tunity is afforded all persons desiring tickets to obtain them; nor is a passenger bound to wait at a ticket office an unreasonable time for the appearance of an agent to sell him a ticket, or to call again and again at the otfice to procure one, provided in good faith and with due diligence he endeavors to do so before the time for closing the otfice arrives. In each case it is a question to be detei mined by the jury Mhcther or not the iiarties, respectively, performed the corresponding duties devolving uiuin them, and it is not tho province of the court to decide what particular facts will constitute negligence or diligence by either party, and thus restrict the jury in the exercise of their duty in this respect. Applying the rule that good faith, common honesty, and courteous treatment should be observed on both sides, any fair mind ought to be able to decide readily who is in fault when a pas- senger fails to procure a ticket. Central Railroad & Banking Co. v. Strickland. 90 Ga. 502, 16 S. E. :i52. § 270. 1 Louisville, N. cv G. S. R. Co. v. Guinan, 11 Lea (Tenn.) 98 r Zagelmej-er v. Railroad Co., 102 Mich. 214, 60 N. W. 436. The pen- alty imposed by Laws N. Y. 1857,' c. 185. upon railroad corporations for exacting a greater rate of fare than fixed by statute is incurred (G9S) Oh. 21) FARES. § 270 are in conflict on the question ^^•ll<•tll('l• a train far.' in excess of the statutory limit is rendiMcW vaTnl 1>\ a reu- ulation requiring the condiu-tor 1o issue the passtMi.uer a rebate checlv for the excess, wliicli may be casbcil ai any ticket office of the company. In .Maryland it has been held tliat a railroad tomi»any has no right t<> (*x- act of a passenger a higher train fare than the maxi- mum fixed by law, though it issues U) iiim a rebate ticket which entitles him to a suuj at the company's of- fice which would biing his fare within the legal limit. But in Pennsylvania it has been held that the fact that an extra charge of ten cents to a passenger not procur- ing a ticket makes his total fare exceed the authorized statutory charge for transportation does not render such regulation void, where the company i)royides for the refunding of the ten cents on the presentation ai its ticket office of a check to be issued to iiim l»y i In- ( oii ductor.^ On principle, it would seem that the .Maiy where the conductor illegally requu-es five cents iu addiiitui to tlif lejjal fare because the passenger had uo ticket. Chase v. Kailmad Co.. 20 X. Y. .'>2;'.. Where the train faro fixed by a railroad (.oniiiany i< unreasonable, and beyond the limits of its authority, and the con- ductor of the train refuses to accept from a pas-senger less than the illegal and unauthorized rate, it is not neci-ssary, to entitle the passen- ger to remain on the train, to tender more than the ticket rate, tluuiKii the company might have fixed sucli ticket rate at a higlier sum, or exacted more than the ticket fare from passengers on trains. Smiiii V. Railroad Co., 2:i Ohio St. 10. A rule of a railroad company which requires a passenger to citlici' |iay an .iinnmii in excess of the Idgliesi amount that can be legally charged for his passjige, or be e.xpeile.l from the train, is not a valid rule. Alddson. T. iV: S. V. U. Co. v. Dickerson (Kan. App.i 4.") Pac. ;>7.^.. 2 Baltimore iVr Y. 'I'm-niikc Road v. Hnnnc. \r> Md. ;;H. « Reese v. Railroad Co., l.'ll I'a. St. IJJ, 1'.' .Ml. VJ. § 270 CARRIERS OF PASSENGERS. (Cll. 21 laud decision ifj right, for the passenger ought not to be put to the trouble of having refunded an excessive charge which the company had no right to make in the first place. Even in the absence of statute, a railroad company has no right to fix the train fare at an unreasonably high sum, or to unjustly discriminate in its enforce- ment. But a regulation fixing the train fare 25 cents higher than the ticket fare is not unreasonable.* So, an instruction by a railroad company to conductors not to enforce payment of an extra train fare from passen- gers who have failed to procure tickets, in case such passengers get on at a station where there are no tick- ets on sale, or in case the crowd on the train is so large as to make it impossible for him to issue refunding checks to such passengers, and also to collect fares and tickets, does not render the regulation requiring the payment of the extra train fare void, as not being gen- eral, fair, and impartial.^ 4 McGowen v. Steamship Co., 41 La. Ann. 732, 6 South. 606. 5 Reese v. Raihoad Co., 131 Pa. St. 422. 19 Atl. 72; McGowen v. Steamship Co., 41 La. Ann. 732, 6 South. 606. But if the conductor de- mands a higher rate of fare tliau he is entitled, under the niles of the company, to demand, the demand is illegal, and the company is responsible if the conductor ejects the passenger for his refusal to comply. Wilsey v. Railroad Co., S3 Ky. 511. (700) Ch. 21) FAKES. § 271 § 271. ON FREIGHT TRAINS. A railroad company has the ri^ht to i)rest' i»;isstMij:rrs on its freight trains; and payment of fare to iis oHirc agents, or procuring a ticket, prior to taking passage on sncli trains, is a reasonable condition.' So, a rule pro- hibiting passengers from traveling on through fnighi trains without the written orders of the division super- intendent is reasonable and just; and a passenger r;iii not travel on such a train, though his ticket reads, "Good on anv train." These words have reference onl \ to trains used in the carriage of passengers." As a general proposition, a railrassenger against whom it is enforced need not be pioved. \\\\\ a passenger who takes passage on a freight train with in a few days after the adoption of the rule should be given personal notice, where the regulaiion has not § 271. 1 Cleveland, C. He C. R. Co. v. Hiuiraiii. 11 ulii.i St. l.'iT; Tole;lo, P. & W. R. Co. v. Patterson, (^5 111. :{n4: Falkiirr v. Hallway Co., 5.5 Ind. oGO; Jjx^v v. Uailmad Co., 'S2 Iowa, .^..M: Indlaiiapoils & St. L. R. Co. v. Kennedy, 77 Ind. ;j07. 2 Thomas v. Railway Co., 72 Mich. :^5'^, 40 N. W. M]3. 3 Biuiinpton :i«t- tlnjr on boaid tho train. Southern Kan. Ky. Cn. v. II :i i\:\\ , ;t-» Kaiu 5(17. i<; I'ac. : .■:7. (701) §271 CARRIERS OF PASSENGERS. (Ch. 21 been generally published, and the company has there- tofore been in the habit of receiyiug money on freight trains/ "But, when the company requires tickets to be pur- chased at the station, it must furnish conyenient facili- ties to the public by keeping open the office a reason- able time in advance of the hour fixed by the time-table for the departure of trains. Should it fail to do this, a person desiring to take passage would have the right to enter the train, and be carried to his place of desti- nation, by payment of the regular fare to the conduct- or. To permit a company to complain of the violation of its own rules, necessitated by the negligence of its own agents, would be absurd." ^ So, under a statute which requires railroad companies to maintain depots 4 Lane v. Railroad Co.. 5 Lea (Tenn.) 124; Lake Shore & M. S. R. Co. V. Greenwood, 70 Pa. St. 873. 5 Chicago & A. R. Co. v. Flagg, 43 111. 364. See. to ."^ame effect. Illiuois Cent. R. Co. v. Johnson. 67 111. 312; Cross v. Railroad Co., 50 Mo. Appi 664; St. Louis & S. E. Ry. Co. v. Myrtle. 51 Ind. 566. A passenger who is luiable to procure a ticket because the ticket oflice is closed has a right to ride on a freight train carrying passengers on tendering the usual fare, though a rule of the company requires the purchase of tickets; and where he prociu'es a ticket at an interme- diate station, and offers to pay in money the fare for the distance al- ready traveled, the conductor has no right to eject him, on the ground that he failed to procure another ticket from the intermediate station to his starting point. Brown v. Railroad Co., 38 Kan. 634, 16 Pac. 942. But in Jones v. Railway Co., 17 Mo. App. 158. it was held that, though a rule of the company forbids passengers to ride on freiglit trains without a ticket, the company is under no obligation to furnish facilities for obtaining tickets for freight trains at a station at which it has no agent, and at which freight trains are forbidden to take on passengei*s. So. in Partee v. Railroad, 72 Ga. 347, it was held that the rule of the railroad commission prescribing the manner in which (702) •Ch. 21) FARKS. § 272 and receive passeii«i,ei'S at iuifi sections \viili mlin- rail- roads, a railroad couipauy whiih has no dcpm ai such a point of interseetiou cannot expel a passenger liniu a freight train, who tenders the proper fare, for failiiif to purchase a ticket before euterinj; the car, as rccpiircd by the rules of the company." So, railroad c«>nii>aiii«'s have uo right to discriminate between persons, and sell tickets to some, and refuse others, good for pjissage on freight trains. A person having duly ai)plicd for a ticket, and having. been refused, without jiisi rausr, would have the same right to be carried upon paying, or offering to ])ay, the ticket rate of fare, as if he had previously purchased a ticket; and the conductor has no right to charge him the higher ti-aiu t'are.^ § 272. FREE PASS— CONTRACT FOR. A contract by which a railroad com])any agrees to is- sue plaintiff an annual pass receives a practical con- struction by plaintiff's ap])licatiou for a renewal (►f the pass at the end of the hrst year; and atiei- the expiia tion of the second year, where he neglects to apply for ticket offices shall he kept open before and after llie arrival <>f train- applies only to rejnilar lasseufjer trains; and one who takes pas>n«e on a freight train may be required to pay the hijrhcr train fare. tiioiiK'li the ticket office was not open. 6 Eddy V. Rider, 71) Tex. 53, 15 S. W. ll.:, construlnp Kev. St. Tex, art. 4l'.''.S. It was further held that it is a inatifr <.f im iiiiporiauco that there was a station not very distant from that at wld.li iln> pas senger entered the car. at which tickets miK'lil have i)ceii iinu;;lit; for he was entitled to enter tlie train at any point made by law a siaiion for the reception and discharge of passengers, and to be carried (here- from to his destination on compliance, or tender of co'iipllance. with the terms iirescribed l>y law. 7 Iiidiaii.iiM.lis. r. \- C. Ky. Co. V. Kinanl. HI Ind. -"X;. ( 70:5 1 §272 CARRIERS OF PASSENGERS. (Ch. 21 a renewal, and is ejected from a train for nonpayment of fare, he cannot be heard to say that it was the com- pany's duty to issue a pass without application there- for/ But one whom a railway company has contract- ed to carry "free of charge" is under no obligation to apply for a pass; and, if none is furnished him, he has a right to ride without one. Hence the company is li- able for his expulsion from one of its cars because of his refusal to pay fare,^ A verbal agreement by a railroad company, upon val- uable consideration, to issue at the first of each vear an annual pass to plaintiff, for himself and family, for ten years, is not within the statute of frauds, rendering- void oral agreements which are not to be performed within one year from the making thereof, since, by the death of plaintiff and his family, the contract may be performed in one year.^ A contract to issue or procure the issuance of railway passes, annually, through the life of the promisee, is not an entire contract, but di- visible by yearl}' renewals, and the measure of damages for the breach of the same is the value of the transpor- tation to such promisee during the years the breach has occurred, and may be sued upon for each succes- sive breach.* An agreement of a railroad company to issue plain- tiff a pass for life is not binding on the purchaser or les- see of the road, in the absence of an agreement to as- § 272. 1 Knopf v. Railroad Co., 85 Ya. 7G1), 8 S. E. 787. 2 Grimes v. Railway Co., 37 Minn. 66. 88 N. W. 33. 3 Weatherford, M. W. & N. W. Ry. Co. v. Wood, 88 Tex. 191, 30 S. W\ 859; Railway Co. v. English. 38 Kan. 110, 16 Pac. 82. 4 Curry v. Railway Co. (Kau. Sup.) 48 Pac. 579. (704) Ch. 21) FARKS. ^ JTo Slime tlio obliiiatif)!!, tlumuli it ((iiiiiiim's td !•<• hiiidini; (11 the original company wliiili mad** thtMuiiti-att. Sn, a vote of stockholders of a railroad comi)any i»» issut- to the president a pass for life is a mere license, aiid is revoked by a lease of the road t(> another (•(»nii)any ; and the lessee is not bound to honor the ])ass/ Sm, an agreement by a railroad company, in consideiaiinii ..f the grant to it of the right to nse water from tei tain land, that the owner of the land shonhl be eiiiiiled lor ever thereafter to travel withont charge ni»on the trains of the com])any, does not give him a right t(^ fni' transportation over lines subsequently constnicied nr leased by iV A passenger holding a pass good to a specified station has the right to be carried thereon to any intermediate station; and the conductor has no right to eject him for refusal to pay fare to thai sta- tion.^ § 273. EEMEDIES OT CARRIER FOR NONPAYMENT, The carrier has various remedies at his disposal for nonpayment of fare by a passenger. In the first place^ if a passenger refuses to give up his ticket or ]iay fai-e^ an action will lie against him for the amount of his fare.^ 5 Edtlv V. lliunant. S2 Tex. ^!54, IS S. W. 502; Dallas rousol. Trac- tion Ry.' Co. V. Maddox (Tex. Civ. App.) 31 S. W. 702: Dickoy v. Ilnil- load Co., 122 Mo. 32:3, 26 S. W. n(;. ^ 27:i. 1 Northern K. Co. v. l'a«e. 22 Harh. (N. Y.) V.Vl Hut one uho crosses a river in a boai imi Whrnamii u, the ..wuer of the '"•AT \ V. 1 KKT.CAR.PAS. I •") ^* "'' ' § 273 CARRIERS OP PASSENGERS. (Ch. 21 But by far the most common remedy employed by the carrier in such cases is the remedy of self-help; i. e. the ejection of the passenger from the vehicle. This sub- ject is so large that it will be treated in a chapter by it- self.^ But, while the carrier may eject a passenger for nonpayment of fare, it has no right to then and there detain and imprison hini until he does pay. At most, the passenger is a debtor to the carrier for the amount of his fare, and that debt could be enforced against hiui by the same remedies which any creditor has against his debtor.^ But a passenger who attempts to leave a steamer without producing his ticket, as required by the company's rules, and who claims that he has lost it, may be detained on board of the boat for a reasonable time to enable the company to investigate on the spot the circumstances of the case, where he knew of the regulation when he became a passenger.* ferry, and wiio lands by steiiplng from the ferryman's boat, is not liable for the rate of ferriage allowed by law, tliousjli he may be liable for an invasion of plaintiff's franchise, or for trespass. Heniy v. Turner, 2 Port. (Ala.) 23. - S( e post. e. 24. The carrier lias also a lien on the i assenyer's bag- gage. See post, § (Joi. 3 Lynch v. Railroad Co.. 90 N. Y. 77. In this case it was further said: "If defendant had the right to detain him to enforce payment of the fare for ten minutes, it could detain him for one lioiu', or a day, or a year, or for any other time, until compliance with its de- mand. That woiild be arbitrary imprisonment l)y a creditor without due process or trial, and continue during his will until the debt should be paid." 4 Standisli y. Steamship Co., Ill Mass. .J12. But in Com. v. Schultz (1810) Brightly, X. 1'. (Vn.) 2!), it was, held that an agreement between a master of a vessel and a iiassenger, that the latter shall remain on board until he has paid his lassagc money, is valid. Tiighman, ('. .J., .said: '"Having no money, nor l:eing able to lind security at Anister- Ch. 21) FARES. § 273 111 Eiio-laiid and in some of the states of tins country, it is declared to be a misdemeanor for a passenger to enter a railroad train for passage, witli intent to evade payment of faie> Tlie penalty prescribed by the New- Jersey statute against any one who entei-s a train with- out paying his fare, and with intent to avoid payment of it, is not recoverable from a passenger who takes a train which does not stop at the station for which he holds a ticket, and who rides to the station beyond without payment of fare, where he was informed when he took the train that it stopped at the station named in his ticket.'^ dam. they stipulated not to leave the brig: till they had paid their passage money. They knew very well that they could make no money during the passage, nor could they expect to borrow it when they arrived in a strange country. But it was, also known that, by indent- ing themselves to serve for a term of years, the money might be raised; and in order to secure tne captain who carried them over the sea. and supplied them with provisions, they ])romised not to leave the brig imtil they had paid for their passage, whicli in substance amounted to an engagement to raise the money by indenting them- selves before they left the brig. Tlieir object was to advance tlioir fortunes in a new country,— an object wliich had been frequently at- lained by tlieir countrymen who had gone to America before them: and it is not easy to conceive any better means of accomplishing their object than those which were taken. It is not probable that any .■^uch agreement would be held valid in ihe United States to-tlay. 'I'he system of indenting emigrants for a series of years would probalily violate tlie am«>ndment to the federal constitution abolisliing slavery and involuntary servitude except as a punishment for crime. 5 Pub, St. N. H. 1891, p. 4.54. § 7; Revision N. .T. p. 912. §§ 18, 19; 1 Comp. Laws Utah, 1888, p. T9i;; V. S. ISOi, § 3917. See. also. post. p. 783. « Harris v. Itaiboad Co.. -^S N. .7. Law. -Js-J. 33 .\tl. T9;i. A p.assen- gcr who has paid his fare to a certain station, and who leaves the train at an intermediate station, the fare to which exceeds tlie fare (TOT) ^ 274 CARRIERS OF PASSENGERS. (Cll. 21 § 274. RECOVERY BACK BY PASSENGER. Where one pays passage money, to, be transported from one place to another, the contract is absolute to ti'ansport to the place of destination ; and, if the vessel is lost on the voyage, the contract is broken, and the passenger may recover back the entire passage money. Nor is the nonperformance excused by inevitable acci- dent or necessity, even though this proceed from the act of God.^ But where a vessel deviates from her chargecl for the station to which his ticliet was issued, does not vio- late a by-law of the company, subjecting a passenger who enters a carriage without having paid his fare to a penalty. Reg. v. Frere, 4 El. & Bl. 598. A by-law of a railway company requiring a passenger to show and deliver up a ticket whenever required, under a penalty of paying fare from the point at which the train originally staited to the end of his journey, is unreasonable and void, because the penalties imposed are not equal, and vary according to the distance the train has traveled, so that a passenger who has traveled only the last few miles will have to pay as much fare as one who started at the first station. Saunders v. Railway Co., 5 Q. B. Div. 4.56; Dyson v. Rail- way Co., 7 Q. B. Div. 32. In Brown v. Railway Co., 2 Q. B. Div. 406, it was held that, under such a by-law, the company must make de- mand of the specific sum payable before it can recover the same from the passenger. § 274. 1 Cope V. Dodd, 13 Pa. St. 33; Stone v. The Relampago. 23 Fed. Gas. 158. See, also, Brecknock Canal v. Pritchard, 6 Term R. 750; Howland v. The Lavinia, 1 Pet. Adm. 126, Fed. Cas. Xo. 6,797. Passage money is not due until the end of the voyage; and, if the ves- sel does not proceed to destination, the passenger has the right to re- cover the entire passage money. Howland v. The Lavinia, 1 Pet. Adm. 126, Fed. Cas. No. 6,797. Plaintiff took passage on defendant's vessel from San Francisco to Panama, paying in advance therefor .?50. Tlie ship was wrecked in a storm, and plaintiff was put ashore at a point less than half the distance to the port of destination, without any provision made by defendant to send him on to destinall u. (70S) Ch. 21) FARES. § 274 direct course through necessity, and puts into a port for repair, and the owner then sends her on a different voyage, a passenger, to whom the owner offered a pas- sage on another vessel, larger and more commodious than his own, from the port of distress to his destina- tion, and who refuses such offer, cannot recover from the owner any part of his passage money, since it is his own fault that he did not pursue his journey.^ It is perhaps questionable whether or not the same principles would apply to carriage by raihvay.^ The question seems not to have been raised in any case of land travel. It has, however, been held that where a purchaser of a season ticket, entitling him to travel by defendant's railway for one mouth, makes a deposit over and above the price charged for the ticket, on con- dition, among other things, tliat the deposit is to be for- feited if the ticket is not delivered up on the day after its expiration, the ticket holder must perform the con- dition as it is written; and he cannot recover the de- posit on showing a tender of th^ ticket after the time limited, though it was within a reasonable time there- after.* Held, that plaintiff was entitled to recover the entire amount of pas- sage money paid by him, on the theory that the contract of carriajii' was an entire one, and that nothing was earnetl thereunder until plaintiff had been carried to his destination. Brown v. Harris, -' Gray (Mass.) 359. 2 Detoucher v. I'cck, .Johns. (N. Y.) '-'lO. 8 See iwst, § 535, as to nuasuru of damages for failure to carry pas- senger to destination. 4 Cooper v. Railway Co., 4 Exch. Div. 88. In an action against a railroad company by the purchaser of a connnulalion ticket good for (iO rides, who fails to use the whole of it, to recover the value of the (70iO § 27 -J CARRIERS OF PASSENGERS. (^Ch. 21 nnused portion, the company, in computing the damages, is entitled to charge full fare for the rides actually taken on the ticket, and not the reduced rate, that being a condition specifled in the ticket. Snith v. Kailroad Co., 11 Pa. Co. Ct. R. 555. In an old English case it was hell that if a person takes a place on a stagecoach, and pays at the time only a deposit, as half fare, for example, and is not at the inn when the coach is setting off, the proprietor of the coach is at liberty to fill up his place with another passenger; but if, at the time of taking his place, he pays the whole of the fare, the proprietor cannot dispose of his place, but he may take it at any stage of the journey he sees fit. Ker V. Mountain (1793) 1 Esp. 27. (710) Ch. 22) TICKETS. § 275 CHAPTER XXII. TICKETS, § 27o. Nature and Effect. 2TU. Coiiilltious and Sripularions iu Ticket— Construction. -1~. Collection and Surrender of Tickets. :27S. Same— Detaching Couijous from Mileage or Commutation Tickets. 279. Loss of Ticket. 280. Riding Extra Distance or Tart of Distance. 281. :^iding in Reverse Direction trom That Indicated on Ticket. 282. Assignability of Ticket. 283. Forfeiture of Ticket. 284. Proviiyon for Identitication of Purchaser. 285. Limitation as to Time. 280. Same— Limitation by Regulation not Expressed in Ticket. 287. Same— Limitation must be Reasonable. 288. Same — Construction of Limitation. 28'J. Same— Waiver of Limitation. 290. Same— Maine Statute. 291. Continuity of Joiu'ney. 292. Same — Coupon Tickets. 293. Same— Stop-Over Privileges. 294. Same — California Statute. 295. Street-Car Transfers and Tickets. § 275. NATURE AND EFFECT. A ticket issued to a passenger by a carrier, merely naming the stations bet-ween -which it is good, is in the nature of a receipt, rather than of a contract between the parties. A passage ticket merely nainiug the places between wliicli it is good for passage does not purport to be a contract. It is rather iu the nature of a receipt for the (711) § 275 CARRIERS OP PASSENGERS. (Ch. 22 passage money; and its office is to serve as a token to enable the persons having charge of the carrier's ve- hicle to recognize the bearer as the person who is enti- tled to be carried.^ Indeed, in some modes of convey- ance — that by street car, for example — it is not custom- ary for the caiTier to issue any ticket. So, in cases where tickets are issued, the principal duty of the car- rier — that of exercising care for the passenger's safety — is never expressed therein. It has even been held to be unnecessary for the ticket to express in words what the law tacitly implies.- So far, however, as the terms of carriage are set forth in the ticket, they are binding, of course, provided they do not conflict with some law or rule of public policy.^ But, so far as not expressed, parol evidence is admissible to show the elements of the contract.* Thus, it has been held that the rules § 275. 1 Quimby v. Vanclerbilt, 17 N. Y. 306; Williams v. Vander- bilt, 28 N. Y. 217. affirming 29 Barb. (N. Y.) 4U1; Kawson v. Railroad Co., 48 N. Y. 212. 217. 2 Gordon v. Railroad, .52 N. H. 5!)U. 3 Howard v. Railroad Co., Gl Miss. 194; Dietrich v. Railroad Co., 71 Pa. St. 432. In an action to recover the value of a railroad ticket, lost before use, by the terms of which plaintiff and his family were entitled to ride 25 trips, evidence that, at the time of its, purchase, the ticket agent orally agreed to issue a duplicate in case of loss, is inadmissible, under the rule that an instrument in writing may not be added to by proof of a contemporaneous oral agreement, and that the writing, if not ambiguous, except in cases of fraud, mistake, or surprise, is conclusive of what the parties have agreed. Simis v. Rail- road Co., 1 Misc. Rep. 179, 20 N. Y. Supp. G39. ■i See cases supra; Peterson v. Railway Co., SO Iowa, 92, 45 X. W. 573; Burnham v. Railway Co., 63 Me. 298. A substantial independ- ent contract of carriage will govern the rights of the parties, though it is not expressed in the ticket. Van Buskirk v, Roberts, 31 X. Y. 661, (712) Ch 22) TICKETS. § 276 and regulations of the company as to the running of its trains are admissible in its favor. ^' The possession of a railroad ticket, it has been held, is prima facie evidence that the holder has paid the reg- ular price for it, and that he has the right to be ti*ans- ported at some time, between the phues specified there- in, on some passenger train. And, if it is uumutilated, the presumption is that it has never been used for that purpose. It is therefore evidence of the agreement or undertaking of the corporation to transport the holder to the place mentioned, on its passenger cars, for a con- sideration by him paid.