I
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 ■*S?!^*V''*'
 
 NEGLIGENCE 
 
 OF 
 
 IMPOSED DUTIES. 
 
 CAMIERS OF PASSEIGEES 
 
 BY 
 
 OHAELES A. EAY, LL.D. 
 
 EX-JUSTICE OF 
 SUPREME COURT OF INDIAN4.. 
 
 (AuTuoii OF Negligence oe Imposed Duties, Personal, and Contractual 
 
 Limitations. ) 
 
 ROCHESTEE, X. Y. 
 The Lawyers' Co-Opeeative Publishing Company. 
 
 1893.
 
 r 
 
 Entered according to Act of Congress, in the year eighteen hundred and ninetF- three, \,y 
 
 THE LAWYERS* CO-OPEKATIVE PUBLISHING CO., 
 
 In the OflQce ol the Librarian of Congress, at Waahington, D. C. 
 
 v.. n. ANIIKKWK, I'KINTKIC, H()<;il l-XTKU, N. Y.
 
 2: 
 
 PREFACE. 
 
 "^ The clntios imposed upon the carrier of passengers, involve ques- 
 
 tions of negligence alone, while common carriers of things are re- 
 sponsible, under their common law liability, for their loss or injury, 
 without })roof of want of care. Negligence of these imposed duties 
 by the carrier of passengers is therefore properly considered as a 
 branch of tlie law, distinct from that involving the responsibility 
 of common carriers of things. 
 
 The law of negligence as taught in the books is practically applied 
 in the cases constantly presented in the courts, and abstract rules 
 find illustration, which, as they multiply, solidify into law itself. 
 Whether the result be recognized or not, the law is gradually stamp- 
 ing certain acts or omissions of the carrier as negligent per se, and 
 it is equally emphatic in declaring that the passenger must observe 
 certain in-ecautions to avoid the charge of negligence contributing 
 to any injury he may receive. However worthy of commendation 
 may be the effort of writers of law books to conform the law to their 
 philosophical reasoning, the profession will accept the decisions of 
 the courts only as the final test, and so far as these harmonize, the 
 law is settled. 
 
 In the following pages, the attempt is made to state, not only the 
 law of passenger carriers, and the principles by which negligence, 
 of imposed duties involving liability, is determined; but, also, what 
 in fact constitutes Negligence of the Imposed Duties of the Pas- 
 senger Carrier, as decided by the courts, with the reasons on which 
 the decision is grounded. If a question is suggested as to the legal 
 accuracy of the result reached in any case, this is done witli full 
 consciousness that the decision stands, despite the criticism, until 
 overruled or questioned in the courts. If the doubt suggested 
 induce judicial review and the true application of legal principle 
 result, the purpose of the writer is fully accomplished. The effort 
 is to add something to the library of the working lawyer w liich shall 
 lessen his labor and promote his rightful success. 
 
 CHARLES A. RAY. 
 
 Law Offices of Dudley, Michener & Ray, 
 
 40 Wall St., New York. October 12th, 1892. 
 
 735836
 
 TABLE OF CONTENTS. 
 
 CHAPTER I.— 1-20. 
 
 ' RELATION OF CARRIER AND PASSENGP^K. HOW CREATED. 
 
 Sec. 1. Who are Public Carriers of Passengers. 
 Sec. 2. Who are Passengers. 
 
 a. Term not Restricted to Those Contracting. 
 
 b. Includes Everyone, not an Employe, in the Carrier's Charge. 
 
 c. Mail Agent is a Passenger. 
 
 d. An Express Messenger is Entitled to Protection. 
 
 e. Circumstances Constituting and Suspending Relation of Pas- 
 
 se:nger. 
 
 1. What Contract Contemplated. 
 
 2. Entering a Car by Permission or as Intruder. 
 
 f. When Children are Passengers. 
 
 Sec. 3. Duty of Passenger Carrier not Necessarily in Contract, but Collateral 
 
 CHAPTER II.— 21-29. 
 
 LAW OF THE STAGE COACH. 
 
 Sec. 4. Duty of Stage Coach Proprietor. 
 
 a. Origin of the Railway Car. 
 
 b. Responsibility for Safe Coach, Horses and Driver. 
 
 c. Liability of Carrier of Goods and of Passenger Compared. 
 Sec. 5. Presumption of Negligence from Injury to Passenger. 
 
 a. Rebutting Presumption of Neglect of Duty. 
 Sec. C. Duty to Provide Safe Coach is not Absolute. 
 
 CHAPTER III.— 30-46. 
 
 STREET CARS. 
 
 Sec. 7. Care Over Condition of Track and Street Cars. 
 
 Sec. 8. Operation and Management. 
 
 Sec. 9. Duty of Driver and Condu 'tor. 
 
 Sec. 10. Vigilance Required Proportioned to Danger. 
 
 Sec. 11. Duty to Keep " Exit" and " Entrance ' of Car Clear and Secure. 
 
 Sec. 12. Contributory Negligence of Passenger. 
 
 a. Attempting to Enter Car. 
 
 b. Position on Car. 
 
 0. Alighting from Car. 
 
 CHAPTER IV.— 47 riO. 
 
 STEAM RAILROAD -OPERATIVE MACHINERY AND CARRIAGES. 
 
 Sec. 13. Rule of Diligence Applied to Carriers of Passengers by Steam. 
 Sec. 14. Security of Road bed, Machinery and Cars.
 
 vi TABLE OF CONTENTS. 
 
 Sec. 15. Latent Defects— Utmost Skill and Care. 
 
 Sec. 16. Responsibility for Negligence of Manufacturer. 
 
 Sec. 17. Reputation of Manufacturer no Defense to Carrier — Tests Required. 
 
 Sec. 18. Rule as to Adoption of New Improvements for Safely of Passengers. 
 
 Sec. 19. Inspection of Operative Machinery, Appliances and Track. 
 
 CHAPTER v.— 6T-ST. 
 
 DANGERS, ACCIDENTS AND PRECAUTIONS. 
 
 Sec. 20. Carrier must Anticipate Storms and their Consequences. 
 
 Sec. 21. Is not an Insurer, nor Responsible for Accidents. 
 
 Sec. 22. What are Properly Called Accidents. 
 
 Sec. 23. Duty to Investigate to Determine the Cause of Accidents. 
 
 Sec. 24. Care in Selection of Operative Employe— Human Fallibility. 
 
 Sec. 25. Instances of Accidents from Human Fallibility. 
 
 Sec. 26. Theory as to Loss of Power of Observation. 
 
 Sec. 27. Precautions against Human Fallibility — Automatic Signals— Block 
 
 System. 
 Sec. 28. Tests Applied to Metal. 
 
 Sec. 29. Truss Bridges Replaced by Girders — Vestibuling Trains. 
 Sec. 30. Danger in Hauling Cars from other Roads — Speed. 
 
 CHAPTER YL— 88-112. 
 
 DEPOTS. STATIONS AND WHARVES. 
 
 Sec. 31. Location of Depots and Stations. 
 
 Sec. 32. Duty of Carrier to Provide Suitable and Safe Accommodations at 
 
 Stations. 
 Sec. 33. Degree of Care over Depots, Stations and Platforms. 
 Sec. 34. Duty of Carrier with Regard to Depots, Stations and Platforms. 
 Sec. 35. Care over Depots, Grounds, Approaches, and Exits. 
 Sec. 36. Removal of Ice and Snow from Station and Car Platforms. 
 Sec. 37. Care over Wharves and Approaches to Vessels. 
 Sec. 38. Liability to Stranger for Defective Station Platform. 
 
 CH APTER VIT. —1 1 3-;37. 
 
 CONTROL AND CARE OF DEPOTS AND GROUNDS. 
 
 Sec. 39, Regulations for Admission and E.xclusion from Depot Grounds. 
 Sec. 40. Carrier Cannot E.vclude Employe of Passenger. 
 See. 41. Exclusion of other Carriers. 
 
 Sec. 42. Approaches Provided upon the Premises of others. 
 Sec. 43. Who are Entitled to Protection in U.se of Waiting Rooms, Plat- 
 forms, etc. 
 Sec. 44. Depots and Stations must be Lighted and Warmed. 
 Sec. 45. Protecting Passengers Between Depots or Stations and Cars. 
 Sec. 46. Exposing Passengers to Danger from Passing Trains. 
 
 CHAPTER VIII.— 138-158. 
 
 DUTY OF CAKHIKH AT STATION. 
 
 Sec. 47. Announcement of Stations. 
 Sec. 48. Duty to Stop at Stations.
 
 TABLE OF COJSTKNIS. VU 
 
 Sec. 49. Train must be Stopped at a Proper and Safe Place. 
 
 Sec. 50. Train must Stop at Station a Reasonable Time. 
 
 Sec. 51. Must Provide Safe and Clear Pa.ssage from Train to Eating Station. 
 
 CHAPTER IX.— 159-180. 
 
 ACCEPTANCE AND REFUSAL OF PASSENGERS. 
 
 Sec. 52. Duty as to Acceptance of all Passengers. 
 
 Sec. 53. Right and Duty to Remove Passengers. 
 
 Sec. 54. Regulations Regarding Transportation of Passengers. 
 
 Sec. 55. Removal of Passenger; Power of Conductor, and Duty of Passenger. 
 
 Sec. 56. Removal of Passenger Destined for a Station at which Cars do not Stop. 
 
 CHAPTER X.— 181-2U. 
 
 TICKETS, SALE AND PRODUCTION OF— CONCLUSIVENESS— 
 REMOVAL OF PASSENGER. 
 
 Sec. 57. Opportunity Must be Given for Purchase of Tickets. 
 
 Sec. 58. Refusal to Exhibit Ticket or Pay Fare. 
 
 Sec. 59. Refusal to Pay or Exhibit Ticket. 
 
 Sec. 60. Conclusiveness of Ticket as to Rights of Passenger. 
 
 Sec. 61. Denial of such Conclasiveness in Cas3 of Error through Carrier'.s 
 
 Negligence. 
 Sec. 63. Point where Passenger may be Removed from Train. 
 Sec. 63. Removal while Cars are in Motion. 
 
 CHAPTER XL— 215-226. 
 
 PROTECTION OF AND CARE OVER PASSENGER, 
 
 Sec. 64. Passenger Carriers are not Insurers. 
 
 Sec. 65. Care over the Personal Safety of Passengers — Ordinary Perils. 
 
 Sec. 66. Perils not Incident to Ordinary Modes of Travel. 
 
 Sec. 67. Duty to Passengers Suffering from Physical Disability. 
 
 CHAPTER XII.— 227-246. 
 
 DUTY TO PROVIDE CARS— RESPONSIBILITY. 
 
 Sec. 68. Must Provide Cars and Run on Schedule Time. 
 
 Sec. 69. Statutes to Secure Safety of Passengers must be Complied with. 
 
 Sec. 70. Must Provide Seats for Passengers. 
 
 Sec. 71. No Discrimination must be Shown. 
 
 Sec. 72. Drawing Room and Sleeping Car, Security of. 
 
 Sec. 73. Sale of Berth or Seats in Sleeping or Parlor Car, and Regulations 
 
 Therein. 
 Sec. 74. Liability for Passengers' Loss of Property in Sleeping or Palace Car. 
 
 CHAPTER XIII.— 247-261. 
 TRANSPORTATION UPON OTHER THAN PASSENGER TRAINS. 
 
 Sec. 75. Carrying Passengers upon Freight, Mixed or Construction Trains. 
 Sec. 76. Traveling on Freight Train or Baggage Car with Knowledge of 
 
 Conductor.
 
 viii TABLE OF COJSTKNTS^ 
 
 Sec. 77. Removal of Traveler from Freight Train. 
 Sec. 78. Stopping Freight Train at Stations. 
 
 CHAPTER Xiy.— 262-282. 
 
 CONTRACT RELEASING LIABILITY— FREE TRANSPORTATION- 
 REDUCED FARE. 
 
 Sec. 79. Contract Exempting from Liability for Negligence. 
 
 Sec. 80. Limitation of Liability by Contract. 
 
 Sec. 81. Liability to One Holding Drover's Pass. 
 
 Sec. 82. Invalidity of Stipulations on Drover's Pass to Release Liability. 
 
 Sec. 83. Free Transportation on Condition of Exemption from Liability for 
 
 Negligence, 
 
 Sec. 81. Free Transportation will not Sustain Contract Excusing Negligence. 
 
 CHAPTER XV.— 283-295. 
 
 VESSEL CARRYING PASSENGERS— LIMITED LIABILITY. 
 
 S3C. 85. Duty of Master of Vessel to Accept and Care for Passengers. 
 
 Sec. 86. Responsibility for Errors of Ship's Physician. 
 
 Sec. 87. Statutory Duty to Provide Qualified Physician. 
 
 Sec. 88. Seaworthiness of Vessel and Competency of Officers — Statute Limiting 
 
 Liability. 
 Sec. 89. Quarantine — Injury for Negligence. 
 
 CHAPTER XVI.-296-307. 
 
 STATUTORY REGULATION OF STEAM VESSELS-PENALTIES. 
 
 Sec. 90. Regulation of Steara Vessels. 
 
 Sec. 91. Protection of Passengers by Limiting their Number. 
 Sec. 92. Examination of Applicants for License as Ship Officer. 
 Sec. 9.3. Action for Penalty for Carrying Excess of Passengers 
 Sec. 94. Proceedings in rem for Penalty for Excess of Passengers. 
 Sec. 95. Prohibition of Dangerous Articles on Passenger Vessels. 
 
 CHAPTER XVIL— 308-326. 
 
 PASSENGER ELEVATORS. 
 
 Sec. 96. Proprietor as a Carrier of Passengers, and his Responsibility. 
 
 Sec. 97. Proprietor's Responsibility for Defects in Construction. 
 
 Sec. 98. liesponsibility for Manufacturer's Negligence. 
 
 Sec. 99. Duty of Proprietor of Passenger Elevator to Inspect its Condition. 
 
 Sec. 100. ]*roprietor Liable only for Neglect of Imposed Duty to Person 
 
 Injured. 
 
 Sec. 101. Presumption of Negligence in Case of Injury from Elevator, 
 
 Sec. 102. Contributory Negligence — Comparative Negligence. 
 
 Sec. 103. Statutes Regulating the Use of Elevators. 
 
 CHAPTER XVm.— :',27 349. 
 LIABILITY FO|{ NECJLIGENCE OR VIOLENCE OF SERVANTS. 
 Sec. 104. Liability for Conductor, Engineer, Brakemau, etc.
 
 TABLE OF COJ>iTEJNTS. IX 
 
 Sec. 105. When Liable for Acts of Violence of Employe, Former Rule. 
 Sec. 106. Modern Rule of Liability for Wanton Violence of Employes. 
 Sec. 107. Passengers Entitled to Protection against Rudeness. 
 Sec. 108. Liability of Carrier as Master, what must Appear. 
 
 CHAPTER XIX.— 350^374. 
 
 PROTECTION OF PASSENGER FROM EMPLOYES AND FELLOW 
 
 PASSENGERS. 
 
 Sec. 109. Liability of Carrier for False Arrest by Employe. 
 
 Sec. 110. False Arrest where Employe is a Conservator of the Peace. 
 
 Sec. 111. Carrier must Protect Pa.ssengers from Insult. 
 
 Sec. 118. Liable only to Passenger for Act of Employe. 
 
 Sec. 113. Termination of Relation by Act of Passenger or Carrier. 
 
 Sec. 114. If Passenger Provokes Assault, tUe Carrier is not Liable. 
 
 CHAPTER XX.— 375-412. 
 CONTRIBUTORY NEGLIGENCE. 
 
 Sec. 115. Disobeying Regulations. 
 
 Sec. 116. When will Preclude Recovery. 
 
 Sec. 117. At Stations or Approaching or Leaving Them. 
 
 Sec. 118. About Station Platforms and Steamer Landings. 
 
 Sec. 119. In Entering Train in Motion. 
 
 Sec. 120. Passing between Cars in Motion. 
 
 Sec. 121. Position of Passenger in Car. 
 
 Sec. 122. Exposing the Person without the Car. 
 
 Sec. 123. Traveling on other than Passenger Cars. 
 
 Sec. 124. On Platform of Car. 
 
 Sec. 125. Injury about Passenger Elevators. 
 
 CHAPTER XXL— 413-431. 
 
 PERIL THROUGH NEGLIGENCE OF CARRIER. 
 
 Sec. 126. Instinctive Eflfort to Escape Peril not Contributory Negligence. 
 Sec. 127. Carrier's Negligence will Excuse Otherwise Rash Act. 
 Sec. 128. Negligence of Another Carrier Causing Injury. 
 Sec. 129. Fault of the Carrier must Occasion the Danger. 
 
 CHAPTER XXII.— 432-482. 
 
 STATE CONTROL OVER CARRIERS. 
 
 Sec. 130. Not Entirely Surrendered by Grant of Charter. 
 Sec. 131. How far the Slate may Regulate Subjects of Commerce. 
 Sec. 132. National Control over Charges by Carrier. 
 Sec. 133. State and National Control over "Agencies of Commerce. 
 Sec. 134. Common Carriers and Persons Controlling Grain Elevator.'; Occupy 
 Analogous Positions.
 
 X TAliI.E OF 0O^TK^TS. 
 
 CHAPTEE XXIII.— 483-504. 
 
 COMMERCE, STATE AND INTERSTATE. 
 
 Sec. 135. State Commissions to Regulate Charges. 
 Sec. 136. Interstate Commerce Commission. 
 Sec. 137. Interstate Commerce Act Construed. 
 Sec. 138. Ticket Brokerage. 
 Sec. 139. Rates must be Reasonable. 
 
 CHAPTER XXIY.— 505-513. 
 
 TICKETS. 
 Sec. 140. Free Tickets. 
 Sec. 141. Party Rates. 
 Sec. 142. Commutation Rates and Tickets. 
 Sec, 143. Mileage Tickets. 
 Sec. 144. Excursion Tickets. 
 
 CHAPTER XXY.— 514-530. 
 CONDITIONAL TICKETS. 
 
 Sec. 14.5. Condition and Limitation on Ticket. 
 
 Sec. 146 Limit of Time in Ticket. 
 
 Sec. 147. Round Trip Ticket. 
 
 Sec. 148. Tlirough Tickets over Connecting Roads. 
 
 CHAPTER XXVL— 531-550. 
 SUNDAY TRAFFIC AND TRAFFIC OVER OTHER ROADS. 
 
 Sec. 149. Traveling on Sunday. 
 
 Sec. 150. Operating Over Line of Another Carrier. 
 
 Sec. 151. Liability of Le.^see of Railroad. 
 
 Sec. 152. Joint Use of Road by Carriers. 
 
 CHAPTER XXVII.— 551-592. 
 
 CARRIER'S RESPONSIBILITY FOR BAGGAGE. 
 
 Carriers Liability for Loss of Baggage. 
 
 Act of God as Releasing Carrier. 
 
 There must be a Delivery of Baggage to the Carrier. 
 
 a. What Comes Within the Term "Passenger's Baggage." 
 Regulations Restricting Liability for Baggage. 
 Termination of Liability. 
 Liability of Connecting Carri(>rs. 
 Lif;n on Baggage for Charges. 
 Action for Loss of Baggage. 
 
 CHAPTER XX Vlir. -59:1 no.3. 
 
 RECEIVERS ACTING AS CARRIERS. 
 
 8f'f. 161. Liability of Receivers— Distinction between Statutory Actions for 
 Druth and ("ommnn Law Actions for Negligence. 
 
 Sec. 
 
 153. 
 
 Sec. 
 
 154. 
 
 Sec. 
 
 155. 
 
 Sec. 
 
 156. 
 
 Sec. 
 
 157. 
 
 Sec. 
 
 158. 
 
 Sec. 
 
 159. 
 
 Sec. 
 
 ICU.
 
 TABLE OF CONTENTS. Xi 
 
 Sec. 162. Liability of Receiver for Personal Injuries or Death. 
 
 Sec. 163. Apparent Conflict of Authorities as to Liability of Receivers. 
 
 Sec. 164. Personal Liability of Receivers. 
 
 Sec. 165. Permission to Sue Receiver — Liability under Foreign Statute. 
 
 CHAPTER XXIX.— 604-626. 
 
 ACTIONS AGAINST CARRIERS. 
 
 Sec. 166. Right of and Form of Action and Recovery. 
 
 Sec 167. Abatement of Suit by Death of Party Injured— Federal and Stale 
 
 Courts. 
 Sec. 168. Action for Death Caused by Defendant's Negligence. 
 Sec. 169. Criminal Action for Negligence Causing Death. 
 Sec. 170. State Statutes Regarding Actions for Death Caused by Another's 
 
 Negligence, 
 
 CHAPTER XXX.— 627-634. 
 
 ACTIONS AGAINST CARRIERS— Continued. 
 
 Sec. 171. Statutory Provisions on Negligence Causing Death. 
 
 Sec. 172. Limitations of Actions for Death by Negligence. 
 
 Sec. 173. Venue of Action. 
 
 Sec. 174. When Repeal does not Affect Pending Actions. 
 
 Sec. 175. Form of A.ction Determines Measure of Relief. 
 
 Sec. 176. Evidence of Authority to Bring the Statutory Action. 
 
 CHAPTER XXXI.— 635-662. 
 
 ACTIONS AGAINST CARRIERS— Continued. 
 
 Sec. 177. Proper Plaintiff in Action for Damages for Death. 
 Sec. 178. Action out of Jurisdiction where Injury Occurred. 
 Sec. 179. Who may Bring the Action in Foreign Jurisdiction. 
 Sec. 180. Rule of Damages in Actions for Death from Negligence. 
 Sec. 181. Statutes Regulating Damages for Death from Negligence. 
 Sec. 182. Statutory Provisions for Distribution of Recovery for Death from 
 Negligence. 
 
 CHAPTER XXXII.— 663-676. 
 
 NEGLIGENCE, CONTRIBUTORY AS PROXIMATE CAUSE. 
 
 Sec. 183. Degrees of Negligence. 
 
 a. Negligence Defined — Slight Negligence. 
 
 b. Ordinary Negligence. 
 
 c. Gross Negligence. 
 
 Sec. 184. Contributory Negligence as Proximate Cause. 
 
 Sec. 185. Rule of Contributory Negligence in Admiralty Jurisdiction.
 
 XU TABLE OF COXTEKTS. 
 
 CHAPTER XXXIII.— 677-689. 
 
 EVIDENCE IN ACTION FOR DEATH BY NEGLIGENCE OF AN 
 
 OTHER. 
 
 Sec. 186. Presumption of Due Care by One Found Killed by Alleged Negli- 
 gence of Another. 
 
 a. Presumption of Care. 
 
 b. Application of Presumption when Admitted by Court. 
 
 c. Weight of Presumption in some Courts. 
 
 d. Overcoming such a Presumption. 
 
 e. Presumption of Negligence in other Tribunals. 
 
 f. Where no Presumption is Allowed. 
 Sec. 187. When Burden is on Plaintiff. 
 
 a. Method of Sustaining Burden. 
 
 b. P"'ailure of Suit under this Rule. 
 
 c. Application of Rule. 
 
 d. How far a Jury may Draw Inferences of Due Care. 
 
 e. Special Circumstances which Relieve from Care. 
 
 f. Circumstances Showing Negligence. 
 
 CHAPTER XXXI \^.— 690-703. 
 
 EVIDENCE IN ACTION FOR INJURY BY CARRIER. 
 
 Sec. 188. Presumption of Carrier's Negligence from Injury. 
 
 a. Injuries Arising from Movement of Carriage. 
 
 b. Collision with Objects on Side of Carriage. 
 
 c. Explosion. 
 
 d. Falling Objects. 
 
 e. At Stations — Embarking and Alighting. 
 
 CHAPTER XXXY.— 704-727. 
 
 EXPERIMENTAL AND OPINION EVIDENCE— OTHER TIMES AND 
 
 PLACES. 
 
 Sec. 189. Experimental Evidence. 
 
 a. Experiments Outside the Court Room. 
 
 b. Experiments in the Court Room. 
 
 Sec. 190. Authority of the Court to Order Physical Examination. 
 
 a. Power to Order Examination Before Trial. 
 
 b. Power to Order Examination at the Trial. 
 
 <•. Application of the Rule of Physical Examination. 
 
 d. Manner of Enforcing the Power. 
 Sec. 191. Opinion Evidence. 
 
 Sec. 192. Evidence of Defect at other Places or Times. 
 Sec. 19;i Changes made by Carrier after Accident. 
 
 CUAl'TER XXX\a— 728-744. 
 
 NEGLIGENCE TOWARDS CHILDREN— IMPUTED NEGLIGENCE. 
 
 Sec. 194. Evidence of Carrier's Negligence towards Children. 
 Sec. 195. When NegJiaence of Another will be Imputed to the Passenger, 
 a. Recovery Denied in an Action for the Benefit of the Child. 
 Sec. 196. By Parent or MaHtcr for his Own Benefit.
 
 TABJ>E OK CONTENTS. XUl 
 
 Sec. 197. Where the Action is for the Benefit of the Child. 
 
 Sec. 198. What is Negligence of the Parent or Guardian. 
 
 Sec. 199. Recovery by Wife in Case of Husband's Negligence. 
 
 Sec. 200. Recovery where Wife Sues. 
 
 Sec. 201. Action by Husband and Children. 
 
 Sec. 202. Negligence of Driver not Imputed to Guest or Passenger. 
 
 Sec. 203. Where Each of Two Carriers is Negligent, or where One only is. 
 
 CHAPTER XXX711.— T45-762. 
 
 DAMAGES EXCESSIVE— AGGRAVATION OP HURT OR DISEASE. 
 
 Sec. 204. Damage for Loss of Baggage. 
 
 Sec. 205. Negligence of Carrier Aggravating Hurt or Disease. 
 Sec. 206. Verdicts in Suits for Dsniages for Personal Injuries. 
 Sec. 207. Verdicts Held Excessive. 
 
 APPENDIX— 763. 
 QUARANTINE— OPINION OF SOLICITOR GENERAL.
 
 TABLE OF CASES. 
 
 A. 
 
 A, W. Thompson, The, 39 Fed. 
 
 Rep. 115 611 
 
 Abbott v. Bradstreet, 55 Me. 530. 
 
 557, 559 
 
 Abend v. Terre Haute & I. R. Co. 
 
 Ill 111.202 410 
 
 Abraham v. Plestoro, 3 Wend. 538 644 
 Abrahams v. Vollbaura, 54 Tex. 
 
 227- 641 
 
 Abram v. Gulf, C. & S. F. R. Co. 
 
 (Tex.) 11 Ry. & Corp. 
 
 L. J. 158 512 
 
 Achtenhagen v. Watertown, 18 
 
 Wis. 331, 86 Am. Dec. 
 
 769 680 
 
 Ackerson v. Erie R. Co. 31 N. J. 
 
 L. 309 632, 652 
 
 Adams v. Hannibal & St. J. R. Co. 
 
 74 Mo. 553, 41 Am. Rep. 
 
 333 418, 422 
 
 V. Lancashire & Y. R. Co. 
 
 L. R. 4C. P. 744 415 
 
 V. Missouri Pac. R. Co. 100 
 
 Mo. 555, Rev'd in 100 
 
 Mo. 570 148 
 
 Adams Exp. Co. v. Board of Po- 
 lice, 65 How. Pr. 72... 542 
 V. Fendrick, 38 Ind. 150... 268 
 
 V. Guthrie, 9 Bush, 78 517 
 
 V. Haynes, 42 111. 89 
 
 266, 267, 516 
 
 v. Holmes (Pa.) 8 Cent. Rep. 
 
 155 267 
 
 V. Schlessinger, 75 Pa. 246. 591 
 V. Stettaners, 61 111. 184.268, 515 
 Adkins n. Atlanta & C. A. L. R. 
 
 Co. 27 S. C. 71 669 
 
 Aetna Ins. Co. v. Boon, 95 U. S. 
 
 117, 24L. ed. 395 672 
 
 Ahlbeck «. St. Paul, M. & M. R. 
 
 Co. 39 Minn. 424 547 
 
 Aikin v. Frankford & 8. P. C. P. 
 
 R. Co. 142 Pa. 47 402 
 
 V. Westcott, 123 N. Y. 363. 585 
 Ainley d. Manhattan R. Co. 47 
 
 Hun, 206 95,97, 107 
 
 Akers v. Akers, 16 Lea, 7-.. 616 
 
 Akersloot v. Second Ave. R. Co. 
 
 40 N. Y. S. R. 231 .... 766 
 Alabama, The. 92 U. S. 695, 23 L. 
 
 ed. 763 675 
 
 Alabama v. Agee, 2 Inters. Com. 
 
 Rep. 21 444 
 
 Alabama & V. R. Co. v. Stacey. 68 
 
 Miss. 463.. 91 
 
 Alabama G. S. R. Co. v. Arnold, 
 
 80 Ala. 600 126, 127 
 
 V. Carmichael, 9 L. R. A. 
 
 388. 90 Ala. 19.145. 195. 376 
 
 V Frazier, 93 Ala. 45 342 
 
 t. Hawk, 72 Ala. 112 
 
 375, 409, 411 
 
 v. Heddleslon, 82 Ala. 218. 
 
 144, 179. 329 
 
 «. Hill, 9 L. R. A. 442. 90 
 
 Ala. 71 ....708, 720 
 
 V. Hill, 93 Ala. 514, 47 Am. & 
 
 Eng. R. Cas. 500.. 216, 695 
 V. Sellers (Ala.) 10 Ry. & 
 
 Corp. L.J. 224 259 
 
 V. Wilkinson, 77 Ga. 75 147 
 
 V. Yarbrough, 83 Ala. 238.. 354 
 Albert v. Sweet, 116 N. Y. 863... 
 
 144,251 
 
 Albert! «. New York, L. E. & W. 
 
 R. Co. 43 Hun, 421 
 
 696, 753 
 
 Albertson v. Keokuk & D. M. R. 
 
 Co. 48 Iowa, 292 738 
 
 Alden v. New York C. R. Co. 26 
 
 N. Y. 102 66, 74 
 
 Alexander v. Big Rapids, 70 Mich, 
 
 224 632 
 
 «. Greene, 3 Hill. 9 2 
 
 V. Rochester C. «& B. R Co. 
 
 38 N, Y. S. R. 254. 
 
 Rev'g 35 N. Y. 8. R. 701 87 
 
 V. Toronto & N. R. Co. 33 
 
 U. C. Q. B. 453.474... 
 
 -...269, 278 
 
 Alexandria & F. R. Co. v. Hem- 
 don, 87 Va. 193 
 
 97.126. 127, 154 
 
 Allaback v. Ult, 51 N. Y. 651.... 608 
 Allen V. Maine Cent. R. Co. 82 M& 
 
 111 CW 
 
 XV
 
 XVI 
 
 TABLE OF CASES. 
 
 Allen t. Sewall. 2 Wend. 327, 6 
 
 Wend. 335, 341 552 
 
 V. State SS. Co. 15 L. R. A. 
 
 166, 132 N.Y. 91 
 
 285. 287, 291 
 
 V. Union Pac. R. Co. (Utah) 
 
 April 2, 1891 691 
 
 V. Willard, 57 Pa. 374.. 680. 691 
 Allender ti. Chicago, R. I. & P. R. 
 
 Co. 37 Iowa, 264, 43 
 
 Iowa, 276.. 5, 6, 10, 129, 260 
 Allerton t. Boston & M. R, Co. 146 
 
 Mass. 241 11 
 
 Alleys. Caspari, 80 Me.' 234. "I" 652 
 Ailing V. Boston & A. R. Co. 126 
 
 Mass. 121, 30 Am. Rep. 
 
 667 ...565, 567-569 
 
 Allison V. Chicago & IS". W. R. Co. 
 
 42 Iowa, 274 ..746, 747 
 
 Allnutt v. Inglis, 12 East, 527 231 
 
 Alton V. :Midland R. Co. 34 L. .T. 
 
 N. S. C. P. 292 20, 607 
 
 Amer v. Longstreth, 10 Pa. 145 .. 159 
 America, The, 92 U. S. 432. 23 L. 
 
 ed. 724 675 
 
 American C. Co. v. Cross, 8 Bush, 
 
 472, 8 Am. Rep. 471... 
 
 -. 563, 570 
 
 American Exp. Co. v. Perkins, 42 
 
 111. 458 267 
 
 V. Sands. 55 Pa. 1 '" 267 
 
 American S. B. Co. ■». Chuue, 83 U. 
 
 S. 16 Wall. 522, 21 L. 
 
 ed. 369 610 
 
 American SS. Co. v. Brj-an, 83 Pa. 
 
 446 557 
 
 American Transp. Co. v. Moore, 5 
 
 Mich. 368, aff'd 65 U. S. 
 
 24 How. 1, 16 L. ed. 674 587 
 Amos V. Mobile & O. R. Co. 63 
 
 Miss. 509 626, 639 
 
 Anchor Line v. Dater, 68 111. 369. 516 
 Anderson v. Canadian Pac. R. Co. 
 
 17 Ont. Rep. 747, 40 
 
 Am. & Eng. R. Cas. 624 
 
 518, 586 
 
 V. Milwaukee & St. P. R. 
 
 Co. 37 Wis. 321.644, 646, 655 
 V. Scholey, 114 Ind. 553 
 
 1,25. 26, 694 
 
 Andrew v. Eleccric Tel. Co. 33 
 
 Eng. L. & Eq. 180 267 
 
 Anonymous. 7 L. R. A. 425, 89 
 
 Ala. 291 712 
 
 Ansell V. Watcrhouse, 2 Chitty, 1, 
 
 6 Mauled: 8.385 
 
 73.160,414,607 
 
 Auteloi*, The, 23 U. S. 10 Wheat. 
 
 66, 123, 6 L. ed. 208, 282 602 
 
 Antoni «. Greenhow, 107 U. S. 769, ' 
 
 27 L. ed. 468 486 
 
 Apsey V. Detroit, L. & N. R. Co. 
 
 83 Mich. 432.. 733 
 
 Archer v. New York, N. H. & H. 
 R. Co. 106 N. Y. 589.. 
 
 96, 409 
 
 Arctic. The, 11 Fed. Rep. 177 306 
 
 Ariadne, The. 80 U. S. 13 Wall. 
 
 475, 20L. ed. 542 675 
 
 Arkansas M. R. Co. v. Canman, 52 
 
 Ark. 517 247, 249, 259 
 
 Armstrong «. Beadle, 5 Sawy. 484 
 
 644-646 
 
 Arnold ®. Illinois Cent. R. Co. 83 
 
 111. 273... 160, 256, 257, 267 
 V. Pennsylvania R. Co. 15 
 Pa 135 
 
 .-.*.. 176' "l'87." 214. "3'6'7', 527 
 Asher v. Texas, 128 U. S. 129, 32 
 
 L. ed. 368 543 
 
 Ashmore v. Pennsylvania S. T. T. 
 
 Co. 28 N. J. L. 180.266, 272 
 Ashton V. Detroit C. R. Co. 78 
 
 Mich. 587 45 
 
 Associated Wholesale Grocers v. 
 Missouri Pac. R. Co. 1 
 Inters. Com. Rep. 321, 
 
 393... 510 
 
 Aston V. Heaven, 2 Esp. 533 
 
 22, 24, 27, 73, 75, 414 
 
 Atchison & N. R. Co. v. Flinn, 24 
 
 Kan. 627 18, 74 
 
 V. Washburn, 5 Neb. 147 1. 268 
 Atchison, T. & S. F. R. Co. v. . 
 
 Brewer, 20 Kan. 669 .. 589 
 V. Cochran, 7 L. R. A. 414, 
 
 43 Kan. 225 529 
 
 V. Dwelle, 44 Kan. 394 
 
 182, 183, 189 
 
 V. Gauts, 38 Kan. 608 
 
 .168, 173. 177-179, 195, 
 202. 211, 212, 217, 341, 343 
 V. Ledbetter, 34 Kan. 326.. 62 
 i\ Lindley, 6 L. R. A. 646, 
 
 42 Kan. 714 408 
 
 V. Long. 46 Kan. 200 203 
 
 V. McGinnis (Kan.) April 11, 
 
 1891 673 
 
 T. Moore. 31 Kan. 197 757 
 
 V. Smith. 28 Kan. 542 731 
 
 V. Thul. 29 Kan. 466, 44 Am. 
 
 Rep. 659. 708, 716 
 
 V. Wagner, 33 Kan. 660 62 
 
 V. Weber, 33 Kan. 543.. 164, 223 
 Atkyn v. Wabash R. Co. 41 Fed. 
 
 Rep. 193 666 
 
 Atlanta & W. P. R. Co. v. Condor, 
 
 75 Ga. 51 342, 345
 
 TABLE OF CASES. 
 
 Atlanta & W. P. R. Co. v. Vena- 
 
 ble,65 Ga. 55 636 
 
 V. Veiialile, 67 Ga. 697 657 
 
 V. Webb, 61 Ga. 586 6;i6 
 
 Atlantic, The, Abb. Adm. 451 ... 676 
 Atlas, The, 93 U. S. 302, 23 L. ed. 
 
 S63 675 
 
 .A.tlee T. Northwestern U. P. Co. 
 
 88 U. S. 21 Wall. 389, 
 
 22 L. ed. 619.- 675 
 
 Atwater t. Delaware, L. & W. R. 
 
 Co. 48 N. J. L. 55 509 
 
 Audenreid «. Philadelphia & R. R. 
 
 Co. 68 Pa. 370 502 
 
 Auerbach v. New York C. & H. R. 
 
 R. Co. 89 N. Y. 281... 
 
 521, 529 
 
 Augusta & S. R. Co. v. Randall, 
 
 79 Ga. 304 693 
 
 Austin V. Great Western R Co. L. 
 
 R. 2 Q. B. 442, 36 L. J. 
 
 Q. B. N. S. 201 
 
 4,15, 17-20, 379 
 
 V. Manchester, S. & L. R. 
 
 Co. 10 Q. B. 454 264 
 
 V. Ritz, 72 Tex. 391. 41 
 
 -Austin & N. R. Co. «•. Beatty, 73 
 
 Tex. 592 664 
 
 Avey V. Galveston, H. & S. A. R. 
 
 Co. (Tex.) June 2, 1891 
 
 142, 735 
 
 Ayers, Be, 123 U. S. 443, 31 L. ed. 
 
 216... 486 
 
 Ayles V. Southeastern R. Co. L. R. 
 
 3Exch. 146 695 
 
 B. 
 
 R. V. G. 32 L. J. Mat. 135 712 
 
 B. V. L. 16 Week. Rep. 943 712 
 
 >Bacon ®. Delaware, L. & W. R. 
 
 Co. 143 Pa. 14 395 
 
 Bahr «. Lombard, 53 N. J. L. 233 691 
 Baker v. Bolton, 1 Carapb. 493.. 
 
 --.- 604, 618 
 
 V. Dansbee, 7 Heisk. 229 ... 616 
 ?5. Flint & P. M. R. Co. 68 
 
 Mich. 90..'. 380 
 
 V. Manhattan R. Co. 118 N. 
 
 Y. 533 153 
 
 V. Portland, 58 Me. 199 533 
 
 V. State, 54 Wis. 368, 373 .. 465 
 Baldwin ®. Barney, 12 R. I. 392.. 
 
 532, 534, 535 
 
 V. Mississippi & M. R. Co. 
 
 5 Iowa, 518. 633 
 
 V. Western R. Corp. 4 Gray, 
 
 333 633, 657 
 
 B 
 
 Balfour V. Davis, 14 Or, 47 646 
 
 Balsley v. St. Louis, A. & T. H. 
 
 R. Co. 119 111. 68.- -544-546 
 Baltimore & O. R. Co. v. Bam- 
 brey (Pa.) Nov. 5, lb88 
 
 - - 186, 524 
 
 ». Blocher, 27 Md. 277 
 
 162, 186, 263 
 
 V. Brady, 32 Md. 333, 25 Md. 
 
 128 266, 272. 515 
 
 V. Campbell, 36 Ohio St. 618 
 
 516, 571, 589 
 
 ®. Fryer, 30 Md. 47 656 
 
 V. Harris, 79 U. S. 12 Wall. 
 
 65, 20 L. ed. 354. 
 
 .515,516, 526, 609 
 
 V. Kane, 69 Md. 11.129, 158, 394 
 V. Kane (Md.) June 12, 1889 
 
 92, 390 
 
 v. Leapley, 65 Md. 571 
 
 148, 221, 398 
 
 V. Miller, 29 Md. 252 27 
 
 ». Noell, 32 Gratt. 394.. 606, 693 
 
 ®. State, 29 Md. 252 
 
 48, 59, 216, 218, 310 
 
 r. State, 63 Md. 135 700 
 
 V. State, 6 L. R. A. 706, 73 
 
 Md. 36 401 
 
 ». Whitacre, 35 Ohio St. 627 
 
 380, 692 
 
 V. Whittington, 30 Gratt. 805 690 
 V. Wightman, 29 Gratt. 431 
 
 48, 216, 690, 693 
 
 v. Worthington, 21 Md. 275, 
 
 83 Am. Dec. 578 54. 694 
 
 Baltimore & Y. T. Co. i). Boone, 
 
 45 Md. 344. 150, 608 
 
 Baltimore C. P. R. Co. v. Kemp, 01 
 
 Md. 74... 005, 746, 750, 751 
 «. McDonnell, 43 Md. 535.. 733 
 Baltimore, P. & C. R. Co. v. Mc- 
 Donald, 68 Ind. 316- -. 
 
 161, 163 
 
 Bancroft v. Boston «& W. R. Corp. 
 
 97 Mass. 275 -_ 385 
 
 Bank of Augusta v. Earle, 38 U. 
 S. 13 Pet. 519, 10 L. ed. 
 
 274- 477 
 
 Hartford Co. v. Waterman, 
 
 26 Conn. 324 631 
 
 Kentucky «. Adams Exp. Co, 
 93 U. S. 174, 23 L. ed. 
 
 872 264 
 
 Orange «. Brown, 3 Wend. 
 
 158 607 
 
 Banks v. Highland St. R. Co. 136 
 
 Mass. 485 539 
 
 Bansemer v. Toledo & W. R. Co. 
 
 25 Ind. 435 585
 
 XVlll 
 
 TABLE OF CASES. 
 
 Barbee ®. Reese, 60 Miss. 906 
 
 Barker i\ Coflin, 31 Barb. 556 
 
 V. Hannibal & St. J. R. Co. 
 
 91 Mo. 86 
 
 r. Ladd, 3 Sawy. 44 
 
 V. Midland R. Co. 18 C. B. 
 
 46,50 115, 117, 
 
 Barnes v. Ward, 9 C. B. 392 
 
 Baruett v. East Tenn., Y. & G. R. 
 
 Co. 87 Ga. 766 
 
 Barney v. Oyster B. & H. S. B. Co. 
 
 67 N. Y. 301 115, 
 
 Barnowski v. Helson (Mich.) 15 L. 
 
 R. A. 33 
 
 Barret v. Great North. R. Co. 1 C. 
 
 B. N. 8. 433 
 
 V. Black, 56 Me. 505 
 
 Barron v. Burnside, 1 Inters. Com. 
 Rep. 295, 121 U. S. 186, 
 30 L. ed. 915.-443, 478, 
 
 Barstow v. Berlin, 34 Wis. 362.-. 
 V. Old Colony R. Co. 143 
 
 Barter v. Wheeler. 49 N.H.930"' 
 Bartlett v. New York & S. B. F. 
 
 & S. Transp. Co. 25 
 
 Jones &S. 348. 6, 
 
 Barton v. Barbour, 104 U. S. 126, 
 
 26 L. ed. 672 
 
 V. Home Ins. Co. 42 Mo. 
 
 156 
 
 «. Springfield, 110 Mass. 
 
 131 
 
 Barwick ». English J. S. Bank, L. 
 
 R. 2Exch. 265. 
 
 Bascowitz ■». Adams Exp. Co. 93 
 
 111. 523 
 
 Bass V. Cliicai^o & N. W. R. Co. 
 
 36 ^Wis. 450, 17 Am. 
 
 Rep. 495 
 
 -.80, 113, 130, 168,234, 
 «. Chicago & N. W. R. Co. 
 
 39 Wis. 636.--. 
 
 T. Chicago & N. W. R. Co. 
 
 42 Wis. 654 222, 
 
 Bateraan v. New York C. & H. R. 
 
 R. Co. 47 Hiin, 429.95, 
 Bates V. Old Colony R. Co. 147 
 
 Mass. 255 27 
 
 Batton V. Soutii & N. Ala. R. Co. 
 
 77 Ala. 591 
 
 Baxendale v. Eastern C. R. Co. 4 
 
 C. B. N. S. 163 4, 
 
 T. Great W. R. Co. 5 C. B. 
 
 N. S. 336 
 
 Baylcs v. Kansas Pac. R. Co. 5 L. 
 R. A. 480, 2 Infers. 
 Com.Rep. 643, 13Colo. 
 181 
 
 746 
 509 
 
 626 
 609 
 
 118 
 385 
 
 395 
 
 160 
 
 692 
 
 115 
 
 7 
 
 479 
 681 
 
 685 
 262 
 
 695 
 599 
 673 
 417 
 344 
 515 
 
 235 
 374 
 374 
 101 
 
 8, 410 
 108 
 
 499 
 
 506 
 
 508 
 
 Bayles v. Manchester, S. & L. R. 
 Co. L. R. 7 C. P. 415; 
 affirmed L. R. 8 C. P. 
 
 148.. .-.333, 344, 304 
 
 Beach v. Bay State S. B. Co. 30 
 
 Barb. 433 644, 645- 
 
 Beadell v. Eastern C. R. Co. 2 C. 
 
 B. N. S. 509.. 118 
 
 Beal V. Southern D . R. Co. 3 
 
 Hurlst. &C. 337 278 
 
 Beard v. Connecticut & P. R. R. 
 
 Co. 48 Vt. 101 
 
 95, 98, 123, 127, 128 
 
 V. Skeldon, 113 111. 584.624, 637 
 Beattie v. Citizens P. R. Co. (Pa.) 1 
 
 Cent. Rep. 633.. 46- 
 
 Beauchamp v. Saginaw M. Co. 50 
 Mich. 163. 45 Am. Rep. 
 
 30 95. 747, 750 
 
 Becht V. Corbin, 92 N. Y. 658 685 
 
 Beck V. Carter, 68 N. Y. 283 95- 
 
 Becke v. Missouri P. R. Co. 9 L. 
 R. A. 157, 102 Mo. 544 
 
 410, 741 
 
 Beckwith «. Cheshire R. Co. 143 
 
 Mass. 68 164 
 
 V. New York C. R. Co. 64 
 
 Barb. 299_. 714 
 
 V. Oatman, 43 Hun, 265 285 
 
 V. Svdebothain, 1 Campb. 
 
 116 720' 
 
 Bedford, S. O. & B. R. Co. v. 
 Rainbolt, 99 Ind. 551.. 
 
 27, 30, 694 
 
 Beebe v. Ayres, 28 Barb. 275 522 
 
 Beekman v. Saratoga & S. R. Co. 
 3 Paige, 45, 3 L. ed. 50 
 
 ..--4, 15» 
 
 Behrens v. The Furnessia, 35 Fed. 
 
 Rep. 798 - 299 
 
 Belair v. Chicago & N. W. R. Co. 
 
 43 Iowa, 662 75ft 
 
 Belfast & B. R. Co. v. Keys, 9 H. 
 
 L. Cas. 556. --.568, 571.581 
 V. Keys, 2 Ir. C. L. Rep. 
 
 145 568 
 
 Belgenland.The,114 U. S. 355, 29 
 
 L. ed. 152 .- 651 
 
 Belger v. Dinsmore, 51 N. Y. 166 517 
 Bell V. Hannibal & St. J, R. Co. 
 
 86 Mo. 599 62& 
 
 Bellefontaine & I. R. Co. v. Snyder, 
 18 OhioSt. 399, 24bhio 
 
 St. 670 656, 733 
 
 Bellman v. New York C. & H. 
 R. R. Co. 42 Hun, 135. 
 
 5. 173. 329 
 
 Ben Flint, The, 1 Abb. (U. S.) 
 
 126 67ft
 
 TABLE OF CASES. 
 
 XIX 
 
 Bennett v. American Exp. Co. 83 
 
 Me. 286 566 
 
 V. Dulton, 10 K rr. 481 
 
 ...2, 159, 215, 227, 283, 551 
 
 «. Ford,47Ind.264 76 
 
 V. Louisville & N. R. Co. 
 
 102 U. S. 677, 26 L. ed. 
 
 235.49, 95, 96, 103, 108, 129 
 «. New Jersey R. & T. Co. 
 
 36 N.J. "L. 225 742 
 
 V. New York C. & H. R. R. 
 
 Co. 5 Hun, 599, 69 N. 
 
 Y. 594 185 
 
 V. New York, N. H. & H. 
 
 R. Co. 57 Conn. 422, 41 
 
 Am. & Eng. R. Cas. 
 
 184. ....128, 378, 386 
 
 V. Peninsula & O. S. B. Co. 
 
 6C. B. 775 1, 227, 283 
 
 V. Railroad Co. 7 Pbila. 11 184 
 
 Benson, Ex parte, IS S. C. 38 499 
 
 Berg V. Chicago, M. & St. P. R. 
 
 Co. .50 Wis. 419 757 
 
 Bergbeim v. Great E. R. Co. L. R. 
 
 3C. P. Div. 221 556 
 
 Bernard v. Riclimond F. & P. R. 
 
 Co. 85 Va. 792 74 
 
 Bernhard v. Creene, 3 Sawy. 230. 651 
 Bernina, The, 12 Prob. Div. 58... 742 
 Berry v. Cooper, 28 Ga. 543... 268, 272 
 V. Montgomery & W. P.R. 
 
 Co. 39 Ga. 554 652 
 
 V. Northeastern R. Co. 72 
 
 Ga. 137 636 
 
 Bertholf v. O'Reilly, 8 Hun, 16, 
 
 aff'd in 74 N. Y. 509, 30 
 
 Am. Rep. 323 457, 532 
 
 Bethea v. Northeastern R. Co. 26 
 
 S. C. 91 ..512, 517. 518, 529 
 Bettys V. Milwaukee & St. P. R. 
 
 Co. 37 Wis. 323 644 
 
 Bevier v. Delaware & H. C. Co, 13 
 
 Hun, 258.. 317 
 
 Biddle v. Hestonville, M. & F. P. 
 
 R. Co. 112 Pa. 551.176, 214 
 Bier v. Standard Mfg. Co. 130 Pa. 
 
 446 317 
 
 BillB. Smith, 39 Conn. 210 665 
 
 Billman v. Indianapolis, C. & L. 
 
 R. Co. 76Ind. 166.-670,671 
 Billsdyke C. Co. v. North B. R. 
 
 Co. 2 Nev. & McN. R. 
 
 Cas. 105 506 
 
 Binks V. South Y. R. & R. O. Co. 
 
 32L. J.Q. B. 26 385 
 
 Birdc.Havden, 2 Abb. Pr. N. S.61 649 
 V. Hnlbrook, 4 Bing. 628 .. 540 
 Birkett v. Knickerbocker I. Co. 41 
 
 Hun, 404 657 
 
 Birkett «. Whitehaven J. R. Co. 4 
 
 Hurlst. &N. 730 
 
 34, 127, 128, 526, 527 
 
 Birmingham v. Rochester C. & B. 
 
 R. Co. 59 Hun, 583 50 
 
 Birmingham Union R. Co. v. Al- 
 exander, 93 Ala. 133... 725 
 
 V. Smith, 90 Ala. 60 33 
 
 Bisalllon v. Blood, 64 N. H. 565.. 734 
 Bishop V. Bedford Charity, 1 El. 
 
 &E1. 697 385 
 
 Bissell V. Michigan S. & N. I. R. 
 
 Co. 22N. Y. 258 
 
 -. 526, 527, 653 
 
 V. New York C. R. Co. 29 
 
 Barb. 603... 270 
 
 V. New York C. R. Co. 25 
 
 N. Y. 442 
 
 58, 269, 277. 280, 281 
 
 Bizzell V. Booker, 16 Ark. 308... 76 
 Blackburn v. Morton, 18 Ark. 384 631 
 Blackmore v. Toronto St. R. Co. 
 
 38U.C. Q. B. 172 ...7, 382 
 Blair v. Erie R. Co. 06 N. Y. 313 
 
 8, 9, 265 
 
 V. Grand Rapids & I.'R. Co. 
 
 60 Mich. 124 329, 391 
 
 V. Madison Co. 81 Iowa, 
 
 313 722 
 
 Blair I. «& C. Co.'«."Lloydr3""w" 
 
 N. C. 103 159 
 
 Blake v. Burlington, C. R. & N. 
 
 R. Co. 78 Iowa, 57,... 407 
 V. Midland R. Co. 10 Eng. 
 
 L. &Eq. 443 623 
 
 v. Midland R. Co. 18 Q. B. 
 
 93.. 655 
 
 Blakemore, Be, 14 L. J. N. S. 
 
 Ch. 336 711 
 
 Blanchard v. Isaacs, 3 Barb. 388.1, 559 
 Bland v. Southern P. R. Co. 55 
 
 Cal. 570 174, 193 
 
 Blank v. Livonia Twp. 79 Mich. 
 
 1.... 720 
 
 Bleeker v. Satsop R. Co. (Wash.) 
 
 Nov. 10, 1891 3 
 
 Block V. Bannerman, 10 La. Ann. 
 
 1, 3 341, 344 
 
 Bloomenthal v. Maine C. R. Co. 79 
 
 Me. 550 568 
 
 Blossom V. Dodd, 43 N. Y. 264... 517 
 Blum V. Southern P. P. C. Co. 1 
 
 Flipp. 500, 3 Cent. L. 
 
 J. 591.. 243, 557,558 
 
 Blumantle v. Fitchburg R. Co. 127 
 
 Mass. 322, 34 Am. Rep. 
 
 376 ...565, 568 
 
 Blumenthal v. Brainard, 38 Vt. 
 
 402 515-517
 
 XX 
 
 TABLE OF CASES. 
 
 Bh'the s.BirraiDgham W.W.Co. 11 
 
 Exch. 783 664 
 
 Boaz V. Central R. Co. 87 Ga. 463. 608 
 Bock V. Perkins. 139 U. S. 638, 35 
 
 L. ed. 314 600 
 
 Bohemia, Tlie, 38 Fed. Rep. 756 . 295 
 Boice V. Hudson River R. Co. 61 
 
 Barb. 611 523 
 
 Boland v. Missouri R. Co. 36 Mo. 
 
 484 733 
 
 Bolin t>. Stewart, 7 Baxt. 298 616 
 
 Bolt V. Stennett, 8 T. R. 606 231 
 
 Bomar v. Louisiana, N. & S. R. 
 
 Co. 42 La. Ann. 983... 759 
 c. Maxwell, 9 Humph. 621. 570 
 Bonce v. Dubuque St. R. Co. 53 
 
 Iowa, 278 30, 692 
 
 Bond V. Smith, 113 N. Y. 385 686 
 
 Bonner «. DeMendoza (Tex. App.) 
 
 May 21, 1891 562, 584 
 
 V. Wingate, 78 Tex. 333 50 
 
 Books??. Danville, 95 Pa. 158 
 
 618,628, 635. 655 
 
 Bordeaux v. Erie R. Co. 8 Hun. 
 
 579. 171, 182 
 
 Bordentown, The, 16 Fed. Rep. 
 
 270 675 
 
 Boss «. Providence & W. R. Co. 
 
 15 R. I. 149 140 
 
 Boston, The, 8 Fed. Rep. 628 306 
 
 Boston & L. R. Co. v. Proctor, 1 
 
 Allen, 267 185, 521 
 
 Boston & M. R. Co., Ee, 3 Inters. 
 
 Com. Rep. 717 506 
 
 Boston & M. R. Co. v. Bartlett, 3 
 
 Cush. 227 -. 227 
 
 V. Chipman, 146 Mass. 107. 
 
 515 519 
 V. Trafton,'i5i'Mviss.'229 ..' 522 
 -c. York Co. Comrs. 79 Me. 
 
 386 231, 435 
 
 Bosworth V. Swansey, 10 Met. 363 
 
 531, 539 
 
 Boutiller v. The Milwaukee, 8 
 
 Minn. 97 612 
 
 Bowen v. New York C. R. Co. 
 
 18 N. Y. 408.--. 24, 57, 218 
 Bowers v. Union P. R. Co. 4 Utah, 
 
 215 757 
 
 Bowman v. Chicago & N. W. R. 
 
 Co. 1 Inters. Com. Rep. 
 
 830.125 U. 8. 465, 31 L. 
 
 ed. 700.441.442,444.541,548 
 Boyce v. Anderson, 27 U. S. 2 Pet. 
 
 150, 7 L. ed. 379. .-.73, 414 
 V. California 8. Co. 25 Cal. 
 
 468 2, 26, 28, 217, 694 
 
 V. Manhattan R Co. 118 N. 
 
 Y. :!14, 41 Am. & Eng. 
 
 R. Cas. Ill 130 
 
 Boyd V. Clark, 8 Fed. Rep. 849 .. 631 
 Boylan v. Hot Springs R. Co. 132 
 
 U. S. 146, 33 L. ed. 290 
 
 .197, 512. 517, 518, 523, 524 
 Bradford v. Downs, 126 Pa. 622.. 728 
 Bradley v. Morris, 44 N. C. 395.- 608 
 Bradshaw i}. South B. R. Co. 135 
 
 Mass. 407 186, 199 
 
 Bradwell v. Pittsburg & W. E. R. 
 
 Co. 139 Pa. 404 692 
 
 Brady v. Northwestern Ins. Co. 11 
 
 Mich. 425 672 
 
 Brand v. Schenectady & T. R. Co. 
 
 8 Barb. 368 109, 215 
 
 Brantford City, The, 29 Fed. Rep. 
 
 373. 264 
 
 Braslin v. Somerville H. R. Co. 145 
 
 Mass. 64 610 
 
 Brassell d. New York C. & H. R. 
 
 R. Co. 84 K Y. 241... 
 
 131,384 
 
 Brassfleld v. Hannibal & St. /. R. 
 
 Co. 19 3Io. App. 651 .. 511 
 
 Bray B. Latham, 81 Ga. 640 751 
 
 Brazier v. Polytechnic Inst. 1 Fost. 
 
 & F. 507, 508 56-58 
 
 Bream*. Brown, 5 Coldw. 173... 616 
 Brechbill v. Randall, 103 Ind. 528 466 
 Breen v. New York C. & H. R. R. 
 
 Co. 109 N. Y. 297 
 
 28, 29, 403, 696 
 
 V. Texas & P. R. Co. 50 Tex. 
 
 43 . . . 522 
 
 Brehm v. Gre'aTw'R.'Co". sVBa'rb' 
 
 256 694 
 
 Bremner v. Williams, 1 Car. & P. 
 
 414 22, 414 
 
 Brennan v. Fairhaven & W. R. Co. 
 
 45 Conn. 284 279 
 
 V. Gordon, 3 N. Y. S. R. 604.. 322 
 Bretherton v. Wood, 3 Brod. & B. 
 
 54, 6 Moore. 141.4. 160, 414 
 Brewer v. New York, L. E. & W. 
 
 R. Co. 11 L. R. A. 483, 
 
 134N. Y. 59. 9 
 
 Brickell v. New York C. & H. R. 
 
 R. Co. 120 N. Y. 290,42 
 
 Am. & Eng. R. Cas. 
 
 107 740 
 
 Bricker v. Philadelphia & R. R. 
 
 Co. 132 Pa. 1 4, 15 
 
 Bridge v. Grand Junction R. Co. 
 
 3 Mees. & W. 244 50 
 
 Bridger v. Ashville & S. R. Co. 25 
 
 S. C.24 59, 729 
 
 Bridges®. North London R. Co. L. 
 
 R. 7 H. L. 215, 43 L. J, 
 
 Q. B. 131 140 
 
 Brien v. Bennett, 8 Car. & P. 
 
 24 107
 
 TABLE OF CASKS. 
 
 XXi 
 
 Briggs V. Grand Trunk R. Co. 24 
 
 U. C. Q. B. 510 
 
 185, 521, 522 
 
 V. Morgan, 2 Hagg. Const. 
 
 824 711 
 
 V. Union St. R. Co. 148 
 
 Mass. 72 41 
 
 Brigham v. Claflin, 31 Wis. 607. . 644 
 Brignoli v. Chicago & G. E. R.Co. 
 
 4 Daly, 188. 694 
 
 Brinckhard^. Western U. Tel. Co. 
 
 35 N. Y. S. R. 589 691 
 
 Brind v. Dale, 8 Car. & P. 207 .... 2 
 Briscoe v. Southern K. R. Co. 85 
 
 Ala. 601 546 
 
 Briscoe v. Southern K. R. Co. 40 
 Fed. Rep. 272, 40 Am. 
 &Eng. R. Cas. 599 ... 547 
 Brittan «.Barnuln%02 U.S. 21 How. 
 
 527, 16 L. ed. 177 515 
 
 Brittoa v. Atlanta & C. A.L. R.Co. 
 
 88N. C. 586 162, 168 
 
 V. Grand Rapids St. R. Co. 
 (Mich.),Feb. 5, 1892... 
 
 891, 892 
 
 Brock V. Gale, 14 Fla. 523, 14 Am. 
 
 Rep. 856 564 
 
 Bronson v. Southbury, 37 Conn. 
 
 199 733 
 
 Brooke v. Chicago, R. I. & P. R. 
 
 Co. 81 Iowa, 504 
 
 704, 724, 725 
 
 V. Grand Trunk R. Co. 15 
 
 Mich. 332 523, 580 
 
 Brooklyn C. & N. R. Co. v. Nat. 
 B'k. of Republic, 102 U. 
 
 S. 14, 26L. ed. 61 487 
 
 Brooks V. Lincoln St. R. Co. 22 
 
 Neb. 816. 33 
 
 V. Schwerin. 54 N. Y. 343.. 606 
 Broschart ®. Tuttle, 11 L. R. A. 33 
 
 59 Conn. 1 532, 538 
 
 Brotherton v. Wood, 6 Moore, 141 607 
 
 Brown, Ex parte, 15 S. C. 518 596 
 
 V. Buffalo & S. L. R. Co. 22 
 
 N. Y. 191 627 
 
 V. Chicago, M. & St. P. R. 
 Co. 54 Wis. 342, 41 Am. 
 
 Rep. 41 151, 746 
 
 t>. Chicago, M. & St. P. R. 
 
 Co. 80 Wis. 162.. 395 
 
 V. Collins, 53 N. H. 442 76 
 
 V. Congress & B. St. R. Co. 
 
 49^Mich. 153 691, 701 
 
 «. Eastern R. Co. 11 Cush. 
 
 97 7, 315, 515,517 
 
 V. Hannibal & St. J. R. Co. 
 
 27 Mo. App. 394 547 
 
 «, Houston, 114 U. S. 622, 
 
 29 L. ed. 257.. 439, 447, 448 
 
 Brown v. Kansas City. Ft. S. & G. 
 R. Co. 38 Kan. 634.... 
 
 182,252, 256, 257 
 
 V. Marshall, 47 Mich. 576 .. 285 
 V. Maryland, 25 U. S. 12 
 Wheat. 419, 6 L.ed. 678, 
 
 note 448 
 
 V. Memphis & C. R. Co. 4 
 Fed. Rep. 37. 7 Fed. 
 
 Rep. 51 .162, 371 
 
 V. Memphis & C. R. Co. 5 
 
 Fed. Rep. 499 161, 164 
 
 V. Milwaukee & St. P. R. 
 
 Co. 23 Minn. 165 689 
 
 V. Missouri, K. & T. R. Co. 
 
 64 Mo. 586 15, 16 
 
 V. New York C. R. Co. 34 
 
 N. Y. 404.. 57,68 
 
 V. Providence & S. R. Co. 12 
 
 R. 1.288 720 
 
 V. The D. S. Cage, 1 Woods, 
 
 401.. 670 
 
 Browne v. Raleigh & G. R. Co. 108 
 
 N. C. 34 258-261! 
 
 Brownell v. People, 38 Mich. 732. 721 
 Bruce v. Cincinnati R. Co. 83 Ky. 
 
 174.. 650 
 
 Brulard v. The Alvin, 45 Fed. Rep. 
 
 766.. 144 
 
 Bruty V. Grand Trunk R. Co. 32 U. 
 
 C. Q. B. 66. 561 
 
 Bryan v. Bouton, 10 Tex. 62 631 
 
 V. Missouri P. R. Co. 32 Mo. 
 
 App. 228- ..274, 281 
 
 Bryant v. Rich, 106 Mass. 180, 8 
 
 Am. Rep. 311 
 
 888,348, 363, 878 
 
 Buchanan v. West Jersey R. Co. 
 
 52N. J. L. 265 90 
 
 Bucher v. Cheshire R. Co. 125 U. 
 
 S. 555, 31 L. ed. 795... 532 
 V. Fitchburg R. Co. 131 
 
 Mass. 156 531 
 
 V. New York C. & H. R. R. 
 Co. 98 N. Y. 128, 20 N. 
 Y. Week. Dig. 384.. 43, 417 
 Buck V. Colbath, 70 U. S. 8 Wall. 
 
 344, 18 L. ed. 261 600 
 
 ■0. Manhattan R. Co. 32 N. 
 
 Y. S. R. 51 167, 220 
 
 V. Webb, 58 Him, 185 
 
 ...-173, 241, 524 
 
 Buckles V. EUers, 72 Ind. 220 644 
 
 Buckley v. Great W. R. Co. 18 
 
 Mich. 121 588 
 
 Buddie V. Willson, 6 T. R. 369... 614 
 Buel V. New York C. R. Co. 31 N. 
 Y. 318, 814, 88 Am. Dec. 
 
 271 409. 
 
 411, 415, 417, 418, 430, 431
 
 XXll 
 
 TABLE OF CASES. 
 
 Buenemann v. St. Paul, M. & M. R. 
 
 Co. 32 Minn. 390 95, 127 
 
 Buesching v. St. Louis G. L. Co. 
 
 73Mo. 233. 39Am. Rep. 
 
 503.-. 681 
 
 Buffalo E. S, R. Co. v. Buffalo St. 
 
 R. Co. 2 L. R. A. 384, 
 
 111 X. Y. 132... 457 
 
 Buffett v. Trov & B. R. Co. 40 N. 
 
 y.lGS 5 
 
 BuUard v. Boston & M. R. Co. 64 
 
 N. H. 27 ..93, 149 
 
 Bullock V. Wilmington & W. R. 
 
 Co. 105 N. C. 180 329 
 
 Bunnell «. Stern, 10 L. R. A. 481, 
 
 122 N. Y. 539 244 
 
 Burbank v. Illinois Cent. R. Co. 11 
 
 L. R. A. 720, 42 La. 
 
 Ann. 1156, 45 Am. & 
 
 Eng. R. Cas. 593 109 
 
 Burdick v. Freeman, 46 Hun, 138. 646 
 Burgess v. Clements, 4 Maule & S. 
 
 306 160 
 
 V. Great W. R. Co. 6 C. B. 
 
 N. S. 923 96, 123, 127 
 
 Burgundia, The, 29 Fed. Rep. 464 732 
 Burke v. Broadway & S. Ave. R. 
 
 Co. 34 How. Pr. 239.. 739 
 ». Southeastern R. Co. 49 L. 
 
 J. C. P. 107, L. R. 5 C. 
 
 P. Div. 1 243 
 
 V. Witherbee, 98 N. Y. 562. 109 
 Burlington & M. R. Co. v. Rose, 11 
 
 Neb. 177 162, 212, 256 
 
 Burncll e. New York C. R. Co. 45 
 
 N. Y. 184 585 
 
 Burnbam ». Grand Trunk R. Co. 
 
 63 Me. 298, 299. 
 
 157, 208, 367, 515, 523 
 
 Burns v. Cork & B. R. Co, 13 Ir. 
 
 C. L. Rep. 543 48, 56, 72, 315 
 T. Grand Rapids & L R. Co. 
 
 113 Ind. 169 643. 650 
 
 Burr V. Burr. 7 Hill, 206. 608 
 
 Burrows v. Erie R.Co. 63 N. Y. 556, 
 
 3Tbomp. &C. 44. 155 
 
 Burton v. West Jersey F. Co. 114 
 
 U. S. 474, 29 L. ed. 215 
 
 232, 233 
 
 Bussey v. Mississippi V. T. Co. 24 
 
 La. Ann. 165 3 
 
 Butcher v. London &S. W. R. Co. 
 
 10 C. B. 13... 552, 584 
 
 Jiutler p. Hudson KiverR. Co. 3 E. 
 
 I). Smith, 571 577 
 
 V. MancheslcM-, S. «fe L. K. 
 
 Co. L. R. 21 Q. n. Div. 
 
 207 196. 197, 207 
 
 «. Wildman, 3 Barn. &, Aid. 
 
 398 673 
 
 Butterfield t. Forrester, 11 East, 
 
 60 669 
 
 Button V. Frink, 51 Conn. 342 692 
 
 v. Hudson River R. Co. 18 
 
 N. Y. 248 684 
 
 Buxton V. North Eastern R. Co. L. 
 
 R. 3 Q. B. 549, 37 L. J. 
 
 Q. B. 258 526, 527, 550 
 
 Buzby T. Philadelphia T. Co. 126 
 
 Pa. 559. 46 
 
 Byrd t\ New Orleans C. & L. R. 
 
 Co. 43 La. Ann. 42 
 
 Byrne v. Boadle, 2 Hurlst. «& C. 678 98 
 
 C. 
 
 C. V. C. 32 L. J. Mat. 153 712 
 
 Cabin V. Cincinnati. N. O. & T. P. 
 
 R. Co. (Ky.) 13 Ky. L. 
 
 Rep. 714 740 
 
 V. London & N. W. R. Co. 
 
 10 C. B. N. S. 154. aff'd 
 
 13 C. B. N. S. 818.. 566, 568 
 Cain ®. Minneapolis & St. L. R. 
 
 Co. 39 Minn. 297. ..168, 343 
 Calderwood v. North Birmingham 
 
 S. R. Co. (Ala.) May 14, 
 
 1892 393, 394, 666 
 
 Caldwell v. Murphy, 11 N. Y. 416. 633 
 V. Murphy, 1 Duer, 233 
 
 24, 59, 215 
 
 V. New Jersey S. B. Co. 47 
 
 N. Y. 282 24, 57- 
 
 59,66.216,299,310,311,665 
 California v. Central P. R. Co. 127 
 
 U. S. 1, 32 L. ed. 150,1 
 
 Inters. Com. Rep. 153. 481 
 Camblos v. Philadelphia & R. R. 
 
 Co. 9 Phila. 411. 120 
 
 Camden «fe A. R. & T. Co. v. Burke, 
 
 13 Wend. 611. 
 
 22,24,27, 74,414 
 
 Camden & A. R. Co. v. Baldauf, 
 
 16 Pa. 67. ....267, 515 
 
 D. Hoosey, 99 Pa. 492. ..232, 411 
 Cameron v. Vandergriff, 53 Ark. 
 
 381 605 
 
 Camp V. Barney, 4 Hun. 373.. 596, 599 
 V. Hartford & N. Y. SS. Co. 
 
 43 Conn. 333 268 
 
 Campbell v. Boyd, 88 N. C. 129, 43 
 
 Am. Rep. 740 95 
 
 V. Portland S. Co. 62 Me. 
 
 o52, 16 Am. Rep. 503.. 
 
 121, 124 
 
 T. Pullman P. C. Co. 42 
 
 Fed. Rep. 484 3, 746 
 
 V. Rogers, 2 Handy, 110.618. 646
 
 TABLE OF CASES. 
 
 XXlll 
 
 Canadian P. R. Co. v. Johnson, 
 
 Mont. L. Rep. G Q. B. 
 
 213- 145, 355 
 
 €andiff v. Louisville, N. O. & T. 
 
 R. Co. 43 La. Ann. 477 253 
 <Jannavan v. Couklin, 1 Daly, 
 
 509 550 
 
 Canning v. Williamstown, 1 Cush. 
 
 451 673 
 
 Cannon v. Hemphill, 7 Tex. 199.. 641 
 ■Cantling v. Hannibal & St. J. R. 
 
 Co. 54 Mo. 385, 14 Am. 
 
 Rep. 476... - 580 
 
 €ard v. Ellsworth, 65 Me. 547, 30 
 
 Am. Rep. 733.415, 416, 431 
 €ardot v. Barney, 63 N. Y. 281, 20 
 
 Am. Rep. 533 597-599 
 
 Card well v. Am. R. B. Co. 113 U. 
 
 S.205, 28L. ed.959 ... 
 
 439, 445 
 
 Carey r. Berkshire R. Co. 1 Cush. 
 
 475. 618, 620 
 
 V. Brooks, 1 Hill, L. 365... 670 
 Cargile v. Harrison, 9 B. Mon. 
 
 518 631 
 
 Carleton v. Franconia L &S. Co. 
 
 99 Ma', s. 316, 217. 
 
 7,94,95,121 
 
 Carlisle v. Brisbane, 113 Pa. 544.. 740 
 «. Sheldon, 38 Vt. 440 ..735, 736 
 Carlson v. Oceanic S. N. Co. 109 
 
 N. Y. 359 569 
 
 Carpenter «. Blake, 75 N. Y. 12 .. 285 
 ». Boston & A.. R. Co. 97 N. 
 
 Y. 494, 49 Am. Rep. 540 
 
 95 365 
 «. Grand Trunk R.'Co." 72 
 
 Me. 388 522, 644 
 
 V. New York, N. H. & H. R. 
 
 Co. 11 L. R. A. 759, 124 
 
 N. Y. 153.558, 559, 562, 563 
 V. Providence \V. Ins. Co. 41 
 
 U. S. 16 Pet. 495, 10 L. 
 
 ed. 1044 487 
 
 «. Washino;ton & G. R. Co. 121 
 
 U. S. 474, SOL. ed. 1015, 
 
 35,162, 167, 198 
 
 Carpue ©. London & B. R. Co. 5 
 
 Q. B. 747 691, 695 
 
 Carr v. Lancashire & Y. R. Co. 7 
 
 Exch. 707 264 
 
 Carrico v. West Va. C. & P. R. 
 
 Co. 35 W. Va. 389.381, 405 
 Carroll «. Interstate R. T. Co. (Mo.) 
 
 Dec. 7, 1891 3S6, 400 
 
 V. ]\IisRouri P. R. Co. 88 Mo. 
 
 239 267, 373, 381, 659 
 
 c. New York & N. H. R. 
 
 Co. 1 Duer, 571... .400, 401 
 
 Carroll v. Staten Island R. Co. 65 
 Barb. 33, all'd in 58 N. 
 
 Y. 136 
 
 ...19, 37, 48, 58, 65, 76 
 216, 219, 278, 532, 540, 665, 
 Carsten v. Northern P. R. Co. 9 
 L. R. A. 688, 44 Minn. 
 
 454 175, 228, 511 
 
 Carter v. Kansas C. C. R. Co. 42 
 
 Fed. Rep. 37 695 
 
 V. Louisville, N. A. & C. 
 
 R. Co. 98 Ind. 552.130, 344 
 V. Peck, 4 Sneed, 203 ..536, 527 
 Carthage T. Co. v. Andrews, 103 
 Ind. 138. 52 Am. Rep. 
 
 653 '. 757 
 
 Cartwright v. Chicago & G. T. R. 
 
 Co. 53 Mich. 606. 103 
 
 Cary v. Cleveland & T. R. Co. 29 
 
 Barb. 35 585 
 
 Casey v. Smith. 9 L. R. A. 259. 
 
 152 Mass. 294.. 728, 732, 739 
 Cassida v. Oregon R. & Nav. Co. 
 
 140r. 551 134 
 
 Cassidy v. Angell, 12 M. I. 447, 34 
 
 Am. Rep. 690 679 
 
 Castnerw. Sliker, 33 N. J. L; 95.. 721 
 Catlin V, Adirondack Co. 20 Hun, 
 
 19- 591 
 
 Caton T. Rumney, 13 Wend. 387. 2 
 Central & M. R. Co. v. Morris, 68 
 
 Tex. 49 544 
 
 Central Pass. R. Co.- v. Kuhn. 86 
 
 Ky. 578 698 
 
 Central R. & Bkg. Co. v. Miles, 88 
 
 Ala. 256 154 
 
 v. Perry. 58 Ga. 461, 467.10, 153 
 f). Rylee, 13 L. R. A. 634.. 731 
 V. Smith, 80 Ga. 526.... 141, 259 
 Central R. Co. v. Freeman, 75 Ga. 
 
 331 695 
 
 «. Green, 86 Pa. 421. 426,427 
 
 233-235, 375 
 
 V. Harris, 76 Q a. 501 395 
 
 V. Peacock. 69 Md. 257 .... 
 
 334, 335, 348, 363, 365 
 
 r. Roach, 70 Ga. 434 637 
 
 t\ Sanders. 73 Ga. 513 693 
 
 V. Smith, 76 Ga. 309 760 
 
 V. Smith (Md.) April 9, 1891 
 
 34,40 
 
 V. Smith, 74 Md. 212 692 
 
 v. Swint, 73 Ga. 651 652 
 
 V. Thompson, 76 Ga. 770 .. 101 
 Central Trust Co. v. Wabash, St. 
 L. & P. R. Co. 27 Fed. 
 
 Rep. 159 424 
 
 V. Wabash, St. L. & P. R. 
 Co. 31 Fed. Rep. 247.. 583
 
 XXIV 
 
 TABLE OF CASES. 
 
 Central Trust Co. v. Wabash, St. 
 
 L. & P. R. Co. 39 Fed. 
 
 Rep.417, 40Am. ifeEnir. 
 
 R.Cas.636.551, 564, 577, 
 
 Chaffee v. Boston & L. R. Corp. 
 
 104 Mass. 108 399, 
 
 v. 01(1 Colony R. Co. (R. I.) 
 
 Feb. 27, 1892.. 384, 390, 
 
 Chamberlain v. Chandler, 3 Mason, 
 
 242, 246 -344, 
 
 «. Ward, 62 U. S. 21 How. 
 
 548. 16L. ed. 211 
 
 V. Western Transp. Co. 45 
 
 Barb. 223 
 
 V. Williamson, 2 Maule & S. 
 
 408, 415 614, 
 
 Chance v. St. Louis, I. M. & S. R. 
 
 Co. lOMo. App. 351... 
 
 Chandos, The, 6 Sawy. 549. 550.. 
 
 Chapman v. New Haven R. Co. 19 
 
 N. Y. 341 
 
 V. Rothwell, El. Bl. & El. 
 
 168 121, 
 
 Chase v. Jamestown St. R. Co. 38 
 
 N. Y. S. R. 954 31, 
 
 V. Maine Cent. R. Co. 77 
 Me. 63, 52 Am. Rep. 
 
 746 687, 
 
 Chattanooga, R. & 0. R. Co. n. 
 
 Liddell. 85 Ga. 482.248, 
 
 v. Lyon, (Ga.) 15 L. R. A. 
 
 857 
 
 Cheney v. Boston «fe M. R. Co. 11 
 
 Met. 121.. 154, 514, 522, 
 
 Cherry v. Hardin, 4 Heisk. 199.. 
 
 Chesapeake & P. Jeleph. Co. v. 
 
 Baltimore & O. Teleg. 
 
 Co. 66 Md. 399 
 
 Chesapeake, O. & S. W. R. Co. v. 
 Hlggins, 85 Tenn. 620. 
 
 V. Wells, 85 Tenn. 613 
 
 Chicago©. Hesing, 83 111. 204 ; 
 
 V. Scholten, 75 111. 469 
 
 Chicago & A. R. Co. v. Addizoat, 
 
 17 111. App. 632 584. 
 
 v. Adler, 129 111. 335 
 
 V. Carey, 115 111. 115 
 V. Fisher, 31 111. App 
 V. Flagg. 43 111. 304 
 
 »;. Michie, 83 111. 427 
 
 V. Pennsylvania, 1 Inters. 
 
 Com. ]{cp. 357 
 
 V. People. 67 111. 11 
 
 V. Pill8l)ury. 123 III. 9 
 
 .23, 162, 217, 218, 220 
 
 «. Kimdolph, 53 ill. 510 
 
 155, 
 
 V. Slianiion,43 111. 338 
 
 V. Springfield & N. W. R. 
 Co. 67 111. 142 
 
 36 .. 
 ...173, 
 
 Chicago & A. R. Co. -v. Wilson, 63 
 
 III. 167 ....97, 99" 
 
 V. Wool ridge, 32 111. App. 
 
 580 237 38» 
 
 Chicago & E. I. R. Co. v. Conners, 
 
 621 30 111. App. 307.. 425 
 
 V. Hedges, 105 Ind. 398 103 
 
 667 V. Holland, 122 111. 461.604. 719- 
 
 'V. Holland. 18 111. App. 418 753 
 
 345 V. Morris, 26 III. 400 634 
 
 V. O'Connor, 119 HI. 586... 
 
 674 623, 637. 659' 
 
 Chicago & E. R. Co. v. Flexman, 
 568 103111. 546, 42 Am.Rep. 
 
 33-338, 340, 343,363, 373,373- 
 633 Chicago & G. E. R. Co. v. Harney, 
 
 28 Ind. 28 739- 
 
 123 Chicago & I. C. R. Co. v. DeBaum, 
 
 676 3lnd. App. 281 92 
 
 Chicago & N. W. R. Co. d. Bay- 
 
 742 field, 37 Mich. 205 626 
 
 V. Chapman, 8 L. R. A. 508, 
 
 385 133 HI. 96 267 
 
 V. Crane, 113 U. S. 424, 38 
 
 724 L. ed. 1064 .- -. 545. 
 
 «. Dey, 2 Inters. Com. Rep. 
 325, 1 L. R A. 744, 35 
 
 692 Fed. Rep. 866 
 
 433, 483, 485, 486, 488 
 
 544 V. Drake, 33 111. App. 114.. 153 
 
 V. Jackson, 55 111. 497 759 
 
 147 V. Moranda. 93 III. 304 659 
 
 V. Peacock, 48 111. 253 177 
 
 523 V. Swett, 45 111. 197 659 
 
 610 V. Taylor, 69 III. 461 54 
 
 V. Williams, 55 IlL 185 
 
 159, 163, 168 
 
 468 Chicago & R. I. R. Co. v. Morris, 
 
 26 111. 400 636- 
 
 640 Chicago & W. I. R. Co. v. Schroe- 
 234 der, 18 HI. App. 328... 
 
 ^660 604,646 
 
 660 Chicago Anderson P. B. Co. v. 
 Sobkowiak, 34 111. App. 
 
 585 312 761 
 
 664 Chicago, B. & N. R. Co. v. Hawk, 
 
 658 36 III. App. 327 277 
 
 228 Chicago, B. & Q. R. Co. v. Bryan, 
 256 90 111. 126.159. 162, 193,195 
 
 16 V. Cutts, 94 U. S. 155, 24 L. 
 
 ed. 94 .434, 435 
 
 525 V. Damerell, 81 III. 450 2ia 
 
 433 V. Dewey, 20 111. 255 98 
 
 V. Dey. 38 Fed. Rep. 056 .. 484 
 361 V. (Jeorge, 19 III. 510.... 03, 327 
 
 V. Griffin, 68 111. 499 
 
 178 162, 168, 177. 199, 202 
 
 659 V. Iowa, 94 U. 8. 155, 101. 
 24 L. ed. 94 472 
 
 720 1 V. Manning, 23 Neb. 552... 2V>
 
 TABhE OF CASES. 
 
 XXV" 
 
 Chicago, B. & Q. R. Co. v. Mehl- 
 
 sack, 131 111. 61. ...216, 217 
 V. Parks, 18 111. 460 
 
 172. 182, 501, 502, 521 
 
 «. Stumps, 6'J 111. 409 74 
 
 V. Sullivan, 21 111. App. 580 755 
 Chicago City R. Co. v. Delcourt, 
 
 33 111. App. 430 41 
 
 v. Engel, 35111. App. 490.. 
 
 218, 691. 695 
 
 V. Mumford, 97 111. 560 42 
 
 V. Pelletier, 33 111. App. 455, 
 
 134111. 120 35,161 
 
 V. Robinson. 4 L. R. A. 126, 
 
 127 111. 9 35, 735 
 
 V. Wilcox, 33 111. App. 450. 755 
 V. Wilcox (111.) 8 L. R. A. 
 
 494 734 
 
 V. Wilcox(Ill.)44Alb. L. J. 
 
 70 734 
 
 Chicago, M. & St. P. R. Co. v. 
 
 Ackley, 94 U. S. 179, 
 
 24 L. ed. 99.. .434, 436, 472 
 V. Becker, 22 Fed. Rep. 849 
 
 231, 485 
 
 V. Minnesota, 134 U. S. 418, 
 
 33 L. ed. 970, 3 Inters. 
 
 Com. Rep. 209 
 
 .432, 434, 463, 471, 488, 501 
 V. Ross, 112 U. S. 377, 28 L. 
 
 ed. 787 222 
 
 Chicago, R. I.&P. R. Co.w. Boyce, 
 
 73 111. 510, 24 Am. Rep. 
 
 268 _571, 584 
 
 V. Brisbane, 24 111. App. 
 
 463...- 171, 181, 182 
 
 V. Clayton, 78 111. 616 
 
 555. 588, 589, 745 
 
 «. Clough, 134 111. 586 424 
 
 V. Conklin, 32 Kan. 55 577 
 
 V. Fairclough, 52 111. 106.. 
 
 ...560, 585, 586 
 
 V. Felton, 125 111. 458 
 
 ....415, 426,428 
 
 V. Herring, 57 111. 59 366 
 
 Chicago, St. L. & N. O. R. Co. v. 
 
 Doyle, 60 Miss. 977 650 
 
 T. Scurr, 59 Miss. 456 143 
 
 V. Trotter, 60 Miss. 442 700 
 
 Chicago, St. L. & P. R. Co. v. 
 
 Bills, 104 Ind. 13, 118 
 
 Ind. 221 
 
 .175, 176, 178-180, 342, 377 
 «. Graham (Ind. App.) 11 Ry. 
 
 & Corp. L. J. 57... 207, 227 
 V. Holdridge. 118 Ind. 281. 520 
 Chicago, St. P. & F. D. L. R. Co. 
 
 V. McCarthy, 20 III. 
 
 385 546 
 
 Chicago, St. P. M. & O. R. Co. v. 
 
 Becker, 35 Fed, Rep. 
 
 883.. 48i> 
 
 Chicago West. Div. R. Co, v. Hav- 
 
 iland, 12 111. App. 561. 759 
 
 V. Hughes, 87 111. 94.. 761 
 
 Chisholm v. Northern T. Co, 61 
 
 Barb. 363 292 
 
 Chollette v. Omaha & R. V. R. Co. 
 
 4 L. R. A. 135, 26 Neb. 
 
 159. ...-526, 528, 545- 
 
 Christian v. Columbus &R. R. Co. 
 
 79 Ga. 460 623 
 
 V. VanTassell, 12 Fed. Rep. 
 
 884 675 
 
 Christie v. Griggs, 2 Campb. 79. . 
 
 22, 26, 27, 30, 32, 55. 
 
 59. 66, 73, 75, 414, 552, 694 
 V. Missouri Pac. R. Co. 94 
 
 Mo. 453 508 
 
 Churchill v. Chicago & A. R. Co. 
 
 67 111. 3"90 176,522 
 
 Chy Lung v. Freeman, 92 U, S, 
 
 275, 23 L. ed. 550 542 
 
 Cincinnati & C. A. L. R. Co. v. 
 
 Marcus, 38 111. 219 562^ 
 
 Cincinnati, H. & D. R. Co. v. Mc- 
 
 Mullen, 117 Ind. 439 .. 651 
 V. Pontius, 19 Ohio St. 221 267 
 Cincinnati, H. & I. R. Co. v. But- 
 ler, 103 Ind. 31. 692 
 
 V. Carper, 112 Ind. 26 
 
 6, 11, 
 
 97, 127, 130, 222, 347, 393 
 Cincinnati, I. St. L. & C. R. Co. 
 
 •v. Cooper, 6 L. R. A. 
 
 241, 120 Ind. 469 
 
 164, 165, 213, 224, 346, 670 
 V. Dufrain, 36 111. App. 352 391 
 Cincinnati, N. O. & T. P. R. Co. 
 
 V. Adams (Ky.) 11 Ky. 
 
 L. Rep. 833. 638 
 
 Cincinnati, S. & C. R. Co. «. Skill- 
 man, 39 Ohio St. 444.. 
 
 167, 191 
 
 Cincinnati, W. & W. R. Co. v. 
 
 Peters, 80 Ind. 168.. -91, 94 
 Citizens Bank v. Nantucket S. B. 
 
 Co. 2 Story, 16 1, 29& 
 
 Citizens St. R. Co. v. Twiname, 
 
 111 Ind. 587.1-3, 30-32, 39 
 City & S. R. Co. of Savannah v. 
 
 Brauss, 70 Ga. 368 186 
 
 City & S. R. Co. V. Findley, 76 Ga. 
 
 311 52 
 
 City of Alexandria, The, 17 Fed. 
 
 Rep. 390 67& 
 
 City of Brussels, The, 6 Ben. 370 
 
 610.612
 
 XXVI 
 
 TA15LE OF CASES. 
 
 City of Hartford, The, 97 U. S. 
 
 323, 24 L. ed. 930 675 
 
 Citv of Salem, The, 3 L. R. A. 380, 
 
 2 luters. Com. Rep. 418, 
 
 37 Fed. Rep. 846, 13 
 
 Sawy. 604.297. 300. 301,448 
 
 The, 4L. R. A. 135, 38 Fed. 
 
 Rep. 763 303 
 
 Civilita, The, 103 U. S. 699, 26 L. 
 
 ed 599 675 
 
 Civil Rights Bill, 1 Hughes,' 5'4Y. 
 
 547. 234 
 
 Clapp D. Hudson River R. Co. 19 
 
 Barb. 461.. 761 
 
 ». Minneapolis & St. L. R. Co. 
 
 36 Minn. 6 733 
 
 v. Stranlou, 20 La. Ann. 465 3 
 Clark V. Barnwell. 53 U. S. 13 
 
 How. 353, 13 L. ed. 985 296 
 T. Harrington. 41 N. H. 51.24, 218 
 
 T. Burns, 118 Mass. 275 
 
 553,557, 559, 583 
 
 v. Eisrhth Ave. R. Co. 36 N. . 
 
 Y. 135.. 409 
 
 V. Union Ferry Co. 35 N. Y. 
 
 485 3 
 
 V. Wilminsrton & W. R. Co. 
 
 91 N. C. 506- 187 
 
 Clarke v. Gray, 6 East, 564 553 
 
 «. ]Mathewson, 37 U. S. 13 
 
 Pet. 164, 9L. ed. 1041. 609 
 «. Midland R. Co. 43 L. T. 
 
 N. S. 381.. 103 
 
 Clatsop Chief, The, 8 Fed. Rep. 
 
 767 307 
 
 Clay v. Central R. & Bkg. Co. 84 
 
 Ga. 345 637 
 
 Claybrook v. Hannibal & St. J. R. 
 
 Co. 19 Mo. App. 432... 533 
 Cleveland v. New Jersey S. B. Co. 
 68 N. Y. 306. 125 N. Y. 
 
 299... 10, 74, 109 
 
 Cleveland & P. R. Co. v. Rowan, 66 
 
 Pa. 399 681 
 
 Cleveland, C. & C. R. Co. v. Bar- 
 tram, 11 Ohio St. 457.. 356 
 t. Crawford, 24 Ohio St. 638 380 
 Cleveland, C. C. & I. R. Co. v. 
 Newell, 104 Ind. 264, 54 
 Am. Rep. 313.26, 63. 64, 694 
 v. Walrath, 38 Ohio St. 461. 699 
 (Cleveland, P. »& A. R. Co. v. Cur- 
 ran, 19 Ohio St. 1 
 
 7. 74, 273, 381 
 
 ClcvelandjR. M. Co. v. Corrigan, 
 3 L. It. A. 385, 46 Ohio 
 
 St. 283 622, 729 
 
 Clot worthy i\ Hannibal &, St. J. R. 
 
 Co. 80 Mo. 320, 323 
 
 394. 413 
 
 Clussman v. Long Island R. Co. 9 
 Hun, 618, affd 73 N. Y. 
 
 606 ..13, 123. 127, 157 
 
 Coast Line R. Co. v. Boston, 83 
 
 Ga. 387 34, 36 
 
 Cobb «. Abbot, 14 Pick. 289. 528 
 
 Cocheron t\ North Shore S. I. Ferry 
 
 Co. 56 N. Y. 656 109 
 
 Cockle V. London &, S. E. R. Co. 7 
 C. P. 321, 41 L. J. C. P. 
 140, L. R. 5C. P. 457-- 
 
 139, 140 
 
 Coddington v. Brooklyn C. R. Co. 
 
 102 N. Y. 66 665 
 
 Cody V. Central Pac. R. Co. 4 
 
 Sawy. 114 521 
 
 Coger v. Northwestern & N. Pack- 
 et Co. 37 Iowa, 145 159 
 
 Coggins V. Chicago & A. R. Co. 18 
 
 111. App. 6-20.. 373 
 
 Coggs 1). Bernard, 3 Ld. Raym. 909 73 
 Cohen v. Southeastern R. Co. L. 
 R. 1 Exch. Div. 317, L, 
 R. 3 Exch. Div. 253, 46 
 
 L. J. Exch. 418 555, 574 
 
 Cole fi. Goodwin, 19 Wend. 351 
 
 516,553. 584, 586 
 
 V. Rowen (Mich.) 13 L. R. A. 
 
 848.. 114 
 
 Colegrove v. Harlem & N. H. R. 
 
 Co. 6Dner, 434 399 
 
 v. New York & N. H. R. Co. 
 6 Duer, 383, 20 N. Y. 
 
 492 409, 425, 744 
 
 Coleman v. Georgia R. & Bkg. Co. 
 
 84 Ga. 1 14 
 
 V. Second Ave. R. Co. 114 N. 
 
 Y. 609 45 
 
 Collett V. London & N. W. R. Co. 
 16 Q. B. 984, 20 L. J. Q. 
 
 B. N. S. 411 8, 20, 103 
 
 Collins V. Boston .t M. R. Co. 10 
 
 Cush. 506 560, 568 
 
 v. Davidson, 19 Fed. Rep. 
 
 83 416, 417 
 
 «. East Tennessee & V. R. 
 
 Co. 9 Heisk. 841 616 
 
 V. South Boston H. R. Co. 
 
 143 Mass. 301, 314 
 
 729, 732, 739 
 
 «. Toledo, A. A. & N. M. R. 
 
 Co. 80 Mich. 390.... 93, 101 
 Colorado C. R. Co. v. Holmes, 5 
 
 Colo. 197 669 
 
 Colorado M. R. Co. v. O'Brien, 16 
 
 Colo. 319. 756 
 
 Columbia, The, 37 Fed. Rep. 704. 610 
 
 The, 39 Fed. Rep. 617 305 
 
 Columbia & G. R. Co. «. Gibbes, 
 
 24 S. V. 60. 485
 
 TABLE OF CASES. 
 
 XXV n 
 
 Columbia & P. S. U. Co. v. Haw- 
 thorne, 144 U. S.20:i, 36 
 
 L. ed. 405 725 
 
 v. Hawlhorue, 3 Wash. Ter. 
 
 353 757 
 
 Columbus & I. C. R. Co. v. Farrell, 
 
 31 Ind. 408 96, 139, 140 
 
 Columbus C. & I. Cent. R. Co. «. 
 
 Powell, 40 Ind. 37 ...6, 130 
 Colwell V. Manhattan R. Co. 57 
 
 Hun, 453 132, 400 
 
 Comer v. Consolidated C. & M. Co. 
 
 34 W. Va. 533. 092 
 
 Comly V. Pennsylvania R. Co. (Pa.) 
 
 11 Cent. Rep. 206.".... 386 
 Commerce, The, 66 U. S. 1 Black, 
 
 574, 17 L. ed. 107 297 
 
 Com. V. Aii,^er, 7 Cush. 53 438 
 
 i\ Boston & A. R. Co. 121 
 
 Mass. 36 620 
 
 V. Boston & M. R. Co. 129 
 Mass. 500, 37 Am. Rep. 
 
 382, n. 416 
 
 V. In'ox. Liquors, 115 Mass. 
 153, aff'd 97 U. S. 659, 
 
 24 L. ed. 1036 438, 439 
 
 V. Eastern R. Co. 5 Gray, 
 
 473 -. 620, 690 
 
 V. Fox, 7 Gray, 585 751 
 
 V. Green, 17 Mass. 515, 540 649 
 V. Louisville & N. R. Co. 80 
 
 Ky. 291 532 
 
 V. Metropolitan R. Co. 107 
 
 Mass. 236. 616 
 
 V. Penusvlvaoia R. Co. 117 
 
 Pa. 637 ....545, 548 
 
 v. Power, 7 Met. 596, 41 
 
 Am. Dec. 465 115, 
 
 160, 347, 355, 375, 501, 502 
 «. Sturtlvant, 117 Mass. 122 721 
 «. Vermont & M. R. Co. 108 
 Mass. 7, 12-6,7,17,268,279 
 Condict V. Grand Trunk R. Co. 
 
 54 N. Y. 500 585 
 
 Conger v. St. Paul. M. & M. R. 
 
 Co. 45 Minn. 207 .-337, 349 
 Connecticut, The, 103 U. S. 710, 
 
 26 L. ed. 467 675 
 
 Connecticut Mut. L. Ins. Co. v. 
 New York & N. H. R. 
 Co. 25 Conn. 265... 617, 618 
 Connell v. Mobile & O. R. Co. 
 
 (Miss.) Feb. 17, 1890... 258 
 Connelly v. New York C. & H. R. 
 
 R. Co. 88 N. Y. 346... 689 
 Conner v. Citizens St. R. Co. 104 
 
 Ind. 62 41, 42 
 
 Conners v. Burlington, C. R. & N. 
 R. Co. 71 Iowa, 490... 
 624. 656 
 
 Connolly v. Ross, 11 Fed. Rep. 342 675 
 V. Warren, 106 Mass. 146, 8 
 
 Am. Rep. 3(H) 568, 570 
 
 Connor v. Vicksburg & M. R. Co. 
 2 Inters. Com. Rep. 177, 
 1 L. R. A. 331, 36 Fed. 
 
 Rep. 273 479 
 
 Conolly V. Crescent C. R. Co. 3 L. 
 R. A. 133,41 La. Ann. 
 
 157 35, 226 
 
 Continental, The, 81 U. S. 14 Wall. 
 
 345, 20 L. ed. 801 675 
 
 Cook V. Chicago, R. I. & P. R. Co. 
 
 (Iowa) 9 L. R. A. 764.. 502 
 
 «. Ellis, 6 Hill, 466 608 
 
 V. Gourdin, 2 Nott. & McC. 
 
 22 _ 283 
 
 V. Houston Direct Nav. Co. 
 
 76 Tex. 353 2, 18, 734 
 
 V. Parham, 24 Ala. 21 417 
 
 V. Pennsylvania, 97 U. S. 
 
 566, 24 L. ed. 1015 442 
 
 Cooley ^. Port Wardens, 53 U. S. 
 
 12 How. 299, 13 L. ed. 
 996. 439, 541 
 
 Cooper V. Lake Shore & M. S. R. 
 
 Co. 66 Mich. 261 626 
 
 v. London, B. & S. C. R. Co. 
 
 L. R. 4 Exch. Div. 88. 
 
 170, 509 
 
 Coosa River S. B. Co. v. Barclay, 
 
 30 Ala. 128 68 
 
 Copeley ®. London & N. W. R. Co. 
 
 13 Q. B. N. S. 818 .--. 571 
 Copley V. New Haven & N. R. Co. 
 
 136 Mass. 6. 621 
 
 Coppin V. Braithwaite, 8 Jur. 875. 163 
 Corbett v. Twenty-third St, R. Co. 
 
 42 Hun, 587. 
 
 338, 341, 352, 612 
 
 Corby d. Hill, 4 C. B. N. S. 556.95. 121 
 Corcoran v. Boston & A. R. Co. 
 
 133Ma5s. 507 685 
 
 V. Peekskill, 108 N. Y. 151. 726 
 V. New York C. & H. R. R. 
 
 Co. 75 N. Y. 332 685 
 
 Corlin v. West End St. R. Co. 154 
 
 Mass. 197 41 
 
 Corliss v. Worcester, N. & R. R. 
 
 Co. 63 N. H. 404. 640 
 
 Cornman v. Eastern Counties R. 
 
 Co. 4 Ilurlst. & N. 781 
 
 93,99, 128, 384 
 
 Cornwall v. Sullivan R. Co. 28 N. 
 
 H. 161, 169 24, 48, 216 
 
 Corson v. Maryland, 1 Inters. Com. 
 
 Rep. 50, 120 U. S. 502, 
 
 30 L. ed. 699 443 
 
 Cosgrove v Ogden. 49 N. Y. 
 
 255. 729
 
 XXVUl 
 
 TABLE OF CASES. 
 
 Coslikyan v. Rome, W. «& O. R. 
 
 Co. 58 Hun, 590 
 
 58 238 399 
 Couch V. Steef.'s ElVife bT. 402...' 291 
 Coulter V. Am. Merchants Union 
 
 Exch. Co. 56 N. Y. 585 
 
 416,429 
 
 Council V. Western & A. R. Co. 1 
 
 Inters. Com. Rep. 292, 
 
 355, 638. 234 
 
 Covington T. Co. v. Kelley, 36 
 
 Ohio St. 86. 409 
 
 Coward «. East Tenn., V. & G. R. 
 
 Co. 16 Lea, 225 582 
 
 Cowden v. Wriglit, 24 Wend. 429 606 
 Coyne «. Manhattan R. Co. 42 N. 
 
 Y. S. R. 617 722 
 
 Crafter v. Metropolitan R. Co. L. 
 
 R. 1 C. P. 300.. ..94, 95,99 
 Crafts V. Boston, 109 ]\Iass. 519... 685 
 Craiehead i). Brooklyn C. R. Co. 
 
 123K Y. 391 37,402 
 
 Craker v. Chicago & N. W. R. Co. 
 
 36 Wis. 657 168 
 
 219. 343, 347, 348, 358, 362 
 Crandall v. Nevada, 73 U. S. 6 
 
 Wall. 42. 18 L. ed. 746 541 
 
 Cratty v. Bangor, 57 Me. 423 531 
 
 Cravens v. Rodgers, 101 Mo. 247, 
 
 42 Am. & Eng. R. 
 
 Cas. 656.. 117, 119 
 
 Crawford v. Cincinnati, H. & D. 
 
 R. Co. 26 Ohio St. 580. 184 
 Creed v. Hartraann. 29 N. Y. 591 425 
 V. Pennsylvania R. Co. 86 
 
 Pa. 139... 252, 255, 257, 
 
 279, 375, 376, 399, 406, 690 
 Cregin «. Brooklyn C. R. Co. 75 
 
 N.Y. 192 605, 607 
 
 Crescent Twp. v. Anderson, 114 
 
 Pa. 643 740 
 
 Cresson v. Philadelphia & R. R.Co. 
 
 llPhila. 597.. 
 
 170,184,197, 509 
 
 Crews V. Richmond & D. R. Co. 1 
 
 Inters. Com. Rep. 703.. 
 
 490. 501, 502 
 
 Crine v. East Tenn.. V. & G. R.Co. 
 
 84Ga. 651 251 
 
 Crissey v. Hestonville, M. &F. P. 
 
 R. Co. 75 Pa. 83.64, 728. 733 
 Crocker v. New London, W. & P. 
 
 H. Co. 24 Conn. 249 
 
 161, 162, 168, 172, 365 
 
 Croft V. Baliimore& O. R. Co. 1 
 
 McArth. 492 589 
 
 Crofts 0. Waierhouse, 3 Bing. 319, 
 
 321 
 
 22, 26. 32, 55, 73, 75, 77, 414 
 
 Crofts «.Waterhouse, 11 Moore, 133 215 
 Crogan v. New York & H. R. Co. 
 
 18Alb. L.J. 70 63 
 
 Crosby ». Fitch, 12 Conn. 410 296 
 
 Cross V. Lake Shore tfe M. S. R.Co. 
 
 69 Mich. 363 95, 96, 103 
 
 Crouch V. Charleston <s S. R. Co. 
 
 21 S. C. 495.. 692 
 
 Crowley v. Panama R. Co. 30 Barb. 
 
 99... 648, 644, 647 
 
 Crozier v. Boston, N. Y. «& N. S. 
 
 B. Co. 43 How. Pr. 466 241 
 V. Vauderpool, 16 B. Mon. 
 
 Cuddy V. Horn^ 46 Mich. 596*. .... 743 
 Cumberland V. R. Co. «. Hughes. 
 
 11 Pa. 141 50 
 
 «. Maugans, 61 Md. 53.. 43, 394 
 Cuming v. Brooklyn C. R. Co. 109 
 
 N. Y. 95 606 
 
 Cummings v. Bird, 115 Mass. 346. 617 
 Cunningham v. Hall, 4 Allen, 268 52 
 V. Seattle E. R. & P. Co. 
 
 (Wash.) Jau. 12, 1892.. 335 
 V. Union P. R. Co. 4 Utah, 
 
 206 231 
 
 CuTlv. Chicago, R. I. & P. R.Co. 
 
 68 Iowa, 617 187 
 
 V. Chicago, R. I. & P. R. 
 Co. (Iowa) 11 Am. & 
 
 Eng. R. Cas. 85 193 
 
 Curtain v. Somerset, 12 L. R. A. 
 
 322, 140 Pa. 70 55 
 
 Curtis V. Avon, G. & Mt. M. R. 
 
 Co. 49 Barb. 148 584 
 
 V. Delaware, L. & W. R. Co. 
 
 74 N.Y. 116 554. 591 
 
 V. Rochester & S. R. Co. 18 
 
 N. Y. 534, 20 Barb. 282. 
 
 75 Am. Dec. 258 
 
 24, 54, 58, 691, 694 
 
 Cusick «. Adams, 115 N. Y. 55... 664 
 Cutler V. Bonney, 30 Mich. 259... 558 
 V. Wright, 22 N. Y. 472... 645 
 Cutting V. Florida R. & Nav. Co.30 
 
 Fed. Rep. 663 501 
 
 D. 
 
 D. R. Martin, The, 11 Blatclif.283 160 
 Dahlberg v. Mmnesota St. R. Co. 
 
 32 Minn. 404 405 
 
 Dale V. Delaware, h. & W. R. Co. 
 
 73 N. Y. 468 405 
 
 Dallas & W.Il. Co. v. Spicker, 61 
 
 Tex. 427 607, 640. 692 
 
 V. Spikcr. 59 Tex. 435 629^ 
 
 Damon v. Scituale, 119 Mass. 66.. 539
 
 TABLE OF CASES. 
 
 XXIX 
 
 Damont v. New Orleans & C. K. 
 
 Co. 9 La. Ann. 441 155 
 
 Dan, The. 40 Fed. Rep. 691 3 
 
 Dana v. New York C. & H. R. R. 
 
 Co. 50 How. Pr. 438... 26G 
 Daniel «. Metropolitan R. Co. L. 
 
 R. 3C. P. 216 59, 697 
 
 Daniel Ball, The v. United States. 
 77 U. S. 10 Wall. 557, 
 
 19L. ed. 999 297, 441 
 
 Daniels v. Union P. R. Co. 6 Utah, 
 
 357 758 
 
 Danville, L. & N.*t'"Co.V. Stew- 
 art, 2 Met. (Ky.) 119... 742 
 Da Ponte v. New Orleans T. Co. 
 
 42 La. Ann. 696 586 
 
 Davenport v. Alabama & C. R. Co. 
 
 2 Woods, 519 596 
 
 ». Brooklyn C. R. Co. 100 
 
 N. Y. 632 41 
 
 T. Ruckman, 37 N. Y. 568. 425 
 Davey v. Chamberlain, 4 Esp. 229 739 
 «. London & S. W. R. Co. 
 
 L. R. 12 Q. B. Div. 70. 140 
 Davidson v. Davidson, 46 Minn. 
 
 117 322 
 
 1). Graham, 2 Ohio St. 135. 
 
 267, 516 
 
 Davies®. Mann, lOMees. & W. 546 380 
 
 Davis t). Button, 78Cal. 247 1, 2 
 
 v. Cayuga & S. R. Co. 10 
 
 How. Pr. 332 568 
 
 V. Chicago, R. I. & P. R. Co. 
 
 (Iowa), Junel, 1891... 575 
 ®. Chicago, St. P. M. & O. 
 
 R. Co. 45 Fed. Rep. 543 17 
 V. Gray, 83 U. S. 16 Wall. 
 
 203. 21 L. ed. 447.. 486, 599 
 T. Gnarnieri. 45 Ohio St. 
 
 470. 539 
 
 i\ Houren, 6 Rob. (La.) 255 3 
 «. Kansas C, St. J. & C. B. 
 
 R. Co. 53 Mo. 317 
 
 - 195, 196, 232 
 
 «. London & B. R. Co. 2 
 
 Fost. *&F. 588 97 
 
 v. Michigan S. &N. I. R.Co. 
 
 22 111. 278 
 
 570, 588, 591, 745 
 
 «. New York & N. E. R. Co. 
 143 Mass. 301, 58 Am. 
 
 Rep. 138. 616 
 
 617, 623, 643, 644, 645, 647 
 
 T. State, 68 Ala. 58 465 
 
 Dawson v. Chicago «& A. R. Co. 79 
 
 Mo. 296 272 
 
 V. Louisville & N. R. Co. 
 (Ky.) 11 Am. & Eng.R. 
 Cas. 134 138 
 
 Dawson v. Manchester, 8. & L. R. 
 
 Co. 5L. T. N. S. 682.- 
 
 691.694, 695 
 
 Day V. Brooklyn C. R. Co. 12 Hun, 
 
 435. 76 N. Y. 593 43 
 
 V. Owen, 5 Mich. 520 
 
 ..227. 2'-54. 283, 347 
 
 Daylesford, The, 30 Fed. Rep. 
 
 633 676 
 
 Dealey v. Muller, 149 Mass. 432 .. 728 
 Dean v. Pennsylvania R. Co. 6 L. 
 
 R. A. 143, 129 Pa. 514, 
 
 39 Am. & Eng. R. Cas. 
 
 697 740 
 
 V. St. Paul Union D. Co. 5 
 
 L. R. A. 442, 41 Minn. 
 
 360 .- 344 
 
 Deans v. Wilmington & W. R. Co. 
 
 107 N. C. 686 380 
 
 Debevoise v. New Y'ork, L. E. & 
 
 W. R. Co 98 N. Y. 377, 
 
 25 Am. & Eng. R. Cas. 
 
 335. 7i 644, 645, 650 
 
 Decker v. Baltimore & N. Y". R. 
 
 Co. 1 Inters. Com. Rep. 
 
 434, 30 Fed. Rep. 723.. 
 
 443, 481 
 
 DeKay v. Chicago, M. &St. P. R. 
 Co. 4 L. R. A. 632, 41 
 
 Minn. 178. ...12, 131 
 
 Delamatyr v. Milwaukee & P. du 
 C. R. Co. 24 Wis. 586. 
 
 138, 415 
 
 Deland v. Lowell, 3 Allen, 407 . .. 539 
 Delaware v. Milwaukee & St. P. 
 
 R. Co. 33 Wis. 67 103 
 
 Delaware, L. & W. R. Co. v. Cen- 
 tral S. & T. Co. 45 N. J. 
 
 Eq. 50, 60 468 
 
 V. Napheys, 90 Pa. 135 700 
 
 i\ Toll'ey, 38 N. J. L. 527.. 
 
 066, 692 
 
 V. Trautwein, 7 L. R. A. 
 
 435, 52 N. J. L. 169 .. 
 19,101, 102, 541 
 
 Delie v. Chicago & N. W. R. Co. 
 
 51 Wis. 400 752 
 
 De Lucas e. New Orleans & C. R. 
 Co. 38 La. Ann. 930... 
 197, 520 
 
 Del Valle r. The Richmond, 27 
 
 La. Ann. 90 559 
 
 Denaby Main Colliery Co. v. Man- 
 chester, S. & L. R. Co. 
 L. R. 11 App. Cas. 97. 507 
 
 Dennick v. Central R. Co. of New 
 Jersey, 103 U. S. 11, 26 
 
 L. ed! 439 
 
 602, 603, 650, 652, 653
 
 XXX 
 
 TABLE OF CASES. 
 
 Denny v. New York Cent. & H. R. 
 
 R. Co. 5 Daly, 50 -.522, 523 
 Denslow v. Fowler, 2 Cow. 592, n. 712 
 Denton v. Great N. R. Co. 5 El. & 
 
 Bl. 800 227, 228, 230 
 
 t)enver & R. G. R. Co. v. Harris, 
 122 U. S. 597, oO L. ed. 
 
 1146 671 
 
 Denver, S. P. & P. R. Co. v. 
 
 Frame, 6 Colo. 385 745 
 
 V. Roberts, 6 Colo. 3o3 555 
 
 V. Woodward, 4 Colo. 1 695 
 
 Derrickson v. Smith, 27 N. J. L. 
 
 166 .- 644, 649 
 
 Derwort v. Loomer, 21 Conn. 245. 
 
 ....22, 23, 53, 215. 218, 515 
 De Soncey v. Manhattan R. Co. 89 
 
 N. Y. S. R. 79 401, 691 
 
 Detroit & ]M. R. Co. v. Van Stein- 
 burg, 17 Mich. 99 721 
 
 Devanbagh v. Devanbagh, 5 Paige, 
 
 554, 3 L. ed. 827.. .711, 712 
 Devino v. Central Vt. R. Co. 63 
 
 Vt. 98 608 
 
 Dewald «. Kansas C, Ft. S. & G. 
 
 R. Co. 44 Kan. 586.879, 395 
 Dewire v. Boston & M. R. Co. 2 L. 
 R.A.166, 148 Mass. 343 
 
 10. 233, 399 
 
 Dexter v. Hall, 82 U. S. 15 Wall. 
 
 9. 26, 21 L. ed. 73, 79.. 721 
 V. Syracuse, B. & N. Y. R. 
 Co. 42 N. Y. 326, 1 Am. 
 
 Rep. 527 570 
 
 Deyo V. New i'ork C. R. Co. 34 N. 
 
 Y. 9.-.- 24, 27, 54, 218, 691 
 Diamond State Iron Works v. Giles 
 
 (Pa.) 9 Cent. Rep. 577.. 664 
 
 Dibble v. Brown, 12 Ga. 217 552 
 
 V. Morris, 26 Conn. 416 608 
 
 Dice v. Williamette T. & L. Co. 
 
 8 Or. 60. 13, 157 
 
 Dickerman v. St. Paul Union D. 
 
 Co. 44 Minn. 433... 168, 169 
 Dickson v. Hollister, 123 Pa. 
 
 421 747 
 
 Diehl V. Woodruff (Ind.) 10 Cent. 
 
 L. J. 6G -- 241 
 
 Dietrich v. Northampton, 138 
 
 Mass. 14 639 
 
 T. Pennsylvania R. Co. 71 
 
 Pa. 432 521 
 
 Dill V. South Carolina R. Co. 7 
 
 Rich, L. 158 588 
 
 Dilluye v. New York C. R. Co. 56 
 
 Barb. 30 103, 260 
 
 Dillinghum v. Anthony, 3 L. R. A. 
 
 634, 73Tox. 47 
 
 179,328, 341, 343 
 
 Dimmey v. Wheeling & E. G. R. 
 
 Co. 27 W. Va. 32 643 
 
 Dimmitt v. Hannibal & St. J. R. 
 Co. 40 Mo. App. 654.. 
 
 328, 418, 691, 695 
 
 Dininnyt). Fay, 38 Barb. 18 613 
 
 V. New York & N. H. R. 
 
 Co. 49N. Y. 546... 584, 585 
 Dintruff v. Rochester C. & B. R. 
 
 Co. 82 N. Y. S. R. 7:!0. 31 
 Ditchett ». Spuyten Duyvil & P. 
 
 M. R. Co. 67 N. Y. 425. 547 
 Dixon V. Bell, 5 Maule ^ S. i'd6.. 20 
 
 «. Bell, 1 Stark. 287 606 
 
 V. Brooklyn C. & N. R. Co. 
 
 lOON. Y. 170 42 
 
 V. Metropolitan Bo-^rd of 
 Works, L. R. 7 C. B. 
 
 Div. 4iS 68 
 
 V. Richelieu Nav. Co. 15 
 Ont. App. Rep. 647, 39 
 Am. & Eng. R Cfi«, 
 
 425 551, 565, 572 
 
 Dlabola v. Manhattan R. Co. 29 N. 
 
 Y. S. R. 149 2, 48, 217 
 
 Dobeicki v. Sharp, 88 N. Y. 203.. 97 
 Dodge V. Boston & B. SS. Co. 2 
 L. R. A. 83, 148 Mass. 
 
 207 ...2, 10, 
 
 13. 14, 60, 73, 157, 219, 379 
 
 Dole V. Johnson, 50 N. H. 452 721 
 
 Donaldson v. Mississippi & M. R. 
 Co. 18 Iowa, 289, 87 
 
 Am. Dec. 391 656,684 
 
 Donohue v. St. Louis, I. M. & S. 
 
 R. Co. 91 Mo. 857 380 
 
 Donovan v. Gay, 97 Mo. 440 309 
 
 Doolin «. Ward, 6 Johns. 194 525 
 
 Dorman v. Ames, 12 Minn. 451... 68 
 Dorr V. New Jersey S. Nav. Co. 11 
 
 N. Y. 485 273 
 
 Doss V. Missouri, K. & T. R. Co. 
 59 Mo. 27,21 Am. Rep. 
 
 371 --7,95 
 
 Dougan v. Champlain T. Co. 56 
 
 N.Y.I .109,613 
 
 Dougherty «?. Chicago, B. & Q. R. 
 
 Co. 86 111. 467 155,394 
 
 V. Missouri R. Co. 81 Mo. 
 
 330 30,31 
 
 e. Missouri R. Co. 97 Mo. 
 
 647 31, 43, 52, 756 
 
 Dow V. Beidelman, 49 Ark. 325 .- 483 
 «. Beidelman, 2 Inters. Com. 
 Hep. 56, 125 U. S. 680, 
 
 31 L. ed. 840 
 
 231, 483, 434, 436, 463, 472 
 Downey v. Chesapeake & O. R. 
 
 Co. 28 W. Va. 732 .... 411
 
 TABLE OF CASES. 
 
 XXXi 
 
 Downs V. New York & N. H. R. 
 
 Co. 36 Conn. 287 
 
 184. 199, 201, 202, 509 
 
 Doyle V. Continental Ins. Co. 94 U. 
 
 S. 544, 24 L. ed. 153... 480 
 
 V. Riser, 6 Ind. 243 570 
 
 Drake v. Penn. R. Co. 137 Pa. 353 
 
 879, 386 
 
 Drew V. Central P. R. Co. 51 Cal. 
 
 425 533 
 
 D. Sixth Ave. R. Co. 26 N. 
 
 Y. 49. 329, 606 
 
 Driess v. Frederich, 73 Tex. 460 
 
 746, 747 
 
 Drinkwater «. Portland M. R. Co. 
 
 18 Me. 37. 644 
 
 Drummond v. Southern P. Co. 
 
 (Utah) 9 Ry. & Corp. L. 
 
 J. 371... 518 
 
 Dublin, W. & W. K. Co. v. Slat- 
 
 tery, L. R, 3 App. Cas. 
 
 1155, 24 Moak, Eng. 
 
 Rep. 713, 39 L. T. N. S. 
 
 365-. 103, 140, 413. 416 
 
 Dubois V. Kingston, 103 N. Y. 
 
 219 388 
 
 Dudley v. Camden & P. F. Co. 
 
 42N. J. L. 25 2 
 
 V. Smith, 1 Campb. 167... 27, 80 
 V. Westcolt, 44 N. Y. S. R. 
 
 882, rev'g 40 N. Y. S. 
 
 R. 506 735 
 
 Duflf V. Great Northern R, Co. L. 
 
 R. 4Ir. 178 .- 278 
 
 Duflfy V. Missouri P. R. Co. 19 Mo. 
 
 App. 380 729 
 
 V. Thompson, 4E. D. Smith, 
 
 478 563 
 
 Dugan V. State (Ind.) 9 L. R. A. 
 
 321 541 
 
 Duke V. Great W. R. Co. 14 U. C. 
 
 Q. B. 377 170, 183, 184 
 
 Du Laurans v. First Div. St. Paul 
 
 &P. R. Co. 15 Minn. 49 
 
 168, 169,174,181, 219 
 
 Doling V. Philadelphia, W. & B. 
 
 R. Co. 66 Md. 120 178 
 
 Dunlap ti. International S. B. Co. 
 
 98 Mass. 371. 563, 570 
 
 V. Northern P. R. Co. 35 
 
 Minn. 203 253 
 
 V. The Reliance, 2 Fed. Rep. 
 
 249 698 
 
 V. Wagner, 85 Ind. 529, 44 
 
 Am. Rep. 42 670, 671 
 
 Dunn V. Grand Trunk R. Co. 58 
 
 Me. 187 49,53,316, 352 
 
 V. New Haven S. B. Co. 58 
 
 Hun, 461 243, 563 
 
 Dunn V. Pennsvlvania R. Co. (Pa.) 
 
 47 Phila. Leg. Int. 524. 
 
 129, 148, 153, 401 
 
 Dunphy v. Erie R. Co. 10 Jones & 
 
 S. 128 523 
 
 Dunsbach v. lioUister, 49 Hun, 352 68 
 
 Dunseth v. Wade, 3 111. 285 297 
 
 Durkin v. Sharp, 88 N. Y. 225.596, 597 
 Durrell v. Johnston. 31 Neb. 796. 692 
 Dwinelle v. New York C. & H. R. 
 
 R. Co. 45 Hun, 139, 8 
 
 L. R. A. 234, 130 N. Y. 
 
 117 3, 11. 
 
 341, 340, 346, 348. 360, 863 
 Dye V. Virginia M. R. Co. (D. C.) 
 
 19Wasli.L.Rep.369, 144,328 
 Dyer v. Erie R. Co. 71 N. Y. 228. 
 
 418, 742 
 
 E. 
 
 Eads V. Metropolitan R. Co. 43 
 
 Mo. App. 536 
 
 161, 341, 343, 362 
 
 Eagle P. Co. 'V. Defries, 94 111. 598, 
 
 34 Am. Rep. 245 694 
 
 East India Co. v. Pullen, 1 Strange, 
 
 690. 2 
 
 East Line & R. R. Co. v. Lee, 71 
 
 Te.x. 588 545, 546 
 
 V. Rushing, 69 Tex. 306 ... 331 
 Easton«). Waters^Tex. App.) April 
 
 12. 1890 181 
 
 East Saginaw C. R. Co. v. Bohn, 
 
 27 Mich. 503 252, 728 
 
 EastTenn., V. & G. R.Co. v. Hull, 
 
 88Tenn. 33 666 
 
 V. King, 81 Ala. 177. 658 
 
 V. Maloy, 77 Iowa. 237 636 
 
 V. Markens (Ga.) 14 L. R. A. 
 
 281 741, 742 
 
 V. Mitchell, 11 Heisk. 400.. 700 
 V. Watson (Ala.) Nov. 12, 
 
 1891 102 
 
 Eastwood «. Kennedy, 44 Md. 563 631 
 Eaton V. Boston & L. R. Co. 11 
 
 Allen, 505 19. 54, 549 
 
 V. Delaware, L. & W. R. Co. 
 
 57 N. Y. 382. 
 
 15,16,258,256, 257 
 
 Eckerd v. Chicago *fe N. W. R. Co. 
 
 70 Iowa, 353 390 
 
 Ecliff V. Wabash, St. L. & P. R. 
 
 Co. 64 Mich. 196 729 
 
 Eddy V. Elliot (Tex.) Nov. 29, 1890 
 
 186, 203 
 
 «. Harris, 78 Tex. 661 511 
 
 V. Rider, 79 Tex. 53... .160, 257
 
 j:xxn 
 
 TAliLE Oh' CASKS. 
 
 Eddy T. Searcv (Tex.) Nov. 25, 
 
 1890 511 
 
 Eddystone, The, 'S6 Fed. Rep. 925 675 
 Eden i: Lexington &, F. R. Co. 14 
 
 B. Men. 204. -.616, 617, 618 
 Edgars, Cosfelio, 14 S. C. 20.604, 639 
 Edgerton v. New York & H. R. 
 
 Co. 35 Barb. 193, 389, 
 
 39N. Y. 227 ..24, 694 
 
 Edwards v. Lake Shore & M. S. R. 
 
 Co. 81 Mich. 364. -.512, 518 
 V. Lord, 49 Me. 279 
 
 26,53,59,216, 218 
 
 V. Midland R. Co. L. R. 6 
 
 Q. B. Div. 287 859 
 
 Elgan V. Berlishire Apartment Asso. 
 
 31 N. Y. S. R. 545--.- 316 
 Ehrgott V. New York, 96 N. Y. 264 
 
 673, 752 
 
 Ehrman v. Brooklyn C. R. Co. 
 
 38 N. Y.S. R. 990-..- 753 
 a. Teutonia Ins. Co. 1 Mc- 
 
 Crary, 123, 1 Fed. Rep. 
 
 471 609 
 
 Bidt». Cutler, 127 Mass. 522 704 
 
 Elbin V. Wilson, 33 Md. 135 608 
 
 Elders. Bogardus,Hlll& D. S.116. 613 
 Ella B., Tlie 19 Fed. Rep. 792... 417 
 Eilet T. St. Louis, K. C. & N. R. 
 
 Co. 76 Mo. 518. 71 
 
 Elliott V. New York C. & H. R. R. 
 
 Co. 53 Hun, 78, 33 N. 
 
 Y. S. R. 861 
 
 - 197, 265-277 
 
 V. Pray, 10 Allen, 378 
 
 95, 321,385 
 
 V. Western & A. R. Co. 58 
 
 Ga. 454 16, 366 
 
 Ellis V. New York, L. E. & W. R. 
 
 Co. 95 N. Y. 546. 62 
 
 V. Turner, 8 T. R. 531-533. 337 
 Ellsworth V. Potter, 41 Vt. 685... 608 
 Elmore v. Sands, 54 N. Y. 512 
 
 227,283,515, 521 
 
 Elvin Ilarbeck, The, 2 Blatchf. 
 
 336 560 
 
 Elwell V. Chicago & N. W. R. Co. 
 
 29 Fed. Rep. 57 624 
 
 V. Fabre, 52 Hun. 70 294 
 
 Ely V. St. Louis. K. C. & N. R. Co. 
 
 77 Mo. 34 726, 727 
 
 lOlyton Land Co. v. Mingea, 89 
 
 Ala. 521 740, 741 
 
 V. South ct N. Ala. R. Co. 
 
 (Ala.) Nov. 24, 1891... 50 
 Empire Trariwp. Co. v. Wamsutta 
 
 Oil Co. 63 Pa. 14 ..267, 268 
 Emporia v. SchmidJing, 33 Kan. 
 
 485 669, 670 
 
 Erigel T. Smith, 82 Mich. 1 380 
 
 England v. Boston & M. R. Co. 1.53 
 
 Mass. 490 139. 378, 392 
 
 English V. Delaware & H. Canal 
 
 Co. 66 N. Y. 454 
 
 188,208, 210, 371 
 
 Ensley R. Co. v. Chewing (Ala.) 
 
 June 11, 1891 126 
 
 Eppendorf «. Brooklyn C. & N. R. 
 
 Co. 69 N. Y. 195. 43 
 
 Epps V. Hinds, 27 Miss. 657. 559 
 
 Erickson v. St. Paul & D. R. Co. 
 
 (Minn.) 5 L. R. A. 786. 410 
 Erie & W. Transp. Co. v. Dater, 
 
 91 111.195... 516 
 
 Erie C. P. R. Co. v. Schuster, 113 
 
 Pa. 412. 733 
 
 Erie R. Co. v. Wilcox, 84 111. 239. 267 
 Ernst V. Hudson River R. Co. 24 
 
 How. Pr. 97, 35 N. Y. 
 
 28 413, 665 
 
 Erwin v. Davenport, 9 Heisk. 44. 
 
 •595 598 
 Escanaba & L.M.' T.^Ca^r." Chi-' 
 
 cago, 107 U. S. 679, 27 
 
 L. ed. 443 439, 448 
 
 Etherington v. Prospect Park «fe C. 
 
 I. R. Co. 88 N. Y. 641. 658 
 Eureka Springs R.Co. «.Timmons, 
 
 51 Ark. 459 549. 695 
 
 Evans v. Adams Exp. Co. (Ind.) 7 
 
 L. A 678 410 
 
 «. Memphis & C. R. Co. 56 
 
 Ala. 246 159, 177 
 
 v. St. Louis, I. M. & S. R. 
 
 Co. 11 Mo. App. 463 .. 521 
 Evansville & C. R. Co. v. Baum, 
 
 26 Ind. 70 344, 365 
 
 Evansville & I. R. Co. v. Gilmore, 
 
 1 Ind. App. 468 184 
 
 Evansville & T. H. R. Co. v. Mc- 
 
 Kee, 99 Ind. 519 130 
 
 Everett v. Chicago, R. I. & P. R. 
 
 Co. 69 Iowa, 15 181 
 
 Ewart V. Street, 2 Bail. L. 157, 162 68 
 Ewen V. Chicago & N. W. R. Co. 
 
 38 Wis. 614 656 
 
 Ewing V. Pittsburgh, C. C. & St. L. 
 
 R. Co. (Pa.) 14 L. R. A. 
 
 666, n. 417 
 
 V. Toledo Sav. Bank & T. 
 
 Co. 43 Ohio St. 31 643 
 
 Explorer, The, 20 Fed. Ren. 135.. 
 
 675, 676 
 
 F. 
 
 Fairbanks tJ. Kerr, 70 Pa. 89 669 
 
 Fairchild v. California Stage (/O. 
 
 13 Cal. 599.2, 28, 48, 72, 217
 
 TABLE OF CA8KS. 
 
 XXXIU 
 
 Fairfax v. New York Cent. & H. 
 
 R. R. Co, 5 Jones & S. 
 
 516, 8 Jones & S. 128. 
 
 67 N. Y. 11... 553. 560, 586 
 «. New York Cent. & H. R, 
 
 R. Co. 73 N. Y. 167. -- 
 
 553, 562 
 
 Fairmount & A. St. Pass. R. Co. v. 
 
 Stutler, 54 Pa. 375 138 
 
 Falkner v. Ohio &, M. R. Co. 55 
 
 Ind. 869 248 
 
 Farewell v. Grand Trunk R. Co. 
 
 15 U. C. C. P. 437 185 
 
 Fargo V. Stevens, 1 Inters. Cora. 
 
 Rep. 51, 121 U. S. 230, 
 
 30 L. ed. 888 441, 443 
 
 Farieh v. Reigle, 11 Gratt. 697, 63 
 
 Am. Dec. 666.2, 23, 24, 
 
 53, 77, 316, 217, 691. 694 
 Farley «. Philadelphia T. Co. 132 
 
 Pa. 58. -. 699 
 
 Farlow v. Kelly, 11 Am. &Eng. R. 
 
 Cas. 104 -. 403 
 
 T. Kelly, 108 U. S. 288. 27 
 
 L. ed. 726 ... 405 
 
 Farmers & M. Bnnk v. Champlain 
 
 Transp. Co. 23 Vt. 186. 516 
 Farnham v. Camden & A. R. Co. 
 
 55 Pa. 53. 62 267. 268 
 
 Farve r. Louisville & N. R. Co. 42 
 
 Fed. Rep. 441. 695 
 
 V. Louisville & N. R. Co. 
 
 (Ky.)13Ky. L. Rep. 116 405 
 Fay V. The New World, 1 Cal. 
 
 348 ..1, 283 
 
 Fearn v. West Jersey F. Co. 13 L. 
 
 R. A. 366, 143 Pa. 123. 
 
 108. 693 
 
 Federal Street & P. V. R. Co. v. 
 
 Gibson, 96 Pa. 83 697 
 
 Feeney v. Long Island R. Co. 5 L. 
 
 R. A. 544, 116 N. Y. 
 
 375... 605 
 
 Feibelman «. Packard, 109 U. S. 
 
 431, 27 L. ed. 984 600 
 
 Feige v. Michigan Cent. R. Co. 63 
 
 Mich. 1 583 
 
 Feinberg v. Delaware, L. & W. R. 
 
 Co. 52 N. J. L. 451.... 279 
 Feltal V. Middlesex R, Co. 109 
 
 Mass. 398 63, 531, 691 
 
 Fell T. Knight, 8 Mees. & W. 269. 160 
 Fenwick v. Bell, 1 Car. & K. 312. 721 
 Ferguson v. Wisconsin Cent. R. 
 
 Co. 63 Wis. 145. 3 
 
 Fernandez v. Sacramento City R. 
 
 Co. 52 Cal. 45.... 668 
 
 Ferrari e. Escambia Co. Bd. of 
 
 Health, 24 Fla. 390 294 
 
 Fick T. Chicago & N. W. R. Co. 
 
 68 Wis. 409 364 
 
 Filer v. New York C. R. Co. 49 N. 
 
 Y. 47, 59 N. Y. 351, 68 
 
 N. Y. 134 155, 415, 606 
 
 Files T. Boston & A. R. Co. 149 
 
 Mass. 304.. 16, 278, 279, 406 
 Fillebrown i\ Grand Trunk R. Co. 
 
 55 Me. 462 268 
 
 Filliter v. Phippard, 11 Q. B. 
 
 347. 622 
 
 Fink «. Albany & S. R. Co. 4 
 
 Lans. 147. 178 
 
 Finklestein v. New York C. & H. 
 
 R. R. Co. 41 Hun, 34.. 739 
 Finlay v. Cbiruey, L. R. 20 Q. B. 
 
 Div. 494 615 
 
 First Nat. Bank of Charlotte t\ 
 
 Morgan, 132 U. S. 141, 
 
 33 L. ed. 282. 601 
 
 Greenfield v. Marietta & C. 
 
 R. Co. 20 Ohio St. 259 559 
 Plymouth v. Price, 33 Md. 
 
 488 649 
 
 Fisher v. Southern P. R. Co. 89 
 
 Cal. 399 - 250 
 
 Fitchburg R. Co. v. Gage, 12 Gray, 
 
 393... 114,499 
 
 Fitzgerald & M. Const. Co. v. 
 
 Fitzgerald, 137 U. S. 98, 
 
 34 L. ed. 608 601 
 
 Fitzpatrick v. Great W. R. Co. 12 
 
 U. C. Q. B. 645.... 673, 746 
 1). New York & M. B. R. 
 
 Co. 15 N. Y. Week. 
 
 Dig. 506 ....356, 360 
 
 Flaherty v. Northern P. R. Co. 1 
 
 L. R. A. 680, 39 Minn. 
 
 328 743 
 
 Flannery v. Baltimore & O. R. Co. 
 
 4Mackey, 111 168 
 
 Fleck i\ Union R. Co. 134 Mass. 
 
 481 44 
 
 V. Hollenkemp, 13 B. Mon. 
 
 219 -285, 608 
 
 Fleming v. Brooklyn C. R. Co. 1 
 
 Abb. N. C. 433.. 7 
 
 Flinn v. Philadelphia, W. & B. R. 
 
 Co. 1 Houst. (Del.) 469 
 
 268, 272, 283 
 
 Flint V. Norwich & N. Y. T. Co. 
 
 34 Conn. 554.. 167, 168, 361 
 Flint & P. M. R. Co. «. Stark, 38 
 
 Mich. 714 - 413 
 
 v. Weir, 37 Mich. Ill 
 
 '^83 555 591 
 Flori «. St.Louis.SMo. App.'232-" 736 
 Florida R. & Nav. Co. v. Webster, 
 
 25 Fla. 394 61, 408
 
 XXXI V 
 
 TABLK OF CASES. 
 
 Florida S. R. Co. v. Katz, 23 Fla. 
 
 189 145 
 
 Flower i: Penna. R. Co. 69 Pa. 
 
 210 7 
 
 Fluker c. Geori,na R. & Bkg. Co. 
 
 2 L." R. A. 843, 81 Ga. 
 
 461 - ...115, 349 
 
 Flynn v. Kansas C, St. J. & C. B. 
 
 R. Co. 78 Mo. 211 681 
 
 Fonseca v. Cunard SS. Co. 12 L. 
 
 R. A. 340, 153 Mass. 
 
 553 516, 519 
 
 Forbes v. Escambia Co. B'd of 
 
 Health (Fla.) 13 L. R. 
 
 A. 549 294 
 
 Ford V. London & S. W. R. Co. 2 
 
 Fosi. &F. 730, 732.... 
 
 48, 52, 59, 72, 310 
 
 V. Monroe, 20 Wend. 210... 
 
 - 606, 617 
 
 Fordyce v. McCants, 4 L. R. A. 
 
 296, 51 Ark. 509 606 
 
 V. Merrill, 49 Ark. 277 127 
 
 Forsee v. Alabama G. S. R. Co. 63 
 
 Miss. 66, 67 172, 209 
 
 Forsyth v. Boston & A. R. Co. 103 
 
 Mass. 510 93, 127 
 
 Ft. Worth & D. C. R. Co. v. 
 
 Robertson (Tex.) June 
 
 16, 1891 758 
 
 i\ Thompson, 75 Tex. 501.. 721 
 Ft. Worth S. R. Co. v. Whitten, 
 
 74 Tex. 202-_ 606 
 
 Foss V. Boston & M. R. Co. (N. 
 
 H.)11L. R. A. 367.... 
 
 149. 222, 284, 398 
 
 Fotheringham v. Adams Exp. Co. 
 
 36 Fed. Rep. 252 359 
 
 Foulkes V. Metropolitan Dist. R. 
 
 Co. L. R. 4 C. P. Div. 
 
 267. 48 L. J. C. P. 555. 
 
 L. R. 5 C. P. Div. 157 
 
 19, 95, 550 
 
 Fowler v. Baltimore & O. R. Co. 
 
 18 W. Va. 579 692 
 
 Fowlkes V. Nashville & D. R. Co. 
 
 9Heisk. &29...611, 616, 628 
 Fox V. Boston <fc M. R. Co. 1 L. R. 
 
 A. 702, 148 Mass. 220.. 73 
 
 V. Stevers, 13 Minn. 272 608 
 
 Foy V. London, B. & 8. C. R. Co. 
 
 18 C. B.N. S. 225.. 128. 140 
 Fraloff V. New York C. & H. R. 
 
 R. Co. JO Blalchf. IG.. 564 
 V. New York C. & H. R. 
 
 R. Co. 12 Blalchf. 4H4, 
 
 488 563, 564, 567 
 
 Francis r. (^ockrell, L. J{. 5 Q. B. 
 
 184 57. 314 
 
 Francis v. New York S. Co. 114 N. 
 
 Y.380 45 
 
 Frank v. Incalls, 41 Ohio St. 560. 516 
 Franklin «. South. Cal. M. R. Co. 
 
 85 Cal. 63 148. 151-153 
 
 Frederick v. Marquette, H. «fe O. 
 
 R. Co. 37 Mich. 342 .. . 
 
 162, 183, 186, 199, 203 
 
 Freeman v. Detroit, M. vfe M. R. 
 
 Co. 65 Mich. 577... 142, 523 
 ■». Glens Falls P. M. Co. 39 
 
 N. Y. S. R. 621 324 
 
 Freer v. Cameron, 4 Rich. L. 232. 121 
 Freidenrich v. Baltimore «& O. R. 
 
 Co. 53 Md. 201 509 
 
 Fried d. New York C. R. Co. 25 
 
 How. Pr. 285 613 
 
 Friend v. Woods. 6 Gratt. 189, 196 23 
 Frink v. Coe, 4 G. Greene, 555 
 
 ...22,24, 30, 77 
 
 r. Potter, 17 HI. 406 
 
 ...24, 53, 218, 376, 417, 607 
 Fritsch v. Allegheny, 91 Pa. 226.. 64 
 Frost i\ Grand Trunk R. Co. 10 
 
 Allen, 387. 93 
 
 Fugler V. Bothe, 43 Mo. App. 44. 
 
 ..678, 724 
 
 Fuller v. Jewett, 80 N. Y. 46. 36 
 
 Am. Rep. 575 596, 597 
 
 V. Naugatuck R. Co. 21 
 
 Conn. 557, 576 
 
 ...23. 48, 152, 216, 218, 605 
 Furnish v. Missouri P. R. Co. 102 
 
 Mo. 438.63, 64, 75, 695, 759 
 
 6. 
 
 Gage V. Tirrell, 91 Mass. 299 23 
 
 Gahagau v. Boston & L. R. Co. 1 
 
 Allen, 187, 79 Am. Dec. 
 
 724 ..410, 686 
 
 Gale v. Delaware, L. & W. R. Co. 
 
 7 Hun, 670 522 
 
 Galena & C. U. R. Co. v. Fay, 16 
 
 HI. 558, 63 Am. Dec. 
 
 323 24, 53, 419 
 
 V. Rae, 18 HI. 488 502 
 
 V. Yarwood, 15 111. 468, 17 
 
 111. 509, 65 Am. Dec. 
 
 682.... 24, 159, 394. 690, 695 
 Galesburg v. Benedict, 22 111. App. 
 
 114 719 
 
 Gallin v. London & N. W. R. Co. 
 
 L. R. 10 Q. B. 212, 12 
 
 Moak, Eng. Rep. 268. 
 
 35 U. C. Q: B. 453.-269, 278 
 Gait V. Adams Exp. Co. McArth. 
 
 &M. 124 264
 
 TABLE OF CASES. 
 
 XXXV 
 
 Galveston City R. Co. r. Hewitt, 
 
 67 Tex. 472 2 
 
 Galveston, H. & H. R. Co. v. Cris- 
 
 pi, 73 Tex. 236 143 
 
 Galveston, H. & S. A. R. Co. v. 
 
 Donahoe, 56 Tex. 162.. 351 
 V. Kutac, 72 Tex. 643 ..641, 738 
 V. Le Gierse, 51 Tex. 189.6'29, 636 
 
 i\ Poi-fert. 72 Tex. 344 754 
 
 V. Smith, 59 Tex. 406 394 
 
 r. Smith, 81 Tex. 479 585 
 
 Galvin v. Crouch, 65 Ind. 56 636 
 
 V. New Yoris, 112 N. Y. 233 686 
 Gamble v. Great Western R. Co. 3 
 Grant, Er.&App.U.C. 
 
 163 5.56 
 
 Gannell v. Ford, 5 L. T. N. S. 604. 264 
 Garden City, The, 26 Fed. Rep. 766 296 
 Garoni v. Compaguie Nat. DeNav. 
 
 39N. Y. S. R. 63 
 
 50.58.221,299, 734 
 
 Garrett v. Atlanta & W. R. Co. 83 
 
 Ga. 347 394 
 
 Gasway v. Atlanta & W. P. R. Co. 
 
 58Ga. 216 340,363, 374 
 
 Gathright v. Wheal, 70 Tex. 740.. 631 
 
 Gault «. Elumes, 20 Md. 297 75 
 
 Gavett «. Manchester & L. R. Co. 
 
 16 Gray, 501. ..155, 394, 410 
 
 Gav V. Winter, 34 Cal. 164.. 689 
 
 Gaynor t\ Old Colony & N. R. Co. 
 
 lOOMass.208 96, 98, 103. 
 
 127, 130, 131, 397, 621. 665 
 Gee V. Metropolitan R. Co. L. R. 8 
 
 Q. B. 181 382, 415, 696 
 
 Geitz V. Milwaukee Citv R. Co. 72 
 
 Wis. 307....' 43 
 
 Genesee Chief, The v. Fitzhugh, 
 53 U. S. 12 How. 443, 
 
 13 L. ed. 1058 297 
 
 George v. St. Louis, I. M. & S. R. 
 
 Co. 34 Ark. 613. 
 
 ....48, 63, 216, 694 
 
 George Washington, The, v. Cav- 
 an, 76U. S. 9Wall.513, 
 
 19 L. ed. 787..-. 757 
 
 Georgia Pac. R. Co. v. Davis, 92 
 
 Ala. 300 692 
 
 V. Hughes, 87 Ala. 610 231 
 
 V. Love, 91 Ala. 432 690. 695 
 
 V. Propst, 83 Ala. 518.59. 60, 327 
 V. Robinson, 68 Miss. 643 .. 390 
 V. Underwood, 90 Ala. 49.. 405 
 Georgia R. & Bkg. Co. v. Ander- 
 son, 33 Ga. 110... 691 
 
 V. Dougherty, 86 Ga. 744... 
 
 205, 207 
 
 V. Eskew, 86 Ga. 641. 173, 175, 178 
 V. McCurdy, 45 Ga. 288 155 
 
 Georgia R. & Bkg. Co. v. Murden, 
 
 83 Ga. 753, 86 Ga. 434 
 
 ...182, 183, 328 
 
 V. Rhodes, 56 Ga. 645 418 
 
 V. Smith, 128 U.S. 174,179, 
 
 32L. ed. 377, 380 
 
 434, 437, 473 
 
 V. Usry, 82 Ga. 54. 397 
 
 «. Wynn. 42 Ga. 331.. 636 
 
 Georgia S. & F. R. Co. v. Asmore 
 
 (Ga.)16 L. R. A. 53... 
 
 172, 183, 191 
 
 Georgia S. R. Co. v. Bigelow, 68 
 
 Ga. 219 521 
 
 Gerity v. Haley, 29 W. Va. 98 666 
 
 Gerlach i\ Edelmeyer, 15 Jones & 
 
 S. 292... 822 
 
 Germantown Pass. R. Co. v. Wal- 
 
 linir, 97 Pa. 55 409 
 
 Gibbins v. Pepper. 1 Ld. Raym. 38 76 
 Gibbons v. Ogden. 22 U. S. 9 
 
 Wheat. 1, 6L. ed.23. w. 
 
 443, 765 
 
 V. Williams, 135 Mass. 335. 
 
 731, 732, 739 
 
 Gibbs ('. Queen Ins. Co. 65 N. Y. 
 
 114 609 
 
 Gibson e. East Tenn., V. & G. R. 
 
 Co. 30 Fed. Rep. 904... 
 
 187, 198 
 
 «. Leonard, 37 111. App. 344 318 
 Gill V. Homrighausen, 79 Wis. 634 692 
 Gilienwater v. Madison & I. R. Co. 
 
 5 Ind. 340 58, 272 
 
 Gillespie v. St. Louis, K. C. & N. 
 
 R. Co. 6 Mo. App. 554. 23 
 Gilliam t. South & N. Ala. R. Co. 
 
 70 Ala. 268 576 
 
 Gilligan v. New York & H. R. Co. 
 
 1 E. D. Smith, 453.656, 739 
 Gillingham v. Ohio River R. Co. 14 
 
 L. R. A. 798, 35 W. Va. 
 
 588.*. 
 
 344, 350-355, 357. 359, 361 
 Gillis v. Pennsylvania R. Co. 59 
 
 Ga. 129 118 
 
 Gilman v. Philadelphia. 70 U. S. 3 
 
 Wall. 713, 18 L.ed. 96 
 
 297. 439, 447 
 
 Ginna v. Second Ave. R. Co. 67 N. 
 
 Y. 597 24 
 
 Girard Pt. S. Co. v. Southwark F. 
 
 Co. 105 Pa. 248, 252... 465 
 Girdwood v. N. B. R. Co. Ct. of 
 
 Sess. 4lh Sess. vol. IV. 
 
 p. 115 103 
 
 Givens v. Kentucky Cent. R. Co. 
 
 (Ky.) 11 Ky. L. Rep. 
 
 452 638
 
 xxxvi 
 
 TABLE OF CASES. 
 
 Gladwell v. Steggall, 5 BinG;. N. 
 
 C. 73o ....19, 20 
 
 Glasco V. New York (J. E. Co. 36 
 
 Barb. 556... 580 
 
 Gleason v. Goodrich T. Co. 32 
 
 Wis. 85, 14 Am. Eep. 
 
 716 ...557, 565. 570 
 
 Gleeson ». Virginia M. R. Co. 140 
 
 U. S. 435, 35 L. ed. 458 
 
 49.50,52. 68. 690 
 
 V. Virginia M. R. Co. 5 
 
 Mackey, 356. ..23, 693 
 
 Glen V. Hodges, 9 Johns. 67 652 
 
 Gloucester Ferry Co. v. Penna. 1 
 
 Inter.si. Com. Rep. 382. 
 
 114 U. S. 198, 29 L. ed. 
 
 158... 439. 441-444, 44'7, 450 
 Goddard v. Grand T'k R. Co. 57 
 
 Me. 202, 2 Am. Rep. 39 
 
 168.337, 342, 347 
 
 Godfrey v. Ohio & M. R. Co. 116 
 
 lud. 30 515 
 
 Goff V. Great N. R. Co. 3 El. & Ei. 
 
 672 333. 350 
 
 Goldey r. Penna. R. Co. 30 Pa. 242 267 
 Gonzales v. New York & H. R. Co. 
 
 38 N. Y. 440, 39 How. 
 
 Pr. 407.74, Ijg, 131,134. 136 
 Goodrich v. Penna. & N. Y. C. & 
 
 R. Co. 29 Hun, 50, 53. 43 
 Goodsell V. Taylor, 4 L. R. A. 673, 
 
 41 Minn. 207. 
 
 2. 308, 310. 316, 323 
 
 Goodspeed «. East Haddam Bank, 
 
 22 Conn. 530 608 
 
 Gordon i\ Ciimmings. 9 L. R. A. 
 
 640, 152 Mass. 513.321. 410 
 V. Grand St. & N. R. Co. 40 
 
 yjarb. 546.. 5 
 
 V, Manchester & L. R. Co. 
 
 52 N. H. 596 228 
 
 Gore V. Norwich & N. Y. T. Co. 
 
 2 Daly, 254 557 
 
 Gorman v. Pacific R. Co, 26 Mo. 
 
 441 644 
 
 Gorton v. Milwaukee, L. S. & W. 
 
 R. Co. 54 Wis. 234. ... 
 
 514, 522, 523 
 
 Gothanl v. Alabama G. S. R. Co. 
 
 69 Ala. 114 416 
 
 Gould V. Chicago. M. & St. P. R. 
 
 Co. 18 Fed. Rep. 155.. 
 
 . 165, 185, 192, 193 
 
 Gradin v. St. Paul &, D. R. Co. 30 
 
 Minn. 217 255 
 
 GralTam v. Boston & M. R. Co. 67 
 
 M<'. 234 560. 570, 591 
 
 Graham /•. liurlinglon, (',. R. & N. 
 
 R. Co. 39 Minn. 81..-. 695 
 
 Graham v. Chapman, 33N.Y.S.R. 
 
 349... 596, 597 
 
 V. Charlotte & S. C. R. Co. 
 
 64 N. C. 631 632 
 
 1!. Davis, 4 Ohio St. 362.267, 268 
 V. Pacific R. Co. 66 Mo. 536 
 
 272, 366 
 
 Graham v. Penna. Co. 12 L. R. A. 
 
 293, 139 Pa. 149.... 379, 391 
 T. Penna. R.Co. 39 Fed. Rep. 
 
 596 386 
 
 Grand Rapids & I. R. Co. «. Boyd, 
 
 65Ind. 526 63 
 
 V. Ellison, 117 Ind. 234.376,381 
 V. Huntley, 38 Mich. 540, 31 
 
 Am. Rep. 321 27, 57 
 
 59, 63,73, 218.310, 731, 723 
 Grand Trunk R. Co. «. Ives, 144 
 U. S. 408, 36 L. ed. 487 
 
 ..: 380, 626 
 
 V. Stevens, 95 U. S. 655, 34 
 
 L. ed. 535 
 
 .6, 7, 263, 272, 278 
 
 Grant f. Baker, 12 Or. 329 692 
 
 1). Raleigh & G. R. Co. 108 
 
 N. C. 462 ..-.8, 725 
 
 Gratiot v. Missouri P. R. Co. (Mo.) 
 
 May 19, 1891 757 
 
 Graves t. Thomas, 95 Ind. 361 95 
 
 Graville v. Manhattan R. Co. 105 
 
 N. Y. 525 409, 411 
 
 Gray r. Bell, 2 Rich. L. 67 400 
 
 V. Cincinnati S. R. Co. 11 
 
 Fed. Rep. 687 234 
 
 V. IMissouri River P. Co. 64 
 
 Mo. 47 555 
 
 V. Rochester C. & B. R. Co. 
 
 61 Hun. 212. 31 
 
 Great North. R. C^o. v. Harrison, 
 
 10 Exrh. 376. 23 L. J. 
 
 N. S. Exch. 308 
 
 5,15, 19, 282 
 
 V. Morville, 21 L. J. Q. B. 
 
 319 264 
 
 V. Shepherd, 8 Exch. 30 
 
 556, 568, 571. 577 
 
 Great West. R. Co. v. Blake. 7 
 
 Hurlst. &N. 987. 31 L. 
 
 J. N. S. Exch. 201.... 
 
 ...20, 526, 527. 550 
 
 v. Braid. 1 Moore, P. C. N. 
 
 S. 101 5, 68, 69, 71, 693 
 
 V. Fawcett, 1 Moore, P. C. 
 
 N. S. 101 76 
 
 r. (Jlenister, 29 L. T. N. S. 
 
 422 264 
 
 V. Goodman, 12 C. B. 313, 
 
 11 Eng. L. & Eq. 546. 
 552,573-587
 
 TABLE OF CASES. 
 
 xxxvn 
 
 Great West. R. Co. v. Miller. 19 
 
 Mich. 305.130, 223,344, 653 
 r. Sutton, L. K. 4H. L.236. 
 
 237, 239-. 490, 499, 500, 506 
 Grecian Monarch. The, 38 Fed. 
 
 Rep. 633 762 
 
 Green v. Boston & L. R, Co. 128 
 
 Mass. 221 745, 762 
 
 t: Bridgeton (Ga.)9 Cent.L. 
 
 J. 206, 208 234 
 
 V. Hudson River R. Co. 3 
 
 Keyes, 294 617, 618 
 
 i:. The Helen, 1 Fed. Rep. 
 
 916 440 
 
 T. Watkins,19 U.S. 6 Wheat. 
 
 260. 5 L. ed. 35G. 609 
 
 Greenleaf i: Illinois C. R. Co. 29 
 
 Iowa, 47, 4 Am. Rep. 
 
 181 684 
 
 Gregg v. Wyman, 4 Cush. 322 
 
 533, 539 
 
 Gretna Green, The, 20 Fed. Rep. 
 
 901 301 
 
 GrifEee «. Burlington & M. R. R. 
 
 Co. 2 Inters. Com. Rep. 
 
 194... 49], 505 
 
 Griffin v. Utica & B. R. Co. 41 
 
 Hun, 448 525 
 
 Griffith «. Baltimore & O. R. Co. 
 
 44 Fed. Rep. 574 093 
 
 f. Missouri P. R. Co. 98 
 
 Mo. 168 393 
 
 V. Utica &M. R. Co. 43 N. 
 
 Y. S. R. 835. 401 
 
 Grill V. General I. S. C. Co. L.R. 
 
 1 C. P. GOO 278 
 
 Griswold i-. New York & X. E.R. 
 
 Co. 53 Conn. 371 ..374, 375 
 V. Webb, 7 L. R. A. 302, 16 
 
 R. I. 649 118 
 
 Grogan r. Adams Exp. Co. 62 N. 
 
 H.514 262 
 
 V. Adams Exp. Co. 114 Pa. 
 
 523. 267 
 
 Grosso r. Delaware, L. & W. R. 
 
 Co. 50 K J. L. 317.-.. 
 
 618. 033, 640 
 
 Grote V. Chester & H. R. Co. 3 
 
 Exch.351 .55 
 
 57. 58, 67, 76, 122, 315, 691 
 Grotenkempei" v. Harris, 25 Ohio 
 
 St. 510 657 
 
 Groves r. Rochester, 39 Hun, 5.. 754 
 Guggenheim v. Lake Shore & M. 
 
 S. R. Co. 66 Mich. 150 
 
 ...-678, 693 
 
 Gulf, C. & S. F. R. Co. 1). Butcher, 
 
 fTex.) 11 Ry. & Corp. 
 
 L. J. 173 663 
 
 Gulf, C. & S. F. R. Co. V. Camp- 
 bell,76 Tex. 174, 41 Am. 
 &Eng. R. Cas. 100.... 
 15, 16, 253 
 
 V. Dawkins, 77 Tex. 328; . 18 
 V. Gatewood, 10 L. R. A. 
 
 419, 79 Tex. 89. 72 
 
 V. Gordon, 70 Tex. 80 758 
 
 r. Greenlee, 63 Tex. 344... 738 
 V. Head (Tex. App.) Jan. 31, 
 
 1891 143 
 
 T. Kirkbride, 79 Tex. 457 . 214 
 i\ McGown, 65 Tex. 643.. 
 
 373, 374, 517, 519 
 
 r. McAVhirter, 77 Tex. 356. 734 
 
 T. Norfleet. 78 Tex. 331 719 
 
 i\ Ryan (Tex. App.) March 
 
 33, 1893 138, 146 
 
 r. Silliphant, 70 Tex. 633.. 757 
 
 r. Styron, 66 Tex. 421 641 
 
 V. VV alien, 65 Tex. 568.415, 428 
 V. Wilson, 11 L. R. A. 486, 
 
 79 Tex. 371 8, hO, 279 
 
 Gumz V. Chicago, St. P. & M. R. 
 
 Co. 52 Wis. 673 418 
 
 Gunn V. Cambridge R. Co. 144 
 
 Mass. 430 31 
 
 Gurney v. Grand Trunk R. Co. 
 
 37 N. Y. S. R. 155 566 
 
 Gutridge v. Missouri P. R. Co. 105 
 
 Mo. 520 724 
 
 Guy V. Baltimore, 100 U. S. 434, 
 
 25 L. ed. 743 442 
 
 V. New York, O. & W. R. 
 
 Co. 30 Hun,399.185,188,192 
 
 H. 
 
 Haase v. Oregon R. & Nav. Co. 19 
 
 Or. 354.- .-355,390 
 
 Had.ii, The, 22 Blatchf. 235 264 
 
 Hadley v. Cross, 34 Vt. 586 
 
 -23,318. 311 
 
 v. Taylor, L. R. 1 C. P. 53 385 
 Hafl: r. Minneapolis & St. L, R.Co. 
 
 4McCrary, 632 416 
 
 ». Minneapolis & St. L. R. 
 
 Co. 14 Fed. Rep. 558.. 417 
 Haggerty v. Flint & P. I\[. R. Co. 
 
 59 Mich. 366 198 
 
 Hagood r. Southern, 117 U. S. 53, 
 
 29 L. ed. 805 486 
 
 Haight r. Hayt, 19 N. Y. 464 .-. 613 
 Haines r. Chicago, St. P. M. & O. 
 
 R. Co. 29 INlinn. 160.43 
 
 Am. Rep. 199 561, 569 
 
 Hale r. New Jersey S. Nav. Co. 
 
 15 Conn. 539 273, 297
 
 XX XV in 
 
 TABLE 01- CASES. 
 
 HalU. Brown, 58 N. H. 98 93 
 
 v. Cbicaso, B. & N. R. Co. 
 
 4(5 Minn. 439 758 
 
 T. Connecticut R. S. B. Co. 
 
 13 Conn. 319... -. 
 
 ....2, 48, 58. 215, 216, 218 
 i\ Corcoran, 107 Mass. 251. 539 
 V. De Cuir, 95 U. S. 485, 24 
 
 L. ed. 547.234, 441. 541, 543 
 t. Hollander, 4 Barn. & C. 
 
 060 606, 607 
 
 T. Memphis & C. R. Co. 9 
 
 Fed. Rep. 585.. 199, 509,521 
 i\ Memphis & C. R. Co. 15 
 
 Fed. Rep. 57 
 
 .173, 170, 177, 195, 202, 522 
 V. Northeastern R. Co. L. R. 
 
 lOQ. B. 437 264, 278 
 
 V. Power, 12 Met. 482 115 
 
 «. Ripley. 119 Mass. 135... 539 
 V. South Carolina R. Co. 25 
 
 S. C. 564 171 
 
 «. South Carolina R. Co. 28 
 
 S. C. 261 212, 225 
 
 Hallahan r. New York.'L. E. &W. 
 
 R. Co. 102 N. Y. 194.. 405 
 Halsey v. McLean, 12 Allen, 438.. 
 
 631, 644, 649 
 
 Ham v. Delaware & H. Canal Co. 
 
 142 Pa. 617 
 
 185, 187,213, 525 
 
 Hambly t. Trott, Cowp. 372 614 
 
 Hamburg-Am. P. Co. «. Gattman, 
 
 127111. 598-567, 569, 575,582 
 Hamel v. Brooklyn & N. Y. F. 
 Co. 25 N. Y. S. R. 153, 
 
 aff'd 125 N. Y. 707 352 
 
 Hamilton r. Hannibal & St. J. R. 
 
 Co. 39 Kan. 56 646 
 
 T. New York C. R. Co. 51 
 
 N. Y. 100. 101 520, 522 
 
 V. Texas & P. R. Co. 64 Tex. 
 
 251 6 
 
 V. Third Ave. R. Co. 53 N. 
 
 Y. 25 186,208 
 
 r. Third Ave. R.Co. 13 Abb. 
 Pr. N. S. 318, 3 Jones 
 
 &S. 118 340 
 
 Hamlin v. Great North. R. Co. 1 
 
 Hurlst. A: N. 408... 228, 607 
 Haramack r. While, 11 C. B. N. 
 
 S. 588 76 
 
 Hammcrgren r. Schnrineier, 2 Mc- 
 Crary, 520, 7 Fed. Rep. 
 
 766 412 
 
 Hammond v. Nortlieastern R. Co. 6 
 
 S. C. 130 8 
 
 HampHon r. Taylor. 15 R. I. 83, 
 
 85 669 
 
 Hampton v. Pullman P. C. Co. 42 
 
 Mo. App. 184 242, 565 
 
 Hancroft v. Great West. R. Co. 8 
 
 Eng. L.ifeEq. 362 283 
 
 Handon v. Caledonia R. Co. 7 
 
 Scotch Sess. Cas. (4th 
 
 Series), 966 --. 574 
 
 Hanley v. Harlem R. Co. 2 Edm. 
 
 Sel. Cas. 359 71 
 
 Hannibal & St. J. R. Co. «. Husen, 
 
 95 U. S. 465. 24 L. ed. 
 
 527... 4^0. 444, 448, 542, 543 
 
 V. Martin. Ill III. 219 108 
 
 V. Swift. 79 U. S. 12 Wall. 
 
 262, 20 L. ed. 423 19 
 
 159, 565, 566, 577 
 
 Hanrahan v. Manhattan R. Co. 53 
 
 Hun, 420 98, 388 
 
 Hanson v. European & N. A. R. 
 
 Co. 62 Me. 84, 16 Am. 
 
 Rep. 404 373 
 
 V. Mansfield R. & Transp. 
 
 Co. 38 La. Ann. 111... 254 
 Hardcastle r. South Yorkshire R. 
 
 & R. B. Co. 4 Hurlst. & 
 
 N.67 385 
 
 Harden v. Gordon, 2 Mason, 541.. 676 
 Hardenber^h r. St. Paul, M. & M. 
 
 R. Co. 39 Minn. 3 232 
 
 Hardy v. New York C. & H. R. 
 
 R. Co. 84 N. Y. S. R. 
 
 902 180, 207, 366 
 
 v. North Carolina C. R. Co. 
 
 74 N. C. 734 71 
 
 Harmon v. Columbia & G. R. Co. 
 
 28 S. C. 4C5 608 
 
 i\ Washington & G. R. Co. 
 
 6 Mackey, 57 41 
 
 V. Washington & G. R. Co. 
 
 7Mackev. 2.-,5 45 
 
 Harper v. Nf.rfolk A: W. R. Co. 86 
 
 Fed. Rep. 102 610, 642 
 
 Harris t. Costar, 1 Car. ct P. 686 
 
 82, 414 
 
 T. Great West. R. Co. L. R. 
 
 1 Q. B Div. 515 574 
 
 r. Howe, 5 L. R. A. 777, 74 
 
 Tex. 584 529 
 
 V. Louisville. N. O. & T. R. 
 
 Co. 35 Fed. Rep. 116.. 
 
 338, 359 
 
 r. Stevens. 31 Vt. 79.. 
 
 5,113,115, 117, 124 
 
 Harrisburg, The, 119 U. S. 199,80 
 
 L. ed. 358 010, 631 
 
 Harrison r. Berkley, 1 Strobh. L. 
 
 .548 -. 670 
 
 V. Fink, 42 Fed. Rep. 787.. 
 
 189, 208, 337, 372
 
 TAKLK 01'' CASES. 
 
 xxxix: 
 
 Harrison v. London, B. & S. C. K. 
 
 Co. 2 Best. & S. 122--- 264 
 V. Marshall, 4 E. D. Smith, 
 
 271 582, 5^0 
 
 Hanold v. New York El. K. Co. 
 
 24 Hun, 184 753 
 
 Hart V. Charlotte. C. & A. R. Co. 
 
 10 L. R. A. 794. m S. 
 
 C. 427 548, 605, 608 
 
 V. Hudson River B. Co. 80 
 
 N. Y. 022 684 
 
 V. Lancashire & Y. R Co. 
 
 21 L. T. N. S. 261, 268 727 
 V. Penna. R. Co. 112 U. !?. 
 
 831. 28 L. ed. 717.. 264, 582 
 i\ Rensselaer & S. R. Co. 8 
 
 N. Y. 87 583 
 
 Hartan b. Eastern R. Co. 114 Mass. 
 
 44 529 
 
 Hartfield v. Roper, 21 Wend. 
 
 615 731 
 
 Hartford & N. H. R. Co. ». An- 
 drews, 36 Conn. 213.-. 654 
 V. New York & N. H. R. 
 
 Co. 8 Robt. 411 525 
 
 Harty v. Cent. R. Co. of N. J. 42 
 
 N. Y. 468 688 
 
 Harvey i'. Dunlop, Hill & Denio 
 
 Supp. 193 76 
 
 v. Louisville & N. R. Co. 3 
 
 Inters. Com. Rep. 
 
 793 506 
 
 V. Terra Haute & I. R. Co. 
 
 74 Mo. 541 272 
 
 Hastings r. Pepper, 11 Pick. 41-. 297 
 Hatch i\ The Boston, 8 Fed. Rep. 
 
 807 806 
 
 V. Wallamet I. B. Co. 7 
 
 Sawy. 136 303 
 
 Hattield v. Bushnell, 1 Blatchf. 
 
 893 609 
 
 V. St. Paul & D. R. Co. 38 
 
 Minn. 180,53 Am. Rep. 
 
 14 .707, 708, 720 
 
 Hathaway v. Toledo, W. & W. R. 
 
 Co. 46Ind. 25 731 
 
 Havens r. Erie R. Co. 41 N. Y. 
 
 296 689 
 
 r. Hartford & N. H. R. Co. 
 
 28 Conn. 69... 167, 197 
 
 Hawcroft v. Great North. R. Co. 8 
 
 Eng. L. & Eq. 862, 21 
 
 L J. Q. B. 178, 16 Jur. 
 
 196 227-229 
 
 Hawkins v. Great West. R. Co. 17 
 
 Mich. 57, 18 Mich. 427 
 
 _. 266, 273 
 
 V. Hoffman, 6 Hill, 586, 41 
 
 Am. Dec. 767.. 
 
 551, 562, 568, 569 
 
 Hawksworth v. Thompson, 98 
 
 Mass. 77 548 
 
 Hawleyt). Screven, 62 Ga. 347..- 590 
 Hayes v. Michigan C. R. Co. Ill 
 
 U. S. 228, 28 L. ed. 410 
 
 95, 416, 672 
 
 V. New York C. & H. R. R. 
 
 Co. 20 N. Y. Week. 
 
 Dig. 237, 9 Hun, 63... 187 
 Hayman v. Penna. R. Co. 118 Pa. 
 
 508 699 
 
 Hays V. Houston & G. N. R. Co. 
 
 46 Tex. 284. .. 629 
 
 T. Muilar, 77 Pa. 238 2 
 
 V. Penna. Co. 12 Fed. Rep. 
 
 310, 311 159, 501, 502 
 
 Haywood v. New York C. & H. 
 
 R. R. Co. 35 N. Y. S. 
 
 R. 748.-.. 424 
 
 Hazard v. Chicago, B. & Q. R. Co. 
 
 1 Biss. 508 260 
 
 Hazel Kirke, The, 25 Fed. Rep. 
 
 601 296, 800, 305 
 
 Head v. Georgia P. R. Co. 79 Ga. 
 
 858 ....177, 205, 524 
 
 Heard v. Georgia R. Co. 1 Inters. 
 
 Com. Rep. 314,. 234 
 
 V. Georgia R. C<\ 2 Inters. 
 
 Com. Rep. :0< 234 
 
 Hearn t. London & S. W. R. Co. 
 
 lOE.xch. 798 562 
 
 Hebert r. Northampton, 152 Mass. 
 
 266 724 
 
 Heddles v. Chicago & N. W. R. 
 
 Co. 71 Wis. 239, 77 
 
 Wis. 228-. 754, 758 
 
 Hedges v. Kansas City, 18 Mo. 
 
 App. 62 736 
 
 Hegeman r. Western R. Corp. 16 
 
 Barb. 353. 358, 13 N. 
 
 Y. 9, 11, 26, 27, 64 Am. 
 
 Dec. 517.--- 
 
 23, 27, 47, 53, 57, 216. 
 
 311, 812, 314, 317, 690, 694 
 Heinlein i\ Boston & P. R. Corp. 
 
 147 Mass. 136 125 
 
 Heirn v. McCaughan, 82 Miss. 17, 
 
 66 Am. Dec. 588 
 
 227, 607, 746 
 
 Hellman v. Holladay, 1 Woolw. 
 
 365.-.. .--.568, 581 
 
 Hemingway v. Chicago, M. & St. 
 
 P. R. Co. 72 Wis. 42-- 728 
 Henderson v. Kentucky C. R. Co. 
 
 86 Ky. 389.: 638 
 
 V. Louisville & N. R. Co. 123 
 
 U. S. 61-65, 31 L. ed. 
 
 92-94 559 
 
 t'. Stevenson, 2 H. L. Sc. 
 
 App. Cas. 470 515
 
 xl 
 
 TABLE OF CASES. 
 
 Henderson v. Walker. 55 Ga. 481. 596 
 V. Wick ham, 92 U. S. 259, 
 
 23 L. ed. 543... 542 
 
 .444. 447, 448 
 
 Hendricks v. Western & A. R. Co. 
 
 52 Ga. 467 690 
 
 Hendryx v. Kansas, Ft. S. & G. R. 
 
 Co. 45 Kan. 377 17 
 
 Hennick, Re, 1 Inters. Com. Rep. 
 
 66, 5 Mackey, 489.. 441, 443 
 Hennings v. Louisville Leather Co. 
 (Ky.) 11 Ky. L. Rep. 
 
 544 638 
 
 Henry v. St. Louis, K. C. & N. R. 
 
 Co. 76 Mo. 288 178 
 
 Henry County Twp. v. Jackson, 
 
 86 tod. Ill 397 
 
 Herdman «. New York, L. E. & 
 W. R. Co. 42 N. Y. S. 
 
 R. 293 411 
 
 Herman i\ Drinkwater, 1 Me. 27 . 592 
 «. New Orleans & C. R. Co. 
 
 11 La. Ann. 5 618 
 
 Hersh v. Northern C. R. Co. 74 
 
 Pa. 181 501 
 
 Hess V. Lake Shore & M. S. R. Co. 
 7 Pa. Co. Ct. Rep. 565 
 
 .715, 720 
 
 i\ Lowrey, 7 L. R. A. 90, 
 
 122 Ind.225, 233.. .708, 717 
 
 Hewett V. Swift. 3 Allen, 420 340 
 
 Hibbard v. New Yoik & E. R.Co. 
 
 15 N. Y. 455 173 
 
 183, 184, 189, 191, 334, 409 
 Hickey v. Boston & L. R. Co. 14 
 
 Allen, 429 410, 669 
 
 Hickman v. Missouri P. R. Co. 91 
 
 Mo. 433 151, 221, 660 
 
 Hitkox V. Naueatuck R. Co. 31 
 
 Conn. 281 562 
 
 Higginst'. Butcher, Yelv. 89 618 
 
 V. Dewey, 107 Mass. 494... 665 
 V. New Orleans, M. & C. R. 
 
 Co. 28 La. Ann. 133... 277 
 T. New York <k H. R. Co. 
 
 2Bosw. 132... 411 
 
 V. Watervliel Turnp. & R. 
 
 Co. 46 N. Y. 23.225, 328,333 
 Highland Ave. & B. R. Co. v. 
 Burt (Ala.) 13 L. R. A. 
 
 95 33 
 
 T. Donovan (Ala.) Nov. 5, 
 
 1891 411 
 
 V. Winn. 93 Ala. 306 177 
 
 Higlcy T. Gilmer, 3 Mcjnt. 90 
 
 15, 16, 282 
 
 Hill r. Boston. H. T. & W. R. Co. 
 
 144 Mass. 284 519 
 
 r. Kimbell, 7 L. I{. A. 618, 
 
 76 Tex. 210... 41 7, 673, 740 
 
 Hill «. Port Royal & W. C. R. 
 
 Co. 5 L. R. A. 349, 31 
 
 S. C. 393 670 
 
 V Syracuse, B. & N. Y. R. 
 
 Co. 63 N. Y. 101 
 
 ..195. 509, 521 
 
 V. Winsor, 118 Mass. 251 .. 670 
 Hilliard v. Goold, 34 N. H. 230... 
 
 186, 521 
 
 Hillis V. Chicago, R. I. & P. R. 
 
 Co. 72 Iowa, 228 559 
 
 Hill Mfg. Co. V. Boston & L. R. 
 
 Corp. 104 Mass. 102... 292 
 Hinckley v. Cape Cod R. Co. 120 
 
 Mass. 262 687 
 
 Hinton v. Dibbin, 2 Q. B. 661 278 
 
 Hipsley v. Kansas C. St. J. & C. 
 
 B. R. Co. 88 Mo. 348.- 695 
 Hoadley v. Watson, 45 Vt. 289... 608 
 Hoag V. New York C. & H. R. R. 
 
 Co, 111 N. Y. 202 686 
 
 Hobbs V. London & S. W. R. Co. 
 