® § 276. CONDITIONS AND STIPULATIONS IN TICKET —CONSTRUCTION. It has become customary for carriers of passengers to issue tickets containing many conditions and stipu- lations. The question as to the legality of some of these conditions,' and as to whether they are binding on a passenger from the mere fact that he receives the ticket, without any other manifestation of assent,' are questions which will be subsequently considered. But one Avho signs the conditions on the back of a railroad ticket assents to their terms, so far as they ai'e legal and valid. It would tend to disturb the force of B Dietrich v. Railroad Co., 71 Pa. St. 432; Lake Shore & M. S. Ry. Co. V. Rosenzweig, 113 Pa. St. 519, 53G, 6 Atl. 545. As to the con- chisiveness of the ticket as between passenger and conductor, see post, ^ .?17 et seq. >: Pier V. Finch, 24 Barl). (X. Y.) r>14. § 27«J. 1 See post, §§ 380, (527. 2 S. post, §§ 399, G29. (713) § 276 CARRIERS OF PASSENGERS. (Ch. 22 all such contracts if one in possession of ordinary ca- pacity and intelligence were allowed to sign a contract, and act under it in the enjoyment of all its adA'antages, and then to repudiate it, upon the ground that its terms were not brought to his attention. In the absence of all fraud, misrepresentation, or mistake, it must be pre- sumed that he read the contract, and assented to all its terms/ In construing a special contract embodied in a rail- road ticket, and limiting the purchaser's rights, lan- guage of uncertain or doubtful meaning should gener- ally be taken in its strongest sense against the com- pany by which the ticket was issued and sold, and in favor of the purchaser. This rule of construction is in accord with common sense. "It may be supposed that one who himself writes or prepares a written contract in which he is interested will be sure to use language which he conceives is best adapted to secure to himself s Bethea v. Railroad Co., 26 S. C. 91, 1 S. E. 372. The failure of a purchaser of a ticket, sold at a reduced rate, to sign the conditions thereto attached, does not invalidate the ticket, where he was not requested to sign it. and the company retains the consideration, since such signature is merely a mode of identifying the purchaser. Gregory v. Railroad Co., 10 Neb. 250, 4 N. W. 1025. A condition in a thousand-mile ticket requiring it to be s,tamped by the agent selling it, and signed by the purchaser, is waived by the sale and delivery of the ticket to a purchaser, ignorant of the condition, without insisting on its fulfillment, and by honoring the ticket for several trips without requiring it to be signed. And a conductor is not thereafter justified, while the company still retains plaintiff's money, in ejecting him from its cars, for his failure to sign the ticket, which has already gone into full effect between the parties, and for his refusal to pay the usual fare in money for a passage which was already paid for. Kent v.. Railroad Co., 45 Ohio St. 284. 12 N. E. 79S. (714) Ch. 22) TICKETS. § 277 the full benefit of everything lie could (.laim imder the agreement the writing is intended to evidence. It is therefore allowable and just, at the instance of the op- posite party, to scan critically the phraseology em- ployed. * * * This is obviously right for the addi- tional reason that as the purchaser had nothing what- ever to do with preparing the ticket, and had no voice in the wording of it, it was his right to claim under it the benefit of the strongest interpretation which could be made in his favor."* § 277. COLLECTION AND SURRENDER OF TICKETS. A rule or custom of a railroad company requiring passengers to surrender their passage tickets to the conductor on demand, and receive his check in place of tiiem, is a reasonable rule or custom; and a passen- ger's refusal to surrender the ticket on demand will jus- tify the conductor in exacting from him his fare in cash, and, on his refusal to pay, in expelling him from the car.^ But a passeuger cauuot be required to give * Georgia Railroad & Banking Co. v. Clarke (Ga.) 25 S. E. 308. As to construction of limitation as to time, see pest, § 28S. As to con- struction of limitation of liability, see post, § 401. § 277. 1 Northern R. Co. v. Page, 22 Barb. (N. Y.) 130; Biiltimorc & O. R. Co. V. Blocher, 27 Md. 277; Bennett v. Railroad Co., 7 I'liila. (Pa.) 11. Tlie regulations of a railroad company tliat a monthly com- iiiut.ition ticket shall be surrendered by tlie iiassenger to the con- ductor on the last trip taken during the pciind Inr whicli it is issued is a reasonable regulation of tlie railroad coniitany in tlie conduct of its business as a cumiiion carrier of passengers; and if this rcgnlii- ti(in l)e indorsed on tlic ticket, and tlie passenger holding tlie ticket fails or refuses to surrender it on Ids last trip, or pay liis tare to the conductor, according to the legally established laies of the company, ^ 278 CARRIERS OF PASSENGERS. (Ch. 22 uj) liis ticket, short of the station to which it entitles him to be carried, unless a check is tendered him, to show that he has paid his fare.^ After a conductor has taken uj) a ticket, he is required to exercise more than ordinar}' care in seeing that the passenger is proA'ided with a check or other means of continuing his journey." A regulation that the conductor or ticket collector of a crowded suburban train shall not iDermit passengers to go past him, into that part of the train where he has completed the collection of tickets, unless they present their tickets, pay their fare, or satisfy him that they have done so, is a reasonable one; and the passenger must conform to it, whether or not he had notice of it when he purchased his ticket. If a passenger, in vio- lation of the rule, undertakes to pass the conductor, the latter is justified in using reasonable force to prevent it, and in ordering him to leave the train or pay fare.* § 278. SAME— DETACHING COUPONS FROM MILE- AGE OR COMMUTATION TICKETS. A condition in a coupon ticket that the coupons are to be detached by or in the presence of the conductor, and that they will be accepted "for passage only when he can be ejected from the car. Rogers v. Raih-oad Co. (N. J. Sup.) 34 Atl. 11. 2 State V. Thompsou, 20 N. H. 250. Where the passenger shows the conductor his ticket, but declines to give it up unless furnished with a seat, the conductor has no right to seize it, and take it by force against the passenger's will, even though the passenger may have waived his right to a sear. Cincinnati, C, C. & I. Ky. Co. v. Mc- Lean, 1 Ohio Cir. Ct. R. 112. 3 Sloane v. Railway Co.. Ill Cal. (i68. 44 Fac. 320. 4 Falier v. Railway Co., G2 Minn. 433, G4 X. W. 918. (716) Ch. 22) TICKETS. § 278 accompanied by the ticket/' is reasonable and valid.' The refusal of the passenger to show his ticket to the conductor on demand, and his insistence upon making payment of his fare with coupons which he himself has detached, are a Tiolation of the contract by him, for which he may be put off the train, with such force as may be necessary in case he refuses to go voluntarily.- A conductor has the right to determine for himself from what part or parts of a mileage book the coupons are to be detached, since he is the person who is author- ized to detach them, and he is not bound to heed the passenger's request to tear the coupons out of the back part of the book, instead of the front part.^ It has even been held that a condition in a mileage ticket sold at a reduced rate, that coupons are not good for passage if detached, is valid; and where the pas- senger detaches them himself, though warned to de- sist by the conductor,- the latter is justified in refusing to receive the detached coupons, even Avhen the passen- ger offers the ticket or book to identify the coupons.' § 278. 1 Boston & M. R. R. v. Chipman. 146 Mass. 107, 14 N. E. 940. When a coupon ticket on a street railroad, good for 20 rides, provides tliat tlie coupons are not good unless torn off b.v the con- ductor, the passenger has no rijrht to detach a coupon from ilie main ticket, and present it to the conductor, and at the same time refuse to show the main ticket. In such a case he may be ejocte.l from the car. AValk(>r v. Railroad Co., 33 How. I'lac. (N. Y.) 327. -' Louisville, N. & (J. S. R. Co. v. Harris, Lea (Teun.) ISO. 3 Eaton v. Mclntire. 88 Me. 578, 34 Atl. :*•!:,. 4 Norfolk \- W. R. Co. v. Wysor, 82 Va. 2.-.(t. One who tenders a detached coupon, when the rules of the company rciiuuc tlie ciuiion to be detached by the conductor, is in the same condition as if he had refused to pay any fare at all. De Lucas v. Railroad Co., 38 La. Ann. 930. A thousand-mile ticket, good over the road of the selling (717) § 278 CARRIERS OF PASSENGERS. (Cll. 22 But the holder of a round-trip ticket has the riglit to ride from the return station to the going station on tlie return coupon, though he has not used the going cou- pon; and the fact that the going coupon becomes worthless when detached from the return coupon fur- nishes the company with no excuse for refusing to ac- cept the return coupon unless the entire ticket is sur- rendered/ But such a condition mav be waived bv the parties after the purchase of the ticket. The prac- tice of receiving as fare the detached coupons, without presentation of the rest of the ticket, is evidence of such waiver. Conceding that the carrier has a right to re- voke his consent to such waiver after he has received some of the detached coupons, it is his duty to give rea- sonable notice of such intended revocation. If, with- out such notice, and relying on such waiver, tlie holder of the ticket detaches a coupon, and takes it with her on the train, without taking the rest of the ticket, the carrier cannot, when such coupon is thus presented for fare, revoke his consent to the waiver, so as to deprive her of the use of the coupon, or compel her to pay ex- tra fare.^ So, also, a condition in the going coupon of company and tliat of a leased road, contained two sets of flfrures. — 300 black fignres, and 7(J0 red figures— and directions to the con- ductor to punch out the red figures for miles traveled on the selling road, and the black figures for miles traveled on the leased road. The tK-Uet was signed by tlie purcliaser, who expressly assented to all its terms. Held that, after the red figures had been exhausted by travel over the selling road, the purchaser had no right to travel on that road by virtue of the unpunehed black figures. Terre Haute & I. R. Co. V. Fitzgerald, 47 Ind. 79. 5 Chicago, St. L. & P. R. Co. v. Holdridge, 118 Ind. 281, 20 N. E. &37. c Thompson v. Truesdale, Gl Minn. 129, 63 N. W. 253. (718) Oh. 22) TICKETS. § 2<9 a round-trip ticket that it shall be void if detached fri)m the going coupon, is waived by the conductor's mistake in detaching the return coupon, and detaining it on the going trip." § 279. LOSS OF TICKET. The loss of a ticket by a passenger falls on him, and not on the carrier.' The reason is obvious. Passage tickets, in the absence of resti'ictive conditions, are as- signable, and are good in the hands of any one. If the loss of a ticket were a sufficient excuse for nonpayment of fare, the carrier might be subjected to the burden of carrying two or more persons for a single fare. This rule holds good even in the absence of any stipulation in the ticket; and, of course, a condition in a commu- tation ticket, sold at a reduced rate, that no duplicate ticket will be issued, is binding on the holder; and if, by casualty, his ticket has been lost, so that he cannot produce it, the company may exact from him the regu- lar fare paid by other passengers." Nor is there any distinction in the rights of the passenger whether he loses or mislays his ticket before getting on the ti'ain or 7 Pennsylvania Co. v. Bray. 125 Ind. ■_>2i), 25 N. E. 439. § 279. 1 Standish v. Steauisliip Co.. lU Mass. 512; Duko v. Uaihvay Co., 14 U. C. Q. B. .3(!9, :J7T. If, by any inadvertence, carelessness, or casualty, the licket of a passeuger has been lost by him. so tliat he cannot prodm-e it, the legal fare may be exacted from iiim: iind tlie conductor is not bound to investigate the excuse^ of tlie ifassenger for its iionproduction. ami determine whether it is made in good faitli or not. He lias the riglit to have the ticlcet produced or surrendered. <»r the fare i)aid; and, if neitlier event oc-em-s. he can exp(>l the passen- ger. Rogers v. Railroad Co. (N. .7. Sup.) :U All. 11. 2 Riltley v. Transportation Co., :J1 N". .1. Law, ;i.S8. (719) § "279 CARRIERS OF PASSENGERS. (Ch. 22 afterwards. Hence the fact that passengers are re- quired to exhibit their ticlvets to a train hand before entering the train does not excuse a passenger from surrendering his ticket to tlie conductor on demand; and the fact that the passenger has lost or mislaid it after getting on the train gives him no right to ride without payment, as required by the rules of the com- pany.^ So, a passenger who surrenders his ticket or coupon to a conductor, and receives from him a check evidencing his right to ride, must produce it on demand b}' another conductor, who took charge of the train aft- erwards. If the check has been lost, the loss is the passenger's, and he must pay his fare or leave the train, since it can be used by a third person, and the company may be thus defrauded.* But it has been held that, tJiough a rule of a sleeping- car company requiring the conductor to receive either a ticket, a pass, or money before giving a passenger a berth is reasonable and just, yet where a passenger fur- nishes a conductor with clear and satisfactory evidence that he has purchased a ticket entitling him to a par- ticular berth, but has lost it, and the circumstances are such that it is reasonabh' certain the company cannot be defrauded by the ticket being in the hands of an- other, he ought to have the berth. ^ 3 Louisville, N. & G. S. K. Co. v. Flemiu- 14 Lea (Tenn.) 128. 148. 4 Jerome v. Smith, 48 Vt. 230. n Pullman Palace Car Co. v. Reed, 75 111. 125. See. also, post. § 317 et seq., as to duty to produce a proper ticket to tlie conductor. (720) Ch. 22) TICKETS. § 2>iO § 280. RIDING EXTRA DISTANCE OR PART OF DIS- TANCE. One who boards a train at a more remote station than that indicated as the starting point of his jonrney by his ticket cannot travel the extra distance on his ticket, but must pay fare from the station where he got on to the starting point designated in liis ticl^et.^ "A regu- lation by which railroads, when passengers are found on their trains who have no tickets, or who have only forfeited tickets, require of such passengers fare, not only for that part of the route to be traveled, but also for the part already' passed over, is certainly a reason- able one. If persons who are attempting to ride with- out paying fare can have the past forgiven, and need pay only from the place, and time of their detection, would not this be the offer of a premium for an attempt- ed undue advantage of the railroad?" " So, where a § 280. 1 Illinois Cent. U. Co. v. Billinfrton (Ky.) 30 S. W. 885; Clil- cago & E. I. H. Co. V. Adams, GO 111. App. 571. 2 Manning v. Railroad Co., 95 Ala. 392, 11 South. 8. But a some- what different conclusion has been reached where the passcng.-r boards a train imder the belief that he has a valid ticket, and it turns out that it is not good. A passenger who had stopped off at an intermedi- ate station was informed by the conductor, on resuming his iourni'y. tliat his ticket was not good, and that he would have to ]»ay fare or get oft" at the next station. Wlien tlie train arrived at tlie station, tlic passenger, who had acted in good faith, purcliased a new ticket for his destination. The conductor declined to receive it, unless he paid the fare from the station wlici'c lie boarded tlic train lo tlie station where he purchased the ticket. Held, that his ejection from the train, on refusing to pay the fare demanded, was wrongful, since lie had done notliing to forfeit liis riglit to make a contract of carriage by llie pnrcliase of a ticket. Ward v. Ilaihvay Co., uli Hun, 2(iS, 9 N. V. Supp. '.',11. v. 1 FET.C.Ml.rAS. — 46 (Tl'I) § 280 CARRIERS OF PASSENGERS. (Ch. 22 railroad coDipany issues an excursion ticket at a re- duced rate, conditioned that it shall be void if used for any other train or station than that named therein, the passenger is not entitled to travel beyond that station, and merely pay the ordinary single fare for the dis- tance traveled, but he must pay full fare for the entire distance traveled.^ On the other hand, a railroad ticket entitling a des- ignated person to a stated number of single continuous trips, for each of which a separate coupon is attached, "between" two specified stations, and stipulating that "passage shall be taken onh' on such trains as stop at the above-named stations," and also that "this ticket shall be good for continuous trips" between these sta- tions, confers upon that person, upon surrendering one of the coupons, the right to ride from an intermediate station to either of the two stations mentioned in the ticket, or from either of those stations to the intermedi- ate station, provided he boards a passenger train which, upon its regular schedule, stops, not only at the specified stations, but at the intermediate station also. Although entitled to ride the whole distance, the pas- senger could w£\ive or relinquish this right in part, and accept only a portion of the ride his coupon called for/ 3 Great Northern Ry. Co. v. Palmer, 15 Reports. 29G. One who pur- chases a street-ear ticket "jiootl only between" two specified strtets may board a ear at a place remote from tlie starting point named in the ticket, pay his fare to that point, and tlien ride on the ticket to the destination named therein. Mc.Mnlion v. Railroad Co., 47 N. Y. Super. Ct. 2S2. 4 Georgia Railroad & Banking Co. v. Clarke (Ga.) 25 S. E. 3GS. See. als«, ante, § 272. (722) Ch. 22) TICKETS. § 2S2 ' § 281. RIDING IN REVERSE DIRECTION FROM THAT INDICATED ON TICKET. A passenger cannot ride in tlie reverse direction from that indicated on liis ticket/ It is certainly a reason- able requirement that a passenger, having the oppor- tunity, should purchase his ticket to the place of his destination, and not in the opposite direction. To ccmu- pel railroad companies to receive unused tickets, with- out regard to the direction in which the holder wishes to go, would introduce inextricable confusion into their business, and be of no benefit to any person possessed of sufficient intelligence to go upon a train." But a passenger who has purchased a round-trip ticket has the right to be carried, on his return trip, on presenting the going coupon, with the explanation that the con- ductor on the going trip, by mistake, retained the re- turn-trip coupon, and returned the going coupon to the passenger, who failed to discover the mistake until pre- senting it to the conductor on the return trip.' § 282. ASSIGNABILITY OF TICKET. In the absence of any restriction in a passage ticket, it is assignable, and passes from hand to hand by de- livery.^ It may be used b}' a person other than the § 281. 1 Coleman v. Railroad Co., 106 Mass. KiO; Keeley v. Railroad Co., 67 Me. 163. 2 Godfrey v. Railway Co., 116 Ind. 30. IS N. E. 61. 3 IVnnsylvania Co. v. Bray, 125 Iiid. 22;». 2.") X. K. VAU; Lake Eri." & W. Ry. Co. V. Fix, SS Ind. .381. § 282. 1 Spencer v. Lovejoy. IXi (Ja. cr.S, 2.3 S. K. 8:'.i;; Tiie Willa- mette Valley, 71 Fed. 712. Mills' Ann. St. Colo. p. 1986, S 372S. pro- (72;]) § 282 CARRIERS OF PASSENGERS. (Ch. 22 one named in the ticket, though sokl at a reduced rate.- A coupon ticket over several lines, not limited on its face as to ownership and continuity of passage, is trans- ferable after it has been used over some of the connect- ing lines.^ Eailroad tickets do not, however, possess any of the qualities of negotiable paper. The holder of such a ticket is in no better position than the bona fide purchaser, for value, of goods from one in posses- sion, without notice of any defect in his vendor's title. Hence, where the possession of such a ticket has been obtained from the company by fraud, a purchaser from the holder, though for value and without notice of equi- ties, takes no better title than the person who fraudu- lently obtained possession.* But a condition in a ticket sold at a reduced fare, that it can be used only by the purchaser, is reasonable and valid; and a third person cannot, by purchasing- such a ticket, acquire the right to travel thereon ; and, if he refuses to -paj his fare, he may be expelled from the train." And a condition in a mileage ticket that it Tides that railroad ticl^ets slaall be assignable by deliverj-, and tliat tickets may be limited as to time, but not as to person. 2 Nichols V. Southern Pac. Co., 23 Or. 123, 31 Pac. 296; Hoffman v. Eailroad Co., 45 Minn. 53, 47 N. W. 312; Carsten v. Railroad Co., 44 Minn. 454, 47 N. W. 49. 3 Mchols V. Southern Pac. Co., 23 Or. 123, 31 Pac. 296. 4 Frank v. Ingalls, 41 Ohio St. 5G0. 5 Post V. Railroad Co., 14 Neb. 110, 15 N. W. 225; Drummond v. Southern Pac. Co., 7 Utah, 118, 25 Pac. 733. One who claims the right to travel on a 1,000-mile commutation ticket as a member of the firm to whom it was issued, but who has not signed the conditions on the back thereof, must establish the existence of the partnership to whom the ticket was issued, and the fact that he was a member thereof, be- fore he can hold the company liable for a conductor's refusal to permit (724) Ch. 22) TICKETS. § 28a shall not be good in tlie liauds of auy pcrsou utlu-r iliau the original pnrchaser is not waived by the failure of the purchaser to sign the ticket." So, a railroad com- pany which sells a ticket good over the lines of several connecting railroads has no power, so far as the con- necting roads are concerned, to waive a condition re- stricting its use to the first purchaser; and one of the connecting roads is not bound to honor the ticket in the hands of one who, with knowledge of the condition, purchased it from a "scalper," though it had been pla- ced in the hands of the scalper for sale by the first car- rier.^ § 283. FORFEITURE OF TICKET. A ticket conditioned to be void if presented by any person other than the original holder may be taken up by the conductor on its presentation by a purchaser from a ticket broker, and the refusal to return the tick- et to the purchaser cannot result in damages to him.' him to ride on the ticket. Granier v. Railroad Co., 42 La. xVmi. 880, S South. 614. A raih'oad ticket which on its face pmports to be ffood for a man and his family authorizes a son, who is resiain;^- with the father as a member of his family, to ride upon the road, though he was over 21 years of age. Schedules furnished the public are not admissible to show tliat adult sons are not entitled to ride on the ticket, but it must appear that notice of the regulation was given the purchaser wheu he bought the ticlcet. Chicago & N. W. Ry. Co. v. Chisholm, 70 111. 384. 6 Raliilly V. Railway Co. (Minn.) (iS N. W. 8.j3. 7 roau-r V. Foley i('.:\.) 2~^ S. E. 071. § 283. 1 DruimiKiiid v. Soutlicrn Pac. Co., 7 Utah. 118, 25 Tac. 7:'..".. Bvit in I'o.st V. Rnili'oad Co., 14 Neb. 110, 15 N. W. 22.5, it was held that, where a nontiansferable ticket authorizes the comi)any to "refuse to accept this ticket" on failure of the pun-h;iscr 1o comply wiili its terms, the conductor has no right to take it up when presented liy a person other than the one to whom Issued. And, tliough smh ii.rson (725) § 283 CARRIERS OF PASSENGERS. (Ch. 22 So, a ticket containing a condition of forfeiture if used by any person other than the one to whom issued may be taken from him when tendered in payment of fare, if it was used by any other person, either witli his conniv- ance or through liis negligence. "From the character of the ticket, and its liability to be used by another, in fraud of the agreement that it is to be used only by the person to whom issued, the implied obligation rested on him, when he accepted it from the company, to keep it with due and proper care. If, from his negligence, it came into the hand of another, and was fraudulently used on the company's road, he is just as amenable to its forfeiture as if it had been used with his assent." - So, a pass issued to a person on the false representation that he is in the employ of a newspaper, made by the editor of the paper, may be taken up and forfeited by the company on discovering the fraud, if the person to whom the pass was isssued was a privy to the fraud. ^ has no right to travel on the ticket, yet he may recover the vahie of a ticket of the same class between the points named if it is taken np by the conductor. This decision is vicious in the extreme. The ticket, after its transfer, in violation of its conditions, was of no value, either in the hands of, the transferee or of the oi-iginal holder, or in the hands of any other person. To permit the holder to recover its full value under these circumstances is so glaringly unjust as not to require any further comment. 2 Freidenrich v. Railroad Co., 53 Md. 201. 3 Moore v. Railroad Co., 41 W. Ya. IGO, 2.3 S. E. 539. Where a stock pass is issued to a woman on a fraudulent representation that she is part owner of the stock, the conductor has the riglit to refuse to honor it; and the company is not liable for liis act in handing her from the train without incivility or violence; whereupon her fare was paid by her husband, who was on the train, and she re-entered the train, and proceeded on her journey. Brown v. Railway, 64 Mo. 536. (T2G) Ch. 22) TICKETS. S 2^\ g 2Si. PROVISION FOR IDENTIFICATION OF PUR- CHASER. A coudition in a roiiiul-trip exclusion tii kot, sold at a reduced rate, requiring the pnrcluiser to identify him- self to the ticlvet agent at destination, and the return coupon to be stamped and dated by such agent, is rea- sonable and valid/ Such a condition is intended to prevent tickets from passing into the hands of third persons, and being- used by them in making portions of the transit, where higher rates of fare are required than the special rates which the companies are able to make to through passengers traveling a long distance.^ The purchaser of such a ticket is bound by the condition, whether he knows of it or not.' So. where the condi tion is that the purchaser shall identify himself to the "satisfaction" of the agent at destination, the agent is the one who must determine the suiticiency of the iden- titication; and the question cannot be submitted to the jury whether he ought to have been satisfied.* And a § 284. 1 Edwards v. Railway Co., 81 Mich. 304, 45 N. W. 827; (^al- leua V. Railroad, 13 Fed. 116; Bethea v. Railroad Co., 2G S. C. 91, 1 S. E. 372; Bowers v. Railroad, 158 Pa. St. 302, 27 Atl. 893; Gootz v. Railroad Co., 50 Mo. 472. 2 Cloud V. Railway Co., 14 Mo. App. 130. 3 Boylan v. Railroad Co., 132 V. S. 140. lu Sup. Ct. 50; Moses v. Railroad, 73 Ga. 3.J0. But iu riiillii>s v. Railroad Co., 93 Ga. 356, 20 S. E. 247, it was hold that under Code Ga. § 2008. whidi provides that a common carrier cannot limit his liability by any notice or entry on the ticket sold, but must do so by express ojntract, sudi a condition for id.'iitificatiou is not bindin- on the purchaser, if he liad no linuwlcdj,'c of its existence wlicn he purcluiscd. 4 Bethea v. Railroad Co., 20 S. C. 91, 1 S. E. 372. The court said: "That officer was not indicated an 'agent' for the purpose of perform- (727) § 284 CARRIERS OF PASSENGERS. (Cll. 22 purchaser of siicli a ticket, who has neglected to identi- fy himself to the agent, has no right to identify himself to the conductor at the time of his expulsion from the train for noncompliance with the condition. The safer rule is to abide by the contract as it is written, as to the time and manner of identification, and not open the door for other methods.^ Considerable conflict in the authorities exists where the ticket requiring identification at the terminal point is good over the lines of several connecting carriers, and the agent at the terminal point wrongfully neg- lects or refuses to stamp the ticket. The supreme court of South Carolina has held that a coupon ticket, good over several connecting lines, which expressly states ing a merely miuisterial act; but, on the contrary, it was made bis duty to judge of the sutticiency of tlie evidence of idenlitication; not Avliether the plaintiff had reasonably identified himself by handwriting or otherwise, but wiietlier he was identified to the satisfaction of the person named. That otficer may have been unnecessarily hard to satisfy, but that was the test required by the contract itself." 5 Abram v. Railway Co., 83 Tex. Gl, 18 S. W. 321. But, under a condition in a mileage ticket that, wlien requested by the conductor, the purchaser will sign liis nani^ in the presence of tlie conductor, on tlie back of one of tlie coupons, and "otherwise identify himself" as the purchaser, the conductor lias no right to arbitrarily refuse the holder of the ticket permission to sign his name for the purpose of identification, and to require him to adduce other evidence of identity, though it may be otherwise where the passenger is permitted to sign his name, and the conductor is left in doubt as to identity. Norfolk & W. R. Co. V. Anderson, 90 Va. 1, 17 S. E. 757. Where a round-trip ticket from a station In South Carolina to New Orleans requires the purcliaser to present the ticket for stamping, and to identify himself. at Baltimore, the word "Baltimore" will be considered as a misprint for New Orleans, and the conti'act requiring stamping and identifica- tion for the return trip is not thereby invalidated. Betliea v. Railroad Co., 2r, S. C. 91, 1 S. E. 372. (728) Ch. 22) TICKETS. § '284 that the selling company acts as agent for the other companies, "and is not responsible beyond its own line," relieves the selling company from liability for the ulation not ex- pressed in the ticlvet, as against a passenger who has no knowledge of the regulation. In Pennsylvania it has been held that such a regulation is not valid as against a passenger who did not know of it, and that he is not bound to make inquiries about such a regulation of the company which does not appear in the ticket,^ But in Xew Hampshire it has been held to be the passenger's duty to make inquiry as to all reasonable regulations of the carrier when he purchases his ticket, and that he is bound by a regulation limiting the time within which a ticket must be used, though he knew nothing about it, and though his ticket was unlimited on its face." It § 280. 1 Pennsylvania R. Co. v. Spicker, 105 Pa. St. 142. 2 Johnson v. Railroad Corp., 46 N. H. 213. In this case it was said: ♦'It might be suggested that in a case like the present it would be quite practicable to indorse some notice of the change of rule on tlie Tii'ket: but when we take into account the number of clianges of different regulations, important to travelers, that may become essen- tial to convenient and safe transportation, and the fre(iueiicy of tlieir necessity, we tliink it can hardly be practicable to place notices of all such changes upon the ticket; and, if it were, it would Ik- far from insuring actual notice to all passengers. It seems to us tliat sucli a lo- 'luirement would not prove of sufficient practical value to counterbal- ance its inconveniences. If it is understood by ihe pubVc ih it the d ly is on tlie traveler to inquire as to all sucli reasou.ible rcgulalions as it may be important for him to know, we tliink tliat tlicr*' will resiili less inconvenience than from any holding of ihc law iliat tends to re- lieve tlic traveler from the duty of iiKiiiiriiig as to a part of sucli matters of regidation." § 287 CARRIERS OF PASSENGERS. (Ch. 22 would seem that the Penns^ivania decision is right in principle, because a passenger has a right to presume that a ticket unlimited as to time is good whenever used, and it is no great hardship to require railroad companies to express such a limitation of the common law on the ticket. § 287. SAME— LIMITATION MUST BE REASONABLE. The time limited on a railroad ticket within which a trip must be completed must, in order to be binding, allow sufficient time for a person using ordinary dili- gence to accomplish the trip.^ The carrier must af- ford a purchaser of a limited ticket the necessary facili- ties for accomplishing his journey within the stipulat- ed time, and, upon the failure to do so, he is not in posi- tion to treat the contract of carriage as forfeited, and demand a second payment of fare for the same passage, at least if the ticket holder avail himself of the first op- portunity to complete the journey after the expiration of the time limited.^ Thus, where a carrier induces a number of passengers to go on an excursion for a speci- § 287. 1 Gulf, C. & S. F. R. Co. v. AVright (Tex. Civ. App.) 30 S. W. 294. When a railway undertakes to sell an excursion ticket, to be used witliin a certain time, it must see tliat tlie time agreed upon is reasonable, from tlie standpoint of the then existing circumstances and conditions, and that the passenger, by the exercise of reasonable diligence, may complete the journey within the time agreed upon. If sucli time be reasonable, the railway company selling such ticket, witli liability limited to its own line, would not be liable for delays by other lines on the route, and could insist on the terms of the ticket when presented after the time specified therein. Id.. 2 Tex. Civ. App. 4G3, 21 S. W. 399. 2 Little Rock & F. S. Ry. v. Dean, 43 Ark. o29. (734) . A vcrl.al d.cliir.i- tioii of a ticket asent, mado after tlio i)unliast' of a lickci limiicd to V. 1 FICT.CAIi.l'AS. — 47 '7.37) § 289 . CARRIERS OF PASSENGERS. (Cll. 22 states that it may be exchanged at destination for a re- turn ticket, "good for the day and train designated on the face of such exchange ticli:et," the passenger can- not use the exchange ticket on another train and on an- other day than that indicated thereon, though the ad- vertisement for the excursion stated that tickets would be good to return for five days.- But it has been held that, though a ticket is stamped as "good for this day only," the purchaser may show by j^arol that he asked for a ticket on which he could stop over at an interme- diate station for a day, and that the ticket agent repre- sented to him that he could do so on that ticket. The fact that the ticket agent was not authorized to make such a contract does not warrant the passenger's expul- sion from the ti*ain, without returning to him his pro rata share of the fare.^ The time limit in a railroad ticket is not waived by the act of the baggage master in checking the j)assen- ger's baggage, and punching the ticket on its presenta- tion to him. The baggage master's apparent author- ity extends only to due attention to the passenger's bag- gage, and not to the validity of his ticket.* Kor does the (late of its issuance, that it is good at any time, is not a conti-act varying the time limit expressed in tlie ticlcet, in the absence of any proof that the agent had authority to malie an oral contract for the company varying the one indicated by the ticket. Boice v. Railroad Co., Gl Barb. (X. Y.) Gil. 2 Howard v. Railroad Co., Gl Miss. 194. 3 Buruham v. Railway Co.. Go Me. 298. A. ticket limited to the day on which issued cannot be used on ihe following day, unless the pas- seng(n-, on ordering his ticket, notified the ticket agent that he wanted a different one. Lewis v. Railroad Co., O:', tJa. 22o, IS S. E. GoL). 4 Wtntz V. Railway Co., 3 Hun (X. Y.i 241. (738) Ch. 22) TICKET8. § 290 the fact that a mileage ticket was used by a passenger a number of times after the expiration of the time lim- ited therein estop the company from taking up the tick- et, and requiring the payment of fare.^ Where, how- ever, the time limit on a round-trip excui*sion ticket is extended by a duly-authorized ageut of the company, the conductor of the train has no right to refuse the ticket, and expel the passeuger.® § 290. SAME— MAINE STATUTE. By statute, in Maine, a railroad ticket is made bind- ing on the company for six years from its date, and con- fers on the holder the right to stop off at usual stopping places during that period/ It was at one time held that this statute applied to a ticket sold within the state for a passage to a point without.^ But it was subsequently held that the statute applies only to trans- portation within the territorial limits of the state; that it has no force beyond such limits, and consequently does not apply to a ticket from Tortland to Montreal, while it is being used beyond the limits of the state.^ In a still later case it was held that the statute does 5 Sheiman v. Railroad Co., 40 Iowa, 45. lu this case it was said: "The ticket itself was express notice to plaintiff and the conductors that the latter liatl no right to accept the ticket in ])aynieut of fare, and that it was his duty to pay fare, and their duty to take up the ticket and collect the fare. Ili.s wronj;ful conduct L'U times could not make his twenty-first effort rightful. The esseiuial elements of estop- pel, as against defendant, are all wanting." Randall v. Railroad Co., 45 La. Ann. ITS. 13 South. IGG. § 290. 1 Rev. St. c. .")!. § 44, adopleil in iss;;. 5i Dryden v. Railway ("u.. CO .Me. .")ll'. 8 Carpenter v. Railway Co., Tl! Me. :\SH. § 291 CARRIERS OF PASSENGERS. (Ch. 22 not apply to a ticket piireliased in Canada for a contin- uous passage, on a particular day, on a railroad, from that country through portions of the states of Vermont and New Hampshire, into jMaine. Huch an application of the statute would work an interference with both foreign and interstate commerce in the carriage of pas- sengers, within the prohibition of the federal constitu- tion.* So the supreme judicial court of Massachusetts has held that the Maine statute applies only to trans- portation within the limits of that state, and does not authorize one who has purchased a ticket in Maine, for transportation to Massachusetts, to stop over at will at an intermediate station in Massachusetts.^ § 291. CONTINUITY OF JOURNEY. In the absence of any understanding, or of rules and regulations to modify the contract, the purchase and sale of a ticket good from one station to another create an obligation on the part of the carrier to carry by con- tinuous service to the passenger's destination. The carrier has no right to perform its part of the contract by a series of carriages from station to station by dif- ferent trains, at its convenience, but is bound, when the passenger selects the train he wishes to go on, to carry him to his destination without unreasonable delay. The rights of the parties in this respect are reciprocal, and therefore the passenger, after the carrier has en- tered on the performance of its obligation, has no right 4Lafarier v. Railway Co., 84 Me. 286, 24 Atl. 848. expressly over- rulln.^ Dryden v. Kaihvay Co., supra. , 5 Boston & M. R. Co. v. Traftou, 151 Mass. 229, 23 N. E. 829. (740) Ch. 22) TICKETS. § 291 to demand porformaiice by breakiiii; the transit, and n^- snming the journey again at another time, liy volun tarily leaving the train at an intermediate station, the passenger takes from the carrier the opportunity of completing its contract, and thereby releases it from further obligation to do so.' And, of course, if the tick- et is expressly limited to a particular train or for a con- tinuous journey, the passenger has no right to stop oft" at an intermediate station, and afterwards resume his journey on another train, without paying fare." It is the duty of a passenger to inform himself wheth- er or not he can make the continuous journey called for by his ticket on the train on which he embarks. He has no right to take a train which does not run to his destination, and leave it at some intermediate point, and there take passage on a through train to his desti- § 291. 1 Hatten v. Railroafl Co.. :;!) Ohio St. :MT>; Drew v. Kailroad Co., .51 Cal. 42.j; Churchill v. Railroad Co., U7 111. :}90: Stone v. Rail road Co., 47 loAva, 82; McClure v. Railroad Co., 34 Md. r.:J2; Cheney V. Railroad Co.. 11 Mete. (Mass.) 121; Wymau v. Railroad Co.. ."'.l Minn. 210, 25 N. W. 349; State v. Overton, 24 N. .T. T.aw. 4:'..-); Terry V. Railroad Co., 13 Hun (N. Y.) 359; Oil Creek & A. R. Ry. Co. v. Clark. 72 Pa. St. 231; Dietrich v. Railroad Co., 71 Pa. St. 4.32; Breen v. Railroad Co., 50 Tex. 45; Robert.s v. Koehler, ,30 Fed. 94. The lad that a ticket is sood lor 20 days does not sive a passenger the right to stop over at an intermediate station, though he completes his cut ire join-ney in 20 days. Craig v. Railroad Co., 24 I'. C. <,). P.. 5(14. 2 Pierce v. Pennsylvania Co.. 19 IYmI. Cas. 037; Gale v. Railroad Co., 7 Hun CS. Y.) (570; .lohnson v. Railroad Co.. 03 Md. 100. A pas.senger holding a ticket, limileil as to time and to a particular train \v;is directed to the wrong train by the company's servants. The con- ductor put him off at the next station, and at that station he took the train designated l)y the ticket. Held, that liie conductor of that train had no right to cjfct liim. because the ticket called for :i continuous passage. Elliott v. Railroad Co., ."..", llun. 7S, o .\. V. Siipp. 30.3. (741) § 291 CARRIERS OF PASSENGERS. (Ch. 22 nation, even though the latter train maj be the one he should have taken in the first instance.' This rule re- quiring a continuous journey holds good in case of a passenger who, at an intermediate station, changes from a local to a fast through ti-ain, which reaches his destination at an earlier hour than the train on which he first took passage/ So, the right to a continuous passage on a ticket refers to a continuous passage by the person to whom the ticket is issued; and he can- not transfer his right to complete the journey on the train on which he took passage to another person at an intermediate station.^ But a passenger is not bound to commence his jour- ney at the point named in his ticket. He may, if he chooses, purchase another ticket to an intermediate sta- tion, and then make a continuous journey on his origi- nal ticket from such intermediate station to destina- tion. He may rightfully enter a train at a point nearer the place of destination than the station named in his ticket.' So, if, from accident, misfortune, or other cause, and without the passenger's fault, his transit be 3 Gulf, C. & S. F. Ry. Co. v. Henry, 84 Tex. 678. 19 S. W. 870; Johnson v. Railroad Co., 63 Md. 106. 4 Cleveland, C. & C. R. Co. v. Bartram, 11 Ohio St. 457; Pennsyl- vania R. Co. V. Parry, 55 N. J. Law, 551, 27 Atl. 914. 5 Walker v. Railway Co., 15 Mo. App. 333; Cody v. Railroad Co., 4 Sawy. 114, Fed. Cas. No. 2.940. 6 Auerbach v. Railroad Co., 89 N. Y. 281, reversing 60 How. Prae. (N. y.) 382. But the fact that the train does not depart at its advertised time does not give a passenger who has purchased a ticket "good for tins day only" the right to leave the train at an intermediate station, and then resume his journey on another train. Briggs v. Railway Co., 24 U. C. Q. B. 510. (742) Ch. 22) TICKETS. § 292 interrupted, and it be more llian an ordinarv delay, tlieu lie may resume his journey afterwards, upon a dif- ferent train, and without the payment of fare. lit lue, where a train is delayed at about dark by a wreek on the road, and a sick passenger is informed that the de- lay will last several hours, and perhaps all night, he is not required to remain on the car an indefinite time; and, if he goes to an hotel dunng the night, he has the right to resume his journey on another train the next day, without payment of additional fare.^ It has been held that when a passenger gets on a train at an intermediate station to complete his jour- ney, which he began at another time and on another train, and tenders his unused ticket, the conductor has no right to retain it, and at the same time deny his right to ride under it. Xor has the conductor any right to eject the passenger where he offers to pay his fare on the return of the ticket to him.^ § 292. SAME— COUPON TICKETS. A coupon tick,et issued by a railroad company over its own and connecting lines is an entire contract as to each line, but severable as between the different lines. When the passenger enters on the journey over any 7 "Wilsey v. Railroad Co., S3 Ky. 511. 8 Vanldrk v. Railroad Co., 76 Ta. St. 66. Tlu" court said: '-The conductor required payment, not only for tlie rido plaintiff was then taking, but also the yielding up of a ticket on whicli he was not riding. The conductor had no such right. To concede to him the right to demand of a passenger anything additional to the payment of fare would be frauglit with iiukIi the most miscliievous consiMiucnces." But .see ante, § 283, as to tlii' right to forfi it tickets, and post. § 338, as to duty of returning ticket lo passenger .iiy iN. V.) :.o. § 293 CARRIERS OF PASSENGERS. (Ch. 22 Where a ticket ai;eut sells a ticket good over sev- eral connecting- lines of railroad, witli a representation that the pnrchaser may stop off at any point on any of the roads, the question whether snch representation formed part of the contract, and whether he had au- thority to bind the connecting roads by a stipulation in reference to the right to stop over on their lines, is a question of fact for the jury.^ But the fact that the conductor of a train which does not go through to a passenger's destination permits the passenger to ride to an intermediate station does not confer anv right on the passenger to take the proper train at the inter- mediate station, and complete his journey on the orig- inal ticket/ 3 Robinson v. Railroad Co., 2 Lea (Tenn.) 594. In tliis case the court said: "A ticket is not sucli a written contract as to exclude ]iarol representations made on the sale of the ticliet." Where a pas- senger, on applying for information to a train agent or conductor, is informed by him that he may get off at a station, and continue his journey by the next train upon the same ticlvet, and the passenger, relying upon such statement, leaves the ti-ain at the station, the com- pany is bound to cany him on the next train to the end of his route upon that ticket, and is estopped from denying the right of the con- ductor to make that agreement, and from asserting that a stop-over check is required. Tarbell v. Raihvay Co., 24 Hun (N. Y.) 51. 4 Gulf, C. & S. F. Ry. Co. v. Henry, 84 Tex. 678, 19 S. W. 870. A passenger who has stopped off at an intermediate station, and who enters another train, and claims the right to continue his journey on his ticket, under permission given him by tlie conductor of the first train, cannot shift his position at the trial when it appears that only train agents have the power to modify the rorce of tickets, and rely for a recovery for his ejection on the fact that a train agent, and not a conductor, had given him the privilege claimed. Petrie v. Railroad Co., 42 N. J. Law, 449. (746) Ch. 22) TICKETS. § 295 § 294. SAME— CALIFORNIA STATUTE. The Califoruia Code ^ provi41. Under Pub. St. Mass. c. 113. S 47. which prohibits conimutatiou checks issued by street rail- ways in the city of Boston from Ijeing used over the same route on wliicli the cheek was issred. or a route parallel thereto, and between and including two common points, the holder of such a check, in re- turning towards his starting point, is not entitled to be carried, upon the check, in the car of another company, whose route is substantially parallel to the route of the company issuing the check, and is between and includes two common points, although a wide detour is made at one place in the route of the latter company. Crouin v. Railway Co.. 144 :Mass. 249, 10 N. E. S3'6. (748) Cn. 22) TICKETS. § 295 of a charter, ordinance, or contract to the contrary; and a passenger who takes the connecting car after the expiration of the 15 minutes may be ejected for re- fusal to pay fare, unless it is the tirst car that passes the point of transfer after alightiuo. "It is the duty of a passenger receiving such a transfer to read it; and his failure to do so cannot give him any rights against the company which he would not have had had he read it, and thus been advised as to the time limitation." * The rules of a street-railroad company carrying pas- sengers over two sections of its road for one fare, which require a passenger boarding the car on the first sec- tion to keep and show, uudetached by him, a coupon ticket, as a voucher of his right to ride on the second section, is reasonable and valid ; and a passenger who presents a detached coupon to the conductor of the sec- ond section may be ejected."^ 4 Heffron v. Railway Co., 92 ilich. 4(Mi. .52 N. W. 802. 5 De Lucas v. Railroad Co., 38 La. Ami. 930. (749) § 296 CARRIERS OF PASSENGERS. (Cll. 23 ■ • CHAPTER XXIII. DUTY TO CARRY PUNCTUALLY AND TO DESTINATION. § 296. Punctuality in Running Time. 297. Same — Ferrymen. 298. Duty to Carry from Place of Departure to tbat of Destination. 299. Failure to Take on Passenger. 300. Failure to Carry to Destination. 301. Same — Announcing Station. 302. Regulations as to Stopping Places for Trains. 303. Same— Passenger's Duty to Know Regulations. 304. Same — Rights and Duties of Passenger on Wrong Train. 305. Same — Represputations of Ticket Agent. 300. Same— Waiver by Conauctor. 307. Same— Waiver by Custom. 308. Regulations Restricting Tickets to Particular Trains. 309. Restriction as to Train in Ticket. 310. Restriction as to Route. § 296. PUNCTUALITY IN RUNNING TIME. The publication of a time-table, in common form, imposes on a common carrier the obligation to use due care and skill to have his conveyance arrive and depart at the precise time indicated in the table; but it does not import an absolute and unconditional engagement for such arrival and departure, and does not make the carrier liable for -want of punctuality "which is not at- tributable to his negligence. The publication of a time-table by a common car- rier caunot amount to less than a representation that it is ordinarily practicable for him, by the use of due (750) Ch. 23) DUTY OF PUNCTUALITY. § 290 care and skill, to run according to the table, and an engagement on his part that he will do all that can be done by the use of due care and skill to accomplish that result. But the carrier's duty does not go be- yond this. He is not a warrantor or insurer of punctu- alitv any more than he is a warrantor or insurer of safety in transportation.^ By issuing a ticket for a train adyertised to arriye at destination at a specified hour, a railroad company merely contracts to use due diligence to haye the train arriye at the hour specified ; and when the train is delayed by reason of floods, and therefore fails to make connection with another train at an intermediate station, the company is not bound to derange its ordinary traffic by at once putting on a special, and it may wait for the next regular train, § 296. 