 L. R. 10 Q. B. 111.143, 752 
 v. Texas & P. R. Co. 49 Ark. 
 
 357 .-..256,258 
 
 Hobson V. New Mex. & A. R. Co. 
 
 (Ariz.) Aug. 1, 1886... 692 
 Hockett V. State, 105 Ind. 250, 
 
 258 467 
 
 Hocum V. Weitherick, 22 Minn. 
 
 152 692 
 
 Hodges V. New Hanover T. Co. 
 
 107 N. C. 576 ..91, 126, 132 
 
 V. Percival, 132 111. 53 726 
 
 Hodgson V. Dexter, 1 Cranch, C. 
 
 C. 109 76 
 
 Hoeger v. Chicago, M. & St. P.R. 
 
 Co. 63 Wis. 100, 53 Am. 
 
 Rep. 271. 581, 585 
 
 Hoffbauer v. Davenport & N. W. 
 
 R. Co. 52 Iowa. 342 ... 
 
 '. , - .164, 171, 185,188 
 
 V. Delhi & N. W. R. Co. 52 
 
 Iowa, 342 191 
 
 Hoffman v. New York C. & H. R. 
 
 R. Co. 75 N. Y. 605, 13 
 
 Hun, 589 7, 54, 103 
 
 V. Northern P. R. Co. 45 
 
 Minn. 53 511 
 
 HofEord V. Grand Rapids & I. R. 
 
 Co. 53 Mich. 118 206 
 
 Hogan V. Central Park, N. & E. 
 
 R. R. Co. 26 Jones & 
 
 S. 322- 35 
 
 V. Central Park, N. & E. R. 
 
 R. Co. 124 N. Y. 647.. 46 
 1). Grand T. R. Co. 2 Que- 
 bec, L. R. 142 585 
 
 V. Southea.«tern R. Co. 28 L. 
 
 T.N. S. 271 221
 
 TAHKK OF CASES. 
 
 xli 
 
 Holbrook v. Utica & S. R. Co. 16 
 
 Barb. 113, 12 N. Y. 244 404 
 «. Utica & S. R. Co. 13 N. 
 
 y. 28G, 64 Am. Dec. 502 
 
 6yi, 696 
 
 Holdridge v. Utica & B. R. R. Co. 
 
 56 Barb. 191 585 
 
 Hole V. Digby, 27 Week. Rep. 884 118 
 Holladay v. Kennard, 79 U. S. 12 
 
 Wall. 254, 20 L. ed. 390 
 
 - 23, 77 
 
 Holland v. Lynn & B. R. Co. 144 
 
 Mass, 425 31, 604 
 
 V. West End St. R. Co. 
 
 (Mass.) Jan. 9, 1892... 667 
 HoUenbeck v. Berkshire R. Co. 9 
 
 Cusb. 480 617 
 
 Hollister«. Nowlou, 19 Wend. 234 
 
 414, 516, 584 
 
 Holmes v. Jennison , 39 U.S. 14 Pet. 
 
 540, 10 L. ed. 579. 440 
 
 V. Northeastern R. Co. L. 
 
 R. 4 Exch. 254, L. R. 6 
 
 Exch. 123.- _-104, 383 
 
 «. Oregon & C. R. Co. 5 Fed. 
 
 Rep. 523 675 
 
 li. Wakefield, 12 Allen, 580 
 
 213. 340, 344 
 
 Holohan v. Washington & G. R. 
 
 Co. 8Mackey, 316. . .34, 381 
 Holsapple v. Rome, W. & O. R. 
 
 Co. 86 N. Y. 275 266 
 
 Holton V. Daly, 106 111. 131 657 
 
 Holzab V. New Orleans & C. R. 
 
 Co. 38 La. Ann. 185. .. 418 
 Home Ins. Co. v. Pennsylvania R. 
 
 Co. 11 Hun, 182 653 
 
 Honeyman w. Oregon & C. R. Co. 
 
 13 Or. 31)2, 57 Am. Rep. 
 
 20 580 
 
 Hood V. New York & N. H. R. 
 
 Co. 22 Conn. 1 ...^527, 528 
 V. New York «& N. H. R. 
 
 Co. 22 Conn. 502 525 
 
 Hooker v. Vandewater, 4 Denio, 
 
 349... 525 
 
 Hopkins v. Westcott, 6 Blatchf. 64 
 
 551,563, 565 
 
 Horton v. Horner, 14 Ohio, 437 . 631 
 Hospes r. Chicago. M. & St. P. R. 
 
 Co. 29 Fed. Rep. 763 .. 281 
 llouck V. Southern Pac. R. Co. 38 
 
 Fed. Rep. 226 234 
 
 Hough L\ Texas & P. R. Co. 100 
 
 U. S. 213, 25 L. ed. 612 692 
 Houghkirk v. Delaware & H. C. 
 
 Co. 92N. Y. 219 658 
 
 Hounsell v. Smytli, 7 C. B. N. S. 
 
 738 385 
 
 V. Smylli, 29 L. J. C. P. 203 385 
 
 Houston & T. C. R. Co. v. Baker, 
 
 57 Tex. 424 629 
 
 T. Boozer, 70 Tex. 530, 8 
 
 Am. St. Rep. 615 729 
 
 V. Bradley, 45 Tex. 175 .... 641 
 v. Clemmons, 55 Tex. 88... 669 
 
 V. Cowser, 57 Tex. 293 
 
 '. 629, 656, 692 
 
 V. Devainy, 63 Tex. 172 213 
 
 ■V. Ford, 53 Tex. 364 366 
 
 V. Gorbett,49 Tex. 573 ..59, 665 
 
 V. Hill, 70 Tex. 51 521 
 
 V. Lee, 69 Tex. 556 63 
 
 V. Leslie, 57 Tex. 83 155, 747 
 
 t. Moore, 49 Tex. 31 
 
 ...253, 257,636 
 
 V. Rand (Tex ) 9 Am. & Eng. 
 
 R. Cas. 399. 322 
 
 1). Roberts (Tex.) April 15, 
 
 1892 596, 597 
 
 V. Simpson, 60 Tex. 103 641 
 
 Hover -o. Penna. Co. 25 Ohio St. 
 
 667 646 
 
 Howard v Del. & H. C. Co. 6 L. R. 
 
 A. 75, 40 Fed. Rep. 195. 642 
 Howell V. James, 2 Strange. 1272. 305 
 Hoyt V. Hudson, 41 Wis. 105, 22 
 
 Am. Rep. 714.... 679 
 
 Hozier v. Caledonian R. Co. 1 Nev. 
 
 &McN. R. Cas. 30 506 
 
 Hrebrik v. Carr, 29 Fed. Rep. 298. 
 
 13, 108. 157 
 
 Hubbard «. Harnden Exp. Co. 10 
 
 R.L244-.. 23 
 
 V. New York & E. R. Co. 15 
 
 N. Y. 455 185 
 
 Hubgh V. New Orleans & C. R. Co. 
 
 OLa. Ann. 495 618 
 
 Huckshold V. St. Louis, I.M.«fe S. 
 
 R. Co. 90 Mo. 548 681 
 
 Huddleston «. Lowell Machine 
 
 Shop. 106 Mass. 283... 397 
 Hudson V. Kansas Pac. R. Co. 3 
 
 McCrary, 249 509 
 
 V. Wabash & W. R. Co.32 
 
 Mo. App, 667 669 
 
 Hudston ». Midland R. Co. L. R. 4 
 
 Q. B. 366 570 
 
 Huelsenkamp v. Citizens R. Co. 37 
 
 Mo. 537.... 74 
 
 Huey T. Gahlenbeck, 121 Pa. 238. 323 
 
 Huffw. Ames. 16 Neb. 139 733 
 
 Hufford V. Grand Rapids & L R. 
 Co. 53 iSIich. 118, 64 
 
 Mich. 631 
 
 187, 199, 202, 208, 210, 367 
 Hughes V. Detroit, G. H. & M. R. 
 
 Co. 78 Mich. 399 406 
 
 Hulbert r. New York C. R. Co. 40 
 
 N. Y.145.93, 96, 103, 140, 147
 
 xlii 
 
 TABLE OF CASES. 
 
 Hulbeit V. Topeka, 34 Fed. Rep. 
 
 510. 635, 688 
 
 Hulehan v. Green Bay, W. & St. 
 
 P. R. Co. 68 Wi.s. 520 _ 604 
 Hull V. East Line & R. R. R. Co. 
 
 66 Tex. 619 144 
 
 Hunt V. Bennett. 19 N. Y. 174 . . 608 
 V. Pownal, 9 Vt. 411.417--- 
 
 644,f649 
 
 Hunter v. Cooperstown & S. Y. R. 
 
 Co. 12 L. R. A. 429, 126 
 
 N. Y. 18. 391 
 
 V. Stewart, 47 Me. 419 633 
 
 Huntington v. Attrill (1892) 8 
 
 Times, L. R. 341 602 
 
 ?j. Breen, 77 Ind. 29 397 
 
 Huntoon v. Trumbull. 2 McCrary, 
 
 314. 736 
 
 Hurst V. Detroit City R. Co. 84 
 
 Mich. 539 626, 656, 733 
 
 T. Great Western R. Co. 19 
 
 C.B.N. S. 310 159, 228 
 
 Hurt V. St. Louis, I. M. & S. R. 
 
 Co. 94 Mo. 255 ....147, 152 
 v. Southern R. Co. 40 Miss. 
 
 391 278 
 
 Hutchings v. Western & A. R. Co. 
 
 25 Ga. 61, 71 Am. Dec. 
 
 56 562 
 
 Hutchinsf. Ford, 82 Me. 363 721 
 
 V. St. Paul, M.& M. R. Co. 
 
 44 Minn. 5 656 
 
 Hutchinson v. Chicago. St. P. M. 
 
 &0. R. Co. 37Minn.524 267 
 Hyatt ». Adams, 16 Mich. 180 
 
 .604, 606, 617, 618 
 
 Hyde v. Wabash, St. L. & P. R. 
 
 Co. 61 Iowa, 441 650 
 
 Hydraulic Works Co. v. Orr, 83 
 
 Pa 332 214 
 
 Hyman v. Nve, L.'r.'6 QrB.Div' 
 
 685 22 
 
 Ihl V. Forty-second St. & G. St.F. 
 
 R. Co. 47 N. Y.317... 
 
 657, 660 
 
 Illinois Cent. R. Co. v. Able, 59 
 
 111. 131 155 
 
 V. Adams, 42 111. 474. --266, 267 
 V. liarron, 72 U. 8. 5 Wall. 
 
 90, 18 L. ed. 591... 546, 657 
 r. Chambers, 71 111. 519.... 155 
 r. Copeland, 24 III. 332.... 
 
 .._ ->2i\.rm, 583, 588 
 
 r. fragin. 71 111. 177 
 
 035,644, 646, 691 
 
 Illinois Cent. R. Co. v. Crudup. 63 
 
 Miss. 291 628, 650, 660 
 
 V. Cunningham, 67 111. 316- 181 
 
 r. Finnigan, 21 111. 646 546 
 
 v. Handy, 63 Miss. 609.558, 562 
 V. Illinois. 108 U. S. 541, 27 
 
 L. ed. 818 .-434, 472 
 
 V. Kanouse, 39 111. 272 546 
 
 V. Latimer, 28 111. App. 552, 
 
 aff'd 128 111. 163 ...212, 673 
 
 V. Lutz, 84 III. 598 155 
 
 V. Meacham (Tenn.) April 
 
 Term, 1892 255 
 
 V. Morrison, 19 111. 136 281 
 
 V. Nelson, 59 111. 110.._248, 256 
 V. Phillip.s. 49 111. 234.... 57, 58 
 
 V. Read, 37 III. 484. 
 
 266, 267, 281, 282, 519 
 
 ?). Sheehan, 29 111. App. 90. 
 
 224,346, 364, 373 
 
 V. Slatton, 54 111. 183 154 
 
 V. Tronstine, 64 Miss. 834.. 560 
 
 V. Weldon, 52 111. 290 657 
 
 V. Whittemore, 43 111. 420 . 
 
 168,211 
 
 ImbofE V. Chicag(j & M. R. Co. 20 
 Wis. 344. 22 Wis. 682-- 
 
 .--- .96, 130 
 
 Indermauer v. Dames, L. R. 1 C. 
 P. 284, 16 L. T. N. S. 
 
 293 -.7, 121, 385 
 
 Indiana «. John, 5 Ohio, 217 644 
 
 V. Woodruff S. & P. C. Co. 
 1 Inters. Com. Rep. 798, 
 114 Ind. 155. -441, 444, 478 
 Indiana, B. & W. R. Co. v. Greene, 
 
 106 Ind. 279 682 
 
 Indiana Cent. R. Co. v. Hudelson, 
 
 13 Ind. 325... 10. 180 
 
 V. Mundy, 21 Ind. 48 282 
 
 Indianapolis&C. R. Co. ■». Ruther- 
 ford, 29 Ind. 82 405 
 
 Indianapolis & St. L. R. Co. v. 
 Horst, 93 U. S. 291. 23 
 
 L.ed.898.. ...49, 
 
 ' 53, 216, 250, 260. 272. 516 
 r. Kennedy, 77 Ind. 507.248, 256 
 V. Stout, 53 Ind. 143_415, 431, 685 
 Indianapolis, B. <Sz W. R. Co. v. 
 
 Beaver. 41 Ind. 493.272, 281 
 
 V. Carr, 35 Ind .510 416 
 
 Indianapolis, D. & S. R. Co. «. 
 
 Ervin, 118 111. 250 501 
 
 Indianapolis, P. <Sc C. R. Co. v. An- 
 thony, 43 Ind. 183 130 
 
 V. Keely, 28 Ind. 138 
 
 ...617,618, 623, 636 
 
 V. Pitzer, 109 Ttid. 179 
 
 160. 163, 671,729, 752
 
 TAHI.K UF CASKS. 
 
 xliii 
 
 In'dianapolis, P. &C. R.Co v. Rin- 
 
 anl,46 Ind. 293.158. 172, 502 
 Indiau Supplies, Ne, 1 Inters. Com. 
 
 Jtep. 22 503 
 
 Ingalls «. Bills. 9 Met. 1, 43 Am. 
 
 Dec. 346 
 
 23. 24, 29, 48, 59, «3, 72, 
 215, 218, 310, 311, 413, 429 
 Inland & S. Coa.stiiig Co. v. Tolson, 
 139 U. S. 551, 35 L. ed. 
 
 270 380, 692 
 
 Inman r. South Carolina R. Co. 
 129 U. S. 128, 32 L. ed. 
 
 612-- ^.. 264 
 
 International & G. N. R. Co. i\ 
 
 Brazzil. 78 Tex. 314 258 
 
 i<. Cook, 98 Tex. 713. 254 
 
 V. Halloren, 53 Tex. 46, 37 
 
 Am. Rep. 744.-23, 59, 68, 71 
 r. Kindred, 57 Tex. 498-607, 629 
 
 r. Kuelin. 70 Tex. 582 641 
 
 V. Nicholson, 61 Tex. 550 .. 745 
 
 T. Prince, 77 Tex. 569 2, 254 
 
 V. Terry, 62 Tex. 380 143 
 
 V. Underwood, 64 Tex. 465. 
 
 708, 759 
 
 V. Wilkes, 68 Tex. 617 187 
 
 IntCFState Commerce Com. v. Bal- 
 timore & (). R. Co. 145 
 U. S. 263, 36 L. ed. 699, 
 4 Inters. Com. Rep. 92. 
 
 500. 504, 508 
 
 Iron R. Co. r. ]\[ovverv, 36 Ohio St. 
 418, 38 Ani Rep. 597.. 
 
 ..415, 418, 690, 695 
 
 Irvine v. Wood, 51 N. Y. 224 425 
 
 Isaacs V. Third Ave. R. Co. 47 N. 
 Y. 122, 7 Am. Rep. 418 
 
 334, 338 
 
 Isaacson v. New York C. & H. R. 
 R. Co. 94 1^. Y. 283, 25 
 
 Hun, 350.-.. .552. 585 
 
 Israel v. Clark, 4 Esp. 259.. 22, 27, 414 
 
 Jackson v. Crilly, 16 Colo. 103 407 
 
 1). Metropolitan R. Co. L. R. 
 10 C. P. 49, 44 L. J. C. 
 P. 83, L. R. 3 App. * 
 Cas. 193, 47 J. H. L. 
 
 303 221 
 
 V. St. Louis, I. M. & S. R. 
 Co. 87 310. 422, 29 Mo. 
 App. 495, 25 Am. & 
 
 Eng. R. Cas. 227 
 
 396, 748,750 
 
 t. Second Ave. R. Co. 47 N. 
 
 Y. 274 .-..343, 344 
 
 «. The Magnolia, 61 U. S. 
 20 How. 298, 15 L. ed. 
 910- - 297 
 
 Jackson v. ToUett, 2 Stark. 37 
 
 Jacksonville & S. E. R. Co. v. 
 
 Southworlh, 135 111. 250 
 
 724, 
 
 Jacksonville St. R. Co. v. Chap 
 
 pell, 21 Fla. 175. 
 
 -221, 664, 
 
 Jacksonville, T. & K. W. R. Co. 
 
 t. Peninsular L. T. & 
 
 Mfir. Co. 27 Fla. 1 ---. 
 Jacobs «. Tutl, 33 Fed. Rep. 412 
 
 560, 567, 572, 577, 
 
 Jacobus V. St. Paul & C. R. Co. 20 
 
 Minn. 130-.. .6, 7, 2.52, 
 
 255. 266, 279, 281, 399, 
 
 James t\ Christy, 18 Mo. 162 
 
 Jamison v. San Jose & S. C. R. 
 
 Co. 55 Cal. 593.27, 152, 
 Jardine i\ Cornell, 50 N. J. L. 
 
 485 174, 176, 
 
 Jefifersonville, M. & I. R, Co. i\ 
 
 Hendricks, 41 Ind. 49. 
 
 636, 650, 
 
 V. Riley, 39 Ind. 568 
 
 12, 156, 365, 750, 
 
 Jeffersonville R. Co. v. Hendricks, 
 
 26 Ind. 228 
 
 48, 59, 72, 155, 216, 394, 
 V. Rofljers. 28 lud. 1, 38 Ind. 
 
 116 130. 178, 
 
 V. Swayne, 26 Ind. 477 
 
 V. Swift, 26 Ind. 459 
 
 155., 415, 
 
 Jencks v. Coleman, 2 Sumn. 221 
 
 15d, 159, 160, 161. 227, 
 Jennings v. Van Schaick, 13 Daly, 
 
 438 ...\ --- 
 
 Jerome r. Smith, 48 Vt. 230 
 
 197, 
 
 Jersey City & B. R. Co. «. Morgan, 
 
 52 N. J. L. 60.-. 
 
 Jetter v. New York & H. R. Co. 
 
 2 Abb. App. Dec. 458. 
 Jewell V. Chicago, St. P. & M. R. 
 
 Co. 54 Wis. 610- 
 
 Jochem v. Robinson, 1 L. R. A. 
 
 178, 72 Wis. 199 
 
 John V. Bacon, L. R. 5 C. P. 437.. 
 
 Johuson, Ex parte, 19 S. C. 492.. 
 Johnson v. Boston & M. R. Co. 125 
 
 Mass. 75. 
 
 v. Chicago, M. & St. P. R. 
 
 Co. 31 Minn. 57 
 
 V. Chicago, R. I. & P. R. 
 
 Co. 51 Iowa, 30, 58 
 
 Iowa. 348 118, 
 
 T. Concord R. Corp. 46 N. 
 
 H. 213 195, 
 
 22 
 
 696 
 
 691 
 
 585 
 
 532 
 626 
 
 310 
 
 360 
 
 654 
 
 650 
 
 181 
 636 
 
 430 
 
 283 
 
 425 
 
 202 
 
 188 
 
 325 
 
 155 
 
 666 
 
 108 
 596 
 
 12 
 
 425 
 
 344 
 522
 
 xliv 
 
 TABLE OF CASES. 
 
 Johnson v. Dalton, 1 Cow. 548-.. 652 
 V. Great S. & W. R. Co. 9 
 
 Ir. C. L. Rep. 708 257 
 
 V. Hud.son River R.Co.20 N. 
 
 Y. 63, 75 Am. Dec. 375. 683 
 V. Irasburgh, 47 Vt. 28, 19 
 
 Am. Rep. Ill 531,534 
 
 T. McKee. 27 Mich. 471 752 
 
 c. Manhattan R. Co. 52 Hun, 
 
 111 95 
 
 ^•. New York Cent. & H. R. 
 
 R. Co. 33 N. Y. 610... 585 
 V. Northern Pac. R. Co. 36 
 
 Fed. Rep. 347 208 
 
 t'. Pensacola & P. R. Co. 16 
 
 Fla. 623 499, 508 
 
 V. Philadelphia, W. & B. R. 
 
 Co. 63 Md. 106 187 
 
 T. West Chester & P. R. Co. 
 
 70 Pa. 365.... 415 
 
 V. Winona & St. P. R. Co. 
 
 11 Minn. 296... 48, 216, 219 
 Johnston v. Cleveland & T. R. Co. 
 
 7 Ohio St. 336 622 
 
 Joliet, A. & N. R. Co. v. Velie, 36 
 
 HI. App. 450 756 
 
 Jones t\ Andover, 10 Allen, 18 
 
 531, 539 
 
 V. Boyce, 1 Stark. 493 
 
 416, 428-430 
 
 «. Chicago, M. & St. P. R. 
 
 Co. '42 Minn. 183. ..394, 396 
 V. Chicago, St. P. M. & O. 
 
 R. Co. 43 Minn. 279... 406 
 t. Cincinnati, S. & M. R. 
 
 Co. 89 Ala. 376 579 
 
 t\ Eastern Co.'R. Co. 1 Nev. 
 
 &McN.R. Cas. 45,3C. 
 
 B. N. S. 718..-- 506 
 
 V. East Tennessee, V. &> G. 
 
 R. Co. 128 U. S. 443. 32 
 
 L.ed. 478 398 
 
 V. Grand Trunk R. Co. 16 
 
 Ont. App. Rep. 37, 39 
 
 Am. it Ensr. R. Cas. 487 384 
 r. Norwir!h& N. Y. Transp. 
 
 Co. 50 Barb. 193. ..585. 588 
 T. Pennsylvania R. Co. 8 
 
 Mackey, 178 548, 549 
 
 V. Van Zand!, 4 McLean, 
 
 604 609 
 
 r, Voorhees, 10 Ohio, 145.. 
 
 .-267,208, 516, 570 
 
 Jordan v. Cincinnati, N. O. & T. 
 
 P. R. Co. (Ky.) 11 Ky. 
 
 L. Rep. 204 638 
 
 V. Fall River J{. Co. 5 Cusb. 
 
 69.51 Am. Dec. 44.5(i2, 563 
 Jordon /•. New York, II. Sc H. R. 
 
 Co. :',(} X. V.S. i{, 670- 756 
 
 Joslyn V. Nickerson, 1 Fed. Rep. * 
 
 137 304 
 
 Judge of Probate v. Hibbard, 44 
 
 Vt. 597 644 
 
 June V. Boston & A. R. Co. 153 
 
 Mass. 79 6 
 
 Juniata, The, 93 U. S. 337, 23 L. 
 
 ed. 930 07.> 
 
 Kalamazoo Hack k B. Co. v. 
 
 Sootsma. 10 L. R. A. 
 
 819, 84 Mich. 194 
 
 114. 117, 121 
 
 Kane?;. Smith, 80 N. Y. 458 599 
 
 Kansas Central R. Co. v. Allen, 24 
 
 Kan. 35 720 
 
 Kansas City, M. & B. R. Co. v. 
 
 Higdon (Ala.) 14 L. R. 
 
 A. 515 570, 576. 580 
 
 V. Riley, 13 L. R. A. 38, 68 
 
 Miss. 765 524 
 
 Kansas City, St. J. & C. B. R. Co. 
 
 V. Rodebaugh, 38 Kan. 
 
 45 516, 518 
 
 Kansas Pao. R. Co. «. Kessler, 18 
 
 Kan. 523 178, 257 
 
 V. Miller. 2 Colo. 442 
 
 48, 59, 74, 216, 622, 694, 695 
 
 r. Peavey, 34 Kan. 472 .... 760 
 
 V. Reynolds, 17 Kan. 251... 267 
 
 V. Whipple. 39 Kan. 531... 729 
 
 Karr f. Parks, 40 Cal. 188... .416, 417 
 
 Kaveny r. Troy, 108 N. Y. 572... 105 
 
 Kearney v. Boston & W. R. Corp. 
 
 9 Cush. 108 -.617, 618, 639 
 Keefe v. Boston <fe A. R. Co. 142 
 
 Mass. 251 101. 138 
 
 Keeley v. Boston A: M. R. Co. 67 
 
 Me. 163 .- 157 
 
 r. Erie R. Co. 47 How. Pr. 
 
 256 54 
 
 Keene v. Lizardi, 5 La. 431.. .344, 345 
 V. The Whistler. 2 Sawy. 
 
 348 -. 292 
 
 Keith v. Pinkham, 43 Me. 501 ..48, 72 
 Keller r. Equitable F. Ins. Co, 28 
 
 Ind. 170.. 516 
 
 v. Hestonville. M. & F. P. 
 
 R. Co. 1 Pa. Dist. Rep. 
 
 197 701 
 
 Kellelt V. Chicago & A. R. Co. 22 
 
 Mo. App. 35*). 514 
 
 Kelley v. Chicatro, M. & St. P. R. 
 
 Co. 50 Wis. 381 642 
 
 Kellow /•. Central Iowa R. Co. 68 
 
 Iowa, 470.2, 30. 141,624, 637
 
 TABI-E OK CASKS. 
 
 xlv 
 
 Kelly V. Central 11. Co. 5 McCrary, 
 
 653 656 
 
 V. Hannibal & St. J. R. Co. 
 
 70 Mo. 609 30, 31 
 
 v. Hendrie, 26 Mich. 255... 656 
 V. Manhattan \i. Co. 3 L. R. 
 
 A. 74, 112 N. Y. 443.. 
 
 94, 95, 106, 107, 220 
 
 ®. New York & S. B. R. Co. 
 
 109 N. Y. 44 
 
 27, 29, 95, 99, 218. 310, 700 
 
 V. West, 80 N. Y. 139 633 
 
 Kelsey v. Michigan C. R. Co. 28 
 
 Hun, 400 515 
 
 Kennard v. Burton, 25 Mc, 39.606, 739 
 Kennedy v. North Mo. R. Co. 36 
 
 Mo. 351 608 
 
 T. Ryall, 67 N. Y. 379 331 
 
 i\ Standard S. Ref. 125 Mass. 
 
 90 639 
 
 Kenney v. New York C. & H. R. 
 
 R Co. 125 N.Y. 426.9, 266 
 Kennon /•. Gilmer, 5 Mont. 257, 51 
 
 Am. Rep. 45 22, 758 
 
 Kent V. Baltimore & O. R. Co. 45 
 
 Ohio St. 284... 516, 518, 519 
 V. ]\ndland R. Co. L. R. 10 
 
 Q. B. 1 589 
 
 Kentucky ife I. B. Co. v. Louis- 
 ville & N. R. Co. 2 
 
 Inters. Com. Rep. 351, 
 
 37 Fed. Rep. 567 
 
 .-119, 450,489, 525 
 
 T. Quinkert, 2 Ind. App. 
 
 244 410 
 
 Kentucky Cent. R. Co. v. Thomas, 
 
 79 Ky. 160 -_63, 669 
 
 1). WaJnwrifrht (Ky.) March 
 
 20, 1890 688 
 
 Keokuk N. L. P. Co. v. True. 88 
 
 111. 608 2, 13, 156, 365 
 
 Ker «. Mountain, 1 Esp. 27 228 
 
 Kern r. Bridwell, 119 lud. 226.-. 
 
 --..708, 716 
 
 V. De Castro & D. S. Ref. 
 
 Co. 125 N. Y. 50 309 
 
 Kerrigan v. Southern P. R. Co. 81 
 
 Cal. 248 ■ 529 
 
 Kerwhacker v. Cleveland, C. & C. 
 
 R. Co. 3 Ohio St. 172.. 532 
 Kessler «. New York C. & H. R. 
 
 R. Co. 61 N. Y. 538... 588 
 Ketchum «. American M. U. Exp. 
 
 Co. 52 Mo. 390 268 
 
 T. Texas & P. R. Co. 38 La. " 
 
 Ann. 777 757 
 
 Kewh V. Pullman P. C. Co. 17 
 
 Chicago Leg. News, 
 
 196 242 
 
 Keyser v. Chicago & G. T. R. Co. 
 
 56 Mich. 559, 66 :\Iicli. 
 
 390 721, 752 
 
 Kidd V. Pearson, 128 U. S. 1, 33 L. 
 
 ed. 346 441 
 
 Kidder t. Dunstable, 7 Gray, 104 
 
 669, 670 
 
 Killmer r. New York C. & IT. R. 
 
 R. Co. 100 N. Y. 395-. 508 
 Kilpatrick v. Penn.sylvania R. Co. 
 
 140 Pa. 502 393 
 
 Kimball v. Rutland vk B. R. Co. 26 
 
 Vt. 247 272 
 
 King V. Henkie, 80 Ala. 505 --623, 636 
 r. Illinois C. R. Co. (Miss.) 
 
 Oct. Term, 1891 356 
 
 V. Ohio & M. R. Co. 22 Fed. 
 
 Rep. 413 167 
 
 r. Root, 4 Wend. 118 608 
 
 V. Woodhridge, 34 Vt. 565. 516 
 Kingdom «. Nottle, 1 Maule & S. 
 
 355 - 614 
 
 Kinney v. Cent. R. Co. of N. J. 32 
 
 N. J. L. 407 272 
 
 T. Crocker, 18 Wis. 74- -596, 633 
 V. Folkerls, 84 Mich. 616... 706 
 'c. N. J. Cent. R. Co. 34 N. 
 
 ,J. L. 513 7,277 
 
 v. Springfleld, 35 Mo. App. 
 
 97.- 718, 720 
 
 V. Troy, 11 Cent. Rep. 454, 
 
 108 N. Y. 570..- 105 
 
 Kinsley v. Lake Shore & M. S. R. 
 
 Co. 128 Mass. 54 
 
 553. 556, .559 
 
 Kirkman v. Shawcross, 6 T. R. 
 
 17 231 
 
 Kleiber v. People's R. Co. (Mo.) 14 
 
 L. R. A. 613 
 
 --- -419, 421, 424, 427 
 
 Klein r. Hamburg-Am. Packet Co. 
 
 3 Daly, 390 -. 585 
 
 V. Jewett, 26 N. J. Eq. 474 
 
 -.. 131, 596 
 
 Kline v. Central P. R. Co. 37 Cal. 
 
 400. -.- - 344 
 
 Klingman x. Holmes, 54 Mo. 304 
 
 . 607,608 
 
 Knell V. United States & B. S. S. 
 
 Co. 1 Jones & S. 423... 266 
 Knight r. Portland, S. & P. R. Co. 
 
 56 Me. 234- 
 
 ....54, 74, 96, 128, 525, 529 
 T. West Jersey R. Co. 108 
 
 Pa. 250 644, 650 
 
 Knights V. Quarles, 2 Brod. & B. 
 
 102 - 633 
 
 Knightstown v. Musgrove, 116 
 
 Ind. 121, 124 736, 741
 
 xl 
 
 VI 
 
 TABLE OF CASES. 
 
 Knowlton v. Erie R. Co. 19 Ohio 
 
 St. 260 267. 268 
 
 Knox V. Rives, 14 Ala. 249 1 
 
 Knupfle V. Knickerbocker Ice Co. 
 
 84 N. Y. 4S8 325 
 
 Koehler, Ex parte, 1 Inters. Com. 
 
 Rep. 317, 31 Fefl. Rep. 
 
 115. 505 
 
 Koeningu Covington (Kv.)13 Ky. 
 
 L. Rep. 251./. -. 638 
 
 Koetter v. Manhattan Elev. R. Co. 
 
 36 K Y. S.R. 611.328. 758 
 Kolb V. Bankhead, 18 Tex. 228... 608 
 Kosciusko t. Slomberg, 12 L. R. 
 
 A. 528, 68 Miss. 469... 295 
 Kramer x. San Francisco M. St. R. 
 
 Co. 25 Cal. 434.617, 618, 635 
 Kreuzen r. Forty second St. M. tfe 
 
 St. N. Ave. R. Co. 38 
 
 N. Y. S. R. 461 417 
 
 Krulevitz «. Eastern R. Co. 143 
 
 Mass. 328, 140 Mass. 
 
 578 ..352, 359 
 
 Kunz v. Troy, 104 N. Y. 344.. 729, 730 
 Kyne v. Wilraington & N. R. Co. 
 
 (Del.)l3 Cent. Rep. 391 
 
 666, 731 
 
 La Crosse Mfg. & J. Union v. 
 
 Chicago, M. & St. P. R. 
 
 Co. 2 Inters. Com. Rep. 
 
 9 501 
 
 Ladd V. Foster, 31 Fed. Rep. 827. 
 
 28,29, 216, 416 
 
 Lafayette & I. R. Co. v. Sims, 27 
 
 Ind. 59 227 
 
 Lafayette Ins. Co. v. French, 59 
 
 U. S. 18 How. 404, 15 
 
 L. ed. 451 609 
 
 Laffey ''. Grummond, 3 L. R. A. 
 
 287. 74 Mich. 186. 588 
 
 Lafflin v. Bullalo & S. W. R. Co. 
 
 100 N. Y. 136 
 
 94, 132, 133. 220, 378 
 
 Latitte v. New Orleans C. & L. R. 
 
 Co. 12 L. R. A. 337, 43 
 
 La. Ann. 34 
 
 334. 345, 346, 351 
 
 Laing v. Colder, 8 Pa. 479, 49 Am. 
 
 Dec. 533 28, 74, 
 
 215, 207, 633, 692, 696, 702 
 
 Lake?). Milliken, 62 Me. 240 425 
 
 Lake Erie & W. R. Co. t. Fi.\. H8 
 
 Ind. 381 .186, 20K, 209 
 
 Lake Shore tii M. S. II. Co. v. 
 
 Bangs, 47 Mich. 470... 
 
 155, 150, 394 
 
 Lake Shore & M. S. R. Co. ii. 
 
 Brown, 123111. 162 273 
 
 v. Cincinnati, S. & C. R. Co. 
 
 30 Ohio St. 604, 616... 464 
 V. Foster, 104 Ind. 293 
 
 6.560. 571, 575 
 
 v. Greenwood, 79 Pa. 373.. 
 
 : 248, 257 
 
 V. Lassen, 12 111. App. 659 . 555 
 
 r. Miller, 25 Mich. 274 380 
 
 V. Pierce, 47 Mich. 277.. 172. 179 
 v. Rosenzwoig, 118 Pa. 519 
 
 ■; 10, 
 
 159, 176, 179, 235, 579, 671 
 V. Ward, 35 111. App. 423, 
 
 aflE'dl35Ill. 511 92, 96 
 
 Lakin v. Oregon P. R. Co. 15 Or. 
 
 220 158, 835, 347, 348 
 
 V. Willamette V. & C. R. 
 
 Co. 13 Or. 436 544, 610 
 
 Lambeth v. North Carolina R. Co. 
 
 66N. C. 494 155 
 
 Lammert v. Chicago & A. R. Co. 
 
 9 111. xVpp. 388 18 
 
 Lamphear v. Buckingliam, 33 
 
 Conn. 238 594 
 
 Lampkins »x Vicksburg, S. & P. 
 
 R. Co. 42 La. Ann. 997 760 
 Landers «. Staten Island R. Co. 13 
 
 Abb. Pr. N. S. 388 540 
 
 Landrigan «. State, 31 Ark. 50 115 
 
 Lane v. Atlantic Works, 111 Mass. 
 
 186 670 
 
 r. Cotton, 1 Salk. 148 72 
 
 c. East Tenn., V. & G. li. 
 
 Co. 5 Lea, 124 172, 181 
 
 Lang ®. Sanger. 76 Wis. 71 727 
 
 Laugdon ». St. Lonis, I. M. & S, 
 
 R. Co. 72 Mo. 392 7 
 
 Langley v. Boston k. M. R. Co. 10 
 
 Gray, 108. 547 
 
 'c. Sixth Ave. R. Co. 16 
 
 Jones & S. 542 760 
 
 Lapleine v. Morgan's L. & T. R. & 
 
 S. B.t'o. 1 L.R. A. 378, 
 
 40 La. Ann. 661, 660.. 
 
 ..151, 746, 747 
 
 Larrison v. Chicago & G. T. R. 
 
 Co. 1 Inters. Com. Rep. 
 
 869 510 
 
 Larue v. Farren Hotel Co. 116 
 
 Mass. 67 819, 321 
 
 Latch V. Riimner R. Co. 27 L. J. 
 
 N. S. Exch. 155 76 
 
 La Tourette «. Burton, 68 U. S. 1 
 
 Wall. 48, 17 L. ed. 
 
 609 29(; 
 
 Laubheim v. DeKoninglyke N. S. 
 
 M. Co. 107N.Y. 21.^9..- 290 
 Laura, The, 8 Fed. Rep. 612 805
 
 TABLE OF CASE?. 
 
 X 
 
 Ivii 
 
 Laura M. Starin, The, 11 Fed. Rep. 
 
 177 800, 305. 306 
 
 Law V. Illinois Cent. R. Co. 32 
 
 Iowa, 534 256 
 
 Lawless v. Connecticut River R. 
 
 Co. 136 Mass. 1 62 
 
 Lawrence v. Green, 70 Cal. 417, 59 
 
 Am. Rep. 428 
 
 2, 26. 28, 217, 694 
 
 V. New York, P. & B. R. Co. 
 
 36 Conn. 63. r266, 272 
 
 r. Ocean Ins. Co. 11 Johns. 
 
 245 712 
 
 Learoyd v. Godfrey, 138 l\Iass. 315 319 
 Leary v. Cleveland, C. C. & I. R. 
 
 Co. 78Ind. 323 125 
 
 LeBarron v. East Boston F. Co. 8 
 
 Allen, 227 60 
 
 c. East Boston F. Co. 11 
 
 Allen, 312, 87 Am. Dec. 
 
 717 45, 59, 60, 701 
 
 LeBlanche v. London & N. W. R. 
 
 Co.L.R. IC. P. Div.286 229 
 LeCouteur v. London & S. W. R. 
 
 Co. 6 Best & S. 961 . . - 556 
 LeForest v. Tolman, 117 Mass. 109, 
 
 19 Am. Rep. 400, 
 
 643, 644, 646, 647 
 
 Leggett V. Western ISI Y. & P. R. 
 
 Co. 143 Pa. 39.152, 417, 692 
 Lehigh & W. B. C. Co. v. Lear 
 
 (Pa.) 8 Cent. Rep. 107.. 664 
 Lehigh Iron Co. i\ Rupp, 100 Pa. 
 
 95 628, 640 
 
 Lehigh Valley R. Co. v. Greiner, 
 
 113 Pa. 600 406, 668 
 
 V. Hall, 61 Pa. 366 678 
 
 Lehman v. Brooklyn C. R. Co. 47 
 
 Hun, 355 673 
 
 V. Louisiana W. R. Co. 37 
 
 La. Ann. 707 221 
 
 Leisy v. Hardin, 135 U. S. 100, 34 
 
 L. ed. 128... 
 
 435, 436, 445, 449, 542, 543 
 Leloup V. Mobile, 127 U. S. 640, 32 
 
 L.ed.311 542 
 
 Lemon v. Chanslor, 68 Mo. 340, 30 
 
 Am. Rep. 799.. 
 
 30, 31. 265, 272, 694 
 
 Lemont v. Washington &G. R. Co. 
 
 1 Mackey, 180.161, 223, 225 
 Lent T. New York & M. R. Co. 55 
 
 Hun. 180 376 
 
 V. New York C. & H. R. R. 
 
 Co. 120 N. Y. 467.. 141, 668 
 Leonard v. Columbia S. Nav. Co. 
 
 84 N. Y. 48, 38 Am. Rep. 
 
 491 603, 650, 653 
 
 V. Southern P. R. Co. 30 
 
 Minn. 465 723 
 
 Leonard v. Southern P.R.Co. 15 L. 
 
 R. A. 221,21 Or. 555... 
 
 706, 723 
 
 Lesher r. Wabash Nav. Co. 14 111. 
 
 85 546 
 
 Leslie v. Lewiston, 62 Me. 468 731 
 
 V. Wabash. St. L. & P. R. 
 
 Co. 88 Mo. 55... 30, 31, 139 
 Levering v. Union T. & Ins. Co. 42 
 
 Mo. 88 272 
 
 Levi V. Lynn ifc B. R. Co. 11 Allen, 
 
 300 552 
 
 Lewis r. Flint .fe P. M. R. Co. 54 
 
 Mich. 55 76 
 
 '.'. New York Sleeping Car 
 
 Co. 143 Mass. 267. 
 
 242, 243, 246. 557, 558, 575 
 Lillis V. St. Louis, K. C. & N. R. 
 
 Co. 64 Mo. 464.185, 509, 521 
 Limburger v. Westcott, 49 Barb. 
 
 283 -- 515 
 
 Limekiller v. Hannibal & St. J. R. 
 
 Co. 33 Kan. 83, 52 Am. 
 
 Rep. 524, 19Am. &Eng. 
 
 R. Cas. 184,71 635, 644 
 
 Linipus V. London Gen. O. Co. 1 
 
 Hurlst. & C. 526 333 
 
 Linn v. Terre Haute & I. R. Co. 10 
 
 Mo. App. 125 590, 745 
 
 Linuehan v. Sampson, 126 Mass. 
 
 506, 30 Am. Rep. 692 .. 416 
 Liscomb v. New Jersey R. & T. Co. 
 
 6Lans. 74: 101, 108 
 
 List V. Pennsylvania, 1 Inters. 
 
 Com. Rep. 785, 118 Pa. 
 
 322 444, 478 
 
 Lister v. Wright, 2 Hill, 320 652 
 
 Little V. Dusenberry, 46 N. J. L. 
 
 614. 50 Am. Rep, 445.. 
 
 594, 596 
 
 Littlejohn v. Fitchburg R. Co. 2 L. 
 
 R. A. 502, 148 Mass. 478 
 
 .17. 278. 279, 549 
 
 Little Miami R. Co. v. Wetmore, 19 
 
 Ohio St. 110 372, 373 
 
 Little Rock & Ft. S. R. Co. v. 
 
 Barker, 39 Ark. 491 660 
 
 «. Dean, 43 Ark. 529 522 
 
 v. Eubanks, 48Ark. 460 722 
 
 V. Hanniford, 49 Ark. 291, 1 
 
 Inters. Com. Rep. 580.. 
 
 231,443 
 
 V. Miles, 40 Ark. 298.. 279 
 
 V. Tankersley, 54 Ark. 25.. 
 
 391, 396 
 
 & M. R. Co. V. East Tenn. 
 
 V. & G. R. Co. 2 
 
 Inters. Com. Rep. 454_. 525 
 Littlewood v. New York, 89 N. Y. 
 
 24 627, 656
 
 xlviii 
 
 TABLE OF OASES. 
 
 Liver Alkali Co. v. Johnson, L. R. ■ 
 
 7 Exch. 267, L. R. 9 
 
 Excb. 338 3, 296 
 
 Liverpool & G. W. S. Co. v. Phe- 
 
 nix Ins. Co. 129 U. S. 
 
 397, 32L. ed.788 264 
 
 Lizzie Frank, The, 31 Fed. Rep. 
 
 477 -- 676 
 
 Lockhart v. Litcheathaler, 46 Pa. 
 
 151.- 742 
 
 V. Little Rock & M. R. Co. 
 
 40 Fed. Rep. 631 549 
 
 Lockwood «. Tvrenty-third St. R. 
 
 Co. 15 Daly, 374 759 
 
 Lof tus V. Union Ferry Co. 84 N. Y. 
 
 455- 108, 109 
 
 Logan V. Hannibal & St. J. R. Co. 
 
 77 Mo. 669- ---- 523 
 
 t. Pontchartrain R. Co. 11 
 
 Rob. (La.) 24 551. 560 
 
 Lombar v. East Tawas, 86 Mich. 14 726 
 London & B. R. Co. v. Watson, L. 
 
 R. 3C.P. Div. 249 170 
 
 London & N. W. R. Co. i:. Hella- 
 
 weli. 26 L. T. N. S. 557 140 
 Long V. Chicago, K. & W. R. Co. 
 
 (Kan.) 15 L. R. A. 319- 330 
 V. Home, 1 Car. & P. 612 -. 24 
 ^■. Morrison, 14 Ind. 595 
 
 -.- - .605,606, 618 
 
 V. Pennsylvania R. Co. (Pa.) 
 
 14 L. R.'A. 741.-- -- 554 
 
 Longenecker v. Pennsylvania R. 
 
 Co. 105 Pa. 332- - 680 
 
 LougmeidtJ. Hollidav, 6 Exch. 761, 
 
 20 L. J. Exch. 130 .-54, 315 
 Longmore v. Great Western R. Co. 
 
 19 C. B. N. S. 183, 35 
 
 L. C. P. 135,«.-102, 122, 127 
 Looney r. McLean, 129 Mass. 33-- 321 
 Lord V. Goodall N. & P. SS. Co. 
 
 102 U.S. 541,26 L. ed. 
 
 224, 4 Sawy. 292. - .292, 303 
 Loses V. Buchanan, 51 N. Y. 476. 
 
 76,285 
 
 i>. Clute, 51 N. Y. 494 54 
 
 Lotty, The, Olcott. 329 76 
 
 Louisiana v. .fumel, 107 U. S. 711, 
 
 27L. ed. 448 486 
 
 Louisiana M. In.s. Co. v. Tweed, 74 
 
 U. 8. 7 Wall. 44, 19 L. 
 
 ed. 888 673 
 
 rjOuisville«& N. R. Co. v. Baldwin, 
 
 85 Ala. 619 443 
 
 T. Ballard (Ky.) 3 L. R. A. 
 
 694 148 
 
 v. Berry, 10 Ky. L. F{ep. 791 397 
 
 V. Bisch, 120 Ind. 549 409 
 
 t. Burke. 6 (Joldw. 45 628 
 
 Louisville & N. R. Co. ». Collins, 
 
 2Duv. 114 80 
 
 V. Conner, 2 Baxt. 382 690 
 
 1). Coppage, 12 Ky. L. Rep. 
 
 200 ^ G38 
 
 v. Crunk, 119 Ind. 542- -151, 284 
 
 «. Fox, 11 Bush, 505 724 
 
 'c. Garrett, 8 Lea, 438... 185, 192 
 
 V. Hall, 91 Ala. 112 666 
 
 V. Johnson (Ala.) 47 .\m. & 
 
 Eng. R. Cas. 611 213 
 
 V. Johnston, 79 Ala. 436 132 
 
 V. Jones, 83 Ala. 376 
 
 52, 59, 60, 605, 695 
 
 t. Logan, 3 L. R. A. 80, 88 
 
 Ky. 232-. -161, 103-165, 372 
 
 V. McCoy, 81 Ky. 403- 664 
 
 t. May bin. 66 Miss. 83 
 
 162, 165, 169, 186,-188 
 
 T. Oden, 80 Ala. 38 262 
 
 ■n. Orr, 91 Ala. 548.. 657 
 
 r. Ritter, 85 Ky. 368 695 
 
 V. Sickings, 5 Bush, 1 405 
 
 V. Smith, 87 Kv. 501 625 
 
 t\ Slacker, 86 Tenn. 343... 393 
 /•. Weaver, 9 Lea, 38-. .527. 589 
 V. Whitman, 79 Ala. 328.. 
 
 337, 340 
 
 V. Wynn, 88 Tenn. 320 .... 267 
 Louisville & N. W. R. Co. «. 
 
 Wilsey (Ky.)5L. R.A. 
 
 855... 188 
 
 Louisville & P. Canal Co. t. 
 
 Murphy, 9 Bush, 522.. 731 
 Louisville & P. R. Co. v. Smith, 
 
 2 Duv. 556 695 
 
 Louisville, C. & L. R. Co. v. Case, 
 
 9 Bush, 728.... 742 
 
 c. Goetz, 79 Ky. 442 692 
 
 «. Mahan, 8 Bush, 184.. 585, 588 
 
 t). Sullivan. 81 Ky. 625 225 
 
 V, Switzerland M. Ins. Co. 
 
 131 U. S. 440, 33 L. ed. 
 
 204 566 
 
 Louisville C. R. Co. v. Weams, 80 
 
 Ky. 420 59, 665 
 
 Louisville C. Co. v. Stokes, 78 Ala. 
 
 372 576 
 
 Louisville, N. " &' G." S. ' R.' Co.' «" 
 
 Fleming, 14 Lea, 128. 
 
 .168,197, 202, 284 
 
 v. Harris, 9 Lea, 180 
 
 192, 193, 520 
 
 V. Kalzenberger, 16 Lea, 380 582 
 Louisville, N. A. & C. R. Co. v. 
 
 Brooks, 83 Ky. 129-... 659 
 1}. Buck, 2 L. R. A. 520, 116 
 
 Ind. 566.. 532, 540. 541. 622 
 v'.Creek(Ind.)14L.R.A. 733 737
 
 TABLE OF OASES. 
 
 xlix 
 
 Louisville, N. A. & C. K. Co. 
 
 V. Dunkin, 92 Ind. fiOl 344 
 
 V. Falvey, 104 Ind. 409.... 
 
 671, 746, 747 
 
 V. Faylor, 126 Ind. 126 
 
 273, 278, 691, 695 
 
 V. Frawley, 110 Ind. 18.... 540 
 r. Goodykoontz, 119 Ind. Ill G37 
 V. Hendricks, 128 Ind. 462 
 
 691, 695 
 
 V. Jones, 108 Ind. 551 
 
 27, 695, 746 
 
 V. Lucas, 6 L. R. A. 193, 119 
 
 Ind. 583 97, 126, 376 
 
 V. Nitsche, 9 L. R. A. 750, 
 
 126 Ind. 229 671 
 
 V. Pedigo. 108 Ind. 481 26 
 
 V. Snider, 3 L. R. A. 434, 
 
 117 Ind. 435 57, 
 
 151, 218, 401, 671, 694, 746 
 
 ■0. Sumner, 106 Ind; 55 90 
 
 V. Thompson, 107 Ind. 442. 
 
 68, 71, 252, 624 
 
 V. Wolfe, 128 Ind. 347.-161, 176 
 V. Wood, 113 Ind. 544, 567, 
 
 570-.130, 153, 329, 746, 752 
 V. Wood, 120 Ind. 262. 265. 670 
 Louisville, N. O. & T. R. Co. v. 
 
 Mask, 64 Miss. 738.138, 139 
 V. Mississippi, 2 Inters. Com. 
 
 Rep. 801, 133 U. S. 587, 
 
 33 L. ed. 784 440 
 
 V. State, 2 Inters. Com. Rep. 
 
 615, 5 L. R. A. 132, 66 
 
 Miss. 662 235, 444, 449 
 
 V. Tliompson, 64 Miss. 584. 
 
 137, 754 
 
 Louisville S. R. Co. v. Minogue 
 
 12 Ky. L. Rep. 378.... 760 
 Louisville Underwriters, Re, 134U. 
 
 S. 493, 33 L. ed. 994... 610 
 Lovett V. Salem & S. D. R. Co. 9 
 
 Allen, 557.. 225 
 
 Low V. Grand Trunk R. Co. 72 
 
 Me. 313, 39 Am. Rep. 
 
 331 ..103, 121 
 
 Lowery v. Manhattan R. Co. 99 N. 
 
 Y. 158 376 
 
 Loyd V. Hannibal c% St. J. R. Co. 
 
 53 Mo. 509 708, 717 
 
 Lucas V. Milwaukee & St. P. R. 
 
 Co. 33 Wis. 41 252, 255 
 
 V. New Bedford & T. R. Co. 
 
 6 Gray, 64 284, 410 
 
 V. New York C. R. Co. 21 
 
 Barb. 245.... 618 
 
 V. Pennsylvania Co. 120 Ind. 
 
 205 101, 108 
 
 Lucy V. Lexington, 2 Lev. 26 614 
 
 Lund V. Tyngsboro, 11 Cush. 563, 
 
 59 Am. Dec. 159 
 
 .416, 417, 673 
 
 Lundy v. Central Pac. R. Co. 66 
 
 Cal. 191 521 
 
 Lunt «. London & N. W. R. Co. 
 
 L. R. 1 Q. B. 227 95 
 
 Lygo V. Newbold, 9 E.xch. 302, 23 
 L. J. N. S. Exch. 108- 
 
 14, 15 
 
 Lyman v. Boston & M. R. Co. (N. 
 
 H.) 11 L. R. A. 364.681, 725 
 V. Central Vermont R. Co. 
 
 59 Vt. 167 595, 599 
 
 Lynch v. Davis, 12 How. Pr. 323. 617 
 V. Metropolitan Elev.R. Co. 
 90 N. Y. 77, 43 Am. 
 
 Rep. 141 183, 351 
 
 V. Smith, 104 Mass. 57... 732, 739 
 
 Lyon«. Mells, 5 East, 428.. 22 
 
 Lyons v. Broadway & S. A. R. Co. 
 
 32 N. Y. S. R. 232.343, 374 
 T. Desotelle, 134 Mass. 387. 
 
 531 539 
 V. Woodward, 49 Me. 29...' 604 
 
 M. 
 
 Mabel Comeaux, The, 24 Fed. 
 
 Rep. 490 676 
 
 Macauley -v. Furness R. Co. L. R. 
 
 8 Q. B. 57. 264, 278 
 
 McAunich v. Mississippi & M. R. 
 
 Co. 20 Iowa, 338 411 
 
 McBride v. McLaughlin, 5 Watts, 
 
 375 - ..159, 608 
 
 ». Northern P. R. Co. 19 Or. 
 
 64 678 
 
 M'Call V. Brock, 5 Strobh. L. 124. 68 
 V. California, 3 Inters. Cora. 
 
 Rep. 181, 136 U. S. 104, 
 
 34 L. ed. 391 443, 542 
 
 McCance v. London & N. W. R. 
 
 Co. 7 Hurlst. & N. 477. 264 
 McCarthy r. Chicago, R. I. & P. 
 
 R. Co. 41 Iowa, 432.162, 173 
 V. Chicago, R. I. & P. R. Co. 
 
 18 Kan. 46, 49 
 
 603, 643, 646. 647, 655 
 
 V. Dublin, W. & W. R. Co. 
 
 5 Ir. C. L. Rep. 244.172, 236 
 T. Tennessee C. & I. R. Co. 
 
 93 Ala. 356 16,409 
 
 McClary v. Sioux City & P. R. Co. 
 
 3 Neb. 45 .48, 72 
 
 McClure v. Hammond, 1 Bay, 99. 297 
 V. Philadelphia, W. & B. R. 
 
 Co. 34 Md. 532 
 
 ..199, 201. 521-523
 
 1 
 
 TABLE OF CASES. 
 
 McCord T. Western U. Teleg. Co. 
 
 1 L. R. A. 144, n. 39 
 
 Minn. 181- 328, 343 
 
 McCormick v. Hudson River R. 
 
 Co. 4 E. D. Smith, 181 570 
 McCormick r. Pennsylvania C. R. 
 
 C0.49N. Y. 303 653 
 
 T. Pennsylvania C. R. Co. 80 
 
 N. Y. 353 553 
 
 McCoy V. Kansas City, St. J. & C. 
 
 B. R. Co. 36 Mo. App. 
 
 445. 547 
 
 McCready v. Virginia, 94 U. S. 
 
 391, 24 L. ed. 248 440 
 
 McCulloch». Md. 17 U. S. 4AVheat. 
 
 421, 4 L. ed. 605 298 
 
 McDonald v. Chicago & N. W. R. 
 
 Co. 26 Iowa, 124 
 
 90, 96, 97, 
 
 125. 127, 375, 376, 389, 415 
 r. Hovey, 110 U. S. 619, 28 
 
 L.ed. 269... 506 
 
 V. Long Island R. Co. 116 
 
 N. Y. 546.... 152, 153, 391 
 V. Mallory. 77 N.Y. 546, 33 
 
 Am. Rep. 664 645, 650 
 
 ' T. Scaife, 11 Pa. 381 159 
 
 MacDougall t. Central R. Co. 63 
 
 Cal.431 689, 692 
 
 McDufifee v. Portland & R. R. Co. 
 
 52N. H. 430 502, 508 
 
 McElroy v. Na.shua «& L. R. Corp. 
 
 4Cu,sh. 400 19, 23, 
 
 30, 49, 54, 131, 218, 219, 549 
 McFadden v. New York C. R. Co. 
 
 44N. Y. 478... 66 
 
 T. Santa Anna, O. & St. R. 
 
 Co. n L. R. A. 252, 87 
 
 Cal.464 736 
 
 McFte V. South Carolina Ins. Co. 2 
 
 McCord, L. 503- 644 
 
 V. Vicksburg, S. & P. R. Co. 
 
 42La. Ann. 790.. 51 
 
 McGee v. Missouri P. R. Co. 92 Mo. 
 
 208.. 
 
 139, 117, 249, 250. 254, 260 
 McGeehan v. Lehigh Valley R. Co. 
 
 1 Pa. Adv. Hep. 704, 30 
 
 W. N. C. 140 386, 667 
 
 McGill «. Rowand, 3 Pa. 451 
 
 563, 564. 592 
 
 McGinney t. Canadian P. R. Co. 7 
 
 Manitoba Rep. 151 .223, 381 
 McGinnis v. Missouri P. R. Co. 21 
 
 Mo. App. 399 
 
 176, 208.347. 515 
 
 McGowen v. Morgan'.s L. & T. R. 
 
 &SS. Co. 5L. R. A. 817. 
 
 41 La. Ann. 732.... 170, 171 
 
 McGrath v. Merwin. 112 Mass. 467 539 
 V. New York C. & H. R. R. 
 
 Co. 63 N.Y. 523 325 
 
 McGregor c. Kilgore, 6 Ohio, 358. 
 
 297 563 
 McGrew «."Stone,"53"Pa'¥3'6'..t . .' 664 
 McGuff r. State, 88 Ala. 147.. .708, 717 
 McGuire e. The Golden Gate, 1 
 
 McAllister, 104 57, 58 
 
 Mack V. Lombard & S. Streets P. 
 
 R.W,Co.(Pa.)l8Wa8h. 
 
 L. Rep. 84 669 
 
 r. Parks, 8 Gray, 517 710 
 
 Mackay v. Central R. Co. 4 Fed. 
 
 Rep. 617, 14 Blatchf. 65 644 
 V. Ohio River R. Co. 9 L. R. 
 
 A. 132, 34 W. Va. 65... 
 
 162, 185, 199, 202 
 
 McKee v. Bidwell, 74 Pa. 218, 225 
 
 64, 726 
 
 T. Owen, 15 Mich. 115 558 
 
 McKeigue v. Deegan, 69 Wis. 300. 642 
 V. Janesville, 68 Wis. 50 
 
 613, 622, 630 
 
 McKellor v. Monitor Twp. 78 
 
 Mich. 485 . 671 
 
 McKeou r. Citizens R. Co. 42 Mo. 
 
 79.. 18. 332. 334 
 
 Macker i\ Thomas, 20 U. S. 7 
 
 Wheat. 530, 5 L. ed. 515 615 
 McKernan v. Manhattan R. Co. 22 
 
 Jones & S. 354 364 
 
 Mackey t\ Baltimore tt P. R. Co. 
 
 (D. C)18Wah. L. Rep. 
 
 767 692 
 
 McKimble «. Boston & M. R. Co. 
 
 139 Mass. 542 ..10, 101, 688 
 V. Boston & M. R. Co. 141 
 
 Mass. 463 157 
 
 McKinley v. Chicago & N. W. R. 
 
 Co. 44 Iowa, 314 340 
 
 McKinney v. Neil, 1 McLean, 540. 
 
 24, 53, 77, 216, 694 
 
 Macklin r. New Jersey S. B. Co. 7 
 
 Abb. Pr. N. S. 229, 9 
 
 Am. L. Reg. N. S. 239, 
 
 515, 557. 559. 564 
 
 McKone v. Michigan C. R. Co. 51 
 
 Mich. dOl 95, 125, 127 
 
 Mclntire v. Roberts, 4 L. R. A. 519, 
 
 149 Mass. 450 318 
 
 Mclntyre v. New York C. R. Co. 
 
 37 N. Y. 294.. 233, 376, 657 
 McLaren v . Atlanta & W. P. R. Co. 
 
 85Ga. 504 394 
 
 McLean v. Burbank, 11 Minn. 277 
 
 .27, 108, 690, 694 
 
 McLeod T. Connecticut '& P. R. R. 
 
 Co. 58 Vt. 727 646
 
 TABLK OF CASES. 
 
 McMahoD V. Davidson, 12 Minn. 
 
 357 298 
 
 V. New York. 33 N. Y. 642. 729 
 «. Northern C. R. Co. 39 Md. 
 
 439... 733 
 
 McManus v. Crickett, 1 East. 106. 334 
 McMillan i). Michigan S. &N.I. R. 
 
 Co. 16 Mich. 79 515 
 
 McMurlry /'. Louisville, N. O. &T. 
 
 U. Co. 67 Miss. 601 396 
 
 McNanaara v. Slaven.s, 76 Mo. 329 640 
 McNichol V. U. S. M. R. Agency, 
 
 74 Mo. 457 609 
 
 McNulta ?'. Ensch, 31 III. App. 100, 
 
 134 111.46 __..139, 140 
 
 -v. Lochridge, 141 U. S. 327, 
 
 35L. ed. 796 599, 600 
 
 Macon & A. R. Co. v. Mayes. 49 
 
 Ga. 355 544, 546 
 
 McPadden ®. New York C. R. Co. 
 
 44N.Y.478 
 
 .27, 48, 58, 64, 72, 216 
 
 McQuigan v. Del., L. & W. R. Co. 
 
 14 L. R. A. 466. 129 N. 
 
 Y. 50 714, 715 
 
 McQuilken v. Central Pac. R. Co. 
 
 50Cal. 7 689 
 
 McRae v. Wilmington & W.R. Co. 
 
 88 N. C. 526 375 
 
 McRickard v. Flint, 114 N. Y. 322, 
 
 323, 412 
 
 Macrow t. Great W. R. Co. L. R. 6 
 
 Q. B. 612-.553, 555, 561, 568 
 McSwyny c. Broadway & S. Ave. 
 
 R. Co. 27 N. Y. S. R. 
 
 363 708, 717 
 
 McVeety v. St. Paul, M. & M. R. 
 
 Co. 11 L. R. A. 174. 45 
 
 Minn. 268 15, 17 
 
 McWhorter v. Pensacola & A. R. 
 
 Co. 2 L. R. A. 504, 24 
 
 Fla. 417, 13 Am. 8t. 
 
 Rep. 220 483 
 
 McWilliams v. Bragg, 3 Wis. 424. 608 
 
 V. Hobau, 42 Md. 56 608 
 
 Madan v. Sherard, 73 N. Y. 329... 
 
 516, 573 
 
 Madden v. Chesapeake &0. R. Co. 
 
 28 W. Va. 610.... 642 
 
 Mad River & L. E. R. Co. v. Ful- 
 ton, 20 Ohio, 318 570 
 
 Magee v. Holland, 37 N. J. L. 86.. 
 
 - 607,608 
 
 V. Oregon R. & Nav. Co. 46 
 
 Fed. Rep. 734 203, 211 
 
 Magnin v. Dinsmore, 56 N.Y^ 168, 
 
 63 N. Y. 35.265. 266, 273, 582 
 Magoffin p. Missouri P. R. Co. 103 
 
 Mo. 540 8, 9, 691, 695 
 
 Maher v. Central Park. N. & E. R. 
 
 Co. 67N. Y. 52 43. 728 
 
 Mahogany «. Ward, 16 R. I. 479.. 
 
 ..669, 670 
 
 Mahoney v. Atlantic & St. L. R. 
 
 Co. 63 Me. 68 547 
 
 Malcom v. Richmond & D. R. Co. 
 
 106 N. C. 63_. 154, 409 
 
 Malecek ». Tower Grove R. Co. 57 
 
 Mo. 17 340 
 
 Malone v. Boston »fe W. R. Corp. 13 
 
 Gray. 388.. 615, 516 
 
 Mangan v. Atterton, L. R. 1 Exch. 
 
 339 742 
 
 V. Brook[yn'R.'Co.'38'N.Y' 
 
 455 729 
 
 Manhasset, The, 19 Fed. Rep. 
 
 430 675 
 
 Manhattan, A. & B. R. Co. v. Slew- 
 art, 30 Kan. 326 731 
 
 Manitoba, The, 122 U. S. 97, 30 L. 
 
 ed. 1095 .. 675 
 
 Mann v. Birchard, 40 Vt.326 
 
 262, 266, 272 
 
 Manning v. Dallas, 73 Cal. 420 631 
 
 V. Louisville & N. R. Co. 
 
 (Ala.) 16 L. R. A. 55... 195 
 Manser v. Eastern Counties R. Co. 
 
 3L. T. N. S. 585 57, 58 
 
 Manzoni v. Douglas, L. R. 6 Q. B. 
 
 Div. 145 76 
 
 Maples t'. New York &, N. H. R.Co. 
 
 38 Conn. 557. 
 
 184, 187, 509 
 
 Marble v. Ross, 124 Mas.«. 44 539 
 
 March r.. Concord R. Co. 29 N. H. 
 
 942 259 
 
 Marcy v. Merchants' Mut. Ins. Co. 
 
 19 La. Ann. 388 673 
 
 Marianna Flora, The, 24 U. S. 11 
 
 Wheat. 1, 6 L. ed. 405. 674 
 Marine Ins. Co. v. 8t. T>oui8, \. X. 
 
 &S. R.Co. 41 Fed. Rep. 
 
 643 670 
 
 Marrott, Re, 1 C. B. N. S. 499 115 
 
 Mark v. Hudson River Bridge Co. 
 
 103 N. Y. 28 664 
 
 T. St. Paul, M. & M. R. Co. 
 
 30 Minn. 493 417 
 
 V. St. Paul, M. & M. R. Co. 
 
 32 Minn. 208 95 
 
 Markham v. Brown, 8 N. H. 523, 
 
 31 Am. Dec. 209 
 
 117, 160, 355 
 
 Maroney v. Old Colony & N. R. 
 
 Co. 106 Mass. 153 
 
 169,238,511 
 
 Marquette ». Chicago & N. W. R. 
 
 Co. 33 Iowa, 563. -.235, 344
 
 lii 
 
 TABLE OB' CASES. 
 
 Marriott v. London & S. W. R.Co. 
 
 1 C. B. N. S.49y 
 
 114.118. 120, 375 
 
 Marsh v. Cbickering, 101 N. Y. 
 
 396 ---- 109 
 
 V. Fairbury. P. & N. W. R. 
 
 Co. 64 111. 414 90 
 
 Marshall v. St. Louis, K. C. & N. 
 
 R, Co. 78 Mo. 610 179 
 
 V. York, N. & B. R. Co. 21 
 L. J. N. S. C. P. 34. 11 
 
 C. B. 655 4, 5, 19, 20 
 
 Martin v. Great Indian P. R. Co. 
 
 L. R. 3Exch. 9 19, 573 
 
 «. Great Northern R. Co. 16 
 
 C. B. 179 - 
 
 96, 126-128, 384 
 
 V. Reg. 2 Can. Ex. 457 214 
 
 14 
 
 V. Weyman, 26 Tex. 468 
 Maslin v. Baltimore & O. R. Co 
 
 W. Va. 180 
 
 Mason v. The William Murtaugh. 
 
 3 Fed. Rep. 404 675 
 
 Massoth V. Delaware & H. C. Co. 
 
 64 N. Y. 524 325 
 
 Masterson v. Macon C. & St. R. 
 
 Co. (Ga.) Feb. 15, 1892 
 
 T. Short, 33 How. Pr. 481.. 
 
 Mathiasou v. Mayer, 90 Mo. 585 _ . 
 
 Matteson v. New York C. & H. R 
 
 R. Co. 76 N. Y. 381 
 Mattey v. Whittier Mach. Co. 140 
 
 Mass. 337 
 
 Matthews v. Missouri P. R. Co. 26 
 
 Mo. App. 84 
 
 Mattingly v. Pennsylvania Co. 2 
 
 Inters. Com. Rep. 806. 
 
 Mattison v. New York C. R. Co. 
 
 57 N.Y. 552 
 
 Mauritz v. New York. L. E. & W. 
 
 R. Co. 23 Fed. Rep. 765 571 
 Maury v. Talmadge, 2 McLean, 157 
 
 24, 48, 53, 72,80, 216 
 
 Maverick v. Eighth Ave. R. Co. 36 
 
 N. Y. 378.-24, 48, 216. 217 
 Mayhew v. Boyce, 1 Stark. 423.27, 80 
 
 V. Burns, 103 Ind. 328 
 
 606, 624, 637, 660 
 
 Mayo V. Boston & M. R. Co. 104 
 
 Mass. 137 133, 410, 685 
 
 Maxham v. Day. 16 Gray, 213 ... 710 
 Max Morris, the, 28 Fed. Rep. 
 
 881 676 
 
 «. Curry, 137 U. S. 1,34 L. 
 
 ed. 586 .-674, 675 
 
 Medbury v. Hopkins, 3 Conn. 472 631 
 Medfield Sfhool Dist. v. Boston, 
 II. & E. R. Co. 102 
 Mass. 552 268 
 
 272 
 
 669 
 116 
 670 
 
 .. 585 
 
 729 
 
 656 
 
 480 
 
 585 
 
 Medler v. Atlantic Ave. R. Co. 36 
 N. Y. S. R. 89, aff'd 126 
 
 N. Y. 669, mem.. 410 
 
 Meeks v. Southern P. R. Co. 52 
 
 Cal. 603 731 
 
 Meese v. Fond du Lac, 48 Wis. 323 613 
 Meesel v. Lynn & B. R. Co. 8 
 
 Allen, 234 44 
 
 Meier v. Pennsylvania R. Co. 64 
 Pa. 225, 3 Am. Rep. 581 
 
 48, 57 
 
 -59, 72, 216, 310, 317, 694 
 Mellor V. Missouri P. R. Co. 10 L. 
 
 R. A. 36, 105 Mo. 455. 8, 9 
 Melius V. Thompson, 1 Cliff. 125. 609 
 Meloy V. Chicaijo & N. W. R. Co. 
 4 L. R. A. 298, 77 Iowa, 
 
 743... 400 
 
 Memphis & C. R. Co. ®. Benson, 
 
 85 Tenn. 627 ..217, 232, 235 
 V. Chastine, 54 Miss. 503... 172 
 
 V. Green, 52 Miss. 779 230 
 
 v. Whittield, 44 Miss. 466. 
 
 7 Am. Rep. 699 
 
 219, 608, 700 
 
 Memphis & O. R. Packet Co. vMc- 
 
 Cool, 83 Ind. 392 699 
 
 Merchants' W. B. Asso. v. Wood, 
 
 64 Miss. 661 540 
 
 Merkle v. Bennington, 68 Mich. 
 
 133 632 
 
 Merrill r. Grinnell, 30 N. Y. 594.. 
 
 563, 570, 571 
 
 Merritto. Earle, 31 Barb. 43 68 
 
 Merrv v. Glasgow R. Co. 4 R. & 
 
 Can T. Cas. 383 490 
 
 Mershon v. Hobensach, 22 N. J.L. 
 
 372. - 159 
 
 Merwin v. Manhattan R. Co. 48 
 
 Hun, 608.. 48. 49, 52, 63, 91 
 Messenger v. Denuie, 137 Mass. 
 
 197 731 
 
 V. Pennsylvania Co. 36 N. J. 
 
 L. 407 502 
 
 Metcalfe v. The Alaska, 130 U. S. 
 
 201, 32 L. ed. 923 610, 627 
 Metropolitan St. R. Co. v. Moore, 
 
 83 Ga. 453 18, 36, 728 
 
 Metz «. California S. R. Co. 9 L. 
 
 R. A. 431, 85 Cal. 329. 565 
 Metzger v. Chicago, M. & St. P. 
 
 R. Co. 76 Iowa. 387.... 59 
 Miami & M. Tump. Co. v. Baily, 
 
 37 Ohio St. 104 
 
 708, 717, 720 
 
 Michigan C. R. Co. v. Campau, 
 
 35 Mich. 468 656 
 
 V. Carrow, 73 111. 348... 567-569 
 V. Coleman, 28 Mich. 440.. 101
 
 TABLE OF CASES. 
 
 liii 
 
 Michigan C. R. Co. v. Ward, 2 
 
 Mich. 538 583 
 
 Michigan (Jity v. Boeckling, 123 
 
 Ind. 89.... 736, 740 
 
 Michigan S. & N. I. 11. Co. v. 
 
 Heaton, 37 Ind. 448... 368 
 «. Kennedy, 41 Miss. 671 .. 503 
 Midland R. Co. v. Bromley, 17 C. 
 
 B. 373 584 
 
 Millau c. Michigan S. & N. I. R. 
 
 Co. 16 Mich. 79 517 
 
 Millard v. Brown, 35 N. Y. 297 .. 608 
 v. Missouri, K. & T. R. Co. 
 
 86 N. Y. 441 581 
 
 Miller?;. Kirby, 74 111. 343. 608 
 
 V. Louisvilii', N. A. & C. R. 
 
 Co. 128 Ind. 97 737 
 
 «. New Jersey S. B. Co. 34 
 N. Y. S. R. 914, 58 
 
 Hun. 434 235, 284 
 
 V. New York, 109 U. S. 385, 
 
 37 L. ed. 971 439 
 
 t\ Ocean S. S. Co. 118 N. 
 
 Y. 199 400. 693 
 
 i\ Steam Nav. Co. 10 N. Y. 
 
 431 68 
 
 Mills V. Armstrong, L. R. 13 App. 
 
 Cas. 1.. 742 
 
 Milnor v. New York & N. H. R. 
 
 Co. 53 N. Y. 363 ..517, 588 
 V. New York & N. H. R. 
 
 Co. 4 Daly. 355 525 
 
 Milwaukee & M. R. Co. v. Finney, 
 
 10 Wis. 388 344, 358 
 
 Milwaukee & St. P. R. Co. t. Kel- 
 logg. 94 U. S. 469, 24 L. 
 
 ed. 256 672 
 
 Minnesota «. Barber, 136 U. S. 413, 
 
 • 34 L. ed. 455 542 
 
 Minter v. Pacific It. Co. 41 Mo. 
 
 503 568. 570, 578 
 
 Mississippi & T. R. Co. v. Harri- 
 son, 66 Miss. 419 154 
 
 Mississippi C. R. Co. v. Kennedy, 
 
 41 Miss. 671... 
 
 513,562.570, 571, 745 
 
 ?•. Mason, 51 Miss. 234 692 
 
 Missouri, The,3 Ben. 508,9 Blatchf. 
 
 433 304 
 
 Missouri Furnace Co. v. Abend, 
 
 107 111.44 692 
 
 Missouri P. H. Co. v. Dwyer, 36 
 
 Kan. 58 760 
 
 V. Foreman. 73 Tex. 311... 329 
 
 »). Harris. 67 Tex. 166 367 
 
 V. Hennessey. 75 Tex. 155.. 726 
 ». Henry, 75 Tex. 330 ..641. 656 
 
 «. Hill, 71 Tex. 451 629 
 
 ».-Holcomb, 44 Kan. 332 .. 250 
 
 Missouri P. R. Co. v. Ivey, 1 L. 
 
 R. A. 500, 71 Tex. 409. 272 
 
 V. Johnson, 72 Tex. 95 
 
 -. 64, 71, 708. 719 
 
 V. Lewis, 2 L. R. A. 68, 24 
 
 Neb. 848 618, 622, 654 
 
 V. Long (Tex.) June 2, 1891 131 
 V. Martino (Tex.) 11 Ry. & 
 
 Corp. L. J. 270.- 512 
 
 V. Mitchell, 75 Tex. 78 722 
 
 V. Neiswanger, 41 Kan. 621 
 
 98, 125 
 
 V. Texas P. K. Co. 41 Fed. 
 
 Rep. 311, 316 741, 759 
 
 V. Watson, 72 Tex. 631 397 
 
 V. Wortham, 3 L. R. A. 368, 
 
 73 Tex. 35 93, 147 
 
 Missouri R. R. Co. ^^ Richards, 8 
 
 Kan. 101 660 
 
 Mitchell V. Chicago & G. T. R. Co. 
 51 Mich. 236, 38 Am. 
 
 Rep. 566 700, 701 
 
 V. Crassweller, 13 C. B. 
 
 237 335 
 
 v. New York C. R. Co. 64 
 
 N. Y. 655 689 
 
 V. Southern P. R. Co. 11 L. 
 R. A. 130. 87 Cal. 62.. 
 415, 416, 418. 419. 691. 695 
 i\ Western & A. R. Co. 30 
 
 Ga. 22... 157, 691, 700 
 
 Moakler v. Portland & W. V. R. 
 Co. 6 L. R. A. 656, 18 
 
 Or. 189 405 
 
 Mobile & M. R. Co. v. Ashcraft, 
 
 48 Ala. 15. _. 419, 608 
 
 Mobile & O. R. Co. v. Hopkins, 41 
 
 Ala. 486.. ....267, 281 
 
 V. McArthur, 43 Miss. 180.. 
 
 746, 747 
 
 V. People. 133 111. 559 89, 90 
 
 V. Thomas, 42 Ala. 672 53 
 
 V. Weiner. 49 Miss. 725 515 
 
 Mobile County v. Kimball, 103 U. 
 
 S. 691, 36 L. ed. 238_.. 
 
 445. 447, 449, 450, 543, 765 
 
 Mobile L. Ins. Co. v. Brame, 95 U. 
 
 S. 754, 34 L. ed. 580... 
 
 • 617, 618, 638 
 
 Moe V. Smiley, 3 L. R. A. 341, 135 
 
 Pa. 136-,.. 611 
 
 Moffat V. Strong, 10 Johns. 13 68 
 
 Mohney v. Cook, 36 Pa. 342 .533, 540 
 Molloy v. New York C. »& H. R. 
 
 R. Co. 10 Dalv, 453 .. - 341 
 Molony v. Dows, 8 Abb.Pr. 316.. 653 
 Montana U. R. Co. *". lianglois, 2 
 
 Mont. 247 120 
 
 v. Launlois, 9 iMont. 419__. 117
 
 liv 
 
 TABLE OF CASES. 
 
 Montgomery & E. R. Co. ?\ Mal- 
 
 lette, 93 Ala. 209 
 
 ..218, 691, 095, 
 
 V. Stewart, 91 Ala. 421 
 
 Moore r. Central R. Co. 24 N. J. 
 
 L. 268 
 
 V. Des Moines & Ft. D. R. 
 
 Co. 69 Iowa, 491 52, 
 
 V. Fitchburg R. Corp. 4 
 
 Gray, 465 . 
 
 V. Metropolitan R. Co. L. R. 
 
 8Q. B. 36 
 
 V. Minerva, 17 Te.\. 23 
 
 V. Shreveoort. 3 La. Ann. 
 
 645-/ 
 
 «. r. S. 91 U. S. 270. 23 L. 
 
 ed. 346 
 
 V. Wabash, St. L. ct P. R. 
 
 Co. 84 Mo. 481 
 
 Moran v. New Orleans, 112 U. S. 
 
 69, 28 L. ed. 653 
 
 V. Ross, 79Ca]. 549 
 
 Morel V. Mississippi V. L. Ins. Co. 
 
 4 Bush, 535. 
 
 Morelaud /-. Bo.ston & P. R. Corp. 
 
 141 Mass. 31 95,96, 
 
 Morgan v. Thompson, 82 Ky. 383. 
 
 625, 
 
 Morgan's L. & T. R. & SS. Co. v. 
 La. Bd. of Health, 118 
 U. S. 455, 30 L. ed. 237 
 
 .293, 295, 764. 
 
 Morison v. Broadway & 8. A. R. 
 Co. 28 N. Y. S. R. 498. 
 Morris v. Chicago, R. I. «.t P. R. 
 Co. 65 Iowa, 727, 54 
 Am. Rep. 39. 19 Am. tt 
 Eng. K. Cas. 180... 644, 
 V. Louisville & N. ]{. Co. 
 (Ky.) 11 Ky. L. Rep. 
 
 698 
 
 V. New York C. & H. R. R. 
 Co. 106 N. Y. 678. . . 
 
 29, 9S, 99, 220, 
 
 V. Piatt, 32 Conn. 85 
 
 Morrison v. Erie R. Co. 56 N. Y. 
 
 302 -394. 
 
 V. New York C. & H. 1^ R. 
 
 Co. 63 IS. Y. 643 
 
 V. Phillips & C. C. Co. 44 
 
 Wis. 405 
 
 MorriH.sey r. Wiggins F. (,"o. 47 
 
 Mo. 521, 525 
 
 Morse v. Duiu-an, 14 Vi-d. \iv]). 
 
 396 
 
 V. MinneajM)liK & St. L. R. 
 Co. 30 Minn. 365, 46s. 
 
 723. 726, 
 
 Mo.st8 V. Bf>ston & M. II Co. 2-1 N. 
 H. 71. 90 
 
 746 
 392 
 
 666 
 
 695 
 
 340 
 
 351 
 641 
 
 692 
 
 487 
 95 
 
 442 
 
 484 
 
 405 
 665 
 638 
 
 765 
 34 
 
 1)50 
 638 
 
 699 
 285 
 
 731 
 687 
 73 
 645 
 229 
 
 727 
 262 
 
 Moses V. Louisville, X. O. & T. R. 
 Co. 39 La. Ann. 649... 
 
 95, 110, 126-128. 131 
 
 Mosher v. St. Louis, I. M. & T. R. 
 Co. 23 Fed. Rep. 326.. 
 
 ... 202, 513 
 
 Mowrey r. Central C. R. Co. 66 
 Barb. 43. Hltirmed 51 N. 
 
 Y. 666 43 
 
 Movlan v. Second Ave. R. Co. 37 
 N. Y. S. R. 871. revg 
 35N. Y. S. R. 644-34, 40. 41 
 Mudgett f. Bav State S. B. (.'o. 1 
 
 Daly, 151 - 557 
 
 Muehlhausen v. St. Louis R. Co. 
 
 91 Mo. 344-18, 252. 255, 634 
 Mugler V. Kansas. 123 [J. S. 623, 
 
 31 L. ed 205 438 
 
 Mulchey r. Wii«libuvn C. W. Co. 
 
 145 .Mass. 281 639 
 
 Mullan V. Wisconsin C. R. Co. 46 
 
 Minn. 474 -219 
 
 Mulligan r. New York it R. H. R. 
 Co. 14 L. R. A. 791, 
 
 129 N. Y. 506 354 
 
 T. ;N^;w York C. & H R. R. 
 Co. 33 N. Y. S. R. 534 
 
 685, 692 
 
 Munn V. Illinois, 94 U. S. 113, 24 
 
 L.ed. 77 
 
 231, 435-437. 441, 454, 
 457, 460-468, 470, 473. 473 
 
 V. People, ()9 111. 80 460, 464 
 
 Munroe v. Third Ave. R. Co. 18 
 
 .Iones& S. 114, 115.... 43 
 Munster r. Southeastern R. Co. 4 
 
 C. B. N. S. 676 555 
 
 Murch V. Concord R. Corp. 29 N. 
 
 H. 9, 42 
 
 98, 248, 260, 406, 526 
 
 Murdock v. Boston & A. R. Co. 137 
 
 Mass. 293, 298 
 
 ..179. 206. 210, 367 
 
 Murphy r. Collins, 121 Mass. 6 .. 645 
 r. Conev Island & 15. R. Co. 
 
 36 ilun, 199 696 
 
 r. Holl)ro()k,20OhioSt. 137 
 
 593. 596 
 
 V. Indianapolis. 83 Ind. 76. 3«7 
 r. N. Y. & N. H. R. Co. 30 
 
 Conn. 184 ...613, 617 
 
 V. Rome, W &<>. K. Co. 32 
 
 N Y. S. R. 381 152 
 
 V. St. Louis, 1. M. it S. R. 
 Co. 43 Mo. App. 34ti... 
 
 394. 691, 696 
 
 r. Union R. (Jo. 118 iVIas.s. 
 
 228 -...41, 42, 161. 168. 223 
 r. Western & A. R. Co. 23 
 
 Fed. Rep. 637 234
 
 TABLE OF OASES. 
 
 Iv 
 
 Murray v. Hoboken L. & I. Co. 59 
 U. S. 18 How. 272, 15 
 
 L. ed. 372 231 
 
 V. Hudson River R. Co. 47 
 
 Barb. 196 760 
 
 V. Missouri P. R. Co. 101 
 
 Mo. 23G 692 
 
 V. Usher, 46 Hun, 404 656 
 
 Myliam v. Louisiana E. L. & P. 
 Co. 7 L. R. A. 172, 41 
 La. Ann. 964. 606 
 
 Mykleby v. Chicago, St. P. M. & 
 O. R. Co. 39 Minn. 54 
 164, 214 
 
 Mynard r. Syracuse, B, & N. Y. 
 R. Co. 71 N. y. 180- _- 
 265, 266 
 
 Mynning v. Detroit, L. & N. R. 
 
 Co. 64 Mich. 93-. ..390, 678 
 V. Detroit, L. &. N. R. Co. 
 
 6T Mich. 677 678 
 
 Mytton V. Midland R. Co. 4 Hurlst. 
 &N.274, 29L. J. Exch. 
 N. S. 165. 20, 583, 590 
 
 N. 
 
 Nagel V. Missouri P. R. Co. 75 Mo. 
 
 653 -. 660 
 
 Nagler. California S. R. Co. 88 
 
 Cal. 86 379 
 
 r. MuUison, 34 Pa. 53 159 
 
 Najac V. Boston & L. R. Co. 7 Al- 
 len, 329 526 
 
 Nallev r. Hartford C. Co.'51 Conn. 
 
 524, 50 Am. Rep. 47-. - 
 
 726, 727 
 
 Nash V. Page, 80 Ivy. 539, 545 ... 465 
 
 V. Tousley, 28 Minn. 5 635 
 
 Nashville & C. R. Co. v. Eakin, 6 
 
 Coldw. 582 644, 646 
 
 V. Elliott, 1 Coldw. 611... 48, 61 
 V Jackson, 6 Heisk. 271... 268 
 V. Messino, 1 Sneed, 220 
 
 2, 54, 59, 327 
 
 ^\ Prince, 2 Heisk. 580 
 
 ...-628, 656 
 
 Nashville & D. R. Co. v. Jones, 9 
 
 Heisk. 27.. 48, 57, 68 
 
 Nashville, C. & St. L. R. Co. v. 
 
 Ala. 2 Inters. Com. Rep. 
 
 238, 128 U. S. 96, 99, 32 
 
 L. ed. 352, 353 ....440, 443 
 Natchez, J. & C. R. Co. v. Cook, 
 
 63 Miss. 38 626 
 
 Nat. Bank of Chester v. Atlanta & 
 
 C. A. L. R. Co. 25S.C. 
 
 222 608 
 
 Nat. Bank of Commerce v. Hun- 
 tington, 129 Ma.ss. 444. 609 
 
 Nave V. Flack, 90 Ind. 205 3 
 
 Neagle, The, 135 U. S. 59, 34 L. 
 
 ed. 69-. 769 
 
 Needham v. Grand Trunk R. Co. 
 
 36 Vt. 294, 307.635, 644-647 
 V. Louisville & N. R. Co. 85 
 
 Kv. 423 664 
 
 Nellis V. New York C. R. Co. 30 
 
 N. Y. 505 181, 183 
 
 Nelson v. Atlantic & P. R. Co. 68 
 
 Mo. 593 155, 417 
 
 v. Galveston, H. & S. A. R. 
 
 Co. 11 L. R. A. 391, 78 
 
 Tex. 621 640 
 
 V. Long Island R. Co. 7 Hun, 
 
 140 185, 192 
 
 V. Vermont &. C. R, Co. 26 
 
 Vt. 717 -. ..544-546 
 
 Neslie c. Second* Third St. P. R. 
 
 Co. 113 Pa. 300 39, 64 
 
 Neuman r. Third Ave. R. Co. 18 
 
 Jones& S. 412 707,715 
 
 Neville v. Cork R. Co. 9 Ir. L. T. 
 
 69 278 
 
 Nevin v. Pullman P.' C. Co. 106111. 
 
 222... 238 
 
 Nevins o. Bav State S. B. Co. 4 
 
 Bosw. 225 515, 584 
 
 New Albany & S. R. Co. i\ Haskell, 
 
 11 lud. 301 632 
 
 Nevr Brunswick S. B. & C. T. Co. 
 
 i\ Tiers, 24 N. J. L. 
 
 697 68 
 
 Newcomb v. Boston Prot. Dep. 
 
 146 Mass. 600 538 
 
 Newell i\ Newell, 9 Paige, 25, 4 L. 
 
 ed.596 711 
 
 /'. Ryan, 40 Ilun, 286 688 
 
 New England Exp. (';>. v. Maine 
 
 C. R. Co. 57 Me. 188.. 
 
 114, 120 
 
 New England Mut. L. Ins. Co. r. 
 
 Woodvvorlh, 111 U. S. 
 
 146, 28L. ed. 381 610 
 
 Newham /•. Taite, 1 Arn. 244 711 
 
 New Jersey C R. Co. v. Van Horn, 
 
 "38 N. J. L. 133 139 
 
 New Jersey R. & T. Co. r. Pollard, 
 
 89 U. S. 22 Wall. 341, 
 
 22 L. ed. 877 24. 695 
 
 New Jersey R. Co r. Kennard, 21 
 
 Pa. 203 216 
 
 V. Palmer, 33 N. J. L. 90.. 389 
 New Jersey S. B. Co. r. Bmckett, 
 
 121 U. S. 637, 645, 30 L. 
 
 ed. 1049, 1050 
 
 175, 327, 342, 362, 363
 
 Ivi 
 
 TABLE OF CASES. 
 
 New Jersey S. Nav. Co. v. Mer- 
 chants' Bank of Boston, 
 47 U. S. 6 How. 344, 12 
 L. ed. 465 231, 516 
 
 Newman v. Alabama G. S. R. Co. 
 
 38 Fed. Rep. 819 605 
 
 V. N. Y.,L. E. & W. R. Co. 
 
 54 Hun, 335 356, 360 
 
 V. Phillipsburgb, H. C. R. 
 Co. 8 L. R. A. 842, 53 
 N. J. L. 446... 734 
 
 New Orleans & 31. P. Co. v. James, 
 1 Inters. Com. Rep. 599, 
 32 Fed. Rep. 21. ...444, 480 
 
 New Orleans & N. E. R. Co. v. 
 Jopes, 142 U. S. 18. 35 
 L. ed. 919 337, 371 
 
 New Orleans 6. L. Co. r. La. L. 
 &P. H. &Mfg. Co. 115 
 U. S. 650, 39 L. ed. 516 
 * 438, 439 
 
 New Orleans, J. & G. N. R. Co.u. 
 Allbritton, 38 Miss. 243, 
 374, 75 Am. Dec. 98..- 
 
 319, 690,695 
 
 r. Hurst, 36 Miss. 660 
 
 19. 159.607, 633 
 
 V. Statham, 43 Miss. 607... 
 
 151, 233, 384 
 
 New Orleans, M. & C. R. Co. v. 
 Hanniug, 83 U. S. 15 
 Wall. 649, 31 L. ed. 220 95 
 
 New Orleans Mut. Ins. Co. v. New 
 Orleans, J. & G. N. R. 
 Co. 20 La. Ann. 302... 268 
 
 New Orleans, St. L. & C. R. Co. 
 V. Burke, 53 Miss. 209. 
 161, 162, 167, 168 
 
 Newport & C. B. Co. v. U. S. 105 
 
 U. S. 470, 26 L. ed. 1148 444 
 
 New World, The r. Kinir, 57 U. S. 
 16 How. 4(i9. 474, 14 L. 
 
 ed. 1019, 1021 
 
 153, 216, 318, 
 
 337. 277-379, 381. 299. 665 
 
 New York v. Coinpagnie Gen. 
 Trans. 107 U. S. 59, 27 
 
 L. ed. 383 542 
 
 V. Miln, 36 U. 8. 11 Pet. 102. 
 
 9 L. ed. 64H 440 
 
 V. Third Ave. R. Co. 117 N. 
 
 Y. 404 22 
 
 New York & N. R. Co. v. N. Y. A: 
 N. E. R. Co. 3 inters. 
 Com. Hep. 543 119 
 
 New York C. c\: H. R. R. Co. v. 
 FralolT, 100 V. S. 24,25 
 
 L. ed. 531 
 
 564, 572, 574, 575, 582 
 
 New York Cent. R. Co.. v. Lock- 
 wood, 84 U. 8. 17 Wall. 
 
 357, 31L. ed. 627 
 
 215, 263, 272, 280. 487 
 
 New York, C. & St. L. R. Co. v. 
 
 Doane, 1 L. R. A. 157, 
 
 115 Ind. 435.- 
 
 128, 251,260, 261 
 
 New York. L. E. & W. R. Co. v. 
 
 Ball, 53 N. J. L. 383... 254 
 V. Burns, 51 N. J. L. 340.. 20 
 V. Daugberty (Pa.) 6 Am. & 
 
 Eng. R. Cas. 139 54 
 
 V. Winter, 143 U. 8. 60, 36 
 
 L. ed. 71 
 
 .145, 175, 198. 310. 366, 371 
 New York, P. & N. R. Co. v. 
 
 Cooper, 85 Va. 939 743 
 
 Niagara, The, c. Cordes, 63 U. S. 
 
 21 How. 16, 126, 16 L. 
 
 ed. 24,47 296 
 
 Nicholas v. New York C. & H. R. 
 
 R. Co. 89 N. Y. 370... 
 
 265,366 
 
 Nicholls r. Great S. R. Co. 7 Ir.C. 
 
 L. Rep. 40... 140 
 
 Nichols V. Chicago & W. M. R. 
 
 Co. (Mich.) Feb. 5,1893 668 
 V. Dubuque & D. R. Co. 68 
 
 Iowa, 732 132 
 
 V. Union P. R. Co. (Utah) 
 
 Sept. 13, 1891 312 
 
 V. Washintiton. O. & W. R. 
 
 Co. 83 Va. 99 137 
 
 Nicholson v. Erie R. Co. 41 N. Y. 
 
 535 .- 689 
 
 T. Great W. R. Co. 5 C. B. 
 
 N. S. 366.... 506 
 
 V. Lancashire & Y. R. Co. 
 
 3 Hurlst. & C. 534, 34 
 
 L. J. N. S. E.\cb. 84.. 
 
 99, 126. 12S 
 
 Nickey v. St. i^ouis, I. M. & S. R. 
 
 Co. 35 Mo. App. 79 267 
 
 Nietoi\ Clark, 1 Cliflf. 145 
 
 _. 344, 345, 347 
 
 Nisbet V. Garner, 1 L. R. A. 152, 
 
 75 Iowa, 314 741 
 
 Nitshill, etc. C. Co. v. Caledonian 
 
 R. Co. 2 Nev. & McN. 
 
 R. & Canal Cas. 39 490 
 
 Noddleburn, The, 12 Sawy. 132 . 651 
 Nodine i\ Doherty, 46 Barb. 59.. 533 
 Nolan V. l^rooklyn C. &N. R. Co. 
 
 87 N. Y. 63 43, 44, 409 
 
 V. N. Y.,N. n.& H. R. Co. 
 
 9 Jones & S. 541... 235, 511 
 Nolton V. Western R. Corp. 15 N. 
 
 Y. 444 8, 278
 
 TAJJLE OF CASES. 
 
 Ivii 
 
 Nonce c. Richmoml & D. R. Co. 
 
 33 Fed. Kep. 429 031 
 
 Norfolk & P. K. Co. t. Ormsby, 
 
 27 Gratt. 455 733 
 
 Norfolk & W. W. Co. v.GrosecIose, 
 
 (Va.) 15 Va. L. J. 64.i. 
 
 5, 200 
 
 V. Irvine. 1 L. R. A. 110, 85 
 
 Va. 217 575 
 
 V. Penn. 130 U. S. 114, 34 
 
 L. ed. 394 479, 542 
 
 V. Wysor, 82 Va. 250 519 
 
 Norris v. Litchfield, 35 N. H. 271. 532 
 V. Savannah, F. & W. R. 
 
 Co. 23Fla. 182 71 
 
 North Birmingham St. R. Co. v. 
 
 Caldervi?ood,89Ala.247 
 
 068, 692 
 
 North Chicago C. R. Co. v. Gastka, 
 
 4 L. R. A. 481. 128 111. 
 
 013 342, 343 
 
 North Chicago St. R. Co. v. Wil- 
 liams (111.) Jan. 18, 1893 370 
 Northeastern R. Co. v. Wanless, L. 
 
 R.7H.L.12.; 413 
 
 Northern C. R. Co. v. Scholl, 10 
 
 Md.331 520 
 
 «. State, 29 Md. 420,96 Am. 
 
 Dec. 545, 31 Md. 357, 
 
 100 Am. Dec. 70 087 
 
 Northern P. R. Co. o. Herbert, 110 
 
 U. S. 051, 29 L. i-d.759 
 
 -. 27, 218, 310 
 
 ». Hess, 2 Wash. 383 092 
 
 V. Wash .Terr. 3 Wash. Terr. 
 
 303 89 
 
 Northern R. Co. v. Page, 22 Barb. 
 
 130.. .". 184 
 
 North Hudson County R. ('o. v. 
 
 Rochat, 49 N. J. L. 
 
 445 83 
 
 North Star, The, 106 U. S. 17, 27 
 
 L. ed. 91 .... '675 
 
 Northwestern F. Co. ». Hyde Park, 
 
 97 U. S. 059, 24 L. ed. 
 
 1030.. 438 
 
 Northwestern R. Co. v. Hack, 06 
 
 111.239 7 
 
 Norton v. St. Louis & H. R. Co. 40 
 
 Mo. App. 042-.691, 695, 717 
 Nourse v. Packard, 138 Mass. 307. 639 
 Noyesr, Southern P. R. Co. 92Cal. 
 
 285 376 
 
 Nugent V. Boston, C. & M. R. Co. 
 
 80 Me. 62 544, 551 
 
 V. Smith, L.R. 1 C. P. Div. 
 
 423. 45L. J. C. P. 697.. 391 
 Nunes v. Perry, 113 Mass. 274, 
 
 370.. 721 
 
 O. 
 
 Oakes v. Northern P. R. Co. 12 L. 
 R. A. 318, 20 Or. 392.. 
 .... 552, 503, 504, 500, 580 
 Gates V. First Nat. Bank of Mont- 
 gomery, 100 U. S. 239, 
 
 25 L. ed. 580 487 
 
 Oberfeldert\Doran. 36 Neb. 118. 316 
 Obey, The, L. R. 1 Adm. 102.... 292 
 O'Brien v. Boston & W. R. Co. 15 
 
 Gray, 20 15, 191 
 
 V. Cunard SS. Co. 13 L. R. 
 A. 329, 154 Mass. 372.. 
 
 290, 349 
 
 V. New York C. & H. R. R. 
 
 Co. 80N. Y. 236 
 
 185, 188, 191, 192 
 
 O'Carroll v. The Havre, 45 Fed. 
 
 Rep. 764.... 384 
 
 Oderkirk v. Fargo, 58 Hun. 847... 586 
 O'Donnell i\ Allegheny V. R. Co. 
 
 59 Pa. 239 7. 30 
 
 O'Donovan v. Wilkins, 34 Fla. 281 395 
 Ogden.sburg & L. C. R. Co. v. Pratt, 
 89U.S. 23 Wall. 128,23 
 
 L. ed. 827 264 
 
 Ohio & M. R. Co. V. Applewhite, 
 
 52Ind. 540. 177 
 
 r. Cope, 36 111. App. 97.199, 200 
 
 r. Crosby, 107 Ind. 83 605 
 
 ». Dickerson, 59 Ind. 317... 360 
 r. Dunbar, 20 111. 623 - .544, 646 
 
 t: Hecht, 115 Ind. 443 
 
 671, 740, 752 
 
 r. Lackey, 78111. 55.. 76 
 
 t. Muhling, 30 111. 9 
 
 250. 353, 355, 383 
 
 T. People, 29 111. App. 501.. 142 
 
 r. Selby, 47 Ind. 471.. 
 
 368, 373, 381 
 
 V. Swarthout, 67 Ind. 567.. 
 
 178, 511 
 
 T. Tindall, 13 Ind. 366 604 
 
 r. Vought, 133 Ind. 288 695 
 
 Oil Creek & A. R. R. Co. v. Clark, 
 
 73 Pa. 231 522 
 
 Old Colony R. Co. v. Tripp, 147 
 
 Mass. 35 114, 117, 120 
 
 Olive V. State, 4 L. R. A. 33, 86 
 
 Ala. 88 646 
 
 Oliver v. La Valle. 36 Wis. 596... 
 
 409, 673, 746 
 
 V. Louisville & N. R. Co. 43 
 
 La. Ann. 804 .227,410 
 
 Olson V. St. Paul & D. C. R. Co. 45 
 
 Minn. 536 ..360, 393 
 
 Oinslaer v. Philadelphia Co.31 Fed. 
 
 Rep. 354 673
 
 Iviii 
 
 TABLE OF CASKS. 
 
 Opsahl v. Judd, 30 Minn. 126 582 
 
 Orange Co.Bank r. Brown, 9 Wend. 
 
 85, 24 Am. Dec. 129... 
 
 553, 502, 571 
 
 Orcult V. Northern P. R. Co. 45 
 
 Minn. 368 273 
 
 Oregon R. & N. Co. r. Oregonian 
 
 R. Co. 130 U. S. 1, 32 L. 
 
 L. ed. 837 610 
 
 Olieilly V. N. Y. & N. E. R. Co. 5 
 
 L R. A. 364. 6 L. R. A. 
 
 719, 16 R.I. 388 
 
 645, 646. 648, 653 
 
 Orleans )•. Perry, 24 Neb. 731 761 
 
 Orndortt' r. Adams Ex. Co. 3 Bush, 
 
 194 268 
 
 Ortt V. ^linneapolis & St. L. R. Co. 
 
 3()Minn. 396-.. 267 
 
 Osborn t. B k of U. S. 22 U. S. 9 
 
 Wheat. 859, 6 L. ed. 232 486 
 T. iVIanhattan R. Co. 5 Week. 
 
 L. Bdll. 8 715 
 
 Osborne i: Detroit, 32 Fed. Rep. 36 707 
 ■V. McMasters. 40 Minn. 103 327 
 O'Shields i\ Georgia P. R. Co. 6 
 
 L. R. A. 152. 83 Ga. 621 631 
 O'Toole V. Central P"k, N. & E. R. 
 
 R. Co. 35 N. Y. S. R. 
 
 591 38, 40 
 
 Ouachita & >[. R. P. Co. v. Aiken, 
 
 1 Inters. (Joni. Rep. 379, 
 
 121 U. S. 444, 30 L. ed. 
 
 976 443 
 
 Ouiniit V. Henshaw, 35 Vt. 605.-- 585 
 OviattiJ. Dakota ('. R. Co. 43 Minn. 
 
 300 2, 63, 249 
 
 Owen i\ Brockschmidt, 54 Mo. 285 606 
 V. Great West. R. Co. 46 L. 
 
 .1. Q B. 486 .... 99 
 
 Owens r. Kansa.s C, St. J. 6c C. B. 
 
 R. Co. 95 Mo. 169.. 708. 718 
 v. Riclimond & D. R. Co. 88 
 
 N.C.502. 692 
 
 Oxliide i\ Northeastern R. Co. 1 C. 
 
 B. N. S. 454 506 
 
 Oyster Police Steamers of Md., 
 
 The, 31 Fed. Rep. 763-- 302 
 
 Painter ?•. London, B. & S. C. R. 
 Co. 2C. B. N. S. 702..- 
 
 118, 506 
 
 Pacific, Tiie, 1 Blatchf. 569 160 
 
 Packard v. Qctman. <• (Vjw. 757. _ . 559 
 Paddock v. Atchison. T. & 8. F. R. 
 Co. 4 I-. U. A. 231. 37 
 Fed. I{ep.M4 1.-224,226, 348 
 
 Padueah &: M. R. Co. v. Hoehl. 12 
 
 Bu,sh, 41 669, 690 
 
 Palfrey v. Portland, S. & P. R. Co. 
 
 4 Allen, 55 645 
 
 Palmer, lir, L. R. 6 C. P. 194 120 
 
 V. Charlotte, C. & A, R. Co. 
 
 3 S.C.580 
 
 --.-186, 208, 367. 523. 608 
 v. Delaware ct H. C. Co. 120 
 
 N. Y. 170. 46 Hun. 488 
 
 24, 27, 28, 48, 
 
 49. 50, 52, 57, 63-65, 231, 665 
 T. (rrand .function R. Co. 4 
 
 Mees. & W. 749 49 
 
 V. London & S. AV. R. Co. 
 
 L. R. 1 C. P. 588 .506 
 
 t: London, B.&S.C. R.Co. 
 
 L. R. 6C. P. 194 114 
 
 V. New York C. & H. R. R. 
 
 Co. 112 N. Y. 245 
 
 682,686, 688 
 
 f. Penn. Co. 2 L. R. A. 252, 
 
 lllN. Y. 488.94, 96, 150, 220 
 V. Utah & N. R. Co. (Idaho) 
 
 Feb. 8, 1888 610 
 
 Palmeri r. Manhattan El. R. Co. 16 
 
 L. R. A. 136---345. 346, 352 
 Palmyra, The, 25 U. S. 12 Wheat. 
 
 1, 6 L. ed. 531 674 
 
 Pardee r. Drew, 25 Wend. 459-562, 568 
 Parker r. Barnard, 135 Mass. 116. 319 
 V. Enslow. 102 111. 272, 40 
 
 Am. Rep. .588 708, 716 
 
 V. Erie R. Co. 5 Hun, .57... 373 
 
 /•. Flagg, 26 Me. 181 297 
 
 V. Great Western R. Co. 12 
 
 Man. ife G. 253 4 
 
 r. Hannibal & St. .1. R. Co. 
 
 91 Mo. 86 639 
 
 V. Latner, 60 Me. 528 531 
 
 V. Southeastern R. Co. L. R. 
 
 2 C. P. Div. 416. rev'g 
 
 L. R. 1 C. \\ Div. 618. 578 
 Parkin.son v. Great We.«tt'rn RCo. 
 
 L. R. 6 C. P. 554.-114. 120 
 Parmelee v. McNulty, 19 111. .556. 
 
 552, 591 
 
 Parris ». Philadelphia, W. & B. R. 
 
 Co. (Del.) Mav21, 1889 85 
 Parrott r. Wells. 82 U. S" 15 Wall. 
 
 .■)24, 21 L. ed. 206 76 
 
 Parsons r. Missouri P. R. Co. 94 
 
 Mo. 286 -.. -626, 689 
 
 t. \. Y. C. & H. R. R Co. 
 
 3 \j. R. A. 688, 113 N. 
 
 Y. 363 
 
 ...11, 61. 136. 158, 384, 688 
 
 Partridge v. Mitchell, 3 Edw. Ch. 
 
 180, 6 L. ed. 617 631
 
 TABLE OF CASES. 
 
 llX 
 
 Parvis v. Philadelplra, W. & B. 
 
 R. Co. (DeJ.) May 21, 
 
 1889- 75, 636 
 
 Passenger Cases, 48 U. S. 7 How. 
 
 283, 12 L. ed. 702.. 443, 765 
 Passenger TariflFs, lie, 2 Inters. 
 
 Com. Rep. 445. 535 
 
 Passenger Tariff.s & Rate Wars, 
 
 7^ , 2 Inters. Com. Rep. 
 
 340 491, 502 
 
 Pastoris v. Baltimore & O. R. Co. 
 
 (Pa.)34 Atl. 283 667 
 
 Pateison v. Central R. & Bkg. Co. 
 
 85 Ga. 653 395, 692 
 
 Patry v. Chicago, St. P. M. & O. 
 
 R. Co. 77 Wis. 218.-.. 
 
 10, 162, 197, 212 
 
 I'atsclieider v. Great Western R. 
 
 Co. L. R. 3 Exch. Div. 
 
 153 584 
 
 Pattee v. Chicago, M. & St. P. R. 
 
 Co. 5 Dak. 267 52 
 
 Patten v. Chicago & N. W. R. Co. 
 
 32 Wis. 534, 36 Wis. 413 
 
 126, 128, 397 
 
 Patterson v. Hemenway, 148 Mass. 
 
 94 412 
 
 Patten e. Pittsburgh, C. & St. L. 
 
 R. Co. 96 Pa. 169 644 
 
 Paul v. Virginia, 75 U. S. 8 Wall. 
 
 168, 19 L. ed. 357 480 
 
 Paulitsch r. N. Y. C. & H. R. R. 
 
 Co. 102 N. Y. 280 152 
 
 Payne v. Troy & B. R. Co. 9 Hun, 
 
 526 727 
 
 Peabody v. Oregon R. & Nav. Co. 
 
 {Ov.jl2 L. R. A. 823_- 
 
 177, 203, 209 
 
 Peake i\ Baltimore & O. R. Co. 26 
 
 Fed. Rep. 495 609 
 
 Pearson r. Duane, 71 U. S. 4 Wall. 
 
 605, 18 L. ed. 447 
 
 _..4, 158, 160, 162, 283, 366 
 Pease v. Delaware L. & VV. R. Co. 
 
 101 N. Y. 367, 11 Daly, 
 
 350 177, 191 
 
 Peavy v. Georgia R. & Bkg. Co. 81 
 
 Ga. 485 161, 337, 372 
 
 Peck r. Neil. 3 McLean, 22 53 
 
 r. N. Y. C. & H. R. R. Co. 
 
 70 N. Y. 587 344 
 
 T. N. Y., N. H.&H. R. Co. 
 
 50 Conn. 379 _ 735, 739 
 
 V. Weeks, 34 Conn. 145.266, 272 
 Peek V. North Staffordshire R. Co. 
 
 10 H. L. Cas. 473 3T5 
 
 Peeples v. Brunswick »& A. U. Co. 
 
 60 Ga. 281 363 
 
 Peete i'. IMorgan, 86 U. S. 581, 23 
 
 L.^ed. 201 295 
 
 Peik V. Chicago & N. W. R. Co. 
 
 94 U. S. 164, 24 L. ed. 
 
 97-... .436, 472 
 
 Pembina C. S. M. & M. Co. v. 
 
 Penn. 2 Inters. Com. 
 
 Rep. 24, 125 U. S. 181, 
 
 31 L. ed. 650. 434, 444, 609 
 Pembroke v. Hannibal & St. .1. R. 
 
 Co. 32Mo. App. 61 ... 277 
 Pence v. Chicago, R. I. & P. R. 
 
 Co. 79 Iowa, 389. -.721, 755 
 Pendleton v. Kingsley. 3 Cliff. 410 
 
 57. 58, 
 
 216, 328, 338, 341, 344. 347 
 Pendleton St. R. Co. v. Shires, 18 
 
 Ohio St. 255. 94, 96 
 
 Peniston v. Chicago, St. L. & N. 
 
 O. R. Co. 34 La. Ann. 
 
 777. -.12, 110, 127, 128, 151! 
 Pennington v. Philadelphia, W. <fe 
 
 B. R. Co. 62 Md. 95... 
 
 187, 195, 515 
 
 Pennsylvania Co. v. Bray, 125 Ind. 
 
 229.. 176, 207, 519, 520, 604 
 
 V. Ellett, 132 111. 654 546 
 
 V. Hine, 41 Ohio St. 276 185, 522 
 V. Hoagland, 78 Ind. 208.. 
 
 130, 141 
 
 V. Lilly, 73 Ind .254 657 
 
 V. Marien, 7 L. R. A. 687, 
 
 123 Ind. 415 
 
 91,101, 108, 378 
 
 V. Marion, 104 Ind. 239 _. 
 
 91, 95, 96, 104, 700 
 
 V. Miller, 35 Ohio St. 541, 35 
 
 Am. Rep. 620 567,569 
 
 T. Newmeyer (Ind.) Oct. 38, 
 
 1891 250 
 
 r. Roney, 89 Ind. 453, 46 
 
 Am. Rep. 173 416 
 
 i\ Roy, 103 U. S. 451, 26 L. 
 
 ed. 141 3, 
 
 27, 53, 53, 57, 337, 340, 242 
 r. Stc'£:emeier, 118 Ind. 305. 424 
 
 r. Tooney, 91 Pa. 256 214 
 
 V. Weddle, 100 Ind. 138. __. 359 
 Pennsylvania R. Co. v. Adams, 55 
 
 Pa. 499 -. 617 
 
 V. Aspell, 23Pa. 147 - 
 
 _".. -.24, 138, 151, 
 
 155, 218, 327, 415, 430, 669 
 
 V. Butler, 57 Pa, 335 281 
 
 V. Connell, 112 III. 295.. 177, 202 
 
 V. Fortney, 90 Pa. 326 679 
 
 V. Henderson, 51 Pa. 315... 
 
 267. 268. 273, 381. 657 
 
 V. Keller, 67 Pa. 300.. 635 
 
 r. Kelly, 31 Pa. 372... 606 
 
 V. Kilgore, 32 Pa. 292.. 152, 155 
 r. Langdon, 92 Pa. 21.. 376, 406
 
 ix 
 
 TABLE OF CASES. 
 
 Pennsylvania R. Co. v. Lewis, 79 
 
 Pa. 33.- 214 
 
 V. Lyons, 129 Pa. 113. .-152, 396 
 r. McCioskey, 23 Pa. 526 . . 281 
 ■c. MacKinney, 2 L. R. A. 
 
 820, 124 Pa. 462 
 
 699, 702. 703 
 
 r. Matthews, 36 N. .J. L. 531 666 
 r. People, 31 Ohio St. 537. . 
 
 607, 633 
 
 v. Peters, 8 Cent. Rep. 405, 
 
 116 Pa. 206 664 
 
 V Price, 96 Pa. 256 4. 8 
 
 r. K i )rdan, 119 Pa. 577.267. 692 
 r. Spicker, 105 Pa. 142 ... . 515 
 «. Vandiver, 42 Pa. 365.342, 344 
 
 V. Werner, 89 Pa. 59 416 
 
 V. Whitcomb, 111 Ind. 213. 178 
 V. Wilson (Pa.) 3 Cent. Rep. 
 
 915 267 
 
 t>. Zebe, 33 Pa. 318.375, 389, 656 
 Pennsylvania Tel. Co. v. Varnau 
 
 (Pa.) Oct. 1, 1888 678 
 
 Pensacola & A. R. Co. v. State. 2 
 
 Inters. Com. Rep. 522, 
 
 3 L. R. A. 661, 25 Fla. 
 
 310 .- 486 
 
 Pensacola Tel. Co. r. West. U. 
 
 Tel. Co. 96 U. S. 12, 34 
 
 L.ed. 711 480 
 
 People V. Boston & A. R. Co. 70 
 
 N. Y. 569 457 
 
 V. Biidd, 5L. R. A.559, 117 
 
 N.Y.I 453.454 
 
 r. Cbiipin, 42 Hun, 239 484 
 
 V. Chicago & A. R. Co. 130 
 
 111. 175, 35 Am. & Eng. 
 
 Corp. Cas. 462, 40 Am. 
 
 &Eng. R. Cas. 353.-.. 89 
 t. (lark (N. Y.) 10 Ry. & 
 
 •Corp. L.J. 28 239 
 
 V. Douglass, 87 Cal. 281 5 
 
 v. ,Tillson,3 Park. Crim. Cas. 
 
 234 191 
 
 T. King, 1 L. R. A. 293, 110 
 
 N. Y. 418 457 
 
 r. McKay, 46 Mich. 439 125 
 
 r. New York, N. II. & H. 
 
 R.Co. 55 Huu. 409 230 
 
 V. Utica C. Co. 22 111. App. 
 
 159 71 
 
 V. Wal.sb. 117 N. V. 34. «... 453 
 Peoria »t P. U. R. Co. v. V. S. Roil. 
 
 H. Co. 28 111. App. 79.- 2 
 I'eoria & R. I. R. Co. i\ Lane, 83 
 
 III. 448 54 
 
 Peoria M. •S: F. Ins. Co. v. Frost, 
 
 37 111.333 618 
 
 Pioria, I', ifc .1. R, Co. ■>\ Rey- 
 nolds, ^<8 III. 418 695 
 
 Perkins v. N. Y. C. R. Co. 24 N. 
 
 Y. 196.... 277, 278, 517, 510 
 T. Stickney, 132 Mass. 218. 721 
 Perley v. N. Y. C. & H R. R. Co. 
 
 65 N. Y. 374 569, 581 
 
 Perry r. Ga. R. & Bkg. Co. 85 Ga. 
 
 193 657 
 
 V. St. Joseph &, W. R. Co. 
 
 29 Kan. 420. 634 
 
 «. Thompson, 98 Mass. 249. 517 
 
 Pershing v. Chicago, B. & Q. R. 
 
 Co. 71 Iowa, 561.61, 231,69a 
 Peters v. Rylands, 20 Pa. 497.-50, 527 
 Peterson v. Chicago, R. I. & P.R. 
 
 Co. 80 Iowa. 92.. 529- 
 
 V. The Chandos, 4 Fed. Rep. 
 
 649 675 
 
 Petrie )•. Penn. R. Co. 43 N. J. L. 
 
 449. _ - 199,302 
 
 Petty V. Great Western R. Co. L. 
 
 R. 5 C. P. 461, n. • 98 
 
 Peverly ;'. Boston, 136 Mass. 366. 669 
 Peyton v. Texas Pac. R. Co. 41 
 
 La. Ann. 861 758 
 
 Pfaelzel v. Pullman P. C. Co. 4 
 
 W. N. C. 240 24^ 
 
 Plister V. Central P. R. Co. 70 Cal. 
 
 169 551, 562 
 
 Phelps V. London & N. W. R. Co. 
 
 19 C. B.N. S. 321 561 
 
 V. Wait, 30 N. Y. 78 425 
 
 Philadelphia & R. R. Co. v. An- 
 derson, 94 Pa. 351, 39 
 
 Am. Rep. 787.. 
 
 -...57, 67, 68, 694 
 
 r. Boyer, 97 Pa. 91 423- 
 
 V. Derby, 55 U. S. 14 How. 
 
 468. 486, 14 L. ed. 502 
 
 -509. -.6, 7. 18, 19, 216 
 
 218, 255, 278. 379, 281, 338 
 ' V. Edelstein (Pa.) 23 W. N. 
 
 C. 342. 139, 140 
 
 V. Hummell, 44 Pa. 375 214 
 
 V. New England Transp. Co. 
 
 24 Fed. Rep. 505 675 
 
 Philadelphia ; & S. M. SS. Co. v. 
 
 Penn. 1 Inters. Com. 
 
 Rep. 308, 122 U. S. 326, 
 
 30 L. ed. 1200.. 441. 442, 503- 
 Philadelphia & T. R. Co. «.IIagan, 
 
 47 Pa. 244 681 
 
 Philadelphia & W. B. R. Co. v. 
 
 Conway, 112 Pa. 511.. 628 
 T. Quigley, 62 U. S. 21 How. 
 
 210, 16 L. ed. 75 328 
 
 Philadelphia T. Co. c. Orbann, 
 
 119 Pa. 37 7 
 
 Philadelphia, W. & B. R. (^o. v. 
 
 Anderson, 8 L. R. A. 
 ■ 673, 72 Md. 519.101,133,410
 
 TABLE OB' CASES. 
 
 Ixi 
 
 Philiulelpbia, W. & P. R. Co. 
 
 V. Iloeflich, 03 Md. 800 187 
 
 V. Lehman, 56 Md. 309 540 
 
 V. McCormick, 124 Pa. 427 
 
 ....139. 140 
 
 V. Philadelphia & H DeG. 
 
 S. T. B. Co. 64 U. S. 23 
 
 How. 215, 16 L. ed. 435 
 
 297,540 
 
 V. Rice, 64 Md. 63 
 
 186.306, 209, 371 
 
 Philips V. Northern R. Co. of N. 
 
 J. 63 Hun. 333 390, 547 
 
 Phillips V. Eyre, L. R. 6 Q. B. 1, 
 
 28-30 643 
 
 V. Horafrav. L. R. 24 Ch. 
 
 Div. 439 615 
 
 «. Lawrence, 6 Watts & S. 
 
 164 _ 159 
 
 i\ Milwaukee & N. R. Co. 9 
 
 L. R. A. 531, 77 Wis. 
 
 349 678 
 
 V. Ritchie Co. Ct. 31 W.Va. 
 
 477 666 
 
 Philpott V. Missouri P. R. Co. 85 
 
 Mo. 164 639 
 
 Phoenix Ins. Co. of Brooklyn i\ 
 
 Erie & W. T. Co. 117 
 
 U. S. 313, 39 L. ed. 873 303 
 Plckard v. Ridtre Av. P. R. Co. 1 
 
 Pa. Adv. Rep. 218 392 
 
 i) Smith. 10 C. B. N. S. 470 385 
 Pickens o. Richmond & D. R. Co. 
 
 104 N. C. 313..-. 
 
 188, 189. 193. 195 
 
 Pickerings. Fisk, 6 Vt. 103 .644. 646 
 Pickford c. Grand Junction R. Co. 
 
 lOMees. & W. 415.... 231 
 Piddington v. Southeastern R. Co. 
 
 5C. B. N. S. Ill 4 
 
 FieTv. Finch, 34 Barb. 514... 516. 521 
 Pierce v. Equitable L. A. Soc. 145 
 
 M>,ss. 56.. 644 
 
 V. Randolph, 13 Tex. 390.. 169 
 Pike /'. Polytechnic Inst. 1 Fost. 
 
 &F. 713 57. 58 
 
 Pilot Boy, The, 23 Fed. Rep. 103. 399 
 Pippin V. Sheppard, 11 Price. 400 19 
 Pitcher v. Lake Shore & M. S. R. 
 
 Co. 38 N. Y. S. R. 647, 
 
 40 N. Y. S. R. 896.... 
 
 6,157, 351, 360. 270 
 
 Pittsburg, A. & M. P. R. Co. v. 
 
 Caldwell, 74 Pa. 421.. 379 
 A. & P. R. Co. V. Dona 
 
 hue, 70 Pa. 119 
 
 .332, 334, 335,365 
 
 Pittsburgh v. Grier, 22 Pa. 54.415, 431 
 Pittsburgh & C. R. Co. «. Andrews, 
 
 39 Md. 329 405 I 
 
 Pittsburgh & C. R. Co. v. Mc- 
 
 Clurg, 56 Pa. 294.-375, 405 
 
 V. Pillow, 76 Pa. 510 
 
 160, 164, 167, 168, 690 
 
 Pittsburgh & St. L. R. Co. v. 
 Rothschild (Pa.) 4 Cent. 
 
 Rep. 107 646 
 
 Pittsburgh, C. & St. L. R. Co. v. 
 Baltimore & O. R. Co. 
 1 Inters. Com. Ren. 729 510 
 V. Campbell, 86 111. 443.... 546 
 
 V. Hennigh, 39 Ind. 509 186 
 
 V. Hine, 25 Ohio St. 629... 631 
 i: Krouse. 30 Ohio St. 2^2. 10 
 V. Lyon, 2 L. R. A. 489, 123 
 
 Pa. 140_.160, 173, 572. 583 
 
 V. Nelson, 51 Ind. 150 57, 58 
 
 r. Nuziim, 50 Ind. 141.170, 178 
 r. Thompson, 56 111. 138... 
 
 48, 49, 53, 63. 216, 695 
 
 r. Vandyne, 57 Ind. 576... 
 
 113. 160,161, 256 
 
 «. Van Houten. 48 Ind. 90 
 
 161, 165, 166, 185 
 
 V. Williams, 74 Ind. 463.63, 694 
 Pittsburgh, Ft. W. & C. R. Co. r. 
 
 Brigham,29 0hioSt.374 95 
 
 V. Hinds, 53 Pa. 512 
 
 163, 167, 
 
 168, 230. 234, 335, 347, 355 
 
 V. Ruby. 58 Ind. 294 80 
 
 i\ Vining. 27 Ind. 513 656 
 
 Pittsburgh S. R. Co. v. Taylor, 
 104 Pa. 306, 49 Am. 
 
 Rep. 580 416 
 
 Platz V. Cohoes. 24 Hun, 101, 89 
 
 N. Y. 219 535, 736, 737 
 
 Plummer v. Webb, 1 Ware. 75... 612 
 Plymouth First Nat. Bankv.Price, 
 
 33Md.487 644 
 
 Pollock V. The Laura, 5 Fed. Rep. 
 
 133 300, 305-307 
 
 V. The Sea Bird, 3 Fed. Rep. 
 
 573 300, 304-306 
 
 Poor V. The Geneva, 26 Fed. Rep. 
 
 647... 300, 307 
 
 Pope Catlin, The, 31 Fed. Rep. 
 
 408.- 300 
 
 Pope's Case, 30 Fed. Rep. 169 ... 590 
 Porter v. Ciiioago & W. M. R. Co. 
 
 80 Mich. 156 143 
 
 V. Chicago, R. I. & P. R. Co. 
 
 41 Iowa, 358.-334, 350, 364 
 V. Hannibal & St. J. R. Co. 
 71 Mo. 66, 36 Am. Rep. 
 
 454 757 
 
 V. N. Y. C. R. Co. 34 Barb. 
 
 353 .- 172, 188 
 
 V. N. Y.,L. E. & W. R. Co. 
 
 59 Hun, 177 -. .-. 270
 
 Ixii 
 
 TABLE OF CASES. 
 
 Porterfield t. Humphreys, 8 
 
 Humph. 897 - 297 
 
 Posey V. Scoville, iO Fed. Rep. 140 299 
 Post V. Chicago & N. W. R. Co. 
 
 14 Neb. 110... 162, 186, 521 
 Posterio t\ Baltimore & O. R. Co. 
 
 (Pa.) May 23, 1892 386 
 
 Potts v. Chicago C. R. Co. 33 Fed. 
 
 Rep. 610 28, 29, 37, 697 
 
 Poucher c. N. Y. C. R. Co. 49 N. 
 
 Y. 263 _.. 
 
 7, 10.266,269,270, 277 
 
 Poulin v. Canadian P. R. Co. 47 
 
 Fed. Rep. 858. 207 
 
 Poulton T. London & S. W. R. Co. 
 
 L. R. 2 Q. B. 534.. 334, 351 
 Pound V. Turk, 96 U. S. 459, 24 L. 
 
 ed. 525 .439, 441 
 
 Pounder v. Northeastern R. Co. 
 
 (1892)1Q. B. 385,llRy. 
 
 & Corp. L. J. 278 361 
 
 Powell V. Augusta & S. R. Co. 77 
 
 Ga. 179 746 
 
 r. Myers, 26 Wend. 591.297, 584 
 r. Penn. 127 U. S. 678, 32 
 
 L. ed. 253 543 
 
 T. Penn. R. Co. 32 Pa. 414 
 
 267 375 
 r. PittsburffhrC.&'st. L.' 
 
 R. Co." 25 Ohio St. 70. 
 
 185, 509, 521 
 
 Powers V. Boston & M. R. Co. 153 
 
 Mass. 188 253, 255, 257 
 
 Powhatan S. B. Co. i\ Appomat- 
 tox R. Co. 65 U. S. 24 
 
 How. 247, 16 L. ed. 682 
 
 532, 540 
 
 Pozzi V. Shipton. 8 Ad. & El. 963, 
 
 8 L. J. Q, B. N. S. 400. 20 
 Praeger v. Bristol & E. R. Co. 24 
 
 L.T.N. S. 105 132, 140 
 
 Pratt C. & I. Co. V. Brawlev. 83 
 
 Ala. 371,3 Am. St.' Rep. 
 
 751 ..729. 733, 739 
 
 Prendergast v. Compton, 8 Car. & 
 
 P. 454, 402.... 161, 163, 165 
 Price V. International &, G. N. R, 
 
 Co. 64 Tex. 146 15 
 
 V. Penna. R. Co. 113 U. S. 
 
 218, 28 L. ed. 980 8 
 
 r. Powell, 3 N. Y. 322 721 
 
 T. St. Louis. K. C. & N. R. 
 
 Co. 72 Mo. 414 .-..155, 413 
 Prideaux v. Mineral Pt. 43 Wi.s. 
 
 513, 28 Am. Rep. 558.. 735 
 l^riesl V. Hudson River R. Co. 40 
 
 How. Pr. 456 364 
 
 V. HudHon Itiver R. Co. 10 
 
 Abb. Pr. N. S.OO 841 
 
 Priestly >: Fowler, 3 Mees. & W. 1 397 
 Prince George County Comrs. v. 
 
 Burgess, 61 Md. 29 692 
 
 V. International »& G. N R. 
 
 Co. 64 Tex. 146 202 
 
 Prinz Georg. The, 23 Fed. Rep. 906 284 
 Probate Judge v. Hibbard, 44 Vt. 
 
 597 646 
 
 Protector, The, 79 U. S. 12 Wall. 
 
 700, 20 L. ed. 463 23 
 
 Provencher v. Canadian P. R. Co. 
 Mont. L. Rep. 5 Super. 
 
 Ct. 9 745 
 
 Providence B k v. Billings, 29 U. 
 S. 4 Pet. 514, 562, 7 L. 
 
 ed. 939, 956... 436 
 
 Providence C. Co. v. Providence «fe 
 W. M. R. Co. 1 Inters. 
 
 Com. Rep. 363 491 
 
 Pullman P. C. Co. v. Bales (Tex.) 
 
 Dec. 9, 1890 239 
 
 V. Barker, 4 Colo. 344, 34 
 
 Am. Rep. 89.-151, 746, 752 
 
 T. Bluhm, 109 111. 20 - 242 
 
 V. Ehrman, 65 Miss. 383 ... 239 
 r. Gardner, 3 Pennyp. 78. . 
 
 242, 245,557, 558 
 
 r. Gavlord (Ky.) 23 Am. L. 
 
 R'eg. N. S. 788. __ 242 
 
 V. Lowe, 6 L. R. A. 809, 28 
 
 Neb. 239 242 
 
 c. Matthews, 74 Tex. 654 . . 242 
 
 r. Reed, 75 111. 125 
 
 .... 172. 181, 183. 184, 197 
 0. Smith, 73 111. 360.242, 243, 559 
 r. Smith, 79 Tex. 468 ..240, 241 
 Purcell V. St. Paul C. R.Co. (Minn.) 
 16 L. R. A. 203, 11 Ry. 
 
 & Corp. L. J. 114 
 
 -.346, 413. 417, 673 
 
 Putnam v. Broadway & S. Ave. R. 
 
 Co. 55 N. Y. 108 
 
 161, 165, 220, 409 
 
 Pym V. Great Northern R. Co. 2 
 
 Post. c%F. 61 9.. 48, 57, 58, 72 
 
 Q- 
 
 Quackenbush v. Chicago & N. W. 
 
 R. Co. 73 Iowa, 458.748, 752 
 Quaife v. Chicago & N. W. R. Co. 
 
 48 Wis. 513 127 
 
 Queen, The, 41 Fed. Rep. 694 673 
 
 Quigley V. Central P. R. Co. 11 
 
 Nev. 350, 5 Sawy. 107. 
 
 173, 183
 
 TAIJLK OF CASES. 
 
 Ixiii 
 
 Quimby r. Boston & M. li. Co. 5 
 L. li. A. 846, 150 Mass. 
 365.. .275, 277. 278, 517, 519 
 V. Vanderbilt, 17 N. Y. 306. 
 
 ..-.515, 516, 526, 527, 530 
 
 Quin V. Moore, 15 N. Y. 435 656 
 
 Quincy C. Co. v. Hood, 77 111. 68. 622 
 (.Juinlan i\ Sixth Ave. R. Co. 4 
 
 Daly, 488 698 
 
 Quinn v. 111. Cent. R. Co. 51 111. 495 411 
 V. S. Car. R. Co. 1 L. K. A. 
 
 682, 29 S. C. 381 ..402, 608 
 V. The Y oxford, 33 Fed 
 
 Rep. 521. 299 
 
 R. 
 
 Raben v. Central Iowa R. Co. 73 
 
 Iowa, 579 154 
 
 Ragan v. Aiken, 9 Lea, 609 508 
 
 Railroad Co. v. Valleley, 32 Ohio 
 
 St. 345 161, 164 
 
 Ramsden v\ Boston & A. R. Co. 
 
 104 Mass. 117 
 
 .... 168, 340, 342, 363, 590 
 Rand v. Merchants Disp. T. Co. 59 
 
 N. H. 363 262 
 
 Randall v. Frankford, S. & P. C. 
 
 Pass. R. Co. 139 Pa. 464 35 
 p. Northwestern Teleg.Co. 54 
 
 Wis. 147 613, 692 
 
 Ransome v. E& stern Counties R. 
 
 Co. 1 C. B. N. S. 437-. 506 
 
 Rauch V. Lloyd, 31 Pa. 358 222 
 
 Rawitzky v. Louisville & N. R. Co. 
 
 40 La. Ann. 47 509. 521 
 
 Rawson «. Penna. R. Co. 2 Abb. 
 
 Pr. N. S. 220 563 
 
 V. Penna. R. Co. 48N.Y. 212 515 
 Raymond v. Chicago, M. & St. P. 
 
 R. Co. 1 Inters. Com. 
 
 Rep. 627. 501 
 
 Raynor v. Minis, 37 Mich. 34 608 
 
 Read v. Boston & A. R. Co. 140 
 
 Mass. 199 531 
 
 V. Great Eastern R. Co. L. R. 
 
 3Q. B. 555 _. 655 
 
 Readhead v. Midland R. Co. L. R. 
 
 2Q. B. 412, L. R. 4 Q. 
 
 B. 379, 38 L. J. Q. B. 
 
 169.-28,32,48,52,55,58, 59 
 
 62, 63. 66, 72, 75, 218, 310 
 Reading & C. R. Co. v. Ritchie, 
 
 102 Pa. 433 681 
 
 Reading City Pass. R. Co. v. Eck- 
 
 ert (Pa.) 2 Cent. Rep. 
 
 791 397 
 
 Readnian r. Conway, 126 Mass. 
 
 374, 377 321, 726 
 
 Reary v. Louisville, N. O. <k T. R. 
 
 Co. 40 La. Ann. 32.... 18 
 
 Reba. The, 22 Fed. Rep. 546 675 
 
 Reber r. Bond, 38 Fed. Rep. 822. 
 
 277, 259 
 
 Reddon r. Union P. R. Co. 5 Utah, 
 
 344 755 
 
 Reed v. Axtell, 84 Va. 231.'.'.Vl31. 378 
 c. N. Y. C. R. Co. 45 N. Y. 
 
 574, 56 Barb. 493 
 
 54, 74. 723, 727 
 
 Reese v. Penna. R. Co. 6 L. R. A. 
 
 529, 131 Pa. 422 171 
 
 Reeside, The, 2 Suran. 567 297 
 
 Reibel v. Cincinnati, I. St. L. & C. 
 
 C. R. Co. 114Ind. 476.. 390 
 Reid V. New York, N. H. & H. R. 
 
 Co. 44 N. Y. S. R. 688. 385 
 R. E. Lee, The, 2 Abb. U. S. 51.. 
 
 557 559 564 
 Reliance, Tlie, 4"Woods,"42o!.-...' 698 
 Religious Teachers, Be, 1 Inters. 
 
 Com. Rep. 21 503 
 
 Rex V. Reeves, 2 Peake, N. P. 85. 231 
 
 Rexter v. Starin, 73 N. Y. 601 416 
 
 Reynolds v. Burlington, 52 Vt. 300 665 
 V. N. Y. C. & H. R. R. Co. 
 
 58 N. Y. 252.. 688 
 
 Rhodes v. Georgia R. & Bkg. Co. 
 
 84 Ga. 320-.. 730 
 
 Rice r. Illinois Cent. R. Co. 22 111. 
 
 App. 643 277, 555 
 
 V. Kansas P. R. Co. 63 Mo. 
 
 314 272, 281 
 
 V. Ontario S. B. Co. 56 Barb. 
 
 384 292 
 
 Riceman v. Havcmeyer, 84 N. Y. 
 
 647 689 
 
 Richards t. London »& S. C. R. Co. 
 
 6Ry. Cas. 49 _. 583 
 
 Richardson v. Great Eastern R. 
 
 Co. L. R. 10 C. P. 486. 
 
 71, 549 
 
 -v. Great Eastern R. Co. L. 
 
 R. 1 C. P. Div. 342, 17 
 
 Moak, Eng. Rep. 294. 
 
 52 59 73 
 V. N. YrC.'R.'Co."98"Mass. ' 
 
 85 -...603, 
 
 623, 685, 643, 645. 646, 655 
 Richey v. Missouri Pac. R. Co. 7 
 
 Mo. App. 157 679 
 
 Richmond & D. R. Co. v. Child- 
 ress, 3 L. R. A. 808, 82 
 
 Ga. 719 708, 715 
 
 V. Howard, 79 Ga. 44. 664 
 
 V. Morris, 31 Gratt. 200 376
 
 Ixiv 
 
 TABLE OF OASES. 
 
 Eichmond & D. R. Co. v. Pickle- 
 
 seimer, 85 Va. 798 
 
 408, 6(JG, G68 
 
 V. Reidsvllle, 2 Inters. Com. 
 Rep. 416. 2 L. R. A. 
 
 384, 101 N. C. 404 441 
 
 V. Smith (Ala.) April 27, 
 
 1891 140 
 
 V. Yeomans, 86 Va. 860 691 
 
 Ricker v. Freeman, 50 N. H. 430 . 425 
 Ricketts v. Birmingham St. R. Co. 
 
 85 Ala. 601 546 
 
 V. Chesapeake & O. R. Co. 
 7 L. R. A. 354, 33 W. 
 
 Ya. 433 337, 547 
 
 Riddle «. N. Y., L. E. & W. R. 
 Co. 1 Inters. Cora. Rep. 
 
 787. - 490 
 
 Ridenhour v. Kansas City C. R. 
 Co. 102 Mo. 270.283... 
 
 34, 153, 221, 728 
 
 Riley v. Connecticut River R. Co. 
 
 135 Mass. 292 685 
 
 «. Home, 5 Ring. 220 ....68, 73 
 
 Ring*. Cohoes, 77 N.^Y. 83 673 
 
 Riordan d. Ocean SS. Co. 124 N. 
 
 Y.655 687 
 
 Ripley ®. N. J. R. & Transp. Co. 
 
 31 N. J. L. 388. ...184, 509 
 Robbins v. Shelby Co. Tax. Dist. 
 120 U. S. 489, 30 L. ed. 
 
 694 444, 449, 542, 543 
 
 Roberts v. Johnson. 58 N. Y, 613 
 
 25, 425 
 
 v. Koehler, 30 Fed. Rep. 94 
 
 551, 591 
 
 V. Ogdensburgh & L. C. R. 
 
 Co. 39 Hun, 154 
 
 707, 714, 715 
 
 Robertson v. N. Y. & E. R. Co. 32 
 
 Barb. 91 15. 16 
 
 Robinson v. Burton, 5 Harr. (Del.) 
 
 335 608 
 
 V. Cone. 33 Vt. 313 731 
 
 V. Dunmore, 2 Bos. «& P. 
 
 416 1,24 
 
 V. N. Y. C. & H. R. R. Co. 
 
 20Blalchf. 338 58, 698 
 
 V. Ocean Steam Nav. Co. 2 
 L. R. A. 636. 112 N. Y. 
 
 315.... 654 
 
 e. Southern P. R. Co. 48 Cal. 
 
 421 152 
 
 V. Waupaca, 77 Wis. 544... 751 
 v. Western P. R. Co. 48 Cal. 
 
 421 153 
 
 Robostelli v. N. Y., N. H. &H. R. 
 Co. 33 Fed. Rep. 799.. 
 134, 521 
 
 Robson t\ N. Y. C. & H. R. R. 
 
 Co. 21 Hun, 387. -.184, 187 
 V. Northeastern R. Co. L. 
 
 R. 2 Q. B. Div. 86, 46 
 
 L. J. Q. B. 50 140 
 
 V. Northeastern R. Co. L. R. 
 
 10 Q. B. 271. 415 
 
 Rock V. Dennis, 4 Mont. L. Rep. 
 
 356... 673 
 
 Rockford, R. I. & St. L. R. Co. v. 
 
 Delaney, 82 111. 198.606, 656 
 Rodemacher v. Milwaukee & St. 
 
 P. R. Co. 41 Iowa, 297. 438 
 Roderigas «. East River Sav. Inst. 
 
 63 N. Y. 460 633 
 
 Rodrian v. N. Y., N. H. & H. R. 
 
 Co. 125 N. Y. 526 
 
 682, 685, 692 
 
 Roe v. Birkenhead, L. & C. J. R. 
 
 Co. 6 Exch. 36_ 350 
 
 Rogers t. Rhymney R. Co. 26 L. 
 
 T. N. S. 879 103 
 
 Roll V. Northern C. R. Co. 15 Hun, 
 
 496 233, 416, 418 
 
 Rome & D. R. Co. v. Chasteen, 88 
 
 Ala. 591.. 546,547 
 
 Rome R. Co. v. Wimberly, 75 Ga. 
 
 316 551, 563, 586 
 
 Rommel v. Schambaher, 120 Pa. 
 
 579 166, 167 
 
 Root v. Lons Island R. Co. 4 L. R. 
 
 A, 331, 114 N. Y. 300.. 508 
 z. N. Y. C. S. C. Co. 28 
 
 Mo. App. 200 
 
 241-243, 557 
 
 Rose T. Des Moines V. R. Co. 39 
 
 Iowa, 246... 7, 268, 279, 281 
 i'. Northeastern R. Co. \j. R. 
 
 2 Exch. Div. 248, 46 L. 
 
 J. Exch. 374 140 
 
 V. Stephens & C. T. Co. 20 
 
 Blatchf. 411 298 
 
 r. Wilmington & W. R. Co. 
 
 106 N. C. 168.. 186, 195, 199 
 Rosenfeld v. Peoria, D. & E. R. 
 
 Co. 103 Ind. 131 367 
 
 Ross V. Litton, 5 Car. & P. 407.-. 731 
 V. Missouri, K. & T. R. Co. 
 
 4 310. App. 583 580 
 
 Roth V. Buffalo & S. L. R. Co. 34 
 
 N. Y. 548 548, 585, 588 
 
 Rounds V. Delaware, L. & \V. R. 
 
 Co. 64 N. Y. 129 399 
 
 Rowef. State, 2 Bay, 565 305 
 
 Rown V. Christopher & T. St. R. 
 
 Co. 34 Hun, 471 357 
 
 R. R. Springer Transp. Co. v. 
 
 Smith, 16 Lea, 498.... 
 
 327, 341, 363
 
 TABLK OF CASES. 
 
 Ixv 
 
 Ruck V. Williams, 27 L. J. N. S. 
 
 Excb. 357 69 
 
 Kuggles V. Illinois, 108 U. S. 526, 
 
 27 L. ed. 812 .434, 486, 473 
 V. People, 91 111. 256. 263.. 464 
 llumsey v. Northeastern U. Co. 14 
 
 C. B. N. S. 641 575 
 
 Eutherford v. Shreveport & H. R. 
 
 Co. 41 La. Ann. 793, 41 
 
 Am. & Eng. R. Cas. 
 
 139 ...48, 53, 63, 64 
 
 Ryall V. Kennedy, 8 Jones & S. 
 
 347_. 612 
 
 Ryan r. Manhattan R. Co. 121 N. 
 
 Y. 126 132 
 
 Ryder c. New York, 18 Jones & y. 
 
 220 760 
 
 Saare v. Union R. Co. 20 Mo. App. 
 
 211.... 
 
 Sabine «& E. T. R. Co. v. Hanks, 
 
 73 Tex. 323 
 
 Sachrowitz v. Atchison, T. & S.F. 
 
 R. Co. 37 Kan. 212 
 
 Safford v. Drew, 3 Dner, 637 
 
 Sager v. Portsmouth, S. A; P. E. 
 
 R. Co. 31 Me. 238 
 
 Sahlgaard v. St. Paul C. R. Co. 
 
 (Minn.) Jan. 19, 1893.. 
 
 St. Clair v. Cox, 106 U. S. 350, 27 
 
 L. ed. 222 
 
 St. Joseph & D. C. R. Co. v. Ryan, 
 
 11 Kan. 602 
 
 St. Jo.seph& W. R.Co. i\ Wheeler, 
 
 35 Kan. 185 352, 
 
 St. Louis, A, & C. R. Co. v. Dalbv, 
 
 19 111. 353..-. 171, 182, 
 St. Louis, A. & T. H. R. Co. v. 
 
 South, 43111. 176 
 
 .--- 171. 181, 
 
 St. Louis, A. & T. R. Co. v. Berry 
 
 Tex. App.) Nov. 12, 
 
 1890 
 
 r. Finley, 79 Tex. 85 
 
 .......154, 281, 
 
 V. Hardy (Ark.) Nov. 21. 
 
 1891 236, 
 
 «. Mackie, 1 L. R. A. 667, 
 
 71 Tex. 491 
 
 168, 186, 511, 
 
 St. Louis & S. E. R. Co. v. Myrtle, 
 
 51 lud. 566 
 
 r Smuck. 49 Ind. 303 
 
 St. Louis & S. F. R. Co. v. Ed. 
 
 wards, 26 Kan. 72 
 
 729 
 
 630 
 
 349 
 690 
 
 268 
 
 394 
 609 
 90 
 255 
 337 
 
 183 
 
 328 
 384 
 338 
 
 515 
 
 348 
 265 
 
 721 
 
 St. Louis & S. F. R. Co. v. Mc- 
 Bride, 141 U. S. 127, 
 
 35 L. ed. 659- 601 
 
 V. Murray (Ark.) Dec. 19, 
 
 1891 418, 427 
 
 r Stevenson. 54 Ark. 116.. 484 
 
 r. Trimble, 54 Aik. 354 177 
 
 V. Weaver, 35 Kan. 412 
 
 ..692, 736 
 
 St. Louis Cent. R. f -o. r. Sutton, 
 
 43 111. 438 -. 183 
 
 St. Louis, I. M. & S. R. Co. r. 
 
 Adcox, 52 Ark. 406.142,179 
 
 V. Cantrell, 37 Ark. 519 97 
 
 V. Fairnairn. 48 Ark. 491 .. 95 
 
 V. Leigh, 45 Ark. 368 232 
 
 V. Mct-'oriiiick, ] L. R. A. 
 
 804, 71 Tex. 660 
 
 .-..603, 651, 654 
 
 V. Person, 49 Ark. 182 393 
 
 St. Louis, J. & V. R. Co. r. Ma- 
 thers, 71 111. 592, 104 
 
 III. 257- 90 
 
 St. Lnuis, N. & C. R. Co. v. Dalby, 
 
 19 111. 353 170 
 
 Sales*'. Western Stage Co. 4 Iowa, 
 
 547 ■- 30 
 
 Saltonstall v. Stockton, Taney, 11 
 
 .327, 283 
 
 Samuels v. Louisville & N. R. Co. 
 
 31 Fed. Rep. C7 
 
 159, 435, 502 
 
 San Andrisso & A. P. R. Co. v. 
 
 Moore, 79 Tex. 643 733 
 
 San Antonio it A. P. R.Co. v. Rob 
 
 in.son, 73 Tex. 377 695 
 
 V. Slate. 79 Tex. 264 89 
 
 Sanderson v. Frazier, 8 Colo. 79-. 692 
 Sandford v. ('atawissa, W. & E. 
 
 R. Co. 34 Pa. 378 375 
 
 T. Heslonville, M. & F. P. . 
 
 R. Co. 136 Pa. 84 
 
 .-37, 43,46 
 
 V. 8th Ave. R. Co. 23 N. Y. 
 
 343 213 
 
 Sanger i\ Southern P. R. Co. 3 
 
 Inters. Com. Rep. 548. 504 
 Santa Clara Co. t. Southern P. R. 
 Co. 118 U.S. 394, 30 L. 
 
 ed. 118 478 
 
 Sapphire. The, 78 U. S. 11 Wall. 
 
 164, 20 L. ed. 137 675 
 
 Satterlee t. Groat, 1 Wend. 272 .. .15 
 Savannah, F. & W. R. Co. v. 
 
 Watts, 82 Ga. 229 394 
 
 Savannah, S. v.t S. R. Co. v. Bo- 
 
 naud, 58 Ga. 180 228 
 
 Savannah St. R. Co. v. Bryan, 86 
 
 Ga. 312 343, 347, 362
 
 ixvi 
 
 TAliLE OF CASKS. 
 
 Savery v. N. Y. C. & H. R. R. Co. J 
 
 2 Inters. Com. Rep. 310 1 
 
 ..-.232, 503 1 
 
 Sawyer -c. Davis, 136 Mass. 239..- 406 j 
 V. Hannibal & St. J. R. Co. ' 
 
 37 Mo. 240, 90 Am. Dec. • 
 
 382... 48, 49, 53. 72, 74, 094 i 
 
 r. Sauer, 10 Kan. 519 606 j 
 
 Sayles v. Western Stas,e Coach Co. i 
 
 4 Iowa. 547 22 i 
 
 Scaling v. Pullman P. C. Co. 24 \ 
 
 Mo. App. 29... -3, 241, 242 | 
 Schacberl v. St. Paul C. R. Co. 42 
 
 Minn. 42 41 
 
 Schadewald v. Milwaukee, L. S. & 
 
 W. R. Co. 55 Wis. 569 642 
 Scbeffler v. Minneapolis & St. L. 
 
 R. Co. 32 Minn. 125. .. 639 
 Sclilereth «. Missouri P. R. Co. 96 
 
 ]\Io. 514 ..... 681 
 
 Schmidt v. Deetran, 69 Wis. 300.. 642 
 •». Pfeil, 24 Wis. 452...... 752 
 
 Schneider t. 2nd Ave. R. Co. 39 
 
 N. Y. S. R. 370 37,755 
 
 SchoUenberger, Ex parte, 96 U. S. 
 
 369. 24 L. ed. 853.. 609, 610 
 Schroeder «. Chicago, R. I, & P. 
 
 R. Co. 47 Iowa, 375... 
 
 708. 715 
 
 Schultz V. Chicago &; N. W. R. 
 
 Co. 44 Wis. 638. 418 
 
 V. Moon, 33 Mo. App. b33. 679 
 V. 3d Ave. R. Co. 14 Jones 
 
 i&S. 211 754 
 
 Schultze V. Mo. Pac. R. Co. 32 
 
 Mo. App. 438 416 
 
 Schum «. Pennsylvania R. Co. 107 
 
 Pa. 8 678 
 
 Schwarz v. .Tudd, 28 Minn. 371... 636 
 Scofield V. Lake Shore tt M. S. R. 
 
 Co. 2 Inters. Com. Rep. 
 
 67 ...232, 490 
 
 V. Lake Shore & M. S. R. 
 
 Co. 43 Ohio St. 571 
 
 501, 508 
 
 Scotia, The, 39 Fed. Rep. 429.. . 305 
 Scott V. Central Park, N. & E. R. 
 
 R. Co. 53 Hun. 414... 372 
 
 V. Central R. Co. 77 Ga. 450 637 
 
 V. Sliepherd, 2 W. Bi. 892. 671 
 
 Scovili V. Grillith. 12 N. Y. 515.. 569 
 
 Scovillci). CanJiehl, 14 .Johns. 338 649 
 
 Searle v. KanawliaA: O. R. Co. 32 
 
 AV. Va. 370 48,50, 53 
 
 Scarlcs v. Manliattan El. R. Co. 
 
 101 N. Y. 661 76 
 
 V. Mann Boudoir C. Co. 45 
 
 Fed. Rep. 330 238, 239 
 
 Sears v. Dennis, 105 Ma.ss. 312 
 
 415, '116, 431 
 
 Sears v. Eastern R. Co. 14 Allen, 
 
 433.. 227, 229 
 
 Sebora v. Beckwith, 30 W. Va. 
 
 774 631 
 
 Secord«. St. Paul, M. &M. R. Co. 
 
 18 Fed. Rep. 221 ..255, 257 
 Self®. London, B. & S. C. R. Co. 
 
 42L. T. N. S. 179 549 
 
 Selleck th Langdon, 55 Hun, 19... 669 
 Selraa, R. & D. R. Co. v. Lacey, 
 
 43Ga. 461.49Ga. 106.. 
 
 617, 644, 651, 652, 655 
 
 Seneca, The, 1 Biss. 371 302 
 
 Severy v. Nickerson, 120 Mass. 306 94 
 Sevier v. Vicksbnrg &, M. R. Co. 
 
 61 Miss. 8 284 
 
 Seybolti). N. Y., L. E. & W. R. 
 
 Co. 31 Hun, 100, 95 N. 
 
 Y. 562. 47 Am. Rep. 75 
 
 8, 24. 277, 695 
 
 Seymour v. Chicago, B. & Q. R. 
 
 Co. 3 Biss. 43 122 
 
 v. Greenwood, 7 Hurlst. & 
 
 N.355 333 
 
 Shankenberj^ v. Metropolitan St. 
 
 R. Co. 46 Fed. Rep. 177 46 
 Shannon v. Boston & A. R. Co. 78 
 
 Me. 52 5, 415 
 
 Sharp V. Evergreen Twp. 67 Mich. 
 
 443 532 
 
 V. Grey, 9 Bing. 457.. 22, 23. 
 
 27, 53. 56, 75, 314, 414, 665 
 V. Whiteside, 19 Fed. Rep. 
 
 156 433 
 
 Shartle v. Minneapolis, 17 Minn. 
 
 308 746 
 
 Shattuck V. Rand, 142 Mass. 83 .. 322 
 
 V. Train, 116 I\Iass. 296 721 
 
 Shaw 0. Boston & W. R. Corp. 8 
 
 Gray, 45.. 753 
 
 V. Brown, 41 Tex. 446 608 
 
 r. Craft, 37 Fed. Itep. 317.. 738 
 V. Northern P. R. Co. 40 
 
 Minn. 144 560 
 
 V. Van Rensselaer, 60 How. 
 
 Pr. 143 715 
 
 Shea V. Manhattan R. Co. 15 Dalv, 
 
 .528 352 
 
 Shedd V. Moran, 10 111. App. 61S. 652 
 T. Troy & B. R. Co. 40 Vt. 
 
 88 ..' 185, 521 
 
 Sheffield v. Central U. Teleph. Co. 
 
 36 Fed. Rep. 164. ..738, 741 
 Shelton v. Lake Shore & M. S. R. 
 
 Co. 29 Ohio St. 214 
 
 171, 178. 188, 199, 201, 202 
 Shenandoah V^alley R.Co. v. Moose, 
 
 83 Va. 827 221 
 
 Shepard v. Mo. Pac. R. Co. 85 Mo. 
 
 629, 55 Am. Rep. 390.. 718
 
 TABLE OF CASES. 
 
 1: 
 
 Shepherd v. Chelsea. 4 Allen, 113. 
 
 .069, 670 
 
 Shepperd v. Midland R. Co. 20 
 
 Week. Rep. 705 97 
 
 Sheridan v. Brooklyn City ct N. R. 
 
 Co. 86 N. Y. 89.... 157, 284 
 Sherley v. Billings, 8 Bush, 147, 8 
 
 Am. Rep. 451. b37, 348, 347 
 Sherlock?-. Allinii, 44 Ind. 184.216, 094 
 V. .Vliini,^ 93 U. S. 99, 104, 
 
 28 L. ed. 819, 820 
 
 ..331,440. 441, 612 
 
 Sherman v. Chicago & N. \V. R. 
 
 Co. 40 Iowa, 45.185, 509, 521 
 V. Hnnnibal A: St. J. R. Co. 
 
 72 Mo. 65. 18, 252, 255 
 
 Sherrill v. Chesapeake. O. & S. W. 
 
 R. Co. 11 Kv. L. Rep. 
 
 502 .' 682 
 
 Sherry v. N. Y. C. & H. R. R. Co. 
 
 104 N. Y. 652 376 
 
 Sherwood ?'. Chicago ct W. M, R. 
 
 Co. 82 Mich. 874 144 
 
 Shields v. Youge, 15 Ga. 349 618 
 
 Shinners^j. Proprs. Locks ifc Canals, 
 
 12 L. R. A. 554. 154 
 
 Mass. 168 726 
 
 Shipper v. Pennsylvania R. Co. 47 
 
 Pa. 8:^8 508 
 
 Shoemaker v. Kingsbmy. 79 U. S. 
 
 12 Wall. 369, 20 L. ed. 
 
 432. ..2. 249, 25], 260 
 
 Shoenfeld »'. Milwaukee C. R. Co. 
 
 74 Wis. 433 066, 608 
 
 Shoop r. Com. 3 Pa. 1 26 805 
 
 Shreiber v. Sharpless, 110 U. S. 76, 
 
 28 L. ed. 65, 17 Fed. 
 
 Rep. 589... 609 
 
 Shriver v. Sioux C. & St. P. R. Co. 
 
 24 Minn. 506 267 
 
 Shutt V. Cumberland V.illey R. Co. 
 
 1 Pa. Adv. R. 859 
 
 389, 393, 399, 700 
 
 Sibley v. Smith, 46 Ark. 275 708 
 
 Sicard v. Davis, 31 U. S. 6 Pet. 124. 
 
 8L. ed. 342 601 
 
 Sidekum -c. Wabash. St. L. & P. R. 
 
 Co. 98 Mo. 400 718 
 
 Sidman v. Richmond & D. R. Co. 
 
 2 Inters. Com. Rep. 766 509 
 Sidonian, The, 38 Fed. Rep. 440. 284 
 Siegrist v. Arnot, 86 Mo. 200. 56 
 
 Am. Rep. 424 418, 423 
 
 Simmons v. New Bedford, V.«&N. 
 
 S. B. Co. 97 Mass. 361. 
 
 48. 72, 166, 299 
 
 Simms «. South Carolina R. Co. 27 
 
 S. C. 268.- 180, 151 
 
 Simonds v. Henry, 39 Me. 155 285 
 
 Simons v. Great Western R. Co. 2 
 
 C. B. N. S. 620 517 
 
 Singleton i). Eastern Counties R. 
 
 Co. 7C. B. N. S. 287.. 742 
 V. Phoenix Ins. Co. 82 N. Y. 
 
 S. R. 594 670 
 
 V. Southwestern R. Co. 70 
 
 Gn.464 544, 545, 547 
 
 Sinking Fund Cases. 99 U. S. 700, 
 747, 25L. ed. 496, oil.. 
 
 ...436, 462 
 
 Sioux City &, P. R. Co. r. Finlay- 
 son,16Xeb.578, -lOAm. 
 
 Rep. 724 708, 718, 760 
 
 V. Stout, 84 U. S. 657, 21 L. 
 
 ed. 745.. 214 
 
 Skinner v. Atchison, T. iV: S. F. R. 
 
 Co. 89 Fed. Rep. 188 .. 138 
 V. Housatonic R. Co. 1 Cush. 
 
 475. 617 
 
 r. London, B. it S. C. R. Co. 
 
 5 Excli . 787 . - 691 , 693 
 
 Slater /•. Mersereau, 64 N. Y. 188. 425 
 r. Northern P. R. Co. 2 
 
 Inters. Com. Rep. 248. 505 
 T. S. Car. R. Co. 29 S. C. 96 28 
 Sleath r. Wilson, 9 Car. & P. 607. 328 
 Sloan V. Central Iowa R. Co. 62. 
 
 Iowa, 728 596 
 
 V. N. Y C. A H. R. R. Co. 
 
 1 Hun, 540 606 
 
 Sloman v. Great Western R. Co. 67 
 N. Y. 208, rev'g 6 Hun, 
 
 546 ..569, 581 
 
 Smalley v. Smailey, 81 111. 70 608 
 
 Smedis v. Brooklyn R. <k B. R. Co. 
 
 8S N. Y. 19 688 
 
 Smith V. Alabama, 1 Inters, (^om. 
 Rep 804, 124 U. S. 465. 
 
 31 L. ed. 508 448, 444 
 
 v. Boston & M. R. Co. 120 
 
 Mass. 490 531, 539 
 
 T. Bo.ston & M. R. Co. 44 N. 
 
 II. 825.... 562. 565. 569, 576 
 V. British *.t N. A. R. M. S. 
 Packet Co. 14 Jones A; 
 
 S.86 698 
 
 r. Brown, L. R 6 Q. B. 729 612 
 ■r. Bull, 17 Wend. 323.. 652. 653 
 V. Chicago & A. R. Co. (Mo.) 
 
 March 28, 1892... 142 
 
 «. East & West R. of Ala. 
 
 84 Ga. 188. 636 
 
 V. Eastern R. Co. 35 N. H. 
 
 366 692 
 
 V. Ga. Pac. R. Co. 7 L. R. A. 
 
 323, 88 Ala. 538 141 
 
 V. Grand Trunk R. Co. 35 
 
 U. C. Q. B. 547 558
 
 Ixviii 
 
 TABLE OF CASES. 
 
 Smith V. Loudon & St. K. Dock 
 Co. L. 11. 3C. P. 326.. 
 
 95, 108, 121 
 
 V. Md. 59 U. S. 18 How. 71, 
 
 15 L. ed. 269 440 
 
 r. N.Y. & H. K. Co. 19 N. 
 
 Y. 127 59.317 
 
 V. N. Y. & N. li. K. Co. 16 
 
 How. Pr. 377 613 
 
 i\ N. Y. C. R. Co. 29 Barb. 
 
 132. 369 
 
 r. North Caiolina R. Co. 64 
 
 N. C. 235 267 
 
 V. Northern P. R. Co. 1 
 Inters. Com. Rep. 611. 
 
 502, 503 
 
 V. People, 47 N. Y. 330 632 
 
 ■c. Pittsburg, Ft. W. & C. R. 
 
 Co. 23 Ohio St. 10 171 
 
 V. St. Paul C. R. Co. 33 
 Minn. 1, 50 Am. Rep. 
 
 550 1 0. 30, 695 , 706 
 
 v. St. Paul, M. & M. R. Co. 
 
 . 30 Minn. 169 416, 418 
 
 r. Sherman, 4 Cush. 408. 412 617 
 V. Southeastern R. Co. 39 L. 
 
 J. C. P. 349 364 
 
 V. Weaver, Taylor, 58 617 
 
 Smotherman v. St. liouis. I. M. & 
 S. R. Co. 29 Mo. App. 
 
 265 409 
 
 Snow r. Carruth, 1 Sprague. 324.. 675 
 V. Eastern R. "Co. 12 Met. 
 
 44 592 
 
 V. Housatonic Co. 8 Allen, 
 
 441 416 
 
 Snowden r. Boston & M. R. Co. 
 
 151 .Mass. 220 399 
 
 Snyder ». Natchez R. R. & T. R. 
 Co. 42 La. Ann. 302... 
 
 109. 112, 217, 256 
 
 Solen V. Virjfinia «fc T. R. Co. 13 
 
 Neb. 106 _ 754 
 
 Somers v. Miss. & T. R. Co. 7 Lea, 
 
 201 700 
 
 Sonier v. Boston & A. R. Co. 141 
 
 Mass. 10 133. 139, 384 
 
 Soule V. N. Y. cV N. H. R. Co. 24 
 
 Conn. 575. _ 604, 617 
 
 South & North Ala. R. Co. v. Hull- 
 man, 76 Ala. 492, 52 Am. 
 
 Rep. 349 579 
 
 South Carolina v. Georgia, 93 U. 
 
 S. 4, 23 L. ed. 783 445 
 
 South Carolina R. Co. v. Nix, 68 
 
 Ga. 572 193 
 
 South Covington & V,. St. R. Co. 
 V. Ware, 84 Ky. 267... 
 376, 377, 418, 431, 761 
 
 Southern E.xp.Co. t. Memphis, etc. 
 
 R. Co. 8 Fed. Rep. 803 159 
 
 «. Moon, 39 Miss. 822 268 
 
 Southern Kan. R. Co. v. Hinsdale, 
 
 38Kan.507-.-168, 176, 
 
 177, 182, 193, 256, 257, 343 
 V. Rice, 38 Kan. 398 
 
 .168, 173, 175, 176, 
 
 178, 213, 343, 345, 347, 360 
 v. Sanford, 11 L. R. A. 432, • 
 
 45 Kan. 372 214 
 
 V. Walsh, 45 Kan. 653 
 
 50, 691,695 
 
 Southern R. & SS. Asso. lie, 1 
 
 Inters. Com. Rep. 278- 491 
 Southern R. Co. v. Kendrick, 40 
 
 Miss. 374 188 
 
 South Fla. R. Co. t\ Rhoads, 3 L. 
 
 R. A. 734, 25 Fla. 40... 
 
 169, 171, 185, 313, 375 
 
 Southwcstprn R. Co. v. Bently, 51 
 
 Ga. 311 590 
 
 ■v. Paulk, 24 Ga. 356 
 
 152, 376, 409 
 
 «. Singleton, 66 Ga. 252, 67 
 
 Ga. 306 155, 759 
 
 Spannagle v. Chicago «t A. R. Co. 
 
 31 111. App. 460 396 
 
 Sparks v. Kansas City R. Co. 31 
 
 Mo. App. Ill-- 606 
 
 Spear «. Griffin, 23 Md. 418 631 
 
 v. Philadelphia. W. & B. R. 
 
 Co. 119 Pa. 61 .- 698 
 
 Spencer v. Merchant, 125 U. S. 345, 
 
 356, 31 L. ed. 763, 767. 471 
 V. Milwaukee & P. du C. R. 
 
 Co. 17 Wis. 487 405 
 
 Spinnelti v. Atlas SS. Co. 80 N. 
 
 Y. 71.-- 366 
 
 Spirit of the Ocean, The, 34 L. J. 
 
 Adra. 74 292 
 
 Splittorf T. State, 108 N. Y. 205.. 627 
 Spofford V. Boston & M. R. Co. 128 
 
 Mass. 326 114 
 
 Spohn V. Mo. Pac. R. Co. 2 AVest. 
 
 Rep. 121, 87 Mo. 74, 
 
 101 Mo. 417.. -168, 173, 
 
 219, 329, 344, 346, 347, 361 
 Spooner v. Brooklyn C. R. Co. 54 
 
 N. Y. 230, 13 Am. Rep. 
 
 572 383 
 
 V. Hannibal & St. J. R. Co. 
 
 23 Mo. App. 403 567 
 
 Sprague v. Smith, 29 Vt. 421. 70 
 
 Am . Dec. 424 
 
 527, 529, 549, 596 
 
 Spring Vallev Waterworks v. 
 
 Schottler, 110 U. S. 347, 
 
 354, 28 L. ed. 173, 170. 463
 
 TA15LE OF CA!>ES. 
 
 Ikix 
 
 Squire t. N. Y. C TI. To. 98 Mhss. 
 
 23J), •34() 362, 519 
 
 Staal V. Grand St. ^t N. R. Co. 107 
 
 N. Y. 625 626, 657 
 
 StafiEord t>. Hannibal <t St. J. R. 
 
 Co. 22 Mo. A pp. 383..- 
 
 96, 128, 397 
 
 T. Kiibens. 115 111. 196 657 
 
 Stager v. liidge Ave. P. R. Co. 119 
 
 Pa. 70. 40 
 
 Slagg V. Edgecombe, 32 L. J. Mat. 
 
 153 712 
 
 Siallard v. Great Western R. Co. 2 
 
 Best & S. 419 587 
 
 Stallknecht v. Penn. R. Co. 53 
 
 How. Pr. 305 . ... _ 651 
 
 Standard Oil Co. v. Tierney (Ky.) 
 
 14 L. R. A. 677- ---727, 762 
 Standish r Narragiinsett SS. Co. 
 
 Ill Mas'. 512, 15 Am. 
 
 Rep. 666 184, 197, 351 
 
 Stanton v. Metropolitan R. Co. 14 
 
 Allen, 4S5 531 
 
 State v. Alabama ite V. R. Co. 67 
 
 Miss. 647, 42 Am. & 
 
 Eng. R. Cas. 681 89 
 
 r. Baltimore & O. R. Co. 24 
 
 W. Va. 783 542 
 
 V. Baltimore & O. R. Co. 69 
 
 Md. 339 -- 613 
 
 f. Boston & M. R. Co. 80 
 
 Me. 430 741 
 
 r. Campbell, 33 N. J. L. 309 
 
 192, 195, 509, 521 
 
 •v. Chicago, St. P. M. & O. 
 
 R. Co. 2 Inters. Com. 
 
 Rep. 519, 3 L. R. A.. 
 
 238, 40 Minn. 267 484 
 
 t'. Chovin, 7 Iowa, 204, 208 
 
 160,167, 175, 375 
 
 t\ Columbus Gaslight & C. 
 
 R. Co. 34 Ohio St. 572. 
 
 582 -- 464 
 
 r. Consolidated E. & IS. A. 
 
 R. Co. 67 Me. 479 690 
 
 V. Delaware. L. ifc W. R. 
 
 Co. 48 X. J. L. 55 508 
 
 r. Fitzpatrick, 1 Inters. Com. 
 
 Rep. 713. 16 R. I. 54 -. 444 
 r. Goold, 53 .Me. 279 
 
 162, 165. 171, 172, 186 
 
 i\ Grand Trunk R. Co. 58 
 
 Me. 176 _-157. 365, 618, 690 
 r. Hartford & N. H. R. Co. 
 
 29 Conn. 538 525 
 
 T. Heidenhain, 42 La. Ann. 
 
 483 - 31 
 
 1-. Hungerford, 39 Minn. 6- 
 
 ..-^ 171, 182 
 
 State r. Kan.sas C. Ft. S. & G. R. 
 
 Co.32Fed. Rep. 722.88, 231 
 
 r. Kinney, 34 Minn. 311 214 
 
 r. Maine C. R. Co. 77 Me. 
 
 538-- 678 
 
 T. Maine C. R. Co. 76 Me. 
 
 357, 49 Am. Rep. 632 - 689 
 ( . Manchester & L. R. Co. 
 
 52 N. H. 528 ---93, 618, 621 
 
 V Morea, 2 Ala. 275 -. 751 
 
 V. Newton, 2 Inters. Com. 
 
 Rep. 63, 50 N.J. L. 534 
 
 439, 444 
 
 ?• Overton, 24 N. J. L. 435- 
 
 -...235, 532, 523 
 
 v. Pittsburgh & C. R. Co. 
 
 45 Md. 41, 46.643-646, 655 
 v. Pratt, 1 Inters. Com. Rep. 
 
 399, 59 Vt. 590 443 
 
 r. Rankin, 3 S. C. 43S 670 
 
 r. Secrest, 80 N. C. 458 ... 721 
 T Thompson, 20 N. H. 250. 184 
 f. Vernon Co. Ct. 53 Mo. 
 
 128 632 
 
 V. Winona & St. P. R. Co. 
 
 19 Minn. 434 (Gil. 377), 
 
 aff'd 94 U. S. 180, 24 L. 
 
 ed. 344 438 
 
 State Freisiht 'I'hx Case, 82 U. S. 
 
 15 Wall. 232, 21 L. ed. 
 
 146 -■ 541 
 
 State of New York, The, 7 Ben. 
 
 450 560 
 
 Staub V. Kendrick, 6 L. R. A. 019, 
 
 121 Ind. 326 565 
 
 Siebbins v. Palmer, 1 Pick. 71, 78, 
 
 79.. 617 
 
 Steele v. Burkhardt, 104 Mass. 59 
 
 .- 532, 589 
 
 «. Townsend, 37 Ala. 247. . 
 
 267,268 
 
 Steeds V. Liverpool, N. Y. & P. 
 
 SS. Co. 57 N. Y. 1 .... 516 
 Steinweg v. Erie R. Co. 43 N. Y. 
 
 137 59, 60, 311, 317 
 
 Stephen v. Smith, 39 Vt. 160- -186, 212 
 Stephen Morgan, The, 94 U. S. 
 
 599, 24 L. ed. 366 675 
 
 Stephens v. Nashville, C. & St. L. 
 
 R. Co. 10 Lea, 448 - - - . 628 
 Sterling, The, 106 U, S. 647, 27 L. 
 
 ed. 98 675 
 
 Steruberger v. Cape Fear & Y. V. 
 
 R. Co. 2 Inters, ("om. 
 
 Rep. 435, 2 L. R. A. 
 
 105, 29 S. C. 510- _ 484, 486 
 Stetler v. Chicago & N. W. R. Co. 
 
 46 Wis. 502, 49 Wis. 
 609 526, 527, 549
 
 Ixx 
 
 TABLE OF CASES. 
 
 Stevens v. European & N. A. R. 
 
 Co. 66 Me. 74 690, 695 
 
 Stevenson v. Cbicaao & A. R. Co. 
 18 Fed. Rep. 494, 5 Mc- 
 
 Ciary, 634 ..416, 417 
 
 Stewart v. Boston & P. R. Corp. 
 
 146 Mass. 605 -398, 399 
 
 V. Brooklyn & C. R. Co. 90 
 N. Y. 5S8, 43 Am. Rep. 
 185.-328, 335, 338, 363, 364 
 
 r. Budd, 7 Mont. 573 631 
 
 T. Davis, 31 Ark. 518, 25 
 
 Am. Rep. 576- 532 
 
 r. International & G. N. R. 
 
 Co. 53 Tex. 289 96, 127 
 
 T. London & N. W. R. Co. 
 
 3Hinlst. & C. 135 575 
 
 r. Pennsylvania R. Co. 
 (Ind.) 14 Am. & Eng. 
 
 R. Cas. 680.--- 95 
 
 V. Ripon, 38 Wis. 584.. 746, 747 
 V. Terre Haute & I. R. Co. 
 
 103 Ind. 44.-.. 
 
 618, 622, 624, 636, 637 
 
 Stillson V. Hannil)al & St. J. R. 
 
 Co. 67 Mo. 674 731 
 
 Stillwell r. Barnett. 60 111. 210.. .. 608 
 Stira.son v. Connecticut R. R. Co. 
 
 98 Mass. 83 .. 568 
 
 ®. Milwaukee, L. S. & W. 
 
 R. Co. 75 Wis. 381... 98, 99 
 Stock r. Wood, 130 Mass. 353.... 692 
 Stockton r. Baltimore & N. Y. R. 
 Co. 1 Inters. Com. Rep. 
 
 411, 32 Fed. Rep. 9 
 
 443, 444, 478, 481, 482 
 
 f. Bishop, 45 U. S. 4 How. 
 
 1.55, 11 L. ed. 918 608 
 
 «. Frey, 4 Gill, 406, 45 Am. 
 