1 Gordon v. Railroad, 52 N. H. 596. A statement in the of- ficial time-table of a sleeping-car co-upany that the departure of its train from Paris corresponds with the arrival of a certain train from London is not a warranty of the punctnaiity of the arrival of the London train, and does not render it liable in damages to a passenger on the London train. Avho had secured berths on the sleeping-oar train, but who mis.sed it because the London train had not arrived in Paris at its advertised time. Lockyer v. Trains Co., 01 Law J. Q. B. .'.(H. A railroad company, which fails to run its train according to its pub- lished schedule, unless prevented by some valid reason, is liable to one who goes to the depot to take that train, for ihc damages actually sustained by him as the direct and neces>;ary result thereof. Savan- nah, S. & S. K. Co. V. Bonaud. 5.S Ca. LSD. In many of the states, railroad companies are required by statute to run tlu'ir trains at reg- ular times, to be fixed by public notice. Mausf. Dig. Ark. § 547.->; Rev. St. lud. 1894, § olS-". (Kev. St. 1S81, § 392.5); (ien. St. Kan. ISS'.t. par. V2V2; C.en. St. Ky. 1SS9, § 783; 1 How. Ami. St. Mich. § 3;!-J»; Rev. St. Mo. 1889, S§ 2582-2.-.84; Comp. Laws .\.-l.. ]S'X',. v. 16, § 121. p. .",12; Comp. Laws N. M. 1SS4. S JimI: i.aws N. V. is.-,u, <•. 1 Ki. § 36; Code N. C. 188:'., § 1963; Sayles' Civ. St. Tex. art. 422i;. (751) § 296 CARRIERS OF PASSENGERS. (Cll. 23- thoui^li that is also delayed by floods.' So, a carrier by steamer is not responsible for delay in the transpor- tation of a passenger caused by a defect in the rudder post of the vessel, which defect was not discoverable before leaving port.^ But the purchaser of a ticket has a right to rely on information given him by the ticket agent at a union station, of whom he purchased the ticket, as to the time when the train will arrive at his destination.* A railroad company, or other common carrier, of course, possesses the power of changing the running time of its trains, on giving reasonable notice to the public. A regulation of a railroad company that no train shall enter an Indian reservation within six hours 2 Fitzgeiakl v. liaihvay Co., ;i4 Law T. (N. S.) 771. The mere taking of a ticket for a railway journey does not amount to a con- tract by the conutany, or impose on it the duty, to have a train ready to start at tlie time at whicli the passenger is led to expect it. "The only duty which the law attaches to such a contract (a ticket to con- vey a passenger from one place to another) is that the passenger will be carried in a reasonable time." Hurst v. Railway Co.. 19 C. B. (N. S.) 310, 34 Law J. C. P. -iM. In the common stipulation on railway tickets, that the company shall not be liable for any delay in the starting and arrival of trains arising from "accident or other cause," the words "or other cause" mean other causes in the nature of acci- dent, and not any cause whatever; and hence the neglect of the fire- man to light the fire in time, in consequence of which the engine has not sufficient steam up to draw the train, is not within the exemption. Buckmaster v. Railway Co., 2S Law T. (X. S.) 471. 3 Xeal V. Allan, 18 Xova Scotia, 449. 4 Turner v. Railway Co., 15 Wash. 213, 40 Tac. 243. W' here, on breach by a carrier of its contract to carry plaintiff to his destination, due to the destruction of its road, plaintiff, on the advice of the car- rier's conductor, takes the train of another line, and is also delayed on the second line by reason of washouts, the first carrier is liable for such second delay. Id. (752) Ch. 23) DUTY OF PUNXTUALITY. § 296 of noon on the day it is thrown open for settlenienl, and that all trains shall be stationed on the edge of the reservation thirty minutes before the hour of oi)ening, and shall not be entered by passengers before that time, is a reasonable regulation, being adopted in accordance with a proclamation of the secretary of the interior. To that extent, the usual schedule time is abandoned ; and a passenger for a station within the reservation, who refuses to leave a train which lias stopped at the ('(Ige, under this regulation, may be ejected.^ But reason- able notice of a change in running time must be given to the public. Thus, a passenger who presents him- self at a station to take a train advertised to start at 9:30 p. m., but who finds that it has been postponinl for two hours for the accommodation of passengers de- sirous of attending a public entertainment, may re- cover from the company for his expenses incurred in hiring a horse and buggy to take him to his destina- tion, where the railroad company failed to give proper notice to the public of the change in time.* 5 Decker v. Kailroad Co., 3 Okl. r,:,:i, 41 I'ac. (ilU. 6 Sears v. Kailroad Co., 14 Alleu (.Mass.) 433. A railroad comiiany which, by moans of its published time-tables, represents that it will carry to a station on a connecting road, is lial)le, as for a false repre- sentation, to a passenger Avho purchased his ticket to sui-li station, but who was unable to reach his destination without delay, bccau.se the connecting carrier had taken off its train for the advertised sta- tion before the publication of the time-table. Denton v. Kail way Co.. 5 El. & Bl. 8G0. V. 1 FET.CAR.PAS. 48 (753) § 298 CARRIERS OF PASSENGERS. (Cll. 23 5 297. SAME— FERRYMEN. The duty to exercise reasonable diligence in the transportation of passengers devolves on ferrymen as well as other common carriers. A ferrjanan cannot excnse a delay of 14 honrs in transporting a passenger on the ground of high water, since it is his duty to pro- vide himself with proper boats to accommodate the public at all stages of water,^ So a ferryman is bound to transport persons across the stream after night; ' and one who has been detained at a ferry from fi o'clock in the evening until 6 o'clock in the morning may recover the legal penalty for unreasonable deten- tion at a ferry, unless there are special circumstances which would make it dangerous to cross with the fer- rv.^ § 298. DUTY TO CARRY FROM PLACE OF DEPAR- TURE TO THAT OF DESTINATION. The duty of a eomnion carrier to transport a pas- senger from the place of departure to that of destination is not an absolute duty; but it must afford the passenger a reasonable time and op- portunity to board the vehicle at the place at ■which it agreed to receive him, and to leave it at the place to -which it agreed to transport him. The carrier has also the right to make § 297. 1 Jaliine v. Midselt. 25 Ark. 474. 2 Pate V. Henry, .5 Stew, i: P. (Ala.) 101. 3 Koretke v. Irwin, loO Ala. 323, 13 South. '.'4:!. (754) Ch. 23) DUTY OF PUNCTUALITY. § 290 reasonable rules and regulations as to the stop- page of trains at the different stations along its route. As in all other cases involvinji- carriers of passen- gers, the dutj to caiTy from the place of departure to that of destination is not absolute. In cases of prop- erty, the carrier's duty is absolute to receive it at the place of departure, and to deliver it at destination. In the case of passengers, the duty is simply to afford a sullicient time and opjiortunit}' to board or leave the vehicle. Passengers are presumed to be ready and willing to get on board at the place of departure, and to quit at the place of destination; and it is not the duty of the carrier to put them on or olT, because, as rational beings, it is to be i)resumed that they will do what they expressly set out to do. A duty therefore devolves on the passenger; aiul it is to use reasonable care and diligence to board and leave the vehicle, and to avail himself of the opportunity afforded him by the carrier to do so.^ § 299. FAILURE TO TAKE ON PASSENGER. By the publication of notice to the public that he will stop his vessel at an appointed time and place, for the purpose of receiving passengers on board for transpor- tation, a common carrier contracts an engagement with § 29S. 1 Southeni R. Co. v. Kendrifk, -10 Miss. .".74. Sec. also, ante. c. 4, as to the carrier's duly in receiving and discharging pas- sengers. Tliat cliapter relates to per.sonal injuries received l»y ihe passenger I'roui tlie carrier's breacli of duly, wliile tlie |)n>sent cli.-ipler relates to tlie carrier's lial)i]ity fuv lailiu'e to receive a passenger, or for failure to carry luni to tlcsiiiiaiinu. (75."j) § 299 CARRIERS OF PASSENGERS. (Cll. 23 the public whicli his duty as common carrier binds him to perform; and for his failure to stop the A^essel as advertised, aA' ithout excuse, he will be liable in dam- ages to a person who, on tlie faith of such notice, went to the wharf at the appointed time, and remained there during a cold and inclement night, waiting for the boat, and whose health was injured by reason of the exposure.^ So, a custom of a railroad company to stop a train at a station on signal imposes the duty on the company to stop the train on its being signaled, and the duty on its servants operating the train to ex- ercise care to observe the signals. A failure of its servants to perform such duty, where a ticket has been purchased on the faith that they will do so, creates as clear a liability as if the train had been advertised to stop at that station, and had not done so." But where it is customary to stan a stock train from any point in the company's yards, the company is not responsible to a drover for its failure to stop at the station, by rea- § 299. 1 Heirn v. McCaugban, 32 Miss. 17. A handbill posted up iu the office of persons who sell tickets for passage on a certain steamer form no part of the contract of passage, in the absence of evidence that the persons selling the tickets, and who signed and displayed the handbills, were agents of the steamer. The mere fact that the tickets were recognized on board as genuine is not sutiicient. Mills v. Shult, 2 E. D. Smitn (N. Y.) 139. The time-table of a railway com- pany, which on its face announces that it is for the government and iul'ormatiou of employes only, and in terms reserves to the company the right to vary therefrom at pleasure, is not admissible in evidence in a suit for damages against the company for not stopping the train at a place mentioned in the time-table, but at which no station was ever really established. Beauchamp v. Railway Co., 56 Tex. 239. 2 Illinois Cent. R. Co. v. Siddons, 53 111. App. (JOS. Ch. 23) DUTY OF PUNCTUALITY. § SOO son of which he was prevented from aceonipauyin the train there to allow him to get off; and it is not ordinarih' incumbent on the passenger to notify the conductor of his destination before being called on to exhibit his ticket.^ It has even been held that a \n\s- senger who is carried two miles past his destination, and is there given the option to walk back, or ride on to the next station and back on another train li-ee of 3 Ohio & M. It. Co. V. Brown, 40 111. App. KJT. § 300. 1 Samuels v. KailniMd Co., 3.j S. C. 4!I3, It S. K. HI.-.. 2 Cahhvi'Il V. Itailroad Co., 80 Ga. 55(), 15 S. E. 078; Dave v. Steam- ship Co., 47 La. Ann. "t(\, 17 South. 12S; Strange v. Kailway Co., C.l Mo. App. .jS<5. 3 Chattanooga, K. \ C. K. Co. v. Lyon, 81) (Ja. IC, I.") S. K. lil (757) § 300 CARRIERS OF PASSENGERS. (Ch. 23 charge, has a right of action against the company, though he accepts the latter alternative, and is carried back free of charge, and though no bodily injury, men- tal suffering, insult, oppression, or pecuniary loss be shown. In such a case, however, he can recover only nominal damages/ So, a passenger on a freight train has the right to be discharged at the station platform, where that is the usual place adopted by the carrier for that purpose; and, if no opportunity is given him to alight there, and he is carried beyond his destina- tion, and ejected a half a mile from the station, the car- rier is liable.^ For the refusal of the proprietor of a steamboat to carry a passenger to the landing designated in his ticket, under the pretense that tJiat landing place had been abandoned, and landing him instead at another landing on the opposite bank of the river from that to which it had agreed to carry him, an action lies, in, which plaintiff is entitled to recover at least nominal damages.'' So, where a passenger is received on a 4 Thompson v. Railroad Co., 50 Miss. 31.5. Wliere a wreck necessi- tates a transfer of passengers, and one of them ia by mistalie left behind at the point of transfer, the company is liable in compensatory damages if the conductor failed to do all he might havp done to insure the continuance of plaintiff's journey. Alabama & V. Ry. Co. v. Pur- nell, 69 Miss. 652, 13 South. 472. c White Water R. Co. v. Butler, 112 Ind. 598, 14 N. E. 599. But uuder Code Miss. 1880, § 1054, which provides that, for injury to any passenger on any freight train not intended for passengers, the com- pany shall not be liable except for gross negligence of its servants, gross negligence must be shown before a passenger riding on a freight train can recover for being carried past his destination. Perkins v. Railroad Co., 60 Miss. 726. 6 Brulard v. The Alviu, 45 Fed. 766. (758) Ch. 23) DUTY OF rUXCTUALITY. § oOO ; teaiiiboat for a point kuowu lo be danjj;eroiis in eltVet- iug a landing, the danger will n<»i excuse the boat and its officers for a failure to comply ^Yith the contract.' AYliere a passenger enters a street car, on the assur- ance of the compau3''s agent that the car will convey her to destination Avithont change, a contract exists; and the passenger has a right of action for the com- pany's failure to run the car through, and in compelling her to leave it, and walk several blocks, where another car was taken, which carried her to destination.® Circumstances may, however, excuse the carrier's failure to give a passenger an opportunity' to disem- bark at destination. Carrying a passenger three-quar- ters of a mile past a station platform is excused by proof that the snow was badly drifted at the station, of which the conductor had been notified, and against which he had been cautioned; that a freight train was following closely; that it was night; and that the conductor and engineer, exercising their best judg- ment, thought it safer and better to stop wliere they di. 4\S. '•> ILwd V. Railway Co.. .()() Mich. ."iOT, 50 N. W. 1 14. 10 .Martindalo v. Railroad Co., (!0 Mo. fiOS. A iiassoii^'cr who, lliiMiigh his owu carelcssuess aud iiiatteutiou, ucgk'Cts to rhaiiye tars (7.-i!)) § 301 CARRIERS OF PASSENGERS. (Ch. 23 § 301. SA.ME— ANNOUNCING STATION. No principle of law is better settled than that a rail- road company carrying passengers, in order to afford them opportunity to leave the train at their places of destination,, is bound to have the names of the different stations announced, upon the arrival of the trains, for a sufficient length of time to enable a passenger to get off with safety, and that a railroad company is liable for a loss or injury vi^hich may result to a passenger from a violation of this duty.^ But it is not necessary to announce the names of intermediate stations for which there are no passengers. The officers of the train have a right to presume that the passenger will not leave the train until he reaches his destination. Nor is the company bound by the statements of pas- sengers to a fellow passenger, erroneously informing at a certain station, and is thence carried in the wrong direction, may be ejected from that train on his refnsal to return to that station on another train, which would have carried him back in time to resume his journey Avithout dehiy, and on his refusal to pay fare over the route on Avhich he is actually traveling. Page v. Railroad Co., G Duer (N. Y.) 528. § 301. 1 Louisville, X. O. & T. R. Co. v. Mask, 04. Miss. 738, 2 South. 3G0; Dorrah v. Railroad Co., U5 Miss. 14, 3 South. 30. This duty is required of railroad companies by statute in some of the states. Ky. St. 1894, § 784; 1 How. Ann. St. Midi. § 3417. The railroad company is not relieved from liability for carrying a passen- ger past his destination by the fact that, after the train had begun to slow up at the station where the passenger wished to get off. the conductor looked into the train, and failing to see the passenger, who had gone on the rear platform of the coach, signaled the train to go ahead, because he thought that the passenger had gotten off. Louis- ville. N. O. & T. R. Co. v. Mask, 04 Miss. 738, 2 South. 300. (700) Ch. 23) DUTY OF PUNCTUALITY. § 301 liim of the name of the station at which the train has arrived.- After properly announcin;^ the name of a station, the carrier is not bonnd to go further, and <»ive personal notice to a passenger traveling on an ordinary passen- ger train that his station has been reached. It is im- practicable to require personal notice in these cases, because it would consume too mtich time on crowded trains, cause much detention in traveling, which would be a public inconvenience, and impose a duty on con- ductors, where there is a long train and many passen- gers, which it would require an extraordinary mem- ory to perform properly.^ Xeither is a carrier liable for the failure of the conductor on an ordinary passen- ger train to waken a sleeping passenger at her desti- nation,* though he had promised to do so. The car- rier's duty is performed by publicly announcing the name of stations, and it is the passenger's duty to alight when the train comes to a stop." 2 Louisville, N. A. & C. Ky. Co. v. Cook. 12 Ind. .\i)ii. 100. .*^S N. E. 1104. 3 SouthAu K. Co. V. KeiKlriok, 40 Miss. ,*^>74. This is true, ovon thoiifih the conductor ha.s i)romised to specially notify a Icniali" i>as- senger. and assist her from the train. .St. Louis S. W. Uy. Co. v. :McCii11()Uj.'1i (Tex. Civ. App.) 88 S. \\'^ US5. ■i .Missomi. K. & T. Ky. Co. v. Terry, S Tex. Civ. .\pp. 7S, 21 S. W. 4IX!: Texas & P. Ry. Co. v. Alexander (Tex. Civ. App.) ;5(» S. W. 111.8. Where a sleeping passenger is carried jiast Ins destinatinn. and en- deavors to aliglit at a way station for whii-li there are no mhcr pas- sengers, the company's employes owe Idm no duty until tliey have been notified of his intention to do so; and he cannot recover for injuries sustained by the starting of ti.e train wliile alighting. .\ieh )Is V. IJaihvay Co., !)0 Midi. liO.!. .")1 .\. W. .8(j4. 6 Missouri. K. A: T. Ky. Co. v. Ivendrlck (Tex. Civ. .\pp.i :;_' S. \V. (7G1) § oOl CARRIERS OF PASSENGERS. (Ch. 2S But where a passenger retires for the night on a steamer or in a sleeping ear a different rule prevails. The obligation to awaken and notify the passenger in time for him to prepare to safely and conveniently leave the train at the point of his destination is di- rectly involved in the contract for the sale of a sleep- ing berth.*' So, the owner of a Mississippi river steam- er, the custom on which is to notify passengers when their landing places are reached, is liable for the neg- ligence of its clerk in directing a female passenger, who has placed herself in his care, to disembark at night at the wrong landing.' 42; XuDU V. Railroad, 71 Ga. 710. Nor does the fact that the passen- ger was caring for a sick child alter the case, unless the conductor knew of it when he made the promise. Chicago. R. I. & T. R. Co. V. Boyles (Tex. Civ. App.) 38 S. W. 247. A railroad company is not responsible for carrying a seven year old boy past his destination, where the name of the station was called, and the boy was safely re- turned the same night. The fact that the conductor, on arrival of the train at the boy's destination, replied in the negative when the boy's father asked if he had a little boy on the train, does nor make the company liable. Gage v. Railroad Co. (Miss.) 21 South. U.'>7. 6 Pullman Palace-Car Co. v. Smith, 79 Tex. 468, 14 S. W. 993. It is the duty of a railroad company, which sells a passenger a ticket on its line of road, and a sleeping-car ticket to an intermediate point, where the pa&senger is re(iuired to change cars, to awaken her a suffi- cient time before reaching such point to allow an opportunity to dross and prepare to make the change in a suitable and decent condition. :MeKeon v. Railway Co. (Wis.) 69 N. W. 175. 7 Carson v. Leathers, 57 Miss. 650. (762) Ch. 23) DUTY OF PU^■CTUALITY. § 302 § 302. REGULATIONS AS TO STOPPING PLACES FOR TRAINS. The law seems to be well settled that, when a railroad conipau}' sells a ticket from oue point to another on its own line, it simply engages to carr}- the passenger to his destination in the cnstomarv wav, accordiuii- to such reasonable rules and regulations as it has adopted for the running of its trains. In the absence of a spe- cial contract to that effect, a passenger has no right to require a train to stop at a particular station, where, according to the rules of the companj^, it is not sched- uled to stop, and does not ordinarily stop. Kailroad ■companies are bound, of course, to make reasonable running arrangements for the accommodation of the traveling public; but that does not mean that all pas- senger trains must stoj) at all stations, or that trains must be so scheduled and run as to enable each pas- senger to make a continuous trip. So long as a rail- road company furnishes reasonable facilities for reach- ing all stations on its line, passengers who desire to reach a particular station should take trains that us- ually carry passengers to that place.^ "To alU)w the caprice, or the wish, or even the seeming necessity, of an individual, to procure stoppage of trains at unac- customed points, and to disarrange the schedule hxcd for their predetermined and regular movement, would § 302. 1 Atchison, T. & S. F. R. Co. v. Cainerou, 14 C. C. A. 3r>S, r,(; Fed. 700; Texas & 1'. Ry. Co. v. Lndlani. U C. (". A. ITA, .".7 l^'d. 4S1; Plott V. Railway Co., C^ Wis. .'')11, 23 N. W. 412; l.o^'aii v. Rail- road Co., 77 Mo. 003; Louisville & N. R. Co. v. Miles (Ky.) 37 S. W. 486. (703) § 302 CARRIERS OF PASSENGERS. (Cll. 2 '^3 be to permit, not only vast property interests, but hu- man lives as well, to be certainly and recklessly put in peril." - The purchase of a ticket gives the pas- senger no right to be carried on the next passenger train leaving that station, if, according to the public running arrangements of the road, that train is not scheduled to stop at his destination, and there are other passenger trains, running at reasonable intervals, which do stop there. ^ The words on a railroad ticket, "Good on passenger trains only," do not impose any obligation on the company to carry the holder on a pas- senger train that does not, in accordance with the public running arrangements of the company, stop at the place named. These words are merely intended to prevent any implication that the company is bound to carry the holder on freight trains, or anything but passenger trains.* So the mere fact that a train is compelled to stop, and does stop, on a railroad crossing near a passenger's destination, does not give the pas- senger any right to go on a train which does not, ac- 2 Wells V. Railroad Co., 67 Miss. 24, 6South. 737. 3 rittsburgh. C. iV- St. L. Ry. Co. v. Nuzum. 50 Ind. 141; Plott v. Railway Co., 03 ^\■is. 511. 23 N. AV. 412; Duliiig v. Railroad Co.. (i(> Md. 120, 6 Atl. 592. A passenger cannot complaiu of the failure of the company to stop the train at a point five miles from tlie destina- tion mentioned in his ticket, where such point is not a regular station or stopping place for receiving or discharging passengers. Beau- champ V. Railroad Co.. 56 Tex. 231). The refusal of a railroad com- pany to designate, as a flag station for its through trains, a place which is not an iucorpoiated town, which contains only a few houses, and is situated within three miles of a regular station, is not an unreasonable regulation. St. Louis, J. M. & S. Ry. Co. v. Adcock, 52 Ark. 406, 12 S. AV. 874. 4 Ohio & M. Ry. Co. v. Swarthout, 07 Ind. 507. (704) Ch. 23) DUTY OF PUNCTUALITY. § 302 cording to its public riiiiniiig arrangemeuts, stop at that station.^ So, of course, a passenger wiio knows a train to be a special, going through to a certain sta- tion, has no right of action against the (•oni])an.v for its refusal to stop the train at an intermediate station, — his destination.*^ With respect to freight trains, the rule applies with still greater force. Freight trains do not generally transport passengers; and, when they do, it is by per- mission of the railroad's management, and, when the permission is granted, it may be done Avith any rea- sonable limitations the maimgement may imposi^ A regulation forbidding the transportation of passen- gers on freight trains beyond a certain station is yalid.^ But the power of a railroad company to make and enforce a regulation that one or more passenger trains on its road shall not stop at specified stations is sub- ject to legislative control; and thi*^ railroad company is bound to observe a statute requiring all passenger trains to stop at places containing more than 3,000 inhabitants.* 5 Pittsburgh, C, C. & St. L. Ry. Co. v. Li^'litcap. 7 Ind. App. 249, 34 N. E. 248. Missouri. K. ^ T. Ky. Co. v. Byas, Te.\. Civ. App. .")T2, 29 S. W. 1122. - Soutli lie N. A. R. Co. V. Iluffiiian. 7 St. SMI A statute requiring trains to stop at junction points witli otlicr railroads can he involved against the company only by passengers desiring to niak«' the traiisler to the other road, and not by a passenger whose destination is the junction i)oinl, and who talces a train not scheduled to stop there. Logan V. Railroad Co., 77 -Mo. U»j3. (705) § 303 CARRIERS OF PASSENGERS. (Ch. 23 § 303. SAME— PASSENGER'S DUTY TO KNOW REGULATIONS. It is the duty of a passenger, before taking passage on a train, to ascertain whetlier it stops at his destina- tion, according to the public running arrangements of the company/ Persons desiring ticlvets of travel are expected to inform themselves as to the train they wish to take, and must take, for their destination. If they do not understand or see the schedules or time-tables provided by the company, it is their duty in law to in- quire and learn what train they should take to reach the point they wish; and if a mistake is made, not in- duced by tlie railroad company, against which ordinary diligence as to inquiry would have protected, no re- dress against the company will be accorded.