 Dec. Ib8 216,607, 694 
 
 Stockwcll V. Chicago, C. & D. R. 
 
 Co. 43 Iowa. 470 707 
 
 Stodder v. N. Y.. L. E. & W. R. 
 
 Co. 50 Hun, 221, affd 
 
 121 N. Y. 655, mem. . . 546 
 
 Stoeckman v. Terre Haute ct I. R. 
 
 Co. 15 Mo. App. 503 -. 
 
 650. 651 
 
 Stokes r. Eastern Co\inlicsR. Co. 2 
 
 Post. 6: F. 691 ....52, 63. 75 
 V. Sftltonstall, 38 U. S. 13 
 Pet. 181, 10 L. ed. 115 
 
 2. 24. 25.27, 80. 
 
 216, 218, 233, .337, 376, 
 414, 11 (i. 417. 428, 430, 694 
 11. SufTolk & C. R. Co. 107 
 
 X. C. 17H .97, 103 
 
 Stone c. Cliicago & N. W. R. (U>. 
 47 Iowa, 82... 161, 168 
 176, 185. 192. 193, 195, 190 
 
 Stone V. Dry Dock, E. B. & B. R. 
 
 Co. 115 N. Y. 104.. 728. 729 
 T. Farmers L. & T. Co. 116 
 
 U. S. 307. 29 L. ed. 636 
 
 434, 436, 472, 483 
 
 V. 111. Cent. R. Co, 116 U.S. 
 
 347, 29 L. ed. 650 472 
 
 V. Isew Orleans & X. E. R. 
 
 Co. 116 U. S. 352, 29 L. 
 
 ed. 651... 472 
 
 V. Wisconsin, 94 U. S. 181 
 
 24 L. ed. 102 436. 472 
 
 1). Yazoo & M. V. R. Co. 62 
 
 Miss. 607, 639.-.. 467 
 
 Stoneman v. Erie R. Co. 52 N. Y. 
 
 429 .568.577 
 
 Storm V. Green, 51 Miss. 103 608 
 
 Straiton v. N. Y. & N. H. R. Co. 
 
 2E. D. Smith, 184 .... 529 
 Strand v. Chicago & W. M. R. Co. 
 
 64 Mich. 216 393, 415 
 
 Stratton v. Staples. 59 Me. 94... 95. 385 
 Straus V. Kansas C, St. ,J. & C. B. 
 
 R. Co. 75 Mo. 185, 86 
 
 Mo. 421 143, 155, 413 
 
 Strawbridge v. Bradford, 12S Pa. 
 
 200 :.... 309 
 
 Stringer v. Missouri Pac. R. Co. 
 
 96 Mo. 299 16. 406 
 
 Strohn v. Detroit & M. R. Co. 21 
 
 Wis. 554 .. 517 
 
 Strouss v. Wabash, St. L. & P. R. 
 
 Co. 17 Fed. Rep. 209.. 
 
 23, 68, 554, 569 
 
 Stuart I'. Havens. 17 Neb. 211.708,717 
 Sturgeon v. St. Louis, K. C. & N. 
 
 R. Co. 65 Mo. 569.-272,281 
 Sturgisp. Detroit, G. H. & M. R. 
 
 Co. 72 Mich. 619 103 
 
 Sue, The, 22 Fed. Rep. 843 234 
 
 Sullivan «. Old Colony R. Co. 1 
 
 L. R. A. 513, 148 Mass. 
 
 119 161, 165, 166, 351 
 
 V. Philadelphia & R. R. Co. 
 
 30 Pa. 234, 72 Am. Dec. 
 
 698-... 48. 72, 215, 216, 695 
 V. Vicksburg, S. & P. R. (^o. 
 
 39 La. Ann. 800. ...100, 110 
 Summers v. Crescent C. R. Co. 34 
 
 La. Ann. 139 405 
 
 Summit v. Slate, 8 Lea. 413 119 
 
 Sunbolf V. Alford, 3 Mees. & W. 
 
 248.* 253.* 254 710 
 
 Sunderland v. Westcott, 4 How. 
 
 Pr. 468 277 
 
 Sunnyside, The, 91 U. S. 208, 23 
 
 L. ed. 302 675 
 
 Sutherland v. Troy & B. R. Co. 
 
 28 N. Y. S. R. 201 250 
 
 Sutton V. Bonnett, 114 Ind. 243... 76
 
 TABLE OF CASES. 
 
 Ixxi 
 
 Sutton V. Wauwatosa, 29 Wis. 21 
 
 533 540 
 Suydam v. MooVe^ 8 Barb. 358 . . .' 425 
 Swan ». Manchester & L. R. Co. 
 
 132 3Iass. 116 
 
 171, 182, 185. 1S6, 195 
 
 Sweeny v. Old Colon v &; N. R.Co. 
 
 10 Allen, 508 
 
 ...95, 96. 121, 319. 385, 410 
 Swift «>. Tyson, 41 U. S. 16 Pet. 1, 
 
 10 L. ed. 865 487 
 
 Swift Elec. L. Co. v. Grant, iiO 
 
 Mich.469_ 664 
 
 Swigart v. Hannibal & St. J. 11. 
 
 Co. 75 Mo. 475.151. 153, 155 
 Swindler v. Hilliard, 2 liich. L. 
 
 286 268 
 
 Swords «. Edgar, ,59 N. Y. 34 545 
 
 Sykes®. Lawlor, 49 Cal. 236 606 
 
 Syracuse, The, 18 Fed. Rep. 828. 675 
 
 Tabler i\ Hannibal & St. .1. R Co. 
 
 93 Mo. 79... 396 
 
 Talley v. Great Western R. Co. L. 
 
 R. 6 C. P. 44, 40 L. J. 
 
 C. P. 9 _.556, 558 
 
 Tanco v. Booth, 39 N. Y. S. R. 
 
 82 586 
 
 Tanner v. N. Y. C. & H. R. R. Co. 
 
 108 N. Y. 623 265 
 
 Tarbell i\ Northern Cent. R. Co. 
 
 24 Hun, 53 208 
 
 Taubman v. Pacific S. Nav. Co. 
 
 26 L. T. X. S. 704 264 
 
 Taylor v. Church, 8 N. Y. 460 608 
 
 r. Day, 16 Yt. .566 54 
 
 V. Delaware & H. Canal Co. 
 
 113 Pa. 162 729 
 
 «. Grand Trunk R. Co. 
 
 48 N. H. 304.... 24, 48, 
 
 49, 59. 60, 216, 218, 310. 608 
 V. Penua. Co. 78 Ky. 348, 39 
 
 Am. Rep. 244 644, 646 
 
 V. Seaboard & R. R. Co. 99 
 
 N. C. 185, 6 Am. St. 
 
 Rep. .509 -. ...513,518 
 
 T. Yonkcrs, 7 Cent. Rep. 
 
 230, 105 N.Y. 202 .... 105 
 Taylor, B. & H. R. Co. v. Taylor, 
 
 79 Tex. 104. 725 
 
 Tebbutt V. Bristol & E. R. Co. L. 
 
 R. 6Q. B. 73 122 
 
 Telfer v. Northern R. Co. 30 N. J. 
 
 L. 188 606, 657 
 
 Tennery v. Pippinger, 1 Phila. 543 690 
 
 Terre Haute & I. R. Co. «.Brunker, 
 
 128 Ind. 542 708 
 
 V. Buck, 96 Ind. 346, 355,49 
 
 Am. Rep. 168.. .27, 30, 
 
 99, 127, 151, 394, 671, 751 
 r. Clem, 7 L. R. A. 588, 123 
 
 Ind. 16 ..670,726, 727 
 
 V. Fiizgerald, 47 Ind. 79... 130 
 
 0. Graham, 95 Ind. 286 669 
 
 v. Jackson, 81 Ind. 19.. 328, 364 
 Terre Haute, A. & St. L. R. Co. «. 
 
 Vanatta. 21 HI. 188.162, 177 
 Terry v. Flushimr. N. S. <k C. R. 
 
 Co. 13Huu, 359 511 
 
 V. Jewett, 17Hun,400, aff'd 
 
 78N. Y. 345- 
 
 131, 384. 400, 690 
 
 Tetherow v. St. Joseph & D. M. 
 
 R. Co. 98 Mo. 74 722 
 
 Teutonia, The, 19 U. S. 23 Wall. 
 
 77, 23L. ed. 44 675 
 
 Texas & P. R. Co. v. Best, 66 Tex. 
 
 116 6 
 
 1). Bond, 62 Tex. 442.187,192,193 
 tj. Brown, 78 Tex. 397 
 
 97, 101, 137 
 
 V. Capps (Tex.) 16 Am. & 
 
 Eug. R. Cas. 118 581 
 
 r. Collins (Tex.) March 22, 
 
 1892 603 
 
 r. Cox, 145 U. S. 593, 36 L. 
 
 ed. 829 603 
 
 V. Florence (Tex. App.) 
 
 Dec. 12, 1889 143 
 
 V. Fort (Tex. ) 9 Am. & Eng. 
 
 R. Cas. 392 589 
 
 T. Garcia, 62 Tex. 285.. 272, 413 
 r. Hamilton, 66 Tex. 92 63, 311 
 V. Mayes (Tex.) Oct. 25, 
 
 1890 90, 125, 126 
 
 V. Miller, 11 L. R. A. 395. 
 
 79 Tex. 78.... 153,154, 396 
 
 v. Morin, 66 Tex. 225 630 
 
 V. Overall, 82 Tex. 247 378 
 
 V. Richards, 68 Tex. 375... 
 
 .---603, 644, 650 
 
 V. White (Tex. App.) Oct. 
 
 31, 1891.-.- 180, 373 
 
 Texas M. R. Co. v. Douglas, 73 
 
 Te-x. 325 756 
 
 Texas Pac. R. Co. v. Collins (Tex.) 
 
 March 22, 1892 596 
 
 «. Johnson, 76 Tex. 421 755 
 
 V. Overheiser, 76 Tex. 437. 755 
 Texas Trunk R. Co. v. Johnson, 
 
 75 Tex. 158 548 
 
 Thatcher v. Fitchburg R. Co. 1 
 
 Inters. Com. Rep. 
 
 356 503
 
 Ixxii 
 
 TABLE OF CASKS. 
 
 Thayer v. St. Louis, A. & T. H. 
 
 R. Co. 22 Incl. 26 216 
 
 Theatrical Rates, Re, 1 Inters. 
 
 Com. Rep. 18 503 
 
 Thicker t. Georgia R. «fc Bkg. Co. 
 
 81 Ga. 461 118 
 
 Thirteenth & F. St. P. R. Co. i\ 
 
 Boudrou, 92 Pa. 475-.. 409 
 Thomas v. Chicago ct G. T. R. Co. 
 
 72 Mich. 355 256, 510 
 
 V. Delaware. L. & W. R. Co. 
 
 8 Fed. Rep. 729 682 
 
 V. Geldart, 4 Pugs. & B. (N. 
 
 B.)95-. 185 
 
 V. New York & G. T. R. Co. 
 
 73 Mich. 355 248 
 
 V. Philadelphia & R. R. Co. 
 
 (Pa.) 15 L. R. A. 416.. 
 
 -. 697, 703 
 
 V. PlacervilleG. Q. Min. Co. 
 
 65Cal. 600 609 
 
 V. Rhymney R. Co. L. R. 6 
 Q. B. 266, 40 L. J. Q. 
 
 B. 89.. ..526, 527, 550 
 
 V. Winchester, 6 N. Y. 397 
 
 285, 664 
 
 Thompson v. Berry, 26 Tex. 263. 631 
 V. Central R. & Bkg. Co. 54 
 
 Ga. 509 692 
 
 T. Royal Mail S. P. Co. 5 
 
 Asp. M. C. 190, n. .... 571 
 V. Scott. 4 Dill. 508, 512 . . 599 
 V. Tiosa R. Co. 36 Barb. 79 631 
 
 V. Young, 51 Ind. 599 636 
 
 Thorogood r. Hrvan, 8 C. B. 115. 742 
 Thorp i: Concord R. Co. 61 Vt. 
 
 378..-. -. 170 
 
 Thorpe v. N. Y. C. & H. R. R. 
 
 Co. 76 N.Y. 402, 406.3, 240 
 V. Rutland & B. R. Co. 27 
 
 Vt. 140 438 
 
 Thurman v. Cherokee R. Co. 56 
 
 Ga. 376. 596 
 
 Thurston v. Union P. R. Co. 4 
 
 Dill. 321 160, 161, 165 
 
 TiernaTi v. Rinkes, 102 U. S. 123, 
 
 26 L. ed. 103. 442 
 
 Tifft V. Culver, 3 Hill, 180 608 
 
 Tilley v. Hudson River R. Co. 24 
 
 N. Y. 471 622 
 
 Tillolson V. Cheetham, 3 Johns. 56 608 
 Tirnp.soii v. Manhattan R. Co. 52 
 
 Hun, 489 95, 107 
 
 Tinncy r. New Jersey S. B. Co. 5 
 
 Lans. 507... 761 
 
 Titus r. Corkins, 21 Kan. 722 608 
 
 Tobin r. Portland, S. & P. R. Co. 
 59 Me. 183, 187, 8 Am. 
 
 Rep. 415 
 
 7, 97, lO:;, 116, 121. 122, 124 
 
 Todd V. Old Colony &F. R.R.Co. 
 
 3 Allen, 18, 7 Allen, 207 
 
 17, 278. 279, 405.410 
 
 Toledo & W. R. Co. v. Goddard. 
 
 25 Ind. 185. 664 
 
 Toledo, P. & W. R. Co. v. Conroy. 
 
 68111. 560 ..50, 59. 720 
 
 V. Rumbold. 40 111. 143.... 546 
 Toledo, St. L. & K. C. R. Co. v. 
 
 Cline, 135 111. 41. 381 
 
 Toledo, W. & W. R. Co. «. Ap- 
 
 person, 49 111. 480 
 
 ...-.- 48, 54, 74, 216 
 
 V. Baddeley, 54 111. 19 151 
 
 V. Beggs, 85 111. 80, 28 Am. 
 
 Rep. 613 
 
 15, 16,267,282,366,521,694 
 v. Brannagan, 75 Ind. 494 . 682 
 V. Brooks,' 81 111. 245-... 15. 253 
 y. Fredericks. 71 111. 294_.. 62 
 
 r. Grable, 88111. 442 731 
 
 i: Grush, 67111. 262, 16 Am. 
 
 Rep. 618... 95, 101, 108, 124 
 V. Hammond, 33 Ind. 379, 
 
 5 Am. Rep. 221 570 
 
 V. McDonough, 53 Ind. 289. 
 
 293. 208, 209 
 
 ■i: Wright, 68 Ind. 586.-188, 211 
 Tolman v. Syracuse, B. & N. Y. 
 
 R! Co. 98 N. Y. 203, 50 
 
 Am. Rep. 649 683, 692 
 
 Tomlinson v. Derby, 43 Conn. 562 656 
 Tompkins i\ Clay St. R. Co. 66 
 
 Cal. 163 743 
 
 Thomson-Houston Electric Co. 
 
 V. Simon, 10 L. R. A. 
 
 251, 29 Or. 60 2 
 
 Toomej' v. London, B. & S. C. R. 
 
 Co. 3C. B. N. S. 146.. 128 
 Topeka City R. Co. v. Higgs, 38 
 
 Kan. 375.. 29, 32. 43, 45, 53 
 Torrey v. Boston 6c A. R. Co. 147 
 
 Mass. 412... 410 
 
 Tousey v. Roberts, 114 N. Y. 312. 
 
 323, 412 
 
 Tower v. Utica & S. R. Co. 7 Hill, 
 
 47 559 
 
 Townsendv. N. Y. C. & H. R. R. 
 
 Co. 56 N. Y. 295 
 
 176, 198, 199, 201, 529 
 
 Traflford v. Adams Exp. Co. 8 Lea, 
 
 96.. 616 
 
 Train v. Boston Disinfecting Co. 
 
 144Ma.ss. 523 294 
 
 Treadwell v. Whittier, 5 L. R. A. 
 
 498, 80 Cal. 574 
 
 2, 23, 24,26, 28. 
 
 58, 59, 63, 309-311, 314, 316 
 Trent & M. Nav. Co. v. Wood, 2 
 
 Esp. 127, 4Dougl. 287-1,23
 
 TABLE OK CASKS. 
 
 Ixxiii 
 
 Trigg V. Conway, Hemp. 711 
 
 Triggs V. St. Louis. K. C. & N. R. 
 
 Co. 74 Mo. 147 
 
 Trotiinger v. East Tenn., V. & G. 
 
 R. Co. 11 Lea, 533 .... 
 Trousclair v. Pacific Coast SS. Co. 
 
 SOCal. 531 
 
 Trowbridge o. Forepaugh, 14 
 
 Minn. 133 
 
 Truro, The, 31 Fed. Rep. 158--.. 
 Tuff T. Warman, 5 C. B. N. S. 573 
 Tuley V. Cliicago, B. & q. K. Co. 
 
 41 Mo. App. 432....2G9, 
 Tuller V. Talbot. 23 111. 357 
 
 ^22, 49, 53,60, 
 
 Tully ®. Fitchburg li. Co. 134 
 
 Mass. 499 
 
 Turberville v. Stamp, 1 Comyns, 
 
 32, 2 Salk. 647.. 
 
 Turner v. Cross (Tex.) 15 L. R. A. 
 
 262 595. 
 
 v. Vicksburg, S. & P. R.Co. 
 
 37 La. Ann. 648 
 
 Turnier v. Lathers, 36 X. Y. S. 
 
 n. 821 322, 
 
 Turquandr. Strand Union, 8 Dow. 
 
 P. C. 201 
 
 Tuttle ®. Lawrence, 119 Mass. 278 
 Twomley v. Central Park. N. tt 
 
 E. R. Co. 69 N. Y. 158, 
 
 160, 25 Am. Rep. 102.. 
 
 416-420, 
 
 Twycross v. Grant, L. R. 4 C. P. 
 
 Div. 40 
 
 Tyrrell v. Eastern R. Co. Ill Mass. 
 
 546- 
 
 Ulrich V. X. Y. C. &, II. R. R. Co. 
 
 108 N. Y.8U ....7. 
 
 Underbill v. Chicajio & G. T. R. 
 
 Co. 81 Mich. 43 
 
 Unger v. 42d St. & G. St. F. R. Co. 
 
 51 N. Y. 497 
 
 Union Depot & R. Co. i: Smith, 
 
 16 Colo. 361 
 
 Union Ins. Co. v. Smith. 124 U. S. 
 
 405. 31 L. ed..497 
 
 Union Pac. R.Co. v. Botsford, 141 
 
 U. S. 250. 35 L. ed. 734 
 
 709, 711, 714. 716, 
 
 r. Dunden. 37 Kan. 1 
 
 625,638, 656, 
 
 v. Hand, 7 Kan. 380, 392... 
 
 -- 48, 49, 
 
 V. Hause, 1 Wyo. Ter. 27.. 
 i\ Nichols, 8 Kan. 505 
 
 6, 15, 16, 19, 
 
 609 Union Pac. R. Co. v. Sue, 25 Neb. 
 
 772 96, 102. 132, 141 
 
 143 Union R. & Transit Co. v. Shack- 
 let, 119 111. 232 272, 634 
 
 178 United States v. Burlington & II. 
 
 C.Ferry Co. 21 Fed. Rep. 
 
 666 331.332 300,807 
 
 V. Cleveland, C. & S. R. Co. 
 425 3 Inters. Com. Rep. 290 505 
 
 67S v. De Witt. 76 U. S. 9 Wall. 
 
 669 41, 19 L. ed. 593 441 
 
 r. Harri.s, 1 Abb. U. S. 110. 305 
 407 V. Huff. 13 Fed. liep. 632, 
 
 633 304 
 
 216 r. Juniata, 93 U. S. 337, *5 
 
 L. ed. 930 ... 757 
 
 639 v. Lancaster, 4 Wash. C. C. 
 
 66... 305 
 
 622 r. Lathrop. 17 Johns. 4 644 
 
 r. Sims, 9 Fed. Rep. 443... 304 
 603 V. The Anna. 2 Am. L. Reg. 
 
 421 563 
 
 110 V. The Louisa Barbara.Gilp. 
 
 332 300 
 
 691 T. The Neurea, 60 U. S. 19 
 
 How. 92, 15 L. ed. 531, 
 
 711 . 300, 306 
 
 539 V. The Queen. 4 Ben. 237, 11 
 
 Blatchf. 416 304 
 
 V. Wise, 7 Fed. Rep. 190, 6 
 
 Fed. Rep. 41... 307 
 
 430 U. S. lv\p. Co. V. Bachman, 2 Cin. 
 
 Sup. Ct. Rep. 251 516 
 
 015 Urton c. Hunter, 2 W. Va. 83 631 
 
 Usher v. N. J. R. Co. 4 L. R. A. 
 64 261, 126 Pa. 206.643, 653, 655 
 
 V. 
 
 Van Blarcom «. Delaware. L. & 
 240 W. R. Co. 49 N. J. L. 
 
 179 633 
 
 380 Van Brunt v. Cincinnati, J. & M. 
 
 R. Co. 78 Mich. 530 
 
 105 626. 656, 657 
 
 Van Buskirk v. Roberts, 31 N. Y. 
 
 357 661 515 
 
 Van Dresser v. Oregon R. & Nav. 
 
 721 I Co. 48 Fed. Rep. 202.. 610 
 
 I Van Horn ».Kermit, 4E. D. Smith, 
 
 453 557, 561 
 
 720 Vankirk v. Penna. R. Co. 76 Pa. 
 
 66 522-524 
 
 660 Van Ostrand v. N. Y. C. & H. R. 
 
 R. Co. 104 N. Y. 683.. 101 
 216 Van Pelt v. The Alaska, 33 Fed. 
 
 759 Rep. 107- 721 
 
 Van Santvoord v. St. John, 6 Hill, 
 282 157.. 72
 
 Ixxiv 
 
 TABLE OF CASKS. 
 
 Van Winkle v. Brooklyn C. R. Co. 
 
 46 Hun, 564 37, 98 
 
 Van Wyck «. Allen, 69 N. Y. 62. . 285 
 Varble v. Biglev, 14 Bush. 698 ..- 2 
 Yauffhan v. TafE Vale R. Co. 5 
 
 Hurlst. &N.678 76 
 
 Yawter v. Missouri Pac. R. Co. 
 
 84 Mo. 679. 644,651 
 
 Yeazie v. Moor, 55 U. S. 14 How. 
 
 568, 14 L. ed. 545 441 
 
 Vedder v. Fellows, 20 N. Y. 126.. 
 
 169, 184 
 
 Yerner v. Sweitzer, 32 Pa. 208 . - . 517 
 Yickers v. Atlanta & W. P. R. Co. 
 
 64 Ga. 306.- ---- 394 
 
 Vicksburg & J. R. Co. v. Patton, 
 
 31 Miss. 156 380 
 
 Vicksburg & M. R. Co. v. Howe, 
 
 52 Miss. 202 108 
 
 7). Phillips, 64 Miss. 693.... 639 
 Victorian R. Conirs. v. Conetas. 
 
 L. R. 13 App. Cas. 222 673 
 Yimont v. Chicago A: N. W. R. Co. 
 
 69 Iowa, 296 393 
 
 Vincent v. Stinehour, 7 Yt. 62 ... 76 
 Vinton r. Middlesex R. Co. 11 
 
 AUeo, 304 
 
 161,164,165, 168,223 
 
 Virginia r. Chesapeake & O. R. Co. 
 3 Inters. Com. Rep. 398 
 
 541, 544 
 
 Virginia & t. R. Co. v. Sayers, 26 
 
 Gratt. 328 268 
 
 Virginia C. R. Co. €. Sanger, 15 
 
 Gratt. 230, 236. 237 
 
 27, 48-50, 62, 109, 216. 316 
 Virginia Ehrman, The, 97 U. S. 
 
 309, 24 L. ed. 890 675 
 
 Virginia M. R. Co. v. Washington, 
 7 L. R. A. 344, 86 Va. 
 
 629 - 547 
 
 Voak D. Northern C, R. Co. 75 ^ . 
 
 Y. 320 416 
 
 Volant, The. 1 W. Rob. 383 292 
 
 Voltz V. Blackman, 64 N. Y. 440.. 608 
 
 W. 
 
 W. L. White, The, 25 Fed. Rep. 
 
 503 .-- 676 
 
 Wabash R, Co. v. Savage. 110 Ind. 
 
 156 175, 337, 338, 340 
 
 Wabash, St. L. & P. R. Co. v. Il- 
 linois, 1 Inters. Com. 
 Rep. 37. 118 U. S. 557, 
 
 30 L. ed. 244 
 
 434, 441, 449, 463, 472, 542 
 543 
 
 390 
 
 291 
 692 
 
 Wabash, St. L. & P. R. Co. v. 
 
 Locke, 112 Ind. 404 670 
 
 r. Peyton, 106 111. 534 
 
 526, 527, 549 
 
 V. Rector, 104 111. 296 
 
 .10, 151, 363 
 
 i\ Shacklet, 105 111. 364 
 
 ..408, 425, 546, 743 
 
 Wade V. Thayer, 40 Cal. 578 608 
 
 Wagner v. ]\lo. Pac. R. Co. 3 L. R. 
 A. 156, 97 Mo. 512 .... 
 
 5. 17, 249, 252. 407 
 
 Waite V. Northeastern R. Co. El. 
 
 &B1. 719.. 742 
 
 Wakelin r. London ikS. W. R. Co. 
 L. R. 12 App. Cas. 51. 
 
 668, 685 
 
 Wakeman «. Robinson, 1 Bing. 213 76 
 Waldron v. Chicago &, N. W. R. Co. 
 
 1 Dak. 336. 577 
 
 Walker v. Erie R. Co. 63 Barb. 260 
 
 ...696, 753 
 
 V. Vicksburg, S. & P. R. Co. 
 7 L. R. A. Ill, 41 La. 
 
 Ann. 795 
 
 V. Western Transp. Co. 70 
 U. S. 3 Wall. 150. 18 L. 
 
 ed. 172 
 
 r. Westtield, 39 Yt. 246.... 
 Wall I-. Delaware, L. & W. R. Co. 
 
 54 Hun, 454 686 
 
 V. Livezay, 6 Colo. 465.690, 694 
 Wallace ®. Vacuum Oil Co. 35 N. 
 
 Y. S. R. 697 755 
 
 V. Western N. C. R. Co. 98 
 
 N. C. 494... 251 
 
 V. Wilmington & N. R. Co. 
 (Del.) Dec. 13, 1889... 
 
 59,101, 
 
 128. 129. 133, 381, 386, 604 
 Wallamet I. 'B. Co. v. Hatch, 9 
 
 Sawy. 648 303 
 
 Walling V. Michigan, 116 U. S. 
 
 446, 29 L. ed. 691.. 444, 542 
 Wallingford v. Columbia & G. R. 
 
 Co. 26 S. C. 258 262 
 
 Walpole V. Bridges. 5 Blackf. 222 23 
 Walsh '0. Chicago, M. & St. P. K. 
 
 Co. 42 Wis. 23.... 513, 607 
 r Sayre. 52 How. Pr. 334 . 714 
 V. The H. M. Wright,Newb. 
 
 Adm. 496 560, 563 
 
 Walter v. Chicago, D. &M. R. Co. 
 
 39 Iowa, 33 417 
 
 Walters «. Chicago, R. I. & P. R. 
 Co. 36 Iowa, 458, 41 
 
 Iowa, 71. 659, 733 
 
 Wanderer, The, 20 Fed. Rep. 140 
 
 675, 676
 
 TABLE OF CASES. 
 
 Ward V. N. Y. C. & H. R. R. Co. 
 
 56 Hun, 208, 30 N. Y. 
 
 S. R. 004 188, 195, 19G 
 
 Warden v. Greer, 6 Wutts, 434 ... 297 
 Wardle v. New Orleans City K.Co. 
 
 35 La. Ann. 204 221 
 
 Wardwell v. Chicago, M. & St. P. 
 
 R. Co. 13 L. R. A. 596, 
 
 46 Minn. 514 174, 196 
 
 Ware v. Gay. 11 Pick. 106, 112... 
 
 22, 690,691, 694 
 
 Warkworth, The, 9Prob.Div. 145, 
 
 51 L. T. 558 292 
 
 Warner v. Burlington & M. R. Co. 
 
 22 Iowa, 166 560 
 
 Warren v. Fitchburg R. Co. 8 Al- 
 len, 232.10, 60, 96, 129, 377 
 v. Furstenheim, 1 L. R. A. 
 
 40, 35 Fed. Rep. 691 . 
 
 609, 611 
 
 Washburn v. Nashville & C. R. 
 
 Co. 3 Head, 638 
 
 80 252 279 
 Washington' The' "76"u. 'S." 9 Wall.' 
 
 513. 19 L. ed. 787.. 674, 075 
 T. Raleigh & G. R. Co. 1 L. 
 
 R. A. 830, 101 N. C. 
 
 239 526 
 
 Washington, A. & G. R. Co. v. 
 
 Brown, 84 U. S. 17 
 
 Wall. 450, 21 L. ed. 677 
 
 544, 546, 610 
 
 WatertowB v. Mayo, 109 Mass. 315 438 
 Watkins v. Great Western R. Co. 
 
 37 L. T. N. S. 193, 195 6 
 V. Rymill, L. R. 10 Q. B. 
 
 Div. 178 243 
 
 Watson V. Georgia P. R. Co. 81 
 
 Ga. 476 394 
 
 V. Oxanna Land Co. 92 Ala. 
 
 320 102, 384 
 
 v. St. Paul City R. Co. 42 
 
 Minn. 46 30 
 
 Weaver v. Rome, W. & O. R. Co. 
 
 3 Thomp. &C. 270.162, 203 
 AVebb V. East Tenn., V. & G. R. 
 
 Co. 88 Tenn. 119 640 
 
 Webber v. Virginia, 103 U. S. 344, 
 
 20 L. ed. 565 440 
 
 Webster Telephone Case, 17 Neb. 
 
 126 466 
 
 Weed V. Panama R. Co. 17 N. Y. 
 
 362 344, 336, 358 
 
 V. Saratoga & S. R. Co. 19 
 
 Wend. 534 570, 583 
 
 Weeks v. N. Y., N. H. & H. R. 
 
 Co. 9 Hun, 669. 72 N. 
 
 Y. 56 ..-.219, 361. 556, 559 
 Weil V. Dry Dock, E. B. & B. R. 
 
 Co. 119 N. Y. 147 734 
 
 Weiler v. Manhattan R. Co. 53 
 
 Hun, 372 153 
 
 Weiss «. Penn. R. Co. 79 Pa. 390 680 
 Welch V. Pullman P. C. Co. 16 
 
 Abb. Pr. N. S. 352, 1 
 
 Sheld. 457 242, 243 
 
 V. Wesson, 6 Gray, 505 532 
 
 Welfare v. London, B. & S. C. R. 
 
 Co. L. R. 4 Q. B. 693. 
 
 ...98. 99, 124, 699 
 
 Weiler v. London, B. & S. W. R. 
 
 Co. L. R. 9 C. P. 126, 
 
 43 L. .T. C. P. 137 140 
 
 Wells V. Alabama G. S. R. Co. 67 
 
 Miss. 24 144, 145 
 
 V. N. Y. C. R. Co. 24 N. Y. 
 
 181, 26 Barb. 641 
 
 ...269, 277, 517,519 
 
 V. Steam Nav. Co. 2 N. Y. 
 
 204. 3 
 
 Welsh V. Pittsburg. Ft. W. & C. 
 
 R. Co. 10 Ohio St. 75.. 
 
 267, 268 
 
 «. The North Cambria, 40 
 
 Fed. Rep. 055.... 611 
 
 V. The North Cambria, 39 
 
 Fed. Rep. 615 618 
 
 Welton V. Missouri. 91 U. S. 275, 
 
 278, 33 L. ed. 347, 349. 
 
 ..439,447, 448, 450 
 
 Wendell y. Baxter, 12 Gray, 494.. 
 
 103, 107 
 
 Wentz V. Erie R. Co. 3 Hun, 241, 
 
 5 Thomp. & C. 556...- 
 
 185,509, 521, 522 
 
 Werle v. Lono Island R. Co. 98 N. 
 
 Y. 650 376, 409 
 
 Wesley City Coal Co. v. Healer, 84 
 
 ill. 126, 129... 416, 417, 420 
 Westbrook v. Mobile & O. R. Co. 
 
 66 Miss. .560, 39 Am. & 
 
 Eng. R. Cas. 374... 728, 734 
 West Chester & P. }\. Co. v. Miles, 
 
 55 Pa. 209 158 
 
 Western & A. R. Co. v. Bishop, 50 
 
 Ga. 465 272, 273 
 
 V. Meigs. 74 Ga. 857 657 
 
 •v. Strong, 52 Ga. 461... 650, 651 
 V. Turner, 72 Ga. 292, 53 
 
 Am. Rep. 842 341 
 
 «. Young. 8lGa. 397, 83 Ga. 
 
 512 730 
 
 Western Md. R.Co. tJ.Herold (Md.) 
 
 14 L. R. A. 75. 377 
 
 «. Stanley, 61 Md. 266 415 
 
 Western R. Co. of Ala. v. Sistrunk, 
 
 85 Ala. 352 643 
 
 Western U. Teleg.Co. v. Ala. State 
 
 Board of Assessment, 
 
 132U.S.472,33L.ed.409 543
 
 Ixxvi 
 
 TABL?: OF CASES. 
 
 Western U. Telg. Co. v. Harding, 
 
 103 Ind. 505 178 
 
 V. Pendleton, 1 Inters. Com. 
 Rep. 306, 112 U. S. 547, 
 
 30 L. ed. 1187 441 
 
 t. Texas, 105 U. S. 460, 26 
 
 L. ed. 1067... 480 
 
 Weston V. N. Y. Elev. R. Co. 73 
 
 N. Y. 595. .-106. 107 
 
 Wettor f. Dunk, 4 Fost. & F. 298 385 
 Whatley ®. Morrell, 1 Slrobh. L. 
 
 548... 670 
 
 Wheaton v. North Beach & M. R. 
 
 Co. 36Ca].590 48, 216 
 
 «. Peters, 33 U. S. 8 Pet. 
 
 591, 8 L. ed. 1055 487 
 
 Wheeler v. McGuire, 2 L. R. A. 
 
 808, 86 Ala. 398 576 
 
 ». Oceanic Steam Nav. Co. 
 
 53 Hun, 75 569 
 
 Wheeling, P. & C. Transp. Co. v. 
 Wheeling 99 U. S. 373, 
 
 25 L. ed.412 441 
 
 Wheelock v. Bo.ston & A. R. Co. 
 
 105 Mass. 203 321, 416 
 
 Wheelwright t. Boston & A. R. 
 
 Co. 135 Mass. 225 399 
 
 Whelan «. N. Y., L. E. & W. R. 
 Co. 38 Fed. Rep. 15... 
 
 37, 424,743, 751 
 
 Whirley^. Whiteman, 1 Head, 620 733 
 White t\ Bo.ston & A. R. Co. 144 
 
 Mass. 404 28, 699 
 
 B.Boulton, 1 Peake, 81 
 
 ....27, 32, 414 
 
 t>. Fisher. 77 Ind. 65 397 
 
 •c. Fitch burg R. Co. 136 Mass. 
 
 324 141, 549 
 
 V. Milwaukee City R. Co. 61 
 Wis. 536, 50 Am. Rep. 
 
 154 708. 716 
 
 ». The Mary Ann, 6 Cal. 472 3 
 V. 23d Street R. Co. 20 N. Y. 
 
 Week. Dig. 510.... 352, 362 
 0. Winnisimmel Co. 7 Cush. 
 
 155_ 2 
 
 Whitehead «. St. Louis, I. M. & S. 
 R. Co. 6L.'R. A. 409, 
 
 99 :\Io. 263 253 
 
 Whiteside v. Thurikill, 12 Smedes 
 
 & .M. 599 268 
 
 White Water Valley W. (Jo. c But 
 
 ler. 112 ind. 598... 143, 260 
 Wliitford ». I'anarnH R. Co. 23 N. 
 
 Y.46r) r,(l|, <!23-n47, (mS, 655 
 Wliilmore r. I'lie Caroline, 20i\Io. 
 
 513 562 
 
 WliiUH'v «. Chicago & N. W. R. 
 
 Co. 27 Wis. .S27 580 
 
 Whitney r. Pullman P. C. Co. 143 
 
 Mass. 243 242. 555 
 
 Whiten V. Chicago & N. W. R. 
 
 Co. 21 Wis. 305 635 
 
 Whittaker v. Manchester & S. R. 
 
 Co. L. R. 5C. P. 464.- 141 
 Whitwam «. Wisconsin tt M. R. 
 
 Co. 58 Wis. 408.. 62 
 
 Wiggins Ferry Co. «. East St. 
 Loui.s, 107 U. S. 365, 27 
 
 L. ed. 419 .--. 441 
 
 Wightman f. Chicago & N. W.R. 
 Co. 2 L. R. A. 185, 73 
 
 Wis. 169 519 
 
 Wilbur X). Gilmore, 21 Pick. 250.. 
 
 616, 617 
 
 Wilby «. Midland R. Co. 35 L. T. 
 
 N. S.244 103 
 
 Wilcox V. Rome, W. & O. R. Co. 
 39 N. Y. 358, 100 Am. 
 
 Dec. 440 689 
 
 Wilkerson 'c. Corriixan Consol. St. 
 
 R. Co. 29 xMo. App. 144 695 
 X. Ralirer, 140 U. S. 545, 35 
 
 L. ed. 572 445,449 
 
 Wilkie t. Bolster, 3 E. D. Smith, 
 
 327 698 
 
 Wilkinson o. Fairrie, L. H. 32 L. J. 
 
 Exch.Div. 73. 385 
 
 William Cox, The, 3 Fed. Rep. 645 675 
 William 3Iurtaugh, The, 17 Fed. 
 
 Rep. 260 675 
 
 Williams v. Great Western R. Co. 
 
 28Eng. L. &Eq.439- 573 
 «. New York & H. R. Co. 6 
 
 Duer, 434 399 
 
 x. Pullman P. C. Co. 40 La. 
 
 Ann. 87 7, 237, 240. 242 
 
 v. South & North Ala. R. 
 
 Co. 91 Ala. 635.. 733 
 
 7). Taylor, 4 Port. (Ala.) 334 382 
 V. Texas & P. R. Co. 60 Tex. 
 
 205. 656 
 
 V). The William Cox, 9 Feu. 
 
 Rep. 672 675 
 
 T. Vanderbilt. 28 N. Y. 217. 530 
 Williamson v. Chicago, R. I. & P. 
 
 R. Co. 53 Iowa, 126... 90 
 Willis V. Grand Trunk R. Co. 62 
 
 Me. 488.. 262. 268 
 
 v. Long Island R. Co. 32 
 Barb. 398, 34 N. Y. 670 
 
 160. 234, 399, 400, 411 
 
 T. Mo. Pac. R. Co. 61 Tex. 
 
 433 602,643, 646, 650 
 
 Willmot V. Corrigan Consol. St. R. 
 
 Co. 106 Mo. 535 40 
 
 Wills V. Lynn & B. R. Co. 129 
 
 Mass. 351 ....375, 376, 4
 
 TABLK OF CASES. 
 
 Ixxvii 
 
 Willy t). Miilledy, 78 N. Y. 310... 325 
 Wilsey v. Louisville & N. 11. Co. 
 
 m Ky. 511 172 
 
 Wilson V. Baliimore & O. R. Co. 
 
 33 Mo. App. fi82 557 
 
 V. Black Bird Creek ]\Iiirsh 
 
 Co. 27 U. S. 2 Pet. 245, 
 
 7L. ed. 412 4?>0 
 
 1). Brett, 11 Mees. & W. 115 278 
 V. Bumstead, 13 Neb. 1 
 
 635, 688, G40 
 
 V. Chesapeake & O. R. Co. 
 
 21 Gratt. 654 515, 
 
 516. 523, 583. 584, 588, 745 
 V. Grand Trunk R. Co. 56 
 
 Me. 60,96 Am. Dec. 435 
 
 551, 570 
 
 V. Grand Trunk R. Co. 57 
 
 Me. 138 560, 5S4 
 
 V. Hamilton, 4 Ohio St. 722 267 
 V. New Orleans & N. E. R. 
 
 Co. 68 Miss. 9 143 
 
 V. Northern Pac. R.' Co. 26 
 
 Minn. 278, 37 Am. Rep. 
 
 410 ...409, 
 
 415-418.431 694 
 
 Wilton V. ]\Iidd!esex R. Co. 107 
 
 Mass. 108, 125 Mass. 130 
 
 ..7, 9, 
 
 17, 18, 252, 255, 278, 279, 728 
 Winbonrn's Case, 30 Fed. Rep. 167 696 
 Winnegar «. Central Pass. R. Co. 
 
 85 Ky. 547 .344, 355, 360, 638 
 Winnt V. International & G. N. R. 
 
 Co. 5 L. R. A. 172, 74 
 
 Tex. 32 607. 629, 641 
 
 Winona & St. P. R. Co. v. Blake, 
 
 94 U. B. 180, 24 L. ed. 
 
 99 ..434, 436, 472 
 
 Winsford Local Board v. Cheshire 
 
 Lines Committee, L. R. 
 
 24 Q. B. Div. 456 231 
 
 Winship v. Eiitield, 42 N. H. 197. 49 
 Winter v. Kansas City C. R. Co. 6 
 
 L. R. A. 536. 99 Mo. 509 733 
 Wisconsin v. Pelican Ins. Co. of 
 
 New Orleans, 127 U. S. 
 
 265, 32 L, ed. 239 602 
 
 Wisconsin, The, v. Young, 3 G. 
 
 Greene, 268. 517 
 
 Wise V. Covington &, C. St. R. Co. 
 
 13 Ky. L. Rep. 110 363 
 
 Withers v. North Kent R. Co. 27 
 
 L. J. E.\ch.417,3Hur]st. 
 
 & N. 969 59, 69, 663 
 
 Witters v. Foster, 23 Biatchf. 457, 
 
 26 Fed. Rep. 737 ..609, 611 
 Wiwirowski v. Lake Shore & M. 
 
 S. R. Co. 124 N. Y. 420 688 
 
 G 
 
 Wolff V. Central R. Co. 68 Ga. 653 590 
 Womack v. Central R. & Bkg. Co. 
 
 80 Ga. 132 639 
 
 Woodard v. i^lichigan S. & N. L 
 
 R. Co. 10 Ohio St. 121. 
 
 • : 603. 643, 610, 655 
 
 V. West Side St. R. Co. 71 
 
 Wis. 625. 42 
 
 Woodbury v. D. C. 5 Mackey, 127 754 
 
 Woodlife's Case, Moore, 462 72 
 
 Woodruff S. & P. C. Co. v. Diehl, 
 
 84Ind.474 242 
 
 Woodward v. Chicago & N. \V. R. 
 
 Co. 23 Wis. 400 690 
 
 Woolery v. Louisville, N. A. & C. 
 
 R. Co. 107 Ind. 381 
 
 6, 250, 260, 415, 430 
 
 Wooley V. Scovell, 3 Man. & R. 
 
 105. 416 
 
 Worcester Ex. Car Co. v. Penna. 
 
 R. Co. 2 Inters. Com. 
 
 Rep. 792. 232 
 
 Worden v. Huraeston & S. R. Co. 
 
 72 Iowa, 201 -- 624, 637 
 
 Wordsworth v. Willan, 5 E-p. 273 27 
 Worley v. Cincinnati, H. & D. R. 
 
 Co. 1 Handy, 4al 618 
 
 Wormsdorf v. Detroit City R. Co. 
 
 75 Mich. 472 33 
 
 Worth V. Wilson, Wright (Ohio) 
 
 162 631 
 
 Wright V. Caldwell, 3 Mich. 51... 592 
 V. California Cent. R. Co. 78 
 
 Cal. 360-.175, 212, 233, 377 
 " 'V. Chicago &.N. W. R. Co. 
 
 27 ill. App. 200 6C9 
 
 V. Great Northern R. Co. 8 
 
 Ir. L. Rep. 257... 416 
 
 V. Maiden & M. R. Co. 4 
 
 Allen, 289 656 
 
 V. Midland R. Co. 42 L. J. 
 
 Exch. 89, L. R. 8 Exch. 
 
 137 550 
 
 v. Wilcox, 19 Wend. 343... 
 
 334. 365, 425 
 
 Wj^att V. Citizen's R. Co. 55 Mo. 
 
 4«5 41, 42 
 
 V. Williams, 43 N. H. 102.. 618 
 Wyckoff V. Queens Co. F. Co. 52 
 
 N. Y^ 32 2 
 
 Wyld V. Pifkford, 8 Mees. & W. 
 
 460 278 
 
 Wyman v. Leavitt, 71 Me. 227 673 
 
 Wymore v. Mahaska Co. 6 L. R. A. 
 
 545, 78 Iowa, 396.-733 734 
 Wynn v. Central Park, N. & E. R. 
 
 R. Co. 38N.Y'. S.R. 181, 
 
 30, 32, 690, 695
 
 Ixwiii 
 
 TABLE OF CASES. 
 
 Yeomans r. Contra Costa Steam 
 
 Xav. Co. 44 Cal. 71.8,9, C98 
 Yerkes -v. Keokuk IS. L. Packet 
 
 Co. 7 Mo. A pp. 265 694 
 
 Yonge V. Kinney, 28 Ga. Ill — 63, (j'Jj 
 Yoik Mfg. Co. V. III. Cent. K Co. 
 
 70 U. S. 3 Wall. 1U7, 18 
 
 ].. ed. 170 280 
 
 York. N. C. & B. It. Co. «. Cr[»p, 
 
 14 C. 15. 537 204 
 
 YoiUlown Turn|>. Co. v. Leou- 
 
 1. unit, 66 .M<1. 70 69G 
 
 Yorioii V. Milwaukee. L. S. & VV. 
 
 K. Co. 54 Wis. 2:!4. 2:)'.) 
 
 ,_i»iy. lusj, 201 
 
 Y.ui'g r Hiansfonl. 12 Lea. 2ii2 _ '-99 
 ^V. Fcwbon, 8 Car. A: T. 55.- 284 
 
 Young P.Kansas City, St. J. &C.B. 
 
 K. Co. 'Sh Mo. App. 509 48^. 
 V. Merlens, 27 Md. 114 .... 608 
 V. Penna. R. Co. 115 Pa. 112 
 
 178, 5?9 
 
 Young's Estate, Be, 3 Md. Cb.461 631 
 
 Z^ihriskie r. Smith, 13 N. Y. 322.. 
 Zemp V. Wilmington & M. R. i'n. 9 
 
 Rich.L. 84, 64Am.Dec. 
 
 763 _.411, 
 
 Zimmer v. N. Y. C. & H. R. R. 
 
 Co. 42N. Y. S R.63. . 
 Zoehi=ch r. Tarbeli, 10 Allen. 385 
 Zunz V. Siinliieastern R. Co. L. R. 
 
 4Q. B. 359 
 
 63:] 
 
 69:) 
 
 265 
 
 385 
 
 574
 
 NEGLIGEIsrCE. 
 
 IMPOSED DUTIES, CARRIERS. 
 
 CHAPTER I. 
 
 RELATION OF CARRIER AND PASSENGERS, HOW CREATED. 
 
 '5 '^ 
 
 "§ 1. Who are Public Carriers of Passengers. 
 Who are Passejigers. 
 
 a. Term not Restricted to Those Contracting. 
 
 b. Includes Everyone, not an Employe, in the Carrier'' s Charge. 
 
 c. Mail Agent is a Passenger. 
 
 d. An Express Messenger is Entitled to Protection. 
 
 e. Circumstances Constituting and Susjjoiding Belation of 
 
 Passenger. 
 
 1. What Contract Contemplated. 
 
 2. Entering a Car by Permission or as Intruder, 
 i. When Children are Passengers. 
 
 §3. Duty of Passenger Carrier not Necessarily in Contract, but 
 Collateral. 
 
 § 1. Who are Public Carriers of Passengers. 
 
 One who for hire;' undertakes the transportation of persons 
 from place to place, as a business,'' as distinguished from an oc- 
 casional act, or employment, is a public carrier of passengers.' A 
 
 ^Fay V. The New World, 1 Cal. 348; Citizens Bank v. Nantucket S. B. Co. 
 3 Story, 16; Knox v. Rives, 14 Ala: 249. 
 
 *Trent & M. Nav. Co. v. Wood, 3 Esp. 127. 
 
 ^Rohinsonv. Dunmore, 2 Bos. & P. 416; Davis v. Button, 78 Cal. 247; Citizens 
 St. R. Co. V. Twiname,\{) West. Rep. 824, HI Ind. 587; Bennett v. Pen- 
 insula & 0. 8. B. Co. 6 C. B. 775; Anderson v. Scholey, 14 West. Rep. 
 517, 114 Ind. 553; Blancliard v. Isaacs, 3 Barb. 388.
 
 2 RELATION OF CARRIER AND PASSENGERS, HOW CREATED. 
 
 common carrier may be a carrier of either passengers or freight^ 
 or both.* 
 
 The relation between the owner and manager of an elevator 
 for passengers, and those carried in it, is similar to that between 
 an ordinary public carrier of passengers and those carried by him;" 
 and he is to be treated as a public carrier of passengers and the 
 same responsibilities rest on him as to diligence and care, as to the 
 carriers of passengers by stage coach or railway.' 
 
 A railroad company in the general business of switching cars 
 for all railroads which will furnish it business is a public carrier/ 
 But a construction train, on which a person is permitted by the 
 contractor to ride on paying fare, is a private conveyance, not 
 rendering the contractor liable as a public carrier of passengers.^ 
 But providing a hand-car may render a corporation liable as a 
 carrier.® 
 
 One is a public carrier who is engaged in the business of trans- 
 porting passengers for hire in a stage coach,' on a railroad,* on a 
 street car,* on a steamship," or on a ferry boat." A steamer en- 
 gaged in tug service is not,'^ but under circumstances it may 
 
 ^Tompson- Houston Electric Co. v. Simon, 10 L. R. A. 251, 20 Or. GO. 
 
 ^Goodscll V. Taylor, 4 L. R. A. 673, 41 Minn. 207. 
 
 ^Treadwell v. Whittier, 5 L. R. A. 498, 80 Cal. 574. 
 
 *Peoria & P. U. R. Co. v. United States Rolling Stock Go. 28 111. App. 79. 
 
 ^Shoemaker v. Eingshury. 79 U. S. 12 Wall. 369, 20 L. ed. 532; Nashville & 
 
 C. R. Co. V. Messino, 1 Sneed, 220. 
 international & G. N. R. Co. v. Prince, 111 Tex. 569. 
 "^Bennett v. Button, 10 N. H. 481; Fairchild v. California Stage Co. 13 Cal. 
 
 59i); Farish v. Reigle, 11 Gratt. 711; Stokes v. SiUomtall, 38 U. S. 13 Pet. 
 
 181, 10 L. ed. 115; Boyce v. California Stage Co. 25 Cal. 468; Lawrence 
 
 V. Oreen, 70 Cal. 417. 
 •Butis V. Button, 78 Cal. 247; Dlabola v. Manhattan R. Co. 29 N. Y. S. R. 
 
 149: Ooiatt v. Dakota Cent. R. Co. 43 Mim. 300; Kellow v. Central Iowa 
 
 R. Co. 68 Iowa, 470. 
 •*Citiz<m St. R. Co. v. Twiname, 10 West. Rep. 824, 111 Ind. 587; Galveston 
 
 City R. Co. V. Uewilt, 67 Tex. 473. 
 ^^Dodge v. Bo.^ton & B. S. S. Co. 2 L. R. A. 83, 148 Mass. 207; Keokuk N. 
 
 L. Packet Co. v. True, 88 111. 608; Uall v. Connecticut River S. B. Co. 13 
 
 Conn. 320. 
 ^^ Dudley v. Camden & P. Ferry. Co. 42 N. .T. L. 25; Wyckoff v. Qveena 
 
 County Ferry Co. 52 N. Y. 32; Clark v. Union Ferry Co. 35 N. Y. 485; 
 
 White V. Winnisimmet Co. 7 Cush. 155. 
 >«CwA; V. Houston Direct Nnv. Co. 76 Tex. 353; Caton v. Rumncy, 13 Wend. 
 
 387; ILiys v. MuUar, 77 Pa. 23S; Varbte v. Biglev, 14 IJiisli. 69S; Ale.c- 
 
 under v. Greene, 3 Hill. 9; East India Co. v. Pullen, 1 Stranire. 690; 
 
 Briad v. Dale, 8 Car. & P. 207; Wells v. Steam JSfav. Co. 2 N. Y. 201.
 
 WHO AKE I'UBLIC CAKUIKliS OF PASSENGERS. 6 
 
 become so.' A vessel chartered to transport a single cargo is not 
 a public carrier.^ But a telej^hone message requesting a tug 
 owner to send his tug and remove a quantity of hay it" acted on 
 constitutes such owner a common carrier, and does not authorize 
 him to bind the sender of the messasre by enfjairine: another tus:- 
 and scow, so as to render tlie sender liable as bailee to its owner 
 for the use of and injuries to the scow while it was employed in 
 removing the hay/ 
 
 The liability of a sleeping ear company is not that of a common 
 carrier,^ but it is liable for ordinary negligence, or for an assault 
 by its employes or a passenger." But a railroad using slcejiing 
 cars is liable for an injury to a passenger from defects in such 
 cars as though it owned them." 
 
 A carrier may constitute itself a public carrier by advertising 
 or by general acce^^tance of employment.' Where a company 
 owns a railroad in op»eration, bearing the name of the company, 
 and wliich presumably the company constructed, the presumption 
 is that the company operates it, and in order to release itself from 
 liability from injuries to passengers, caused by the negligence of 
 the employes operating the same, the burden of jjroof is upon it 
 to show that it does not operate the road nor assume the duties 
 of a public carrier.^ A properly equipped train of cars, standing 
 upon a railway track, under circumstances inducing the belief 
 that it is prepared to receive passengers and proceed upon its 
 journey, presents an invitation to all prepared to accept the terms 
 for transportation, which they are not guilty of negligence in act- 
 ing upon.* 
 
 ^Bussey v. Mimssippi Valley Transp. Co. 24 La. Ann. 165; Cl<ypp v. Stran- 
 ton, 20 La. Ann. 465; I)avi>i v. Ilouren, 6 Kob. (La.) 255. See White v. 
 The Mary Ann, 6 Cal. 472; Liver Alkali Go. v. Johnson, L. R. 9 Exch. 338. 
 
 ^The Dan, 40 Fed. Rep. 691. 
 
 'Bleeker v. Saisop R. Co. (Wash.) Nov. 10, 1891. 
 
 ^Campbell v. Pullman Palace Car Co. 42 Fed. Rep. 484; Scaling v. Pull- 
 man Palace Car Co. 24 J\io. A pp. 20. 
 
 ^Campbell v. Pullman Palace Car Co. 42 Fed. Rep. 484. 
 
 ^Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; BicineUe v, Kew 
 York Cent. & H. R. R. Co. 8 L. R. A. 224, 120 N. Y. 117; Thorpe v. New 
 York Cent. & H. R. R. Co. 76 N. Y. 406. 
 
 ''Citizens St. R. Co. v. Twiname, 10 West. Rep. 824, 111 Ind. 587; David v. 
 Button, 78 Cal. 247. 
 
 ^Ferguson v. Wisconsin Cent. R. Co. 63 Wis. 145. 
 
 Wave V. FlacJc, 90 Ind. 205.
 
 4 KELATION OF CAEEIER AND PASSENGEKS, HOW CKEATKD. 
 
 § 2. Who are Passengers. 
 a. Teron not Restricted to those Contracting. 
 
 The right which a passenger has to be carried safely does not 
 ilecessarily arise out of a contract, but the duty of safe conduct is 
 thrown upon the carrier by the fact of his being a passenger. If 
 there has been fraud on the part of the person injured, thus nulK- 
 fying any claim to protection, or if he has been taken in the train 
 without the authority of the railroad company, being a mere 
 trespasser, no such duty would arise.' 
 
 It is said, however, by the courts of Pennsylvania, that a passen- 
 ger, in the legal sense, is one who travels in some public convey- 
 ance by virtue of a contract, express or implied, with the carrier, 
 such as payment of fare, or that which is accepted as an equiva- 
 lent therefor;^ that since the existence of the relation of carrier 
 and passenger is dependent upon the making of a contract of car- 
 riage, railways are not liable to persons who have not been 
 accepted as passengers; and the intention of the person to pay 
 his fare, and his good faith, are immaterial where there has been 
 no contract expressed or implied, on the part of the railway.* 
 
 But as the duty rests upon the public carrier, to accept all per- 
 sons as passengers who in good faith offer to pay the usual fare, 
 and to transport them upon reasonable and equal terms,* and as 
 the carrier is liable for refusal, without legal excuse to transport 
 a person who has paid his fare,' it does not seem in consonance 
 with legal principle that the carrier should be permitted to deny 
 the relation which the law casts upon him, pleading his unlawful 
 act in refusing to accept the person, to support the denial. It 
 does not accord with equitable principles that the guilty party 
 
 marnMll V. TorJc, N. d B. B. Co. 21 L. J. N. S. C. P. 34, 11 C. B. 655; 
 
 Aantin v. Great Western R. Co. L. K. 2 Q. B. 442, 3G L. J. Q, B. N. S. 
 
 201. 
 *Brkker v. PhiladelpMa & R. R. Co. 132 Pa. 1; Pennsylvania R. Co. v. Price, 
 
 SJ6 Pa. 250. 
 'Bric/cer v. PhiladelpJiia & R. R. Co. 132 Pa. 1. 
 *Piddinr/ton v. Sout/icastern R. Co. 5 C. B. N. S. Ill; Parker v. Oreat 
 
 Western R. Co. 12 j\Iann. & G. 253; Baxciidale v. Emtern C'»inties R Go. 
 
 4 C. B. N. B. 163; /'eanon v. JDuane, 71 U. S. 4 Wall. 605, 18 L. ed. 447. 
 '^Bcekm'in v. Haratoqa & 3. R. Co. 3 Paigo, 45, 3 L. ed. 50; Bretherton v. 
 
 Wood, 3 Brod. ix, B. 04.
 
 WHO ARE PASSENGERS. O 
 
 should select tlie rule under which damages are to be awarded 
 for his misconduct. 
 
 b. Includes Everyone, not an Emjyloye, in Carreer'' s Charge. 
 
 Persons permitted to travel on board the cars as of right, and 
 not as employes, are under the direction and control of the con- 
 ductor, and it is his duty to exercise the greatest care and pre- 
 caution in providing for their safety.* 
 
 The purchase of a ticket before entering a railroad train is not 
 necessary to constitute a person a passenger.' 
 
 One who goes into the station within a reasonable time prior to 
 the hour of departure of the train, with the bona fide intention of 
 becoming a passenger is entitled to the care and the rights of a 
 passenger, at least so far as the safety of his person from defects 
 in the station, platforms, etc., is concerned.^ 
 
 The presumption which arises that a person on a train used for 
 carrying passengers is, in the absence of countervailing circum- 
 stances, a passenger and rightfully there, may be rebutted; and it 
 does not apply to one seen to go on the platform of a mail car, or 
 of some other car not run for the accommodation or use of pas- 
 sengers.* 
 
 A person waiting at a railroad station for passage upon a train 
 soon to depart, who is invited by the ticket agent to sit in an 
 empty car standing on the side track while the station room is 
 being cleaned, is a passenger in the care of the company.* But 
 until a person is upon the carrier's premises, or otherwise directly 
 under his control, with the bona, fide intention of becoming a 
 passenger, he is not entitled to the rights of such.* And every 
 person upon a railroad in the care of the carrier is a passenger, 
 although no fare has been paid.'' 
 
 ^BeUman v. JSTew York Gent, cfe ZT. R R Co. 43 Hun, 135. 
 Norfolk & W. B. Co. V. Oroseclose (Va.) 15 Va. L. J. 645. 
 'Oordo7i V. Gra7id St. & N. R. Co. 40 Barb. 546; 2 Wood, Railway Law, 
 
 10:37-1045; Buffett v. Troij <& D. R Co. 40 N. Y. 168; Harris v. Sleeena, 
 
 31 Vt. 79. 
 *People V. Douglass, 87 Cal. 281. 
 
 ^Shannoji v. Boston & A. R. Co. 1 New Eng. Rep. 681, 78 Me. 52. 
 ^Allender v, Chicago, R. I. c6 P. R. Co. 37 Iowa, 264. 
 "iWrir/ner v. Misf<ouri Pac. R. Co. 8 L, R. A. 156, 97 Mo. 512; Marshall v. 
 
 York, JS. & B. R. Co. 21 L. J. C. P. N. S. 34; 11 C. B. 655; Great Is^orth- 
 
 em R Co. v. Harrison, 23 L. J. N. S. — Exch. 308, lOExch. 376; Great 
 
 Western R. Co. v. Braid, 1 Moore. P. C. N. S. 101.
 
 KELATION OF CAKlilEK AND PASSENaEES, HOW CREATED. 
 
 But a man walking towards a railroad station with the intent of 
 buying a ticket and taking a train is not a passenger before he 
 reaches the station.* 
 
 A carrier is not relieved from liability to a passenger injured 
 through its negligence, because she has not paid her fare, where 
 it is not shown that she did not intend to pay it.^ 
 
 A shipper of stock who is riding upon the train to care for the 
 stock, though not paying directly for his passage, is a passenger, 
 to whom there is due all the diligence of the railroad to protect 
 him from harm.* 
 
 One riding by invitation of one in authority although without 
 charge is entitled to the protection due a passenger.* 
 
 One furnishing ice water to passengers and having liberty to 
 sell them lunches and paying tribute to the company for this 
 privilege is a passenger.^ A barkeeper in a steamer is a passen- 
 ger.' A passenger entering a wrong train is a passenger so far 
 as to entitle hhn to protection against negligence of the com- 
 pany.' 
 
 A person may be entitled to protection as a passenger without 
 purchasing a ticket or entering a car.* It is the duty of a rail- 
 road company to keep its premises in a safe condition for the use 
 of a friend of its passenger, aiding him to enter or leave its cars.* 
 
 In Watkins v. Great Western R. Co. 37 L. T. N. S. 193, 195, 
 Denman, «/., said the company's liability for due care was pre- 
 cisely the same toward a lady who was crossing the track, coming 
 thus within the premises of the carrier, to accompany an intend- 
 ing passenger to a car, in accordance with common and recog- 
 
 ^June V. Boston & A. R. Co. 153 Mass. 79. 
 
 ^Bartlett v. New York & S. B. F. & 8. Transp. Co. 25 Jones & S. 348. 
 
 'Packer V. Lake Shore <& M. S. R. Co. 28 N. Y. S. R. 647. 
 
 *Orand Trunk R. Co. v. Stevens, 95 U. S. 655. 24 L. ed. 535: Philadelplda 
 
 & R. R. Co. V. Derby. 55 U. S. 14 How. 468, 14 L. ed. 502; Jacobus v. St. 
 
 Raul & C. R. Co. 20 Minn. 125. 
 •Com.. V. Vermont <fc M. R. Co. 108 ]Mass. 7. 
 * Union Pac. R. Co. v. Nichols, 8 Kan. 505. 
 'Aiuhorilies cited in Cincinnati. II. tfe I. R. Co. v. Carper, 11 "West. Rep. 
 
 223, 112 Ind. 26; Colmnbm C. & I. Cent. R. Co. v. Powell, 40 Ind. 37. 
 oAllender v. Chicar/o, R. I. & P. R. Co. 37 Iowa, 261. 270; Lake Shore & M. 
 
 S. R. Co. V. FoHter, 2 West. Rep. 304, 104 Ind. 293. 
 *Uamilton v. Texas & P. R. Co. 64 Tex. 251, and cases cited; Texas <& P. 
 
 li. Co. V. Best, 66 Tex. 116.
 
 WHO AKE PASSENGEKS. 7 
 
 Tiized usage, as toward the latter.' But a newsboy permitted by a 
 street car conductor to enter a car to sell papers is not a person 
 employed in or about the car within a statute limiting the right of 
 action for personal injuries to such person, to the right which an 
 employe would liave.^ And it is equally true that a newsboy 
 (selling newspapers on the street, and accustomed to board street 
 cars, with the acquiescence of the servants of the company, for 
 the purpose of supplying the passengers with papers is not under 
 the carrier's charge and is not a passenger, and the company is 
 not charged with the duty of looking after his safety, or of seeing 
 that he does not run into danger, or of stopping the speed of the 
 car for him to leave, whether requested to do so or not/ 
 
 But there may be such relation assumed by the carrier to the 
 ]iewsboy as will render it liable to him as a passenger." Nor 
 docs it follow that because one has been employed to do a partic- 
 ular service for the carrier at a distant point, that during his 
 transportation to the place where the service is to be performed, 
 the relation of employe is assumed. Until the place is reached, 
 the relation of carrier and passenger is assumed and maintained 
 although no distinct compensation is paid for the transportation.^ 
 
 c. Mail Agent is a Passenger. 
 A mail agent is a passenger carried by the consent of the com- 
 
 ^Indermauer v. Dames, 16 L. T. N. S. 293. And see Langdon v. St. Louis, 
 
 I. M. & S. R. Co. 72 Mo. 392; Doss v. Missouri, K. & T. R. Go. 59 Mo. 27; 
 
 Barrett v. Black, 56 Me. 505 ; Carleton v. Franconia I. & S. Co. 99 Mass. 
 
 216; Hoffman v. New York Cent. & H. R. R. Co. 13 Hun, 589; Boucher 
 
 V. New Fork Cent. R. Co. 49 N. Y. 263; Tobin v. Portland. S. cfi P. R. 
 
 Go. 59 Me. 183, to be found with notes in 8 Am. Rep. 415-417; Dublin, 
 
 W. & W. R. Co. V. Slattery, L. R. 3 App, Cas. 1155, 24 Moak's Eng. 
 
 Rep. 713. 
 ^Philadelphia Traction Co. v. Orbann, 11 Cent. Rep. 628, 119 Pa. 37. 
 ^Fleming v. Brooklyn City R. Co. 1 Abb. N. C. 433; Blackmore v. Toronto 
 
 St. R. Co. 38 U. C. Q. B. 172. See also Flower v. Pennsylvania R. Co. 
 
 69 Pa. 210; Williams v. Pullman Palace Car Co. 40 La. Ann. 87, 33 Am. 
 
 & Eng. R. Cas. 407; Northwedern R. Co. v. Hack, 66 111. 239. 
 *G m. V. Vermont & M. R. Co. 108 Mass. 7. 
 ^O'Donnell v. Allegheny Valley R. Go. 59 Pa. 239; Ulrich v. Neio York 
 
 Cent. & H. R. R. Co. 10 Cent. Rep. 478, 108 N. Y. 80; Grand Trunk R. 
 
 Co. V. Stevvis, 95 U. S. 655, 24 L. ed. 535; Kinney v. JS'eic Jersey Cent.R. 
 
 Co. 34 N. J. L. 513: Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 
 
 468, 14 L. ed. 502; Wilton v. Middlesex R. Co. 107 Mass. lOS; Jacobus v. 
 
 St. Paul cfi C. R. Co. 20 Minn. 125; Rose v. Des Moines Valley R. Co. 39 
 
 Iowa, 246; Cleveland, P. <fc A. R. Co. v. Curran, 19 Ohio St. 1; Brown v. 
 
 Jlastern B. Co. 11 Cush. 97.
 
 O RELATION OF CAEKIER AND PASSENGERS, HOW CREATED. 
 
 pany,' and the company owes the same degree of care to the 
 clerks and mail agents riding in the postal car, in charge of the 
 mails, as they do to passengers riding upon the train.' 
 
 An act of the state of Pennsylvania, declares that when any- 
 one, not an employe of a railroad compan}^, shall suffer injury 
 while lawfully engaged or employed about the road, works,, 
 depot, or premises of any railroad, or in or about a train or car 
 thereof, he shall only recover as if he were an employe ; but the 
 act also declares that this rule shall not apply to passengers. The 
 Act of Congress, March 3, 1865,' requires that railroads carrying 
 the mail, shall as part of then- contract, in consideration of the 
 compensation paid, carry the postal clerks in charge of the mail. 
 Under all the authorities cited above, this duty imposed by the 
 Act of Congress for the consideration paid, created the relation 
 of carrier and passenger, but in a Pennsylvania case* the existence 
 of this relation was denied, and on appeal the Supreme Court of 
 the United States held that the facts under the United States 
 statute did not create the relation.^ But in a late Missouri case^ 
 the supreme court of Missouri, in accordance with the otherwise 
 uniform decisions of the courts under just such conditions as were 
 created by the Act of Congress, held the existing relations estab. 
 lished between the railroad and the Federal government consti- 
 tuted the postal clerk a passenger.' 
 
 Indeed it will generally be accepted as law that a United States- 
 mail agent on a train in the performance of his duties in charge 
 of the mail is a passenger,* and the railroad company, in an action 
 against it for injury to him while so employed, is not entitled to- 
 
 ^Collett V. London & N. W. R. Co. IG Q. B. 984. 
 
 ^Seybolt v. Ntw Yoik, L. E. & W. B. Co. 31 Hun, 100, 95 N. T. 562; Mel- 
 
 lorv. Misituuri Pac. R Co. 10 L. R. A. 36, 105 Mo. 455; Ye(imans v. 
 
 Contra Coata Steam Nao. Co. 44 Cal. 71; Uammond v. Northeastern R. 
 
 Co. 6 S. C. 130; Mair v. Erie R. Co. 6G N. Y. 313; NMoii v. Western R. 
 
 Corp. 15 N. Y. 444. 
 «13 Stat, at L. 506, and U. S. Rev. Stat. § 4000. 
 *Pen)iKyltania R. Co. v. Price, 96 Pa. 256. 
 ''Price V. Penmiflvania R. Co. 113 U. S. 218, 28 L. ed. 980. 
 ^Mellorv. Mixx"uri Pac. R. Co. 10 L. R. A. 36, 105 Mo. 455. 
 "'Maoojfln V. Missouri Pac. R. Co. 102 Mo. 540. See also Grant v. Ralei'ffh cfe- 
 
 a. R. Co. 108 N. C. 462; Oiilf, C. & 8. F. R. Co. v. Wilnon, 11 L. R. A. 
 
 480, 79 Tex. 371. 
 ^Qulf, C. & 8. F. R. Co. V. Wilnon, 11 L. R. A. 486, 79 Tex. 371.
 
 WHO AKE PA8SENGEKS. If 
 
 be relieved from the ne<^ligence of its servants on the ground that 
 plaintiil was a fellow servant with them.* 
 
 A postal clerk in the employ of the government, killed in a 
 railroad collision while in a mail car attached to a passenger train, 
 is, although paying no fare, a passenger witliin the meaning of 
 Mo. Kev. Stat. 1889, § 4425, allowing a recovery of $5,000 against 
 a railroad company by whose negligence in running trains, etc.,. 
 a person is killed.' 
 
 d. An Express Messenger is Entitled to Protection. 
 
 The rule already stated, that every one under the care of the 
 carrier, and yet not in its employ, traveling on its conveyances, is 
 a passenger, necessarily includes within that class, the messengers 
 of an express company, who are not employes of the railroad 
 company on which the express business is done. It is accordingly 
 ruled that an express messenger carried on a railway train in the 
 discharge of his business, under a contract between the railway 
 company and the express company, is a passenger, entitled to pro- 
 tection as such against the negligence of the railway company,^ 
 and that an agreement by an express company to assume all 
 transportation risks as to its property and express messenger, and 
 indemnify the railway company against any liability therefor, will 
 not deprive a messenger of his rights as a passenger to protection 
 against the negligence of the railway company, unless he had 
 knowledge of such agreement.' 
 
 e. Circumstances Constituting and Suspending Relation of 
 
 Passenger. 
 
 Certainly when one has made a contract for passage upon a 
 vehicle of a common carrier, and has presented himself at the 
 proper place to be transported, although he has not entered the 
 cars or stage, whether wrongfully prevented therefrom or not, he 
 is a passenger ; and while waiting for the train to set out he is, as 
 
 ^Mellor V. Mmouri Pae. R. Go. 10 L. R. A. 36, 105 Mo. 455. 
 
 ^Magoffin v. Missouri Pac. R. Co. 103 ]\Io. 540. 
 
 'Brewer v. New York, L. E. & TT. B. Co. 11 L. R. A. 483, 124 N. Y. 59;. 
 
 Blair v. Erie R. Co. 66 N. Y. 313; Wilton, v. Middlesex R. Co. 107 Mass. 
 
 108; Teomans v. Contra Costa Steam Nav. Co. 44 Cal. 71; Kenney v. New 
 
 York Cent. & H. R. R. Co. 135 N. Y. 426. 
 *Br6wer v. New York, L. E. d; W. R. Co. 11 L. R. A. 483, 134 N. Y. 59.
 
 10 KELATION OF CA.RRIER AND PASSENGERS, HOW CREATED. 
 
 to all duties of tlie company toward liim directly involving his 
 safety, entitled to extraordinary diligence ; and as to all duties 
 involving merely his convenience or accommodation, to ordinary 
 diligence.' 
 
 When one has safely entered a passenger car, with the inten- 
 tion of becoming a passenger, although at a stopping-place not a 
 station, and where no invitation was held out to take trains, but 
 where they were permitted to be taken," or v»diere intending to 
 take passage he enters the wrong train, either through his own 
 error or by direction of an employe of the carrier," his right 
 to care and protection certainly under the most rigid construction 
 in favor of the carrier then begins, and ordinarily it continues 
 until he has arrived at his destination, and reached the point 
 where the carrier is accustomed to receive and discharge passen- 
 gers.* 
 
 So long as he stands strictly in this relation of a passenger, the 
 carrier is held to the highest degree of care for his safety. "While 
 he is upon the premises of the carrier before he has reached the 
 place designed for use by passengers waiting to be carried, or put 
 himself in readiness for the performance of the contract, the car- 
 rier owes him the duty of ordinary care, as he is a person right- 
 fully there by invitation. 
 
 It has sometimes been said that a passenger at the end of his 
 ■journey retains the same relation to the carrier until he has left 
 the carrier's premises." A passenger is still a passenger, within 
 the meaning of the word in the statute giving a right of action for 
 his death, if, by reason of the company's neglect, he leaves the train 
 on the wrong side and is thereby killed.' It has been held that 
 where a passenger leaves a train, and in making his way from the 
 
 ^Warren v. FUchhurg It. Co. 8 Allen, 227; Central R. & Bkg. Co. v. Perry, 
 58 Oa 467; Wahnxh. St. L. & P. R. Co. v. Rector, 104 III. 25)G; AlUnder 
 V Chintqo. R. I. & P. R. Co. 37 Iowa, 204, 43 Iowa, 280; Sinith v. St. 
 Paul ail/ R. Co. 32 Minn. 1; Povcher v. New York Cent. R. Go. 49 N. Y. 
 263; Cleveland v. Mic Jersei/ S. B. Co. 68 N. Y. 306; Brien v. Bennett, 
 8 Car. & P. 724; Indiana Cent. R. Co. v. IJudelson, 13 Md. 325. 
 
 Wewire v. Boston & M. R. Co. 2 L. R. A. 166, 148 Mass. 343. 
 
 ^Patry v. Chicago, St. P. M. ((: 0. R. Co. 77 Wis. 218; Lake Sfiore & M. 8. 
 R. Co. V. Romnzweig, 113 Pa. 519. 
 
 *Dodge V. Boston & B. S. S. Co. 2 L. 11. A. 83, 148 Mas«. 207. 
 
 '-Pillshurg, C. & St. L. R. Co. v. Krouse, 30 Ohio St. 222. 
 
 *Mc Kimble v. Ronton & M. R. Co. 139 Mass. 542.
 
 WHO AKE PASSENGERS. 11 
 
 station is injured by negligence of servants, the com])any is liable.' 
 But there are other cases which indicate that the contract of carriage 
 is performed when the passenger at the end of his journey lias 
 reached a safe and proper place, where persons seeking to become 
 passengers are regularly received, and passengers are regularly dis- 
 charged. Thus a passenger alighting from a train and taking a posi- 
 tion upon the sidewalk of a highway ceases to be a passenger, and 
 when injured while crossing the railroad track, without looking 
 for approaching trains, cannot recover ;' and it is held that the 
 •degree of care to which a passenger who has left the train and entered 
 the station is thereafter entitled is less than during the continu- 
 ance of his contract, as the liability of a carrier for goods is held 
 less strictly after they have reached their destination and been 
 put in a freight house than while they are in transit. 
 
 There is sometimes occasion to leave the boat, or car, or car- 
 riage, and return to it again before the contract is fully performed ; 
 and it is necessary to determine what are the rights and duties of 
 the parties at such a time. Whenever performance of the con- 
 tract in a usual and proper way necessarily involves leaving a 
 vehicle and returning to it, a passenger is entitled to protection 
 as such, as well wdiile so leaving and returning as at any other 
 time. 
 
 If the performance of a railroad company's contract to trans- 
 port a passenger is temporarily suspended by a defect in the 
 roadbed, he is entitled, during the time required to overcome 
 the defect, to all the rights of a passenger upon a moving train, 
 including that of protection from the willful misconduct of the 
 company's servants.' And it has been held that a passenger on a 
 railroad • train does not lose his character as such by alighting 
 from the cars at a regular station, from motives of either business 
 or curiosity, although he has not yet arrived at the terminus of 
 his journey,* although a less liberal and reasonable construction 
 has been given to this implied duty. Thus, where a passenger 
 enters a railway train and pays his fare to a particular place, his 
 contract, it is said, does not obligate the company to furnish him 
 
 ^Cincinnati, H. & 1. R. Co. v. Carper, 11 "West. Rep. 225, 112 Ind. 26. 
 ^Allerton v. Boston & M. B. Co. 5 New Eng. Rep. 825, 146 Mass. 241. 
 ^Dwinelle v. Mw York Cent. & H. R. R. Co. 8 L. R. A. 224, 120 N. Y. 117. 
 ^Pariions v. New York Cent. & H. R. B. Co. 3 L. R. A. 683, 113 N. Y. 358.
 
 12 RELATION OF CARRIER AND PASSENGERS, HOW CREATED. 
 
 with means of egress and ingress at an intermediate station; and 
 if he leaves the train at such a station he for the time being sur- 
 renders his place as a passenger and takes upon himself the re- 
 sponsibility of his own movements. But if he leaves without 
 objection on part of the company, he does no illegal act, and ha& 
 a right to re-enter and resume his journey.' 
 
 While, if a railroad company permits the practice of passengers 
 leaving and re-entering their train while on a side track at an 
 intermediate station for the purpose of letting another train pass 
 on the main track, it is bound to use reasonable care not to ex- 
 pose such passengers to unnecessary danger, yet it is not bound 
 to so regulate its business as to make the side track as safe a place 
 of ingress or egress as the station platform; nor does it give any 
 assurance, under such circumstances, to passengers that no trains 
 will pass while they are crossing or recrossing the niain track. 
 JN^either does the call of "All aboard," by the conductor of the 
 side-tracked train give an assurance to those who have left their 
 train that they may cross the main track in safety without looking 
 for approaching trains. Passengers who have thus left their 
 train, when they attempt to cross the track, under these circum- 
 stances are bound to exercise reasonable care and caution to avoid 
 injury from passing trains and must use their senses for that pur- 
 pose,^ and this relation of passenger continues in cases where, in 
 accordance with arrangements of the railroad companies, passen- 
 gers by railway leave theu' train to obtain refreshments.^ 
 
 So where a railroad company undertakes to carry a passenger a 
 long distance upon its line, and sells him a ticket upon which he 
 may stop at intermediate stations, in getting on and off the train 
 at any station where he chooses to stop he has the rights of a 
 passenger. Of course, during the interval between his departure 
 from the station and his return to it to resume his journey he is 
 not a passenger. 
 
 1. What Contract Contemplated. 
 To determine the rights of the parties in every case, the ques- 
 
 ^DeKay v, Chicago, M. & St. P. R. Co. 4 L. R. A. 033, 41 Minn. 178; John- 
 
 Hon V. BoHtoH & M. li. Co. 125 Mass. 7.1. 
 ^DelCaji V. Chicago, M. & St. P. R. Co. 4 L. \i. A. 032, 41 Minn. 178. 
 *Peruitl'>n v. Chicarjo, St. L. & iVO. R.Go. :il La. Ana. 777; Jeffersomille, M. 
 
 tfc i. R. Co. V. RLlcy, 39 lud. 50S.
 
 WHO AKE PASSENGERS. 13 
 
 tion to be answered is, What shall they be deemed to have con- 
 templated by their contract? The passenger may do, without 
 losing his rights while he is in those places to which the carrier's 
 care should extend, whatever is naturally and ordinarily incidental 
 to his passage. If there are telegraph offices at stations along a 
 railroad, and the carrier furnishes in its cars blanks upon which 
 to write telegraphic messages, and stops its trains at stations long 
 enough to enable passengers conveniently to send such messages, 
 -a purchaser of a ticket over the railroad has a right to suppose 
 that his contract permits him to leave his car at a station for the 
 purpose of sending a telegraphic message,* and he has the rights of 
 a passenger while alighting from the train for that purpose, and 
 while getting upon it to resume his journey.' So of one who 
 leaves a train to obtain refreshment where it is reasonable and 
 proper for liim so to do, and is consistent with the safe continu- 
 ance of his journey in a usual way. 
 
 "Where one engages transportation for himself by a conveyance 
 which stops from time to time along his route it may well be im- 
 plied, in the absence of anything to the contrary, that he has 
 permission to alight for his own convenience at any regular stop- 
 ping place for passengers, so long as he properly regards all the 
 carrier's rules and regulations, and provided that his doing so does 
 not interfere with the carrier in the performance of his duties. 
 
 In one case a plaintiff before reaching his destination was going 
 ashore for his own convenience at a place where the boat stopped 
 two hours, and was injured on the gangway plank. It was held 
 that he was to be treated as a passenger, and that the defendant 
 was bound to use the utmost care for his safety.^ In the Urst of 
 these cases cited below, the defendant was held liable for a de- 
 fect in a platform of its station, to a passenger who had left a 
 train to send a telegraphic message; but the court did not decide 
 whether the plaintiff had the rights of a passenger at the time of 
 his injury, or merely those of a person there by invitation. In 
 the second, a passenger who had taken his place on board a steam- 
 
 ^Clvssman v. Long Island R. Go. 9 Hun, 618, affirmed in 73 N. Y. 608. 
 
 ^Dodge v. Boston & B. 8. 8. Co. 2 L. R. A. 83, 148 Mass. 207. 
 
 *Keohuk, N. L. Packet Co. v. True, 88 111. 608. See also Clussman v. Long 
 Idand R. Co. 9 Hun, 618. affirmed in 73 N. Y. 606; Erebrik v. Cair, 29 
 Fed. Rep. 293; Dice v. Willamette Transp. d L. Go. 8 Or. 60.
 
 14 KELATION OF CAKKIEK AND PASSENGERS, HOW CHEATED. 
 
 ship started to go on shore to buy some tobacco and fell from an 
 unsafe plank and was drowned. He was held to have had the 
 rights of a passenger, and his administrator was permitted to 
 recover. 
 
 So a j)assenger on a steamboat who has purchased a ticket not 
 entitling him to meals may properly go on shore for a meal at an 
 intermediate stopping place before reaching his destination, and 
 has a passenger's right to protection during his egress, in the 
 proper manner, from the car or steamer for that purpose. And 
 where he was injured before he had completed his exit, inasmuch 
 as he had a passenger's right of egress, the degree of care to b& 
 exercised towards him did not depend upon whether he was on 
 the car, or platform, or steamer, or on the plank, or the slip. It 
 was the same in either place. But in determining what is the 
 utmost care and diligence within the meanino- of this rule it is 
 always necessary to consider what is reasonable under the circum- 
 stances.' 
 
 2. Entering Car Ijij Permission or as Intruder. 
 
 One who gets upon a fast mail train during one of its fixed 
 stops at a station, which stops are too short to enable him to 
 transact his business and get off, has no right to notice, by signal 
 or otherwise, to alight before the train resumes its journey, it not 
 appearing that the conductor or other proper agent knew that he 
 had come aboard, or that there was any usage or custom to give 
 notice or make signals for the beneiit of such visitors.^ 
 
 Where one is in the carriage of a railroad company without 
 authority or right he cannot recover for an injury he may sustain 
 if an accident occurs.' It is probable that there is authority for 
 the statement that when the conductor of a train disobeys the 
 rules of the company for Avhich he is acthig, in regard to the col- 
 lection of fare from a traveler, or in respect to some other matters, 
 such, for instance, as permitting him upon a forbidden part of 
 the train or upon a train not allowed to carry passengers, the 
 traveler has all the rights of a passenger, if he has no notice of 
 the rule, express or implied, or of the conductor's disobedience. 
 
 Wodf/e V. DoHlon & B. 8. 8. Co. 2 L. R. A. 83, 148 Mass. 207. 
 
 ^Coleman v. Oeorgia R. & lik;j. Co. 84 Ga. 1. 
 
 ^Lyrjo V. Newbold, 9 Exch. 302, 23 L. J. N. S. Exch. 103.
 
 WnO ARE PASSENGEKS. . 15 
 
 JBut if a person solicits and secures free transportation, or if he 
 rides upon a part of the train from which passengers are excluded, 
 or takes passage upon a train not allowed to carry passengers, 
 knowing that this act is ugainst the rules of the carrier, and in 
 permitting it the conductor is disobedient, he is guilty of a fraud 
 and not entitled to a passenger's rights.' 
 
 A person who enters a car or vehicle which he knows is not 
 provided for the transportation of passengers, without the knowl- 
 edge or consent of the company, and in a place where its em- 
 ployes, in the discharge of ordinary duties, are not liable to 
 discover him, and who, on being discovered by one having 
 authority, is forbidden to remain, and who is not there for any 
 purpose relating to any duty of the company, — is not a passenger.* 
 A carrier undertakes to carry passengers safely if they place 
 themselves under its direction in particular places prescribed for 
 the purpose, and it will not be held liable for damages accruing 
 to an interloper who, by fraud or unnoticed by it, hides himself 
 where he is not liable to be discovered/ 
 
 A trespasser upon a regular railway train is not a passenger 
 within the meaning of the term/ A person who secretes him- 
 self upon the carrier's vehicle with the intent of " stealing " a 
 passage, being there fraudulently and without the carrier's assent, 
 is not a passenger/ 
 
 Where a drover obtained a pass for his wife, by fraudulently 
 representing that she was the owner of part of the stock, it was 
 held that she was not a passenger/ So, a person riding upon a 
 pass which contains certain conditions with which the passenger 
 
 ^MeVeety v. St. Pa^il, M. & M. B. Co. 11 L. R. A. 174, 45 Minn. 268; Toledo, 
 W. & W. R. Go. V. Brooke, 81 111. 245; Toledo, W. & W. R. Co. v. Beggs, 
 80 111. 80; Robertson v. New York & E. R.Co. 22 Barb. 91 ; Uakm Pac. R. 
 Co. V. Nichols, 8 Kan. 505; Price v. International & O. N. R. Co. 64 
 Tex. 146; Gulf, C. & 8. F. R. Co. v. Campbell, 76 Tex. 174. 
 
 ^Bricker v. PhitadelpJiia & R. R. Co. 133 Pa. 1; Eaton v. Delaware, L. & 
 W. R. Co. 57 N. Y. 382. 
 
 ^Bricker v. Philadelphia & R.R. Co. 132 Pa. 1; Austin v. Great Western R. 
 Co. L. R. 2 Q. B. 442; Great Northern R. Co. v. Harrison, 10 Excli. 376; 
 O'Brien v. Boston tfi W. R. Co. 15 Gray, 20. 
 
 ^Eigley v". Gilmer, 3 Mont. 90. 
 
 ^Toledo, W. (& W. R. Co. v. Brooks, 81 111. 245; Toledo, W. & W. R. Co. v. 
 Beggs, 85 111. 80; Satterlee v. Groat, 1 "Wend. 272; Li/go v. Ncwloid, 9 
 Exch. 302. 
 
 <^Brown v. Missouri, K. & T. R. Co. 64 Mo. 536.
 
 16 RELATION OF CARRIER AND PASSENGERS, HOW CREATED. 
 
 refuses to comply, thereupon ceases to be a passenger, if the con- 
 ductor so elects.* 
 
 It has been held that a railway company is not liable for an 
 injury to a person who is riding by stealth on the engine in viola- 
 tion of the rules of the company, known to him, even though 
 with the permission of the engineer. The conductor upon a train 
 is the only train hand who can bind the company by his assent to 
 a person riding free. A person who gets aboard a train with the 
 deliberate purpose of not paying his fare is not a passenger, and 
 if injured no recovery can be had by him, except where the negli- 
 gence producing the injury is gross or wanton.'' 
 
 Where a person travels upon a pass issued to another, and not 
 transferable, and passes himself as the person named in the pass, 
 he is not a passenger.' 
 
 If a ticket is procured by fraud, the fraud will vitiate the con- 
 tract, and the person using it will not be entitled to the rights of 
 a passenger.* 
 
 A person who rides upon an engine of a train with the consent 
 ■of the engineer but contrary to a rule of the company, of which 
 he is informed, is not a passenger.^ Or on the invitation of the 
 brakeman;® or on the baggage wagon of a transfer company in 
 place of its omnibus.'' 
 
 One who without permission, but with the knowledge and 
 acquiescence of a railroad superintendent, rides upon a train 
 which he knows no one not an employe is allowed to ride upon, 
 is a mere licensee, to whom the railroad company owes no duty.* 
 But one allowed to ride on a special train who has no notice of 
 any want of authority to grant the permission, whether he pays 
 fare or not, in the absence of collusion between him and the con- 
 ductor to defraud the company of its fare, becomes a passenger, 
 
 ^Elliott V. Wedern & A. R. Go. 58 Ga. 454. 
 
 *C'hirngo & A. R. Co. V. Michie, 83 111, 427. See also Iligley v. Qilmer, 3 
 Mont. 90. ^ 
 
 *ro'cdo, W. & W. R. Go. V. Beggs, 85 111. 80. 
 
 *nr,noii V. Mmouri, K. & T. R. Go. 64 Mo. 536. 
 
 '^RfbertHon v. New York & E. R. Go. 23 B.vrb. 91; Union P,ic. R. Co. v. 
 A'icMs, 8 Kan. 505; Ou'f, G. <& S. F. R. Co. v. Campbell, 70 Tex: 174,41 
 Am. & Entr. II. Cas. 100; Files v. Boston d A. R. Go. 149 Maas. 204. 
 
 ^Stringer v. Missouri Pac. R. Go. 96 Mo. 299. 
 
 yCnton V. JMuware, L. & W. R. Go. 57 N. Y. 382. 
 
 *McGculey v. Tennessee Goal, I. & R. Go. (A.la.) June 25. 1891.
 
 WHO ARE PASSENGERS. 
 
 17 
 
 aind as such, is entitled to have the train on which he travels man- 
 •aged witli the care that is due from a common carrier to passen- 
 gers on a train of that character.' 
 
 One who clandestinely enters a box car of a freight train, to 
 steal a ride over the road, is a trespasser; and the only duty the 
 •company owes him is not to wantonly injure him." A railroad 
 company is not liable for an injury to an employe while off duty 
 with other employes, caused by the negligence of one of them in 
 •charge of a car which had been loaned by the company for their 
 use.^ A person cannot claim the rights of a passenger if he has 
 knowingly induced the conductor of a train to violate a rule of the 
 company in carrying him without charge.* 
 
 f. When Children are Passengers. 
 
 The children of a passenger, traveling with him are undoubt- 
 edly passengers."* 
 
 Where a statute required that railroad companies should carry by 
 certain trains children under three years of age without charge, and 
 the plaintifE's mother, carrying in her arms, j^laintiff, a child three 
 years and two months old, took a ticket for herself by one of these 
 prescribed trains on defendant's ]-ailway, but did not take a ticket 
 for the plain tiif, no question being asked as to the age of the child. 
 and there existing no intention on the part of the mother to 
 defraud the comj^any, and in the course of the journey an acci- 
 •dent occurred through the negligence of the defendants, and the 
 ]-»laintiif was injured — the railroad company was liable, as the con- 
 tract was to carry safely both the mother and plaintiif. If that 
 contract had been entered into nnder some misapprehension, on 
 the part of the mother, a liability must rest on her for the fare 
 which she ought to have paid, or for any penalty imposed by any 
 enactment or by law made under statutorj- powers, but her default 
 >does not alter the position of the company, the contract being to 
 
 ' Wagner v. Missouri Pac. R. Co. 3 L. R. A. 156, 97 Mo. 513. 
 
 Ulendryx v. Kansas, Ft. S. tfc G. R. Co. 45 Kan. 377. 
 
 ^Davis V. Chicago, St. P. JW. & 0. R. Co. 45 Fed. Rep. 543. 
 
 *McVeety v. St. Paul, M. & M. R. Co. 11 L. R. A. 174, 45 Minn. 268. 
 
 ■^Littlejohn v. Fitchburg R. Co. 2 L. R. A. 502. 148 Mass 478; Todd v. Old 
 Colony & F. R. R. Co. 3 AUen, 18, 20; Wilton v. Middlesex R. Co. 107 
 Mass. 108, 125 Mass. 130; Com. v. Vermont & 31. R. Co. lOi Mass. 7, 13; 
 Austin V. Qreat Western R. Co. L. R. 2 Q. B. 443. 
 
 2
 
 18 RELATION OF CARRIER AND PASSENGERS, HOW CEEA'nSD. 
 
 carry the mother and the child, and the liability exists if through 
 the negligence of the company the plaintiff was injured.' 
 
 If a young child enter a train on which passengers are carried,, 
 without the knowledge of the conductor, and no fare is paid, yet 
 if permitted to remain after its presence is discovered, it is entitled 
 to the same care extended and exacted to other passengers, and it 
 is entitled to claim the benefit of a statute requiring an adjustable 
 gate on the front platform to secure the safety of passengers.* 
 A child nine years of age carried several blocks on a street-car, 
 the driver being also conductor, knowing the child to be on board 
 is a passenger, whether he intended to pay fare or not, so as to 
 render the company liable for the negligence of the driver,* 
 In an action against a tugboat compauy for the death of plain- 
 tiff's infant child, in which the petition alleges that the company 
 was a common carrier of passengers, that the child was a passenger 
 at the time of the accident, and that the company was guilty of 
 negligence in receiving the child on board without the consent of 
 her parents, a charge that, unless the child was a passenger, plain- 
 tiff cannot recover, is erroneous.* 
 
 But if the relation of passenger cannot be implied, either from 
 invitation, permission, or recognition of the character, there is no- 
 liability except for more than ordinary negligence;^ for though it 
 be true that the tender years of a child injured may be sufficient 
 to excuse him for acts which in one of mature years would con- 
 stitute contributory negligence, where he occupied the relation of 
 a passenger to the railroad company, yet they cannot have the 
 effect of creating the relation of passenger where that relation 
 did not exist." 
 
 »^(/.s^m V. Great Western R. Co. L. R. 2 Q. B. 442, 36 L. J. Q. B. N. S. 
 
 201. 
 ^Muehlhatmn v. St. Lovis R. Co. 6 West. Rep. 857, 91 Mo. 344; Sliei-man v. 
 
 Jlannihal & St. J. R. Co. 72 Mo. 62; McKeon v. Citizem R. Co. 42 Mo. 
 
 7'J; W'iUou V. Middlesex R. Co. 125 iMass. 130; r/iitudelpJua <& R. R. Co. 
 
 V. IJerbi/, 55 U. IS. 14 How. 4GS, 14 L. ed. 502; WMoii v. Middlesex R. Co. 
 
 107 Mush. lO'S; Lammert v. Chicago <£ A. R. Co. 9 111. App. 388. 
 ^Metropolitan Street R. Co. v. Moore, 83 Ga. 453, 41 Am. & Eng. R. Cas. 
 
 240. 
 *CooIc V. Houston Direct Nav. Co. 76 Tex. 353. 
 ^AtcluHon c£ N. R. Co. v. Flinn, 24 Kau. G27; Rearij v. LoawvUle, JV. 0. & T. 
 
 R. Co. 40 La. Ann. 32. 
 ^QulJ, C. & a. F. R. Co. V. Daickins, 77 Tex. 228.
 
 DUTY OF PASSENGER CARRIER. 19 
 
 § S. Duty of Passenger Carrier not Necessarily 
 in Contract hut Collateral. 
 
 The duty of common carriers, with respect to the transporta- 
 tion of persons or property, is a duty independent of contract, 
 arising from public pohcy by implication of law from the fact 
 that persons or property are received in the course of the business 
 of such employments.' ]S^or do the obligations and liabilities of 
 a common carrier depend upon statute." 
 
 It is not necessary that there sliould be any contract to support 
 an action against a carrier for negligently carrying a passenger; 
 but it is sufficient if the passenger be lawfully there for the pur- 
 pose of being carried.^ In Ansell v. Water ho use, 6 Maule & S. 
 385, which was an action against a coach proprietor for injuries 
 sustained by a passenger by reason of the coach being overturned 
 through the negligence of defendant's servants, Holyroyd, «/. 
 says: "This action is founded on that which is collateral to a 
 contract; for the terms of the contract with the carrier (provided 
 that they do not vary his general responsibility) are quite immaterial. 
 So in Bretlievton v. Wood, 3 Brod. & B. 62, Dallas, Cli. J., in 
 delivering the judgment of the court of errors, says: "This 
 action is on the case of a common carrier upon whom the duty is 
 imposed by the custom of the realm, or in other words, by the 
 common law, to carry their goods or passengers safely and se- 
 curely, so that, by their negligence or default, no injury or dam- 
 age happen. A breach of this duty is a breach of the law, and 
 for this breach action lies, founded on the common law, which 
 action wants not the aid of a duty to support it." Many English 
 cases support the proposition that an action will lie against a car- 
 
 ^Delaware, L. <& W. B. (Jo. v. Trautioein, 7 L. R. A.. 435, 52 N. J. L. 169; 
 ^farsliallv. York, N. & B. B. Go. 11 C. B. 655; Martin v. Qr eat Indian 
 Peninsula B. Co. L. R. 3 Exch. 9; Oladwell v. Sleggall,6 Bins-. N. C. 783; 
 l-'cppinv. Sheppard, 11 Price, 400; Carroll y. State n Inland B. Co. 5S N. 
 Y. 12Q; Austin V. Great Western B. Go. L. R. 2 Q. B. 422; Foulkes v. 
 Metropolitan Dist. B. Co. L. R. 5 C. P. Div. 157; Eat>n v. Boston & L. 
 B. Co. 11 Allen. 500; Union Pae. B. Go. v. Nichols, 8 Kan. 505; New Or- 
 leans, J. & O. N. B. Go. V. Hurst, 36 Miss. 660; McElroy v. Nashua & L. 
 B. Corp. 4 Gush. 400. 
 
 ^Hannibal & St. J. B. Go. v. Smift, 79 U. S. 12 "Wall. 262, 20 L. ed. 423; 
 Philadelphia & B. B. Go. v. Derby, 55 U. S. 14 How. 4Ub, 14 L. ed. 502. 
 
 '^Oreat Northern B. Go. v. Harrison, 10 E.x:ch. 376, 23 L. J. N. S. Exch, 
 808.
 
 20 RELATION OF CARKIEK AND PASSENGERS, HOW CREATED. 
 
 rier for the breach of his duty as a common carrier and that such 
 duty is collateral to and independent of the contract.' 
 
 In Marshall v. York^ N. & B. R. Co., where the master took 
 a ticket for his servant, Jervis, Ch. e/.,. inquired: "Upon what 
 principle does the action lie at the suit of the servant ? For his 
 personal sufferin^^ ? l^ot by reason of any contract between him 
 and the company, but by reason of the duty implied by law to 
 carry him safely." And it was said by Williams, «/., that it was 
 not an action of contract but an action of tort against the com- 
 pany as to carriers; the servant being lawfully within the carriage, 
 the question of whether he himself negotiated the contract or 
 paid the fare, seems to have been unimportant." 
 
 ^Marshall v. Fork, K & B. R. Co. 11 Q. B. C. P. N. S. 34; Pozzi v. Ship 
 ion. 8 Ad. & L. 963, 8 L. J. Q. B. N. S. 1: Pippin v. Slieppard, 11 Price, 
 400; Gollettv. London & N. W. B. Co. 16 Q. B. 984, 20 L. J. Q. B. N. S. 
 411; Gladwell v. Sleggall, 5 Bing. N. C. 733, 8 L. J. C. P. N. S. 361; 
 Dixson V. Bell, 5 Maule & S. 198; Mytton v. Midland R. Co. 4 Hurlst. & 
 N. 615, 28 L. J. Exch. N. S. 385; Coxon v. Great Western R. Co. 5 Hurlst. 
 & N. 274, 29 L. J. Exch. N. S. 165; Great Western R. Co. v. Blake, 7 
 Hurst. & N. 987, 31 L. J. Exch. N. S. 346; Alton v. Midland R. Co. 34 
 L. J. N. S. C. P. 292. 
 
 ^Miir shall v. York, N. <& B. R. Go. 11 C. B. 655; Austin v. Great Western 
 R. Co. L. R. 2 Q. B. 442, 36 L. J. Q. B. N. S. 201. See O'Donnell v. 
 Allegheny Valley R. Co. 59 Pa. 239; Mw York, L. E. <& W. R. Co. v. 
 £ur/i8. 51 N. J. L. 340.
 
 CHAPTER II. 
 LAW OF THE STAGE COACH. 
 
 § 4. Dnty of Stage Coach Proprietor. 
 
 a. Origin of tlie Railway Gar. 
 
 b. Responsibility for Safe Coach, Horses and Driver. 
 
 c. Liability of Carrier of Goods and of Passengers Compared. 
 § 5. Presumption of Negligence from Injury to Passenger. 
 
 a. Rebutting Presumption of Neglect of Duty. 
 § 6. Duty to Provide Safe Coach is not Absolute. 
 
 § 4- Dif^ty of Stage Coach PT'oprietor, 
 a. Origin of the Railiuaij Car. 
 
 The stage eoacli is one of the ancient methods of passenger 
 transportation, which has survived modern improvement and 
 invention, canying into the present the common law rule it 
 developed, governing the carriage of passengers. 
 
 In definition, a " car " or " coach " or " stage " or a " stage 
 coach" is the same. They are vehicles that run by the turning 
 of the wheels. Place boards over the wheels or the axles of the 
 wheels, and we have a platform car adapted to freight; place 
 benches or chairs on the platform and we still have a car, but 
 adapted to convey passengers, and then easily termed a carriage. 
 Instead of benches or chairs, put on the platform the body of a 
 " stage coach," and we have such a " railroad car " as served at 
 the inauguration of the earliest railroads in this country, and still 
 serves in Europe. It is plain that by adaptation and improve- 
 ment the modern railway car has been evolved from the old 
 fashioned '' stage coach." In common language a railroad carriage 
 designed for passengers is called indifferently a " car " or " coach." 
 In every collection of words arranged according to the ideas which 
 they express, these, and otl^ers with them, will be found classed 
 together as having the same signification.' iN^either the word 
 
 'The American Railway. 231. 
 
 21
 
 22 LAW OF THE STAGE COACH. 
 
 "coach" nor "stage" or "car" can be said to be words of art, 
 or to have anj legal or fixed meaning distinguishing one from the 
 other, or any one of them from several other terms implying a 
 vehicle or conveyance. , We must therefore look at the context, 
 and the circumstances under which the terms are used, and especi- 
 ally at the matter which the parties using the expressions had in 
 contemplation.' 
 
 b, Responsihility for Safe Coach, Horses and Driver. 
 
 The duties of the proprietor of a stage coach were long ago 
 well defined and fixed. He was, among other things, to provide 
 a conveyance, reasonably convenient, substantial and thoroughly 
 equipped, and drawn by safe, well trained horses, with secure 
 harness," and a skillful, intelligent, faithful and competent driver. 
 In 1825, in Crofts v. Waterhouse, 3 Bing. 321, Best, Ch. J., 
 said : "The coachman must have competent skill, and use that 
 skill with diligence ; he must be well acquainted with the road he 
 undertakes to drive ; he must be provided with steady horses, a 
 coach and harness of sufficient strength, and properly made and 
 also with lights by night. If there be the least failure in any of 
 these things, the duty of the coach proprietors is not fulfilled and 
 they will be answerable for any injury or damage that happens." 
 A livery stable keeper is bound to supply carriages as safe as 
 care and skill can render them. While not an insurer against all 
 defects, his hability extends to such as might be guarded against 
 by care and skill.^ This liability includes the securing of qualified 
 drivers, safe horses and harness.* 
 
 The duty is imposed upon the manager of a stage coach 
 to make frequent and careful examination to detect any original 
 imperfection or subsequent defect or breakage in the coach or its 
 
 'iVew York v. Third Ave. R. Co. 117 N. Y. 404. 
 
 * Aston V. Heaven, 2 E'^p. 533; Crofts v. Wnterhouse, S Bins:. 321; C'risttev. 
 Griggs. 2 Cainpb. 80; Ware v. Qay, 11 Pick. 106, 112; Sharp v. Orcy, 9 
 Bing. 457; Israel v. Clark, 4 Esp. 259; Brenner v. Williams, 1 Car. & P. 
 414; Jackwn v. ToUett, 2 Starlc. 37; Camden & A. R. & Transp. Co. v. 
 Burke, 13 Wend. 611, 626, 629; Lyon v. Mells, 5 East, 428. 
 
 *IIyman v. Nye, L. R. 6 Q B. Div. 685; Kennonv. Oilmer, 5 Mont. 257; Frink 
 "v. Coe, 4 (I. Greene, 555; Derwort v. Loomer, 21 Conn. 245. 
 
 *Sayks v. Western Stage Coach Go. 4 Iowa. 547, and aulliorities cited in sec- 
 lion 4; Jlyman v. Nye, L. R. 6 Q. B. Div. 08'); Kennon v. Gilmer, 5 
 Mont. 257; Frink v. Coe, 4 G. Greene, 555; Derwort v. Loomer, 21 Conn. 
 245; Taller v. Talbot, 23 111. 357.
 
 DOTV OF STAGE COACH PKOPKIETOK. 23 
 
 •equipment. If there be an imperfection in the original construc- 
 tion — as for an example, in an axletree — although the defect be 
 •out of sight and not discoverable upon a mere casual inspection, 
 yet if the defect might be ascertained by a more minute examina- 
 tion, and any injury occur to a passenger by reason of the defect 
 the proprietor will be answerable therefor,' The same rule 
 appHes to any other latent defects, which such close inspection 
 might disclose, and which render the coach or any part of its 
 equipment not roadworthy and from which a passenger sufEers an 
 injury*. 
 
 <?. Liability of Carrier of Goods and of Passengers Compared. 
 
 The liabilities of such carriers naturally flow from the duties 
 imposed. They are not like common carriers of goods, insurers 
 against all injuries, except the act of God,^ or by public enemies.* 
 
 It is not their imposed duty absolutely to convey safely, yet 
 their liability goes to the extent that they and their agents and 
 employes possess competent skill and that they will use all due 
 care and diligence in the performance of their duty, being already 
 supplied with every requisite to insure the safety of their passen- 
 gers. As the safety of the lives and limbs of human beings are 
 committed to their care, and it is necessary that the passengers 
 should in a great degree submit themselves to the control and 
 supervision of their en.ployes, and trust to their faithfulness and 
 skill, omitting that personal watchfulness* and self-care, which 
 
 ^Ingalls v. Bills, 9 Met. 1; SJiarp v. Orey, 9 Bing. 457. 
 
 *Story. Bailm. §§ 592, 601 a\ Farish v. Relgle, 11 Gratt. 711; Treadrcell v. WMt- 
 tier, 5 L. R A. 498, 80 Cal. 574; Tngalls v. Bills, 9 Met. 1; McElroyv. 
 Nashua & L. B. Corp. 4 Cush. 400; Edwards v. Lord, 49 Me. 279; Derwart 
 V. Loomer, 21 Conn. 253; Fuller v. Naugatuck R. Co. 21 Conn. 557, 576; 
 Eadley v. Cross, 34 Vt. 586; Hegeman v. Western R. Corp. 16 Barb. 353, 
 13 N.Y. 9. 
 
 *Qillespie v. St. Louis, K. G. & N. R. Co. 6 Mo, App. 554; Chicago, B. & Q. 
 R Co. V. Manning, 28 Neb. 552; Olfeson v. Virginia, M. R. Co. 5 
 Mackey (D. C.) 3^6; International & O. N. R. C). v. Halloren, 53 Tex. 
 46; Stroass V.Wabash, St. L. & P. R. Co. 17 Fed. Rep. 209; Waipolev. 
 Bndges, 5 Blackf. 232; Trent & M. Nav. Proprs. v. Wood, 4 Dou^l. 287, 
 290; Slater v. South Carolina B. Co. 29 S. C. 96; Friend v. Woods, 6 
 Gratt. 189, 196. 
 
 ^Holladay v. Kennard. 79 U. S. 12 Wall. 254, 20 L. ed, 390; Qaqe v. Tirrell, 
 91 Mass. 299; Hubbard v. Harnden Exp. Co. 10 R. I. 244; The Protector, 
 79 U. S, 12 Wall, 700, 20 L. ed, 463. 
 
 ^Chicago & A. R. Go. v. Pillsbury, 11 West, Rep. 762, 123 111. 9,
 
 2-i LAW OF THE STAOK COACH. 
 
 would interfere with the precautions taken by the carrier, the' 
 latter is held to carry safely those whom they receive into their 
 eoaches, as far as human care and foresight will go — that is, for 
 the utmost care and diligence of very cautious persons. And of 
 course they are responsible for any, even the slightest neglect.' 
 But one who is only a carrier in a particular case and does not 
 assume to exercise the business of a public carrier, is not liable as 
 such, but only for ordinary negligence, unless he contracts for 
 greater diligence.'' 
 
 § 5. Fi'esinnptioii of Negligence from Injury to 
 
 Passenger. 
 
 While it is true as a general proposition, that the burden of 
 showing negligence on the part of the defendant occasioning an 
 injur}-, rests in the first instance, upon the plaintiff, yet, in an 
 action by a passenger for injuries received in an accident to a 
 carrier's coach, when it is made to appear that the accident 
 resulted from defects in the coach or in the appliances or in the- 
 want of skill in the employes, the jDresumption of negligence 
 arises and the onus then rests upon the defendant to show that 
 the injuries were caused without its fault,^ 
 
 Carriers of passengers are bound to provide skillful servants 
 who will not overload the coach with passengers or luggage and 
 will suitably arrange and adjust the weight to prevent any liabil- 
 ity of oversetting.^ For an injury sustained by one of the passen- 
 
 ''IngalU v. Bills, 9 Met. 1; Slohes v. Saltonstall, 38 U. S. 13 Pet. 181. 10 L. 
 ed. 115; New Jersey R. & Trnnsp. Co. \. Pollard, 89 U. S. 22 Wall. 341,. 
 33 L. ed. 877: Farish v. Reiqle. 11 Gratt. 711; 8tory, Bailm. 601, a; 
 Tieadicell v. Whittier, 5 L. R. A. 498, 80 Cal. 574; (JaldweU v. Marphy, 1 
 Duer. 241; Camden & A. R. & Trcump. v. Burke, 13 Wend. 626; Pennsyl- 
 vnnin R. Co. v. Aiipell. 23 Pa. 147; Oalena cfc ('. U. R. Co. v. Tarwood, 15 
 111. 408; Galena & C. U. R. Co. v. Fay, 16 111. 558; Friiik v. Potter, 17 111. 
 406; Friiik v. Coe,^ G. Greene, 555; McKinney Y.Neil, 1 McLean. 540; 
 Maury v. Talinadge, 2 McLean, 157; Cormcall v. Sullivan R. Co. 28 N. H. 
 169; Clark v. Barnnfjton, 41 N. II. 51; Maverick v. E-ghth Are. R. Co. 36- 
 N. Y. 378; Bowen v.' New York Cent. R. Co. 18 N. Y. 408; Biyo v. New 
 York Cent. R. Co. 34 N. Y. 9; Taylor v. Grand Trunk R. Co. 48 N. H. 
 313. 
 
 ^Robinson v. Dunmore, 2 Bos. & P. 416. 
 
 '^Palmer v. Delaware <fc- //. Canal Co. 46 Ilun, 486; Seybolt v. NfW York, L.. 
 K. & W. R. Co. 95 N, Y. 562; Edqtrton v. Ncio York & U. R. Co. 39 N. 
 Y. 2i7; Caldwell V. New Jersei) S.' B. Go. 47 N. Y. 2«. 291; Cartis v. 
 R;choHter d: S. R. Go. 18 N. Y. 534; Oinna v. Second Ave. R. Co. 67 N^ 
 Y. 597. 
 
 *rx>nfi V. Iforne, 1 Car, & P 612; Anton v. Heaven, 2 Rsp. 533; Herd v. Moun- 
 tain, 5 Pelersdorf Abr. Carriers, 54.
 
 PKESUMPTION OF KEGLIGENOE FROM INJURY TO rAiSSEJSGEK. 25- 
 
 gers by the upsetting of the coach, the owner is not liable, unless 
 the injury was occasioned by negligence or want of proper skill 
 and care in the driver of the carriage; but the facts that the car- 
 riage was upset and the passenger injured, are prima facie evi- 
 dence that there was carelessness, negligence, or want of skill on 
 the part of the driver, and throws upon the defendant the burden 
 of proving that the accident Avas not occasioned by the driver's 
 fault. This must be done by showing that the driver was a per- 
 son of competent skill — of good habits, and in every respect quali- 
 fied and suitably prepared for the business iu which he is engaged,. 
 and that he acted at the time of the accident with reasonable skill 
 and with the utmost prudence and caution; and if the disaster was 
 occasioned by the least negligence or want of skill or prudence on 
 his part, then the owner of the coach will be liable.' 
 
 In an action where defendants were common carriers of pass- 
 engers by omnibus or stage and where they undertook to carry 
 plaintiff in such vehicle for hire, and where plaintiff was thrown 
 down and injured while getting down from one of defendant's- 
 stages by the horses starting up, it was held that tlie facts showed 
 prima facie, that the horses were unsuitable for the business or 
 that the driver was incompetent or negligent; and in the absence 
 of proof that the occurrence of something beyond the control of 
 the driver or the proprietor caused the horses to start, was suffi- 
 cient to sustain a recovery." 
 
 a. Rebutting the Presumjption of a Neglect of Duty. 
 
 The relation of carrier and passenger having been established, 
 the fact that the passenger sustained an injury by the overturn- 
 ing of the carriage makes a prima facie case of negligence against 
 the carriei'. The carrier then assumes the burden of showing that 
 he used all reasonable and practicable precaution in providing a. 
 sufficient conveyance, together with safe horses and other suitable 
 and proper appliances for the journey, and that the driver was 
 qualified for the position, and that he acted with reasonable skill 
 and caution. In short, it becomes the duty of the carrier to rebut 
 the presumption of negligence which arises from the happening 
 
 ^Stokes V. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; Anderson v. Scho- 
 
 ley, 14 West. Rep. 517, 114 Ind. 553. 
 ^Roberts v. Johnson, 58 N. Y. 613.
 
 26 LAW or THE STAGE COACH. 
 
 of the accident, by showing that the injury was not occasioned by 
 any want of skill or prudence on the part of the driver, or by any 
 neglect or want of practicable care or foresight on the part of the 
 carrier.* 
 
 In Anderson v. Scholey, 14 West. Rep. 517, 114 Ind. 553, the 
 action was to recover damages for an injury sustained by the 
 overturning of a stage coach in which the plaintiff was being car- 
 ried as a passenger. The complaint charges that the defendants 
 undertook to carry the plaintiff from the city of Aurora to Rising 
 Sun, on the evening of the 15th day of January, 1885, and that 
 by reason of the negligence of the defendants in failing to provide 
 lights, the night being dark, so as to enable the driver to see and 
 keep in the road, and by providing unreliable horses and a negli- 
 gent and inefficient driver, the vehicle was upset, whereby the 
 plaintiff was severely injured. It was ruled that the omission to 
 state just how the defendants' failure to supply the carriage with 
 hghts,* on a dark night, or to furnish safe and tractable horses 
 and a careful and efficient driver, resulted in the overturning of 
 the carriage, did not make the complaint bad. They were causes 
 adequate to have produced the injurious result. It was the duty 
 of the defendants to explain the causes of the accident, so far at 
 least as to show that it was not attributable to any omission on 
 their part or on the part of the driver who was their agent. The 
 driver testified that he was in the road pursuing the right track, 
 and that he pulled to the left, thereby upsetting the conveyance 
 over the bank, because the plaintiff told him repeatedly he was 
 too far to the right. The plaintiff denied this. But it was said 
 that however the facts may be, it was the duty of the defendants 
 to supply the coach with a driver who knew the way for himself, 
 
 ^Anderson v Scholey, 14 West. Rep. 517, 114 Ind. 553; Christie v. Griggs, 2 
 Ciinipb. 80; Tieadwell v. Whitticr, 5 L. R. A. 49>^, 80 Cal. 574; Lawrence 
 V. Green, 70 Ciil. 420; Boyce v. California Siaqe Co. 25 Cal. 468; Cleveland 
 G G. & 1. R. Go. V. ISieindl, 1 West. Rep. 890, 104 Ind. 264, and cases 
 cited; Wooleryv. Louisville, N. A. & G. R. Co. 5 West. Rep. 667, 107 
 Iiid. 1381; Louisville. N. A. & G. R. Go. v. Pedigo, 5 West. Rep. 876. 108 
 Ind. 481. 
 
 *OroJt» V. Waterlunise, 8 Bing. 321, where Best, Ch. J., said: "The coach- 
 man must have competent skill and use that skill with diligence; he must he 
 well iufiuainted with the road he undertakes to drive; he must be provided 
 with Hl(;;i(ly horses, a coach and harness of sulllcient strength and properly 
 made; and also with lights by night."
 
 DUTY TO PKOVIDE SAFE COACH NOT ABSOLUTE. 27 
 
 and who would not be controlled by the suggestion of a passenger 
 on the inside, while he occupied the seat, charged with the duties 
 and responsibility of driver. 
 
 But if the driver of a stage coach was a person of competent 
 skill and in every res])ect qualified and suitably prepared for the 
 business in which he was engaged, and the stage coach was over- 
 turned by no fault or want of skill or care on his part, or on tliaty 
 of the owner or his agents, but by physical disability arising from 
 extreme and unusual cold, which rendered the driver incapable for 
 the time to do his duty, then the owner of the stage is not liable 
 in an action for damages for an injury sustained by a person who 
 was a passenger.' But the smallest negligence on the part of the 
 proprietors of a stage coach or their servants will render them 
 liable." Slight fault, negligence or unskillf ulness either as to the 
 sufficiency of the carriage or the act of driving it will render the 
 owner of the stage responsible in damages for any injury to the 
 passengers.* Where the driver of a stage coach is advised of any 
 special danger which might be avoided by the passenger alighting 
 from the coach, it is his duty to inform the passenger.* 
 
 § 6. Duty to Provide Safe Coach not Absolute. 
 That the duty to provide a safe coach and equipments, is not 
 absolute but simply requires the exercise of the utmost diligence 
 and care, aided by the highest degree of knowledge and skill is 
 now well established by authority.' 
 
 ^Stokes V. SaUonstall, 38 IT. S. 13 Pet. 181, 10 L. ed. 115. 
 
 ^Aston V. Heaven, 2 Esp. 533; Christie v. Griggs, 2 Campb. 79; White v. 
 . Boulton, 1 Peake, N. P. 81; Camden & A. E. Co. v. Burke, 13 Wend. 
 611, 627, 628. 
 
 ^Wordsworth v. Willan, 5 Esp. 273; Mnyhew v. Boyce, 1 Stark. 423; Johns v. 
 Bc/yee, 1 Stark. 493; Jackson v. Tillet, 2 Stark. 37; Dudley v. Smith, 1 
 Campb. 167; Israel v. Clark, 4 Esp. 259; Sharp v. Grey, 9 Bing. 457. 
 
 *Dudley v. Smith, 1 Campb. 167; McLean v. Burbank, 11 Minn. 277. 
 
 *Palmer v. Delaware & H. Canal Co. 46 Hun, 489; Deyo v. New York Cevt. 
 B. Co. 34 N. Y. 9; Hegeman v. Western B. Corp. 13 N. Y. 9, 11; McPad 
 den V. New York Cent. B. Co. 44 N. Y. 478; Carroll v. Statsn Island B. 
 Co. 58 N. Y. 127; Pennsylvania Co. v. Boy, 102 U. S. 551, 26 L. ed. 141 
 Terre Haute & I. B. Co. v. Buck, 96 Ind. 346; Bedford, S. 0. & B. B Co 
 V. Bainbolt, 99 Ind. 551; Louisville, N. A. & G. B. Co. v. Jones, 7 West 
 Rep. 33, 108 Ind. 551; Jamison v. San Jose & S. C. B. Co. 55 Cal. 593 
 Grand Bapids & I. B. Co. v. Huntley, 38 Mich. 537, 31 Am. Rep. 321 
 Baltimore & 0. B. Co. v. Miller, 29 Md. 252; Virginia Cent. B. Co. v 
 Sanger, 15 Gratt. 230; Kelly v. New York & S. B. B. Co. 11 Cent. Rep 
 874, 109 N. Y. 44; Northern Pae. B. Co. v. Herbert, 116 U. S. 051, 652. 
 29 L. ed. 759, 760.
 
 38 LAW OF THE STAGE COACU. 
 
 The carrier of passengers is not an insurer.' The law is that 
 carriers of passengers for hire are bound to use the upmost care 
 and diligence in the furnishing of safe, sufficient and suitable 
 coaches, harness, horses and coachmen, in order to prevent those 
 injuries which human care and foresight can guard against; and 
 if an accident happens from a defect in the coach, which might 
 have been discovered and remedied upon the most careful and 
 thorough examination of the coach, such accident must be 
 ascribed to negligence, for which the owner is liable in case of 
 injury to a passenger happening by reason of such accident/' 
 
 On the other hand, where the accident arises from a hidden 
 and internal defect, which a careful and thorough examination 
 would not disclose, and which could not be guarded against by 
 the exercise of a sound judgment and the most vigilant ovei-sight, 
 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 redress in the form of pecuniary 
 recompense. 
 
 A passenger on a coach received an injury by the breaking of 
 one of the iron axletrees. Evidence was introduced tending 
 to show that tlie proj)rietors of the coach had taken all possible 
 care and had incurred extraordinary expense in order that the 
 coach should be of the best material and workmanship; that at 
 the time of the accident, the coach, so far as could be discovered 
 from the most careful inspection and examination externally, was 
 strong, sound and sufficient for the journey; and that they had 
 uniformly exercised the utmost vigilance and care to preserve 
 and keep the same in a safe and road worthy condition. But the 
 evidence also tended to prove that there was an internal defect or 
 flaw in the iron of the axletree, at the place where it fractured, 
 about three eights of an inch in length, and large enough to insert 
 the point of a fine needle or pin — which defect or flaw appeared 
 
 ^Ladd V. Foxier, 31 Fed. Rep. 837; Palmer v. Delaware & H. Canal Co. 40- 
 
 Hun, 480. 
 *Wlule V. Bston & A. It. Co. 4 New Eng. Rep. 267. 144 Mass. 404; Potts v. 
 
 Chirarjo C-ty R. Co. 553 Fed. Rep. 010; Brcen v. New York Cent. & H. R. 
 
 Ji. Co. 11 Cent. Rep. 891, 101) N. Y. 297; FairchUd v. California Staf/e 
 
 Co. 13 Cal. 599; Treadwell v. Wliillier, 5 L. R. A. 498, 80 Cal. 574; Biryce 
 
 V. Cdlfoniiii S'ofie Co. 25 Cal. 4(58; Laicrence v. Orren, 70 Cal. 417, 420. 
 
 421; Lainr/ V. CUder, H Fa. 482, 49 Am. Dec. 533; Bedhead v. Midland 
 
 li. Go. L. U. 2 Q. li. 412, L. R. 4 Q. B. 379.
 
 DUTY TO PKOVIDE SAFE COACH NOT A-BSOLUTE. 2t> 
 
 to have arisen from the forging of the iron, and which might 
 have been the cause of the breaking; that tliis defect was entirely 
 surrounded by sound iron one quarter of an inch thick; and that 
 the flaw or defect could not possibly have been discovered by 
 inspection and examination externally. Upon this evidence the 
 proprietors moved the court to instruct the jury that it was the 
 duty of the defendants to use all possible care in providing a good 
 coach, in keeping the same in due repair, and in examining with 
 due care into its condition; and if they took such care, and the 
 accident happened without any fault or negligence on their part, 
 l)ut by reason of a defect which they could not discover, then the 
 verdict should be for them; and that the plaintitf was not entitled 
 to a verdict, unless the jury wei-e of oj^inion that there was some 
 degree of actual fault or negligence on the j)art of the proprietors 
 of the coach. The conrt refused these instructions and told the 
 jury the stage coach OM'ners were bound to provide a coach not 
 only apparently, but really, roadworthy, and they were responsible 
 for a flaw in the iron though not discoverable. The supreme 
 court reversed the judgment rendered against the proprietors and 
 i-equired the instructions requested to be given.' 
 
 Ungalls v. Bills, 9 Met. 1. See Ladd v. Foster, 'd\ Fed. Rep. 827; Topeka 
 Viiy R. Go. V. Higgs, 38 Kan. 375; Kelly v. New York & IS. B. R. C<>. 11 
 Cent. Rep. 874, 109 N. Y. 44; Potts v. Chicago City R. Co. 33 Fed. Rep. 
 610; Breen v. New York Cent. & H. R. R. Co. 11 ( ent. Rep. 891, 109 N. 
 Y. 297; Morris v. Mew York Cent. <& H. B. R. Co.d Cent. Rep. 288, 106 
 N. Y. 678.
 
 CHAPTER III. 
 
 STREET CARS. 
 
 § 7. Care Over Condition of Track and Street Cars, 
 
 § 8. Operation and Management. 
 
 § 9. Duty of Driver a7id Conductor. 
 
 §10. Vigilance Required Proportioned to Danger. 
 
 § 11. Duty to Keep ^'Exit" and "Entrance" of Car Clear and 6fe- 
 
 c^ire. 
 § 12. Contributory Negligence of Passenger. 
 
 a. Aitempting to Enter Car. 
 
 b. Position on Car. 
 
 c. Aligliting from Car. 
 
 § 7. Care Over Condition of Trade and Street 
 
 Cars. 
 
 Street railway companies are held to the exercise of the same 
 care, diligence and foresight, measured bv the danger incurred, 
 for the safety of passengers, as steam raihoad companies.' A 
 street railway company is bound to exercise the greatest care and 
 foresight, in the construction and operation of a cable line, to 
 provide for the safety of passengers.^ 
 
 Evidence that, at the place where plaintiff in an action against 
 a street railway company for personal injuries sustained by being 
 struck by another car than that on which he was riding was 
 injured, the defendant's tracks were nearer together than at other 
 places, and so inclined towards each other as to make the position 
 of persons riding upon a step at the side of the car more danger- 
 
 > Wynn v. Central Park. N. & E. R. Go. 38 N. Y. S. R. 181; Oitizem St. E. 
 'Co. V. Twinamc. 10 West. Rep. 8:i4, 111 Ind. 587 ; Terre Haute & I. R. Co. v. 
 Buck,^dijlnd.?A(i\Be(lfordS. 0. <&B. E.Co.v. RainboU, 99 Ind. 551 ; LeiJion 
 V. Cham/or, 68 Mo. 340; Douqherty v. Mmouri R. Co. 81 Mo. 330; Kelly 
 V. Hannibal c£ St. J. R. Go. 70 Mo. 009; Ledie v. Wabn.^h. St. L. & F. R. 
 Co. 3 West. Jlep. 831, 88 Mo. 55; Smith v. St. Pan', City R. Co. 32 Minn. 
 1; Kellow v. Central Ivwa R. Co. 08 Iowa, 470; Salea v. WfMeni Stage Co. 
 4 Iowa, 547; Frink v. Coe, 4 G. Greene, 550; Boace v. DabiqmSt. R. Co, 
 53 Iowa. 278; McE'roy v. Nanhua & L. R. Corp. 4 Cush. 400; Chrintie v. 
 (Jri(j{jH, 2 Cuinpb. 79; Hutch. Car. §§ 498-504. 
 
 *Watson V. St. Paul City R. Co. 42 Mian. 40. 
 
 30
 
 OPEKATION AND MANAGEMENT. 31 
 
 ous than elsewhere on the road, — is sufficient to sujDport a verdict 
 finding the defendant guilty of negligence.* 
 
 A comj)anj running its cars over a defective track is guilty of 
 negligence. A person entering a street car may presume that all 
 precautions for his safety have been taken." 
 
 A street railway company is liable to a passenger on an open 
 car, injured in consequence of a wheel-box or guard projecting 
 through the floor, which, to the knowledge of the person in charge 
 of the car, was so out of rejoair as to be liable to trip or throw 
 passengers alighting from the car.^ 
 
 A street car company which neglects a usual precaution and one 
 which is matter of common knowledge to those familiar with tlie 
 operation of horse cars, to neutralize the power of the front brakes 
 in case of mischievous interference with the rear handle by boys, 
 is liable for an injury occasioned by the driver being unable to 
 control his team, when he could have controlled it if such precau- 
 tion had been taken.* 
 
 § 8. Operation and Management. 
 
 A street car company, permitted to use the streets of a city, is 
 to a great degree as to sijch use under the control of the police 
 power of the city, and its speed may be regulated and smoking 
 tobacco within the cars may be prohibited.^ But to render such 
 a corporation liable for causing the death of a passenger there 
 must be an express statute." While the exercise of the utmost 
 human foresight, knowiedge, skill and care by railroads operated 
 by steam, in the carriage of its passengers, is required, the rule is 
 also held applicable to common carriers of passengers generally, 
 including of course, passengers upon street railways.'' 
 
 ^Oray v. Rochester City & B. R. Co. 61 Hun, 212. 
 
 'Citizens St. R. Co. v. Tmname, 10 West. Rep. 834, 11 Ind. 587. 
 
 ^Ghase v. Jamestoion St. R. Co. 38 N. Y. S. R. 9-)4. 
 
 *Dintmffv. Rochester City & B. R. Co. 33 N. Y. S. R. 730. 
 
 ^State V. Ileidenhiiin, 42 La. Ann. 483. 
 
 ^Holland v. Lynn & B. R. Co. 4 New Eng. Rep. 320, 144 Mass. 430; Gunn 
 
 V. Cambridge R. Co. 4 New Eng. Rep. 323, 144 Mass. 430. 
 '^Dougherty v. Missouri R. Co. 97 Mo. 647. See Lemon v. Chanslor, 68 Mo. 
 
 310; Citizens St. R. Co. v. Twiuame, 10 West. Rep. 824. Ill Ind. hbl; 
 
 Dougherty v. Missouri R. Co. 81 Mo. 330; Kelly v. Hannibal & St. J. R. 
 
 C> 70 Mo. 609; Leslie v. Wabash, St. L. & P. R. Co. 3 West. Rep. 824, 
 
 88 Mo. 55.
 
 32 8TKEET CARS. 
 
 There is no difference in the duty owing by the carriers of pas- 
 sengers by horse raih'oads and by steam, Botli bind themselves 
 to carry safely those whom they take into their coaches, so far as 
 human care and foresight will go.' 
 
 Steam cars may require greater care than street cars in their 
 management, and greater caution in their operation, but the pas- 
 sengers are entitled to the highest possible degree in eacli. So 
 those riding in street cars have the legal right to insist that they 
 shall be managed and operated with all possible skill, care, and 
 foresight wdiich, in their nature, they are capable of." 
 
 A street railway company is bound to exercise all possible skill, 
 care and foresight so that passengers may not be exposed to 
 danger on account of the manner in which the cars are run. "All 
 possible skill and care," implies that every reasonable precaution 
 in the management and operation of the cars be used to prevent 
 injuries to passengers; it means good tracks, safe cars, experienced 
 drivers, careful management, and judicious operation, in every 
 respect. "All possible foresight," means more than this; it means 
 anticipation, if not knowledge, that the operation of cars will 
 result in danger to passengers, and that there may be some action 
 with reference to the future, and a provident care to guard against 
 such occurrences, — a wise forethought and prudent provision 
 that will avert threatened evil, if human thought or action can 
 do so.' 
 
 The care of railway companies over their passengers is to be 
 measured by the dangers to which travelers are exposed from their 
 own helplessness, and the high rate of speed at which they are 
 transported,* but the carrier is only liable for the neglect of such 
 care.' 
 
 § 9. Duty of Driver and Conductor. 
 
 Some of the courts have, with a degree of particularity, indi- 
 
 •cated the duties imposed upon the driver of a street car. It is 
 
 ' Wyrin v. Central Park, N. & E. R. Co. 38 N. Y. S. R. 181. 
 
 * Citizens St. R. Co. v. Tmname, 10 West. 824, HI lad. 587; Topeka City R. 
 
 Co. V. IliggH, 38 Kan . 375. 
 ^Topeka City R. Co. v. IliggH, 38 Kan. 375. 
 
 *Ikdhead v. Midland R. Co. L. R. 4 Q. B. 379; 38 L. J. Q. B. N. S. 169. 
 ''Whit^ V. Boulton, Peake," N. P. 81; Crofls v. Waterhouse, 3 Bing. 321; 
 
 Christie v. Crir/gH, 2 (.'ampb. 79; Ilari'is v. Costar, 1 Car. & P. 630.
 
 DUTY OK DKIVER AND CONDUCTOR. S3 
 
 «aid that in driving horses attached to such car, lie must sit or 
 stand on the front platform or place provided for him, must 
 maintain control of the horses and car, and exercise a reasonable 
 degree of care and watchfulness to prevent collisions and injury 
 to persons crossing or traveling on or over such street.' 
 
 In an action against a street car company for damages from a 
 street car collision, evidence of the general reputation of a horse, 
 among the drivers, as vicious and fractious and unfit to drive 
 before a street car, is admissible as tending to show knowledge by 
 the company of the character of the horse, and therefore negli- 
 gence in usiii": it.^ It is no evidence of ne^ilect in the driver of a 
 horse car that he whipped up his horses in order to start the car 
 unless there appears to be something unusual in the manner of his 
 whipping." 
 
 It is the duty of a driver of a horse car when signaled to 
 stop, to ascertain what passengers intend to alight at that place, 
 to wait a sufficient time to enable them to alight in safety, and to 
 see and know that no passenger is in the act of alighting or is 
 otherwise in a position which would be rendered perilous by 
 starting the car.* 
 
 Stopping a train drawn by a dummy engine, with no regular 
 stopping place, for a reasonable time on a request to stop, is not 
 the full measure of the conductor's duty, but before starting he 
 must see that no passenger is in the act of alighting or in a posi- 
 tion that will be perilous if the train starts.^ 
 
 The releasing of the brake and whipping up of the horses on a 
 street car, so as to give the car a violent jerk before coming to a 
 stop, after having been signaled so to do, is negligence on the part 
 of the driver which will justify a recovery from the company by 
 one thereby thrown from the car and injured.* 
 
 A street railway company is liable for an injury to a passenger 
 caused by a want of ordinary care or skill on the part of the 
 
 ^Brooks V. Lincoln St. B. Co. 22 Neb. 816. 
 *Wonntd9)'fv. Detroit Qity R. Go. 75 Mich. 472. 
 
 '^Mrth Hudson County R. Co. v. Rochai, 8 Cent. Rep. 345. 49 N. J. L. 445. 
 *Birmingham U. R. Co. v. SmitJi, 90 Ala. 60. 
 ^Highland Ave. & B. R. Co. v. Burt (Ala.) 13 L. R. A. 95. 
 *Medler v. Atlantic Ave. R. Co. 36 N. Y. S. R. 89, aff'd in 126 N. Y. 669, 
 ° mera. 
 
 3
 
 34 STREET CARS. 
 
 driver of the car, — such as starting his car without giving a pas- 
 senger a reasonable opportunity to take a safe position; ' or start- 
 ing up with a sudden jerli after he has slowed up, upon being 
 signaled by one wishing to get on.* 
 
 A woman who gets off the front platform of a street car when 
 the rear platform is crowded, the di-iver of which whips up hif^ 
 team when she is in the act of stepping down fi-om the car, throw- 
 ing her under the wheels and crushing her arm, may recover 
 from the company for such injury.^ It is the duty of those in 
 charge of a street passenger railway car to stojD the car a sufficient 
 length of time to give a passenger reasonable 'opportunity to 
 alight in safety at the point of his destination. If a passenger 
 on a street car is evidently crippled, iniirm, or very young, the 
 duty of the carrier towards him wliile alighting must be per- 
 formed with due regard to such apparent condition.* 
 
 A refusal to charge that a street ear company could not be held 
 liable, unless its employes failed to stop the cars quickly, as they 
 could have done after the plaintiff got into a position of peril in 
 attempting to board it, would be proper, as a liability would exist 
 against the company if the plaintiff was carelessly thrown from 
 the car, and precipitated to the ground, and there received sub- 
 stantial injury.* 
 
 It is not negligence on the part of a street railway company not 
 to stop a car for a young man who attempts to board it ; * as those 
 in charge of a street car have the right to assume that one who 
 liails the car desires it to stop and intends not to board it while in 
 motion, and owe him no duty to warn him oft", even if they 
 believe he intends to board the car before it has stopped and 
 doubt his ability to do so.^ 
 
 Running street cars at rapid speed without signal or warnings 
 over a sidewalk crossing, where a car, bound in the opposite 
 direction, is discharging passengers, and where the view of the 
 
 ^Central R. Co. v. Smith (Md.) April 9, 18'J1. 
 
 *M<jrwii V. Broadway &S A. R. Co. 28 N. Y. S. K 498. 
 
 'Coad Line li. Co. v. Bonton, 83 Ga. ^87. 
 
 *Ri(leit.hmr v. Kansas City Cable R. Co. 103 Mo. 270. 
 
 ^Morimn v. Broidway c£ »S'. A. R. Co. 28 N. Y. S. R. 498. 
 
 *Moi/lan V. Second Ave. R. Co. 37 N. Y. S. R. 871. Rev^ 35 N. Y. 8. R. 
 
 (544. 
 Ulolohan v. Washinr/ton d O. R. Co. (D. C.) 18 Wash. L. Rep. 751.
 
 DUTY OF DRIVER AND CONDUCTOR. 35 
 
 approaching train is obstructed by the car, from -which the pas- 
 sengers are alighting, is evidence of neghgence to be submitted 
 to the jury, although the car was not running at a rate of speed 
 exceeding that allowed by ordinance.* 
 
 A mistake of the driver in supposing that a passenger was 
 drunk, when the latter had ridden a considerable distance without 
 misbehavior, and had been guilty of none except vomiting, occa- 
 sioned by illness, caniiot excuse the company for ejecting him and 
 leaving him uncared for on the street in inclement weather ; and 
 when a passenger is shown to have been stricken with apoplexy 
 and is removed from a street car by the driver, in a helpless con- 
 dition, and laid in the street, on a bleak, drizzling day, and there 
 abandoned, with no effort to procure him attention, the company 
 is liable.'' 
 
 A conductor of a street car is not justified for any cause in 
 ejecting a person from his car under circumstances which make 
 such ejection dangerous to life or limb.^ And a street car com- 
 pany is liable for the act of its driver in attempting to put off a 
 boy who is trespassing upon the car, causing him to jump off 
 receiving injuries resulting in his deatii, if the driver's acts were 
 such as to cause a belief that ho was about to inflict bodily punish- 
 ment upon the boy.* But a street car comj)any is not liable for 
 the conduct of passengers who push a boy off a platform as they 
 crowd out of the car, unless the conduct of tlie passengers was 
 unusual and disorderly and could have been prevented by the per- 
 sons in charge.^ Isor is a person entitled to damages for ejection 
 from a street car without unnecessary force or violence, where the 
 ticket presented by him is a transfer ticket intended for use on 
 another line and he himself was mainly in fault in regard to the 
 mistake in such ticket.* 
 
 About half past nine o'clock at night, the plaintiff boarded 
 a street car to put her daughter on, intending to at once leave the 
 car herself and walk home. The rear platform of the car was 
 
 Whicago City R. Co. v. Robinson, 4 L. R. A. 126, 127 111. 9. 
 ^Conolly V. Crescent City R. Co. 3 L. R. A. 133, 41 La. Aan. 57. 
 'Chicago City R. Co. v. Pelletier, 33 111. App. 455. 
 *Hoga)i V. Central Park, N. & E. R. R. Co. 2G Jones & S. 322. 
 ^Randall v. Fntnkford, 8. & P. G. Piss. R. Co. 139 Pa. 484. 
 ^Carpenter v. Washington & Q. R. Go. 121 U. S. 474, 30 L. ed. 1015.
 
 36 STKEET OAKS. 
 
 crowded, so she got on the front platform, which was not an 
 unusual thing for passengers to do. She told the driver, who was 
 a boy, that she was going to put the child on and then get off. 
 She saw her sister in the car and put the child in her custody, 
 and without entering the car started almost immediately to get 
 off. In the meantime, the car had gone on for a little distance, 
 but before plaintiff started to get off the driver stopped the car 
 for her. She stepped first from the platform to the first step 
 mth her right foot, held on to the guard-rail with her right hand 
 and put her left foot to the ground, her right foot being still on 
 the step ; when in the act of stepping down with her left foot, 
 the driver whipped up the mules without any notice, and the 
 sudden jerk of the car threw her around against it and she fell. 
 She held on to the guard-rail with her right hand, which caused her 
 left arm to be thrown under one of the wheels of the car, where 
 it was badly crushed ; she was dragged a little distance. She was 
 about two months with child at the time she was hurt, and had a 
 miscarriage afterwards caused by this shock and injury. A find- 
 ing for the plaintiff was sustained on appeal.* 
 
 A child nine years of age who was carried several blocks, the 
 driver (who was also conductor) knowing him to be on board, was 
 a passenger whether he intended to pay fare or not, and was enti- 
 tled to the diligence due to passengers of his age and discretion. 
 It was said that it was negligence for the driver needlessly to 
 withdraw from the front platform, leaving the plaintiff and 
 another boy thereon, and it was negligence not to be there ready 
 to stop the team when the plaintiff fell or Avas thrown by the other 
 boy off the platform upon the track in front of the car, the two 
 boys engaging in a scramble to drive the horse, the reins having 
 been left within their reach. Though it is apparent that the 
 plaintiff contributed to the injury, the court declined to rule on 
 the facts in evidence, that the damages were excessive, the injury 
 being immeasurable by a court as to pain and suffering, and the 
 damages found being $5,000." 
 
 ^10. Vigilance Required in Proportion to Danger. 
 
 A street car conductor is not required to exercise critical skill 
 
 ^Coaat LincR. Go. v. Boston, 83 Ga. 387. 
 ^Metropolitan St. R. Co. v. Moore, 83 Ga. 453.
 
 VIGILANCE KEQUIEED IN PKOPOKTION TO DANGEK. Oi 
 
 or judgment while in the performance of his ordinary duties in a 
 crowded car, in observing closely the capacity or intelligence of a 
 particular passenger, but is held only to that degree of discrimi- 
 nation which a reasonably prudent and observing man would exer- 
 cise under the circumstances/ 
 
 It is not negligence on the part of the conductor of an open 
 street car not to warn a passenger standing on the platform of 
 any possible danger of being struck by a passing car, where the 
 distance between the parallel tracks is such tliat no accident from 
 that cause has occurred in the twenty years' use of open cars on 
 such tracks." 
 
 A street railway company is not liable for personal injuries to a 
 passenger, occasioned by a team on another track suddenly turn- 
 ing so as to strike him with the end of a piece of timber project, 
 ing from the rear of the wagon, where the driver of the car had 
 it under control and was exercising vigilance, but had no reason 
 to anticipate such movement of the team.' Indeed the care is 
 only to be proportioned to the danger involved, and therefore a 
 street railway company is not chargeable with negligence, in per- 
 mitting passengers to place baskets between their feet, and pas- 
 sengers attempting to pass over the obstructions assume the slight 
 risk and danger of so doing ;* and a street car driver who sees a 
 gate at a railroad crossing open has the right in the absence of 
 any notice of danger to suppose that the track is clear and that it 
 id safe to cross f but the law demands of a gripman on a cable 
 car, vigilance corresponding to the responsibility placed upon him;^ 
 and the driver of a street car is guilty of negligence in approach- 
 ing a crossing of another road on which cars run in but one direc- 
 tion and approach the crossing on a down grade, without looking 
 towards the crossing or in the direction from which a car is likely 
 to approach on the other road.'' 
 
 ^Smdford v. Bestonmlle, M. <& F. Pass. R. Co. 136 Pa. 84. 
 
 ^Craighead v. Brooklyn City R. Co. 123 N. Y. 391. 
 
 -Alexander v. Rochester C. & B. R. Co. 38 N. Y. S. R. 254. Rev'g 35 N. Y. 
 
 tS. R.701. 
 *Va}iWi/)k'e v. Brooklyn City R. Co. 46 Hun, 564. 
 
 * W/ulan V. Mw York, L. E. tfe W. R. Co. 38 Fed. Rep. 15. 
 
 * Potts V. Chicago City R. Co. 3 J Fed. Rep. 610. 
 ''Schneider v. Second Ave. R. Co. 39 N. Y. S. R. 370.
 
 38 STKEET CARS. 
 
 So a street car company may be found guilty of negligence in 
 rmining its cars at a high rate of speed across a sidewalk, upon a 
 curve from the street into its storage barns, and in failing to stop 
 at the signal of a person on the sidewalk wishing to take passage 
 upon the car, who was run into and injured.* 
 
 § ii. Duty to Keep Exit and Entrance of Car 
 Clear and Secure. 
 
 A recent case presented, not only the obligation resting upon 
 the carrier of passengers to keep the car in a safe condition, but 
 the care required in keeping its platforms for entrance and exit 
 free from unnecessary obstruction by passengers. The plaintiff 
 when she got out of a street car was carrying her child on her 
 left arm, and she attempted to get hold of the dasher with the 
 other hand, but this she could not do, as a passenger was standing 
 on the platform leaning against it. There were in fact two pas- 
 sengers on the platform, one on each side of the conductor, and 
 some four or five passengers only inside of the car. In getting 
 down, the platform being thus obstructed, the plaintiff's foot 
 slipped on the step by reason of ice thereupon, and she fell and 
 was injured. It appeared that there had been a storm on the 
 previous day but none on that day. It is alleged that this ice had 
 been suffered to remain on the step from the previous day. It 
 was there when the plaintiff got on the car and she slipped in 
 getting in. Thus there were two specific causes of complaint : 
 one was, that when there was ample room for all the passengers 
 to ride in the car the defendant permitted one to stand on the 
 platform in such a position that the plaintiff could not avail her- 
 self of the security and protection she would otherwise have 
 enjoyed; tlie other cause of complaint was the omission to remove 
 froju the step the ice formed during tlie stoi-m of the previous 
 day. It was tlie unquestioned duty of the defendant as a carrier 
 of passengers, not only to transport them safely, but also to pro- 
 vide reasonably safe means for their getting on and oft' the car, 
 and the is? U(j was in this case whether it did so or not. It was 
 submitted to the court whetlier this was a question of fact for the 
 jury to find, or was it tlie duty of the court to pass u^^on it as a 
 
 UyT,ok V. a^ntral Park. N. cC IH It. R. G). 3> N. Y. S. R. 591.
 
 CONTBIBUTOKT NEGLIGENCE OF PASSENGER ON 8TKEET CAR. o\) 
 
 matter of law. Upon this point it was ruled that under the evi- 
 dence, the plaintiii" was not so clearly guilty of contributory neg- 
 ligence in the manner in which she got down from the platform 
 as to authorize the court to declare it to be such as matter of law. 
 Her previous knowledge of the condition of the stop, and whether 
 it was reasonably prudent for her to attempt to alight in the way 
 and manner in which she did were questions of fact for the jury. 
 The remaining contention related to the alleged negligence of the 
 defendant, and it was said that while it may not be negligence 
 jjer se to permit passengers to stand on the platform, yet it is 
 frequently very annoying to all persons in getting in and out of the 
 cars, and to ladies it is especially oli'easive. If in the case under 
 ■consideration the defendant permitted a passenger to remain 
 standing on the platform in such a position as to deprive the 
 plaiutitf of that reasonable support which would have protected 
 her from injury, and did not furnish other suitable protection, it 
 was held that the jury is the proper tribunal to lind whether the 
 defendant was thereby guilty of negligence. If the ice on the 
 step caused the plaintiff to fall or contributed thereto, it was 
 proper for the jury to consider whether under all the circum- 
 stances proved it was suffered to remain there for an unreasonable 
 length of time. It may be impossible in the winter to prevent 
 deposits on the step by falling snow or from the feet of persons 
 entering the car, and which in either case may result in a forma- 
 tion of ice. The main question in regard to this as submitted to 
 the jury was wlicther it remained there for such time and in 
 such form, as to establish the negligence of the defendant, and 
 whether this negligence contributed to the injury of the plaintiff. 
 The evidence was considered as sufficient to send the case to the 
 jury with proper instructions.* 
 
 § 1^. Contrihittory JVegUgence of Passenger. 
 
 Want of care on the part of a passenger must contribute materi- 
 ally and directly to the infliction of injury to defeat his right of 
 action tlierefor.' 
 
 ^Nedie v. Second & Third Sts. Pass. R. Co. 4 Cent. Rep. 609, 113 Pa. 300. 
 ^Cilizeiis'Si. B. Co. v. Twiname, 10 West. Rep. 824, 111 lud. 587.
 
 40 STREET CARS. 
 
 Where an injury is received by a person, about to become Sb- 
 passenger, before placing himself in the carrier's hands, it is incum- 
 bent upon such passenger to show positive negligence on the part 
 of the defendant or its servants before he can recover damages^ 
 and unless he can show such positive negligence it is the duty of 
 the court to enter a nonsuit. Thus in a recent case the plaintiff 
 had given the conductor the signal to stop and as the car ap- 
 proached the crossing it "slowed up," but Ijefore it had fully 
 arrived at the place where the stop was to be made, and while it 
 was still in motion he attempted to enter by the front platform. 
 He succeeded in getting on the lower step with one foot only,, 
 and before he could establish himself there, a sudden motion of 
 the car forward threw him off and he fell under the wheels. No 
 act of negligence on the part of the company or its servants being 
 shown, a nonsuit was granted, and as there was no evidence that 
 the sudden start or jerk which threw the plaintiff off was in any 
 way attributable to the driver, this action was affirmed on appeal.'' 
 
 Failure of a street railway passenger to exercise ordinary care, 
 which directly contributes to an injury which she sustains by the 
 sudden starting of the car while she is attempting to board it, wUl 
 prevent a recovery unless her peril could have been discovered 
 by the driver in time to avoid the accident.* But a person wish- 
 ing to take a street car is not guilty of negligence in standing 
 upon the sidewalk to await its coming, although at that point the 
 tracks of the company cross the walk to reach the company's 
 barns, and there is a possibility that a car, in going to or from the 
 barn, will pass over the place where he is standing.* 
 
 A street railway company is not liable for personal injuries 
 sustained by a young man coming in contact with a truck in the 
 street while attempting to board a moving car, where the speed 
 of the car was not accelerated after he attempted to get aboard,, 
 and neither the driver nor the conductor saw the danger.* 
 
 T!ie rules applicable to persons getting on and oil cars operated 
 by steam are not to be applied in all their rigor to street railways 
 operated by horse power. A person having the free use of his 
 
 K'^tufjer V. Ridge Ave. Pass. R. Co. 11 Cent. Rep. 427. 119 Pa. 70. 
 
 ^Central R. Co. V. Smilh (Md.) April 9. 1891. 
 
 ^O'Tode V. Central Park N'. <C- PJ R. R. Of. 35 N. Y. S. R. rm. 
 
 *M<jyl'in V. Seojiid Ave. R. Co. 37 N. Y. S. R. 871, rev'g 3.3 N. Y. S. R. 644.
 
 CONTRIBUTOKT NEGLIGENCE OF PASSENGER. 41 
 
 faculties and limbs and having given proper notice of his desire 
 to be taken up, the cars having slackened up in the usual manner, 
 it is not negligence for him to attempt to get on while it is mov- 
 ing slowly.' Trying to board a street car in rapid motion is negli- 
 gence." But it is not negligence for a young man to attempt to 
 enter a street car while it is slowly moving.^ 
 
 Attempting to get upon a street car moving at the rate of four 
 miles an hour, without signalling to the driver, is not negligence 
 as a matter of law, but presents a question for the jury.* It is 
 not negligence jper se for a person to get on or off a street car 
 while it is in motion, but the question is ordinarily one of fact 
 for the jury.* That a street car is propelled by electricity does 
 not make it negligent as matter of law to attempt to get aboard it 
 while in motion.* 
 
 Whether a person attempting to get upon a street car is guilty 
 of negligence in trying to pull himself up to the car after he has^ 
 lost his hold upon the rail attached to the body of the car and has 
 slipped off the step, while he is holding to the rail on tlie rear 
 dasher, is a question for the jury.'' 
 
 A street railway is not liable for a person injured when it 
 appears that when plaintiff signalled conductor to stop the car, the 
 latter rang the bell for that purpose and the car immediately 
 began to slow down, and plaintiff, without waiting for the car to 
 stop, stepped upon the car while it was in motion.* 
 
 Where one in attempting to board a street car places himself 
 between the tracks when he sees cars approaching from opposite 
 directions, and is struck, there can be no recovery on account of 
 his contributive negligence,' and so a person attempting to get on 
 a steam street railway, with a plank about six feet long on his 
 
 ^Conner v. CiUzens St R. Co. 2 West. Rep. 625, 104 Ind. 62; Murphy v. 
 
 Union B. Co. 118 Ma.ss. 228; Wi^att v. Citizens R. Co. 55 Mo. 485. 
 ^Cliicago City R. Co. v. Delcuurt, 33 111. App. 430. 
 ^Moylan v. Secmd Ave. R. Co. 37 N. Y. S. 11. 871, rev'g ou other grounds 85- 
 
 N. Y. S. R. 644. 
 *Briggs v. Union Si. R. Co. 148 Mass. 72. 
 ^Scluicherl v. St. Paul Cdy R. Co. 42 Miun. 43. 
 ^Corlinv. West End Si. R. Co. 154 Mass. 197. 
 
 ''Austin V, Ritz, 72 Tex. 891; Briggs v. Union St. R. Co. 148 Mass. 73. 
 ^Harmon v. WasJiington & O. R. Co. 8 Cent. Rep. 738, 6 Macke>, 57. 
 *I)avenpoi-t v. Brooklyn City R. Co. 1 Cent. Rep. 506, 100 N. Y. 63^.
 
 42 STREET CARS. 
 
 shoulder, which is struck by a car on a parallel track as ho turns 
 the plank at right angles to the tracks, is himself in fault, and 
 cannot recover for injuries thereby occasioned.' But although a 
 person may have been guilty of negligence in attempting to get 
 on a moving street car, where tlie driver could have avoided the 
 injury by the exercise of reasonable care in stopping the car, the 
 company will be liable for the injury." 
 
 Upon a special finding of a jury, the plaintiff stood upon 
 the crossing at the usual place where passengers were taken 
 up; one car passed rapidly without slackening its sjieed; seeing 
 the next approaching at a rai^id rate he gave notice to the person 
 in charge that he desired to be taken up; the speed of the car was 
 slackened, so that when the rear end came opposite the crossing 
 it was moving slowly; instead of giving any sign that the car was 
 not to take passengers the speed of the car was slackened, so that 
 it was moving slowly when he attempted to get on, and while he 
 was getting on in the manner in which the defendant generally 
 received such passengers the car was " jei'ked " forward. It was 
 lield as matter of law that having given notice of his desire to be 
 taken aboard the car, and its speed having been slackened so that 
 it was apparently safe, under ordinary circumstances, it was not 
 negligence in the plaintiff to attempt to get on while the car was 
 so in motion.' 
 
 "Whether a passenger is chargeable with negligence contributing 
 to the injury for which he sues, is a question of fact for the jury. 
 It is not negligence as matter of law for him to attempt, while the 
 street car is moving slowly, to leave the rear platform and run 
 alongside the car to the front, if the rear platform is overcrowded, 
 and the rules of the company allow passengers to ride in front. 
 Nor is he bound to know that his attempt is dangerous, because 
 the street has become slippery through the neglect of the company 
 to remove the snow.* 
 
 '7?7/;-d V. N>:w Orleans City & L. R. Co. 43 Ln. Ann. 823. 
 
 » Woodard v. '^cst Side St. R. Co. 71 Wis. 623. 
 
 ^Conner v. Citizens St. It. Co. 2 West. Rep. 625, 10.1 Ind 63. See also 
 CliirtKji) City R. Co. v. Mumfovd, 97 111. -ICO; Murphy v. Union li. Co. 118 
 Mrtus. 228; Wyatl v. Citizenn R. Co. r)5 Mo. 485. 
 
 *Dij:on V. Brooklyn City <& N. R. Co. 1 Cent. Kep. 293, 100 N. Y. 170.
 
 CONTitlBUTORY IJEGLIGEKCE OF PASbEiSoEK. 43 
 
 b. Position on Car. 
 
 Wliere special prominence has been given by evidence as to tlie 
 proper use of holding straps by passengers on street cars, an 
 instruction is not objectionable which calls attention to the duty 
 of the plaintiff to avail liimself of their aid; where, under other 
 instructions, the whole subject of his conduct as to this feature as 
 well as the other acts alleged as negligence on his part, are prop- 
 erly submitted to the jury.' 
 
 "The front platform of a crowded street car is not a place of 
 knoM^n danger so as to render it negligence per se, either upon the 
 part of the company or an adult passenger or one reasonably com- 
 petent to care for himself, to permit him to occupy the platform 
 when the car is in motion." A street railway comjDany has the right 
 to carry passengers on the platforms.^ It is not, as matter of law, 
 negligence for one to stand upon the front platform of a moving 
 <}ar;* nor to attempt to get on to the front platform of a moving 
 car.* Nor is it negligence per se for a person to get on or off a 
 street car when in motion, particularly if the horses drawing be 
 moving slowly on a walk.^ And it is not negligence per se to 
 ride on a foot board of a horse car.'' 
 
 The duty of a carrier in transporting passengers, while it is one 
 which calls for a high degree of care, is not one amounting to an 
 absolute insurance of safety. The carrier has the right to adopt 
 and enforce reasonable rules for the safety of its passengers, and 
 to these, when made known to him, it is a duty of the passenger to 
 conform ; but the carrier has no control of the person of the pas- 
 senger. The passenger may adapt his conduct to the rules or 
 directions of the carrier assigning him to a position in the convey- 
 
 ^Dovgherty v. Missouri R. Co. 97 Mo. 647. 
 
 ''Snndford v. Hestonville, M. & F. Pass. R. Co. 116 Pa. 84. 
 
 'Aiithorities cited in Topeka City R. Co. v. Higgs, 38 Kan. 375. 
 
 *Nolan V. Brooklyn City & N. R. Co. 87 N. Y. 63; Goodrich v. Pennsylvania 
 <£ N. Y. Canal & R. Co. 29 Hun, 50, 53. 
 
 ^Mowrey v. Central City R. Co. 66 Barb. 43, affirmed 51 N. Y. CGG- Maker v 
 Central Park, N. & E. R. R. Co. 67 N. Y. 52, 54. 
 
 ^Eppendorf v. Brooklyn City c£ N. R. Co. 69 N. Y. 195; Munroe v. IJiird 
 Ave. R. Co. 18 Jonea & S. 114, 115; Cumberland Valley R. Co. v. Mauyans 
 61 Md. 53. 23 Am. L. R<'^. N. S. 518, 5;8, note; Day v. Brooklyn City R 
 Co. 13 Hun, 435. 76 N. Y. 593; BUcher v. New York Cent. R. Co 20 N 
 Y. Week. Dig. 384. 
 
 ''Qeitz V. Milwaukee City R. Co. 72 Wis. 307.
 
 •ii STREET CARS. 
 
 ance, assuming tliat thej are in discharge of tlie duty which the- 
 carrier owes him, and that he may take such position without 
 contributory negligence, unless to do so would be an inexcusable 
 failure to use his senses or a disregard of all care for his personal 
 safety. Where the position assigned him exposed him to risk of 
 danger created by the defendant of w^iich he did not know, and 
 of which no warning was given, he cannot be charged in assum- 
 ing such position, witli contributory negligence if he suffers an 
 injury from his location. One who takes a position upon the 
 footboard of a street car running upon a public highway may be 
 reasonably charged with knowledge of the danger incurred from 
 collision with ordinary vehicles upon the highway, but where he 
 has no personal knowledge that the single track — existing at the 
 point where he assumes such position — at a point which he must 
 pass, runs by the side of another track, and that he will be endan- 
 gered if other persons shall occupy the footboard of a passing 
 car, while he may be chargeable with assuming the risk of col- 
 lision with ordinary vehicles, he will not be chargeable with the 
 danger from passing cars. 
 
 When the plaintili' was invited to enter the street car the seats 
 and platforms of the car were filled and he was obliged to take 
 his place with others on the footboard running longitudinally 
 ^vith the open car. The roof of the car was supported by 
 stanchions or posts opposite to one of which the defendant placed 
 himself. The plaintiff was not shown to be aware that the track 
 became a double one elsewhere. It was the practice of the com- 
 pany to carry passengers on the footboard of these cars and under 
 such circumstances the mere fact of riding on the platform of a 
 street car is not conclusive proof of negligence.' 
 
 Where a street railway company undertakes to carry large 
 numl)ers of people greatly in excess of the seating capacity of its 
 cars and permits passengers to ride on the platforms and foot- 
 boards without objection and collects fare from them and stops 
 its cars when in such a crowded condition that no seats are 
 obtainable and permits passengers to get upon them to be carried 
 from place to place and when the cars are in such a crowded con- 
 
 ^Nolan V. Brnoklyn City iSc N. R. Co. 87 N. Y. 63; Mecsel v, Lynn d:B. R Co. 
 b Allen. 2:H; Fleck v. Union R. Co. 134 Mass. 481.
 
 CONTKIBUTOBY NEGLIGENCE OF rASlSE.NUEli. 45 
 
 dition with passengers riding on the footboards runs them so near 
 the intersection of a switch with the main track tliat they cannot 
 pass without injury to passengers — the company is guilty of gross 
 neghgence.' The question whether a street car passenger is 
 guilty of negligence in sticking his arm out of the window is a 
 question of fact to be determined by the jury according to the 
 circumstances of the case.* 
 
 In an action against a street car company for personal injuries 
 from being hit by a post in the street while standing on an out- 
 side step of the car, plaintiff's testimony showing that he was 
 crowded and was endeavoring to go to the forward part of the 
 car to obtain a seat; where defendant's evidence shows that in 
 fact plaintiff need not have been on the outside step, as there was 
 room for him close by in a seat, — defendant is entitled to a charge 
 that " if plaintiff left his seat unnecessarily and voluntarily and 
 while the car was in motion, and without requesting the con- 
 ductor or driver to stoj) the car, and when upon the step of tne car 
 he swung himself outside of the line of the step of the car, and 
 Avhile so doing came in contact " with the post wliich caused the 
 injury, defendant is entitled to a verdict ; and defendant is enti- 
 tled to this charge, although the question of the negligence of 
 plamtiff is submitted to the jury in general terms.' 
 
 c. Alighting Froifn a Car. 
 
 A street car passenger who has signaled for the car to stop so 
 he may alight is not guilty of contributory negligence in going 
 upon the step of the car when it slows up, as he has a right to 
 expect that it will stop ; and where it starts up again with a jerk 
 before stopping, and he is thrown off, the accident is not the 
 result of contributory negligence/ 
 
 The liability of a street car company to a woman injured while 
 trying to get off a car as it was being driven into the car barn is 
 not affected by want of knowledge, either of the driver or the 
 company, that she had been insulted in the barn when driven in 
 on a previous occasion.' 
 
 ^T<ypeka City R. Co. v. Higgs, 38 Kan. 375. 
 ^Francis v. New York Steam Co. 114 N. Y. 380. 
 'Coleman v. Second Ave. R. Co. 114 N. Y. 609. 
 *lIannon v. WasJiington c6 G. R. Co. 7 Mackey, 255, 
 KAshton V. Detroit City R. Co. 78 Mich. 587.
 
 46 STREET CARS. 
 
 While the street car was in motion, the defendant stepped 
 from the front platform, with his back towards the horses, retain- 
 ing his hold on the dash-board. The forward movement pulled 
 him backward, throwing him on the ground. Under such cir- 
 cumstances, the case was properly taken from the jury, as the 
 contributory negligence of the defendant would bar a recovery.' 
 
 A passenger on a cable street car, who, getting ofi on one side 
 where it is safe, and then, without looking, turning sharply 
 around, passes the rear of the car, across the street, and steps 
 upon the other track without looking, which he has opportunity 
 to do, and is struck and injured by a car on such track, is guilty 
 of contributory negligence barring a recovery.'' 
 
 A street car company is not liable for injuries to a boy eight 
 years of age, sustained by his stepping off the front platform 
 where he was standing while the car was in motion, without tho 
 knowledge of the conductor, where the interior, as well as both 
 platforms, was crowded.^ 
 
 No recovery can be had against a street railway company for 
 the death of a boy twelve years of age who was run over by ont- 
 of its cars, as without care on his pai't he jumped off the platform 
 of another car upon which he had been riding without paying- 
 fare.* But failure of a passenger on a street railway to exercise 
 the best judgment and prudence in attempting to get off in case 
 <jf apparent danger will not relieve the carrier from liability, if it 
 has negligently brought the passenger into apparent peril.* 
 
 ^Beattie v. Citizens Pass. E. Go. (Pa.) 1 Cent. Rep. 633. 
 ^Btiz'iy V. Philadelphia Traction Co. VZQ Pa. 559. 
 'Sandford v. Hesiomille, M. & F. Pass. R. Co. 136 Pa. 84. 
 *nogan v. Central Park, K & E. R. R. Co. 124 N". Y. 047. 
 ''Shankenbe/y v. Metropolitan St. R. Co. 40 Fed. Rep. 177.
 
 CHAPTER ly. 
 
 STEAM TIATLRO AD— OPERATIVE MACHINERT AND CARRIAGES. 
 
 § 13. Rule of Diligence Applied to Carriers of Passenqera by Steam. 
 
 § 14. Security of Road-hed, Macliinery and Cars. 
 
 § 15. Latent Defects — Utmost Skill and Care. 
 
 § 16. Responsibility for Negligence of Manufacturer, 
 
 § 17. Reputation of Manufacturer no Defense to Carrier; Tests 
 Required. 
 
 § 18. Rule as to Adoption of Neiu Improvements for Safety of Pas- 
 sengers. 
 
 § 19. Inspection of OjJerative 3fac1iinery, Appliances and Trach, 
 
 % 13. Rale of Diligence Applied to Carriers of 
 Passeizgers by Steam. 
 The traveler accepts only the risks, incident to the mode of 
 travel he adopts, which cannot be avoided by the carrier of pas- 
 sengers by the use of the utmost degree of care and skill in the 
 preparation and management of the means of conveyance. In 
 the application of this rule, it is evident, that the same precaution 
 will not exonerate the cari'ier of passengers from responsibility in 
 every mode of travel. The foresight and preparation which 
 would sudice to satisfy the rule in one method of conveyance by 
 land or water would be defective in another, and the restricted 
 examination, which, in connection with the high reputation of a 
 road builder, engineer or operative material constructor, ought to 
 satisfy the scruples of the most cautious person, as to the safety 
 and security of a road bed, equipments and of its vehicles, designed 
 to run at moderate speed over a level road, would not satisfy any 
 reasonable man as to the sufficiency of another intended to carry 
 a great weight, and to be propelled by steam at great speed 
 around curves and over torrents. Still less should an inspection 
 sufficient for a stage coach, be applied to operative machinery and 
 cars to be used when imperfection involved destruction of life or 
 peril to limbs.' 
 
 ^Ucrjeman v. Western R. Corp. 13 N. Y. 9. 
 
 47
 
 48 STEAM KAILROAD OPEKATIV'E MACHINERY AND CARRIAGES. 
 
 When carriers undertake to convey passengers by the powerf al 
 but dangerous agency of steam, public policy and safety require 
 that they be held to the greatest possible care and diligence.' As 
 greater risk to life and limb is incurred, in the use of steam, or 
 any other artificial power employed for the purpose of obtaining 
 great rapidity, the degree of care in securing safe vehicles of car- 
 riage, appHances and roadbed, is proportionately increased." But 
 a railroad company is not absolutely responsible for the safety of 
 its passengers, but is only liable for negligence in respect to the 
 •condition of its railroad, cars and other appliances.^ They are 
 not insurers of the lives or persons of their passengers, but are 
 merely bound to the exercise of the highest degree of care and 
 diligence in the conduct of their business, and are accountable for 
 the slightest negligence which imperils life.* 
 
 ^ 14' Security of Road-hed, Machinery and Cars. 
 
 The degree of care required from such a carrier over the road- 
 l>ed, operative machinery, and the appliances and apparatus which 
 constitute the means of such rapid conveyance and transportation, 
 iis the utmost vigilance which human prudence and foresight will 
 
 ^Searle v. Kanawha & 0. R. Co. 32 W. Va. 370. 
 
 * Nash rifle c£ G. E. Co. v. Elliott, 1 Coldw. 611; Nashville &D. R. Co. v. Jones, 
 9 Iloibk. 27. 
 
 ^DUi'ol.i V. Manhattan R. Co. 29 N. Y. S. R. 149; McPadden v. New York 
 Cent. R. Co. 44 N. Y. 478: Keith v. Pinkham, 43 Me. 501; Sairyer v. Han- 
 nibal & St. J. R. Co. 37 Mo. 240; Maury v. Talmadge, 2 McLean, 157; 
 S'Ulivati V, Philadtlphia & R. R. Co. 30 Pa. 234; Palmer v. Delaware & 
 U. Canal Co. 120 N. Y. 170; Meier v. Pennsylvania R. Co. 64 Pa. 
 22"); MrCla.ry V. S'oux City <fe P. R. Co. 3 Neli. 45; Fairchildv. Califoi-nia 
 Starje Co. 13 Cal. f)'J9; Burns v. Cork & B. R. Co. 13 Ir. C. L. R. 543; 
 Ford V. London &ti. W. R. Co. 2 Post. & F. 730; Pym v. Great Nortliern 
 R. Co. 2 Fust. & F. 619; R-adhead v. Midland R. Co. L. R. 2 Q. B. 412; 
 Merwin v. Afarihattnn R. C>. 48 Iliin, 608; Simmons v. New Bedford, V. 
 & N. S. B. Co. 97 Mass. 361; Ingalls v. Bdls, 9 aiet. 1. 
 
 -*Ru'herford v. Shreveport & II. R. Co. 41 La. A.nn. 793; Cornwall v. Sullivan 
 U. Co. 28 N. W. 161; Taylor v. Grand Trunk R. Co. 48 N. H. 301; Jiall 
 V. Connecticut Ricer S. B. Co. 13 Codh. 319; Fuller v. Nangatnck R. Co. 
 21 Conn r)")7, 576; Maverick v. Kighth Ave. R. Co. 36 N. Y. 378; Carroll 
 V. Sta/ea I.4and R. Co. 58 N. Y. 126; Sullivan v. Pkiladelphia & R. R. 
 Co. 30 I'a. 234; Toledo, IV. & IK. R. Co. v. Apperson, 49 111. 480; Pitts- 
 hnrq. C. & St. L. R. Co. v. T/wmpson, 56 111. 13S; Wheaton v. North 
 Bcarh & M. R. Co. 36 Cal. 590; Union Pae. R. Co. v. Hand, 7 Kan. 380, 
 8!)2, Jef'-rs'inville R Co. v. Hendricks, 26 Ind. 228; JohnS'in v. Winona & 
 St. P. R Co. 11 Minn. 296; Virqitiia Cent. R Co. v. Sanger, 15 Gratt. 
 230; Baltimore tfc R. Co. v. Wighlman, 29 Grilt. 431; Balthnore & 0. 
 R. Co. V. Si.aic, 29 Ml. 252; Ktnsan Pac. R. Co. v. Miller, 2 Colo. 442; 
 George v. St. lytuis, I. M. & S. R. Co. 34 Ark. 613.
 
 8ECUKITY OF KOAD-BED, MACHmERY AND CARS. 49 
 
 "Suggest, consistent with the reasonable, successful use of the method 
 '■employed' to secure the safety of its passengers, and this vigi- 
 lance is to be exercised on behalf of the passengers to see that its 
 road and all appliances used in operating it, and whose imperfec- 
 tions imperil human life and limb, are and remain in good condi- 
 tion and free from defects.' 
 
 In one case some rocks had been piled up alongside of the track 
 for the purpose of ballast, and some of them got upon the track, 
 causing the injury. In rendering its opinion the court says : 
 "Combining in themselves the ownership, as well of the road as 
 ■of the care and locomotives, they are bound to the most exact care 
 and diligence, not only in the management of the trains and cars, 
 but also in the structure and care of the track, and all the subsid- 
 iary arrangements necessary to the safety of the passengers. And 
 as accidents as frequently arise from obstructions on the track, as 
 perhaps from any other cause whatever, it would seem to follow, 
 -obviously, that there is no one of the duties of a railroad company 
 more clearly embraced within its warranty to carry its passengers 
 safely, as far as human care and human foresight will go, than the 
 <duty of employing the utmost care and diligence in guarding its 
 road agaiust such obstructions.'" TJiis view of the obligation of 
 the carrier of course makes it immaterial that a slide was suddenly 
 ■ caused by the vibration of the train itself. It is not a question of 
 negligence in failing to remove the obstruction, but of negligence 
 in allowing it to get there." 
 
 A railroad company carrying passengers is held by the law to 
 the utmost care, not only in the management of its trains and 
 cars, but also in the structure, repair, and care of the track and 
 
 ^TayJor v. Grand Trunk R. Co. 48 K H. 304, 316. 318; Taller v. Talbot, 23 
 ill. 357; Winship v. Enfield, 42 N. H. 197, 208; LeBurron v. East Boston 
 Ferry Co. 11 Allen, 312; Sawyer v. Hannibal & St. J. B. Co. 37 Alo. 240, 
 260. 
 
 * Union Pac. E. Co. v. Hand, 7 Kan. 380, 392; Palmer v. Orand Junction R. 
 