^ § 303. 1 Ohio & M. R..Co. v. Ilatton, 60 Iml. 12; Ohio & M. Ry. Co. V. Applewhite, -52 lud. 540; Pittsburgh, C, C. & St. L. Ry. Co. v. Lightcap, 7 Ind. Api^. 24!t, 34 X. E. 245; Dietrich v. Railroad Co., 71 Pa. St. 432; Caldwell v. Railroad Co., 8 Pa. Co. Ct. R. 467: Atchison, T. & S. F. R. Co. V. Gaats, 38 Kan. 608, 17 Pac. 54; McRae v. Rail- road Co.. 88 N. C. .526; Noble v. Railroad Co. (Okl.) 46 Pac. 483. 2 Duling V. Railroad Co., 66 Md. 120, 6 Atl. 592. A ticket is subject to the regulations of the company designating the passenger trains that are to stop at the station of destination, provided the passenger- has notice of the schedule regulations, or such publicity has been given them in the ticket oftice of the company, and by posters in the cars, that a person of ordinary intelligence, by the use of reasonable care and caution, would or might obtain all requisite information as to the matters involved. Trotlinger v. Railroad Co., 11 Lea (Tenu.) 533. (766) Oh. 23) DUTY OF PUNCTUALITY. § ^^^ ^ 304. SAME— RIGHTS AND DUTIES OF PASSENGER ON WRONG TRAIN. A passenger who gets on a train which he knows does not stop at the station nanunl in his ticlcet lias nevertheless the right to travel on that train and on that ticket to any intermediate station at wliicli, by the regulations of the company, the train regularly stops. And the conductor, after being notitied of the passenger's desire to get oft' at such intermediate sta- tion, has no right to eject him from the train/ It has even been held that such a passenger, win. gets oft at a preceding station, has the right to complete his jour- ney by taking the next train which does stou at, his station, without paying an extra fare.' But the mere failure of the conductor to inform such a passenger, at the lirst opportunity, that the train § 304. 1 Richmond, F. & P. R. Co. v. Asl.by. 79 Va. 130. In Balti- more & O. R. Co. V. Xorris (In.l. Apr.) 40 X. K. .",4. it was bokl that one who gets on a train without a ticket, and without Imow'-edjie that the train does not stop at the station to which he wislies to go. is en- titled to remain on the train as a passenger, to the first regular stop- ping station, on paying his fare to that place. But in International & (J. N. Ry. Co. V. Has.-ell. 02 Tex. 2:)G. it was held that the company has the right to correct such a passenger's mistake at any regular stopping place of the train; and if, being informed of his mistake, after being afforded an opportunity to quit the train at a regular stop- ping station, and wait for the proper train, he refuses t*. do s... the conductor may put hin. off in a proper manner. The principle la.d down in the Virginia cas., as stated in the text. Is. however, so clearly just that it would not seem to be open to dispute. 2 Kollett V. Bailroad Co., 22 Mo. App. :{:.0. This decision, however. is questionable, because a pas^.nger has no right to b.vaU \n- jnm- ney. See ante, § 2'Jl. (7<;7) § 305 CARRIERS OF PASSENGERS. (Cb. 2?> does not stop at bis destination, so that he can exer- cise the right to leave at any station he chooses, be- fore reaching his destination, is not a breach of the company's obligation, so as to render it liable for dam- ages snstained by the passenger in consequence of his being put off at the station preceding his destination, where he was subjected to great inconvenience and exposure.^ A passenger who holds a ticket for a sta- tion at which the train does not stop may be ejected at the preceding station, if he refuses to pay fare to the first succeeding station at which the train is sched- uled to stop/ g 305. SAME— REPRESENTATIONS OF TICKET AGENT. A railway passenger has the right to rely on a ticket agent's statement that a particular train will stop at his destination, where he has no information to the contrary.^ The ticket agent is the proper person of 3 Texas «& P. Ry. Co. v. Liullam, 6 C. C. A. 454. .57 Fed. 481; s. c. 2 C. C. A. 633, 52 Fed. 1)4. A passenger waives his riglit of action against a railroad company for its refusal to cairy him to his destina- tion, where, after being informed that the train will not go through to his destination, he leaves the car at a station a few miles from that point, and voluntarily receives back the fare for the incompleted por- tion of his journey. Florida South. R. Co, v. Katz, 23 Fla. 139, 1 South. 473. 4 Logan V. Railroad Co., 77 Mo. G(j3; Fink v. Railroad Co., 4 Lans,. (N. Y.) 147; Allen v. Railroad Co., 119 N. C. 710, 25 S. E. 787; Noble v. Railroad Co. (Okl.) 4(i Fac. 483. § 305. 1 Lake Shore i*;: M. S. R. Co. v. Pierce. 47 Mich. 277, 11 X. W. 157; Central IJailroad & Banking Co. v. Roberts, 91 Ga. 513. 18 S. E. 315; Pittsburgh. C. & St. L. Ry. Co. v. Nuzum, 50 Ind. 141; Ala- bama (i. S. R. Co. V. Heddleston, 82 Ala. 218, 3 South. 53. But in (7G8) Ch. 23) DUTY OF PUNCTUALUY. § 305 whom to iiiqnire, wlieu purchnsing- tlio ticket, as lo the places at which the traiu will stop, and the ticket ajient's representatious are biiuliuii on the company. A passenger who purchases a ticket good on all trains, and who is informed by the station agent tliai a train he desires to take will stop at his destination, may rc- covpr damages from the railroad company for the con ductor's refusal to carry him to that station, though, owing to the failure of the railway oflicials to inform the conductor of a change in the running arrange- ments, the conductor believes that his train is not au- thorized to stop at that station." But statements of a ticket agent that a certain train stops at a certain station will bind the railroad com- pany only when made contemporaneously with the sale of a ticket, and not when made several weeks be- fore, and not referred to at the time when the ticket was sold.^ So, an inquiry of a ticket agent when the next train is due, and the purchase of a ticket, do not amount to an agreement that the train will stop at the destination named in the ticket, at which the train is not scheduled to stop.^ So, if an announcement is nmde by the con Pittsburgb, C. & St. L. Ry. Co. v. Nuzum, (W Iml. o6:\, it was Held that the ticket agent could not bind the coini.any by sudi a statement. . Sheets V. Kaihoad Co., 39 W. \a. 47:.. 20 S. E. Mr, Where a pas- senger has been misdirected by a ticket agent, a petition in an a.t.uu for carrying her past her destination should count on the negligent misdirection, and not on the act of the conductor in refusing t.. stop the train at her destination. Marsliall v. Railway Co.. 7S Mo. ..It.. r. Atchison, T. & S. F. R. Co. v. Cameron, l-l 0. C. A. ^i-^S. OG Fed. 7()!l. 4 Xol)le V. Kaih.iai! Co. (Okl.) 4f, I'ac. 4S3. V.ln:T.CAlM-AS.-ll» ('^'^'^) § 306 CARRIERS OF PASSENGERS. (Ch. 23 ductor during the journey that a change of cars is nec- essarj', and the passenger hears it, he can no hunger rely on the ticket agent's assurance that the train will carry him through without change of cars, but he must make further inquiry; and, if he fails to do so. he has no right of action against the company for not being carried to his destination.^ § 306. SAME— WAIVER BY CONDUCTOR. The conductor has no power to agree with a pas- senger to stop the train and let him oft" at a station at which it is not to stop by its public running arrange- ments. "The duty of a conductor is to run the train according to the public arrangements, and he has no power to change them; and a passenger has no right to infer that a conductor has any such power from his general duties as a conductor, and no reason to sup- 5 Dye V. Railroad Co., 20 D. C. 6:J. A ticket agent pointed out a train to a passenger as one that would cf^rry him to Lyons. That train, running 150 miles, deflected to a branch road not passing through Lyons, but was followed an hoiu- afterwards by another train, which passed through Lyons. Held, that the passenger was in fault for being miscarried if, at or before reacliing the point of divergence, the carrier used such means as would have conveyed to a traveler of ordinary intelligence, using reasonable care and attention, informa- tion of the necessity of his transferring himself to the second train. Barker v. Railroad Co., 24 N. Y. 591». A passenger who takes a train which, by tlu' rules of the company, does not stop at her des- tination, has no right of action against the company for being set down at the nearest station to her destination where the train does stop, though she took the train under the direction of an agent of the company who had no authority to direct passengers. Sira v. Railroad Co., 115 Mo. 127, 21 S. W. 905. (770) Ch. 23) . DUTY OF PUNCTUALITY. § 306 pose that lie could bind the railroad company by any such agreement." ^ A passenger who goes on a train, without a ticket, knowing that such train is not sched- uled to stop at her destination, under an agreement with the conductor that he will violate the ccMii])any's rules and stop at her destination, cannot maintain ;in action against the company for the conductor's viola- tion of his agreement, in carrying her several miles beyond her destination, and there putting her oif in the nighttime at a distance from any residence.^ But if the conductor of a fast ti'ain receives fare from a pas- senger to a station at which such train is not sched- uled to stop, it becomes his duty to notify the passen- ger that tlie train does not stop at that station, or to carry him to that station, and give him an opportunity to get off in safety.^ So, where a passenger gets on a train at a junction point, and, before it starts, inquires of the conductor whether she is on the right train, it is his dutv to inform himself of her destination, and it is no excuse for him to sav that she did not show him the ticket, and that, therefore, he could not tell where she wanted to go when he directed her to remain on the train/ But the act of a conductor in taking np and punch- ing a passenger's ticket for a station at which the train is not scheduled to stop is not a waiver cil' the rcgnla- tion, where he expressly informs the passenger that § 306. 1 Ohio & M. Ry. Co. v. flattou, GO Incl. 12. 2 Alabama G. S. R. Co. v. Cannicliacl. <.)0 .\la. V.). 8 SoxKli. 87. 8 MtXulta V. Ensoh, i;j4 111. 4r,, 24 N. E. 031; s. c. 31 111. Aijp. 100. * luteriiatioiial & G. X. Ry. Co. v. Gilbert, 04 Tex. 530. (771) § 307 , CARRIERS OF PASSENGERS. (Ch. 2'6 the train will not stop tliere,^ or that it is doubtful whether it will.*^ § 307. SAME— WAIVER BY CUSTOM. A custom to stop a train at a station at which it is not scheduled to stop is a waiver of the regulation.^ The frequent stopping of a train, by the conductor, at a place not a station, to receive and discharge pas- sengers, must be deemed to have been done in the ex- ercise of power conferred by the principal, so far as the traveling public is concerned, though in fact the principal may have forbidden the act. In such mat- ters, the frequent exercise of power, which, from its nature, must have been known to the principal, may be regarded by persons dealing with the agent as suffi- cient evidence of the power which the agent assumes to exercise." Proof that the train sometimes stojjs at a station at which it is not scheduled to stop places the burden on the company to show that such stops were exceptional and under special instructions.^ So, though one knows that a certain fast passenger train, as a rule, does not stop at the station of his residence, yet, if there is a custom for such train to stop there for the accommodation of passengers holding tickets purchased from connecting railroads in other states, he may avail himself of this custom by purchasing B Trotlinger v. Railroad Co., 11 Lea (Teun.) 533. 6 Chicago «& A. U. Co. v. Randolph, .53 111. 511. § 307. 1 Texas & P. Ry. Co. v. Ludlaui. G C. C. A. 454, 57 Fed. 491. 2 Hull V. Railroad Co., GG Tex. G19. 2 S. W. 8^1. 8 Sira V. Railroad Co.. 115 Mo. 127. 21 S. W. !ti>.5. (772) Ch. 23) DUTY OF PUNCTUALITY. § C07 siieh a ticket in another state.* It has even bc^n liold that a passenger holding a ticket for a station at wliich the train is accustomed to stop may recover for luring carried past his destination, tljoii^li toM by tlic con- ductor, when he took passage, tliat the train would not stop at that station on that trip. 6 4 Humphries v. Railroad Co., 70 Miss. 453, 12 South. 155. A cus- tom of a railroad company to receive and discharge passengers at a certain platform in a town authorizes passengei-s for that town to presume that the railway company's contract of carriage is to deliver them at that point, though the platform may not he owned or con- structed by the company. The customary use, and not the owner- ship, of it would be the controlling fact from which an implied con- tract to that effect is raised. Louisville iV: X. U. Co. v. Johnston, 79 Ala. 436. 5 Chicago, R. I. uis, I. M. & S. Ry. Co. V. Adcock. 52 Ark. 406, 12 S. W. 874. A passenger cannot com- plain of a railroad company's refusal to put her off at a flag station short of her destination, although she had previously been permitted to get on and off at such station, there being no allegation that ii was ever the custom of the company to so accommotlate passengers. Matthews v. Railway Co., 38 S. C. 429, 17 S. E. 225. A custoiii ob- taining among conductors not to stop a train at one of its schedule;{ Ind. 2S'». § 3011. 1 \\ils()ii V. Railroad Co.. <>{ Miss. .TiL': Xol.iii v. Railroad Co., 41 N. Y. Super. Ct. 541. A condition on a niilt'a;:t> tlfiu-t iliat it shall not be gocxl for passajje on froitrht i rains is nut w.-iivcd t».v a sub.secjuent advertisement that pjisscnKcrs witli tiikets may ride mi such trains, since the niileajje ticket is luti an oniinar.v litki't evi- dencing an unconditional contract for carriage. l>unlai» v. It.iilmad Co., 3."> -Minn. 203. 28 N. W. 240. (TTT)) § 309 ■ CARRIERS OF PASSENGERS. (Ch. 2'* Thus, a condition in a stock ticket, that it is good only on the freight train on which the stock is transported, is valid, and the ticket is not good for passage on a reguhir passenger train. - But by issuing a round-trip excursion tickei:, good on several specified trains, the company agrees to carry the passenger on any of these trains he may select; and where, on the return trip, the company puts him off at an intermediate station, owing to the dangerously crowded condition of the car, it must make compen- sation for any damages he has thereby sustained.^ So, the fact that the train for which the ticket was issued was chartered by a third person, and that he broke his contract with the company, will not justify it in exacting an additional fare from the passenger, or in unreasonably delaying the transportation.* Like all other conditions, a condition restricting the ticket to a particular train maj be waived by the rail- road company's employes. But a condition restrict- ing a ticket to passage on a stock train is not waived by the fact that similar tickets had been previously received by defendant for passage on its passenger trains.^ Xor does the acceptance of coupons for fare on a ti*ain for which the ticket is not good debar the company from enforcing the condition on a subsequent occasion.** 2 Thorp y. Railroad Co.. 61 Vt. 37S. 17 Atl. 71)1. 3 Great N. Ry. Co. v. Hawcroft (lSo2) 21 Law J. Q. B. 178. 4 Eddy V. Harris, 78 Tex. Cdl. 15 s. W. 107. 6 Thorp V. Raih-oad Co., 01 Vt. 378. 17 Atl. 791. 6 New York & N. E. R. Co. v. Feely, 1G3 Mass. 205. 40 N. E. 20. The failure of a train of the first carrier, carrying second-class pas- (770) Ch. 23) DUTY OF PUNCTUALITY. § 3lO § 310. RESTRICTION AS TO ROUTE. Where a railroad company riins and operates two railroads between two poinft^, — one a pari t»t' ili<> tlirongh ronte, the other a longer, more circuitous, way route, — a passeni^er purchasinu a tlii-ouuli tiekei is entitled to traA'el only over the usual, throu.uh, and most direct route; the company is not bound to carry him over the circuitous route. When, therefore, the passen<;er leaves the throui^h train, au«l takes one ])ass- mg over the way route, the coni])any may demand pay for the additional mileaj^e on the ^vay route, and, on his refusal to pay it, he may be ejected.^ The lac', that a through passenger, when she boarded the traiu» Avas ignorant of a regulation requiring ihrougli i»as- sengers to take the direct route, and that no iioiicc <»r any kind was given her until it was too late for liei* to take the direct route Avithout turning back on her journey and losing time, does not entitle Ikm- to a pas- sage on the circuitous route, and no action lies against the company for her ejection from a ti-ain on ilnit route." But in a recent Canadian case it was hcM that a condition in a raihvay ticket that the passen- ger shall travel "on a dire-s tlirouirli ticket on Us next train,— a limited express,— upon wliii h such tickets are not vaiid. New Y< rk. L. E. & AV. Ky. Co. v. Kennctt. 1 C. C. A. 544, .">(» Fed. I!m;. § 310. 1 Bennett v. Railroad Co.. <'.!> N. Y. .V.t4, allirniiug 3 Ihiu, 599; Adwin v. Railroad Co., CO Barb. (N. Y.) .'")9ii. 2 Church V. Raihvay Co., . u;:.'p, c.o .\. W. s.-,i. (777) § 310 CARRIERS OF PASSENGERS. (Ch. 23 meaningless, where each of three possible routes is cir- cuitous, though one is shorter in point of mileage than the others, and the pasvsenger may make his journey on any one of the three roa^ls.^ » Dancey v. Railroad Co., 19 Out. App. 6G4, affinning 20 Out. 0^3. (778) €h. 24) EJECTION. § 311 CHAPTER XXIV. EJECTION. i 311. Right to Eject Passenger. 312. Refusal to Pay Fare, or to Exhibit or Surrender Ticket. 31.!. Same — Person Accompanying Passenger. 314. Same — Tender of Fare after Ejection Begun. 315. Same— Riglit to Resume Journey after Ejection. 31G. Same— Loss of Ticket or Faro. 317. Same— Mistake as to Ticket or Fare. 318. Same— Demand of Excessive Fare. 319. Same— Mistake of Gateman. 320. Same— Mistake in Taking up Tickets. 321. Same— Mistake as to Time Limit. 322. Same— Mistake as to Trains. 323. Same— Mistalve as to Round-Trip and Coupon Ticket. s. 324. Same— Mistake as to Street-Car Fares. S2.5. Same— Cases Holding Ticket Conclusive as between Conductor and Passenger. 32t). Same— Right to Resist Wrongful Expulsion. 327. Disobedience of Rules. 328. Disorderly Conduct. 329. Same— Intoxicated Persons. 330. Same— Overt Acts. 331. Same— Stattite Authorizing Ejection or Arrest. 332. Place of Ejection. 333. Same— Statutory Requirements. 334. Mode of Ejection. 335. Same— Resistance of Passenger. 536. Same— Orders and Threats. 337. Same— Province of Court and Jury. 3.3S. Refunding I'\are. 339. Duty of Ejected Pas.scnger. (779) § 312 CARRIERS OF PASSENGERS. (Cll. 24 § 311. RIGHT TO EJECT PASSENGER. A carrier may eject a passenger from its vehicle — 1. For refusal to pay fare, or to surrender or ex- hibit his ticket. 2. For a -willful violation of its reasonable rules. 3. For disorderly conduct. The right to eject a passenger is a sort of police poAV- er, which the carrier must have a right to exercise in order to make its vehicles fit and safe places for the conveyance of passengers, as well as to secure to the carrier a suitable reward for its services. In many states this right has been secured to the carrier by ex press statute, but the power exists at common law, for the public good, and the carrier's protection.^ § 312. REFUSAL TO PAY FARE, OR TO EXHIBIT OR SURRENDER TICKET. A person on a railroad train, who has refused to pay his fare, is a trespasser, and may be ejected by the railroad company, by the use of all lawful and proper means.^ So, a passenger without a ticket, who refuses § ;^ll. 1 St. Louis. A. A: C. R. Co. v. Dalby. 1!) 111. 352. § 312. 1 O'Brien v. Railroad Co., 15 Gray (Mass.) 20; Stone v. Raili-ofid Co., 47 Iowa, 82; De Lucas v. Railroad Co., 38 La. Ann. 930; Shular v. Railway Co., 92 Mo. 339. 2 S. W. 310; Pickens v. Railroad Co., 104 N. C. 312, 10 S. E. nm: Clark v. Railroad Co.. 91 N, C. 500; Railroad Co. v. Skillman. 39 Ohio St. 444. One who goes on a train, not with the intention to acquire a right to ride, but to compel the conductor to pass him on a void ticket, or to mal:e a suit for damages, is not a passenger, but a trespasser, and may be ejected as such on. his refusal to pay fare. Lillis v. Railway Co., 64 Mo. (780) Ch. 24) EJECTION. § 312 to pay the lii«;her ti'ain fai'e lawfully dciiuuulcil hy the conductor, may be ejected. - A rule of a street-car couipany rcquiriug passenu;ei*s to deposit their fares upou euteriuy the rar is reason- able, and the refusal of a passenger to couiply with the rule, after demand therefor, warrants the coui- pany in evicting him from the car, using no nioro force than is necessary for that purpose. '■ A regulation of a railroad company reipiiring i>as- sengersto exhibit their tickets when reipiested so to do by the conductor, and directing the ejection fnun the cars of those refusing to do so, is reascniable and ])rop- er. The passenger is bound to conform to such regu- lation, and forfeitif; his right to be carried further by his refusal to comply with it. The fact that the pas- senger has once exhibited his ticket to the conductor does not excuse his failure to comply with an(>ther re- quest for its exhibition, where the train has meantime passed a station.^ But a passenger who has paid his 404. A passengrer who is asleep when the tniin readies his destiii.-i- lioii is not entitled to a free transportation to the next station; and. on his refusal to pay fare to that station, he may be ejected. Texas Pac. Ry. Co. v. .lames, 82 Tex. 30G, 18 S. W. r>80. 2 Moore v. Railroad Co., 38 S. C. 1. IG S. K. 7S1 : .Tolinsun v. K.iil- road Co., 14 N. Y. Wkly. Dig. 4!>5. Under a by-law of a radwny company which proliibits any passenger from t-nteriiig a carriiige witii- out first having paid his fare and uijiaincd a ticUet. tlie ((imiMiiy is justified in expelUng a pas.senger who, wiUi full kiiowlcdu*' of tlie by-law, goes on a tniin without hrst prixuriiig .i licUel. McCiriiiy V. Railway Co. (Ir. Exch.) 18 Wkly. Rep. HV2. 3 Nye V. Railroad Co., 07 Cal. 4(11. :\-2 Tac .'..".O: Com. v. M.Ciiin (I'a. C. P.) 2!> Leg. Int. 124; Bachmatm v. l{;iil\\.iy Co. d'.i. C. T.i .\2 Leg. Int. 179. * IIibl)ard v. RMilroiid Co., IT. N. Y. I.V.. .\ pas.siMigt'r wlio i.-fiises (781) § 312 CARRIERS OF PASSENGERS. CCh. '24 fare to the conductor is not bound, on another demand for his ticket, made 10 minutes later, and on being ac- cused by the conductor of lying, and with not having paid his fare, to produce the rebate check given to him by the conductor, in the absence of any request by the conductor for its production.^ The good faith or honesty of a passenger in believ- ing that money in his possession is sufficient to pay his fare is immateiial in an action for his expulsion for his failure to tender an amount suthcient to pay it.® So the fact that a person attempting to ride on an expired railroad ticket believed in good faith that he had such right can in no way affect the right of the railroad com- pany to eject him from the train. '^ The right to eject a passenger for nonpayment of fare to comply \^ith a reasonable" regulation of the company as to the sur- renrler of tickets to tlie conductor may be ejected. People v. CaiTt 3 Parker, Cr. R. (>s. Y.) 326. The fact that a passenger's baggage bas been injured in transportation does not justify his refusal to yield up his ticket when demanded by the conductor, and on his refusal so to do he may be ejected. Havens v. Railroad Co., 28 Conn. 69. 5 Louisville, N. A. & C. Ry. Co. v. Goben, 15 Ind. App. 123, 43 N. E. 890, and 42 N. E. 1116. 6 Sage V. Railroad Co.. 134 Ind. 100. 33 N. E. 771.- 7 Rudy V. Railway Co., 8 Utah, 105, 30 Pae. 306. One who goes on a railroad train with a ticket issued by a different company, and good to a different station than the one which is his destination, can- not ride witliout payment of fare, tliouiih he may have believed the ticket to be good when he boarded the train, and, on his refusal to pay fare, he may be ejected; and no damages can be recovered for injuries sustained in his forcible removal, when they were not willfully inflicted, when improper methods were not used, and when the wrong- ful resistance of such per.son directly contilbuted to the injuries. At- chison, T. & S. F. R. Co. V. Brown, 2 Kan. App. 604, 42 Pac. 588. (782) Uh. 24) EJECTION. § 313 is cduferved ou railroad coiupanies by statute in many of the states.*' lu Massadnisetts it has been hchi iliai a statute which gives railroad companies a rii:hl t(» ar- rest persons riding on their trains with intent to evade payment of fare does not prohibit the expulsion of a passenger at a regular station for nonpayment of fare, withont arresting him.* § 313. SAME— PERSON ACCOMPANYING PASSENGER. Payment of his own fare by a parent will noi enti- tle a child accompanying him to nde free, wliei-.-, \iii der the company's rules, a child of her age is reciuired to pay half fare; and, whether the contract of car- riage be considered as made with the child or with the parent, the child may be put off the train for nonpay- 8 Mansf. Dig. Arlv. § 5474; Civ. Code Cal. § 218S; (li-n. St. Conn. 18S8, § :J.-.41; Couii). Laws Dak. 1887, § :!8!»7; Kev. St. Fla. 1S!>-J. § 2-Jii7; Rev. St. 111. c. 114, par. i)4; Stair & C. Ann. St. p. l'.»44. par. 04; Rev. Sr. Iml. 1894, § 5181; Rev. St. 1881, § ^021; Rev. St. Me. 1883. p. 4-3. c. 51, § 78; 1 How. Ann. St. Mich. § 3370; Rev. St. Mo. 1S8 ». § 2.-81 ; Civ.Coile Mont. 1805, § 2808; Comp. Laws Neb. 1803. p. 310. S Ia<1 Co., 36 Conn. L'S7; Crosson v. Railroad Co.. 11 riiila. (Ta.) .".'