 Co. 4 Mees. & W. 749: McElroy v. JSashua & L. R. Corp. 4 Cush. 400; 
 PilUiburg, C. & St. L. R. Co. v. Thompson, 5Q III. 138; Indianapolis & St. 
 L. R. Co. V. Horst, 93 U. S. 291, 23 L. ed. 898; Dunn v. Orand Trunk 
 R. Co. 58 Me. 187; Palmer v. Delaware <& H. Canal Co. 120 N. Y. 170; 
 Merwin v. Manhattan R. Co. 48 Hun, 608. 
 
 * Virginia Cent. R. Co. v. Sanger, 15 Gratt. 237. See also McElroy v. Nashua 
 
 <fe L. R. Corp. 4 Cush. 400; Dennett v. Louisville & N. R. Co. 102 U. S. 
 577, 26 L. ed. 235. 
 •^Glteson v. Virginia <& M. E. Co. 140 U. S. 435. 35 L ed. 458. 
 
 4
 
 50 STEAM RAILROAD — OPERATIVE MACHINERY AND CARRIAGES. 
 
 bridges and all other arrangements necessary to the safety of pas- 
 sengers.' It owes a higher duty to its passengers than mere 
 ordinary care and foresight in the construction and maintenance 
 of its tracks. It is bound to exercise the highest degree of prac- 
 ticable care; not the utmost possible precaution that might be 
 imagined, but the highest care and best precaution known to 
 practical use and consistent with the mode of transportation 
 adopted.* 
 
 A carrier of passengers is bound to exercise the same care in 
 providing appliances of which passengers have knowledge as those 
 of which they are ignorant.^ A railway company is liable for 
 injuries to a passenger caused by the imperfect and unsafe con- 
 struction of a bridge upon which its track is laid, though the 
 bridge is constructed and owned by the state and the company 
 has no authority to reconstruct or repair it. If it use the bridge 
 in such condition it must answer for the consequences.* 
 
 A railroad company may make any use of the land acquired by 
 it for a right of way for its raih'oad, which contributes to the safe 
 and efficient operation of the road, and which does not interfere 
 with the rights of pi-operty pertaining to the adjacent lands.' It 
 is bound to prevent a land slide in a cut made by it, which ordi- 
 nary skill would enable engineers to foresee,' and its liability for 
 injuries to a passenger, caused by a washout at a culvert, depends 
 upon whether due care and skill were exercised in the construc- 
 tion of the culvert, or whether the want thereof contributed to 
 the accident, and not alone upon whether the accident would not 
 have occurred but for the breaking of a dam on adjoining prop- 
 erty not under the company's control.'' 
 
 Railroad companies should provide safe roadbeds. The cross- 
 
 ^Searle v. KmrnwJta & 0. R. Co. 32 W. Va. 370: Bridge v. Grand Junction 
 J{. Co. 3 Mues. & \V. 244; Cumberland Valley It. Co. v. Uuyhes, 11 Pa. 141; 
 Vuqina Cent. R. Co. v. S>ing,r, 15 Gnitt. 280, 2;iG; Pderx v. Ri/Utiuh, 2a 
 Ph. 497; 7olah. P <& W. R. Co v. Conroy, 68 111. 500; Fulmtr v. Dtla- 
 uare & II. Canal Co. 415 Hun, 490. 
 
 ^So'ithi-rn Kanms R. Co. v. Walsh, 45 Kan. 653. 
 
 '(Jaroiii V. Coinp'if/nie Nationale Be Navigation, 39 N. Y. S. R. G3. 
 
 *Birrainghiim v. Jiorhester Cihj <£ B. R. Co. 59 Hun, 583. 
 
 *Klylon Land Co. v. South cC JS. Ala. R. Co. {k\&.) Nov. 24, 1891. 
 
 Wleexon v. Virginia M. R. Co. 140 U. S. 435, 35 L. ed. 458. 
 
 "^Bonner v. Wingate, 78 Tex. 333.
 
 LATENT DEFECT UTMOST SKILL AND CAEE. 61 
 
 ties should be sound and the rails strong and securely laid.' De- 
 railment of a train by contact with an animal is a fact which may 
 be looked to in ascertaining whether tlie carrier exercised due 
 care, in view of the fact that the carrier has a riglit to fence its 
 track to keep animals off from it." 
 
 A railroad cut is as much a jjart of tlie railroad structure as is 
 the filL They are both neces^^ary, and both are intended for one 
 result, which is the production of a level track over which the 
 trains may be propelled. The cut is made by the company no 
 less than the fill; and the banks are not the result of natural 
 causes, but of the direct intervention of the company's work. If 
 it be the duty of the company, (as it unquestionably is), in the 
 erection of the fills and the necessary bridges, to so construct them 
 that they shall be reasonably safe, and to maintain them in a rea- 
 sonably safe condition, no reason can be assigned why the same 
 duty should not exist in regard to the cuts. Just as surely as the 
 laws of gravity will cause a heavy train to fall through a defective 
 or rotten bridge, to the destruction of life, just so surely will 
 those same laws cause land-slides and consequent dangerous 
 obstructions to the track itself, from poorly constructed railway 
 cuts. To all intents and purposes a railroad track which runs 
 through a cut where the banks are so near and so steep that the 
 usual laws of gravity which bring upon the track the debris cre- 
 ated by the common processes of nature, is overhung by those 
 banks. Ordinary skill would enable the engineers to foresee 
 the result, and ordinary prudence should lead the company to 
 guard against it. To hold any other view would be to overbalance 
 the priceless hves of the traveling public by a mere item of in- 
 creased expense in the construction of railroads; and after all, an 
 item, in the great number of cases, of no great moment.' 
 
 § 15. Latent Defect— Vtuxost Skill and Care. 
 
 A latent defect which will relieve a carrier by rail from re- 
 sponsibility in any appliance endangering the safety of its passen- 
 gers, is such only, as no reasonable degree of human skill and 
 foresight could guard against. Carriers have been held liable for 
 
 ^McFee v. Vicksburg, 8. & P. B. Go. 42 La, Ann. 790. 
 
 ^Gulf, G. & S. F. R. Co. V. Wilson, U L. R. A. 486, 79 Tex. 371. 
 
 ^Qleeson v. Virginia M. B. Co. 140 U. S. 435, 35 L. ed. 458.
 
 52 STEAM EAILEOAD — OPERATIVE ilACHINEKY AND CAKKIAGE8. 
 
 latent defects which an examination would have disclosed, or 
 which could have been detected and avoided in the process of 
 manufacture.' A passenger carrier however, is not answerable 
 for defects or faulty construction of carriages where there are 
 such defects, latent and undiscoverable." What the law exacts, is 
 that the carrier shall furnish a safe and sufficient road and operat- 
 ing appliances and machinery to secure the safety of its passengers 
 by the exercise of the utmost care and diligence in its prepara- 
 tion.' 
 
 "Skill" and "care" in and about the carrying of a passenger 
 on a railway are not confined to the mere competency and watch- 
 fulness of the officers in charge of the train. The track, locomo- 
 tive, machinery, or rolling stock may be unskillf uUy or negligently 
 constructed, or may be negligently permitted to remain out of 
 repair. If a railroad company in either of the conditions named 
 carry a passenger, and he suffer injury from defective structures 
 and failure to make proper repairs, this is negligence or unskillful 
 conduct by the corporation, and gives a right of action.* 
 
 In a recent case* it is objected that the court below used the 
 words " when the track and machinery are in perfect condition," 
 as likely to cause the jury to think the law exacts of railway cor- 
 porations the duty of furnishing something better than a reasona- 
 bly good track for transportation of passengers — a track say ideally 
 good. But the objection is only plausible on the theory that super- 
 latives are at least unnecessary, as "reasonable care and skill is a 
 relative phrase, and what this requires is always to be determined 
 by consideration of the subject-matter to which it is applied," ' 
 
 ^Rlrhnrdson v. Oreat Eastern R Co. L. R. 1 C. P. Div. 343; RmdJiead v. 
 
 MidUind R. Co. L. R. 2 Q. B. 413, L. R. 4 Q. B. 37!), 38 L. J. Q. B. 169. 
 ^Richardson v. Great Eastern R. Co. L R. 1 C. P. Div. 343; Ford v. London 
 
 & ti. W. R. Co. 2 Fost. & F. 730; Rcadhcad v. Midland R. Co. L. R. 2 Q. 
 
 B. 413, L. R. 4 Q. B. 379, 38 L. J. Q. B. 109; Stokes v. Eastern Counties 
 
 R Co. 2 Fost. & F. 691. 
 ^Mtrwin V. Manhattan R. Co. 48 ITun. 608; Palmer v. Delaware <& H. Canal 
 
 to 120 N. Y. 170; Pennsyliuinia Co. v. Roy, 102 U.S. 451,26 L. ed. 141; 
 
 aiceson V. Virginia M. R. Co. 140 U. 8. 4^5, 35 L. cd. 458; Rulherfurd 
 
 V. Bhrevcport <£• //. R. Co 41 La. Ann. 793; Dougherty v, Mifi^ouri R. Co. 
 
 fi7 Mo. 647; Moore v. Jies M"ines & Ft. D. R. Co. 69 Iowa, 491; City & 
 
 S. R. Co. V. Findley, 76 Ga. 311. 
 *T/>uisville & N. R. Co. v. Jones. 83 Ala. 376. 
 "P.ittee. V. Chicago, M. dc St. P. R. Co. 5 Dak. 267. 
 ^GunningJuim v. Hall, 4 Allen, 208.
 
 LATENT DEFECT UTMOST SKILL AND CAKE. 06 
 
 and the court held that "reasonable care and skill" woukl 
 require of a shipbuilder to use the same degree of care and skill 
 as if he were in terms required to use the utmost possible skill. 
 The rule in relation to the liability of railroad corporations for 
 injuries sustained by a passenger while he is being carried over 
 the road of the corporation, from a defect in the roadbed, ma- 
 chinery, or in the construction of the cars, or where it results 
 from a defect in any of the appliances such as would be likely to 
 occasion great danger and loss of life to those traveling on the 
 road, requires from the carrier 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 likely 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 accident.' 
 
 It must provide vehicles sufficiently secure as to strength and 
 other requisites for their safe conveyance, and is liable for the 
 slightest negligence or fault in that regard.' 
 
 A railroad company is responsible for the utmost precaution, 
 care and skill in the construction and operation of the cars and 
 engines used in carrying passengers, to render them sufficiently 
 safe, and is bound to use all precautions, so far as human care and 
 foresight will go, for the safety of passengers.^ The highest 
 degree of practicable care, diligence and skill shall be adopted 
 that is consistent with the mode of transportation used, and that 
 will not render its use impracticable or insufficient for its intended 
 purposes.* And railroad companies are held to the same de- 
 
 ^Searle v. Knnaiolia & 0. R. Co. 33 AY. Va. 370; Hegemaii v. Western R. 
 Corp. 13 N. Y. 9. 
 
 ^Penmylmnia Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; The New World 
 V. King, 57 U. S. 16 How. 469, 14 L. ed. 1019. 
 
 *Topeka City R. Co. v. Higgs, 38 Kan. 375. 
 
 ^Indianapolis & St. L. R. Co.y. Eorst, 93 U. S. 291, 23 L. ed. 898; Tiiller v. Tal- 
 bot, 23111. 358; Pittsburg. C. & St. L. R. Co. v. Thompson, bUlW. 13S; Dunn 
 V. Grand Trunk R. Co. 58 Me. 187; Frink v. Potter, 17 III. 406; Gnkna 
 i& C. U. R. Co. V. Fay, 16 111. 558; Mobile cfc 0. R. Co. v. Thomas, 42 Ala. 
 672; Suryer v. Hannibal & St. J. R. Co. Co. 37 ilo. 240; Edwaidi v. 
 Lord, 4!i Ale. 279; Lericort v. Loomer, 21 Conn. 245; Jlnll v. Connecticut 
 River S. B. Co. 13 Conn. 319; McKinney v. Neil, 1 McLean, 510; Maury 
 V. Talmodge, 2 JIcLean, 157; Peck v. Neil, 3 McLean, 22; Fariah v. 
 Rcigle, 11 Gralt. 697.
 
 54: STEAM EAILKOAD — OPERATIVE MACHINERY AND CARRIAGES. 
 
 gree of care in maintaining their side tracks, switches, etc., as their 
 main tracks, and are liable for injuries caused by defects in their 
 condition, unless it apjDear that thej are not guilty of any care- 
 lessness and the defect was caused by the act of a stranger, so re- 
 cent as not to be discoverable by proper diligence.* 
 
 § 16. Responsihilitij for JVegligence of Manufac- 
 turer. 
 
 The carrier may construct all instrumentalities itself, or avail 
 itself of the services of others : but in either case, it engao-es that 
 all that well directed skill can do has been done for the accomplish- 
 ment of security. In the ordinary course of things the passenger 
 does not know whether the carrier has himself manufactured the 
 instruments of transportation or contracted with someone else for 
 its manufacture. 
 
 If the carrier has contracted with someone else, the passenger 
 does not usually know who that person is and in no case has 
 he any share in the selection. The Kability of the manufacturer 
 must depend on the contract between him and the carrier, of 
 which the passenger has no knowledge, and over which he can 
 have no control, while the carrier can introduce what stipulations, 
 and take what securities he may think proper. If injury results 
 to the carrier himself by the manufacturer's want of care, the 
 carrier has a remedy against the manufacturer, but the passenger 
 has no remedy against the manufacturer for damages arising from 
 a mere breach of contract with the carrier.'' 
 
 Thus where a hotel company accepted a building from a con- 
 tractor, who had erected it under contract for such use, a guest 
 who sutlers from a latent defect in the building due to the negli- 
 
 ^Deyo V. New Torh Cent. R. Co. 34 N. Y. 9; McElroy v. Nashua <& L. R. 
 Corp. 4 Cusli. 400; Baltimore & 0. E. Co. v. Worfhinr/fon, 21 Md. 275; 
 Kiught V. Porlland, 8. & P. R Co. 56 Me. 234; New York, L. E. & W. 
 R. Co. V. Davgherty, (Pa.) 6 Am. & Eng. R. Cas. 139; Keeley v. Erie R. 
 Co. 47 How. Pr. 25(5; Peoria & R. I. R. ^Co. v. Lave, bo 111. 448; BirkcU v. 
 WliUchami Jundion R. G". 4 Htulst. & N. 730; IL'ffnmn v. Nem York Cent. 
 & If. R. R. Co. 75 N. Y. 605, 13 Hun. 589; R'xd v. New York Cent. R Go. 
 
 50 Haib. 493; Kiton v. Botlon &, L. R. Ck 11 Allen, 500; Taylor v. Bay, 
 16 Yt. 5()0; Chiraqo & N W. R. Co. v. Taylor, 69 111. 401; Naxhinlle R. 
 Co. V. Merino, 1 Siic('(l, 220; C'litiss v. Rochester & 8. R. Co. 20 Barb. 
 2>i2, 18 N. Y. 534; Toledo, W. & W. R. Co. v. Apperxon, 49 111. 480. 
 
 H.oni/irtcid v. lloUidny, 6 Exch. 761, 20 L. J. Exch. 430. See Lonee v. Glute, 
 
 51 N. Y. 494. liul SCO Schnbcrt v. Clark Co. (Minn.) 15 L. II. A. 818.
 
 KESPONSIBILITY FOE NEGLIGENCE OF MANUFAOTUEEE. 55 
 
 ■gence of tlie contractor, cannot recover from the contractor, 
 whose duty is only to the company with which he contracted.' 
 
 Unless therefore, the presumed intention of the parties be that 
 the passenger should, in the event of his being injured by the 
 breach of the manufacturer's contract, of which he has no knowl- 
 edge, be without remedy, tlie only way in which effect can be 
 given to a different intention, is by supposing that the carrier is 
 to be responsible to the passenger, and to look for his indemnity 
 to the person whom he selected, and whose breach of duty has 
 ■caused the mischief. 
 
 All the cases bearing on this subject are collected and com- 
 mented on in the judgment in a recent decision.^ It is only nec- 
 essary to refer to a few of them. In the earliest decisions the 
 language of the judges is perhaps ambiguous. Thus in one, Sir 
 ■ Jas. Mansfield, Cli. J., says : " The carrier did not warrant the 
 safety of the passengers. His undertaking as to them went no 
 further than this, that so far as human care and foresight could 
 go, he would provide for their safe conveyance. Therefore, if 
 the breaking down of a coach was purely accidental the plaintiff 
 has no remedy for the misfortune he has encountered." It 
 is possible that this language might be construed and was 
 intended indeed to mean " so far as human care on the defendant's 
 part could go.'" But it is clear that Alderson, B. considered that 
 the carrier of passengers was liable not only for those defects of 
 construction which he might himself guard against but also for 
 those which arose from want of care on the part of the maker;* 
 but in a later case this point was directly raised.** There the acci- 
 dent happened from the defective construction of a bridge over a 
 railway in whose erection the company had employed a compe- 
 tent engineer. It was left to the jury in effect, to say whether 
 the engineer as well as the company had used due skill and care. 
 For the defendant it was objected that they would not be hable 
 unless they had been guilty of negligence, and after verdict for 
 the plaintiff, it was argued for defendants that, as they had 
 
 ^Cart'n v. Somerset, 12 L. R. A. 822, 140 Pa. 70. See Eeizer v. Kingsland, 
 
 15 L. R. A. 821. 
 ^Readhead v. Midland B. Co. L. R. 4 Q. B. 379. 
 
 ^Claistie v. Giiggx, 2 Campb. 81. See also Crofls v. WaterTiouse, 3 Bing, 321. 
 ■'S/iarp V. Gray, 9 Bing. 459. 
 'Gi-ute V. C/iester & H. R. Go. 2 Exch. 251.
 
 56 STEAM KAILROAD OPERATIVE MACHINERY AND CARRIAGES. 
 
 engaged the services of a most competent engineer in the con- 
 struction of the bridge, they had done their duty. Upon this 
 Parke, B., said : "It seems to me tliat they would still be liable 
 for the accident unless he also used due and reasonable care and' 
 employed proper materials in the work." And later, he says: 
 " The coach proprietor is liable for an accident which arises from 
 an imperfection in the vehicle, although he has employed a clever 
 and competent coachman." And the court held' that the jury 
 had been properly directed, saying : " It cannot be contended' 
 that' the defendants are not responsible for the accident, merely 
 on the ground that they employed a competent person to con- 
 struct the bridge." 
 
 In another case the same point appears to have been raised 
 upon the pleadings. The action was for not carrying plaintiff 
 safely. The defendants pleaded that the cause of the accident (a 
 defect in a crank pin) was not capable of being detected by them, 
 and that the crank was purchased from competent manufacturers,, 
 and the defendants, before the journey, fully examined the crank, 
 and had not noticed the defect. To this plea the plaintiff 
 demurred. The court gave judgment for plaintiff, holding the 
 plea bad because, amongst other reasons, it did not contain any 
 averment negativing carelessness on the part of the manufactu- 
 rers. 
 
 Pigott. Cli. J., says : " If the defendants had been themselves 
 the manufacturers of the engine they would have been bound to- 
 aver and prove due care and skill had been exercised, in the 
 process of manufacture. Are they to be relieved from liability 
 because they alleged that they had purchased it from a competent 
 manufacturer ?' 
 
 Where a man causes a building to be erected for a public exhi- 
 bition and admits persons on the payment of money, the contract 
 between him and the person admitted is analogous to the contract 
 between the canier and his passengers and there is implied in 
 such contract a warranty, not only of due care on the part of 
 himself and his servants, but also due care on the part of any con. 
 
 ^ Sharp V. Ortiy, 1) Bing. 457. 
 
 ^Burns v. Cork A B. R. Co. 13 Ir. C. L. R. 543. See also Brazier v. Polytech- 
 nic Inst. 1 Fobt. & F. 508.
 
 REPUTATION OF MANUFAOTDREK NO DEFENSE. 5T 
 
 tractor who may have been employed by him to construct the 
 meana of conveyance or support.* 
 
 § i/. Reputation of Manufacturer no Defense to 
 Carrier; Tests Required. 
 
 A good reputation^ upon the part of the builder selected, while 
 very well in itself, will not be accepted as a substitute for good 
 material or good work.* The carrier undertakes not merely that 
 the manufacturer it employed had the requisite capacity, but that 
 it was skillfully exercised in the particular instance.^ 
 
 Thus where it was shown in the instance of a broken axle, that 
 a simple test, that of bending the iron after the axle was formed 
 and before it was connected with the wheel, existed, by which the 
 defect, which caused the axle to break, could have been detected, 
 and this test was not applied by the manufacturer, nor by the car- 
 rier, nor did the latter inquire whether it had been applied, but 
 relied upon an external examination, which it was bound to know 
 would not, however faithfully prosecuted, guard its passengers 
 from concealed defects in the ii'on of the axle, or in the manu- 
 facture of it, the carrier was liable for the consequences of the 
 failure, on the part of the manufacturer, to apply the test, which 
 would have revealed the defect and led to its remedy.* 
 
 Eoth in America and in England the decided weight of decision 
 
 ^Francis v. Cockrell, L. R. 5 Q. B. 184. 
 
 *Qrote V. Chester & H. R. CfJ.2 Exch. 251; Louisville, N. A. & C. R Co. v. 
 Sni/der, 3 L. R. A. 434, 117 lud. 435. 
 
 *LouisTilfe, N. A. &C. E. Co. v. Snpder. 3 L. R. A. 434, 117 Ind. 435; Orote 
 V. Chester & II. R. Co 2 Exch. 251; Ilegiman v.TiiHtira 11 Cuip. J 3 N. 
 Y. 9; Boweii v. New York Cent. R. Co. 18 N. Y. 408; Bioicii v. Neto York 
 Cent. R. Co. 34 N. Y. 404; Caldwell v Nrw Jersey S. B. Co. 47 N. Y. 282; 
 Pennsylvania Co. v. Roy, 102 U. S. 451,26 L. ed. 141; Palmer v. Ddaware 
 & H. 0. Co. 120 N. Y. 170; Philadelphia & R. R. Co. v. A'.dersun. 94 
 Pa. 351; McGnire v. The Golden Gate. 1 McAH. 104; Pendeton v. Kins- 
 ley. 3 Cliff. 416; Meier V. Pennsylvania R. Co. 64 Pa. 225; Illinois Cent. 
 R. Co. V. Phillips, 49 111. 234; Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 
 Ind. 150; Fike v. Po'ytechnic Inst. 1 Fosf. & F. 712; Brazier v. Potyiechnic 
 Inst. 1 Fost. lis F. 507; Pym v. Great Northern R. Co. 2 Fost. & F. 619; 
 Manser v. Eastern Counties R. Co. 3 L. T, N. S. 585. But see Nashtille 
 d- D R. Co. V. Jones, 9 Heisk. 47; Grand Rapids <fi 1. R. Co. v. IluaCUy, 
 38 Mich. 537. 
 
 ^liegeman v. Western R. Corp. 13 N. Y. 9.
 
 58 STEAM BAILKOAD — OPERATIVE MACHINEKY AND CAllRIAGES. 
 
 liolds the carrier liable for the negligence of the manufacturer 
 where the passenger's safety is thereby imperiled.' 
 
 The carrier is responsible for any defects in the appliance 
 laiown to the manufacturer, or which might have been discovered 
 by him upon a vigilant and careful examination, and the applica- 
 tion of all known tests to ascertain whether it was in all respects 
 lit for the purpose it was intended to serve ; or which after deliv- 
 ery, might have been discovered upon a like examination by a 
 competent person. The materials of which the appliance is made, 
 must be the best adapted for the purpose, and of a proper quality 
 and wrought in a proper manner. In fact the carrier is responsi- 
 ble for defects to the same extent as if it had manufactured the 
 article in its own workshop and by its own immediate agents. If 
 a defect existed, which could have been avoided or remedied by 
 any means which science had furnished or disclosed, the carrier 
 should have employed such means, although not generally used ; 
 the custom of manufacturers not being conclusive on the question 
 of what constitutes a sufficient test, though proper for the con- 
 sideration of a jury ;" and applied to carriers of passengers by all 
 kinds of vessels and vehicles, whether propelled by steam power 
 or not. 
 
 § 18. Rule as to Adoption of J^ew Iinprovements 
 for Safety of Passengers. 
 
 It is ruled that the carrier is bound to exercise the same degree 
 of care and foresight, so far as consistent with the successful 
 
 ^Cosfikyan v. Borne. W. & 0. R. Co. 58 Hun. 590; Garoiii v. Comprtfjnie Naiionale 
 De'N<iviga'i/in,'d'd X. Y. S. K. 63; Cahhc U v. JVew Jcnei/ S. />'. Co. 47 N. 
 Y. 283: AJcPtidden v. ]\'ew York Cent. li. Co. 44 N. Y. 478; Bissell v. New 
 York Cent. It. Co. 25 N. Y. 44-'; Curtis v. II c'lester & S. It. ' o. 18 N. Y. 
 534; Carroll v. Stnten. Island It. Co. 58 N. Y. 12ii; Grote v. C/iester & 11. 
 It Co. 2 Exch. 251; Treadwell v. Wlattier, 5 L. R. A. 498. 80 Cal. 574; 
 Wdnson V. Now York Cut. &, 11. R. E. Co. 20 Bl;itchf. 338; Rndhead v. 
 Midland R. Co. L. U. 4 Q. B. 379; Meier v. PcnnsyUauiaR. Co. G4 Pa. 225. 
 
 *Ca'direU v. New Jersni S. II Co. 47 N. Y. 283; Pi/m v. Grent Northern R. Co. 
 2 FoHl. & F. Gl9; 'ihazicr V. Pidytechnic Inst. 1 Fost. & F. 507; Pike v. 
 Pohjlfchuir. Inst. 1 Fosl. & F. 713; Itea'lhend v. Mi/land R. Co. L. K. 2 Q. 
 
 B. 412. L. li. 4 Q. B. 379; McGuire v. IVie Golden Gate. 1 McAll. 104; Oil- 
 lenwaler v. Madison & I. It. to. 5 Itul. 340: Meier v. Pcnnsi/lnania R. Co. 
 64 I*ii. 235; il/'/./<.»i?/- V. I<a4ern Connlies It. Co. 3 L. T. N. 8. 5*^5; Pi//-<bvrg/i, 
 
 C. & St. L. It. Co. V. Nelson, 51 Iiid. 150; I'l'noi8 Cent. it. Co. v. PJiillips, 
 49 111. 234; Pendleton v. Kinsley, 3 Cliff. 410.
 
 RULE AS TO THE ADOPTION OF NEW IMPROVEMENTS. 69 
 
 operation of its road, in adopting new improvements which secure 
 additional protection to passengers.' 
 
 The degree of care and diligence required of any particular 
 railroad is the practical diligence of a capable and faithful railroad 
 management of a similar road under similar circumstances." And 
 yet the question of the negligence of a railroad company in fail- 
 ing to adopt the use of engines of a certain kind cannot exclu- 
 sively be determined by the failure of other companies to adopt 
 such improvements.' Such corporations may themselves be guilty 
 ■of negligence in this very matter. Therefore care equal to that 
 exercised by well regulated railroads is not the proper limit of that 
 required of a railroad as to its road equipments, such care must be 
 that which well regulated and prudently managed railroads ought 
 to exercise.* 
 
 It may be accurately said however that such carriers are 
 required to adopt at least the usual kind and quality of means 
 employed by other railroad carriers, to enable them, similarly sit- 
 uated, the better to perform their duties.^ But while carriers, in 
 selecting machinery and instrumentalities for the discharge of 
 their duties, must keep themselves reasonably abreast with im- 
 proved methods, they are not required to adopt every new inven- 
 
 ^Trendwell v. WfnUier. 80 Cal. 574. 15 L. R. A. 498; Caldwell v. JVew Jersey 
 8. B. Co. 47 N. Y. 28-3; Louisville &N. R. Co. v. Jones, 83 Ala. 370; -S'^m- 
 weg V. Erie R. Co. 43 N. Y. 123; Nashvi'.le & C. R. C>. v. Mesdno, 1 Siieed, 
 220; Ford v. London & 8. W. R. Co. 2 Post. & F. 730, 732; Iu,nsf,.<i Pae. R. 
 Co. V. Miller, 2 Colo. 442; ILntston & T. C. R. Co. v. Gorhelt, 49 Tex. 573; 
 C'aldweilv. Murphy, 1 Duer, 241 : /SM^7/i v. IS'ew York & H. R. Co. 19 N. Y. 
 127; Baltimore & 0. R. Co. v. Sfate, 29 Md. 252; Tokdo, P. & W. R. Co. 
 V. Conroy, 68 III. 560; Georgia Pac. R. Co. v. Pro2M, 83 Ala. 518; Wallace 
 V. Wilmington & N. R. Co. (Del.) Dec. 13, 1889; Meter v. Peuhsylwuda R. 
 Co. 64 Pa. 325, 230. But see Leh'arron v. East Boston Ferry Co. 11 Allen, 
 312; 2'aylor v. Grand Trunk R. Co. 48 N. 11. 316. 
 
 *Grand Rapids & 1. R Co. v. ILintley, 38 Mich. 546; Ricliardson v. Great 
 Eastern R. Co. L. R. 1 C. P. Div. 342; Daniel v. Metropolitan R. Co. L. 
 R. 5 H. L. 45; Wallace v. Wilmington & N. R. Co. (Del.) Dec. 13, 1889; 
 Georgia Pac. R. Co. v. Propst, 83 Ala. 518; Jeffersonville R. Co. v. Hen- 
 dricks, 26Ind. 228; Christie v. Griggs, 2 Camph. 79; Ingalls v. Bills, 9 
 Met. 1; Readhead v. Midland R. Co. L. R. 2 Q B. 412; Wit/iers v. North 
 Kent R. Co. 3 Hurlst. & N. 969; Bridger v. AshviVe & 8. R. Co 2o S. C. 
 24; Taijlor v. Grand Trunk R. Co. 48 N. H. 304; International tic G. N. 
 R. Co. V. Halloren, 53 Tex. 46; Meier v. Pennsylvunia R. R. Co. 64 Pa. 
 225; Louisville City R. Co. v. Weams, 80 Ky. 420, 8 Am. & Ens. R. 
 Cas. 400; Edwards v. Lord, 49 Me. 279. 
 
 ^Mefzger v. Chicago, M. <fc 8t. P. R Co. 76 Iowa, 387. 
 
 * Bridger v. Asliville & 8. R. Co. 25 S. C. 24. 
 
 * Wallace v. Wilmington & N. R. Co. (Del.) Dec. 13, 1889.
 
 60 STEAM KAILKOAD OPERATIVE MACHINEKY AND CARRIAGES. 
 
 tion. Especially is this true of untried and experimental ones,*" 
 But it is a sufficient fulfillment of their duty, if they adopt such 
 as are in ordinary use by prudently conducted carriers aotin<^ 
 within the line of their duty, and operating like instrumentalities^ 
 engaged in like business and under like circumstances.' 
 
 Difficulty in the application of this rule has sometimes come 
 from an improper interpretation of the expressions, "utmost care 
 and diligence," "most exact care," and the like. These do not 
 mean the utmost care and diligence which men are capable of 
 exercising. They mean the utmost care consistent with the nature 
 of the carrier's undertaking, and with a due regard for all the 
 other matters which ought to be considered in conducting the 
 business. Among these are the speed which is desirable, the 
 prices which passengers can afford to pay, the necessary cost of 
 different devices and provisions for safety, and the relative risk of 
 injury to them from different possible causes. With this interpre- 
 tation 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 regard 
 to the nature of the undertaking and the requirements of the- 
 business in all other particulars.' 
 
 A railroad company, defendant, in an action for injury to a 
 passenger, claimed that it was not negligent in running its freight 
 train through a station at a high rate of speed, while a passenger 
 train was there engaged in taking on and landing passengers. 
 This claim was mainly based upon evidence that the engineer in 
 charge was temporarily disabled from controlling his engine by an 
 accident received from the lever, which slipped from its position 
 after being reversed and struck hun a violent blow. The argu- 
 ment was that the engineer had performed his whole duty, in 
 respect to stopping the train, by reversing the lever and shutting 
 off steam. Some evidence was given for the defendant by its eni- 
 
 \Slcinweg v. Erie R. Co. 43 N. Y. 123. 
 
 ^Ucngia Pac. R. Co. v. Propni, 83 Ala. 518; Loidmlle & N. li. Co. v. /<?n<.t, 
 83 Ala. 37G; LcBiirron v. East Boston Fern/ Co. 8 Allen, 227. 
 
 *W(irre7i V. FitchhuKj R. Co. 8 Alien, 227; LeBarron v. Eant Bo.iton Ferrjf 
 Co 11 Allen, 315; Toylor v. Grand Trunk R. Co. 48 N. H. 304-316; Tal- 
 ler V. Tdhot, 23 111. 357; l)od<je v. Boston, & B. S. 8. Co. 2 L. K. A. 83, 
 148 Ma.s8. 207.
 
 RULE AS TO THE ADOPTION OF NEW IMPROYEMENTS. 61 
 
 ploy^sthat they were not cognizant of any means of retaining the 
 lever in its place after being reversed, except what were in use on 
 this engine. Other experts, however, gave evidence tending to show 
 that such an accident could not occur if the lever was properly 
 reversed, except from a defective appliance. 
 
 It was said by the court, however, that it requires no expert to 
 determine these facts, for it is obvious to the most ordinary com- 
 prehension that a reliance upon a lever which is liable to be forced 
 from its place by the natural action of the machinery in a matter 
 of such importance is an act of the grossest carelessness. The 
 remedies for such a fault are so numerous and common that they 
 must be presumed to be within the knowledge of all intelligent 
 persons. It is an alarming proposition to assert that a railroad 
 company is to be excused from the consequences of running trains 
 at great speed through stations or in the streets of a populous 
 city, because of an impossibility of its servants to control the 
 powers which propel them. If this lever was liable to be dis- 
 placed by the working of the machinery, it was the plain duty of 
 the engineer to hold it in its position until the stoppage of the 
 train had produced a compliance with his instructions and removed 
 the danger. This would have required his attention for possibly 
 ten seconds of time. The negligence of the company in running 
 its train through the station at a high rate of speed is recognized 
 by the rules of every railroad company in its limitation of speed, 
 and is too obvious to require discussion.' 
 
 In a case in which it is shown that, after an accident on the 
 road causing injury, it was found that a rail only 10 feet long 
 (while usually they are 30 feet long) was out of place, and the 
 track was very bad, the rails much worn and of all lengths, the 
 verdict of the jury finding negligence was sustained." Eailway 
 companies carrying passengers, are required to select such plans 
 and materials for construction as are used and have been found 
 sufficient by the best and most skillfully conducted roads of the 
 ^country, if the traffic will i-easonably justify the expenditure 
 required.* 
 
 ^Parsons v. New York Cent. & H. E. E. Co. 3 L. R. A. 683, 113 N. Y. 355. 
 *Floiidu B. & Nav. Co. v. Webster, 25 Fla. 394. 
 
 *FeisMng v. Chicago, B. & Q. II Co. 71 Iowa, 5G1 ; NasJmlle & C. R. Co. v. 
 EUiott, 1 Coldw. 611, per McKinuey, J.
 
 62 STEAM RAILROAD — OPERATIVE MACHINERY AND OARRIAQES. 
 
 § iP. Inspection of Operative Machinerij , Appli- 
 ances and Track. 
 
 The view which a carrier may have of wliat is or is not essen- 
 tial by way of inspection of its road and appliances, is not necessa- 
 rily conclusive, although entitled to consideration upon the inquiry 
 whether the system is adequate to the demand of duty upon the 
 vigilance of the company.* The same degree of care and watch- 
 fulness are not alike requisite as to all the various portions of tlie 
 machinery and appliances. The question of the necessity for 
 frequent examinations must depend in some degree upon the lia- 
 bility of the appliance to become deranged, or damaged, or 
 weakened, or broken, as well as the natural consequences to be 
 anticipated from such condition. If the result simply affected 
 the personal comfort of the passengers, or retarded the rapid 
 progress of the train, evidently the same care need not be exer- 
 cised in keeping it in order, as would be the case if peril to life 
 and limb would be the probable result. This duty of a railroad 
 company as to the frequent inspection of machinery applies to 
 every part essential to the safety of the passenger, and of course 
 includes the draw bars ' and couplings.^ 
 
 Where injury resulted to the passenger, caused by the giving- 
 way of one of the wheels of the car in which he was being car- 
 ried, if the defect in the wheel was one which could not be 
 detected, either by the eye or the ear, it is held in the Englisli 
 courts there was no negligence on the part of the carrier; the plain- 
 tiff could not recover.* 
 
 The legitimate obhgation imposed upon the company is, that its 
 engine and apparatus are then suitable, sufficient, and as safe as 
 care and skill can make them, and that the company will be 
 responsible for any injury resulting from defects therein which 
 might have been discovered by the company or its agents, by the 
 
 > Virginia Cent. R. Co. v, Sanger, 15 Gratt. 230. 
 
 ^WMtwam v. Wisconsin & M. B. Co. 58 Wis. 408, 13 Am. & Eng. R. 
 
 Ciis. 214. 
 '■^Laiclena v. Connectknt River R. Co. 136 Mass. 1. 18 Am. & En?. R. 
 
 Chs. 90; Toledo, W. «£ \V. R. Co. v. Fredericks, 71 111. 2'J4; ELli^ v. New 
 
 York, /.. E. t£ IK. R. Co. Of) N. Y. 540; AtcluHori, T. tfe 8. F. R. Go. v. 
 
 Ledbetler, 34 Kan. 320; AlcluHon, T. & 8. F. R. Go. v. Wagner, 33 Kan. 
 
 000. 
 *Read/iead v. Midland R. Go. L. K. 2 Q. B. 413, L. R. 4 Q. B. 379.
 
 INSPECTION OF OPEKATIVE MAOHINEKY, ETC. 63 
 
 proper care and skill in tlie application of the ordinary and 
 approved tests.' If any certain and satisfactory test of the ma- 
 chinery, used by a railway company in transportation, is known, 
 which is within the reach of the company, it should be applied; 
 and it is negligence to rely upon any test which is clearly insuffi- 
 cient." A railroad company is bound to use a high degree of skill 
 and vigilance to guard against accidents to its passengers, and to 
 see by proper inspection that its road and appliances remain in 
 good condition and free from defects.^ 
 
 In fact the rule may be laid down that carriers of passengers are 
 responsible for the utmost care and diligence of very cautious per- 
 sons, as well as for the slightest neglect, and are bound for defects 
 in the vehicles furnished by them, which might have been discov- 
 ered by the most careful inspection.* In an action for damages 
 for an injury to a passenger, caused by a broken rail, defendant 
 must show that the utmost practical care had been used to discover 
 the defect.^ A passenger injured by the derailing and upsetting 
 of cars, in consequence of rotten ties, is entitled to recover of the 
 railroad company.* But if the metal in the rail was by some 
 unavoidable accident of manufacture, lacking in its cohesive prop- 
 erties, not discoverable to the eye, nor by any known method, it 
 cannot be said that the company is liable for its breaking.'' 
 
 It is proper for a jury to consider the fact of the successive 
 
 ^NasJivWc <& D. R. Go. v. Joves, 9 Heisk. 27. 
 
 ^Texos <& P. R. Co. v. Hamilton, 66 Tcx. 93. 
 
 ^Palmer v. Delaicare & H. Canal Co. 120 N. Y. 170: Onntt v. Dnl-ofa Cent. 
 E. Co. 48 MiuD. 3U0; Furnish v. Missouri Pac. R. Co. 102 Mo. 4^8; Mer- 
 win V, Manhattan R. Co. 48 Hun, 60y. 
 
 ^Treadwell v. Whittier, 5 L. R. A. 498, 80 Cal. 574. 
 
 ^Cltvtlaud. C.C.iS:! R. Co. v. NeveU, 1 West. Rep. 890. 104 Inrl. 264; Feital 
 V. Middlesex R. Co. 109 Mass. 398; Pittsburg, C. & St. L. R. Co. v. Wil 
 Lams, 74 liid. 462. 
 
 ^Rutherford v. Shnveport & H. R. Co. 41 La. Ann. 793. See Chicago, B. & 
 Q R. Co. V. George, 19 III. 510; Geoige v. St. Louin. I. M. & S. R. Co. 34 
 Ark. 613; Houston & T. C. R. Co. v. Lee, 69 Tex. 556; Youge v. Kinney, 
 28 Ga. Ill; Broien v. Ke^r York Cent. R. Co. M N. Y. 404; Kentucky 
 Cent. R. Co. v. Thimaa, 79 Ky. 160. 
 
 ''Grand Rapids & I. R. Co. v. Huntley. 88 Mich. 546; Stokes^ v. Eastern Coun- 
 ties R. Co. 2 Fost. & F. 691; Readhead v. Midland R. Co. L. R. 2 Q. B. 
 412; Pittsburg. C. & St. L. R. Co. v. Thompson, 56 111. \m; ISashnlle & 
 1). R. Co. V. Jo),es, 9 Heisk. 27; Wood's Browne. Car. § 528; Ingalls v. 
 Bills, 9 Met. 1; Crocjan v. Aew York & H. R. Co. 18 Alb. L J. 70; Withers 
 V. Noith Kent R. Co. 27 L. J. Excb. 417; Grand Rapids d 1. R. Co. v. 
 Boyd, 65 lad. 526.
 
 64: STEAM KAILEOAD — OPERATIVE MACHINERY AND CARRIAGES. 
 
 breaking of rails at the same place, within a few hours, both to 
 indicate the condition of the track and roadwaj at that point, and 
 that the defendant had, or proper inspection would have given it, 
 notice of any probable defect.' 
 
 If the break in a railroad rail is a sudden fracture brought 
 about by cold weather, and was not contributed to by defects in 
 the track, the company is not liable, provided the rail was such as 
 a person of competent skill might reasonably presume, upon 
 inspection, to be free from liability to fracture." And under such 
 ■evidence the plaintiff should be nonsuited.^ But what is or is not 
 negligence in a particular case is generally a question of fact for 
 the jury.* If there is no doubt of the existence of the facts 
 complained of, yet if there be substantial doubts as to the reason- 
 able and natural inferences to be drawn from those facts, they 
 should be submitted to the jury.* But a railroad company is liable 
 for an injury to a passenger resulting from a derailment of cars 
 occasioned by the giving way of rotten and unsafe ties in the 
 roadbed, where the defect could have been discovered by a proper 
 discharge of the duty of inspection, in time to avert the accident.' 
 
 In each case the question is one of fact for the jury, and not to 
 be measured by any rule of law applied by the court. The degree 
 of care, under the circumstances, imposed upon the carrier being 
 stated to the jury by the court, the question of fact, although 
 somewhat speculative in the sense that it is not measured by any 
 definite rule, must nevertheless become a matter of judgment, to 
 be expressed by the jury, resting uj)on the evidence.'' Where the 
 injury to a passenger was caused solely by the breaking of the 
 "spindle" of the "drawhead" of the forward train, while run- 
 ning at speed, drawing the bell rope through as a result, and it 
 would have been impossible for the railroad company to have dis- 
 
 ^ Cleveland, C. C. & I. li. Co. v. Mwell. 1 West. Rep. 890, 104 Ind. 264. 
 
 ^MixS'/uri Pac. R. Co. v. Johnson, 72 Tex. 95. 
 
 ^McPad<len v. New York Cent. R. Co. 4A N. Y. 478; Tyrrell v. Eastern R. Co. 
 
 Ill Mass. 540. 
 *Fritnrh V. Allegheny, 91 Pa. 226; Neslie v. Second & Third Sts. Pass. B. Co. 
 
 4 (Jcnt. Rep. 700, 113 Pa. 300. 
 ^Alch'ee v. Bidwell, 74 Pa. 218; Crissey v. Hesionville, M. <fe F. Pass. B. Co. 
 
 75 Pa. 83. 
 ^Furnish v. Missouri Pac. R. Co. 102 Mo. 438; Rutherford v. Shreveport db H. 
 
 R. Co. 41 La. Ann. 793, 41 Am. & Eng. R. Cas. 129. 
 ■'Palmer v. Delaware & U. Canal Co. 120 N. Y. 170.
 
 I.N'SI'KCTIUX OF OPERATIVE MACHINERY, ETC. 65 
 
 covered the defect in the spindle except by moving the car into 
 the shop, and taking apart the machinery forming the draw-bar, 
 .andthns permitting the exposure of the spindle, and testing by 
 hammer, and such inspection had not been made for two years, 
 the court charged tlie jury, that the raih'oad company, being a 
 •carrier of passengers, was bound to use the highest degree of care 
 that was practicable and reasonable under the circumstances, and 
 left it to the jury to say, under this rule, what inspection of the 
 •draw-bar should have been made under the circumstances de- 
 veloped.' 
 
 In a more recent case' plaintiff was injured by an explosion 
 of the boiler upon defendants steam ferry-boat. A month previous 
 to the accident the boiler had been tested under the law of Con- 
 gress enacted in that behalf, with a hydrostatic pressure of thirty- 
 four pounds to the inch, and a certificate was thereupon given by 
 the government inspectors allowing the use of twentj'-five pounds 
 •of steam pressure to the inch. The boiler being about nine years 
 -old, required, on that account, greater care and caution in the 
 management of the steam; and the defendant, it was found by 
 the referee, did not exercise the care it was bound to exercise, in 
 allowing a pressure of steam in the excess of the amount justified 
 by the previous test and certificate. He further found that the 
 immediate causes of the explosion were a pressure of steam of not 
 less than twenty-seven pounds to the square inch and a weakness 
 of the boiler caused by a longitudinal crack or cracks, which 
 extended nearly through from the inside to the outside of the 
 iron plate or shell. He also found that the existence of the 
 crack in the boiler could not have been discovered by the exercise 
 of the highest skill, foresight or care, or by any test known or 
 practices by experts in the business of making, maintaining, or 
 managing steam boilers; and as a conclusion he found that the 
 defendant was responsible for the defect and weakness of the 
 steam boiler and for the want of due care, as set forth in his find- 
 ings of fact. In regard to the carriers liability under this finding, 
 the court said that if the sole cause of the explosion was the de- 
 fect in the boiler, disconnected with any negligence or violation 
 
 ^Palmer v. Delaware <& H. Canal Co. 46 Hun, 486. 
 ^Carroll v. Stafen Island R. Co. 58 N. Y. 126. 
 5
 
 66 STEAM EAILKOAD OPERATIVE MACHINERY AND CARRIAGES. 
 
 of law, in the management of the steam, the defendants would 
 not be liable. Carriers of passengers are not insurers of the safety 
 of persons Avhom thej carry; nor do they undertake that the 
 vessels or vehicles which they use, or that the machinery they 
 employ, are absolutely free from defects. They are held to the 
 exercise of the utmost skill and care in the construction and 
 management of both; and when they undertake to carry by the 
 dangerous agency of steam, and injury is occasioned to passengers 
 thereby, they cannot escape liability, unless it appears that the 
 accident happened from causes beyond their control, and to which 
 neither the negligence of the carrier or the manufacturer of the 
 machinery, or those employed to manage it, contributed. That a 
 carrier of passengers is not an insurer of their safety has been 
 explicitly held,' and has since been settled doctrine of the law.. 
 Xotice is taken in the opinion of the remarks adverse to this 
 view, made by the judge who pronounced the opinion in Alden 
 V. Neio York C. E. Co. 26 N. T. 102, but, it is said, that the sub- 
 sequent cases show that it was not the intention of the court to 
 depart from the established doctrine upon the subject,^ 
 
 It was accordingly stated as the law of the case in judgment that 
 if the crack in the boiler was, as the referee found, un discoverable 
 upon examination, or by the application of any tests known or 
 practiced, and if no presumption that the boiler was defective was 
 created by the fact that it had been used for several years, then 
 the fact that the defect existed, without which the explosion 
 would not have happened, would not alone have justified a 
 recovery. 
 
 ' Christie v. Origgis, 2 Campb. 79. 
 
 ^McFadden v, Mw York Gent. R. Co. 44 N. Y. 478; Caldwell v. New Jersey 
 
 S. B. Co. 47 N. y. 290; Readhead v. Midland R. Co. L. R. 2 Q. B. 312, L. 
 
 R. 4 Q. B. 379. 
 
 g.
 
 CHAPTEK Y. 
 
 DANGERS, ACCIDENTS AND PRECAUTIONS. 
 
 § 20. Carrier must Anticipate Storms and their Consequences. 
 
 § 31. Is not an In-nirer, nor Besponsible for Accidents. 
 
 § 22. What are Properly Called Accidents. 
 
 § 23. Dnty to Investigate to Determine the Canse of Accidents. 
 
 § 24. Care in Selection of Operative Employes — Hnman Fallibility. 
 
 § 25. Instances of Accidents from Human Fallibility. 
 
 § 26. Theory as to Loss of Fairer of Observation. 
 
 § 27. Precautions against Human Fallibility — Automatic Signals — 
 
 Block System. 
 
 § 28. Tests Applied to Metal. 
 
 § 29. Tr2(ss Bridges Peplacrd by Girders; — Yestibuling Trains. 
 
 § 30. Danger in Hauling Cars from Ot/ier Roads — Speed. 
 
 § 20. Ccirrier must Anticipate Storms and their 
 Consequences. 
 
 In Grote v. Chester (& IT. B. Co. 2 Excli. 251, the action was by 
 a passenger against a railroad company for damages resulting 
 from the breaking down of a bridge whilst the train was passing- 
 over it, and it was held that, while it was a question for the jury 
 whether the defendant had engaged competent engineers who had 
 adopted the best methods and used the best materials in the con- 
 struction of the bridge, the mere fact of its liaving engaged such 
 persons Avould not relieve it from the consequences of an accident 
 arisino; from deiiciencies in the work. 
 
 A carrier cannot be relieved from the consequences to a pas- 
 senger of the washing away of an embankment, on the ground 
 that it was constructed by a competent engineer, where the pro- 
 vision for drainage at the point in question was defective; although 
 the immediate result was produced by a sudden and unexpected 
 storm.' 
 
 Where the accident was caused by a land slide in a cut some 
 fifteen or twenty feet deep and the defendant gave evidence 
 
 ^FldladelpMa & B. B. Co. v. Anderson, 94 Pa. 351. 
 
 G7
 
 68 DANGERS, ACCIDENTS AND PRECAUTIONS. 
 
 tending to prove that rain had fallen on the afternoon of Friday 
 and on the Saturday morning previous ; and the claim is that the 
 slide was produced by the loosening of the earth by the rain, 
 this was held such an ordinary occurrence as is not embraced by 
 the technical phrase " an act of God." There was no evidence 
 that the rain was of extraordinary character, or that any extraor- 
 dinary results followed it. It was a common, natural event ; such 
 as not only might have been foreseen as probable, but also must 
 have been foreknown as certain to come. Against such an event 
 it was the duty of the company to have guarded. Extraordinary 
 floods, storms of unusual violence, sudden tempests, severe frosts, 
 great droughts, lightnings, earthquakes, sudden deaths and ill- 
 nesses, 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 
 results thereof in softening the superficial earth, have been so 
 considered. In Dorman v. Ames, 12 Minn. 451, it was held that 
 a man is negligent if he fail to take precautions against such rises 
 of high waters as are usual and ordinary, and reasonably to be 
 anticipated at certain seasons of the year ; and the same principle 
 applies to this case.' 
 
 In an action to abate a nuisance, the defense that the injury 
 was caused by an act of God is not tenaljle, where defendant's 
 neo-lio-ent act concurred in creating the nuisance." 
 
 Where the track was weakened by an extraordinary fall of 
 rain for 16 hours, and the result rendered the track insecure, and 
 accident occurred. Pollock, C. B,, said : " The line had lasted 
 live years in a country subject to floods, and it does not appear 
 that there had been any accident or objection to its construction 
 till this extraordinary flood occurred, and the company was not 
 bound to have the Hue constructed so as to meet such extraordi- 
 nary floods." 
 
 Wleenon v. Viif/inia M. R. Co. 140 U. S. 435. 35 L. ed. 458. See Ewart v. 
 
 Sireet, 2 Bail. L. 157, 162; Moffat v. Stronu, lO Johns. 12; New Brunswick 
 
 S. B.'d: (J. Tniiixp. Co. v. Ticvh, 24 N. .1. L. 697; Great Wexterii R. Co. v. 
 
 Braid, Mf)ore, P. C. N. S. 101; Riley v. Home, 5 Biner. 2^0; M'Call v. 
 
 Brock, 5 Strobli. L. 124; Coona River 8. B. Co. v. Barclay, 30 Alu. 128; 
 
 Diion V. .Uetrojiofitan Board of Works, L. R. 7 Q. B. Div. 418; Philadelphia 
 
 dk R R Co. V. Anderson, 94 Pa. 351; fAmiscille, JV. A. <fe C. R. Co. v. 
 
 ThoinpHon, 5 West. Hup. 833. 107 Ind. 442; Strouss v. Wabash, St. L. tit P. 
 
 Ji. Co. 17 Fed. Hep. 209; Miller v. Steavi Nav. Co. 10 N. Y. 431; Merritt 
 
 V. Karle, 31 Barb. 43; International »fc G. N. R. Co. v. Ilalloren, 53 
 
 Tex. 46. 
 ^IJiinshach v. Uolliste.r, 49 Hiiu, :'..")2.
 
 MUST ANTICIPATB STORMS AND THEIR CONSEQUKNCES. 69 
 
 Martin, B., said: "If the line liad nevertheless lasted five 
 years, that tended to show that there Avas no reason to apprehend 
 danger from ordinary floods, and they were not to provide for 
 extraordinary floods." 
 
 Bramwell, B., said : " It is contended on the part of plaintiffs 
 that the company's servants were hound to know the conse- 
 quences which were likely to follow from the flood. This is not 
 so. They were bound to know only that which could be known 
 by the exercise of ordinary skill and prudence.'" 
 
 In Great Western R. Co. v. Braid, 1 Moore, P. C. :N'. S. 101, 
 Ijn'd Chelmsford sustained the verdict (where the road had been 
 used four years without accident and was inspected daily), saying : 
 "A railway company ought to construct their works in such man- 
 ner as to be capable of resisting all the violence of the weather 
 which in the cHmate of Canada might be expected (though per- 
 haps rai'ely) to occur. ... In the whole evidence, there is 
 nothing more proved than that the wind was one of unusual 
 severity, and there is no proof that nothing similar had been 
 experienced before, nor was there anything to lead to the conclu- 
 sion that it was at all improbable that such a storm might, at any 
 time, occur. It must also be borne in mind, tliat although the 
 embankment had stood firm for four years, and had not been 
 exposed to any extraordinary violence, equal to that before which 
 it gave way, yet it was evidently not constructed at least in a 
 manner to resist any unusual pressure. . . . It is evident 
 that the embankment was insufiiciently provided with means of 
 resisting the storm, which, though of unusual violence, was not of 
 such a character as miglit not reasonably have been anticipated, 
 and which tlierefore, ought to have been provided against by all 
 i'easonal)le and prudent precautions." 
 
 In commenting on tlie language used l)y Bramwell, B., in 
 Withers v. JS^orth Kent B. Co., 27 L. J. N. S. Exch. 417, Lord 
 Chelmsford eonti"asts it with the language used by the same judge 
 in liueh v. WiUiains, 27 L. J. N. S. Exch. 357. That was an action 
 against comnussioners of sewers for neo-lio-ence in constructincr a 
 sewer in a defective and imperfect manner, and keeping it in that 
 state, whereby it produced damage to plaintiif's j^remiscs. It 
 
 » Withers v. North Kent R. Co. 27 L. J. N. S. Exch. 417.
 
 70 DANGERS, ACCIDENTS AND PRECAUTIONS. 
 
 appeared that the sewer was coustructed in April, 1853, and in 
 the year 1855 two severe storms occurred. One on the 13th of 
 July, which caused the bursting of the sewer and another on the 
 26th of July before the repair of the sewer was completed, at 
 which time the injury was done to plaintiff. It was added in the 
 report of the commissioners that the storm of the 2ritli of July 
 was without precedent for its violence. The court held plaintiff 
 entitled to recover, Bramwell, B., at p. 360, in answer to the 
 argument for the defense of the commissioners, arising out of the 
 extraordinary violence of the storm which occasioned the damage, 
 said : " One calls it an extraordinary storm but in truth it is not 
 an extraordinary storm which happens once in a century or in 
 fifty or twenty years ; on the contrary it would l)e extraordinary 
 if it did not happen within such a time as that ;" and he added 
 thereafter: "It seems to me that the commissioners who ought 
 to have put down a fold or pen stock of a permanent character in 
 order to guard against a thing likely to occur, not only in a short 
 time, but at all times, may well be said to be guilty of negligence 
 relative to the probable event of a storm happening in fifty 
 years," 
 
 "Where defendant's road was first class, only three years old, in 
 o'ood order at the place of the accident, and the ties and iron were 
 sound and good, and in the latter part of the day of the accident, 
 an unprecedentedly heavy rain fell in that locality which was not 
 cfcneral but which caused the embankment to give way under the 
 train as it passed over the place, and this caused the disaster, and 
 the evidence was that the track at that j)lace was sound and in 
 o-bod condition, so far as could be seen only two hours l)efore the 
 occuiTciice, when anotlier train passed over it. and tliat that sec- 
 tion of the road embracing the place of the accident was inspected 
 and found and left in good condition only one hour before the 
 accident. h;i\ing Ik-cii ])ropei'ly examined, and the accident 
 occurred 70 minutes after leaving the station, sixteen miles from 
 that place, when the train was running at about half speed on 
 a ti'ack which was ap])arcntly safe at all. times for that rate, and 
 it appeared that it liad rained during the day at the last stopping- 
 place, but not so hai'd as to make it necessary to give notice in 
 reference to the track, the rule was not so rigid as applied to
 
 IS NOT AX INSUKEK, NOR KKSl'ON'SIBLK FOR ACCIDENTS. 71 
 
 tlie carrier. It was held that the evidence showed that the 
 defendant company had used a commendable degree of skill, 
 prudence, and vigilance in the construction and management 
 •of its road and that the misfortune to plaintiff was the result of 
 •one of those inevitable accidents of which passengers assume the 
 risk, and for which the law does not hold the company responsi- 
 ble in damages/ 
 
 A storm, flood or freshet, in order to constitute an act of Provi- 
 dence, need not be unprecedented if it is unusual, extraordinary 
 and unexpected.' 
 
 But a mere continued spell of wet weather, with a fall of 
 snow, is not such an unexpected and unforeseen contingency 
 as will release a railroad company from liability to a passenger 
 for injuries resulting to him from the failure to keep the track 
 in rej)air.' 
 
 And when an accident occurs even through a storm of unusual 
 force, a railroad company may be liable for neglect to examine 
 the road and ascertain its condition before continuing its use, 
 where the risk was known to be great.* The duty of the company 
 is to employ the highest degree of practical care to guard against 
 accidents; and where its agents or officers have knowledge that a 
 great storm or a great flood has prol)ably made its track or bridges 
 unsafe, it must, where there is reasonable time and opportunity, 
 take measures to protect its passengers from injury.* 
 
 § 21. Is not an Insurer, nor Responsible for Aeoi- 
 
 dents. 
 The duty imposed upon a carrier of passengers is not co-exten- 
 sive with that of a common carrier of goods. A railroad com- 
 pany is not responsible at all hazards, but is only liable for 
 
 Unternationai u, G. N. It. Co. v. Halloren, 53 Tex. 46. 
 
 ^People V. Utica Cement Co. 32 111. App. 159; Norris v. Savannah, F. & W. R 
 
 Co. 23 Fla. 182. 
 ^Missouri Fac. B. Co. y.Johnnon, 72 Tex. 95. 
 *EUet V. St. Louk, K. C. & N. R. Co. 76 Mo. 518. See RMiardson v. Great 
 
 Eastern R. Co. L. R. 10 C. P. 486; Uanley v. Harlem R. Co. 2 Edm. Sel. 
 
 Cas. 359. 
 
 ^Hirdy V. North Carolina Cent. R. Co. 74 N. C. 734; Great Western R. Co. 
 V. Braid.l Moore, P. C. N. S. 101; International & G. X. R. Co. v. Hallo- 
 ren. bZTes.. 4f3, 37 Am. Rep. 744; Louistille, N. A. & C. R Co. v, 
 Thompson, 5 West. Rep. 838, 107 lad. 442.
 
 «2 DAXGKKS, ACCIDENTS AND PRECALTIOXS. 
 
 neglifrence in respect to tlie condition of its railroad cars and otlier 
 appliances.' 
 
 The rnle which makes common carriers liable for every loss, 
 except such as is occasioned by the act of God, or the king-'s 
 enemy, -was not a part of the ancient common law. It had its 
 origin in M'hat Avas supposed to be the commercial necessities of 
 England at a time when government afforded imperfect protec- 
 tion to goods in ti-ansit, and when robberies were of frequent 
 occurrence. It was first recognized and received its first judicial 
 announcement as a principle of law in the Woodlife's Cas€y 
 decided in the 38tli year of the reign of Elizabeth (Mooi-e, 462),^ 
 now nearl}' three centuries ago." Chief Justice Holt announced, 
 as the reason of the rule, that "a carrier is liable in respect of his 
 reward, and not of the hundred being answerable over to him; 
 for the hundred is liable by the statute of Winchester, and the 
 reason why robbery did not excuse him was because it might be 
 by consent and combination carried on in such a manner that no- 
 proof could be had of it."^ 
 
 The fact that the conunon carrier has his reward or hire cannot 
 be accepted as the reason of the rule, for other bailees and private 
 carriers for hire have their reward as the common carrier has, and 
 yet the rule does not apply to them. Indeed the only plausible 
 reason of the rule furnished by the earlier decisions is that the 
 shi]>per might lose his goods by collusion between the carrier and 
 lawless persons, thieves or robbers. The rule has been adopted 
 by the American courts, and many of them, without regard to the 
 reason of it, have been constrained by precedent to apply it iu 
 cases where its ap])li{;ation worked the grossest injustice." In fact 
 the analogies of carriers of freight have nothing to do with pas- 
 
 UlcPadden v. New York Gent. R. Co. 44 N. Y. 478; Keith v. PlnJcham, 43. 
 Me. 501; Siiwyer v. Hannibal <& St. ,1. R. Co. ;}7 i\Io. 240; Maury v. Tal- 
 madfje, 3 McLean, 157; SuUiroii v. I'ltilndiljihiu cfc R. R. Co. 80 Pa. 234; 
 Meier v. d'eniinylvania R. Co. (>4 Pa. 225; Mri'/tiry v. Sioux City <fe P. R. 
 Co. y Neb. 45; Fairchild v. Californin Stuije Co. 13 Cal. 599; Barm v. 
 Cork & n. R. Co. 13 Ir, C. L. K. 543; Ford v. London & S. W. R. Co. 2 
 Fost. & F. 730; Pym v. Oreai Northern R. Co. 2 Fost. i% F. 619, Read- 
 head V. .Midland It. Co. L. K. 2 Q. li. 412; Simmons v. New Bedford, V. 
 d: N. S. B. Co. 97 Muss. 361 ; Inqalls v. Bills, 9 Met. 1; Jcffcrsoncille R. 
 Co. V. Hendricks, 26 Ind. 228. 
 
 *VauSaritroord v. St. John, 6 Hill, 157. 
 
 *JMne V. Cotton, 1 Sulk. 143. 
 
 *Oulf, C. d S. F. R. Co. V. Gatewood, 10 L. K. A. 419, 79 Tex. 89.
 
 IS A'OT AN IN.SLKKR, NOK KKSPONSIBLE h'OK ACCIDENTS. lb- 
 
 senger carriers/ Tliore is a plain distinction between the liabili- 
 ties of carriers of i>-<M)(ls and of passengers." The liability of a 
 carrier of passengers, like that of a common carrier of goods,, 
 arisesoutof his duty, implied by law; bnt, nnlikc that of the latter, 
 it is not that of an insurer. Me dc^es not warrant the safety of the 
 passengers at all events, but only that, so far as human care and 
 foresight can reascniably be required to go, their safe conveyance 
 will be provided for.^ 
 
 In the case of the connnon carrier of goods, the responsibility 
 of an insurer is superadded to the responsibility wliicli arises out 
 of his contract to carry for reward." 
 
 The reasons npon which that liability is based, and \vhicli are 
 expressed by Holt, Ch. J.^ and by Best, Gli. J.^ are inapplicable- 
 to a carrier of passengers, for the latter has not the same control 
 over the person of his passenger, as he has over his baggage, or- 
 the goods which he accepts from the shipper. It was upon this 
 ground of want of absolute control over the property, that the 
 Supreme Court of the United States held the liability of a carrier 
 of goods, could not be enforced, where slaves were drowned, 
 while being transported by a carrier. Tlie slave could not be 
 stowed away as connnon merchandise. The carrier cannot have 
 the same control over him, as over inanimate matter. The slave 
 has volition and has feelings, which cannot be disregarded by his 
 fellow^ human behigs nor unrecognized b}^ the law, and being left 
 at some liberty he may escape.'^ How much less should the 
 absolute responsibility of an insurer be applied to a carrier of 
 passengers who have almost equal opportunity and discrimination 
 with the carrier himself, to conq^rehend the dangers which must 
 inevitably surround, them wdien in rapid motion, under conditions 
 
 ^ Grand Rapids & 1. R. Co. v. Huntley, 38 Micb. 537; see general]}' Ricliard- 
 
 son V. Great Eastern R. Co. L. R. 1 C. P. Div. 342, ITMoak's Eug. Rep. 
 
 294; Morrison, v. Phillips <& C. Coiistr. Co. 44 Wis. 405. 
 ^Aslon V. Heaven, 2Esp. 538; Christie v. Griggs, 3 Campb. 79; Dodge v. Bos' 
 
 ton & B. SS. Go. 2 L. R. A. 83. 148 Mass. 207. 
 ^Furnish v. Missouri Pac. R. Co. 102 Mo. 438: Ansell v. Watej'Jiousc, 6 Maule 
 
 & S. 393; Crofts v. Watcrhotise, 3 Bing. 319. 
 *Riley v. Home, 5 Bine. 220; 1 Story, Bailm. § 491. See Fo.v v. Boston dr 
 
 M. R. Co. 1 L. R. A. 702, 148 Mass. 220. 
 ^Cofff/s V. Bernard, 2 Ld. Raym. 909, 918. 
 '•Rilei/ V. Home. 5 Bing. 217, 220. 
 '•Boyce v. Anderson, 27 U. S. 2 Pet. 150, 7 L. ed. 379.
 
 74: DANUEKS, ACUIDKNl'S AND I'KKCAUTIOXS. • 
 
 voluntarily assumed* by themselves and in which they are reason- 
 -ably held to exercise ordinary care to save themselves from apparent 
 danger. Nor do clandestine conspiracies witli outlaws to rob 
 the consignment of goods, tempt the carrier, wliile he is engaged 
 in transporting passengers, wJio can to some extent protect them- 
 selves. The liability therefore is only founded on neglect of an 
 imposed duty, to use the highest possible intelHgent care in pro- 
 viding a safe roadbed, operating appliances, and conveyances, and 
 -ordinary care where only ordinary Jiazard is incurred. 
 
 The terms "ordinary care and diligence," which railroad com- 
 panies are bound to exercise, when applied to the management of 
 railroad engines and cars in motion, must be understood to import 
 all the care and circumspection, prudence and discretion, which 
 the peculiar circumstances of the place or caution reasonably 
 require of such company or their servants; and this will be 
 
 *The matter of mere accident, not involving any want of the highest care 
 and diligence is a risk that the traveler himself necessarily assumes. Camden 
 <& A. B. & Transj). Co. v. Burke, 13 Wend. 611; Cleveland, P. cfe A. R. Co. v. 
 Cwrra?!, 19 Ohio St. 1; Angell, Carriers, § 521; Lai ng v. Colder, 8 Pa. 479; 
 Knight v. Poi-tland, S. <£• P. R. Co. 56 Me. 234; Sawi/er v. Hannibal tk St. J. R. 
 €o. 37 Mo. 240; UneUenkamp v. Citizens R. Co. 37 Mo. 537; Kansas Pac. R. Co. 
 V. Miller. 2 Colo. 442; Atchison &.N. R. Co. v. Flinn, 24 Kan. 627; Alden v. 
 JVeic York Cent. R. Co. 26 N. Y. 102. By the term accident we necessarily 
 mean an inevitable occurrence, not to be foreseen and prevented by vigilance, 
 care and attention, and not occasioned or contributed to, in any manner, by the 
 act or omission of the company, its agents, employes or servants. Carroll v. 
 Staten, Island R. Co. 58 N. Y. 126. 
 
 A railroad corporation is not an insurer against every possible casualty, but 
 only against such as result in spite of the higiicst degree of reasonable vigilance. 
 Chicago, B. & Q. R. Co. v. Stumps, 69 111. 409; Gonzales v. Netn York & H. R. 
 Co. 39 How. Pr. 407; Reed v. iVew York Cent. R. Co. 56 Barb. 493; Toledo, W. 
 <fi W. R. Co. V. Appcrson, 49 111. 480; Kansas Pac. R. Co. v. Miller, 2 Colo. 442, 
 2 Wood, Railway Law, 1049. 
 
 A railroad company is not liable for damage that accrues to others in the 
 e.xercise of its legal rights by running its engines, etc., unless the damage is 
 -caused by its negligence. Bernard, v. Richmond, F. & P. R. Co. 85 Va. 792. 
 
 The attempt of a belated man to jump from a steamboat to the wharf imme- 
 diately after the starting of the boat; his failure to reach the dock and conse- 
 quent falling in the water; the cry of "man overboard;" the instantaneous 
 rush of a crowd of pa.ssengers towards the side of the boat whence the cry pro- 
 ceeded; and the siioving of a person overboard, — form such an extraordinary 
 <;ombiriation of circumstances that the failure to guard against their happening 
 cannot be called negligence. Cteoelund v. Isetc Jersey S. B. Co. 125 N. Y. 299.
 
 WHAT AKE PKOl'KKLY CALLKD ACCIDENTS. 75 
 
 increa>sed or diminished in the movement or operation of them.' 
 It is a liability resting on neglio-ence alone." 
 
 In Sha7']) V. Gray, 9 Bing. 457, and Christie v. Griggs, 2 
 Campb. 79, cases often cited as charging the carrier of passengers 
 as an insurer, the axletree had withont any external cause to 
 account for it, suddenly snapped. If the carrier had been an 
 insurer of the sufficiency of the coach, the warranty was broken, 
 for it proved unroad\vorthy. But in place, of simply directing 
 the jury to assess the damages, the question was sulunitted whether 
 the defendant was guilty of a want of due care or not. In Stokes 
 V. Eastern Counties R. Co. 2 Fost. & F. 691, the wheel had 
 broken from a latent flaw in the welding, and injury had resulted 
 to passengers. After a very lengthened and earnestly contested 
 trial, for the recovery of damages sustained, the jury found for 
 the carrier. And where the accident arose from the fracture of 
 one of the wheels of a railroad carriage, the tire of which had 
 split into three pieces, owing, as it was afterwards discovered, to 
 a latent flaw in the welding; and it was proved that at the com- 
 mencement of the journey the wheel was to all appearances sound 
 and strong; that such a flaw in the welding may occur without 
 any fault on the part of the manufacturer; that there were no 
 means of detecting it beforeliand; and that in fact, the carriage 
 had been examined, according to ordinary practice, before the 
 train had started on the journey and had answered to all the usual 
 tests of soundness, the jury were instructed in eflect, that if they 
 believed this evidence, the defendants were not responsible for 
 the accident, and they found a verdict for the carrier.^ 
 
 § 22. Wit at are Properly Called Accidents.^ 
 An accident is an event from superior causes.* It is an inevi- 
 table occurrence not to be foreseen or prevented by vigilance, care 
 
 *In considering the law regulating the liability in case of injury resulting 
 from what are called accidents, in a work now in preparation, on the Law of 
 Negligence, the care observed by railroad corporations, in the selection of em- 
 
 ^Parvis V. P]ul<uJelphia,W. & B. B. Co. (Del.) May 21, 1889. 
 
 ^Beadhead v. Midland B. Co. L. R. 2 Q. B. 412, L. R. 4 Q. B. 379; Aston 
 V. Heaven, 2 Esp. 533; Christie v. Crigg«, 2 Campb. 79; Crojfls v. Water- 
 house, 3 Bing. 321. 
 
 ^Beadliead v. Midland B. Co. L. R. 2 Q. B. 412, L. R. 4 Q. B. 379. 
 
 •"Gatdt V. Humes, 20 Md. 297.
 
 76 DAKGERS, accidp:nts axd precautions. 
 
 and attention; a casnality happening against the will and without 
 the negligence, either by act or omission of anyone,' 
 
 Inevitable accident is one not resulting from neglect of any 
 duty.* One is not liable for the result of a lawful act or one not 
 mischievous, rash, reckless or foolish, and naturally liable to result 
 in the injury of others.' If in the prosecution of a lawful act, a 
 casualty purely accidental arises, no action can be suj^ported for 
 an injury resulting therefrom. The one on Avhom such an injury 
 chances to fall cannot shift his misfortune upon another, even if 
 he be the innocent cause.' for one who without being guilty of 
 negligence inilicts an injury, is not responsible thei-efor.^ The 
 authorities all agree that an injury resulting from a superior cause, 
 unmixed with negligence from the defendant, imposes no liability.* 
 
 § 23. Duty to Investigate and Determine Cause of 
 
 Accident. 
 
 The law has long attempted to enforce as an obligation resting 
 on the carrier, and railroad companies now recognize it as a duty, 
 to rigidly investigate every accident, however insignificant, 
 which occurs on their line of road, in order to determine its exact 
 cause and, if possible, guard against a reoccurrence of the casualty. 
 There are many disasters in which it is impossible to place th& 
 responsibility upon anyone, and experience and foresight seem 
 
 ployes and in building and maintainance of the roadbed, and the selection and 
 inspection of operative machinery, has been somewhat minutely investigated, 
 and as the subject is gerniaiu to the present discussion, something of what is 
 there said, is here reproduced in this and some succeeding sections. 
 
 ^Carroll v. Staten Island R. Co. 58 N. Y. 126; Hodgson v. Dexter, 1 Cranch, 
 
 C. C. 109; y/ie Lotfy, 01c. ^29. 
 ^Vanqhau v. Taff Vale R. Co. 5 llurlst. & N. 678; Parrott v. Wells, 82 U. S. 
 
 15 Wall. 524, 21 L. ed. 206; Brown v. tUlins, 5o N. H. 442; Losee v. 
 
 Buchanan, 51 N. Y. 476 (denying the (ioctrine of Fletcher v. Rylands, L. 
 
 R 1 ]':xch. 265, L. II. 8 H. L. ;j;}0); Searle.^ v. Manhattan E'ev. R. Co. 2 
 
 Cent. Rep. 442, 101 N. Y. 661; Ohio & M. R. Go. v. Lackey, 78 111. 55. 
 ^Bizzell V. Booker, 16 Ark. 308. 
 
 *UwiK V. Flint & P. M. R. Co. 54 Mich. 55; Bennett v. Ford, 47 Ind. 264. 
 ''iSiillon V. Ihnnrtt, 13 West. Rep. 783, 114 Ind. 243; Manzoniv. Don(jlas, L. 
 
 R. 6 Q. H. 1)1 V. 145; IIam?na<k v. While, 11 C. R. N. S. 588; Latch v. 
 
 Uu inner R. Co. 27 L. J. N. S. Exch. 155; Wakeniari v. Robinson, 1 Bing. 
 
 213; Gibbins v. Pepper, 1 Ld. Hayra. 38. 
 * Vincent v. SUnehonr, 7 Vt. 62; Great Western R. Co. of Canada v. Fawcelt, 
 
 1 Moore, P. C. N. S. 101; Grote v. Chester <fc //. R. Co. 2 Exch. 251;. 
 
 llartey v. Dunlop, Hill Ai I). Supp. 193.
 
 CAKE IN SP:LKCTI0N of operative EMl'LOiES. i i 
 
 unavailing to prevent their repetition. It is usually conceded that 
 the most readily recognized cause of accidents upon railroads, is 
 the breaking of metals. But it is undoubted that human fallibility 
 in greater or less degree, is responsible for many accidents classed 
 as unavoidable. There must always exist the possibility of acci' 
 dent from causes which human foresight cannot anticipate and 
 human skill is powerless to prevent. But these are constantly 
 decreasing in number, as the causes are being minimized. 
 
 § ^4- Care in Selection of Operative Employes- 
 Human Fallihility. 
 
 Care in the selection of operatives is not only an absolute duty, 
 but is of vital importance in a well managed railroad service.' 
 Undoubtedly, even with, those men wlio have been on roads 
 where the strictest discipline is maintained, and who have had the 
 longest experience, accidents will happen for which the weakness 
 of human nature alone is chargeable. 
 
 If a freight train parts on a down grade, the engineer must 
 use his judgment and keep ahead of the latter half of his train to 
 prevent collision, and the men should have been previously dis- 
 tributed on the train so that they can bring both sections to a 
 stop with the brakes. But it sometimes occurs that when attempt- 
 ing to avoid the latter half of his train, the engineer finds a danger 
 signal set against him and realizes that there is an equal chance 
 of accident whetlier he keeps on or comes to a stop. The casualty 
 occurring under these circumstances, if there be no preceding 
 fault causing the parting of the train, would seem to be as un- 
 avoidable as it could well be. 
 
 § 2d. Instances of Accidents from Hainan Falli- 
 hility. 
 
 There are many instances in railroad history where human 
 fallibility alone seems chargeable with casualties which have 
 occurred. Such was a disastrous collision, where an express ran 
 at full speed on to a side track and dashed into a freight train. 
 A trusted and hitherto faithful man, who had been tending that 
 
 ^CroftH V. Waterliouse, 3 Bing. 319; Holladay v. Kennnrd, 79 U. S. 12 Wall. 
 254, 20 L. ed. 390; Frink v. Coe, 4 G. Greene, 555; McKinney v. Neil, 
 1 McLean, 540; Farish v. Reigle, 11 Gratt. 697.
 
 78 DAKGEKS, ACCIDENTS AND PRECAUTIONS. 
 
 switch for 25 year?, calmly turned it in the face of the express. 
 Unquestionably he was guiltless of any criminal intent, and yet 
 he could never explain his act. No matter how carefully em- 
 ployes are disciplined, one of them may fail at the most perilous 
 moment. One wli > had done faithful work as iirenian upon a 
 passenger engine and was fully competent to act as engineer, was 
 appointed to "yard duty" on a "pusher," and received orders 
 from a despatcher shortly afterwards, to run on a track over which 
 passed the passenger train which he had been on so long. He 
 knew the time of the train perfectly, but that did not prevent liim 
 from running headlong, into the very engine on which he had 
 shoveled coal for so many years. Though a disastrous wreck was 
 the result, the engineer could never explain afterwards why he 
 liad acted as he did. 
 
 At an early morning hour on the 30th of March, 1892, a car on 
 the Fifth Avenue line of the Brooklyn Elevated Railroad was 
 thrown from the track through the blunder of a switchman and a 
 frightful disaster was averted only by the merest chance at a 
 point where the tracks are seventy feet above the surface. 
 The accident occurred near Thirty-sixth street, and had the 
 derailed car gone a few feet further it would have tumbled into 
 Greenwood cemetery. 
 
 The union depot and terminus of the road are at Fifth avenue- 
 and Thirty--ixth street. About two hundred and iifty yards from 
 the station are the switches for transferring trains from one track 
 to the other. At this point the tracks, which are between fifteen 
 and twenty feet apart, are connected by a solid platform of plank- 
 ing. The train, consisting of an engine and three cars, was due 
 at tlie depot at 6: 25 o'clock. The engine and the two forward 
 cars passed safely over the switch from the north to the south 
 bound track. Tlien the switchman, who is stationed in a tower at 
 the depot, appears to have suddenly turned the switcli before the 
 third or rear car had passed over. The sudden i-e\ersal of the 
 switch broke the coupling between tlie two rear cars, and tlie six 
 men who were in the last car felt the jar as it left the rails and 
 sped a(;ross the platform. The front truck of the car, wliich was 
 now at riglit angles with the tracks, bumped over the inner rail 
 of the soutli bound track.
 
 THEORY AS TO LOSS OF POWER OF 0BSI';RVATI0N. T^ 
 
 Just as the frightened passengers slirieked in fear that they 
 were going the shortest cut that ever led to a cemetery the car 
 stopped, but not until its wheels had touched tlie outer rail. 
 Only a trifle niore momentum or the breaking of the outer rail 
 of the south bound track under the strain and the car with its- 
 occupants must have been dashed seventy feet into the cemetery^ 
 over which the elevated structure pi-ojects. 
 
 Experience proves that tlie best of engineers may do his work 
 for years without a single mistake, and that at the very moment 
 when his judgment and experience should be brought into play, 
 he utterly fails. If his attention be but momentarily attracted, 
 a danger signal may flash by unnoticed. 
 
 True, the sense of personal peril would seem a safeguard against 
 recklessness, when the engineer fully realizes that he is likely to 
 be the first one to suffer in case of an accident; but the constant 
 imminent presence of danger renders one at last somewhat reck- 
 less, and he may take the chances of the railroad being clear al- 
 though he sees the danger signal. 
 
 § 26. Theory as to Loss of Power of Observation, 
 
 The theory has been advanced by physicians, that in the life of 
 every one there is a mental lapse at some time. It may only be 
 for a moment, but after it is over the individual has no recollec- 
 tion of what has passed at that time, AVith a railroad engineer 
 that lapse may occur just at the moment when he is in the posi- 
 tion of the greatest danger. It may last but the tenth of a second 
 according to medical experience, but a danger signal might flash 
 by at that moment and an accident follo^^'. Physicians have cited 
 instances in their own experience with patients wdiere their minds 
 had been blank for a few moments, and althougli they were to 
 all appearances in full possession of their senses during this period,. 
 they had no realization of what had happened to them or what 
 they had done in that time. If there is any truth in this theory 
 it would explain the singular conduct at times of engineers and 
 railroad em2>loyes who are in posts of responsiljility. Although 
 the law holds the corporation engaged in the work of passenger 
 transportation, as itself acting through the employe, and respon-
 
 so DAXGERS, ACCIDENTS AND PRECADTIONS. 
 
 eible for his negligence/ yet as it recognizes that an injury caused 
 by the physical infirmity of the employe, occurring without fault 
 of the employer, does not impose such liability — as where the 
 numbness of a driver's fingers prevented his control of the horses — ' 
 an interesting question will present itself, as to the liability of 
 the carrier, where the act of negligence in the employe results 
 from the fallibility of human nature alone. 
 
 § 27. Precautions Against Human FalUhility— 
 Automatic Signals— Block System. 
 
 The dano-er of casualties from human fallibility is being- de- 
 creased by the nse of automatic signals now at every switch, 
 which will show "at danger' whenever the switch is open. If 
 the switchman fails in his duty, the signal announces to the engi- 
 neer of the express that he must come to a stop. 
 
 So the "Block System" in use uj)on many roads, has contributed 
 to prevent accidents which before tlieir introduction were consid- 
 ered unavoidable. Where in addition to this the duty is imposed 
 upon the brakeman of protecting his train by flagging without 
 regard to the automatic system, still greater security is provided. 
 But there are conditions under which automatic signals cannot 
 be made available. There is for example at Elizabeth, ]^ew Jer- 
 sey, a railroad crossing regarded by engineers as the most perilous 
 in the world. It is known as the Morris avenue crossing, at the 
 Union depot. It is situated at the junction of Broad street and 
 Morris avemie, the two principal streets of the city, and in the 
 centre of the business section. It is crossed daily by thousands 
 of pedestrians, hundreds of vehicles and several horse car lines. 
 
 At this point the four tracks of the Pennsylvania Railroad are 
 crossed by the three ti-acks of the Central Railroad of New Jer- 
 sey, both roads crossing at grade, forming a junction of two of 
 the most important trunk lines of the country, over which travel 
 the trains of the Be?insylvania, the Jersey Central, tlie Philadel- 
 phia & Reading, the Baltimore & Ohio, the Baltimore & 
 
 ^LoniHvillc & N. R. (Jo. v. Collins. 2 Duv. 114; Bann v. Chicarjo & N. W. R. 
 
 Co. 30 Wis. 450; Pithhurgh, Ft. W. & C. It. Co. v. Eubij, 38 Ind. 294; 
 
 Wunhtmrn v. Nas/inil/e & C. li. Co. 3 Iloul, 638; Mayltew v. Boyce, 1 
 
 Slarkie, 423; Dudley v. Sndlh, 1 Ciunpb. 167; Mayor v. Humphries, 1 
 
 Car. & P. 251; .Maury v. Tulnndge, 2 McLean, 157. 
 KStoke.f V. ,^altonHtall, 38 U. S.l;;Pet. 181, 10 L. ed. 115.
 
 PRE0AUT1OM8 AGAINST HUMAN FALLIBILITY. 81 
 
 Totomac, the Cliesapeake Sz Ohio and the freiii;lit trains of tlie 
 Lehigh Valley Railroad. 
 
 The average number of trains that pass over this crossing is 
 seven hundred every twenty-four hours, or an average of one train 
 every two minutes during the year. It is impossible to stand at 
 this point at any time during the day or night without seeing a 
 train crossing over or one approaching the crossing, and it is of 
 frequent occurrence to see three or four trains passing over on the 
 four tracks of the Pennsylvania road, while one or two are stand- 
 ing on the Central tracks, waiting to cross over. 
 
 Of the seven hundred trains that cross, four hundred are pas- 
 senger trains with an average of four cars to a train, which, cal- 
 culating thirty passengers to a car, makes a total of forty-eight 
 thousand travelers who daily pass over this crossing. It is pro- 
 tected by the same simple system of signals that were used fifty 
 years ago — the red banner displayed on an elevated structure, 
 pulled up or lowered by the aid of a rope in the hands of a flag- 
 man, who sits in a little shanty alongside of the track. He is 
 governed by a wideawake young man, who acts as flagman on the 
 crossing; and by the aid of a green flag signals to the man in the 
 shanty which road to give the white signal to. As there are four 
 signal ropes hanging within his reach he has to think and act 
 quickly and accurately or else cause a calamity that would be too 
 frightful to contemplate. 
 
 The great danger of the crossing has been a source of great 
 anxiety to both the railroad people and the city for many years. 
 It is impossible to operate gates owing to the almost continuous 
 passing of trains. Twelve years ago the railroads, at a cost of 
 $20,000, erected a large signal tower at this point connected with 
 an interlocking system of signals to operate the crossing and its 
 approaches. But after its completion they dared not run the risk 
 of permitting the signal arrangements to be governed hj auto- 
 matic devices, and after standing for some months without being 
 used the tower was torn down and carried off, and the old system 
 was retained. 
 
 Engineers say that there is nc» point on either road that they 
 approach with so much dread as they experience at this crossing, 
 ^ome of them who have crossed it two or three times dailv for 
 6
 
 82 DANGERS, ACCIDENTS AND PKECAUTI0N8. 
 
 twenty years assert that they have that same sense of danger that 
 they experienced the first time they aj)proached the crossing. 
 Realizing that the entire system depends on the flagman in the 
 shanty, who receives the munificent salary of a flagman for 
 fourteen hours work a day, and that it is possible that he might 
 give a clear signal to both roads at once with the terrible results- 
 thereby occasioned, it is not to be wondered at that they approach 
 this spot with fear and trembling. 
 
 Railroad men expect and have expected for years to hear of a 
 terrible accident at the Elizabeth crossing, involving a wholesale 
 loss of life. 
 
 After years of conference the railroads and the city officials 
 have agreed upon a plan to remove the dangerous crossing, the 
 railroads agreeing, at an expense of over $2,000,000, to elevate 
 the Pennsylvania tracks, while the Central tracks are to be de- 
 pressed. Work on both roads is now under way. This agreement 
 also calls for a new station to take the place of the antiquated 
 structure that has served as a union depot for the past fifty years. 
 
 The Central Railroad of New Jersey, which first began work 
 on the improvements agreed upon between the city and the rail- 
 roads, has made considerable progress. At a cost of over $100,- 
 000 the grades of Union and Crane streets have been depressed 
 fifteen feet by tunneling under their tracks at Union street, thus 
 doino- away with one of the dangerous grade crossings. In order 
 to make this improvement the company was compelled to pur- 
 chase considerable property on the two streets. It has in course 
 of construction a new station and an annex, which, when 
 finished, will be one of the finest depots on the line of the 
 road. It is being built of granite and pressed brick, in Gothic 
 style of architecture, with a large tower at one end. The main 
 building, which is on the south side of the track, will connect with 
 the annex on the opposite side of the track (which is also a large 
 building of granite) by means of two tunnels running under the 
 four tracks of the road. 
 
 Tlie Pennsylvania company is preparing to l)egin work on it& 
 elevated structure, wliich will extend through the city from Bay- 
 way to Fairmount avenue, and will be high enough to allow thir- 
 teen feet passage way at the street crossings. As it will be
 
 TESTS APPLIED TO METAL. 83 
 
 necessary to close several of the cross streets, the railroad com- 
 pany has just completed several new streets, which have been 
 opened through its property to take the place of those closed. It 
 has lately purchased the entire block of property, excepting two 
 lots, running from J ersey street to Grand. This will be used for 
 a larger freight warehouse. The company has also purcliased 
 property opposite the present depot. The property, it is 
 understood, will be used for the new depot, which, it is said, will 
 be the handsomest between Philadelphia and Jersey City. When 
 the road is elevated the point where the union crossing stands 
 will be the centre of a large circular park, which is to be kept in 
 order by the city. It is expected that all these improvements 
 will be completed within the next two years. 
 
 This is an example of peril under which passengers have been 
 carried for years, and of the remedy which has long been equally 
 available. It is an interesting inquiry, whether a collision occur- 
 ing at this point in the past, could have been called an accident ? 
 Certainly the traffic justified the expenditure to avoid the peril, 
 and there are doubtless places on other roads that will compel the 
 courts to answer a like question in the future. 
 
 § 28. Tests Applied to Metal. 
 
 The breaking of wheels and axles is another very potent cause 
 for casualties, for which it is insisted by railroad men no one 
 can be made responsible in many instances. On a railroad that 
 pays from 20 to 30 per cent more for axles than the price which 
 is paid by most companies for reputable makes of axles, the chances 
 of injury may be materially reduced; but that perfection cannot 
 be expected, is shown by tlie fact that out of a lot of 40 or 50 of 
 such axles, selected under the increased compensation, two broke 
 after a year's use. The element of human fallibility must under 
 all circumstances enter into the manufacture of railroad axles, and 
 if it were possible to trace back a defective axle through all its 
 processes of manufacture, it might be found that one man's lapse 
 of duty was responsible for the flaw. On some of the best man- 
 aged roads it is made a point to renew all axles after they have 
 traveled a certain number of miles although they may appear to 
 be in excellent condition.
 
 84: DANGERS, ACCIDENTS AND PRECAUTIONS. 
 
 On many roads the most rigid tests are applied to rails and 
 wheels in the course of manufacture. The chemical composition 
 is examined, for if the rail is too soft its liability to wear away 
 rapidly is recognized, and at the same time it must be ductile 
 enough to withstand the repeated impact of the wheels upon it. 
 Cross sections of rails that are in use, are tested to calculate their 
 durability, and it is recognized that the nature of the traffic is to 
 be considered in determining the continued safety in the use of a 
 rail, and its exposure to rough wheels is recognized as destroying 
 its usefulness much faster than smooth and perfect spheres. 
 
 Tests upon railroads are carried down to the water and coal in 
 use. Chemical and physical tests are applied to the boilers, and 
 the danger of boiler explosions have been materially reduced. 
 
 ^^9. Truss Bjddges Replaced hy Girders— Vesti- 
 huling Train. 
 
 The old tj-uss bridges are being replaced by plate girders which 
 lessen the danger of breakage. In many of the old bridges the 
 whole structure depended for its autonomy upon one bolt, the 
 different parts depending one upon the other. With the plate 
 girders the bridge is so strong that the impact of the train causes 
 no perceptible injury; and the chance of a derailed train carrying 
 the bridge down is very slight. 
 
 AVhen to those improvements is added the carrying of a solid 
 road-bed, ballast and all, over the bridge wherever it is possible 
 and the filling of the open places in the road-bed, much is done to 
 rediK-o the perils of railroad travel. 
 
 There would seem to exist the possibility of accident from the 
 breaking of metals no matter how rigid are the tests to which the 
 metals are subjected. Though all the rails are tested carefully, 
 some minute Haw may escape the attention and the rail may give 
 out at a critical moment. It is a significant fact however, that 
 wherever these flaws do exist in the rails, they are usually discovered 
 before anything serious results, and disastrous accidents caused b}' 
 them are the exception. Usually a defective rail siiows the crack, 
 which catches the eye of the track-walker, whose sole business is 
 to watch for imperfections in the track and road-l)ed. Railroad 
 men are familiar with many instances where rails have given out
 
 DANGER IN HAULING CARS FROM OTHER ROADS. 85 
 
 all at once under a uioving train which did not even leave the 
 track. A track-walker once found that a piece of rail 18 inches 
 long had disappeared after a train had passed over the spot in 
 safety. On a track ballasted with earth instead of stone, chances 
 of a rail breaking where a flaw exists are much increased. The 
 road-bed of earth, in case of frost, becomes rigid, and the sudden 
 impact of the wheels upon the track, causes a very severe strain 
 upon the rails. 
 
 The vestibuling of trains has done much to reduce accident, or 
 at least to prevent serious results when they occur, since a train 
 may leave the track without any of tlie cars being materially in- 
 jured, while telescoping is almost impossible. 
 
 Under what conditions a particular railroad will be exonerated 
 from responsibility in case of loss of life or personal injury to 
 passengers from collision or breaking of metal, where any or all 
 of these precautions or tests have not been applied, must depend 
 perhaps to some extent upon the conditions of traffic and other 
 circumstances.' 
 
 § 30. Danger in Hauling Cars from other 
 Roads— Speed. 
 
 There are some dangers which the best regulated roads And too 
 difficult to guard against. Railroads as common carriers, are often 
 assumed to be compelled to haul a promiscuous lot of freight cars 
 which do not come up to the standard, used upon the best managed 
 roads. On a four track road even a defective door on a freight car 
 may cause unheard of havoc, A gust of wind caused by a passing- 
 passenger train may tear the door loose, resulting in injury to the 
 passenger cars, possibly to the passengers. While these freight cars 
 are probably good enough for the traffic on a single track road for 
 which they are built, or on one on which only a moderate rate of 
 speed is maintained; they become dangerous contrivances when 
 drawn at high speed over long hauls with parallel tracks. 
 
 W. S. Huntington, in a very instructive and interesting article 
 in the Railway Age on the speed of trains, says : "The longer a 
 train is on the road the greater the chances of accident. At fifty 
 miles an hour a train would be two hours in making 100 miles, 
 
 ^Parris v. Philadelphia, W. <& B. B. Co. (Del.) May 21, 1889.
 
 86 DANGERS, ACCIDENTS AND PKECAUTI0N8. 
 
 whereas a train at half that rate would be out four hours. A large 
 proportion of mankind make it a point to get out of their place 
 or to be where they have no business as much as possible, and they 
 would have many more opportunities to get in the way of trains in 
 four hours than in two. This applies to tresj)assers of all kinds 
 — live stock as well as the human race — not forgetting landslides, 
 bowlders, trees blown on track, injuries to trestles and all wood 
 structures from fire, and so on through a long Kst of causes of 
 accidents. 
 
 "A comparison between the runs made by the Empire State 
 Express on the New York Central Railroad, and those made on 
 English roads shows that the American train is the faster. The 
 Buffalo Courier compares the English and American roads thus : 
 From JS^ew York to Buffalo, 439^ miles, the run is made I>y the 
 Empire State in eight hours and forty minutes, an average of 
 50.71 miles per hour, including stops, and the engine draws a 
 train weighing about 175 tons. From Euston to Perth, Scotland, 
 450 miles, the run is made in nine hours and fifty minutes, with 
 an average of 45.76 miles, including stops, weight of train 80 to 
 130 tons. From King's Cross to Perth, 439 miles, the run is 
 made in nine hours and fifty-five minutes, with an average of 44.27 
 miles per hour, including stops, by a train of about 130 tons 
 weight." 
 
 Upon the question of the danger attending rapid running by 
 trains, Mr. Huntington continues : "As for the greater liability 
 to breakages of equipment and track under fast speeds than at 
 moderate rates of speed, this is a matter in which railway ofiicials 
 and their patrons are equally interested. It is a popular belief 
 among railway machanics (and every one else) that high speeds 
 are more liable to break wheels, axles, rails and all other parts of 
 rolling stock and track fixtures. This belief arises from the fact 
 that lieavy blows will cause a break when light ones would not 
 produce a fracture, and it is but natural to suppose that a weak 
 wheel or axle or one that had a hidden defect would be more 
 liable to break at high speed. To a certain extent this is correct, 
 but ill the main the idea is erroneous. Many of the shocks and 
 jars that have a tendency to break wheels, rails and axles are 
 lighter at high speeds than at low. Rails are not as liable to
 
 DANGER IN HAULING CARS FROM OTHER ROADS. 87 
 
 break from vertical strain under a locomotive running at sixty 
 miles an hour as at thirty miles an hour; on the principle that a 
 skater can pass safely over very thin ice, when if he slackened his 
 speed he would break through. 
 
 " A train running at twenty-five or thirty miles an hour is far 
 more liable to be derailed by any of the common obstructions 
 than one that is running at fifty or sixty miles an hour. Of course 
 there is a certain class of accidents that would be more destructive 
 at high speed. Collisions in time of dense fogs or from mistakes 
 in orders and misplaced switches would be more to be feared on 
 fast trains. But as these causes are but few as compared to other 
 causes of derailment it follows that any train running any num- 
 ber of miles at forty or fifty miles an hour will meet with fewer 
 mishaps than a like train running the same number of miles at 
 twenty or twenty -live miles an hour."
 
 CHAPTEK Yl. 
 DEPOTS, STATIONS AND WHARVES. 
 
 §31. Location of Depots and Stations. 
 
 § 33. Duty of Carrier to Provide Suitable and Safe Accommodations^ 
 
 at Stations. 
 § 33. Degree of Care over Depots, Stations and Platforms. 
 § 34. Duty of Carrier ivitli Regard to Depots, Stations and Platforms^ 
 § 35. Care over Depot, Grounds, Approaches, and Exits. 
 § 36. Removal of Ice and Snow from Station'hnd Car Platforms. 
 § 37. Care over Wharves and Approaches to Vessels. 
 § 38. Liability to Stranger for Defective Station Platform. 
 
 § 31. Location of Depots and Stations. 
 
 A state statute requiring- the erection of depots and waiting 
 rooms at railroad crossings, is a legitimate exercise of police 
 power ;' nor is the power of the Legislature to require a railway 
 company to provide suitable accommodations for passengers and 
 freight at places of intersection with other roads, limited by a 
 constitutional declaration providing that the Legislature shall 
 prevent unjust discrimination and extortion, and shall establish 
 reasonable maximum rates for the transportation of passengers 
 and freight. And a statute requiring intersecting railroads to 
 maintain separately or in common a depot or depots at the point 
 of intersection, does not violate a constitutional provision author- 
 izing railroads to intersect, and providing that they shall receive 
 and transport each other's passengers under such regulations as 
 shall be prescribed by law. The maintenance of separate depots 
 by two intersecting railroad companies in a town half a mile dis- 
 tant from the point of intersection is not a substantial compliance 
 with a law requiring intersecting railroads to maintain a depot or 
 depots at the point of intersection, unless they shall have a union 
 depot in an ad jacent town. 
 
 It is no excuse for tlie noncompliance by a railroad company 
 that it had constructed its dei)ot in a town a half a mile from the 
 
 ^Slate V. Kamas City, Ft. S. & 0. li. Co. 32 Fed. Rep. 722. 
 
 88
 
 LOCATION OF DErOT8 AND STATIONS. 8&- 
 
 point of intersection before the passage of the Act,' But a pen- 
 alty prescribed against a raih'oad company neglecting to comply 
 with the order of the railroad commissioners made pursuant to a 
 statute authorizing such commissioners to designate the site or 
 location of any new depot, and to presenile the number and 
 dimensions of rooms therein, — cannot be enforced where the 
 order of the commissioners directed a new depot, but failed to 
 prescribe the number and dimensions of the rooms." 
 
 Mandanuis will not lie to compel a railroad company to estab- 
 lish a passenger and freight depot to accommodate the public, in 
 a town upon its line at which it has not been in the practice of 
 receiving and delivering freight and passengers, where there is 
 no charter or statutory provision prescribing the rules by which 
 the company is to be governed in the location of its stations.^ 
 
 Railway stations being for the mutual profit and convenience 
 of the company and the public at large, the company cannot be 
 compelled to locate such stations where the cost of maintaining 
 them will exceed the profits resulting therefrom, or to maintain 
 or continue a station at a point when the welfare of the company 
 and the country in general require that it should be changed to some 
 other point. Mandamus will not lie to compel a railroad company 
 to maintain a station at a village having less than 200 inhabitants, 
 where it has removed the station to a point less than half a mile 
 distant from the village, and the company and the entire farming- 
 interests of the country and of the public at large are best subserved 
 by the change made.' But a court of general jurisdiction may in 
 a proper case compel a railroad company to extend to the public 
 proper facilities for the transaction of business, although its char- 
 ter vests it with discretion as to the location of stations.^ 
 
 An agreement for the location of a depot is against public pol- 
 icy when it prohibits the location of another depot within certain 
 limits ; or where an officer or person belonging to any such com- 
 pany undertakes, for a consideration to himself, to secure the 
 
 'San Antonio <& A. P. R. Co. v. State, 79 Tex. 264. 
 
 ^State V. Alabama &V. R. Co. 67 Miss. 647. 43 Am. & Eng. R. Cos. 681. 
 
 '^People V. Chicago & A. R. Co. 180 111. 175, 35 Am. & Eng. Corp. Cas. 463. 
 
 40 Am. <& Eng. R. Cas. 353. 
 ^Mobile & 0. R. Co. v. People, 133 111. 559. 
 '^Northern Pac. R. Co. v. Washington Territory, 3 Wash. Terr. 303.
 
 ■90 DEPOTS, STATIONS AND WHARVES. 
 
 location of the depot ; but an agreement with the corporation for 
 the depot without restriction, is lawful, and damages will be given 
 for its violation.' 
 
 A railway company cannot bind itself by contract with indi- 
 viduals to locate and maintain stations at particular points, or 
 Tiot to locate and maintain them at other points.'' 
 
 Kailroad corporations are regarded as public agencies, owing 
 duties to the public generally ; they are not, therefore, authoi-ized 
 to make any contract which may prevent them from discharging 
 their duties efficiently to the public ; and for that reason they 
 ■cannot contract tliat the company will not locate a station or 
 erect a depot at a place where the demands of business or con- 
 centration of the population may at some time in the future, 
 require it. Sucli a conti'act is void as against public policy.' 
 
 Where a railroad company contracted to locate its passenger 
 and freight depot on the complainant's addition to a town at no 
 other point in the town, an enforcement of the agreement was 
 refused by the court on the ground that it was against public 
 policy." 
 
 § 32. Duty of Carrier to Provide Suitable and Safe 
 AcGoimnodations at Stations. 
 
 Independent of statute, it is the duty of railway companies as 
 ■carriers of passengers to provide reasonable accommodations for 
 persons desiring to take passage on their trains, and where the 
 business will justify the expense, to provide comfortable waiting 
 room, suitable for the class of passengers resorting to the station, 
 and to regulate the use of the rooms so that persons in delicate 
 health shall not needlessly be subjected to offensive odors or 
 noises, or any travelers to insult or annoyance, ^ and it is their 
 duty to keep their depots in a safe condition. ' 
 
 ^Dmiaville, N. A. c6 G. R Co. v. Sumner, 2 West. Rep. 663, 106 Ind. 55. 
 
 KUohile & 0. R. Co. V. People, 13-3 III. 559. 
 
 *WilliamHon v. Chiaujo, II I. & P. R. Co. 53 Iowa, 126; St. LouU, J. & G. 
 R. Co. V. Maihfirs, 10-1 III. 257; Marsh v. Fulrbury, P. cfc TV. IF. R. Co. 64 
 111. 414; St. Dmin, J. & C. R. Co. v. Mathers, 71 111. 55)2; St. Joseph & D. 
 
 ■ C. R. Co. V. Ryan, 11 Kan. H()2. 
 
 * Marsh V. Fairburij P. & N. W. R. Co. 64 111. 414. 
 
 » McDonald v. Chirar/o & TV. \V. R. Co. 26 Iowa, 124. 
 
 * Texas & P. R. Co. v. Mayes (Tex.) Oct. 25, 1890.
 
 DUTY OF CARRIER TO PROVIDE SAFE ACCOMMODATIONS. 91 
 
 Railway companies are bound to keep the platforms at their 
 passenger stations in a safe condition for persons to enter and 
 leave the cars ; and failure to do so will render the company liable 
 ix) persons injured, without fault on their part, on account of the 
 •defect,' but at a signal station it does not follow that because the 
 train stops to receive an occasional passenger, that a building or 
 even a permanent platform must be provided. " Kor is a rail- 
 I'oad company bound, at a seaside summer resort on a road used 
 •chiefly for pleasure excursions, to keep its platform, cars, and 
 trains fenced in or inclosed, or to keep a servant by them to warn 
 people not to go on or about them at a time when no trains are 
 running. * Nor is a railroad company liable for injuries sujffered 
 by a passenger from getting her feet wet in alighting at a flag 
 station where there was no accommodation for passengers, when 
 such place was ordinarily safe and convenient, but was made bad 
 by heavy and continued rains.* 
 
 Thus it has been held that although the platform at a station of 
 minor importance was suffered to get out of exact level, to such 
 s.n extent only as that nothing more can be said of it, than that it 
 was out of repair and unsuitable, without being dangerous, this 
 will not authorize a legal presumption of negligence. So long as 
 the approaches and platform at stations are safe and do not expose 
 persons having occasion to use them to the chances of danger or 
 inconvenience which may occasion hurt to them, it cannot be said 
 that the railroad company is negligent. Whether the platform 
 is suitable or not is a matter of opinion upon which the rail- 
 road company has a right to its judgment. The law cannot be 
 invoked until its safety becomes a question.^ But the distinction 
 requiring only ordinary care under such circumstances, which 
 seems reasonable where the personal safety of the passenger is not 
 seriously involved, is not always recognized, and it has been said 
 that a railroad company stopping a passenger car at a point where 
 
 ' Pennsylvania Co. v. Marten, 7 L. R. A. 687, 123 Ind. 415; Merwin v. Man- 
 hattan B. Co. 48 Hun. 608. 
 
 * Alabama & V. R. Co. v. Stacey, 68 Miss. 463; Gindnnaii, W. & W. li Co 
 
 V. Peters, 80 Ind. 168. ' * 
 
 " Hodges v. New Hanover Transit Co. 107 N. C. 576. 
 
 * Alabama & V. B. Co. v. Stacey, 68 Miss. 463. 
 ^Pennsylvania Co. y. Afarion, 2 West. Rep. 234, 104 Ind. 239.
 
 92 DEPOTS, STATIONS AND WHAKVKS. 
 
 there is no platfoi-ni owes a passenger not only a rea8ona]>ly safe 
 appliance for enabling hiin to alight, but that it is the duty of the 
 company to furnish the safest that has been known and tested, 
 and that a stool, in the shape of a box about eleven inches square 
 on the top and somewhat larger at the bottom, which is capable 
 of being overturned at least by an incautious step, and which is 
 furnished by a railroad company for a passenger to alight upon at 
 a place where there is no platform, may be found by a jury not 
 to be such a substitute for a platform as it was the duty of the 
 company to furnish, without regard to the time it had been used 
 and the number of persons who had passed over it securely, or to 
 expert opinion as to its safety, and it is declared to be the dut}- of 
 a railroad company which furnishes a box for passengers to alight 
 upon at a point where there is no platform, at least to render such 
 assistance to passengers as to make the box as safe as a platform 
 would have been. * 
 
 Wherever a railway company is in the habit of receiving pas- 
 sengers, there people have the right to assume that they may 
 safely congregate to get aboard trains/ and a railroad company,^ 
 by consent to the use of ground in loading cars by several per- 
 sons, impliedly invites others having occasion to load cars at that 
 place, to use the ground for that purpose/ 
 
 In an action against a railroad company to recover for personal 
 injuries received by attempting to board a train at a certain place, 
 where the defense is that such place was not the particular and 
 exclusive place provided by the company for passengers to get on 
 the trahis, evidence is admissible to show the habit of the com- 
 pany to receive passengers at the place where the jilaintilf 
 attempted to board, that the doors were open to admit them, and 
 that he was told by one who, he had a right to suppose, was 
 authorized to direct him where to board.' 
 
 A railroad company is liable to one injured by the falling of a 
 |)lank reaching from the ground to the platform of the station, 
 while she was walking upon it, where no steps were provided and 
 
 ^MisHOuri Par. R. Co. v. Wortham, 3 L. R. A. 368, 73 Tex. 25. 
 TMke Hhore & M. S. R. Co. v. Ward, 35 111. App. 423, alliimcd on other 
 groiitids in 135 111. 511. 
 
 *C/ncaf/o & L C. Ji. (.'<>. v. De Baum, 2 Ind. App. 281. 
 *DulUmore d- 0. R. Co. v. Kane (Md.) Juue 12, 1889.
 
 DUTY OF CARRIEU TO PKOVIDE SAFE ACCOMMODATIONS. 93 
 
 the plank was the usual means by which persons reached the 
 platform from the ground, and was in general use, not only by 
 such persons, but by the station agent, although it was not placed 
 there by him.' 
 
 Testimony that passengers taking the train for upper stations 
 were usually directed by the conductor to take the rear car, was 
 competent as tending to show the usage of the road and how the 
 defendant regarded it as a proper place for passengers to leave 
 the train. The testimony of the plaintiff as to the effect produced 
 upon the plaintiff by jumping from the train was competent upon 
 the question whether the defendant provided safe and reasonable 
 facilities for passengers to leave its trains at this point. Evidence 
 that other passengers in leaving the train at the same place was 
 admissible as it tended to show that it was negligence in the 
 defendant not to provide a larger platform; so such evidence was 
 competent upon the question whether passengers left the train at 
 this place with the knowledge or permission of defendant." 
 Where the evidence introduced by the plaintiff, and which on a 
 motion for nonsuit was to be treated as true, was that the 
 defendant stopped its train before the car in which she was 
 riding had reached the platform; that the rear car did not ordi- 
 narily reach the platform; that the conductor had assisted her to 
 alight at the same place before, that other passengers were ac- 
 customed to leave the train at the same place; that she was in the 
 rear car by the conductor's direction; and that passengers were 
 not allowed to go forward from one car to another in leaving the 
 train at the stations; these facts were evidence from which the 
 jury might find that the plaintiff exercised due care in leaving the 
 train at a place which she knew was a bad one for alighting.' 
 And the jury might further have found that the defendant in- 
 tended she should leave at that place.* A class of cases " are 
 
 ^CoUins V. Toledo, A. A. d N. M. R. Co. 80 Mich. 390. 
 
 ^BuUard v. Boston <& M. R. Co. 2 New Eng. Rep. 899, 64 N. H. 27; Ball v. 
 
 Brown, 58 N. H. 93; State v. Manchester & L. R. Co. 53 N. H. 528. 
 ^BaUimoi-e & 0. R. Co. v. LeapJey, 4 Cent. Rep. 253,65 Md. 571; BuUard v 
 
 Boston & M. R. Co. 2 New Eug. Rep. 899, 64 N. H. 27. 
 *Bulla)d V. Boston & M. R. Co. 2 New Eng. Rep. 899, 64 N. H. 27; Eulberl 
 
 V. New York Cent. R. Co. 40 N. Y. 145. 
 
 ^ Farsyth v. Boston & A. R. Co. 103 Mass. 510, and Frost v. Grand Trunk R. 
 Co. 10 Allen, 387.
 
 94 DEPOTS, STATIONS AND WHARVES. 
 
 clearly distinguishable from this class, as in these cases there wa& 
 no evidence that the defendant held out any inducement to the 
 plaintiffs to do the act by which they were injured. 
 
 § 33. Degree of Care over Depots, Stations and 
 
 Platforms. 
 
 "While it is the duty of a railroad company to keep its depots 
 and platforms reasonably convenient, suitable and secure, 
 and the approaches safe and accessable for the ingress and 
 egress of passengers to and from its cars, the rigor of the rule 
 which requires it from considerations of public policy, to exercise 
 the highest possible diligence for the benefit of the passenger 
 while in actual progress of his journey, and holds it responsible 
 for the slightest defect in its machinery, track, and appliances, is 
 measurably relaxed with respect to its depots, platform and a])- 
 proaches. With respect to these it is to be held to that reasonable 
 degree of care for the safety and protection of its patrons, having 
 regard to the nature of its business, as is demanded of individuals 
 upon whose premises others come by invitation or inducement 
 for the transaction of business. * 
 
 In a Alassachusetts case '^ the owner or occupant of land is held 
 to be liable in damages to those coming to it, using due care, at 
 his invitation or inducement, express or implied, for any business 
 to be transacted with, or permitted by him, for an injury occa- 
 sioned by the unsafe condition of the land or of the access to it, 
 which is known to him and not to them, and which he has negli- 
 gently suffered to exist and has given them no notice of. 
 
 The right to go on premises may be fairly implied from theu- 
 appropriation and dedication for the use to which they are put.^ 
 Where plaintiff is injured by reason of defendaat's negligence- 
 in regard to the condition of a place, it is sufficient that plaintiff 
 was using the place "in accordance with the intention and design 
 
 > Chicago, W. & W. It. Co. v. Peters, 80 Ind. 1G8: Kelly v. Manhattan R. 
 Co ":} L. R. A. 74, 112 N, Y. 443; Palmer v. Pennsylvania Co. 2 L. R. 
 A 253. Ill N. Y. 4«8; Lnfflin v. Buffalo & 8. W. R. Co. 7 Cent. Rep. . 
 7!);{, 100 N. Y. i:'>G; Crafier v. Metropolitan, R. Co. L. R. 1 C. P. 100; 
 Pendleton St. R. Co. v. Shires, 18 Oljio St. 2.'5.'5. 
 
 » Carleton v. Franconia, T. & S. Co. 99 Mass. 216. 
 
 'Severy v. Nickerson, 120 Mass. <J06.
 
 DEGREE OF CAKE OVER DEPOTS, STATIONS AND PLATFORMS. 95 
 
 with which the way or place was adapted and prepared or allowed 
 to be used.'" 
 
 A carrier is bound to use diligence in proportion to the danger 
 involved to keep its station in a safe condition. Thus an elevated 
 railroad company, where peculiar dangers exist from its failure, 
 is bound to keep the steps leading to its stations free from ice.* 
 But a railroad company is not guilty of negligence for a defect 
 in a stair railing in a station, so long as the structure is reasonably 
 suited to the purposes to which it is to be applied, and the com- 
 jjany's attention has not been called to any deficiency by a simi- 
 lar previous experience.^ 
 
 In the approaches to the cars, such as platforms, halls, stair- 
 ways 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 serious nature. The rule in such cases is that the carrier is 
 bound simply to exercise ordinary care in view of the dangers to 
 be apprehended," The degree of care required is not fixed solely 
 
 ^Sweeny v. Old Colony & N. li. Co. 10 Allen, 868; Carleton v. Piancovia T. & 
 8. Co. 99 Mass, 216; Toledo, W. & W. R Co. v, Grush, 67 III. 2«3; Smiih 
 V. London & St. E. Dock Go. L. R 3 C. P. 326; 8tr<iUonv. Staples, 59 Me 
 95; Doss V. Missiouri, K. & T. R. Co. 59 Mo. 27. 21 Am, Rep. SH; Lant 
 V. London <fe N. W. R. Co. L. R. 1 Q. B. 277; Elliott v, Pmy, 10 Allen, 
 378; Beanchamp v. Saginaw Min. Co. 50 Mich, 163; Campbell v. Boyd 88 
 N. C, 129, 43 Am. Rep, 740; Corby v. Hill, 4 C. B. N. S. 556; New Or- 
 leans, M. & G. R Go. V. Hanning. 83 U. 8, 15 Wall, 649. 21 L. ed. 220- 
 Bennett v. Louisville & N. R Go. 102 U, S. 577, 26 L. ed, 235; Haves v. 
 Michigan Cent. R. Co. HI U, S. 22S, 28 L, ed, 410; Stewart v, Pennxyl- 
 vania R Co. (Ind.) 14 Am. & Eng. R. Cas. 680, See also Btck v. 
 Carter, 68 N. Y, 283; Graves v, Thomas, 95 Ind. 361; Mark v. St. Paul, 
 M. & M. R. Go. 32 Miun, 208, 
 
 ^Ainky v. Manhattan R. Go. 47 Hun, 208; Timpson v. Manhattan R Co. 52 
 Hun, 489. 
 
 'Johnson v, Manhattan R Co. 52 Hun, 111, See Grafter v. Metropolitan R. 
 Co. L, R. 1 C. P, 300. 
 
 *Kelly V. Manhattan R. Co. 3 L. R. A. 74. 112 N. Y.4.iS;Kd'y v, mio York 
 dS. B. R. Co. 11 Cent, Rep, 874, 109 N Y. 44; Penus'ylmnia Co. v. 
 Marion. 2 West. Rep. 234, 104 lud. 2;j9; Carpenter v. Boston & A. R.Co. 
 97 N. Y. 494; Beard v. Connecticut & P. R. R Co. 48 Vl. 101; McKone 
 V. Michigan Gent. R Co. 51 Micb. 601; St. Louis, L M. & S. R. Co. v. 
 Fairbairn. 48 Ark. 491; Moore v. Wibash. St. L. & P. R. Co. 84 Mo. 481; 
 Moses V. Louisville. N. 0. tfi T. R. Go. 39 La. Ann. 649; Gross v. Lake 
 Shore & M. S. R. Co. 14 West, Rep. 181, fi9 Mich. 363; Bnenetnann v. St. 
 Paul. M. & M R. Go. 32 Mmii. 390; Foulk^s v. Metropolitan Dist. R. Co. 
 L. R. 4 C. P. Div. 267; Bateinan v. New York Cent. & H. R. R. Co. 47 
 Hun, 429; Moi eland v. Boston & P. R. Corp. 1 New Eng. Rep. 909. 141 
 Mass. 31; Pittsburgh, Ft. W. & C. R. Co. v, Brigham, 29 Ohio Si, 374.
 
 96 DEPOTS, STATIOKS AND VVHAKVES. 
 
 by the relation of carriers and passengers; it is measured by the 
 consequence which may follow the want of care.' 
 
 A railroad company is held to the exercise of reasonable care 
 for the safety of its passengers in keeping in a safe condition all 
 portions of its platforms * and approaches thereto, to which tlu' 
 public do or would naturally resort, and all portions of its station 
 grounds reasonablj^ near to the platf(jrms, where passengers, or 
 those who have purchased tickets with a view to take passage on 
 its cars, would naturally or ordinarily be likely to go." But not 
 the utmost diligence which human care and foresisrlit can furnish, 
 in providing access to and egress from its premises.* 
 
 J S4- Duti/ of Carrier zuith Regard to Depots, Sta- 
 tions and Platforms. 
 
 But while a railroad company is liable for injuries caused by 
 
 ^Moreland v. Boston & P. R. Corp. 1 NewEng. Rep. 909, 141 Mass. 31. 
 
 ^McDonald v. Chicago & N. W. R. Co. 26 Iowa, 124; Burqess v. Great We.«f 
 em R. Co. 6 C. B. N. S. 92;}; Cross v. Lake Shore & M. S. R. Co. 14 
 West. Rep. 181, 69 Mich. 3b3; Martin v. Great Northern R. Co. 16 C. B. 
 179, 2 Wood, Railway Law, p. 1166; Smith, Neg. (Whit, ed.) 317. 
 
 ■■'Mordand v. Boston & P. R. Corp. 1 New Eng. Rep. 909, 141 Mass. 31; Pen- 
 dleton St. R. Co. V. Shires, 18 Ohio St. 255. 
 
 * A woman whose health is impaired by fright occasioned by being obliged 
 to throw herself on a railroad platform to escape being struck by projecting 
 timber on a moving car is entitled to recover damages. Buchanan v. Wes' 
 Jersey R. Co. 52 N. J. L. 265, 41 Am, & Eng. R. Cas. 59. 
 
 A passenger rightfully standing on a platform, having just arrived into the 
 depot from another train, may recover for injuries caused by being struck by a 
 car projecting over the platform. Archer v. New York. N. II. & 11. R. Co. 9 
 Cent. Rep. 233, 106 N. Y. 589. See Union Pac. R. Go. v. Sue, 25 Neb. 772; 
 Lake Shore & M. S. R. Co. v. Ward, 135 111. 511; Hulbert v. New Toi'k Cent. R. 
 Co. 40 N. Y. 145; Warren v. Fitchhurg R. Co. 8 Allen, 227; Pennsylvania Co. m. 
 Marion, 2 West. Rep. 284, 104 lud. 239. 
 
 This care extends to the location, construction and arrangement of their sta- 
 tion buildings and platforms. Stafford v. Hannibal & St. J. R. Co. 4 West. 
 Rep. 790. 22 Mo. App. 333; Palmer v. Pennsylvania Co. 2 L. R. A. 252, 111 N. 
 Y. 488. 
 
 The same degree of care is demanded in providing reasonable accommoda- 
 tions at stations for passengers who are invited and expected to travel on their 
 trains. McDonald v. Chicago & N. W. R. Co. 26 Iowa, 124; Bennett v. Louis- 
 mile <£; N. R. Co. 102 U. S. 577, 26 L. cd. 235; Lnhoffv. Chicago <& M. R. Co. 20 
 Wis. 344; Stewart v. International cD G. N. R. Co. 53 Tex. 289; Columbus & I. C. 
 R. Co. V. Farrell, 31 Ind. 408; Knight v. Portland, 8. & P. R. Co. 56 Me. 234; 
 Gay nor v. Old Colony tfi N. R. Co. 100 Mass. 211; Sweeny v. Old Colony & N. 
 R. Ca). 10 Allen, 373.
 
 DUTY OF CAKPaEii WITU KEGAKD TO DEPOTS. \) t 
 
 want of a proper platform or landing place at its station/ and it 
 is the duty of a railroad company to provide good and safe places 
 of egress from its depot platform, at such places as persons would 
 naturally or ordinarily go," yet it is not bound so to construct sta- 
 tions and car platforms as to make accidents to passengers using 
 the same impossible, or to use the highest degree of diligence to 
 make them safe, convenient or useful; it is bound simply to use 
 ordinary care, in view of the dangers attending their use, to make 
 them reasonably adequate to the purpose for which they are 
 intended.' 
 
 The cases are numerous where railroad companies have been 
 held liable for injuries caused by defective platforms,* for failure 
 to keep them clear of snow and ice,* from slipperiness of stairs 
 leading to the station.^ In one case, where the plaintiff, while 
 waiting for the train, it being cold, walked back and forward on 
 the platform in front of the station, and slipping on a strip of ice, 
 fell, dislocating his shoulder, it was held that he could recover.' 
 Carriers are bound by the declaration of their employes repre- 
 senting such places to be safe,* and the obligation of exercising 
 care in keeping their platforms and grounds in a safe condition 
 extends not only to passengers, but to those who come upon the 
 premises, having business with the company,* 
 
 On the question of negligence in a railroad com]mny for failure 
 to have proper accommodations for passengers waiting for trains, 
 
 ^Alexandria <& F. R. Co. v. Herndon, 87 Va. 193; Louisville, N. A. <& G. li. 
 
 Co. V. Lvcas, 6 L. R. A. 193, 119 Ind. 583. 
 ^ Terns &P. R. Co. v. Brow7i, 78 Tex. 397. 
 '^Alexandria & F. R. Go. v. IIenido7i, 87 Va. 193; McDonald v. Chieago cfe 
 
 N. W. E. Co. 26 Iowa, 124; Dobeickiv. Sharjj, 88 N. Y. 203; St. Lotus J. 
 
 M. & S. R. Co. V. Cantrell, 37 Ark. 519; Louimille & N. R. Co. v. Wolfe, 
 
 80 Ky. 82. 
 ■* Wciion V. New York Elev. R. Co. 73 N. Y. 595. See Palmer v. Pennsylvania R. 
 
 Co. 2 L. R. A. 252, 111 N. Y. 488; Smilb, Neg. (Whit, ed.) p. 318; Cornma7i 
 
 V. Eastern Counties R. Co.i Hurlst. & N. 784; Dobiecki v. Sharp, 88 N. Y. 
 
 203; St. Louis, I. M. & 8. R. Co. v. Cantrell, 37 Ark. 519; Chicago & A. 
 
 R. Co. V. Wilson, 63 111. 167; McDonald v. Chicago & N. W. R. Co. 26 
 
 Iowa, 124; 2 Wood, Railway Law, p. 1163. 
 ''Dams V. London & B. R. Co. 2 Fost. & P. 588. 
 ^Shepperd v. Midland R. Co. 20 Week. Rep. 705. See Ainley v. Manhattan 
 
 R. Co. 47 Hun, 206. 
 "^Cincinnati, H. & 1. R. Co. v. Carper, 11 West. Rep. 226, 112 Ind. 26. 
 ^Tobin V. Portland, S. & P. R. Co. 59 Me. 183. 
 "^Stokes V. Suffolk & C. R. Co. 107 N. C. 178.
 
 98 DEPOTS, STATIONS AND WHARVES. 
 
 or any lights for a station platform, or gnards or railings for it 
 where there are no steps, in consequence of which a person wait- 
 ing for a train fell from the platform and was injured, evidence 
 that other persons had also fallen at the same place under similar 
 circumstances is admissible.' The fact that such accidents did 
 happen is sufficient to call the attention of the carrier to the fact 
 that there is danger in the maintenance of the appliances causing 
 the same; that their passengers are in danger during their use, and 
 consequently the carrier cannot claim exemption because there 
 had been nothing to call its attention to the dangers which the 
 passengers ran. 
 
 If, notwithstanding this notice to the railroad company by the 
 happening of accidents, their structure was of such a character 
 that passengers were safe if they used reasonable care, then the 
 mere happening of an accident is no proof of negligence,'' The 
 general rule that, in order that liability shall attach for an injury 
 occasioned by something not inherently dangerous or defective, 
 which is upon the ground of, or in use l\y, one who is under a 
 qualified obligation to the injured person, it must be shown either 
 that the defendant knew, or that, by the exercise of such reasonable 
 skill, vigilance and sagacity as are ordinarily possessed and em- 
 ployed by persons experienced in the particular business to which 
 the thing pertains, he should have known of its defective or dan- 
 gerous condition, and that the natural and probable consequences 
 of its use would be to produce injury to those rightfully at the 
 place,' applies to the carrier regarding the standing about the 
 depot or station platform of articles such as weighing machines, 
 etc.* 
 
 The same rule applies to articles carried into the cars by pas- 
 sengers and over which others stumble, or which may fall upon 
 them from the racks.^ If, either from previous accidents or from 
 
 ^Munouri Pac. R. Co. v. Neisicanger, 41 Kan. 621. 
 
 "^Ilanrahan v. Manhattan R. Co. 53 Ilun, 420. 
 
 ^Kay, Neg. Imp. Duties, Personal, 145, and note 3. 
 
 *Cornrnan v. Eautcrn Counties R. Co. 4 llurlst. & N. 781. 
 
 ^ktiniHOu V. Milwaukee, L. S. <& W. R. Co. 75 Wis. 381 ; Morrin v. New York 
 
 Cent. & II. R. R. Co. 9 Cent. Kep. 288, 106 N. Y. 678; Van Winkle v. Brooklyn 
 
 City It. Co. 46 llun, 564; Byrne v. Boadle, 2 Hurlst. & C. 723; Welfare v. 
 
 lyondon «fe B. It. Co. L. K. 4 Q. B. 693; Beard v. Conn. & P. R. R. Go. 48 Vt. 
 
 101; Murch v. Concord R. Corp. 29 N. H. 9; Qaynor v. Old Colony <& M. 
 
 It. Co. 100 Mass. 208; Chimxjo, B. & Q. R. Co. v. Dewey, 26 111. 255; 
 
 Petty V. Oreat Western It. Co. L. R. 5 C. P. 461, note.
 
 DUTY OF CAKKIER WITH KEOAKD TO DKl'OTS. 99 
 
 the general situation, injury from tlie position of tlio article is to 
 be expected, the carrier is liable.' Ent a carrier is not liable to a 
 passenger injured by her clothing catching on a broken spring 
 hook used to fasten a curtain in upon a railroad car where it is 
 not shown when it was broken, and the breakage might have oc- 
 curred during that trip, the hook not being of such a dangerous 
 character as to require the very highest care to discover and 
 remove it.* 
 
 In a ISew York case' a passenger was injured by the falling 
 upon him of a clothes wriiiger placed in a I'Hck over his seat by 
 another passenger; and the court held tluit the measure of care 
 required of a carrier of passengers in such a case was not the 
 highest care which human vigilance could give, but that the com- 
 pany was only to be held to reasonable care to be measured by 
 the circumstances surrounding the case. 
 
 Where a passenger, after entering a car carrying a satchel. 
 walks along the aisle looking for a seat, and stumbles and falls 
 over satchels in the aisle, none of the employes being in the car. 
 which was lighted at the time, the railroad company is not liable.^ 
 And as to providing buildings, platforms, etc., the rule is set- 
 tled that only reasonable care is required.* So with regard to 
 the length of railway platforms, they are commonly required to 
 be reasonable, and not necessarily to correspond with the length 
 of the train stopping at them,* but a person has a right to walk 
 on an elevated plank walk constructed by a railroad company 
 alongside of its track at a station for the use of passengers and 
 the public, and to suppose liimself in safety while occupying such 
 walk at a point l>eyond the projection of all ordinary trains; and 
 if he is injured by a brake which projected more than the ordi- 
 nary distance, the company is liable; and an employe seeing him 
 there and knowing the extraordinary projection of the brake, in 
 
 ^Nicholson v. Lancashire & Y. B. Co. 3 Hurlst. & C. 534. 
 
 ^ Kelly V. Neio York & S. B. R. Co. 11 Cent. Rep. 874, 109 N. Y. 44. 
 
 ^Morris v. New York Cent, d: H. R. R. Co. 9 Cent. Rep. 288, 106 N. Y. 678. 
 
 *Stmson V. Mihcaukee, L. 8. <& W. R. Co. 75 Wis. 381. 
 
 ^Terre Haute & I. R. Co. v. Buck, 96 Ind. 346; Welfare v. London <t B. R. 
 
 Co. L. R. 4 Q. B. 693: Ci-after v. Metropolitan R. Co. h. R. 1 C. P. 300; 
 
 Cornmanv. Eastern Counties R. Co. 4 Hurlst. & N. 781; Chicago & A. 
 
 R. Co. V. Wilson, 63 111. 167. 
 *Owen V. Great Western R. Co. 46 L. J. Q. B. 486 (per Lush, /.).
 
 100 DEPOTS, STATIONS AND WHARVES. 
 
 failing to recognize liis danger and warn liini against it, is guilty- 
 of negligence.' 
 
 In a well considered case it appeared from the evidence that 
 the plaintiff left the train in company with her two daughters, 
 walked onto the platform of the defendant's railroad station at a 
 point opposite the door of the ladies room of the station, and pro- 
 ceeded directly over and along the platform in a westerly direc- 
 tion for the purpose of reaching her house. "While so walking 
 along the platform past the westerly shed thereof, she was sud- 
 denly struck, thro^^ll from the platform uj^on the track of the 
 railroad company, injured and rendered unconscious. There was 
 conflicting evidence as to there being light enough to warn 
 plaintiff of the dangerous obstacles. It appeared that the plaintiff" 
 was moving M'hen hurt, westerly along the platform from the 
 place where she alighted from tlie train intending to cross the 
 railroad at a point opposite an alley leading to. a street where 
 there was no plank or prepared crossing along the railroad, there 
 being uo steps to obtain access to the alley from the north side of 
 the railroad. There was evidence that the construction of the 
 platform on the south side of the railroad was convenient for the 
 use made of it which was such as was intended by the railroad 
 company, that is to be used by passengers so far as it was neces- 
 sary and convenient for them in entering or leaving the trains. 
 A verdict having been directed for the defendant it was held on 
 appeal that the plaintiff cannot be considei-ed as a trespasser or a 
 mere licensee, if immediately after leaving the train she chose to 
 walk over the platform in the direction she was ^valking for the 
 purpose of leaving the platform to go home. If the place where 
 she was walking was fitted up and intended for the use of passen- 
 gers, altliough the defendant might be under no obligation to fur- 
 nish such a platform; yet if it furnished it and arranged it in such 
 a manner as to invite passengers to walk over it as they found it 
 convenient, while waiting for trains or for conveyances to take 
 them from the station, or while preparing to leave the station, it 
 must exercise due care towards passengers upon it. That the 
 plaintiff intended in her mind after she left the platform to cross 
 the railroad at a i)lacc where she had no right to cross it, is not 
 
 'Sullivan v. VkkHburg, 8. <fc P. R. Go. 39 La. Anu. 800.
 
 CARE OVER DEPOT GROUNDS, APPROACHES AND EXITS. 101 
 
 conclusive of her contributory negligence. She was not neces- 
 sarily a tres]:)asser or mere licensee when and where she was 
 struck, because she intended afterwards to become one or the 
 other. The well known usages of railroad companies and of the 
 public, make it impossible to hold as matter of law that it was 
 the duty of the plaintiff immediately on leaving the cars at the 
 station, to take the shortest practicable route to the nearest highway 
 and that if she did not, she became a trespasser or licensee.' 
 
 § oo. Care over Depot Grounds^ Approaches and 
 
 Exits. 
 
 It is the duty of a railroad company so to fix its station or 
 depot that a passenger who gets off at the depot or place to alight 
 may do so without danger ; and it is also its duty to fix such a 
 way of exit from the depot over its right of way that a passenger 
 may go away from the place at which he is invited to get on and 
 off without danger to life or limb' but it is not the company's 
 duty to see him safe and secure in his exit from the track and 
 over its right of way." It is its duty to provide good and safe 
 places of egress from its depot platform, at such places as persons 
 would natui-ally or ordinarily go ;* but a sufficient platform on 
 one side of tlie track is ordinarily all that can be demanded.' 
 But the situation nuiv require a })rotection upon the other side,' 
 and passengers have the right to assume that the means provided 
 are reasonably safe.'' And a passenger is justified in using a pas- 
 sageway held out by the carrier as a means of entrance and exit 
 from and to the public street, and it is immaterial whether the 
 way is made and kept in repair by the carrier or other parties.' 
 
 ^Keefe v. BosUm & A. R. Go. 2 New Eng. Kep. 660, 142 Mass. 251. 
 hVcKimble v. Boston. & M. R. Co. 139 Mass. 543. 
 ^Central R. Co. v. Thompson, 76 Ga. 770. 
 
 * Terns S P. R. Co. v. Broicn, 78 Tex. 397. 
 ^Michigan Cent. R. Co. v. Coleman, 28 3Iich. 440. 
 
 « Van Ostrand v. JS'etc York Cent. <fe H. R. R. Co. 7 Cent. Rep. 106, 104 N. Y. 683. 
 
 '■Delaware^ L. tf- W. R. Co. v. Trattttmn, 7 L. R. A. 435, 52 N. .J. L. 169, 
 41 Am. & Eng. R. Cas. 187; Pennnylcania Co. v. Marien, 7 L. R. A.' 
 687, 123 Ind. 415; Lucnf^ v. Penmylmnia Co. 120 Ind. 205; P/i ilndelphia 
 W. & B. R. Co. V. Anderxon, 8 L. R. A. 673. 72 Md. 519; Wallace v. 
 Wilmington & N. R. Co. (Del.) Dec. 13. 1889; Toledo, W. cfc- W. R. Co. v. 
 GruHli, 67 111. 262; Bateman v. Xeio York Cent. & U. R. Co. 47 Hun, 429; 
 Liscomb V. AVm) Jersey R: d- Transp. Co. 6 Lans. 75. 
 
 * Collins V. Toledo, A. A. & N. M. R. Go. 80 Mich. 390.
 
 102 DEPOTS, STATIONS AND WHARVES. 
 
 As a general rule, railroad companies are bound to keep in a safe 
 condition all portions of tlieir platforms and approaches thereto, 
 to which the public do or would naturally resort, and all portions 
 of their station grounds, reasonably near to tlie platforms where 
 passei)gers taking passage on their cars would naturally or ordi- 
 narily be likely to go.' 
 
 A railroad company is liable to a passenger for in jui-ies received 
 after leaving the railroad by falling throngh a hole, left uncov- 
 ered in a large shed depot, belonging to and in the control of the 
 company, and used by the company in connection with the packet 
 company whose steamer he was then proceeding to take in con- 
 tinuation of his journey." A raihvay company is not absolved 
 from the duty to keep a passageway held out by it for use to and 
 from its depot reasonably safe, by the fact that another passage- 
 way is provided.^ A railroad company is liable for injuries to a 
 passenger from falling into an opening in a bi'idge leading from 
 its depot to a hotel constituting an eating-house for passengers, 
 where there are two such bridges, — one at each end of the depot 
 and connecting it with the veranda of the hotel, — although it has 
 jiever exercised any control over that in question, and has not 
 used it for three years.* 
 
 Although there is a safe 1) ridge from one platform to another 
 at a I'ailway station, the com])auy will be liable if a passenger is 
 injured in attempting to pass upon another bridge insecurely 
 l)uilt, the circumstances being such as to imply an invitation to 
 ])ass.'' A raih'oad company is Ha hie for persoiuil injuries sus- 
 raiiied by a passenger because of the defective condition of a 
 bridge on its grounds, forming part of a recognized way leading 
 to and from its ti-ains. notwithstanding an agivement on its part 
 with anntlier that tin; latter should keep it in repair/' But the fact 
 that o)ie of the ])laid<s of a bridge overa ditcli at an appi-oach to a 
 raih-oad stjition Nvas shoi-tcr bv S inches than tlie other j)hnd<s does 
 
 • Uni'n, I'ar. ]{. Co. v. Sue, 25 Neb. 772. 
 
 ■■h'nu.rtt V. LoiiisvUlr & N. li. Co. 102 U. S. 577, 26 L. ed. 235. 
 
 ■■■hehnmre., L. tfe W. It. Co. v. Trantwein, 7 I.. R. A. 435. 52 N. .J. T.. 1G9. 41 
 
 Am. & Eng. R. Oas. 187. 
 *haxt Tenneime", V. <fc 6-'. li. Co. v. Watwn (Ala.) Nov. 12, 1891. 
 ■Lo„!/niore v. Oreat Westtrn li. Go. 19 C. B. N. S. 1H5i 35 L. C. P. 135 note. 
 
 * Wofnon V. OjL-anna Lund Co. 92. Ala. 320, .Tan. 30, 1891.
 
 CAKK OVEK DEPOT GKOUNDS, AP1'KUA(JHKS A.ND KXITS. 103 
 
 not of itself constitute neiijligence on tlie part of tlie company, 
 especially where it was plainly observable by passengers.' A 
 recognized way on the grounds of the company to and from the 
 depot, must be kept reasonably safe for passage.* And one 
 •crossing a part of a railroad track, liabitually used by the public 
 in approaching a depot with the knowledge and consent of the 
 railroad company, is not a trespasser." 
 
 The law imposes the duty of keeping the way safe toward all 
 persons using it for a lawful business purpose as long as such use is 
 permitted.* Permission to use a particular path approaching rail- 
 way premises may be accepted by the traveler as an implied 
 assurance of its safety.* So where the company, having neglect- 
 ■ed to provide foot bridges, has permitted passengers, without 
 objection, to cross the rails, more than ordinary care is exacted 
 from them;* nor will a printed notice protect the company where 
 there has been practically acquiescence in the practice.^ 
 
 This duty, however, would not protect a traveler where such 
 non-acquiescence was shown, who crossed the line although he 
 knew that a bridge was provided.* And the fact that a railroad 
 track from a depot to the main street of the village is customarily 
 used as a shorter cut does not make the railroad company liable 
 for an injury received by a passenger from falling into a cattle 
 guard on the track, where all necessary platform accommodations 
 are furnished to the only highway leading to the town." Indeed, 
 so long as the approaches and platform at stations are safe and do 
 not expose persons, having occasion to use them, to the chance of 
 
 ^Stokes V. Suffolk & C. R. Co. 107 N. C. 178. 
 
 Wross V. Lake Shore & M. S. R. Co. 14 West. Rep. 181. 69 Mich. 363; Bela- 
 
 ney v. Milwaukee & St. P. R. Co. 33 Wis. 67; Hulbert v. New York Cent. 
 
 R. Co. 40 N. Y. 145; DiUaye v. New York Cent. li. Co. 56 Barb. 30; Gaynor 
 
 V. Old Colony <fc N.R. Co. 100 Mass. 208; I'obin v. Portland, S. & P. R. 
 
 Co. 59 Me. 183; Hoffman v. New York Cent. & H. R. R. Co. 75 N. Y. 605; 
 
 Cartwrif/ht v. Chicago & G. T. R. Co. 53 Micli. 606. 
 ^Chicago & E. I. R. Co. v. Hedges, 3 West. Rep. 892, 105 Ind. 398. 
 ^Wendell W.Baxter, 12 Gray, 494; Low v. Grand Trunk R. Co. 72 Me. 313, 
 
 39 Am. Rep. 331; Collett v. Tendon & N. W. R. Co. 16 Q. B. 984. 
 Utogers v. Rhymney R. Co. 26 L. T. N. S. 879. 
 
 ^Girdwood v. N. B. R. Co. Court of Sessions, 4lh Session, Vol. IV, p. 115. 
 'Dublin, W. & W. P. Co. v. Slaitery, L. R. 3 App. Cas. 1155. 
 *]\ilby V. Midland R. Co. 35 L. T. N. S. 244; Clarke v. Midland E. Co. 43 L. 
 
 T. N. S.381. 
 ^Sturgis v. Befrait, G. H. d- M. B. Co. 72 Mich. 619.
 
 lU4: DEPOTS, STATIONS AND "WHARVES. 
 
 danger or iueonvenience which may occasion liurt to tliem, it 
 cannot be said that the raih'oad company is negligent.' But 
 where the consignee of a coal wagon, with the permission of the 
 proper officer of a railroad, went to his wagon which could not 
 be unloaded at the usual place, but liad been there placed, and in 
 descending from the wagon on the pathAvay was injured by a 
 flag-stone upon which he stepped giving way, an action was sus- 
 tained against the railway company." 
 
 § 06. Removal of Ice and Siunv from Station and 
 Car Platforms. 
 
 The degree of care required of railroad corporations in the- 
 removal of ice or snow from railway stations and steps and from 
 car platforms must be genei-allj' determined by the circum- 
 stances of each case; but they should not be held responsible for 
 dangers produced by the elements, until they have assumed a 
 dangerous form and there has been' a reasonable opportunity to 
 remove their eiiects. 
 
 In a recent ]^ew York case, it was held that the rule requiring the 
 utmost possible care in discovering defects in the tracks and run- 
 ning machinery of a road did not apply where a passenger was 
 injured by slipping on the platform of a car which had become 
 slippery on its passage during the night because of a storm which 
 was raa-insr during; that time. 
 
 It was said in that case that the trial court was not justified in 
 applying to the case the rule pertaining to the construction and 
 maintenance of tracks and running machinery by railroad corjxj- 
 rations, which holds them to the use of the utmost possible care 
 in discovering and remedying defects therein. That rule is appli- 
 cable to such appliances of a railroad as would be likely to occa- 
 sion great danger and loss of life to the traveling public if defects 
 existed therein, on account of the velocity with which cars are 
 moved, and the destructive and irresistible force which accom- 
 panies such motion. 
 
 Tlie defendant was not bound to keep its platform in such a 
 condition that it would have been impossible for any passenger to 
 
 U\nmylTrihi<i Co. v. Marmi, 2 West, liep, 2:]«, 104 Ind. 2.S9. 
 ''Holme* V. jS'orthenMrrn li. Co. L. 1{. J Kxcli. 2.-)4. 1.. \\. f> Kxch. 123.
 
 REMOVAL OF lOE AND SNOW FROM PLATFORMS. 105 
 
 slip, but in such a coudition that a person using ordinary care, 
 which people use when not apprised of danger, would not slip. 
 This was applied in a case where the snow had fallen long before 
 the accident and an effort had been made by the railroad com- 
 pany to remove it, but it had imi)erfectly performed that duty. 
 
 Such a rule is not applicable to the removal of snow and ice on 
 cars attached to a running raih-o;ul train traveling in the night 
 durino; a continuous stonn. The immediate and continuous 
 removal of all snow and ice from such trains, or the covering of 
 them with sand or ashes in such manner that no slippery place?^ 
 shall be at any time exposed, would be quite impracticable and 
 beyond the duty which a railroad company owes to its passengers. 
 The presence of snow or ice upon exposed places on moving cars 
 is an accident of the hour, and no ordinary diligence could, during 
 the prevalence of a storm, wliolly remove its effects from the 
 places exposed to its action, so as to prevent accidents to heedless 
 and inattentive travelers. A })assenger on a railroad train has no 
 right to assume that the effects of a continuous storm of snow, 
 sleet, rain or hail will be immediately and effectually removed 
 from the exposed platform of the car while making its passage 
 between stations or the termini of its route, and it would be an 
 obligation beyond a reasonable expectation of performance to 
 require a railroad corporation to do so.' The decree of care and 
 diligence required of such corporations, under such circumstances, 
 must be somewhat analogous to that imposed upon municipal cor- 
 porations in respect to the removal of snow and ice from public 
 streets. Those corporations are required to remove dangerous 
 accumulations of snow or ice in a street or public place within a 
 reasonable time after they have occurred, but they are not to be 
 deemed negligent if they do not remove all traces of such ol).struc- 
 tions when they do not constitute sonu^thing more than the pres- 
 ence of a danger arising alone from their inherent quality of being 
 slippery." 
 
 In another case, it appeared that in the early morning of Jan- 
 
 ^Palmer v. Pennsylvania Company, 2 L. R. A. 252, 111 N. Y. 488. See Un- 
 ger v. Forty-Second St. & G. St. F. R. Vo. 51 X. Y. 497. 
 
 ^Taylor v. Tonkers, 7 Cent. Rep. 230, 105 N. Y. 202; Kinney v. Iroy, 11 
 Cent. Rep. 454, 108 N. Y. 570; Kaceny v. Tr<>y, 11 Cent. Rep. 342, 108 
 N. Y. 572.
 
 106 DEPOTS, STATIONS AND WHARVES. 
 
 narj 17, 1886, plaintiff's intestate was a passenger on defendant's 
 road. He left the train at 116th Street and Third avenue, and 
 while descending the stairway to the street he slipped and fell to 
 the ground. He received severe injuries, from thie effects of 
 which he died within a few days thereafter. The night was cold 
 and stormy. Snow fell mixed with sleet, and the sidewalks were 
 rendered very slippery. This the deceased knew, for he walked 
 upon them from the saloon to the 34th Street station. The storm 
 commenced about midnight and continued until nearly four 
 o'clock in the morning, and this accident happened between half 
 past 5 and 6 o'clock. The defendant had furnished a covered 
 stairway with hand rails and pieces of rubber on each step to 
 prevent slipping; and it was said by the court, after the review of 
 these cases, that the failure to throw ashes or sawdust, or some- 
 thing of that character, upon the steps during the storm cannot be 
 regarded as negligence, because the continuance of the storm 
 would soon render the steps as slippery as before; and culpable 
 negligence cannot be predicated upon the failure to clean oft" the 
 steps between the time the storm ceased, which was between 3 
 and 4 o'clock in the morning, and the time when the accident hap- 
 })ened. So brief a period as that, at such a time in the night, can- 
 not be regarded as any evidence of a lack of tliat reasonable 
 care which the defendant was bound to exercise." 
 
 An earlier case" was reviewed, in which the plaintiff sustained 
 injury by falling upon an uncovered platform between a waiting- 
 room and defendant's cars, and over which platform it was nec- 
 essary to pass to reach the cars, and which platform the defendant 
 had negligently suffered to become covered with snow and ice, 
 I'endering passage over it insecure and dangerous. The evidence 
 allowed that during the day, and before the accident hap])ened, it 
 liad snowed, and the snow had been but partially removed from 
 the platform. The plaintiff, while proceeding with caution, lost 
 his footing, fell and was injured. The evidence showed that other 
 j)assengers, at about the same time, slipped upon the platform. 
 I'here was no ditHculty in making the platform safe, and the 
 Jiccident hapiK'ned in the daytinic. A verdict for the plaintiff" 
 
 ^Kelln V. Mnnhaltan Jl. (h. 'i L. K. A. 74, 112 N. Y. 443. 
 » Weston V. New York Elec. II. Co. 73 N. Y. nOo.
 
 CARE OVER WHARVES AXD APPROACHES TO VESSELS. 1<>7 
 
 was sustained. The court below had charged that the defendant 
 was bound to be on the alert during cold weather, and to see 
 whether there was ice upon the platform, and to make it safe by 
 putting sand or aslies upon it, or in some otlier way. On appeal 
 the court held that that was not too stringent a rule.' 
 
 In deciding the case of Kelly v. Manhattan R. Co. it is said 
 that it materially differs from that of We^itini v. New York Elev. 
 R. Co. In the Kelly case there was a coiitinuous storm 
 of sleet and snow from about 12 to 4 o'clock, and within two or 
 three hours after the storm ceased, and in the very early morning, 
 the accident occurred. The staircase was covered and the roof 
 projected a foot on each side of it. There were rubber tips on 
 each step and a hand rail on either side to aid passengers in going 
 up and down the stairs. Under such circumstances it was held 
 that the duty even of alertness on the part of the defendant 
 was not omitted by a failure to render the stairs less slij^pery at 
 such a time in the night and Avithin the period named. 
 
 %S7. Care Over Mliarves and Approa cites to Ves- 
 sels. 
 
 A carrier owning a wliarf or coutrwlling the same is bound to 
 keep it in safe condition for the use intended. If the peril be 
 slight only ordinarj- care is required, but if life or limb be at risk, 
 the degree of care required to prevent injury to tlie passeno-er is 
 in proportion to the hazard. 
 
 An action was against the proprietors of a wharf, by a person 
 who had been injured by a defect in the wliarf, such person hav- 
 ing used due care. The defendants were held legally bound to 
 exercise ordinary diligence to keep their wharves safe for those 
 who had a right to pass over it; as an inn keeper is bound to keep 
 the access to his inn and the passages and apartments in it safe 
 for those who may wish to enter, or who have entered it legallv." 
 
 Where the plaintiff, by invitation of one of the officers of a ship 
 lying in defendant's dock, went on board the ship, the defendant 
 
 'See Ainley v. Mnnhattan R. Co. 47 Hiin, 300; Tttiqmm v. Manhattati M Co. 
 53 Hun, 489. 
 
 * Wendell v. B,i.rter, 12 Gray, 404.
 
 108 DEPOTS, STATIONS A^D WHAKVKS. 
 
 was held liable for a cliauo;e made in the gangway by defendant'^ 
 servants, by whicli plaintiff was injured.' 
 
 A steamship company is liable in failing to provide a proper 
 gangplank to connect the steamship with the wliarf; and a gang- 
 way consisting of a single narrow plank without battens or ropes, 
 is altogether improper and unsafe, and the carrier is liable for the 
 death of a passenger drowned while going there on an errand on 
 the eve of departure. ^ 
 
 Where the only convenient access to the company's wharf boat 
 was through hatch-holes opened in a depot floor, and a passenger 
 fell through, the company was held liable/ The rule is the same 
 as to the diligence of the carrier, where it uses a wharf boat or 
 hulk, whether its own property or that of another, as a means of 
 access to or egress from its vessel/ And the same rule applies to 
 all carriers whether by land or water, and where a wreck of a 
 railway train occurs and an attempt is made to transfer passengers 
 from one train to another, the means of transit must be safe and 
 sufficient, and if necessary light must be provided to enable the 
 passengers to pass securely/ So the use by a stage coach com- 
 pany of a ferry involves the liability of tlie stage company for 
 any defect in the boat causing injury to passengers/ 
 
 The mere existence, during the storm which caused it, of snow 
 on the deck of a ferry boat, raises no presumption of negligence 
 on the part of the ferry company which will establish its liability 
 to respond in damages to a passenger who receives injuries by 
 falling on the slij'tpery deck/ If tliere he no reason to anticipate 
 the insufficiency of the means employed by the passenger carrier 
 to receive and land passengers, there can be no cluirge of negli- 
 gence and therefore no liability. Thus, where an accident hap- 
 
 hS^nitJi V. Lo7idon tfc Sf. K. Dorks Co. L. R. 3 C. P. 326. 
 
 ^Erebrik v. Carr, 29 Fed. Hep. 298. 
 
 ^Bennett v. Lovisvil/e <& J!^. R. Co. 102 U. S. 577, 26 L. ed. 235. See also 
 
 Toledo, W. d; M'". R. Co. v. Grush, 67 111. 262; Penmylmnia Co. v. 
 
 Marieu, 7 L. H. A. 681, 123 Ind. 415; Lucas v. Pennsylvania Go. 120 
 
 Ind. 205; Liscomh v. New Jersey R. tfc Transp. Co. 6 Lans. 75. 
 *John V. Bacon, L. R. 5 C. P. 437; Hannibal cfc St. J. R. Go. v. Martin, 111 
 
 III. 219; LoftuH V. Union Ferry Go. 84 N. Y. 455. 
 ' Vicksburg & M. R. Co. v. Uotce, 52 Miss. 202. 
 '".McLean v. Burbank, 11 Mini). 277. 
 "^Fcarn v. West .Jersey Ferry (Jo. (Pu.) 13 L. T{. A. 360.
 
 LIABILITY TO STRANGER FOR DEFECTIVE PLATFORil. 1()9 
 
 peued to a child on account of falling throngli or over the guard 
 on the side of a float used by passengers going upon and leaving 
 a ferry boat, the fact that multitudes of persons had passed over 
 the same bridge without injury was said to negative the likeli- 
 hood of such an accident.' 
 
 § 38. Licthilitij to Stranger for Defective Statioiv 
 
 PlatfoTin. 
 
 The carrier is not under the same degree of obligation to a 
 stranger as it is to a passenger; to its passenger the utmost care 
 and diligence are required, while to a stranger only reasonable care 
 is due.' Its duty is governed by the general principle of conforming 
 ■conduct to the rights of others, and using reasonable precautions 
 to avoid their injury.' 
 
 One who goes to a railroad station and on the platform as a 
 mere spectator for his own pleasure and convenience is there at 
 his own risk and peril, and cannot recover for injuries received 
 in consequence of a defective platform, unless there was gross 
 and wanton negligence on the company's part equivalent to inten- 
 tional mischief." 
 
 B'urhanh v. III. Cent. R. Co. was a suit for damages for personal 
 injuries received by the plaintiff by falling through a hole in the 
 platform of the defendant company at the town of Tangipahoa, on 
 the night of the 23d of September, 1889. There was judgment for 
 the plaintiff for the sum of $1,500. The defendant company ap- 
 pealed. The plaintiff, in company with two other ladies, visited the 
 defendant's depot for the purpose of being present on the arrival of 
 the 8 o'clock passenger train from JS'ew Orleans. In her petition 
 the plaintiff alleges that she was expecting friends on the train 
 from New Orleans who might desire to stop at the boarding-house 
 of which she was the proprietor. On this important fact in her 
 
 ^Loftus V. Union Ferry Co. 84 N. Y. 455; Dongan v. Ghamplain Transp. Co. 
 56 N. Y. 1; Crocheron v. North Shore S. I. Ferry Co. 56 N. Y. 656: 
 Cleveland v. Mw Jersei^ S. B. Co. 68 N. Y. 306; Burke v, Witherbee, 98 
 N. Y. 562; Marsh v. Chickering, 2 Cent. Rep. 419, 101 N. Y. 396. 
 
 ^Brand v. Schenectady & T. R. Co. 8 Barb. 368; Virginia Cent, R. Co. v. 
 Sanger, 15 Gratt. 230. 
 
 ^Snyder v. Natchez, R. R. & T. R. Co. 42 La. Ann. 302. 
 
 *Burbank v. Illinois Cent. R. Co. 11 L. R. A. 720, 42 La. Ann. 1156 45 Am, 
 & Enoj. R. Cas. 593.
 
 llU Dti'UTS, i?TAXloJSb ASH WHARVES. 
 
 testimony she is silent. The ladies who accompanied her state 
 that the plaintiif \vas expecting no particular visitor or visitors 
 that evening, but she went to the train for the purpose of seeing 
 if there were any persons on the train who might wish to go to 
 her boarding-house. It is not stated in the petition, nor is there 
 any evidence to show, that the plaintiff was in the habit of going 
 to the train to solicit custom for her boarding-house. It is evident 
 frona the statement of the witnesses, and from her silence as to 
 the particular reason which induced her to go to the depot, that she 
 had no defined purpose in going there. Her presence on the 
 platform and at the depot was not for the purpose of transacting 
 any business with the company, to receive freight, welcome 
 friends or for any purpose for which the depot had been built. 
 She was at the depot, it is true, by the general license from the com- 
 pany, in the absence of any express prohibition. It would not be 
 practical for a railroad company, in the immensity of its business, 
 to designate particular individuals who should be permitted to 
 enter its depot. But there was no express or implied invitation 
 to the plaintiff to go to the depot and on the platform. Had the 
 plaintiff" been on the platform for the purjDOse of receiving ex- 
 pected guests, or on imy other business connected with the rail- 
 road, to transact which the platform was built, she would be 
 entitled to recover damages for the in jui-ies received from a defective 
 platform, the result of the company's negligence.' 
 
 From the evidence in the record it is said the fact is clearly 
 established that the plaintiff was on the platform for pleasure only, 
 and not with the intention of transacting any business with the 
 company, or for the purpose of receiving friends expected on the 
 train. Her presence on the platform was at her own risk and 
 peril. Railroad platforms are not made for the use of the public, 
 and, if persons not invited and having no business with the com- 
 pany are injured in consequence of a defect in the platfoi-m, they 
 have no redress. The court concluded that there was no induce- 
 ment offered by the defendant to plaintiff w^hich was equivalent 
 to an invitation to go U])on tlie platform. Mere permission, be- 
 
 Wenifton v. Chimfjo, St. L. & N. 0. R. Co. 34 La. Ann. 780; Turner v. 
 Vickxburg, S. <fe P. li. Co. 37 La. Ann. 648; Moses v. Louisville, N. 0. <& 
 T. R. Co. 39 La. Ann. 049; Sullivan v. Viclcsburg, S. & P. R. Co. 39 La. 
 Ann. 800.
 
 LIABILITY TO STKANGEK FOK DEFECTIVE PLATEOKxM. Ill 
 
 cause it is impossible to refuse it, is not an iiiduceinent or an invi- 
 tation to enter on the premises of another. Tlie person entering 
 on the premises of another under sucli circumstances goes at liis 
 own risk, and enjoys the hcense subject to its attendant perils. 
 The law does not impose the duty upon the owner to keep his 
 premises in a condition of such repair as to suit the convenience 
 of those who g-o there solely for their own pleasure, and who are 
 not invited or induced to go upon them. The defendant com- 
 pany under the facts in this case could only be made liable if the 
 uncovered platform through which the plaintiff fell was in its 
 nature a trap. There must have been on the part of the company 
 such gross and wanton negligence that it was equivalent to inten- 
 tional mischief. 
 
 The station-house offered ample accommodations for passengers 
 and visitors on business. There was a waiting-room for passengers^ 
 with all refpiisite appliances for egress and ingress. There was a 
 graveled walk along the track, and between it and the depot, for 
 passengers and visitors in waiting. From this walk an inclined 
 plane reached up to the platform. There were platforms on the 
 several sides of the building. The south side platform was used 
 exclusively for freight. The flooring on this had been taken u}) 
 for repairs. There was a lamp at the north side of the building* 
 which threw a light along the west platform intended for the use 
 of passengers. This light did not reach the south platform, which 
 was at the south end of the building, and at right angles to the west 
 platform. The plaintiif Avas sitting on the edge of the west plat- 
 form. She jumped to the gravel walk, and went to the end of 
 the platform at the south side, ascended the inclined plane, and fell 
 tln-ough an opening on tlie south platform. The change of posi- 
 tion by the plaintiff, it is alleged, was to get a better view of the 
 inside of the coaches as the train approached. But it seems this 
 Avas a needless change of position, if the plaintiff really intended 
 to see people coming from the train. The gravel walk was 
 specially designed for the purpose of going to or coming from the 
 train. The part of the system of platforms through which plain- 
 tifi fell was dark, and this fact alone ought to have warned her of 
 danger. The absence of a light was at least a notice that no one 
 was expected on that part of the platform. Being a freight plat-
 
 112 DEPOTS, STATIONS AND WHAIIVKS. 
 
 form, it was not to be expected that it would used as a promenade. 
 In repairinor this part of the platform around the depot on the 
 south side, the act of leaving it unprotected did not make the 
 opening in the nature of a trap, and the defendant company was 
 not guilty of that degree of gross negligence that was equivalent 
 to intentional mischief.' 
 
 ^Snyder v. Natchez, i?. E. c£ T. R. Co. 43 La. Ann. 302.
 
 CHAPTER VII. 
 
 CONTROL AND CARE OF DEPOTS AND GROUNDS. 
 
 § 39. Regulations for Admisdon and Exclusion from Dcjjot Grounds. 
 
 § 40. Carrier Cannot Exclude Employe, of Passenger. 
 
 § 41. Exclusion of other Carriers. 
 
 § 42. Approaches Provided upo?i the Premises of others. 
 
 % 43. Wlio are Entitled to Protection in Use of Waiting Rooms, 
 
 Platforms, etc. 
 % 44. Depots and Stations 7nuftt lie Lighted and Warmed. 
 § 45. Protecting Passengers Between Depots or Stations and Cars. 
 % 46. Exposing Passengers to Danger from Passing Trains. 
 
 % S9. Regulations for Admission and Exclusion 
 from Depot Grounds. 
 The question of reasonableness of the rules of a railroad com- 
 pany, affecting third persons, is generally a mixed question of law 
 and fact, and it is always proper to submit such a question to the 
 jury under instructions.' It is true that, inasmuch as the law 
 charges the carrier with certain responsibilities for the condi- 
 tion of its depot and station and the grounds embraced and for 
 the maintainance of order and security therein, a railroad com- 
 pany can make all needful reasonable rules and regulations con- 
 cerning the use of its depots and grounds, and can exclude all 
 persons therefrom who have no business with the railroad or pas- 
 sengers going to and coming from the trains or depots, and it is 
 reasonable for a railway company to provide that a person must 
 purchase a ticket, or be excluded from its station." And it may 
 establish and enforce a rule requiring a person desiring passao-e 
 to procure, and to exhibit to its employes, a ticket entitling him 
 to such passage, before entering the cars.^ And it probably can 
 
 ^Bm» V. Cliicago & N. F. H. Go. 36 Wis. 450, 17 Am. Rep. 495. 
 
 '^Harris v. SUtens, 31 Vt. 79. 
 
 ^Pittsburgh, C. & St. L. B. Co. v. Vandyne, 57 Ind. 576. 
 
 8 113
 
 114 CONTROL AND CAKE OF DEPOTS AND GROUNDS. 
 
 prohibit all persons from soliciting business for themselves upon 
 its premises ; yet there are authorities which seem to rest upon 
 sound principle, holding that it cannot, arbitrarily, admit one 
 common carrier of passengers or freight to its depots or grounds, 
 and exclude all others, for no other reason than that it is for its 
 own profit or pleasure. Such rules or regulations it is insisted by 
 these authorities, must touch and effect all alike. 
 
 Each hackman may be assigned a separate stand at the depot 
 ground of a railroad company, and may be ejected from the stand 
 assigned to another for refusing to leave it, if no unnecessary force 
 is used.* It may determine the distance from its depot or track at 
 which persons soliciting passengers may stand while on its grounds, 
 but this determination must afEect and apply to all. While the own- 
 ership carries with it a right of control over the depot or wharf 
 in most respects the same as in private property yet a railroad 
 station or steamboat wharf is, to some extent, a public place. 
 
 The carrier has provided its depot or wharf for the use of per- 
 sons desirous of transportation on its trains to or from its stations 
 and holds it for that pm*pose ; and it has no right to exclude from 
 it persons seeking access to it for the use for which it was in- 
 tended and held. It can subject the use to rules and regulations, 
 but the use must be such (in many of the states by statute, and in 
 others under decisions recognizing it as common law), as to secure 
 reasonable and equal use of the premises to all having such right 
 to use them." The public have the right to come and go there 
 for the purpose of travel ; for taking and leaving passengers ; and 
 for other matters growing out of the business of the company 
 as a common carrier. But the company has the right to say that 
 no business of any other character shall be carried on within 
 the limits of its property. It has the right to say that no one 
 shall come there to solicit trade, simply because it may be con- 
 venient for travelers, and so — according to many authorities — to 
 
 ^Cole V. Bowen (Mich.) 13 L. R. A. 848. 
 
 *How. Slat. Mich. § SSoS; Kalamazoo Hack & B. Co. v. Sootsrna, 10 L. R. A. 
 81!», 81 Mich. 104; Pub. Slat. Massachuscits, chap. 112, t^ 188; Old Col- 
 ony li. Co. V. Tripp, G New Eiig. Kcp. u6G, 147 Mass. 3); FUcJibuig B. 
 Co. V. Gaije, 12 Gray, :if)3; Spofford v. Boston & M. R. Co. 128 Ma-s. 326; 
 I'drkiiiKon v. Great Wentern It. Co. L. II. 6 C. P. 554; Palmer v. London, 
 B. & S. C. It. Co. L. K. () C. P. iy4; New Eng'and E.rp. Co. v. Maine 
 Cent. It. Co. 57 Me. 188; Marriott v. London d 8. W. B. Co. 1 C, B. N. S. 
 4liy.
 
 CAEEIER OANNOT EXCLUDE EMPLOYE OF PASSENGER. 115 
 
 say that none, except those whom it permits, shall solicit in the 
 business of hacking or expressing. When notice of such prohibi- 
 tion has been given, the license which otherwise might be implied 
 is at an end, and it is the duty of persons engaged in any such 
 business to heed the notice and to retii'e from the premises.' 
 
 It is said a railroad corporation may exclude whom it pleases 
 from its trains, tracks, and right of way when they come to trans- 
 act their own private business with passengers or other third per- 
 sons, and admit whom it pleases when they come to transact such 
 business. This applies to selling lunches to, or soliciting orders 
 from, passengers for the sale of lunches.* 
 
 An innkeeper or his agent who comes to solicit passengers to 
 patronize his inn, may, after due notice, be excluded by all neces- 
 sary force.' It may exclude omnibuses, public hacks and other 
 vehicles by a general regulation and enforce the same.* But this 
 exclusion under some authorities must be without partiality or 
 personal motive.* But one who has violated a regulation of 
 the carrier in unlawfully soliciting, if he desires to exercise the 
 rights of a passenger, must inform of his intention to take passage 
 when he enters the premises for that purpose, or his ticket will 
 not protect him, nor will a ticket, if procured for the mere pur- 
 pose of entering the premises unlawfully, protect the holder.* 
 
 § 4O' Carrier Cannot Exclude Employe of Pas- 
 senger. 
 
 But while admitting the general control of the carrier over 
 its depots, there are a class of cases which hold that the company 
 cannot deprive a passenger of the ordinary rights and privileges 
 of a traveler, among which is the privilege of being transported 
 from the terminus in a reasonably convenient and usual way. A 
 
 ^Barney v. Oyster Bay & H. S. B. Co. G7 N. Y. 301 ; Com. v. Power, 7 Met. 
 
 596. 
 *Fluker v. Georgia B. & Bkg. Co. 2 L. R. A. 843, 81 Ga. 461. 
 ^Landrigan v. State, 31 Ark. 50; Com. v Power, 7 Met. 596. 
 *Barker v. Midland R. Co. 18 C. B. 46, 50: Barret v. Oreat NortJiern E. Co. 1 
 
 C. B. N. 8. 433; Harris v. Stevens, 31 Vt. 79; Ball v. Power, 13 Met. 482; 
 
 Com, V. Power, 7 Mel. 596. 
 ^Com. V. Poicer, 7 Met. 596; and see Re Mariott, 1 C. B. N, S. 499, where the 
 
 statute only expressed the comniou law. 
 *Com. V. Power, 13 Met. 483; Harris v. Stevens, 31 Vt. 79.
 
 116 CONTKOL AND CAKE OF DEPOTS AND GROUNDS. 
 
 company cannot compel a passenger to take one of certain car- 
 riaj^es, or none at all ; nor impose unreasonable restrictions, which 
 will amount to that. If a passenger orders a carriage to take him 
 from the terminus, such carriage \&^ pro hac mce, a private car- 
 riage, not in the sense that the passenger has a special pi-oj)erty in 
 it, so as to be liable for the driver's negligence, but in the sense 
 that it is not " standing for hire." ' 
 
 The driver is not engaged in his vocation of soliciting patron- 
 age, but is waiting to take one with whom a contract has ah'eady 
 been made. No question can be made that a passenger may have 
 his own carriage enter the premises of a carrier to take hitn away ; 
 but to say that one who is not so fortunate as to own a carriage 
 shall not be allowed to call the one he wants, because it is a 
 hackney carriage, would, it is said, be a discrimination intolerable 
 in this country. Every passenger has the right, upon the prem- 
 ises of the carrier, to reasonable and usual facilities for arrival 
 and departure ; and, so far as this includes the right to be taken 
 to and from a station or wharf, it is immaterial whether he goes 
 in a private or a hired carriage. Decisions upon this question 
 have not been numerous, and there are but few directly in point, 
 although in others there are dicta which indicate what is under- 
 stood to be the law. 
 
 Summitt v. State, 8 Lea, 413, was a conviction of the defendant? 
 a watchman in a depot, for assault in ejecting a hackman there- 
 from. The company had forbidden hackmen to enter the build- 
 ing. Notwithstanding this rule, the right of a hackman to go 
 into a part of the depot to obtain the baggage of a passenger, 
 whose check he had, was not controverted. The prosecutor, 
 having the check of a passenger, was in another part of the 
 depot; but it was held that the defendant was not justified in 
 ejecting him altogether from the station, and the conviction was 
 sustained. 
 
 Tohin V. Portland, S. c& P. R. Co. 59 Me. 183, was an action 
 for damages by a hackman who was injured by stepping on a 
 defective platform when leaving a passenger at the station. The 
 court says: "The hackman, conveying passengers to a railroad 
 depot for transportation, and aiding them to alight upon the plat- 
 
 ^MoHterHon v. Short, 33 How. Pr. 481.
 
 CAKKIEU CANNOT EXCLUDE EMPLOYE OF TASSENGEK. 11 » 
 
 form of the corporation, is as riglitfully upon the same as the 
 passengers ahgliting." In this case it was not claimed that any 
 rules had been violated. 
 
 In a recent Massachusetts case, which was an action of tres- 
 pass against an expressman who solicited patronage in the plain- 
 tiff's station, contrary to its rules, W. Allen, «/., said : " Passen- 
 gers taking and leaving the cars at the station, and persons setting 
 down passengers or delivering merchandise or baggage for trans- 
 portation from the station, or taking up passengers or receiving 
 merchandise that had been transported to the station, had a right 
 to use the station buildings and grounds, superior to the right of 
 the plaintiff to exclusive occupancy. All such persons had business 
 with the plaintiff, which it was bound to attend to in the place and 
 manner which it had provided for all who had like business with it." 
 A statute of Massachusetts prescribes that railroad corporations 
 shall give to all persons equal facilities for the use of its depot. 
 The court held that this statute applied only to the relations 
 between common carriers and their patrons, or those who had the 
 right to use the station. It did not give the defendant the right 
 to go there to solicit business because another had the right.' 
 
 In an action of trespass, brought by an innkeeper against a 
 stage driver, the court said the defendant had clearly a right " to 
 go to the plaintiff's inn with travelers, and he might of course 
 lawfully enter it for the purpose of leaving their baggage and 
 receiving his fare.^ 
 
 In the case most nearly in support of the right of exclusion it 
 was held that an omnibus proprietor, carrying passengers to and 
 from a station, could not maintain an action for a refusal to allow 
 him to drive his vehicle into the station yard. As the proprietor 
 was not using or seeking to use the railway, it was considered 
 that the company owed him no duty.^ Jervis, Cli. J.^ said a pas- 
 senger would, no doubt, have a right of action, if unduly ob- 
 structed, but a violation of duty to him would not give an action 
 to the plaintiff. It is to be observed that the recent English 
 
 'OW Colony B. Co. v. Tripp, 6 New Eng. Rep. 366, 147 Mass. 85. See also 
 Harris v. Stevens, 31 Vt. 79. But see Kalamazoo H. & B. Co. v. Stu/Uma, 
 10 L. R. A. 819, 84 Mich. 194; Cravens v. Bodgers, 101 Mo. 247. 43 Am. 
 «& Eng. R. Cas. 656; Montana V. B. Co. v. Lanyhis, 9 Mout. 419. 
 
 ^Mnrkham v. Broicn, 8 N. H. 523. 
 
 *Baiker v. Midland B. Co. 18 C. B. 46.
 
 118 CO>"TROL AND CAKE OF DEPOTS AND GROUNDS. 
 
 cases are mainly controlled by statute' to wliicli the Massachnsetts 
 statute is similar. They relate chiefly to the question whether a 
 prohibition to one, to ply for passengers within a station, when 
 the same right is granted to another, is an undue preference, un- 
 der the statute. In has been held that it is not.'' 
 
 In Marriott v. London <& S. W. R. Co. 1 C. B. E". S. 499, the 
 defendant comj)any was ordered to admit the complainant's omni- 
 bus into the station to receive and set down passengers and goods, 
 as other public vehicles were admitted. 
 
 Griswold v. Webh, 7 L. R. A. 302, 16 R. I. 649, differs from 
 Barker v. llidland B. Co. 18 C. B. 46, in this : that in the 
 American case the hackney driver is not plaintiff, seeking to re- 
 cover damages for the revocation of a license to go upon the 
 wharf, or for a breach of duty to another, but he is the defendant 
 against an alleged trespass, and relied upon his right as servant of 
 the other to justify his being there, and it is held that the 
 justification is sufficient; that such permission is substantially 
 given by the lease of the wlmrf to the steamboat company as a 
 terminus. This does not deprive the owner of the general con- 
 trol of his wharf, nor interfere with his reasonable rules for its 
 management. It simply secures to a passenger the common 
 privilege of a passenger, and enables the hackney driver to shield 
 himself from an apparent violation of the rules only when he is 
 acting, bona fide, as the servant of such passenger. This qualifi- 
 cation guards the owner from an incursion of unlicensed drivers 
 under a mere pretense of serving passengers, and also confines the 
 right of soliciting business on his premises to those whom he may 
 permit. 
 