.17. 8 I^uisvilir, X. A: (J. S. K. Co. v. I'l- inin^'. 1 J Lea (Tenn.) 128, 118. (7.SU) § 316 CARRIERS OF PASSENGERS. (Ch. 24 check evidencing his right to ride, must produce it on demand hj anotlier conductor, who tool^; charge of the ti^ain afterwards. If the check has been lost, the loss is the passenger's, and he must pay his fare, or leave the train, since it can be used by a third person, and the company might be thus defrauded.* So, a pas- senger who surrenders his ticket, and receives a check from the conductor, and tJien goes into another car, and fails to produce the check when the fare is again demanded, may be ejected, if he also refuses to go into the first car with the conductor for identification. The check, if given, was given him for the ver}^ purpose of identification. It was notice to him that the con- ductor would rely upon its production, and not on rec- ollection.^ The rule in Canada is the same as in the United States.^ But in England it has been held that a con- dition in a ticket requiring the passenger to show and 4 Jerome v. Smith, 48 Vt. 230. 5 Lucas V. Railroad Co., 98 Mich. 1, 56 N. W. 1039. A passenger who had lost his ticket entitling him to a seat in a drawing-room car applied to the ticket agent for another ticket. The agent declined to do so on the ground that the diagram showing the seats for which tickets had been issued was no longer in his possession, but the pas- senger was given a written statement that he was entitled to a seat. Held, that on presentation of the statement to the conductor, accom- panied by a proper explanation, coupled with the fact that the diagram showed the sale of an unoccupied seat, it was the conductor's duty to permit the passenger to remain in the drawing-room car, and his exclusion therefrom, on refusal to pay an additional fare, was wrong- ful. Buck V. Webb, 58 Hun, 185, 11 N. Y. Supp. 617. 8 Grand Trunk Ry. Co. v. Beaver, 22 Sup. Ct. Can. 498. reversing Beaver v. Railway Co., 20 Ont. App. 476; Curtis v. Railway Co., 12 U. C. C. p. 89. (790) Ch. 24) EJFXTioN. § 31G deliver it up to any duly-authorized servaui on dv. mand, and requiring a passenger traveliui; wiiliout a ticket, or failing or refusing to show or dt livci- up his ticket as aforesaid, to pay the fare tioui ihc station whence the train originally started to tlic cinl of his journey, does not authorize the company Lo n-movc by force a passenger who has bought a tic-ket, and accidentally lost it. He is ri^ihtfullv on the train, and the onlv remedy that the couipanv has for his breach of contract to show and deliver up tlu* ticket is by a proceeding to recover the fare. "No oik- has a right to lav hands forcibly on a man, in the absence of some legal authority to do so, or some agivement to that effect." ' In all cases, however, a passenger who has lost his ticket or his fare is entitled to a reasonable time with- in which to search for it.* As a general rule, the time 7 Butler V. Railway Co., 21 Q. B. Div. liiiT. IMaintiff tooti tickets for liiinself, his servants, and his liorses, by a particular train on de- fendant's railway. The train was afterwards divided into two by defendant's servants. I'laintiff traveled on tlie first train, taldiitr all the tickets with him. When tlie second train, with the servants and horses, was about to stiirt, plaintiff's servants were re(iuireil to produce their tickets, and. on bein.u: unable To do so. defendant refusiil to carry tliein. Tleld, that a by-law reiiuirinjr i)assengers to procure tickets, and to sliow tlieni and deliver tlieni up when re go to any place without being regarded as a tres- l)asser, and Avho does go there proi»erly and lawfully, cannot be interrupted so long as he does not inter- fere with the right of anybody else, but siuiply pur- sues his own legal right; and any pei'son who does interrupt him, treat him as a trespasser, aud forcibly eject him as a trespasser, is liable in law for an ac- tion of assault and battery. - This principle, that in such circumstances the ticket is not conclusive as between passenger and conductor, though denied by courts of high standing,' is support- ed bv numerous recent cases. The supreme court oC the United States has recently held that the conver- sation between a passenger purchasing a ticket and the ticket agent is admissible as to what the contract of carriage is.* 80, a passenger who is wholly witli- lOOU, 21 S. W. 781; Gulf, C. & S. F. Ky. Co. v. A\ ri.i:lii, 2 Tox. Civ. Apv. 4U3, 21 S. W. ;W'J. ■- Wiitkins V. Railroad Co., 21 D. C. 1. 3 See post, § 32.J. 4 New York, L. E. & W. II. Co. v. AViuter's Ailiu'r, 143 U. S. »;|) over at an intermediate station hy tlie conductor. The eouduelor i»uiK-lied his ticket, and told him that was suUicient to give him the ri:.'ht to § 317 CARRIERS OF PASSENGERS. (Ch. 24 out fault, aud who has done all that can reasonably be required of him to do, and in whose ticket there is an error through the mistake, carelessness, or negli- oence of the agent or conductor of the railroad com- pany, and Avho is ejected from the train on the ground that his ticket is defective, may recover for his ejec- tion, and is not bound to pay another fare, and then sue the company to recover that.' So, a passenger who stop over. On takiuj? another train to complete his join'ney, the con- ductor refused his ticket, and demanded full fare, on the ground that he had no stop-over check, as required by the company's rules. Held, that tlie passenger was rightfully on the train, that the conductor had no right to expel him, and that he had the right to make a sufficient resistance to denote that he was being removed by compulsion and against his will. In Yorton v. Railway Co., 02 Wis. 367, 21 N. W. 51G, 23 N. W\ 401. tlie facts were as follows: A conductor made a mistake in a stop-over check which he handed to a passenger, and the conductor of another train refused to honor it, and requested the passenger either to pay fare or get off the train. The passenger cliose the latter alternative, and was put off at a station, without force. It was held that plaintiff liad the right to elect to pay fare or leave the train; and, choosing tlie latter alternative, he had the right to recover all such damages as were the direct and natural result of the wrongful act complained of. It was further held that plaintiff was Bot obliged to pay the fare demanded, and complete his journey on the second train, for the purpose of mitigating damages. But see Id., 54 Wis. 234, 11 N. W. 4S2, wliere a contrary conclusion was apparently reached. 5 Northern Tac. K. Co. v. Pauson. 17 C. C. A. 287, 70 Fed. 585; Cal- loway V. :Mellett, l.j Ind. App. 30G, 44 N. E. 198. A passenger on a steamer holding a ticket entitling him to flrst-class accommodations is under no obligation, when tlie validity of his ticket is denied by tlie purser, to pay anotlier tir.st-class fare, and then sue the steamboat company to recover it; but lias a right to insist on the accommodations which his ticket entitles him to, and, on being denied tlieiu, may sue the company in tort for its refusal to perform its duty. The Willa- mette Valley, 71 Fed. 712. The bertli check issued to a passenger by (794) Ch. 24) EJECTION. § 317 calls for and pays for a ticket to a specified jdace, Imt who, by mistake of the company's a«i«Mii, is -i\»Mi a ticket different from that desirehiiia(i(>n; ami, if the conductor refuses to heed his statements, thr company must respond. He has paid for his riihs and presented in good faith the only evidence given him by the company of his right to make tlie join-m-y. If the company has not furnished him the propel- token to convey the fact to the mind of its conductor, the blame and the conseqtiences thereof must rest iii>oii it, being in fault, rather than upon the passenger, wlio is not.*^ So, a passenger who enters into a contract with a station agent for a first-class passage, and who pays the full price for a first-class ticket, but to whom the agent by mistake delivers a second-class ticket, which the passenger does not examine, need not i)ay the conductor an additional fare to secure the right to ride in a first-class car, though a rule of the com- pany makes the ticket conclusive as between iIk- ton ductor and passenger. If the passenger refusing to pay the additional fare demanded is compelled to i-ide in a second-class car, he may recover danuiges thereby sustained.^ So where a passenger presents a valid the conductor of a sleepiii;; car is iini coinlu.sive as to wliai ln-nli tlie passenger actually bargained lor. and parol evidence Is adniissiliU* to show what berth the passi^nger bougiit. .Mann Itdudoir-Cin Cii. v. Dupre, 4 C. C. A. 540. .")4 Fed. (!4);. « Evansville & T. II. K. Co. v. Cates. 11 liid. .\pp. ITU. 11 .\. H. 7l:i. 7 St. Loais, A. & T. Uy. <-"• v. .Ma.kic. 71 'I'.-x. IIM. !» S. W. l.-»l. A niistalie of the ticket agent in Issuing a ticket on a rouic m.ii I'liijtled (7'Jo) § 317 CARRIERS OF PASSENGERS. (Cll. 24 ticket, though in a mntihited form, the conductor is bound to receive it, unless its condition is due to the fault of the passenger, and the conductor, in the exer- to be taken by the passeni,'Ci- is the mistake of tlie corporation, and the conductor can no more deny the passenger the benetit of the contract as really made than could the carrier itself. Gulf, C. & S. F. Ry. Co. V. Rather, 3 Tex. Civ. App. 72, 21 S. W. 951. Where a passenger, in the hurry of embarliing, does not notice a mistake in the ticket, caused by the fault of the ticket agent, the question of his negligence in not discovering the mistake is for "the jmy. Id. A railway company is liable for ejecting a passenger who is rlglitfully on a train, and has paid his fare, though the ejection is the result of the honest belief of the conductor that he has not paid, and the passenger makes no effort to show that he has paid, and though the mistake is immediately discovered by the conductor, and the passenger is taken back on the train before it has left the station where he was ejected. Gulf, C. & S. F. Ry. Co. V. Barnett (Tex. Civ. App.) 34 S. W. 449. If a pas- senger has once paid his fare, he cannot be ejected because he refuses to pay a second time; and, if he is so ejected, the company will be liable to him in damages; and it will be no defense, in an action against the company for a wrongful expulsion, that its conductor was honestly mistaken. Gorman v. Southern Pac. Co., 97 Cal. 1, 31 Pac. 1112. A passenger who has a right to ride on a train, but whose ticket, through a mistake of the railroad company's employes, does not evi- dence the I'ight, need not pay an additional fare, and sue for the return thereof, as money paid under duress. He may insist on his rights. and, if ejected from the train, may sue the company for wrongful ejection. Cherry v. Railroad Co., 52 Mo. App. 499. One who calls for a ticket between two named points on a railroad, pays therefor,, and receives from the agent a ticket Avhich is of a complicated char- acter, and not easily understood by persons unfamiliar with its use, is not chargeable with the agent's mistake in giving him a wrong ticket, and may recover from the company for his expulsion from the train. Georgia R. Co. v. Olds, 77 Ga. 673. A person who calls for a ticket good to a particular station, and paj^s the price demanded there- for, has a right to rely on the agent of the company to give him the proper ticket, and, no peculiar circumstances intervening, there is no duty on the person purchasing to examine the same; and any mistake which may occur, as to the point of destination, is chargeable to the (796) Ch. 24 EJECTION. § 317 cise of reasouable care, becomes satisticd that it is uot valid.® Ill some of the cases stress is laid on the fact that the passenger inquired of tlie ticket agent or roiidiict- or as to the validity of the ticket, and thai he was assured that it was good.'' Thus, where a ticket is railway company, and not to the person receiving or pnnliasing tlic ticket. Georgia Itailroad tV: Banking Co. v. Donglierty. sii ila. 744. 12 S. E. 747. Wliere a coupon tieliet on its face contains everytliing necessary to entitle a pa.ssenger to ride to !:is destination, the fact tliai the check mark was torn off does not justify the company in refusim: to accept the ticket, since the passenger is not in fault as to tlils. Ohio «fc M. Ry. Co. v. Cope, 3G 111. App. It7. The wrongful t'jertion ^^\' a passenger from a car is actionable, though unaccompanied by pby.sical force or violence, or any rjide or uugenthnnanly words or acts on the part of the conductor, who acts in perfect good faitli, l)c- cause, owing to a mistake of another of defendant's employes, then- is an eiTor in the pa.ssenger's ticket. WilLson v. Railroad Co., .") Wash. (521. 32 Pac. -ItiS, and 34 I*ac. 14(>. If a railroad company issues .i proper ticket, and the conductor compels the holder to get off, he is entitletl to damages; and this, though it was through an honest mis- take of another of the company's servants. Baltimore & O. R. Co. V. Bambrey (I'a. Sup.) 16 Atl. G7. In an action for a wroiigfid expul- sion, based on tlie passenger's refusal to pay additional fare demaudt-ii of him l»y the conductor, who believed that his ticket was good onI\ to an intermediate station, the fact that the conductor advised plain tiff to pay fare, and settle the matter with the agent who sohl tin- ticket, and that there was a doubt as to whether the tieket was really good for the whole distance, cannot mitigate the damages. The pas- senger, having paid his fare, was as much entitled to stand on his rights as the company, believing the fare not to have been iKiid. was to stand on its; and whether he should stay on the train, or refuse ii. pay and suffer expulsion, was a matter which the law h-ft .s(»lely to thr passenger's di-scretion. Lake Krie iV: ^\'. R. Co. v. Arnold, S Ind. App. 297, 34 N. E. 742. 8 Houston A: T. C. R. Co. v. Crowe (Tex, Civ. Ai.p.l .".7 S. W. 1071. oMnrdock v. It;iilrn;i,l Co., i:;7 Ala.ss. 2!»3; Cult. •'. \ S. I'. Ry. Co. V. Halbrook (Tex. Civ. App.) 33 S. W. ]n2S; Ilaniy v. Kallr.iMd Co.. (71(7) § 317 CARRIERS OF PASSENGERS. (Ch. 24 purchased in perfect good faith, and the ticlcet agent informs the passenger that it is a good ticket, the fact that there is a punch-mark thereon, indicating to the conductor that it has been canceled, does not affect the passenger's right to travel thereon, and he cannot be ejected for a refusal to pay his fare a second time.'** In all cases, however, where there is a mistake in the ticket, it is the passenger's duty to make an ex- planation to the conductor. While a passenger s tick- et is not in all cases conclusive evidence of his con- tract with the carrier, yet it is sufficient evidence of the contract to justify a conductor (an agent of the railway company other than the one with whom the contract was made) in acting upon it, as showing the actual conti-act, in the absence of any explanation by the passenger that, through fraud, mistake, or inad- vertence, it does not show the real contract. Hence a passenger who calls for a first-class ticket, but who receives a second-class ticket through the mistake of the ticket agent, cannot recover for his ejection from the first-class car by the conductor, in the absence of any explanation or statement that a mistake had been made.^^ 58 Hun. 607, 12 N. Y. Supp. 55. Where a passenger, whose desti- nation necessitates a change of trains, is unable to obtain a ticliet at the station, ;u.a pays his fare to the conductor, who neglects to give him a ticket, the rule that a passenger must show his ticket or pay his fare will not authorize his ejection, if the conductor of tliat train is informed by the first conductor of tlie payment of fare. Hom- iston V. Railroad Co., 3 Misc. Rep. 342, 22 N. Y. Supp. 738. 10 Hufford V. Railroad Co., 64 Mich. 631, 31 N. W. 544. But see s. c. 53 Mich. 118, 18 N. W. 580. 11 Alabama & V. Ry. Co. v. Drummond (Miss.) 20 South. 7. (798) Ch. 24) EJECTION. § '"^IS § 318. SAME— DEMAND OF EXCESSIVE FARE. Wheu a passeujier endeavors to Im.v a lickcl befoiv eutering the ears, and is unable to do so (»u arecuint of the fault of the corporation or its nuciits or serv- ants, and he offers to pay the ticket r:ito on tho tiain, and refuses to pay the car rate, it is uidnw fiil for t ho corijoration, or its agents or servants, to ejeit him fioni the train. He is entitled to travel at the lower rate, and the corporation is a trespasser, and liable for the consequences, if he is ejected from the train by its agents or servants. The passenger may, under such circumstances, either pay, under protest, the excess demanded, or refuse to pay it, and hold the corpora- tion responsible in damages if he is ejected from the train.' In such a case the conductor is bound to know whether or not the passenger's failure to get a ticket is owing to the fault of the ticket agent' A passen- ger who tenders the legal fare, and is put off the train because he will not pay an excessive fare demandod, may recover the damages suffered by reason of the ejection, lie is not botmd to pay the excessive fare, with a right to stie for the excess.' § 318. 1 Forsee v. Railroad Co., (53 Miss. GO; Gulf, C. & S. F. Ry. Co. V. Sparger (Tex. Civ. App.) 31» S. W. l<«n. 2 Georgia, S. & F. R. Co. v. Asniore, 88 (Ja. r>2!). 15 S. E. i:?. 3 Chamberlain v. Railway Co. (Mich.) rlati..n as a passeng.-r, and was willing t., pay the (7'J:») § 320 CARRIERS OF PASSENGERS. (Ch. 24 § 319. SAME— MISTAKE OF GATEMAN. Where a passenger presents himself at a depot gate in time to take a train, the company is responsible for the act of its gatemau in refusing him permission to pass, under the mistaken belief that he is too late.' So, it is liable for the gateman's act, in forcibly pre- venting a passenger from getting on the train, on the ground that his ticket is defaced, where it is in the same condition as it was when purchased, though the rule would be otherwise if it had become defaced by the passenger's fault.' So, where a passenger is pre- vented from taking a ^rain by the gatekeeper, owing to the failure of the proper officers to notify him that persons having tickets like plaintiff's were entitled to go on the train, the fact that the gatekeeper was acting in accordance with his instructions does not relieve the company from liability for the assault.^ § 320, SAME— MISTAKE IN TAKING UP TICKETS. Where a conductor takes a ticket from a passenger which entitles him to passage from one station to an- other, and between these Doints demands of him an- other fare for part of the trip, and ejects him from the car for failure to pay it, such acts constitute a legal wrong for w^hich the passenger is entitled to recover legal fare therefor. Upon the tender of the legal fare, he had a right to be carried to his destination." Id. § 319. 1 Baltimore & O. R. Co. v. Carr, 71 Md. 135, IT Atl. 1032. 2 Northern Cent. Ry. Co. v. O'Conner, 76 Md. 207, 24 Atl. 449. 8 Watldns v. Railroad Co., 21 D. C. 1. (800) Ch. 24) BJKCTioN. § 321 daiuajies/ So, in such a cast', a secmul r(»iuliirtas- sen S. W. 107. 2 East Tennessee. \'. iV <}. Ity. Co. v. Kiiijr. ss Ca. 1 I."'.. 1 I S. K. TUN. § .SUl. 1 Trice v. Railway Co.. M> W . \a. JTl. Jl S. !■:. UC'-J. In this case it was said: "Tliat |tlie rule a^'aiiisi imiiilatcil (irkcts| is j;:lit ul' a pa.ssenger under a ticket which in fact has nut lic^-n nmiilateii or chanfjed? Suppose the collector should tind inai'Us of nintilation oi- alteration when a court shoidd lind noin'. \\ 1 C'^' ' 1 ) § 321 CARRIERS OF PASSENGERS. (Ch. 24 pany can no more justify the conduct of tlie conductor in exacting- an adtlitioual fare than it could a like exaction directly made by it. If, in such case, the passenoer should be right, the carrier cannot exact the performance of conditions contrary to the rights of the passenger under the contract It assumes the re- sponsibility of any wrong it or its servants may codi- mit under the circumstances.' So, where the purchas- er of a round-trip ticket asked for a return transpor- tation good for 30 days, and the ticket agent agreed to give him such a ticket, a time limit of 10 days on the ticket is not controlling, and the company is liable for the ejection of the passenger on his return trip, begun after the expiration of 10 days, but before the 2 Gulf, C. & S. F. Ry. Co. v. Wright, 2 Tex. Civ. App. 463, 21 S. W\ 399. A passenger purchased a ticket for an extended journey, which, by mistake of the ticket agent, was so punched as to indicate that it expired on the day of issue. One conductor telegraphed for instruc- tions, and received an order to honor the ticket until further instruc- tions. At the end of his division he handed her the telegram; but the conductor of the next division refused to honor the ticket, though the telegram was shown him, and he worried her for several hours, and tinally put her o£E at an intermediate station at midnight. Another IKissenger then paid her fare, and she resumed her journey. Held, that plaintiff had a right of action for the expulsion and ill treatment. Johnson v. Railway Co., 46 Fed. 347. But in Gulf, C. & S. F. Ry. Co. v. Daniels (Tex. Civ. App.) 29 S. W. 426, it was held that a ticket purchased with knowledge of a time limit expressed on its face can- not be varied by parol evidence of the declarations of the ticket agent that it will be good for the day after the time limited, there being neither negligence nor fraud on the part of the agent. The ticket pur- chased with knowledge of its provisions constitutes the contract be- tween the parties, and the rule excluding parol evidence to vai-y a written contract applies. (802) Oh. 24) EjECTiox. § 322 expiration of 30.^ So, a passeiioer who has hoeii -ism im expired ticket by mistake of tJie ticket a^ivin may maintain an action of tort aj^ainst tho railway rmw- pany for his ejection from The ti-ain by the cniKliicior, thoug-li the latter acted in ^^ood laiih, and idirsuaiii to iustnictions.* g 322. SAME— MISTAKE AS TO TRAINS. A passenger who, by mistake of a ticket agent, gets on a train not scheduled to stop at his desil nation, and who is ejected by the conductor befon^ reaching his destination, may recover against the c(»mi>any as for a tort, and not merely for a bi-eacli of «(tiiti'act, though the conductor, in making the ejection, eul'oiciMl the reasonable rules of the company.^ 3 Gulf, C. & S. F. Ry. Co. v. llalbruuk ( IVx. Civ. Api».) o3 S. \N . 1028. * Ix)Ui.sviIle & N. R. Co. v. Gaiiies (Ky.) 'M s. W. lit. § 822. 1 Pittsburgh, C.,C.& St. L. Ry. Co. v. Reyuold.s (OIiId Stip.) 45 N. E. 712; Cliicaso, B. & Q. R. Co. v. Spiik (N*'li.) 7() N. W. '.r^r,. In the case first cited, the supreme court of (Jliiu said: "As betwiH'u tlu' conductor aud tlie company, tlie latter may Jiave no rijilit to eoiiiplaiu of him. He violated no duty lie owed to the company, llf simply obeyed liis instructions as received Iidiii the company applicalth* to such a case. Tlierefore it may well be ."^aid tliat, as between iilni and the company, tlie conduct of tlie conductor was ri;;litinl. Hnt. as be- tween the company and tlie passenger, the cpieslion is wliully a dif- ferent one. "When a coniiKiny. by the ad ii\' a iJiuper a^mi. causes a pa.ssenser, as in this ease, b) take tlie wnm;; train, nne tiiat does not stop at his station,— it must be lielii t<. Ii.ive eontemplai.-d Unit, mider the instruction uiven the conductor, the passenger wi>uld havi- to be put off tlie train as soon as the error should l)e dlsenvered liy the conductor, tniless lie ^lllluld. as demanded, pay adilltinnal fare, and be carried lievdinl his station. 'I'he a'i\[ of the (S(>:{) § 322 CARRIERS OF PASSENGERS. (Ch. 24 But, as we liave seen, a person has no right on a train Avhieh, lUKhH' the rules of the company, does not stop at the station for which lie has purchased a ticket, provided he lias not been misled by any of the com- pany's agents, and hence he may be ejected therefrom company, misdirecting tlie i^issenger, is the wi-ongful act for wliich tlae tirst company becomes liable in tort; and tlie act of the con- ductor in ejecting Iiim is a consequence of the first wrongful act. — is the proximate cause of the passenger being ejected; and, as against the passenger, the act of the conductor in ejecting him, being the act of the company, is wrongful. The fallacy, as before stated, arises out of the mistaken assumption that tlie act of the conductor is right- ful as against the passenger. This can in no instance be the case where the comimny is responsible for the mistake of the passenger in taking the wrong train. All the cases cited in supix)rt of the conten- tion of the plaintiff in error that in any way do so are based on the fallacy that the conductor had the right to eject the passenger, when, as a matter of law, the real question is whether the act of the com- pany done by its agent is rightful as against the ejected party. The question may be simplifieil by eliminating the fact of agency in each instance; that is, by supposing that the common carrier in each in- stance acts for himself or itself. Here no mind would doubt but tliat the carrier, having instructed the passenger to take one of his trains, with knowledge of his destination, would be a wrongdoer should he. on discoA^ering his mistake, eject him from the train, on the ground that he has taken the wrong train. But the intervention of an agent, by whom the act is done in each instance, does not change the case; for each act of the agent done in the scope of his agency must be im- puted to the principal, — is in law the act of the principal. * * * The general principle derived from the cases is that where, by the fault of an agent of the company, a passenger takes the wrong train, or is without a ticket, or one imperfectly or erroneously stamped, or for any similar reason, and is ejected by the conductor of the train, in pursuance of the rules of the comiiany, it is liable to him as for tort. The rule concedes to the company the right to make reasonable rules for the conduct of its business, and to retinire their enforcement by its agents. The contingency that in ceitaiu cases the company will be made hable by the act of its conductor in follnwing its rules, where (804) Ch. 24) EJECTION. § 323 without the use of uuuecessaiy viiilnico." So ilic fact that a rule of a railroad coniitanx , ftuhiililiiiLL |>ass»*ii- wers from ridine; on through fiviuln irains. has ofttMi been violated, does not de]ni\(' tlic r(»iii[»aiiv (»r ilir ri«;ht to begin its enforcement wliciicxt'i- ii iiiav (1<'r the ac- commodation of passengers, may be ejevtcd rn>m ii by the conductor.^ § 323. SAME— MISTAKE AS TO ROUND-TRIP AND COUPON TICKETS. Where one purchases a rouny the fault of an- other agent, of which he had no knowledge, is a risk iiieidenl to the privilege of making rules; and it should suffer from tlu' fault of the agent that caused the mistake, rather than an innocent person." 2 Chicago, St. L. & P. R. Co. v. Bills, 104 lud. i:'.. :: X. K. "Ul: .Vtehi- son. T. & S. F. R. Co. v. Cants, 38 Kan. (ios. 17 I'.i.-. r>\: ( aldw.'ll v. Railroad Co., 8 Pa. Co. Ct. R. 4(J7; .Missouri, K. vV: T. Uy. Co. v. Haw- son (Tex. Civ. App.) 2!) S. W. llOi;. See. als), ante, S .•{trj .-t s the staiiiui iiami'd by the conductor, and the taking and South. 44:}; riiiladelpliia, W. & B. R. Co. v. Rico, <)4 Md. 63, 21 Atl. 97. The mere fact that a return coupon ha.s become soiled and changed in color does not justify the conductor in ejecting the pas- senger, without affording him an opportunity to make an explanation showing the ticket to be genuine, wliere all the printing and the stamp of the company are plainly visible on the ticket. Chicago & K. I. R. Co. V. Conley. 6 Ind. App. 0. .32 N. E. 96, 8ti.l. 2 Wightman v. Railway Co., 73 Wis. 169, 40 N. W. 689. A railroad ticket was issued in coupons, gcMxl over two sections of defendant's railroad, Avith a right to stop over. The conductor on the first train detached both coupons, and gave the iiassenger a conductor's check as evidence of his right to ride on the second section. The conductor on the second train declined to honor the check, and demanded fare. Held that, thougli under the rules of the company the check was not (SOO) Ch. 24 • EJECTION. § 324 a provision reqnirino- the passeuj^er to present it to the agent at destination for identitication and staiiiiiin.u, and the passenger does so present it, and the agent takes the ticket and returns it fohh'd to the passenger, without any objection as to tho sufricienc.v of the iden- tification, and luuhn- such circumstances as to lead the passenger to believe it has been staniju'd, the conductor acts at his peril in exi)elling the passenger because the ticket has not been stamped, aftci- ilic passenger has fully explained the situation to hini; and for such ejection the passenger is entitled to re- cover damages, though he immediately afterwards re- entered the train, i)aid another fare, and continued his journey.^ § 324. SAME— MISTAKE AS TO STREET-CAR FARES. A passenger on a street car, who has ]»ai(l his f;ire, entitling him to complete his journey on a connecting :hi to dctarh l)()th coupons, yet the passenger was not bound to niaki' imiuirUs as to the extent of the conductor's authority, and that lie had a riglit to refuse payment of fare, and recover for his ejectiim from the train. ■VN'hich ensued on such refusal. I'ahner v. Uaihoad Co.. .'i S. c. .">S(>. 3 Northern Tac. K. ( "o. v. I'auson. 17 C. (\ A. JsT. 7(t I-Vd. ns.".; Mis- souri rac. Ry. Co. v. Martiuo. 2 Tex. Civ. App. fCU. IS S. W. 1(m;(;. I'l s. W. 781. Wliere a coupon ti( kct good over two lines is presented to the conductor of the first line, and lie by mist.ilic rt-iaiiis llu- ronpon good over the second line, ami rcOinis ilic oihi-r touiioii to tiic i>as- senger. the jiasscngcr m.'iy iii.iiniaiii :in :iclioii .•i;;;ilii>-i ilu- lirst carrier for her expulsion from the cars of tlie second a. m., but the conductor of that car re- fused to receive the check, on the groimd that it was two hours old, and, on the passenger's refusal to pay fare, ejected him, though the conductor's attention was called to the 9 o'clock punch, and though assured that it had been issued at 9. Held, that the ejection was Avrongful, and that, assuming that the double punching created a doubt in the conductor's mind, he had no right, in the circumstances, to resolve that doubt against plaintiff. Laird v. Traction Co., IGO Pa. St. 4, 31 Atl. 51. A street-car company which has adopted a system of permitting passengers to change cars without transfer cliecks must give the public a reasonable notice of a regulation requh-ing transfer checks as an evidence of the passenger's right to ride on the con- necting car; and a passenger who, on the day after the change of rules has been made, gets on the connecting car without notice of the change, cannot be ejected for his failure to procure a transfer check. Consolidated Traction Co. v. Taboru (X. J. Sup.) 32 Atl. 685. Where, (808) Oh. 24) EJECTION. § 324 liable in damages for the ejection of a i»asscii-'57. But a conductor of a street car has the right to eject a p.-isseiiger who offers a transfer du not care to use them, to tear them in iiieces, and tiirow ihem away, jiciir the iX)int where plaintiff lioardeer and safe dis(diarge of his manifold duties, and ii would render the company constantly snbject to fraud and consequent loss. The passenger must submit to tlie inconvenience either of paving his fare or of being eject- ed, and relj upon his remedy in damages against the company for the negligent mistake of the ticket agent.' Thus, where a ticket agent, by mistake or fraud- ulent design, sells to a passenger a ticket which shows on its face that it is expired and worthless, the pas- senger cannot maiutain an action of trespass against the company for his expulsion by the condu. 11 S. K. 737; WcsU-rn Maryland R. Co. v. Stncksxlalc, S.'J .M<1. IJI.'., 34 Atl. SSii; Itiadshaw v. Railroad Co., 13.") Mass. 407. 2 Baggett V. Railroad Co., 3 Ap|r. D. C. r.i'i.': li.-ill v. Kalimad Co., l."> Fed. 57; Id., !> I''<-d. ."iS.".; I'ciiiisyivaiii.i Co. v. lliiif. II ()ldgiuze him, and de- manded fare. He simply said that he had i»iud his fare, and. on be- ing asked where to, said: "You ought to ki.c w where I paid my fare to. It is your business to know." Tlie condiictm- thcreuixm ejected him, but after he was off the car the oonduetor recognized him, and asked him to get on again. This the passenger refused to do, with tlu' statement: "I will fix you." Held, that t!ie passenger having faileil to produce his mileage liodk. or to give his name to tlie conductor, or to explain how or when lie liad paid his fare, cotild not rei-over for the ejection, since sucli an explanation wouhl liave avoided tlie mis- take. "White V. Itailroad Co. (Mich.) Cj N. \V. :>2\. Where a pas- senger on a street car receives, without rcailing it, a wrong transfer check, and the conductor of the second car (hvlines to receive it in I>ayment of fare, the passenger, after having refused to p.iy fare to the second conductor, and been by him expelird from the car. cainiot maintain an action against the corporation for his expulsion. "It Is no great hardship ii]Kjn the passenger to imt Inm tip<»n the duly of seeing to it, in the tirst instance, that he receives and i»rescnts to llie con- ductor the proper ticket or check." Hradshaw v. lJ;iilroad Co., i;r. Mass, 407. A i):issenger was sold an excursion lickci liy llie agent of a railroad company, which, by its terms, was re(|uired (o be .stamp ed for retuni pass;ige by the secrctaiy of a cani|>-Mieeling assoclaiion. The camp meeting liad closed, ;ind llie seciel:iry liad gone awjiy. The passenger tendered the unstamped ticket f(»r n-iuin passjige, and. on the refusal of the cojidiictor to acay fare. Held. (Sill) § 326 CARRIERS OF PASSENGERS. (Ch. 24 tion of the conclusiyeness of the passenger's ticket as between himself and the conductor. It is believed that the weight of authority and of reason is in favor of the proposition that a passenger lawfully on the train, and having a right to be carried, has the right to make a reasonable resistance to an effort to eject him, though through some mistake of the company's servants he has not the proper ticket; and for inju- ries sustained in consequence of such resistance the company is liable.' Thus, a passenger purchasing a that he was rightfully ejected, and could not recover therefor. W^est- eru Maryland R. Co. v. Stocksdale. 83 Md. 245, 34 Atl. 880, distinguish- ing cases where ticliets are apparently good on their face, and the passenger has no notice of any defects, from those where the ticket on its face is obviously not good, and is notice to plaintiff that it does not entitle him to passage. Where, OAving to a defect in a round-trip ticket, the agent at destination refuses to stamp it on the offer of the holder to identify himself as the purchaser, it is the duty of the latter to purchase another ticket; and if he fails to do so, and is ejected, he cannot recover damages for humiliation and mental anguish suffered by reason of the ejection, but only the expense of the delay and the price paid by him for another ticket. Russell v. Railway Co. (Tex. Civ. App.) 35 S. W. 724. § 326. 1 Louisville, N. A. & C. Ry. Co. v. Wolfe, 128 Ind. 347, 27 N. E. GOG; Lake Erie & W. Ry. Co. v. Fix, 88 Ind. 381; Cleveland, C, C. & St. L. Ry. Co. V. Beckett, 11 Ind. App. 547, 39 N. E. 429; Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557; Pittsburgh, C, C. & St. L. Ry. Co. V. Russ, 14 C. C. A. 612, 67 Fed. GG2, afflrming 6 C. C. A. 597, 57 Fed. 822; Dancey v. Railroad Co., 19 Ont. App. 664. In this last case it is said: "I do not find that our courts have yet gone so far as to hold tliat a passenger rightfully traveling on his ticket is bound to leave the train at the conductor's order, at the peril of not being able to recover damages for an assault committed in expelling him by force. He is in the right, and the company is in the wrong. 'No one has the right to lay hands forcibly on a man, in the absence of some legal authority to do so,' and here there was none. Pushed to its legitimate conclusion, the argument must be that no damages what- (814) Cli. 24) EJECTION. § 32G ticket oood for the dav on wliidi it is Sdld, but liv mistake beariuj* au earlier date, is not nii>;iii\ tor l»rra< h of the contract to can-y, hut he luis a li^lii lo icsisi ejection, and recover (hmia^t's tlieielur.- Si», a pas- Kenger lawfully on a train, who lias paiil the lawful fare to the conductor, has the ritiht to olTer such re- isistance to any attempt on the ])art of the conductor TO remove him therefrom as may be necessary [n pre- vent his being- ejected; and if, in conseipieuce of sucli resistance, extraordinary force is necessary and is used to remove him, and he is injured thereby, he nuiy re- cover for such injtiry.^ ^ver can be recovered for any assault under sucli circuiustancos as the plaintiff brings it upon himself by disobeyiuK au order whit-li. thou^'h unlawful, he cannot effectually resist; and, if the argument is valid in the case of the railway passenger, I do not see wiiy it sliould nm hold good in the case of any one else wlio stands in danger of au as- sault for noncompliance with an unlawful order which sui)erlor strength stands ready to enforce." 2 Ellsworth V. Railway Co. Uowa) 63 N. W. .")84. 3 English V. Canal Co., (i<> X. Y. 47A; Zagelmeyer v. Raili-oad Co.. 102 Mich. 214, 60 N. W. 436. In Englisli v. Canal Co. it was said: "Where n conductor is in tlie wrong, the passengei' iiiis :i right to protect hini- .«elf against any attempt to remove him. and resistance can lawfully be made to such an extent a.s may be essential to maintain suili a right. Cases occur where circumstances may impt'ratively reqidre that the pas.senger shoidd remain on tlie train <>ii ji.coimt of ..tlieis Avho m:iy be in his charge, or wh.iv it is iudisiH'usabh' tlial lie sliould hasten on his journey without delay; and if, by r.asi.n of tlu- willful ness or mistaken judgment of tlie conductor, lif cotdd In- <'xp.-ll.'.l when lawfully there, s«'rious iiijiiiy might follow. Tlif law iloi-s not. under such circumstMnces. phicr ilu' p.-is-nigi-r williiii the im.w.t of Hi.- conductor, and. wlim hiwriilly in ilic i ars, he is aiiliioiizrd to vindliati' (Sir,) § 326 CARRIERS OF PASSENGERS. (Ch. 2i On the other hand, there are cases that have been decided on a squarely conflicting principle. "When- ever there is a reasonable ground to dispute the right of the passenger to ride on the ticket he has, it is the duty of the passenger to pay the additional fare- demanded by the conductor, if able to do so, and rely on the remedy to recover the amount before a justice of the peace or other competent court; and damages cannot be increased by an obstinate resistance to the demands of the conductor, and by forcing him to ex- pel the passenger from the train. The passenger can take that course undoubtedly, and sue for damages for a breach of the contract, or of the public duty of the carrier; but his own unreasonable conduct in re- sisting a fairly reasonable demand of the conductor can be taken by the jury as mitigation of damages, and will reduce them to nominal or actual damages sustained by the delay." * Thus it has been held that the fact that a conductor fails to give a passenger a check, or any other evidence of the right to ride on a train, on taking up hi,s ticket, does not justify the passenger in resisting by force an ejection by another conductor, w^ho demands payment of fare or presen- tation of evidence of a right to ride, as required by the rules of the company.^ So, it has been held to be such right to the full extent which might be required for his protec- tion." 4 Gibson v. Railroad Co., 30 Fed. 904. To same effect, Chicago, B. & Q. R. Co. V. Griffin, (18 111. 491 »: Chicago, B. & Q. R. Co. v. Wilson, 23 111. App. 63; Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. GUS, 17 Pac. 54. 5 Townsend v. Railroad Co., 5G N. Y. 205. (816) Ch. 24) EJFXTioN. § 327 the duty of a i)assen«ivr to pay an as- seujier will justify the earlier in i-efusinii lo iraiisiMUt him further, but not in malt i-eaiinu him while con- tinuin,ii- to j)erform the conn ad foi- his con\eyaiire.' Where a passenger takes a dou with him inio i lie passenjier car, contrary to tiie iides of the raili-oad coini)any, and refuses to renio\c iiim i intciiils to jjo.and to remain tlu-rc iiiilil liic (h'p"''mri' of such train: Iml lie lias iioi ilic li^Mil to caicr ami iciii.iiii on -.\u-\t liiciiiiscs atlcr liaviii^' hci'ii rciiiicstcl In leave liy ilie e.a'poialioii. iiii less he is tlieii iiiteiidiiif,' to f^onjioii tlie train: ami tliei orpuraiion lias a rijiht to remove liim if, after sneli reipiest. lie relnses lo i|ep irl. ll.irrls V. Stevens. '-'A \1. TH: .lolms/in v. Kaiin ad Co.. ."•! Iowa, ■_'.">. ."><• .\. W. ~t-i:i. A wom.-iii of ill re|iiile. wlio liail on a prior occasion coiidneted li( rself ill ;iii indecent manner at a passenger station, ean reetivor uomiiial daiiiaj,'es. at most, for her n'liiov.-il from the slalioii In llie V. 1 FKT.C.\K.r.\S. — i'>'2 ^^^O § 327 CARRIERS OF PASSENGERS. (Ch. 24 a passenger, who has paid his fare, boards the train or conveyance in a manner forbidden by tlie carrier's rules, does not autliorize his ejection, after he has safely gotten on board, since his presence on the con- veyance is rightful, no matter what the irregularity in getting there.* . A passenger on a street car has no right to ride on the platform, in violation of a rule of the company, when there is room inside; and the conductor, after he has requested the passenger to come inside, may eject him from the car for his refusal so to do.^ And a, passenger who occupies two seats in a car, in vio- lation of a rule of the railroad company restricting him to one, and who displays a pistol when the con- ductor attempts to remove his baggage from one of them, may be ejected from the train, though he has not interfered with other passengers in occupjdng two seats.** evening, several hours prior to tlie departure of the train on which slie said she was about to travel, where no force whatever was used, and she simply obej'ed an order to leave. Beeson v. Railway Co., 62 Iowa, 173, 17 N. W. 448. 4 Smith V. Railway Co. (Com. PI.) 18 N. Y. Supp. 759, affirmed 138 N. ^. 623, 33 N. E. 1083; Huerstel v. Railroad Co., 1 City Ct. R. (N. Y.) 134; Compton v. Van Volkenburgh, 34 N. J. Law, 134. 5 McMillan v. Railway Co., 172 Pa. St. 523, 33 Atl. 561; Ft. Clark St. R. R. V. Ebaugh, 49 111. App. 5S2. The mere fact that a pas- senger on a street car, after being informed that it is against the rules to smoke on the car. proceeds to fill his pipe, does not authorize his ejection, where he does not light it. Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557. A passenger may be ejected for per- sisting in talking with the driver, in violation of the company's rules. Com. V. Mans^fleld (Pa, Com. PI.) 29 Leg. Int. 124. 6 Gulf, C. & S. F. Ry. Co. v. Moody, 3 Tex. Civ. App. 622, 22 S. W. 1009. (818) ^ll- 24) EJECTION. § 3 28 § 328. DISORDERLY CONDUCT. The use of iudeeent or profaue lanjiuajic in a inil>li( conveyance will authorize the ejection of iIm- passi'u- gei' using- it ^^'hen indecent or jMulaiu' hin.una.i:»' is being used on a car, it is the conductor's duty lo clicrk it, and he will be guilty of a brearli i.f assengt'rs, near- ly one-half of whom are women, a man in rarm'st conversation undertakes to emphasize his statmi.-nt, as some men are apt to do, by saying, "liy (lod," ii is so, or '*By God," it is not so, the law makes it the duty of the conductor to check him; and if ihc hitter de- nies his guilt, and, u])on being assnreil Itv ilir con- ductor that he was guilty, tlies into a pa.ssioii, and calls the conductor a "damned liar," he may be right- fully removed from the car; not as a i)unislinn'nt for his insult to the conductor as an individual, but to vindicate the authority of the law, which forltids the use of such language in a cai', or any «»lh(i- public place where women and children have a right lo be.' But it has been held that mere use of indecent and vulgar language is no ground for ejecting a passeii § 328. 1 Roljinson v. Rai'.wny. S7 -Mf. : S7, ."{li All. '.I'Jl. A pa s uuc-r who, witliout lea.souable piovoc atiuu, willlully ami in aiip-r calls tlif couUuctor a liar in thi> lirt'sciico and licariiiji of oiIht passciipTs. Is guilty of disorderly cuudiKt, and may he cjctifd. i;ads v. Kallway Co., 43 Mo. Ai)i). ."»3(;. '1 111- ('.^action of a IrilliiiK sum as fan', wlilcli bad already bc-eu [laid, doi-s ikj) justify tlie use of Ki"»issly pruniiu' niul oli.-coue lanj^ua^e by a pass'iijier iu tlu' iireseiice of feinalr pa^-sfup'rs; and the conductor may riKldfully cxiiel iilm from tlie car. riilcan.i. B. iV: ."). The r.-ict that a lassengor, in the heat of passion, produced by an aeeusatiou of the eondnetor that he has not paid his fare, uses ol:.seeue and profane lanynaj^e in the presence of ladies, does not con.'-titute a ground for ejecting him. The wrong eonunitted by the pas.>-enger was provoked by the conductor, and flie company can- not avail itself of that wrong as a defense for his ejection. Louisville, N. A. & C. Ky. Co. v. Wolfe, IL'S Ind. ;!47. --'7 N. E. (JOi A passeuger Avho is a stranger waiting at a depot for a train between 1 and 4 a. m., and who, after failing to tind the gentlemen's water-closet outside the nuiin depot building, impelled by necessity, has resort to the water- closet intended and designated for ladies only, is not guilty of dis- orderly conduct. King v. Railroad Co., ti'.t :Miss. 24r>, 10 South. 42. 3 Louisville iV; N. IJ. Co. v. ^layl.in, CO Ml.^s. s:!, 5 South. 401. (820) Ch. 24) EJKCTioN. § 329 he was kiiown to he intnxicatctl when icccivcW ;is a passeng;ei'.^ So, a i)assoiiji(*i- sutTci-in^ fi-uiii (Iclirimii tremeiis, whose coiHliict occasions sciioiis aiiuovaiicc and discomfort to his fellow p.-isscii^cis. iii;iv he re- moved." The faci tliai «»n iciiioviim an iiiio\ic;ilces ncs ..ilicr pasM-imrrs not to pay their fare, is gniliy of (lisdnl.-iiy r..n«ln.t. aixl may Ik- ejected. Baltimore. 1'. *: C U. Co. v. .M.l >..iiai.i. f.s In I. Mi>. A carrier may expel a jiassenger who is drnnk. an.l .l.'iu.ans liiinself so as to interfere with th • conirnii ui \hr .mIht passi'ng.'rs. I-M>;erly V. Railroad ('o. (N. Hi ::<■> All. .-.r)S. S. .-. also. ante. « IIJ. :; Atchison, T. c^t S. l'. \L Co. V. W. l-r. :::; Kan. :>i:',. r, I'ar. S77. ••t Sullivan v. Uailrnad Co.. 1 is .Ma^s II'.'. 1^ -N. K- •"'T^- 4 Louisville & N. U. Co. v. I,oj:an. ss Ky. -'.IJ. l«i S. W. r..V.. 5 Kegner v. Itailroad Co.. 7 1 lino. U'-j. •_•<; N. V. Su|.|. "i.:. (N2I) § 331 CARRIERS OF PASSENGERS. (Ch. 24 § 330. SAME— OVERT ACTS. A conductor is not boimd to-wait until some overt act of violence, profaneness, or other misconduct has been committed by an intoxicated passenger, to the inconvenience or annoyance of other passengers, be- fore exercising his authority to exclude ,or expel the offender; but he may do so whenever acts of impro- priety, rudeness, indecency, or disturbance appear either inevitable or probable/ § 331. SAME— STATUTE AUTHORIZING EJECTION OR ARREST. In many states, statutes exist authorizing the ejec- tion of passengers for disorderly conduct.^ In still others, conductors are vested Avith power to arrest disorderly passengers." It lias been held that the pow- § 330. 1 Ylutoii V. Kailroad Co.. 11 Allen (Mass.) 304; Lemonl v. Railroad Co., 1 Maekey (D. C.) ISO. § 331. 1 Code Ala. § 115(>; Rev. St. 111. c. 114, par. 94; 2 Starr & C. Ann. St. p. 1944, par. 94; Rev. St. Ind. ISSM, § 5182 (Rev. St. Ind. 1881, § •i922); Ky. St. 1894. § SOG; Ann. Code Miss. 1890, § 35(>3r Comp. Laws N. M. 1884, § 2G05, snbd. 13; Rev. St. Ohio 1890, § 34.34: 1 Rev. St. S. C. 1893, § 1718. Ann. (^ode Miss. 1890, § 4313, empowers station agents to preserve order, and, if necessary, eject any person whose conduct is boisterous and offensive. 2 Rev. St. Ind. 1894, §§ 1771, .■■)18.3, .")184 (Rev. St. Ind. 1881. §§ 1702. .3923, .S92-1); (Jen. St. Kan. 1889. rars. 2378, 2379; Rev. St. Me. 1883, p. 482, c. .".1. SS 73. 74; Rev. St. Mo. 18.S9, §§ 3830, 3831; Pub. St. N. H. 1891, p. 4.^3. § 8; Rev. St. Ohio 1890, § 3433; Code W. Va. 1891, p. 907, § 31; Sanb. & K. Ann. St. Wis. §§ 1817a, 4598a. Laws N. Y. 18(i3. c. 34(». autliorizes railroad and steamboat companies to employ policemen for dnty at stations. Laws N. Y. 1880, c. 223, authorizes the governor to appoint all or any conductors and brakemen on trains jiolice ofticers, with the usual power of such otticers. (S22) ^'^^- 2"^) EJECTION. § 332 or to arrest, conferrecl bv stntiitr, w:is inicn.l.'.l to .nii fer additional powers ou railroad (.llicials, and imt to take away tlieir eominon law ri<;Iit t.. nmovr a pas senger who is noisy and disorderly, to tin- annoyance of the other passengers.' In tin- ahsi-iito (.f sncli a statute, it has even been ludd that, wli.-n- a nnmb.-r of passengers on a train are gnilty of disonb-rly <(.n- dnet and a continnons breach of the jx^aee, and ih.- conductor is unable to expel them from the ti;iin b\ reason of their- superior physical force, he has a ri^ht to cause their arrest by a iiolice ollicer, withont a waiTant, as soon as the train arrives at a station. Thr fact that they were guilty n.erely of a niisd.'mcnnor. and that no warrant was procnicd for th.ii- ainst, will not render the company liable.* § 332. PLACE OF EJECTION. At common law, and in the absence of siainte. one wrongful!}' on a train may be e\]ieII, art. 'Mui, wlilch aiillior- izes arrests for disorderly comluct witlimit a warrant. Trait v. Brown, 80 Tex. GCtS, IG S. W. 44.;. 4 Kaltiraore & O. R. Co. v. Cain. SI Md. s;. :n Atl. sni. § .332. 1 Louisville iV X. K. Co. v. .Inlm-uii. '.ij Al.i. Jni. u .Soiitli 2f;(»; Everett v. Railroad Co., CU Iowa. i:.. js X. W . Hit; Mrown v. Railioad Co., .j1 Iow.i. 2.''m"». 1 X. W. 1^7: .Soiilliciii Kjui. Itv. Co. v. Hinsdale. 38 Kan. r,(i7, KJ I'ac '.•.■f7; .M.lilson, '1'. A: S. T. U. C... v. (Jants, 38 Kan. (iOS, 17 I'ac. .">4: .McChin- v. Itallnuid Co., .'M .Md. .'i.'ll'; Great Western Uy. C<>. v. .Miller, I'.t .Mi S. E. 781; Rudy v. Rail- way Co.. 8 Utali. 1(J5. :;!0 Tac. 3!J(J. 2 Biircli V. Rai'iAvay Co., 3 App. D. C. 34G. 3 Magee v. Navigation Co.. 40 Fed. 734. •i Hardeubergli v. Railway Co.. 3'J Minn. 3, 38 N. W. 025. 5 Maples V. Railroad Co., 38 Conn. 557. (S24) Ch. 24) EJECTION. § 333 § 333. SAME STATUTORY REQUIREMENTS. Statutes in many of the srat«'s iv<|uin' ejection to be made at a usual stopiiiuii i)lai(' nr near sumc dwelliuo- honse.^ These statutes ar<' i-cstri. 4<';i. ,-. \r,s. s :;j; V, S. is.M. « 3L»15. AYithin tivc niilis of a station, Couip. Laws Neb. ts;(;;. p. .-.Im, § 107. a Pliettiplace v. Railroad Co.. 84 \Vi«;. 412. .".4 N. W. in.rj; 15 n-lini V. Railway Co.. 01 Wis. .">02, U5 X. W. ."»i>;: Ni(li..ls v. Uaiiway Co.. 7 Utah, 510. 27 I'ac. OIC!; Durfec v. ItaiAv.iy C... O liali. Jl.:. :!;: I'ar. 044; Stephen v. Sniila. 20 Vt. KHt; Uliuuis (Viii. U. Cci. v. Siiltttii, 5;; 111. 307; Chicajro. K. \- (,». K. Co. v. I'.iiU-;. is III. I'.i"; 'I'.-in- Ilautc. A. & St. L. R. Co. V. \ aiialla. 21 111. IM. 3 St. Loui.s, 1. M. \- S. Ky. v. Itrandi. 4r> Ark. .".24. .\ suiicnuiil hy a pa.sseuger, who refuses to pay rare iliai li<' will ;:ii "H' it ihf con- ductor will stop the tniin. is n«i justilicalimi fm- his l(»rcili"e e.\i)Ul.s:ou by the conductor, after the train cihiics i.. a siaii Islill. and he refuses to get off, at a place oilier man a regular siaiioii. Chhago \ X. W. Ky. Co. V. Peacock, 48 111. 2.