 % 41. Exclusion of Other Carriers. 
 
 Tlierc are many well considered cases which deny the right of 
 a carrier to exclude one class of carriers from its grounds and to 
 
 •17 and 18 Vict. chap. 31. 
 
 *0:d Colony R. Co. v. Tripp, 147 Mass. 35. See on this question Bendellv. 
 FJadern Counties R. Co. 2 C. 13. N. S. 509; Riinter v. London, B. & S. C. 
 Co. 2 C. B. N. S. 702; Hole v. Dighij, 27 Weelc. Rep. 884, where the 
 remedy for unjust preference is said to be with llie railroad commissioners. 
 Thicker v. Georgia R. & Bkq. Co. 81 Ga. 4t)l; Johnmn v. Chicago, R. 1. & 
 P. R. Co. 01 Iowa, 30; (Jiliisv. Penmijli-dnia R. Co. 59 Ga. 129. In the 
 latter case it seems to be conceded tiiat one going bona tide to meet a 
 passenger would not be guilty of trespass.
 
 EXCLUSION OF OTHER CARKIEES. 119 
 
 admit others. To permit a railroad company npon any pretense, 
 except of wrong or misconduct on the part of the person excluded, 
 to allow one hackman or line of hacks to occupy a place upon its 
 grounds which is denied to another, or to set apart the most 
 favorable ground to one company, and to exclude the others there- 
 from, would seem to be, in the language of Mr. Justice Field, in his 
 dissenting opinion in which two others out of the seven judges 
 united, " to enable a railroad corporation largely to control the 
 transportation of passengers and merchandise beyond its own line, 
 and to establish a monopoly not granted by its charter, which 
 might be solely for its own benefit, and not for the benefit of the 
 public.'" Certainly as to connecting carriers under the Interstate 
 •Commerce Law, it cannot do this." The rules and regulations of a 
 railroad company in this respect must be not only reasonable, but 
 they must not unnecessarily infringe upon the rights of the public, 
 and others having or carrying on business in connection with rail- 
 road tratiic and travel.' It has been held in Massachusetts that a 
 railroad corporation may contract with one to furnish the means to 
 ■carry incoming passengers, or their baggage or merchandise, from 
 its stations, and may grant to him the exclusive right there to soli- 
 cit the patronage of such passengers; but three of the seven mem- 
 bers of the supreme court dissented therefrom, giving very plausi- 
 l)le reasons for such dissent.* 
 
 The contrary doctrine has been held,'' and the granting to 
 the owner of one bus line the exclusive right to the best part of 
 a railway platform at the depot, and confining a rival line to other 
 [)art8 of the platform, where the chance of getting passengers was 
 not so good, was said to be a discrimination tending to destroy 
 ■competition, and to encourage a monoj)oly, which is obnoxious to 
 the spirit of our laws, and contrary to the constitution of Missouri, 
 which prohibits "discrimination in charges, or in facilities, in 
 transportation . . . between transportation companies and 
 
 'OW Colony R. Co. v. Tripp, 6 New Eng. Rep. 366, 147 Mass. 43. 
 
 *Ncw Tirfk & N. R. Co. v. New York & N. E. R. Go. 3 Inters. Com. Rep. 
 
 542; Kcntncky & I. Bridge Co. v. LotmviUe & N. R. Co. 2 L. R. A. 289. 
 
 2 Inters. Com. Rep. 351, 37 Fed. Rep. 567. 
 ^Surnmitt v. State, 8 Lea, 413. 
 
 *Ol(l Colony R. Co. v. Tripp, 6 New Eng. Rep. 366, 369, 370, 371, 147 
 
 Mass. 35. 
 ^Cravens v. Rogers, 101 Mo. 247.
 
 120 OONTKOL AND CAKE OF DEPOTS AND GK0UND8. 
 
 individuals, or in favor of either." ' And in Montana^ it is held 
 that a railroad company cannot grant the right to receive and dis. 
 charge passengers at its platform to one hack owner to the exclu- 
 sion of others. The case of Old, Colony R. Co. v. Tripp, is re- 
 viewed, and the argument of the majority opinion in that case 
 criticised and controverted.^ 
 
 In Michigan where the law* provides that "all railroad cor- 
 porations shall grant equal facilities for the transportation of pas- 
 sengers and freights to all persons, companies or corporations," 
 and a -violation of this statute is punished by a penalty, it is held 
 this statute does not relate entirely to the mere carriage in the 
 cars of the road. To be effective, it must be construed to include 
 also not only the receiving of such passengers and freights at its 
 depots, but, as well, the receiving of them by other " persons, 
 companies or corporations," at the point upon its road where the 
 carriage ends. The access to its depots must be free and equal 
 to all, whether it be to take passage or to leave the trains. No 
 railroad company, under this statute, would be permitted to give 
 to one hack and bus company exclusive, or even better access to 
 its depots than to others, in the carriage of passengers or freights 
 to its trains. Nor can it any more appropriately give such exclu- 
 sive or better privilege to such company taking passengers or 
 freights from its trains, to be transported from thence elsewhere. 
 While many of the cases above cited are decided with reference 
 to statutes of the same import as those of Massachusetts, above set 
 out in substance, it is clear that the action of a railroad company,. 
 in leasing the ground lying between the sidewalk and its track ta 
 a hack and bus company would, if sustained as valid, tend to 
 encourage and promote a monopoly of carriage of passengers from 
 a depot not only to connecting routes of travel upon other rail- 
 roads, out of the city, but to places within the city, contrary tO' 
 the spirit of the laws, and against that public policy that refuses t<» 
 
 '43 Am. & Eng. R. Cas. 65G. 
 
 ^Montana If. R. Co. v. Lamjlois, 2 Mont. 247. 
 
 "For oilier cases bearing upon this question, see Marriott v. Lori'lon & 8. W 
 It Co. ] C. B. N. S. 41i!>; Re Palmer, L. R. 6 C. P. 194; Re Paildnaon. 
 L. K. « C. P. r)54; a.unblon v. I'kdndelphia tfi R. R Co. 9 Pliiia. 411: 
 New EiKjldiul Exp. Co. v. Maine Cent. R. Co. 57 Me. 188. 
 
 ^IIow. Stat. § 3355.
 
 APPKOACIIES PROVIDED UPON THE PREMISES OF OTHERS. 121 
 
 encourage or foster monopolies in any kind of business.' The plea, 
 that a railway company, owning grounds, or having the actual 
 occupancy and possession thereof, has the same riglits of control 
 over them that any citizen would have, under similar circum- 
 stances, provided only that it discharges its duties to the ])ublie 
 with reference thereto as common carriers, is true. But when the 
 ground is used in its business as common carrier, and for the pur- 
 pose of standing or "setting" of hacks and buses, to solicit the 
 patronage of incoming passengers, then it must use it for the 
 benefit of all, and not for the privilege of one. It could probably 
 refuse, if such refusal was reasonable, in that there was otliei- 
 proper ground for them to stand upon, to permit any hacks or 
 buses to occupy the ground at all; but, if it opens the door to one 
 it seems just that all may enter and have equal facilities and privi- 
 leges one with the other. No doubt one wrongfully creating dis- 
 order or disturbance upon this ground, or. defrauding or deceiving 
 passengers, could be lawfully ejected therefrom, and persisting in 
 such conduct, be forever barred therefrom by the railroad company.'^ 
 
 § Jf2. Approaches Provided Upon the Premises of 
 
 Others. 
 
 A carrier of passengers is bound not only to make the ap- 
 proaches over its own premises to its depot, safe and convenient 
 for passengers, but also approaches erected upon the premises of 
 others for all who have the right to enter the place.* 
 
 The same rule is illustrated in another case, where the irano-- 
 way used by persons coming to the dock or pier was not upon 
 the premises of the defendant, but w^as under its control and was 
 allowed to become unsafe." A railway company in its character 
 as a passenger carrier, is liable to a hack driver, who, while carry- 
 ing the passenger to the depot for transportation, is injured by 
 stepping into a cavity in the platform, and the liability is not 
 'Ray, Contractual Limitations, pp. 211-216. 
 
 ^Kalamazoo II. dc B. Co. v. 8ootsma, 10 L. R. A. 819, 84 Mich. 194. 
 ^Tobin V. Portland, S. <fc P. R. Co. 59 Me. 187. 
 
 ^Smithv. London & St. K. Docks Co. L. R. 3 C. P. 331. See also CampbeU v. 
 Portland Sugar Co. 62 Me. 563; Low v. Grand Trunk R. Co 72 Me. 315; 
 Carleton v. Frartconia I. & S. Co. 99 Mass. 217; Corby v. Hill. 4 0. \i. N.' 
 S. 556; Indermnuer v. Dames, L. R. 1 C. P. 284; Sweeny v. OM Colony tt 
 iV. R. Co. 10 Allen, 373; Freer v. Cameron, 4 Ricii. L. 233; Chapman v 
 Rolhtcell, El. BI. & El. 168.
 
 122 CONTROL AND CARE OF DEPOTS AND GROUNDS. 
 
 affected by the fact that the platform was not erected and main- 
 tained in the limits of the highway.' 
 
 Where a railroad company nses a platform in a depot belong- 
 ing to another company, the obligation rests upon the user to see 
 that the platform is safe and convenient for its passengers.* 
 Where the stations of three railway companies adjoined, commu- 
 nicating with one another, and the passengers of each company 
 are in the habit of passing directly from one to the other, — the 
 three constituting common ground — each carrier will be liable for 
 the imperfect condition of its platform, or negligent acts of its 
 servant upon its own platform, causing injury to the passengers 
 passing from the platform of one carrier to that of another, over 
 its own platform.' A railway company will be liable for the 
 death of a passenger, falling into a "cattle guard," concealed by 
 snow, and subsequently killed by a passing train.* Although a 
 railroad company is not, as a matter of law, bound to erect a foot 
 bridge over its line to give passengers access from one platform 
 to another, yet the absence of such a precaution throws a greater 
 burden upon the company, in providing for the safety of its pas- 
 sengers. Where the carrier erects such a communicating bridge, 
 care must be taken that it is safe, and where tlirough the faulty 
 eonstruction of such a bridge, the death of a passenger results, the 
 carrier will be answerable, although a safer one had been provided 
 100 yards distant, which the deceased might have used.' 
 
 Where the injury was sustained by a passenger by the break- 
 ing down of a bridge alleged to have been improperly made, but 
 which had been constructed under the superintendence of a com- 
 petent engineer, the inquiry properly submitted to the jury was 
 whether the bridge had been constructed and maintained with 
 sufficient care and skill, and was of reasonable proper strength 
 when it was made.' AVhcre a passenger on leaving a car after 
 dark, attempts, by direction of the brakeman in charge of the 
 car, to cross a gully by way of a certain bridge, maintained by 
 
 ' Tobin V. Portland, S. & P. R. Co. 59 Me. 183. 
 
 ^Seymour v. Chicnqo, B. & Q. R. Co. 3 Biss. 43. 
 
 ^TeMuttv. Driatol & E. R. Co. L. R. Q. B. 73. 
 
 *JIoffman v. New York Cent. & 11. R. R. Co. 75 N. Y. 605, 13 Hun, 589. 
 
 I'l.o/if/Tnore v. Oreat Western R. Co. 19 C. B. N. S. 183. 
 
 *GroUv. Cltesler &JI. R. Co. 2 ExcL. 251.
 
 APPE0A0HE8 PKOVIDED UPON THE PREMISES OF OTUEliS. 123 
 
 ■another, upon the company's ground, and is injured by a defect in 
 the bridge which cannot then be seen, the carrier is liable/ 
 
 There was a platform extending from the east side of a depot 
 to a track over which the passengers passed to and from the 
 cars. Stairs led through the centre of the depot to the street, 
 which was several feet lower than the track; and there were also 
 staii's at the other end of the depot leading from the platform to 
 the street. The stairs at the north end of the depot were open 
 at the top as if they might be used. These stairs, and the plat- 
 form at the bottom of them about four feet from the ground, 
 were constructed by an express company for its sole use; but they 
 were on the railroad company's premises and under its control. 
 A passenger in attempting to pass down these stairs in the dark, 
 from the platform to the street, without fault on her part, fell 
 i'rom the lower platform to the ground, striking beyond the limit 
 of the railroad company's premises and was injured. The rail- 
 road company was held liable to the passenger for the injury.' 
 
 Where there is a telegraph office in one of its stations, for the 
 use of the public, the railway company is responsible to one of its 
 passengers who is injured, solely because of the company's negli- 
 gence in failing to keep in proper condition the structure, or jjlat- 
 form, which the passenger in alighting from the car must pass in 
 order to reach the telegraph office.^ 
 
 If the shortest pathway to reach a station is dangerous, and its 
 unfenced condition is liable to tempt the public into its use, if 
 the railway company has the authority, it should provide proper 
 guards and fences.* But there must be some evidence of want 
 of care or affirmative negligent act on the part of the carrier, to 
 create the liability. Thus, where one intending to travel by a 
 railway, enters a depot and in answer to inquiries regarding the 
 departure of trains, was du-ected by a porter to look at a time 
 table suspended on the wall under a portico in the station, and 
 was injured while in that position, by a plank and a roll of zinc 
 falling on him through a hole in the roof, a man appearing upon the 
 
 ^Chance v. St. Louis, I. M. & S. R. Co. 10 Mo. App. 351. 
 ''Beard v. Connecticut & P. R. R. Co. 48 Vt. 101. 
 K'himnan v. Long Island R. Co. 9 Hun, 618, aff'd 73 N. Y. 606. 
 *Burgess v. Great Western R. Co. 6 C. B. N. S. 923.
 
 124 CONTROL AND CAKE OF DEPOTS AND GROUNDS. 
 
 roof of the portico at the same time, this evidence was regarded 
 as not sufficient to siil)niit the question of neghgence to tlie jury.' 
 
 § 4^. Who are Entitled to Protection in Use of 
 Waiting Rooms, Flatfomv, etc. 
 
 Where one is lawfully and for a purpose consistent with its 
 intended use, on the platform of a railroad, although not a passcu- 
 ger, he may recover for injuries received through a defect in the 
 platform.* But depots and waiting rooms therein are only pro- 
 vided for the use of those intending to become passengers or foi- 
 those awaiting the arrival of friends by trains to come, or for one 
 seeking information as to the time of departure or arrival of trains 
 in which he is interested. One using them for other purposes 
 cannot recover for injuries suffered from the ordinary method in 
 which the comj)any conducts its business. The right to enter and 
 remain on the station premises must be exercised in a reasonable 
 manner within a reasonable time of the arrival or of the depart- 
 ure of the train.^ 
 
 The plaintiff entered a waiting room of the defendant's station 
 in itoxbury intending to take the last train for Boston. On dis- 
 covering it had been gone for fifteen minutes and being informed 
 that he could only reach his destination by taking the horse cars, 
 he waited a few minutes in the depot until they should pass. On 
 his attempt to leave the station he found the door leading to the 
 street was locked and crossed the waiting room to go out by the 
 door leading to the platform and the lights in the ticket office 
 having been extinguished he was injured by reason of insufficient 
 light on the steps, although there was proof that he was in the 
 exercise of care as he stepped out towards the platform. The 
 fact was in dispute, but a verdict for the defendant was directed 
 on the ground that he had lost his right as a passenger, and 
 i-emained at his own risk without invitation in a place not intend- 
 ed for his entertainment, and that the extiniruishment of the lio-ht 
 
 ' Welfare v. London tfe B. R. Co. L. K. 4 Q. B. 693. 
 
 *Toledo. W. d- W. E. Co. V. OrtiKh, 67 111. 'Zdi. 16 Am. Rep. 618; Campbell 
 
 V. I'oiUavd Siifjnr Co. 62 Me. 5.j'i, 16 Am. Rep. 503; Tobin v. FoiUand, 
 
 .S. & P. It. Co. 59 j\Ie. 1«3, 8 Am. Rep. 415. 
 '*llarrin v. Slevms, 31 Vt. 79.
 
 DEPOTS AND STATIONS MUST BE LIGHTED AND WAKMED. 125 
 
 was in the ordinary course of duty by the servants.' AVhcre one, 
 without invitation or having business tliere with the carrier, 
 outers upon its unenclosed premises, going within a building in a 
 visible state of decay, which had once been used as a freight- 
 house but long since abandoned as a place of public business, and 
 was not so situated in any public way so as to endanger travelers 
 thereon, — there can be no recovery by the intruder for injury 
 suffered from a sudden storm blowing a fragment of the dilapi- 
 dated building against him." 
 
 ;^ 44. Depots and Stations must he Lighted and 
 
 JVaivned. 
 
 The carrier takes upon itself the obligation not only of secur- 
 ing as far as possible the safety of the passenger from casualities, 
 but it is bound to exercise reasonable care not to expose the trav- 
 eler to the avoidable inclemencies of the season upon its premises, 
 while he is there as incident to his trip. Its depots and stations 
 must be reasonably convenient, light and healthful, and not per- 
 mitted to become filthy, nor the air impregnated with tobacco 
 smoke.' But this duty of keeping the premises in a proper con- 
 dition will not authorize the removal of a passenger guilty of a 
 slight impropriety, such as spitting on the floor of the room." 
 One who contracts an illness from the failure of a railroad com- 
 pany to heat a depot at which he was obliged to wait in order to 
 take j)assage on a train of such company is entitled to recover 
 damages therefor from such company.* Eailroad companies have 
 been held liable where closet facilities were not provided and 
 passengers, or those intending to meet passengers, are from the 
 ■demands of nature compelled to leave the premises and are 
 injured from the neglect of the carrier to provide proper light or 
 guidance.* 
 
 This common law obligation has been in some states enforced 
 
 ^ndnhin v. Boston <& P. E. Corp. 6 New Eng. Rep. 326, 147 Mass. 136. 
 "^Leary v. Cleveland, C. C. & I. R. Co. 78 Ind. 323. 
 ^McDonald v. Chicago & N. W. B. Co. 26 Iowa, 124. 
 * People V. McKay, 46 Mich. 439. 
 ^Ttxas & P. B. Co. V. Mayes (Tex.) Oct. 25, 1890. 
 
 ^Mmouri Pac. B. Co. v. Neiswanger, 41 Kan. 621 ; McKone v. Michigan Cent. 
 B. Co. 51 Mich. 601.
 
 126 CONTROL AND CARE OF DEPOTS AND GROUNDS. 
 
 by declaratory statutes affirming that it is the duty of a railroad 
 company to keep all its passenger depots, and not alone those at the 
 junction of railroads, warm and lighted and open to passengers a. 
 reasonable time before the arrival and after the departure of passen- 
 ger trains. ' The Alabama statute making it the duty of railroad com- 
 panies to have sitting or waiting rooms and to light the same, the 
 platform, and yards when required by the railroad commission, does 
 not supersede or abrogate the common law duty to erect platforms 
 and furnish lights wJien necessary,' but it remains true that a 
 railroad company is liable for injuries caused by its failure prop- 
 erly to light its stations or stopping places.* It has been held 
 that at a summer resort, fifteen minutes is a reasonable and suffi- 
 cient time in which to light the cars and give notice to a party of 
 excursionists to prepare to start.* So it is the duty of a railroad 
 company to furnish at night sufficient lights to securely guide the 
 way and the steps of their passengers, as well as servants neces- 
 sary to inform them as to the location of the train and the usual 
 and safest modes of reaching them. And especially is this true 
 where a car obstructs the lights so placed by the city as to lighten 
 both sides of the track on which the train stands.* Failure to 
 furnish lights is sufficient evidence of negligence to go to the 
 jury." 
 
 A railroad company is guilty of negligence in leaving a plat- 
 form at a depot in a dangerous condition, without lights or 
 guards.^ The negligence complained of in an action for damages 
 being the failure of the company to provide a light at the ticket 
 office, where plaintiff was injured by falling from the platform in 
 the dark, although the fall was caused by a false step, it cannot be 
 assumed, as a matter of law, that the want of a light was not the 
 efficient cause of the false step and the consequent fall.* 
 
 ^Texas & P. R. Co. v. Mayes (Tex.) Oct. 25, 1890. 
 
 ^Emley It. Co. v. Chewning (Ala.) June 11, 1891. 
 
 ^Alexandria & F. E. Co. v. Eermlon. 87 Va. 193. 
 
 *IIodge8 V. New Hanover Transit Co. 107 N. C. 576. 
 
 HlosiS V. LouimiVe, N. 0. & T. R. Co. 39 La. Ann. 649. 
 
 * Patten v. Clncarjo & JSf. W. R. Co. 32 Wis. 534. 36 Wis. 413. 
 
 ■^Louisville, N. A. & C. R. Co.y. Lucan, 6 L. R. A. 193, 119 Ind, 583; NirJiolmnx. 
 
 Jjinrusildre & Y. R. Co. 3 Hurlst. «& C. 534; Martin v. Great NortUern R. Co. 
 
 16 C. B. 179. 
 •Alabama Q. S. R. Co. v. Arnold, 80 Ala. 600.
 
 DEPOTS AND STATIONS MUST BE LIGHTED AND WABMED. 127 
 
 The question as to whether a station and its grounds are suffi- 
 ciently lighted is one of fact ; they must be sufficiently light to 
 enable strangers safely to get upon or leave the premises.' Indeed 
 the authorities all agree that it is the duty of railroad companies 
 to have their stations lighted for the accommodation and safety 
 of passengers arriving or departing upon their trains during the 
 darkness, and they are liable to them for injuries from the want 
 of such lights, unless such injuries are contributed to by the pas- 
 senger's own negligence," 
 
 A railroad company is liable to a passenger who, although pro- 
 ceeding carefully, was injured in the attempt to get off the plat- 
 form at a station in the night-time, if it was negligently constructed 
 and badly lighted and a person would naturally get off the plat- 
 form at that place.' On alighting from a train the plaintiff started 
 for his home, and passing from the south side up the steps to the 
 platform,some twelve or eighteen inches above the ground, proceed- 
 ing to the west side he approached the steps which descended some 
 three feet, and supposing he had reached them stepped to go on them 
 when he fell to the ground, crippling himself in his feet and ankle, 
 and bruising his body. The negligence imputed to the carrier 
 was the improper construction of the platform, the failure to 
 erect and maintain any railing or barrier to prevent persons from 
 stepping or falling from the platform in the night-time, and fail- 
 ure to have any light at the place of injmy. The answer after 
 tendering the general issue pleaded contributory negligence on 
 the part of the plaintiff. It was held to be most inexcusable negh- 
 
 ^Martin v. Oreat Northern R. Co. 16 C. B. 179; Birkeit v .WJdtehaven Junc- 
 tion R. Co. 4 Hurlst. & N. 730. 
 
 ^Fordyce v. Merrill, 49 Ark. 277; Alexandria & F. R. Co. v. Herndon, 87 
 Va. 192; Moses v. Louisville, N. 0. & T. R. Go. 39 La. Ann. 649; Stewart 
 V. International & Q. N. R. Co. 53 Tex. 289; Forsytli v. Boston & A. R. 
 Co. 103 Mass. 510; Beard v, Connecticut <& P. R. Co. 48 Vt. 101; Alabama 
 O. S. R. Co. V. Arnold, 80 Ala. 600; Feniston v. Chicago, St. L. & N. 0. 
 R. Co. 34 La. Ann. 777; Buenemanu v. St. Paul, M. & M. R. Co. 32 
 Minn. 390: Quaife v. Chicago & N. W. R. Co. 48 Wis. 513; Oaynor v. Old 
 Colony & JV. R. Co. 100 Mass. 215. 
 
 iTexns tfe P. R. Co. v. Brown, 78 Tex. 397; Fordyce v. Merrill, 49 Ark. 277; 
 Terre Uaute & I. R. Co. v. Buck, 96 Ind. 346; Cincinnati, H. & I. R. Go. 
 V. Carper, 11 West. Rep. 221, 112 Ind. 2t}; Longmore v. Great Western R. 
 Co. 19 C. B. N. S. 183; Oaynor v. Old Colony & N. R. Go. 100 Mass. 208; 
 B'lenemann v. St. Paul. M. & M. R. Go. 32 Minn. 390; Burgess v. Great 
 Wextern R. Co. 6 C. B. N. S. 923; Classman v. Long Island R. Go. 73 N. 
 Y. 606; McDonald v. Chicago & JSf. W. R. Go. 26 Iowa, 124; McKone v. 
 Michigan Gent. R. Co. 51 Mich. 601.
 
 128 CONTROL, AND CARE OF DEPOTS AND GROUNDS. 
 
 ^ence on the part of the railroad company not to have a light at 
 the corner of the depot, there being no contradictory proof upon this 
 point. Raih'oad companies are bound to have their stations suffi- 
 ciently lighted until all passengers have had a reasonable time to 
 reach a safe public thoroughfare, unless a guide be furnished for 
 that purpose by the company.' 
 
 And generally the rule may be stated that they are liable for in- 
 juries resulting from a neglect to light and guard their platforms,^ 
 and from a failure to provide suitable lights to enable passengers 
 safely to leave the premises f and also from failing in the duty to 
 furnish servants necessary to inform passengers as to the location 
 of the trains and the usual and safest way of reaching them.' 
 
 It is not the duty of the passenger, immediately on leaving the 
 cars at the station, to take the shortest practicable route to the 
 nearest highway. He is still a passenger leaving the station of 
 the railroad, and where he is injured by collision with a baggage 
 truck, whether he backed against the truck which inflicted the 
 injury, or was struck by it, whether he or the baggage master of 
 defendant was in the exercise of due care, and whether the 
 platform was properly lighted^ — are questions for the jury.' 
 
 But a passenger, who, on leaving a railroad depot, passes by three 
 well lighted flights of stairs, any one of which could have been 
 taken by him conveniently, and, in attempting to use a fourth 
 flight of stairs, which is in utter darkness, falls and is injured, is 
 <>-iiilty of negligence which will prevent his recovery from the 
 company.' The defective condition of lights at a railroad station 
 
 ^Stafford V. Hannibnl & St. J. R. Co. 4 West. Rep. 790, 23 Mo. App. 333. See 
 also Walldce v. Wilmington & N. R. Co. (Del.) Dec. 13, 1889. 
 
 "^ Stafford V. Hannibal & St. J. R Co. 4 West. Rep. 790, 22 Mo. App. 333; 
 I'.iiten V. Chiaigo & N. W. R. Co. 32 Wis. 524; Beard v. Connecticut & P. 
 R Co. 48 Vi. H>1; Knight v. Poitland S. & P. R. Co. 56 Me. 234; Peniston 
 v' Chicago, St. L. & I^. 0. R Co. 34 La. Ann. 777. 
 
 ^Patten v, Cliicaqo & N. W. R. Co. 32 Wis. 524; iSlicholson v. Lancashire & T. 
 R Co 34 L. J N. S. Excb. ^4; Birkdt v. Whitehaven Junction R. Co. 4 
 ILirlst. &N. 730; Martin v. Great Northern R. Co. 16 C. B. 180; Cornman 
 V Eaxfern Countiex R. Co. 4 Ilurlst. & N. 781; Toomey v. London. B. & S. 
 C R Co. 3 C. B. N. S. 146; F»>i v. London, B. & 8. C. R. Co. 18 C. B. N. 
 S 225. See New York, C & St. L R. Co. v. Doane (Lnd.) 1 L. R. A. 157, 
 note; 2 Wood, Railway Law, p. 11G3; Smith, Neg. (Wliit. ed.)318. 
 
 *MoKes V. Louisville, N. 0. & T. R. Co. 39 La. Ann. 649. 
 
 ''Kcefe V. BonUm & A. R. Co. 2 New Eng. Rep. 660, 142 Mass. 251. 
 
 ^Bennett v. New York. N. U. & U. R. Co. 57 Conn. 422, 41 Am. & Eng. R. 
 Ctts. 184.
 
 PKOTEOTING PASSENGERS BETWEEN DEPOT AND CARS. 129 
 
 house will not render the company liable to one injured while 
 attempting to get off a train, unless such condition contributed to 
 the injury.* 
 
 § 45- Protecting Passengers Between Depot or Sta- 
 tion and Cars. 
 
 It is the duty of railroad companies at all times so to adjust 
 their business as to make it safe for passengers, including those 
 who are partially disabled in sight, hearing, limbs or physical 
 strength, on the arrival and stoppage of a train, to pass between 
 it and the depot, and when from any unusual contingency it is 
 not safe, it is the duty of its employes to know it and to take 
 proper precaution to prevent passengers exposing themselves to 
 danger, as the latter have a right to assume that it is safe for them 
 to proceed in the usual manner until notified to the contrary.^ 
 The principle has been applied to providing for a passenger a 
 safe and convenient way and manner of access to the train." 
 
 Unless notice is given that passengers can only enter the train 
 from the platform, it is not^(3/' se negligence to attempt entrance 
 ■elsewhere.* If employes permit passengers to enter from other 
 points, they must use great care to avoid injury resulting.'' 
 The diligence and care of a railroad company in protecting its 
 passengers in coming to and going from its stations, and of the 
 passengers themselves, must be proportioned to the risk incurred 
 by them on account of the number of trains and the like.* 
 
 By stopping its trains at a sharp curve where »there is not suffi- 
 -<'ient light to enable passengers to see an unguarded hole between 
 the platform of the car and that of the station, an elevated rail- 
 way invites its passengers to alight at that point, and is thereby 
 charged with the duty of using due care to provide proper and 
 safe means of getting from the platform of the cars to the plat- 
 
 ^Bunnv. Pennsylvania B. Co. (Pa. C. P.)47Phila. Leg. Int. 524. 
 ^Oonzales v. New York & H. B. Co. 39 How. Pr. 407; Allender v. Chicago, 
 
 B. I. & P. B. Co. 43 Iowa, 276; Benneit v. Louisville &N. B. Co. 102 U. 
 
 8. 577, 26 L. ed. 235. 
 3 Warren v. Fitchburg B. Co. 9 Allen, 227. 
 *BaUimoi'e & 0. B. Co. v. Kane, 69 Md. 11. 
 ''Allender v. Chicago, B. I. & P. B. Co. 43 Iowa, 276. 
 ^Wallace v. Wilmington & N. B. Co. (Del.) Dec. 13, 1889. 
 9
 
 130 CONTKOL AND OARE OF DEPOTS AND GK0UND8. 
 
 form of the station.' Where a passenger leaves a train and in 
 making his way to the station is injured by the negligence of the 
 servants, tlie company is liable.* 
 
 A conductor is the general agent of the company so far as con- 
 cerns the rights of passengers when alighting from the train.* 
 But a conductor, as the representative of a railroad company, has 
 neither actual nor ostensible authority to instruct one who, hold- 
 ing a ticket upon the railroad, has by mistake entered the wrong 
 train, and who, in accordance with his advice leaves tlie train, as 
 to what path or road he should walk to reach a distant station, to 
 secure a place upon the proper train on the same road, proceeding 
 in a contrary direction; and the railroad company is not responsi- 
 ble for the accidental killing, by a passing train, of such person 
 while upon its track in pursuance of such instruction.* 
 
 Whether it is the duty of a railroad company to require its 
 employes to aid and assist passengers in entering or leaving a train 
 must be determined by the circumstances of each case and the 
 degree of danger involved. The fact that a conductor upon a 
 passenger railway train fails to assist a passenger in disembarking 
 from the car is not negligence as matter of law, but it may be 
 considered with other evidence of negligence.'' 
 
 In a Massachusetts case it appeared that the defendant did not 
 provide proper safeguards against injury for a passenger leaving 
 the place where he alighted from tlie cars. 3fr. Justice Colt said 
 in the opinion: "The plaintiff was a passenger, and while that 
 relation existed, the defendants were bound to Exercise towards 
 him the utmost care and diligence in providing against those 
 injuries which can be avoided by human foresight. He was enti- 
 tled to this protection so long as he conformed to the reasonable 
 
 ^Boyce v. ManhaUan B. Co. 118 N. Y. 314, 41 Am. & Eng. R. Cas. 111. 
 
 ^Imhoff V. Chicago & M. B. Co. 23 Wis. 682; Oaynor v. Old Colony & N. B. 
 Co. 100 Miiss. 'MS; Indiana Cent. B. Co. v. Ilvdelson, 13 Ind, b25. But 
 see Cincinnati, H. & I. B. Co. v. Carper, 11 West. Rep. 225, 112 Ind. 26. 
 
 *Lovisville, N. A. & C. B. Co. v. Wood, 13 West. Rep. 319, 113 Ind. 570; 
 Garter v. LovisvU'e, N. A. & C. B. Co. 98 Ind. 5.'")2; Emnmlle & T. H. 
 B. C<>. V. McKec, 99 Ind. 519; Terre Haute & T. B Co. v. Fitzgerald, 47 
 Iiid. 79; Indianapolix, P. <& C. B. Co. v. Anthony. 43 Ind. IS'6; Jeff erson- 
 ville B. Co. V. B"r/ers, 38 Ind. 118; Pennsylvania Co. v. Hoag'and, 78 Ind. 
 2()8' Columbus, C. & I. C. B. Co. v. Powell, 40 Ind. 37; Great WesteiTi B. 
 Co. V. Afilkr, 19 Mich. 305; Bas-i v. Chicago t£ N. W. B. Co. 36 Wis. 450. 
 
 ^Cincinnati, II. & I. B. Co. v. Carper. 11 West. Rep. 221, 112 Ind. 2«. 
 
 ^Simms v. South Carolina B. Co. 27 S. C. 268.
 
 PKOTECTING PASSENGERS BETWEEN DEPOT AND CAKS. 131 
 
 regulations of the company, not only while in the cars, bnt while 
 upon the premises of the defendants; and this requires of the de- 
 fendants due regard for tlie safety of passengers, as well in the 
 location, construction and arrangement of their station buildings, 
 platforms and means of egress as in their previous transporta- 
 tion.'" A passenger is not precluded from recovery from a railroad 
 company for injuries received in leaving a car by a way used by 
 the other passengers, but unsafe, by the fact that a safe way was 
 provided, unless he knew of such safe way, and that the rules of 
 the company required passengers to use it," 
 
 A railroad company is responsible for injuries received by a 
 passenger attempting to board one of its trains at night who finds 
 no one to inform him how to reach a sleeping car attached to the 
 train, which car is left standing outside the yards, and to which a 
 sidewalk erected by the company under a contract with the city 
 leads, on the direct route which the passenger follows and from 
 which he falls because of defective or insufficient lights at the 
 approach to such sleeping car.^ It is the duty of a railroad com- 
 pany to furnish safe and ready passageway to and from its cars on 
 either side thereof and between them and its station buildings, 
 when no notice to the contrary is given, and in all this to exercise 
 the highest degree of skill and care/ 
 
 The highway crossing rule has no application to a case where 
 by the arrangement of the corporation it is made necessary for 
 passengers to cross the track in going to or from the depot to the 
 cars. Properly applied there is no doubt as to the correctness of 
 this proposition. But it will be found in every case where this 
 rule has been applied the cars were standing at the place appointed 
 and designated by the corporation for the exit or entrance of pas- 
 sengers.^ 
 
 If the trains of the defendant railroad company were accustomed 
 
 ^Qaynor v. Old Colony & N. R. Go. 100 Mass. 208. See also language of 
 Uhief Jmtice Sliaw in MeElroy v. Nashua & L. R. Corp. 4 Cush. 400. 
 
 ^Missouri Pac. R. Co. v. Lorig (Tex.) June 2. 1891. 
 
 'Mase.H V. Louisville, JV. 0. T. R. Co. 39 La. Ann. 649. But see Reed v. Ax- 
 tell, 84 Va. 231. 
 
 *Gonzales v. JSfew York & H. R. Co. 38 N. T. 440, 39 How. Pr. 407. 
 
 *Terry v. Jeicett, 78 N. Y. 340: Brassell v. Neio York Cent, d II. R. R. Co 
 84 N. Y. 241, Klein v. Jewett, 20 N. J. Eq. 474; Dekay v. Chicaao, M. & 
 St. P. R. Go. 4 L. R. A. 632, 41 Minn. 178.
 
 132 CONTROL AND CARE OF DEPOTS AND GROUNDS. 
 
 to stop at tlie platform at whicli the plaintiff desired to alight 
 although it was neither constructed nor owned by the company, 
 an implied contract that passengers might stop there may be 
 raised.* A trainman on an elevated railroad, who opens the door as 
 the train is approaching a station, and lets go of it just as a passenger 
 takes hold of the door casing to save herself from falling, thereby 
 causing the door to slam shut and injure the passenger's hand, 
 is guilty of such negligence as will render the company liable.* 
 In an action for a personal 4n jury received in alighting from a car, 
 the mere fact that the platform where plaintiff alighted was higher 
 than that at another station of the road was immaterial.^ 
 
 A woman, in alighting from a railroad car at a station in the 
 night time, fell and was injured, and sued the company for neg- 
 ligence, in that the station platform was too far from the car. The 
 platform had been in nse for several years, and no one had ever 
 before been injured or inconvenienced on account of its distance 
 from the cars. It was held that the company was not legally 
 responsible." A depot platform must be sufficiently near to make 
 the entrance and exit to car safe and yet avoid passing trains.* 
 But where a station of an elevated railroad is located on a curve 
 and is convex to the train, a space of 3^ to 4 inches between the 
 centre of the train and the platform, and of 6 to 7 inches between 
 the ends of the train and the platform, is as little as is safe or 
 prudent, taking into view the swaying and oscillation of the cars.* 
 A space 2^ inches wide between a platform and the steps of a car is 
 not a dangerous opening implying negligence on the part of a rail- 
 road company.'' In a recent case, where a passenger was injured in 
 stepping from a car on to the platform, because, as he alleged, the 
 platform was too far from the steps of the car, the rule was an- 
 nounced that the company was not bound so to construct the plat- 
 form as to make accidents to passengers using the same impossible, 
 
 *ColweU V. Manhattan B. Co. 67 Ilun, 452. 
 
 ^LouiHville & N. R. Co. v, Johnston, 79 Ala. 436. 
 
 ^Nichols V. Dubuque dk D. B. Co. 68 Iowa, 733. 
 
 ^Lafjlln V. Buffalo & 8. W. B. Co. 7 Cent. Rep. 739, 106 N. Y. 136. 
 
 ^Praer/er v. Bristol & E. B. Co. 24 L. T. N. 8. 105; Union Fac. B. Co. v. 
 
 Sue, 25 Neb. 772. 
 ''Bi/an V. ManJiattan B. Co. 121 N. Y. 126. 
 "> J lodges V. Neu> Hanover Transit Co. 107 N. C. 576.
 
 EXPOSING PASSENGERS TO DANGEK FKOM PASSING TKALNS. VS'u 
 
 or to use the highest degree of diligence to make it safe, convenient 
 and useful. It was bound simply to exercise ordinary care, in view 
 of the dangers attending its use, to make it reasonably adequate 
 for the purpose to which it was devoted.* 
 
 The accidental slipping of a servant of a railroad company in per- 
 formance of his duty, against a passenger entering the car, thereby 
 injuring him, is no ground for recovery from the company, there be- 
 ing no negligence, as the passenger assumed the risk of such an 
 accident.' A passenger who, upon alighting from a train upon a 
 dark night, and when no sufficient light is furnished by the company, 
 commits himself to the guidance of a third person, thereby waives 
 the duty of the company to furnish him with safe means of de- 
 parture.' The passenger may by his own act relieve the carrier 
 from this duty. 
 
 § 46. Exposing Passengers to Danger from Pass- 
 ing Trains. 
 A passenger is justified in assuming that no train will be per- 
 mitted to pass a station at which a passenger train has stopped for 
 the discharge and receipt of passengers, in such manner as to in- 
 terfere with him. Hence he cannot be held guilty of contributory 
 negligence as matter of law because he failed, before leaving the 
 car on which he was traveling, to look out for an approaching 
 train, by which he was injured. Where a passenger is injured 
 while attempting to alight from a train at a regular station, by 
 another train belonging to the same carrier and in charge of its 
 servants, which runs past the station platform while the passen- 
 gers of the former train are being received and discharged, the 
 carrier, to relieve itself from liability for damages, must shoM- 
 that it used the degree of care which the law imposes upon it.* 
 A passenger crossing the track to reach the cars, has a right to 
 some extent to rely on signal of danger being given.* It is gross 
 negligence in a railroad company so to arrange its time table that 
 
 ^Lnfflin V. Buffalo & 8. W. R. Go. 7 Cent. Rep. 793, 106 N. Y. 136. 
 ^Skinner v. Atchison, T. & 8. F. B. Co. 39 Fed. Rep. 188. 
 ^Wallace v. Wilmington & N. B. Co. (Del.) Dec. 13, 1889. 
 ^PhiladelpJiia, W. & B. B. Co. v. Anderson, 8 L. R. A. 673, 72 Md. 519. 
 ''Mayo V. Boston & M. R. Co. 104 Mass, 137; Sonier v. Boston & A. B. Co. 
 1 New Eng. Rep. 493, 141 Mass. 10.
 
 134 OONTKOL AND CAKE OF DEPOTS AND GROUNDS. 
 
 within one minute from the time of starting an accommodation 
 passenger train from a station, another train running at the rate 
 of thirty or more miles an hour should pass the same point.' 
 A railroad company may be guilty of negligence in permitting 
 a train to enter a station and pass a car delivering passengers, al- 
 though it is on the side of such car opposite the station," To run 
 a train at a high speed past another discharging passengers likely 
 to step directly into its path, without warning, would be not only 
 neglect of common care, but recklessness and gross negligence.' 
 The fact that persons are liable to be upon a railroad track at a 
 particular locality where a train is to pass when known to the 
 managers of the train, imposes a duty of watchfulness upon them 
 which they would ordinarily not be under." 
 
 It is the duty of the conductor of an accommodation train and 
 of the engineer to know whether the express train will pass the 
 station while their train is there, and if so it is their duty to look 
 out for the express train and to signal if it is near; and it is also 
 their duty to see that the passengers should be prevented from 
 leaving the train, on the side next to the track of the express train 
 or at least to give them notice of the approaching train and to 
 I'equest them either to sit still until that train has passed or to leave 
 the train on the other side, and tlie omission to do so is negligence.* 
 
 The plaintiff's testator was run over and killed at the carriers 
 station, by the engine of a freight train, belonging to the defend- 
 ant, moving southerly at the rate of from twenty to thirty miles 
 an liour. He was a passenger on a train going northerly from the 
 Exchange street station, Buffalo, to La Salle, and beyond, and 
 liad traveled three miles of the distance when he reached the 
 Ferry street station where the train was accustomed to stop for 
 the pnrpose of taking on and lotting off passengers. 
 
 As the passenger train reached the station house, after it had 
 been called by the brakeman and while it was going slowly, but 
 had not yet entirely stopped, the deceased stepped down from the 
 second car upon its westerly side upon a plank walk, or platform, 
 
 ^Gonzales v. New York dk U. R. Co. 38 N. Y. 440, 39 How. Pr. 407. 
 •'Goldberg v. New York, G. & H. R. R. Co. (Sup. Ct.) 15 N. Y. Supp. 579. 
 ^RoboHtelli V. New Yo7-k, N. II. & H. R. Co. 33 Fed. Rep. 799. 
 *Ccuibida V. Orerjon It. & Nav. Co. 14 Or. 551.
 
 EXPOSING PA88ENGEK8 TO DANGER FROM PASSING TRAINS. 135 
 
 and proceeded along by the side of the moving train for some 
 forty or fifty feet, when he attempted to cross over the westerly 
 track. Before this the passenger train had entirely stopped. 
 When lie reached a point about ten feet from the passenger train, 
 and being then between the rails of the westerly track, he was 
 struck by tlie engine of tiie freight train, which was backing 
 down in a rapid manner. The whole transaction occurred in front 
 of the station house and within the station yard, upon ground 
 where passengers were accustomed to pass and repass in going 
 from and coming to the trains. 
 
 The rules of the defendant required freight trains to approach 
 stations slowly, and to stop before reaching stations at which a 
 passenger train is landing or receiving passengers. The freight 
 train came from the north, and at the distance of about 300 feet 
 from the station was visible, althijugh partially concealed from 
 the view of those standing at the station by a curve in the road, 
 and also by trusses upon a bridge over a street running immedi- 
 ately north of the station grounds, which trains going south were 
 obliged to cross before reaching the station. 
 
 The deceased was, when struck, about twenty feet south of the 
 bridge. He was seen walking quite rajiidly to tlie north in the 
 direction of the approaching train, when he turned and started to 
 go across the track, and as he saw the train attempted to jump 
 but failed to prevent a collision, and was struck while in the act 
 of jumping to avoid it. It did not aj^pear for what purjjose the 
 deceased was going across the westerly track, but it was stated 
 that he sometimes got off and communicated with relatives or 
 friends who lived next the station yard on the west side as he 
 passed up the road. 
 
 As the deceased walked along the track he was necessarily 
 looking in the direction from which the freight train was approach- 
 ing, but no positive proof was given that he looked towards it 
 immediately before he M^as struck; and it is not probable that he 
 •could have seen it if he had looked when he hrst alighted, or for 
 some seconds after. ISTot to exceed ten seconds elapsed between 
 the time when he alighted from the train and that when he was 
 struck, and during that time the engine of the passenger train 
 was exhaustmg its steam, making a loud noise. The freight train
 
 136 CONTKOL AJS^D CAKE OF DEPOTS AND GKOUMDS. 
 
 was running probably at the rate of forty feet a second, and when 
 the deceased first alighted was probably beyond the line of his 
 vision. The case was in all of its aspects one for the jury, and it 
 was held to be immaterial whether the deceased, when he alighted 
 from a passenger train, ceased to be a passenger or not. He was 
 certainly neither a wrong-doer nor a trespasser by so doing. He 
 might thereby have subjected himself to increased risks for which 
 he would have no redress against the railroad company; but if he 
 should be afterwards killed by the gross negligence of the com- 
 pany without fault on his part, the company would be liable.* 
 
 It is negligence in permitting an express train, when it is per- 
 ceived from it that an accommodation train is at a station going 
 in an opposite direction, to continue on and pass the station at its 
 usual rate of speed, and it is the duty of its conductor or engineer 
 under such circumstances to slack its speed or stop before reach- 
 mg the station. The omission of the express train in such a case 
 to ring the bell or sound the whistle in passing the station is also 
 negligence.^ It was the invariable custom of the agent at the 
 depot of the defendant to part freight cars immediately after they 
 were left or placed on a switch at a point nearly opposite the pas- 
 senger depot for the purpose of affording passage to the patrons 
 and employes of the road, over a path which reached the depot 
 platform. At no time was anything said or done by the defend- 
 ant's agents or employes to convey to the public the idea that they 
 should not cross the track at these oj3enings. On the morning of 
 the accident there were standing on the switch, two or more cars 
 west of the road and five cars east. These five cars had been 
 parted on the preceding day by the comjjany's agent, a distance of 
 eighteen inches or more, about midway between the platform and 
 the steps at the southeast corner of the platform of tlie passenger 
 depot, for the express purpose of allowing people to piiss over the 
 track. The plaintiff was on his way to the depot to meet his 
 brother who was expected home on the train; and while in the 
 act of passing over the track was caught between the cars and 
 killed, by the sudden and rapid backing of the engine which 
 drove the cars together. The circumstance that the cars were 
 
 ^ParKom v. New York Cent. & IT. R. R. Co. 3 L. R. A. 68:3, 113 N. Y. 355. 
 WottZiUeit V. Mw York & II. R. Co. 3« N. Y. 430, 39 How. Pr. 407.
 
 EXPOSING PASSENGERS TO DANGER FROM PASSING TRAINS. 13T 
 
 habitually separated at this point, when taken in connection with 
 the location of the steps to the platform, of the passenger depot, 
 and the constant and uninterrupted use of the same by persons 
 getting on and off at this depot, which was never at any time dis- 
 countenanced by the road or its officials, to whom it was known, 
 was ruled to be susceptible of no other construction than that it 
 was designed as a path by means of which access might be gained 
 to the depot, as well by persons having occasion to visit the depot 
 as by the employes of the company; and that under these circum- 
 stances it cannot be imputed to the deceased as neghgence, if, in 
 the absence of some warning he selected this route rather than 
 another and longer one around by the freight depot. Under such 
 circumstances it is clear that an obligation was imposed upon the 
 company that it should not become a source of danger to those to 
 whom it had held it out as a passage or way through which they 
 might safely go, and a duty was imposed upon the company to- 
 notify persons entitled or invited to use it, in some unmistakable 
 way, that it watj about to be closed, before closing it. A recovery 
 against the defendant was sustained.' 
 
 ^Nichols V. Washington, 0. & W. R. Go. 83 Va. 99. See Louimlle, N. 0. & 
 T. B. Co. V. Thompson, 64 Miss. 584.
 
 CHAPTEE YIII. 
 DUTY OP CARRIER AT STATION. 
 
 § 47. Ayinovncement of Stations. 
 § 48. Duty to Stop at Stations. 
 
 § 49. T7ie Train must be Stopped at a Proper and Safe Place. 
 § 50. Train must Stop at Station a Reasonable Time. 
 § 51. Mtist Provide Safe and Clear Passage from Train to Eating 
 Statioji. 
 
 §^7- Announcement of Stations. 
 
 A railroad company should have its stations plainly announced, 
 a sufficient time before reaching the depot, to enable passengers 
 to prepare for departure from the train, with their personal bag- 
 gage, without the haste that involves them in peril.* For failure 
 to give proper notice invohdng a passenger in an exposure to 
 inconvenience, to avoid which he is injured in leaving the train, 
 under circumstances wliich would not have deterred a person of 
 ordinary prudence from attempting to alight, the carrier will be 
 responsible.* But a passenger carried two miles beyond a flag 
 station by his own fault in failing to notify the conductor that he 
 wished to get off there cannot recover where the latter offered to 
 carry him to the next station, or to let him get off and walk back, 
 which latter proposition he accepted.' 
 
 A conductor has no right to assume, because he does not see a 
 passenger in the coach on looking into it, that he has leaped out 
 in the dark upon a moving train, but it is his duty to know that 
 he has a jDassenger for a station and to have the station announced, 
 and stop the train.* 
 
 A raih'oad company carrying passengers is liable for damages 
 
 ^DaiDSon v. Louisville & N. R. Co. (Ky.) 11 Am. & Eng. R. Gas. 1.34; Sotdh- 
 ern R. Co. v. Kendiick, 40 Miss. 374; Fairmount (k A. St. I'nss. 11. Co. v. 
 Slutltr, 54 Pa. 375; PenriHylvania R. Co. v. Axpell, 2'6 Pu. 147. 
 
 *Dr,lnmatyr v. Milwaukee & P. du C. R. Co. 24 Wis. 578. 
 
 »6''///, C. & S. F. R. Co. V. Rijan (Tex. App.) March 23, 1893. 
 
 *LouiHvUle, N. 0. & T. li. Co. v. Mank, 64 Miss, 738. 
 
 138
 
 ANNOUNCEMENT OF STATIONS. 13H 
 
 for an injury resulting to a passenger from failure to call out 
 the name of the station and to stop sufficiently long for him to 
 get off.' But the act of a raih-oad hrakeman in calling the name 
 of a station and fastening open a car door is nut an invitation to 
 a passenger to alight while the train is in motion, and the failure 
 to give warning against alighting is not an excuse for doing so.'' 
 
 When a train arrives at the depot and stops opposite the plat- 
 form, it is a proper place for the passenger to alight, unless 
 informed to the contrary.* Where a passenger is injured in a 
 place where he has a right to be, and the company has omitted 
 to give proper warning, the question of his due care should be 
 submitted to the jury.* But a railroad company is not liable for the 
 act of one not in its employ making a false announcement of the 
 arrival of a train at a station and passengers being injured by act- 
 ing on the anjiouncemcnt if the carrier be without information of 
 the act.' 
 
 If after the trainman has announced the station in the usual 
 manner the train stops at the station platform, passengers are jus- 
 tified in presuming that it is to allow them to get off, and in pro- 
 ceeding to do so.* It may or may not be carelessness according 
 to circumstances, to notify passengers in the night-time that the 
 train is approaching a station, and without further notice stop the 
 cars before the station is reached.' 
 
 Where a railroad train stops at a place of peril in a dark night, 
 after notice has been given that the next stopping place would be 
 at a certain station, the safety of the passengers requires that some 
 notice or warning should be given them to retain their seats.* 
 The conductor's failure to warn passengers of the dangerous 
 character of the surroundings, may, under the circumstances, 
 amount to gross negligence." Where a train at night stopped 
 
 ^Louisville, N. 0. & T. R. Co. v. Mask, 64 Miss. 738. 
 
 ^England v. Boston & M. R. Co. 153 Mass. 490. 
 
 ^Leslie v. Wabash, fit. L. & P. E. Co. 3 West. Rep. 824, 88 Mo. 50. 
 
 *iiouier v. Boston & A. R. Co. 1 New Eng. Rep. 493, 141 Mass. 10. 
 
 ^Columbus & 1. C. R. Co. v. Farrell, 31 Ind. 408. 
 
 ^McNulta V. Ensch, 31 111. App. 100, 134 111. 46. 
 
 ''New Jersey Cent. R. Co. v. Van Horn, 38 N. J. L. 133; Cockle v. London & 
 
 8. E. R. Co. 7 C. P. 331, L. R. 5 C. P. 457. 
 ^Phitadeiphia & R. E. Co. v. Edelstein (Pa.) 23 W. N. C. 342; PMade'phia, 
 
 W. & B. R. Co. V. McConnick, 124 Pa. 427. 
 ^McOee v. Missouri Pac. R. Co. 10 West. Rep. 282, 92 IMo. 208.
 
 14:0 DUTY OF CARRIER AT STATION. 
 
 before reaching the station, and a passenger was injured in conse- 
 quence of leaving the train, the question of negligence was prop- 
 erly left to the jury.' 
 
 Where the stoppage of a train away from a platform, is under 
 circumstances calculated to mislead a person exercising reasonable 
 prudence, and an injury occurs therefrom, the carrier will be liable.' 
 
 "Where a station is announced before it is reached, a passenger 
 on the train has the right to presume that the first stop made 
 opposite a platform is for the discharge of passengers, and an 
 injury to him, caused by the train starting with a sudden jerk, 
 without allowing a reasonable time to get off, is such negligence 
 as will render the company liable, although the train stopped at a 
 second platform at the same station a sufficient time to discharge 
 passengers;^ and a railroad company is liable for injuries to a 
 passenger who, hearing the name of his destination twice called 
 by a tram employe upon the stopping of the train in the dark- 
 ness of the night, attempts to alight and is injured by falling 
 through a trestle upon which the train had been stopped -by the 
 engineer without the previous knowledge or expectation of the 
 conductor or other train employes.* 
 
 Where a train passes a station and the proper employe 
 announces the name of the station, as a notification to the passen- 
 gers that the train is there, and one relying on such announce- 
 ment, without negligence, supposing that he is at the station, it 
 being dark, when in fact the train has been stopped over a cul- 
 vert, into which the passenger falls and is injured, there can be- 
 no question of the liability of the carrier.* 
 
 ^Boss V. Providence & W. R. Go. 1 New Eng. Rep. 39, 15 R. I. 149; Phila- 
 delphia & R. R. Co. V. Edelstein (Pa.) 23 W. N. C. 342; FhUadelphia, W. 
 
 6 B. R. Co. V. McCormick, 124 Pa. 427. 
 
 *Daney v. London & S. W. R. Co. L. R. 12 Q. B. Dlv. 10; Dublin, W.dt W. R. 
 Co. V. tihttteiiy, L. R. 3 App. Cas. 1155; Bridges v. North London R. Co. 
 L R. 7 II. L. 215, 43 L. J. Q. B. 131; NichoLls v. Great Southern R. Co. 
 
 7 Ir. R. C. L. 40, 21 Week. Rep. 387; GorMe v. London & 8. W. R Co. 
 L. R. 7 C. P. 321, 41 L. J. C. P. 140; Wdler v. London, B. & S. W. R. 
 Co. L. R. 9 C. P. 126, 43 L. J. 0. P. 137; Rose v. North Eastern R. Co. 
 L. R. 2 Exch. Div. 248, 46 L. J. Exch. 374; Rohson v. North Eastern R. 
 to L R. 2 Q. B. Div. 86. 46 L. J. Q. B. 50; Praeger v. Bristol & E. R. 
 Co. 24 L. T. N. S. 105; Foy v. London, B. & S. E. R. Co. 18 C. B. N, S. 
 2>5; London & N. W. R. Go. v. Uellawell, 26 L. T. N. ». 557. 
 
 ^McNulta V. Ensch, 81 111. App. 100, 134 111. 46. 
 *Rkhrnond & I). R. Co. v. Smith (Ala.) April 27, 1891. 
 
 ^CoUimhuH & L C. R. Go. v. Farrdl, 31 Ind. 408. See Uulbert v. New York 
 Gent. R. Co. 40 N. Y. 145.
 
 DUTY TO STOP AT STATIONS. 141 
 
 Where an announcement that train will stop next at named sta- 
 tion, induces a passenger exercising reasonable caution to get off 
 at tlie next stop, which is a side track, and the brakeman assists 
 in alighting without asking questions or giving information, the 
 the company was held liable. It is a question of fact for a jury 
 whether calling the name of a station is, under circumstances, an 
 invitation to alight.''' But calling the name of a station, and 
 stopping the train soon after to take a side track while another 
 train passes, will not make the carrier liable for injuries to a pas- 
 senger who attempts to get off at that place, where all the sur- 
 roundings indicate that it is not the proper place for alighting.' 
 
 A railroad company is liable for the damage resulting from an 
 injury to a passenger about to enter its car, while on a platform 
 between its main and side tracks, where Lo is without negligence, 
 if the accident is due to the negligence of the company in failing 
 to provide a proper platform, or to notify passengers going on 
 the platform of the approach of a train." 
 
 A conductor on a passenger train who, upon the coming to- 
 gether of the cars, upon taking on an empty car, prematurely 
 calls out "all aboard, " before it is safe for passengers to attempt 
 to enter the car, is guilty of such negligence as will authorize a 
 recovery against the company for an injury to a passenger, although 
 the remark was not in fact intended for the passengers;* and a 
 passenger injured by a jar in coupling cars may recover where it 
 is caused unnecessarily by the negligence of the carrier.* The 
 train must not stop across the track of another railroad, or in a 
 place dangerous for passengers to alight in the dark 
 
 § 48' Duty to Stop at Stations. 
 The law imposes on the carrier the duty of using the strictest 
 
 ^Pennsylvania Co. v. Hoagland, 78 Ind. 203. 
 
 *Whtttaker v, Manclmter & 8. R. Co. L. R. 5 C. P. 4G4. 
 
 *amith V. Oeorgla Pac. B. Co. 7 L. R, A. 323, 88 Ala. 538, 41 Am. & Eng. 
 
 R. Cas. 143. 
 * Union Pac. B. Co. v. Sue, 25 Neb. 772. 
 *Lent V. New York Cent. & H. B. B. Co. 120 N. Y. 467, 
 *W1dt« V. Fitchburg B. Co. 136 Mass. 321. 
 ^Central B. <fe Bkg. Co. v. Smith, 80 Ga. 526; Kellen v. Central Iowa B. Co. 
 
 68 Iowa. 470, 21 Am. & Eng. R. Cas. 485.
 
 142 DUTY OF CARRIKR AT STATION. 
 
 care and caution in stopping its trains at the station to which ithas- 
 agreed to carry a passenger.' A railway passenger injured by the 
 sudden starting of the train while she was obeying the porter's 
 direction to go into a forward car, upon the train's stopping at the 
 next station, is entitled to recover, where she was guilty of no 
 contributory negligence." 
 
 An unaccepted oiler by the conductor to give a passenger a pass, 
 if he would leave the train at an intervening point and take the 
 next train to his destination, does not affect its duty to stop the 
 train at his destination.^ The common law rule is, in some of the 
 states, reinforced by statutes which render a railroad liable for 
 a failure to stop its train for the passenger holding a ticket over 
 its road, where the proper signal has been given and the company 
 is without lawful excuse for the neglect.* The mere fact that a 
 train does not stop at all stations does not prevent it from being 
 a regular passenger train within the meaning of a statute requir- 
 ing such trains to stop at a county seat.' The refusal of a railroad 
 company to designate as a flag station for its through trains a place 
 which is not an incorporated town, which contains only a few 
 houses and is situated within three miles of a regular station, is 
 not an unreasonable regulation.' 
 
 A railroad company is liable for injuries to a child passenger 
 not of sufficient age and intelligence to be responsible for contrib- 
 utory negligence in jumping from a train, which the conductor 
 had refused to stop at a usual stopping place, to allow him to reach 
 his home, although none of the servants of the company were in a 
 ' position to prevent the jump.'' Where a train passes the station to 
 which a passenger was entitled to be taken up, or to which he is to be 
 carried, without stopping a sufficient time for him to get on or off, 
 
 ^Straus V. Kansas GUy, St. J. & G. B. B. Go. 5 West. Rep. 433, m Mo. 
 
 421. 
 ^Smith, V. Chicago & A. R. Co. (Mo ) March 23. 1892. 
 ^OJdo & M. R. Co. V. People, 29 111. App. 5G1. 
 
 *Fneman v. Detroit, M. & M. R. Go. 9 West. Rep. 117, 65 Micb. 577. 
 '-Ohio & M. R. Go. v. People, 29111. App. 561. 
 ^St Louin, I. M. <fc S. R. Go. v. Adcox, 52 Ark. 406, 40 Am. &, Eog. R. 
 
 Cas. 682. 
 '>Avey V. Oalveaton, H. & S. A. R. Go. (Tex.) June 3, 1891.
 
 DUTY TO STOP AT STATIONS. 14i> 
 
 the carrier is liable in damages.' But a verdict for $300 damages 
 against a railroad company for carrying a passenger less than 300 
 yards past his destination, and putting him olf in the night-time at a 
 nmddy place, is excessive, where the walk and exposure did not 
 affect his health, and he suffered no further inconvenience or 
 trouble than the extra walk and having to clean a good deal of 
 mud off" his boots the next morning/ 
 
 A passenger cannot recover against a railway company because 
 he was forced to walk back to a station after having been carried 
 by, in the absence of a request to the conductor or other agent of 
 the railroad to run the train back to the station.* A person who 
 was carried past his destination while asleep, and at whose request 
 the train was stopped to allow him to get off, has no cause of 
 action against the carrier for sickness occasioned by fright sus- 
 tained in going back to his destination, though misled by the con- 
 ductor of the train as to its location when he alighted therefrom." 
 A woman with an infant, wrongfully carried by a train beyond 
 her destination, and who insists on being put oft", in consequence 
 of which she has to walk back a mile, is not thereby prevented 
 from recovering damages where she was without money, and, if 
 she had gone on, would have been left late at night in a strange 
 city.' 
 
 The fact that a passenger train ran past the usual stopping 
 place at a station is not negligence, where the usual air brakes 
 were in good condition when the train started, and the air cock be- 
 came turned by a cause which could not have been prevented." 
 The running of a railroad train beyond the usual stopping place 
 at the station before coming to a standstill, or a pause after the 
 train is brought to a stop for a period necessary to reverse the 
 motion so as to back to the usual stopping place, is not negligence 
 jper se and as matter of law, unless the stop is for such a length of 
 
 ^W/iiiewater Valley B. Co. v. Butler, 12 West. Rep. 207, 112 Ind. 598; Inter- 
 national <& Q. N. B. Go. V. Terry, 62 Tex. 380; BMs v. London & S. W. 
 B. Go L. R. 10 Q. B. Ill; Trigga v. St. Louis, K G. & N. B. Co. 74 Mo. 
 147; Chicago, St. L. & N. 0. B. Co. v. Scurr, 59 Miss. 456. 
 
 ^Texas & P. B. Co. v. Florence (Tex. App.) Dec. 12, 1889. 
 
 ^Gulf, C. & S. F. B. Go. V. Head (Tex. App.) Jan. 31, 1891. 
 
 ^WiUon V. New Orleans & N. E. B. Co. 68 Miss. 9. 
 
 ^Galveston, H. & If. B. Go. v. Crispi, 73 Tex. 236. 
 
 ^Porter v. Chicago & W. M. B. Co. 80 Mich. 156.
 
 14:4 DUTY OF CAKBIEB AT STATION. 
 
 time as to indicate an invitation to passengers to alight, and the 
 backward movement is made without warning while they are 
 alighting.' A passenger who by direction of the ticket agent at 
 at railroad station from which he had purchased a ticket, gets on 
 board a train which does not stop at the station to which he is 
 •destined, may recover the actual damages occasioned by the mis- 
 take, from the railroad company.'' 
 
 Notice to the owner of a plantation that his landing is aban- 
 doned and that steamers will no longer stop there will not justify 
 the owner of the line of steamers and of a railroad from refusing 
 to land there in accordance with the terms of a contract in a 
 ticket purchased on the railroad, which gives the passenger an 
 option, in case he travels by steamer, to stop at that point.* The 
 conductor and engineer of a train who have been long in the serv- 
 ice of the railroad company are competent to testify whether 
 under a special order, it is necessary for a train to stop at a cer- 
 tain station.* In the absence of a special contract a passenger 
 cannot complain that the carrier refused to stop its train at a 
 point other than one of its stations, even if the passenger mis- 
 takenly embarked thereon and paid his fare, if he is put off in a 
 civil manner at the stopping place nearest his destination.* 
 
 A conductor may contract to put a passenger off at a flag sta- 
 tion, and on failure the passenger may recover damages;* but the 
 mere belief of a passenger, in reliance upon assurances of a ticket 
 agent as to stopping places or change of cars, does not justify him 
 in disregarding announcements of the conductor to a different 
 effect, without making any effort to learn the truth.^ The accept- 
 ance of the regular fare by a conductor, after knowledge that a 
 passenger took the train desiring tQ be put off at a point where 
 there was no regular station, is not of itself sufficient to constitute 
 a special contract of the company to put the passenger off at the 
 point desired, where the fare so collected was the proper fare for 
 
 ^Sherwood v. Chicago & TT. M. R. Co. 82 Mich. 374, 44 Am. & Eng. R 
 
 Cas. 337. 
 iAl^ihama O. 8. R. Co. v. Eeddleston, 82 Ala. 218. 
 ^Brulard v. The Alvin, 45 Fed. Rep. 766. 
 <Alhtrt V. Sweet, 116 N. Y. 363. 
 
 ''Wells V, A'/tbnma O. S. R. Co. 67 Miss. 24, 40 Am. & Eng. R. Cas. 645. 
 *JIuU V. East Line & R. R. R. Co. 60 Tex. 619, 28 Am. & Eug. R. Cas. 221. 
 Wye V. Virginia M. R. Co. (D. C.) 19 Wash. L. Rep. 369.
 
 1>UTY TO STOl* AT STATIONS. 145 
 
 a passage to anv point not exccedino^ a certain distance, and the 
 point at which the ])rtssen<^er wished to get off was within that 
 distance, especially where such passenp^er had previously applied 
 to and been refused a ticket by the ticket agent.' 
 
 Passengers on railroad trains are not presumed to know the 
 rules and regulations which are made for the iiuidance of the 
 •conductors and other employes of railroad companies, as to the in- 
 ternal affairs of the company; nor are they required to knc>w them,' 
 But the fact that one who asked a ticket agent for a ticket on a 
 limited or fast train was refused a ticket because the train was 
 not allowed to stop at his destination is sufficient notice to him that 
 any agreement the conductor might afterwards make to put him 
 off at his destination would be a violation of the rules of the 
 company, so as to exempt the company, which provided another 
 train which made stops at all stations, from liability where he 
 paid fare to the conductor, who agreed to let him off at, but carried 
 him beyond his* destination.* 
 
 A person who by a tip or bribe induces the conductor of a train 
 not intended for the conveyance of ordinary passengers, as he had 
 reason to know, to permit him to travel on the train contrary to 
 the regulations of the railway company, travels at his own risk, 
 mid is not entitled to damages for any injury to person or prop- 
 erty sustained by him while so traveling.* 
 
 A passenger who during the journey is told by the conductor 
 that the train will not go to the station to which he has paid, and 
 that he can either get off where the train is then stopping or go 
 to some other point, whereupon he leaves the train, — has a right 
 of action; but, if he voluntarily receives back the fare for the un- 
 completed part of the journey, he waives his right of action.* 
 
 As a general rule, the sale of a ticket to a particular statioTi, to 
 be used on a given train, imports an undertaking on the part of 
 the company, not only to take the passenger to that station, but to 
 stop there, and allow him reasonable time and ojDportunity to alight. 
 
 • Wells V. Alabama. O. S. R. Co. 67 Miss. 24, 40 Am. & Eag. R. Cas. 645. 
 *New York, L. E & W. li. Co. v. Winter, 143 U. S. 60, 35 L. ed. 71, 11 Ry. 
 
 & Corp. L. J. 146, 12 Sup. Ct. Rep. 356. 
 "Alabama G. S. B. Co. v. Carmichael, 9 L. R. A. 388, 90 Ala. 19, 
 ^Canadian P. B. Co. v. Johnston, Montreal L. Rep. 6 Q. B. 213. 
 ''Florida S. B. Co. v. Katz, 23 Fla. 139. 
 10
 
 14:6 DUTY OF CARRIER AT STATION. 
 
 Leaving out of consideration, for the present, the question whether 
 or not there may be instances when this rule should not operate, 
 it would seem, in the absence of some special reason for requiring 
 a passenger to notify the conductor of his destination before being 
 called upon to exhibit his ticket, that so doing would be engraft- 
 ing upon the contract a condition out:?ide of its terms, and not 
 usually contemplated by the purchaser. The holder of the ticket 
 has ordinarily the right to assume, when he buys it, that the com- 
 pany will safely land him at his destination. Accordingly, he has 
 the right to presume the conductor will call for his ticket before 
 reaching the station specified, and thus obtain notice of the fact 
 that he desires to stop at such station. Of course, when the con- 
 ductor takes up and examines the ticket, the information will be 
 thus conveyed to him that he has a passenger for this station ; and 
 there will be no difficulty at all in his carrying out the contract 
 M-hich has been made between the company and the passenger. 
 When a railroad company sells tickets to a station of this kind, it 
 unquestionably does so for the purpose of obtaining the money of 
 its customers ; and all of its employes, certainly, ought to know 
 that upon every passenger train there are likely to be one or more 
 passengers for such stations. Beyond doubt, the agent who sells 
 the ticket is aware of the fact that there will be on the train for 
 which the ticket is sold a passenger of this kind, and in most cases 
 the conductor will be able to ascertain the fact by prompt and 
 proper attention to his duties. Every company should so con- 
 duct its passenger business as to adequately serve all its customers; 
 and if any company, M'ithout sufficient excuse, fails to do this, the 
 omission amounts to negligence, and it Avill be responsible for the 
 consequences. The general rule, therefore, as to the duties of 
 railroad companies towards passengers holding tickets for flag 
 stations should be as stated; but, as already intimated, this rule 
 sh<»uld not be inflexible. There may be circumstances under 
 which a passenger for a flag station is carried beyond his destina- 
 tion when it would not be fair or just to attribute the fact to the 
 c(jinpany's negligence. In a recent Texas case * it appeared that 
 defendant in error bought a ticket to a flag station, knowing it 
 was such, and that trains did not stop there " unless some request 
 'GwV/; C. & S. F. li. Co. V. Ryan (Tex. App.) March 23. 1892.
 
 TRAIN MUST JiE STOFFKD AT PKOPER AXD SAFE PLACE. 147 
 
 was iiuule npou the conductor to do so." It would seem that he 
 bought the ticket subject to the condition that Jie must notify the 
 conductor of liis destination ; and, failing to do so, it was liold he 
 was not entitled to recover. Aside from instances like this, there 
 may be other occasions when the conductor will be prevented, 
 without fault on his part, from ascertaining in time the desire of 
 a passenger to stop at a flag station, or wlien, under the circum- 
 stances, it is manifestly the duty of the passenger to see to it that 
 the conductor has the necessary information. In cases of doubt 
 as to which should take the initiative the question may very prop- 
 erly be left to the jury.' 
 
 % 4^' Train must he Stojyped at Proper and Safe 
 
 Place. 
 
 Wherever passengers are accustomed to be received upon trains, 
 or to alight therefrom, whether at a station house, a water tank or 
 elsewhere, railroad companies are bound to keep in a safe condi- 
 tion for transit the ordinary space in which passengers go to and 
 from the train; and travelers have the right to assume that this 
 duty has been performed.^ Such stopping of the train must be at 
 a suitable place.' A raih-oad company stopping a passenger car 
 at a point where there is no platform, it is said, owes a passenger, 
 not only a reasonably safe appliance for enabling her to alight, but 
 the safest that has been known and tested.* 
 
 A carrier is liable for injuries sustained by a passenger in con- 
 sequence of directing her to alight on a dark night at a distance 
 from the station.^ Stopping a train at an unusual place for 
 discharging passengers, where no provision has been made for 
 their safety in alighting from the cars, is such negligence as 
 will render the company liable for injuries sustained by a pas- 
 senger who was directed by the conductor to get otf at that place.' 
 
 ^Chattanooga, B. & 0. R. Co. v. Lyon (Ga.), 15 L. R. A. 857. 
 
 ^Hulbert v. Mw York Cent. R. Co. 40 N. Y. 145. 
 
 *M'Geev. Missouri Pac. R. Co. 10 West. Rep. 282, 92 Mo. 208; Alabama G 
 S. R. Co. V. Wilkinson, 77 Ga. 75; Eurt v. St. Louis, I. M & S R Co 
 13 West. Rep. 233, 94 Mo. 255, 4 Am. St. Rep. 381, note. 
 
 *Missouri Pac. R. Go. v. Wortham, 3 L. R. A. 368, 73 Tex. 25. 
 
 'Warden -v. Missouri Pac. R. Co. 35 Mo. App. 681; Wilbur n v St Louis 1 
 M. & 8. R. Co. 36 App. 203. ' ' 
 
 * Inter national d G. ]^. R. Co. v. Smith (Tex.), 14 Am, & Ena:. R. Cas. 324.
 
 148 DUTY OF CARKIER AT STATION. 
 
 A railroad comi)any which negligently and wrongfully carries 
 a passenger beyond its usual stopping place into its switch yard, 
 where there are no accommodations for passengers, owes the pas- 
 senger the duty to use every precaution for her protection.' The 
 stopping of a train at a place other than a station, to be negligence 
 as to persons injured while attemjitiug to leave it, must l)e suffi- 
 ciently long to indicate to passengers that they are to alight, and 
 not a mere momentary pause." 
 
 A woman carried by a railroad train beyond her station at 
 which railroad employes refused to put her oif and to whom 
 they were "indecorous or insulting, either in words, tone or 
 manner" may be allowed to recover punitive damages.^ The 
 failure of a railroad company to put a passenger, a woman 
 advanced in pregnancy, olf at the usual platform, without good 
 reason, is an act of negligence for which such passenger can re- 
 cover, if injured by reason thereof without fault on her part.* 
 It was ruled that a passenger who is, by fault of a railroad com- 
 pany, landed at a place other than his destination, and, being in a 
 Imrry, proceeds on foot along the track until he reaches a bridge, 
 in order to get across which he has to mount a freight car, in 
 jumping from Avliich car, under a fear that the train will start, 
 breaks his leg, cannot recover from the company ; but this decision 
 was reversed on rehearing on the ground that it is a proper ques- 
 tion for the jury.' 
 
 In a recent case the motion for a nonsuit for want of evidence 
 to charge the defendant was held to be properly denied under 
 the circumstances in evidence. The plaintiff, without apparent 
 fault of her own, was carried some distance — 500 to 700 feet — 
 beyond her destination, to which she had a ticket, and there Iiui-- 
 i-iedly assisted from the car to the ground, over steps of which 
 the lowest was twenty-two inches above the ground. The injury 
 she received in leaping to the ground was aggravated by being 
 compelled to walk from her landing place to the station. In the 
 
 ^Franklin v. Southern Galifornia M. R. Go. 85 Cal. 63. 
 ■Dunn V. Peniuylmnia R. Co. (Pa.) 47 Pbila. Leg. Int. 524. 
 ^Lovinmlle cfc N. R. Co. v. Ballard (Ky.) 2 L. K. A. (594. 
 ^Baltimore & 0. R. Co. v. Leapley, 4 Cent. Hep. 258, 65 Md. 571. 
 ^Adams v. Musouri Fac. R. Co. 100 Mo. 555, 41 Am. & Eng. R. Cas. 
 105, Rev'd in 100 Mo. HTO.
 
 TKAIN MUST UK STOIM'KI) AT I'Kttl'KK AND SAFE I'LAC'K. 141) 
 
 confused and agitated state of lier mind, and tlie fear of being 
 carried beyond her destination, she did not notice the distance of 
 the car step from the ground. It M-as said tliat she had a right 
 to rely on the assistance offered by the conductor and brakeman 
 at such a place, and, if they failed to assist her from the (-ar with- 
 out injury, the fault was the defendant's and not hers.' This case 
 in principle, is not different from another Kew Hampshire case, 
 where the rear car, in which plaintiff was riding, did not reach 
 the platform, and she Avas injured on leaving it by the steps, 
 which were about three feet from the ground. The j)laintiff re- 
 covered a verdict, and the court in the opinion decided that 
 " these facts were evidence from which a jury might find that the 
 plaintiff exercised due care in leaving the train at the place which 
 she knew Avas a bad one for alighting, and, further, miglit find 
 that the defendant intended she sliould leave at that place." * In 
 that case the car step Avas fourteen inches further from the 
 ground than in the Foss case, but the plaintiff" had no assistance 
 in alighting, and the distance from the station platform was very 
 much less. The question jof the reasonable care of the parties 
 Avas the same in each case. In the Foss case the defendant re- 
 quested the instruction that the jVlaintift", enfeebled as she Avas. 
 siiould not have attempted to get off" the car at the place she did. 
 but should have notified the attendant train hands of her condi- 
 tion, that they might have set the train back to the station, Avhere 
 she could have alighted on the jilatfonn in safety; that, no notice 
 being giA^en them of her feeble condition, she cannot recover. 
 But it Avas ruled that such a re<|uest was ])ropei'ly refused. It 
 left out of sight the fact tliut, at the time, the train had passed 
 the station platform a long distance, and the step of the car, from 
 Avhich she must leap, Avas too higli for a Avell person to step from 
 safely. The request, too, leaves out of sight the bewildered con- 
 dition of the plaintiff"'s mind under fear of being carried beyond 
 her destination, and the fact that, until she struck the ground, 
 she Avas not aware that the car had passed beyond the station 
 platform. The insti-uctiou which the court gave was declared to 
 be sufiicicTitly explicit. The jury Avere told, "If the place [where 
 
 ^Fo.<>s V. Boston tfe M. B. Co. (N. H.)ll L. R. A. ;}(57. 
 
 ^BulUtni V. Boston d: M. 11 Co. 2 New Eng. Kep. 899, U N. H. 27.
 
 150 DUTT OF CAKKIEK AT STATIOX. 
 
 the plaintiff left the car] was suitable, and the defendant fully 
 performed the duty it owed to the plaintiff, the defendant is not 
 liable for any injury the plaintiff may have received." " If the 
 place was unsuitable, and the plaintiff received injury in conse- 
 quence, the defendant is liable therefor, unless the plaintiff's want 
 of care contributed to the injury. AVas the plaintiff" in fault for 
 being left at that place, or for leaving the car without objection, 
 or not saying anything about her feeljle condition ? Was she in- 
 duced to alight there by the defendant's servants ? Did her want 
 of ordinary care contribute to her injury?" These pertinent 
 instructions and inquiries made to the jury were plain and explicit, 
 covered the ground of the case, contained the settled law on the 
 subject and were sufficiently favorable to the defendant. 
 
 § 50. Train must Stop at Station a Reasonable 
 
 Time. 
 
 It is a part of tlie duty imposed upon the carrier to afford the 
 traveler a reasonable time to enter the train, or to leave it in 
 safety upon its arrival at his destinatioit or point of dejjarture and 
 to amiouiice the starting of the train, and also the station before it is 
 reached, that the passenger may not inad.vertently pass his station.' 
 A passenger on a railroad train the ser\ants on which knew at 
 what point he desired to alight and did not stop a sufficient time 
 to permit him to alight in safety, who is injured in attempting to 
 alio;ht, is entitled to recover.' 
 
 A sufficient time to permit a passenger to get off the train in 
 safety means time to alight safely in the use of reasonable dili- 
 gence and care, having regard to all tlie circumstances.' What 
 
 ^PoHt. V. Koch, 30 Fed. Rep. 208; Sicigert v. Hannibal & St. J. R. Go. 75 jMo. 
 475; Oalreston, 11. &, II. li. Co. v. Orispi, 73 Tex. 230; Daicnon v. Louis- 
 ville & N. R. Go. (Ky.) 11 Am. & Eair. J{. Cas. 134; McDonald v. 
 Long Inland R. Co. 116 N. Y. 546; Beiroit & M. R. Co. v. CuriU, 23 
 Wis. 152; Uwi» v. Jjmdon C. & D. R. Go. L. H. 9 Q. 13. 132; BrooLs v. 
 Boxfon <& M. R. Co. 135 Mass. 21 ; Rndr/e.<t v. North London R. Co. L. R. 
 7 H. L. 224; fiticher v. New York Cent. & II. R. R. Co. 98 N. Y. 128; 
 Southern R. Co. v. Kendrirk, 40 Miss. 374; New Orleans, J. & G. N. R. 
 Co. V. Statham. 42 Miss. 007; Mi.s.-<i.mppi <£• T. R. Co. v. Oill, 60 Miss. 39; 
 Central R. dc Blaj. Co. v. Perri/, 58 Ga. 461; Toledo, W. d- W. II. Co. v. 
 Baddelei), 54 III. 19; Rahen v. Central Iowa R. Co. 73 Iowa, 579; Louisville 
 N. A. dt C. R. Co. V. Wood, 113 Ind. 546. 
 
 ^Ridenhour v. Kanxas Cit// Cable U. Co. 102 Mo. 270. 
 
 'Pennnyl oil Ilia II. Co. v. Lijous. 129 Pa. 113.
 
 TKAIX MUST STOP AT STATIOX A KKASONABLK Tl.Mi;. 151 
 
 would ho a reasonable time for a liglit, yonng, active man might, 
 and ordinarily would not be, a sufficient length of time for an old 
 lady to get safely off a train, and where an injury occurs to such 
 a passenger the jury cannot determine whether sufficient time has 
 been allowed without considering what kind of a passenger she 
 was — her age, sex and physical condition.' But while it is the 
 duty of a railroad company to afford a reasonable time to passen- 
 gers, whether young or old, to alight from the cars in safety," yet, 
 the age and decrepitude of a particular passenger will not deter- 
 mine the time proper for a stoppage of a train on its arrival at a 
 station.' The increased risk arising from conditions of health or 
 age affecting the fitness of aged or disabled persons to travel must 
 be assumed by the passenger, especially where such conditions are 
 unknown to the carrier.* One physically deficient is required to 
 exercise caution and prudence in proportion to his defect ; * but 
 they are, if their condition be known to the carrier, entitled to 
 more attention and care than those in good health and under no 
 such disability, at least in the time allowed and in the assistance 
 rendered them in getting on and off the carrier's conveyance/ 
 
 A railroad company owes the same duty, in respect to allowing 
 a reasonable time to leave the train, to one who goes upon it to 
 aid a passenger who is in an enfeebled condition requiring assist- 
 ance to alight, that it owes to a passenger, although the services 
 were voluntary.' 
 
 Negligence cannot be imputed to a passenger because she does 
 not anticipate culpable negligence on the part of the carrier.* A 
 passenger has the right to presume that the employes will use the 
 
 ^Hickman v. Missouri Pac. R. (Jo. 8 West. Rep. 564, 91 Mo. 433. 
 
 ^Hwigert v. Hannibal & St. J.R. Co. 75 Mo. 475; Wabash ^t. L. d: P. B. Co. 
 
 V. Rector, 104 III. 5^96. 
 ^Toledo, W. & W. R. Co. v. Baddeleij, 54 111. 19. 
 ^Pullman Palace Car Co. v. Barker, 4 Colo. 344. 
 ^Simms v. Soiith Caroliuu R. Co. 27 S. C. 268. See opinion of Chief Justice 
 
 Black, Pennsylvania R. Co. v. Axpell, 23 Pa. 147. 
 "• Sheridan v. Brooklyn City & JSf. R. Co. 36 N. Y. 39; Louisville, N. A. & C. 
 
 B. Co. V. Snider, 3 L. R. A. 434, 117 Ind. 435, 10 Am. St. Rep. 66, note; 
 
 Browh V. Chicago, M. & St. P. R. Co. 54 Wis. 342, 360, 41 Am. Rep. 41 ; 
 
 Terre Haute <& I. R. Co. v. Buck, 96 Ind. 346, 355; Lapleine v. Morgan's 
 
 L. & T. R. & S. S. Co.'l L. R. A. 378, 40 La. Ann. 661, 666. See, 
 
 however, JVew Orleans, J. & C 3'. R. Co. v. Statham, 42 Miss. 607. 
 ''Louismlle & N. R. Co. v. Crunk, 119 Ind. 542. 
 'Franklin v. Southern Cal. M. R. Co. 85 Cal. 63.
 
 152 DUTY OF CARHIER AT iSTATION. 
 
 degree of care which persons of ordinary prndenceare accustomed 
 to employ under the circumstances.' AVliere a female passenger 
 accompanied by three children, on arriN'ing at an intermediate 
 station, attempted to alight with them, and after two children 
 had left the car and while she was in the act of aliffhtiiiii:, the car 
 started and she thereupon sprang on the platform, on which one 
 of the children had fallen prostrate and was injured, it was held 
 that this was not such negligence as would prevent her recovering 
 damages for injuries sustained bj the premature starting of the 
 train.* In this case a premature starting of the train created the 
 apparent peril, w^iich excused the passenger's acting under an 
 impulsive effort to escape danger.^ Upon the question whether 
 the cars have remained at the station a reasonable time for the 
 passengers to leave, evidence of the usual and customary period 
 of stoppage is admissible." 
 
 A train should remain standing a length of time sufficient to 
 enable a passenger safely to remove himself, his wife and minor 
 children and baggage.' A railroad company is guilty of negli- 
 gence in starting a train after stopping at a station, without allow- 
 ing sufficient time for passengers to alight in safety by using that 
 degree of care re<piired of every prudent person." It is the duty 
 of those in charge of a street passenger railway car to stop the car 
 a sufficient length of time to give a passenger reasonable oppor- 
 tunity to aliglit in safety at the point of his destination,' It is 
 the reciprocal duty of a railroad comijany and a passenger, the 
 former to give reasonable time to leave the train at the place of 
 destination, and the latter to use reasonable diligence and care in 
 getting off.* But refusal to delay for dilatory passenger is not 
 a breacii of duty.* Ordinary diligence as to such signals, accord- 
 
 ^Franklin v. Southeni Gil. M. R. Co. Si) Cal. (53; Robinson v. Western^Pac. R. 
 
 Co. 48 Cal. 421. See Jumlwn v. San Jo»e rf: .V. C. Ji. Co. 55 Cal. 593. 
 'Penn-syivama R. Co. v. Kih/ore, 82 Pa. 292. 
 " South irestern R. Co. v. Paulk, 24 Ga. ;556. 
 *Fuller V. Naugatuck R. Co. 21 Conn. 557. 
 
 »//'/?•« V. St. LmiiH, I. M. cfe S. R. Co, 13 West. Rep. 233, 94 Mo. 255. 
 U.ey(jetl v. Western New York & P. R. Go. (Pa.) 28 W. N. C. 236. 
 'Ridtnhour v. Kamas City Cable R. Co. 102 Mo. 283. 
 ^PnnHi/h-onia R. Co. v. Li/on.s. 129 Pa. 113: Murphy v. Rotne, W. & 0. R. 
 
 Co.'iii N. Y. S. H. 381: McDonald v. L»h(i Maud R. Co. 11(5 N. Y. 546; 
 
 Riden/Miir v. Kansan City Cable R. Co. 102 Mo. 270. 
 *Paylilsrh V. NeT York Cent, d- H. R. R. Co. 102 N. Y. 280.
 
 TKAINS MUST STOr AT STATION A RKASONADLK TIMK. 15S- 
 
 ijig to what is usual on such occasions, is required on both sides — 
 on the side of tlie carrier in giving them, and of the passenger 
 looking, listening for and observing them. What are sufficient and 
 proper signals is a question for the jury.' 
 
 AN^here, before a passenger had safely alighted at a station the 
 conductor signalled the train to btart and jerked the passenger to 
 the gi-onnd and injured him, the carrier is liable.* A passenger 
 on a railroad train has the right to as^nnie that he will be given 
 reasonable opportnnity to get off the train befoi'e it starts, and his 
 omission to retain his hold n|)on the railing at the moment he i& 
 about to step from tlu^ car on to the platform of the station is not 
 a ground for imputing negligence to him/ Wliere, after the 
 arrival of a train at a station, a passenger -waited in the doorway 
 for the guard to open the gates to the platform, and he opened 
 the gate and ])ulled the strap at the same instant, signaling the 
 train to start, and the motion of the car caused the door to swing- 
 to upon the passenger's linger, the company is liable for the neg- 
 ligence of the guard/ Upon stopping a train to let off passen- 
 gers, it is the duty of those in charge to see that all who are get- 
 ting off have safely landed, before the train is again started/ 
 
 An elevated railroad company is liable for injuries caused by 
 the reckless act of an engineer in starting the train while the- 
 track was crowded in front of it witli people who had just alighted 
 from it/ Total inattention to a passenger getting on in the dark 
 and starting the train while, with ordinary care, he is attempting^ 
 to get on, when the circumstances are such as constitute an invi- 
 tation to the passenger to make the attempt, render the railroad 
 company liable for injuries to him caused thereby/ The degree- 
 of care required of a carrier in stopping at stations for passengers 
 
 ^Central 11. & Bhj. Co. v. Perry, 58 Ga. 461; Swigert v. Bannibai cfc iSf. J^ 
 B. Co. 75 Mo. 475. 
 
 ^Tem>< & P. B. Co. v. Miller, 11 L. R. A. 395, 79 Tex. 78; Lonisnlle, X A. 
 <6 C. Co. V. Wood, 12 West. Rep. 303, 113 Ind. 544. 
 
 ^McDonald v. Long Island B. Co. 116 K Y. 546; Franklin v. Southern CaL 
 M. B. B. Co. 85 Cal. 63; Bobinsonv. Western Pnc. B. Co. 48 Cal. 421. 
 
 ^Baker v. Manhattan B. Co. 118 N. Y. 533. 
 
 ''Dunn V. Pennsylvania B. Co. (Pa. C. P.) 47 Phila. Leg. Int. 534. 
 
 *Weiler v. Manhattan R Co. 53 Han, 372. 
 
 "^Chicago & N. W. B. Co. v. Drake, 33 ID. App. 114.
 
 15i DUTY OF CARRIEK AT STATION. 
 
 to aliglit is siicli as persons of the greatest care and prudence 
 would use in similar cases/ 
 
 Until a jjassenger has alighted from the cars, a railroad com- 
 pany must exercise the highest degree of care to enable the descent 
 to be made in safet3^* The fact that the conductor did not know 
 that a passenger intended to leave tlie car, and did not see him 
 leaving it, does not excuse the company for not giving such pas- 
 senger reasonable time to get olf the train, unless he was so situ- 
 ated as to conceal himself from the conductors obervation. But 
 if after a train stops at a station a passenger remains in his seat 
 after a reasonable opportunity to get up, it is not necessarily neg- 
 hgence for the conductor to assume that he did not intend to leave 
 at that station." 
 
 A railroad company cannot be held liable for failure of its 
 train to come to a full stop at a station where a passenger alights, 
 thereby causing injury to the passenger, where, before the train 
 has stopped, another passenger pulls the bell rope, causing it to 
 acquire speed again, the alighting passenger being aware of such 
 action and of its effect.* A railroad company, unless aware that 
 some have left the train, is under no duty to its passengers to give 
 signals before starting at a wood station at which it has stopped to 
 take in wood.^ 
 
 "Where a train is stopped at a station to which the company 
 ■contracts to carry a passenger, the company is liable if a reason- 
 able time to leave is not aiforded, and he is injured in an attempt 
 to alight after it has started and while in motion, if he does not, 
 in getting oif, incur a danger obvious to the mind of a reasonable 
 man.' "Where a train has stopped a sufficient time to enable pas- 
 sengers, exercising proper diligence, to alight in safety, it will be 
 negligence, after the train has fully started, on tlie part of the 
 passenger, to attempt to alight.' 
 
 ^Texas & P. B. Co. v. Miller, 11 L. R A. 395. 79 Tex. 78. 
 
 ^St. Louis, A. & T. R Co. v. Finley, 79 Tex. 85; Alexandria <fe F. R. Co. v. 
 
 Uerndon, 87 Va. 193. 
 '^Rnhmv. Central Iowa R. Co. 73 Iowa, 579, 33 Am. & Eng. H. Cas. 520; 
 
 McDonald v. Long Idaad R. Co. 116 N. Y. 546. 
 \Mi!<.MHHtppi & T. R. Co. V. Harrison, 66 Miss. 419, 39 Am. & Eng. R. Cas. 449. 
 '■Malcoiu V. Richmond & I). R. Co. 106 N. C. 03. 
 ^Central R. & lihj. Co. v. Milex, 88 Ala. 256. 41 Am. & Ensr. R. Cas. 149; 
 
 Covington v. Western <£• A. R. Co. 81 Ga. 273. 
 -'Illinois Cent. R. Co. v. Slatton. 54 111. 133.
 
 TKAIX MLsl STOP AT STATION' A REASOXAIJLK TIMK. 155 
 
 Where a railroad company accepts a passenger, knowing that 
 he intends to stop at a particular station on its road, a duty rests 
 upon it to stop its cars at that station, and it is not sufficient tliat 
 the speed of the cars is slackened. If, without coming to a full 
 stop, the station is passed, and the speed of the cars is again 
 checked that the passenger may get off, and under the direction 
 of the conductor, he is injured in attempting to alight, the com- 
 pany will be held liable unless the danger was so a^jparent that the 
 passenger could be charged M'itli reckless conduct. It is not want 
 of ordinary care if a passenger prudently uses the means the com- 
 pany affords him to get off.' It is the passengers duty to exercise 
 his judgment whether or not it is safe; and if the danger is so appar- 
 ent that a prudent man similarly situated would not have attempted 
 to leap from the train, then he cannot be permitted to recover.' 
 
 If a railroad company fails to stop its trains at a station a suffi- 
 cient time for passengers to safely leave it, and the passenger 
 using reasonable care is injured in consequence of the starting of 
 the train, in the attempt to alight, the company will be liable.' 
 [t is not necessarily negligence to attempt to leave a train after 
 it has started from the station. The circumstances under which 
 the attempt is made must be considered. The rate of speed which 
 the train has attained, and whether the train was stopped a suffi- 
 cient time to enable passengers to get off", are proper matters in 
 determining the question of the negligence of the passenger.* 
 
 ^Georgia B. & Bkg. Co. v. McOurdy, 45 Ga. 288; Lambeth v. North Carolina 
 R. Co. 66 N. C. 494; Chicago & A. B. Co v. Bandolph, 53 111. 510; Jeffer- 
 sonville B. Co. v. Hendricks, 26 Ind. 228; Filer v. New York Cent. B. Co. 
 49 N. Y. 47. 
 
 ^Chicago & A. B. Go. v. Bandolph, 53 111. 510; Bamontv. Nero^Orleans & G. 
 B. Co. 9 La. Ann. 441; Penrmjlmnia B. Go. v. Aspell, 23 Pa. 147; Oavett 
 V. Manchester <fc L. B. Co. 16 Gray. 501; Jeffersonville B. Co. v. Sicift 26 
 Ind. 459; Illinois Gent. B. Co. v. Able, 59 111. Idl; Lambeth v. North Car- 
 olina B. Co. 66 N. C. 494; Kelli/ v. Hannibal <& St. J. B. Go. 70 Mo. 604; 
 Straus V. Kansas City, St. J. & G. B. B. Go. 75 Mo. 185; Nelson v. Atlan- 
 tic <fe P. B. Go. 68 Mo. 593; Houston <& T. C. B. Go. v. Leslie, 57 Tex. 83; 
 Southwestern B. Go. v. Singleton, 67 Ga. 306; Burrows v. Erie B. Co. 63 
 N. Y. 556; Jewell v. Chicago, St. P. & M. B. Co. 54 Wis. 610; Lake Shore 
 & M. S. B. Go. V. Bangs, 47 Mich. 47C; Illinois Cent. B. Co. v. Chancers, 
 71 111. 519; Illinois Cent. B. Go. v. Lutz, 84 111. 598; Dougherty v. Chicago 
 B. & Q. B. Go. 86 111. 467. 
 
 *Pennsylvania B. Co. v. Kilgore. 32 Pa. 292; Jeffersonville B. Co. v. Hen- 
 dricks, 26 Ind. 228; Filer v. New York Cent. B. Co. 49 N. Y. 47. 
 
 -*SiDigert v. Hannibal & St. J. B. Co. 75 Mo. 475; Burrmcs v. Erie B. Co. 3 
 TLomp. & C. 44; Burroios v. ErieB. Co. 63 N. Y.boQ; Price v. St. Lonis 
 K. C. & N. B. Co. 72 Mo. 414; Southwestern B. Co. v. Singleton, 66 Ga. 252.
 
 156 DUTY OF CAKRIER AT STATIOM, 
 
 But the fact that the passenger accepted tlie risk in order to 
 save others from anxiety or distress on account of his continued 
 absence, is not a circumstance to be taken into consideration in 
 determining the question/ 
 
 § 51. Must Provide Safe and Clear Passage from 
 Ti^ains to Eating Station. 
 
 "Where tlie carrier transfers passengers over long journeys, it 
 is bound to provide safe passage-ways and allow reasonable time 
 to its passengers to obtain necessary food and refreshments. It 
 is immaterial whether the refreshment houses are under the con- 
 trol of the carrier or of others. It is a duty of the carrier to giAe 
 proper notice before arri%ang at the stations where provision is 
 made to supply the wants of the passenger, as well as information 
 as to the time of stoppage at the station. If the stop is made at 
 night, this obligation inclndes the duty of providing sufficient 
 light for the safety of passengers going and coming from meals; 
 and pointing out the exact location of trains which may have 
 been shifted during the absence of the passenger. For any negli- 
 gence on the part of the carrier, in discharging these duties, it 
 will be liable for any injury resulting without contributory fault 
 of the passenger.'' 
 
 It is to be presumed that the passenger when entering upon a. 
 continuous journey has regard to the facilities furnished by a 
 particular carrier, not only for transportation but for refreshments 
 during his journey; and the usual stopping places announced in 
 the advertisements by the carrier and the time fixed cannot be 
 varied except under circumstances of urgency, which justify the 
 sacrifice of the temporary convenience of the passenger for the 
 puri)ose of securing his safety. Where a stop has been made at 
 a station for refresliments, or indeed for any purpose which justifies 
 passengers temporarily leaving the train, it is the duty of the car- 
 rier before starting again, to give sufficient warning to enable the 
 passengers to resume their })laces in the train, without exposing 
 themselves to peril. A passenger is, whencNer the performance 
 
 ^Lake S/iore & M. S. R. Co. v. Bauan, 47 Micb. 470. 
 
 '^Penisto), v. (Jhicago St. L. cfe .Y. 0. R. C». M La. Ann. 777; Story, Bailm. 
 
 ny?- Jeprnonvilk, M. & 1. R. Co. v. RUey, 89 Ind. 586; Keokuk K L^ 
 
 Packfi Co. V. True, 88 III. (!08.
 
 MUST PKOVIDE SAFE AND CLKAK PASSAGE TO EATING HOUSE. 157 
 
 of the contract of carriao^e in a usual and proper way, permits the 
 passengers to leave tlie v(?hic'le and return to it, entitled to pro- 
 tection as sneli, as well while so leavniii; and returnino- as at anv otlier 
 time.' Where no means are provided to prevent passengers leaving 
 the train at such point on the side Avhere there is no platform, it 
 is a quosti(»n for the jury whether reasonable care was used by 
 the company.-' 
 
 A passenger on a steamboat, who lias purchased a ticket not 
 entitling him to meals, can properly go on shore for a meal at 
 any intermediate stopping-place before reaching his destination, 
 imd has a passenger's right to protection during his egress, in the 
 proper manner, from the steamer for that purpose.^ 
 
 A passenger on a railroad train does not lose his character as 
 such by aHghting from the cars at a regular station from motives 
 of either business or curiositj^, although he has not yet arrived at 
 the terminus of his journey. Thus a passenger on board a trans- 
 oceanic steamship has a right to go ashore just on the eve of her 
 departure, even if it be for no other purpose than to buy tobacco.* 
 And a passenger upon a railroad, in the absence of any rule of the 
 road or any stipulation on the ticket, has a right to stop off at any 
 intermediate station."^ 
 
 It cannot properly be said, if a passenger leaves a train for the 
 purpose of obtaining refreshments at a regular station, or trans- 
 acting business during its stay there, but intending to return and 
 •continue his passage, ceases to be a passenger or loses the right of 
 being protected by the regulations which the company has pro- 
 vided for the safety of persons traveling on its cars and using its 
 station gromids. He may not stand upon the tracks or go thereon 
 without using the care and caution required of prudent persons 
 under the circumstances of the case; but if a person under such 
 
 ^Siate V. Grand Trunk B. Co. 58 Me. 176; Dodge v. Boston & B. SS. Co. 2 
 L. R. A. 88, 148 lilass. 207; Pitchei- v. Lake Shoie & M. 8. B. Co. 28 N. 
 Y. S. R. 647: Mitchell v. Western & A. B. Go. 30 Ga. 22; Clu.'<sman v. 
 Long Islcind B. Co. 9 Hun, 618, affirmed 73 N. Y. 606; Hrebrik v. Carr, 
 29 Fed. Rep. '-^98; Dice v. Willamette Trani^p. & L. Co. 8 Or. 60. 
 
 ^McKimble v. Boston & M. B. Co. 2 New Eng. Rep. 48, 141 Mass. 463. 
 
 ^Dodge v. Boston & B. S. S. Co. 2 L. R. A. 83, 148 Mass. 207. 
 
 *Hrebrik v. Carr, 29 Fed. Rep. 298. 
 
 *BurnJiam v. Grand Trunk B. Co. 63 Me. 298; Keeley v. Boston & M. B. Co.. 
 67 Me. 163; McKimble v. Boston & M. B. Co. 2 New Eng. Rep. 48, 141 
 Mass. 463.
 
 158 DUTY OF CAKKIER AT STATION. 
 
 circumstances is injured by the omission of the servants of the- 
 company to obey roles adopted for the protection of persons in 
 that situation, it becomes Hable for injuries thus received. 
 
 The rule wldch prescribes it to be the duty of persons to exer- 
 cise care and caution in going upon railroad tracks and to use 
 their senses of sight and hearing for the purpose of discovering 
 and avoiding dangers, is one frequently found in reported cases, 
 and, as a general rule, is salutary and just. 
 
 But the duty of active vigilance must be adapted to the circum- 
 stances of the case; and if the offending company has by its own 
 conduct and by its published regulations, led the public to believe 
 that trains would not be run on its tracks at specified times and 
 places, persons having occasion to cross them have the right to 
 rely upon the assurance of the company and are not necessarily 
 guilty of negligence when injured by prohibited trains while 
 doing so.' 
 
 A person injiired by a collision while the cars were stopped for 
 dinner, is not guilty of negligence in resuming his place in the 
 car before directed to do so by the trainmen.'' Evidence that a 
 person in the uniform of a carrier, directed passengers to enter a 
 train away from a j)latform, is sufficient prima facie, to warrant 
 them in supposing that such person was its officer.' 
 
 ^Parsons v. New York Cent. & H. R. R. Cb. 3 L. R. A. 683, 113 N. Y, 355. 
 
 ^Lakin v. Oregon Pac. R. Co. 15 Or. 230. 
 
 ^Daltimore & 0. R. Co. v. Kane, 12 Cent. Rep. 95, 69 Md. 11.
 
 CHAPTEK IX. 
 ACQEPTANCE AND REFUSAL OF PASSENGERS. 
 
 § 52. Duty as to Acceptance of all Passengers. 
 
 § 53. Right and Duty to Eemove Passengers. 
 
 § 54. Regulations Regarding Transportation of Passengers. 
 
 § 55. Removal of Passenger ; Power of Conductor, and Duty of Pas- 
 senger. 
 
 § 56. Removed of Passenger Destined for a Station at which Cars do- 
 not Stop. 
 
 § S^. Duty as to Acceptance of all PassengcTS. 
 
 The idea which lies at the very base of the law of commoa car- 
 riers, is that they are public servants and serve all alike. Every 
 one constituting a part of the public, for whose benefit the special 
 powers and privileges are given to the carrier, is entitled to an 
 equal and impartial participation in the use of the facilities which 
 they are capable of affording.' 
 
 Passengers cannot be excluded on account of color, religious 
 belief or political relations,^ 
 
 Railway companies have no right to discriminate between per- 
 sons, and sell tickets to some and refuse others.^ It is the duty of 
 a railroad carrier to transport a passenger from stations where two 
 railroads intersect, on payment of the charge fixed by statute, 
 
 ^Samuels v. Louisville & N. R. Go. 31 Fed. Rep. 57; Southern Exp. Co. v. 
 Memphis, etc. R. Co. 8 Fed. Rep. 802; Hays v. Pennsi/lvania Co. 12 Fed. 
 Rep. 311; Galena & C. U. R. Go. v. Tar wood, 15 111. 468; Cliicago, B. <t 
 Q. R. Go. V. Bryan, 90 111. 126; Jencks v. Coleman, 2 Sumn. 221; Indian- 
 apolis, P. & C. R. Co. V. Rinard, 46 Ind. 293; Pearson v. Buane, 71 U. 
 S. 4 Wall. 605, 18 L. ed. 447: Hannibal & St. J. R. Go. v. Swift. 79 U. S. 
 12 Wall. 262, 20 L. ed. 423; 3Iershon v. Hobensaeh, 22 N. J. L. 372; 
 Beekman v. Saratoga & S. R. Go. 3 False, 45, 3 L. ed. 50; Cheney v. Bos- 
 ton & M. R. Co. 11 Met. 121; Goger v. Nortliwestern & N. Packet Co. 3T 
 Iowa, 145; West Cimter &P. R. Co. v. Miles, 55 Pa. 209; McBride v, Mc- 
 Laughlin, ^5 Watts, 375; PJiillips v. Lawrence, 6 Watts & S. 154; McDon- 
 ald V. Scaife, 11 Pa. 381 ; Blair Iron & C. Go. v. Lloyd, 3 W. N. C. 103; 
 Amer v. Longstreth, 10 Pa. 145; Nagle v. Mullison, 34 Pa. 53; Lake Shore 
 tS; M. S. R. Go. v. Rosenzweig, 4 Cent. Rep. 712, 113 Pa. 544; New Or- 
 leans, J. <& O. N. R. Go. V. Hurst, 36 Miss. 660; Baltimore & T. Tump. 
 Go. V. Boone, 45 Md. 344. 
 
 ^Chicago & N. W. R. Co. v. Williams, 55 111. 185, 8 Am. Rep. 641; West Ches- 
 ter & P. R. Co. V. Miles, 55 Pa. 209. 
 ^Indianapolis, P. & C. R. Co. v. Rinard, 46 Ind . 293. 
 
 159
 
 160 ACOEPTAJSCE AND REFUSAL OF PASSENGERS. 
 
 whether he has a ticket or not; and no regulation in conflict with 
 the law can be given effect.' It has been held that the proprie- 
 tors of a stage coach, who hold themselves out us common carriers 
 of passengers, are bound to receive all who require a passage, so 
 long as they have room, and there is no legal excu.^e for refusal; 
 aud it is not a lawful excuse that they run their coach in connec- 
 tion with another coach, which extends the liue to a certain place, 
 and have agreed with the proprietor of such other coach not to 
 receive passengers who come from that place on certain days, 
 unless they come in his coach.' 
 
 But while carriers are bound ordinarily to receive all who apply 
 and are prepared to comply with reasonable regulations, and a 
 railroad company, as a common carrier, may make reasonable 
 rules for the regulation of its business and the performance of its 
 public duties,^ and where the facts are indisputable, it is the prov- 
 ince of the court to determine, as a matter of law, tlie reasonable- 
 ness of a regulation by which a railroad company refuses to sell 
 tickets or check baggage to a regular stopping place of a passen- 
 o-er train,* yet carriers may refuse or remove those whose pur- 
 pose is to impair the patronage of the carrier, or who act as agents 
 for rival carriers,^ or one who threatens to assault a passenger, 
 or to commit any illegal act, or an outlaw, or one who is escaping 
 from justice, or one suffering from any contagious disease.' 
 
 So they may exclude or remove pei-sons offensively rude and 
 diso-ustins in their manners or of notorious immoral or licentious 
 
 Go 
 
 character, if their reputation is such as to give reasonable cause 
 for apprehension that they will misconduct themselves on the 
 trip, or persons wlio by reason of intoxication create this reasona- 
 
 ^Eddy V. Rider, 79 Tex. 53. 
 
 '■Dennett v. But/on, 10 N. H. 481. Bee also The Pacifir. 1 Blatchf. 569; Hurst 
 
 V. Oreat Western R. Co. 19 C. B. N. S. 310; Bretherton v. Wood, 3 Brod. 
 
 & B. 54; Willix v. Long Island R. Co. 34 N. Y. 670. 
 '■Hkians v. Memphis & C. R. Co. 56 Ala. 246. 
 
 * Pittsburgh, C. & St. L. R. Co. v. Lyon, 2 L. R. A. 48!), 123 Pa. 140. 
 >• Barney v. Oyster Bay & H. 8. B. Go. 67 N, Y. 301; Com. v. Power, 7 Met. 
 
 596; Theb. R. Martin, 11 Blatchf. 233; Jencks v. Coleman, 2 Sumn. 221; 
 
 Fellv. Knight, 8 Mees. & W. 269; Burgess v. Clements, 4 MauIe&S. 306; 
 
 Markham v. Broion, 8 N. H. 523; Ansell v. Waterhouse, 2 Chit. 1. 
 *Plttsljurg & C. R. Co. v. Pillow, 76 Pa. 510; Thurston v. Union Par. R. Co. 
 
 4 Dill. 321; Pittsburgh, C. & St. L. R. Co. v. Vandyne, 57 Ind. 576; Ar- 
 nold V. Illinois Cent. R. Co. 83 111. 273.
 
 DUTY AS TO AGOEPTANOK OF ALL PASSENGEliS. 161 
 
 blo belief.' But slight intoxication will not justify such exclu- 
 sion or reiiioval." But the fact that a passenger on a street car 
 used vulgar and indecent language in a tone of voice sufBciently 
 loud to attract the attention of passengers will not justify the con- 
 ductor in putting him off, nnless he used such language in a voice 
 sufficiently loud to annoy and disturb the passengers.' Gamblers 
 and men whose purpose on the train is to defraud the passengers 
 may be excluded or removed.* 
 
 The expulsion from a railroad train of a passenger who has paid 
 his fare cannot be justified by his use of improper language in 
 response to a false charge of failure to pay, though heard by other 
 passengers.* But if a passenger in a street car, without having 
 been reasonably provoked thereto by the improper conduct of the 
 -conductor, willfully and in anger call him a liar in the presence 
 and hearing of the other passengers, he is guilty of disorderly 
 ^conduct justifying his removal from the ear by the conductor.* 
 
 So the carrier cannot accept as a passenger, one whose presence 
 on the train will, with the knowledge of its ofiicers, expose the en- 
 tire train to an assault from a mob, or if it accept such a person it 
 must place him where others will not be exposed to danger from his 
 presence. Where a passenger train was stopped, not at a regular 
 station, but in the midst of a mob to take on persons whom the mob 
 were seeking to maltreat, and they were put into an ordinary car 
 with other passengers and were captured at the next railroad 
 
 ^Bailroad Co. v. VaVeley, 32 Ohio St. 345; Lemont v. WasMngton & G. B. Co 
 1 Mackey, 180; Pitlxburgh, 0. & St. L. B. Co. v. Van Boi/ten, 48 Ind.9() 
 Baltimo-re, P. & V. B. Co. v. McDonald. 68 Ind. 316; Sullivan v. Old Col 
 oiiy B. Co. 1 L. R. A. 513, 148 Mass. 119; LouisvMe & N. B. Co. v. Lo 
 gan (Ky.) 3 L. R. A. 80; Indianapolis, P. & G. B. Co. v. Pitzer, 7 West, 
 Rep. 396. 109 Ind. 191; Stone v. Chicago & N. W. B. Co. 47 Iowa, 82, 
 Slate V. Chomn, 7 Iowa, 204; Crocker v. Ile\B London, W. & P. B. Co. 24 
 Conn. 249; Murphy v. Union B. Co. 118 Mass. 22S; New Orleans, St. L 
 & C. B. Co. V. Burke, 53 Miss. 209; Jencks v. Coleman, 2 Suran. 221 
 Brown V. Memphvi & C. B. Co. 5 Fed. Rep. 499. But see Prendergast v, 
 Compton, 8 Car. & P. 454. 
 
 ^PitL^burgh, 0. & St. L. B. Co. v. Vandyne, 57 Ind. 576; Putnam v. Broad 
 way & 8. A. B. Co. 55 N. Y. 108. 
 
 ^Chicago City B. Co. v. Pdletier, 184 111. 120. 
 
 *T%urston v. Union Pac. B. Oo. 4 Dill. 321. See Pearson v. Buane, 71 U 
 S. 4 Wall. 605, 18 L. ed. 447; Jencks v. Coleman, 2 Sumn. 221. 
 
 ^LouisviOe, N. A. & C. B. Co. v. Wolfe, 128 Ind. 347. 
 
 *Eads V. Mttropolitan B. Co. 43 Mo. App. 536. See Chicago City B. Co. v 
 PeUetier, 134 111. 120; Peavy v. Georgia B. & Bkg. Co. 81 Ga. 485. 
 
 11
 
 162 ACCEPTANCE AND REFUSAL OF PA86ENGEES. 
 
 crossing by the mob, who broke into the car and injured a paseen- 
 ger therein, the carrier was declared liable for needlessly expoedng 
 the passenger to such injury.* The carrier is bound to use all 
 force at its command to repel violence to passengers." 
 
 But the social penalties of exclusion of unchaste women from 
 hotels, theaters and other public places cannot be imported into 
 the law of carriers. Such persons so long as they conduct them- 
 selves with decency have the right to travel in oixiinaiy public 
 conveyances. The carrier has the duty imposed upon him to- 
 carry all individuals whose present conduct is unobjectionable, 
 unless there is reasonable grounds to fear it will not continue so; '' 
 and undoubtedly the close companionship of a coach would 
 authorize the exclusion of persons, where it would not be justified 
 in a railroad train, where a separation can be made. But gener- 
 ally the police power of removal committed to the carrier, will 
 require him to accept all persons, presenting no present reason for 
 their exclusion in their appearance or behavior.* Where a 
 woman was excluded from the "ladies' car" because she was of 
 notoriously bad character, the reasonableness of a regulation 
 authorizing her exclusion was held to be a mixed question of law 
 and fact.' So the carrier may decline to accept, or may remove 
 from the vehicle, one who w^ill not conform to his reasonable reg- 
 ulations when brought to his attention or known to him.' 
 
 ^Chicago d- A. E. Co. v. PilUury, 11 West. Rep. 757, 123 111. 9. 
 
 ^PittHhurgh, Ft. W. <fc C. B. Go. v. UimU, 53 Pa. 512; New Orleans, St. L. 
 & G. R. Co. V. Burke, 53 Miss. 200; Britton v, Atlanta <& G. A. L. M. Go. 
 88 N. C. 536, 43 Am. Rep. 749. 
 
 ^Vinton v. Middlesex B. Go. 11 Allen, 304. 
 
 *Brown v. Memphis & G. B. Go. 5 Fed. Rep. 499; Jencks v. Coleman, 3 
 Sumn. 221, 
 
 ^Brown v. Memphis & 0. B. Co. 4 Fed. Rep. 37, 7 Fed. Rep. 51. 
 
 *Macka,y v. O'uo Blner R Go. 9 L. R. A. 132, 34 W. Va. 61i; Gro'-.ker v. Neut 
 London, W. & P. B. Go. 24 Conn. 249; Chicago, B & Q. B. Co. v. B>yan, 
 90 III. 126; Jei.cks v. Coleman, 2 Sumn. 221; Chicago db N. W. B. Go. v. 
 Willi'ims. 55 111. 185; Chicago, B. tfe Q. B. Co. v. Orifm, GS III. 499; Pat- 
 ry V. Gkicngo, St. P. M. & 0. B. Go. 77 Wis, 218; Carpenter v. Washing- 
 ton & (}. R. Co. 121 U. S. 474, 30 L. ed. 1015; LouisniUe & N. B C>. v. 
 Miy'nn. 66 Miss. 83; Weaver v. B'oi"., W. & 0. B. Go. 3 Th'>ra ). & 0. 
 270; Frederick v. Marquette, II. <& O.B. Go. 37 Mich. 342; McGarthy v . 
 Cidrngo, B. I. & P.B. Go. 41 Iowa, 432; Terre Haute, A. & St. L. B. Co. 
 V. Vanatta, 21 III. 18S; B>irlin'ito,i & \f. B. R. Cj. v. B)'<g, U N^b. 177; 
 Stite V. Goold, 53 Me. 279; Biltinore& 0. B. Co. v. Bioclur, 27 Md. 277; 
 Pu6t V. GIdcago & N. W. B. Co. 14 JSteb. 110.
 
 EIGHT AND DUTY TO KEMOVE PA8SENGEK8. 163 
 
 § 53. Right and Duty to Remove Passengers.^ 
 
 If one who has been admitted as a passenger, be afterwards dis- 
 covered to be of such a dangerous disposition or offensive habits 
 as would have jnstitied his exchision, had the facts been known 
 at the time he was accepted, the question may arise as to the 
 power of the carrier to remove him upon discovery of the facts. 
 
 Permitting a passenger to enter a train knowing him to be 
 intoxicated does not deprive tlie carrier of a right to eject him 
 when he becomes boisterous and obnoxious during the journey." 
 And an intoxicated passenger may be removed after tendering 
 him such "j^roportion of the fare he has paid as the distance he 
 then is from the place to which he has paid his fare bears to the 
 whole distance for which he has paid his fare." * 
 
 It has been held that although a railroad or steamboat company 
 can properly refuse to transport a drunken or insane man, or one 
 whose character is bad, they cannot expel him, after having 
 admitted him as a passenger, and received his fare, unless he mis- 
 behaves during the journey.* * 
 
 Where the libelant had been banished by a vigilance committee 
 under penalty of death if he returned, and having secured pas- 
 sage upon a return steamer, without the knowledge of the captain 
 as to the circumstances of his banishment, he was sent back upon a 
 vessel met on the way, it was held that although the captain's 
 motive was to save his life, the action was not justified. But 
 nevertheless, a judgment for $4,000 was reduced to $50, as hav- 
 ing, under the circumstances, been excessive.' In this case there 
 
 *Where a street car driver removes a passenger who is stricken with apo- 
 plexy, in such a manner as to render the company liable, the misiake of such 
 driver in supposing that the passenger was drunk, when he had ridden a con- 
 siderable distance without misbehavior, will not excuse the company from lia- 
 bility. Where a passenger stricken with apoplexy is removed from a street car 
 by the driver, in a helpless condition, and laid in the street, on a bleak, driz- 
 zling day, and there abandoned, with no effort to procure him attention, the 
 company is liable. Coaolly v. Crescent City R. Co. i\ La. Ann. 63. 
 
 'See also § 67. 
 
 ■LoiiimUe N. R. Co. v. Logan (Ky.) 3 L. R. A. 80. 
 
 'Baltimore, P. & C. R. Co. v. McDonald, 68 Ind. 316. 
 
 *Coppin V. Braithwaite, 8 Jur. 875; Prendergast v. Compton, 8 Car. & P. 463. 
 
 ^Pearson v. Duane, 71 U. S. 4 Wall. 605, 18 L. ed. 447.
 
 16A ACCEPTANCE AND KEFDSAL OF PASSENGEK8. 
 
 was no fraud on the part of the libelant in procuring his passage. 
 He calked freely with officers of the vessel, and it does not 
 appear that he would have been refused a passage had the facts 
 been known in the first instance. 
 
 But where the permission of the passenger to remain in the 
 train becomes a question involving the safety of the passengers, 
 the non-exercise of the police power possessed by the carrier for 
 their protection, cannot, it would seem, be excused because of an 
 error in admitting the passenger. If it is a duty for the protec- 
 tion of tlie passengers, not to receive persons who endanger their 
 safety, and police power is given him at common law to enforce 
 his refusal,' no error of the carrier in accepting such a person, 
 can relieve it from the obligation to remove him, when the dan- 
 ger attending his presence is discovered, unless additional care in 
 guarding him, on the part of the carrier, can remove the hazard. 
 While as between the obnoxious passenger and the carrier, the 
 act of accepting him, if he has practiced no fraud to secure his 
 passage, might be held as an estoppel, no such effect can be given 
 to it on legal principles, if the act imperil those whose safety the 
 police power of removal, has been given the carrier to insure.* 
 Of couree consideration must be given to the safety and reason- 
 able comfort of the passenger whose removal becomes necessary.* 
 Xo unnecessary hardship must be imposed upon him/ and 
 the original wrong in admitting him, and the subsequent 
 inconvenience growing out of this wrong, must be answered for 
 to him, if he be guiltless in the matter. The question will become 
 more involved, when the passenger is on shipboard, or on a rail- 
 way train passing through a desolate country, and the power to 
 confine a dangerous passenger, expressly conferred by statute in 
 some states,* but always accompanying the possession of police 
 
 ^Brown v. Memphis <& C. B. Co. 5 Fed. Rep. 499; Pittsburg & C. R. Co. v. 
 
 FdUm, 76 Pa. 510. 
 ^Yinton V. MiddleMX R. Co. 11 Allen, 304; Pitf.thurg <& G. R. Co. v. Pillow, 76 
 
 Pa. 510; LouisviOe & N. B. Co. v. Logan (Ky.) 3 L. R. A. »0. 
 * Atchison, T. dk 8. F. R. Co. v. Weber, 33 Kan. 543; Railroad Co. v. Valleley, 
 
 32 Ohio 81. 345; Cincinnati, 1. cfc St. L. R. Co. v. Cooper, 6 L. R. A. 241, 
 
 120 lu(i. 469. 
 *Myklehy v. Chicago, St. P. M. & 0. R. Co. 39 Minn. 54; Indianapolis, P. cfc 
 
 C. R. Co. V. Pilzer, 4 West. Rep. 256, 109 Ind. 179. 
 •Beckwith v. Olieshire R. Co. 3 New Eu^'. Rjp. 18G, 143 Mass. 68.
 
 EIGHT AND DUTY TO REMOVE PASSENGEB8. 165 
 
 power at common law,* may be resorted to if necessary for the pro- 
 tection of the passengers and the safety of the unwelcome intruder. 
 But under no cii'cumstances will mere rudeness or impoliteness 
 justify the removal of a passenger. It must be some infraction of 
 decency or regulation or indication of danger apparent, or reason- 
 ably to be anticipated.* 
 
 It must be conceded under the adjudicated cases that the carrier, 
 as an incident to its public employment, not only has the power,' but 
 is bound to take all reasonable and proper means to insure the safety 
 and provide for the comfort and convenience of its passengers and it 
 follows, that it has the right, in the exercise of this authority and 
 duty, to repress and prohibit all disorderly conduct in its vehicles, 
 and to exj^er or exclude therefrom any person whose conduct or 
 condition is such as to render acts of impropriety, rudeness, inde- 
 cency or disturbance either inevitable or reasonably probable. 
 Certainly the person in charge of the vehicle is not bound to wait 
 until some overt act of violence, profaneness or other misconduct 
 has been committed, to the annoyance, inconvenience or injury of 
 other passengers, before exercising his authority to exclude or 
 expel the offender. It may remove gamblers engaged in their 
 vocation ; * and drunken men creating a disturbance.' But a father 
 cannot be removed for the misbehavior of a grown son.'' 
 
 The right to remove a disorderly passenger without arresting 
 him, which corporations possess at common law, is not intended 
 to be taken away by a public statute which provides that railroad 
 police officers may arrest and remove such passengers to the bag- 
 gage car or other suitable place of detention, and a passenger 
 who is guilty of disorderly conduct may be placed in a baggage 
 car without arresting him, and carried to his destination when it 
 
 ^Sullivan v. Old Colony B. Go. 1 L. R. A. 513, 148 Mass. 119. 
 
 ^Prendergmt v. CompUm, 8 Car. & P. 454; Putnam v. Broadway & 8. A R 
 
 Co. 55 K Y. 108. 
 *Qould V. CJdcngo M. & St. P. R. Co. 18 Fed. Rep. 155; Roffbauer v. Dnven- 
 
 part & N. W. R. Co. 52 Iowa, 342; State v. Goold, 53 Me. 279; Pcilsburgli 
 
 C. & St. L. R. Co. V. Van Houten, 48 lad. 90. 
 * Vinton v. Middlesex R. Co. 11 Allen, 304, 
 ^Thurston v. Union Pac. R. Co. 4 Dill. 321. 
 *SuUimn v. Old Colony R. Co. 1 L. R. A. 513. 148 Mass. 119; Cincinnati, I. St. 
 
 L. <& C. R. Co. V. Cooper, 6 L. R. A. 241, 120 lad. 469. 
 ^Louisville & N. R. Co. v. Maybin, 66 Miss. 83.
 
 166 ACCEPTANCE AND REFUSAL OF PASSENGERS. 
 
 is reasonable that this should be done without rendering the com- 
 pany liable.' 
 
 The law makes it the duty of a railroad company to use all 
 reasonable care in operating trains for both the safety and pro- 
 tection from molestation and insult of passengers ; otherwise 
 elderly and infirm persons and females, who, upon the faith of 
 such protection, frequently travel unattended, would have no 
 security against turbulent, bad men.' And as it is obvious a train 
 must be run witli skill and system in order to assure safety and 
 comfort, the conduct of anyone who interferes with the manage- 
 ment, or without just cause attempts to do bodily injury to, 
 or put in fear, thoso in charge, is reprehensible and unlawful. 
 But a railroad company is not required to keep at hand armed 
 police to resist an attack from an unexpected mob,' or to arrest and 
 confine on a moving train those who violate its necessary rules, or 
 do injury to other passengers ; nor can the employes neglect 
 their duties, upon the faithful performance of which the safety of 
 all depends, in order to do so. Consequently, the only effectual 
 remedy for or security against disorderly and lawless behavior 
 on board a passenger train is the immediate and summary expul- 
 sion of the wrongdoer ; and plenary authority of the conductor 
 to do it is universally recognized, and required to be exercised 
 whenever necessary for the safety or protection of either passen- 
 gers or employes.* 
 
 A passenger who is guilty of gross noisconduct, either by insult- 
 ing or assaulting other passengers or the conductor, or who uses 
 vile or profane language in the car, or who threatens to assault 
 other passengers or the conductor, may lawfully be expelled from 
 the train.* The officers and employes in charge of railway trains 
 have the right and power to preserve order and decorum, and to 
 that end may eject all drunken, riotous and disorderly persons and 
 
 'StiUiran v. Old Colony R. Co. 1 L. R. A. 513. 148 Mass. 119. 
 
 ^Rotnin'X v. fi'-hambaher, 120 Pa. 579; Simmons v. New Bedford, V. & N. 8. 
 B. Co. 07 Mass. yCl. 
 
 »Piitnburfjh, Ft. W. tfe C. R. Co. v. Wnda, 53 Pa. 512; Simmons v. Neto Bed- 
 Jord. V. & N. S. B. Co. 97 Mass. 361. 
 
 *T^uiHmll6 d; N. B. Co. v. Lofjan, 3 L. R. A. 80, 88 Ky. 233. 
 
 ^PUlaburgh, C. & St. L. R. Co. v. Van Eouten, 48 Ind. 90.
 
 EiaHT AND DUTY TO EEMOVE PASSENGERS. 167 
 
 all persons violating the reasonable rules of the company.' This 
 right and power is everywhere conceded by the courts. From 
 this power and from the obligation resting upon carriers of per- 
 sons to transport their passengers safely to their destination, 
 arises a duty to exercise that power and authority. It is the duty 
 of the railway company and of its conductor to use the utmost 
 vigilance and care in maintaining order and in protecting passen- 
 gers from violence and insults from others, though such other 
 persons be passengers, and a failure so to do will render the com- 
 pany liable for damages to a passenger injured by reason of such 
 neglect. The company, it has been held, is as much liable for an 
 omission in this respect as it is for a negligent failm*e to provide 
 safe machinery.* 
 
 But where such care does not involve the personal safety of 
 the passenger, the degree of care required of a carrier to prevent 
 injury to a passenger while in transit or getting on or off its cars 
 or other vehicles, from the careless or wrongful acts of others, is 
 not the utmost care which a very cautious person would exercise, 
 but reasonable care, not only on the part of its servants, but also 
 in preventing injury from the careless or wrongful act of any 
 other person whom it permits to come on its premises, which 
 could have been foreseen.* The power and right to prevent the 
 occurrence of improper or disorderly conduct in a public vehicle 
 is equally as essential and vital as the authority to stop a disturb- 
 ance or repress acts of violence or breaches of the peace or of 
 decorum after they have been inaugurated and the mischief 
 partially done. The safeguard against the unjust and oppressive 
 Abuse of the power is in the consideration that the carrier will 
 never be sustained, except where it can be satisfactorily proved 
 that the reputation, condition or conduct of a person was such as 
 to render it reasonably certain that he would occasion discomfort 
 
 ^Oarpenfar v. Wasldnglon <& G. B. Go. 121 U. S. 474, 30 L. ed. 1015; Louis- 
 
 tUle & N. R Co. V. Mayhin. 66 Miss. 83; Cincinnati, 8. & G. E. Co. v. 
 
 Skitlman, 39 Ohio St. 444; Havens v. Hartford db iV. H. R. Co. 28 Conn. 
 
 69. 
 *Flint V. Noi-wicJi & N. T. Tramp. Go. 34 Conn. 654; New Orleans, St. L. <fe 
 
 C. R. Go. V. Burke, 53 Mias. 200; Pittsburg & C- R. Co. v PiUo7p, 76 Pa. 
 
 510; Pittsburgh, Ft. W. cfc G. R. Go. v. Himis, 53 Pa. 513; Rommel v. 
 
 Hchamhaher, 120 Pa. 579. 
 *Buck V. Manhattan R. Go. 32 N. Y. S. R, 51.
 
 168 ACCEPTANCE AND REFUSAL OF PASSENGERS. 
 
 or annoyance to other passengers, if he were admitted into a pub- 
 lic vehicle, or having secured such entrance, if he were allowed 
 longer to remain, unless such removal be for some violation of,, 
 or failure to comply with the reasonable rules of the company, or 
 other improper conduct.* For injury suffered from the negligence 
 or timidity of the carrier in failing to exercise this power of 
 removal on proper occasions, he must answer in damages as well 
 as for its wrongful exercise." 
 
 A railroad company cannot subject passengers although in a second 
 class car, to noxious influences, not necessarily, nor ordinarily in- 
 cident to such travel, — such as hearing rough, profane, and obscene 
 language, and witnessing acts of violence and drunkenness which 
 the company, by the exercise of proper care and due regard for 
 the welfare of passengers could prevent.' 
 
 § 54- Peculations Regarding Transportation of 
 
 Passengers. 
 A railroad company has a right to enforce reasonable rules and 
 regulations relating to passengers, and to employ such force as 
 may be necessary for that purpose; and its gate-keeper may seize 
 hold of and detain passengers so far as necessary to prevent their 
 boarding trains in motion.* 
 
 ^Cidn V. Minneapolis & St. L. R. Go. 39 Minn. 297; Du Lnurana r. Mrsf 
 
 Div. St. Paul <& P. B. Co. 15 Minn. 49; Southern Kansas R. Co. v. Eiim- 
 
 dale. 38 Kan. 507; Atchison, T. & S. F. R. Co. v. Oants, 38 Kan. 608;. 
 
 Southern Kanfos R. Co. v. Rice, 38 Kan. 393; Chicago, B. & Q. R. Go v. 
 
 Griffin, 68 111. 499; State v. Chovin, 7 Iowa. 204; Stone v. Chicago & N. 
 
 W. R. Co. 47 Iowa, 82; Crocker v. ]^ew London, W. & P. R. Co. 24 Ctonn. 
 
 249; New Orleans. St. L. & C. R. Co. v. Burke, 53 Miss. 209; Murphy v. 
 
 Union R. Co. 118 Mass. 228; Chicago & JV. W. R. Go. v. Williama, 55- 
 
 111. 185. 
 ^Pittshitrq & G. R. Co. V. Pillow, 76 Pa. 510; Viyiton v. Middlesex R. Go. 11 
 
 Allen, 304; King v. Ohio & M. R. Co. 22 Fed. Rep. 413; New Orleans, St. 
 
 L. & G. R. Co. V. Burke, 53 Miss. 209; Pittsburgh, Ft. W. &C. R. Go. v. 
 
 Hinds, 53 Pa. 512; State v. Chovin, 7 Iowa, 204; Flint v. Norwidi d JV. 
 
 7. Tninsp. Co. 6 Blatchf. 158; Stone v. Chicago & N. W. R. Go. 24 Conn. 
 
 249; Flint v. Norwich & N. T. Transp. Co. 34 Conn. 554; Murphif y. 
 
 Union R. Co. 118 Mass. 228; Bass v. Chicago & N. W. R. Co 86 Wis. 
 
 450; Chicago, B. & Q. R. Co. v. Griffm, 6S 111. 499; Oralcer v. Ckicago (t 
 
 N. W. R. Co. 36 Wis. 657; Bntton v. Atlanta & G A L. R. G*>. 88 N. 
 
 C. 536; Qoddard v. Grand Trunk R. Co. 57 Me. 202; Bitten v. South d; 
 
 N. Ala. It. Co. 77 Ala. 591; Rinixden v. Bot<ton & A. R. Co 104 Miiss. 
 
 117; Flanneri/ v. Ba'timore <6 0. R. Go. 4 Mackey, 111: Chicago (& N.W. 
 
 R. Co. V. Wi'Uiains, 55 111. 185; Spohn v. Misnouri Pac. R. Co. a7 Mo. 77, 
 
 101 AIo. 417. 
 *8t. Louis, A. & T. R. Go. v. Mackie, 1 L. R. A. 667, 71 Tex. 491. 
 *Diclcerm'in v. St. Paul Union Depot Co. 44 Minn. 433, 45 Am. & Eng. R.. 
 
 Ctts. 596.
 
 REGULATIONS REGARDING TRANSPORTATION OF PASSENGERS. 16^ 
 
 The reasonableness of rules prescribed by railroad companies, 
 and like corporations with like powers, is a question of law to be 
 decided by the courts, and not a question of fact to be decided 
 by juries.' 
 
 In the case of Illinois Cent. R. Co. v. Whiitemore, the Supreme 
 Court of Illinois says: " The circuit court left it to the jury to 
 say whether the rule was reasonable. This was error. It was 
 proper to admit testimony, as was done; but either with or witli- 
 out this testimony, it was for the court to say whether the regula- 
 tion was reasonable, and therefore obligatory upon the passengers. 
 The necessity of holding this to be a question of law, and there- 
 fore within the province of the court to settle, is apparent from the 
 consideration that it is only by so holding that lixed and permanent 
 regulations can be established. If this question is to be left to 
 the juries, one rule would be applied 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 obli- 
 gations. A fixed system for the control of the vast interests con- 
 nected with railways would be impossible, while such a system is 
 essential equally to the road and to the public." 
 
 That railroad companies have the power to prescribe such rea- 
 sonable rules and regulations as may be found necessary in the 
 conduct of their business is indisputable. The validity of the rule 
 depends upon its reasonableness. If reasonable it has the force 
 and effect of law, but if unreasonable it is not obKgatory upon 
 the public to obey it. 
 
 Webster defines a rule to be "That which is prescribed or laid 
 down as a guide to conduct; that which is settled by authority or 
 custom; a regulation; a prescription; a minor law; a uniform 
 course of things." It is the duty of courts to pass upon and con- 
 strue the laws of the land, and the reasonable rules and regulations 
 established by a railroad being laws — minor laws — there is no 
 good reason why the courts should not pass upon them and pro- 
 
 ^Louisville, If. & Q. 8. B. Co. v. Fleming, 14 Lea, 128, 18 Am. & En^. R. 
 Cas. 347; Vedder v. Fellows, 20 N. Y. 12«; Maroney v. Old Colony & N. 
 R. Co. 108 M iss. 153, 8 Am. Rep. 305; Yorton v. Milwaukee, L. 8. tfe W. 
 R Co. 54 Wis. 234. 41 Am. Rep. 23; PMshargh, C. & 8t. L. R. Co. v. 
 JSfazum, 50 lad. 141. 19 Am. Rep. 703; Pierce v. Randolph, 12 Tex. 290^ 
 Rorer, Railroads, 226, 227; lUinoii Cent. R. Co. v. Wldltetmre, 43 111. 420.
 
 170 ACCEPTANCE AND KEFUSAL OF PA8SENGEE8. 
 
 nounce them reasonable and binding, or unreasonable and not 
 binding, as the case may be.' 
 
 Rules of a railroad company requiring persons passing through 
 its g-ates for the purpose of taking trains to exhibit their tickets 
 to, and have them punched by, the gate-keeper, and that no pas- 
 senger shall be allowed to board any train while in motion, are 
 reasonable; and persons knowing of such rules, and having a rea- 
 sonable opportunity to do so must comply therewith,' 
 
 A regulation of a railroad company which is ancient and public, 
 requiring passengers without tickets to pay an extra fare, is pre- 
 smned to be the act of the corporation; and a party ejected for 
 noncompliance has no right to question the fact or the method of 
 its adoption.' 
 
 A passenger has no right to travel on a lost season ticket. A 
 ■condition requiring him to exhibit his ticket is a reasonable one.* 
 A by-law of a railway company, that "any passenger traveling 
 without a ticket, or failing or refusing to show or deliver up his 
 ticket to any duly authorized servant of the company when required 
 to do so," shall be required to pay the fare from the station whence 
 the train originally started to the end of his journey, as against a 
 passenger who had, in good faith, traveled a short distance upon 
 the line without liaving procured a ticket, is unreasonable and 
 void.' The fact tliat a person has previously ridden in passen- 
 ger cars upon a livestock ticket, which gave him a right to ride 
 only on a freight train, does not vary his legal rights as evidenced 
 by such a ticket accepted by him, or give him any right to ride 
 thereon in a passenger train.* 
 
 Railroad companies have the right to adojjt reasonable regula- 
 tions as to the method of paying fares by passengers, and may 
 
 ^South Floj-ida R. Co. v. Rhoada, 3 L. R. A. 733, 25 Fla. 40. 
 
 *DicIcei-man v. St. Paul Union Depot Co. 44 Minn. 433. 
 
 KMeOowen v. Morgan h L. & T. R & SS. Go. 5 L. R. A. 817, 41 La. Ann. 
 732, 39 Am. & Eng. R. Cas. 460. 
 
 *CreMon. v. Philadelphia & R. R Go. 11 Pliila. 597; Cooper v. London B. <fe 
 S. G. R. <k>. L. R. 4 Exch. Div. 88; Duke v. Great Wtstern Go. 14 U. C. 
 G. B. 3G9. 
 
 ^■Tjoiulm & B. R. Go. v. Watnon. L. R. 3 C. P. Div. 249. 
 
 *Tliorp V. Concord R. Co. Gl Vt. 378.
 
 REGULATIONS KEGARDING TRANSPOKTATION OF PASSENGEKS. 171 
 
 discriminate between fares paid for tickets at stations and those 
 paid in the cars.' 
 
 A railroad company may charge a reasonable sum more than 
 regular fare, to passengers who tender their fare on the train pro- 
 vided a reasonable opportunity has been given to purchase tickets 
 l)efore the passengers entered the train.'' A regulation that a 
 railroad passenger who fails to purchase a ticket must pay 10 cents 
 more than the regular fare, for which extra charge a check will 
 he given by the conductor, which will be cashed at any ticket 
 office is not unreasonable;' and is not a part of the "fare or charge 
 for transportation," within the meaning of the statute fixing the 
 maximum rate of fare.* And a requirement of passengers without 
 tickets to pay 25 cents extra, is not unreasonable. That a rail- 
 road company gives a drawback coupon for the extra fare, on 
 which a passenger may collect it back from any agent at a sta- 
 tion does not affect the validity of a regulation requiring passen- 
 gers without tickets to pay an extra fare. A passenger who refuses 
 to comply with the regulations of a railroad company requmng 
 passengers without tickets to pay 25 cents extra may be lawfully 
 ejected in a proper manner and at a proper place.* It is a rea- 
 sonable regulation for a railway company to fix its rates of fare 
 by a tariff posted at its stations, and to allow a uniform discount 
 on these rates to those who purchase tickets before entering the 
 cars;* and a provision that if such a ticket is not purchased, the 
 full rate of fare shall be charged, does not violate a rule prescribed 
 by statute, that the rates of fare shall be the same for all persons 
 between the same points.'' 
 
 A railroad company may discriminate in its rates against those 
 
 ^McOomn v. Morgan's L. i& T. B. & 8S. Co. 5 L. R. A. 817, 41 La. Ann. 
 732, 39 Am. & Eng. R. Cas. 460. 
 
 *Slat6 V. Hungerford, 39 Minn 6; Chicago. B. I. & P. B. d. v. Brisbane, 24 
 111. App. 463; Ilall v. South Carolina B. Co. 25 S. C. 564. 
 
 ^Beese v. Pennsylvania B. Go. 6 L. R. A. 529, 131 Pa. 422. 
 *DaLanra.m v. First Div. of St. Patd d: P. B. Co. 15 Minn. 49; Si. Louis,N. 
 <fc G. B. Co. V. Dalby, 19 111. 353. 
 
 ^McGowen v. Morgan's L. & T. B. & SS. Co. 5 L. R. A. 817, 41 La. Ann. 
 732, 39 Am. & Eng. R. Cas. 460. 
 
 '^State V. Ooold, 53 Me. 279. 
 
 ''Swan V. Manchester & L. B. Co. 132 Mass. 116; Hofhamr v. Davenport & 
 N. W. B. Co. 53 Iowa, 342; Bordeaux v. Erie B. Co. 8 Hun, 579.
 
 172 ACCEPTANCE A_ND KEFUSAL OF I'ASSEJS'GEKB. 
 
 who do not purchase tickets if reasonable opportunities are 
 afforded to procure them.* Such a regulation is reasonable.* 
 
 Passengers who neglect to purchase tickets at stations before 
 embarking on cars may be charged additional fare if proper con- 
 veniences and facilities are furnished them for procuring tickets." 
 A passenger wrongfully upon a train may be removed, and the 
 corporation will only be liable for unnecessary violence.* Where 
 the rules of the company require all passengers to purchase a 
 ticket before entering the cars and forbid the conductors from 
 taking money for fares, a passenger who neglects to supply him- 
 self with a ticket may be removed from the car although he ten- 
 ders his fare in money.^ Such requirements are reasonable ones 
 to protect the carrier against imposition and the fraud of its 
 employes.* But if the rate exceed that fixed by statute, the pas- 
 senger need only tender the legal amount.' So where a person 
 is wrongfully in possession of his ticket, although innocently, he 
 may be ejected from the train unless he rectifies the wrong upon 
 demand.* 
 
 A rule prescribed by a railroad company, inhibiting the wear- 
 ing on their cars the uniform caps and badges of the ofiieers and 
 employes of an independent line of steamers is not a reasonable 
 rule, and hence not binding upon the persons wearing them; and 
 if the company expels any such passenger for wearing such cap 
 or badge, such expulsion is illegal, and the passenger so expelled 
 is entitled to damages therefor. Railroad companies have no 
 right to so prescribe the dress of any passenger.' 
 
 ^Forsee v. Alabama Q. S. R. Co. 63 Miss. 67; Georgia Southern & F. R. C». 
 
 V. Asmore, (Ga.) 16 L. R. A. 53. 
 « Wilsey v. Louisville & N. R. Co. 83 Ky. 511. 
 ^Chimqn. B. & Q. R. Co. v. Parka, 18 III. 460; St. Loui<<, A. & T. H. R. Co. 
 
 V. South. 43 III. 176; Chicago & A. R. Co. v. Flagg, 43 111. 364; Siute v. 
 
 Qoold, 53 Me. 279; St. Louis, A. & C. R Co. v. Dalbij, 19 III. 3.53; Porter 
 
 V. New York Cent. R. Co. 34 Barb. 353; Crocker v. New London, W. & 
 
 P. R. Co. 24 Conn. 249. 
 *Lak6 Slwre & M. S. R. Co. v. Pierce, 47 Mich. 277; Slielton v. Lake Shore 
 
 & M. 8. R. Co. 29 Ohio St. 214. 
 ^McCarthy v. Dublin, W. & W. R. Co. 5 Ir. C. L. Rep. 244; Lane v. East 
 
 TenneHHee, V. & 0. R. Co. 5 Lea, 124. 
 ^Pullman Palace Car Co. v. Red. 75 111. 125. 
 ''Smith V. Pittsburg, Ft. W. & G. R. Co. 23 Ohio St. 10. 
 >^\rcmphin & C. R. Co. v. Chastine. 54 Miss. 503. 
 *South Florida R. Co. v. Rhoads, 3 L. R. A. 733, 25 Fla. 40.
 
 REMOVAL OF PASSENGEK — POWEK OF CONDUCTOR. 173 
 
 Exemplary damages may be given for the refusal to sell a pas- 
 senger a ticket or to check liis baggage to a regular station of a 
 passenger train, in pursuance of an unreasonable regulation of the 
 company, which indicates a wanton disregard of the rights of 
 passengers.' 
 
 § 55. R&tnovcbl of Passenger— Power of Conductor 
 and Duty of Passenger. 
 
 A conductor of a railroad train is somewhat like the master 
 of a ship; he has police powers and disciplinary control over the 
 train; and the quiet and comfort of the passengers and their safety 
 are under his protection;'' and while the conditions are not iden- 
 tical, yet on analogous principles it is the duty of the passenger 
 to avoid resistance to liis authority, beyond a distinct protest, and 
 to submit to his orders, unless resistance is necessary to defend 
 himself against personal injury." 
 
 Carriers of passengers are legally bound to reasonable conduct 
 on the facts brought to their knowledge or to the knowledge of 
 their agents and employes.* It is the duty of the conductor to 
 ascertain whether a passenger has purchased a ticket before eject- 
 ing him from the cars.* If the plaintiff has forfeited his right to 
 be carried as a passenger by refusing to show his ticket when 
 requested to do so by the conductor, and if the right was not 
 restored by subsequently complying, then his expulsion is lawful 
 and he has nothing to complain of, unless greater force and vio- 
 lence is used than his own resistance rendered necessary.* 
 
 It is no excuse for the expulsion of a passenger from a railroad 
 train that the conductor made a negligent mistake as to the sta- 
 tion indicated on the ticket which the passenger had surrendered 
 .to liim,^ and where the conductor through mistake gives back 
 
 ^Indianapolis, P. & U. E. Co. v, Einard, 46 Ind. 293; Pittsburgh, C. & St. L. 
 
 E. Co. V Lyon, 2 L. R. A. 489, 123 Pa. 140. 
 'Atchison, T. & S. F. E. Co. v. Gants, 38 Kan. 608, and authorities cited; 
 
 Bellman v, Mw York Cent. & 11. E. E. Co. 42 Hun, 135; Spohn v. Mis- 
 
 muri Pac. E. Co. 2 West. Rep. 118, 87 Mo. 74. 
 'Hall V. Memphis & C. E. Co. 15 Fed. Rep. 61; Southern Kansas E. Co. v. 
 
 Eice, 88 Kan. 398. 
 *Buck V. Webb, 58 Hun, 185. 
 ^Quigley v. Central Pac. E. Co. \1 Nev. 350, 
 ^Hibbard r. ISTew York & E. E. Co. 15 N. Y. 455. 
 ^Ueorgia E. & Bkg. Co. v. Eskew, 86 Ga. 641.
 
 174 ACCEPTANCE AND EEFDSAL OF PASSENGEE8. 
 
 to the passenger too much cliange, unless the latter rectifies the 
 mistake when called upon to do so, he may be expelled, when 
 he has ridden as far as the payment made entitles him to ride.' 
 Plaintiff, without a ticket, though he had full opportunity to 
 procure one, boarded defendant's train at Faribault, to go to 
 Owatonna, and, when he told the fare collector where he was 
 going, the latter told him the fare was fifty cents, which he 
 paid. This was more than the ticket fare, but six cents less than 
 the train fare. Before the train arrived at Walcott, the firet sta- 
 tion at which the train was to stop, the collector informed plain- 
 tiff of his error in the amount of the fare, and required him to 
 pay the six cents, which plaintiff refused, and the collector told 
 him unless he paid it he must leave the train. On arrival at Wal- 
 cott, where the train stopped, the plaintiff persisting in his refusal, 
 the collector put him off, and then returned him the fifty cents, 
 less the fare from Faribault to Walcott. It was said that the 
 collector, on discovering the mistake, might, within a reasonable 
 time, require plaintiff to pay the other six cents; that, notwith- 
 standing his first refusal, the plaintiff might, at any time before 
 the arrival at Walcott, still pay the six cents, and secure the right 
 to be carried to Owatonna; that the collector's retention of the 
 fifty cents till the arrival at Walcott was not a waiver of the 
 right to require payment of the six cents;" that the company had 
 a right to be paid the fare from Faribault to Walcott, and the 
 collector might retain it out of the fifty cents;^ and that the col- 
 lector could not retain the entire amount, and also put plaintiff 
 off, but could put him off only upon first returning to him the 
 fifty cents, less the fare to Walcott, and, having put him off before 
 doing so, the expulsion was wrongful.* 
 
 Where a conductor of a train refuses to recognize an excursion 
 ticket in the hands of the holder, who is thereby entitled to ride 
 thereon, and demands of him the regular fare, and attempts to 
 eject him by force for nonpayment thereof, the railway company 
 
 ^McCarthy v. Cldcngo, R. I. & P. 11 Co. 41 Iowa. 432. 
 
 'Q'lalifyiiii^ Du Laurans v. First Div. St. Paul & P. R. Co. 15 Miun. 49 
 
 (Gil. '^9). 
 "OvcrruliiiiT Du Lnuram v. Flnt Blv. St. Paul & P. R. Co. 15 Minn. 49. 
 * Wurdwrll V. Chicafjo, M. & St. P. R. Co. 1:5 L. R. A. 590, 46 Miun. 514. See 
 
 Bland V. Southern i'uc. R. Co. 55 Cal. 570.
 
 EEMOVAL OF PASSENGER — POWER OF CONDUCTOR. 175 
 
 is liable in damages for the assault, and the jury in assessing the 
 damages may consider in connection therewith the annoyance, 
 vexation, and indignity suffered by him.* A railroad company is 
 liable for the wrongful expulsion of a passenger from a train, 
 though he does not wait to be forcibly ejected, but obeys the 
 seemingly peremptory order of the conductor to get off at a par- 
 ticular station, although the conductor is not present when he does 
 so.* For unnecessary force in ejecting a passenger the company is 
 liable, although the conductor had the right to remove him.' A 
 passenger unprovided with ticket and refusing to pay fare or 
 leave the train may be ejected by agents of the carrier; but if 
 more violence is used than necessary for that purpose, the carrier 
 and its agents are liable for damages. A police officer assisting 
 in ejecting the passenger, at the invitation of the agent of the 
 carrier, is subject to the same rule in regard to excessive violence.'' 
 Although a brakeman, in the absence of express orders, has no 
 authority to eject a passenger from a train, a railroad company 
 will be liable for an injury wantonly inflicted by a brakeman on 
 a passenger traveling on a train on whicli such brakeman is em- 
 ployed.^ Although a servant of a carrier may be obliged to use 
 force in the enforcement of reasonable regulations established by 
 the carrier, the carrier will not be protected if he uses excessive 
 or unnecessary force.' Facts showing the use of unnecessary 
 force must be averred in an action for damages for such a cause.' 
 Where the evidence fails to show that any more force was used 
 than was necessary to remove a passenger from tlie railing on the 
 platform of a chair car from which he had been removed, and in 
 which he had no right to ride, and he had refused to go into the next 
 car, which was a first-class passenger car, he cannot recover dam- 
 ages.' In determining whether a conductor on a railway acted in 
 
 ^Carsten v. Northern Pac. R Co. 9 L. E. A. 688. 44 Minn. 454. 20 Am St 
 Rep. 589, 44 Am. & Eng. R. Cas. 392. See New York, L. E. & W. R. Co 
 V. Winter, 143 U. S. 60, 36 L. ed. 71. 
 
 *Oeorgia R & Bkg. Co. v. Eskeio, 86 Ga. 641. 
 
 ^Chicago, St. L. & P. R Co. v. Bills, 1 West. Rep. 847, 104 Ind. 13. 
 
 *Jardine v. Cornell, 12 Cent. Rep. 804, 50 N. J. L. 483. 
 
 ^Wabash R Co. v. Savage, 6 West. R^p. 298, 110 Ind. 156 
 
 ^Nno Jerxey S. B. Co. v. Brockett, 121 U. S. 637, 30 L. ed. 1049. 
 
 ■^Chicago, St. L. & P. R Co. v. Bilb. 104 Ind. 13. 
 
 ^Wright V. California Cent. R. Co. 78 Cal. 360.
 
 176 ACCEPTANCE AND REFUSAL OF PASSENGEK8. 
 
 reckless disregard of the rights of a passenger, the question is prop- 
 erly for the jury,' and the jury may consider that in ejecting the 
 passenger the conductor violated an express rule of the company, 
 calculated to promote the safety of passengers." A railroad com- 
 pany will be liable for an injury resulting to an adult riding on a 
 train without paying his fare, and negligently ejected by the con- 
 ductor." 
 
 The passenger is entitled, even while being dealt with by the 
 conductor pursuant to regulations, to respectful and courteous 
 treatment and protection against insult and indignity.* If the 
 holder deports himself properly, the company has no right to 
 refuse the ticket, or to eject him before reaching the station 
 named in the ticket.' So long as a passenger upon a railway 
 shall comply with the reasonable regulations of the company, he 
 has the right to remain there, and to be carried over the road." 
 A passenger, having a right to be carried on his ticket, is 
 entitled, if wrongfully ejected, to recover the damages sustained, 
 although he might have paid his fare rather than be ejected, and 
 recovered such damages as he sustained thereby.^ There is au- 
 thority for the statement that a raih-oad company is liable for 
 damages sustained by a passenger wrongfully removed from its 
 car by its servants, although his injuries are caused by forcing 
 him loose from his hold upon the seats, taken to resist such removal/ 
 
 But where a party on a train is explicitly informed by the con- 
 ductor that he cannot retain his seat and must leave the car, he 
 then knows that he cannot, except by the use of force, proceed 
 longer upon the train ; and he must leave and resort to his legal 
 
 * Arnold v. Pemm/lvania R. Co. 15 Pa. 135. 
 
 ^Lalce Shore & M. S. R. Co. v. Roxenzweig, 4 Cent. Rep. 712, 113 Pa. 519. 
 
 ^Biddle V. UeHtonviMe, M. & F. Pass. R. Co. 3 Cent. Rep. 404, 112 Pa. 551. 
 
 *McGinms v. Misnouri Pac. R. Co. 4 West. Rep. 797. 21 Mo. A pp. 399. But 
 see Stone v. C/iicngo & N. W. R. Co. 47 Iowa, 82; Chicago, St. L. <£- P. R. 
 Co. V. Bdls, 104 Ind. 13. 
 
 Whurchiil v. Chicago & A. R. Co. 67 111. 890. 
 
 'State V. Chovin, 7 Iowa, 204. 
 
 "^Pennsylvania Co. V. Bray, 125 Ind. 229. 
 
 •J^vifmille, N. A. <fe C. R. Co. v. Wolfe, 128 Ind. 847; iV«c York, L. E rfjTT. 
 R Co V. Winter, 143 U. 8. CO, 36 L. ed. 71. IJiil see Ptahody v. Oregon 
 R. Nav. Co. (Or.) 12 L. R. A 823; IJall v. Memphis 0. R. Co. 15 Fed. 
 R<'P 61- Southern Kansas R. Co. v. Rice, 88 Kan. 398; Townsend v. New 
 York Cent, db U. R. R. Co. 56 N. Y. 295.
 
 KEMOVAL OF PASSENGER — POWER OF CONDUCTOR. ITT 
 
 remedy, the same as though he had been ejected.' He cannc»t 
 make continuance of process of lawful expulsion unlawful by 
 offer to pay during its progress.' 
 
 A woman may be justified in attempting to alight from a train 
 in motion, through fear of being pushed off by the conductor 
 caused by his manifestations and directions, although he did not 
 lay hands on her or make any actual or hostile demonstration.' 
 A passenger about to be wrongfully expelled from a railroad 
 train need not require force to be exerted to secure his rights or 
 increase his damages. For any breach of contract or gross negli- 
 gence on the part of the conductor or other employes of the rail- 
 road company, redress must be sought in the courts, rather than 
 by the strong arm of the person who thinks himself about to be 
 ■deprived of his rights.* Jt is the duty of a passenger, if he has 
 not the required ticket or token evidencing his right to travel 
 on that train, to pay his fare or quietly leave the train when 
 requested, and resort to his appropriate remedy for the damages 
 he has sustained ; and if he attempts to retain his seat without 
 paying his fare, and is expelled by the conductor, using no more 
 force than is necessary, he can recover no damages for the injury 
 incurred by the use of the foi-ee necessar}' for such expulsion.' 
 
 A person has no right to a passage upon a ticket which has 
 been punched so as to indicate that it has once been used, nor 
 w4iere it has been so mutilated as to render it imjjossible to deter- 
 mine whether it lias been used or not. But the company has no 
 right to eject him at any other point than a regular station.' A 
 passenger expelled from a train cannot recover damages for walk- 
 ing and its consequences, when he might have reached his desti- 
 nation more cheaply' and expeditiously and with less injury to 
 health ; nor, as a general rule, for inconvenience, hardship, or 
 
 '^Southern Kansas M. Go. v. Himdak, 38 Kan. 507; Head v. Georgia Pac. R. 
 
 Co. 79 Ga. 358; Pennsylvania H. Co. v. Connell, 112 111. 295. 
 ^Peai^e v. Delaware, L. & W. R. Co. 2 Cent. Rep. 423, 101 N. Y. 367. 
 "-Highland Ave. & B. R. Co. v. Winn, 93 Ala. 306. 
 *Jardine v. Cornell, 12 Cent. Rep. 804, 50 N. J. L. 485; Southern Kansas R. 
 
 Co. V. Rice, 38 Kan. 398; Atchison. T. tfe 8. F. R. Co. v. Oants, 38 Kan. 
 
 008; Hall v. Memphis & C. R. Co. 15 Fed. Rep. 57; Chicago, B. <St Q. R. 
 
 Co. V. Griffin, mm. 499. 
 ^Peabody v. Oregon R. & Nav. Co. (Or.) 12 L. R. A. 823. 
 *Terre Haute. A. <& St. L. R. Co. v. Vanatta, 21 111. 188; Chicago £ K W. R. 
 
 Co. V. Peacock, 48 111. 253. 
 12
 
 178 ACCKPTANCK AND REFUSAL OF PASSENGERS. 
 
 injury to health originating after he reached his destination.' No 
 recovery for wounded feelings or pain of niind can be had by a 
 passenger who entered a railroad train expecting and desiring to 
 be put off, in order to make a case for damages against the rail- 
 road company." 
 
 § 56. Relnoval of Passenger Destined for a Sta- 
 tion at which Cars do not Stop. 
 
 A railroad company, as a common carrier, may make reason- 
 able rules for the regulation of its business and the performance 
 of its public duties.* Even in the case of a passenger the regula- 
 tions of the carrier enter to some extent, at least, into the con- 
 tract of parties.* A passenger must take notice of the published 
 rules of a railway company. He is not entitled to damages if he 
 takes a train which, by such rules, does not stop at the station to 
 which he desires to go.^ It is the duty of a passenger to inform 
 himself of a reo-ulation governing the transit and conduct of trains ; ° 
 he must inform himself when, where and how he can go or stop, 
 according to the regulations of the company.'' If a passenger dis- 
 regards the regulations adopted by the company as to the purchase 
 of tickets or running of trains, by failure on his part to make any 
 inquiries, and such neglect is not induced by the company's agent 
 havino- authority in the matter, the company is not liable therefor.* 
 
 A passenger has no right on a train which, under a rule of the 
 company, does not stop at the station for which he bought the 
 ticket. In such case he cannot recover damages except for need- 
 
 ^Oewgia R. & Bkcj. Co. v. Eskew, 86 Ga. 641. 
 
 ^St. Louis & IS. F. R. Go. v. Trimble, 54 Ark. 354. 
 
 ^Evans v. Memphis & C. R. Go. 56 Ala. 246. 
 
 ^Pennsylvania R. Co. v. Whitcomb, 111 lud. 212; Ghicago, St. L. c6 P. R. Co. 
 
 V bills, 104 Ind. 13; WeMcrnU. Telecf. Co. v. Harding, lOSInd. 505; Ohio 
 
 ife M. R. Co. V. Applewhite, 52 Ind. 540; Pittsburgh, C. & St. L. R. Co. v. 
 
 Nuzum, 50 lud. 141, 19 Am. Rep. 703. 
 '■Trotlinger V. Eaift Tennessee, V. <& O. R. Go. 11 Lea, 533. 
 '^Southrrii Kansas R. Co. v. Hinsdale, 38 Kan. 507. 
 ''Atchison T. <fe S. K R. Co. v. Gantz, 138 Kan. 608: Ghimgo tfe A. R. Go. v. 
 
 Randolph, 53 111. 510; Chicago, St. L. & P. R. Co. v. Bills, 104 Ind. 13; 
 
 JJuling V Philadelphia, W. & B. R. Co. 66 Md. 120; Fink v. Albany d- S. 
 
 R. Go. 4 Lans. 147; Pittsburgh, G. ife St. L. R. Co. v. Nuzuir. 50 Ind. 141; 
 
 dhit} S M. R. Co. V. Swarthout, 67 Ind. 567; Henry v. St. Louis, K. 0. & 
 
 N. R. Co. 76 Mo. 288. 
 'Southern Kawas R. (Jo. v. Hinsdale, 38 Kan. 507.
 
 KKMOVAL OF TAhSENOKK. 179 
 
 less violence.* And a passenger wrongfully upon a train may be 
 removed, and the corporation will only be liable for unnecessary 
 violence.^ But ignorance may excuse his acts done in violation of 
 regulations unknown to him so as not to constitute him a trespasser. 
 So a passenger who enters a car by mistake is not a trespasser ; 
 and while the railway company may eject liim, it must not put liim 
 off at an improper place. ^ 
 
 That the agent made a mistake or violated the instructions of 
 his principals will not make the passenger a trespasser." Where 
 a railroad train is scheduled to stop only at certain designated 
 stations, and a passenger holds a ticket to a point at M-hich it will 
 not stop, the conductor, upon discovering the fact, has a right, 
 there being no statute forbidding, to stop the train soon after it 
 has left the starting place, and require the passenger to leave it ; 
 and if he refuses to paj' a sum which in addition to his ticket will 
 pay his fare to the first stopping place, the conductor may eject 
 him.* If trains are arranged and their time fixed with regard to 
 points of stoppage, and the time limited, a conductor would never 
 be safe, nor the passenger secure from collision, if at his peiil, the 
 conductor mnst stop on the assertion of a mere stranger, that an 
 agreement had been made to stop for him at an unusual place." 
 If the agreement has in fact been made by a dul}' authorized 
 agent, the passenger has his remedy on the contract.^ 
 
 Where a railroad company's agent from whom a passenger pui- 
 chased a return ticket was informed and understood that such 
 passenger purchased the ticket with the intention of returning 
 from his destination on the night train, if that train did not stop 
 
 ^Chicago, St. L. & P. R. Co. v. BilU, 104 Ind. 13. 
 
 ^Lake Shore & M. S. R. Go. v. Pierce. 47 Mich. 377; ShelUm \.\Lake Shore tfe 
 M. 8. R. Go. 29 Ohio St. 214; AMiison, T. <fe 8. F. R. Co. v. Qantz, 38 
 Kan. 608; Southern Kansa>f R. Go. v. Rice, Id. 398. 
 
 *Lake S/iore & M. S. R. Co. v. Rosenzweig, 4 Cent. Rep. 713, 113 Pa. 519. 
 
 * Young v. Pennsylvania R. Co. 5 Cent. Rep. 848, 115 Pa. 113. 
 
 ^Atchison, T. & S. F. R. Co. v. Qants, 38 Kan. 608. See Dillingham v, An- 
 thony, 3 L. R. A. 634, 73 Tex. 47. 
 
 *Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608. 
 
 "'Jeffersonville R. Go. v. Rogers, 38 Ind. 116; Kansas Pae. R. Go. v. Kessler, 
 18 Kan. 523; Murdoch v. Boston & A. R. Co. 137 Mass. 293; Marshall v. 
 St. Louis, K. C. <& iV. R. Co. 78 Mo. 610. But see Alabama O. S. R. Co. 
 V. Heddleston, 82 Ala. 218.
 
 180 ACCEPTANCE AND REFUSAL OF PASSENGERS. 
 
 at his station, it was the duty of the agent to notify him of the faj?t.' 
 A conductor of a raih'oad train, who has invited a passenger to 
 lide to a station beyond that mentioned in his ticket, witli full 
 knowledge of the facts upon which the latter claimed the right 
 to be carried to such further station, has no right to eject him for 
 refusal to pay the fare thereto from the station named in the 
 ticket.^ 
 
 A plaintiff in an action for wrongful ejection from a car must 
 aver in his complaint that the rules of the company provided that 
 the train on which he took passage should stop at the station 
 named in his ticket. He must show that he was rightfully on 
 the train when ejected.' One who insists upon traveling upon a 
 railroad train after a schedule of its time and stoppages has been 
 published, to a point at which he is informed the train will not 
 stop, cannot recover damages for being carried beyond that point.* 
 
 ^St. Louis, I. M. & S. R. Co. v. Adcox, 52 Ark. 406, 40 Am. & Eng. R. Caa. 
 
 682. 
 ^Hardy v. New York Cent. &H. R. R. Co. 34 N. Y. S. R, 902. 
 ^Chicago, St. L. & P. R. Co. v. Bills. 104 Ind. 13. 
 *Tea:ai <& P. R. Co. v. White (Tex. App.) Oct. 31, 1891.
 
 CIIAPTEK X. 
 
 TICKETS, SALE AND PRQDUCTION OF— CONCLUSIVENESS— 
 REMOVAL OP PASSENGER. 
 
 § 57. Opportunity Must be Given for Purchase of Tickets. 
 § 58. Refusal to Exhibit Ticket or Pay Fare. 
 § 59. Refusal to Pay or Exhiltit Ticket. 
 § 60, Conclusiveness of Ticket as to Rights of Passenger. 
 § 61. Denial of such Conclusiveness in Case of Error through Car- 
 rier's Negligence. 
 § 62. Point where Passenger may be Ronoved from Train. 
 § 63. Removal ivhile Cars are in Motion. 
 
 § S7. Opportionity must he Given for Piorcliase of 
 
 Tickets. 
 
 An extra charge for failure to buy a ticket is a reasonable regu- 
 lation for a railway company, but in order to justify this charge the 
 company must give reasonable facilities for the purchase of tickets.' 
 A reasonable opportunity to purchase tickets is all a passenger . 
 can demand,^ and a railroad company is under no duty to hold a 
 train at a station, to enable a passenger to procure a ticket and 
 thereby pay a less rate of fare than is charged when payment is 
 made upon the train.* But railway companies are required to 
 keep open their office for the sale of tickets to passengers for a 
 reasonaljle time before the departure of each train, and up to the 
 time fixed by its published rules for its departure.'' Where 
 it was apparent from the original declaration that the cause 
 of action was the exjjulfiion of a passeuger from the cars because 
 he refused to pay an alleged overcharge, consisting of the differ- 
 ence between the ticket rate and the conductor s rate, an amend- 
 
 'Z>w Lavram v. Firnt Die. St. Paul & P. B. Co. 15 Minn. 49; St. Louis. A. 
 
 <fi T. H. 11. Co. V. South, 4B 111. 176; Illinois Cent. R. Co. v. Cunninq- 
 
 ham, 67 111. 316: Jeffersonville R. Co. v. Ro(ji'r.<<, 28 Ind. 1, 38 Ind. 116; 
 
 Pullman Palace Car Co. v. Reed, 75 111. 125; Lane v. East Tennessee, V. 
 
 & G. R. Co. 5 Lea. 124; Xellis v. ^aD York Cent. B. Co. 30 N. Y. 505. 
 ^Everett v. Chicago, R. I. cO P. R. Co. 69 Iowa, 15. 
 "Easton v. Waters (Tex. App.) April 12, 1890. 
 *St. Louis, A. & T. H. R. Co. v. South, 48 111. 176; Chica(]o, R. I. tC P. R. 
 
 Co. V. Brisbane, 24 III. App. 463. 
 
 181
 
 182 TICKKTS, SALE AND PKODLOTIOX OF C0^'CLU.•:>1VKNE8S. 
 
 ment showing more fully wliy a ticket wa> not and could not be 
 procured was allowed; and the explanation Ijeing that there was 
 no agent at the station to furnish a ticket, the declaration as 
 amended was considered sufficient/ 
 
 In a recent case it was said that if tlie office where a passage on 
 a railroad train is taken is not open, with an agent therein ready 
 upon call to sell tickets, long enough before the actual departure of 
 the train, whether delayed or not. to enable passengers to purchase 
 tickets and safely board the train, no excess fare can be collected.' 
 In two similar Illinois cases^ much the same language was used, 
 but this was explained,* as in fact limited to the actual advertised 
 time, denying the right of one thereafter to demand passage or 
 that the office should be kept open for delayed trains to start.* 
 
 Offices must be kept open for the sale of tickets for a reason- 
 able time before the departure of each train, and up to the pub- 
 lished time for its departure, but not, in all cases, necessarily up to 
 the time of actual departure.* The peculiar circumstances of 
 each case must largely determine the duty: certainly the rule that 
 railroad companies must furnish passengers a reasonable oppor- 
 tunity to purchase tickets befoi-e entering their trains does not 
 require ticket offices to be kept open after pej-sons purchasing 
 rickets would no longer be al)le to reach the train before it began 
 to moNC.' The same rule applies to freight trains as well as pas- 
 senger trains.' Indeed it has been said they are not bound to 
 keep their ticket offices open at or for any particular time, and 
 that the fact that a passenger is unal)le to procure a ticket in con- 
 sequence of the office l)eing shut will not entitle him to be carried 
 to his place of destination upon payment of the amount for which 
 he could have procured a ticket at the office had it been open.* 
 
 ^Georyia Ji. it- Bh/. Co. v. Munlcn, 88 CJa. 75;-). 
 
 ''AtchiiiKOH, T. t(- ,S. F. R. Co. v. Dwclle. 44 Kan. ;394. 
 
 ^Chirar/o, Ji. & Q. E. Co. v. J*ark>*, 18 HI. 460; St. Lvuis, A. tfc C. li. Co. v. 
 
 JJolhi/, 1!> 111. 353. 
 ■*St. Louis, A. & T. II. 11 Co. V. SoHth. 4:; HI. 1T<). 
 ^8ee Swan v. }fancliextei- tt- fj. It. Co. \',\i Mas.^. 11(1. 
 "Climiijo, E. I. d; P. Ji. Co. v. Brixbane, 24 III. App 468. 
 'State V. llinifjirford. 31) Minn. (1. 
 ''Brown v. Imnxas Citif. Fl. S. <f- G. R. Co. oS Kan. 6o4; Southern Kan. R. 
 
 Cn. V. Jliimdalf, 38 Kaii. 007. , 
 
 *B<mleau.r v. Frie It. Co. 8 Hun, 579.
 
 lilJFl SAL TO KXHIHir TICKKT OK PAY FAliK. 183 
 
 T>nt the riil<^ above stilted is tlic more loij-ical one. and it is 
 true generally tliat if they fail to keep their ticket otiice open a 
 reasonable time before departure thev eaniKit demand extra fare 
 on account of tiie failure of a passiMigcr to pui'chase a ticket.' 
 It is the duty of a ticket aii:ent to use reasonable care in deliver- 
 ing a ticket to the pnrchascr. It is no delivery to put the ticket 
 on the counter in liis absence." A person who endeav<n"s to pro- 
 cure a ticket, but is unable to do so in (;onse([nence of the a})sence 
 of the agent, nnless under exceptioiud circumstances excusing 
 sucli absence, and wliei-e the jmssenger has been somewhat in 
 fault in making his a])j)iication, cannot be charged an extra rate 
 of fare.^ Where a railroad com])any charges passengers without 
 tickets a higher rate than those proxided therewith, a passenger 
 who boards a train at a statimi whei-e there is no office may pay 
 such Ingher rate to a ticket station, and there buy a ticket and 
 travel for the reduced fare; and if such ottice is closed when it 
 should he open, he can again l)oard the train and travel at the 
 lower rate/ 
 
 § SS. Pvefusal to ExJdhit Ticket or Piuj Fare. 
 
 A regidation made by a railroad corporation requiring passen- 
 gers to exhibit their tickets whenever i-eipiested by the conductor, 
 And directing the ejection from the cars of those who should 
 refuse to do so, is a reasonable and proper one. The passenger is 
 bound to conform to such regulation, and forfeits his right to be 
 •carried further by his refusal to comply Avith it." But on exit 
 from the train, as the fare is a mere (iebt, a ])asse]iger cannot be 
 detained to secure his ticket or pay his fare." But where the 
 -custom on a steamboat re(juii'es the delivery of the ticket at the 
 
 ^Georgia 8. d; F. 11. Co. v. Asmore (Ga.) IG L. R A. 53; Nellis v. 
 