-.::. (825) § 333 CARRIERS OF PASSENGERS. (Ch. 24 edly, by use for such purposes, has designated as a proj)er place for passengers to get on or off its trains^ and where tliey would, in consequence thereof, have the right to demand the exercise of this privilege/ So, the term "regular station" in such a statute means a place on the railroad where passenger trains usually stop for the purpose of having passengers get on or off such train, and not the town or village in which a railroad company may have its passenger and depot building. A railroad company does not comply with the statute when it puts a passenger off at a point on its track distant from a fourth to a half of a mile from its depot platform, even though sncu point be within the corporate limits of the village or city where such depot is located,^ But under a statute which authorizes an expulsion "near a dwelling house," the fact that the occupant is temporarily absent, and the 4 Texas & P. R. Co. v. Casey, 52 Tex. 112. A water tank, about ■ a quarter of a mile from a station, is not a "rei;iilar stopping place," within the meaning of the statute. The statute means the usual stop- ping place for the discharge of passengers. Chicago & A. R. Co. v. Flagg. 43 111. 364. A pasrsenger station, within the meaning of such a statute, must at least be a stopping place wliere passenger tickets are ordinarily sold. Baldwin v. Railway Co., 04 N. II. .jOO, 15 Atl. 411. 5 Illinois Cent. R. Co. v. Latimer, 12s HI. m\, 21 N. E. 7. In an ac- tion for putting a six year old child off the train about half a mile from the depot, hut Avithin the corporate Imiits of the town, evidence that another train Avas expected to arrive, witliin a feAv minutes, at the place of the remoA'al. is competent, on the question whether it was proper or improper for tlie coniluc-tor to make the remoA'al at that particular point. Id. But a passenger on a freight train may be ejected at the usual point adopted for that mode of traA'el, and the train need not be draAvn up at the passenger platform. Illinois Cent. R. Co. V. Nelson, 50 111. IIU. (826) Ch. 24) EJFXTION. § ?.33 house closed, does not reuder it wrongful for a con- ductor to expel a passenger there/ These statutes do not, however, apply to one who rides on a freight train, in violation of tin- coinpany's rules, and he may be ejecteaynuMit of fare, a passenger expelled for other causes than the noiipay ment of fare may be expelled at any convenient and safe point on the road.'* 6 Patry v. Kaihvay I'o.. 77 Wis. 21S, 4(j N. W. oi;. To put »>ft' a passenger, on a daik nij;lit. witliin 25 or 30 rods of u thvelliiif; houst'. of whose location he is ignorant, cannot be said, as matter of law, to be a compliance with the statute. Loomis v. Jewett. :{."> Ilun (N. Y.) ."JIS. Where a passenger, luiable to read, shows her ticket to the brakeman of a train belore boarding it, and he assists her ou the train, and the conductor, on taking up her tickc^t. discovers that hers is issued by another road, and not good on his train, it is tin- duty of the company either to return lier, without Iharge, to the place Avhence she started, or to leave her at .some other point, where she can most speedily, conveniently, and ^afely reach a train on the other road which will take her to destination. If, on the other liiind. she failed to show the ticket to the brakeman or any otlur employ<^" of the road, and got on the train by reason of her own ndsiak*', then slie was wrongfully on the train, and could be expdk'd for noniKiymmt of fare "at any usual stopiting place, or near any thvclling house." Patry v. Railway Co., 77 Wis. 218, 4G N. W. 5G; Id., 82 Wis. 4Ci8, 52 N. W. 312. 7 Hobbs V. Railway Co., 49 Ark. 357, 5 S. W. r.S»!. 8 South Fla. U. Co. v. Rhodes. 25 Fla. 40, 5 South. tuVA. Thou;;h. as a general ruh", a person not lawfully on a train can be expelled only at a regular station, yet one who has been thus e.\| cllcd, and ulm again leaps on the train as it is pulling out of a >tatioii. occtijiles (pilie a different position from that of a person who enters the cars under a mistaken notion that he has a right to do .so. ("lilcago, R. A: c.>. R. Co. V. Boger, 1 111. App. 472. In ;in ad ion for eject Ing a iiass«'iiger at a point other than a regular stopi)ing place, the cuurt cannot pre- (S-JT) § 833 CARRIERS OF PASSENGERS. (Cll. 24 In Indiana it has even been held that a statute which provides that a passeu«;er refusiui; to pay fare "may be ejected at any usual stopping place" is permissive only, and hence that a passenger may be ejected for nonpayment of fare at a place other than a usual stopping place.-' So it has been recently held that sume that the Utah statute, or oue similar to it. reiiuiriug passeugers to be put off at a regular stopping place, is iu foree iu Colorado, where the ejection took place, but the presumption is that the common law- is In force there. Rudy v. Railway Co.. 8 I'tah. 1<;5, 30 Pac. 366. « Baltimore, P. & C. R. Co. v. McDonald, (!8 lud. 316; Toledo, W. & W. Ry. Co. V. Wright. Id. ."S(j; Jefftrsouville R. Co. v. Rogers, 28 lud. 1. This astonishing conclusion was reached by the following process of reasoning: "Is it meant by this provision of the statute that a man n^ay get on a tiain at one station, and refuse to pay fare, and cumpel the railroad company to carry him to the next station be- fore he can be put off? And that he can thus get on the train, when it is moving out. and again refuse to pay fare, and compel the com- pany to carry him to the next station, and so on. to the end of the road: Such a const-ruction and interpretation of the statute woiild. to say the least, make it very inconveuit'nt for railroad corporations. iu many instances to collect any fare whatever. A better and more rational interpretation of tiie statute is that it was intended by the legislature to be a police regulation, for the purpose of protecting the public from the dangers of freipunt and unnecessary stopping of trains between stations, or the peril to tlie traveling public consequent upon the increase of speed necessary to regain time lost. But. if a passenger refuses to lay fare, he has no right to complain for being put off the train, for the reason that such refusal to pay fare, on proper request, makes him an intruder or wrongdoer from the begin- ning." Baltimore. P. & C. R. Co. v. McDonald, terous to de- mand of railway companies that they should iierunt all women who decline to pay their fares to travel tmniolcslcd in their cars, or that force should not be used to expel them, if ibey should .so far uuscx themselves as to make a re.sort to forl ness, but it is for the protection of iiassengers; and a pas.senpT who recognizes a conductor as sin b, .-iiid lirats wiili biiii iis such as to tJH' proper amount of laic, mnsl ])lace ln-r refusal to pay llie fare de- manded, or to cumpl.v witii bis direclions, on the ground tliat he Is without his badge, so that he may obviate Ihe ob.|e(tlon; ami. after she is excluded from tlie car for refus.al to pay the regular fiu-e. she cannot afterwards lie bciiil to olijrr i ib.it tlic iniuluitui- was witboul his badge. Cox v. Haiiw.iy. Ui'.M.il. luii, n I'ii.-. T'.M. (820) § 334 CARRIERS OF PASSENGERS. (Ch. 24 has been held in a recent Southern case that, if a white passenger is wrongfully ejected from the train, the fact that a colored train hand was called upon to assist in so doing will not make the company liable for greater damages than should be recovered if the train hand had been a white man. ^ But in exercising a legal right of ejection railway companies must not do so in an abusive Avay. They are the servants of the public ; and, while their right to enforce reasonable regulations will be upheld, yet the regulations must not only be reasonable in them- selves, but the manner and method of enforcing such regulations must be reasonable, and free from un- necessary force, as well as from unnecessary indig- nity.* If a conductor uses unnecessary force in eject- ing a passenger, the company is liable, although the conductor may have a right to eject him, and to em- ploy reasonable force to expel him from the train.' 3 Central Railroad & Banking Co. v. Strickland, 90 Ga. 562, 16 S. E. 352. 4 Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5. e Chicago, St. L. & P. R. Co. v. Bills, 104 Ind. 13, 3 N. E. 611; State V. Ross. 26 N. J. Law, 224; Philadelphia, W. & B. R. Co. v. Larkin, 47 Md. 155; Haman v. Railway Co., 35 Neb. 74, 52 N. W. 830; International & G. N. Ry. Co. v. Leak, 64 Tex. 654; Bourke v. Railroad Co. (Pa.) 1 Lack. Leg. Rec. 108. Though a trespasser on a train has not gained the interior of the car, and is standing on the steps, the conductor has no right to eject him in such a manner as to endanger life or limb. Kline v. Railroad Go., 39 Cal. 5S7. If more force than necessary is used in ejecting a person wrongfully on the train, resulting in stunning or paralyzing him, so that he is incapable of taking care of himself, and because of such incapacity he falls into mud and water alongside of the track, and is drowned, the company is liable. Gill v. Railroad Co., 37 Hun (N. Y.) 107. A colored wo- (830) Ch. 24) ■ EJKCTiox. § 331 This is but the application of an old principle, «>1«1 as The hiw itself, to a modern instante; fur ii lias ewv been the law that no man has a ii«;ht t<> cmplov un necessary force in doinu anv in-t." EvtMi a tn'spasser cannot be ejected from a train withcnit a rras.. liable re- gard for his safety/ It is nnivcrsally lu-ld that the fact that one is a trespasser docs not justify his cjw- tion from a train while in rapid motion.* So the fact man who is ejected from a waiting room set apart for wlilto pnsseu- gei-s may recover, if- tlie ejectiou was doue with unm-ces-^ary force and violence. Rose v. Railway Co., 70 Miss. VJ:., 1-' S.iulh. 825. In mi action by a passenger for forcible ejection from a strtn-t ear, evi- dence is adniissilile as to the continuance of the assault by the con- ductor, to show the injuries he then received, to throw light on the < haracter of the transaction, the amount of force used, and tlie spirit and method adopted by the conductor in his attempt to execute what he believed to be his duty. Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557. 6 Chicago, St. L. & T. R. Co. v. Bills. 104 Ind. V.\, 3 N. K. C,\\. 7 Arnold V. Railroad Co., 115 Pa. St. 1.'.5. S Atl. 213. In ejecting a trespasser from a train, the train hnii.ls shouhl use n>asonat»le and ..rdinary care not to injure him. II..uston & T. C. R. Co. v. Grigsby (Tex. Civ. App.) 35 S. W. S15. 8 Lake Erie & W. R. Co. v. Matthews, i:'. Ind. .\pp. 355. 41 N. E. .S42; Harlinger v. Railroad Co., 15 N. Y. Wkly. Dig. 3;.-j. alhrm,-.! fi2 N. Y. OGl; Law v. Railroad Co.. 32 Iowa, 5.34: State v. Kimi.-y. 34 Minn. 311, 25 X. W. 705; Te.xas & P. Ry. Co. v. Mother. 5 Tex. Civ. App. S7, 24 S. W. 71). Tlie faet that a l)ny is a trespasser does not warrant a railroad employ*' in kicking liini li-n. tlie train while In motion. Rounds v. Railn.nl C.., r,i N. Y. 1--... .Mtlinnii.g 3 Hun (N. Y I 329, 5 Thomp. & C. (N. Y.) 475. An ai N. V. Su| i-. HI. (s:n) § 835 CARRIERS OF PASSENGERS. (CIl. 24 that a passeiijier on a street car uses iiulecent or pro- fane langna«ie does not justify the condnctov in push- ing or throAvinjj; him from the car while in motion." So the emph)3'es on a street car have no ri<;ht to throw a bov stealing a ride from the car whih^ in motion, or to so violently assanlt or frighten him as to canse him to fall from the car, 10 § 335. SAME— RESISTANCE OF PASSENGER. As has heretofore been stated, a passenger right- fully on a train has a right to resist ejection.^ So a person, though wrongfully on a train, is justified in resisting an attempt to eject him while the train is in motion." But violence on the part of a passenger in resisting an expulsion rightfully attempted by the train hands increases the violence necessary and proper to be used on their part.^ The use of force is to be proportioned to the resistance to the removal by the trespasser. If a conductor is assaulted while ejecting a trespasser, 9 Chicago City Ky. Co. v. Pelletior, 1.34 111. 120. 24 X. E. 770; Id.. 3.3 111. App. 455. 10 Austeth V. Railway Co.. 145 N. Y. 210, 30 X. E. 708. affirming 9 Misc. Rep. 419, 30 X. Y. Supp. 107. J^ee, also. Lovett v. Railroad Co.. 9 Allen (Mass.) 557; Barre v. Railway, 155 I'a. St. 170, 20 Atl. 99. But removing a trespasser from a train of cars moving very slowly is not negligence or wantoiniess per se. Soutliern Kan. Ry. Co. v. Sanford, 45 Kan. 372, 25 Pac. 891. § 335. 1 See ante, § 326. 2 Sanford v. Railroad Co., 23 X. Y. 343, reveising 7 Bosw. (X. Y.) 12.'. 3 Coleman v. Railroad (_'o., 100 Mass. 100, 107; Lillis v. Railway Co., 64 Mo. 464; Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 60S. 17 Pac. 54. (832) Ch. 24) EJECTION. § ."JSG he may also assault his assailant. A tfmduridi- is not devested of the rijiht of self-defense 1>\ his <»t1ire. If in danjier, from his assailant, of death or uic-ai bodilv harm, he niav meet force with fnice. if a tun- diu-tor, while in disehai'<:,'e of his duly to thr rail- road company, is assanlted, so thai j»ei-stiiial injury is being done him, he mav strike until the daiiLirr is averted; and, when the injuries t(» the assaihini are the result of such self-defense bv the ceiuhKittr. ilie jury are not required to nicely weigh such injuries to the assailant, to see whether the punishment he re- ceived was too severe. AVhen one assaults a conductta- while in the performance of the duties of his dttiee, and in repulsing such force the conductor injures the assailant severely, the conductor, when his conduct is being considered by the jury, is not snltject to punishment for such injuries, unless greatly (lisjuo- portioned to the violence offered him, and unless the injuries w^ere inflicted wantonly or maliciously.* § 336. SAME— ORDERS AND THREATS. To enable a passenger to recover for wrongful ex- pulsion, it is not necessary that the condudor should have put his hands on him. A conductoi- may expel a passenger as effectually by oi-dering him olT as by pushing him off. He is a man of autluuity, and may 4 Moore v. Itailroad Co., 'AH S. (". 1, 16 S. E. 781. A co.iiplnliit whl. li allojres that piaintift' was ejected with such violeuee m.s 1(» l)e thrown to the ground cannot lie sustjiined on the tlicory that unneci-ssary force was used, since it may lie that Hit- n.i-cc \v:is rendered neci-snry by Ills own resi.stand for his p'ain sjeakin,' or peremptory manner." In Stone v. Railway Co., 47 Iowa. 82, it (S34) Ch. 24) EJECTION. § 33G A question sometimes arises as to the ii<:lit lo re- cover for injuries sustained in jiiniinn.i: frmii a imiv- inji' train or street car in (thcditMioe in ilic oidti- nf ilu* conductor or driver. It is ucnciall.v held iluii a rliild of tender Acars mav rccoNcr l«>r iniurirs thus sus- tained, since his obedii^nce is naturally to be ('XjxMtrd, without regard to the risk lie niiuhi iiitiii'. Sn. mi order by a conductor to a 1(» \<'ai- old 1mi\ to <:^^t'i oiT a moving train, accompanied wiih a sliou or d«Mii<>ii- stration of force sufficient to impress him wiili ihc belief that it Avill lie used, is eipiivalcnt to iIh- tin ployment of actual force; and the boy cannot. ;is iii;ii ter of law, 'be said to be guilty of contributory negli- gence in obeying the order.* The same principle is was held that a passoufror who has boon rifihtfnlly ojoctoil. witlioiii unnecessary force, for refusal to pay fare, cannot complain of insulting or (liiJcourteous treatment at the hands of the company's <"mplovett V. Railroad Co., Allen (Mass.) ."."7; Vickslnuy \- M. K. Co. V. Philhps, 04 Miss, ttfto. 2 South. oM: Sandfonl v. Railway Co.. 153 Pa. St. 300. 25 Atl. 8:^3: Biddlc v. Railway Co.. IIJ I'a. Si. .V.l. 4 Atl. 485; MeCahill v. Railway Co.. 5K; .MitealinK a lido, is iml a malorlal ('Icnifni In dot< rminiuK wlicilu'r or nctt lie was uuilly of contrlbiiioiy n('«lij,'ence in obeying the conductor's order lo h-avr llio iialii while In motion. r,entun v. Railroad Co., 55 Iowa. I'.n;, s N. W. .•i;;u. (s:{:,) oo ■J^ CARRIERS OF PASSENGERS. (Ch. 24 generally applied to adults. While a mere direction or command hj the agent of a railroad company re- quiring a trespasser to leave the train does not amount to force, yet, if the latter acts under fear of it, the effect on his mind is the same, and a recovery for in- jury sustained in obeying the order is not prevented- by the fact that no physical force was used.^ So, though a person is wrongfully on a train, the con- ductor has no right to compel him, at the point of a pistol, to jump from it while in motion.*' The supreme judicial court of Massachusetts has, however, recently come to a different conclusion. A trespasser stealing a ride was discovered by a brakeman, who was on 5 Southwestern R. v. Singleton, 07 Ga. 300. A person holding a ticket boarded a freight train not allowed to carry passengers, believ- ing the ticket to be good on that train. The conductor ordered him to get off the train while it was in moton. refused to stop the train to permit him to get off, and in violent and insulting language ftireat- ened to eject him by force if the order was not obeyed. Held, that such pei-son was not <-hargeable with contributory negligence in jump- ing from the train to avoid ejection by force. Boggess v. Railway Co.. 37 AV. Va. 297, 10 S. PI .52.">. The legal liability of the defendant is the same, whether plaintifE was pushed oft' by the conductor while the train was in motion, or got oft in obedience to the order of the conductor, who was not only able, but evidently determined, to en- force it. Brown v. Railroad Co.. 00 Mo. 58.S. A weak-minded tres- passer on a freight train, who jumps from the moving train on being told by a brakeman, who ordered him oft', that, if he did not obey, the brakeman would get a gun and shoot him. is justitied in acting on the threat, and may recover for injuries sustained, though there was no gun on the train. Houston & T. C. R. Co. v. tJrigsby (Tex. Civ. App.) 35 S. W. 815. c Gallena v. Railroad, 13 Fed. 110. But a passenger who refuses to pay fare, resists ejection, and threatens to kill the conductor, is not entitled to damages be( ause the conductor presented a pistol at him and spoke of him as a coward. Harrison v. Fiuk, 42 Fed. 787. (sao) Ch. 24) FJEJTiox. § 337 another car. The brakemaii ordered him (»ir, l.iu In* disobeyed the order. The bi-akemau rcpcatt'd it, threateuing to throw liiiii olT, at the same time rais- ing a cltib. He renioiisi I ;ih'il wiih ilic lnakcmaii, slai ing that tlie train was iiin\iii^ too fast, antives which determined his clioico to jump vnthcr than remain or go forward, that they mnsi he lakcii as contributing causes of the accident, aud therefore bar- red a recovery.^ § 337. SAME— PROVINCE OF COURT AND JURY. Generally, the question wiiethor (»i- not oxrrssivc force was used in i-cmoving a tr(^i)ass('r li-om a train is one of fact for the jury. This is in von w hci-.- blows are struck, })rovid('(l ihcy wen- n-iKh-rrd m-rrs sary by the passenger's resistance; and it is t iror to instruct that striking blows is illegal.' So, whcihci- 7 Plaiiz V. Railroad Co., 157 Mas.^. 377, li'2 S. K. .Tit;. § •AM. 1 Colciuan v. IJailioa.l r<>., km; Ma-^s. icn, n;i. Tli.' i\ws- turn whetiicr the cunduetnr iiro|i«'iiy disclinr^cil Ids dul.v In <'X|Mdllu>: a passenger, whose ticket did not i-niitle hiiu to ride .mi iIk- train. (8.-J7) § 3"j8 carriers of passengers. (Ch. 24 it is due and proper exercise of the right to eject for the conductor of a street car to attempt to remove a disorderly passenger while the car is in motion, is not a question of law for the court, but of fact for the jury, and should be determined by them upon all the evidence, including the rate of speed at which the car was moving.^ § 338. REFUNDING FARE. It has been held that on ejecting a person from a train, who has paid the whole or any part of his fare, the carrier must refund it, less the amount due for from the cars, between the track.s of a raih-oad. on a very dark night, at a way station, is for the jury. Everything depends on the facts and circumstances. Arnold v. Uailroad Co.. ll.j Pa. St. 1.35, 8 Atl. 213. Wliere a conductor stops his train to put a female passenger off for refusal to pay fare, and on her failure to get off he takes hold of her arm, asks her to come, and not delay the train, and lifts her down, the jury is warranted in finding the removal to be forcible, thotigh the conductor testifies that he merely assisted her to alight. Curtis V. Railroad Co., 87 Iowa, 622. 54 N. W. 339. 2 Murphy v. Railway Co., 118 Mass. 228. Whether or not a con- ductor is guilty of negligence in putting a person off a car just after the train has started from a depot, and while its motion is, scarcely perceptible, is a question of fact for the jury, and it is error for the court to charge that such act is negligence. Meyer v. Railroad Co.. 40 Mo. 151. A servant of a railroad, in the performance of his duty in removing a ti'espassing boy from a car, is bound to use ordinary care; and when he pulls the boy. clinging to the ladder of the car. from the train while in motion, and the boy falls under the car and is injured, the question of negligence is for the jury. Brill v. Eddy, 115 Mo. 596, 22 S. W. 488. The fact that a train was moving at the rate of 20 miles an hour when a passenger was removed from one car to another does not, as matter of law, render the removal unreasonable or wrongful, but the question is one of fact for the jury. Marquette V. Railroad Co., 33 Iowa, 562. (838) <^ii- 24) EJECTION. § aas the ilistance traveled to \hv i»lar<' of (•j»Mii..ii.' Tlnis, Mliere a ooiulnctor ejects an adult haviiii: in « liaiiii- a child, for refusal to ])a.v the child's f;irf. it is his duty, before the ejection, lo return or <»n« r to r.nnii to such person the value of the nnustnl poriion of the ticket.- It has even been held that the repavim-ut of fare is a condition prectMlcut to the ri«::ht to cxprj, and a return of the money iunuediately after tin- rx- pulsion will not relieve the carrier from liability.'' lUit it has been held that by refusiuas senger forfeits his right to ride on t lie train; and Ihiicc. on his ejection, the conductor is not bound to rrfumi to him the value of the ticket from the jtlacc of .jcc tion to destination.* So it has been liehl tluit, even if a conductor has no right t(» take up a iionifans- ferrable ticket when presented by one not the orig iual purchaser, yet the ludder has no tight to demand a return of the ticket as a condition precedent to his paying fare. It was the li(»hlei's duly to leave the train or pay his fare, and then pursue his remedy against the carrier for wrongfully wit lihohling the ticket." The California Code" provides that, after haviiii: § ;;:iS. i Tlmrstou V. Kailroiul ("<.., t IMll. :;_'l. I'.-.l. r:i>. No. U. Oil); Wanlw.'ll v. Kailniiid ("o.. AC .Minn. .".14. I'.» .\. W. jot;; ||..ir 1 aucr V. Itailroad ( "o.. .VJ Iowa. ."U-J. :; .\. W. IJl: l5:iiiiiiiorf. I'. \ C. K. Co. V. .McUoiiald. OS Ind. ^^^*^>. - I al«' Shore A: ^I. S. My. Co. v. Ormloiir HHiioi !.'> .\. i:. 117. •■i \.an1%v«-il V. Kailway Co.. tc .Minn, .".H. I'.t N. W. J'MI. * (■;•<»«< tiy V. Itailway Co. duwai H.' .\. W. .->:;■_'. r. ]:.• hilly v. Itailway Co. (.Minn.t <;.s N. \V. s.".;!. *i C.v. Code Cai. § 21M0: C(.ni|i. Laws ]i:dc. ISsT. j ;;s;i7. (.S31)) § 339 CARRIERS OF PASSENGERS. (Ch. 21 ejected a passenger, a carrier has no rioht to reqnire the payment of any part of his fare. It has accord- ingly been held that, before a conductor can expel a passenger for refusal to pay full fare, he must return the fare which he has actually received." But where a passenger, after riding some distance in a chair car without paying the extra fare required by the com- pany's rules, leaves the train, and discontinues his trip, rather than continue on his journey in another car, the fact that his ticket was not returned to him does not entitle him to damages as for an ejection, but his claim must be for a return of the ticket money.® § 339. DUTY OF EJECTED PASSENGER. A passenger who is wrongfully put off a train by a conductor is not bound to wait for the next train at the station where she was put off, and it is not negli- gence for her to undertake to walk back to the station whence she started.' But it is the duty of a passen- ger who is wrongfully ejected from a train, and placed upon the track, to leave the track at the earliest prac- ticable opportunity that a reasonably prudent man would discover and seize upon; and the burden of proof that he did so is upon hini.- T Blaiifl V. Railroad Co., 65 Cal. f)2(). 4 Pac. 072; Id., 55 Cal. 570. s Wright V. Railroad Co.. 78 Cal. 301, 20 Pac. 740. § 830. 1 Malone v. Railrcad Co., 152 Pa. St. 3D0, 25 Atl. 638. See, also. ante. § 120. ^ Ham V. Canal Co., l.>j Pa. St. 548, 20 Atl. 757; s. c. 142 Pa. St. 017, 21 Atl. 1012. In this case a passenger was wrongfully ejected from a train in an api arcnt wilderness,, and where the only possible way out seemed to be along the railioad track. He was ignorant oi: (840) Cli. 24) eji£ct:o.\. § 330 the suirouiulius: onur.tr.v. .t.uI. kmnving of no openiiijr by which he eoukl pot off the trark. and upon the travoh'il road, he took the trnok upou which he would face approaching trains. He followed it until he came to a liridsre. and in crossing ilic hritlu'c he was struck by a loijniotive and killed. The evidence as to tlie distance he walketl va- ried, but the lowest estimate placed it at about half a mile. There was evidence on behalf of defendants that there was a travfled road whi( h could easily be seen from the point where deceased was put off The Train. Held. That the case was for the jury, and their verdict in plaiuTift's favor would not be disturbed. (S41) END OF VOL. 1 LAW LIBRARY UNIVERSTTY ^F r AT T^^-. AA 000 732 57J