 New Ywk Cent. R. Co. 30 N. Y. 505; Atchixo,,. T. & S. F. Co. v. Uwelle, 
 
 44 Kan. 394; Hall, v. Sontlt. Carolina R. Co. 25 S. C. 564. 
 '^Quifflei/ V. Central Fac. H. Co. 5 tSawy. 107. 
 ■'Georgia 8. & F. R. Co. v. Axmore (Ga.) 16 L. R. A. 53; 8t. Loui'i 
 
 Cent. R. Co. v. Sutton, 42 III. 438; r»rter v. New York Cent. R. Co. 34 
 
 Barb. 353. 
 ^Georgia R. db Bkg. Co. v. Mu.rden. 86 Ga. 434. 
 ^llibbard v. New York d- E. U. Co. 15 N. Y. 455; Frederick v. Marquette, 
 
 U. & 0. R. Co. 37 Micb. 343; Duke v. Great We.-<trrn R. Co. 14 U. C. Q. 
 
 B. 369; Pullman Palace Car Co. v. Reed, 75 III. 125. 
 ^Lynch v. Metropolitan Elec. R. Co. 90 N. Y. 77.
 
 lS4r TICKETS, SAJ.E AND PRODUCTION OF — CONCLUSIVENESS. 
 
 end of the journey, a reasonable detention and examination is per- 
 missible.' 
 
 A regulation that a railroad ticket shall be subject at any time 
 to inspection by the conductor is reasonable,' and the passenger 
 after a refusal, although he has previously shown his ticket, can- 
 not retain his jilace by again showing his ticket, after the car has 
 been stopped to remove him." Passengers must surrender their 
 tickets during the trip, or pay their fare again.* 
 
 Holders of commutation tickets ma}^ be required to show their 
 tickets, and if the ticket is not shown, fare may be exacted with- 
 out rendering the company liable to refund it.^ Where a passen- 
 ger failed to produce his commutation ticket immediately when 
 requested, such faihire will not justify the conductor in treating 
 him as a trespasser and ejecting him from the train. ^ So where 
 a passenger mislaid the ticket and for a time was unable to find it. 
 The conductor afterwards again called for the ticket, and as the 
 passenger was unable to find it, he was ejected from the car, with- 
 out any demand of payment of fare; his expulsion was wrongful.' 
 But where the passenger knew when he got upon the train that 
 his ticket was lost, he is not entitled to this lenity,* And if, after 
 being given a reasonable time to find it, he fails to pay his fare,, 
 he may be expelled from the train.' 
 
 Those having charge of a raih-oad train have the right to stop it 
 and expel a passenger for refusing to pay fare, but they have no 
 right to use unnecessary force in such expulsion.'" A person who 
 
 ^Standish v. Naryarjameit SS. Go. HI Mass. 512. 
 
 "Crexson v. Philadelphia & H. R. Co. 11 Pliiln. (iOO. 
 
 mibbard v. New York & E. R. Co. 15 N. Y. 455. 
 
 *Northern R. Co. v. Page, 33 Barb. 130; Vedder v. Fellows, 20 N. Y. 126. 
 See State v. llwtnpson, 30 N. H. 350; Pullman Palace Car Co. v. Reed, 15- 
 111. 135. 
 
 ^Bennett v. Railroad Co. 7 Phila. 11. 
 
 * Maples V. New York tfc N. H. R. Co. 38 Conn. 557. 
 
 ■'Robmn v. Neio York Cent, cfe H. R. R. Co. 31 Hun, 387. 
 
 ^Crawford v. Cincinnati, H. & D. R. Co. 36 Ohio St. 580; Downs v. Neio- 
 York iSc N. H. R. Co. 36 Conn. 387. 
 
 ^Ripley v. New Jermj R. tfe Transp. Co. 31 N. .T. L. 388; Btikc v. 6.:;^^ West- 
 ern R. Co. 14 U. C. Q. B. 377; Rob.'^on v. New York Cent. <£ II. R. R. Co. 
 21 Hun, 387; Crawford v. Cincinnati, II. d- D. It. Co. 36 Oiiio St. 580; 
 Downs V. New York & N. II. R. Co. 36 Conn. 287, and Maples v. Neiir 
 York tfe N. II. It. Co. 38 Conn. 557, 2 Wood, Railway Law, 1407. 
 
 ^"Evansville «Jt /. It. Co. v. Oilmore, 1 Ind. App. 468.
 
 EEFUSAL TO EXHIUIT TICKET OK FAY FAKE. 185- 
 
 refuses to pay liis fare or tosliow liis ticket Avlien demanrled by 
 tlie eoiuluctor, from that tiuic l>ecomes a trespasser, and may be 
 removed from the train.' On failure to produce a ticket or pay 
 fare, a passenger may be lawfully ejected, using- no more force 
 than is necessary.''' Before he is ejected, other persons in his be- 
 half may offer to pay the fare." A railroad conductor is not jus- 
 tilied in refusing- to accept an actual tender of fare before the 
 train is stopped to put off one who fails to j)roduce a ticket, nO' 
 matter b}^ whom the tender is made." 
 
 If the i-efnsal be accompanied by violent and abusive conduct, 
 the,co7ulnctor may remove him notwithstanding a tender of full 
 fare is then made.^ Evidence that plaintilf and another boarded 
 a railroad train without purchasing tickets, offered the conductor 
 an insufficient sum for the passage of the two, and, upon his un- 
 derstanding that they wished to pay three fares and so stating 
 and demanding the additional sum required, refused to pay such 
 amount, and did not explain or offer the proper sum, but volun- 
 
 ^PUfsbnrgli, G. <& St. L. R. Go. v. Van Hoiiten, 48 Ind. 90; Stone v. GMcago 
 & N. W. R. Co. 47 Iowa, 83; Sherman v. GMcago tfc N. W. R. Co. 40 
 Iowa, 45; 8(can v. Manrhf.Hter cfi L. R. Go. 132 Mass. 116; Boston & L. R. 
 Co. V. Proctor, 1 Allen, 267; LilU^^ v. St. Loiiu, K. C. & N. R. Go. 64 Mo. 
 464; Weniz v. Erie R. Go. 3 Hun, 241; Bennett v. J^ew York Gent. & H. 
 R. R. Go. 5 Hun, 599, 69 N. Y. 594; Nelson v. Long MandR. Co. 7Hun, 
 UO;Hibbard v. New York & E. R. Go. 15 N. Y. 455; O'Brien v. New 
 York Gent. & H. R. R. Co. 80 N. Y. 236; PoiDell v. Pittsburg. G. &St. L. 
 R Go. 25 Ohio St. 70; Shedd v. Troy <£ B. R. Go. 40 Vt. 88; Tlwmas v. 
 Geidnrt, 4 Pugs. & B. (N. B.) 95; Briggs v. Grand Trunk R. Go. 24 U.C. 
 Q. B. 510; FareweU v. Grand Trunk R. Go. 15 U. C. C. P. 427. 
 
 *MacKay v. Ohio River R. Go. 9 L. R. A. 132, 34 W. Va. 65; South Florida 
 R. Go. V. Rhoads, L. R. A. 733, 25 Fla. 40; Pitlsburgh, G. & St. L. R. 
 Co. V. Vanllouten, 48 Ind. 90; Stone v. Ghicngo t& N. W. R. Go. 47 Iowa, 
 83; Sherman v. Chicago & N. W. R. Go. 40 Iowa, 45; Swan v. Manches- 
 ter &L. R. Go. 132 Mas?. 116; Boston & L. R. Co. v. Proctor, 1 Allen. 
 267; Lillis v. St. Louis, K. G. tt ISl. R. Co. 64 Mo. 464; Wentz v. Erie R. 
 Co. 3 Hun. 241; Bennett v. New York Cent. & H. R. R. Go. 5 Hun, 599, 
 69 N. Y. 594; Nelson v. Lonrf Lsland R. Co. 7 Hun, 140; Hihbard v. New 
 York & E. R. Co. 15 N. Y. 455; O'Brien v. New York Gent, ct H. R. R. 
 Go. 80 N. Y. 236; Poicell v. Pittsburg, C. <& St. L. R. Co. 25 Ohio St. 70; 
 Shedd V. Troi/ & B. R. Co. 40 Vt. 88; Thomas v. Oeldart, 4 Pugs. & B. 
 (N. B.) 95; Briggs v. Grand Trunk R. Co. 24 U. C. Q. B. 510; Farewell 
 V. Grand Trunk R. Go. 15 U. C. C. P. 427; Pennsylvania Go. v. Nine, 41 
 Ohio St. 376. 
 
 'Louisville cG N R Go. v. Garrett, 8 Lea, 438; Gug v. New York, 0. & W. R. 
 Go. 30 Hun, 399; Hoffbauer v. Davenport 'd; N. W. R. Go. 52 Iowa, 342; 
 O'Brien v. New York Gent. & H. R. R. Go. 80 N. Y. 236. 
 
 *Ham V. Delaware db II. Canal Co. 142 Pa. 617; or stops at a station, Guy' 
 V. New York, 0. & W. R. Go. 30 Hun, 399. 
 
 ^Gould V. Ghimqo. M. & St. P. R. Go. 18 Fed. Rep. 155; Hoffbauer v. Da- 
 venport tfc N. W. R. Go. 52 Iowa. 342.
 
 186 TICKKTs, SALE AND PKODUCTIoX OF GOXCLUSIVEXESS. 
 
 tarily got oft' the train at the condiictoi-'s request, and walked 
 back lialf a mile to the station at which they boanled the train — 
 will not sustain a judgment for damages for illegal ejection from 
 the train.' Xor will a lack of such courtesy by a carrier's em- 
 ploye as might be demanded by a passenger, entitle one who does 
 not pay his fare to an action for damages. A railway company 
 <3annot be held liable in damages because its conductor informed 
 a husband in a brusque manner, in the presence of his wife, 
 whose head was resting on a pillow as though she was an invalid, 
 that they must pay their fares or get oft, and, after waiting till 
 the train reached the next station, said in a decided or rude tone 
 that they must get oft".'' 
 
 A passenger who has not purchased his ticket before entering 
 the cai-s, and who refuses to pay the additional fare exacted on the 
 train, may be expelled from the cars with no unnecessary vio- 
 lence.' A passenger who is without a ticket and declines to pay 
 full fare may ordinarily be ejected from a train at a station, as one 
 may who absolutely refuses to pay his fare.* A party expelled from 
 the cars for refusal to pay fare cannot recover damages therefor.* 
 
 But if the ticket has been wrongfully taken up, it will render 
 the carrier liable if he be ejected.'' Or where no return ticket 
 was given through mistake of conductor.' But in some cases the 
 remedy is for breach of contract.* So where the wrong ticket is 
 iriven.* An attempt to avoid payment of fare, need not be fraud- 
 ulent to warrant the ejecti<tn or removal of a passenger."* The 
 
 ^Bkldy V. Ellwt (Tex.) Nov. 29. 1890. 
 
 ^Roite V. Wilmimjton. & W. R. Go. 106 N. C. 168. 
 
 "State V. Ooold, 53 Me. 279; Baltimore & 0. R. Co. v. RloeJier, 27 Md. 277. 
 
 *Stale V. Ooold, 53 Me. 279; Stephen v. Smith, 29 Vt. 160; UiUiard v. Goold, 
 
 34 N. H. 230. See also Swan v. Mnnchester d- L. U. Co. 132 Mass. 116. 
 ^Post V. Chicago cfc N. W. R. Go. 14 Neb. 110. 
 *Townsend v. New York Cent. & H. R. E. Co. 6 Thoinp. & C. 495, 4 Hun, 
 
 217; Pittsburgh, C. & Sf. L. R. Co. v. Hmnir/h, 3!) lud. 509; 6% cfc 8. R. 
 
 Co. of Satannah y . Braus,s, 70 Ga. 368; Ilainilton v. Thiid Ave. R. Co. 
 
 53 N. Y. 25; Palmir v. Charlotte, C. & A. R. Co. 3 S. C. 580. 
 'Baltimore cf- O R. Co. v. Bamhnv/ (Pa.) Nov. 5, 1888; Lake Erie d- W. R. Co. 
 
 V. FLr, 88 Ind. 381: Philadelphia, W. <f- B. R. Co. v. Ric^, 64 Md. 63. 
 ^Frederick v. Marrpiette, II. & 0. R. Co. 37 Mich. 3i2. 
 "BroflJihair v. S^oth Boxfo,, R Co. 135 Mas'^. 407. See Sf. Loxix, A. d- T. R. 
 
 Co. V. Markie, 1 L. R. A. 667, 71 Tex. 491. 
 '"Marshall v. Ronton d- A. R. Co. 5 New Eng. l!rp. 172, 145 Jfass. 164.
 
 KEFU.'sAL TO EXHIBIT TICKET OK I'AY FAIiE. 187 
 
 failure to pay the fVire of a cliiM under tlic care of a passenger 
 will authorize the (!xpul?;iou of tiie passeiiger.' The duty of a 
 conductor in expelling a uian from a i-ailway train for n<»n]>ay- 
 inent of fare is not so strictly detined as to remove its deti-rmina- 
 tioii from the jury." It has been said that it is the conducti^r's 
 <hity, until the contrary is })roven, to accept as true the state- 
 laents of a passenger that he has ])aid Ids fare, and as to the 
 amoimt he paid, to the agent of the company who gave him the 
 ticket he presented and told him it was good, no matter what the 
 ticket contained in words, figures or other marks.^ But this 
 statement must be accepted with many qualiiications and its limi- 
 tations will be fully considered in the next following sections; but 
 under all authorities a reasonable degree of judgment, exercised in 
 good faith, should protect the conductor in his action under any 
 circumstances/ 
 
 The conductor of a railway pass'iiger train cannot immediately 
 expel a passenger, except in case of absolute refusal to produce a 
 ticket or pay fare. A passenger is entitled to a reasonable time 
 in which to hud the ticket, and cannot be expelled until such 
 reasonable time has been given him." AYhat is a reasonable time 
 is a question of fact for the jury.* 
 
 A passenger cannot be treated as a trespasser merely because he 
 cannot find his ticket, wheiv he does not refuse to pay his fare 
 upon demand by the conductor.' If a passenger is abused and 
 insulted, and rerpiired to leave the train without l»eing given rea- 
 :Sonable time to produce his ticket, he is entitled to recover, not 
 
 ^Philadelphia, W. & B. R. 0>. v. Hoetf,ich, 63 Md. 300; Oib>ion v. Eaxt Teri- 
 nesxfie, V. & G. R. Co. 30 Fed. Kep. 904. 
 
 ^Arnold v. Pennsyiuania R. Co. 6 Cent. Rep. 680, 115 Pa. 13."). 
 
 ^Hufford V. Grand Rapids ifc /. R. Co. 7 We.st. Hep. 859, 64 Midi. 631. 
 
 ^Pennington v. PJtiladelphin , \V. d; B R. Co. 6"2 Md. 95; Johnson v. Phila- 
 delphia, W. & B. R. Co. 63 Md. 106. 
 
 ^Carl V. Chicafjo, R. I. & P. R. Co. 63 Iowa, 417, 11 Am. &, Eng. R. Cas. 
 85; Te.ri(s & P. R. Co. v. Boiul, 62 Tex. 442; Robson v. Mid York Cent. 
 & IT. n. R. Co. 21 Hun, 387; Maples v. Mw York & N. H. R. Co. 38 
 Conn. 557. 
 
 ^Hayes v. New York Cent. & II. R. R. Co. 20 N. Y. Week. Dig. 237, 9 Hun, 
 63; International & G. N. R. Co. v. Wilkes, 68 Tex. 617; Robxon v. New 
 York Cent. & H. R. R. Co. 21 Hun, 387; Maples v. New York <f- N. II. R. 
 Co. 38 Conn. 557; Clark v. Wilmington d- W. R. Co. 91 M. C. 506; Curl 
 V. Chicago, R. 1. c6 P. R. Co. 63 Iowa, 417. 
 
 "'Hani, V. Delaware cfe H. Canal Co. 142 Pa. 617.
 
 188 TICKKTS, SALK AND riiODUCTiOX OK CO^CLUsilVKNEJsS. 
 
 only noiniiial, but exemplary damages.' So \vhere he is ejected 
 by the same eoiiductor to whom lie has paid his fare.' An action 
 for damages lies against a street car company for ejecting a passen- 
 ger after a refusal to accept in payment of fare a genuine silver 
 coin Avorn smootli by use, but distinguishable and not appreciably 
 diminished in weight.'' 
 
 § 59. Refusal to Pmj, or Exhihit Ticket. 
 
 A passenger Avho leaves a train delayed by a wreck nearly all 
 night, and Avaits at a hotel for another train because he is not 
 well enough to remain on the car, is entitled to pass the next day 
 on the check given him as a substitute for his ticket by the first 
 conductor, or at least upon payment of the regular fare ; and, if 
 put oft" for refusal to pay the extra charge required, of those who 
 fail to procure tickets, he may recover damages.'' 
 
 Where a railroad conductor refuses to take a passenger's ticket 
 on the ground that it has been punched to a station beyond that 
 at which the passenger stopped over, and threatens to eject him,, 
 but carries him to the next station, where the passenger, although 
 insisting that he has paid his fare, pnrchases a ticket to the place 
 to which \\\<i first ticket was punched, but the conductor refuses 
 to take it unless he pays the fare from the place where he stopped 
 over to the station where he bought his new ticket, and ejects the 
 passenger — the company is lialtle.^ 
 
 .After a railroad train has been stopped at a point where it would 
 not otherwise delay, for the purpose of ejecting a passenger for 
 nonpayment of fare, the company may refuse to accept fare from 
 such passenger, and if he return to the train, may again eject 
 him.' The rule is otherwise where the train is stopped at a regu- 
 lar station,' 
 
 ^Louisville cfc N. li. Co. v. Mai/hin, 66 IMiss. 83. 
 
 ^EnffliH?i V. Delaimre d- H. (Jnnal Co. 66 N. Y. 454; Toiomend v. Neio Ym^k 
 
 i'ent. & J I. It. R. (Jo. 6 Thomp. & C. 495; SMton v. Lake Shore <& M. S. 
 
 U. Vo. 29 Oliio St. 214. 
 ^Jentey City & B. R. Co. v. Morgan, 52 N. J. L. 60. 
 *TA)immlle it- ^V. IF. R. Co. v. Wilseii (Ky.) 5 L. K. A. 855, 89 Am. & Eng. R. 
 
 Cas. 418. 
 •■' Ward V. i\'«»r York Cent, tf- //. E. R. Co. 56 Ilun, 268. 
 ^I'irkens v. Rirhmond d- 1). R. Co. 104 N. C. 312; O'Brien v. New YorkCent. 
 
 d- If. R. R. Co. 80 N. Y. 236; Hoffhauer v. Davenport & N. W. R. Co. 52 
 
 Iowa, ;M2. 
 ^Toledo, W. <fe W. R. Co. v. Wrifiht, 68 Ind. 586, 34 Am. Rep. 277; Ouy v. 
 
 New York, 0. <fe W. R Co. W) Ilun, 399.
 
 REFUSAI- TO PAY OK EXHIBIT TICKET. 189 
 
 A passeng-er who by refiii^al to pay fare has relieved the i-aih-Da^l 
 company of its obh'<>atioii to carry him cannot reiinpose such oljli- 
 j^ation on tlie coni})any hy makinc; tender of the sum due after 
 having refused it and put the coni])any to the performance of acts 
 necessary to his safe and pr()j)er exiiulsion.' 
 
 Whenever a passenger refuses to accede to a just and lawful 
 demand made upon him by the conductor for the payment of his 
 fare, after being allowed reasonable time and opportunity to com- 
 ply, he renounces his right to the position and the privileges of a 
 passenger, and subjects himself to expulsion from the train. If 
 he changes his mind, and tenders the fare before anything is done 
 towards bringing the ti-ain to a stop in order to eject him, his 
 refusal will be retracted in time, and his right to remain and be 
 carried will stand unaffected. If he haggles and hesitates until 
 he becomes a proper subject for ejection, and until steps have 
 been taken to that end, he is too late. Any rule which would 
 allow one passenger to play fast and loose with the conductor 
 would allow all the passengers to do so, and a train might thus be 
 kept halting and alternating between running at ordinary speed 
 and stopping throughout the M'hole of its journey; and to this 
 embarrassment not only one train, but every train run for the 
 carriage of passengers, would be exposed.^ 
 
 It is certainly improper conduct for a passenger to delay the 
 payment of his fare beyond the time when lie ought to pay it, and 
 a regulation that he shall pay on demand of the conductor is rea- 
 sonable, and so necessary for the orderly conduct and transaction 
 of business that it may fairly be presumed to be a regulation 
 which all railway companies carrying passengers adopt and expect 
 to enforce. This method of dealing with passengers who travel 
 by railroad is so universal as to be a matter of general public ob- 
 servation and experience, and we apprehend that it would be a 
 very rare instance in which a passenger would be surprised to find 
 it in use. In a recent case, the passenger, when called upon, did 
 not object to paying j)romptly what he admitted to be due. In 
 fact, he put into the hands of the conductor money more than 
 
 Kitchison, T. & S. F. B. Co. v. Dioelle. 44 Kan. 394; Pickens v. Richmond & 
 D. R. Co. 104 N. C. 312; Harrison v. Fink, 43 Fed. Rep. 787. 
 
 *See the observations of Denio, /., in Hibbard v. New Torfc <£ E. R. Co. 15 
 N. Y. 455.
 
 190 TICKETS, SALE AND PRODUCTION OF— CONCLUSIVENESS. 
 
 sufficient for the payment of liis fare at the higher rate, and a 
 discussion arose as to whether payment should he made at the 
 ticket rate or at the train rate, in consequence of which none of 
 the money was retained, but all of it was returned. The passen- 
 ger contended for the ticket rate, upon the ground that he tried 
 to o-et a ticket, and that the agent was not at his place. The con- 
 ductor insisted upon the higher rate, which was the usual and 
 leo-al one exacted of passengers Avho had not procured tickets. 
 According to the judgment of the court, the right of the ]ilaintiff to 
 remain upon the train and be cai-ried on payment or tender of the 
 ticket rate should depend alone upon the fact whether the non- 
 attendance of the ticket agent at the office, or any other fault or 
 default of the company, was the true reason why the plaintiff was 
 not supplied with a ticket. If his failure to have it was due to 
 his own neo-lect, or to any cause not chargeable to the company, 
 its ao-euts or employes, the tender of the ticket rate had no rele- 
 vancy whatever to the right of the plaintiff to l)e carried, or to 
 shun ejection from the cars. He might as well have tendered 
 nothing as not enough. On the other hand, if it was the company's 
 omission or fault that prevented the plaintiff f j-( -m having a ticket, 
 the conductor had no right to demand the payment of fare at a 
 hio-her than the ticket rate; no right to reject that rate when 
 tendered; and after its tender he could not lawfully expel the pas- 
 seno-er for not complying with his unlawful demand of payment 
 at a hio-her rate. This test of the respective rights of the passen- 
 <rer and carrier the court concludes rests upon the actual 
 state of facts, and not upon mere belief or good faith either of 
 the passenger or of the conductor. It requires them to know 
 their respective rights, and to act accordingly. A passenger 
 always knows why he fails to obtain a ticket. A conductor rep- 
 resents the company, and, if the company has failed in any of its 
 duties to afford passengers opportunity to obtain tickets, he should 
 be so informed. If the company will not allow him to take the 
 woi-d of the piisscnger, it must ad(Ji)t, it was said by the court, 
 some other means of informing him; as, for instance, requiring 
 iiim to ascertain at each station, before leaving it, whether the 
 ticket office lias been propei-ly kept open, and attended for the 
 sale of tickets or not. "What the company, by any of its proper
 
 EEFISAL TO TAY OK EXHIBIT TICKET. 191 
 
 agents or employes, knows on that subject, the conductor, as rep- 
 resenting the company on the train, ma}' be, it is held, presumed 
 to know, and this presumption, as a general rule, should be 
 treated as conclusive. The respective legal rights of the parties 
 being such, can tliose rights be changed by either without the 
 consent of the other? It is said to be clear that they cannot. 
 Either may waive his own rights, but neither can compel any 
 Avaiver by the other. If the passenger lias tlie necessary state of 
 facts to back him, notliing which the conductor can do will justify 
 his expulsion. So, if the conductor, on the other liand, has at his 
 back, the necessary state of facts, lie may enforce the rule of ex- 
 pulsion over any tender whatever which the passenger may make 
 after steps have been rightfullj- taken to stop the train in conse- 
 quence of the refusal to pay. This, it is said, applies only to 
 instances occuring between stations, and wliere the sole reason for 
 stopping the train is to effect expulsion. The sum of the matter 
 is that a passenger cannot force a railroad company to reject him 
 as a patron, and then force it, by making a tender which he ouglit 
 to have made before, to cancel the rejection, and perform service 
 the same as if tliere had been no failure to agree originally.' 
 After the ejection of a passenger for factious refusal to pay fare 
 he has not the right to pay and continue his passage on that trip. 
 This is true although the stop is within the limits of the ordinary 
 stopping place of the train." The same rule applies even before 
 the ejection if the train has stoj3ped for the express purpose of 
 ejecting the passenger.^ But where the train has stopped at a 
 regular stopping place an offer to pay fare before a passenger is 
 ejected must be accepted.* Yet even if the place Avhere a train 
 is stopped is a regular station at which tickets are sold, if the par- 
 ticular train on which a passenger is traveling would not have 
 stopped there except for the purpose of expelling him he is not 
 entitled to prevent his expulsion and continue his passage on that 
 
 ^Ge-orgia S. & F. R. Co. v. Asmore (Ga.) 16 L. R. A. 53. 
 
 ^ Pease v. Delaware, L. & W. B. Co. 11 Daly, 350; People v. Jillson, 3 Park. 
 
 Critn. Cas. 234. 
 ^Cincinnati, 8. & G. R. Co. v. Skillman, 39 Ohio St. 445; Hibbard v. New 
 
 York & E. R. Co. 15 N. Y. 455; O'Brien v. Boston & W. R. Co. 15 Gray. 
 
 20, 77 Am. Dec. 347; Hoffbauer v. Delhi <6 N. W. R. Co. 52 Iowa, 342, 35 
 
 Am. Rep. 278. 
 *0'Brien v. Xew York Cent, tfe H. R. R. Co. 80 N. Y. 236.
 
 192 TICKETS, SALE AND PKODUCTIOJN' OF — CONCLUSIVENESS. 
 
 train by tender of fare after the train is stopped.' A passenger 
 who has refused to pay fare inay change his mind and pay while 
 the train is stopped at a station although the conductor has com- 
 menced to put him off, if he has not compelled the conductor to 
 stop the train for that purpose or to resort to extreme measures, 
 as for instance by force to pull him from his seat." A valid 
 ticket which a passenger had kept back and not shown until after 
 he was ejected at a station for refusal to pay fare and insisting on 
 his right to ride on a worthless ticket, will not entitle him to re- 
 enter the train.^ 
 
 A passenger is not entitled to readmission to a train from which 
 he has been ejected for nonpayment of fare by reason of a ticket 
 which he purchases at the place where he is ejected, at least 
 without paying fare for the distance already ridden.' 
 
 The rules above laid down are not without some limitations as 
 •clearly shown in the case last stated in the text. Thus it is said 
 that to bring a case A\dthin the rule that a person is not entitled 
 to pay when being put off the train after refusal to pay fare, there 
 must be a willful or at least a positive refusal to pay proper fare." 
 So the rule that a passenger who has refused to pay his fare can- 
 not pay after ejection or after the train is stoj)ped to eject him 
 and thus claim the right to continue on that train, it is said ought 
 to be limited to willful violation of his duty to pay.' 
 
 A conductor is bound to receive fare from a third person if 
 offered before the ejection of a passenger who has no ticket or 
 money, whom he is about to eject for nonpayment of fare.' A 
 New York case lays down the same rule, at least where the train 
 is stopped at a station.' Where a conductor hastily pulls the 
 bell and takes steps to eject a passenger who honestly disputes 
 the correctness of the amount demanded, without giving the pas- 
 senger reasonable time to consider, he must accept a tender of 
 
 ^Pick^m V. Richmond & D. R. Co. 104 N. C. 312; O'Brun v. Neio York Cent. 
 & II. li. R Co. 80 N. Y. 236; NeUon v. Lonrj Maud R. Co. 7 Hun, 140. 
 ^Oould V. Chicago, M. & St. P. R. Co. 18 Fed. Rep. 155. 
 ^State V. Campbell, 32 N. J. L. 309. 
 
 *Stom V. Chicago & N. W. R. Co. 47 Iowa, 82, 29 Am. Rep. 458. 
 ''Texan & P. R. Co. v. Bond. 62 Tex. 442, 50 Am. Rep. 532. 
 oLouuville, N. & G. S. R. Co. v. Harris, 9 Lea, 180. 72 Am. Rep. 668. 
 ''Louisville & N. R. Co. v. Oarrett, 8 Lea, 438. 41 Am. Rep. 640. 
 ''Ouy V. New York. 0. tfc W. R. Co. 30 Hun. 399.
 
 itiaasAL Tu I'AY OK p:xhii>it ticket. 193 
 
 fare offered tliereafter.' The same rule applies where the pas- 
 seiig;er is obliged to borrow money to pay the extra fare. He ia 
 ■entitled to a reasonable time for that purpose.^ In California it 
 is decided that a tender by a passenger of the remainder of his 
 fare is in time althongh the train has stopped for the purpose of 
 ejecting him, wliere the money which he had already paid to the 
 conductor had not been returned to liim.' 
 
 It has been held that a conductor is not l)ound to receive fare 
 after a train is in motion, from a passenger who has been ejected for 
 nonpayment of fare, but it is said that he ought to do so if ten- 
 dered while the train is not in motion or before the passenger is 
 actually ejected.* This last statement it will be seen is not in 
 accord with most of the decisions cited. 
 
 If received again as a passenger, he must pay from the starting 
 point and not simply from the point of ejectment.* But if he has 
 paid to the place of removal, he may then claim the right to pay.' 
 And he may do this at any regular station on payment of amount 
 already due the company and the additional fare to the place of 
 destination,' If there has been no violence or willful misconduct 
 the passenger may re-enter at a regular station, otherwise he can- 
 not.' 
 
 Plaintiff purchased an excursion ticket to and from Xew Orleans 
 from defendant's ticket agent at Birmingham. He obtained it at 
 i-educed rates, but on certain conditions as to its use, which were 
 printed on the ticket, and subscribed by him. Plaintiff testified 
 that he had read the conditions. Among them are the following: 
 ''In considertition of the reduced rate at which this ticket is sold, 
 I. the undersigned, agree with the Louisville & i^ashville Rail- 
 road Company as follows: That on the date of my departure, 
 returning, I will identify myself as the original purchaser of this 
 
 'Texm& P. R. Co. v. Bund, 62 Tex. U2, 50 Am. Rep. 532. 
 *Cuii V. Chicago, B. I. tfc P. R. Co. (Iowa) 11 Am. & Eng. R. Cas. 85. 
 ^Bland v. Southern Pac. R. Co. 55 Cal. 570, 36 Am. Rep. 50. 
 ■"South Carolina R. Co. v. Nix, 68 Ga. 572. 
 
 ^ Stone V. Chicago & N. W. R. Co. 47 Iowa, 82; Southern Kansas R. Co. y. 
 
 Hinsdale, 38 Kan. 507. 
 ^Chicago, B. & Q. R. Co. v. Bryan, 90 III, 126. 
 ''Stone V. Chicago <fc N. W. R. Co. 47 Iowa, 82. But see Louin^ille, K & (t. 
 
 S. R. Co. V. Earris, 9 Lea, 180. 
 *Qoxild V. Chicago, M. & St. P. R. Co. 18 Fed. Rep. 155. 
 13
 
 194 TICKKT!?, SALE AXD PKODLXTIOX OF — CONCLUSIVEKESS. 
 
 ticket, by writing my name on tlie back of this contract, and by 
 other means, if required, in the presence of the ticket agent of 
 Lonisville & Nashville Eailroad Company at the point to which, 
 this ticket was sold, who will witness the signature, date and 
 stamp the contract; and that this ticket and coupons shall be good 
 returning only for a continuous passage from such date, and in no 
 case later than the date canceled in the margin of this contract." 
 Plaintiff conformed to all the requirements of this contract until 
 he reached Mobile on his return trip. At that place he stopped off 
 one day. At the end of that time he boarded another train of the 
 railroad at midnight, and took a berth in a sleeping car. He pro- 
 ceeded unmolested on his homeward trip until he passed Mont- 
 gomery, and was nearing Calera, less than forty miles from Bir- 
 mingham. At the stage of his journey the conductor in charge 
 of the train discovered he was traveling on a forfeited ticket, but 
 possibly he did not learn he had so traveled before he reached 
 Montgomery. As a condition of his proceeding further the con- 
 ductor exacted of him that he should pay fare from Montgomery 
 to Birmingham, or, failing, that he would be put off the train at 
 the next station, which would be Calera; plaintiff procured from 
 the ticket agent at that place a ticket to Birmingham, and upon 
 that ticket sought to continue his journey on the same train. This 
 the conductor refused to allow him to do, stating that under the 
 road's regulations he could not i)ermit him to proceed unless he 
 w^ould also pay the back fare from Montgomery. This he failed 
 to do and was ejected from the train. An action was brought to 
 recover damages for such ejection. 
 
 A regulation by which railroads, when passengers are found on 
 their trains who have no tickets, or who have only forfeited tick- 
 ets refiuire of such passengers fare, not only for that part of the 
 route to be ti^fiveled, but also for the part already passed over, it 
 was said by the court in deciding the case, is certainly a reason- 
 able one. If persons who are attempting to ride without paying 
 fare can have the past forgiven, and need pay only from the 
 place and time of their detection, would not this, it is asked, be 
 the offer of a premium for an attempted undue advantage of the 
 railnjad ? The reg\ilation needs no argument to uphold its reason- 
 al)lenebs. The^ authorities are abuost uniform, and very abundant,.
 
 RKFLSAL TO I'AV OK K.VIIIUIT Tit'KKT. 1U5 
 
 that the eoiulnctor was authorized to dcMuand fare, not only for 
 the portion of the road yet to be traveled, but equally for that 
 part of tlie road plaintiif had been carried, after his ticket had 
 become functus by virtue of his stop over. And the conductor, 
 it was held, was fully justiiied in ejeciting ]>laintifi" fi'Oin the train 
 on his rtif usal to pay the fare as demanded.' In Ward v. New York 
 Cent. & H. R. R.Co. 30 N. Y. S. R. 604 the ticket had no clause 
 or stipulation requiring or looking to continuous passage. The de- 
 cisionis rested on the absence of that provision. It refers to and ap. 
 j)roves many of the decisions i"ef erred to above, pronounced on con- 
 tracts requiring continuous passage. Properly interpreted, that case 
 is an autliority again ' the passenger. In Alahama G. S. R. Co. v. 
 Carmichael, 9 L. R. A. 388, 90 Ala. 19, connnent was made on the 
 great importance, the public necessity of wisely obser\ing regula- 
 tions in the running of trains on railroads. 
 
 In Chicago, B. & Q. R. Co. v. Bryan, 90 111. 12«s it is held. 
 in conflict with the recent case in Alabama stated in the text that 
 a passenger expelled from a train at a station for refusal to pay 
 the amount of fare demanded may get on again and continue his 
 journey on the same train on payment of the lawful fare from 
 that point Avithout paying fare for the distance previously ridden. 
 This distinction is based on his right to again Ijecome c. ])assenger 
 for a distinct trip, and it is held that he can do so on that train as 
 well as any other. But the majority of the cases agree with the 
 case referred to in the text. 
 
 A passenger who has been expelled at a station for refusing to 
 pay fare cannot continue his passage by paying fare from that 
 point only, but must pay for the whole distance.'' The purchase 
 of a ticket from the station at which a passenger is ejected for 
 nonpayment of fare, does not entitle him to ride on the same 
 
 ^Manning V. Louiaville & N. R. Co. (Ala.) 16 L. II. A. 55; Uill v. Si/rucuse, 
 
 B. & N. T. B. Co. 63 N. Y. 101; State v. Campbell, 32 N. J. L. 309; Swan 
 V. Manchester & L. R. Go. 132 Mass. 116; Daiis v. Eansas City, St. J. d 
 
 C. B. R. Co. 53 Mo. 317, 14 Am. Rep. 457; Stone v. Chicago & N. W. E. 
 Co. 47 Iowa, 82, 29 Am. Rep. 458; Hall v. MemjMs tfe C. R. Co. 15 Fed. 
 Rep. 57; Pennington v. Philadelphia, W. & B. R. Co. 62 Md. 95: Pickens 
 V. Richmond & D. R. Co. 104 N. C. 312; Atchison, T. & S. F. B. Co. v. 
 Oants, 38 Kan. 629; Johnson v. Concord R. Corp. 46 N. H. 213; Rose v. 
 Wilmington &W. R. Go. 106 N. C. 168. 
 
 ^Sican V. Manchester tfi L. R. Co. 132 Mass. 116, 42 Am. Rep. 432; Pen- 
 nington V. Philadelphia, W. & B. R. Co. 62 Md. 95.
 
 196 T1CXET3, bALE A2sD PKODUCTIOX OF — COXCI.USIVENKSS. 
 
 train without payment for the distance ah-eadj lidden even if he 
 could claim the right to be admitted to that train on any terms.' 
 
 So on the same principle a tender of fare from a station where 
 a passenger secures a seat, although he has already ridden for 
 some distance, will not be sufficient without paying fare for the 
 whole distance." But where a passenger has a ticket not limited 
 to any particular time or to the day on which it was purchased, 
 and after it is punched stops over at a station and takes anotiier 
 train, if the conductor of the latter refuses to accept the ticket 
 and threatens to eject him at the next station, he is entitled on 
 procuring a ticket there to proceed upon it without paying fare 
 asain for the distance already ridden on that train as he has previ- 
 ously paid for the whole ride.' 
 
 A railway conductor who collects from a passenger boarding 
 the train without a ticket a less sum than the full train fare to his 
 destination may within a reasonable time, on discovering the mis- 
 take, require him to pay the deficiency, and eject him at the next 
 station on his refusal to pay it, upon first refunding the sum paid, 
 less the fare for the distance actually traveled.'' It has been 
 ruled that a by-law of a railway company providing that every 
 passenger shall show his ticket when required, and on failure to 
 do so shall be required to pay fare, does not authorize his expul- 
 sion from the train for refusal to pay fare or produce his ticket, 
 at least where he had purchased a ticket and lost it accidentally. 
 A doubt has been expressed whether a by-law exj^ressly authoriz- 
 ing his expulsion in such a case would be reasonable.^ 
 
 If a passenger has sold or' disposed of his ticket, or is unable to 
 exhibit it within a reasonable time after being requested to do so 
 by the conductor, and refuses to pay the usual fare for the balance 
 of the trip, he is not entitled to recover anything, if he is required, 
 without abuse, insult or unnecessary force or violence, to leave 
 the train." The loss of a ticket which cannot be used l>y another 
 
 ^Stone V. Uhicngo <fi N. W. It. Co. 47 Iowa, 82, 29 Am. Rep. 458. 
 •'D<ivif< V. KanHdit CUy, St. J. & C. B. R. Co. 53 Mo. 317, 14 Am. Kep. 457. 
 'Ward V. New York Cent. & II. R. R. Co. 30 N. Y. S. R. 004. 
 *Ward,joeU v. Chicago, M. & St. P. li. Co. 13 L. R. A. 596, 46 Minn. 514. 
 ''Butler V. Maiicheider, S. cfc /.. R. Co. L. R. 21 Q. U. Div. '201. 
 *LouiHviUe it y. R. Co. v. Mayhin, 66 Miss. 83.
 
 EKFUSAI. TO PAY lUl KMIIlilT TKKKT. 197 
 
 if frmnd, as a sleeping ear tieket will not anthoi-i/.e the I'enioval of 
 a passenger.' 
 
 If a person upon entering a train sliows the brakcman his 
 ticket, which is in fact to ride on another road, but the brakenian 
 assists him upon the train, the conductor is not justified in putting 
 him oU the train at a stopping-place, because he had no money to 
 l»ay liis fare, unless such place is a reasonably safe and convenient 
 ])oint from which he can most expeditiously reach a train on the 
 road on which he wishes to travel ; and it is not material that the 
 conductor does not know that he showed his ticket to the brakeman. 
 If a person holding a ticket on one road, upon entering a ti-ain 
 upon another road, does not show his ticket to the brakeman, but 
 goes upon the train by reason of his own mistake, and neglects or 
 refuses to pay his fare when the conductor demands it, the lattei- 
 is justified, under a statute authorizing the removal of one refus- 
 ing to pay fare, in putting him oif tlie train at a usual sto|)pino;- 
 phice or near a dwelling-lionse.^ A passenger who purchased a 
 ticket at a I'cduced priec^ for a continuous ti-ip by a particular 
 train, and, having been misdirected as to the traiii by an employe 
 of the company, is put otf by the conductor, is entitled to proceed 
 on tlie I'ight train when it comes along and the company is lial)le 
 in case of his removal therefrom/ 
 
 Where an unstamped ticket gave a passenger no right to a return 
 passage, and he refused to pay the usual fare upon a demand by 
 the conductor, as there Avas no contract in force between him and 
 the company to cany him back, there could be no breach of the 
 contract; and an action of assumpsit cannot be maintained to 
 recover damages for plaintitf's expulsion from the companj-'s 
 train/' An important case decided by the Xew Yoi'k Court of 
 Appeals is authority for the proposition that a regulation of a 
 railroad company requiring passengers either to present evidence 
 
 ^Pullman Palace Car Co. v. Reed. 75 111. 135; Pitry v. Chirago, St. P. M. cfc 
 O. R. Co. 77 Wis. 218; LonisviUe, N. & (i. S. R. Co. v. Fleming, U Lea, 
 128; De Luca>i v. New Orleam & C. R. Co. 38 La. Ann. 9:10; Havens v. 
 ILviford & JS\ If. B. Co. 28 Conn. C9; Btanduh v. Xurragansett 8S. Co. 
 Ill Mass. 512 See also Butler v. .Manchester it- L. R. Co.' L. R. 21 Q. B. 
 Div. 207; Jerome v. Smifh, 48 Vt. 230; Creaaon v. Philadelplua <£• R. R 
 Co. 11 Phila. 597. 
 
 ^Patry v. Chicago, St. P. M. & 0. R. Co. 77 Wis. 218. 
 
 ^L'Uiott V. New York Cent, tt- U. R. R. Co. 58 Hun, 78. 
 
 *jBoylan v. Hot Springs R. Co. 132 U. S. 14G, 33 L. ed. 290.
 
 108 TICKKTS, SALE AND PRODUCllON OF CONCLUSIVENESS. 
 
 to the conductor of a riglit to a seat, when reasonably required so 
 to do, or to pay fare, is reasonable ; and for noncompliance tliere- 
 with a passeng-er iway lawfully be put off the train. And the 
 wrongful takino; of the passenger's ticket by the conductor of a 
 previous train, in which the former liad performed part of his 
 "journey, does not exonerate him from compliance with this regu- 
 lation.' 
 
 A 23erson is not entitled to damages for ejection fr(»m a street 
 car without unnecessary force or violence, where the ticket pre- 
 sented by liim is a transfer ticket intended for use on another line 
 and he himself was niainly in fault in regard to the mistake in 
 such ticket.'^ AVhere a conductor with no express or implied 
 authority collects fare from a passenger over a connecting road as 
 well as over his owm, his company is not liable for the passenger's 
 ejection on the connecting road for not paying a second fare.^ 
 Wrongful refusal to pass a child on a half fare ticket, entitles the 
 mother to damages for being deprived of her passage as well as 
 that of the child, although tlie conductor offered to pass her on 
 her ticket, without the child, as it is not reasonable to expect a 
 mother to leave her child.' 
 
 § 00. Conclusiveness of Tichet as to Bights of 
 Fasseiiger. 
 
 In Xcw York, West Virginia, Illinois. INEaryland, Ohio, Wis- 
 •jonsiTi, Connecticut. ]^ew Jersey, Massachusetts, JMorth Caro- 
 lina and Oregon and some of the United States (Jircuit Courts, it 
 seems to have been decided that the ticket presented by the pas- 
 senger is the only evidence of his right to traxel upon the train 
 which can be recognized by the conductor; and that if, by reason 
 of tlie negligence of other" servants of the carrier, a wrong ticket 
 has been given to the passenger, or the right ticket has been 
 given to him. but cii-oiicou-ly taken from him, the passenger's 
 right of action is lui- ilic wi'ong thus committed; and that lie may 
 
 ^'Jhir„Hfri(l V. Anr York Cnt. tf- //. It. R. Co. 56 N. Y. 29r). But see Nem 
 
 York L. K. iSc W. It. Co. v. Winter, 14;j U. S. 60, 36 I., ed. 71. 
 HJariicnler v. WnslUiuilon & d. R. Co. 131 U. S. 474. 30 L. ed. 1015. 
 '"■Ilouwrlil V. FiM d: P. .V. li. Co. 59 Mich. :i(56, (10 Am. Kep. 301. 
 *<ji0.sun V. h'<i:</ 7>niirss,'(\ ]'. (f- a. /»'. ("". ;!tl Frd. licp. l»()4.
 
 CONCLUSIVENESS OF TIOKKT AS TO KIOHTS OK FAS8ENGKB. 199 
 
 not insist upon liis ri^-lit to travel on the wrong ticket, or without 
 it, where it has l)een taken up, and recover damages for the re- 
 fusal of the carrier to permit him to do so; and that the carrier 
 may lawfully eject him from its train, using no more force than 
 is necessary for that purpose.' 
 
 In Frederick v. Marquette, IT. dj O. R. Co., the plaintiff held 
 an insutJicient ticket, caused by the fault of the company's agent 
 in delivering to him a ticket to the wrong station. He asked and 
 paid for a ticket to a given station, and received what he su[)posed 
 was such ticket, but which on its face w^as only good to a point 
 short of his destination. In passing upon this question the court 
 observed: "How, then, is the conductor to ascertain the con- 
 tract entered into between the passenger and the railroad com- 
 pany, where a ticket is purchased and presented to him ? Prac- 
 tically there are but two ways, — one, the evidence offei-ed him by 
 the ticket; the other, the statements of tlie passenger contradicted 
 by his ticket. Which should govern ? In judicial investigations 
 we appreciate the necessity of an obligation of some kind, and the 
 l>enefit of a cross-examination. At common law% parties interested 
 were not competent witnesses, and even under our statutes the 
 witness is not permitted, in certain cases, to testify as to facts 
 which, if true, were equally within the knowledge of the opposite 
 party, and cannot be procured. Yet here would be an investiga- 
 tion as to the terms of the conti-act where no such safeguards 
 could be thrown around it, and wliere the conductor, at his peril, 
 would have to accept of the statemeut of the interested party. I 
 doubt the practical workings of such a method, except for the 
 purpose of entjouraging and developing fraud and falsehood, and 
 I doubt if any system could be devised that wTjuld so much tend 
 to the disturbance and annoyance of the traveling public generally. 
 As between conductor and passenger, and the right of the latter 
 
 ^MacKmi v. Ohio River R. Co. 9 L. R. A. 13^, 34 W. Va. 65; Roxe v. Wil- 
 mington & W. R. Co. 106 N. C. 168; Frederir.k v. Marquette, U. & 0. R. 
 Co. 37 Mich. 343; Towmend v. NeiD York Cent, tfe IT. R. R. Co. 56 N. Y. 295; 
 Eufford V. Grand Rapids & I. R. Go. 53 Mich. 118; Chicago, B. & Q. R. 
 Co. V. Griffin. 68 III. 499. (But see Ohio & M. R. Co. v. Cope, 36 111. 
 App. 97.) McClure v. Philadelphia, W. <& B. R. Co. 34 Md. 532; Shelton 
 V. Lake Shore d: M. S. R. Co. 29 Ohio St. 214; Downs v. Neic York & N. 
 H. R. Co. 36 Conn. 287; Petrie v. Pennsylvania R. Co. 42 N. J. L. 449; 
 Yorton v. Mihoavkee, L. S. & W. R. Co. 54 Wis. 234; Bradshaw v. South 
 Boston R. Co. 135 Mass. 407; Hall v. Memphi>t & C. R. Co. 9 Fed. Rep. 585.
 
 200 TICKKTS, SALE AND PKUDLCTlOIf OF — CONCLL>l\ KNPJteS. 
 
 to travel, the ticket produced must be conclu.^ive evidence, and he 
 must produce it when called upon, as evidence of liis right to the 
 seat he claims. Where a passenger has purchased a ticket, and 
 the conductor does not carry liiui according to its terms, or if the 
 companv. through the mistake of its agent, has given liim a 
 wrong ticket, so that he lias been compelled to relinquish his seat, 
 or pay his fare a second time in order to retain it, he would have 
 a remedy against the company for a breach of tlie contract, but 
 he would have to adopt a declai-ation ditiering essentially from 
 the one resorted to in this case." 
 
 In Toioiisend v. New York Cent. & 11. R. R. Co.. the court 
 savs : " The question in tliis ease is Avliether a wrungf ul taking 
 of a ticket of a passenger by the conductor of one train exonerates 
 him from compliance with the regulations on another on Avliich 
 he wishes to proceed upon his journey. I am unable to see Imw 
 the wrongful act of the previous conductor can at all justify the 
 passenger in violating the lawful regulations upon another train. 
 The conductor of the train upon which he was was not 
 bound to take his word that Jie had had a ticket shoM'ing his right to 
 a passage to llhinebeck, which had been taken up by the conductor 
 on the otlier train. His statement to that effect was wholly 
 immaterial, and it was the duty of the conductor to the comj)any 
 to enforce the regulation, as was repeatedly held by the trial 
 judge, by putting the plauitiff off in case he persistently refused 
 to pav fare. The question is whetlier, under the facts found by 
 the jurv, his resistance in the performance of this duty was law- 
 ful on tlie part of the ]»l;iiiititl'. If so, the singular case is pre- 
 sented where the regulation of the company was lawful, where 
 tlie conductor owed a duty to the company to execute it, and at 
 the same time the plaiiititr had a I'ight to repel force by force, and 
 to use all that was necessary to retain his seat in the car. Tims a 
 desperate struggle miglit ensue, attended by very serious conse- 
 quences, wlien botli sides -were entirely in the right, so far as 
 either couhl ascertain. All this is claimed to result from the 
 wron"-ful act of the conductor of another train in taking a ticket 
 from the plaintilf. Foi- which wrong the plaintiff had a perfect 
 reinedv without inviting the commission of an assault and battery 
 bv pcr.-isting in refaining a seat \i])on anotlier train, in violation
 
 C?t»NOJ.USlVEM;SS OF TICKKT AS TO KlOHiS OF Jb'A^5>K^Ui::K. 2U 1 
 
 of tlie lawful rogulatious by wliieli those in charge were bound to 
 govern themselves. 
 
 The Wisconsin Court of Appeals, in a nuanimous opinion 
 delivered by Chief Justice Cole, referring to the case of Town- 
 ■^>^nd V. New York Cent. & 11. JR. R. Co. says : " The court held 
 that he was lawfully put oft' the train, notwithstanding the wrong- 
 ful act of the previous conductor in taking his ticket. The case 
 is well considered, and the opinion by Jufhje Grover is very in- 
 structive. Substantially the same doctrine as to the rights and 
 <luties of passengers is laid down in Shelion\. Lalie Shore <jc M. S. 
 R. Co. 29 Ohio^ St. 214; Downs v. ISTew York cfe N. 11. R. Co. 
 ?S Conn. 28 7, and IlcClure v. Philadelphia c& IF. B. R. Co. ?A 
 Md. 582." ' 
 
 In YoHon V. Jf///ra>iJiee, L. S. tt* TF. R. Co., the plaintift had 
 purchased a ticket to the place of his destination, and asked the 
 conductor for a stop-over ticket, and, through the fault or mis- 
 take of the conductor he received a trip or train check instead of 
 ;i stop-over ticket for which he asked, and which the conductor 
 undertook to give him. The coiiductor of the second train 
 refused to recognize it for fare, and demanded passage money or 
 a ticket, which being refused, the plaintiff was ejected from the 
 Train. The court says : "" Then the question arises, Was the 
 plaintiff entitled to ride on a subsequent train, not having the 
 ])roper stop-over check, or Avas the second conductor justiiied, 
 under the circumstances, in putting him off the train when he 
 refused to pay his fare ? . . . lEe was i^erfectly justified in 
 ejecting plaintiff from his train when plaintiff" had no proper 
 voucher, produced no sufficient e\idence of his right to ride 
 thereon, and refused to pay fare, and he himself was ignorant of 
 the transaction between plaintiff' and conductor Sherman [the 
 tirst conductor]. It seems to us there was no other course for 
 him to pursue under the rules of the company, for he was cer- 
 tainly not bound to take the plaintitt''s word that he had paid hi& 
 fare, and that Sherman had made a mistake in not giving him a 
 stop-o\er check. It is a}) parent that the right of plaintiff to ride 
 on the train without a proper voucher, and the right of the second 
 
 ■See Yorton v. Mihcaukee, L. 8. & W. R. Co. 54 Wis. 289, 6 Am. & Eng. 
 K. Cas. 322.
 
 iJ02 TICKETS, :^ALE A>"D I'KuDLC'TlOX OF COXCLUSIVKXKSS. 
 
 •concliietor to eject him for want of said voucher, were inconsistent 
 rii^lits. Each could not co-exist at the same time. Mistake or 
 fauk of the conductor in not giving him, on request, such a check, 
 would 7iot give him a lawful right to ride on the second train, 
 thougli he might require damages against the company for the 
 wrongful act of the tirst conductor." 
 
 In Bradshmv v. South Boston R. Co., the court says: "It is 
 no hardship upon the passenger to put upon him the duty of see- 
 ing to it in the first instance that he receives and presents to the 
 -ctonductor a proper ticket or check, or, if he fails to do this, to 
 leave him to his remedy against the company for a breach of its 
 contract. Otlierwise the conductor must investigate and deter- 
 mine tlie question as best he can while the car is on its passage. 
 The circumstances would not be favorable for a correct decision 
 in a doubtful case.'' 
 
 A railroad conductor may demand a ticket as evidence of a 
 passenger's right of passage, or on faihire to produce it may de- 
 mand payment of fare; and on faihire to ])ay it may lawfully eject 
 the passenger from the train, using no more foi'ce than necessary. 
 If a passenger pay a railroad agent fare for a certain trip, and by 
 mistake of the agent is given a ticket not answering for that trip, 
 but one in an opposite direction, and the conductor refuses to 
 recognize such ticket, and demands fare, w^iich the passenger fails 
 to pay, ejection of the passenger from the train without unneces- 
 sary force will not be ground of action against the company as 
 for a tort, but the action may and must be based on the breach of 
 the contract to convey the passengei*.' 
 
 A passenger from whom an illegal or ext(»rtionate fare is de- 
 manded caimot I'ecover from the carrier for his ejection for non- 
 payment in the absence of M-anton or malicious conduct on the 
 ]iart of Hie latter or its employes, when he is able to pay such 
 
 KMarKay v. Ohio Rim- R. Co. 9 L. R. A. l::J2, 34 W. Va. 65. See also 
 Moither v. St. Louis, I. }[. d- T. R. Co. 23 Fed. Kep. 326; Hall v. Mem- 
 phix & C. R. Co. 1") Fed. Rep. 57: Petrie v. Peiinxi/lvaiiia R. Co. 42 N. 
 J. L. 449; AtrM^'on. T. <fc .S. F. R. Co. v. GantH, 88 Kan. 618; Chicago, 
 B. <t. Q. It. Co. V. Griffin, 68 111. 499: Shelton v. Lake Slwrc & M. 8. R. 
 Co. 29 Ohio St. 214; LouiHirilk, N. t£ G. S. R. Co. v. Fleming, 14 Lea. 
 128; Pennsylvnitia R. Co. v. Connell, 112 111. 295; Princf v. International 
 .C G. N. R. Co. 64 Tex. 14(i; llufford v. Grand Rapids & L R. Co. 53 
 Mich. 118; J)oto)in V. JVew Ym'k & N. H. R. Co. 36 Conu. 287; Jerome v. 
 Smith, 4H Vt. 2:50
 
 DENIAL OK SUCH CONCLUSIVEXKSS IX CASE OF EKlJfjU, 203 
 
 fare, but elects to be ejected rather than do so.' Wliere a pas- 
 senger paid for three tickets, but tlii-oiig-h mistake the ticket agent 
 only gave him two, which he gave to two persons witli him, it 
 was held he must pay his fare or the conductor would be justified 
 ill removing him from the train.'* And the same is true where 
 the ticket agent through mistake gives the passenger a ticket for 
 a shorter distance, although he paid for a ticket to a point be- 
 yond." A railroad company is not liable for ejecting a passenger 
 from its train who fails to produce a ticket and refuses to pay 
 fare, under the honest belief that a ticket previously surrendered 
 called for transportation to a further station, when the train em- 
 ployes acted in good faith and used no violence.* 
 
 Evidence that plaintifl: and another boarded a railroad train 
 without purchasing tickets, offered the conductor an insufficient 
 sum for the jmssage of the two, and, upon his understanding that 
 they wished to pay three fares and so stating and demanding the 
 additional sum required, refused to pjiy such amount, and did not 
 explain or offer the pi'oper sum, but voluntarily got off the train 
 at the conductor's request, and walked back half a mile to the 
 station at which they boarded the train — will not sustain a judg- 
 ment for damages for illegal ejection from the train. ^ A con- 
 ductor is justified in ejecting a passenger who was unable to pur- 
 chase a ticket at the station where he boarded the train because of 
 the temporary absence of the agent in attending to his duties, 
 and who willfully and captiously refuses, until after the train has 
 been stopped for the purpose of ejecting him, to comply with a 
 regulation of the company requiring passengers without tickets 
 to pay extra and accept a rebate check.' 
 
 § 61. Denial of Sucli Conclusiveness , in Case of 
 ErroT tliTOugli Carider's JS'egligeiice. 
 In a recent case,^ the contention for the plaintiff" was that when 
 .he paid his fare from Portland to Grant's, upon the represcuta- 
 
 ^Magee-v. Oref/oii R. <& JS^aii Co. 46 Fed. Rep. 734. 
 ^Weaver v. Rome, W. & 0. R. Co. 3 Thomp. & C. 270. 
 ^Fredenck v. Marquette, H. & 0. R. Co. 37 IVIich. 342. 
 *AtcMson, T. & S. F. R. Co. v. Dmg, 40 Kan. 260. 
 ^Eddy V. ElLiot (Tex.) Nov. 29, 1890. 
 ^Harrison v. Fink, 43 Fed. Rep. 787. 
 ^Peabodi/v. Oregon R. & Nav. C-. (Or.) 12 L R. A 82-'].
 
 204 TICKKTS, SALE AND rJiuDUCTIOX OF CONC'LUSIVKNESS. 
 
 tion and promise of the conductor that he coidd st' >p over at The 
 Dalles and ride upon the next train, and the conductor delivered 
 to him a drawback check with a receipt for the money indorsed 
 on the back tiiereof, and that, in pursuance of such agreement 
 and promise, he, having stopped over, and then gone upon the 
 second train without notice of any contrary regulation until after 
 he commenced his journey, was not compelled to pay fare or leave 
 the train, but that he was lawfully there, and might stand upon 
 his rights, and, if wrongfully ejected by the conductor, he could 
 recover damages for any injuries which lie suffered in consequence 
 of such ejection. Upon the facts tliere is no doubt but that the 
 plaintiff had no knowledge of the rules or regulations of th(; 
 company, and, as the agreement for a ticket with rhe riffht to stop 
 over M'as made l^efore the ticket Avas delivered, the plaintiff can- 
 not be deemed to have assented to any part of the contract ex- 
 pressed by the ticket difterent from that made Avith the conduct- 
 or. As he wished to make his journey over the road on different 
 trains to accommodate his business engagements, the conductor 
 must be supposed to have known what the rules and regulations 
 required in respect to the matter upon which he desired informa, 
 tion. He was the person appointed by the company to impart 
 the information asked, and to sell and deliver to him a ticket as 
 evidence of his right to ride. This agent assures him that he can 
 pay his fare to Grant's Station, and that he can stop over at the 
 place designated, and the plaintiff relying upon his representa- 
 tions, pays his fare. His ticket is not delivered to him immedi- 
 ately for want of change, and not until some twenty minutes after 
 his contract or understanding of permission to stop over Avas 
 made, sliowing that he parted with his money in reliance upon 
 the contract made or permission given, and not upon a ticket 
 which he had not seen, expressing different terms, or terms incon- 
 sistent with his right to pursue his journey upon the next train. 
 When the ticket was delivered to him, supposing that it is sufficient 
 or that the conductor whose duty it was to furnish it would 
 deliver one confoi-ming to their engagement, and relying upon 
 his contract as made, he puts the ticket into his pocket without 
 obbcrving its terms, or that it expressly limits his right to ride on 
 tliat day and tr;iiii only, and stops over at The Dalles; and when
 
 DKNIAI- OF SUCH CONCLUSIVKXKSS IX CASE OF KRKOR. 205 
 
 lie commences liis jounioy on the next train, and his ticket is 
 demaiidud of liim, he is iufonncd by the conductor that it is insnf- 
 ticient, wlien lie explains to him the contract he made with tin- 
 other conductor, and that he is on that train in pursuance of his 
 assurances and contract, but tlie second conductor refuses to 
 receive his explanations, and demands of him the payment of liis 
 fare, or the alternative of leaving the train, both of which he 
 refuses to do, claimiuf;: that he is lawfully upon the train, and 
 resisting with force liis expulsion from it. Under such circum- 
 stances, the plaintifl: contends that the contract established the 
 relation of passenger and carrier, and, if the ticket furnished by 
 its agent was insufficient to notify the second conductor of his 
 right to travel on that train, that it was the negligence of the 
 other conductor, and that he, being M'ithout fault, had a lawful 
 right to travel on that train, and might resist his ejection, and, if 
 ejected, he could recover damages for any injury which he suf- 
 fered by reason of such ejection. There are numerous authori- 
 ties which to a greater or less extent seem to favor that view. It 
 is said that a passenger upon a railroad is not required to examine 
 his ticket after its receipt from the ticket agent, except under 
 special circumstances; but the responsibility is upon the company 
 to give the ticket applied for.' 
 
 Perhaps as strong a case as any is one fi'om Georgia,* which 
 was an action in tort for the expulsion of the plaintiff from the 
 cars of the defendant. By some negligence of the company's 
 agent the plaintiff's ticket was not stamped or signed as required 
 by the conditions of the ticket and the regulations of the com- 
 pany. He presented the ticket for his fare, but it was refused by 
 the conductor, and for his expulsion the court held that he could 
 recover "his proper damages of all sort," and among other things 
 saying: "The company could no more be heard to say that an 
 error was cominitted by its agent, resulting in a breach of duty 
 on its part to the plaintiff", than it can be heard to say that an 
 error was committed by its own action. . . . He [the plaint- 
 iff] had a right to assume that all these agents understood their 
 duties and would perform them ; and, if he performed his, he 
 
 ^Georgia R. & Bk(i. Co. v. Dougherty, 86 Ga. 744. 
 ^Head v. Georgia Pac. R. Go. 79 Ga. 35(3.
 
 200 Tl< KETS, SALE AND PKoDLtTKiN OF — CONCLL"bl\ ENEisS. 
 
 could stand upon his contract, and upon his relation as a pas- 
 senger which the contract generated.'' 
 
 In a recent Maryland case,' the plaintiff had gone upon one of 
 the trains of the company with a proper ticket, and the conductor 
 canceled it by mistake, but afterwards attempted to cf)rre(;t it, and 
 assured the plaintiff that it would be all right, and that he could 
 ride upon it on the next train in that condition. It was not prop- 
 erly corrected, and when the plaintiff went upon the returning 
 train and presented the ticket the conductor refused to take it, 
 and the plaintiff, refusing to pay his fare or leave the train, was 
 expelled therefrom. The court says: "The return coupon was 
 canceled through the mistake of the conductor. This error he 
 attempted to correct, and informed plaintiff that it was all 
 right. The latter had a right to rely on this assurance, and that 
 the ticket for which he paid his money entitled him to return to 
 Wilmington. If the servants of the appellant, under such cir- 
 cumstances, laid their hands forcibly upon the plaintiff, and com- 
 |>elled him to leave the car, there was not merely a breach of con- 
 ti-act on the part of the company, but an unlawful interference 
 with the pel-son of the plaintiff and an indignity to his feelings 
 for which an action will lie, and for which he is entitled to be 
 compensated in damages. Such is the well settled law of this 
 state and of this country. The mistake by which plaintiff's ticket 
 Avas canceled was the mistake of the appellant's servants, and it 
 must abide the consequences." The ticket being regular on its 
 face, and the iniirmity Ijeing only in its not conforming to the 
 carrier's special regulation, and this inconsistency being caused by 
 the carrier's agent, it cannot aft'ect the passenger, it is said,^ 
 
 Notwithstanding the former rulings of the Supreme Court of 
 Illinois, the appellate court of that state has felt at liberty to rule 
 that a railroad company cannot refuse to accept a defective ticket 
 for ]>assage, where tlie defect is due to the carelessness of its 
 agents.' 
 
 The appellate court in Indiana has held that a passenger unable 
 
 WhihiddpMa, \V. & B. R. Co. v. Rice, G4 Md. 63. 
 
 ^See Jfoford v. Gr<ind R'lpidx tt I. R. Co. b'6 Micb. 118; Murdoch v. Boston 
 
 & A. R. Co. 137 Mass. 293. 
 *Ohio & M. R. Co. V. Cope, 3G 111. A pp. 1(7.
 
 DENIAL OF SUCH CONCLUSIVENESS IN CASE OF EKKOK. 207 
 
 to procure a ticket, through tlie fault of the company, may take 
 passage on the train, and, upon a tender of the ticket fare, will 
 be entitled to all the rights and privileges that a ticket would 
 afford him. One who has already paid his fare is under no ohli- 
 gation to make further payment in order to avoid being ejected 
 from the train, and then .seek redress against the carrier for the 
 excess of the fare.' And the Supreme Court of that state has 
 decided that a passenger having a right to be carried on his ticket, 
 is entitled, if wrongfully ejected, to recover the damages sustained,, 
 although he might have paid his fare rather than be ejected, and' 
 recover such damages as he sustained thereby.* 
 
 In England a by-law of a railway company providing that every 
 passenger shall show his ticket when required, and on failure to- 
 do so shall be recpiired to pay fare, does not authorize his ex- 
 pulsion from the train for failure to pay fare or produce his ticket, 
 at least where he had purchased a ticket and lost it accidentally. 
 Whether a by-law expressly authorizing his expulsion in such a 
 case would be reasonable, — (picere.^ 
 
 A railroad company is liable for the ejection from its train of 
 a passenger who by mistake of its agent has been given a ticket 
 different from that asked for, but ^\■hose trunk has been checked 
 to the proper destination, and who informs the conductor of the 
 circumstances and of her inability to pay her fare to her destina_ 
 tion.* A passenger who has been furnished an imjjroper ticket 
 •by the negligence of the ticket agent may sue in tort for damages 
 from being put oft' the train upon his failure to pay t!ie fare de- 
 manded, for the reason that his means were exliausted.* A con- 
 ductor of a railroad train, who has invited a passengei- to ride to 
 a station beyond that mentioned in his ticket, with full knowledge 
 of the facts ujDon which the latter claimed the right to be carried 
 to such further station, has no right to eject him for refusal to 
 pay the fare thereto from the station named in the ticket.^ 
 
 Refusal of a conductor to accept a ticket which has been hon- 
 
 ^ Chicago, St. L. <& P. B. Co. v. Graham (Ind. App.) 11 Ry. & Corp. L. J. 57.. 
 
 ^Pennnylvania Co. v. Bray, 125 Ind. 229. 
 
 ■^Butler V. Manchester, 8. & L. R. Co. L. R. 21 Q. B. Div. 207. 
 
 ^Georgia R. c& Bkg. Co. v. Dougherty, 86 Ga. 744. 
 
 '■Pouilin V. Canadian Pac. R. Co. 47 Fed. Rep. 858. 
 
 *Hardy v. New York Cent. & H. R. R. Co. 34 N. Y. S. R. 902.
 
 208 TICKETS, SALE ASD PKOBLCTluN OF CONCLUSIVENESS. 
 
 ored by tlie conductors of preceding divisions, and wliich was 
 accompanied by a telegram from the head office requiring it to be 
 honored until further instructions, merely because of a mistake on 
 the part of the ticket agent in punching it, and his ejection of the 
 passenger, render the company liable for damages.' While a 
 regulation of the company requiring conductors to reject tickets 
 appearing to be altered may be reasonable and the conductor be 
 justified, yet if the appearance of the ticket -was due to a mistake 
 of the ticket agent, the company will be liable for the refusal of 
 the conductor to allow the passenger to tra\el." 
 
 In a recent case in Michigan, the plaintiff had applied and 
 paid for a ticket from Mauton to Traverse City. The agent gave 
 him a ticket previously issued for a ride from Sturgis to Traverse 
 City. There was evidence tending to show that the ticket had 
 been canceled by conductor's marks for a ride between Sturgis 
 -and Walton, and the trial court instructed the jury that "if they 
 believed the ticket was punched, indicating to the conductor by 
 the punch-mark that it had been used before between Grand 
 Kapids and Walton, that would be evidence of an infirjnit}^ in the 
 ticket, and the plaintiff would not be entitled to insist ujjon that 
 ticket being received." This instruction was held to be errone- 
 ous, the court saying, "When the plaintiff told the conductor on 
 the train that he had paid his fare, and stated the amount he had 
 paid to the agent who gave him the ticket he jjresented, and told 
 him it was good, it was the duty of the conductor to accept the 
 statement of the plaintiff until he found out it M-as not true, no 
 matter what the ticket contained in words, figures or other 
 marks.'" 
 
 The most remarkable thing about this decision is that it was 
 made in the same case, upon the same facts, and between the 
 same parties as that re2)orted in 53 Mich. IIS, in which in an 
 opinion delivered by Jiuhje Cooley, it was held that, as between 
 
 KToJuixon V. Northern Pac. R. Co. 46 Fed. Hep. 347. 
 
 ■McGinnia v. Mmouri Pac. R. Co. 4 West. Rep. 7l>7, 21 Mo. App. 399. 
 
 ^Huffordv. Oraiul Rapiils cfc 1. R. Co. 64 Mich. 631. See also Toledo. W. 
 
 & ]V. R. Co. V. McDoiunigk, 53 Ind. 2b9; Burnluim v. Qrand Trunk R. 
 
 Co. 63 Me. 298; Hamilton v. Third Ave. R. Go. 53 N. Y. 25; Palmer v. 
 
 Charlotte, C (t A. R. Co. 3S. C. 580; JMke Em <& W. R. Co. v. FLi; 8« 
 
 liid. 381; Engiixh v. Delaware & E. Canal Co. G6 N. Y. 404; Tarbell v. 
 
 Northern Cent. R. Co. 24 Hun, 53.
 
 DENIAL OF SDOH CONCLUSIVENESS IN CASE OF ERROR. 209 
 
 the conductor and the passenger, " the ticket must be conclusive 
 evidence of the extent of the passenger's riglit to travel." Tliere 
 is a class of cases somewhat analogous to those considered, in 
 wliich, by a uniform course of decisions, it is held that the con- 
 ductor must accept the statements of the passenger. Those cases 
 in wliich different rates are charged for one who has procured a 
 ticket and one who pays upon the train. It is held that as a con- 
 dition precedent to the exercise of this right to charge higher 
 train rates, and to expel one refusing to pay them, a reasonable 
 opportunity should be given by the carrier to the passenger to 
 procure the ticket required, and that one to whom no such oppor- 
 tunity has been afforded, and who for refusing to pay the higher 
 rate is expelled from the train, may recover damages therefor.' 
 
 In anotlier case'* the plaintiff never had any valid ticket or evi- 
 dence of his right to ride or travel on the train from which he 
 was expelled. His ticket was not even apparently valid on its 
 face when offered, and is not within the principle or reason of 
 some of the cases cited in support of his contention. That he 
 had paid his fare to his destination, and tliat the conductor repre- 
 sented that he might stop over at a station, may be admitted, 
 but the ticket he received furnished no evidence of that permis- 
 sion, was inconsistent with it, and when offered it was after the 
 right, according to its term-S, had expired to travel upon it. It is 
 not the case of a passenger with a valid ticket entitling him to a 
 ride on the train from which he was ejected, or with such a ticket 
 as he was required to have, and by some mistake or fault of the 
 conductor wrongly canceled;^ or surrendered to the proper 
 agent of the company on demand, and receiving back what the 
 agent believed to be the proper evidence of a right to ride on it, 
 and w^hen presented to the other conductor refused, despite the 
 explanations offered;* or where the ticket appears upon its face to 
 be good, although not a regular ticket, but which the ticket agent 
 .assures the passenger is sufficient, after his attention has been 
 
 ^Forsee v. Alabama O. S. R. Co. 63 Miss. 66, see ante % 57. 
 
 ^Peabody v. Oregon B. & Nav. Co. (Or.) 13 L. R. A. 823. 
 
 ^Philadelphia, W. & B. B. Co. v. Bice. 64 Md. 63. 
 
 *Lake Erie & W. B. Co. v. Fix, 88 Ind. 384; or as in Toledo, W. & W B Co 
 V. McDonough, 53 Ind. 293. 
 
 14:
 
 210 TICKETS, SALE AND PEODUOTION OF CONCLUSIVENESS. 
 
 recalled to it, and is afterwards refused by the condnctor on the- 
 train;' or where the plaintiif has paid his fare, and the same con- 
 ductor to whom he paid it asks for it again, and insists, unless it 
 is paid, that he would put the plaintiff off, and the latter, refusing 
 to pay, is forcibly ejected from the train;" or where tlie plaintiff 
 was not guilty of any negligence in accepting his ticket, but care- 
 fully examined it, saw everything there was on it, and received 
 explanation of the meaning of the punched holes, and assurances 
 that the ticket in the condition in which it was would be good for 
 the trip, and the conductor refused to receive it,' and in some other 
 cases which might be distinguished. It is true the court says in 
 that case that the principle announced in some of the authorities 
 is in conflict with the contention for the carrier, but it seems 
 that the weight of authority and reason, as applicable to the facts 
 in the case stated, is that it is the duty of the passenger to 
 pay his fare or quietly to leave the train when requested, if he 
 has not the proper ticket, and resort to his appropriate remedy 
 for the damages he has sustained; but that if he attempts to retain 
 his seat without paying his fare, and is expelled by tlie conductor, 
 he can recover no damages for the injuries incurred by the expul- 
 sion. This result will tend to avoid unseemly struggles occurring 
 on railroad trains, usually filled with passengers, including women 
 and children, and thereby prevent breaches of the peace, and at 
 the same time will fully protect the passenger by making the 
 company responsible for all damages resulting from any breach of 
 its contract. It is not disputed that the business of ejecting th& 
 traveler is extremely disagreeable to the conductor, and tliat he 
 uses considerable effort to induce the passenger to pay his fare or 
 peaceably to leave the train, but that the latter not only often insists 
 on being put off by force, but resists with all the force he can 
 command. In the Oregon case the court say that no inference is 
 intended to apply to agents of the company who act wantonly or 
 willfully or maliciously, or that a trespasser upon a train can be 
 treated in a willful, wanton or malicious manner 
 
 'Sec Ihifford v. Grand Rapidx & 1. R. Co. 53 Mich. 118, 64 Mich. G31. 
 
 'See Euijlvih v. Delaware tfc U. Canal Co. 68 N. Y. 4~)4. 
 
 *Nein Fork, L. E. & W. R. Co. v. Winter, 143 U. S. CO, 36 L. ed. 71. See 
 Murdocic V. Bonlon & A. Ji. Go. 137 Mass. 298.
 
 roiiS'T WHERE PASSENGER MAY BE EEMOVED FKOM TKAIN. 211 
 
 § 62. Foint where Passenger may be Revioved 
 from Train. 
 
 Ordinarily where a trespasser is ejected trom a train, stich ejec- 
 tion ma J be at a place other than at a depot or station, provided 
 the same is done so as not to expose the person to serious injury 
 or danger; and in such ejection the railroad company is not 
 required to have consideration for the mere convenience of the 
 wrong doer.' In the absence of a statute, a carrier is not liable 
 for ejecting a passenger who refuses to pay his fare at a place 
 other than a regular landing place or station.' It is held that 
 " A statute providing that if any railway passenger shall refuse 
 to pay his fare he may be ejected at any usual stopping place, 
 does not prohil)it his ejection at any other safe point." ^ And 
 it is said by the Supreme Court of Illinois* that the refusal 
 of a passenger to surrender his ticket to the conductor when 
 demanded does not constitute the same offense as the nonpayment 
 of fare; and the statutory provision in that state against the 
 expulsion of passengers for the latter offense, except at a regular 
 station, does not apply to the former case. A raikoad company 
 may expel a passenger from its train, at a place other than a 
 regular station, for the violation of any reasonable rule other than 
 that of nonpayment of fare. When a passenger wantonly disre- 
 gards any reasonable rule, the obligation to transport him ceases, 
 and the company may expel him from the train, using no more 
 force than may be necessary for such purpose, and not at a dan- 
 gerous or inconvenient place. This is a common law right, and 
 has been restricted by statute only in cases of nonpayment of fare. 
 
 In some states a railroad company in ejecting a passenger for 
 nonpayment of fare must do so at a usual stopping place or near 
 some dwelling house, and w4iere this is the only restriction im- 
 posed by statute as to the expulsion of passengers, it applies only 
 to passengers who have not paid their fare. Passengers, for other 
 violations of the reasonable rules of railroad companies, may be 
 ejected at any convenient, safe point that may be selected 
 
 ^AtcJdson, T. & S. F. E. Co. v. Gants, 38 Kan. 608. 
 
 *Mngee v. Oregon R. & jSfav. Co. 46 Fed. Rep. 734. 
 
 ^Toledo, W. & W. R. Co. v. Wright, 68 Ind. 586, 34 Am. Rep. 277. 
 
 *llUnois Cent. R. Co. v. W/nttenwre, 43 111, 420.
 
 212 TICKETS, SALE AND PRODUCTION OF CONCLUSIVENESS. 
 
 by the officer in charge, no more force being used than is 
 necessary.' But a raih-oad company has no right to eject a pas- 
 senger for nonpayment of fare, except at a stopping place, under 
 Utah Comp. Laws, § 2354, providing that such passenger may be 
 put off the cars at any stopping place the conductor or employe of 
 the company may elect.* Proof that a passenger was put ofi at 
 a small station where the train stopped is sufficient to show com- 
 pliance with a statute, requiring an ejection of a passenger to be 
 "at any usual stopping place or near any dwelling house." * 
 
 A person riding on a passenger train without a ticket, and who 
 refuses to pay fare, may, under such a statute, be put off the train 
 near a dwelling house which is at the time occupied as a resi- 
 dence, notwithstanding the occupant is temporarily absent and the 
 house closed at the time.* A "regular station," within the mean- 
 ing of a statute prescribing where it shall be unlawful for a pas- 
 senger to be removed from a train, means the place where passenger 
 trains usually stop for passengers to get on and off, and does not 
 include a place from one quarter to half a mile from a depot 
 platform, even if within the corporate limits of the village or city 
 where such depot is located.^ Whether a passenger who refuses 
 to pay his fare can be ejected between stations will, in the absence 
 of express statute, depend largely upon the circumstances of each 
 particular case.* The right of expulsion for noncompliance with 
 the requirement may be exercised in any suitable place, under all 
 circumstances of the particular case.' And in such case, where 
 a trespasser is ejected from a train, such ejection may be at a 
 place other than a depot or station, provided care is taken not to 
 expose his person to serious injury or danger; but in such an 
 ejection the railroad company is not required to have consider- 
 ation for the mere convenience of the wrong doer." 
 
 But a railroad company is under a duty to a passenger who was 
 
 ^South Florida R. Co. v. Ehoads, 3 L. R. A. 733, 25 Fla. 40. 
 ^IS'icJ.ols V. Union Pac. E. Co. (Utah) Sept. 12, 1891. 
 » Wright v. California Cent. E. Co. 78 Cal. 860. 
 *Palry v. Chicago, St. P. M. & 0. E. Co. 77 Wis. 218. 
 
 nUimiH Cent. E. Co. v. Latimer, 28 111. App. 552, aff'd in 128 111. 163; Ste- 
 phen V. Smith, 29 Vt. 160. 
 *JIall V. South Carolina E. Co. 28 S. C. 261. 
 ''Burlington & M. E. E. Co. v. E>se, 11 Neb. 177. 
 ^Atchison, T. & S. F. E. Co. v. Gants, 38 Kan. 608.
 
 REMOVAL WHILE CARS ARE IN MOTION. 213 
 
 thrown on its tracks bj tlie fault of its servant, producing mental 
 incapacity, to take steps to prevent injury to him from the danger 
 it knew he was likely to incur from its trains. The drunken cou- 
 dition of a passenger will not excuse a carrier for negligently leav- 
 ing him exposed on a railroad track, where he had fallen from a 
 train through the fault of the carrier, and was in consequence 
 dazed and his mental faculties impaired.' Where plaiutiU was 
 put off the cars in the dark two or three hundred yards from a 
 station where after taking a few steps he fell through the trestle 
 and was injured, a judgment against the company was sus- 
 tained under a charge that a passenger might be removed from 
 a train for want of a ticket " but it must be in a place 
 of safety.'" But a railroad company is not liable for the kill- 
 ing, by a passing train, of an intoxicated passenger ejected from 
 another train for refusal to pay fare and for misconduct, at 
 a place with which he was familiar and where with ordinary pru- 
 dence he would have been safe, when he was not so drunk as to 
 be unconscious of the peril attending the passing of trains or un- 
 able to take care of himself.^ The failure of one ejected from a 
 railroad train to exercise ordinary prudence in leaving the track 
 to reach a position of safety is not excused by his partial intoxi- 
 cation. One ejected from a railroad train is not at liberty to 
 walk upon the track for a greater distance than is absolutely nec- 
 essary to enable him to reach a position of safety, but is bound to 
 leave the track by any prudent means, although there is no pub- 
 lic road in good traveling condition.* 
 
 § 63. Removal while Cars are in Motion, 
 
 A person cannot lawfully be ejected from a railroad train while 
 in motion, so that his being put off would subject him to great 
 peril.^ But removing a trespasser from a train of cars while the 
 train is moving very slowly is not negligence or wantonness per 
 
 Cincinnati, I. St. L. & G. R. Go. v. Cooper, 6 L. R. A. 241, 120 Ind. 469. 
 * Houston & T. G. R. Go. v. Devainy, 68 Tex. 172. 
 ^Louisville & N. R. Go. v. Johnson (Ala.) 47 Am. & Eng, R. Cas. 611. 
 *Ua7n V. Delaware & H. Ganal Go. 143 Pa. 617. 
 
 ^Southern Kansas R. Go. v. Rice, 3« Kan. 398; Holmes v. Wakefield, 12 Allen, 
 580; Sanford v. Eighth Ave. R. Go. 23 N. Y. 343.
 
 214 TICKETS, SALE AND PKODUCTION OF CONCLUSIVENESS. 
 
 ■ie.^ A railroad company has no right to eject a trespasser from 
 its cars while they are in rapid motion, so as to endanger his life.' 
 A conductor is guilty of assault and battery for forcibly ejecting 
 a passenger, without stopping the train, although the passenger 
 was wrongfully thereon.' Even a trespasser cannot be ejected 
 from a train without a reasonable regard for his safety.* 
 While a railway company is not bound to the same degree of 
 care to mere strangers who are unlawfully upon its premises that 
 it owes to a passenger, it is nevertheless not exempt from respon- 
 sibility to such strangers for injuries arising from its negligence 
 or from its tortious acts.' A railroad company is liable for in- 
 juries to a trespasser on its cars caused by the peremptory order 
 of its servant, accompanied by threats, to leave a train moving at 
 a rate of speed which made it dangerous to do so.* It is negli- 
 gence to force a child to jump off a railway carriage in motion, 
 and it is no defense to an action for injuries to a child from its 
 being forced to jump off a moving railway carriage that it was a 
 trespasser/ 
 
 ^Sntthern Kansas R. Go. v. Sinford, 11 L. R. A. 432, 45 Kan. 373. 
 
 *Mi/kleby v. Chicago, St. P. M. & 0. R. Co. 39 Miaa. 54. 
 
 *State. V. Kinney, 34 Miaa. 311. 
 
 ^Arnold V. PennsT/lmnia R. Co. 6 Cent, Rep. 632, 115 Pa. 135. 
 
 ^Sioiin City & P. R. Co. V. Sto'U. 84 U. S. (557. 21 L. ei. 743; Pmnsv^'OT.nia 
 Co. V. Tooney, 91 Pa. 256; Prnnny'vania R. Go. v. Leiois, 79 Pa. 6:,; Hy- 
 draulic Workfi Go. V. On; m Pa. •6--\-l\ PhilarJelphia & R. R. Co. v. Hum- 
 mcU, 44 Pa. 37.'); Biddls v. HestonviUe, AI. & F. Fuss. R. Co. 3 Cent. Rep. 
 404, 112 Pa. 551. 
 
 *n>ilf, C. & S. F. R. Go. V. Kirkbride, 79 Tex, 457. 
 
 "* Martin v. Rtg. 3 Can. Excli. 323.
 
 CHAPTER XL 
 
 PROTECTION OF AND CARE OVER PASSENGER. 
 
 § 64. Passenger Carriers are not Insurers. 
 
 § 05. Care over the Personal Safety of Passengers— Ordinary Perils. 
 
 § G6. Perils not hicident to Ordinary Modes of Travel. 
 
 § 67. Duty to Passe7igers Suffering from Physical Disability. 
 
 § 6Jf. Passenger Carriers are not Insurers. 
 
 There is a wide distinction between contracts for the convey- 
 ance of passengers and those for the conveyance of goods. In 
 the latter case, tlie parties are liable at all events, unless the goods 
 are destroyed or damaged by the act of God or the public 
 enemy; whilst in the former case, they are only responsible to their 
 passengers in cases of express negligence.* Carriers of passengers 
 for hire are not responsible in all particulars, like common car- 
 riers of goods. They are not insurers of personal safety ao-ainst 
 all contingencies except those arising from the acts of God and 
 the public enemy. For an injury happening to the person of a 
 passenger by mere accident, without fault on their part, they are 
 not responsible, but are liable only for want of due care, diligence, 
 or skill.* Fidelity and carefulness are essential duties to the 
 employment of a common carrier in respect to his service as well 
 as employment which cannot be abrogated.' 
 
 While the carrier does not warrant the safety of the passeno-er 
 as the common carrier does that of the goods, he is, nevertheless, 
 bound to provide for his safe conveyance " as far as human care 
 4ind foresight will go." * 
 
 ^CrofU y.Wafcrhouf-6, 11 Moore, 133. 
 
 ^Bennett v. Button, 10 N. H. 481, 
 
 *Neijn York Cerd. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627. 
 
 ^Deiwort V. Loomer, 21 Conn. 245; IT/iU v. Connecticut River S B. Co. 13 
 Conn. 319; Laing v. Colder, 8 Pa. 47!); Sullivan v. Philadelphia & R. R. 
 Co. 30 P.i. 234; Caldwell v. Murphy, 1 Duer, 233; Brand v. Schenectady 
 <fc T. R. Co. 8 Barb. 368; Ingalls v. Bills, 9 Met. 1; Hegeman v. Western 
 
 215
 
 210 PROTECTION OF AND CARE OVER PASSENGER. 
 
 Carriers of passengers are not insurers, but the law holds then* 
 to some responsibility and requires of tliem to provide for their- 
 safe conveyance, so far as the same is practicable by the exercise 
 of human care and foresight,' They are not insurers of the lives 
 or persons of their passengers, but are bound to the exercise of 
 the hio;hest des^ree of care and diligence in the conduct of their 
 business, and are accountable for the slightest negligence involv- 
 ing the safety of their passengers, notwithstanding their exemp- 
 tions from the rules pertaining to common carriers of property. 
 An instruction that "strict diligence" is required of carriers in. 
 relation to passengers is projDer.'' 
 
 A common carrier of passengers is not under the same obliga- 
 tion as to care and diligence in guarding against injuries to 
 strangers, especially to trespassers, that it is under to guard 
 against injuries to passengers/ N^or does his liability to them 
 come under the law regulating carriers, but is governed by the 
 general principle of conforming conduct to the rights of others, 
 
 R. Corp. 13 N. Y. 9; Maverick v. EightJi Ave. R. Go. 36 N. Y. 378; Car- 
 roll V. Staten Island R. Co. 58 N. Y. 126; Caldwell v. J^ew Jemey 8. B. Co. 
 47 N. Y. 2»2; McPaddeti v. Neio York Cent. R. Go. 44 N. Y. 478; Slier- 
 lock V. Ailing, 44 Ind. 184; Thayer v. St. Louis, A. & T. H. R. Co. 22 
 Ind. 26. 
 
 ^Ladd V. Foster, 31 Fed. Rep. 827; Jeffersonville R. Go. v. Hendricks, 26 Ind. 
 228; The Oriflamme, 3 Sawy. 397; Dunn v. Grand Trunk R. Co. 5S Me. 
 187; Taller v. Talbot, 23 III. 357; Pittsburg, C & St. L. R. Go. v. T/wmp- 
 son, 56 111. 138; Stakes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; 
 PhiladeliMa & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; 
 The NewWorld v. King, 57 U. S. 16 How. 46!), 14 L. ed. 1019; Indian- 
 apolis & St. L. R. Go. V. Horst, 93 U. S. 291, 23 L. ed. 898; Johnson v. 
 Winona d St. P. R. Go. 11 IMinn. 296; McKinney v. Neil, 1 McLean, 540; 
 Maury v. Talmadge, 2 McLean, 157; Stockton v. Frey, 4 Gill. 406; Par- 
 ish V. Reigle, 11 Gratt. 697; Meier v. Pennsylvania R. Co. 64 Pa. 2i5: Ed- 
 wards V. Lord, 49 Me. 279; JVew Jersey R. Co. v. Kennard, 21 Pa. 203; 
 Pendleton v. Kinsley, 3 Cliff. 416. 
 
 *Ahibarna O. 8. R. Co. v. Hill (Ala.) 47 Am. & Eng. R. Gas. 500; Cornwall 
 V. Sullivan R. Go. 28 N. H. 161, See Taylor v. Grand Trunk R. Go. 48 
 N. H. 304; Hall v. Connecticut River 8. B. Co. 13 Conn. 319; Fuller v. 
 Nwugaturk R. Co. 21 Conn. 557, 576; Maverick v. Eighlh Ate. R. Co. 36 
 N. Y. 378; Carroll v. Staten Island R. Go. 58 N. Y. 126; Sullivan v. Phil- 
 adelphia i& R. R. Co. 30 Pa. 234; Toledo, W. &W. R. Co. v. Apperi^nn., 49 
 111 480- Pittsburg, C. & St. L. R. Go. v. Thompson, 56 111. 138; Wheaton 
 V. North Beach & M R. Go. 36 Cal. 590; Union Pac. R. Co. v. Hind, 7 
 Kan, 380, 392; Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Johnson v. 
 Winona & St. P R. Co. 11 Minn. 296; Vin/'nia Cent. R. Go. v. Sanger, 
 15 Gralt. 230; Baltimore <& R. Go. v. Wight/nan. 29 Gralt. 431; Balti- 
 more <& 0. R. Co. V, Slate, 29 M*i. 252; Kansas Pac. R Co. v. MUler, 2: 
 Colo. 442; George v. St. Louis, I. M. & S. R. Co. 34 Ark. Ci3. 
 
 ^Chicago, B. & Q. R. Co. v, Mchlsack, 131 111. 61,
 
 CARE OVEK THE PERSONAL SAFETY OF PASSENGERS. 21T 
 
 and using reasonable precautions to avoid their injury.' A tres- 
 passer on a train cannot be treated in a willful, wan ton, or malicious 
 manner.^ But an action cannot be maintained against a railroad 
 company by one who has been ejected from a train for refusal to 
 pay fare or to i)roduce a ticket or to leave the train on account of 
 insulting or abusive language used by the conductor, unless proof 
 is introduced establishing the relation of passenger and carrier.* 
 
 § 65. Care over the Personal Safety of Passengers 
 —Ordinary Perils- 
 
 What degree of care the common carrier must observe for the 
 safety of a passenger on its train, to exonerate it from liability for 
 injury, is a question of law. The rule of law is quite. well under- 
 stood that, as to the selection of suitable machinery and cars, the 
 fitness of the road, — both as to manner of construction and mate- 
 rials used, — and in the use of all appliances adopted for the gov- 
 ernment or moving of trains, and as to the selection or retention 
 of competent and faithful servants, the carrier of passengers is 
 required to use the highest reasonable and practicable skill, care 
 and diligence. 
 
 So far as the machinery and cars furnished for the carriage of 
 passengers, the fitness of the roadbed, and the competency and 
 faithfulness of the servants employed, and in the use of the best 
 known mechanical appliances to insure safety, are concerned, the 
 passenger must rely solely on the carrier, and can do nothing to^ 
 insure his personal safety. It is for that reason the carrier in this 
 respect is held to the highest reasonable and practicable skill and 
 diligence. The safety of passengers requires the strict and rigid 
 observance of this rule by all carriers by rail or otherwise.* In 
 respect to carrying passengers, a railroad company is bound to 
 exercise all the care and skill which human prudence and over- 
 sight can suggest to secure the safety of their passengers.* 
 
 ^Snyder v. Natchez, R. R. & T. R. Co. 42 La. Ann. 303; CJdcago, B. & Q. R. 
 Co. V. MthUack, 131 111. 61, 41 Am. & Eng. R. Cas. 60. 
 
 * Atchison, T. & S. F. R. Co. v. Qants, 38 Kan. 608. 
 
 ^Memphis & G. R. Co. v. Dcnson, 85 Tenu. 627. 
 
 *Chica<jo & A. R. Co. v. Pilhhury, 11 West. Rep. 761, 123 III. 9. 
 
 ^Dlabola v. Manhattan R. Co. 29 N. Y. S. R. 149; Fairchild v. CaHfornia 
 Stage Co. 13 Cal. f)99; Farinh v. Reiqle, 11 Gralt. 711; Boyre v. CaUfornia 
 Stage Co. 25 Cal. 468; Lawrence v. Oreen, 70 Cal. 417; Maverick v. Eighth
 
 218 PROTECTION OF AND CAKE OVER PASSENGER. 
 
 Because a passenger's life and safety are necessarily intrusted 
 in a great degree to the care of the carrier who transports liim, 
 the law deems it reasonable that the carrier should be bound to 
 exercise the utmost care and diligence in providing against those 
 serious injuries which human care and foresight can guard against.' 
 This rule is held in England and all over the United States. It 
 applies, not only to carriers who use steam railroads, bat to those 
 who use horse railroads, stage coaches, steamboats and sailing ves- 
 sels. It applies at all times when and in all places where the par- 
 ties are in the relation to each other of passenger and carrier ; 
 and it includes attention to all matters which pertain to the busi- 
 ness of carrying the passenger. It is said that " a carrier of pas- 
 sengers is bound to use the utmost care, skill and diligence in 
 ■everything that concei'ns the safety of passengers." * 
 
 Carriers, though not insurers of passengers, ate bound to exercise 
 towards them the highest degree of care of a very prudent person.^ 
 The omission of a carrier in matters involving hazard of serious 
 injury to exercise the highest degree of practicable care consti- 
 tutes negligence; and its measure of duty is not to be determined 
 by what a reasonable and prudent person would ordinarily do un- 
 der the circumstances.* Railroad companies engaged in carrying 
 passengers must exercise the highest degree of care, diligence and 
 skill known to careful, diligent, and skillful persons engaged in 
 such, business.* The words "utmost care and diligence," do not 
 
 Ave. B. Co. 36 K Y. 378; Bowen v. iVew York Cent. R. Co. 18 N. T. 408; 
 Dyo V. New York Cent. R. Co. 34 N. Y. 9; Taitlor v. Grand Trunk R. Co. 
 48 N. H.313; Pniladelphia & R. R. Go. v. Derby, 55 U. S. 14 How. 468, 
 14 L. ed. 502; The New World v. King, 57 U. S. 16 How. 474, 14 L. ed. 
 1021; Stokes v.Saltomtall, 38 U. S. 13 Pet. ISl, 10 L. ed. 115; Ingalls v. 
 Bi'ls. 9 Met. 1; McElroy v. Nashua & L. R. Corp. 4 (Jush. 400; Edicardsv. 
 Lord. 49 Me. 279; Hall v. Connecticut River S. B. Co. 13 C oiia, 320; Der- 
 toort V. Boomer, 21 Cona. 253; Fuller v. Nangatuck R. Co. 21 Conn. 557, 576; 
 Uadley v. Cross, 34 Vt. 586; Clark v. Barrington, 41 N. H. 51; Pennsyl- 
 mniu R. Co. V. Aspell, 23 Pa. 147; Frink v. Fotier, 17 111. 406; Rendhead 
 V. Midland R. Co. L. R. 2 Q. B. 412, L. R. 4 Q. B 379; Northern Pac. R. 
 Co. V. Ueibert, 116 U. S. 651, 652, 29 L. ed. 760; Kelly v. New York dcS. B. 
 R. Co 1 Cent. Hep. 874, 109 N. Y. 44; Grand Rapids & I. R. Co. y. Hunt- 
 ley. 38 Mich. 537; Baltimore & 0. R. Co. v. State, 29 Md. 253. 
 
 WhiC'igo, B. & Q. R. Co. v. Damerell, 81 111. 450. 
 
 *Readheud v. Midland R. Co. L. R. 2 Q. B. 412. 
 
 *0'ConneU v. St., Louis Cable & W. R. Co. 106 Mo. 482. . 
 
 *Loni^dle, N. A. & C. R. Co. v. Snider, 3 L. R. A. 431, 117 Ind. 435; Ohi- 
 aigo tfc A. R. Co. v. PilUbury, 11 West. Rep. 757, 123 111. 9. 
 
 •MonU/otneri/ <6 K R. Co. v, Malktte, 92 Ala. 409 ; Chicago City R. Co. v. En- 
 gei, 35 lil. A pp. 490.
 
 PEKIL3 NOT INCIDENT TO OEDINAKY MODES OF TKAVEL. 219 
 
 mean the utmost care and diligence which men are capable of 
 exercising; but they mean the utmost care consistent with the 
 carrier's undertaking and with a due regard for all the other mat- 
 ters which ought to be considered in conducting the business.* 
 
 Thev must furnish safe, comfortable, and sufficient conveyance 
 — ^protect against annoyance, insult, intrusion from agents or 
 strangers, and from injury and carry within the stipulated sched- 
 ule time to destination.' 
 
 § 66. Perils not Incident to Ordinary Modes of 
 
 Travel. 
 
 As to dangers and perils not incident to ordinary modes of 
 travel, the rule of liability imj^osed upon the carrier of passengers 
 by law is less stringent.^ The carrier, however, must omit no care 
 to discover and prevent danger to a passenger or passengers that 
 is reasonable and practicable. The public exigency and security 
 demand this much of the carrier at all times and under all cir- 
 cumstances. It is the duty of carriers by rail to preserve order 
 iu their carriages, and to protect passengers from all danger, from 
 whatsoever source arising, on their trains, — whether from the dan- 
 gers and violent conduct of other passengers or otherwise. In- 
 deed it has been held that a failure by a carrier of passengers to 
 use the utmost care, not only safely to transport its passengers, 
 but to protect them from violence and insults from those on the 
 train, will render it liable for any damages naturally and directl}' 
 resulting therefrom.* 
 
 A railway carrier of passengers must, under an implied police 
 power to prevent an abuse by passengers of their privileges, ex- 
 ercise the highest diligence reasonably practicable to protect pas- 
 sengers from violence, abuse, or injury from fellow passengers. 
 But a railroad company is not liable to a passenger for an assault 
 made upon him by another passenger suddenly and unexpectedly? 
 where its conductor separates the parties as quickly as practicable.* 
 
 Wodge V. Boston & B. 8. B. Co. 2 L. R. A. 83, 148 Mass. 207. 
 
 ^UcElroy v. Nashua & L. R. Corp. 4 Cush. 400; Johnsons. Winona & St. P. 
 
 R. Co. 11 Minn. 296; Carroll v. Staten Island R. C". 58 N. Y. 120; Netc 
 
 Orleans, J. & O. N. R. Co. v. Al'biitlon, 3S Miss. 243; Memphis & C. U. 
 
 Co V. Whiifit'ld, 44 Miss. 466; Cakerv. Chicago t6 iV. W. R. Co. 36 Wis. 
 
 607; DuLaurans v. First JDiv. St. Raul & P. R. Co. 15 Minn. 49. 
 » Not liable for robbery, Wteks v. New York, N. H. & H. B. Co. 9 llun, 669. 
 *Spohn V. Missouri Pac. R. Co. 101 Mo. 417. 
 ''Uullan f. Wisconsin Cent. R. Co. 46 Minn. 474.
 
 •i20 PKOTECTIOK OF AND CAKE OVEK PASSEXGKK. 
 
 For the purpose of protecting the passengers, all conductorij 
 while on duty on their respective trains, are invested by common 
 law and often by express statute with police power. With regard 
 to danger and hazard to travel arising otherwise than on the train 
 and not incident of such travel, the degree of care to be observed 
 to discover and prevent all danger to, and consequent injuries to, 
 passengers, must depend in a large measure on the attendant cir- 
 cumstances. No doubt, in many cases, if the carrier observes 
 ordinary care and diligence to discover and prevent injury to pas- 
 sengers, such as any prudent person would do for his own personal 
 safety, it will be exonerated from liability. In other cases and 
 under other circumstances it will no doubt be the duty of the car- 
 rier to exercise the utmost care, skill, and diligence to protect the 
 passengers from danger and injury, so far as the same, by the 
 exercise of such care and skill and diligence, could have been rea- 
 sonably and practicably foreseen and anticipated in time to pre- 
 vent injury. In no case must the carrier expose the passenger to 
 extra hazardous dangers that might readily be discovered or 
 anticipated by all reasonable practicable care and diligence.' The 
 duty of the common carrier to use the utmost care to prevent 
 injury to its passengers applies to defects in its road-bed or 
 machinery, or in the construction of its cars, or where the natural 
 result from a defect in any of the appliances would probably be 
 great danger or loss of life to those traveling on the road. But 
 the collision of one person with another through carelessness is 
 not peculiar to railway travel. It may happen upon the public- 
 streets or highways, in drawing rooms or public halls, as well as 
 upon railways; and in the latter class of cases a different rule of 
 law applies, and the carrier is only bound to exercise reasonable 
 care to prevent injury, not only by its servants, but also like care 
 in preventing injury from the careless or wrongful act of any 
 other person whom it permits to come upon its premises, if such 
 careless or wrongful act on the part of others could have been 
 foreseen.' 
 
 ^Chicago & A. R. Co. v. Pilhbury, 11 West. Rep. 761, 123 111. 9. 
 
 *Palnw.r v. Pennsylvania Co. 2 L. R. A. 253, 111 N. Y. 488; Kelly v. Man- 
 hattan li. Co. 112 N. Y. 443; LuJJlin v. BnpUo & 8. W. li. Co. lOUN. Y. 
 i;j!i; Morris V. New York Cent. & 11. R. R. Co. 106 N. Y. 678; Buck v. 
 M,infiulfnn R. Co. 32 N. Y. S. K. 51; Putnam v. Broadway & 8. Ave. R 
 Co. 55 N. Y. 1U«; Pittsburyh, Ft. W. & C. R. Co. v. HindH, 53 Pa. 613.
 
 DUTY TO PASSENGER SUFFERING FROM DISABILITY. 221 
 
 Carriers of emigrants are bound to the same degree of care as 
 carriers of passengers generally.' 
 
 It is the duty of a railroad company in cases of excursions, or 
 an unusual crowd being reasonably anticipated, to provide proper 
 servants and means of protecting passengers from injury." 
 
 %67. Duty to Passenger Suffering from Physical 
 
 Dlsahility. 
 
 A carrier does not owe to Q\erj passenger precisely the same 
 care, without respect to age, sex, or bodily inhrmity.' Tiie 
 agents of a carrier of passengers must observe the utmost 
 care, proportionate to the age and condition of the passengers.* 
 No doubt a carrier owes obligations to its well passengers, as 
 well as to sick passengers, and is bound to protect the rights of 
 both. In the conveyance of j)assengers it is bound to exercise a 
 very high degree of diligence, care, skill and foresight;" espe- 
 cially where the passenger is known to be in any manner affected 
 with a disability by which the hazards of travel are increased." 
 
 That a passenger when he enters the car is in a crippled condi- 
 tion makes it the duty of the conductor to use a greater degree of 
 eare than in the common case of an apparently well and sound 
 passenger.^ If a passenger on a car is evidently crippled, infirm, 
 or very young, the duty of the carrier towards him while alight- 
 ing must be performed with due regard to such apparent condi- 
 tion.* Evidence that the plaintiffs husband informed the conduc- 
 tor on placing his wife on the train, that the plaintiff was feeble, 
 and would need assistance, and that the officer said he would notify 
 
 ^Garoniv. Campagnie Nationale De Navigation, 39 N. Y. S. R. 63. 
 
 ^Hogan v. South Emtern R. Co. 28 L. T. N. S. 271; Jackson v. Metromlitan 
 
 It. Co. L. R. 10 C. P. 49, 44 L. J. C. P. 83, L. R. 3 Aup. Cas. 193 47 L 
 
 J. H. L. 303. 
 ^St. Louis, A. & T. R. Co. v. Finley, 79 Tex. 85. 
 ^Baltimore & 0. R. Co. v. Leapley, 4 Cent. Rep. 253; 65 Md. 571; RidenJwur 
 
 V. Kansas City Cable R. Co. 103 Mo. 283. See § 48, "Duly to Stop at 
 
 Station." 
 
 ^Lehman v. Louisiana W. R. Go. 37 La. Ann. 707. 
 
 *Wardle v. New Orleans City R. Co. 35 La. Ann. 204 and authorities there 
 
 cited; Hickman v. 3Us!<ouri Pac. R. Co. 8 West. Rep. 564, 91 Mo. 433; 
 
 Eaxt Line & R. R Co. v. Rushing, 69 Tex. 306; Shenandoah ValUy R.Co. 
 
 V. Moose. 83 Va. 827. 
 
 "'Jacksonville St. R. Co. v. Cliappell, 21 Fla. 175. 
 ^Ridenhour v. Kansas City Gable R. Go. 102 Mo. 283.
 
 222 PKOTECTION OF AND CARE OVEli PASSENGEB. 
 
 the conductor who was to take tlie train at the connecting junc- 
 tion, and it would be all right, and that the plaintiJtFs husband so 
 informed her, is material. Knowledge communicated to the con- 
 ductor was notice to the carrier of the plaintiff's condition, and 
 she was not required to notify every other conductor and train 
 hand on the train. A conductor, who had charge of the train and 
 the oversight of its passengers, was the proper person to whom a 
 knowledge of its plaintiff's health and need of assistance in leav- 
 ing the train should be given; and the plaintifi had a right to rely 
 on his assurance that he would inform the conductor beyond. 
 As conductor of the train he had sole management of it, and in 
 the regular line of his duty represented the company, binding it 
 in all that he did as its responsible agent, and notice to him was 
 notice to the corporation.' 
 
 The question was one of due and reasonable care. The plain- 
 tiff relied, and had a right to rely, on the first conductor giving 
 his successor the information about her condition; and, if the 
 conductor failed to bring her condition to the notice of the con- 
 ductor that followed him, his neglect would not be charged upon 
 the plaintiff. The defendant was as much affected by the con- 
 ductor's knowledge as it would have been by the same facts com- 
 municated to the superintendent, or one of the directors of the 
 road, in season to have made use of them. So a passenger has a 
 right to rely on the assistance offered by the conductor and brake- 
 man, where, in getting off a train when she is in a confused state 
 of mind and in fear of being carried beyond her destination, so 
 that she does not notice the distance of the car step from the 
 ground; and if in such circumstances they fail to assist her from 
 the car without injury, it is the fault of the carrier." 
 
 But to render the carrier liable the disability must be evident 
 or the fact must be communicated to the conductor. A woman 
 having a weak knee, who, without telhng that fact, injures 
 
 ^Bans V. Chicago <ts ]!f. W. R. Go. 43 Wis. 654, 24 Am. Rep. 437; t reat 
 Western R. Co. v. Miller, 19 Mich. 805; Chicago, M. & St. P. R. 6', v. 
 Rons, 112 U. 8. 377, 28 L. ed. 787; Rmch v. LLoyd, 31 Pa. 358, 72 i^m. 
 Dec. 747; Cincinnati, II. & I. R. Co. v. Carper, 11 West. Rep. 221, Hi 
 Itul. 2(5, 2 Am. St. Ilep. 148, and cases cile(i; 1 Wood, Railway Law, p. 
 44!); Thoriip8f)n, Carr. p. 3G9; Hounlon & T. C. R. Co. v. Rand (Tex.) » 
 Am. & Erig. R. Cas. 399. 
 
 *Foss V. Boston & M. R. Co. (N. H.) 11 L. R. A. 367.
 
 \ ■ 
 
 DUTY TO PASSENGER SDFFEliING FfiOM DISABILITY. ^A^ 
 
 it bj aliglitiiii^ from a car step 26 inches from the ground, there 
 being no platform at the place, cannot recover where a brakeman 
 assisted her with the care which was usual and proper for ordi- 
 nary people.' 
 
 When the condition of a sick passenger is such that his con- 
 tinued carriage is inconsistent with the safety, or even the reason- 
 able comfort, of his fellow passengers, regard for the rights of 
 the latter will authorize the carrier to exclude him from the con- 
 veyance. Thus if he had cholera, or small-pox, or delirium tremens, 
 or even if, he were subject, from any cause, to continuous vomit- 
 ing, utterly inconsistent with the comfort of other passengers in 
 a car, the right of the carrier, in protection of the latter's privi- 
 legefl, to exclude him would undoubtedly arise. Such is the rea- 
 sonable doctrine of the cases." 
 
 When the advice of the best physician at hand is obtained and 
 the past history of the passenger as disclosed by himself or as 
 known to the officers of the carrier, creates a well grounded, clear 
 and honest belief that that which is breaking out on the passenger 
 is a case of small-pox, it is under no obligation to wait till the 
 disease has gone so far that the lives and health of all the other 
 passengers become endangered. In the exercise of this right and 
 the discharge of this duty for the protection of the health and 
 safety of their passengers, it may not act wantonly or recklessly 
 or with disregard of the comfort or safety of the passenger re- 
 moved. As an illustration, suppose a man on the train becomes 
 boisterous from drunkenness and becomes so disorderly as to 
 endanger the lives of the passengers, it would be a very extreme 
 case that would justify the conductor in putting him off the train 
 out on the prairie far from the conveniences of a town or village. 
 If a passenger becomes boisteroas or dangerous and is likely to 
 injure the lives or'safety of the other passengers, when they reach 
 a city or stopping place where he could be taken care of, the duty 
 of the railroad company is completed when it puts such drunken 
 and disorderly passenger off the train. It is not its duty to go 
 
 ^McQinney v. Canadian Pae. B. Co. 7 Manitoba Rep. 151. 
 
 *Lemont v. Washington & O. R. Co. 1 Mac-key, 180, 47 Am. Rep. 238; Vin- 
 ton V. MicUilesex R. Co. 11 Allen, 304; Murphy v. Union R. Co. 11^ Mass. 
 228; Atchison, T. & 8. F. R. Co. v. V/eber, b3 Kan. 643; N&w Orleans, 
 J. <& Q. K R. Co. V. Statham, 43 Miss. 607.
 
 .224 PKOTECTIOK OF AND CARE OVEIi PASSENGEK. 
 
 beyond that, for its business is only that of a common carrier and 
 it is not under any other obligation; and so where a passenger is re- 
 moved because there is a well grounded belief that he is breaking 
 out with small-pox and there is no other reasonable way of pro- 
 tecting the other passengers from danger, then the duty of the 
 carrier is to put him o£E at some place where he can find accom- 
 modations or where there are reasonable grounds to believe that 
 he can find accommodations. It could not stop on a prairie and 
 put him off where there was only a hamlet or single house, where 
 he could not possibly obtain medical attendance, but it could put 
 him off where there was any reasonable ground to believe that he 
 -could get proper care and medical attendance and ample accom- 
 jnodations, and if it there remove him from the train without 
 unnecessary force, it has discharged its full measure of duty.* 
 
 The mere fact that a person is intoxicated does not authorize 
 the employes of a railroad company to treat him with personal 
 violence.'' The drunken condition of a passenger will not excuse 
 a carrier from negligently leaving him exposed on a railroad track, 
 where he has fallen from a train through the fault of the carrier, 
 and in consequence is dazed and his mental faculties impaired.' 
 j^one of the cases hold that this right of exclusion may be 
 exercised arbitrarily and inhumanly, or without due care and 
 provision for the safety and well being of the ejected passenger. 
 On the contrary, the duty of exercising such care and provision 
 is universally recognized. Thus, in the Kansas case just 
 cited, the court said : " Under these facts, the propriety of his 
 removal cannot be doubted. The duty of the railroad company, 
 however, with resjiect to Weber, did not end with his removal 
 from the train. He was unconscious, and unable to take care of 
 himself. The company could not leave him on the jolatform 
 helpless, exposed, and without care or attention. It was its duty 
 to exercise reasonable care and diligence to make temporary pro- 
 vision for his protection and comfort." This was a case of intoxi- 
 cation. 
 
 The Supreme Court of the District of Columbia, after recogniz- 
 
 ^ Paddock v. Atchison, T. & S. F. R. Co. 4 L. R. A. 231, 37 Fed. Rep. 841. 
 
 *Jllmois Cent. R. Co. v. Sheehan, 29 111. App. 90. 
 
 'Cincinnati, I. St. L. & C. R. Co. v. Cooper, 6 L. R. A. 241, 120 Ind. 469.
 
 DUTV TO PASSENGER SUFFERING FKOM DISABILITY. 225 
 
 ing the 'right of removal, is careful to add: "Of course, for an 
 abuse of this discretion, or for any oppression in its exercise, 
 the company would be responsible."* In another case the 
 court, while conceding the right of ejection, said : "It does not 
 follow that the right may be exercised in such manner, under 
 such circumstances, or against a person in such mental or phy- 
 sical condition, as that death or serious bodily harm will necessa- 
 rily, or even probably, result from putting him off." * 
 
 In an action for damages it appeared that on a Sunday in De- 
 cember, at about 2 o'clock of the afternoon, a sober, respectable 
 citizen of fifty-five years, entered a car of the defendant's street 
 railway in New Orleans and paid his fare as a ])assenger. Noth- 
 ing in the evidence indicates that he exhibited any sign of intoxi- 
 cation, or was guilty of the slightest impropriety of behavior, on 
 entering the car, or until he had ridden a considerable number of 
 squares (from Terpsichore to Third street) ; and the testimony is 
 <jonclusive that, in point of fact, he was perfectly sober. After pass- 
 ing Third street he was suddenly stricken with apoplexy, accom- 
 panied, as the medical experts prove to be common, with severe 
 vomiting. The car had numerous passengers to whom this vomit- 
 ing undoubtedly occasioned serious discomfort and inconvenience. 
 Some of them left the car on account of it, while others of those 
 remaining suggested that he should leave the car, and took steps 
 to call the attention of the driver to the necessity of removing 
 him. The sick man had sufficient consciousness and sense of 
 propriety left to observe this, and he said, " I will get out myself;" 
 Init, in rising to do so, he fell prone upon the floor, where he lay 
 absolutely helpless. As far as appears, he never spoke again, and 
 was incapable of taking any care whatever of himself. The driver 
 then came back, and, with the assistance of a passenger, lifted 
 him bodily, carried him out of the car, and laid him down in the 
 street between the car track and the gutter, between two and 
 three feet from the former. 
 
 The evidence is conclusive, that almost immediately afterwards 
 
 ^Lemont v. Washington <& G. B. Co. 1 Mackey, 180, 47 Am. Rep. 238. 
 
 ^Louisville, C. <& L. B. Co. v. Sullivan, 81 Ky. 625, 16 Am. & Eng. R. Cas. 
 390. See also Rail v. 8o2ith Carolina R. Co. 28 S. C. 261; LoveU v. Salem 
 & S. D. B. Co. 9 Allen, 557; Higgins v. Watervliet Tump, dk B. Co. 46 N. 
 Y. 23. 
 
 15
 
 226 PROTECTION OF AND CARE OVKK PASSENCrKR. 
 
 and while the car was moving oti", he shifted his position, bj some 
 convulsive movement, so that his legs were across the rail of the 
 track. This is proven by passengers who saw him in this posi- 
 tion as the car moved away, and by others who came to him 
 immediately afterwards. The driver, however, after thus sum- 
 marily disposing of his stricken passenger, paid no further atten- 
 tion whatever to the matter. He took no steps to secure for him 
 any relief or assistance. It is doubtful if he made any report of 
 the incident to his employers, and, if he did, it was not acted upon. 
 A female passer-by, observing his perilous position across the- 
 track, went to his assistance, and, with the aid of a gentleman, 
 removed and laid him on the sidewalk. Here he remained for 
 more than four hours, on a bleak, drizzling December day, in the 
 open street, without aid or relief in his terrible condition. At 
 last the police authorities came to his assistance, and he was con- 
 veyed to the Charity Hospital, where he died on the following 
 morning. In the action for the benefit of his widow the conduct 
 of the conductor of the car, was in the appellate court, declared 
 to be a gross violation of the duty owing by the carrier to a help- 
 less passenger, and a verdict against the carrier was affirmed.^ 
 
 Where a carrier, without reasonable ground, has removed a 
 passenger under the supposition that he was breaking out with 
 small-pox, in considering the question of damages, the jmy have 
 tlie right to take into account all the money he has necessarily 
 paid out in expenses, and the value of the time he lost by reason 
 of his detention and the pain and suffering of the injury conse- 
 quent upon his removal — not because the pain, suffering, and 
 injury which would come in the natural course of events from 
 the disease with which he was suffering, would be damage for 
 which the railroad company woiild be responsible, but any- 
 thing which came by any increase in the disease aggravated by 
 the expulsion or brought about by the expulsion, it would be re- 
 sponsible foi-; and so any permanent or continued injury to his 
 system wliich had followed from that act in any way is to be 
 taken into account.^ 
 
 WonoUy v. Grescent City R. Co. 3 L. R. A. 133, 41 La. Ann. 57. 
 
 *raddoclc V. Atclmon, T. & S. F. M. Go. 4 L. K. A. 231, 37 Fed. Rep. 841.
 
 CHArXER Xll. 
 
 DUTY TO PROVIDE CARS— RESPONSIBILITY. 
 
 § 68. Mud Provide Cars and Run on Schedule Time. 
 
 § 69. Statutes to Secure Safety of Passengers must be ComjjJied loiili. 
 
 § 70. Musi Provide Seats for Passenger. 
 
 § 71. No Discrimination must he Shown. 
 
 § 72. Drawing Roorri and Sleeping Car, Securitj/ of. 
 
 § 73. Sale of Berth or Seats in Sleeping or Parlor Car. and Regula- 
 tions Therein. 
 
 § 74. Liability for Passengers' Loss of L'roperty in Sleeping or Pal- 
 ace Car. 
 
 § 68. Must Provide Cars and Run on Schedule 
 
 Time. 
 
 Carriers ai-e bound to provide ears in reasonable anticipation of 
 the wants of the public' and to run their trains in accordance 
 with theu" advertisements." When a railroad company has invited 
 the public to take passage" upon a special train at a station, and 
 agreed to carry for a special rate, passengers have the right to 
 expect reasonable accommodations and there or on the train, to 
 obtain tickets;' but a railroad company is not guilt}- of negligence 
 in failing to provide wdth a seat a passenger who voluntarily 
 boards a crowded train and takes his place on a car platform, with- 
 out complaint or effort to secure better accommodations." And 
 when an unusual, extraordinary demand for transportation of 
 
 ^LafayetU & 1. R. Co. v. Sims, 27 Ind. 59. 
 
 ^Hmccroft v. Great Hortliern R. Co. 8 Eng. L. & Eq. 362, 21 L. J. Q. B. 178, 
 16 Jur. 196; Denton v. Qreat Northern R. (7o.5 El. & Bl. 860; Boston tfe 
 M.R. Co. V. Bartlett, 3 Gush. 227; Sears v. Eastern R. Co. 14 Allen, 433: 
 Heirnv. McCaughan, 32 Miss. 17; Jencks-^. Coleman, 2Suinn. 221; Bennett 
 V. Peninsular & 0. S. B. Co. 6 C B. 775; Saltonstall v. Stockton, Taney, 
 11; Elmore v. Sands, 54 N. Y. 512; Day v. Owen, 5 Mich. 520; Bennett v. 
 D^ition, 10 N. H. 481. 
 
 *Chicago. St. L. dt P. R. Co. v. Graham (Ind. App.) 11 Ry. & Corp. L. J. 57. 
 
 *Olivier v. Louisville & N. R. Co. 43 La. Ann. 804. 
 
 227
 
 228 Duxr TO provide cars — rksfoxsibility. 
 
 passengers occurs, tlie carrier should be held ouly to such dili- 
 gence as is reasonable under the circumstances.' 
 
 But where custom or the peculiar circumstances justify the 
 requirement the passenger must pay when he engages his passage. 
 If he does not the carrier may fill up the place with other passen- 
 gers who are ready to make the proper deposit.^ The mere tak- 
 ing of a ticket on a railway, does not in itself amount to a con- 
 tract on the part of the railway to carry — at a special time — or 
 impose upon it a duty to have a train ready to start at the time 
 at which the passenger is led to expect it. There must be some 
 act on the part of the railroad company, leading the passenger 
 into conduct involving him in a loss, for which it can not offer a 
 reasonable excuse.^ But a railroad company which has published 
 a schedule of trains, and which fails to comply with its announce- 
 ment, unless excused by special circumstances, is liable to a person 
 sustaining injury from such failure for the damages actually sus- 
 tained by him as a direct necessary result thereof.* Damages 
 for mental suffering are recoverable against a carrier which fails 
 to perform its contract of carriage, because of which a ticket- 
 holder is compelled to purchase tickets over another line and is 
 subjected to serious delays in transportation and in the receipt of 
 his baggage.* 
 
 Where according to the schedule of trains, a passenger arrives 
 at a station intending to take passage, and he iinds no train ready 
 and is comjoelled to remain over the night, and in consequence of 
 the delay, he fails to keep an appointment and complete business 
 arrangements, while he will be entitled to recover the actual ex- 
 j)enses incurred at his hotel, he cannot recover beyond more than 
 nominal damages. While he might have performed his journey 
 by some other method, at the expense of the negligent carrier, 
 not having done so, he is restricted to actual expenses.' But 
 
 ^Chicago & A. R. Co. v. FLnher, 31 111. App. 36; Gm-don v. Manchester & 
 
 L. 11. Co. 52 N. H. 590. But see Hmccroft v. Great Northern R. Co. 
 
 8 Eng. L. & Eq. 3G2. 
 ''Ker V. Mountain, 1 Esp. 27. 
 Hlumt V. Great Weatern /?. (7o. 19 C. B. N. S. 310. 
 *Sava?inaJi, S. <& 8. It. Co. v. Bonaud, 58 Ga. 180. 
 ''81. i/juis, A. & T. R. Co. V. Berry (Tex. App.) Nov. 12, 1890. 
 *IIaiidin v. Great NortJiern R. Co. 1 Ilurl.st. & N. 408. See also Carsten v. 
 
 Northern Vac. R. Co. 9 L. R. A. 688. 44 Minn. 454. But see Benton v. 
 
 Great Northern R. Co. 5 El. A: Bl. 860; Savannah 8. cfc 8. R. Co. v. Bon- 
 
 and, 58 Qu. 180.
 
 MUST PRu\ IDE CARS AND RUN ON SCHEDULE TIME. 229 
 
 the failure to make connection through delay of a train, will not 
 under ordinary circumstances, authorize a passenger to hire a 
 special train, at the expense of the carrier. Such a charge would 
 only be justified by a business or other engagement rendering such 
 acts especially necessary.' Undoubtedly any expense incurred 
 must be in due proportion to the exegency, "Where a railroad 
 company issues excursion tickets to a point on aline of a connecting 
 road, by which it agrees to return passengers by any train adver- 
 tised for that purpose within a specified time, and two trains a 
 day, — morning and evening, — are subsequently advertised for the 
 return of passengers, but the point B. at which these excursion 
 tickets were sold was not on the line of the road issuing them, 
 but on that of the connecting road and was not mentioned in the 
 advertisement as one of the stations at which either of these trains 
 would stop,— although D. was so mentioned — a passenger who 
 liad taken one of the tickets at B, and had been conveyed to 
 anotlier point, returned within the time limited by one of the 
 evening trains, and on arriving at D. the next morning, finding 
 there was no train for B. on that day, posted to that point, it was 
 held that he was entitled to recover the expense thereby incurred." 
 It is the duty of those controlling the movements of a train, on 
 approaching a flag station to be on the alert for proper signals, 
 and to obey them when given. ^ Where a ticket was purchased 
 entitling the holder to passage on a train to a particular point, 
 and the holder was at the depot at traintime, as indicated by the 
 schedule, — an4 the train ran some sixty yards beyond the plat- 
 form where he stood, at which the cars ordinarily halted, and suf- 
 ficient time was not given to the ticket holder to reach the train 
 and get aboard ; but a freight train on the same day conveyed the 
 passenger to his destination, a verdict for $1,500 damages, noth- 
 ing beyond disappointment, delay and inconvenience being shown, 
 was set aside by the court as excessive. Punitive damages will 
 not be allowed in the absence of any circumstances of malice, 
 oppression, insult, personal injury, damages to business, mental or 
 physical suffering, although sometimes more than actual damages 
 
 U^eBlanche v. London d: N. W. R. Co. 1 C. P. Div. 286; Sears v. Eastern It. 
 
 Co. 14 Allen, 433. 
 ^Hawcroft v. Great Northern R. Co. 8 Eng. L. & Eq. 362. 
 *Morse V. Duncan, 14 Fed. Kep. 396, 8 Am. & Eng. R. Cas. 374.
 
 230 DUTY TO PROVIDE CARS RESPONSIBILITI'. 
 
 may be awarded against common carriers, by way of punishment 
 for their neglect of duty, and as protection to the puljlic* A 
 railway, connecting with the line of another passenger carrier, had 
 arrangements by which its trains met the other carrier at a point 
 from which its passengers were forwarded. It published regular 
 monthly time-tables, giving the hour of connection, and the 
 connecting road at the end of a particular month. Before such 
 tune-tables had for the next month been published, — although 
 prepared, — it discontinued the connecting train, notwithstanding 
 which the first carrier, knowing the facts, published and circulated 
 its time-table. B}-^ this act it rendered itself liable to passengers, 
 who relying thereon attempted to make the connection, and fail- 
 ing, suffered damaife.* 
 
 § 60. Statutes to Seciwe Safety of Passengers 
 Diust he Complied With. 
 
 The state under the police power exercises a constant supervis- 
 ion o\ei" carriers of passengers. Steamboats must submit to 
 inspection and be taxed with its cost. They must provide such 
 boilers, engines, boats, lifo-])reservers and floats as may be pre- 
 scribed. Railroads and steamboat lines may be required to dis- 
 card old appliances and adopt new and more expensive but safer 
 methods, and may be required to heat by steam and light their 
 cars'" and vessels by electricity. The statute of New York relat- 
 ing to the heating of steam passenger railroad cars, includes all 
 companies in JSew York state having 50 miles and upwards of 
 road in use, although they are not wholly witiiin the limits of the 
 state.' The state may regulate the numbering of cars, the posting 
 of tai-iff of travel, the use of steam in streets, the stationing of 
 flagmen at crossings, the safety of depots, landings, and the rate 
 of speed of ti-ains. It may also protect business interests, by pro- 
 
 *A railroad company is not bound to light its cars until within a reasonable 
 time before the time lixed to start; and at a summer resort fifteen minutes is a 
 reasonable and sufhcient time in which to light the cars and give notice to a 
 party of excursionists to piepare to start. IMriea v. Is'exn Hanover Transit Co. 
 107 N. C, 576. 
 
 ^Memphu tfe C. H. Co. v. Grren, 52 Miss. 779. 
 'Denton v. Great Northern R. (Jo. 5 Ei. & lil. 860. 
 "Pe</ple V. Xe.m York, N. II. it II. R. Co. 55 Hun, 40!).
 
 STATUTKS TO SKCUKE SAKETiT OF PASSENGERS. 231 
 
 liibitiug discriminations, by regulating tariffs, by enforcing facili- 
 ties in cars and transportation for the public. Whenever any 
 person or corporation pursues a pu])lic calling and sustains such 
 relations to the public that the people must of necessity deal with 
 such operator and are under a moral duress to submit to the terms 
 imposed if unprotected by law, tlien in order to prevent extortion 
 and abuse the price that may be cliarged for tlie proposed service 
 may be regulated by law. Indeed the regulation of charges for 
 land carriage by the justices of the peace in every county in Eng- 
 land and Wales, was authori/.ed in the third year of the reign of 
 William and Mary.* And the validity of such legislation has beeii 
 uniformly recognized.^ The Interstate Commerce Act of Con- 
 gress illustrates this proposition.^ Eut the fact that the carrier 
 has complied with all the requirements of the statute, will not 
 create a presumption that it has not been guilty of negligence in 
 the event of injury to a ]^assenger, much less serve as a defense 
 to an action for such injury,* although a failure to comply with 
 the statute may create a presumption of negligence.^ 
 
 A railroad compaTiy may acquire cars by construction, by pur- 
 chase, or by contract for its use, and no one has the power to com- 
 pel a railroad company to select among these several modes or to 
 contract with all comers. Where a railroad company has by 
 arrangement with one car company procured a suflficient supply 
 of sleeping and excursion cars for all the business of its lines, and 
 
 '3 W. & M. chap. 12, § 24; 3 Stat, at L. (Gl. Britain) 4S1; Bacon, Abr. title 
 ' ' Carriers " D. 
 
 ^ Winsford Local Board V . GlteftMre Linm Gommittee, L. R. 34 Q. B. Div. 456; 
 Rex V. Reeves, 2 Pealie, N. P. 85; Kirkman v. Shaiccross, 6T. R. 11; Bolt 
 V. Stennett, 8 T. R. 606; Alhuitt v. Inqlis, 12 East, 527 ; Pickfordv. Grand 
 Jmiction R. Co. 10 Mees. & W. 415; New Jersey Steam Nav. Co. v. Mer- 
 chants Bank of Boston, 47 U. iS. 6 How. 382, 12 L. ed. 482; Murray v. Ho- 
 boken Land & Imp. Co. 59 U. S. 18 How. 272, 15 L. ed. 372; Munn v. Il- 
 linois, 93 U. S. 113, 24 L. ed. 77. 
 
 "See also Boston & M. R. Co. v. County Comrs. 4 New. Eng. Rep. 657, 79 
 Me. 38G; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841; State v. Kansas 
 City, Ft. S. (fi G. R. Co. 32 Fed. Rep. 722; Little Rock & Ft. 8. R. Co. v. 
 Hanniford, 49 Ark. 291, 1 Inters. Com. Rep. 580; Chicago, M. <fc St. P. 
 R. Co. V. Becker, 32 Fed. Rep. 849. 
 
 *Culdwell V. New Jersey S. B. Co. 47 N. Y. 282; Simmons v. New Bedfm-d, V. 
 
 & N. S. B. Co. 97 Mass. 361. 
 ^Cunningham v. Union Pac. R. Co. 4 Utah, 206; Ray, Neg. Imposed Duties, 
 
 Personal, 155; Pershing v. Chicago, B. & (^. It, Co. 71 Iowa, 561; Palmer 
 
 V. Delaware & II. Canal Co. 46 Hun, 488 and authorities cited. See 
 
 Geryrgia Pac. R. Co. v. Hughes, 87 Ala. 610.
 
 232 DUTY TO PROVIDE CARS RESPONSIBILITY. 
 
 refuses to haul excursion cars of other private car coiiii>anies over 
 its track for this reason, it oannot be forced to do so against its 
 objection.' The Interstate Commerce Act has not given the 
 Commission jurisdiction to order the carrier to furnish any par- 
 ticular equipment of cars.^ A railroad companj which transports 
 immigrants in unfit cars will be required to provide better accom- 
 modations.^ 
 
 § 70. Must Provide Seats for Fassengeis. 
 
 If the trip be of any considerable length the carrier is bomid to 
 provide a comfortable and safe seat for the passenger. While a 
 failure to do this will not of itself amount to negligence in law, 
 if it does not appear that less seats are provided than are usually 
 occupied upon a like occasion,* yet the carrier has not per- 
 formed its contract if it fails to provide a seat, and if injury results 
 to the passenger he may recover.* And the passenger may leave 
 the car or vehicle at the next station, retaining his ticket, and sue 
 the carrier for the violation of contract. ° But if he remain in the 
 car and accept transportation with its inconveniences he must pa}' 
 the full price.'' 
 
 One who in good faith enters a railroad train for the purpose 
 of taking passage thereon is not bound to pay fare unless he is 
 provided Avith a seat; and if the fact that there is no seat for him 
 is not discovered until after the train has started and attained a 
 high rate of speed, he cannot be ejected from the train for non- 
 payment of fare until the train reaches a regular station on the 
 road.* Injury to a woman 67 years of age without any fault of 
 her own while standing in tlie cabin of a ferryboat, because unable 
 to obtain a seat by reason of the crowded condition of the boat^ 
 
 ' Worcester Excursion Car Co. v. Pennsylvania 11. Co. 2 Inters. Com. Kep. 
 
 792. 
 "^Scffeld V. Lak^ Shore cfc M. S. li. Co. 2 Inters. Com. Rep. 67. 
 'Satery v. New York Cent. & H. R. R. Co. 2 Inters. Com. Rep. 310. 
 *Burton v. West Jersey Ferry Co. 114 U. S. 474, 29 L. ed. 215. 
 ''Camden & A. R. Co. v. Uoosey, 99 Pa. 492. 
 
 *IIardenher<jli v. St. Paul, M. & M. R. Co. 39 Minn. 3, 12 Am. St. Rep. 010. 
 ''Memphis & C. R. Co. v. Benson, 85 Tenn. 027; St. Louis, I. M. & S. R. Co. 
 
 V. I^if/h, 45 Ark. 308; Davis v. Kansas City, St. J. & C. B. R. Co. 53 Mo. 
 
 317. 
 »llardeuberyh v. St. Paul, M. d M. R. Co. 39 IVlinn. 8, 12 Am. St. Rep. 010.
 
 MUST PROVIDE SEATS FOR PASSENGERS. 233^ 
 
 would not justify the jury in finding negligence on the part of 
 the cari-ioi-, wlierc it did not a])pear that a less number of scats 
 was jjrovided than was customary and sufficient for those M'ho- 
 ordinarily preferred to be seated while crossing the ferry.* A 
 passenger who, on being compelled to leave a chair car for 
 refusal to pay the extra charge for riding in tliat car, voluntarily 
 left the train, when he might have gone into a first class passen- 
 ger car and continued his journey, as he was invited to do, cannot 
 recover damages on the ground that his ticket was not returned 
 to him or any money paid him in lieu tliercof." 
 
 A passenger has a right to a seat, and it is the duty of the car- 
 rier to provide one, and if in discharging that duty it requires the 
 passenger to perform an act which is perilous in itself, and in 
 doing which he loses his life, the negligence, if any, which that 
 act involves, will be imputed to the carrier alone.' It is not 
 necessarily, as matter of law, an act of negligence for a passen- 
 ger to pass from one car to another of a railroad train while it 
 is in motion, but when he does it without fault of the carrier 
 he assumes the risk incident to such undertaking from ordinary 
 causes,^ and most clearly a passenger who goes to one car from 
 another of a moving train to find a seat does not, while so upon the- 
 platform, take the risk of collision with another train ; and when 
 his conduct does not contribute to an injurj' from such collision, 
 he may recover from the railroad company for its negligence.' 
 A railroad company is liable for the death of a passenger killed 
 by the breaking of a coupling while he was passing from one car 
 to anotliur of its train, as he had a right to assume that the coup- 
 lings and appliances were in a safe and proper condition,^ The 
 right of the passenger is not to any particular seat in any partic- 
 ular car,' unless specially pui-chased, and he may if necessary to 
 
 ^Burton v. West Jermj Fern/ Go. 114 U. S. 474, 39 L. ed. 215. 
 
 * Wright v. California Cent. R. Co. 78 Cal. 360. 
 
 ^Mclntyre v. New York Gent. R. Go. 37 N. Y. 394. And see Roll v. North- 
 
 em Gent. R. Co. 15 Him, 502, citing Blokes v. Saltonstall, 38 U. S. 18 Pet. 
 
 181, 10 L. ed. 115, and many other cases; Robson v. Nort/i Eastern R. Coi 
 
 L. R. 10 Q. B. 371. 
 *Costikyan v. Rome, W. & 0. R. Co. 58 Hun, 590. 
 ^Dewire v, Boston & M. R. Go. 3 L. R. A. 166, 148 Mass. 346. 
 ^Costikyan v. Rome, W. & 0. R. Go. 58 Hun, 590. 
 ''Central R. Co. v. Green, 86 Pa. 436.
 
 ^34 DUTY TO PROVIDE CARS — RESPONSIBILITY. 
 
 secure a seat and it is not obviously dano^erous pass from car to 
 car. The passenger is not bound to request other passengers to 
 remove packages from the seats, or to make room for his occu- 
 pancy. It is the duty of the carrier to do this.' Carriers have 
 no right to overcrowd the carriage and render the passenger uu- 
 ■comfortable." 
 
 § 71. 'N'o Discrimination must he Shown. 
 
 A carrier engaged in interstate travel over its lines must afford 
 the equal protection of the law alike to all passengers, without 
 regard to race, color, or sex, against undue prejudice and disad- 
 vantage from disorderly conduct on the part of other passengers 
 or persons.^ 
 
 It is an unjust discrimination to remove a colored passenger 
 holding a first class ticket for a first class car, to a second class 
 car, less clean and comfortable. But the separation of white and 
 ■colored passengers is lawful if the accommodations are equal in all 
 respects,* This is forbidden in Pennsylvania.^ 
 
 A steamer may furnish separate tables for white and colored 
 passengers, provided they are equal in all* respects in the quality 
 of their accommodations.* And a carrier furnishing separate cars 
 or selecting a different part of the boat for white and colored 
 passengers on its line engaged in interstate travel must make 
 them equal in comforts, acconnnodation, and equipment, without 
 any discrimination.' 
 
 A statute requiring all raili-oads carrying passengers (other than 
 
 ' WiUuv. Long Island R. Co. 34 N. Y. 670; B(m v. Chicago & N. W. R. Co. 
 36 Wis. 450. 
 
 ^Pittsburgh, Ft. W. & C. R. Go. v. Hinds, 53 Pa. 512. 
 
 "Heard v. Geoi'gia R. Co. 2 Inters. Com. Hep. 508. 
 
 *Heard v. Georgia R. Co. 1 Inters. Com. Rep. ;314, 719; Council v. Western 
 & A. R. Co'. 1 Inters. Com. Rep. 292, 355, 638; contra, Day v. Owen, 5 
 Mich. 520 (1858). 
 
 »2 Bright. Purd. Dig. 1238, § 80; Central R. Go. v. Green, 86 Pa. 427. 
 
 * J fall V. DeCuir, 95 U. S. 485, 501. 503, 24 L. ed. 547. 552. See Chesapeake, 
 0. & S. W. R. Co. V. Wdls, 85 Tenn. 013; where exclusion of colored 
 woman from car for white women was sustained. 
 
 '^The Sue, 22 Fed. Rep. 843; Gray v. Cincinnati S. R. Co. 11 Fed. Rep. 687; 
 Houck V. Southern Pac. R. Co. 38 Fed. Rep. 226; Murjthy v. Western <fc 
 A. R. Go. 23 Fed. Rep. 637; Green v. liridgeton (Ga.) 9 Cent. L. J, 206, 
 208; Civil Rights Bill, 1 Hughes, 541, 547.
 
 KO DISCRIMINATION MUST BK SHOWN. 235 
 
 street railroads) to provide equal but separate accommodations for 
 the white and colored races, by providiTijj; two or more passenger 
 cars for each passenger train, or by dividiuo- the cars by a partition, 
 is not invalid as an interference witli int(n-state commerce, where 
 it refers only to the carriage of passengers between points within 
 the state.' While it is the duty of the carrier to furnish equal 
 accommodations to all, upon equal terms, yet a steamboat company 
 is tinder no obligation to furnish a state room in exchange for 
 tickets for berths bouglit and paid for by a passenger, upon an 
 offer of the ditference in price." 
 
 So a cari-ier may set apart a car for the use of ladies and gentle- 
 men accompanying them, and reserve such car for such passen- 
 gers 80 long as seats are j^i'ovided elsewhere for others.^ But 
 if the carrier permit one to enter a ladies car who has no right 
 there under its regulations, he must be duly notified of the 
 fact that the regulations exclude liim, and given a reasonable 
 opportunity to withdraw, and he can only be removed after such 
 notice and opportunity, and with proper regard to his safety.^ 
 The same rule applies where a car has s[)ecial facilities for com- 
 fort for which extra charges are made and one intrudes therein, 
 there being room elsewhere.* So upon a limited express train, 
 on which special charges are made for special accommodations or 
 for unusual speed, a passenger holdhig a ticket not entitling him 
 to entrance on such train may be refused admission thereto, or if 
 he has entered therein, after due notice of the facts and a 
 reasonable opportunity to leave the car has been afforded him, he 
 may be removed therefrom with no unnecessary force.'' A pas- 
 senger who declines to pay a proper extra charge for riding in a 
 parlor car, and refuses upon request to leave it, cannot complain 
 if he is conducted to anotlier car in which he is entitled to passage, 
 
 ^jMUUville, N. 0. tfe T. li. Go. v. State, 2 Inters. Com. Rep. 615. Affirmed 
 by U. B. Sup. Ct. 138 U. S. 387, 33 L. ed. 784, 2 Inters. Com. Rep. 801. 
 
 ■'.miei- V. Wew Jersey S. B. Go. 84 N. Y. S. R. 914. 
 
 KUempMs & G. R. Go. v. Benson, 85 Tenn. 627; Bass v. Chicago & N. W. R. 
 Co. 86 Wis. 450; Staie v. Overton, 24 N. J. L. 435; Pittsburgh, Ft. W. & 
 V. R. Go. V. Hind.^, 58 Pa. 513; Gentml R. Go. v. areen, 86 Pa. 426. 
 
 *Bass V. Chicago tfc 3". W. R. Co. 36 Wis. 450; Marquette v. Chicago d iV. W. 
 R. Co. 83 Iowa, 568. 
 
 ^Marquette v. Chicago ct- J\\ W. /?. Co. 33 Iowa, 562. 
 
 ■''Solan V. JVew York, N. H. ck JI. R. Co. 9 Jones & S. 541; Lake Shore <& 
 M. S. R. Co. V. Roseifzweig, 118 Pa. 519.
 
 236 DUTY TO PROVIDE CAKS KESPONSIBILITY. 
 
 if no unnecessary or improper force is used.' Where a regula- 
 tion of a carrier requires that before a passenger takes his seat he 
 shall pay his fare and obtain a ticket therefor, a passenger who 
 has neglected to comply with this regulation, but has taken a seat, 
 and upon request of the company's servants refuses to surrender 
 the seat, may be removed from the carriage, although he then 
 tenders his fare." 
 
 § 72. Drawing room and Sleeping Cars, Secur- 
 ity of. 
 The use of drawing room, chair and sleeping cars on railroads 
 during the progress of the journey is modern, and there are not 
 many adjudications as to the extent of the duties and liabilities 
 assumed by the owners of such cars, or by the carrier using them 
 upon its road, nor are they in perfect harmony. The duties and 
 liabilities must be ascertained by applying to these new conditions 
 the comprehensive and well established principles of the common 
 law. AVhen one purchases the right to occupy a portion of a sec- 
 tion in a sleeping car a check is usually given him, for a place in 
 a particular car from the station at which he enters the car to the 
 one where he intends to resign his place. In addition to the 
 usual statement on the face, on the back of the check is usually 
 printed either in form or effect the following : 
 
 O z 
 
 ul 
 
 I 
 O 
 
 CAR COMPANY. 
 
 PasHetiger'a Chech. 
 
 The Conductor is required to furnish a Check to each person entitled 
 to a Berth or Seat, one Check to a Berth, Section or Drawing- Room, 
 whetlier occupied by one or more persons, if paid for by one person.' fn 
 One person is not permitted to occupy a Whole Section, if there are --.3' 
 others desiriiiji- Berths. The Conductor will punch out Date, Amount ^ h 
 Collect(>d, for fractions of one dollar, from 1 to 0, Kind of Tickets or m O 
 Pas.ses, No. fif Persons and Cash, Tickets, or D. H. for a Free Pass. g ^j 
 
 Bajruaf^e, Wearing Apparel, Money, Jewelry or other Valuables taken ' ^ 
 into the Car will be entiiely at Owner's Risk, and employes of this > 
 Coiiii>uny ai'O forbidden To take cliarfj-e of the same. Passcng-ers are z 
 rciimstcd to ie|)(iri any ncj;'li'<'t of duty or incivihty on the part of em-| 
 ployrs and forward this Clieck with such report to any of the Superin-| "• 
 tendeiita of this Company, or to = 
 General Ticket Agent. 
 
 IJiit .such tic-ket or check is not probably intended to and cer- 
 tainly does not express all the terms of the contract into which 
 tlie passenger enters, and is subject to the same rules as to notice 
 
 KSl. LouiM, A. d T. R. Co. v. Hardy (Ark.) Nov. 21, 1891. 
 ^Jd'Carthy v. Dublin, W. <t- W. R. Co. 5 Ir. C. L. Hep. 244.
 
 SALE Of BEKTH OR SKATS IN SLEEPING OK PAKLOR CARS. 237 
 
 of its terms as other tickets. Like other railroad tickets, it is 
 little more than a symbol intended to show the agents in charge 
 of the car that the possessor has entered into a contract with the 
 company owning the car by which he is entitled to passage in the 
 car named in the ticket and in a particular place. Ordinarily 
 the only commnnication between the parties is that the passenger 
 buys, and the agent of the car company sells, a ticket between 
 two points; but the real contract entered into is implied from the 
 nature and usages of the business of the company, A sleeping 
 car company holds itself out to the world as furnishing safe and 
 comfortable cars, and when it sells a ticket it impliedly stipulates 
 to do so. But this implied contract does not in any manner 
 release the railroad company from its liability for injury received 
 by the passenger through any defect in the sleeping car, although 
 lie purchased his ticket from the owner of the car. It permits 
 the car to run on its road for carrying its passengers, and it is as 
 responsible for its sufficiency, as for that of any other car in its 
 train, if by minute examination any defect is discoverable. It is 
 responsible to exactly the same extent as it is for furnishing safe 
 machinery and transportation. It must provide cars sufficient and 
 adequate, that is, sufficiently secure as to strength and other 
 requisites, for the safe conveyance of passengers; and for the 
 slightest negligence or fault in that regard, from which injury 
 results to the passenger, the carrier is liable in damages.' 
 
 Where a passenger is injured by the falling of a berth in a 
 sleeping car in which he is at the time riding, the sleeping car 
 company, its conductor and jjorter are to be treated as the ser- 
 vants and employes of the railroad company which is running the 
 train, and the company is responsible for the negligence of either 
 of them.' 
 
 § 7S. Sale of Berth o?' Seats in Sleeping ot Parlor 
 Cars, ajid Regulations Therein. 
 In such accommodations as in others offered by the carrier to 
 the public, there can be no discrimination except for good cause, 
 
 ^Pennsylvania Co. v. Roy, 103 U. S. 451, 26 L. ed. 141: Williams v, Pullman 
 Palace Car Co. 40 La. Ann. 87, 33 Am. & Eng. R. Cas. 407. 
 
 ^Pennsylmnia Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; The New World 
 V. King, 57 U. S. 16 How. 469, 14 L. ed. 1019.
 
 238 DUTY TO PKOVIDK CABS KESPONSIBILITY. 
 
 between passengers ;' but, each passenger applying is entitled to 
 be provided, in the order of his application, with a berth, until all 
 are occui^ied ; and proper care must be used in the preparation of 
 the sleeping berths to secure the reasonable safety and comfort of 
 the occupant.^ But the sale of an entire section to one passenger, 
 to the exclusion of another, has been sustained, although the 
 upper berth -was unoccupied ;" but the circumstances must be 
 peculiar to justify this action. But payment for a first class 
 passage does not entitle a railway passenger to demand carriage 
 in a car equipped with adjustable reclining chairs and lavatory 
 and served by a special porter/ And while it is true that a rule 
 of a railway company, restricting to special trains the holders of 
 a class of tickets which nevertheless purport to entitle them to 
 passage on any regular train, must be brought to the notice of the 
 holder, no such requirement exists as to special accommoda- 
 tions in palace or sleeping cars." 
 
 A railway company which furnishes sutficient first class ears for 
 those entitled to first class passage, and also carries a parlor car, 
 may lawfully demand a reasonable extra compensation of passen- 
 gers who ride in it, notwithstanding a statute limiting the sum to 
 be charged for first class passage. An advertisement by a railway 
 company from which an erroneous inference might be drawn that 
 free parlor cars would be furnished for all passengers will not 
 warrant a recovery for the removal from a parlor car of a passen- 
 ger who refused to pay extra fare, except upon a showing that he 
 was misled and sustained some loss by the advertisement, xind a 
 public announcement by a carrier stating generally that the free 
 recUning chair cars will be run upon its road, and especially that 
 they will be run to a certain point, does not warrant the inference 
 that they will be free to all passengers under all circumstances, or 
 at all, except to those taking passage to that point.' 
 
 A reasonable latitude nmst be given the carrier in regulating 
 
 KSearles v. Mann Boudoir Car Co. 45 Fed. Rep. 330. 
 
 ^Nevin v. Pullman Palace Car Co. 106 111. 222; Searles v. Mann Boudoir Car 
 
 Co. 45 Fed. liep. 330. 
 *Searlen v. Mann Boudoir Car Co. 45 Fed. liep. 330. 
 *St. Lo^uiH, A. & T. It. Co. V. U<irdy (Ark.) Nov. 21, 1891. 
 ^Maroney v. Old Colony & N. R. Co. lOG Ma.ss. 153. 
 *St. Louis, A. & T. R. Co. v. Hardy (Ark.) Nov. 21, 1891.
 
 SALE OF BEKTH OK SEATS IN SLEEi'IN«> OU I'AKLoK CAKS. 239 
 
 the makinc; up of berths, and fixing the time and order of the 
 work. Of course where special reasons, such as illness or infirm- 
 ity, call for special action, general rules must be suspended. But 
 where a passenger on a sleeping car at 8:30 P. M,, without show- 
 ing any special cause, asked that his berth be made up at once 
 and was told bj the porter that it could not be done until certain 
 lunches were served, and then angrily demanded that it be made 
 up at once, and was insultingly refused, and the berth was sub- 
 sequently made up at 9 o'clock, but the passenger refused to 
 occupy it, and sat up all night, a recovery was refused him.' 
 
 The conductor of a sleeping car may sell the use of a whole 
 section or room to one passenger, and cannot thereafter be held 
 liable to another passenger for refusing to sell him the use of an 
 empty berth in such section. A conductor of a sleeping car is 
 not under obligation to sell to a passenger a ticket for a berth 
 which is owned by another passenger until a station ahead is 
 reached, and is at liberty to sell it to another man instead, if he- 
 applies first after reaching that station.* 
 
 The regulations enforced by the sleeping car owners must be 
 such as to promote the personal comfort and safety of the passen- 
 ger, but mere neglect by directors of a railroad company to act 
 does not render them liable to indictment for the violation by the 
 corporation of a statute passed to protect the lives of passengers 
 and forbidding it to heat cars in motion by stoves, where such 
 directors have not personally participated in the commission of 
 the offense.' Care must also be taken that the regulations made 
 and enforced are such as will tend to prevent the aj)pearance of 
 any immorality in the intercourse of passengers. Thus where a 
 husband and wife separately engage berths in a sleeping car, 
 nothing occurring to indicate their relation or that they intended 
 to occupy the same berth, the refusal by the company's agents to 
 allow them to do so is not ground for an action by the husband 
 for damages.* 
 
 Where there were no seats in other cars, the raihoad company 
 
 ^Pullman Palace Car Co. v. Ehrman, 65 Miss. 383. 
 ^Searles v. Mann Boudoir Car Co. 45 Fed. Rep. 330. 
 'People V. Clark (N. Y.) 10 Ry. & Corp. L. J. 38. 
 ^Pullman Palace Car Co. v. Bales (Tex.) Dec. 2, 1890.
 
 240 DUTY TO PKOVIDE CAKS RESPONSIBILITY. 
 
 •was held liable for the ejection of a passenger who took a seat in 
 s. "Wagner car, but refused to pay the extra price therefor.' 
 
 § 74' Liability for Passengers' Loss of Property in 
 Palace or Sleeping Car. 
 
 The carrier is responsible for the conduct of, the servants 
 employed by the drawing room or sleeping car company to attend 
 to the wants of the passengers, awaken them in time to prepare 
 to leave the car, and preserve order.'' 
 
 A sleeping car company is liable for injuries to an occupant of 
 a, sleeping car by the negligence or willful misconduct of persons 
 placed in charge of the car.' But in states where the carrier 
 may by contract exempt itself from liability to passengers for 
 negligence, the purchase of a seat in a drawing room car, will not 
 in any way affect the validity of the contract.* 
 
 The porter of a sleeping or drawing room car which forms a 
 part of the train of a railroad company under a contract with its 
 owner, who sells separate tickets for privileges upon such cars, 
 and who furnishes his own servants to collect tickets and assist 
 passengers, is the servant of the railroad company, for whose acts 
 done in the performance of a contract to cany a passenger it is 
 responsible, notwithstanding an agreement which may be made 
 upon the subject between the company and the owner of the car. 
 It is no defense to a suit against a carrier to recover damages for 
 an assault committed by its servant upon a passenger, that at the 
 time the assault was committed the servant had finished the 
 temporary and particular service which he had undertaken to 
 render to the passenger, if the contract of carriage was not yet 
 performed and the duty still rested on the carrier to protect the 
 passenger from the violence of its servants. A carrier is liable 
 for an unlawful and improper act, and for the natural and legit- 
 imate consequences thereof, which is committed by its servant 
 
 ^TlK^-pe V. New York Cent. & H. B. R. Co. 76 N. Y. 402. 
 
 ^PnUman Palace Car Go. v. Smith, 79 Tex. 468; Thorpe v. New York Cent. & 
 
 II. R. R. Co. 76 N. Y. 402; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. 
 
 ed. 141; Williams v. Pullman Palace Car Co. 40 La. Ann. 87, 33 Am. & 
 
 Eng. R. Cas. 407. 
 ^Campbell v. Pullman Palace Car Co. 42 Fed. Rep. 484, 8 Ry. & Corp. L. J. 
 
 195. 
 *Ulrich V. New York Cent. <fc H. R. R. Co. 10 Cent. Rep. 478, 108 N. Y. 80.
 
 LIABILITY FOK LOSS OF PKOPERTY IN PALACE OR SLEEPING OAR. 241 
 
 towards its passenger while such servant is engaged in performing 
 a duty which the carrier owes to the passenger, no matter what 
 the motive is which incites the commission of tlie act.' 
 
 A raih'oad company is Hable for the act of a drawing room car 
 •conductor in refusing to accept a ticket agent's card of explana- 
 .tion that the bearer held a seat in the car for that trip, which had 
 lieen lost, and requiring the latter to pay again, and on his refusal 
 Toquesting him to leave the car, which he did and completed the 
 journey in a common coach, where the seat appeared in the dia- 
 ^n-am to have been sold and was claimed by no other person." 
 
 The obligation to awaken and notify a passenger in time for 
 ]iim to prepare safely and comfortably to leave the train at his 
 destination is directly involved in his contract for the use of a 
 sleeping berth. A sleeping car company is liable for the mistake 
 of its servants in awakening passengers in its car, and causing 
 them to get off at a water tank half a mile from the depot in the 
 dark and rain, where they were left by the train, when the con- 
 sequent exposure resulted in serious damage to them,' 
 
 The sleeping car company, as well as the carrier, holds itself 
 •< >ut to the world as furnishing safe and comfortable cars, and it 
 invites passengers to pay for and make use of its cars for sleeping, 
 all parties knowing that during the greater part of the night the 
 ]iassenger will be unconscious, and powerless to protect himself, 
 or to guard his property.'' He cannot, like the guest of an inn. 
 by locking the door guard against danger.* He has no right to 
 take any such steps to protect himself in a sleej^ing car, but by 
 the necessity of the case, is dependent upon the owners and offi- 
 cers of the car to guard him and the property he has with him 
 from danger from thieves and otherwise. The law raises the duty 
 on the part of the car company to afford him this protection. 
 While it is not liable as a common carrier or as an innholder, as 
 is said by some of the authorities," although it has been said that 
 
 ^DwineOe v. New York Cent. <& H. B. R. Co. 8 L. R. A. 224, 120 N. Y, 117. 
 "'Buck V. Webb, 58 Hun, 185. 
 ^Pullman Palace Car Co. v. Smith, 79 Tex. 468. 
 *I)iehlv. Woodruff {lad.) 10 Cent, L. J. 66. 
 ^Orozier v. Boston. N. T. & N. S. B. Co. 43 How. Pr. 406, 
 ^Scaling V. Pullman Palace Car Co. 24 Mo. App. 29; Boot v. New York Cent. 
 Sleeping Car Co. 28 Mo. App. 199; Pullman Palace Car Co. v, Mattheic.<!, 
 
 16
 
 242 DUTY TO PROVIDE CAKS — RESPONSIBIUTY. 
 
 in so far as it renders services similar in kind to an innkeeper, it ia- 
 subject to the same liabilities,' yet the authorities all agree that 
 it is its duty to use reasonable care to guard the passenger from 
 ]3ersonaI injury" and his proj^erty from theft, and if through want 
 of such care his person is violated or the personal ellects of a pas- 
 senger, such as he might reasonably carry with him, are stolen, 
 the conupany is liable therefor. Such a rule is required by public 
 policy and by the true interests of both the passenger and the 
 company, and the decided weight of authority supports it.' Thus it 
 is said that while a sleeping car company is not liable as a common 
 carrier or as an innholder, yet it is his duty to use reasonable care to 
 guard the passengers from theft; and if through want of such care the 
 personal effects of a passenger, such as he might reasonably carry 
 with him, are stolen, the company is liable;* and the liability is 
 not limited to the value of the articles actually necessary to the 
 passenger upon the journey, but may extend to such articles of 
 baggage as are ordinarily or usually carried by travelers in like 
 situations, in valises which thej' take with them upon the car.* 
 
 The fact that the negligence of a passenger in leaving his money 
 in the berth of a sleeping car furnished the temptation and oppor- 
 tunity to the servants of the company to take the money does not 
 release it from its obligation to use reasonable care to protect such 
 passenger against their wrongful acts.* But that it was negligent 
 
 74 Tex. 054; Whitney v. Pullman Palace Car Co. 3 New. Eng. Rep. 358, 
 143 Mass. 2AV, Lnois v. JVew York Sleeping Car Co. 3 New Eng. Hep. 358, 
 143 Mass. 267; Pullman Palace Car Co. v. Smith, 73 111. 360; We/ch v. 
 Pullman Palace Car Co. 1 Sliekl. 4i7. 16 Abb. Pr. N. S. 353; Kewh v. 
 Pull /nan Pa'ace Car C'>. 17 Chicajro Legal News, 196; Pfuelzel v. Pullman 
 Palace Car Co. 4 W. N. C. 240; Pullman Palace Car Co. v. Gai/lord {Ky.) 
 23 Am. L. Reg. N. S. 788; Pullman Palace Car Co. v. BtuJim, 109 111. 20. 
 
 * Pullman Palace Car Co. v. Lowe, 6 L. R. A. 809, 28 Neb. 239. 
 
 ^Pennsylvajiia Co. v. R^y, 102 U. S. 4r)l, 26 L. ed. 141; Williams v. Pullman 
 Palace Car Co. 40 La. Ann. 87, 33 Am. &Eng. R. Cas. 407. 
 
 *W1dtney v. Pullman Palace Car Co. 3 New Eng. Rep. 35S, 143 Mass. 243; 
 Leiris v. Neio York Sleeping Car Co. 3 New Eng. Rep. 358. 153 Mass. 167; 
 Woodruff Sleeping & P. G. Co. v. Diehl, 84 Ind. 474; Scaling v. Pullman 
 Pal'ice Car Co. 24 Mo. App. 29; Pullman Palace Car Co. v. Lowe, 6 L. R. 
 A HOD, 28 Neb. 239; Pullman Palace Car Go. v. Matthewn, 74 Tex. 654;. 
 lluot V. New York Cent. Sleeping Car Co. 28 Mo. App. 199; Pullman Pal- 
 ace Car Co. V. Gardner, 3 Pennyp 78; Pullman Palace Car Co. v. Gay- 
 lard (Ky.) 23 Am. L. Reg. N. S. 788. 
 
 *Pullman Palace Car Co. v. Matthewn, 74 Tex. 654. 
 
 ^Hampton v. Pullman Palace Car Co. 42 Mo. App. 134. 
 
 *Jioot V. Neio York Gent. Sleeping Gar Co. 28 Mo. App. 199; Pullman Palace- 
 Car Co. V. Matthews, 74 Tex. 654.
 
 LIABILITY FOK LOSS OF I'KOPJiKTY IN PALACE OK SLEEPllJti OAK. 243 
 
 for a passenger to liave the amount of money in his berth that 
 was stolen therefrom with otlier property cannot affect his right 
 to recover the value of the other property.' But it has been held 
 that the carrier is not liable where the loss was due 8im])ly to the 
 servant's negligence. For the loss of a sum of money in excess 
 of a reasonable sum for the purposes of the journey, even thougli 
 stolen by the company's servants, a sleeping car company is not 
 responsible; and leaving in one's berth, in an exposed condition, 
 without notice to the company's servants, a large sum of money 
 which could easily be carried on. his person, is, as a matter of law, 
 contributory negligence.'' 
 
 If a passenger is advised of reasonable limitations upon the 
 liability of the carrier for articles deposited in a clunk room, he 
 will be bound by the conditions. His intentional lack of infor- 
 mation on the subject, where he knows there are conditions, will 
 not excuse him.^ 
 
 In some cases it has been held, in states which permit such lim- 
 itation of liability by carriers, that the sleeping car company may 
 limit their liability by notice, and under such circumstances they 
 are not liable for clothing or money stolen from the car.* But 
 in others such notice was not held sufficient, no direct proof of 
 knowledge being made to excuse negligence.* In the absence of 
 notice the rule governing a bailee would seem to require the car 
 company to answer for negligence, as it invites the removal of the 
 traveler's clothing and effects, and in its own interest undertakes 
 to provide him with covering for comfortable repose.* Thus it 
 has been ruled that a merchant having a store in which he keeps 
 ready made cloaks for sale, who provides mirrors for use of cus- 
 tomers in trying on such cloaks, and clerks to aid in the process, 
 thereby impliedly invites customers to remove their old cloaks 
 while trying on new ones, and he is bound to exercise some care 
 over the old cloak while the customer's attention is engaged in 
 
 ^Dunn V. Mw Eaten S. B. Co. 58 Hun, 461. 
 
 ^Root V. New York Gent. Sleeping Car Co. 28 Mo. App. 199. 
 
 ^Watkins v. Ryinill, L. R. 10 Q. B. Div. 178. See also Burke v. South East- 
 ern Co. 49 L. J. C. P. 107, L. R. 5 C. P. Div. 1. 
 
 *PuUman Palace Car Co. v. Smith, 73 111. 360; Welch v. Pullman Palace Car 
 Co. Hi Abb. Pr. N. S. 352. 
 
 ^Lewis V. New Fork Sleeping Car Co. 8 New Eng. Rep. 358, 143 Mass. 267. 
 
 *Blum V. Southern Pullman Palace Car Co. 3 Cent. L. J. 591, 592.
 
 i}4r-t DUTY TO PROVIDE OAKS ^KESPONSIBILITY. 
 
 looking at the new one, and where snch merchant, whose duty it 
 is to exercise some care over the old cloak of a customer, which 
 has been removed for the purpose of trying on a new one, while 
 the customer's attention is engaged with the new cloak, provides 
 no place where the old cloak can be left, fails to notify the cus- 
 tomer to look out for it and makes no rules requiring employes 
 after seeing it placed on a counter to keep watch of it, he is liable 
 to the customer for its value if it is lost.' 
 
 Carjmiter v. New York, N'. II. & II B. Go. 11 L. R A. 759, 124 
 N^. Y. 53, was an appeal from an order of the general term of the 
 court of common pleas in the city of New York, reversing a judg- 
 ment of the general term of the city court, which affirmed a judg- 
 ment dismissing the complaint on the merits, with costs, entered on 
 an order at the trial term. The defendant, a railroad corporation,!? 
 a carrier of passengers over its line between the cities of New York 
 and Boston, and runs sleeping cars, with the usual accommoda- 
 tions. July 6, 18S5, the plaintiff paid his fare, and $1.50 for a 
 berth from New York to Boston, and took passage on a train that 
 left the Grand Central station at half past 10 o'clock in the eve- 
 ning. He was assigned the lower berth in section 10 of the sleep- 
 ing car "Boston," and went immediately to bed. A colored por- 
 ler was in charge of the car, to whom the plaintiff gave his pas- 
 sage and sleeping car tickets. He testified that he undressed and 
 placed his pocket book, containing $10 in money, in his inside vest 
 pocket, and then placed that garment under the pillow next to the 
 window. He slept soundly and without waking until about 6 
 o'clock in the morning when the train was near Boston. Seeking 
 his vest, he found it under the pillow next to the passageway, 
 with his pocket book in the pocket, but the money had been sto- 
 len. His watch, which was in another pocket of the garment, and 
 about $3 in silver, in a third pocket, were not taken. When the 
 plaintiff went to bed the berth over him was occupied by a stran- 
 ger, but it was unoccupied when he got up. On discovering his 
 loss, he called the porter, and acquainted him with the fact. It 
 was ruled that the mere proof of the loss of money by a passenger 
 vvhile occupying a berth does not make out a prima facie case, 
 .ind, to sustain a recovery, some evidence of negligence on the 
 
 ^Bunnell v. Stern. 10 L. R. A. 481. 122 N. Y. 539.
 
 LIABILITY FOK LOSS OF PKOPERXy IJSf PALACE OK SLEEPING CAR. 245 
 
 part of the defendant must be given. In that case the negligence 
 complained of is that none of the defendant's employes were con- 
 tinually on guard in the car in a position to observe the move- 
 ments of all persons in the passageway between the sections. It 
 is said that a corpoi-ation engaged in running sleeping coaches, 
 with sections separated from the aisle only by curtains, is boun<l 
 to have an employe charged with the duty of carefully and con- 
 tinually watching the interior of the car while berths are occupied 
 by sleepers.' These cars are used by both sexes, of all ages, by 
 the ex])erienced and inexperienced, by the honest and dishonest, 
 which is understood by the carriers; and though such companies 
 are not insurers they must exercise vigilance to protect their sleep- 
 ing customers from robbery. A traveler who pays for a berth is 
 invited and has a right to sleep, and both parties to the contract 
 know that he is to become powerless to defend his property from 
 thieves, or his person from insult, and the company is bound to 
 use a degree of care commensurate with the danger to which pas- 
 sengers are exposed. Considering the compensation received for 
 such services, and the hazards to which unguarded and sleeping- 
 travelers are exposed, the rule of diligence above declared is held 
 not too onerous. Ui3on the issue whether the plaintiff gave evi- 
 dence which would have authorized the jury to have found that 
 the defendant did not discharge this duty to the plaintiff, it is said 
 that the car in which the plaintiff rode was constructed with a 
 passageway through the centre, with sections on each side, eacli 
 section containing two berths. These sections were separated from 
 each other by movable wooden partitions, and from the aisle hx 
 two curtains, which were closed when a berth was occupied. At 
 (nie end of the car was a toilet for ladies, shut off from the pas- 
 sageway by a swinging door. On one side of the other end of 
 the car was a toilet for gentlemen, opposite to which was the por- 
 ter's closet. A full view of the main aisle could not be had from 
 all parts of the space at the end last described. The train stopped 
 at eight cities, to take up and set down passengers, staying at Ne^' 
 Haven twelve minutes, and at Springfield four. The undisputed 
 evidence is that the entire force employed on the sleeper, whicli 
 ran over an important thoroughfare, and made frequent stops. 
 ^Full/nan Palace Car Co. v. Qardiicr, 3 Pennyp. 78.
 
 J 
 
 24:6 DUTY TO PBOVIDE CARS — KESPONSIBILITY. 
 
 was one man, who acted as conductor, as porter, and was also en- 
 gaged for his own profit in blacking the shoes of the passengers. 
 Whether this employe had that part of the sleeper which is for 
 the common use of passengers and the servants of the corporation 
 constantly in view during the trip is not shown by the evidence 
 except inferentially. The fact hereinbefore referred to — that the 
 car ran over an important route, through and stopping at eight 
 considerable cities; that but one person was employed on the car; 
 the services rendered by him for the defendant, and those which 
 he was at least permitted to render to passengers for his own profit, 
 — aflirmatively appear, and, in addition, it may well be presumed 
 that he assisted passengers in entering and leaving the coach at 
 intermediate stations. The existence of these facts was not de- 
 nied, nor was any explanation of them offered. The defendant 
 tj-ave no evidence. Under the circumstances the evidence was 
 considered sufficient to put the defendant to proof of the care 
 which it took of the occupants of the sleeper on this trip, and, in 
 the absence of any explanation on its part, it was suflicient to 
 require the question whether the loss was caused by the defend- 
 ant's negligence to be submitted to tlie jury. 
 
 The order was affirmed, and judgment absolute was rendered 
 against the carrier. 
 
 In the case already cited, the fact that the money of two pas- 
 sengers was taken from their clothing in the berths and that the 
 sleeping car porter was found asleep in the early morning and that 
 iie was required to be on duty for tliii-ty-six hours continuously, 
 which included two nights, was held to be evidence of negligence 
 sufficient to go to the jury.' 
 
 ^Lewia v. New I'oik tileepmy Car Vo. 3 iS^ew En^j. Kcp. 35a, 143 iMass. 267.
 
 CHAPTER XIII. 
 
 TRANSPORTATION UPON OTHER THAN PASSENGER TRAINS. 
 
 ^§ 75. Carrying Passengers upon Freight, Mixed or Construction 
 
 . Trains. 
 .:^ 7G. Traveling on Freight Train or Baggage Car with Knowledge of 
 
 Conductor. 
 g 77. Eemoval of Traveler from Freight Train, 
 % 78. Stopping Freight Train at Stations. 
 
 .^ 76. Carrying Passengers upon Freight, Mixed 
 or Construction Trains. 
 
 In many of the states legislation has been had in regard to rail- 
 i-oads, which either in terms re-enacts the rule at common law, or 
 to which the courts in its practical application give this effect. 
 Where extra accommodations for passengers are furnislied, invit- 
 ing them to travel in a caboose attached to a freight train, the 
 statutory exemption against liability for injury to passengers on a 
 freight train cannot avail the company, but the damages should 
 not be as much for an injury to a passenger by a sudden jerk of 
 the train when attempting to get off as for a similar injury occa- 
 .sioned by the same negligence on a passenger train.' 
 
 If the business done by a railroad company is so small as not to 
 warrant the running of separate trains for freight and passengers, 
 it will not be required to do so; but if it is sutHciently large and 
 profitable to warrant it, and the safety of the passengers is endan- 
 gered or diminished by having the passenger coaches mixed in 
 the same train with the freight cars, it is the duty of the company 
 to run separate trains, Mansf. (Ark.) Dig. § 5iTT, requires that 
 in the formation of mixed trains, baggage and freight cars shall 
 be placed in front of passenger coaches; but bell-pulls and air 
 brakes are not required to be used on mixed trains unless it is 
 practicable and they are necessary to the security of the passen- 
 gers.'' 
 
 ^Eebcr v. Bend, 88 Fed. Rep. 823. 
 
 * Arkansas M. li. Co. v. Canman, 52 Ark. 517. 
 
 247
 
 24:8 TKAN8P0RTATI0N UPON OTHEK THAN PASSENGEK TEAIN8. 
 
 Hailroads running passenger trains are not bound to carry pas- 
 sengers on freight trains;' and the rule that passengers shall be^ 
 allowed to travel on such trains only upon a written permit from 
 the superintendent or assistant superintendent in charge of the- 
 district, is a reasonable one.' A railway company allowed pas- 
 sengers to ride on way freight trains, under a rule that "passen- 
 gers will not be carried on any way trains unless they are provided 
 with tickets. Way freights will not stop at stations where tickets 
 are not sold to receive nor to let off passengers." This was a. 
 reasonable rule.' 
 
 A contract between a railroad and a constraction company,, 
 allowing the latter company to operate the road and receive its 
 earnings for a certain time, does not relieve the railroad company 
 from liability for the negligence of the construction company in 
 carrying passengers.* But the liability which a construction com- 
 pany assumes, or which a railroad is chargeable with on its behalf 
 will depend somewhat upon the circumstances. Wliere the rail- 
 road company substitutes a construction company in its own place 
 to discharge its duty to the pubHc, the responsibility of the rail- 
 road corporation will of course be much greater than will be the 
 liability of a construction company, when in the progress of its 
 work, it consents, as a matter of public convenience, to transport 
 persons willing to accept of such accommodations as the building 
 company is able to offer. It does not hold itseK out as capable of 
 carrying passengers with the same safety that regular passenger 
 trains profess. It has no arrangements for passenger service, and 
 it is not required to make provisions for the protection of the road 
 such as are usually adopted and exacted of railroad companies. 
 It does not own the road and has no interest beyond its construc- 
 tion. It is not its duty to fence the road or cut away bushes or 
 overhanging trees or to adopt for its cars the air brakes and bell- 
 pulls and other devices to secure as far as possible absolute safety. 
 
 ^Illinois Cent. R. Co. v. Nehon, 59 111. 110; Murch v. Concord R. Corp. 29' 
 
 N. II. 9. 
 "^Thomas v. Chwigo & O. T.R. Co. 73 Mich. 355. 
 *Lake Slwre & M 8. R. Co. v. Greenwood, 79 Pa. 873; Tndinnnpolis <6 St. L. 
 
 R Co. V. Kenitedq, 77 Ind. 507, 3 Am. & En<,^ K. Cfi>» 4h7; Fnlkim- v. 
 
 Ohio & M. H. Co. 55 Iiid. 309, 16 Am. Ry. Hep. 202; Hi. Louis & H. R K 
 
 Co. V. Myrtle, 51 Iiul. 506. 
 *Cluittanooga, R. cfc C. R. Co. v. Liddell, 85 Ga. 482.
 
 CARBYINO PA8SEKGER8 UPON FREIGHT TRAINS. 2J:l>' 
 
 All that a passenger under such circumstances can reasonably 
 exact, is the exercise of such care and skill in the management 
 and running of the train as prudent and cautious men, experi- 
 enced in that business, are accustomed to use under similar cir- 
 cumstances. Such care implies a watchful attention to the work- 
 ing of the locomotive and machinery, the cars and their running- 
 gear, and an unfailing lookout at the condition of the roadbed.' 
 
 So where a train is a special one, running for the particular pur- 
 poses of the road, and not for the convenience of the travelings 
 public, for whom trains were provided only on week days, the 
 railroad is under no obligation to receive or transport passengers 
 upon it. It is its privilege to do so, however; and if it does 
 receive a person on its special train as a passenger for the purpose 
 of being transported from one place to another, it assumes towards 
 him the same duties as if he had been a passenger traveling on 
 the same train on its regular trips; the passenger assuming no 
 risks on this trip other than on a regular one, except such as were 
 necessarily incident to the character of the train, and the purposes 
 for which it was being run.^ 
 
 The same rule applies to freight trains accepting passengers, 
 modified by the circumstances under which the service is under- 
 taken. Carriers are not bound to adopt on freight or mixed 
 trains all the appliances wdiich they use on passenger trains, but 
 are required merely to use the highest degree of care consistent 
 with the practical operation of such trains.^ Failure of a mixed 
 train operated as a way freight and passenger accommodation 
 combined, to have a bell rope, is not sufficient to show negligence,^ 
 in the absence of other evidence.* 
 
 But a railroad company that has for years been in the habit of 
 carrying passengers on one of its local freight trains is required 
 to exercise the highest possible degree of care and diligence of 
 which such trains are susceptible. AVhere the caboose usually 
 attached to a freight train habitually used for passengers is in 
 the repair shop, and a common box car, with temporary rude 
 
 ^Shoemaker v. Kingsbury, 79 U. S. 12 Wall. 369, 20 L. ed. 43'3. 
 
 *McOee v. Missouri Pac. R. Co. 10 Wfst. Ri p. 2S2, 92 Mo. 208; Wagner v. 
 
 Missouri Pac. R. Co. 3 L. R. A. 156, 97 Mo. 512. 
 ^Oviatt V. Dakota Cent. R. Co. 43 Minn. 300. 
 *Arkan8aa M. R. Co. v. Canman, 52 Ark. 517.
 
 250 TBANSPOKTATION UPON OTHER THAN PAS8P;NGEB TBAINS. 
 
 seats, is substituted to accommodate passengers, and the use of 
 such box car is more dangerous, the degree of care de- 
 manded on the part of the company is thereby increased.' 
 A railroad company carrying passengers on its freight trains owes 
 them the same degree of care as when tliey are on the regular 
 trains except that in taking the freight train they accept and 
 travel on it acquiescing in the usual incidents and conduct of a 
 freight train managed by competent and prudent men.* And 
 the same rule applies to passengers carried on construction trains, 
 as qualified above/ 
 
 A person taking a cattle train, the same as a person taking any 
 other kind of a train, is entitled to the highest possible degree of 
 care and diligence, reasonably consistent with the business of the 
 carrier, and the means of conveyance employed." While it is 
 true that one taking passage upon a freight train assumes the 
 increased risk incident to its operation and management, yet when 
 the company accej)ts him as a passenger on such train it becomes 
 bound by all the obligations of a common carrier of passengers 
 upon a legular passenger train. ^ 
 
 Whether a railroad company is guilty of negligence in running 
 a freight train at the rate of 40 miles an hour, notwithstanding its 
 track is in a good and safe condition and its cars properly 
 equipped, will depend upon the particular circumstances, — as, the 
 size of the train, the manner of loading the cars, the dangers of 
 collisions, and the like.^ A rule of a railroad company that the 
 speed of freight trains must not exceed 15 miles per hour, exclus- 
 ive of stops, except in cases where schedules are run faster than 
 15 miles an hour, means that no more than 15 miles shall be run 
 in an hour of actual running time, and not that at no time within 
 the hour shall the highest speed exceed 15 miles an hour.^ 
 'Mis'^ouri Pnc. R. Go. v. Holcomb, 44 Kan. 332. 
 
 *McGee v. Missouri Pnc. R. Co. 10 West. Rep. 282, 92 Mo. 208; WooteTy v. 
 Louumlle, N. A. & G. R. Go. 5 West. Rep. 667, 107 Ind. 381; 27 Ara. & 
 Eiig R. Cas. 213, Indianapolis & St. L.R. Co. \. Hoi at. 93 U. S. 291, 23 
 L. ed. b98. 
 *Ohw & M. R. Co. V. Muhling, 30 111. 9. 
 
 *lNdiatuipolia & St. L. R. Co. v. Ilorsl, 93 U. S. 291, 23 L. ed. 898. 
 ^reiiiMjlvania Co. v. Newmnjer (Ind.) Oct. 28. 1891; Wookry v. Lowmlle, 
 N. A. & C. It. Go. 5 West. Rep. 667, 107 Ind. 381; Fibher v. Southern 
 I'ac. R. Co. 89 Cal. 399. 
 *PennHylvani(t Co. y. Newmeyer (LnA.) Oct. 28, 1891. 
 -> Sutherland v. Troy & 11 R. Go. 28 N. Y. S. R. 201.
 
 OAKRYING PASSENGERS UPON FREIGHT TRAINS. 251 
 
 One who voluntarily takes passage on a freight train, and re- 
 ceives an injury caused by a jolt or jar such as is usual and neces- 
 >ary in coupling cars, cannot recover damages for such injury.' 
 [>ut a railroad company admitting passengers to a freight train is 
 liable for an injury occurring to thorn from negligence in the maii- 
 awment of such a train, without coutributorv nesliirence on the 
 part of the passengers, to the same extent as if they were on a 
 passenger train.^ A passenger in charge of horses upon a stock 
 train, who is informed by the conductor that the train will remain 
 at a certain place for a specified time long enough for him to 
 (•btain a meal, and that he must thereafter ride in the car with 
 rhe horses, has a right to assume that he may safely enter the car 
 iit any place at which he fl'hds it within the time named.* But it 
 ij=; also true that one who takes passage on a freight train knowing 
 tlie risks and inconvenience incident thereto, must exercise more 
 care for his personal safety than would be required of him upon 
 <»rdinary passenger trains; and in an action for injury received by 
 liim, proof that he was thrown down and received injuries by the 
 >uddeii starting or jerking of the train, when other passengers, 
 keeping their seats, were not injured, should be submitted to the 
 jury on the question of contributory negligence.* And even 
 though the carrier because of the character of its train may not be 
 responsible for the extraordinary care common carriers of passen- 
 gers are required to exercise, still it would under all circumstances 
 he liable for failure to exercise slight or ordinary care if such 
 iiogligence cause injury to a passenger without his fault.* 
 
 Men making up a construction train, engaged in building a rail- 
 road which crosses another, are not relieved from liability for 
 negligence in leaving one end of a car projecting over the other 
 Track, because no train is due according to schedule time on the 
 other road, where a train running under special order comes into 
 collision with such car.' 
 
 ^Crine v. East Tennessee, V. & G. R. Co. 84 Ga. 651. 
 
 '■New York, 0. & St.L. R. Co. v. Doam, 1 L. R. A. 157, 115 Ind. 435. 
 
 ^PitcJier V. Lake Shore d M. S. li. Co. 40 N. Y. S. R. 89(5. 
 
 * Wallace v. Western N. C. R. Co. 98 N. C. 494. 
 
 ''Shoemaker v. Kinfishiiry, 79 U. S. 12 Wall. 3C9, 20 L. ed. 433; St. Joseph <fe 
 W. R. Co. V. Wlieekr, 35 Kan. 185, 188. 
 
 * Albert v. Sweet. 116 N. Y. 303.
 
 252 TKAJS'SPOBTATIOJSr UPON OTHER THAN PASSENGEK TRAINS. 
 
 § 76. Traveling on Fi^eight Train or Baggage 
 Car with Knowledge of Conductor. 
 
 Persons are not presumed to have knowledge of rules prohibit- 
 ing theu" presence on freight trains,' nor that tickets must be pm- 
 chased before entrance to car;" but payment of fare will be pre- 
 sumed.* A passenger allowed to ride on a special train, who has 
 no notice of any want of authority to grant the permission, whether 
 he pays fare or not, in the absence of collusion between him and 
 the conductor to defraud the company of its fare, becomes a pas- 
 senger, and, as such, is entitled to have the train on which he 
 travels managed with the care that is due from a common carrier 
 to passengers on a train of that character.* 
 
 A person riding on a railroad without paying fare, by permis- 
 sion of the conductor, is not a trespasser, though the train is not 
 intended and operated for the carriage of passengers, and though 
 the conductor has no authority to permit such person to ride.' 
 The corporation selects and employs its servants and it should be 
 responsible for their conduct while in its employ.* It has been 
 held that one who is on a freight train, with the knowledge 
 and consent of the agent having charge of it, cannot be said to be 
 there wrongfully, although he had knowledge that he was on the 
 train in violation of the rules of the company; and the company owes 
 him a duty although he is there against the rules of the company. 
 The permission of tlie conductor of a freight train having entire 
 charge tliereof, to ride on such train, although he was forbidden 
 to carry passengers on that train, and although the pereon per- 
 mitted to ride was not required to pay fare, is within the scope of 
 
 Wunn V. Grand Trunk R. Co. 58 Me. 187. 
 
 ^Brown v. Kansas City, Ft. S. & O. R. Co. 38 Kan. 634. 
 
 ^Louisville, N. A. & C. R. Co. v. Thompson, 5 West. Rep. 938, 107 Ind. 442. 
 
 *Wa(iner v. Missouri Pac. R Co. 3 L. R. A. 155, 97 Mo. 512; Creed v. Peiw- 
 
 sijliania R. Co. 86 Pa. 139; St. Joseph & W. R. Co. v. Wheeter, 35 Kan. 
 
 Ib5; Dunn v. Grand Trunk R. Co. 58 Me. 187; Wilton v. Middlesex R. 
 
 Co. ]U7 Mass. 108; Ohio & M. R. Co. v. Mulding, 30 lil. 9; Sherman v. 
 
 Uannibal & St. J. R. Co. 72 Mo. 63; Mtiehlhausen v. St. Louis R. Co. 6 
 
 West. Rep. 857. 91 Mo. 344; Jacobus v. St. Paul & C. R. Co. 20 Minn. 
 
 125 (Gil. 110). 
 ^Alabama G. 8. R. Co. v. Tarbrough, 83 Ala. 238. 
 ^Duan V. Grand Trunk R. Co. 5S Me. 187, 192; Creed v. Pennsylvania R. 
 
 Co. m Pa. l;J9; East Saginaw City R. Co. v. Bohn, 27 Mich. 503; Wilt<yn v. 
 
 Middlesex R. Co. 107 Mass. lO^f, 125 Mass. 130; Lucas v. Milwaukee & St. 
 
 P. R. Co. 33 Wis. 41; Washburn v. Nashville & C. R. Co. 3 Head, 038.
 
 TBAVELING ON FREIGHT TRAIN OR BAGGAGE CAB. 253 
 
 the conductor's authority, so far as to render the company liable 
 for an injury resulting from lack of ordinary care on the part of 
 the employes of the company.' The correct rule seems to be 
 rliat where a person knowing the rules to forbid such action gets 
 upon a freight train, even with the assent of the conductor, and 
 pays no fare, he cannot be regarded as a passenger." The true 
 I'ule in such a case is that where one fraudulently induces an 
 agent of the company to disregard his duty, and permit him to 
 ride free, he is not a passenger in the strict legal sense of the word." 
 If a v;onductor of a freight train tells a person, before he gets on, 
 that he is not authorized or permitted to carry passengers, and 
 >till such person enters the car, with or without the knowledge and 
 consent of the conductor, he is not a lawful passenger, and cannot 
 recover as such, against the company, for an injury sustained 
 while riding on the train. A conductor cannot relax regulations 
 of a railroad company prohibiting passengers from riding on 
 freight trains, without consent of the company, so as to render the 
 latter liable as a carrier to a j^assenger, to one injured while riding 
 on a freight train knowino- the rule.* 
 
 An express rule of a railroad company forbidding the carrying 
 ( »f passengers upon a freight or construction train, except under 
 •special circumstances, is not to be construed as being limited to 
 passengers for hire.* An express agreement in a mileage ticket 
 will not be affected by a subsequent advertisement announcing 
 rhe passengers " with tickets " might ride on freight trains." A 
 brakeman employed on a freight train in charge of a conductor 
 has no implied authority to bind the company by a contract of 
 passage; and his permission to a person to ride does not make such 
 a person a passenger.' But a passenger going on a freight train 
 and taking a seat in the cab of locomotive, by the direction of the 
 engineer, is not, by so doing, guilty of contributory negligence. 
 
 ' Whitehead v. St. Louis, I. M. & S. R. Co. 6 L, R. A. 409. 99 Mo. 263. 
 *IIouston & T. C. R. Go. v. Moore, 49 Tex. 31, 30 Am. Rep. 98; Eaton v 
 
 Delaware, L. (fe W. R. Co. 57 N. Y. 383. 
 ^ToUdo, W. & W. R. Co. V. Brooks, 81 111. 245. 
 *Gulf, C. & a. F. R. Co. V. Campbell, 76 Tex. 174, 41 Am. & Eng. R. Cas. 
 
 100. 
 ^Powers V. Boston & M. R. Co. 153 Mass. 188. 
 ^Durdap v. Northern Pac. R. Co. 35 Minn. 203. 
 ""Candiffy. Louisville, N. 0. & T. R. Co. 42 La. Ann. 477.
 
 254: TRANSPOfiTATION UPON OTHER THAN PASSENGER TRAINS. 
 
 He is entitled to the protection of a passenger, although the officer 
 was forbidden to receive passengers on such trains.' The act of 
 a servant of a railway company in inviting a passenger to ride on 
 a handcar, cannot be assumed to be the company's act unless the 
 servant's authority to thus use the handcar is shown." But in an 
 action for personal injuries sustained by a passenger while riding 
 on a handcar, evidence that the train master who authorized 
 plaintiff to ride on the car was the representative of the com- 
 pany on that part of the road in respect to all matters connected 
 with the use of the road, cars of all kinds, and the services of its 
 emj^loyes, is sufficient to justify a finding that the train master 
 had authority to use the hand car for transporting passengers.' 
 
 A passenger on a railroad train, who in ignorance of a rule 
 requiring the employes on the train to prevent passengers riding 
 in baggage cars, goes into and is allowed to ride in a baggage 
 compartment of a combination car upon finding himself unable to 
 obtain a seat in the smoking compartment of such car, and who 
 has frequently been permitted to ride in the baggage compart- 
 ment, is not guilty of negligence, even though his presence there 
 contributes to injuries received in a collision which occurs.* 
 Where plaintiff was directed by defendant's agent, whose duty 
 it was to direct passengers, to take passage on a freight train, he 
 became a passenger, notwithstanding a rule of the company, un- 
 known to plaintiff, forbidding passengers to ride upon that train.* 
 One who boards a freight car being loaded, with permission of 
 the conductor, is not a trespasser; nor is he guilty of conti-ibutory 
 negligence, unless he does so with knowledge that the conductor 
 is exceeding his authority.' WJiere the train was one on which 
 the passengers were allowed to be carried, even if the person 
 injured had boarded it without the permission or knowledge of 
 the conductor, yet where the conductor, after he became aware 
 of his presence on the train, suffered him to remain, he was enti- 
 
 ^Uanfton v. Mansfield R. & Transp. Co. 38 La. Ann. 111. 
 ^ III er national & O. N. B. Co. v. Cook, 98 Tex. 713. 
 Uidar national & O. N. R. Co. v. Prince, 77 Tex, 560. 
 *New York, L. K. & \V. Co. v. Ball, 53 N. J. L. 283. 
 ^McQee v. MinHouri Pac. B. Co. 10 West. Rep. 283, 93 Mo. 208. 
 "Alabama 0. S. B. Co. v. Yarbrough, 83 Ala. 238.
 
 TEAVELING ON FKEIGHT TKAIN OK BAGGAGE CAR. 255 
 
 tied to the same protection as if he had paid his fare.' This mle 
 applies to carriage on freiglit and construction trains.' It was 
 applied by the Supreme Court of the United States to a case 
 where plaintiff was injured while riding on the locomotive.' 
 
 It is not important in determining the question of recovery 
 for want of ordinary care, that tlie person complaining of injury 
 through the carrier's negligence, did not take passage as an ordi- 
 nary passenger, or that he paid no fare,* nor whether the plaintiff 
 stood in the proper relation to the defendant of a passenger to- 
 ward whom it owed the peculiar duty which grows out of such 
 relation.' But a person who has purchased no ticket and paid no 
 fare, who goes to a caboose attached to a freight tmin, and, with- 
 out the knowledge of those in charge of such train, attempts to 
 get into said car at a place where the railroad company is not ac- 
 customed to receive passengers, is not a passenger; and if he is 
 injured in such attempt to board the train, and those in cliai-ge of 
 it have no knowledge of his presence, the company is not liable 
 for the injury.* 
 
 A person who by a tip or bribe induces the conductor of a train 
 not intended for the conveyance of ordinary passengers, as he had 
 reason to know, to permit him to travel on the train contrary to 
 the regulations of the railway company, travels at his own risk, 
 and is not entitled to damages for any injury to person or prop- 
 erty sustained by him while so traveling.'' A railway company 
 <jwes no duty to an intruder upon one of its timber trains upon 
 which passengers are not carried, except not to wantonly or will- 
 fully injure him, and is not liable for personal injuries sustained 
 by him by the negligence of its employes.* One who undertakes 
 
 ^MueMhausen v. St. Louis R. Co. 6 West. Rep. 857, 91 Mo. 344. 
 *Shermi>i v. ILinnihal & St. J. B. Go. 73 Mo. 65; Ohio & M. R Co v 
 Muhiing, 30 111. 9; St. Joseph & W. E. Co. v. Wheeler, 85 Kan. ItiS. 
 
 * Philadelphia <& B. B. Co. v. Derby. 55 U. S. 14 How. 468 14 L. ed. 503. 
 *Jacobus V. St. Paul iir C. B. Co. 20 Minn. 125. 
 
 * Creed v. Pennsylvania, B. Co. 86 Pa. 139; Secord v. St. Paul, M & M. R. 
 
 Co. 18 Fed. Rep, 221; lAicas v. Milwattkee & St. P. B. Co. 33 Wis. 41; 
 
 Wilton V. Middlesex B. Co. 107 Mass. 108; Oradin v. St. Paul & D. B. 
 
 Co. 30 Minn. 217. 
 ^Raase v. Oregon B. & Nav. Co. 19 Or. 354. 
 ^Canadian Pac. R. Co. v. Johnson, Montreal L, Rep. 6 Q. B. 213; Powers v. 
 
 Boston & M. B. Co. 153 Mass. 188. 
 ^Illinois Cent. B. Co. v. Meacham (Tenn.) April Term, 1893.
 
 256 TRANSPORTATION UPON OTHER THAN PASSENGER TRAINS. 
 
 to ride on an elevator, or platform car, used in lowering or raising 
 freight, on an inclined track between a railroad depot and the 
 water's edge, without consent of the railroad company, is not a 
 passenger, but a mere stranger or trespasser, for whose death in 
 consequence of the sudden breaking of the rope by which the car 
 is operated, the railroad company is not liable.' 
 
 § 77. ReDioval of Traveler from Freight Ti^ain. 
 
 A carrier has a right to make such reasonable rules and regula- 
 tions as will tend to the better protection of its patrons and to the 
 greater convenience of itself; and the rule that requires them to 
 procure tickets before taking passage upon freight trains, or be 
 expelled therefrom is reasonable.'' A railroad company which has 
 made and published a rule for a reasonable time, sufficient to cre- 
 ate a presumption of knowledge by the passenger, prohibiting all 
 persons from riding on its freight trains has the right to eject 
 persons coming upon such trains, even though the rule has often 
 before been violated.' The carrier may completely sever his busi- 
 ness of passenger from that of freight transportation, and require 
 the traffic to be on different trains.* 
 
 A single instance of fare having been accepted by a conductor 
 in violation of this rule will not justify a person in disregarding 
 it.' A passenger who knowingly disregards the rule of requiring 
 tickets to be purchased before taking passage upon a freight 
 train is upon the same footing with one who refuses to pay fare, 
 .and may be expelled at any regular station.' ^ov can he recover 
 
 ^Snyder v. Natchez R. R. & T. R. Co. 43 La. Ann. 302. 
 
 ^Burlington & M. R. R. Co. v. Rose, 11 Neb. 177; Brown v, Kansas City, 
 F(. 8. & O. R. Co. '68 Kan. 634; Indianapolis & St. L. R. Co. v. 
 Kernudy, 77 Ind. 507; Chicago <& A. R. Co. v. Flagg, 43 111. 864; 
 Ariiokl V. I/linois Cent. R. Co. 83 111. 273; Eaton v. Delaware, L. & W. 
 R. to. 57 N. Y. 383 15 Am. Rep. 513; Cleveland, C. & C. R. Co. v. Bar- 
 train. 11 Ohio St. 4'>7; Law v. Illinois Cent. R. Co. 33 Iowa, 534; Pitts- 
 burgh, a & St. L. R. Co. V. Vandyne, 57 Ind. 576. 
 
 *IIo'>bs V. Texas & P. R. Co. 49 Ark. 357; Burlington & M. R. R. Co. v. Rose, 
 11 Neb. 177. 
 
 *Eat"n V. Delaware, L. & W. R. Co. 57 N. Y. 382; TJumaa v. Chicago <fe O. 
 T. R. Co. 72 Mich. 355. 
 
 ^Southern Kansas R. Co. v. Ilinsdale, 88 Kan. 607. 
 
 *Chioujo & A. R. Co. V. Flagg, 43 111. 364; lUinoii Cent. R. Co. v. Nelson, 59 
 ill. 110.
 
 RKMOVAI. OK TKAVKl.KK KK( <M FKKIOHT TKAIN. 257 
 
 as a passenger for injurv l)y a wi-eek of the train.' But it is no 
 defense in favor of a railroad company wrongfully ejectino; a pas- 
 senger, that the train from which he was expelled was a freight 
 train, where it was a train on which passengers were customarily 
 carried and invited to travel.' And it must answer for injury to 
 such a passenger.' A passenger is " not supposed to know of a 
 regulation by the railroad com pan}', except on special trains, as 
 coal cars,* that passengers riding on freight trains must procure 
 tickets before starting; and if he gets on the train in ignorance of 
 such a regulation, he is not a trespasser until he is informed there- 
 of.* And mere posting of a notice of a charnge in the regula- 
 tions to this effect is not notice to the passenger." But an an- 
 nouncement, in the caboose of a freight train, before the train 
 starts, that all persons that desire to ride upon the train nmst 
 procure tickets before it starts, is sufficient notice of the rule of 
 the company, and will justify the ex]>ulsion from the train of a 
 passenger refusing to buy his ticket.' But when a ticket has been 
 sold with the statement tliat it entitled the liolder to a passage on 
 tlie train, his removal must be answered for in punitory dam- 
 ages.' Unless special circumstances ci-eate a presumption that one 
 injured on a freight train was legally there, no presumption, that 
 he is a passenger, arises, but the reverse." But no legal presump- 
 tion of negligence of the injured person is created by his presence 
 ijii the train.'" 
 
 The extra care and expense of managing a freight train on 
 which passengers are permitted, is held sufficient to sustain a con- 
 tract limiting liabHity." 
 
 A statute providing that railroad companies shall eject persons 
 
 'Houston & T.,C. R. Co. v. Moore, 49 Tex. 31 
 •^Eddy V. Rider, 79 Tex. 53. 
 
 ^Secord v. St. Paul, M. & M. R. Co. 18 Fed. Rep. 221. 
 *Powers V. Boston & M. R. Co. 153 Mass. 188. 
 ^ Brown v. Kansas City, Ft. S. & G. R. Co. 38 Kan. 63. 
 ''Lake Shore & M. S. R. Co. v. Greenwood, 79 Pa. 373. 
 'Southern Kansas R. Co. v. Hinsdale. 38 Kan. 507. 
 ^Kansas Poc. R. Co. v. Kesskr, 18 Kan. 523. 
 ^Eiiton V. Delaware, L. & IV'. R. Co. 57 N. Y. 382. 
 'Kh-eed v. Pennsylvania R. Co. 86 Pa. 139. 
 
 ^'Arnold v. Illinois Cent. R. Co. 83 111. 273; Johnson v. Great .ST. <& W. R. Co. 
 9 Ir. C. L. Rep. 708. 
 
 IT
 
 258 TRAXSrOKTATIOX UPON OTHER THAN PASSENGER TRAINS. 
 
 from their trains at stations only, is restricted to passengers refus- 
 ing to pay their fare; and a trespasser on a freight train, in viola- 
 tion of a pubhshed rule, may be ejected at another place.' It i& 
 not an unreasonable regulation for a railroad company to require 
 passengers to get upon a coach attached to a freight train at some 
 reasonable and safe point other than the station or platform froiu 
 which passengers usually enter passenger cars.' 
 
 § 78. Stopjjing Freight Train at Stations. 
 
 The law, even to protect intelHgent beings from injury, is not 
 um'easonable in its demands. It does not require freight trains, 
 because a caboose car is attached, where regular passenger trains, 
 with all proper conveniences and aj^pliances are also run upon the 
 road, to draw up at a passenger station platform, and then receive 
 the passengers who choose to travel upon the train, nor does it 
 require the same conveniences to be provided for receiving pas- 
 sengers or for their discharge. It is held that the regulation of a 
 railroad company that passengers on a freight train cannot reqtiire 
 the passenger coach attached to the train to be pulled up to the 
 platform at a station for the purpose of getting off and on, is rea-^ 
 sonable.' In Iowa, however, on July 10, 1891, the state railroad 
 commission rendered a decision against the company in the case 
 of Sehna v. The Chicago, Rock Island & Pacific R. Co., because 
 the railroad did not stop its freight trains so the caboose would be 
 at the depot platform. The attorney for the Rock Island coii-^ 
 tended that the company did not have to stopjts freights under 
 regulations governing the stoppage of passenger trains. The 
 commission disagreed and has made an order compelling the 
 company under penalty to stop the cabooses at the platforms of 
 the depots on its lines. 
 
 The passenger, having the choice of travel by a regular passen- 
 ger train, although subject to some delay, cannot, if he select for 
 any cause a freight train, reasonably demand more than the ordi- 
 nary accommodation found in such trains, and the main purpose 
 
 ^UohU V. Texm & P. It. (Jo. 49 Ark. 357. 
 •'lirowm V. JMeigh & O. R. Co. 108 N. C, 34. 
 
 *Oonnell v. Moliile & 0. R. Co. (Miss.) Feb. 17, 1890; Browne v. Raleigh <t 
 G. R. Co. 108 N. C. 34.
 
 STOl'l'J^G IKKIGHT TKAIK AT STATlUMS. 259 
 
 of tlie train caniiut be sultordinated to the special comfort of the 
 few persons wlio choose for their own convenience to travel on 
 such trains. It is a fact well known that the acceptance of pas- 
 sengers on freight trains is a matter of accommodation to the pub- 
 lic, and is generally discountenanced by railroad authorities in 
 their own interests, and this is so well recognized that many state 
 legislatures have checked the courts in their hostile rulings and 
 denied by statute a recovery for injury received in the ordinary 
 travel upon freight trains.' Indeed the peril to passenger trains 
 from the necessary proximity of freight trains to depots, is suffi- 
 ciently apparent to deter any thoughtful court from attempts to 
 regulate the running of railroads, by requiring the use of such 
 places by freight trains. If one choose to enter a train, the chief 
 purpose of which is the receiving, transporting and delivery of 
 freight, he must enter at the points most convenient for receiving 
 and discharging freight.'* Of course reasonkble care must be 
 taken by the carriers of freiglit ^vhen they accept passengers, 
 though for their own convenience, not to expose them to needless 
 danger on entering or leaving the train. ^ Certainly they must 
 exercise reasonable care not to place them, on leaving the train, 
 in dangerous places on dark nights, without light and without 
 notice of the danger. A railroad company is under the same 
 obligation to stop a freight train on which it carries passengers at 
 a station or safe landing place as it is under to stop a regular 
 passenger train at such points of security."* 
 
 The conductor of a mixed train who stops it for the usual 
 time, having told a dilatory passenger that he must get on the 
 coach as it then stands, 75 or 100 yards from the passenger sta- 
 tion, is not bound, in order to relieve the company from liability, 
 to look after the passenger's movements, and refrain from giving 
 the signal to move the train until assured that the passenger is on 
 board.* Yet the act of a conductor of a freight train, in turning 
 away from passengers whom he sees about to board the train. 
 
 V. Band, .88 Fed. Rep. 822; Arkamas M. B. Co. v. Canman, 52 Ark. 
 517; Mansf. Ark. Dig. § 5477. 
 \March v. Concord E. Co. 29 N. H. 942. 
 ^Browne y. Raleigh & G. R. Co. 108 N. C. 34. 
 "Central R. <& Bkg. Co. v. Smith, 80 Ga. 526. 
 ^Alabama G. S. R Co. v. Sellers (Ala.) 10 Ry. & Corp. L. J. 224. 
 ^Browne v. RaUigh & G. R. Co. 108 N. C. 34.
 
 '2Q(J TKANSPOKTATlO^ Ll'UX UTllKK itlXS TASSKNGER TKAIN8. 
 
 among whom are several small children, and deliberately ordei-- 
 ing a brakeman to signal the engineer to back the train without 
 warning to such passengers and without any signal l)ut a slight 
 wave of the brakeman's hand, — is a clear case of culpable negli- 
 gence.' 
 
 A railroad company is liable, where one, having the care of 
 stock in a freight car, attempts to enter the car with the assurance 
 of the conductor that it is safe and that he will have ample time 
 to do so, and is injured by the sudden movement of the train 
 while in the act of entering the car."^ It is liable for injuries to 
 a passenger in charge of stock u]i( m its stock train, by the sudden 
 motion of the train while he is boardiuii' the car. where the engi- 
 neer saw him going to the train under such circumstances as to 
 create a reasonable inference that he was about to get aboard/ 
 
 Until the government adopts a more paternal attitude toward its 
 citizens, and forbids them to use their own judgment in traveling 
 upon freight trains, assuming all risks incident to the use of the 
 trains for the purpose for which they are intended, it cannot be 
 expected that courts will interfere and substitute assumed judi- 
 cial knowledge for actual practical railroad experience in the man- 
 agement of trains. There are rulings upon the subject in which 
 ex])ressions are used which cannot be sustained as sound law. But 
 an examination of the cases will sustain the views herein expressed 
 as in accordance with reason and well considered decisions,'' Of 
 course as the train partakes more or less of a passenger train, the 
 rule will be rigidly enforced or relaxed. 
 
 Where a passenger freight train stopped at an inconvenient 
 place, and a female passenger was justified in supposing it would 
 stop at the platform, and her presence being discovered as the 
 
 ^Norfolk & W. It. Co. V. Grfmdose (Va.) 15 Va. L. J, 645. 
 
 Wlson V. St. Paul & D. R. Co. 45 Minn. 536. 
 
 ■■'Pitcher V. Lake. Shore & M. 8. It. Co. 40 N. Y. S. R. 896. 
 
 *Browne v. Rahiqh & O. K. Co. 108 N. C. 34; March v. Concord R. Corp. 29 
 
 N. H. 9, 42; billayew. New York Cent. R. Co. 56 Barb. 30; Alknder v. 
 
 Chicago. R. I. & P. R.Co. 37 Iowa. 264; Hazard v. Chicago, B.& Q. R. Co. 1 
 
 IJiss. 503; Indianapolis & St. L. R. Co. v. llorxt, 93 U. S. 291, 23 L. ed. 
 
 898; Ohio if; M. It. Co. v. Dickerwn, 59 Ind. 317; McGee v. MiMouri Pac. 
 
 ft. Co. 10 West. Kep. 282, 92 Mo. 208; Shoemaker v. Kinr/sbtir)/, 79 U. S. 
 
 12 Wall. 369. 20 L. ed. 432; Snr York, C. dt St. L. R. Co. v. Doane, I L. 
 
 I{. A. 157, 115 Ind. 435; While Water Valley R. Co. v. Butler, 12 West. 
 
 Kep. 207. 112 Ind. 59S; Wooler v. Loimnille, N. A. <k C R. Co. 5 West. 
 
 Kep. 667, 107 Ind. 3S1.
 
 ST01'riN<; I-KKKJIIT TRAIN AT 8TA1TONS. 261 
 
 ti'Miu passed the station, it was negligence in the company in not 
 i-etnrning to the station or assisting her to alight from the train 
 when it stop})ed or in reacliing the station in safety, and she was 
 not guilty of negligence in not discovering gates into a private 
 enclosure through which the station might be reached by an un- 
 marked route; and the com])any is liable for injuries suffered b^' 
 her falling into a cattle guard while attempting to cross it.' 
 ^New York, C. <& St. L. R. Co. v. Doanc, 1 L. R. A. 157, ItSInd. 435.
 
 CHAPTER XIV. 
 
 CONTRACT RELEASING LIABILITY-FREE TRANSPORTATION- 
 REDUCED FARE. 
 
 § 79. Contract Exempting from Liability for Xegliyeiice. 
 
 § 80. Limitation of LiaMlity by Contract. 
 
 § 81. Liability to One Holding Drover's Pass. 
 
 § 82. Invalidity of Stipulations on Drovefs Pass to Release Liability. 
 
 § 83. Free Transjiortation on Condition of Exemption from Liability 
 
 for Negligence. 
 § 84. Free Transportation luill not Sustain Contract Excusing Xeg- 
 
 ligence. 
 
 § 79. Contracts Exempting from LiaMlity for 
 
 JYegligence. 
 
 The general rule is that a common carrier cannot by contract 
 exempt itself from liability for injuries and damages resulting 
 from its own negligence or negligence of its servants. The pub- 
 lic have an interest in the contract which a private individual 
 cannot waive.' 
 
 Common carriers may limit their common law liability by 
 express conti-act against risks not arising from their own negli- 
 gence.' But courts will ]o(»k to the real relations of the carrier 
 and passeuger, regardless of any tictiou or pn-rcnse of agreement 
 and declare the liabilities arising from the actual relation of the par- 
 ties as the law and ])ublic policy demand. J/y. Justice Bradley, 
 after full discussion of the (juestion and a clear review of the au- 
 thorities, both in America ami England, has declared such con- 
 tracts are in conti-avention of public policy, and reaches the fol- 
 lowing: conclusions: "First, that a common carrier cannot lawfully 
 
 ^WilliK V. Orand Trunh R. Co. 62 Me. 488; Mniin v. Birchard, 40 Vt. 32(5; 
 IS(j'iire V. New Yatk Cent. B. Co. 98 Mass. 239, 246; Louinrille & N. B. Co. 
 V. Oden, 80 Ala. 38: WaUin;/ford v. Coiamhia & G. B. Co. 26 S. C. 258; 
 Oroyan v. Adaim Kip. Co. 5 Cent. Rep. 298, 114 Pa. 523. 
 
 "Merrill v. Atnmran E.rp. Co. 62 N. II. 514; Hand v. Merchants Dispatch 
 y'ranxp. Co. 59 N. li. 363; Barter v. Wheeler, 49 N. H. 930; Moses v. Bos- 
 ton d- M. B. Co. 24 N. H. 71, 90. 
 
 262
 
 CONTKACT EXKMJ'TI.N*. l-KoM J.lAl!il.lTV iOK J^KGLIGENCK. 263 
 
 stipulate for exemption from li;i])ility when sucli exemption is not 
 just and reasonable in the eye of the law; secondly, that it is not 
 just and reasonable in the eye of the law for a common carrier to 
 stipulate for exemption froin responsibility for negligence of him- 
 self or his servants; thirdly, that these rules apply both to common 
 carriers of goods and carriers of passengers for hire, and with spe- 
 cial force to the latter; fourthly, that a drover traveling on a pass, 
 such as was given in this case, for the pm*pose of taking care of 
 his stock on the train, is a passenger for hire."* 
 
 In another case," where the owner of a patented car coupling 
 negotiating for its sale, was requested by the company to see the 
 superintendent of its car department, M-itli an offer to pay his 
 expenses, and in pursuance of this arrangement Avas so furnished 
 with a free pass to carry liim, it was not a case of gratuitous carriage, 
 but a carriage for hire and it was not proper for the carrier in such 
 ii case to stipulate for freedom from liabiUty for negligence, even 
 if he could liave done so in the case of gratuitous carrying. The 
 decision in the former ease was approved, and it was added "we 
 do not mean to imply, however, that Ave should have come to dif- 
 ferent conclusions had the plaintifll' been a free passenger instead 
 of a passenger for hire," and it is questioned whether what is held 
 us a great public trust can be said to be absolutely the property of 
 the carrier, and in this country it is said the business of a common 
 carrier is emphatically a branch of the public service, and the 
 conditions on which public service should be performed by pri- 
 vate enterprise are not yet entirely settled. And in a still later 
 case,' it is held that the stipulation in the Ijills of lading, then in 
 question, that the carriers "shall not be liable for loss or damage 
 by tire, collision, or the dangers of navigation," clearly does not 
 protect them from liabilit}' for any loss occasioned by their own 
 negligence; that the settled doctrine of the Supreme Court of the 
 United States is that even an express stipulation in the contract 
 of carriage, that a common carrier shall be exempt from liability 
 for losses caused by the negligence of himself and his servants, is 
 
 ^Hew Tark Cent. R. Co. v. F^ockicood, 84 U. S. 17 Wall. 357, 21 L. ed. 627. 
 
 ^ Grand Trunk R. Co. v. Stevenx, ^IS U. S. 655, 24 L. ed. 535. 
 
 ^Phmiir Ins. Co. of firook/i/n v. Erie tf; W. Tramp. Co. 117 U. S. 312, 29 L. 
 e&. 873.
 
 li^'''4: COKTKACT KKLKASINCt J.IAHll.nV FKKK TKA.NSl'ORTATIOX. 
 
 unreasonable and contrary to pnblic policy, and therefore void;' 
 and it is added, "it may be that as held by Jtodge Wallace in a 
 case in the circuit court, a stipulation that 'no damage that can l)e 
 insured against will be paid for,' would not protect the carrier 
 from liability for his own negligence, because that would be to 
 compel the o\\nier of the goods to insure against a negligence of 
 the carrier.- ' ' 
 
 An express stipulation of exemption froni liability for negli- 
 gence of the carrier or his servants is held unreasonal)le and void/ 
 And the rule is applied to loss or damage by the perils of the sea 
 arising from the iiegligence of the master and crew of the ship. 
 The right of the carrier to exempt himself from liability for his 
 own negligence is denied.^ The business of a carrier is a public 
 one, and those who employ the carrier have no real freedom «»f 
 choice, and the carrier cannot be allowed to impose conditions 
 adverse to public policy and morality, and to stipulate for immu- 
 nity from the negligence of his servants.^ 
 
 In England, except as controlled b}" the statute, the carrier may 
 contract to protect himself from the consequences of his own neg- 
 ligence, even in case of compensation from the traveler, as he may 
 do with regard to goods or live stock." But the English statute, 
 called the Kailroad and Canal Tratiic Act, passed in 185-1, declared 
 void all notices and conditions made by common carriers, except 
 such as the judge at the trial or the courts, should hold just and 
 reasonal>le, pra(;tically perhaps almost restoring the rule of com- 
 mon law. 
 
 Wgdenxbiirg & L. C. R. Co. v. Pratt, 89 U. S. 23 Wall. 123. 22 L. ed. 827; 
 
 Bank of Kaiturky v. Adaim Erp. (Jo. 93 U. S. 174, 23 L. ed. 872. 
 ■^'Jie Hadji, 22 Blatchf. 235. 
 
 ^Liverpool & O. W. Steam Co. v. Phenix Im. Co. 129 U. S. 397, 32 L. ed. 788. 
 *Inman v. South Carolina It. Go. 129 U. S. 128. 32 L. ed. 612. 
 ^The firaiitford Cili/, 29 Fed. Rep. 373. See also^//ar< v. Pennsi/lvanla R. 
 
 Co. 112 U. S. 331, 28 L. ed. 717; Gait v. Adams Exp. Co. McArth. & M. 
 
 124. 
 *ilall V. North Eastern R. Co. L. K. ID Q. B. 437; Great Western R. Co. 
 
 V. Glenister. 29 L. T. N. S. 422; Macauley v. Furness R. Co. L. R. 8 
 
 il. B. 57; Tanbman v. Paajic Steam Nav. Co. 26 L. T. N. S. 704; 
 
 Gannell v. Ewd, 5 L. T. N. S. 604; McCance v. fx^ndon tfe JV. W. R. Co. 
 
 7 IInrl8t. & N. 477; Carr v. Lancashire <f- Y. R. Co. 7 Exch. 707; 
 
 York, j\'. C. i& D. R. Co. v. Crisp, 14 C. B. 527; Attstin v. Manchester, S. 
 
 «fe A. R. Co. 10 C. B. 454: Slim v. Great Northern R. Co. 14 C. B. 647; 
 
 Great Northern R. Co. v. Morrille, 21 L. J. Q. B. 319; Harrison v. Lou- 
 den,, B. dt S. C. R. Co. 2 Best &, S. 122.
 
 J.IMITATIUN OF I.IAi:il,irV IJY CONTKACT. 205 
 
 § 80. Liinitation of Liahility hy Contract. 
 
 In New York the rule is well settled that a carrier may by con- 
 tract relieve himself from liability even for negligence; but to have 
 that effect the contract must in terms and expressly exempt the 
 carrier from liabilit}' on this account; and hence general terras — 
 such as a release from liability "from whatsoever cause arising,'' 
 or for "damages occasioned by delays from any cause" — will not 
 relieve the carrier from the results of negligence.' This rule is 
 now observed without question in Xew York, where a shipper 
 recovered, on proof of negligence on the part of the carrier, for 
 the loss of goods through fire, although the special freight con- 
 tract under which they were shi]>ped released the carrier from 
 liability for loss by lire, but contained no express release from ha- 
 bility for neghgence/ Although a carrier of freight and passen- 
 gers may lawfully sti|)ulate for exenn)tion from liability for neg- 
 ligence of itself and servants, such stipulation is to be strictly 
 construed, and the exemj)tion must be expressed in terms; and if 
 general words of release are used, such construction as will ex- 
 clude exemption from iu>gligence must obtain if the release is not 
 thereby rendered inoperative/ So held as to the messenger of 
 an express company/ 
 
 A contract of a railroad company to transport the employes of 
 a telegraph company free of charge, upon their exhibiting passes, 
 in which all responsibility of the railroad company for any loss, 
 damage, or injury to the employes shall be waived and released in 
 the form usual in such cases, is not effectual to release the com- 
 pany from acts of negligence. Under the JSTew York authorities 
 the effect has never been given to contracts general in their terms 
 of releasing from liability, but has been under the decisions ex- 
 pressly restricted to special contracts.'^ 
 
 An agreement between a railroad company and an express com- 
 
 ^Mognin v. Dinttmore, 56 N. Y. 168; Mynard v. Si/rarime, B. & N. T. R. Co. 
 
 71 N. Y. 180; Nieholm v. Nrtc York Vent. & H. R. R. Go. 89 N. V. ;!70. 
 ^Tanner v. New York Cent. & H. R. R. Co. 11 Cent. Kep. 82, 108 N. Y. 623. 
 ^Zimmer v. New York Gent, d- II. R. R. Co. 42 N. Y. S. R. 63; Euott v. New 
 
 York Cent. & H. R. R. Co. 33 N. Y S. R. 861. 
 *Bla:r V. Erie R. Co. 66 N. Y. 313. See Lemon v. Chanslor, 68 Mo. ;J40 30 
 
 Am. Rfp. 799. 
 ^Elliott V. Neto York Cent. & H. R. R. Co. 33 N. Y. S. R. 861 ; Hopkins v. 
 
 Wesicott, 6 Blatchf. 64 ; St. Louis <fe <S. E. R. Co. v. Smuck, 49 Ind. 302.
 
 206 CONTRACT RELEASING LIABILITY FREE TRAXSFuRTATIOX. 
 
 pany, which jjrovides that the former "is hereby expressly released 
 from and guaranteed against any liability for any damage done to 
 the agents of" the latter, will not operate to defeat an action by 
 one of such agents to recover for personal injuries occa^^ioned by 
 the negligence of the railroad or its servants, as it may be con- 
 strued as an agreement to indemnify the railroad company in the 
 event of such an action/ 
 
 A contract should not be held to include negligence from gen- 
 eral w^ords, nor will it be so construed unless expressed in une- 
 quivocal terms;" and if the general words can be given effect 
 without including negligence, the contract will not release from 
 it.* Yet in New York, as alread}' shown, and in some other states, 
 it has been held that a common carrier may stipulate for exemp- 
 tion from loss through his own negligence or that of his servants,* 
 and a contract limiting liability is valid if free from fraud or im- 
 position;* and a common carrier may exempt himself by contract 
 from liability for loss occasioned by ordinary negligence." 
 
 In Ohio, the right of the carrier to exempt himself from the 
 consequences of his own negligence, in any degree, or that of his 
 servants, is denied, as will hereinafter appear, but his right is 
 admitted to make special contracts, which will not change his 
 character of a common carrier, with certain enlarged exemptions 
 from responsil^ility, not relieving him from his negligence, but the 
 l)urden of proof is on him to show that the injury occurs within 
 
 ^Kenney v. New York Gent. & II. R. R. Co. 125 N. Y. 432; Elliott v. New York 
 Gent, cfc //. R. R. Go. 33 N. Y. S. R. 861. 
 
 ^Kenney v. New York Gent. & U. R. R. Go. 125 N. Y. 422; Mymird v. Stfra- 
 cme, B. dc N. Y. R. Co. 71 N. Y. 180. 27 Am. Rep. 28, rev'g 7 liun, 
 399; Nicholas v. New York Cent. & H. R. R. Go. 89 N. Y. 370. 
 
 ^HolHapple V. Rome, W. tt- 0. R. Co. 86 N. Y. 275 ; Mynard v. Syracuse, B. <fc 
 N. Y. R. Go. 71 N. Y. 180. 27 Am. Rep. 28, rev'g 7 Ilun, 399. 
 
 *Magnin v. Dinmnore. 56 N. Y. 168; Paucher v. New York Gent. R. Co. 49 N. 
 Y. 2%^: Knell v. United States & B. S. S. Co. 1 Jones & S. 423; Mynard 
 V. Syracuxe, B. tfc N. Y. R. Co. 71 N. Y. 180; Spimietti v. Atlas Steam- 
 ship Co. 80 N'. Y. 71. 
 
 •Da/m V. New York Cent. & II. R. R. Co. 50 How. Pr. 428. 
 
 * Baltimore dc 0. R. Co. v. Brady, 32 Md. 338; Ai<hmore v. Pennsi/lvania S. T. 
 Trnnsp. Go. 28 N. J. I.. 180; Lawrence v. New York, P. & B. R. Co. 36 
 Conn. 63; Peck v. Weeks, 34 Conn. 145; Hawkins v. Oreat Western R. Co. 
 17 Mich. 57; Adams Ej p. Go. v. Ilaynes, 42 111. 89; Illinois Cent. R. Co. 
 V. Adams. 42 111. 474; Mann v. Birchard, 40 Vt. 320; Jacobus v. St. Paul 
 & C. R. Co. 20 Minn. 125; IV.lnois Gent.R. Co. v. Read, 37 III. 484.
 
 LIMITATION OF LIAKILITV liV OONTRACT. 267 
 
 the exemption.' In some other states while a common carrier 
 cannot by notice or special contract limit his liability so as to ex- 
 onerate him from his own negligence or that of his servants and 
 agents, as is shown by the authorities hereafter cited, a special 
 contract releasing him from his liability as an insurer has the effect 
 of converting the common carritn- into a special bailee for hire, and 
 the party who claims to have suffered loss through the negligence 
 of the carrier must estaV)lish negligence." 
 
 A carrier may limit its liability as insurer but not from its neglect 
 or fraud.' Other courts while they (concede the right to make such 
 exemption in all cases of ordinary negligence, refuse to apply the 
 principle to cases of gross negligence.* In other state courts the 
 power to make a valid contract, exempting the carrier from lial>ility 
 for any degree of negligence of himself or his servants is denied, as 
 it has been already stated to be in Ohio, Indiana, Missouri and 
 Pennsylvania.^ 
 
 ^Kmncltoa v. Erie R. Co. 19 Ohio St. 260; Cincinnati, H. <fc D. R. Co. v. 
 Pontius, 19 Ohio St. 231; WeUh v. Pitts/jurg, Ft. W. & C. R. Co. 10 Ohio 
 St. 75; Wihon v. Hamilton, 4 Ohio St. 722; Graham v. Davis, 4 Ohio St. 
 'iQi2; Davidson v. Graham, 2 Ohio St. 131; Jones v. Voorhees, 10 Ohio, 145. 
 
 ^Empire Transp. Co. v. Wamsutta Oil Co. 68 Pa. 14; Farnham v. Camden <f- 
 A. R. Co. 55 Pa. 62; American Exp. Co. v. Sands, 55 Pa. 140; Pennsylva- 
 nia R. Co. V. Henderson, 51 Pa. 315; Powell v. Pennnylvania R. Co. 32 Pa. 
 414; Ooldey v. Pennsylvania R. Co. 30 Pa. 242; Camden & A. R. Co. v. 
 Baldauf, 16 Pa. 67; Laing v. Colder, 8 Pa. 479. 
 
 ^Rosenfeldy. Peoria, D. <t- E. R. Co. 1 West. Rep. 151. 103 Ind. 121; Carroll 
 V. Missouri Pac. R. Co. 3 AVest. Rep. 842, 88 Mo. 239; Pennsylva.nia R. 
 Co. V. Wilson (Pa.) 3 Cent. Rep. 915; Oroqnn v. Adams Erp. Co. 5 Cent. 
 Rep. 298, 114 Pa. 523: Adams Exp. Co. v' Holmes (Pa.) 8 Cent. Rep. 155.* 
 
 *Gkicago <£ iV". W. R. Co. v. Chapman, 8 L. R. A. 508. 133 111. 96; Nickey v. 
 8t. Louis, 1. M. & 8. R. Co. 35 Mo. App. 79; iMuisville & N. R. Co. v. 
 Wynn, 88 Tenn. 320; Arnold v. Illinois Cent. R. Co. 83 111. 273; Adamx 
 Exp. Co. V. Hai/nes, 42 111. 89; American Exp. Co. v. Perkins, 42111. 458; 
 Erie R. Go. v. Wilcox, 84 111. 239; Toledo, W. <fc W. R. Co. v. Beggs, 85 
 111. 80; Andrew v. Electric Tel. Co. 33 Eng. L. & Eq. 180, 185; 
 Rlinois Cent. R. Co. v. Adams, 42 111. 474; Illinois Cent. R. Co. v. Read, 
 37 111. 484. 
 
 *Pennsylva?iia R. Co. v. Raiordan, 12 Cent. Rep. 177. 119 Pa. 577; Adams 
 Exp. Co. V. Holmes (P:i.) 8 Cent. Rep. 155; Mobile & 0. R. Co. v. Hopkins, 
 41 Ala. 486, Ortt v. Minneapolis tfc- St. L. R. Co. 36 Minn. 396; Hutchin- 
 son V. Chicago, St. P. M. <fc 0. R. Co. 37 Minn. 524; Shriver v. Sioux City 
 & St. P. R. Co. 24 Minn. 50G; Rosen J eld v. Peoria, D. <& E R. Co. 1 West. 
 Rep. 150. 103 Ind. 121; Steele v. Townsend, 37 Ala. 247; Missouri Pac. R. 
 Co. V. Harris, 67 Tex. 166; Laing v. Cokler, 8 Pa. 479; Camden <& A. R. 
 Co. V. Baldauf, 16 Pa. 67; Goldey v. Pennsylvania, R. Co. 30 Pa. 242; Ca/- 
 roll V. Missouri Pac. R. Co. 3 West. Rep. 842, 88 Mo. 239; Pennsylvania 
 R. Co. V. Wilson (Pa.) 3 Cent. Rep. 915; Grogan v. Adums Exp. Co. 5 
 Cent. Rep. 301, 114 Pa. 523: Smith v. North Carolina R. Co. 64 N. C. 
 235; Kansas Pac. R. Co. v. Reynolds, 17 Kan. 251; Atchison & N. R. Co.
 
 268 CONTKACT KKI.KASIN(; LrAl'.II.lTY FKKK TRANSPORTATION^. 
 
 In Maine, wliile it is held that a common cari'ier may by spe- 
 cial contract be exempt from res])ont5ibility for loss occasioned by 
 natural causes, such as the weather, fire, heat, frost, etc.;' yet 
 where it is stipulated that a railroad company should be exon- 
 erated from all damages that mii>;ht happen to animals sent ovei- 
 the road, and that tlie owner should tjtke the risk of all such dam- 
 ages, the court held that the company were not thereby excuse*! 
 from the consequences of their negligence, and the distinction 
 between neoligeiice and o;ros!> neo-lioeuce in such a case is not 
 tenable. It was said: ••The very danger to Ite anticipated by 
 permitting them (common cari'iers) to enter into contracts, to be 
 be exempt from losses occasioned by misconduct or negligence, 
 can scarcely be overestimated. It would remove the principal 
 safeguard for the preservation of life and property in such con- 
 veyances.'" In another case^ it is said: ''The special contract 
 here set up is not alleged and could not l>v law be permitted to 
 exempt the defendaiiit from liability for injuries by their own 
 negligence." 
 
 V. WasJiburn, 5 Neb. 117; Catnp v. Hartford cfe iV". T. SS. Co. 43 Conn. 
 383; Virginia & T. R. Co. v. Sayers, 26 Gratt. 338; Orndm-ff v. Adams 
 Exp. Co. 3 Bush, 194; WiUis v. Grand Trunk R. Co. 62 Me. 488; Com. v. 
 Vermont & M. R. Co. 108 Mass. 7. Rose v. Bes Moines Valley R. Co. 39 
 Iowa, 246 ; Pennsylvania R. Co. v. Henderson, 51 Pa. 315; Farnlmm v. Cam- 
 den & A. R. Co. 55 Pa. 53; Empire Transp. Co. v. Wamsutta Oil Ref. 
 dt Min. Co. 63 Pa. 14; Knowlton v. Erie R. Co. 19 Ohio St. 260, 2 Am. 
 Rep. 395; Graham v. Davis>, 4 Ohio St. 362; Welsh y. Pittsburg, Ft. W.&- 
 C. R. Co. 10 Ohio St. 75; Jones v. Voorhees, 10 Ohio, 145; Eillebrown v. 
 Gra7id Trunk R. Co. 55 Me. 462; Sager v. Portsmouth, S. & P. E. R. Co. 
 31 Me. 228; Michigan, S. & i\'. I. R. Co. v. Ueaton, 37 Ind. 448; Adams 
 Eip. Co. V. Feudrick, 38 Ind. 150; Ohio <t" M. R. Co. v. Selbtj , 4.1liiA. 471. 
 17 Am. Rep. 719; Medfield School Dist. v. Boston, H. & E. R. Co. 102 
 Mass. 552; Adams Exp. 'Co. v. Steltaners, 61 111. 184, 14 Am. Rep. 57; 
 Nashville & C. R. Co. v. Jackson, 6 Heisk. 271 ; Ketchum v. American M. U. 
 Exp. Co. 52 Mo. 390; Nem Orleans Mut. Ins. Co. v. New Orleans, J. & G. 
 N. R. Co. 20 La. Ann. 302; Southern Exp. Co. v. Moon, 39 Miss. 822; 
 Steele v. Townsend, 37 Ala. 247; Berry v. Cooper, 28 Ga. 543; Swindler v. 
 nUliard, 2 liich. li. 286; Flinn v. Philadelphia, W. d: B. It. Co. 1 Houst. 
 (Del.) 469. 
 
 ^FiJUebrown v. Grand Trunk li. Co, 55 Me. 462. 
 
 'Sager v. Por/smoufh, S. <b P. & E. R. Co. 31 Me. 228. 
 
 ■ Mrdjield School Dist. v. Boxton, H. & E. R. Co. 103 Mass. 552. The follow- 
 ing decisions are to the same general purport: Orndorff v. Adams Exp. 
 Co. 3 Bush, 194; Swindler v. IFtlhard, 2 Rich. L. 286; Whites^ide v. Thurt- 
 kill, 12 Smedes & M. 599; Southern Exp. Co. v. Moon, 39 Miss. 822; New 
 Orleans Mat. Ins. Co. v. New Orleans, J. d; G. N. R. Co. 20 La. Ann. 302.
 
 J.IAI'.II.ITV TO (KNK II()I,I)INU DKuVKk's VASS. 'Ji^J^ 
 
 § 81. LiahiUty to one Holding Drover's Pass. 
 
 A requirement by a railroad cuinpaiiy, that persons given free 
 passage while in charge of live stock shall remain in the caboose 
 attached to the train, is a reasonable regulation.' In a large nuni- 
 l)er of cases the Englisli decisions as well as those of New York 
 liave held that where a drover was permitted to accomjjany ani- 
 mals upon what was called a free ]iass issued upon the condition 
 that the user should bear all I'isk of transportation, he could not 
 maintain an action for an in jurv received by the negligence of 
 the carrier's servants." A similar rule would, without doubt, l)e 
 applied where a servant, from the ])eculiar character of goods, as 
 delicate machinery, was permitted to accompany them, and in 
 other cases of that nature. That passes of this character are free 
 passes, properly so called, has been denied in other cases, as the 
 carriage of the drover is a part of the contra<'t for the carriage of 
 the animals. 
 
 In a New York case' it was held that the case of free passen- 
 gers could not seriously aifect the inducement to caution on the 
 ])art of the road, and that a common carrier may stipulate against 
 responsibility in such a case for the negligence of its servants. 
 In the same volume of reports, another case* recognizes that a free 
 passenger can release the company from all kinds of negligence 
 on the part of its servants, there being no pi-actical distinction of 
 the degrees of negligence. In a later case* it was held that 
 the railroad company was liable for an injury to one traveling 
 upon a drover s pass. The judgment was affirmed and reported 
 in the same volume, p. 222, three out of the eight judges dissent- 
 ing — one \x])o\\ the ground that the question atfected the public and 
 not alone the party who is carried — the others holding that if the 
 pai'tv injured had been a gratuitous passenger, the company would 
 
 ^Tuley V. Chicago, B. & Q. B. Co. 41 Mo. App. 433. 
 
 •'CaUm V. London &N. W. R. Co. L. R. 10 Q. B. 313, 13 Moak, Eng. Hep. 3G8; 
 Alexander v. Toronto & N. R. Co. 35 U. O. Q. B. 453; Wells v. New York- 
 Cent. R. Co. 34 N. Y. 181; Perkins v. Neic Turk Cent. R. Co. 34 N. Y. 
 196; Bissell v. NeicYork Cent. R. Co. 35 N. Y. 443; Poucher v. Nem York 
 Cent. R. Co. 49 N. Y. 363. 
 
 » Wells V. New York Cent. R. Co. 36 Barb. 611, affirmed in 1863, 34 N. Y. 181 
 
 ^Perkins v. Neio York Cent. R. Co. 34 N. Y. 196. 
 
 ^Smith V. New York Cent. R. Co. 29 Barb. 132.
 
 270 C'ONTKACT KK1.EAS1>G LIAUILITV KKKK TKANSl'OKTATION. 
 
 have been discharged. Where the raih'oad company expressly 
 stipulated it would not De liable, under any circumstances, "wliether 
 of negligence by their agents or otherwise," for injury to the person 
 or stock of the passenger, the ^supreme court held that gross negli- 
 gence, whetlier of servants or principals, eainiot be excused by 
 contract in reference to the carriage of passengers for hire, and 
 that such a contract is against the policy of the law, and void. 
 The judgment was i-eversed in 25 IST. Y. 442, a bare majority 
 holding that the ticket was a free ticket, and the contract exempt- 
 ing from liability binding.' 
 
 In more recent cases it is held in New York that provisions of 
 a ticket issued by a railroad company to one in charge of horses 
 shipped by it, that he shall -pass, over its cars and track at his own 
 lisk, and that it need not start its trains from stations or provide 
 lights for his accommodation and safety, do not absolve it from 
 the duty to use all due diligence to protect him from harm as 
 being a passenger.* A contract releasing a railroad company 
 from all damages attending the transportation, custody, and deliv- 
 ery of stock shipped does not release the company from liability 
 for injuries to one accompanying the stock, though he is named 
 in the waybill as in charge, free. A release by the shipper of 
 cattle has no binding force or elfect upon a person employed by 
 liim to accompany them, as to the liability of the railroad com- 
 pany to the latter for personal injuries sustained because of the 
 negligence of the employes of the compr.uy, when not assented to 
 l)y liim.^ 
 
 § 82. Invalidity of StiptUatlon on Drover's Pass 
 to Release Liability. 
 
 In the majority of the states, as in the Supreme Court of the 
 United States it is held, that a person traveling on a drover's pass 
 in charge of cattle is a passenger for hire; the consideration of his 
 passage is the service he renders in taking care of the cattle, or it 
 is f<unid in the charges made for shipping the cattle, and a con- 
 
 ^li'mdl V. Neva York Cent. R. Co. 29 Barb. 602. To the same effect was 
 
 PovrMr V. New York Cent. R. Co. 49 N. Y. 2(53. 
 ■'Pitcher v. Lalce Shore & M. S. R. Co. 40 N. Y. S. K. 896. 
 •^Porter v. New York, L. E. t£ W. R. Co. 59 lliin, 177.
 
 INVALIDITY OF STirULATlON ON DROVEr's PASS. 271 
 
 tract by wliich he agrees to be regarded as an employe of the road 
 to whom the company shall be liable only as to its regular 
 employes, is a pretense and a subterfuge which cannot change the 
 true relation of the parties. 
 
 In an action by heirs to recover damages for the death of their 
 decedent, alleged to have resulted from defendant's negligence, it 
 was answered that the deceased at the time of the collision of 
 Trains causing his death was an employe of the company, and it 
 was not liable to his heirs, if the death was the result of negli- 
 gence on the part of his fellow servants. Contributory negligence 
 on his part was also alleged. The deceased represented one who 
 had shipped cattle on defendant's road under a contract, in which 
 it was recited that in consideration of the free pass granted and of 
 the other covenants and agreements contained in the contract, 
 including the rules and regulations, all of Avhich were accepted 
 and made a part of the contract, he expressly agreed that during 
 the time he was in charge of said stock and on his return passage 
 he should be deemed an employe of the company and that he 
 assumed all risks incident to such employment, and that said com- 
 pany shall not be liable for any injury or damage sustained for 
 which it would not be liable to its regular employes. The regu- 
 lations referred to, which were printed on the contract, stipulated 
 that the owner or man in charge will be passed on the train with 
 it. and all persons thus passed are at their own risks of any per- 
 sonal danger whatever. It was stated in the instrument that the 
 rates charged for the shipping of the cattle are lower than the 
 usual rates, and in consideration thereof there are many stipula- 
 tions of the shipper, releasing the company from damages for losses 
 and injury to the stock, and limiting its liability as a common 
 carrier. It also contains substantially the following stipulations 
 by the owner: "Third. At his own risk and expense he is to take 
 care of, feed, water and attend to the stock while in the stock- 
 yards awaiting shipment, while being loaded, transported, un- 
 loaded and reloaded. He is to unload and reload at feeding and 
 transfer points, at destination, and is to hold the company harm- 
 less for any and all loss and damage to the stock while so in his 
 charge, and cared for by him or his agents or employes." "Fifth, 
 When the company shall furnish, for the accommodation of the
 
 272 CONTKACT KKLEASING LIAIUI.ITY FKEK TUAXSJ'OKTATlON. 
 
 owner, laborers to assist in loading- or unloading the stock, they 
 shall be subject to the ownei-'s orders, and deemed his employes 
 while so engaged, for whose acts he agrees to hold the company 
 harmless.'' ''Eighth. The contract forbids the holder or any other 
 person to ride on any train except for tlie purpose and in accord- 
 ance with the rules and printed instructions printed on the back 
 of it, all of which are accepted as a part t)f it." "Tenth. The 
 person in charge of the stock shall i-emain in the caboose while 
 the train is in motion," etc. It was held tliat as the liability of 
 the common carrier cannot be limited in express terms and by a 
 direct agreement, it cannot be done upon false or counterfeited 
 relations.' 
 
 It is said that where there is any consideration for the gratuit- 
 ous passage, the person carried is a passenger; as where a person 
 is carried free in consideration that he sends his freight over the 
 road, as a drover with his cattle." 
 
 In some of the other states the same denial of the right of tlie 
 carrier to exempt himself from responsil^ility in case of his own 
 negligence, has been ruled, the drover traveling upon a pass usu- 
 ally being held to be a passenger.^ 
 
 In a contract by a carrier for the transportation of cattle, a stip- 
 
 ^ Missouri Pac. R. Co. v. Imy, 1 L. R. A. 500. 71 Tex. 409. See Qulf, C. & 
 S. F. R. Co. V. McOown, 65 Tex. 643. 
 
 ^Missouri Pac. 11. Co. v. Ivey, 1 L. R. A. oOO. 71 Tex. 409; Maslin v. Balti- 
 more & 0. E. Co. 14 W. Va. 180; New York Cent. R. Co. v. Lockwood, 84 
 U. S. 17 Wall. 357, 21 L. ed. 627; Texas d P. R. Co. v. Circia, 62 Tex. 
 285; Pennsylvania R. Co. v. Henderson, 51 Pa. 315; Clcrehuid, P. & A. R. 
 Co. v. Cur'ran, 19 Ohio St. 1: Ohio & M. R. Co. v. ,SV%, 47 Ind. 471; 
 Graham v. Pacific R. Co. 66 IMo. 536; Flinn v. Philaddphia, W. & B. R. 
 Co. 1 Houst. (Del.) 469; Indianapolis, B. & ]V. R. Co. v. Beaver, 41 Ind. 
 496; Indianapolis tfe St. L. R. Co, v. Horst, 93 U. S. 291, 23 L. ed. 898; 
 Qillenwater v. Madison & I. R. Co. 5 Ind. 340. 
 
 ^UnionR. <fe Transit Co. v. Shacklet, 8 West. Rep. 03. 119 111. 232; Carroll 
 V. Musoriri Pac. R. Co. 3 West. Rep. 839, 88 Mo. 239; Wedern & A. R. 
 Co. V. Bidtop, 50 Ga. 465; Berry v. Cooper, 28 Gu. 543; IJawnon v. C?ii- 
 cago cfc- A. R. Co. 79 Mo. 296; Harvey v. Terre Haute d- I R. Co. 74 Mo. 
 541; Lemon v. Chanslor, 68 Mo. 340; Sturgeon v. St. I^nis, K. C. & N. R. 
 Co. 65 Mo. 569; Rice v. Kansas Pac. R. Co. 63 Mo. 314; Maslin v. Balti- 
 more cfc 0. R. Co. 14 W. Va. 180, 35 Am. Rep. 748; Grand Trunk R. Co. 
 V. Stevens, 95 U. S. 655, 24 L. ed. 535; Ashmore v. J'ennnylvania S. T. 
 Transp. Co. 28 N. J. L. IbO; Kinney v. Central R. Co. of yew Jersey, 32 
 N. J. L. 407; Haley. New Jersey Steam Nav. Co. 15 Conn. 539: Peck v. 
 Weeks, 34 Conn. 145; Lawrence v. New York, P. & B. R. Co. 36 Conn. 63; 
 Kimhall V. Rutland cfc />*. R. Co. 26 Vt. 247; Mann v. Birchard, 40 Vt. 
 326; Hawkins v. Great Wextern li. Co. 17 Mich. 57, 18 Mich. 427; Balti- 
 more & 0. R. Co. V. Brady, 32 Md. 333, 25 Md. 128; Levering v. J7»wn 
 Transp. dt Ins. Co. 42 Mo. 88.
 
 FKEE TKAXSPOKTATION AS CONDITIOxV OF JJKI-KASE. Zi6 
 
 Illation that in consideration of a free pass the company is to be 
 lixenipt from any liability for any injury sustained by the sliipper 
 while in charge of tlie cattle is void, and will not exempt the car- 
 rier from liability for neojlloence,' ft is said in another case that 
 a shipper of stock wlio. l>y his contract with a railroad company, 
 is bound to take cliari!:;e of the care and feeding of the stock, 
 though not a ])asseni>;er, is entitled to care on the part of the rail- 
 road company to avoid in jui'inii- liim, when in the car with such 
 stock at a time when pi-udent attention to the stock requires him 
 to be there.* 
 
 Where a stockman by invitation and directicm of the company's 
 servant gets upon the foot board of an engine, the carrier's serv- 
 ants are required to exercise a degree of care to correspond to the 
 degree of danger to which they expose liiin. If such stockman 
 is injured by the negligence of the servants the carrier cannot 
 escape liability by showing that he might have secured passage 
 by some other line of travel/ 
 
 § 80. Free Traiispfn'tation as CoiidifiouofEA-einp- 
 tion froin Liability for Negligence. 
 
 Whether the English and New York authorities rightly or 
 wrongly hold that one traveling upon a drovers pass, as it is 
 sometimes called, is a free passenger, they show that in the opin- 
 ion of these courts a contract can properly be made with a free 
 passenger that he shall hear the risks of transportation.'' This is 
 denied by many courts whose opinions are entitled to weight. 
 The cases in which the passenger was strictly a free passenger 
 accepting his ticket as a pure gratuity and upon the agreement 
 that he would himself bear the risk of transportation, are compar- 
 atively few. They have all been carefully considered in two recent 
 cases. The precise question was raised and decided, after a care- 
 ful examination of the authorities, in a different manner, l)y the 
 highest court of Connecticut and that of Texas. No doubt 
 
 ^Louinville, N. xL c£ C. R. Co. v. Faylm-, 126 Ind. 126. 
 ■'Orcutt V. Northern Pac. R. Co. 45 Minn. 368. 
 
 '^Lake Shore & M. S. R. Co. v. Broion, 11 West. Rep. 800. 123 III. 1C2. 
 *Magnin v. Dinsmore. 56 N. Y. 168; Dorr v. New Jen^ey Steam Nav. Co. 11 
 N. Y. 485. See Western & A. R. Co. v. Bishop, 50 Ga. 465. 
 
 18
 
 274 CONTRACT RELEASING LIABILITY FREE TRANSPORTATION. 
 
 existed in either case, in the opinion of the court, that the ticket 
 of the passage was strictly a gratuity; and it was held by tlie 
 foiiner court that under these circumstances the carrier and the 
 passenger might lawfully agree that the passenger should bear 
 ^le risks of transportation, and that such agreement would be 
 enforced, while the reverse was held by the court of Texas.' 
 
 Where a minor accepted a free pass on a railroad, upon the 
 express condition that he would make no claim for damages, for 
 or on account of anv personal injuries received Avhile using it, in 
 consequence of the negligence of the defendant's servants, and by 
 such neghgence he is killed in a collision, his personal representa- 
 tive is bound by the condition, and cannot maintain suit for dam- 
 ages for his death. It is insisted that while the carrier may not 
 by contract release himself from liability for his neghgence, where 
 a compensation is paid him, yet where free transportation is 
 accepted the arrangement between the parties ought not to be 
 regarded as a contract with the railroad company, in its charactei- 
 as a common carrier, and therefore the stipulated exemption is no- 
 abdication of that rigid responsibility ^vhich the law imposes on 
 common carriers. The gratuitous accommodation concerns only 
 the immediate parties, unless in a very indirect way, by making 
 the fare of other passengers higher, and to this it is answered 
 that if the charges are unreasonable they may be subjected ta 
 governmental regulations, but that at all events such remote and 
 indirect effect will not make the exemptions void on the ground 
 of public policy, and it is pointed out that the reason sometimes 
 assigned for denying exemption in case of negligence, that the 
 carrier stands in a superior position and can compel acceptance of 
 his terms, does not apply in the case of one holding a free pass. 
 It is insisted that where, as in that case, the jury had found that 
 the injury resulted from the gross negligence of the defendant's 
 servants, contining such negligence exclusively to the servants, 
 that the corporation should not be responsible in any moral sense, 
 and that therefore no principle of public policy in that regard 
 apphed, and that in case of gross negligence the corporation can 
 be no more culpable for the act of its servants than where their 
 
 ^Orimold v. NewYork & N. E. R. Co. 53 Conn. 371 (1885), and that of Qulf^ 
 V. & S. F. It. Co. V. McGown, 65 Tex. 643 (1886). See also Bryan v. 
 Muwuri Pae. R. Co. 32 Mo. Ai^p. 228.
 
 FREE TBANSroiiTATlON AS CONDITKJN OK KELKA8E. 275 
 
 negligence is slight, and that if the rule of respondeat superior 
 is waived by the special contract, the protection of the corporation 
 should be complete.* 
 
 When the injury occurred through the negligence of defend- 
 ant's servants, and not through any failure on the part of the 
 corporation to prescribe proper rules or furnish proper appli- 
 ances for the conduct of its business, it has been decided that 
 where one accepts purely as a gratuity a free j^assage upon 
 a railroad train upon the agreement that he will assume all risk 
 of accident which may happen to him, while traveling on 
 such train, by which he may be injured in his person, no rule of 
 public policy requires such contract shall be held invalid and 
 without binding force/ 
 
 It is urged on behalf of the plaintiff in the last case that while 
 the relation of passenger and carrier is created by contract, it does 
 not follow that the duty and responsi])ility of the carrier is 
 dependent upon the contract; that while, with reference to mat- 
 ters indifferent to the public, parties may contract according to 
 their own pleasure, they cannot do so where the public has an 
 interest; that as certain duties are attached by law to certain 
 employments, these cannot be waived or dispensed with by indi- 
 vidual contracts; that the duty of the carrier requires that he 
 should convey his passengers with safety; that he is properly held 
 responsible in damages if he fails to do so by negligence, whethei- 
 the negligence is his own or that of his servants, in order that this 
 safety may be secured to all wlio travel. It is also said that the 
 carrier and the passenger do not stand upon an equality; that the 
 latter cannot stand out and higgle or seek redress in courts; that 
 he must take the alternatives the carrier presents, or praeticalh" 
 abandon his business in the transfer of merchandise, and must 
 yield to the terms imposed on him as a passenger; that he ought 
 not to be induced to run the risks of transportation, being allowed 
 to travel at a less fare or for any similar reason, and thus to tempt 
 the carrier or his servants to carelessness which may affect others 
 as well as himseK; and that, in a few words, public policy forbids 
 that contracts should be entered into with a pubHc carrier by 
 which he shall be exonerated from his full responsibility. 
 
 ^Gristcold v. NewTork <fe iV^. E. R. Co. 2 New Eng. Rep. 315, 53 Conn. 371. 
 *Quimby v. Boston <& M. R. Co. 5 L. R. A. 846, 150 Mass. 365.
 
 270 CONIKACT RELEASING LIAHII.ITV FKEE TKANSPOETATION. 
 
 Most of this reasoning, it is said in the opinion, can have no 
 application to a strictly free passenger, who receives a passage 
 out of charity or as a gratuity. That the carrier is not likely to 
 urge upon others the acceptance of free passes, as the success of 
 his business must depend on his receipts. That there can be no 
 difficulty in the adjustment of terms where passes are solicited as 
 gratuities. When such passes are granted by such of the railroad 
 officials as are authorized to issue them, or other public carriers, 
 it is in deference largely to the feeling of the community in which 
 they are exercising a public employment. The instances, it is 
 thought, cannot be so numerous that any temptation will be offered 
 to carelessness in the management of their trains or to an increase 
 in their fares, in both of which suljjects tlie public is interested. 
 The theory is advanced, that in such instances one who is ordi- 
 narily a common carrier does not act as such, but is simph' in the 
 position of a gratuitous bailee. The definition of a common car- 
 rier, which is tliat of a person or corporation pursuing the public 
 employment of Ciirrying goods or passengers for hire, does not. 
 apply under such circumstances. The service which he under- 
 takes to render is one which he is under no obligation to perform, 
 and is outside of his regular duties. In yielding to the solicita- 
 tion of the passenger, he consents, for the time being, to put off 
 his public employment and to do that which it does not impose 
 upon him. 
 
 The plaintiff was in no way constrained to accept the gratuity 
 of the defendant; it had been yielded to him only on his own 
 solicitation. When he did this, there was no rule of public policy, in 
 the judgment of the court, that prevented the carrier from pro- 
 scribing, as the condition of it, that it should not be compelled, 
 in addition to carrying the passenger gratuitously, also to be 
 responsible to him in damages for the negligence of its servants. 
 
 It is well known that with all the care that can be exercised in 
 the selection of servants for the management of various appli- 
 ances of a railroad train, accidents will sometimes occur from 
 momentary carelessness or inattention. It is regarded as unrea- 
 sonable that, besides the gift of free transportation, the carrier 
 should be held responsible for these, when he has niade it the 
 condition of his gift that he should not be. Nor, in holding that
 
 FKEK 'l'KANSl'()KrAT10>; AS <J0M)ll'lON OF KE1,KAS-E. 2(< 
 
 he need not lie under tliese circii instances, is any countenance 
 i^iven to tlie idea that the carrier may contract witli a passenger 
 to convey him for a less price on being exonerated from responsi- 
 bility for tlie negligence of his servants. In such a case tlie car- 
 rier would still be acting in the public employment exercised by 
 liiin, and should not escape its responsibilities or limit the obliga- 
 tions which it iin})oses upon him. 
 
 A railway company is as much bound in its duty toward a pas- 
 senger, who is an employe and has a ])ass over its road-bridge, as 
 though it had received him for i>ay.' And a i-ailroad company 
 hound by its contract to carry a mail clerk free, cannot contract 
 afterwai'ds with such clei'k for exemption from liability.* 
 
 In some cases it has been held that wliile a cai-rier cannot limit 
 liis liability for gross negligence, which has been delined as his 
 own pei'sonal negligence, i^or that of the corporation itself where 
 that is the carrier), he can contract for exemption from liability 
 for the negligence of his servants. And it is sometimes ruled 
 that an agreement, in consideration of a free pass over a railroad, 
 that the company shall not be liable in case of personal injuries 
 except for gi-oss negligence, is binding on the passenger.^ But 
 a doubt has been expressed whether any such distinction in de- 
 grees of negligence, and the right of a carrier to exempt himself 
 from responsibility therefor,»can be profitably made or applied.' 
 There are other decisions to the etfect that a contract by a gratu- 
 itous passenger waiving the liability of the carrier for injury from 
 negligence, is not against public policy and is valid. '^ 
 
 A conti-act by which an exju'ess messenger is exposed to sub- 
 stantially the same risk as those to which railroad baggagemen 
 
 U\-mhroke v. Hannibal & St. J. R. Go. 32 Mo. App. (31. 
 
 'Seyboldt v. New York, L. E. & W. R. Co. 95 N. Y. 563. 
 
 "Chkaijo, B. dc N. R. Co. v. Hmck, 36 111. App. 337. 
 
 *qmmby v. Boston & M. R. Co. 5 L. K. A. 846, 150 Mass. 365. See also The 
 
 New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019. 
 '"Elliott V. New York Cent. & U. R. R. Co. 33 N. Y. S. R. 861; Rice \. Illinois 
 
 Cent. R. Co. 23 111. App. 643; Poacher v. New York Cent. R. Co. 49 N.Y. 
 
 263, 10 Am. Rep. 364; Welles v. Netc York Cent. R. Co. 36 Barb. 641: 
 
 aff'd 24 N. Y. 181; Sunderland v. We.'itcott, 4 How. Pr. 468; Welles v. 
 
 New York Cent. R. Co. 24 N. Y. 181; Perkins v. New York Cent. R. Co. 
 
 34 N. Y. 196; Bissell v. New York Cent. R. Co. 35 N. Y. 443; Kinney v. 
 
 New Jersey Cent. R. Co. 34 N. J. L. 513, 3 Am. Rep. 265; Scybolt v. New 
 
 York, L. tf- W. R. Co. 95 N. Y. 562; Higyins v. New Orleans, M. & C.R. 
 
 Co. 28 La. Am. 1-33.
 
 278 UONTKAOT ItKLKAtilXG LlAJJlLITi'— FKKK TKANSPOKTATION. 
 
 are regularly exposed, including that as to the negligence of the 
 company's servant, is not unreasonable or against public policy.' 
 By the English decisions it is clear that the carrier has full 
 power to provide by contract, subject by statute to the approval 
 of the trial judge (Railroad and Canal Traffic Act of 1854), against 
 all liability for negligence, where the passenger expressly cou- 
 tracts in consideration of a free pass or reduction of faref but the 
 carrier is liable for losses and injury in case no contract is madt', 
 occasioned not only by gross negligence, but by ordinary negli- 
 gence." 
 
 § 84- Free, Ti'anspovtation iidll not Sustain Cotl- 
 tract Excusing J\''egligence. 
 
 As the carrier discharges his duties as a public trust, holding 
 his position by a public grant, and for the public use, as well as 
 for his own profit,* and as the obligation of the carrier is imposed 
 to protect the passenger, as a citizen of the state, as well as for 
 the traveler''s personal benefit, it has been held generally that car- 
 riers are subject to the same liabilities for inj uries resulting from neg- 
 ligence to persons riding on a free pass and those paying full fare.' 
 A person invited to ride free, may recover for injuries from negli- 
 gence.* A person riding free who has not assumed the risk of 
 accident, may recover for injuries received through negligence of 
 the carrier.' Where a person is riding free, by the consent of 
 
 'Baten V. Old Colony R. Go. 6 New Eug. Rep. 583, 147 Mass. 255. 
 
 -Dnff V. Great JVorthern R. Co. L. K. 4 Ir. 178; IM/ v. North Eastern R. Co. 
 L. R. 10 Q. B. 437; Neville v. Cork etc. R. Co. 9 Ir. L. T. 69. 
 
 ^McCauley v. Farness R. Co. L. R. 8 Q. B. 57; Hull v. North Eastern R. Go. 
 L. R. 'lO Q. B. 437; Duf v. Great Northern R. Go. L. R. 4 Ir. 178; Ale.r- 
 anderv. Toronto & N. R. Co. 33 U. C. Q. B. 474; WylO. v. Pkhford, 8 Mees. & 
 W. 460; Hinton v. Dibbin, 2 Q. B. 661; Wilaon v. Brett, 11 Mees. & W. 
 115; Beal v. Southern Devon R. Co. 3 Hurlst. «& C. 337; Grill v. General 
 Iron Screw Collier Co. h. R. 1 C. P. 600; Gallin v. London <fe N. W, R. 
 Go. L. R. 10 Q. B. 21'^, 12Moak, Eng. Rep. 268, 35 U. C. Q. B. 453. 
 
 *(}rand Trunk R. Go. v. Stevens, 95 U. S. 655, 24 L. ed. 535. 
 
 ^ fymiscille, N. A. <& G. II. Co. v. Fayhr, 126 Iiid. 126, and autliorities cited. 
 
 "■ Wilton V. Middlese.r R. R. Co. 107 Mass. 108, 9 Am. Rep. 11; Philadelphia 
 cfe R. R. Co. V. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; Tlie New 
 World V. Kinf/, 57 U." 8. 16 How. 469, 14 L. ed. 1019; Files v. Boston tfc 
 A. R. Co. 149 Mass. 204. 
 
 iQuimbi/ V. Bost<m d: M. II. Go. 5 L. R. A. 846. 150 lAIass. ■Sdry; Littlejohn v. 
 Fitchlnmj R. Co. 2 L. R. A. 502, 148 Mass. 478; Hurt v. Smthern R. Co. 
 40 Mi.ss. 391; Nolton v. Wei^tern R. Corp. 15 N. Y. 444; Perkins v. New 
 York Cent. 11. Co. 2^ N. Y. 196; Todd v. Old Colony & F. R. R. Co. 3 
 Allen, 18; CarroUv. .^'talen Island R. Co. 65 Barb. 32; aff'd 58 N. Y. 120.
 
 FKEK TKANSroKTAl'lON NEGLIGENCE. 279 
 
 the company fairly obtained, he is a passenger, and entitled to all 
 riglits and privileges as snch.' So, where he rides free at the 
 invitation of an agent of the cai-rier, althougli the agent has vio- 
 lated his duty by inviting him, yet, if there is no collusion on his 
 part with the agent to defraud the company, he is not deprived 
 of his rights of remedies as a passenger as to injuries received 
 through the negligence of the company." 
 
 A person lawfully on a car and entitled to transportation is a 
 passenger entitled to re(;over for an injurj^ through the negligence 
 of the carrier or its ser\ ants, whether the carrier receives an agreed 
 compensation for his transportation or is compensated therefor by 
 the charge for the ear, or for transportation of property in his 
 charge, or receives no compensation whatever.' 
 
 In an action against a railroad company by a person injured in 
 a collision, the fact that the plaintitf was a stockholder on the 
 road riding at the invitation of the president of the company, 
 paying no fare, constituted no defense, where the collision was 
 occasioned by the gross negligence of the defendant's servants, 
 although plaintiff was not in a passenger car." 
 
 In an early Minnesota case,^ the considerations upon which the 
 liability of the carrier is placed, — that of his safety as an individ- 
 ual, and his security as a citizen, the latter being founded upon 
 public policy — are held to be superior to any right of contract. 
 Especially is this insisted upon as to the protection of the citizen. 
 And this interest of the government is alike, whether the passen- 
 ger travel free, conditionally or for hire. The sternness with which 
 the rule of liability is enforced, the more diligent will be the care 
 
 ^Feinberg v. Delaware, L. & W. R Go. 52 N. J. L. 451: FiM v. Boston & A. 
 R. Co. 149 Mass. 204; Coin. v. Vermont <fe ^/. R. Co. 108 Mass. 7; Little- 
 John V. Fitchburg R. Co. 2 L. R. A. 502, 148 Mass. 478; Austin v. Great 
 Western R. Co. L. R. 2 Q. B. 442; Todd v. Old Colony & F. R. R. Co. 3 
 Allen, 18: Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. 
 ed. 502; Jacobtis v. St. Paul & C. R. Co. 20 Minn. 125; Rose v. Bes Moines 
 Valley R. Co. 39 Iowa, 246: Little Rock & Ft. 8. R. Co. v. Miles, 40 Ark. 
 298: Blair v. Erie R. Co. 66 N. Y. 313; The Neto World v. King, 57 U.S. 
 16 How. 469, 14 L. ed. 1019. 
 
 *Brennan v. Fairhaven ik W. R. Co. 45 Conn. 284, 29 Am. Rep. 679. 
 
 ^Oulf. C. <fc 8. F. R. Co. V. Wilson, 11 L. R. A. 486, 79 Tex. 371; Wiltan v. 
 Middlesex R. Co. 107 Mass. 108; Pittsburg, A. & M. Pass. R. Co. v. Caldwell, 
 74 Pa. 421 ; Washburn v. Nashville & C. R. Co. 3 Head, 638; Creed v. Penn- 
 sylvania R. Co. 86 Pa. 139; 2 Wood, Railway Law, 1039. 
 
 *Philadelphia & R. R. Co. v. Derby, 14 How. 468, 14 L. ed. 502. 
 
 ''Jacobus V. St. Paul <& C. R. Co. 20 Minn. 125.
 
 280 c0>;TKACT KKLEASING liability FKKI-: TKANf?l'i»inATION. 
 
 exercised. The argument tliat a carrier will not relax his care 
 because only a few passengers are unable to call him to account 
 for its neglect, would release the carrier in case of a gi-atuitons 
 passenger, whei'e no stipulation of exem[)tion Avas made. The 
 reason for the rule failing, and no considt-ration having been paid, 
 the rule of liability would not l)e enforceal>le. And in case of a 
 train of free excursionists, is the carrier to be relieved of all sense 
 of responsibility, and if so. is not the public policy of the state, in 
 securing protection to the citizen, lost sight of I Although there 
 be but few passengers traveling on a train, the chance, in case of 
 accident from negligence, that only some of these Avill be injured 
 is a present fact, and reduces the absolute certainty of liability as 
 does any relaxation of the rule. The law cannot permit the car- 
 rier to speculate uj)on his chances of escape from liability for neg- 
 lect of duty. ''It is the enforcement of the rule and the liability 
 imposed — the mulcting of the carrier for his negligence — which 
 brings home to him in the most practical, forcible, and effectual 
 way, the necessity for strictly fullilling his obligations." 
 
 In all cases when free tickets are given, it may be reasonably 
 assumed, there are some considerations of interest, on profit or 
 advantage, received or expected which constitutes the inducemennt 
 to the giving of the ticket. In this view, there would probably 
 seldom, if ever, be given by a carrier a strictly free ticket.' The 
 possibility of an exception would not justify a departure from a 
 rule of law resting upon public policy. Ilexiewing the decisions 
 and the reasoning on which they rest, the weight of authority 
 seems to be opposed even in case of a free passenger, to permit- 
 ting advantage to be taken of the release in the event of injury 
 from the carriers negligence. 
 
 In the Supreme Court of the ITuited States,^ it is ruled that the 
 common law liability of a common can-ier may be limited and 
 qualified by special contract with the owner, provided such special 
 contract does not attempt to cover losses by negligence or miscon- 
 duct. And in a still latei- case,' where the decisions are extei- 
 sively reviewed, the same doctrine is asserted. The latter case, 
 it is true, involved mainly an inquiiy into the reasonableness of 
 
 ^BiMell V. New York Cent. R. Co. 25 N. Y. 442. 
 
 ^YoH- Mfij. Go. V. lUinou Cent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170. 
 
 -Nev. York Caul. R. Co. v. LorJaronrl 84 U. S. 17 Wall. 357, 21 T.. ed. 627.
 
 FKK1-: ^KAN^!l•UK•l Al iU.N N KGLloKNCK. 281 
 
 an exception stijmlated for; hut it une(iniv(X'ally accepted the rule 
 asserted in tlie first mentioned case. 
 
 A person riding upon a pass on which was indorsed this condi- 
 tion : "The person who accei)ts and uses this free ticket, thereby 
 assumes all risk of accident, and that the company shall not be 
 liable under any circumstances, whether by neglect of its agents 
 or otherwise, for any injury of the person, or for any loss or in- 
 jury to his pn>pcrty." etc., can recover for an injury received 
 through tlie negligence of defendant's employes.' 
 
 A carrier cannot exempt itself from lial»ility for negligence by 
 a stipulation in a free pass,^ notwithstanding a contrary rule was 
 intimated,^ which the court refused to fol!.>w.^ But a person 
 tra\eling upon a free pass, cannot recover from the railroad com- 
 pany upon proof of the mere fact that, as he was standing upon 
 the platform of a car, the porter sliut the door so violently that he 
 was thrown down and sustained injury; as such proof, taken alone, 
 does not show negligence on the part of the carrier sufficient to 
 ]nake it liable to a gratuitous passenger.* 
 
 Usually the rule is ecjuai care toward the passenger, whether he 
 travel free or for a consideration, M'here the right to limit the re- 
 sponsibility is denied. Where carriers undertake to convey persons 
 Ijy the agency of steam, they should beheld to the greatest possible 
 care and diligence whether the considerations for such conveyance 
 be pecuniary or not.* The rule in this country, with the exceptions 
 
 ^Jacohm v. St. Paul & C. It. R.Go. 20 Minn. 125. 18 Am. Rep. 360; Bryanv. 
 Missouri P>i». R. Co. 32 Mo. App. 228; Rose v. Bes Moines Valley R. Co. 
 39 Iowa, 246; Mobile c£ 0. R. (Jo. v. Hopkins, 41 Ala. 486; Pennsylvaiwi 
 R. Co. V. Butler, 57 Pa. 335; Pennsylvania B. Co. v. McCloskey, 23 Pa. 
 526; Indianapolis, B. & W. R. Co. v. Beaver, 41 Ind. 493; Illinois Cent. 
 B. Co. V. Morrison, 19 III. 136; Illinois Cent. B. Co. v. Read, 37 III. 484; 
 Hospes V. Chicago, M. & St. P. R. Co. 29 Fed. Rep. 763; Philadelphia & 
 R. R. Co. V. Derby, 55 U. S. 14 How. 468, 486, 14 L. ed. 502, 509; The 
 New World V. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Pennsylmnia 
 R. Co. V. Henderson, 51 Pa. 315. Cleveland, P. & A. R. Co. v. Curran, 19 
 Ohio St. 1. 2 Am. Rep. 362; Ohio & M. R. Co. v. SeWy, 47 Ind. 471, 17 
 Am. Rep. 719. 
 
 ^Sturgeon v. St. Louis, K. C. & A'. R. C>, 65 Mo. 569; Bice v. Kansas Pae. 
 R. Co. 63 Mo. 314. 
 
 ^Bissell V. New York Cent. B. Co. 25 N. Y. 442. 
 
 * Carroll v. Missouri Pac. B. Co. 3 West. Rep. 842, 88 Mo. 239. 
 
 '^Uospes V. Chicago, M. & St. P. R. Co. 29 Fed . Rep. 763. 
 
 ^The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Hospes v. 
 Chicacjo, M. & St. P. R. Co. 29 Fed. Rep. 763; Philadelphia & R. B. Co. 
 V. Derby, 55 U. S. 14 How. 486, 14 L. ed. 502
 
 282 CO^'TKACT RELEASING LIABILITY FKEE TRANSPOKTATION . 
 
 noted, does not distinguish between the care required in case of a free 
 passenger and one for hire.' But there are exceptions to the rule 
 holding that only ordinary care is required toward a free passen- 
 ger.' One fraudulently using a free pass issued to another, and 
 not assignable, can only recover for injury in case of gross negli- 
 gence even when a recovery is permitted.' 
 
 ^ Flint & P. M. R. Co. v. Weir, 37 Mich. Ill; Fay v. The New World, 1 Cal. 
 
 348; Flinn v. PMladelpMa, W. & B. R. Co. 1 Houst. (Del.) 469; Ohio & M. 
 
 R. Co. V. Mnhling, 30 111. 9; Illinois Cent. R. Co. v. Read, 37 III. 484; 
 
 Indiana Cent. R. Co. v. Mundy, 21 Ind. 48; Williams v. Taylor, 4 Port. 
 
 (Ala.) 234. 
 ^Uigky v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450. 
 ^Toledo, W. & W. R. Go. v. Beggs, 85 III. 80. See Great Northern R. Co. v. 
 
 Harrison, 10 Exch. 37(). See also Union Pac. R. Co. v, Nichols, 8 Kan. 
 
 505.
 
 CHAPTER XV. 
 
 VESSEL CARRYING PASSENGERS-LIMITED LIABILITY. 
 
 § 85. Duty of Master of Vessel to Accept and Care foi- Passengers. 
 
 § 86. EesponMhility for Errors of Ship" s Physician. 
 
 § 87. Statutory Duty to Provide Qualified Physician. 
 
 § 88. Seaworthiness of Vessel and Co/npelency of Officers — Statute 
 
 Limiting Liability. 
 § 89. Quarantine — Injury from Negligence. 
 
 § 85. Duty of Master of Vessel to Accept and Care 
 for Passengei-s. 
 A sailing vessel, steamboat or steamship which is a common 
 carrier of passengers, is obliged to carry all persons who apply for 
 passage if the accommodations are sufficient, unless there is a 
 proper excuse for refusal. The refusal to take a passenger should 
 precede the sailing of the ship. After the ship has gone to sea it 
 is too late to take exceptions to the character of a passenger or to 
 his peculiar position if he violate no inflexible rule of the boat in 
 getting on board. Although a steamboat company or other car- 
 rier may properly refuse to transport a drunken or insane man or 
 one whose character is bad, they cannot expel him after having; 
 admitted him as a passenger and received his fare unless he mis- 
 behaves during the journey. Where a passenger behaves himself 
 properly and his fare is tendei-ed, he is entitled to the same rights 
 as other passengers, and a refusal to cari-y him is contrary to law, 
 and although an apprehended danger mitigates the act, it has been 
 said that it affords no legal justification for it. Where the cap- 
 tain of a vessel excludes a passenger from his boat in the well 
 grounded fear that, if returned to the port to which the ship was 
 bound he would be put to death, the legal injury suffered can be 
 compensated by a small amount of money.* 
 
 ^Pearson v. Dunne, 71 U. S. 4 Wall. 605, 18 L. ed. 447. See also Jencks v. 
 Coleman, 2 Sumn. 231; Bennett v. FeninmUir & 0. S. B. Co. 6 C. B. 775; 
 Hancroft v. Great Northern R. Co. 8 Eng. L. & Eq. 362; Elmore v. Sands. 
 54 N. Y. 512; Bennett v. Dutton, 10 N. H. 481 : Day v. Owen, 5 Mich. 520; 
 SaltouKtaU V. Stoc/,-ton, Taney, 11; Cook v. Gourditi.. 2 Nott. & McC. 23. 
 
 28?.
 
 2S4 VESISKL CARRYING PASSENGERS — LIMITED LIABILITY. 
 
 When the trip is for a sutiicient time, the carriage contract 
 bv water includes sufficient and healthful food and Avater.' 
 Under the congressional Act of 18S2, requiring masters of ves- 
 sels to provide tables and seats for ])assengers at regular meals, 
 and denouncing a penalty for failure to do so, and making such 
 penalty a lien upon the vessel, the vessel cannot be libeled for a 
 line for failure of the master to comply with the Act. until he has 
 been fined or a penalty has been imposed upon him in a criminal 
 prosecution for such failure. The libel cannot be maintained in 
 the iirst instance." Jhit the duty cannot be released l>y charter 
 contract.^ 
 
 A steamboat company is under no obligation to furnish a state- 
 room in exchange for tickets for berths bought and paid for by a 
 passenger, upon an oifer of the difference in price.* 
 
 While it is undoubtedly true that a person too ill to travel alone, 
 cannot impose the duties of a nurse upon the carrier, but must 
 provide for his own care and comfort,' yet the carrier is required 
 to act upon notice of a special disability, requiring some attention 
 in entering or leaving the train, though not al>solutely disabling 
 the person transported. J^ut the cari'ier is entitled to such notice." 
 Of course rules of connnon humanity or of courtesy, if binding 
 the carrier to certain personal attention, beyond that ordinarily 
 given to women and children, to a sick or afflicted passenger, have 
 their force ••ntside of the law of conmion carriers.' 
 
 § 86. Respcm nihility for Ei-rors of Ship's Physician. 
 
 In a case decided ^[arcli 8, 1892, by the Court of Appeals of 
 Xew Yoi'k, the action was to recover from a steamship company 
 damages foi- the alleged negligence of the ship's physician in fur- 
 
 ' Young v. Fevoxon, 8 Car. & P. 55; O'CurroU v. lite Havre, 45 Fed. Kep. 764. 
 
 ■The .Sidonian, 38 Fed. Rep. 440. 
 
 •' Tlte Prinz Georg, 3:^ Fed. Kep. 90G. 
 
 ■*MiUer V. New JevMy S. B. Co. 58 Hun, 424 
 
 '•ISevier v. Vir/cuburf/ d- M. R. Co. 61 .Miss 8; LouMville, K <£• G. S'. E. Co. v. 
 
 Fleminfi, 14 Lea, 128. 
 '■Mm V. Ihnton d- M. li. Co. (N. H.) 11 L. R. A. 'Mu; Louisvide <fe JV. R. Co. 
 
 V. Crunk, 11!) liid. .■i.}2; Lurm v. Ne>n /kdfonl ifc T. R. Co. 6 Gray, 64; 
 
 >Sl. Louin, A. Jc T. R. Co. v. Finley, 79 Tex. 85; Sheridan v. Brooklyn CUit 
 
 <fc JV. n. Co. -m N. Y. :51i. 
 ''New Orlenus, J. A G. M. R. Co. v. Staiham, 42 Miss. 607.
 
 KKSI'ONSIBIUTY FOK KKKOKS OK .Sllip's I'HYSICIAX. 285 
 
 nisliing calomel to j)i;iiiitiiT when slie requested quinine. The 
 plaintiff's contention was that when she applied for quinine she 
 had a right to rely upon receiving; that medicine, and, if she was 
 given anytliing else, the defendant was lialde for the injuries sus- 
 tained, and that mistake upon tlie part of the physician having 
 charge of the ship's medicines was not a defense.' Van, Wych v. 
 AUen^ cited in support of this contention, was an action upon 
 contract for breach of an implied warranty. The main ques- 
 tion there decided related to the rule of damages. The case 
 has no application to an action for a wrong which has its found- 
 ation in the violation of a duty entirely outside of and bey(»nd 
 the stipulations of the contract. Thomas v. Winchester^ also 
 cited, was decided upon the negligence of the defendant. The 
 trial court charged the jury that, "if tlic defeuflant was guilty 
 of negligence in putting up and vending the extracts in (piestion, 
 the plaintiff' was entitled to rec(»ver;" and the appellate court held 
 that the liability of the defendant did not arise out of any con- 
 tract or direct privity between him and the ]>laintiff, but out of 
 the duty imposed upon him to avoid acts in their nature danger- 
 ous to the lives of others; and in carelessly labeling a deadly poi- 
 son as a harmless medicine, and sending it so labeled into the 
 market, the court found the negligence upon M'hich a re(;overy 
 was sustained. But whether the druggist who made the immedi- 
 ate sale of the poison to the plaintiff would have l)een liable to 
 her, or whether he was justilied in selling the article upon the 
 faith of the defendant's label, was not in that case decided. 
 That precise question has been decided, however, in several 
 states.'' In must of these cases a recovery was permitted by 
 the trial courts upon proof of the fact of a sale of poison to a per- 
 son who called for a harmless drug, and the question of negli- 
 gence was withdrawn from the consideraticm of the jury over the 
 defendant's objection and exception. In many cases the excei)tion 
 was sustained, the appellate courts holding that a failure on the 
 
 "^ Allen V. State SS. Co. 15 L. R. A. 166, 132 N. Y. 91; Van Wyck v. Allen 
 
 69 N. Y. 62; Thomas v. Winchester, 6 N. Y. 397. 
 ''Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728; Beckwith v. Oatman, 
 
 43 Hun, 265; Losee v. BucJianan, 15 K Y. 476-488, 10 Am. Rep. 623; 
 
 Carpenter v. Blake, 75 N. Y. 12; Morris v. Piatt, 32 Conn. 85; Simondx 
 
 V. Henry, 39 Me. 155, 63 Am. Dec. 611; Fleet v. Hollenkemp, 13 B. Mon. 
 
 219.
 
 286 VESSEL CAKRYING PASSENGERS LIMITED LIABILITV. 
 
 part of the druggist or his clerk to exercise due care and skill 
 must be proved. In the Michigan case it is said, "The question 
 is whether the delivery at a drug store of a deleterious drug to 
 one who calls for one that is harmless, and a damage resulting 
 therefrom, of themselves give a right of action, even though there 
 may have been no intentional wrong, and the jury may believe 
 there is no negligence. That such an error might occur without 
 fault on the part of the druggist or his clerk is readily supposable. 
 He might have bought his drugs from a reputable dealer, in 
 whose warehouse they have been tampered with for the purpose 
 of mischief. It is easy to suggest accidents after they come to his 
 own possession, or wrongs by others, of which he would be ignor- 
 ant, and against wliich a high degree of care would not give per- 
 fect protection. But how misfortune occurs is unimportant if, 
 under all circumstances, the fact of occurrence is attributable to 
 him as a legal fault. The case is one in which a high degree of 
 care may justly be required, . . . It is proper and reasonable 
 that the care required shall be proportionate to the danger 
 involved. But we do not find that the authorities have gone so 
 far as to dispense with actual negligence as a necessary element 
 in the liability when a mistake has occurred." No case is recalled 
 which conflicts with the rule thus stated. The rule of liability 
 applicable to a druggist in cases of this character is the same as 
 that which governs the liability of professional persons whose 
 work requires special knowledge or skill, and a person is not 
 legally responsible for any unintentional consequential injury 
 resulting from a lawful act when the failure to exercise due and 
 proper care cannot be imputed to him, and the burden of prov- 
 ing such lack of care, when the act is lawful, is upon the plain- 
 tiff. 
 
 Negligence of the defendant steamship company, it was said in 
 an action for damages, therefore, being the foundation of the 
 plaintiiPs cause of action, the facts of the case must establish it to 
 create a liability. The defendant was a common carrier of pas- 
 sengers, and the duty to use proper care towards passengers dis- 
 abled or ill is elsewhere discussed.' 
 
 M»</e, § 67.
 
 STATOTORY DUTY TO PKOVIDE C^L ALIKIED PUyglCIAN. 287 
 
 § 87. Statutory Duty to Provide Qualified Physi- 
 cian. 
 
 The duty assumed in this respect by a steamship company is^ 
 imposed upon it by the statute of Great Britain, under the laws 
 of which it was incorporated. That statute known and recited as 
 the "Passengers' Act of 1855," and entitled "An Act to Amend the 
 Law Relating to the Carriage of Passengers by Sea," passed Aug- 
 ust 14, 1855, enacts : First. (§ 41.) That "every passenger ship 
 shall . . . carry a duly qualified medical practitioner, who 
 shall be rated on the ship's articles." Second. (§ 43.) "The owner 
 or charterer of every passenger ship shall provide for the use of the 
 passengers a supply of medicine . . . proper and necessary 
 for diseases . . . incident to sea voyages, and for the medi- 
 cal treatment of the passengers during the voyage; and such med- 
 icines . . . shall, in the judgment of the emigration oflficer 
 at the port of clearance, be good in quality and sufficient in quan- 
 tity for the probable exigencies of the intended voj^age, and shall 
 be properly packed, and placed under the charge of the medical 
 practitioner, . . . to be used at his discretion." Third. 
 (§ 44.) "No passenger ship . . . shall clear out or proceed to 
 sea until some medical practitioner, to be appointed by the emi- 
 gration officer at the port of clearance, shall have inspected such 
 medicines ... as are required to be supplied by the last sec- 
 tion, . . . and shall have certified to the said emigration 
 officer that the said ship contains a sufficient supply,"etc. And 
 by section 42 it was further provided that "no medical practi- 
 tioner should be considered to be duly qualified, for the purposes 
 of this Act, unless authorized by law to practice in some part of 
 her majesty's dominions as a physician, surgeon, or apothecary, 
 nor unless his name shall have been notified to the emigration 
 officer at the port of clearance, and shall not be objected to by 
 him." 
 
 It was alleged and proved in a late case' that the defendant, for 
 the purpose of advertising its line, issued a prospectus, which con. 
 tained the following statement: "An experienced surgeon is carried 
 on board every ship. . . . All medicines, medical comforts, and 
 attendance required are supplied gratis." This prospectus, it will 
 
 ^ Allen V. State 88. Co. 15 L. R. A. 166, 132 N. Y. 91.
 
 288 VESSEL CAKKVINO PASSENGEKS LIMITED LIABILITY. 
 
 be observed, went no further in its representation than the require- 
 ments of the statute. A medical practitioner, duly qualitied as 
 required by the provisions of tlie act quoted, may, it is said by 
 the court, fairly be assumed to be referred to, and the fact that no 
 charge was made for medicines neither added to nor qualified the 
 duty resting upon the defendant under tlie law. The defendant's 
 liability must be sought for in its failure to perform the duty im- 
 posed upon it by the statute. Beyond that it had assumed none, 
 and had none to perform, and consequently violated none, owing 
 to its passengers. If the things which the statute required it to 
 do were performed with due and proper care, its duties to the 
 passengers was discharged. The obligations imposed by the stat- 
 ute were two-fold : first, to employ a duly qualified physician; and. 
 second, to provide a supply of medicines properly packed and 
 labeled, and suitable and necessary for diseases incident to sea 
 voyages. When these two things had been done, and the certifi- 
 cate of their performance given by the government oflicers, the 
 ship was permitted to proceed upon its voyage, and the medicines 
 were from that time under the charge of the physician, to be used 
 at his discretion. Xo negligence is claimed to exist in the per- 
 formance of either of these duties. No evidence, it is said, was 
 offered that the supply of medicine was insufficient in quantity or 
 quality, and the respondent's counsel concedes that tlie compe- 
 tency of the physician was established, and the court charged the 
 jury that for his negligence the defendant wa«i not responsible. 
 The plaintiff, however, gave evidence by a passenger that he 
 applied to the physician for medicine on the same evening that 
 the plaintiff' did, and that he found the "surgery" where the med- 
 icines were kept in disorder and confusion. That some of the 
 bottles were in the racks, and others on the racks, and looked as 
 if they were out of place; and it was by tlie trial court left to the 
 jury to determine whether the "surgery" was in such a condition 
 of confusion as to show that the company did not use ordinary 
 care in providing medicines and properly labeling them, or left 
 tliem (t})en, so that a mistake was very lialjle to occur. As already 
 stated, there was no evidence of a failure to provide an adequate 
 and proper <piantity of medicine, of good quality, and none that 
 tliey were not properly packed and labeled, or that tlie "surgery '
 
 STATUTORY DOTY TO PKOVIDE QUALIFIED PHYSICIAN. 289 
 
 was not properly fitted up or that it was an improper place for 
 the purposes designated. All the evidence on that subject, the 
 court says, came from the defendant, and was to the effect that 
 all the statute required was done, and that the government offi- 
 cers certified to its performance. The negligence charged, there- 
 fore, rests in the confusion in the "surgery" and disarrangement 
 •of the bottles. It was affirmatively shown by defendant, that 
 between Glasgow and Greenock, during the first two hours of the 
 voyage, the medicines were inspected by the medical examiner of 
 the port of Glasgow, with the assistance of the physician, and 
 that they were then properly packed and labeled, and placed in 
 the racks. The statute required that they shall then be placed 
 under the charge of the physician, and be used at his discretion. 
 It was in proof that the medical examiner of the port left the 
 vessel about 6 o'clock on the evening or the first day of the voy- 
 age, and the plaintijff applied for medicine about 8 o'clock in the 
 -evening of the following day, and the question presented, there- 
 fore, in the judgment of the court, is whether testimony of con- 
 fusion in the surgery, or disorder in tbe arrangement of the med- 
 icines, occuring after the vessel put to sea, and after the medicines 
 were placed in charge of the physician, was evidence of such neg- 
 lect of duty on the part of the defendant as to render it liable for 
 such injuries as the plaintifE sustained. In the opinion of the 
 -court of appeals it was not. Any other construction must assume 
 that the ship owner is bound to exercise some supervision over 
 the physician in his treatment of the passengers, and his arrange- 
 ment of the medicine. But no officer on the ship is competent to 
 •do that. The very object of the statute is that a skilled profes- 
 sional man shall be on board the ship to attend the passengers in 
 ■case of sea-sickness, and dispense the drugs and medicines. It is 
 denied that a sailor can have supervision over the doctor, or that 
 an unskilled man, with no ability to tell one drug from another, 
 can have authority over the skilled, experienced physician. To 
 so hold would nullify the law, and put inexperience over experi- 
 •enee, and ignorance where the law requires knowledge and pro; 
 fessional skill. The true rule is that when the ship owner has 
 -employed a competent physician, duly qualified as required by the 
 law, and has placed in his charge a supply of medicine sufficient 
 19
 
 290 VESSEL CARRYING PASSENGERS — LIMITED LIABILITY. 
 
 in quantity and quality for the purposes required, which meetthe- 
 approval of the government officials, and has furnished to the 
 physician a proper place in which to keep them, it has performed 
 its duty to its passengers; that from that time the responsible per- 
 son is the physician, and errors and mistakes occurring in the use 
 of the medicines. are not chargeable to the ship owner; and thatnO' 
 different rule is applicable to such mistakes as are the result of 
 improper arrangement in the care of the medicine than to those^ 
 which are the result of errors in judgment. The work which the 
 physician does after the vessel starts on the voyage is his, and not 
 the ship owner's. It is optional entirely with the passengers 
 whether or not they employ the physician. They may use his 
 medicines or not, as they choose. They may place themselves 
 under his care, or go without attendance, as they prefer, and they 
 determine themselves how far and to what extent they will submit 
 to his control and treatment. The captain of the ship cannot 
 interfere. The physician is not the ship owner's servant, doing 
 his'work and subject to his direction. It is his department, in 
 the care and attendance of the sick passengers, he is independent 
 of all superior authority except that of his patient, and the captain 
 of the ship has no power to interfere except at the passenger's- 
 request. These views find ample support.' 
 
 The first case cited arose before Congress had legislated upon 
 the subject, but it was said in the opinion that "if, by law or by 
 choice, the defendant was bound to provide a surgeon for its ship,, 
 its duty to the passengers was to select a reasonably competent 
 man for that office, and it is liable only for a neglect of that diity." 
 The Massachusetts case cited was decided upon a statute of the 
 United States similar to that of Great Britain, and it was there said 
 that the ship owners "do their whole duty if they employ a duly 
 (qualified and competent surgeon and medical practitioner, and sup- 
 ply him with all necessary and proper instruments, medicine, and 
 medical comforts, and have him in readiness for such passengers 
 as choose to employ him." The court concludes that is the extent 
 of the requirement of the statute in this case, and, if there was 
 any common law liability resting upon the defendant to make- 
 
 ^Laubheim v. DeKoniiuilyke N. 8. M. Co. 9 Cent. Rep. 732, 107 N. Y. 229;. 
 O'Brien v. Chmard tik Co. 13 L. R. A. 329, 154 Mass. 272.
 
 SEAWORTHINESS OF VESSEL AND COMPETENCY OF OFFICERS. 2*Jl 
 
 provision for the care and attendance of its passengers when sick, 
 it was no greater than that imposed by the statute. These views, 
 it is said, of course lead to the conchision that the evidence failed 
 to show the neglect of any duty which the defendant owed to the 
 plaintiff, and the motion to dismiss the complaint should have been 
 granted.' The carriage of passengers and goods by ships is gov- 
 erned by the same general principles governing carriers by land.'' 
 
 § 88. Seauwrthiness of Vessel and Competency of 
 Officers— Statute Limiting Liahility. 
 
 A warrant of seaworthiness is implied in the offer to carry pas- 
 sengers;' and the imposition of a statutory penalty will not bar a 
 right of action for injury received from unseaworthiness. 
 
 It is the duty of the owner, both at common law and under 
 the "Act to Limit Liability of Ship Owners and for Other 
 Purposes," passed March 3, 1851, to provide a competent master 
 and a competent crew, and to see that the ship, when she sails, 
 is in all respects seaworthy. He is bound to exercise the ut- 
 most care in these particulars — such care as the most prudent 
 and careful men exercise in their own matters under similar cir- 
 cumstances; and if by reason of any fault or neglect in these par- 
 ticulars, a loss occurs, it is with his privity within the meaning 
 of the Act of Congress. But the owner is not liable personally 
 for the misconduct of the officers and mariners of the vessel, hav- 
 ing exercised this care, in which he does not participate person- 
 ally. The 6th section of the Act saves the remedy to which any 
 party may be entitled against the master or mariners of such ves- 
 sel, for negligence, fraud or other malversation, and a special con- 
 tract founded on usage, will not take the case out of the opera- 
 tion of the Act.* If the owner exercises due care in the selec- 
 tion of the master and crew, and a loss afterwards occurs from 
 their negligence, witliout any knowledge or act of concurrence 
 on his part, he is exonerated by the statute from any liability 
 
 ^ Allen V. State SS. Co. 15 L. R. A. 166. 132 N. Y. 91. 
 
 'Ntigcnt V. Smith, L. R. 1 C. P. Div. 423, 45 L. J. C. P. 697. See ante. chap. 
 
 9, 11 and 12. 
 » 9 Stat, at L. 635. 
 *Maclachlan, Shipping (2d ed.), p. 310 et seq.; Couch v. Steel, 3 El. & Bl. 402; 
 
 Walker v. WeaUrn Tramp. Co. 70 U. S. 3 Wall. 150, 18 L. ed. 172.
 
 292 VESSEL CARRYING PASSENGERS LIMITED LIABILITT. 
 
 beyond the value of his interest in the ship and the freight then 
 pending. So also, if the owner has exercised all proper care in 
 making his ship seaworthy, and yet some secret defect exists 
 which could not be discovered by the exercise of such due care, 
 and the loss occurs in consequence thereof, without any further 
 knowledge or participation of the owner, he is in like manner 
 exonerated, for it cannot be with his "privity or knowledge" 
 within the meaning of the Act, or in any just sense, and the pro- 
 vision is that "The liability of the owner . . . for any act, 
 matter or thing, loss, etc., . . . occasioned without the priv- 
 ity or knowledge of such owner or owners, shall, in no case, 
 exceed the amount or value of the interest of such owner in such 
 vessel and her freight then pending." This language is broad, 
 and takes away the quality of warranty implied by the common 
 law against all losses except by the act of God and the public 
 enemy.* For such a secret defect the owner would not be liable 
 at common law.^ 
 
 The charterer of a vessel, who mans, victuals and navigates 
 a vessel at his own expense is within the provisions of U. S. 
 Rev. Stat. § 4286, the owner under the Act of 1851. But a carrier 
 contracting to deliver beyond his own line, is not the charterer of 
 a connecting steamship line to which he delivers.* I^or will the 
 negligence of a part owner render the vessel or the other owner 
 liable.'' The statutory limitation of liability will be further exam- 
 ined hereafter. 
 
 % 89. Quarantine. 
 
 "Wliile some of the rules of a state system may amount to regu- 
 lations of conjnierce with foreign nations or among the states, 
 though not so designed, they belong to that class wliich the states 
 may establish until Congress acts in tlic matter by covering tlie 
 .same ground or forbidding state laws. 
 
 ^Lord V. Goodall, N. & P. SS. Go. 4 Savvy. 293. See CMslwlm v. Northern 
 
 Tramp. Co. Gl Barb. 3G3, 390. 
 *The Warkworth, 9 Prob. Div. 20, affirnied 9 Prob. Div. 145, 51 L. T. 558. 
 ^Rice V. Onturio S. B. Co. 50 Barb. 384; mu Mfg. Co. v. Boston S L. R. Corp. 
 
 104 Mass. 122. 
 *T/if; Obey, h R. 1 Adm. 102; Tlie Spirit of the Ocean. 34 L. J. Adin. 74; 
 
 Kfcne V. TheWhinticr, 2 Sawj-. 348; The Volant, 1 W. Rob. 388.
 
 QUARANTINE. 293 
 
 Congress, so far from doing either of these things, has, by the 
 Act of 1799, chap. 53, Eevised Statutes and previous laws, and 
 hj the recent Act of 1878, 20 Stat, at L. 37, adopted the laws of 
 the states on that subject, and forbidden all interference with 
 their enforcement. 
 
 The requirement that each vessel passing a quarantine station 
 shall pay a fee fixed by the statute for examination as to her 
 sanitary condition, and the ports from which she came, is a part 
 of all quarantine systems, and is a compensation for a service ren- 
 dered to the vessel, and is not a tax within the meaning of the 
 Constitution concerning tonnage tax imposed by the states. 
 
 Nor is it liable to constitutional objection as giving a preference 
 for a port of one state over those of another. That section (nine) 
 of the first article of the Constitution is a restraint upon powers 
 of the general government and not of the states, and can have no 
 application to the quarantine laws of a state.' 
 
 The Legislature, under its police power, may pronounce certain 
 things or certain acts nuisances in themselves. Such laws are not 
 unconstitutional because they do not provide compensation to the 
 individual whose liberty to keep or do them is restrained. The 
 Legislature may determine when that which is otherwise property 
 shall cease to be such if kept against law. Where anything is de- 
 clared a nuisance by legislation, it is not competent for a party to 
 show that it is not, in fact, so. The board of health appointed 
 under state authority has power to make regulations necessary 
 for the health and safety of thfe inhabitants, extending to all per- 
 sons, goods and effects arriving in vessels; it may determine that 
 certain articles shall always be subjected to disinfection before 
 they are delivered to the importers. 
 
 The Legislature having provided that all expenses incurred under 
 quarantine laws shall be paid by the owner, it is not competent 
 for the answer in an action, as a defense to this claim, to show 
 that the goods did not require disinfection, and could not have 
 transmitted disease. 
 
 The board of health may make a reasonable contract for the 
 disinfection of goods; the duty of paying for the expenses thus 
 
 ^Morgan's L. & T. R. & 8S. Co. v. Louisiana Board of Health, 118 U. S. 
 455, 30 L. ed. 237.
 
 294 VESSEL CAKKYINU PASSErSTOERS — LIMITED LIABILITY". 
 
 incurred is, by the statute, cast upon the owner; and his promise 
 to pay therefor is one implied by law, even against his protesta- 
 tion. Such a contract necessarily implies a lien in favor of the con- 
 tractor into whose hands the goods are taken for disinfection, to 
 secure him for the expense properly incurred in his work.' 
 
 The Florida Quarantine Act of 1885, taken by itself alone, does 
 not, by virtue of the general powers it confers on comity boards 
 of health authorize charges to be made against a vessel for quaran- 
 tine purposes." 
 
 The laws in reference to the quarantine apply to a contract to 
 furnish a pier for a steamship while in port, if in force when the 
 contract is made.^ 
 
 A reasonable charge, according to tonnage, of the material for 
 the use of a crib erected by a county board of health for receiving 
 ballast, is proper where the discharge of the ballast is for the pur- 
 pose of disinfection; but it is not proper to base any charge upon 
 the tonnage of the vessel. The county boards of health, under 
 the Florida Act of 1885, construing that Act in connection with 
 the quarantine acts of 1879 and 1883, are authorized to make 
 charges against a vessel for quarantine services, if, under the 
 authority given by the latter act, they have made proper provision 
 therefor.* 
 
 Under the Florida Act of 1885 (chap. 3G03) and the acts in 
 pari 7)iateria prior thereto, county boards of health have no 
 authority, wdthout an examination or inspection, to require vessels, 
 upon entering ports within the jurisdiction of said boards, to 
 deviate from their course six miles and go to a quarantine station 
 for insjDection and examination.* 
 
 A port inspector appointed by a county board, under Florida Act 
 1885, chap. 3603, has the powers and duties described by Florida 
 Act 1869, chap. 3162. Under Florida Acts 1879, chap. 3162, and 
 1885, chap. 3603, a county board may establish quarantine at any 
 place, when in its judgment, it is expedient to do so. The quar- 
 
 ' Irain v. Bonton Disinfecting Go. 4 New Eng. Rep. 437, 144 JMiiss. 523. 
 
 ■^Ferrari v. Board of Health, 24 Fla. 390. 
 
 ^Elwell V. Fabre, 52 Hun, 70. 
 
 *Ferrari v. Board of Health, 24 Fla. 390. 
 
 ''For/ien V. Escanbia County Board of Health (Fla.) 13 L. li. A. 519.
 
 QUARANTINE. 295 
 
 :antine regulations which Florida Act 1885, chap. 3603, authorizes 
 the board of health to make, are not operative except during the 
 ■existence of a quarantine duly established by the board in accord- 
 ance with the Act.' 
 
 The system of quarantine laws established by statutes of 
 Louisiana is a rightful exercise of the police power for the pro- 
 tection of health, which is not forbidden by the Constitution of 
 the United States." 
 
 But a state cannot levy a tonnage tax on vessels owned in 
 foreign ports, entering her harbors in pursuit of commerce, in 
 ■order to defray the expenses of her quarantine regulations.^ 
 
 An ordinance prohibiting second-hand clothing to be brought 
 into or offered for sale within a town, without first proving that 
 it did not come from a place where contagion or infection is or 
 has been prevailing, is unreasonable and void in the absence of 
 :any epidemic or other apparent necessity therefor." 
 
 Where no damage to either passengers or freight is to be rea- 
 sonably apprehended from both remaining on board during the 
 probable delay of a few days in quarantine, the vessel is not 
 .required to tranship either." 
 
 W Donovan v. Wilklas, 24 Fla. 281. 
 
 ^Morqan's L. & T. R. <& SS. Co. v. Louisiana Board of Health, 118 U. S. 
 
 455, 30 L. ed. 237. 
 ^Peete v. Morgan, 86 U. S. 581, 22 L. ed. 201. 
 ^Kosciusko V. Slomherg, 12 L. R. A. 528, 68 Miss. 469. 
 ^The Boliemia, 38 Fed. Rep. 756.
 
 CHAPTEE XYI. 
 
 STATUTORY REGULATION OF STEAM VESSELS-PENALTIES. 
 
 § 90. Regvlation of Steam Vessels. 
 
 § 91. Protection of Passengers by Limiting their Number. 
 § 92. Examination of Apjjlicants for License as Ship Officer. 
 § 93. Action for Penalty for Carrying Excess of Passengers. 
 § 94. Proceedings in Rem for Penalty for Excess of Passengers. 
 § 95. Prohibition of Dangerous Articles on Passenger Vessels. 
 
 § 90. Regulation of Steam Vessels. 
 Congress lias passed statutes prescribing rules for the regula- 
 tion of steam vessels, which include steamboats, when engaged in 
 carrying passengers.' Under U. S. Ke vised Statutes, §§ 442& 
 and 4470, the steamboat inspectors may require ferryboats to be- 
 pro vided with the same precautions against fire, so far as appli- 
 cable, that are expressly provided in reference to any other steam, 
 vessels carrying passengers; and when the boat passes inspection 
 on the basis of having a steam pump provided in accordance with 
 section 4471, the boat is bound to maintain it in the condition 
 required by that section.^ Indeed all vessels engaged in the car- 
 rying of passengers and freight, from port to port, are carriers,, 
 whether upon rivers, bays, lakes, or along the coast;' and this- 
 whether the vessel ply regularly between stated ports, or only 
 when specially chartered, from a designated port to another named 
 port; and if they receive passengers generally, and freight, they 
 are common cai-riers as to them and as to the special class of 
 freif'ht accepted.* If they transport passengers or freight for the^ 
 pul)lic, whether on river, lake or sea coast, their character as com- 
 mon carrier is fixed." 
 
 ^The Hazel Kirke, 25 Fed. Rep. 601. 
 
 ^The Garden Cihj, 26 Fed. Rep. 766. 
 
 »Za Tourc.Ue v. Burton, 68 U. S. 1 Wall. 43, 17 L. ed. 609. 
 
 *Lmir Alkali Go. v. Johnson, L. R. 7 Exch. 267, L. R. 9 Exch. 338. 
 
 '•The KUiqara v. Corden, 62 U. S. 21 How. 16, 26, 16 L. ed. 44, 47; Grosbxi v. 
 
 Fitch, 12 Conn. 410; CitizeiiH Bank v. Nantucket 8. B. Co. 2 Slory, 16; 
 
 Vlaric V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985; The Commerce,. 
 
 29G
 
 KEGULATION OF STEAM VESSELS. 207 
 
 Mr. Justice Swayne, speaking for the United States Supreme- 
 Court, said: "The power to regulate commerce comprehends the 
 control for that purpose, and to the extent necessary, of all navi- 
 gable waters of the United States, which are accessible from a 
 state, other than those in which they lie. For this purpose they 
 are the public property of the nation and subject to all the requi- 
 site legislation of Congress.'" Mr. Justice Field, speaking for the 
 court in another case, said: " The power to regulate commerce 
 authorizes appropriate legislation for the protection of either 
 interstate or foreign commerce; and for that purpose such legis- 
 lation as will insure the convenient or safe navigation of all navi- 
 gable waters of the United States, whether that legislation consists 
 in regulating the removal of obstructions to their use, in prescrib- 
 ing the form and size of vessels employed upon them, or in sub- 
 jecting the vessels to inspection and license in order to insure their 
 proper construction and equipment." * That in the case of steam- 
 boats, the inspections of their hulls and boilers, the licensing of 
 their pilots and engineej'S, the carrying of prescribed lights, and 
 the giving and answering of prearranged signals when meeting' 
 and passing, do materially increase the safety and convenience of 
 navigable water, considered as a highway of commerce, there i& 
 no doubt, and therefore there is no question that Congress may 
 make regulations on these subjects, which are applicable to vessels- 
 engaged in intrastate commerce as well as foreign or interstate 
 commerce.' The power to regulate the navigation of the water* 
 of the United States being comprehended in the grant of power 
 to regulate commerce, not merely as an incident but a part 
 of it. Congress has power ''to make all laws which shall be 
 
 66 U. S. 1 Black, 574, 17 L. ed. 107; Hastings v. Pepper, 11 Pick. 41; 
 McClure v. Hammond, 1 Bay, 99; Waring v. Clarke, 46 U. S. 5 How. 452, 
 12 L. ed. 23; The Oenesee Chief v. Fitzhug'h, 53 U. S. 12 How. 443. 13 L. ed. 
 1058; Jackson V. The Mag7iolia, 61 U. S. 20 How. 298, 15 L. ed.dlOyPhiladel- 
 phia, W. & B. B. Co. v. Philadelphia & H. DeO. S. T. B. Co. 64 U. S. 23 
 How. 215, 16 L. ed. 435; The Reeside, 2 Sumu. 567; McGregor v. Kilgore, 
 6 Ohio, 358; Poicell v. Myers, 26 Wend. 5^1; Hale v. New Jer.^ei/ S. iVav. 
 Co. 15 Conn. 539; Diimeth v. Wade, 3 111. 285; Parker v. Flugg. 26 Me. 
 181; Poi-lerfield v. Humphreys, 8 Hump. 497; Warden v. Greer, 6 Watts. 
 424. 
 
 ^Oilman v. Philadelphia, 70 U. S. 3 Wall. 724, 18 L. ed. 99. 
 
 ''The Daniel Ball, 77 U. S. 10 Wall. 564, 19 L. ed. 1001. 
 
 ■'The City of Salem, 2 L. R. A. 380, 2 Inters. Com. Rep. 418, 37 Fed. Rep. 
 846.
 
 298 STATUTOKV KEGULATIOX OF STEAM VESSELS. 
 
 necessary and proper for carrying into execution" such power.' 
 Chief Justice Marshall said : " Let the end be legitimate, let 
 it be within the scope of the Constitution, and all means which 
 are appropriate, which are plainly adapted to that end which 
 are not prohibited, but consist with the letter and spirit of the 
 "Constitution, are constitutional." And again : ''■ But where the 
 law is not prohibited, and is really calculated to effect any of the 
 ■objects intrusted to the government, to undertake here to inquire 
 into the degree of its necessity would be to pass the line which 
 circumscribes the judicial department, and to tread on legislative 
 ground."* 
 
 In a Minnesota case, plaintili' was injured by the explosion of a 
 boiler of a steamboat upon which he was a deck hand. It was 
 held that 5 U. S. Stat, at L. p. 806, § 13, providing "that in all 
 suits and actions against proprietors of steamboats, for injuries 
 arising to person or property from the bursting of the boiler of 
 any steamboat, . . . the fact of such bursting shall be taken 
 as full prima facie evidence sufficient to charge the defendant, or 
 those in his employment, with negligence, until he shall show 
 that no negligence has been committed by him, or tliose in his 
 employmant," made it incumbent upon the defendant, although a 
 suitor in a state court, to disprove negligence.' Although this stat- 
 ute has been repealed, the rule of evidence fixed by it has not been 
 abandoned in the United States courts. Negligence may be inferred 
 from the fact of the explosion of the boiler of the vessel, although 
 the defendant is under no contract obligation to protect the plain- 
 tiff.* As was said by Jtistice "Wallace: "Undoubtedly, the presump- 
 tion has been more frequently applied in cases against carriers of 
 passengers than in other cases of negligence, but there is no founda 
 tion in authority or reason for any such limitation of the rule of 
 evidence. The presumption originates from the nature of the act, 
 not from the nature of the relations between the j^arties. It is 
 indulged as a legitimate inference whenever the occurence is such 
 as in the ordinary course of things does not take place when 
 
 'U. S. Const, art. 1, g 8. 
 
 ^.^fcCulloch V. Maryland, 17 U. S. 4 Wheat. 431, 4 L. ed. G05. 
 
 ^McMdhon v. IJiividson, 13 Miau. HoT. 
 
 *Iioiie V. Stephens & (3. Tramp. Co. 30 Blatclif. 411.
 
 PJBOTECTION OF PASSENGERS BY LIMITING THEIll NUMBER. 29'J 
 
 proper care is exercised, and is one for wliicli the defendant is 
 responsible.'" 
 
 Upon a libel against a steamboat where it appears that the 
 libellant was injured by the bursting of a boiler, or dangerous 
 escape of steam, the burden is on the defendant, under the Act 
 of Congress, to show that the injury was not the result of negli- 
 gence committed by those in his employ/ 
 
 A steamship is liable for injury to a person who fell through 
 an unguarded hatch which was ordinarily kept closed and of the 
 opening of which the passengers were not notified." Where a 
 hatchway gave way when libellant stepped upon it, precipitating 
 him into the hold of the vessel, without fault on his part, the 
 vessel is liable.* 
 
 So where injury occurs from leaving exposed machinery or con- 
 necting chains, or any negligence causing injury.^ Compliance 
 with the statutory requirements is no defense to a charge of neg- 
 ligence.* 
 
 § 91. Protection of Passengers hy Limiting their 
 
 JYumher. 
 
 The object of legislation regulating the management of steam 
 vessels is the protection of the health and lives of passengers from 
 becoming a prey to the parsimony of ship owners in failing to 
 properly equip their vessels, or to employ skillful and trained offi- 
 •cers. The Act of Congress, approved Feb. 22, 1847, entitled, "An 
 Act to Kegulate the Carriage of Passengers in Merchant Vessels," 
 limits the number of passengers, excluding a greater number than 
 the following proportions, to the space occupied by them, that is 
 to say; on the lower deck, 1 passenger for every fourteen clear 
 superficial feet of deck, if such A^essel is not to pass within the 
 tropics during such voyage. If it is to do so, then 1 passenger 
 
 'See also Poaey v. Scoville, 10 Fed. Rep. 140, where the person injured was 
 clerk of the boat, and Young v. Bransford, 13 Lea, 233, where a casual 
 visitor in a mill was killed by the explosion of a boiler. 
 
 niie NewWorld v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019. 
 
 ^Behrens v. The Furnema, 35 Fed. Rep. 798; The Pilot Boy, 23 Fed. Rep. 103. 
 
 *qainn v. The Yoxford, 33 Fed. Rep. 521. 
 
 '■Uaroni v. Compagnie Nationale De Navigation, 39 N. Y. S. R. 63; The Ne- 
 derland, 14 Fed. Rep. 63. 
 
 * Caldwell v. New Jersey S. B. Co. 47 N. Y. 383; Simmons v. New Bedford, 
 B. <& N. S. B. Co. 97 Mass. 361.
 
 300 STATOTOKY KEGULATION OF STEAM VESSELS. 
 
 for every 20 such clear superficial feet of deck; and on the orlop 
 deck, 1 passenger for every 30 such superficial feet.* 
 
 The United States Statute, § 4465, imposes a penalty for taking 
 on board of any steamer a greater number of passengers than 
 stated in the certificate of inspection.^ But where it appeared that 
 the persons in excess of the aMowed number were intri;ders against 
 the will of the ofiicers of the boat, and that the boat moved from 
 lier landing to another convenient place to avoid the crowd of 
 people whom they feared might force their way upon her and 
 endanger her safety, the penalties were not incurred.' 
 
 A steamboat, having obtained a certificate as a general passenger 
 boat, and not as a ferryboat, does not come within the exception 
 in section 4464.* An oral permission to carry an excess of pas- 
 sengers is not admissible as a defense.' In estimating the number 
 of passengers on a steamer no deduction is to be made for chil- 
 dren or persons not paying, but those employed in managing the 
 vessel are not to be included; and in estimating the tonnage the 
 measurement of the custom house at the port of arrival is to be 
 taken." AVhen a steam ferryboat, contrary to the provision of 
 Revised Statutes, § 4466, carries passengers on an excursion, 
 largely in excess of the number allowed by her permit, and fails 
 to carry the required number of life preservers, she is guilty of a 
 marine tort, and a United States District Court has jurisdiction 
 of a libel in jpersonam against her owners and master to recover 
 the penalty prescribed by section 4500.'' Under section 4466 of 
 the Revised Statutes, where a passenger steamer does not carry,, 
 or purpose to carry, a number of passengers additional to the 
 number authorized by its certificate, and does not go or purpose 
 to go out of the waters where it is authorized by its certificate to 
 ply, it is not an "excursion" in the meaning of the statute, and no 
 special permit in writing is necessary.* 
 
 ' United Stales v. The Neurea, 60 U. S. 19 How. 93. 15 L. ed. 531. 
 
 ^Pollock V. The Sea Bird. 3 Fed, Rep. 573; The Laura M. Starin, 11 Fed. 
 
 Rep. 177. 
 '^Poor V. The Oeneva, 20 Fed. Rep. 647. See The City of Salem, 3 L. R. A. 
 
 380 and note, 3 Inters. Com. Hep. 418, 37 Fed. Rep. 846. 
 *The Hazel Kirke, 25 Fed. Rep. 601. 
 ''Pollock V. 'The Laura, 5 Fed. Rep. 133. 
 ' United Staten v. 2Vte I^oui^a Barbara, Gilp. 332. 
 '^United States v. Burlington & IL G. Ferry Go. 21 Fed. Rep. 832. 
 *The Pope Catlin, 31 Fed. Rep. 408.
 
 PROTECTION OF PASSENGERS BY LIMITING THEIR NUMBER. 301 
 
 The regulation contained in U. S. Eev. Stat. § 44G5, forbidding 
 -H steamboat to carry more passengers than allowed iii her certiii- 
 cate of inspection, applies to such boats engaged in carrying pas- 
 sengers on a navigable water of the United States, between ports 
 of the same state only.' The City of Salem was a vessel wholly 
 propelled by steam and engaged in navigating the Wallamet river, 
 and was duly enrolled and licensed therefor; by her certificate 
 ■of inspection she was only entitled to carry sixty passengers; 
 on said day this vessel was engaged in carrying passengers from 
 the port of Portland to other points and places on said river and 
 within this district, and did on four such trips carry in the aggre- 
 gate, 2910 more passengers than allowed by her certificate. The 
 precise question raised in the case has never been passed on by 
 the Supreme Court. In the district courts there have been appar- 
 ■ently conflicting decisions on the point. 
 
 It has been held that a steamboat "regularly enrolled and 
 licensed" for the navigation of the Ohio river, "and subject to the 
 laws of Congress," was not liable, under § 4-492 of the Revised Stat- 
 utes, for cai'rying passengers in barges in tow, the same not being- 
 equipped as prescribed by the supervising insj)ectors, between dif- 
 ferent ports of the same state. But the opinion leaves it in doubt 
 whether the steamboat would be liable for carrying passengers on 
 her own decks between the same points, contrary to the laws of 
 the United States on the subject. After substantially admitting 
 that Congress has the power to prescribe the law of the highway, 
 so far as may be necessary to protect interstate commerce, the 
 court says: "The steamer which had these barges in tow, being 
 subject to the navigation laws of the United States, the mere fact 
 that she took in tow the barges had nothing to do with any inter- 
 ference with the proper navigation of the Ohio river." * 
 
 Ln another case it was held that the owners of the vessel engaged 
 in navigating the waters of the Mississij)pi, carrying passengers 
 between two ports in the state of Iowa, in excess of the number 
 authorized by a permit issued under section 4466 of the Revised 
 Statutes, are liable for the penalties prescribed in section 4500 of 
 
 ^The City of Salem, 3 L. R. A. 380, 3 iQters. Com. Rep. 418, 37 Fed. Ren. 
 84G. 
 
 ^The Gretna Green, 20 Fed. Rep. 901.
 
 302 STATUTOKY KEGULATION OF STEAM VESSELS. 
 
 the same. The court held that Congress has power to regulate- 
 the navigation of vessels on the navigable waters of the United 
 States, when engaged exclusively in interstate commerce, and that 
 when a steam ferrvboat, contrary to section 4466 of the Revised 
 Statutes, carries passengers between ports of the same state, in 
 excess of the number allowed in her permit, she is guilty of a 
 marine tort, and a district court of the United States has jurip. 
 diction of a suit in admiralty against her owners to recover the 
 penalty prescribed by section 4500 of the E,e vised Statutes for the 
 same.* 
 
 It has also been held that a steamboat employed in carrying- 
 passengers between two ports of the state of Wisconsin was not 
 liable to a penalty for not having her hull and boilers inspected 
 under the Steamboat Act of 1852;^ and that three steam vessels 
 belonging to the state of Maryland not engaged in carrying 
 freight or passengers, but used to enforce the state fishery laws 
 in the Chesapeake bay, are liable to the penalties prescribed by 
 § 4499 of the Revised Statutes, for failing to have their hulls and 
 boiler inspected by the Dnited States inspectors, under sections 
 4417 and 4418 of the Revised Statutes.^ The court held that the 
 "supreme and exclusive control" of Congress of the navigable 
 waters of the United States " might be defeated or rendered less 
 effective for its objects, if there were to be recognized a class of 
 vessels privileged to use them, without being subject to those pro- 
 visions which Congress determines are required for the safety of 
 all, and therefore, was unable to assent to the contention tliat the 
 fact that the vessels belonging to the state are not used in com- 
 merce, but solely for the police purposes of the fishery force, pre- 
 vents Congress from having the constitutional power to legislate 
 with reorard to them. It is not their use, but the fact that thev navi- 
 gate the highways of commerce, which brings them within the 
 constitutional grant of power, and within the language of section 
 4400 of the Act of Congress. 
 
 It has l)een held by the Suj)reme Court of the United States 
 tliat while navigating the high seas, between ports of the sam& 
 
 ' United Slates v. Burlington & II. (J. Ferry Co. 31 Fed. Rep. 331. 
 
 ■^Tlie Seneca, 1 Biss. 371. 
 
 "Tlic OijHter Police Steamers of Maryland, 31 Fed. Rep. 763.
 
 EXAMINATION OF APPLICANTS FOK LICENSK AS SHIP OFFICERS. 305 
 
 state, a vessel of the United States is, together with the business 
 in which she is engaged, subject to the regulative power of Con- 
 gress.* Mr. Chief Justice Waite, in speaking for the court said,, 
 in substance, that The Ventura, while navigating the Pacific ocean, 
 although bound from and to ports in the state of California, was 
 without the state and on a highway of nations, and therefore 
 " engaged in commerce with foreign nations, and as such she and 
 the business in which she was engaged were subject to the regu- 
 lating power of Congress." The case of The City of Salem, a vessel 
 ])ropelled by steam, falls within the language of the statute," 
 defining what vessels shall be subject to the provisions of title 52. 
 
 On the occasion when the question arose she Avas navigating the 
 Wallamet river, a navigable water of the United States,' which 
 is a common highway of commerce and open to general and com- 
 petitive navigation. It was held that the power to regulate com- 
 merce among the several states comprehends the power to regulate 
 the navigable waters of the United States on which such commerce 
 may be or is carried ; and to this end Congress may make any 
 regulation concerning such navigation, including the vessels en- 
 gaged therein, as may be necessary and proper to secure and main-^ 
 tain the safety and convenience of the waterway; which regulations 
 are so far applicable to vessels engaged only in intrastate commerce 
 thereon as to those engaged in interstate commerce. 
 
 The regulation contained in U. S. Rev. Stat., § 4-1:05, forbidding 
 a steamboat to carry more passengers than allowed in her certificate 
 of inspection, is ruled to apply to such boats as are engaged in 
 carrying passengers on a navigable water of the United States 
 between ports of the same state only.'' 
 
 § 92. EpcaminatioTi of Applicants for License as 
 
 Ship Officer. 
 
 By title 53 of the Eevised Statutes, prescribing the regulations 
 for steam vessels, masters, chief mates, engineers and pilots are- 
 
 ^Lord V. Goodall N. & P. SS. Go. 103 U. S. 541, 26 L. ed. 224. 
 
 2U. S. Rev. Stat. §§ 4399, 4400. 
 
 ^Hatch V. Wallamet Iron Bridge Qo. 7 Sawy. 136; Wallamet Iron Bridge Co. 
 
 V. Hatch, 9 Sawy. 648. 
 *The City of Salem, 4 L. R. A. 125, 38 Fed. Rep. 762.
 
 304 STATUTOKY REGULATION OF STEAM VESSELS. 
 
 required to be licensed as officers, and penalties are attached for 
 their employment and service without pro23er license.' By section 
 4399 of the Revised Statutes every vessel propelled by steam in 
 whole or in part is a steam vessel within the meaning of this title.' 
 The statute gives a separate penalty for every violation of the 
 Act, and a direct remedy in admiralty against the vessel for the 
 recovery of the penalty; and any admiralty court in which the 
 vessel may be has jurisdiction.' 
 
 A system of examinations is pro\ided for, and an oath mnst be 
 taken before the granting of the license; and boards of inspectors 
 are given power to investigate acts of incompetence and miscon- 
 duct of these licensed officers.* But these and similar provisions 
 do not create any new or other officers on shipboard than existed 
 before the passage of the acts.** An indictment under U. S. He vised 
 Statutes, § 4438, which provides that it shall be unlawful to employ 
 ^ny person, or for any person to serve, as a master, chief mate, 
 engineer, or pilot on any steamer, who is not licensed by the in- 
 spectors, need not charge that the employment was with knowl- 
 edge that the employe had not been licensed as the statute re- 
 quired. Section 4441 provides that the inspector shall examine 
 the applicant for license as an engineer, and also requires the en- 
 gineer when employed on a vessel to place his certificate of license 
 in some conspicuous place in such vessel, where it can be seen by 
 passengers at all times." Inspectors or the United States have 
 authority to issue a license to the master of a steamship to act as 
 pilot between Boston and Havana.'' 
 
 A steamboat employed by a railroad company to transport passen- 
 gers on Jamaica Bay, Long Island (which is an inlet of the Atlantic 
 Ocean entirely within the state of New York), in connection with 
 A railroad forming a part of the railroad system of the whole 
 -country, is engaged in interstate commerce to an extent sufficient 
 
 1 United States v. Uuff, 13 Fed. Rep. 632. 
 ^Joslyn V. Nickcrson, 1 Fed. Rep. 137. 
 
 ^Pollock V. The Sea Bird, 3 Fed. Rep. 573, citing Tlte MisMuri. 3 Ben. 508; 
 9 Biatchf. 433; United States v. The Queen, 4 Ben. 237, IJ Blatchf. 416. 
 *U. B. Rev. Slat. §§4438, 4452. 
 ^United SUiten v. Huff, 13 Fed. Rep. 632, 633. 
 ^United Stalen v. Simn, 9 Fed. Hep. 443. 
 ■> U. S. Rev. Stat. § 4443; Joslyn v. JVic/cerson, 1 Fed. Rep. 133.
 
 REMEDY HV ACTION FOR CAKKYING KXCESS Ob' PASSENGKKS. 3(J5 
 
 to bring her within the provisions of sections 4465 and 4469 of 
 the Revised Statutes, prescribing penalties for steainei-s carrying 
 more passengers than aUowed by their certificates of inspection.' 
 
 -§ 9S. Remedy hy Action for Penalty for Carrying 
 E.Ycess of Passengers. 
 
 The provision of the Passenger Act of August 2, 1882, § 1, 
 relating to excess of passengers, cannot be enforced against the 
 master of a vessel by a civil proceeding in admiralty." An action 
 for the penalty need not be prosecuted in the name of the United 
 States,* The United States is not a necessary party to a suit for 
 recovery of the penalty under United States Revised Statutes, 
 § 4465, which penalty is imposed for taking on board of any 
 steamer a greater number of passengers than is stated in the cer- 
 tificate of inspection.' Where a libel charges a vessel with hav- 
 ing carried a certain number of passengers in excess of the num- 
 ber allowed by law, a penalty will be awarded only for the num- 
 ber charged in the libel, although the evidence shows that a 
 greater number was carried," 
 
 The Seci'etary of the Treasury may remit claims of informers,' 
 and of the United States, to penalties and forfeitures incurred, 
 under sections 4465 and 4469 of the Revised Statutes, for carry- 
 ing a greater number of passengers than the certificate of inspec- 
 tion permits; and such remission will operate as a full discharge.' 
 It is not, however, a power to pardon.* The general proposition 
 that the power to pardon is su])ject to such a limitation is well 
 supported by authorities.' 
 
 ^The Hazel Kirke, 25 Fed. Rep. 601. 
 
 ■The Scotia, 39 Fed. Rep. 429. 
 
 ""Hatch V. The Boston, 3 Fed. Rep. 807. 
 
 ^Pollock ^. The Sea Bird, 3 Fed. Rep. 573; Th.e Laura M. Starin, 11 Fed. 
 
 Rep. 177. 
 ^-The Columbia, 39 Fed. Rep. 617. 
 « U. S. Rev. Stat. § 5294. 
 -'The Laura, 8 Fed. Rep. 612. 
 "Pollock V. Tlie Laura, 5 Fed. Rep. 133. 
 
 ■'Howell V. James, 2 Strange, 1272, 3 Coke, Inst. 236-238; United States 
 V. Harris, 1 Abb. U. S. liO; United States v. Lancaster, 4 Wash. C. C. 
 66; Shoop v. Com. 3 Pa. 126; Rowev. State, 2 Bay. 565; Pollock v. TIte 
 Laura, 5 Fed. Rep. 136. 
 
 20
 
 300 STATLTOKY BJiUULATiON OF STEAM VESSELS. 
 
 § 94' Fiwceeding in rem for Penalty for Excess 
 of Passengers. 
 
 Proceedings in rem may be maintained in the district court for 
 the penalty provided by United States Revised Statutes, § 4465, 
 for taking on board a steamer a greater number of passengers than 
 that stated in the certificate of inspection. 
 
 Section 4469 of the Revised Statutes provides that the penalty 
 shall be a lien on the vessel, to enforce which a suit in admiralty 
 lies by proceedings in, rem? A verdict and judgment against 
 the owners, to charge them personally with the penalties incurred 
 is not conclusive against their vendees in a subsequent suit in rem 
 to enforce against the vessel the lien for the penalties.' The libel 
 need not allege that libelant was a passenger, or that he was an 
 informer, or that he sued as such; nor need it set out the names of 
 the passengers taken on board.' It is sufficient if it sets forth the 
 offense in the words of the statute which creates it, with sufficient 
 certainty as to the time and place of its commission.* 
 
 Section 4469 of the Revised Statutes authorizes a bond to be 
 given to secure the judgment as in other cases.^ I^or will the 
 bringing of an action of debt against the master and owners of 
 the boat, and prosecuting the same to judgment, release the lien 
 given by Revised Statutes, § 4469. Such lien was not de- 
 vested by a sale to a bona fide purchaser. It is not necessary 
 that the vessel should have been attached, before the filing of the 
 libel to enforce the statutory lien. That the libelant did not pro- 
 ceed against the vessel until the recovery of the judgment, in the 
 personal action against the master and owners, did not constitute 
 laches.' Where the claimant pleaded, in his answer to a libel 
 tiled under the Revised Statutes, § 4465, an oral permission 
 to carry additional passengers on excursions, under Revised Stat- 
 utes, § 4466, which requires that the permission should be in 
 
 ^ Hatch V. Tim Boston, 3 Fed. Rep. 807; T/ie Arctic, 11 Fed. Rep. 177. 
 
 ^The Boston, 8 Fed. Rep. 638. 
 
 *PoU()ck V. The Sea Bird, 3 Fed. Rep. 573; Pollock v. The Laura, 5 Fed- 
 Rep. 133. 
 
 * United Slates v. T/ie Neurea. 60 U. S. 19 How. 94, 1*5 L. ed. 533. 
 
 *The Laura M. StarCn, 11 Fed. Rep. 177. 
 
 *IIatch V. T/te Boston, 8 Fed. Rep. 807.
 
 PROHIBITION OF DANGEROUS ARTICLES ON PASSENGER VESSELS. 307 
 
 writing; this defense could not avail the claimant, and that part of 
 the answer must be stricken out upon exception as immaterial.'' 
 In a suit for carrying of unlawful number of passengers, it ap- 
 pearing that the persons were intruders against the will of th(? 
 officers of the boat, and that the boat moved from her landing to 
 another convenient place to avoid a crowd of people who it was 
 feared might force their way upon her and endanger her, the 
 penalties were not incurred.'' 
 
 § 9o. Prohihition of Dangerous Articles on Pas- 
 senger Vessels, 
 
 In an action to recover penalties for the violation of Revised 
 Statutes, § 4472, which prohibits the carrying of petroleum 
 and other dangerous articles upon passenger vessels, except refined 
 petroleum which will not ignite at a temperature of less than llo 
 degrees, where the latter has no other practicable mode of trans- 
 portation, although there was an all-rail route over which the 
 petroleum might have been transported, yet, if the rates charged 
 for transportation by rail were so high as to amount to a prohibi- 
 tion of the traffic in that article, it was held that it was not a 
 practicable mode of transportation within the meaning of the sec- 
 tion. The word practicable in that section, is used in a commer- 
 cial or business, and not in a mechanical sense.' Gunpowder, 
 nitro-glycerine, etc., and loose hay, cotton or hemp are forbidden 
 to be carried under penalties.* 
 
 The remedy given by section 4493 for an injury to an employe 
 on a steam vessel is merely cumulative and does not exclude the 
 right to any other remedy for such injury which may be given by 
 the general admiralty law.^ 
 
 'Pollock V. TJce Laura, 5 Fed. Rep. 134. 
 
 ''Poor V. TJie Geneva, 26 Fed. Rep. 647. 
 
 '■'United States v. Wise, 7 Fed. Rep. 190, 6 Fed. Rep. 41. 
 
 *U. S. Rev. Stat., §§ 4472-4476. 
 
 'The Clatsop GMef, 8 Fed. Rep. 707.
 
 § 
 
 96, 
 
 § 
 
 97, 
 
 § 
 
 98, 
 
 § 
 
 99. 
 
 i 
 
 100. 
 
 §101. 
 
 § 
 
 102 
 
 § 
 
 103, 
 
 CHAPTER XYIl. 
 
 PASSENGER ELEVATORS. 
 
 Proprietor Of^ a Carrier of Passengers, and his ResponsihiJity. 
 Proprietors ResponsiJjitity for Defects in Construction. 
 Eesponsihility for Man vfadurers Negligence. 
 Duty of Proprietor of Elevator to Inspect its Condition. 
 Proprietor Liable only for Neglect of Imposed Duty to Person 
 Injured. 
 
 Presumption of Negligence in Case of Injury from Elevr,tor. 
 Contributory Negligence — Comparative Negligence. 
 Statutes Begulafing the Use of Elevators. 
 
 § 90. Propi-ietor as a Carrier of Passengers and 
 his Responsibility. 
 
 The proprietor of a passenger elevator is a carrier of passengers 
 ftiibject to the same responsibilities as to care and dihgence to 
 secure safety as are carriers of passengers by stage coach or rail- 
 way. The rule as to the degree of care required, and as to the 
 ontts of proof in case of injury from giving way of machinery, 
 applicable between a common carrier of passengers and his pas- 
 sengers, is applicable as betM'een the owner and manager of a pas- 
 senger elevator and the pas.sengers in it.' A proprietor of an ele- 
 vator for carrying passengers, who used the elevator in lifting 
 ])ersons vertically to the height of forty feet, is a carrier of pas- 
 .sengers and subject to the same responsibilities." The same 
 degree of responsibility must attach to one controlling and run- 
 ning: an elevator. Persons who ai-i- lifted bv elevators are sub- 
 jected to great risks to life and liiiil). They are hoisted ver- 
 tically, and are unable, in case of the breaking of the machinery, 
 to help themselves. The person running such elevator must 
 be held to undei'take to raise such persons .safely, as far as human 
 care and foresight will go. The law holds him to the utmost care 
 
 ^GoodxM V. Tiii/lor, 4 L. R. A. 673. 41 Minn. 207. 
 "^Treadtoell v. WliiHier, 5 I.. H. A. 498. 80 Cul. 574. 
 
 80S
 
 PKOPKIETOK AS A OAliitllCK OF PASSKNGEKS. 309 
 
 and diligence of very cautious [)oi-sons, and responsible for the 
 ^liiijiitest ]K\iilo('t. Such rc'spoijslhility attaches to all persons 
 engaged in eniploynieiits where liuinaii beings submit their bodies 
 to their control, by which their lives or limbs are put at hazard, 
 or where such (■iii|)l(tviiuMit is attended ^Yith danger to life or 
 liml).' 
 
 A carpenter eniplovcd to reconstruct the ]mneliiig around an 
 elevator, who, while thus eug'^iged, is struck by a descending ele- 
 vator, after he had told the elevator boy who had gone up with 
 the elevator to stay up, because he had got to do the work, can 
 recover for the injuries received from the owner of the building, 
 by whom the eknator boy was empkjyed."' In proportion to the 
 degree of danger to others must I)e tlie care and diligence to be 
 exercised. Thus the omission of safety apj>liances upon an ele- 
 vator which never carries passengers, from which and its ^vell the 
 servants are excluded, is not negligence ou the part of a master.' 
 
 Where the danger is great, the utmost care and diligence must 
 be employed. The propi-ietor of an ek'vator operated for the 
 double purpose of trans[>orting freight and employes, which de- 
 livery boys are re<]uired to use in entering and departing from the 
 basement of tiie building and in passing therefrom to the upper 
 lloors, is lial)le ftjr an injury to ;i. hoy bv reason of such elevator 
 not being reasonably safe.' In such cases the law requires extra- 
 ordinary care and diligence. There is no employmejit where the 
 law should demand a higher degree of care and diligence than in 
 the case of the pei'sons using aiul running elevators for lifting 
 human beings from one level to anotiier. The danger is great. 
 When persons are injui'ed by the giving way of the machinery the 
 hurt is always serious, fre((uently fatal; and the law should and 
 does bind persons so engaged to the highest degree of care prac- 
 ticable under the circumstances. Tlie aged, the helpless and the 
 infirm are daily using these (^k'\at(^rs. The owners make profit 
 l)y these elevators, or use them for the profit they bring to them. 
 The injury from a careless use of such contrivances is likely to fall 
 
 ^Levyv. CmnpbeU (Tax.) April 19, 1892. 
 'Domvan v. Gay, 97 Mo. 440. 
 
 ""Kern v. De Castro & D. Suy. Eef. Co. 12o N. Y. m. 
 *Strairbn(ff/e v. Bradford, 128 Pa. 200.
 
 310 PASSENGEIi BLEVATUKS. 
 
 on the weakest of the community. All, including the strongest, are 
 without the means of self -protection upon the breaking down of 
 the machinery. The law, therefore, throws around such persons 
 its protection by requiring the highesis care and diligence. The 
 carrier of passengers is under obligations to use the utmost car*' 
 and diligence in providing safe, suitable and sufficient vehicles for 
 the conveyance of his passengers.' 
 
 § P7. Fj'oprietor' s Responsihility for Defects in 
 
 Construction. 
 
 A proprietor of an elevator for carrying passengers is liable for 
 all defects in the elevator which can be seen at the time of con- 
 struction, as well as for such which may afterwards exist and be 
 discovered on investigation.'' He is responsible to the same ex- 
 tent for any negligence as other carriers by steam or other dan- 
 gerous jiower,' and carriers must keep pace with science and art 
 and modern improvement, in their application to the carriage of 
 passengers, but are not responsible for the unknown as well as the 
 nQ'^.*' Railroad companies are bound to adopt the most approved 
 modes of construction and machinery in known use in the busi- 
 ness. If they fail to do so, and iujury results in consequence, 
 they are responsible. A company " was bound to use the best 
 precautions in known practical use, to secure the safety of their 
 passengers, but not every possible preventive which tlie liigliest 
 scientific skill might have suggested.'" 
 
 The proprietor of an elevator for carrying passengers is bound 
 to use all reasonable means and eft'oi-ts to furnisli good and well 
 constructed machinery adapted to the purpose of its use, and all 
 
 ^Beadhend v. Midland R. Co. L. R. 3 Q. B. 412, L. R. 4 Q. B. 379; Jamison 
 V. Sun .Me cfc S. C. R. Co. 55 Cal. T)%?>; IngalU v. Bills, 9 Met. 1; Taylor 
 V. Grand Trunk R. Co. 48 N. H. o04; Caldwell v. iVevc Jersey 8. B. Co. 
 47 N. Y. 287; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537; Bal- 
 timore & 0. R. Co. V. JState, 29 Md. 252; Virrjinia Cent. R. Co. v. Sanger, 
 15 Gratt. 280; Kelly v. JVeto York & S. B. R Co. 11 Cent. Rep. 874, 109 
 N. Y. 44; Northern Pac. R. Co. v. Herbert, 116 U. S. 651, 652, 29 L. ed. 
 759. 760. 7.evy v. Campbell (Tex.), April 19, 1892. 
 
 ■'Treadwell v. Whittier, 5 L. R. A. 498, 80 (Jal. 574. 
 
 ^Goodsell V. Taylor, 4 L. R. A. 673, 41 Minn. 207. 
 
 *Fremanth v. London & N. W. R. Co. 10 C. B. N. S. 95; Meier v. Penrntyl- 
 vania R. Co. 64 Pa. 225. 
 
 •■Ford V. London & 8. W. R. Co. 2 P^oat. & F. 730. Wormsdorf v. Detroit 
 ('ill/ n. Co. 75 Mioii. 472.
 
 PEOPRIETOK'S liKSPON^sllULny l<Olt UEi- KCTS IX UONSTRUCTIOX. 311 
 
 reasonable means and efforts to fiiniish or provide it of good ma- 
 terial, whicli has ])ocu fonnd to ])e the safest in practical use.' 
 It is held that railway conipanios, as common carriers, are bound 
 to have such vehicles and machinery for the transportation of 
 u;oods as the improvements known to practical men, and tested by 
 ])ractical use may suggest, but not to take every possible precau- 
 tion which the highest scientific skill might suggest, nor to adopt 
 any mere speculative and untried experiment." It has been said 
 that the carrier of passengers is responsible for defects that might 
 have been discovered upon the most careful and thorough exami- 
 nation.* In Ilailleij v. Cpo-'^s, o4 Vt. 586, the doctrine of Ingalls 
 V. Bills was applied t(t a livcn-y stable keeper letting a defective 
 •carriage, and he was held lial)l(' if the defect could have been 
 discovered upon the most careful and thorough examination. 
 The carrier is bound to conduct his business with all the care 
 wlidch human prudence and skill could suggest; and the defend- 
 •ants in that case ^vere held liable for injuries caused by a defect 
 in a car made by a competent manufacturer, which defect was 
 not discoverable upon a thorough examinatin after the car was 
 hnished, but niiglit have been before, by bending the axh; in which 
 the defect Avas.^ 
 
 The Texas Suj:>renie Court said, in regard to a passenger car- 
 rier: ''If any certain or satisfactory test is known which is within 
 the reach of the conij)Hn3', it should be applied, and they should 
 not, in that case, be excused, if they rely upon a test which is clearly 
 insufticient." In relation to tests, it was said : " It is perfectly un- 
 derstood that latent defects may exist, undiscoverable by the most 
 vigilant examination, when the fabric, is completed, from which the 
 most serions accidents have and may occur. It is also M'^ell known, 
 as the evidence in this suit tended to prove, and the jury have fonnd, 
 that a simple test (that of bending the iron after tlie axle was 
 formed, and before it was connected with the wheel) existed, by 
 which it could be detected. This should have been known and 
 applied by men 'professing skill in that particular business.' It 
 
 ^IVeadwell v. W/iittier, 5 L. K. A. 498, 80 Cal. 574. 
 
 ''Steinweg v. Erie B. Co. 43 N. Y. 133; Kentucky 11. Co. v. Thomas, 79 Ky. 160. 
 
 ■■IngalU v. BilU, 9 Met. 1. 
 
 *Hegemanv. Western E. Corp. 16 Barb. 353. Tliis decision was affirmed in 
 
 13 N. Y. 9. See also Caldtoell v. JS'eto Jersey S. B. Co. 47 N. Y. '287. 
 ^Te.iw d- P. R. Co. V. Hamilton, 66 Tex. Ho.
 
 •312 PASSK.\(JEB ELKVAJoKS. 
 
 was not known, or, it" known, was not applied, by these manufac- 
 tnrers. It was not used by tlic defendants, nor did tliey inquire 
 whether it had been used by the builders. They relied upon an 
 external examination, which they were bound to know would not, 
 however faithfully prosecuted, guard their passengers against the 
 danger arising from concealed defects in the iron of tlie axles, or 
 in the manufacture of thoa. For this omission of duty, or want 
 of skill, the learned judge held that they were liable.' It is 
 held that the test referred to should have been known and 
 applied by men "professing skill in that particular business," fviz: 
 that of making axles and wheels for railway ears). The case 
 (•elated to a broken axle. The defendants were held liable, if the 
 test w^as. not known to the manufacturers, or, if known, was not 
 applied by them. 
 
 In the light of the foregoing well settled rules of law, the car- 
 I'iers of passengers are responsible as far as human care and fore- 
 sight will go, for the utmost care and diligence of very cautious 
 persons, and therefore for the slightest neglect; tliat they are 
 bound for defects in the vehicles which they furnisii, which might 
 have been discovered by the most careful examination. It is a 
 most reasonable precaution imposed on such a carrier, of whom 
 the owner of an elevator is one, to require him to test the vehi- 
 cles or machinery used by him by the best known tests reasonably 
 practicable. If such tests are not used, the carrier is wanting in 
 the care and foresight required. 
 
 § 98. Re spans ibi lit y for Manufacturer's JS'egli- 
 
 gence. 
 Xor is the carrier excused from this degree of care and diligence 
 by the fact that the elevator in use was constructed by a compe- 
 tent and skilled manufacturer from whom he purchased it. The 
 manufacturer was his agent or servant in the consti-uction of the 
 elevator, and he is responsible for any want of care of the maker 
 or builder. The obligation of cm re and foresight rests on the per- 
 son using the elevator, and he cannot shift it from himself to an- 
 other person." 
 
 ^Hef/tman v. Weiitern R. Corp. 13 N. Y. 26, 27. 
 
 '■'TliiH point is met and def^ided in Ikyeman v. Wentern li. Coi'p. 16 Barb. 
 806. as alKO by the Court of Appeals of New York, in the same case, 13 
 N. Y. 26, wliere it was there heard.
 
 RKSroNSIHILITV FOK MANUKACTL'REk's NKG T.K; KXCK. olo 
 
 In the case in 16 Barb, the court, per Harris, «/., said : "Tliey 
 [the defendants 1 gave evidence to show tliat they had purchased 
 the car from a manufacturer of hig-li reputation for the excellence 
 and safety of tlie cars manufactured by him, and tliat, after em- 
 ploying all reasonable care and skill for the purpose of detecting 
 any defect in the machinery, the defect in the axle, \vhich was 
 the cause of the accident, had remained undiscovered, and, in 
 fact, could not he discovered by means of any examination which 
 the defendants were al)le to make. The rule of law ap])licable to 
 the evidence upon this branch of the case was very accurately 
 stated by the leai-ned judge at the circnit. .\fter having dis- 
 tinctly laid down the general proposition that the defendants were 
 not liable if they had exercised all reas()nal)le care and diligence 
 in providing a safe track and a safe engine and cars, and had 
 })roperly su])plied their train with a suitable number of compe- 
 tent and faithful men to take charge of the train, and those men 
 had managed it in a careful and skillful manner, he proceeded to 
 say in respect to the defect in the axle, that the defendants were 
 responsible for this defect to the same extent as if tXio, axle had 
 been mmiufactured by themselves. Of the soundness of this rule 
 there can be no doubt. From the very necessity of the case the 
 defendants are obliged to carry on their business through the in- 
 strumentality of agents. Some are employed to construct or keep 
 in repair their roadway; others to construct or repair their engines 
 and cays; and others, again, to operate such engines and cars upon 
 the road. For neglect or want of skill in any of these the defend- 
 ants, as princi])als, are answerable to third persons. Whether the 
 engine or car which they place upoii the road for tlie purpose of 
 carrying passengers has been manufactured in their own work- 
 shops by agents employed directly for that ])urpose, or by a man- 
 ufacturer engaged in the business of supplying such articles for 
 sale, they are alike bound to see that in the construction no care 
 or skill has been omitted for the purpose of making such engine 
 or ear as safe as care and skill can make it. When such care and 
 skill have been exercised, the defendant's duty, in this respect, 
 has been discharged. If, on the other hand, a defect exists in the 
 construction, which might have been detected and remedied, they 
 are answerable for the consequences. But the proprietor of an
 
 314 PASSENGER ELEVATufi-i. 
 
 elevator for carrying passengers is not liable for an injury caused 
 by a defect or flaw in the piston-rods of the elevator apparatus, 
 which was not discoverable on a reasonaljle and careful examina- 
 tion, according to the best known tests reasonably practicable.' 
 
 The same point was thus disposed of in the opinion of the court 
 in another case:' "It was said that carriers of passengers are not 
 insurers. This is true. That they were not required to become 
 smelters of iron or manufacturers of cars in the prosecution of 
 their business. This also must be conceded. What the law does 
 requu'e is that they shall furnish a sufficient car to secure the 
 safety of their passengers by the exercise of the 'utmost care and 
 skill in its preparation.' They may construct it themselves, oi' 
 avail themselves of the services of others; but in either case they 
 eneraffe that all that well directed skill can do has been done for 
 the accomplishment of this object. A good reputation upon the 
 part of the builder is very well in itself, but ought not to be 
 accepted by the public or the law as a substitute for a good 
 vehicle. What is demanded, and what is undertaken by the cor- 
 poration, is not merely that the manufacturer had the requisite 
 capacity, but that it was skillfully exercised in the particular 
 instance. If to this extent they are not responsible, there is no 
 security for individuals or the public." 
 
 It was said of a coach j)roprietor by Anderson, J.^ that he is 
 liable for all defects in his vehicle which can be seen at the time 
 of construction, as well as for such as may exist afterwards, and 
 be discovered on investigation. If not, he might buy ill-con- 
 structed or unsafe vehicles, and his ])assengers be without remedy. 
 These remarks apply with all their force to the proprietor of an 
 elevator. The reasonableness of the rule that the responsibility 
 cannot l)e shifted to the manufacturer appears from the consider- 
 ation that the law gives no remedy to the injured passenger 
 against the manufacturer or builder of the elevator. There is no 
 privity between the builder and the passenger. 
 
 The remarks of Ilannen, ./.,' are especially appropriate here. In 
 the case at bar the plaintiff sued to recover for an injury occasioned 
 
 ^Trewadell v. Whiilier, 5 L. R. A. 498, 80 Cal. 574. 
 ^Ilegenuin v. Western It. Corp. 13 N. Y. 26. 
 ^ Sharp V. Orey, 9 Bing. 457. 
 *Francisv. CockreU, L. R. 5 Q. B. 184.
 
 by the fall of a grand stand at a race-course. The defendant 
 owned the stand, but liad contracted with another to bnild it. 
 It was defectively constructed tliroiiuli the nofjliij;ence ot" the con- 
 tractor, and from the defect the fall occnn-ed. The defendant 
 was held liable. Ilannen, J., said that the case was analogous to 
 that of a carrier of passengers contracting with a builder to con- 
 struct a ear for him, where the builder was guilty of negligence 
 in its construction, lie said fuitlier: "In the ordinary course of 
 things, the passenger does not know wlietlici- tlio carrier has him- 
 self manufactured the means of carriage, or contracted with some- 
 one else for its manufacture. 
 
 "If the carrier lias couti-actcd with someone else, the passenger 
 does not usually know who that person is, and in no case has he 
 any share in the selection. The liability of the manufacturer 
 must depend on the terms of the contract betM'een liim and the 
 carrier, of which the passenger has no knowledge, and o\ev which 
 he can have no conti-ol, while the carrier can inti-oduce what stip- 
 ulations and take what sureties he may think proper. For injury 
 resultins; to the carrier himself by the manufacturer's want of 
 •care the carrier has a remedy against the manufacturer; but the 
 passenger has no remedy against the manufacturer for damage 
 arising from a mere breach of contract with the carriei-.' 
 
 "Unless, therefore, the presumed intention of the parties be that 
 the passenger should, in the event of his being injured by the 
 breach of the manufacturer's contract, of which he has no knowl- 
 <^dge, be without remedy, tlie only way in which effect can be 
 given to a different intention is by supposing that the carrier is 
 to be responsible to the ])assenger, and to look for his ind enmity 
 to the person whom he selected, and whose breach of contract has 
 caused the mischief.'' 
 
 In Franch v. Cocl'i-ilh the plaintiff was allowed to recover for 
 the negligence of the contractor, a competent builder, though the 
 defendant was not himself guilty of negligence, and was affirmed 
 •on this point in the exchequer chand)er.'' 
 
 The best known tests reasonably practicable must be used by 
 
 ^Longmeid v. HolUday, 6 Exch. 7(51. 20 L. J. N. S. Exch. 430. See Geoige 
 
 V. Skivington, L. R. 5 Exch. 1. 
 •L. R. 5 Q. B. 501. To the same effect are Orote v. Chester & H. R. Co. 
 
 2 Excli. 251, and Burns v. Coik dh B. E. Co. 13 Ir. C. L. livp. 543.
 
 316 PASSENGER KLEVAluKS. 
 
 the proprietor of a passenger elevator to discover defects or flaws 
 iu the elevator apparatus; and the fact that the elevator was con- 
 structed by a competent manufacturer to whose neo^lect the flaw 
 is attributable will not relieve the proprietor from liability for 
 injuries resulting therefrom, if it could have been discovered by 
 such tests at the time of manufacture or afterwards.' 
 
 § 99. Duty of Proprietor of Elevator to Inspect its 
 
 Condition. 
 
 It is the duty of one engaged in transportation of passengers, 
 not only to see that the means of conveyance are carefully con. 
 structed. but when the risk of breakage or of wear, or other injury 
 to the carriage or machinery is great, and the danger resulting 
 immediate, the duty of constant watchfulness is equally obliga- 
 tory. How frequent and thorough this inspection must be depends 
 upon the peril involved in its neglect. 
 
 The question whether the appearance of machinery W'Ould sug- 
 gest to a prudent man the necessity of an examination is not one 
 for an expert witness, but is for the jury to determine.* The 
 lessees of a building used as a wholesale store, in wliich ahydrauhc 
 passenger and freight elevator is operated for the use of the em- 
 ployes and customers, are liable to one lawfully using it, for in- 
 juries received in consequence of the rotten condition of the beams 
 upon which rested the axles or journals of the main wheel or 
 pulley over wliich the elevatf>r cable ran.^ "Where it appears that 
 a piece of broken cable which had been used upon an elevator, 
 aud Avas exhibited to the jury, gave evidences of wear, which 
 could easily have been seen previous to its giving way, by a careful 
 examination, it is for the jury to determine the <piestion of negli- 
 gence for want of inspection.* 
 
 It is but a fair deduction from the rule governing passenger 
 carriers tliat the owners nmst use the utmost care and dihgence to 
 carry safely those who ride in their elevator, so far as human care 
 and foresight Avill go; and, while they do not engage for absolute 
 
 ^Trmdirdl. v. M'hUtier, 5 L. H. A. 4S>8, 80 Cal. 574. 
 H}ooiheU V. Taylor, 4 L. R. A. 673, 41 Minn. 207. 
 ^OberfeUler v. JJoran, 26 Neb. 118. 
 *Ooo(lHeM V. Taylor, 4 L. M. A. 67;'i, 41 Minn. 207.
 
 LIAlJII.ri'V (tF I'Kol'KIKTOK TO IX.fLUKO TKlWoX. 317 
 
 safety, they do bind tlieiiisolves and warrant that they will Use 
 the utmost care and dilig-ence of very cautious persons, as far as 
 human care and foresij^lit will go, to })rovlde and maintain such 
 means of carriage as are above pointed out. The law does not 
 impose upon the owner of an elevator the duty of so providing 
 for the safety of passengei's tliat they shall eiu;ounter no possible 
 danger and meet with no casualty in the use of the elevator; and 
 the fact that it was possible so to have constructed tlie car tiiat an 
 accident which was unusual and unforeseen, if not apparently 
 impossible, could not liave happened, without unreasonable 
 expense or trouble, will not render the ownei* lialtle.' Like com- 
 mon carriers of passengers they imist keep i)ace with science, art 
 and modern improvement in supjiiying and sustaining safe obtain- 
 able vehicles, machinery and appliances for their use. They must 
 adopt the most improved modes of construction and machinery 
 in known use in the business; and if they do not and injury occurs 
 they will be held responsible. 
 
 And this duty requires such inspection of the machinery as its 
 frequent or only occasional use may render prudent, of which the 
 jury are generally the triers. Where there is evidence that an 
 elevator causing an injury was old, and had an old rope which had 
 once parted, and that upon other occasions the elevator had fallen, 
 it is not error to refuse an instruction that unless the defect was 
 known to the defendant the plaintiff cannot recover, and to substi- 
 tute therefor a charge that it is sufficient if the defendant should 
 have known of the defect, and by the exercise of reasonable care 
 would have known of it.' As has been said : ^ "The defendants 
 were bound to use every precaution which human skill and fore- 
 sight could suggest to insure the safety of passengers." A like 
 obligation rests on the owners of passenger elevators.* 
 
 .^ 100. Pi'oprietor Liable only for Meglect of Im- 
 posed Duty to Person Injured. 
 
 But there must be a duty owing to the person injured. De- 
 
 ^Egan v. Berkshire Apartment Asso. 31 N. Y. S. R. 545. 
 
 •'Bier V. Standard Mfg. Co. 130 Pa. 446. 
 
 ^Hegeman v. Western R. Corp. 16 Barb. 358. 
 
 ••See, on this point, Smith v. New York & H. E. Co. 19 N. Y. 137; Steinireg 
 
 V. Erie R. Co. 43 N. Y. 127; Bevier v. Delaware d- II. Canal Co. 13 Hun. 
 
 258; Meier v. Pennsylvania R. Co. 64 Pa. 225, 227, 230.
 
 318 PASSENGEK El.KVATUKS. 
 
 fects in a hoisting apparatus or elevator will not render the owner 
 of premises liable for injuries sustained by a niember of a fire 
 insurance patrol, who witli his associates attempted to use it in 
 the night in the performance of his duty.' One who maintains 
 an elevator shaft opening to a sidewalk on a city street, but sep- 
 arated therefrom by a stone lintel three inches high and eighteen 
 inches thick, the opening being live or six feet wide, is not liable 
 for injuries to a passer by who is puslied into such shaft by reason 
 of the backing up on the sidewalk of a horse attached to a wagon 
 being unloaded in front of the premises.^ 
 
 But this duty may be imposed without direct evidence of ex- 
 press contract. In a recent case decided by the Supreme Court 
 of Massachusetts the action was against the occupants of a build- 
 ing used for workshops. The plaintiff was a United States letter 
 carrier; the place which he sought to enter was known as ISTo. 619 
 Albany street. It was always open, having no door to close it. 
 Ascending from its threshold, which itself constituted the first 
 step, was a flight of four or five steps to a door which opened 
 upon an entry or hallway, in which were tliree or four boxes, 
 placed there for the accommodation of the plaintiff by the tenants 
 of the defendants, who occupied the various stories of the build- 
 ing, for the reception of their mail matter. Among the rest was 
 a box for that purpose for the mail matter of Mellish, Byfield & 
 Co., wlio were the tenants at will of the defendants of the third 
 and fourth floors of the building, and for whom the plaintiff had 
 a letter, which he was seeking to deliver by placing it in their 
 box. The hallway into which the plaintiff sought to enter had a 
 flight of stairs which led to the next story. The defendants oc- 
 cupied the building, and there was nothing which tended to show 
 that this hallway was leased, or that they did not have the entire 
 manaffctnent of it. A watchman also employed by them had the 
 general charge of the building during the night, taking control of 
 it from six in the evening until six in the morning. How long 
 these letter boxes had been in the entry, or how often the plain- 
 tiff had visited them on his duty as a letter carrier does not fully 
 appear Ijy the report, but their existence in so public a place, 
 
 ^Gitmn v. Leonard, 37 111. App. 344. 
 
 ''Mchitire v. Huberts, 4 L. R. A. 019, 149 Mass. Am.
 
 LIABILITY OF PROPRIETOK TO INJURED PERSON. 319 
 
 which was, so far as appears, entirely in the control of the defend- 
 ants, could not, the court say, have been without their knowledge 
 and, whatever the rights of the tenants or their servants may have 
 been in the entry, afforded some evidence that the boxes were 
 tliere by their authoritj- and permission, and that the letter carrier 
 in visiting tliem in the performance of his duty came there by 
 the implied invitation of the defendants for the convenience of 
 their tenants, or at least that he was authorized to believe that he 
 came there by such an invitation. While the building was 
 intended for workshops and while there were no offices in it, it 
 was still one where, to some extent, at least, the tenants received 
 letters, and there was a preparation and adaptation of the entry 
 or hallway for the plaintiff's use whieli might well lead him to 
 believe that he might safely enter in the performance of his 
 duty.' 
 
 If the plaintiff was authorized and induced to enter this hall- 
 way there was also evidence of a want of due care in the manage- 
 ment of the elevator well down which the plaintiff fell. It 
 opened directly upon the street about twenty inches back from 
 the line of the street by a doorway framed in granite, its threshold 
 l)ei ng some eight inches high from the flagging of the street. 
 Separated from this elevator doorway by a stone post one foot 
 wide was the entrance of about the same dimensions and construc- 
 tion which led up to the hallway of which we have already 
 spoken. Its threshold was at the same height as that of the ele- 
 vator entrance, and was a continuation of it, but was not quite so 
 wide. The elevator entrance was provided with an up-and-down 
 sliding door which, when down, closed the entrance, and with a 
 chain, which, when hooked, hung loosely across it. The evening 
 when the accident occurred the elevator door was opened and the 
 chain unhooked. It was quite dark, tliere was no light on the 
 outside of the building, although there was a gas light at about 
 a distance of sixty feet and an electric light at a distance a hun- 
 dred and twenty feet. The sidewalk in front of the building did 
 not extend in front of either the elevator entrance or that of 
 number 619, the intervening space being the flagging of the street 
 
 ^Parker v. Barnard, 135 Mass. 116; Sweeny v. Old Colony & N. R. Co. 10 
 Allen, 3fi8; Learoyd v. Godfrey, 138 Mass. 315; Larue v. Fan-en Hotel Co. 
 116 Mass. 67.
 
 o20 I'ASSKNGEK KLKVATUK.'?. 
 
 SO that teams could back up to both of these entrances. Upon 
 this state of facts the conchisions are reached that tliere was evi- 
 dence of a want of due care in leaving the elevator entrance thus 
 exposed, and the plaintiff's testimony tended to show that while 
 seeking to enter at number 619 he stepped into the ele\ator en- 
 trance and was precipitated down the well. That he had a right 
 to suppose that when seeking to enter when he had a right, he 
 would not be exposed to this danger, and that an entrance by its 
 side, easily to be mistaken for it, would not be left open and un- 
 inclosed by any barrier at a time when it was not in use. With- 
 out any light directly upon it. with the door open directly upon 
 the elevator well with the chain unhooked, it might certainly be 
 held by a jury that there was a carelessness in its management 
 which would expose anyone to serious danger who was lawfully 
 H})proaching the entrance \o the hallway. Thei-e was also evi- 
 dence that for this condition of things the defendants were 
 responsible. Wliile their tenants had the authority to use tiiis 
 elevator it was their duty, the court says, to see that while not in 
 use by them it was in a safe condition for those who were passing 
 in the street or lawfully seeking access to their building. They 
 furnished the power by which the elevator was run, although the 
 tenants used it for freight purposes durhig the day. But the 
 defendants' servant, the watchman, was, in the language of the 
 report, "supposed to shut the elevator at six o'clock at night." 
 From this the court assumes that it was his duty so to do, and on 
 the niffht of the accident he w-as at the buildiui*; 1)efore the acci- 
 dent happened. It was thus apparently by the neglect of their 
 own servant that the elevator entrance was in the exposed condi- 
 tion in whicli it was fotmd. While tlie defendants permitted 
 their teiuints to use the elevator during the day. they had not let 
 to them or reliiupiished to them the control of it. They had not 
 let the whole of their building, but were themselves in occupa- 
 tion of th(! part tliat was not k-t. and, so far as appears had full 
 authoritv to make tlie well safe. It is said by defendants that the 
 hoh- into which plaititilT fell was not on the premises let to Byiield 
 A: Co.. sind that there can be no lial)ility on their part for an 
 injury whi(!h did not arise from any defect either of the leased 
 iiremises or pi-cniises over which the tenants had the right of in-
 
 LlAlilLI'lV OK I'Kol'KliauK \X) liv.lL'KKD I'KKftO.N. 321 
 
 viting customers, so tluit oven if tlicv Wdiild he li;il)le to plaintiff 
 for an injury if he had received it in the liallway by a defect 
 cxistin*^ there, they are not lial)le for an injury incurred by rea- 
 son of any neoli<2,'enee in the inanai^eiuent of an excavation not on 
 the leased j)reniises. This is. in the ((pinion of the conrt, to limit 
 the liability of defendants quite too narrowly. If the defendants 
 had induced or invited, throni!:h their tenants, the plaintiff to 
 i'uter No. 619 Albany street, so far as tiie access thereto was nn- 
 <ler their own control, it was their duty to see that this access was 
 not endangered by their negligence in tlie management of the 
 other ])arts of their building, in order that a person rightfully seek- 
 ing to enter should not be exposed to tlie liability <»f a fall into an 
 opening so constructed that it might well be iiiistaken for the 
 ])roper entrance.' 
 
 There remains only the question whether the ])laintiif offered 
 any snthcient evidence of due care. In disposing of this it is said 
 that he kiu;w the character and description of the premises; he had 
 l)assed them many times and was aware that the two entrance> 
 were close to each other; l)nt his previous knowledge of their dan- 
 gerous proximity is not conclusive that he was not exercising due 
 care in attempting to enter." lie describes the care with which 
 he moved, his feeling his way, his effort to ascertain when he 
 stepped upon the threshold, that he was in the right entrance. To 
 some extent he might calculate that at that hour either the chain 
 would be across or the door closed at the elev^ator enti'ance, and 
 putting his knee and hand forward discovered neither. The char- 
 acter of his conduct depending upon this and other circumstances 
 is such that it is not possible to say, as a matter of law, viewed in 
 the light of common knowledge or experience, he was lacking in 
 line care.' The conclusion is that the judge who presided was 
 in error in withdi-awing the case from the jury, and that the ques- 
 tion of fact involved should have been submitted to their experience 
 and judgment." 
 
 ^Elliott V. Fran. 10 Allen, ;S85; Retidman v. Conway, 13(i Mass. 374; bvrue 
 V. FarrcuHokl Co. 116 MtHs. «7. 
 
 '^Looney v. McLean, 129 Mass. 33. 
 
 3 Wheelock v. Bonton <& A. R. Co. 105 Mass. 203. 
 
 *Gordon v. Cummings, 9 L. R. A. 640, 152 Mass. 513. 
 
 21
 
 1'ASSEiJGli.Ji KLKA AruRS. 
 
 § 101. Presumption of J^egligence in Case of In- 
 jury from Elevator. 
 
 The falling of an elevator affords prima facie evidence of neg- 
 ligence.' Such vras the rule stated in the case of a temporary 
 elevator used in the construction of a building, which fell upon a 
 workman directed to pass beneath it. Res ipsa loquitur is inap- 
 plicable to the fall of an elevator the cause of which is apparent.'' 
 But in an action hy a passenger against a hotel proprietor for 
 injury caused by the fall of a hydraulic elevator, where it is shown 
 that the elevator had all known safety appliances, and defendant 
 liad no knowledge or reasonable cause to believe there was any 
 danger from air coming from the street pipe, he would not be lia- 
 ble even if he knew that the water was being shut off from the 
 >treet main.^ 
 
 Although one is authorized for the purpose of delivering ice^ 
 to enter an apartment house, and use its elevator, he will not 
 make out a prima facie case of negligence against the owner of 
 the building by mere proof that, while he was hoisting ice to a 
 tenant, upon an elevator or dumb-waiter, the ro23e broke and the 
 elevator machinery fell upoii and injured him, without any evi- 
 dence as to the condition of the elevator or rope.* One injured, 
 while operating an elevator, by the fall of the iron weights by 
 which it was operated, through the top of the elevator car upon 
 liim, can not recover in the absence of any evidence as to how 
 they became displaced, or that it was through any defect in the 
 (tonstruction of the elevator, or that in the manner of keeping the 
 weights in place the elevator differed from others, or that it was 
 in improper condition prior to the injury.* 
 
 But where the fall of an elevator is caused by the breaking of 
 the cable and no other reason for this break appears, it will be 
 assumed to have resulted from original insufficiency of the cable, 
 or fr(jm wear, and where there is evidence of its proper construc- 
 
 WerUtch v. Edclmeyer, 15 Jones & S. 292. 
 
 *lireiinan v. Gardon, 3 N. Y. S. 11. 604. 
 
 \Shattuck V. Rand, 2 New Eng. Rep. 378, 142 Mass. 83. 
 
 *Turnier v. LatherH, 36 N. Y. S. R. 821. 
 
 *IJacid^on v. Davidvon, 46 Minn. 117.
 
 CONTRIBUTOKY ^iiGLIGEJS'CE COMl'ARATI\ E JSEtrLIUENCJ:. 323 
 
 tion and of its use for three or four j-ears, the jury )iiay infer that 
 the defect was the result of wear.' 
 
 § 102. Coiitrihutonj Xegligence — Comparative 
 
 JYegligence. 
 
 Usually the question of contributory negligence is one for the 
 <leterniination of the jury. One about to exercise a right, is not 
 guilty of negligence contributing to an injury he may receive from 
 another's negligence, because he did not anticipate such negli- 
 gence." A tenant approaching an elevator shaft kept in the buildmg 
 for the use of tenants, and operated by the landlord or his ser- 
 vants, is not, as matter of laNv, guilty of contributory negligence 
 in stepping through the door of the shaft without looking or lis- 
 tening for the elevator, where it is opened on the outside by a boy 
 who has often had charge of the elevator, and whom the defend- 
 ant supposed to be on the elevator, the elevator shaft not beiuii 
 lighted.'' 
 
 Where from the outer edge from the first step in front of the 
 door of an elevator well, to the shaft, was less than three feet, and 
 the door, which was of solid wood, was partially open as one 
 approached it, disclosing sufficient flooring to create the impres- 
 sion that it was continuous, the question whether a person enter- 
 ing the well in the daytime is guilty of contributory negligence 
 causing his fall is properly left to the jury.* But if he knows 
 there has been negligence, he must use due care to avoid the conse- 
 quences.* Where plaintiff, while lawfully in defendant's warehouse, 
 fell into an elevator well which he knew of and could have avoided, 
 his testimony that, when near the elevator, something struck him 
 and he fell upon his back, without proof that anything was out 
 of place, or other evidence of negligence, will not make defend- 
 ant liable." 
 
 The test of contributory negligence, or want of due care, is not 
 
 'Qoodsellv. TayUyr, 4 L. R. A. 673, 41 Minn. 207. 
 
 'Ray, Imposed Duties, Personal, 665. 
 
 ^Tomey v. Roberts, 114 N. Y. 312. 
 
 *McRickard v. Flint, 114 N. Y. 222. 
 
 'Ray, Imposed Duties, Personal, 558, 633, 666. 
 
 *Euey V. Gahlenbeck, 121 Pa. 238.
 
 0'24: PA8SENGKK KLE\ ATuKb. 
 
 found in the failure to exercise the hest judgment or to use the 
 wisest j)recautioii, l>ut allowance may be made for the intluences 
 ordinarily governing human action, as what would under some 
 circumstances be want of reasonable care, niay not l)e such under 
 others. The contributory negligence wliicli prevents recovery 
 for an injury must be such as co-ojjcrates in causing the injury, 
 and without whicii the injury could not have happened.' But it 
 need not be the sole cause of the injury ; it is sutttcient if it l)e 
 <^ne of two or more concurring ethcient causes, to bar recovery. 
 But any negligence of the plaiutitf, however sHght, that contrib- 
 utes to the injury, prechides, at common law, his recovery.* Where 
 the rule of comparative negligence is recognized, as in Illinois 
 and in Georgia, this rigid rule is not enforced.* 
 
 § lOo. St((tnfes Regu luting the Use of Elevators. 
 
 In manv of the states the pr(»tection of elevator openings and 
 the o])(M'ation of elevators is regulated by statute. These statutes 
 are salurarv in their purpose, requiring the owners or occupants of 
 business places to protect, in the manner prescribed by them, 
 ao-ainst danger of personal injury those lawfully there, and to 
 which tliev otherwise might be exposed. Their intent is to pro- 
 vide a'minst personal peril, and it may be assumed that the state 
 leii'islatures were advised that such provision was essential to such 
 prote<*tion. A statute making it tlie duty of the owner of a 
 buiNlini;- to j>ro\ ide trap or automatic dooi-s in elevator ways, and 
 makin*:' '<^ neiilect to do so a misdemeanor, imputes legal negli- 
 oence for such neglect, giving a party injured in consecjuence, a 
 prima facie right of recovery.' 
 
 Tlie New York statute was recently applied and enforced under 
 tlie followinu' circumstances: The jjlaintiff entered the defend- 
 ant's huildinu- and |>lacc of b^l^ines^ on West Fourteenth street, in 
 the citv of Kew ^'oI•k. and fell into an uncovered elevator hatch- 
 wav, and was in jui'cd. lie claims tiiat such injury Avas occasioned 
 wh(»llv by the negligence of the defendants. This building was 
 
 I Uiiy. Imposed Duties, Personal, ;i64. 
 
 'Ucy V. Cumpbell {J^\.), April 19. 1893. 
 
 •Kay, Imposed Duties, Personal, 6;?!. 
 
 ^ Fro nun, V. aieiiH Fal/x Paper Mill Co. :!!» X. Y. S. R. fi2l.
 
 KTATfl'K KKGL'I.AliNU TIIK I SK OF KLKVAIOKS. 325 
 
 a luaiiufactory of the defendants, and the elevator was there for 
 for tlie purpose of their business, Tlie principal fj-ronnd of the 
 alleged nejilii^ence of the defendants is that tliey had failed to 
 comply witli the statute, which provided that ''in any store or 
 buildino- in the city of Xew Y(>rk in wliich there shall exist or 
 be placed any hoi.stway, elevatoi- or well hole, the o])eninfys there- 
 of, throui^h and upon each Hoor of said buildin<i;, shall lie pruxjdcd 
 with and jn'otected by a sul)staiitial railing-, and such jrood and 
 sutticient trap dooi-s with which to close the same as may be 
 directed and aj)|»i'ovf'(l l)y the su|)erintcn(lcnt of bnildino;s; and 
 such trap door shall be kc])t closed at all times except when in 
 actual use by the oc(Mii)ant or o('cu])ants of tlie bnildiuii; having 
 the use and control of the sanu'."' Tlici-e was no i-ailing or any 
 obstructi(»n in the way of approach to this elevator shaft from 
 the fi'ont door opposite to it, and. althouiih the evidenc(^ tends to 
 prove thar the ek'\ator was not in actnal nsc at the tinu' rhe plain- 
 tilf so entered and fell, there was no rrap door over the hole. 
 The exercise of the duty im]>osed u|)on the defendants bv this 
 statute was not dcpeiulent upon any actioji of the superintendent 
 of buildings. They could not ])ropei-ly delay for him to direct, 
 but it was for them to call on him for direction and approval in 
 that respect." The situation had hem the same foi* several years 
 and it does not appear that any direction or approval of that offi- 
 cial had been obtained fi-om or gi\ en by him. 
 
 The failure to pci-foi-m a duty imposed by statute, w here, as the 
 consecpience, an injury i'e>ults to anothei-. is e\idencc uj)on the 
 question of negligence of the pai'ty chargeable with such failure,'' 
 It is not coiu'lusive evidence of negligeiu'e, and the (piestion pre- 
 sented is whether tliere was ei-roi- in the charge of the (;ourt to 
 the effect that any one constructing oi- using an elevator uj)oji his 
 premises is considered as doing s<» with knowledge of the law in 
 that respect, and if such [)erson fails to comply witli tlu^ i'e(juire- 
 ments of the statute he is prima facie guilty of negligence. The 
 
 'Laws 1874. chap. 547. > ">. 
 
 - Wu/i/ V. Mulled}/, 78 N. Y. 310. 
 
 "JeUer v. Netr Tor/,- d JI. R. Co. 2 Abb. A pp. Dec. 458; McGrath v. New 
 York Cent. & If. II R Co. 63 N. V 523: Jfam/lh v. Delaicare <£• //. Ganal 
 Co. 64 N. Y. 524: Willy v. Mulledi/, 78 N. Y. 310: Knupfle v. Knicker- 
 bocker lee Go. 84 N. V. 488.
 
 320 PASSENGER ELEVATOKS. 
 
 defendants'' counsel excepted to so much oi the charge as states 
 tliat "a faihire to comply with the provisions of the law of 1874 is 
 prima facie evidence of negligence." As an abstract proposition 
 there was no en-or in the charge. It had reference to the failure 
 to perform the statutory duty uncpialified by any circumstances 
 l)earing upon the question, and was not necessarily applied to the 
 present case so as to treat the question of negligence of the 
 ilefendant as one of law. It was a question for the jury, and u])()n 
 the request of the defendants' counsel they were instructed that 
 the plaintiff could not recover unless the jury found that the 
 defendants were negligent in the use of their premises; and that 
 if the condition of the doors and the elevator, and its use by the 
 defendants, were reasonable, the plaintiff could not recover. The 
 evidence was such as to justify the conclusion that the defendants 
 were chargeable with negligence, and they owed to any person 
 who should lawfully go into the building the duty which the stat- 
 ute imposed upon them to do him no injury by their negligence 
 in that respect. That duty they owed to the plaintiff who went 
 to the premises for a legitimate business purpose.' - - • 
 
 ^McRickard v. Flint, 114 N. Y. 323.
 
 CHAPTER XVIII. 
 
 LIABILITY FOR NEGLIGENCE OR VIOLENCE OF SERVANTS. 
 
 § 104. Liability for Conductor, Engineer, Brakeman, etc. 
 
 § 105. When Liable for Acts of Violence of Employe; Former Rule. 
 
 §106. Modern Rule of IjiabiUty for Wanton Violence of Employes. 
 
 § 107. Passengers Entitled to Protection arjainst Rudeness. 
 
 § 108. Liability of Carrier as Master, what must Appear. 
 
 § 104- Liability for C-onrfiu'tor, Engineer, Brake- 
 man, etc. 
 
 A carrier of passengers by steam is boniid foi" a due application 
 on the part of its employes, of the necessary attention, art and 
 skill; and if any injury occurs to passengers which might have 
 been avoided by tlie utmost degree of care and skill exercised by 
 the employes, the carrier is liable.' It undertakes absolutely to 
 protect them against the misconduct of its own servants engaged 
 in executing the contract.^ Raih-oad coinjianies are responsible 
 for any conduct of their agents and otticials in the natural and 
 necessary discharge of duties incident to the service in -which they 
 are employed,^ and are liable for all injuries resulting from the 
 misconduct of the carrier or its employe.* Carriers of passengers 
 are said to be responsible for any species of negligence, however 
 slight, of which they or tlieir agents may be guilty/ AA'^hether an 
 act constituting negligence was such on common law principles or 
 was made such by statute, the doctrine of agency a]iplies, — to wit, 
 that the master is liable for the negligence of his ser\ ant committed 
 in the course of his employment and resulting in injury to others." 
 
 ^Akersloot v. Semnd Ave. R. Co., 15 L. R. A. 489, 131 N. Y. 59!); Nrnhville 
 i& C. R. Co. V. Memno, 1 Sneed, 220; Chicago, B. Jk Q. R. Co. v. Georoe 
 19 111. .510, 517. 
 
 ^New Jersey S. B. Co. v. Brockett, 131 U. S. 637. 30 L. ed. 1049. 
 
 ^Georgia Pac. R. Co. v. Propst, 83 Ala. 518. 
 
 * Springer Transp. Co. v. Smith, 16 Lea, 498. 
 
 "Eddyv. Wallace, 49 Fed. Rep. 801; renmylvania R. Co. v. A->tr>eU, '23 Pa. 147 
 
 '^Osborne v. McMastem, 40 Minu. 103. 
 
 327
 
 o28 HAJ)ILnV FOK NEGLIUKNCE Oli VlOLKiNCK OF SERVANTS. 
 
 The drenching of a passenger with water, either neghgently oi- 
 willfully, is a l)rcach of the carrier's dnty to carry safely, and it is 
 immaterial, upon the question of the company's liability, wliether 
 it resulted from the negligent fault of the brakeman or conductor, 
 or of both of them/ So a ])assunger injured by the negligence 
 of a guard on an elevated raili'oad can recoxer from the company 
 whether the negligence was direct and willful or was unintentional." 
 A carrier is liable to a passenger foi" the negligent throwing of a 
 switch, causing the deraihnent of a car, by a person who was not 
 employed by the carrier, l)ut did the act in the presence of a 
 brakeman who made no ol)jectiun.° It is the duty of the carrier 
 to employ skillful servants, and it will be lial)le for any neglect of 
 duty or care or for all acts of wrong done in the scope of the 
 employment, although committed in disol)edience of orders." It 
 is wholly immaterial that the master did not authorize or even 
 know of the servant's act or neglect, or even that he disapproved 
 or forbade it, if the act or neglect be in the course of the servant's 
 employments.* 
 
 A passenger is not presumed to know the private or secret rules 
 given by a railroad company to its conductors, but, in contracting 
 with them, has a right to act npon their statements as to the rules.^ 
 Thus a passenger has the right to rely on a statement by a ticket 
 agent who sold him his ticket, that the train for which it is sold 
 is a through train and will take him to his destination, unless a 
 trainman seasonably makes a ditt'erent announcement in such a 
 manner that the passenger should have heard it; a general an- 
 nouncement to all the passengers not being suthcient unless it was 
 in fact heard l)y the passenger.' A misdirection as to the proper 
 train by an agent of a railway eoiiii)any \\ ill entitle a passenger to 
 
 ^Terre Uante & I. R. Co. v. Jacknon, 81 Ind. 19. 
 
 •^Koetter v. Manhattan Men. R. Co. 3(5 N. Y. S. R. 611. 
 
 ^Divimitt V. llatmibal d- St. J. R. Co. 40 Mo. App. 654. 
 
 *McCord V. Wentern U. Tele<i. Co. (Miun.) 1 L. R. A. 144, note; Sleuth v. 
 WiUon, 9 Car. & P. 607; Pendleton v. Kingsley, 3 Cliff. 416; DUUngham 
 V. Anthony, 3 L. R. A. 634, 73 Tex. 47. 
 
 "Philadelphia <fc R. R. Co. v. Derby, 55 U. S. 14 How. 486, 14 L. ed. 509; 
 Philadelphia d* W. B. R. Co. v. Quigley, 62 U. S. 21 How. 310, 16 L. ed. 
 75; Jliii'jinii v. Walerdiet Tump, d; R. Co. 46 N. Y. 27; Stemn't v. Brook- 
 lyn d-'C. R. Co. 90 N. Y. 591. 
 
 *Ge<mjia R. & Bhy. Co. v. Marde.n, 86 Ga. 434. See Highland Ate. & B. R. 
 Co. V. Donovan (Ala.) Nov. 5, 1891. 
 
 'Dye V. Virginia M. R. Co. (I). C.) 19 VVasli. L. Hep. 369.
 
 I-I ABILITY FOK CONDLOTOK, KNOlNtbK, IJKAKKMA.N, KTC. 320 
 
 recover for an injury sut*tained.' But wlien a conductor is merely 
 asked how long a train will stop at a certain station, and tells the 
 passenger, he is not presumed to know that the latter desires to 
 alight on business, and does not thereby assume any obligation to 
 watch the movements of the passenger or delay the train on liis 
 account."'' 
 
 A conductor is a general agent of the company as far as con- 
 cerns the rights of passengers in reference to alighting from a 
 train.' Passengers on board of cars are under the direction and 
 control of the conductor, and it is his duty to e.\<'i-cise the great- 
 est care and ])recaution in providing for their safety.* It is his 
 duty to use vigilance and care in maintaining order and protect- 
 ing passengers from violence and insults. Failure to do so i-enders 
 the company liable in damages to the injured passengei-.^ 
 
 It is the duty of an engineer to keep a constant lookout for 
 obstructions, and, if he discovers one. to pi'om|)tly resort to all 
 means within his power known to skillful engineers to avert the 
 threatened injury or danger." But. he is not recpiired to heed 
 the signal to stop his train, given by a stranger, when no danger 
 is in sight (u* is reasonably to be apprehended.' If a driver or 
 brakeman on an elevated car sees fit to intimate to a boy to come 
 forM-ard and he follows the intimation and then if, instead of 
 stopping the car he seizes the person of the child to lift him per 
 force from the moving car, there can be no doubt but that would 
 be an act of negligence — that kind of neglect in the discharge of 
 the duties appertahiing to his employment for which his principal 
 would be liable. Tlie principal is not lial)le for every unlawful 
 act of his agent, or for an act done out of tlie course of his em- 
 ployment, but this would be an act done in the course of his 
 employment, the inviting or assisting or getting passengers off the 
 car in which the law would bold the principal responsible.' 
 
 ^Alabama, G. S. li. Co. v. Ilrddlest^n , 83 Ala. 218. 
 
 ^Missouri Pac. R. Co. v. Foreman, 73 Tex. 311. 
 
 •'Louisville, N. A. «fc C. R. Co. v. Wood, 13 West. Rep. 319, 113 Ind. 570. 
 
 *neUman v. Netc York Cent. <£ //. li. R. Co. 42 Hun, 135. 
 
 ■Spohn V. Missouri Pac. R. Co. 2 AVest. Rep. 118, 87 Mo. 74. 
 
 'Bullock V. Wilinimjton & H'. R. Co. 105 N. C. 180, 42 Am. & Eng. R 
 
 Cas. 93. 
 "'Blair v. Grand Rapids & I. R. Co. GO ^[icli. 124. 
 ^Drew V. .SV,ii!/t Aw. R. Co. 20 X. Y. 49.
 
 330 LIABILITY FOR NEGLIGENCE OR VIOLEXCE OF SERVANTS. 
 
 A case of novel and unusual interest recently came before the 
 Kansas Supreme Court, A person about to travel to a point ou 
 the Chicago, Kansas & Western Railroad purchased a ticket from 
 an agent who at the time was suffering from smallpox. As a 
 result the purchaser contracted the disease, and afterwards brought 
 an action against tlie company for $20,000 damages. The court 
 holds that he cannot recov^er, because proof of knowledge on the 
 part of the com})any of the agent's illness Avhen he sold the ticket 
 was not shown, and on the furtlier and broader ground that the 
 negligent act, if any, of the agent in imparting a contagious dis- 
 ease to the purchaser of the ticket was not within the scope of his 
 authority, so as to charge tlie company, his master. The court 
 says : "The sickness of an agent with a contagious disease can- 
 not be presumed to be authorized or directed by the master, and 
 is not an incident in any way to the employment of selling tick. 
 ets or acting as agent at a station. We are not referred to any 
 decisions, and we cannot find any in the books where a master or 
 railroad company has been held liable in a case like this.'" 
 
 Where the defendant in an action was in command of a steam- 
 ship at quarantine, which was directed to be fumigated by the 
 deputy health officer of the port of jS^ew York — by his order the 
 chief steward cleared the passengers from the steerage, and uten- 
 sils containing some poisonous substances "were placed therein for 
 the purpose of fumigation — and the health officer gave instructions 
 as to the length of time the steerage should remain closed and as 
 to the removal of the vessels, but one of these, an ordinary drink- 
 ing cup, was not removed with the otliers and plaintiff's intestate 
 a child of four years, who with his mother, had been ordered by 
 the steward to return to the steerage cabin, drank some of the 
 poison in the cup and died from the effects thereof; in an action 
 to recover damages, held, that it was within the line of defend- 
 ant's duty to see that the poison was removed; and for his negli- 
 gence, or the negligence of his subordinates in omitting to dis- 
 cliarge this duty, he was liable. Also held that, as the mother of 
 the deceased had been directed to return to the cabin, she had 
 the right t(» infer that everything was safe and that no extraordi- 
 
 ^Lmg V. Chicago, K. d- W. /?. C>. (K:iu.) 15 L. R. A. .'MO..
 
 LIABILITY FOR VIOLENCE OF EMPLOYES FOKMKR KULE. 33 i 
 
 iiary dilio-ence on her part was required for the protection of lier 
 child.' 
 
 The Act of Congress of March 30, 1852, "to provide for tlie 
 better security of the lives of passengers pn board vessels pro- 
 pelled in whole or in part bv steam or for other purposes," does 
 not exempt the owners and master of the steam vessel and the 
 vessel from liability for injuries caused by the negligence of its 
 pilot or engineer, but makes them liable for all damage sustained 
 by a passenger or his baggage, from any negU'ct to comply with 
 the provisions of the law, no matter where the fault may lie; and 
 in addition to this remedy, any person injured by the negligence 
 of the pilot or engineer, may have his action directly against those 
 officers.' 
 
 ^lOo. Liahility for Violence of Employes— Former^ 
 
 Rule. 
 
 Carriers on water and land select and appoint tlicir own agents 
 without consulting the passengers, and it is but reasonable that 
 they should be held responsible for any act of violence to the pas- 
 senger of which such employes may be guilty, as the moment the 
 passenger enters the steamer or other conveyance, he is uiore or 
 less under the orders and control" of the master or conductor. 
 Fit or unfit, humane or brutal, good-tempered or morose, tlie pas- 
 senger is comparatively helpless, and may be obliged to submit 
 for the time being without any means of I'edress. It has been 
 said that he may have his remedy against the cai-rier, if he can 
 prove that the carrier was negligent, or that the person active in 
 the wrong, was the agent of the carrier and was in the course of 
 his emploj'ment, but, if not, he must be content with his remedy 
 against the assailant of his person. There are adjudged cases 
 which support this proposition, without qualification. 
 
 In an action for damages to a passenger by reason of tlic care- 
 lessness and neo;li2"euce of the driver of the car (who was also 
 conductor), who, while a man who was intoxicated was trying to 
 get ofi: the car while in motion, seized hold of him to prevent his 
 falling, but the man slipped from his grasp, fell under the cur and 
 
 ^Kennedy v. Eynll, 67 N. Y, 379. 
 ^Sherlock v. Ailing, 9;^, U. S. 99, 23 L. ed. 819.
 
 S-^'I J.IAUU.ITV yon SKUIAOKSVE OU VI(tI,KN<i: ok ^KKVA^•T^^. 
 
 his arm aiiil leg were injured by the wheels passing over them, 
 it was said rliat if the condnct of the driver in such case is willful 
 and nialicious, with intent to injure plaintiff, he might be indict- 
 able for assault with intent to kill, or some other criminal oiiense, 
 but his emi)lover is not ]'es))(jnsil)le for his crimes nor for his acts 
 of willful and nialicious trespass. The company was answerable 
 only for his negligence or his incapacity or unskillfulness in the 
 perfoi'mance of the duties assigned him. In such case punitive 
 damages cannot be allowed oi' any damages beyond full compen- 
 sation for the injury sustained.' But is not the company respon- 
 sible for emphning a conductor who assaults passengers willfully 
 and maliciously ( 
 
 In a Pennsylvania case the court >aid: "We do not say that 
 in no case can a blow be given l)y a conductor or a driver, and be 
 Avithin the scope of his authority. It certainly may when, bj 
 resistan(;e to proper authority it becomes necessary to execute that 
 authoi'ity. No company would ever confer the authoritj' even to 
 beat trespassei's on theii* cars. In this case the blow knocked the 
 plaintitf olf the car and by culpal)le negligence the car Avas driven 
 over his foot and he was badly injured. The driving of the car Aves 
 within the scope of the driver's employment, and for this the com- 
 pany was answerable. It was for this that danuiges were given." " 
 
 In an English case it was decided that "a person who puts 
 another in his place to do a class of acts, in substance necessarily 
 leaves him to determine, according to the circumstances which 
 arise, when an act of that class is to be done, and trusts him for 
 the mannei- in which it is done. Consecpiently he is answei-able 
 for the wrong of the ])crson so entrusted in the manner of doing 
 ^uch act under cii-cunistanci's in which it ought nut to have been 
 done, proNJded that which is done is not done from any caprice of 
 rlie servant, but in the course of the em])loyment.'" In that case 
 the company was held answerable for i:2(>0 foi- injury done a 
 j)assenger by a porter who atteni])ted to removi' him fi-om a train 
 which he was righttully on but which the poi'ter thought was the 
 w rong one,'' 
 
 ^Mi-KeoH V. Citizens li. Go. 43 Mo. 7!). 
 
 'l^UtHhui-d, A. tfe M. Vtm. R. Co. v. Donahue, 70 Pa. 110. 
 
 ■'nai/leii V. MancIieHter, H. cfe L. R. Co. I>. ]i. 7 C. P. 415.
 
 LIAHIMTV FOR VI()I.KN(;K Ol- KMl'J-OVEs — FoKMKi; U'l l-K. 'S'd'd 
 
 The coiKliic'tor of a street car is not a drivei- of n eai'mge 
 within the nieaiiiuir of a statute, whieh mak(^s the ownei's of 
 carriages niniiini:; upon the hii>hway liable for all injui"ies and dam- 
 ages done ])y a driver while driving such earriage, whi'thor the 
 aet M'as willful or negligent, and following this line of easo, where 
 ])laintiff, a passenger on defendant's cai'. (h'siring to alight, passed 
 out upon the [)latforni of the car and re(pu'sted the coiiductoi' to 
 stop tlie ear and refused to get out till the ear had come to a full 
 stop, whereupon, and while the car was in motion, tlie eonduetor 
 threw her from the ear with great violence out upon tlie i)ave- 
 inent, whei'ehv she was seriously injured, it was held that the act 
 was a wanton and willful trespass ami not in the perfoi-manee of 
 any duty to or any act authorized by the cai-rier. aiul that such 
 carrier was not liahle. Tlie court said: "If an act is done by 
 the servant on the business of the master, and within the scope 
 of his employment, the mastei- is liable to third persons for any 
 abuse of the authority conferred, or for injuries resulting from 
 any error of judgment or mistake of facts by the servant, as well 
 as for those resulting from negligence or the reckless performance 
 of his duties." 
 
 The judgment in an early iS'ew York decision was u|)oii thi< 
 ground and authorities are cited in the opinion of the court liy 
 Judge Andrews; but the same authorities, as well as the judg- 
 ment in that case, reaffirm and recognise tlie princi))le that for 
 the willful, wanton and reckless acts of the servant not coiniuitted 
 in the service of the master, and not within tlu^ lin(» of his duty 
 or the scope of his employment, the master is not liable. The 
 line separating the acts foi* which the master is respcjtisible. from 
 those for which he is not i-espoiisible, it is admitted, is not in all 
 cases, very well defined, and in some ciises it may be ditticiilt to 
 distinguish between the two classes of acts. The difKculty is not 
 however, it is said, as to the principle but in its application to partic- 
 ular circumstances andthecpiestion of liability doesnotdepend upon 
 the quality of the act but rather upou the other question whether 
 it has been performed in the line nf duty and within the sco[)e of 
 the authority conferred by the master.' Carriers are not i-espon- 
 
 ^Uiggins v. Watervliet Tump. & R. Co. 46 X. Y. 27. See also Seymour v. 
 Greenwood, 7 Hurlst. & N. 355: Limjms v. Londnii Oen. Omnihus Co. 1 
 Hurlst. & C. 526; Gofv. Grenf Northern R. Co. 3 El. efe El. 672.
 
 33i LIAlilLlTV: FOR NEGLlGJiNCK oK VIOLKNOK OF SERVANTS. 
 
 sible for willful and tortious acts of their servants committed out- 
 side of the scope of their employment.' 
 
 So where the act of the servant, whether a trespass or other- 
 wise, is without the authority, either expressly conferred upon 
 the servant or implied from the nature of the employment, and 
 character of duties, causes injury to others, the master is not held 
 answerable. It is said that the implied authority in the servant is 
 limited to those acts which the master could himself do if person- 
 ally present, and if, in the performance of such acts, the servant 
 misconducts himself the master will be liable for his acts.''' 
 
 Some expressions in the opinions of the judges which would 
 exonerate a railroad company from liability for excessive force oi' 
 error of judgment in the performance of an act by a conductor 
 within his genera! authority, it is admitted, are open to criticism 
 as not in harmony with the later authorities, and would not prob- 
 abl}^ be regarded as sound, although they are supported by the 
 earlier cases and by the elementary authorities.* 
 
 The supreme court of Kew York held that for willful injury 
 done by a servant the master was not liable and adopted the rule 
 of Lord Ivenyon that " when a servant quits sight of the object 
 for which he is employed and without having in view his master's 
 orders, pursues that which his own malice suggests, he no longer 
 acts in pursuance of the authority given him." The principle is 
 the same whether the wrongful act of the servant is malicious or 
 merely wanton and reckless.'' So, in an action for injuries where 
 a boy, leaving a car, was willfully and wantonly struck by the 
 driver and thereby thrown from the car and the wheel passed 
 over him, injuring him, it was held that the car owners were not 
 liable for the act of the driver in striking the boy, but only for the 
 driver negligently driving over him.' If a servant does some- 
 
 '^Lafitte V. New Orleans City & L. R. Co. 12 L. R. A. 337, 43 La. Ann. 34. 
 •^ron'.ton V. London & S. W. B. Co. L. R. 2 Q. B. 534. The case of Hibbard 
 
 V. New York & E. R. Co. 15 N. Y. 455, is an illustration of the same 
 
 principle. 
 ^McManus v. Crickett, 1 East, 106, and authorities cited, 
 
 * Wright v. IFeVmc, 19 Wend. 343. See also Porter v. Chicago, R. I. tfi P. R. Co. 
 
 41 Iowa, 358. See Isaacs v. Thiid Ave. R. Co. 47 IS. Y. 122; PittKburg, 
 A. tfe Af. Pans. R. Co. v. Donahue, 70 Pa. 119; McKeon v. Citizens R. Co. 
 
 42 Mo. 79; Central R. Co. v. Peacock, 12 Cent. Rep. 867, 69 Md. 257. 
 
 * Pittsburg, A. & M. Pass. R. Co. v. Donahue, 70 Pa. 119.
 
 MODERN KULE OF LIAIilMTY 1«0K WANTON VIOLENCE. 335 
 
 thing he is not employed to do, the master, it is said, is not liable/ 
 But a master, it is conceded, is liable for the results of the willful 
 misconduct of his servant if within the scope of his authority.' 
 It is said a street railway company is not lia])le for the wrong- 
 ful arrest of a passenger' at the instance of its conductor, who was 
 not acting within the scope of his authority, whei'e it has nor 
 adopted the action of the conductor and did not know of the 
 arrest.* 
 
 § 106. Modern Bale of Liahility for Wanton Vio- 
 lence of Employes. 
 
 The modern rule is stated* in a case where the plaintiff was a 
 passenger on one of defendant's horse cars having no conductor. 
 the driver being the only person in charge of the car and acting 
 both as driver and conductor. While plaintiif was in tlie car a 
 newsboy jumped on it, and was ordered oif by the driver. The 
 boy got off. The driver stopped his car, tied the reins around 
 the brake handle, climbed over the front of the dash board, and 
 ran after the boy, caught him and beat him. The passengers 
 interfered to protect the boy. Afterwards the driver returned to 
 the car and started it, but being excited began to abuse the pas- 
 sengers calling them bastards, etc., and finally entered the car, 
 seized plaintiff, knocked his head against the panel of the window, 
 at the same time striking him across the head with the butt end 
 of his whip, thus beating the plaintiff severely. The passengers 
 again interfered and the driver drove his car on. There was some 
 evidence tending to show that the driver was under the influence 
 of liquor. It was said in that case that the defendant had en- 
 trusted the execution of the contract to the driver of the car and 
 the plaintiff was under his protection and any breacli of contract 
 committed by the driver was a breach committed by the defend- 
 ant. As any injury arising from the mere negligence of the 
 servants would have rendered the driver liable, tlie same act 
 
 ^MitcMi V. Crasstceller, 13 C. B. 237. 
 
 ^Pittsburg. A. & M. Pass. R. Co. v. Donahue. 70 Pa. 119; Central R. Co. v. 
 
 Peacock, 12 Cent. Rep. 867, 69 Md. 257; Lakia v. Oregon Pac. R. Co. 15- 
 
 Or. 220. 
 ^Cunningham v. Seattle Electric R. & P. Co. (Wash.) Jan. 12, 1892. 
 *Stewart v. Brooklyn <fi C. R. Co. 90 N. Y. .588.
 
 336 LIABILITV FOK NEOLIOENCE OR VIOLKNCE OK SERVANTS. 
 
 wonlJ be equally a l)reaeh if done willfully and maliciously, and 
 that it is an inmiatenal matter whether the Itreach of the contract 
 results from the negligence or willfulness of the defendant's 
 agent. The recovery is had for the injury suifered Ijy the pas- 
 senger while in the defendant's car, and it is not the motive wliich 
 induced it. that constitutes the gist of the action. No reason 
 exists for holding the master liable for the negligence of the serv- 
 ants in his enijiloynient which does not, with equal force, pre- 
 clude him from alleging intentional default of the servant as an 
 excuse for not performing the duty which he has undertaken. 
 In the former case the negligence of the servant is the master's 
 and that is the gronnd of the master's liability; in the latter the 
 act of the servant is the act of the master, the motive of the serv- 
 ant making no difference in the character of the master's default 
 in doing his duty. Tlie action is for the failure to carry safely 
 and without injury and it is no defense to show that the failure 
 was the result of the willful and malicious act of the servant.' 
 
 The rule which would make the carrier liable when the act 
 resulting in the injury was carelessly or unintentionally done, 
 and exonerate him wlien the injury was the result of the inten- 
 tional act of the sei-vant, would lead to the most absurd results. 
 By such rule a stage comjmny who ])laced a lady passenger under 
 the protection «ff its driver to be carried over its road would be 
 liable if, by his unskillful driving, he upset the coach and injured 
 her; hut if, taking advantage of his opportunity he should assault 
 and rob her, the cai-rier would go scot free. If the porter of a 
 >leeping-car, employed to guard the car while the passengers 
 sleep, should himself fall asleep or abandon his post or allow a 
 pickpocket to enter an<l i-oh the passengers the company would 
 be liable; l)Ut if the guardian himself should tiirn pickpocket, and 
 rifle the ])c>ckets of the passengers, the conq)any under such a 
 rule, would not be resjxmsible for his acts. The carrier selects 
 its own servants and agents and must be held to warrant that they 
 are trustworthy as well as skillful and competent. Judge Story 
 states the rule tliat in e\ery such case the principal holds out his 
 agent as competent and tit to be trusted, and therefore, in effect 
 he warrants his fidelity and good conduct in all matters within 
 
 1 \V,,,\ V. Pmuimii It Cn, 17 N. Y. ;5G2.
 
 MODERN RVLK OF LIABIUTiT FOR WANTON VIOLENCE. 337 
 
 the scope of his ageucv.* Recent cases state this liability in the 
 broadest and strongest language; and, without going beyond the 
 victual decisions, it may be said that the carrier is liable for every 
 conceivable wrongful act done to a passenger by its train hands 
 and other employes wliile they are engaged in transporting him, 
 no matter how willful and malicious the act may be, or how 
 plainly it may be apparent from its nature that it could not have 
 been done in furtherance of the carrier's business.' But for per- 
 isonal injury done by the employe of a common carrier to a pas- 
 senger, if the employe is free from liability therefor the carrier is 
 not liable,' 
 
 In most of the cases in which an injury done by an employe 
 has been the cause of the litigation, the defense has been, not 
 that the act of the employe was lawful, but that it was a wanton 
 and willful act on his part, outside the scojdc of his employment, 
 and therefore something for which his employer was not respon- 
 sible. And if the act was of that character, the general rule is 
 that the employe alone, and not the employer, is responsible. 
 But owing to the peculiar circumstances which surround the car- 
 rying of passengers,- a more stringent rule of liability has been 
 <?ast upon the employer; and he has been held liable although the 
 assault was wanton and willful, and outside the scope of the em- 
 ployment. Generally masters "are responsible for the acts of 
 their servant in those things that respect his duty under them, 
 though they are not answerable for his misconduct in those things 
 that do not respect his duty to them."* But because of the con- 
 tractual relation between a carrier and its p>assengers the former 
 is liable for every unjustifiable assault upon the latter by its serv- 
 ants in charge of their transportation.* 
 
 'Story, Bailm. §§ 450-456; Stokes v. Saltonatall, 38 U. S. 13 Pet. 181, 10 L. 
 
 ed. 115. 
 ^Penvy v. Georgia JR. & Bkg. Co. 81 Ga. 485'; Harrison v. Fink, 42 Fed. 
 
 Rep. 787. 
 ^New Orleans & If. E. R Co. v, Jopes, 142 U. S. 18, 35 L. ed. 919. 
 *Lord Kenj'on. Ch. J., in Ellisv. Turner, 8 T. R. 531-533. 
 ^'Lotm-oille & N. R. Co. v. Whitman, 79 Ala. 328; Sherley v. Billings. S'Qxxsh, 
 
 147, 8 Am. Rep. 451; Wabash R. Co. v. Savage, 6 \Vest. Rep. 298. 110 
 
 Ind. 156; St. Louis, A. & C. R. Co. v. Dalby, 19 111. 353; Ooddard v. 
 
 Grand Trunk R. Co. 57 Me. 202, 2 Am. Rep. 39; Conger v. St. Paul. M. 
 
 & M. R. Co. 45 Minn. 207; Ricketts v. Chesapeake & 0. R. Co. 7 L. R. A. 
 
 354, 33 W. Va. 433; Stewart v. Brooklyn & C. R. Co. 90 N. Y. 588, 43 
 
 22
 
 338 LIABILITY FOR NEGLIGENCE OK VIOLENCE OF SERVANTS. 
 
 In Stewart v. Brooklyn & C. R. Co. the court says that it 
 was not called to the mind of the court in the Isaac's case that 
 the liability of the master is different where the master owes a 
 duty to the person wronged by the servant. 
 
 "So, when a railway company puts a conductor in charge of its 
 train, and he purposely and wrongfully ejects the passenger from 
 the cars, the railway company must bear the blame and pay th& 
 damages. As between the company and the passenger, the right 
 of the latter to compensation is unquestionable."* Why ? Not 
 because the company authorized it expressly or impliedly, but 
 because it was the duty of the company to treat him properly, 
 and carry him safely; and it makes no difference what was the 
 conductor's motive for doing the act, how exclusively personal it 
 may have been, or how foreign to the master's business then in 
 hand, of transporting the passenger, if the act was in violation of 
 the master's duty to the passenger, which it was the conductor's 
 duty to discharge and perform as the master's servant and in the- 
 master's place. And the same principle applies to other acts in 
 the same circumstances, such as assault and battery." 
 
 In Stewart v. Brooklyn <& G. B. Co., where the plaintiff was a 
 passenger on one of the defendant's street cars, and was unjusti- 
 fiably assaulted and beaten by the driver, it was held in an action 
 to recover damages therefor that it was liable; that the rule 
 reheving a master from liability for a malicious injury inflicted by 
 his servant when not acting within the scope of his employment, 
 does not apply as between a common carrier of passengers and a 
 passenger; that such a carrier undertakes to protect the passenger 
 against any injury arising from the negligence or wilKul miscon- 
 
 Am. Rep. 185. The last case practically overrules Isaacs v. Third Ave. 
 R. Co. 47 N. Y. 122, 7 Am. Rep. 418, which held that the street car 
 company was not liable for the act of the conductor in pushing from the 
 platform, "while the car was in motion, a passenger who wished to alight 
 on the ground; that it 'was without the scope of his authority. 
 
 'Cooley, Torts, (2d ed.) 626, and cases cited. 
 
 ''Siemiri v. Brooklyn t6 G. R. Co. 90 N. Y. 588, 43 Am. Rep. 185; Bri/ant v. 
 Rich, 100 Mass. 180, 8 Am, liep. 311; Chicago & E. R. Co. v. Fle.vman, 
 103 111. 546, 8 Am. & Eng. R. Cas. 354; Wabcish R. Co. v. Savnge, G West. 
 Rep. 398, 110 Ind. 156. See Thomp. Carr. p. 303, notes to Pendleton v. 
 Kinrjsley, 3 Cliff. 416. Harris v. Louisville, N. 0. & T. R. Co. 35 Fed. 
 Rep. 116, was a case of false imprisonment. See case of Corbettv. 
 Twtnty third St. R. Co. 42 Hun, 587 (1886), also a case of assault and 
 false imprisoment.
 
 MODEKN KULE OF LIABIHTV FOli WANTON VIOLENCE. 339 
 
 duct of its servants while engaged in performing a duty which the 
 carrier owes to the passenger. In that case Judge Tracy, writing 
 the opinion of the court, cited many authorities, and, among other 
 things, said : "In the present case the defendant had intrusted 
 the execution of the contract to the driver of tlie car, and the 
 plaintiif was under his protection. Any breacli of the contract 
 committed by the driver was a breach committed by the defend- 
 ant. It is conceded that any injury arising from the mere negh- 
 geuce of the servant constitutes a breach of the contract. Had 
 the driver, while executing the contract, carelessly and negligently 
 injured the plaintiff, the defendant's liability would not have been 
 doubted. Can it be less a breach of the contract that the injury 
 was intentionally inflicted ? An act which would amount to a 
 breach of the carrier's contract if negligently done, would be 
 equally a breach if done willfully and maliciously. It is imma- 
 terial whether a breach of contract results from the negligence or 
 willfulness of the defendant's agent. It is the injury that was 
 suffered by the plaintiff while in the defendant's car, and not the 
 motive which induced it, that constitutes the gist of the action. 
 N^o reason exists for holding a master liable for the negligence of 
 servants in his employment which does not with equal force pre- 
 clude him from alleging intentional default of the servant as an 
 excuse for not performing a duty which he has undertaken. In 
 the former case the negligence of the servant is that of the mas- 
 ter, and that is the ground of the master's liability; in the latter, 
 the act of the servant is the act of the master, the motive of the 
 servant making: no difference in reo-ard to the leo-al character of 
 the master's default in doing his duty." 
 
 A rule which should make the carrier liable when the act result- 
 ing in the injury was carelessly but unintentionally done, and 
 exonerate him when the injury was the result of the intentional 
 act of the servant, would lead to most absurd results. It has 
 been held that a railroad company, by the sale of a ticket for 
 passage on its road, assumes the obligation and undertakes abso- 
 lutely to protect the passenger against any injury from negligence 
 or willful misconduct of its servants while jDerforming its contract; 
 and that, whatever may be the motive which incites the servant 
 to commit an unlawful or improper act towards the passenger
 
 34U LIABILITI' FOK NEGLIGENCE OR VIOLENCE OF SERVANTS. 
 
 during the existence of the relation of carrier and passenger, the 
 carrier is liable for the act and its natural and legitimate conse- 
 quences. In such a case, too, it has been held that it is wholly 
 innnaterial upon the question of the defendant's liability that the 
 servants acted in good faith/ 
 
 A carrier corporation is liable for all acts of wantonness, rude- 
 ness or force, done or caused to be done bj its agents or servants, 
 in or about the business or duties assigned to them, although in 
 violation of the general rules or orders prescribed for their con- 
 duct ; and the rule as to vindictive damage for such acts, in an 
 action against the corporation, is the same as in actions against 
 natural persons." Although a brakeman in the absence of express 
 orders, has no authority to eject a passenger from a train, a rail- 
 road company will be liable for an injury wantonly inflicted on a 
 j)assenger traveling on a train on which such brakeman is 
 employed.^ So a railway company is most unquestionably liable 
 for the malicious and criminal acts of its employes towards passen- 
 gers while they are executing what they suppose to be the orders 
 of the com]3any, even though the orders do not in fact contem- 
 plate such acts.* Where an agent commits an assault in the line 
 of his duty and within the scope of his employment the master is 
 liable.^ A street railway company is liable for an assault by a 
 driver upon a passenger, committed for the purjDOse of procuring 
 him to pay his fare, which the latter claimed to have once paid.^ 
 A raih'oad company is responsible for an assault and battery by 
 the conductor of one of its trains upon a passenger in seizing or 
 attempting to seize his property to enforce payment of his fare.' 
 Where a passenger on a street car by mistake put too much fare 
 in the box and was reimbursing himself by collecting fares from 
 
 'DwineUe v. New York Cent. & II R R Co. 8 L. R. A. 334, 120 N. Y. 132; 
 
 see also ILimiltoa v. Tlurd Ave. R. Co. 53 N. Y. 35. 
 ^Louisville & N. R Co. v. Whitman, 79 Ala. 328. 
 ^Wnbaxh R Co. v. Samge,Q, West. Rep. 298, 110 Ind. 156. 
 *McKinley v. Chicnqo <& N. W. R. Co. 44 Iowa, 314; Chicaffo & E. R. Go. v. 
 
 FLexman, 103 111. 546, 8 Am. & Eog. R. Cas. 354; Gatncay v. Atlanta & 
 
 W. P. R. Co. 58 Ga. 216. 
 ^Unmilton v. Third Ave. R. Co. 13 Abb. Pr. N. S. 318, 3 Jones & S. 118. 
 *M<ilecek v. lower Grove li. Co. 57 jMo. 17. 
 iRamnden v. Boston d- A. R. Co. 104 Mass. 117; Afoore v. Fitchbnrg R. Corp. 4: 
 
 Gray, 465; Hewetlv. tiwift, 3 Allen, 420; Holmes v. Wakefield, 12 Allen, 
 
 580.
 
 MODERN KULE OF JJAIJILITV luH WANTON VlOLKNUK. o41 
 
 incoming passengers, and the driver removed him from the car 
 -for so doing, the driver is guilty of an assault for which the rail- 
 road company is liable.' 
 
 Striking a passenger, throwing him down, trampling on him, etc., 
 is ground of action against the company for assault and battery." 
 A carrier is responsible for the malicious and wanton acts of its 
 servant to a passenger, whether done in the line of his employ- 
 ment or service or not, if done in the course of the discharge of 
 his duty to the master which relates to the passenger.^ A brake- 
 man who kicks a passenger as the latter is attempting to board a 
 moving train renders the company liable for the injuries resulting 
 from his act.* Where a person, desiring to become a passenger 
 upon a freight train, entered the caboose and the conductor inso- 
 lently refused to carry him, and struck him with his lantern, the 
 railroad company was liable. ° 
 
 Carriers of passengers by water are under the same liability as 
 those by land for assaults by their servants." The plaintiif offered 
 to purchase a ticket for his j)assage upon defendant's steamboat 
 when he embarked, but the clerk refused to change the bill which 
 he offered in payment, and later, upon refusal to pay his fare, the 
 clerk assaulted plaintiff and removed him to another part of the 
 boat. It was held that, although the plaintiff could have been 
 removed from the boat for his refusal to pay, yet the carrier was 
 liable for the assault upon him while he was permitted to remain.' 
 
 Receivers of a railroad company are liable for injuries to a pas- 
 senger on a train, resulting from the willful or malicious acts of 
 the conductor.* If a passenger on a train receives injuries which 
 are the direct and necessary result of willful, wanton, or malicious 
 acts of the conductor or those assisting him, he is entitled to dam- 
 ages therefor.' Where a brakeman refused to allow^ a passenger 
 
 Worbett v. Twenty-third St. R. Co. 43 Hun, 587. 
 
 '^Priest V. Hudson Paver R. Co. 10 Abb. Pr. N. S. 60. 
 
 ^Eads V. Metropolitan R. Co. 43 Mo. App. 536. 
 
 ^Moilop V. Neio York Cent. & H. R. R. Co. 10 Daly, 453. 
 
 =• Wedern & A. R. Co. v. Turner, 72 Ga. 293, 53 Am. Rep. 843. 
 
 ^Block V. Bannerman, 10 La. Ann. 1; Springer Transp. Co. v. Smith, 16 
 
 Lea, 498. 
 "< Pendleton v. Kinsley, 3 Cliff. 416. 
 ^Dillingham v. Anthony, 3 L. R. A. 634, 73 Tex. 47. 
 ^Atchison, T. <& S. F. M. Co. v. Gants, 38 Kan. 608.
 
 342 LIAKILITT FOK NEOLIGENCK OK VIOLENCE OF SERVANTS. 
 
 to pass through the ladies' car, used abusive language and com- 
 mitted an assault, plaintiff was entitled to exemplary damages.' 
 A street car company is liable for damages occasioned by the 
 wrongful, wanton, and malicious ejection of a passenger by its 
 conductor.'' Although a servant of a carrier may be obliged to 
 use force in the enforcement of reasonable regulations established 
 by the carrier, the carrier will not be protected if he uses exces- 
 sive or unnecessary force.' 
 
 For unnecessary force in ejecting a passenger the company 
 is liable, although the conductor had the right to remove him.'' 
 If the conductor, acting in the performance of his duty, exceeds 
 the degree of force necessary and proper to accomplish the 
 purpose of removal, and injury results, the company is also 
 liable.* A railroad company is liable for a willful assault com- 
 mitted by its brakeman in an effort to discharge his duty to put a 
 trespasser off the train.® A carrier is responsible for the malicious 
 and wanton acts of its servant to a passenger, whether done in the 
 line of his employment or service or not, if done in the course of 
 the discharge of his duty to the master which relates to the pas- 
 senger.' A railway company selects its own agents at its own 
 pleasure and is bound to employ none but capable prudent and 
 humane men.* If the carrier places lady passengers under the 
 protection of libertines who insult or assault them, or male passen- 
 gers under the protection of drunken ruffians who fall upon and 
 beat them without cause, it will be responsible for the injury. 
 This rule rests upon sound reason and is abundantly supported 
 I)y authority. Where a person is assaulted and grossly insulted 
 by a brakeman employed on the train, the company is liable." 
 Where a conductor on a train makes an indecent assault on a 
 
 * Atlanta cfeTF. P. R. Go. v. Condor, 75 Ga. 51. 
 
 "^North Chicago Citxj R. Co. v. Gastka. 4 L. R. A. 481, 128 111. 013. 
 
 ^New Jersey S. D. Go. v. Brockett, 121 U. S. G37, 30 L. ed. 1049. 
 
 ^Chicago, St. L. & P. R. Co. v. Bills, 1 West. Rep. 347, 104 Ind. 13. 
 
 '".TackHon v. Second Ave. R. Co. 47 N. Y. 274; Ramsden v. Boston & A. R. Co. 
 
 104 Mass. 117. 
 •Alabama G. S. R. Co. v. Frazier, 93 Ala. 45. 
 '•Eads V. Metropolitan R. Co. 43 Mo. App. 530. 
 ^Pennsiflvania R. Go. v. Vandicer, 43 Pa. 365. 
 ^Ooddard v. Grand Trunk R. Co. 57 Me. 203.
 
 MODERN RULE OF LIABILITY FOB WANTON VIOLENCE. 343 
 
 female passenger the company is liable for compensatory dam- 
 ages.' 
 
 A master is liable for the tortious acts of his servant, done with- 
 in the scope of the servant's authority, although in disobedience 
 ■of instructions or orders." The employer is estopped to deny his 
 servant's authority.^ A railroad company is responsible for the 
 unlawful violence and misbehavior of its employes to its passen- 
 gers both on the cars and at *the office. * 
 
 Where plaintiff, a passenger on a steamboat, was assaulted and 
 injured by the steward, the master as common carrier was held 
 liable for the injury.^ Where a passenger on its boat was insulted 
 <md injured by the officer of the boat the carrier was held lia- 
 ble.* Where a brakeman assaulted a passenger, the company was 
 held liable.' For violation of tlieir rights passengers have their 
 remedy by action on the contract of carriage. 
 
 A street car company is liable to damages occasioned by the 
 wrongful, wanton, and malicious ejection of a passenger by its 
 •(Conductor. Such act is within the general scope of the conduc- 
 tor's employment. And it is immaterial that the person ejected 
 is only a trespasser, if the manner of the ejection be violent and 
 analicious.' As the driver of a street car has the carrier's authority 
 to expel improper or disorderly persons, and the carrier is answer- 
 -jible for his errors in the exercise of tlie power, it will be respon- 
 sible where he throws a passenger from the cars causing him 
 personal injuries, although the act of the driver was willfully done.' 
 
 The authorities are numerous which sustain the position already 
 stated that if undue force is used in a lawful removal of a passen- 
 
 ^Graker v. CMcaqo & N. W. R. Co. 36 Wis. 657; Southern Kansas B. Co. v. 
 Hinsdale, 38 Kan. 507. 
 
 "See MeCord v. Western U. Teleg. Co. 1 L. R. A. 144 and note, 39 Minn. 181. 
 
 'See DilUngham v. Anthony, 8 L. R. A. 684, 78 Tex. 47. 
 
 ^Savannah Street & R R. Co. v. Bryan, 86 Ga. 312, 9 Ry. & Corp. L. J. 136. 
 
 ''Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311. 
 
 ^Sherley v. Baiings, 8 Bush, 147, 8 Am. Rep. 451. 
 
 ''Chicago & E. R. Co. v. Flexman, 103 111, 546; Cain v, Minneapolis & St. L. 
 R. Co. 39 Minn. 297. 
 
 ^North Chicago City R. Co. v. Gastka, 4 L. R. A. 481, 128 111. 613; Atchison, 
 T. & St. J. R. Co. V. Ganis, 88 Kan. 608; Southern Kansas R. Co. v. Rice, 
 38 Kan. 398. 
 
 * Lyons v. Broadway & S. A. R. Co. 33 N. Y. S.R. 233.
 
 344 LIABILITY FOK NEGLIGENCE OK VIOLENCE OF SERVANTS. 
 
 ger the carrier will be liable.* Altlioiigli the carrier has not 
 authorized the particular act, yet if he has jDlaced the servant in 
 his position to do that class of acts, he is answerable for the man- 
 ner in which the servant does any particular act.* A depot com- 
 pany incorporated for the purpose of furnishing depot and sta- 
 tion-house accommodations for carriers is guilty of negligence in 
 allowing the continuance in its depot of an employe of its tenant, 
 renting a room in which to check j^arcels, who is a man of savage 
 and vicious propensities and in the habit of attacking and beating 
 people, and it will be liable for injuries to one who is, without 
 his own fault, attacked and beaten by such employe.^ 
 
 § 107. Passengers Entitled to Protection against 
 
 Rudeness. 
 
 But these authorities do not always give full scope and effect to 
 the obligation Avhich the carrier assumes towards his passenger, 
 nor the rights and duties which these relations create and the law 
 imposes. Passengers do not contract merely for car or ship room 
 and transportation from one place to another, but they are also 
 entitled to good treatment and protection against j)ersonal rude- 
 ness and every wanton interference with their persons, either by 
 the carrier or by his agents employed in the management of the 
 conveyance, and for the fulfillment of these obligations the carrier 
 is responsible as principal; and the injured party, in case the obli- 
 gation of good treatment is broken, whether by the principal or his 
 employes, may proceed against the carrier as the party bound to 
 made compensation for the breach of the obligation.* 
 
 ^Johnson v. Chicago, R. 1. & P. R. Co. 58 Iowa, 348; Pennsylvania R. Go. v. 
 Vandiver, 42 Pa. 365; Peck v. New York Gent. & H. R. R. Co. 70 N. Y. 
 587; Etunxville & C. R. Co. v. Baum, 2G Iiid. 70; Louisville, N. A. & G. 
 R. Co. V. Dunkin, 92 Ind. 601 ; Carter v. Louisiville, N. A. & 0. R. Co. 
 98Ind. 552; Marqvette v. Chirnrjo & N. W. R. Co. 33 Iowa. 562; Great 
 Wtdern R. Co. v. Miller, 19 Mich. 305; Bayhy v. MancJiosler, S. d: L. R. 
 Co. L. R. 7 C. P. 415; Holmes v. Wakefield, 12 Allen, 580; Milwaukee ct 
 M. R. Co. V. Finney, 10 Wis. 388; Jackson v. Second Ate. R. Co. 47 IN. 
 y. 274; Kline v. Central Pac. R. Co. 37 Cal. 400. 
 
 ^Barwick v. Enrjliuli Joint Stock Bank, L. R. 2 Excli. 265. 
 
 ^Dean v. 8t. Paul Union Depot Co. 5 L. R. A. 442, 41 Minn. 360. 
 
 *Oillin{iham v. Ohio River R. Co. 14 L. R. A. 7S8. 35 W. Va. 588; Winnerjar 
 V. Central Pafii*. R. Co. 85 Ky. 547; Cliamherlain v. Chandler, 3 ]\Iasoii, 
 216; Nieto v. Clark, 1 CliJT. 145; Weedy. Panama R. Co. 17 N. Y. 362; 
 Kei'ne v. Lizardi, 5 La. 431; lilark v. Banncrman, 10 La. Ann. 3; Pendle- 
 ton V. Kindey, 3 Clill. 416; Spolin v. Misxouri Pac. R. Co. 101 Mo. 417.
 
 PASSENGICKS KNTITl.KD TO I'KOTEGTION AGAIXST RUDENESS. 345 
 
 Clifford, </., says that passengers on shipboard contract "for 
 protection against personal rudeness from all those in charge of 
 the vessel, and every wanton interference M'ith their persons.'" It 
 has been already shown that the rule which applies where a serv- 
 ant assaults one to whom his principal owes no duty, has no appli- 
 cation as between a common carrier and his jmssenger. In such 
 a case a different rule applies. There is a special duty on the 
 carrier to protect its passengers, not only against violence and 
 insults of strangers and co-passengers, but also against the rude- 
 ness and insults of its own servants; and for a breach of that duty 
 it ought to be compelled to make the amplest reparation." 
 
 A street railway company is liable to a passenger for insults and 
 defamation inflicted upon him by the driver of the car.^ A rail- 
 road company is liable for the abusive language used by its servant 
 in the scope of his employment to a passenger whom he has 
 falsely caused to be imprisoned.* A ship-owner is liable to a 
 female passenger for ill treatment by the master, consisting of 
 habitual obscenity, immodest conduct and confinement to her 
 cabin by threats of personal injury and of refusal to give her proper 
 food.* Where a brakeman refused to allow a passenger to pass 
 out of one ^ar into the next while the train was in motion, there 
 being no rule of the company forbidding such passing, the rail- 
 road company is liable for opprobrious language and an assault 
 by the brakeman during an altercation arising out of such refusal.* 
 By the carrier's contract he has undertaken to carry the passenger 
 safely and to treat him respectfully, and while a common carrier 
 does not undertake to insure against injury from every possible 
 danger, he does undertake to protect the passenger against any 
 injury arising from the negligence or willful misconduct of his 
 servants while engaged in performing the duty which the carrier 
 owes to the passenger.'' As to the carrier's servants, the 23asse]i- 
 
 ^Nietov. Clark, 1 Cliff. 145. See Missouri Pac. R. Co. v. Martino (Tex.) 11 
 
 Ry. & Corp. L. J. 270. 
 ^Southern Kansas R. Co. v. Rice, 38 Kan. 398. 
 
 ^Lnfilte V. New Orleans City & L. R. Co. 12 L. K. A. 337, 43 La. Ann. 34. 
 *Pubnen v. Manhattan Lies. R. Co. 39 N. Y. S. R. 23. 
 "Chamberlain v. Chandler. 3 Mason, 242; Keene v. Lizardi, 5 La. 431, C La. 
 
 315. 
 ^Atlanta <& W. P. R. Co. v. Condor, 75 Ga. 51. 
 "•Crakery. Chicago <& W. JST. R. Co. 36 Wis. 657.
 
 346 LIABILITY FOR NEGLIGENCE OR VIOLENCE OF SERVANTS. 
 
 ger contracts for good treatment and against personal rudeness, 
 abuse and violence,* Indeed the carrier must answer, where 
 through the negligence of his employes, the passenger is placed in 
 a position of apparent imminent peril, the effect of which is to 
 produce fright, nervous convulsions and illness.' 
 
 For abuse and defamation of a passenger by the driver of a 
 street car, who charges the passenger with having given him 
 counterfeit money find threatens to have him arrested, the street 
 -car company may be held liable." A ticket agent who follows a 
 woman who has bought a ticket out upon the platform and 
 •charges her with giving him counterfeit money with a demand 
 for other money in its stead and on her refusal angrily insults her 
 by slandering her character and puts his hand upon her telling 
 her not to stir until he gets a policeman to arrest and search her, 
 but lets her go when he fails to get an officer, is acting within the 
 scope of his employment and renders the carrier liable for false 
 imprisonment and slander, if the detention was unlawful and 
 his charges false.* The mere fact that a person is intoxicated 
 does not authorize the employes of a railroad company to treat 
 him with personal violence.* And it is under a duty to a passen- 
 ger who was thrown on its track by the fault of its servant, pro- 
 ducing mental incapacity, to take steps to prevent injury to him 
 from the dang-er it knew he was likelv to incur from its trains.* 
 
 Among the obligations which such a contract imposes is the 
 duty to protect the j^assenger against any injury from negligence 
 or willful misconduct of its servants while performing the con- 
 tract; to treat him respectfull}^, and to provide him with the usual 
 accommodations, and any information and facilities necessary for 
 the full performance of the contract on the part of the carrier. 
 And these obligations continue to rest upon the carrier, its servants 
 and employes, while such contract continues and is in process of 
 performance/ It is said that " the carrier's obligation is to carry 
 
 ^Spoh7i V. Mmouri Pac. R. Co. 2 West. Rep. 121, 87 Mo. 74. 
 
 Hhtrcell v. St. Paul City II. Co. (Minn.) 11 Ry. & Corp. L. J. 114. 
 
 *Lnfitt6 V. New Orleans City & L. B. Co. 12 L. R. A. 337, 43 La. Ann. 34. 
 
 ^Palmeri v. Manhattan Elev. R. Co. (N. Y.) 10 L. R. A. 130. 
 
 ^lUinoit Cent. R. Co. v. Sheehan, 29 111. App. 90. 
 
 HJincinnati, I. Si. L. & C. R. Co. v. Cooper, 6 L. R. A. 241, 120 Ind. 469. 
 
 ''Dwindle v. New York Cent. <fc H. R. R. Co.SL. R. A. 224, 120 N. Y. 117.
 
 PASSENGERS ENTITLED TO PKOTECTION AGAINST RUDENESS. 347 
 
 his passenger safely and properly and to treat him respectfully, 
 and if he entrusts this duty to his servants, the law holds him 
 responsible for the manner in wliich they execute the trust." * The 
 contracts of common carriers are said to include everything cal- 
 culated to render the transportation most comfortable and least 
 annoying to the passenger.' In respect to female passengers the 
 contract proceeds yet further and includes an implied stipulation 
 that they shall be protected against obscene conduct and licentious 
 behavior and from immodest and libidinous approaches.' 
 
 The common carrier is bound, so far as practicable, to protect 
 passengers from violence committed by strangers and co-passen- 
 gers and he undertakes absolutely to protect them against the 
 misconduct of his own servants engaged in executing the contract.* 
 A passenger has the right to be treated by the servants and 
 agents of the carrier with kindness, respect, courtesy and due con- 
 sideration, and to be protected against insult, indignity and abuse 
 from both agents and other passengers.' There is a; special duty 
 on the carrier to protect its passengers, against the violence and 
 insults of its own servants; and for a breach of that duty it ought 
 to be compelled to make the amplest reparation." The contract 
 is safely to carry people to their several destinations; and the com- 
 pany is liable for all acts and omissions of its agents, connected 
 with or in the line of their duty.' A railroad company is respon- 
 sible for the personal rudeness of its employes to its passengers 
 during transportation or in its depots.* 
 
 It has been held that where a passenger leaves a train, and in 
 making his way to the station is injured by negligence of servants, 
 the company is liable;' but a carrier has a right notwithstanding 
 
 ^Goddard v. Grand Trunk B. Co. 57 Me. 203, 2 Am. Rep. 39. 
 
 ^Daij V. Owen, 5 Mich. 520. 
 
 ^meto V. Clark, 1 Cliff. 145. See also Craker v. CMcaffo cD N. W. B. Co. 86 
 
 Wis. 657. 
 *Com. V. Power, 7 Met. 596; Pittsburgh, Ft. W. & C. B. Co. v. Hinds, 53 Pa. 
 
 512. 
 ^McGinnis v. Missouri Pac. B. Co. 4 West. Rep. 797, 21 Mo. App. 399. 
 ^Southern Kansas B. Co. v. Rice, 38 Kan. 398; Spohn v. Missouri Pac. B. 
 
 Co. 2 West. Rep. 121, 87 Mo. 74; Pendleton v. Kinsley, 3 Cliff. 416; God- 
 
 dard v. Grand Trunk R. Co, 57 Me. 202; Craker v. Chicago & N. W. B. 
 
 Co. 36 Wis. 657; Sherley v. Billings, 8 Bush, 147. 
 ''Lakin v. Oregon Pac. B. Co. 15 Or. 220. 
 ^Savannah Street B. Co. v. Bryan, 86 Ga. 312. 
 ^Cincinnati, II. & 1. B. Co. v. Carper, 11 West. Rep. 225, 112 Ind. 20.
 
 348 LIABILITY FOK 2sEGLIGE>'CE OK VIOLETS CE OF SEKVANTS. 
 
 this duty, to remove from a train a passenger who breaks out with 
 eruptions whicli from the best medical advice that can be oljtained 
 is beheved to be smallpox, although such belief may afterwards- 
 turn out to be mistaken.* 
 
 § 108. Lictbility of Carrier as Master, wliat must 
 
 Appear. 
 
 While the carrier may be liable for the act of a stranger, or of 
 a fellow passenger, on the ground of neglect of proj)er care to 
 protect the passenger, yet where the attempt is made to rest the 
 right of action upon the existence of the relation of master over 
 the person inflicting the injury, such relation must be shown, or 
 implied in law, from the facts adduced.^ Where plaintiff was assault- 
 ed by a porter employed by a sleeping car company, which ran its 
 cars on the defendant's rails, while the porter was not engaged about 
 the transportation of passengers, and not upon the train by which 
 the plaintiff was to be transported and had nothing to do there- 
 with, the porter was not a servant of the defendant, and the 
 defendant was not liable for the assault/ 
 
 The contract of a railroad company is to carry people safely to 
 their several destinations, and the comj)any is liable for all acts 
 and omissions of its agents connected with, or in the line of their 
 duty; and it will be liable for injury to its passengers sustained 
 by reason of the negligence of its employes, although such 
 employes were not, at the time of the injury, acting within the 
 specified duty of their employment. It will also be liable for 
 such injuries sustained by reason of the acts of a person acting in 
 subordination to the agents and the company, and in the capacity 
 of an employe for the company, where its regular agents acquiesce 
 in the act.* But a person knocked down and robbed just as he 
 was about to enter a train as a passenger, cannot, under an allega- 
 tion that plaintiff was assaulted and injured by the servants or em- 
 jjloyes operating and controlling the train, recover against the 
 company without showing that the person who assaulted him was 
 
 ^Paddock v. Atchison, T. S 8. F. R. Co. 4 L. R. A. 231, 37 Fed. Rep. 841. 
 ■Liilda V. Orefjon Pac. It. Co. 15 Or. 220; Central E. Co. v. Peacock, 12 Cent. 
 
 Rep. 807, G!i .Md. 257. 
 ^Dmindlc V. New York Cent. & 11. R. R. Co. 45 Hun. 139. 
 *L<tkia V. Orer/on Pac. R. Co. 15 Or. 220.
 
 LIABILITY OF CAUKIEK AS MASTER, WHAT MUST APrEAR. 349 
 
 in the employ of the company, and " that the wrongful act was 
 done by the servant or agent of the company while in the course 
 or general work about which he was employed.' 
 
 A verdict against a railroad company for an assault committed 
 upon a passenger by one of its employes is sustained by evidence 
 that the person committing the assault was at tlie time acting as 
 brakeman under the authority of the defendant, though not on 
 his regular train.^ There must always exist either by express 
 conti'act, or by implication, the relation of master and servant to 
 create the liability resting on that foundation. Thus, the owner 
 of a vessel carrying emigrants, who has provided a competent 
 surgeon under Act of Congress of Aug. 2, 1882,^ is not liable 
 for the want of care of such surgeon in performing an operation.^ 
 A railroad company cannot be made liable for an assault upon a 
 passenger by mere evidence that the assailant carried a lettered 
 lantern and wore a badge and a lettered cap, it not appearing that 
 he was in any way connected with the operation of the train.^ 
 A lessee or licensee of the exclusive privilege of entering railroad 
 •cars or upon the right of way to sell or supply lunches is not a 
 servant or agent of the corporation, so as to render it liable for an 
 assault and battery committed by such lessee or licensee upon a 
 ■competitor who seeks lawfully, on his own premises, to obtain the 
 patronage of passengers.* 
 
 ^Sachrowitz v. Atchison, T. & S. F. B. Co. 37 Kan. 313. 
 
 ^Conger v. St. Paul, M. cfc M. B. Co. 45 Minn. 207. 
 
 ^23 U. S. Stat, at L. 188. 
 
 *0'Brien v. Cunard SS. Co. 13 L. R. A. 339, 154 Mass. 273, 10 Ry. & Corp. 
 
 L. J. 309. 
 •*Sachrowitz v. Atcldson, T. & 8. F. B. Co. 37 Kan. 212. 
 ^Flukev V. Qm-gia B. & Bkg. Co. 3 L. R. A. 843, 81 Ga. 401.
 
 CHAPTER XIX. 
 
 PROTECTION OF PASSENGER FROM EMPLOYES AND FELLOW 
 
 PASSENGERS. 
 
 § 109. Liahility of Carrier for False Arrest hy Employe. 
 
 § 110. False Arrest where EmiJloye is a Conservator of the Peace. 
 
 § 111. Carrier must Protect Passengers from Insult. 
 
 § 112. Liable only to Passenger for Act of Employe. 
 
 § 113. Termination of Relation hy Act of Passenger or Carrier. 
 
 § llJf.. If Passenger Provokes Assault, the Carrier is not Liable, 
 
 % 109. Liahility of Carrier for False Arrest hi; 
 
 Employe. 
 The common carrier of passengers is liable for the false impris- 
 onment of a passenger, made or caused to be made by its conduc- 
 tor in charge of the train, during his execution of the carrier's 
 contract to treat properly and convey safely.* A railroad com- 
 pany is liable for a false imprisonment if committed by its 
 authority.' In one case it was held that evidence that the im- 
 prisonment was by the direction of the superintendent, to whom 
 all the employes of the company referred as the superior authority, 
 was sufficient evidence to go to the jury on the question whether 
 the arrest was authorized by the company. Where train employes, 
 upon discovering a person near an obstruction on the railroad 
 track, unlawfully took him into custody, without other authority 
 than that arising from their employment, the company is not lia- 
 ble for false imprisonment." Here no relation of carrier and pas- 
 senger existing the liability of the master was controlled by the 
 ordinary rule of agency. But this distinction is often overlooked 
 and it is said that for a false arrest of a passenger by the servants 
 of a railroad company, the company is not liable unless it author- 
 ized or ratified it;* and that a street railroad company is not liable 
 
 ^GllUnohnm v. Ohio River R. Co. 14*L. R. A. 798, 35 W. Va. 588. 
 ^Qoffv. Great Northern R. Go. 3 El. & El. 673. 
 ^Porler v. Chicnrjo, R. I. & P. R. Co. 41 Iowa, 358. 
 'Roe V. Birken/cead, L. & C. J. R. Co. 7 Excb. 36. 
 
 350
 
 LIABILITY OF CABIilEB FOR FALSE ABKEST BY KMl'LOVE, oi>L 
 
 for the act of a driver, without instructions, in causing the arrest 
 of a passenf^er on a charge of passing counterfeit money.' In an 
 English case the pUiintilt" was arrested by the defendant's station 
 master for refusing to pay fare for his horse, for which he was 
 entitled to free transportation. It was lield that the defendant was 
 not liable for such unlawful arrest, it being an act which the defend- 
 ant was not authorized to do and beyond the scope of the agent's 
 authority." So it has been doclared that, as a inatter of law, it can- 
 not be said that it is within the scope of the duties of a railroad 
 conductor to procure the arrest of a passenger on a charge of 
 passing counterfeit money.^ But whether within the scope of the 
 •employment or not, it is a clear violation of the carrier's duty to- 
 protect the passenger and transport him safely. It is admitted 
 in England that the act of a ticket collector of a railroad, with 
 authority to arrest persons attempting to avoid payment of fare 
 may render the company liable for a mistake in erroneously gi\- 
 ing a passenger into custody who had already paid his fare.'' 
 
 In Massachusetts, where the rules of the carrier require pas- 
 sengers to deliver up their tickets before leaving its boat, its offi- 
 cers may lawfully detain for a reasonable time a passenger 
 attempting to leave without delivering up his ticket, for the pur- 
 pose of investigating its alleged loss, and to make provision for 
 the carrier's security against the outstanding ticket.* But in New 
 York, where plaintiff having once paid his fare, lost his ticket 
 during his journey, was detained and his arrest caused at the station 
 where he alighted by the gate keeper who was acting under instruc- 
 tions to collect tickets or fares, it was held that the company was 
 liable in an action for false imprisonment.* 
 
 The removal of a disorderly passenger by the railway officers to- 
 the baggage-car, where he rode without objection to his destina- 
 tion, will render the company liable neither for assault nor 
 imprisonment.'' But malice and want of probable cause on the- 
 
 ^Lcrfitte V. JVew Orleans Vity & L. R. Co. 12 L. R. A. 337, 43 La. Ann. 34. 
 *Poulton V. London & 8. W. R. Go. L. R. 2 Q. B. .'534. 
 . ^Galveston, H. & S. A. R. Co. v. Donahoe, 56 Tex. 163. 
 *Moore v. Metropolitan R. Co. L. R. 8 Q. B. 36. 
 ^Standish v. Narraganaett 88. Co. Ill Mass. 512, 15 Am. Rep. 66. 
 *Lyn€h v. Metropolitan Elev. R. Co. 90 N. Y. 77, 43 Am. Rep, 141. 
 'SuUivan v. Old Colony R. Co. 1 L. R. A. 513, 148 Mass. 119.
 
 352 PEOTECTION OF PASSENGERS FROM EMl'LOYES. 
 
 part of a railway conductor, in causing the arrest of a passenger 
 on a charge of fraudulently evading payment of fare, if estab- 
 lished, may be imputed to the company.' Where the ac- 
 tion was for assault and battery and false imprisonment, it 
 w'as held that the court correctly charged that, if the defend- 
 ant's employe unjustifiably assaulted the plaintiff while and be- 
 cause plaintiff attempted to pass through a gate which the 
 employe was in charge of, and as a part of the same transaction, 
 and assuming to act under the defendant's authority, called in a 
 pohce officer and had the plaintiff arrested, defendant was liable, 
 and that it was immaterial whether it authorized the arrest or 
 not.' 
 
 A street railroad company is liable for a false arrest of a passen. 
 ger, procured by the di'iver in charge of the car, and assumed by 
 its insjDector, on a charge of not paying his fare.^ For a false 
 imprisonment of a passenger on his car, procured by the driver of 
 a street car, the company is liable.* For a false imprisonment of 
 a, passenger, procured by the platform man at an elevated railroad 
 station, the company is liable.^ An elevated railroad company is 
 liable in an action for false imprisonment by reason of the deten- 
 tion by its ticket agent of an intending passenger who had pur- 
 chased a ticket and passed to the platform, on the charge of hav- 
 ing passed a counterfeit coin.* 
 
 In a very recent case the New York Court of Appeals in a 
 majority opinion held that a railroad company is not liable for the 
 act of its ticket agent in taking a bill for tickets which he believed 
 to be counterfeit and then causing the arrest of the passenger. 
 It is sought to distinguish this case from other cases, where the 
 carrier has been held liable by the same court for causing an 
 arrest, by looking to the motive that prompted the action to 
 
 'Krulevilz v. Eastern R. Co. 2 New Eng. Rep. 37, 140 Mass. 573. 
 
 ^Haniel v. Hew York &N. T. Ferry Go. 25 N. Y. S. R. 153, affirmed 125 N. 
 
 Y. 707. 
 *Wldt6 V. l^wenty third Si. R. Co. 20 N. Y. Week. Dig. 510. 
 *G'>rbe(t v. Twenty third St. R. Co. 42 Hun. 587. 
 ''Shea V. Manhattan R Co. 15 Daly, 528. This decision was an affirmance 
 
 by the general term of the New York common pleas of the decision of 
 
 the general term of the city court of New York in the same case, 27 N. 
 
 Y, fc>. R. 33. 
 *ralmeri v. Manhattan Elev. B. Co. (N, Y.) 16 L. R. A. 586.
 
 LIABILITY OF CAKKIKK FOR FALSE AltKKST BY KMI'LoVK. 353 
 
 determine wliotlier tlie ticket ag;ent was aetiiioj in tlie line of his 
 employment. It is said that the proof showed that the ag-ent 
 directed thearrest, and that the plaintitV liad committed no offense 
 that justified it, still the question j-emain^ whether the aijent was 
 acting in the line of liis duty, so as to make the defendant respon- 
 sible for his acts. It is quite clear from the evidence that the 
 agent was first put upon his guard, and in fact, set in motion not 
 hy any direction from the defendant, lait hy the ])olice. When 
 he took the bill he knew, or at least he believed, it to be a coun- 
 terfeit; but, notwithstanding this, lie gave the plaintiff defendant's 
 property for it, whereas it was his duty, considering liim merely 
 as the agent of the defendant, to refuse it. He did not take the 
 bill in the course of his business as agent, but for the purpose of 
 entrapping persons that he believed to l)e engaged in the commis- 
 sion of crimes. This may have been laudable enough on his part 
 as a citizen or as a person aiding the police, but. in the opinion of 
 the court, he was not acting in the line of his duty as defendant's 
 agent. If he had been cheated or imposed upon by the plaintiff, 
 or if he honestly believed he had l)een, and then attempted to 
 recove*" what he had or supposed he had lost by the arrest of the 
 plaintiff, it might then be said that he was engaged in the protec- 
 tion of the jjroperty and interests of the defendant, and therefore 
 acting within the line of his duty. But here a ticket agent of a 
 railroad deliberately takes from a person applying to purchase a 
 ticket what he believes to be a counterfeit five dollar bill, — not, 
 of course, in good faith, or in the regular and ordinary course of 
 his business, but for the purpose of aiding the police in the detec- 
 tion of criminals, — and then immediately directs the arrest of the 
 person from whom he took the bill. Such an act on his part is 
 not binding on his principal. If he was in fact acting within the 
 scope and in the line of his duty, he would have refused to receive 
 what he believed to be counterfeit money for the property of his 
 pi-incipal, and would have refused to part with such propert}', 
 except upon receipt of what at least he believed to be good money. 
 The defendant's agent, as a citizen, might with perfect projjriety 
 render to the police such services as he could in procuring the 
 detection and arrest of persons engaged in passing counterfeit 
 money, but it does not follow that all his acts in that respect are 
 23
 
 354 PROTECTION OF FASSENGEKS FROM EMPLOYES. 
 
 binding on the defendant. The charge, therefore, that the de- 
 fendant procured the plaintiff to be arrested without cause was 
 not, it is adjudged, made out, as the act of the ticket agent in 
 this respect cannot be attributed to them. It is also denied that 
 the duty owing to the passenger was violated by the ticket agent^ 
 in not protecting him from injury and annoyance, while the car- 
 rier was engaged in the performance of a duty which it owes to 
 him. It is said this protection was not one of the duties imposed 
 upon the ticket agent, as it is upon a conductor.' 
 
 Two of the justices dissented from this result, upon the ground 
 that the relation of carrier and passenger having been created by 
 the purchase of the tickets, the plaintiff was just as much entitled 
 to protection against the wrongful acts of the defendant's servants 
 as if at the time of the assault upon him and his arrest he had 
 been in one of its cars. He was in a place where he had a right 
 to be, and where, under the rules of law stated in the cases just 
 cited, he was entitled to. protection against injury from the negli- 
 gent or willful acts of its servants. It is immaterial what the 
 ticket agent's motive may have been. He may have been prompted 
 by the desire to do a public service by the arrest of criminals, or 
 by a malicious motive, simply to do the plaintiff an injury, and 
 still, under the authorities cited, the defendant was liable for his 
 acts. Suppose, instead of directing the police officer to arrest the 
 plaintiff, he himself had seized and confined him in the depot, 
 would anyone then contend that the defendant would not be lia- 
 ble ? And can it be said that that case would have been any dif- 
 ferent in principle from this? Suppose, instead of directing the 
 police officer to arrest him, he himself had made the arrest, and 
 dragged the plaintiff through the streets to the police station, can 
 it be doubted that the defendant would have been liable ? The law 
 makes it liable in such cases simply because of the unlawful inter- 
 ference with the person of the plaintiff", a passenger, by one of its 
 employes; and the motive of the employe is entirely immaterial 
 upon the question of its liability. The motive may operate upon 
 the question of damages, but cannot wholly shield the defendant 
 against liability. The agent not only caused the arrest, but, in 
 violation of the duty which the defendant owed the plaintiff, 
 
 'Mulligan v. New York & R B. R. Co. 14 L. R. A. 791, 139 N. Y. 506.
 
 FALSE AHKKST WHKKE KMl'LOYE IS COl^SEBVATOR OF I'EACE. 355 
 
 growinj2^ out of the sale of the tickets, and the contract thus made 
 to carry liim to his destination, he broke the contract by render- 
 ing it impossible that the plaintift' could be carried. Instead of 
 going upon the train, as he had the right to do under his contract, 
 by the act of its agent he was taken to a police station, and kept 
 iinder arrest for an hour or more. Can a ticket agent sell tickets 
 to a passenger and then arrest him, or cause him to be arrested, 
 so that he cannot take passage upon the train for which he 
 has j)urchased a ticket, and the railroad company escape all 
 responsibiUty for his acts ? If the plaintiif had been a mere 
 lounger in or about the defendant's depot, having no relations 
 with it, — not a passenger, — different rules of law would apply, 
 and it may well be that, upon the facts as they appear, it M'ould 
 not have been liable for the assault upon him and his arrest. Its 
 liability to him grows out of the fact that he was a passenger, 
 entitled to its protection. Xo question was made upon the trial 
 as to the extent of the ticket agent's authority. It was there 
 assumed that lie was the agent luiving tlie charge of the depot. 
 
 ^110. False Arrest where Einploije is Conserva- 
 tor of the Peace. 
 
 AYe have seen that it is the duty of the common carrier of pas- 
 sengers to treat his passengers properly and respectfully, and to 
 carry them safely, and, though not an insurer, yet the law, based 
 upon principles of public policy, is strict and exacting in requiring 
 their performance; and surely in this day, Avhen all the world is 
 carried to and fro daily by instrumentalities vast in power and 
 force, and, without constant vigilance and great care and skill, 
 almost as dangerous as forceful, owned by mere corporate entities, 
 public policy is not likely to exact any less stringent rule. The 
 carrier is not only bound to safely carry and properly treat the 
 passenger, but, as far as may be, to keep an orderly and M'ell 
 regulated house, for such in fact it is in these days, protecting the 
 passengers from the assaults of fellow passengers or trespassers 
 during the subsistence of the contract of transportation.' 
 
 Willingham v. Ohio River R. Co. 14 L. R. A. 798. 35 W. Va. 588; Winnegar 
 V. Central Pass. Co. 85 Ky. 547. See also following section, Pittsburgh, 
 Ft. W. & G. R. Co. V. Hinds, 53 Pa. 513. See also opinion of Shaw, Ch. 
 J., in Com. v. Power, 7 Met. 596-601, 41 Am. Dec. 465, citing Markham 
 V. Brown, 8 N. H. 523, 31 Am. Dec. 209.
 
 356 PK0TK(JTIO> OF PASSENGERS FROM EMPLOYEiS. 
 
 And to enable tlie canier to discharge tliese duties the more 
 efficiently through its conductor, put as a living intelligence, 
 acting as its rej)resentativ"e for that purpose, in many states a 
 statute has enacted, that the conductor of every train of rail- 
 road cars shall have all the powers of a conservator of the 
 peace while in charge of such train, — tlius giving him as con- 
 ductor the shield and protection, as well as the authority and 
 power of the state, in keeping and enforcing law and order, and 
 protecting persons and property. Tliis is a great thing to him. 
 to his company, to his passengers, and the public at large. To 
 him, not only because he can, in the discharge of his various and 
 often perplexing duties, now speak and act with more confidence 
 with the state as his aid, but, as such conservator of the peace, 
 may properly be treated with more indulgence, because he is spe- 
 cially charged with a duty in the enforcement of the laws. If by 
 liim an arrest is made with reasonaV)ly probable cause for belief, 
 lie will be excused, even though it appear afterwards that in fact 
 no offense had been committed.' To the corporate master and 
 owner, not only for these reasons, but for the superadded one that 
 ts duties to its passengers, its servants, and the public can now be 
 more efficiently perforjned thi'ough its living representative, put 
 in charge for the purpose, as well as making more safe and secure 
 its widely extended property. To the passengers, because their 
 safety and Avell-being can be better guarded. And to the state, 
 as interested in tlie preservation of law and order, as well as in all 
 these things. But there is nothing to indicate that it was the 
 intent of the law making power to slacken the vigilance, or dimin- 
 ish the responsibility of the common carrier, or render it less lia- 
 ble for failure to discharge its duties than before.' 
 
 Under the Mississippi Act of February 22, 1890, empowering 
 station agents to arrest and deliver to the sheriff any person guilty 
 of disorderly conduct about railroad stations, such station agents, 
 it is declared, are not officers of the state so as to relieve their 
 employers from liability for false an-ests made by them.' And 
 the same rule prevails generally. Thus it is said,^a statute giving 
 
 ^Fitzpatrick v. New York & M. B. R. Co. 15 N. T. Week. Dig. 506; Newman 
 
 V. New York. L. E. & W. R. Co. 54 Hun, 335. See Cooley, Torts, 202. 
 "'OUUngham v. Ohio Rider R. Co. 14 L. R. A. 798, 35 W. Va. 588. 
 *King v. llliaoiH Cent. R. Co. (Miss.) Ocl. Terra, 1891.
 
 FALSE AKREST WUKKK EMl'LOVE IS CONSEKV ATOli OF PEACE. 357 
 
 tlie coDfluctor of a railroad train all the powers of a conservator 
 of the peace while in charge of the train does not relieve the car- 
 rier fr(»ni liability for false imprisonment of a passejiger made or 
 caused to be made by him.' Under chap. 180, New York Laws 
 of 1880, the driver of a street car has authority to cause the arrest 
 of a disorderly passenger, and for an abuse of that authority the 
 company is lial)le.' 
 
 A depot ('()in})any is held liable for an impi-oper arrest made by 
 one in its employ, performing private police duty." In a recent 
 action against a raili'oad company for a false arrest of a passenger, 
 for a supposed assault with a knife on a conductor, Mdio was also 
 a conservator of the peace, it l>ecame evident that the conductor 
 had caused the arrest of the wrong person, and it was attempted 
 to defeat the action on the claim that the conductor was not for 
 the moment in charge of the train, but was acting as an officer of the 
 law. Defendant asked the conductor as its witness, '*Was the act 
 of y(»ur pointing out the man as the one M'ho had committed the 
 assault upon you a personal oiieT' He answered, "Jt was person- 
 ally done." He further said: "Plaintiff had done nothing that 
 he knew of in violation of the rules of tlie defendant conijiany. 
 had done nothing against its property, aiul that he himself \vas off 
 duty as conductor when the arj-est was made; he thought, and 
 that he honestly believed that plaintitf was the man Avho cut at 
 him with the knife." But the court found that the conductor was 
 in fact in charge of the train, and that he could only be such con- 
 servator, as a superadded function to that of "conductor of a railroad 
 tram, while in charge of such train," in the language of the stat- 
 ute; that he caused to be arrested and handcuffed, and led through 
 the streets of Huntington, in the open light of day, without any 
 reasonable or probable cause, a sober and orderly and well behaved 
 young man, on the train as a passenger, who, as he now says, as 
 another ground of defense for his i>rincipal, had in his own lan- 
 guage done nothing in violation of the rules of the Ohio Railroad 
 Company; done nothing against the property of the cojnpany, but 
 had bought his ticket, was quietly seated on tlie train waiting for 
 
 'Gillingham v. Ohio River R. Co. 14 L. R. A. 798, 35 W. Va. 588. 
 ^RmPti V. Christopher it- Tenth St. R. Co. 34 Hun, 471. 
 * Union Depot d- R. Co. v. Smith, 1« Colo. 361.
 
 358 PROIKCTIOX OF PASSENGKRS FROM EMPLOYES. 
 
 it to cany him to Ben Lomond; and it was the duty of the defend- 
 ant to cause that to be done safely and properly, as it had con- 
 tracted to do, and it cannot escape liability by layiniJj the fault on 
 its servant. Ina Wisconsin case,' a suit for an assault commit- 
 ted by the conductor on a lady passenger, the same defense was 
 made as is set up here, — that it was the unauthorized and purely 
 personal act of the conductor, and not within the scope of his 
 employment. liyan, C/i. «/., in delivering the opinion, among 
 other things, said: "And is the appellant here to cinitend that it 
 has no responsibility for the flagrant violation of the contract 
 M'hich the respondent paid it to make and to keep by its sole rep- 
 resentative appointed to keep it on its l)elialf ? Like the English 
 crown, it lays its sins upon its servants and claims that it can do 
 no wrong. Wc Crinnot bend down the law to such a convenience. 
 The api^ellant tortionsly broke this contract as surely as it made 
 it, committed this tort as surely as it made the contract." The 
 willfulness of the servant's act is no excuse so long as it amounts 
 to a breach of the contract;' nor the fact that the act is wholly- 
 disconnected from his duties, and a purely wanton assault. 
 
 It has been held "that tlie proper rule Avas that, where the mis- 
 conduct of the agent caused a breach of the obligation or contract 
 of the principal, the principal would be liable, M'hether such con- 
 duct bt; willful or malicious or merely negligent.'" There are 
 manv other cases to the same eifect,* which need not be again cited, 
 for here the wrong coni[)lained of was clearly in the line of serv- 
 ice. It was done by tlie servant in those things that related to 
 his dutv under the master, and was not the "servant's independ- 
 ent tort, committed outside the sphere of his em]>loyment." Per- 
 sonal liberty is a natni'al riglit. And, prima facie, any restraint 
 put by fear or force upon tlie actions of another is unlawful, and 
 constitutes false imprisonment, unless a showing of justification 
 makes it a true or legal iiii])fis(»nnient.^ The conductor says he 
 "w^as so much excited that lie could not use his ordinary prudence 
 and carefidness, and thus made the mistake.'' That he did it by 
 
 Uh-dkcf V. Chicmio & N. W. It. (Jo. 36 Wis. ()57. 
 « Weed V. Panama R. Go. 17 N. Y. ;}62. 
 ■■^Milicaiik(e& M. R. Co. v. Finney, 10 Wis. 389. 
 *See S 106 anii'. 
 »Cooley, Torts, 16(r'--.
 
 FALSE ARREST WHERE EMPLOYE IS CONSERVATOR OF PEACE, 359 
 
 mistake, tliere can be no question. What motive, the court inquires, 
 could he have had to treat his passenger in that way ? None 
 wliatever, so far as this record discloses. But if he had listened 
 at the time to those who knew, or had used ordinary care to 
 examine for himself, or had taken the hint given him by the offi- 
 cer that he was acting rashly, or making a grave mistake, none 
 would have been made; he would soon have come to his senses. 
 But from some cause he failed to do this, and his mistake, it is 
 said, was not innocent in the eyes of the law, and the arrest was 
 made without any reasonable or probable cause, of a passenger, 
 whom it was the company's contract duty to carry safely to the 
 destination mentioned in his ticket, for which very purpose, among 
 others, he was put in charge of the train, so that the act, although 
 in violation of his duty to the carrier as well as to the passenger, 
 was clearly within the sco2)e of his employment, and therefore the 
 master is liable.' 
 
 A principal who selects an agent to detect and arrest offenders 
 is responsible for the acts of the agent committed within the gen- 
 eral scope of his employment, although the agent may have vio- 
 lated instructions and arrested an innocent person.* AYhere a 
 railway conductor, instead of arresting a j)assenger for refusing to 
 pay his fare, as he might do in his capacity as a police officer 
 under the statute, directed his arrest by officers at the end of the 
 passenger's journey, the company is liable for the arrest, if unlaw- 
 ful.' A railroad company is liable for malicious prosecution 
 instituted by a detective policeman in its employ." 
 
 "Where the plaintiff was constantly guarded by detectives 
 employed by the defendant and subjected to such examination and 
 surveillance as clearly to imply that he was regarded as a criminal, 
 and that force would be used to detain him if he attemjited to 
 assert his liberty, the defendant is liable for false imprison nient." 
 But reasonable cause for arrest wuU excuse. Wliere the passenger 
 was wrongfully arrested without express authority of the car- 
 rier on the latter s premises for a supposed theft connuitted 
 
 ^GUlingham v. Ohio River B. Go. 14 L. 11. A. 798, 35 W. Va. 588. 
 
 * Pennsylvania Co. v. Weddle, 100 Ind. 138; Harris v. Louincille, N. 0. & T. 
 
 B. Co. 35 Fed. Rep. 116. 
 ^Krulevitz v. Eastern B. Co. 3 New Eng. Rep. 310, 143 .Mass. 228. 
 *Edwards v. Midland B. Co. L. R. G Q. B. Div. 287. 
 ^FotheringlMm v. Adam^^ E.vp. Go. 30 Fed. R"p. 2")2.
 
 360 PKOTEOTIOX OF i'ASlsK.NGKKtJ FKOM KM1'L<JYES. 
 
 elsewhere, h\ a public prdieernan not employed bv the carrier, 
 although having' his headquarters and a lockup on the carrier's 
 premises furnished by it, it was held that the carrier was not 
 liable.' A railroad company is not liable for the false arrest 
 by its detective, of an intending passenger in its station, where 
 the appearance and behavior of the latter justified the belief that 
 he had committed or was about to conuuit a felony. Nor is it 
 liable for the detention of the person by the magistrate to whom 
 the detective delivered him, uidess such detention was requested 
 by the detective." 
 
 A police oflicer assisting in ejecting a passenger at the request 
 of an agent of the carrier, must not use more violence^ than nec- 
 essary for the ])urpose of removal; and if the passenger is a disor- 
 derly person, the policeman may arrest him by virtue of his office: 
 and for violence incident to such arrest the carrier or its agentf- 
 are not liable.^ 
 
 § 111. Carj-ler imtst Protect Passengers from 
 
 In suit. 
 
 The law implies also a contract upon the part of the carrier of 
 passengers for the protection of the party carried from the insults 
 and wanton interference of strangers and fellow ])assengers, and 
 for any violation of the implied contract by force or negligence, 
 the carrier is lialde in an action of contract or toi't," The duty is 
 not confined to exercising control over its employes, but as passen- 
 gers are bound to conform to all reasonable regulations of the 
 carrier, it must require and enforce conformity by all whom it 
 accepts as passengers, or ])ermits to have access to its passengers, 
 to such restrictions as Avill secure the safety and security from 
 annoyance of those it has engaged to transport safely." 
 
 A failure l)y a carrier of passengers to use the utmost care, not 
 only safely to transport its passengers, but to protect them from vio- 
 
 ^Fitzpatrick v. New York & M. B. It. Co. 15 N. Y. Week. Dig 506. 
 >New>ruiii v. New York. L. E. tfe W. R. Co. 54 Him, :i:35. 
 ^Jardirve v. Vornell, 12 Cent. R;p. «0i, 50 N. J. L. 485. 
 ■• Winnegar v. Central Pans. Co. 85 Ky. 547. 
 
 ''iyinlheru KunnaH R. Co. v. Rire, ;38 Kan. 3!i8; Dwinnelle v. New York Cent. 
 d- II. J{. li. Co. 8 L. R. A. 224, 120 N. Y. 117.
 
 CAKKIKK MIST l'K( H KCT 1'A^^E^C^ KK< ii;<».M l.\t-LI>T. o61 
 
 leiice and insults from those on the train, will render it liable for any 
 damages naturally and directly resulting therefrom.' It is the 
 duty of a carrier to protect a passenger against any injury from 
 the negligence or willful miscoiuluct of its servants and of its fel- 
 low passengers and strangers, so far as practical )le.'" ^ 
 
 It is ruled in a late English case that a railroad company 
 is not liable to a passenger for injuries fi-om the assaults of 
 other passengers Avhose enmity he has incuri'ed, which enmity is 
 unknown to it at the time he takes his passage, although it 
 permits such other passengers to enter and overcrowd the same 
 carriage after such enmity and danger of assault has become 
 known to its servants, and does Dot attempt to give him a seat 
 in another carriage, or attempt to protect him after complaints 
 of such assaults.^ 
 
 In a Connecticut ease the })laiiititf was injured by the discharge 
 of a gun dropped by soldiers engaged in a scutfle. The court held 
 that the carrier of passengers is bound to exercise the utmost 
 vigilance and care regarding those they transport from violence 
 from whatever source arising, and the plaintiff recovered ten 
 thousand dollars damages in the action. It Avas also said that "an 
 act which would amount to a breach of the carrier's contract, if 
 negligently done, would be equally a breach if done Mdllfully and 
 maliciously. It is immaterial whether the breach of the contract 
 results from the negligence or willfulness of defendant's agent."^ 
 
 Nor must the carrier needlessly expose liis passengers to assault 
 from outside parties, Avhere he has reasonable notice of danger. 
 A carrier will be liable f(»r- injury to passengers, where a railroad 
 train is stopped in the midst of a wild, riotous assembly, to take 
 on board persons whom tlie mob was attempting to injure, and 
 who were captured at the next railroad crossing by the mob, which 
 broke into the ear and injured passengers therein during the con- 
 flict.^ 
 
 \Spohn V. Missouri Poc. R. Co. 101 Mo. 417. 
 
 '^Oillingham v. Ohio nicer R. {Jo. 14 L. R. A. 798, 35 W. Va. 588. 
 
 'Paunderv. Northeastern R. Co. [1892] 1 Q. B. 385, 11 liy. & Corp, L. J. 
 
 278. 
 * Flint V. Norwich & N. T. Tramp. Co. 34 Conn. 554. 
 ■Chicago & A. R. Co. v. PUlsbury, 123 111. 9. But see Weeks v. New York, 
 
 N. H. & H. R. Co. 9 Hun, 669.
 
 362 PROTE0TIO2f OF PASSENGERS FROM E>rPL0YE5). 
 
 %112. Liahle only to Passengers for Act of Em- 
 ploye. 
 
 Wliile the carrier of passengers iimst protect them from the 
 abuse of the carriei''s employes,* yet to render the carrier liable 
 for the violence of an employe the latter must be at the time act- 
 ing in the employment of the railroad," and it should also appear 
 from the proof that the person injured was a passenger at the time 
 and that the employe was executing the contract for his transpor- 
 tation. 
 
 While the conti-act of carriage continues, the passenger must to 
 some extent be subject to the earner's control. The contract is 
 to carry him as long as he stays in the car to the end of the 
 route — ^not to let him ride and walk alternately as he may choose. 
 If the passenger leaves the car the carrier is not liable for his con- 
 duct on the street nor for the conduct of a stranger to him on the 
 street, nor, unless it be a continuing oifense, for an assault upon 
 him by its driver. If the passenger leaves the car before reach- 
 ing its destination without announcing his intention of returning 
 and continuing his passage, his relation to the carrier as passenger 
 is terminated and the assault by an employe of the company who 
 has no knowledge of his intended return will not render the car- 
 rier liable. 
 
 A carrier is not responsible for a personal assault by its servant 
 upon a i^assenger after the latter's removal from the carriage has 
 been effected.' But it was held that, if a passenger on a street 
 railway is ejected from the car and assaulted by the driver, when 
 the fare has been put in the box, the company is liable, and also 
 for causing the arrest of the passenger.' And a street railway com- 
 pany is liable to a passenger for a battery by a conductor commit- 
 ted first on the car and repeated shortly afterwards at the office of 
 the superintendent, whither the passenger had gone to make com- 
 plaint to the superintendent.'" 
 
 A passenger on a street car, having been insulted by the driver, 
 
 'iV€w Jerney S. B. (Jo. v. BroclM, 121 U. S. 645, 30 L. ed. 1050; Craker v. 
 
 Chirmjo d- N. W. II. V». 'MS Wis 659-661 ; Baltimore & 0. R. Go. v. Blocher, 
 
 27 Mil. 277. tSee J-i^ 105-107, ante. 
 Wiite, % 108. 
 
 ■EiidH V. Metropolitan R. Co. 4:^ Mo. App. 5B6. 
 ■* While V. Twenty third St. R. Co. 20 N. Y. Week. Dig. 510. 
 ^Savannah St. d- /.'. /^ C„. v. Bri/an, S6 (in. 312.
 
 LIABLE ONLY TO PASSENGER FOR ACT OF EMPLOYE. 363 
 
 replied that he should report him, and left the car, to proceed a 
 short distance forward to the company's offices and stahles, where 
 the car would stop to change horses, but without telling the driver 
 of his intention to resume his journey on the car. The driver 
 before reaching the stables, left his car and assaulted the plaintiff. 
 It was ruled, that the plaintiff had ceased to occupy the relation of a 
 passenger, and that the company was not liable.' But a street rail- 
 way company is liable for an assault by its driver upon a passen- 
 ger after the latter had left the car, on account of insults by the 
 driver, where the assault was a direct continuance of the abuse 
 begun on the car.' "Where the conductor of a train called a pas- 
 senger outside the car at an intermediate station and assaulted 
 him, the railroad company was held liable.' A railroad company 
 is liable for assaults by its employes upon persons upon its prem- 
 ises for the purpose of getting baggage checked, as well as upon 
 passengers upon its cars,* It is no defense to a suit against a car- 
 rier to recover damages for an assault committed by its servants 
 upon a passenger, that at the time the assault was committed the 
 servant had finished the temporary and particular service which 
 he had undertaken to render to the passenger, if the contract of 
 carriage was not yet performed and the duty still rested on the 
 carrier to protect the passenger from the violence of its servants.* 
 It has been steadily held to be the duty of a carrier of passen- 
 gers to protect them, in so far as this can be done by the exercise 
 of a high degree of care, from the violence and insults of other 
 passengers and strangers, and to protect them from the violence 
 and insults of the carrier's own servants; and the inquiry' whether 
 this duty arises from contract or from the nature of the employ- 
 ment becomes unimportant, except that the duty goes with the 
 carrier's contract, however made, whereby the relation of carrier 
 and passenger is established." Where the ticket agent of a 
 
 ^Central R. Co. v. Peacock, 69 Md. 257. 
 
 -Wise V. Covin/jton & C. St. R. Co. (Ky.) 13 Ky. L. Rep. 110. 
 
 ^Peeples v. Brunsioick & A. R. Co. 60 Ga. 281. 
 
 ^Oasway v. Atlanta &W. P. R. Co. 58 Ga. 216. 
 
 "DiBinelle v. New York Cent. & H. R. R. Co. 8 L. R. A. 234, 120 N. Y. 117. 
 
 ^Ramsden v. Boston & A. B. Co. 104 Mass. 120; Bryant v. Rich, 106 Mass. 
 
 180; Stewart v. Brookh/n tf; C. R. Co. 90 N. Y. 588; Chicago & E. R. Co. 
 
 V. Flexman, 103 111. 546: Wabaah, St. L. & P. R. Co. v. Rector, 104 III. 
 
 296; New Jersey S. B. Co. v. Brockett, 121 U. S. 637, 30 L. ed. 1049; 
 
 R. R. Springer Transp. Co. v. Snnih, 16 Lea, 498.
 
 364: PROTKCTIOX OF PASSENGERS FROM KMI'LOYKS. 
 
 carrier failed and refused to return the proper change to the 
 purchaser of a ticket, and when the latter importuned him for 
 the same came out and assaulted him, the carrier is liable,' 
 For an assanlt committed by its servants at a station upon an 
 intending })assenger, arising out of the production of his 
 ticket, after Mhich it was the duty of the servant to look, the 
 company is liable.'' A railroad c(jmpany is liable for the act 
 of its porter in pulling a passenger out of a carriage under the 
 erroneous impi'ession that he was emltarking on the wrong train, 
 it being ])Hrt of the portei-'s duty to see that the passengers take 
 the right trains.'' Where a brakeman stationed to prevent pas- 
 sengers from entering the cars without tickets, seized, struck and 
 thrust from the car one attempting to enter without a ticket, the 
 brakeman and the company are jointh' or severally liable for the 
 assault.* 
 
 A brakeman stationed at the door of a car to pi-event gentlemen 
 unaccompanied by ladies to enter, willfully and criminally assault- 
 ed a gentleman who attempted to enter alone. It was held that the 
 company was liable. ° A carrier may be liable for a willful assault 
 by its servant upon a person, who having been refused a ticket 
 for alleged intoxication is leaving the station, it being a question 
 for the jury whether the servant was acting within the scope of 
 his employment.* A railroad company is liable to a person 
 assaulted by its enijiloyes -while sitting in a passenger car waiting 
 for the train to start, although he has purchased no ticket.^ By 
 the purchase of tickets the relation of carrier and passenger 
 is created, the agreement implied being that it Mill, upon its lirst 
 train stopping at that station, cany him to his destination; and 
 while he is there waiting for it he is entitled to a safe place to 
 stand or sit, and it is uiider obligation to him that he should not 
 
 ^Mck V. Chiaif/o d- N. W. 11. Co. (58 Wis. 409. 
 
 ■f^nith V. South KaHtern li. Co. 89 L. J. C. P. 349. 
 
 ■Bayley v. Manchester S. tt L. li. Co. L. K. 7 C. P. 415, attirmed L. R. 8 C. 
 
 P. 148. 
 *l'riext V. llmlxon Rm-.r R. Co. 40 How. Pi'. 450. 
 ■VcKinky v. Chicago d- S. W. R. Co. 44 Iowa, 314. 
 '■McKernon v. .Manhattdii R. Co. 33 .Jones it S. 354. 
 ■lllinoiH Cent. R. Co. v. Sheehan, 29 111. App. 90: Terre Haute tf- /. R Co. v. 
 
 Jackson, 81 Ind. 19; Stewart v. Brooklyn rf; (/. H. Co. 90 N. Y. 588; Pm- 
 
 ter V. Chicayo R. 1. J; P. It. Co. 41 Iowa, 358.
 
 TEKMINATION UK KKI.ATIUiN n\ ACT OF PASSKNGEK OR CAKKIKK. ;>05 
 
 be injured bj tlie careless or willful misconduct of any of its 
 employes or agents.' In that case, after the plaintiff had pui-- 
 chased his ticket for a passage on the defendant's road, and while 
 he was standing on the platform at the depot, a postal clerk threw 
 a mail bag froiu the train, which struck and injured him; and 
 Danforth, -/., writing the opinion, said: ""The plaintiff was 
 injured befoi-e the actual commencement of his journey, l)ut he 
 was lawfully on the platform, because he was a passenger." And 
 it was held that it is the duty of a railroad corporation to provide 
 for a passenger a safe passage to the train he desires to take, and 
 to take reasonable care that he shall not, while on its premises, be 
 exposed to any unnecessary danger, or to one of which it is aware; 
 that it is bound to exercise the utmost vigilance, not only in guard- 
 ing its passengers against careless interference by others, but even 
 against violence; and if, in consequence of neglecting this duty, a 
 passenger receives injur}', which, in view of all the circumstances, 
 might have been reasonably anticipated, it is liable. 
 
 i 113. Termination of Relation hy Act of Pas- 
 senger or Carrier. 
 
 Where a passenger voluntarih^ left a street car — before it reached 
 the place where it regularly stopped to change horses, — as the pas- 
 senger claimed, for a temporary purpose, and Avith the intention 
 of re-entering the car, and while he was on the street the driver 
 left the car and assaulted him, the master is not liable therefor; 
 the relation of passenger having ceased.'' If the passenger had 
 remained in the car until the stables were reached and the horses 
 were being changed, the conductor would have miderstood his 
 journey was not comj)leted and while the horses were being 
 changed he would still have been regarded as a passenger and 
 would have been entitled to protection as against the employe, if 
 he had gone into the office to execute his declared purpose to make 
 a complaint against the conductor.^ 
 
 ^Carpenter v. Boston & A. R. Co. 97 N. Y. 494, 49 Am. Rep. 540. 
 ^Central R. Co. v. Peacock, 13 Cent. Rep. 867, 69 Md. 257. See Crocker v. 
 
 New London, W. & P. R. Co. 24 Conn. 249; Pittsburg, A. & M. Pass. R. 
 
 Co. V. Donahue, 70 Pa. 119; Evansville & C. R. Co. v. Baum, 26 Ind. 70; 
 
 Wright V. Wilcox, 19 Wend. 347. 
 ^Keokuk N. L. Packet Co. v. True. 88 III. 608; Jeffersonmlle, M. & I. R. Co. 
 ^ V. Riley, 39 Ind. 568 ; -Sifaie v. Grand Trunk R. Co. 58 Me. 176.
 
 366 PBOTECTION OF PASSENGERS FK( tM EMPLOYES. 
 
 Wliere a passenger is traveling on a pass witli the conditions of 
 which he refuses to comply he inay be ejected from the train if 
 he refuses to pay his fare.' So in case he oifers a worthless paper 
 claiming it to be a pass.* So a person riding on a pass not trans- 
 ferable and issued to another.' But a passenger who presents to 
 the conductor a ''stock pass'' from the railroad company, which 
 entitles liim to return on its road without payment of fare, can 
 recover dainages sustained by him when so returning, caused by 
 his expulsion from the cars by the conductor for nonpayment of the 
 fare." A conductor of a raih'oad train, who has invited a passenger 
 to ride to a station beyond that mentioned in his ticket, with full 
 knowledge of the facts upon which the latter claimed the right to 
 be carried to such farther station, has no right to eject him for 
 refusal to pay the fare thereto from the station named in the 
 ticket.* 
 
 As to the conclusiveness of the contents of the ticket given to 
 the passenger in determining the contract of carrier and passen- 
 ger, where a wrong ticket has been given through tlie inadvert- 
 ence of the carrier, something has already been said.^ But since 
 the preparation and printing of that matter, the question has been 
 further discussed and decided in, the Supreme Court of the United 
 States.' In this case, in error to the circuit court for the dis- 
 trict of Massachusetts it was urged that the court below erred (1) 
 in allowing the plaintiff to testify as to what was said by the agent 
 in Boston when he bought his ticket; (2) in its instructions to the 
 jury upon this point, and with respect to the rules and regular 
 tions of the road relative to stop-over checks; (3) in not giving 
 certain instructions asked for by the defendant, upon the question 
 of. stop-over checks; and (4) in not telling the jury, in effect, that 
 it was their duty, under all the evidence in the case, to bring in a 
 verdict for the defendant. 
 
 ^Elliott V. Western & A. R. Go. 58 Ga. 454. 
 
 ^Chicago, R. I. &P. R. Co. v. Herring, 57 111. 59. 
 
 » Toledo, W. & W. R. Go. v. Beggs, 85 111. 80. 
 
 *JIonMon & T. G. R. Go. v. Ford, 53 Tex. 3(;4; Graltam v. Pacific R. Co. 6& 
 
 Mo. 536. 'SiQQ note io Pearson \. Duane, 71 U. 8. 4 Wall. 605, 18 L. ed. 
 
 447. 
 ''Uardy v. Neio Tork Gent. <£• H. R. R. Co. 84 N. Y. S. R. 902. 
 • See ante, §t^ 60, 61. 
 "•New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 36 L. ed. 71.
 
 TEKMINATION OF RKLATION BY ACT OF PASSENGER OK CAKIilEK. 367 
 
 Tlie grounds upon wliicli it is insisted that tlie evidence referred 
 to was inadmissible are, tliat the ticket itself and the rules and 
 regulations of the road, with respect to stop-over checks, constitute 
 the contract between the passenger and the road and the only 
 evidence of such contract, and that no representations made by a 
 ticket seller could be received to vary or change the terms of such 
 contract. This contention, the court rules, cannot be sustained, and 
 is opposed to the authorities upon the subject. AVhile, it is said^ 
 it may be admitted as a general rule, that the contract between 
 the passenger and the railroad company is made up of the ticket 
 which he purchases, and the rules and regulations of the road, yet 
 it does not follow that parol evidence of what was said between 
 the passenger and the ticket seller from whom he purchased his 
 ticket, at the time of such purchase, is inadmissible, as going to 
 make up the contract of carriage and forming a part of it. In 
 the first place, passengers on railroad trains are not presumed to 
 know the rules and regulations which are made for the guidance 
 of the conductors and other employes of railroad companies, as to 
 the internal affairs of the company, nor are they required to know 
 them. In this case there is no evidence, the court finds, that 
 notice or knowledge of the existence of the rules of the defendant 
 company, or what they were, with respect to stop-over privileges, 
 was brought home to the plaintiff at the time he purchased his 
 ticket or at any time thereafter. There was nothing on the face 
 of the ticket to show that a stop-over check was required of the 
 passenger as a condition precedent to his resuming his journey 
 from Olean to Salamanca, after stopping off at the former place. 
 It is shown by the evidence, that Olean was a station at which 
 stop-over privileges were allowed. Under such circumstances, it 
 was entirely proper for the passenger to make inquiries of the 
 ticket agent and to rely upon what the latter told him with respect 
 to his stopping over at Olean.' 
 
 Upon this question, and also with respect to the action of the 
 first conductor and the regulations of the road relative to stop- 
 
 ^Hufford V. Grand Rapids & L R. Co. 64 Mich. 631; see also Palmer v. Char- 
 lotte, C. & A. R. Co. 3 S. C. 580; Burnham v. Grand Trunk R. Co. 63 Me. 
 299; Murdoch v. Boston & A. R. Co. 137 Mass. 293; Arnold v. Pennsyl- 
 vania R. Co. 115 Pa. 135, 6 Cent. Rep. 630.
 
 3t)b I'KOTKC'l lUA' OF PASSEA'GEKS FKOM EMPLOYES. 
 
 over privileges, the United States circuit court gave to the jury 
 the fonowiug instructions : "That if the plaintiff's testimony was 
 true in regard to what took place between himself and the ticket 
 agent in Boston, and afterwards with the first conductor on the 
 defendant's train, and if the plaintiff, when he bought his ticket 
 in Boston, informed the ticket agent of his wish to stop off at the 
 Olean station, and w^as then told by the ticket agent that he 
 would have to speak to the conductor about that, and between 
 Binghaniton and Olean the plaintiff" informed the conductor that 
 he wished to stop over at Olean and the conductor instead of 
 giving the plaintiff a stop-over ticket, punched the plaintiff's 
 ticket and told him that was sufficient to give him the right to 
 stop over at Olean and afterwards to use the punched ticket be- 
 tween O'ean and Salamanca, then, whatever the rules and regula- 
 tions of the road were, the plaintiff w^as riglit:^ully a passenger on 
 the train at the time of his expulsion, and the conductor had no 
 right to put him off for not paying his fare, and the company 
 was liable for the act of the conductor; that if, on the other 
 hand, the plaintiff" did not notify the conductor of his wish to stop 
 over at Olean and received no such assurance from the conductor 
 or from the ticket agent as he has testified, then the punched 
 ticket gave him no right to ride as a passenger on the train be 
 tween Olean and Salamanca without paying his fare, and if he 
 refused to pay his fare when demanded the conductor was justi- 
 fied in putting him oft", and his offer to pay his fare after the train 
 was stopped was too late, and did not give him the right to ride 
 on the train, and the conductor was justified in expelling him, 
 notwithstanding the offer." 
 
 The Supreme Court regard these instructions as perfectly cor- 
 rect and conclude that, upon these points, they embodied substan- 
 tially the whole law of the case. The gravamen of this action is 
 the wrongful conduct of the conductor who ejected the plaintiff' 
 from the train. Whether the plaintiff" told nothing but the truth 
 M'ith reference to what occurred on the train between him and 
 the conductor before he was put off and at the time he was put 
 oft", or whether the jury believed all he testified to with reference 
 to those matters, is not the question to be determined. But, 
 taking the case in this particular most strongly in favor of the
 
 TERMlxMATlON 01'' REf,ATION BY ACT OF PASSENGER OR CARRIER. 309 
 
 defendant, under tlie evidence submitted, it is held that the action 
 of the conductor was inexcusable. He testified, among other 
 things, (1) that he thought the plaintiff's ticket was a limited one, 
 and so reported it to his comjjany, when, in truth and in fact, it 
 was unlimited; thus showing carelessness and negligence in a most 
 pronounced degree. (2) That he knew, or had good reason for 
 knowing, that the Binghamton-Salamanca coupon had not been 
 used to the latter place, because it had been punched by the con- 
 ductor, who had charge of the next preceding train to the one 
 of which he had charge; so that it was impossible for him to be- 
 lieve that the plaintiff" was trying to ride on a ticket that had once 
 been used over that part of the road. But he tries to justify his 
 conduct, in this particular, by saying that he would not have been 
 authorized to carry the plaintiff on his train, anyway, without his 
 having a stop-over check procured from the conductor of the 
 train on which he had ridden to Olean. It may be true, that the 
 regulations of the road were substantially to that effect; and it 
 may also be admitted that the road had the right to make such 
 regulations, subject, of course, to the reasonable interests, con- 
 venience and comfort of the traveling public. But the testimony 
 of a very high ofhcial of the road was, tliat stop-over checks were 
 not absolutely necessary, and that other arrangements might be, 
 and sometimes were made. And the very fact that the plaintiff 
 afterwards, on the next morning, did travel from Olean to Sala- 
 manca on one of the defendant's trains without producing any 
 stop-over check or any other ticket save and except the one which 
 had been refused the night before, it is said by the court, demon- 
 strates clearly that the regulations of the road with respect to 
 .stop-over checks were not unbending and inviolable, — although it 
 might be regarded, by other courts, simply as proof that the con- 
 ductors did not always strictly obey orders. 
 
 Another circumstance, in this connection, is worth noting. The 
 conductor of the train on which the plaintiff rode from Olean to 
 Salamanca was not called as a witness, nor was his absence ac- 
 counted for. It was not shown that he was not still in the employ 
 of the defendant. If accessible, his testimony would have gone 
 far towards showing the practice of the defendant with respect to 
 stop-over checks; and his not being called by the defendant makes 
 24
 
 370 PROTECTION OF PASSENGERS FROM EMI>L<jVKS. 
 
 against its theory that the plaintiff had no right to be carried onr 
 the train from which he was ejected without having a stop-over 
 check. 
 
 Furthermore, if the evidence of the plaintiff was to be believed 
 (and in this respect the charge of the court below was thought to- 
 be sufficiently guarded), he did all that he was required to do before 
 reaching Olean, to entitle him to the privilege of stopping over at 
 that place and resuming his journey the next day. In fact, his 
 course in this respect was in literal conformity with the regula- 
 tion of the company, which reads thus: "Timely notice of desire 
 to stop over must be given by the passenger to the company."" 
 The plaintiff testifies that he told the conductor that he desired 
 to stop off at Olean and take a train south to Portville, and then, 
 upon returning to Olean, resume his journey to the west on an- 
 other train; and that the conductor told him he would fix him all 
 right. Even under the regulations of the road with reference to 
 stop-over checks (although not brought to his knowledge), he had 
 the right to rely upon the statement of the conductor that he 
 would "fix him all right," and had a right to suppose that nothing- 
 further was required to be done by him than was done to entitle 
 him to a stop-over privilege. The conductor, after receiving 
 "timely notice from the passenger of his desire to stop over" at 
 Olean and afterwards take another train for the remainder of his 
 journey (as he had the right to do on an unlimited ticket), was 
 thereu]3on bound to furnish the passenger with a stop-over check 
 without the passenger asking him, in so many words, for one. 
 Under the circumstances of the case, as testified to by the plain- 
 tiff, the conductor of the first train was held to be derelict in his 
 duty in not providing the passenger with a stop-over check when 
 the latter stated to him that he desired to stop off at Olean (as he 
 had the right to do), if such check was necessary to enable the 
 passenger to complete his journey to Salamanca. If the jury 
 believed the evidence of the plaintiff in this matter, they were 
 justified in finding negligence on the part of the first conductor. 
 And, upon the case as made by the defendant itself, with refer- 
 ence to what took place between the plaintiff and the conductor 
 wlio ejected him from the train, leaving out of sight tlie disputed 
 facts in that matter, it is declared to be very clear that the action
 
 IF PASSENGEK PKOVOKES ASSAULT, CARRIER NOT LIABLE. 371 
 
 of that conductor was unwarranted under the law; and that tlie 
 chai-ge of the court thereon was as favorable to the defendant as 
 it had the right to demand. The authorities above cited, it is 
 thought, abundantly sustain this view. The reason of such rule 
 is to be found in the principle that where a party does all that he 
 is required to do, under the terms of a contract into which he has 
 entered, and is only prevented from reaping the benefit of sucli 
 contract by the fault or wrongful act of the other party to it, the 
 law gives him a remedy against the other party for such breach 
 of contract. 
 
 These observations of the court dispose of the questions raised 
 touching the conversation between the plaintiff and the ticket 
 agent, the rules and regulations of the company in the matter of 
 stop-over checks, the acts of the several conductors in charge of 
 the trains .upon which the plaintiff traveled between Binghamton 
 and Salamanca, and the conduct of the plaintiff himself in those 
 transactions. If he was rightfully on the train as a passenger, it 
 is declared that he had the right to refuse to be ejected from it, 
 and to make a sufficient resistance to being put off to denote that 
 he was being removed by compulsion and against his will; and 
 the fact that, under such circumstances, he was put oft" the train, 
 was of itself a good cause of action against the company, irrespect- 
 ive of any physical injury he may have received at that time, or 
 which was caused thereby.' 
 
 § 114. If Passenger Provokes Assault, Carrier 
 
 not Liable. 
 
 For personal injury done by the employe of a common carrier 
 to a passenger, if the employe is free from liability therefor, the 
 carrier is not liable. If an act of an employe be law^ful, and one 
 which he is justified in doing, and M^hich casts no personal respon- 
 sibility on him, no responsibility attaches to the employer there- 
 for. A carrier of passengers is not liable for an injury done to a 
 passenger by an employe in self defense.' 
 
 ^New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 36 L. ed. 71. See 
 also Engliah v. Delaware t£- H. Canal Co. 66 N. Y. 454; Broton v. Memphis 
 & G. B. Co. 7 Fed. Rep. b\; Philadelphia, W. & B.B. Co. v. Bice, 64 Md. 63. 
 
 *Nm Orleans & N. E. B. Co. v. Jopes, 142 U. S. 18, 35 L. ed. 919.
 
 372 PROTECTION OF PASSENGERS FROM EMPLOYES. 
 
 The carrier is not liable for the results, where a passenger by 
 his own misl^ehavior has provoked a personal encounter between 
 himself and one of the employes.' But an assault by a brakeman 
 is not excused and the carrier excused because the passenger ac- 
 cused the employe of theft." 
 
 A passenger ejected for captiously refusing to pay fare cannot 
 recover damages because the conductor drew a pistol and told the 
 other passengers not to be alarmed as he was a coward, where the 
 acts of the conductor were provoked by the unwarranted conduct 
 of the passenger.^ An intoxicated passenger who was boisterous 
 and who followed the conductor from one car to another with a 
 knife, threatening to kill him, causing general excitement among 
 the passengers, and who, after being locked in the smoking car, 
 slyly pulled the bell-rope, causing the train to stop, was properly 
 ejected from the train after refunding to him his fare, although 
 it was at night, but not too dark to see the track distinctly, when the 
 weather was not cold or inclement; and the fact that he was run 
 over during the night and killed by another train does not make 
 the railroad company liable.' If a disorderly passenger defies a 
 conductor, draws a pistol, and thereby induces the conductor to 
 take hold of him in order to expel him from the train, and if after 
 expulsion he still uses grossly vulgar, profane and insulting lan- 
 guage, on which a mutual combat with pistols ensues — the rail- 
 road company is not liable for the consequences though the 
 expelled passenger be wounded in the conflict, even if the con- 
 ductor, excited by danger and irritated by insult, be not fully ex- 
 cusable for the shooting.^ 
 
 One who boards a railroad train for a point at which he is 
 informed the train does not stop, and refuses to get off at the last 
 station before reaching such point, cannot recover for injury 
 occasioned to his feelings by the conductor repeating to him that 
 he is "only hunting a lawsuit," — especially where the conductor 
 
 ^ Scott V. Central Park, N. & E. B. Co. 53 liun, 414; Little Miami R. Co. v. 
 Wetmore, 19 Ohio St. 110. 
 
 ■Chicago tfe E. li. Co. v. Flcnnan, 103 111. 54G. 
 
 ^JlarrtHon v. Fink, 42 Fed. Rep. 787. 
 
 *LonimUe <£• N. R. Co. v. Logan, 3 L. R. A. 80, 88 Ky. 233. 
 
 ^ Peaty v. Georgia R. Co. 81 Ga. 485.
 
 IF PASSENGER PKOVOKES ASSAULT, CARRIER NOT LIABLE. 3 i -3 
 
 apologizes for the language used.' A railroad company is not 
 liable to a passenger because the conductor used insulting language 
 to him in a dispute arising between them over the failure of the 
 train to stop at the station for which the conductor had taken 
 the passenger's ticket.^ "Where an intending passenger, by im- 
 portuning a baggageman to check his baggage, and by violent 
 language provoked a personal quarrel, during which the baggage- 
 man struck him, the carrier is not liable for such assault.' But 
 it must always be a question of fact, whether the conduct of the 
 passenger brought the assault or injury upon himself, and no light 
 affront to an employe of the carrier, will be held to bar the right 
 of action for a serious assault or injury. Where the steward and 
 waiters of a steamboat were treating with rudeness a relative of a 
 passenger; and the latter interfered by a proper remark, and was 
 assaulted by them, their employer is liable.'' Where a railway 
 passenger, having lost his watch, accused a brakeman of having 
 taken it, and thereupon the brakeman struck him, it was held, that 
 the railroad company was liable for the assault." 
 
 Where a passenger and a brakeman, having had an altercation 
 and a personal encounter over the removal of the passenger's dog 
 from the car, the brakeman afterwards assaulted the passenger 
 with a poker, the railroad company is liable for the injuries so in- 
 flicted.* A railroad company is liable for an assault by its con- 
 ductor upon a passenger on its train, notwithstanding opprobrious 
 language was used by the passenger to the conductor.' And also 
 for an assault by one of its employes upon a person who has entered 
 a car to become a jDassenger, although without a ticket." A street 
 railway company is liable for the act of a driver of a car in 
 wrongfully throwing a passenger off from the front platform, the 
 
 ^Texas &P. B. Co. v. White(Tex. App.) Oct. 31, 1891. 
 
 ^Parker v. Erie B. Co. 5 Hun. 57. 
 
 ^Little Miami B. Co. v. Wetmore, 19 Ohio St. 110. 
 
 *Bryantv. Bich. 106 Mass. 180, 8 Am. Rep. 311. 
 
 ^Chicago & E. B. Go. v. FUxman, 103 111. 546, 43 Am. Rep. 33. 
 
 *Hanson v. European & N. A. B. Co. 62 Me. 84, 16 Am. Rep. 404. 
 
 ''Coggins v. Chicago & A. B. Co. 18 111. App. 620. 
 
 'Illinois Cent. B. Co. v. Sheehan, 29 III. App. 90.
 
 374 PROTECTION OF PASSENGERS FROM EMPLOYES. 
 
 former having been angered because the passenger rang up the 
 conductor.' 
 
 If the servant's act be one not authorized by the master, or one 
 not done in the exercise of a power fairly arising from the char- 
 acter of his employment, but be an act done for the use or benefit 
 of the master, then the master may doubtless ratify the act of the 
 servant through which a tort was committed; and it may be that, 
 in such case, the ratification of the master would fix upon him the 
 bad motive which prompted the servant's act, and thus impose on 
 the master a liability even for exemplary damages. It has been 
 so held by courts that hold the master liable for exemplary dam- 
 ages in all cases in which the servant is." So ratification of illegal 
 act will render the company liable, — as retaining an employe with 
 full knowledge of the unlawful act.* The company may pay 
 damages and retain the employe.* 
 
 ^Lyons v. Broadway & S. A. R. Co. 33 N. T. S. R. 232. 
 
 ^Bass V. Chicago & N. W. R. Co. 42 Wis. 654. 
 
 'Qasway v. Atlanta, W. P. R. Co. 58 Ga. 216; Bass v. Chicago £ N, W, R. 
 
 Co. 39 Wis. 636. 
 *Eanson v. European <& N. A. R. Co. 62 Me. 84.
 
 CHAPTER XX. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 :§ 115. Disoleying Regulations. 
 
 % 116. When luill Preclude Recovery. 
 
 § 117. At Stations or Approaching or Leaving them. 
 
 § 118. About Station Platforms and Steamer Landings. 
 
 § 119. In Entering Train in Motion. 
 
 § 120. Passing between Cars in Motion. 
 
 § 121. Position of Passenger in Car. 
 
 § 123. LJxposifig the Person without the Car. 
 
 .§ 123. Traveling on Other titan Passenger Cars. 
 
 § 124. On Platform of Car. 
 
 ■^ 125. Injury about Passenger Elevators. 
 
 § 115. Disobeying Regulations. 
 
 The carrier, as has already been shown, has authority to make 
 reasonable rules and regulations for the proper management and 
 •orderly conduct of its business, and to secure the safety and pro- 
 mote the comfort of passengers.' Regulations which in fact con- 
 .tribute to accomplish these purposes will be deemed reasonable, 
 unless they are unnecessarily burdensome and oppressive upon the 
 passenger. If they teijd to accomplish the legitimate end in view 
 they are prima facie reasonable and legal." Otherwise the burden 
 •of proving their reasonableness is on the carrier/ 
 
 The fact that one who asked a ticket agent for a ticket on a 
 limited or fast train was refused a ticket because the train was not 
 allowed to stop at his destination is sufficient notice to him that 
 
 ^Soutli Florida E. Co. v. Rhoads, 3 L. R. A. 734, 25 Fla. 40: McBae v. Wil- 
 mington &W. R. Co. 88 N. C. 526; Marriott v. London & S. W. R. Co. 1 
 0. B. N. S. 499; Sandford v. Catawinsa, W. & E. R. Co. 24 Pa. 378; Cen. 
 tral R. Co. of New Jersey v. Green, 86 Pa. 421; Pittsburg cfc C. R. Co. v 
 McClui-y. 56 Pa. 294; McDonald v. Chicago & N.W. R. Co. 26 Iowa, 124; 
 Will* V. Lynn & B. R. Co. 129 Mass. 351; Alahama Q. S. R. Co. v. 
 Hatck, 72 Ala. 112; Creed v. Pennsylvania R. Co. 86 Pa. 139; Pennsylva. 
 nia R. Co. v. Zebe, 33 Pa. 326 ; Powell v. Pennsylvania R. Co. 32 Pa. 414. 
 
 *Com. V. Power, 7 Met. 596; State v. Chovin, 7 Iowa, 204, 208. 
 
 *P6ek V. North Staffordshire B. Co. 10 H. L. Gas. 473. 
 
 375
 
 376 UOiSTKIBUTOEY IJEGrLlGEiHCK. 
 
 any agreement the conductor might afterwards make to put bini 
 off at his destination would be a violation of the rules of the com- 
 pany, so as to exempt the company, which provided anotiier train 
 which made stops at all stations, from liability, where he paid 
 fare to the conductor, who agreed to let him off at, but carried him 
 beyond, his destination.' 
 
 If a passenger is injured in consequence of his violation of a 
 known and reasonable regulation of the carrier, he cannot recover 
 damages.' Contributory negligence which will defeat recovery 
 has been already defined.* But one who gets on a horse car with 
 the intention of becoming a passenger is not a trespasser, even 
 though no fare has been collected of him before he sustains an 
 injury, simply because he has violated a rule of the company as- 
 to the mode of getting on.* 
 
 The test of contributory negligence or want of due care is not 
 found in the failure to exercise the best judgment or to use the 
 wisest precaution, but allowance may be made for the influences 
 ordinarily governing human action, as what would under some 
 circumstances be want of reasonable care may not be such under 
 others.* But the rule that, when danger has come suddenly upon 
 a person, and he is called upon to act instantly and without time to 
 reflect, it is not negligence to make a mistake, does not apply 
 where the party injured is placed in imminent peril by his own 
 fault." WJiile one who sustains injury through the negligence of 
 another may recover damages therefor although he contributed to 
 such injury, if he was not in fault in so doing,' yet where a 
 
 ^Alabama G. S. R. Co. v. Carmichael, 9 L. R. A. 388, 90 Ala. 19, 44 Am. & 
 Eng. R. Cas. 286. 
 
 'Cfreed v. Penmylmnia R. Co. 86 Pa. 189; Werle v, Lo7\g Island R. Co. 98 N. 
 Y. 650; Pennnylvania R. Co. v. Langdon, 92 Pa. 21 ; McDonald v. Chicaga 
 <fe N. W. R. Co. 26 Iowa, 124; Wills v. Lynn & B. R. Co. 129 Mass. 351. 
 
 *Ante, § 12. 
 
 *Noi-th Chicago St. R. Co. v. Williams (111.) Jan. 18, 1892. 
 
 ^Lent V. New York <fi M. R. Co. 55 Hun, 180; McTntyre v. Few York Gent. 
 R. Co. 37 N. Y. 287; Lowery v. Manhattan R. Co. 99 N. Y. 158; Sherry 
 V. New York Cent. & U. R. R. Co. 6 Cent. Rep. 357, 104 N. Y. 652. See 
 note to Louisville, N. A. & C. R. Co. v. Lucas (Ind.) 6 L. R. A. 193. 
 
 *Nayes v. Southern Fac. R. Co. 92 Cal. 285; Grand Rapids & L R. Co. v. 
 Ellison, 117 Ind. 234. 
 
 "^Smth Covington & C. St. R. Co. v. Ware, 84 Ky. 267. See Stokes v. Salton- 
 stall, 38 U. H. 13 Pet. 181, 10 L. ed. 115; Pierce, Am. Railroad Law, 1st 
 cd. 475; South Wester n Ji. Co. v. Paulk, 24 Ga. 356; Richmond it, D. R. Co. 
 V. Morris, 31 Gialt. 200; Frink v. RoUer, 17 111. 406.
 
 DISOiiKVING KEGULATIONS. 377 
 
 party is put in a position of immediate dani^er, he is bound to 
 exercise the prudence and care which characterize tlie conduct of 
 a prudent man, under such conditions; and if lie acts unreason- 
 ably or rashly, or becomes frightened at a trivial circumstance, lie 
 cannot recover damages.* 
 
 Contributory negligence has no relevancy to an action for eject- 
 ing a passenger from a railroad train with excessive force and vio- 
 lence, because such an act is essentially unlawful." But there can 
 be no recovery for injuries on the ground of force employed, 
 where a passenger was properly ejected from a car and he received 
 all his injuries after leaving the car and as a result of his holding 
 onto the railing in resisting the force removing him, and no more 
 force is shown to have been used than was necessary for the pui- 
 pose.' 
 
 A passenger upon a railroad is bound to comply with the rules 
 and orders of the company and its agents, as much when going 
 from the cars to a place of safety beyond the railroad track as 
 when actually on board the train." But contributory negligence 
 cannot be imputed to a passenger because he does not anticipate 
 culpable negligence on the part of the carrier; he has the right 
 to presume that the employes will use the degree of care which 
 persons of ordinary prudence are accustomed to employ under the 
 same or similar circumstances.^ 
 
 A woman who enters a ear left standing, with brakes set, on 
 the grounds of a sanitarium, a few minutes before the time for it 
 to start and when no one is in charge of it, but when other women 
 and children are already in it, is not guilty of negligence, as mat- 
 ter of law, which will prevent her recovery for injuries occasioned 
 by the starting of the car when a small boy let off the brakes, 
 which were negligently left unguarded; — especially where notice 
 of rules against entering the car had never been published 
 or posted, and she had no actual knowledge of them." A pas- 
 senger is not bound to abandon the use of a station plat- 
 
 ^Sauth Covington & C. St. R. Co. v. Ware, 84 Ky. 267. 
 
 ^Chicago, St. L. & P. R. Co. v. Bills, 118 Ind. 221. 
 
 » Wright v. California Central R. Co. 78 Cal. 360. 
 
 *Warren v. Fi'chburg R. Co. 8 Allen, 232. 
 
 ^Franklin, v. Southern California M. R. Co. 85 Cal. 63. 
 
 * Western Maryland R. Co. v. Herold (Md.) 14 L. R. A. 75.
 
 378 CONTRIBUTOKY NEGLIGENCE. 
 
 form which is not in good repair, and seek some other way of 
 •entering and leaving the cars, if it is still held out by the company 
 as safe, and used by the pubKc. The fact that a person may 
 have seen a station platform out of repair at one time does not 
 bind him to carry such defect in mind upon all future occasions 
 when approaching or leaving a train at such place.' But where 
 a railroad station has been sufficiently lighted to protect passen- 
 gers using reasonable care, one suffering injury cannot recover 
 where experience has shown no necessity for additional light." 
 Nor can one claim damages for injury suffered from imprudent 
 •conduct during a withdrawal of the light for temporary purposes.' 
 
 But while the passenger may, in the absence of knowledge that 
 the carrier has been guilty of negligence in a particular matter 
 that may endanger his safety, unless he use extra caution and 
 care, conduct himself with only ordinary prudence; on the other 
 hand the carrier may indulge the same reasonable presumption 
 toward the passengers conduct. A railroad employ^ has the 
 right to presume that a passenger is conducting himself with pru- 
 dence, and is not placing himself in an unnecessarily dangerous 
 position, and is not bound to see that such is the case; and the fact 
 that he could have discovered the danger will .not render the com- 
 pany liable. For a passenger to rest his hand upon the jamb upon 
 which the door of a car swings, so that his hand is injured by a 
 brakeman suddenly closing the door, is such negligence on the 
 passengers part as will prevent a recovery.* 
 
 A passenger who unnecessarily steps off a moving train in the 
 dark without an invitation or assurance by the railroad company 
 that it is safe so to do, is negligent ^er seJ' 
 
 When a proper place of exist for passengers is provided, a 
 warning to a passenger not to leave at another part of the boat is 
 ci reasonable regulation which the passenger is bound to obey; 
 and his disobedience thereof will, in the absence of a good reason 
 for it, constitute contributory negligence and prevent his recov- 
 
 ^Penmylvania Co. v. Marten, 7 L. R. A. 637, 123 Ind. 415. 
 
 ••Lajjli,^ V. Buffalo & S. W. R. Co. 106 N. Y. 136. 
 
 ^Bennett v. New York, N. H. & H. R. Co. 57 Cona. 422; Reed v. Axtell, 84 
 
 Va. 231. 
 * Texan & P. R. Co. V. Overall, 82 Tex. 247. 
 '-England v. Bonton & M. R. Co. 153 Mass. 490.
 
 DISOBEYING REGULATIONS. 379 
 
 ery from the carrier for an injury growing out of it.' A pas- 
 senger who is injured by falling into a ditch when alighting 
 from a railroad train, on the opposite side from the depot build- 
 ing and the platform provided by the company for exit from 
 or entrance to its trains, cannot recover from the company,' 
 Ordinary care is required of a passenger in alighting from a train 
 and leaving the platform; and in the absence of such care no 
 recovery can be had for injuries sustained by falling over a raised 
 portion of the platform." A railroad passenger who, upon the 
 train stopping on a trestle over a gulch or canyon, for a moment 
 in the night time, without any intimation from the trainmen that 
 it is his stopping place or that he should get off, but judging from 
 the movements and remarks "of other passengers that it is his 
 stopping place, heedlessly jumps off the train without taking time 
 to look about him, is guilty of such contributory negligence as 
 will prevent a recovery for injuries received.* A passenger who, 
 without looking or listening for approaching trains, leaves his 
 train voluntarily while it is in motion and before it is time to stop, 
 gets off and is run against by an engine following his train on a 
 parallel track, contributes directly to the injuries received by hira.° 
 As the question of negligence on the part of the defendant is one 
 of fact for the jury to determine, under all the circumstances of 
 the case, and under proper instructions from the court, so also the 
 question of whether there was negligence in the injured person 
 which was the proximate cause of the injury, is likewise a ques- 
 tion of fact for the jury to determine, under like rules. The 
 determination of what was such contributory negligence on the 
 part of the injured passenger as would defeat his action, or perhaps, 
 more accurately speaking, the question of whether the injured 
 passenger at the time of the accident, was, under all the circum- 
 stances of the case, in the exercise of such due care and diligence 
 as would be expected of a reasonably prudent and careful 
 person, under similar circumstances, is no more a question of law 
 for the court than is the question of negligence on the part of 
 
 ^Dodge v. Boston & B. SS. Co. 2 L. R. A. 83, 148 Mass. 207. 
 
 *Drake v. Pennsylvania B. Co. 137 Pa. 352. 
 
 ^Graham v. Pennsylvania Co. 12 L. R. A. 293, 139 Pa. 149. 
 
 *Nagle v. California S. B. Co. 88 Cal. 86. 
 
 'Dewald v. Kansas City, Ft. 8. & G. B. Co. 44 Kan. 586.
 
 380 CONTRIBDTOKY NEGLIGENCE. 
 
 the carrier. There is no more an absolute standard of ordi- 
 nary care and diligence in the one instance than in the other. 
 This rule is sustained by the authorities;' and its correctness is 
 apparent from an examination and analysis of tlie generally 
 accepted definitions of contributory negligence, as laid down by 
 the courts and by text-writers. Without now going into a discus- 
 sion of these definitions, or even attempting to collate them, it 
 will be sufficient for present pui-poses to say that the generally 
 accepted and most reasonable rule of law applicable to actions in 
 which the defense is contributory negligence may be thus stated : 
 although the defendant's negligence may have been the primary 
 cause of the injury comjilained of, yet an action for such injury 
 cannot be maintained if the proximate and immediate cause of 
 tlie injury can be traced to the want of ordinary care and caution 
 in the person injured; subject to this qualification, which has 
 grown up in recent years," that the contriljutory negligence of the 
 party injured will not defeat the action if it be shown that the 
 defendant might, by the exercise of reasonable care and prudence, 
 have avoided the consequences of the injured party's negligence.^ 
 
 % 116. When will Preclude Recovery. 
 
 In addition to what has been said in the preceding section the 
 general rule may be laid down that the passenger's right to recover 
 is precluded when his omission to employ his senses contributes 
 to tlie injury; that is when by their employment he might have 
 avoided the jury." 
 
 One injured by the negligence of a carrier cannot recover if the 
 
 ^Mynrdnq v. Detroit, L. & N. JR. Co. 64 Mich, 93; Undei'IiiU v. Chicago & (jr. 
 1. R. Co. 81 Mich. 43; Baker v. Flint & 1\ M. R. Co. OS Mich. 90; Koqd 
 V. timith, 82 Mich. 1. 
 
 *Davie8 v. Mann, 10 Mees. & W. 546. 
 
 •Grand Trunk R. Co. v. Ives. 144 U. S. 408, 36 L. ed. 487; Inland <& 8. 
 CodHting Co. v. ToUon, 139 U. S. 551, 558, 8S L. ed. 270, 272, and 
 cases cited; Donahue v. tSt. Louis, I. M. & S. R. Co. 91 Mo. 357, 8 
 W(;st. liep. G28; Vickshurg & J. R. Co. v. Patton, 31 Miss. 156; Deans v. 
 Wilmington & W.R. Co. 107 N. C. 686; 2 Tiiomp. Ncg. 1157; Cooley, 
 Torts (Isl ed.) 675; 4 Am. & Eng. Enc. Law, title "Contributory Negli- 
 gence," 30, and authorities cited in note 1, 
 
 ^Baltimore & 0. R. Co. v. Whitacre, 35 Ohio St. 631; Cleveland, G. & C. R. 
 Co. V. Crawford, 24 Ohio St. 038; Lake Shore & M. S. R. Co. v. Miller. 
 25 Mich, 274.
 
 WIIKX WILL TRECLUDE EECOVEKY. 381 
 
 accident could liave been avoided bj due care on his own part.' 
 But ne<;ligencc of a passenger does not excuse a carrier from lia- 
 bility to liira for injuries from its negligence, which he would 
 have sustained had he not been negligent.'' It is however no 
 part of the province of a passenger on a railroad to interfere in 
 any way with the management of the train, and failure to pull the 
 bell rope and signal approaching danger will not prevent liis 
 recovery for injuries occasioned by the negligence of the em- 
 ployes in charge of the train, although if he had done so the acci- 
 dent might have been avoided.' 
 
 To maintain an action in case of concurrent nesfliafence it nnist 
 appear either that defendant might by a proper degree of caution 
 have avoided the consequences of the injured party's neglect, or 
 that the latter could not by ordinary care have avoided the con- 
 sequences of defendant's negligence; and in such case defendant 
 must have liad time to become aware of the conduct and situation 
 of plaintiff.* A woman having a weak knee, who, without tell- 
 ing that fact, injures it by alighting from a car step 26 inches 
 from the ground, there being no platform at the place, cannot 
 recover where a brakeman assisted her with the care which was 
 usual and proper for ordinary people.* 
 
 Even in states Avhere the doctrine of comparative negligence is 
 recognized it is held that an instruction to the effect that if plain- 
 tiff failed to exercise ordinary care, and if by the exercise thereof 
 he could have prevented the injury, he cannot recover unless 
 defendant was guilty of gross negligence, is erroneous in that it 
 implies that gross negligence on defendant's part would obviate 
 the necessity of ordinary care on the part of plaintiff.' 
 
 Where a newsboy got upon a street railway car at the rear end 
 to sell papers, passed through the car to the front platform 
 where the driver was standing, stepped one side behind the driver 
 and fell off behind the car, there being no step on that side and 
 was killed by the car running over him, it was held that deceased 
 
 ^Wallace V. Wilmington & N. R. Co. (Del.) Dec. 13, 1889, 
 W<irrico v. West Virginia U. & P. B. Co. 35 W. Va. 389. 
 ■Orand Rapids tfi /. R. Co. v. Ellison, 117 Ind. 234. 
 *IIolo7ian v. Washington & G. B. Co. 8 Mickey, 316. 
 ^McGinney v. Canadian Pac. R. Co. 7 Manitoba Rep. 151. 
 *Toledo, St. L. d:K C. B. Co. v. Cline, 135 111. 41.
 
 382 CONTKIBUTORY NEGLIGENCE. 
 
 was lawfully in the car, being entitled to be carried safely^ 
 whether he was a passenger for reward or not, and that there wa& 
 evidence for a charge of negligence on the part of the defendants 
 in the absence of a step at that place and no such contributory 
 negligence on the part of the deceased as should, as a matter of 
 law, prevent the plaintiffs recovery, and a nonsuit was therefore 
 set aside.' In reviewing some of the decisions, reference was 
 made to another case in which Chief Baron Kelly has said : " If 
 there is evidence of negligence on the part of defendants and of 
 contributory negligence on the part of plaintiif, that must always 
 be a question for the jury, and it is not a case for a nonsuit," In 
 this case plaintiff was a passenger on defendant's railway and got 
 up from his seat to put his hand on a bar passing across the win- 
 dow of the carriage, with the intention of looking out to see the 
 lights at the next station; the pressure caused the door to fly open 
 plaintiff fell out and was injured. To apply the principles of this 
 case to the present, can it be said that beyond doubt, or contro- 
 versy that tlie deceased did anything in the way of a perilous act 
 voluntarily? Ho had the right to assume that the defendant's 
 were not guilty of negligence, that the car and every part of it on 
 which he was traveling, was fit for the purposes for which it was 
 being used, and so assuming would, without looking, naturally 
 put his feet on the place where the step ought to have been and 
 where it would have been had there been no negligence on the- 
 part of defendants.* As said by Chancellor Johnson, "A pas- 
 senger upon such a vehicle, has a right to assume that the part& 
 of the vehicle are proper for the use of passengers and designed 
 to receive them while in transit and are suitable and safe for the 
 purpose; under these circumstances I do not think the omission 
 of the deceased to see the want of a step can, as matter of law, be 
 said to be contributory negligence. ... If the deceased were 
 only in this particular car on sufferance or by permission, not as a 
 passenger but merely to ply his trade of selling papers, the com- 
 pany would be liable to him as to an ordinary passenger for any 
 injury caused by reckless driving or negligent management of the 
 car; but I am unable to see any breach of duty on their part tO' 
 
 *ninckmorev. Toronto St. E. Co. 38 U. C. Q. B. 172. 
 *U<ie V. Melropolilan 11. Co. L. R. 8 Q. B. 108.
 
 AT STATIONS OK APPKOACHINO OR LEAVING THEM. 381^ 
 
 liim as to the absence of a step, or the general state of tlie vehicle 
 so long as at least, it was not in such a state as to be a mere trap 
 for any person going off or onto it. ... To a mere volunteer 
 like a newsboy permitted to run through the car to sell his papers, 
 the absence or presence of a step in the vehicle gives no cause of 
 action. The law seems reasonably clear on this point." ' Bram- 
 well, B.^ also said : "I quite concur in the rule laid down in tlie 
 cases that where a person is a mere licensee he has no cause of 
 action on account of the dangers existing in the place he is per- 
 mitted to enter." The whole case turns on the question of fact, 
 in what character was deceased on the car, as a passenger on a 
 particular carriage or as a mere volunteer or licensee selling 
 papers for his own purposes by the permission or sufferance of 
 defendants. It is hardly a fair argument to assume liim right- 
 fully there as a passenger till fare was demanded." 
 
 %117. Ji-t Stations or Approaching or Leaving 
 
 Them. 
 
 It is the duty of the carrier to make the place for receiving 
 passengers reasonably safe and secure, and a passenger waiting at 
 a station for his train is not negligent because he does not remain 
 in the waiting-room, but goes out upon the platform.^ 
 
 Where the evidence was that no mischief had resulted for five 
 years from keeping a portable weighing machine used for weigh- 
 ing passengers' baggage on their platform, quite out of the course 
 of transit, standing against a pillar which passengers passed in 
 going to and coming from the train, although the foot of the 
 weighing machine projected about six inches above the level of 
 the platform, the company might reasonably have anticipated 
 that no injuries could occur. And where the plaintiff, being at 
 the station on Christmas day inquiring for a parcel, was driven by 
 the crowd against the machine, caught his foot and fell over it, as 
 the evidence showed that the machine was in a situation in which 
 it might have been seen, the case was properly taken from the 
 jury on the ground that there was no evidence justifying a verdict 
 
 ^Spooner v. Brooldyn City B. Co. 54 N. Y. 230, 13 Am. Rep. 573. 
 *Hol>fies V. North Eastern B. Co. L. R. 4 Exch. 257. 
 ^Chicago &A. B. Co. v. Woolridge, 32 111. App. 237.
 
 384 CONTKIBUTOKY NEGLIGENCE. 
 
 against tlie defendant.' But in another case, the plaintiff in run- 
 ning along the platform of a railway station to get onto the tn-ain fell 
 over the switch handle. As there was evidence that there was 
 not light enough to enable a person unacquainted with the prem- 
 ises to move about in safety it was held that there was evidence 
 of negligence on the part of defendant." 
 
 The rule requiring a traveler on a highway to use his eyes 
 and ears to ascertain whether a train is approachingj cannot be 
 applied to passengers, where the station is so situated that regu- 
 lar access to or egress from the station requires this passage.' 
 Where it is necessary to cross a railroad track to reach the train 
 a passenger has the right to rely to some extent upon the giving 
 of proper signals of danger; the fact that he did not look to see if 
 a train was approaching is not conclusive of a want of due care 
 on his j)art.* But increased vigilance is required on the part of 
 a pedestrian approaching a railway station by going through a 
 railway yard, across several tracks which are crossed by an un- 
 guarded plank walk extending from the street to the station. But' 
 he is not obliged to look carefully for a hole in a bridge forming- 
 part of the recognized means of access to the depot of a railroad 
 company.' A passenger who steps from a train while slowing up 
 before stopping, and while the exhaust steam from the engine is 
 making considerable noise, who looks and sees no train approach- 
 ing on a side track, has a right to assume that none is coming at 
 such a rate of speed as will preclude him from crossing a single 
 track, and is not guilty of negligence, as a matter of law, in 
 attempting to cross the track, although if he had looked in the 
 right direction at the moment of stepping upon the track, ho 
 could have seen the approaching train.^ 
 
 Evidence that there was no passage from a railroad station for 
 passengers wishing to reach a certain settlement, except along the 
 
 ^Cornman v. Eastern Counties R. Go. 4 Hurlst. & N. 781. 
 
 ^Martin v. Great Northern B. Go. 16 C. B. 179. 181. 
 
 ^Terry v. Jeiocti, 78 N. Y. 388; BrasseU v. New York Cent. & II. B. B. Co. 84 
 
 N. Y. 241. 
 *So)ner v. lioston & A. R. Co. 1 New Eng. Rep. 493, 141 Mass. 10. 
 ^Jonrsv. Grand Trunk R. Go. 16 Ont. App. 37, 89 Am. & Eug. R. Cas?. 
 
 4b7; C/iafee v. Old Colony R. Co. (R. I.) Feb. 37, 189:2. 
 * Watson V. Oxanna Land Co. 92 Ala. 3'-'0. 
 Tarsons v. New York Gent. & H. R. R. Go. 3 L. R. A. 633, 113 N. Y. 855.
 
 Ai sr.vnoNb on. Ari'uu.vciii.Nc on i.ka\in<. tukm. 385 
 
 tracks or tliroug'li private liroiiiids in wlii(;h a si^n forhiddiuir 
 tre8})ass was erected, and tliat f<»r years passeiio-ers have been 
 aecnstoineil to go aloiiu- the ti-acks, is sutticieiit to justify submit- 
 ting to tlie jury the c|iiestioiis whether the raih'oad company wat^ 
 guilty of negligence in failing to |)r<»vide a safe and convenient 
 passage, and wlu-ther a j»assengt'i- was guilty of negligence in 
 walking along the tracks upon lea\ ing the station.' Where a pas- 
 senger does not by his negligence contribute to liis injury, a i"ail- 
 I'oad eojnpany will be liiiKh' w here he ste])s or stumbles from the 
 path and falls into a h(»le near to a pathway <»ver the defend- 
 ant's grounds, between its depot and the ))ublic crossing.'' 
 
 Although one may have entered upon the pi'emises of anothei- 
 by express ijivitation or ui)f>n matter of husiness. for which tlu- 
 premises are intended, yet he cannot recover foi' an injury sus- 
 tained if lie wander out of the designated method of entrance oi- 
 egress.' Where it is obvio\is that a railroad company <lid not intend 
 that passengers shouhl i-eaeh its station by a particular route which 
 imperiled their safety, having indicated this by various obstruc- 
 tions placed in the way of such attempts, re(piii-ing unusual efforts 
 to overcome them, one who attempts, despite these preventive 
 measures, to reach the railroad platform, and is injured in tlu- 
 effort, is barred l)y his oM^n act fr(»m a recovery. 
 
 In an action by a widow against a railroad company to recover 
 damages for the death of her husband, it appeared that at the 
 ])oint where the accident occurred the railroad had been crossed 
 by a path. Some years before a station jdatfoi-m had been erected, 
 the western end of which was at the [)oint where the path crossed 
 the road. Behiiul the platform a harbcd wire fence had been put 
 ui), crossing and cutting off the path and extending for some dis- 
 tance parallel to the railroad. Between the fence and tracks was 
 
 UiHd V. ^tw York, JS. II. A- H. R. V<k 44 N. Y. S. K. 688. 
 
 *HariJradk v. South Yorkxhire R .t R. D. (h. 4 Hurlst. «& N. 67; Barues v. 
 
 Ward, 9 C. B. 393; HadUq v. Taylor. L. R. 1 C. P. 53; Fickard \. Smith, 
 
 10 C. B. N. S. 470; Bi'ihop v. Bedford, Charity, 1 El. & El. 697; Wilkin 
 
 Hon V. Fairrie, 33 L. .J. Exch. Div. 73; Binks v. SovtJi Yorkshire R. & R. 
 
 D. Co. 32 L. .T. Q. B. 26: HonmrU v. Smiith. 29 L. .T. C. P. 203; Wettorv. 
 
 Dunk. 4 Fosl. &F. 298; Jndermaur v. Dames, L. R. 1 C. P. 374. 
 *S(refny v. Old Colony d- N. R. Co. 10 Allen, 368; Elliott v. Pra)/, 10 Allen, 
 
 378; Zoelmeh v. Tarbell, 10 Allen, 385; Bancroft v. Boston <f; W. R. Corp. 
 
 97 Mass. 275; Chapman v. RothweU. El. Bl. & El. 168; Stratfon v. Staples, 
 
 59 Me. 94; Hounsell v. Smyth, 7 C. B. N. S. 738. 
 0\
 
 386 COATKIBDTOKY NEGLIGENCE. 
 
 a ditch from which there was a rise to the railroad embankment 
 where it was possible to step upon the platform by means of a 
 projecting string piece. It appeared that many persons had been 
 in the habit of approaching the station by this path stooping un- 
 der the wires and climbing up the bank. On the day of the acci- 
 dent, the deceased was in a great hurry to reach the train, and 
 the regular apj^roach to the station being blocked by a freight 
 train, he chose the way by the path, and in attempting to get 
 upon the platform was struck and killed by a passing train. 
 Under the facts a compulsory nonsuit was properly entered.' 
 
 A passenger who, upon alighting from a train upon a dark 
 night, and when no sufficient light is furnished by the company, 
 commits himself to the guidance of a third person, thereby waives 
 the duty of the company to furnish him with safe means of 
 departure." One who is injured by falling into a ditch when 
 alighting from a railroad train, on the opposite side from the 
 d'epot building and the platform provided by the company for 
 egress from and ingress to its trains, cannot recover from the com- 
 pany.^ So a passenger on a ferry boat, who attempts to leave by the 
 gangway for teams, instead of that intended for passengers, and 
 is injured by the guard chain being dropped on his leg, is guilty 
 of such contributory negligence as to preclude a recovery.* One 
 who, on leaving a railroad depot, passes by three well lighted 
 flights of stair^, any one of which could have been taken by him 
 conveniently, and, in attempting to use a fourth flight of stairs, 
 which is in utter darkness, falls and is injured, is guilty of negli- 
 gence which will prevent his recovery from the company.* 
 
 § 118. About Station Platforms and Steamer^ 
 
 Landings. 
 
 In an action for injury caused by alleged defects in or obstruc- 
 tions about a depot platform, evidence as to the happening of 
 other similar accidents about a station platform is clearly admissi- 
 
 ^Coirdy V. Pennsylvania R. Co. (Pa.) 11 Cent. Kep. 206. 
 ^Wallace v. Wilmington <£• N. R. Co. (Del.) Dec. 13, 1889. 
 ^Dr<ike v. Pc unHyloania R. Co. 137 Pa. 352; McGeehan v. Lehigh V. R. Co. (Pa.) 
 May 9, 1892. 
 
 ^Graham v. Pennsylvania R. Co. 39 Fed. Rep. 596, 
 
 '•Bennett v. New Turk, N. II. & JT. R.Co. 57 Conn. 422; Pasioris v. Baltimore 
 & (). R. Co. (Pa.) May 23, 18<J2.
 
 AliOLT STATIOX PLATFOKMS AND STKAMKIt LANDINGS. 387 
 
 ble, and it is not necessary to sliow all the particulars attending 
 the liap])eninrt; of the accident. The fact that such accidents did 
 happen is sutHcient to call the attention of the carrier to the fact 
 that there is danger in the maintenance of an obstruction, although 
 used in the business of the carrier and that their passengers are in 
 danger during its use, and consequently the carrier cannot claim 
 exemption because there had been nothing to call its attention to 
 the dangers which its passengers run. If, however, notwithstand- 
 ing the fact of this notice by the happening of accidents, the 
 structure was of sucli a character that its passengers were safe if 
 they used reasonable care in boarding the cars, then the mere 
 happening of these accidents is no proof of negligence. The 
 passenger is just as much bound to use reasonable care in 
 boarding a car as the defendant is bound to use reasonable care in 
 the construction and maintenance of the platforms of tlie cars and 
 stations, and if the passenger does not use such reasonable care in 
 boarding a car he is guilty of contributory negligence, and clearly 
 no recovery can be had. 
 
 In a New York case, the plaintiff while attempting to board a 
 car stepped into the open space between the car platform and the 
 station. It is clear that the plaintiff had no reason to expect to 
 iind a solid space between the car and the station. She had been 
 going up and down that road for years, and must have known 
 that an open space existed, and she knew that she would have to 
 cross that space, and yet she stepped forward to put her foot upon 
 the platform of ttie car while the whole space was, as she says, 
 covered by a previous passenger's dress, and she, therefore, could 
 not see whether she was putting her foot upon the platform or in 
 the open space between, and, in fact, this circumstance is offered 
 as an excuse for the plaintiff not seeing, although there is no evi- 
 dence that she looked where she should put her foot, in conse- 
 quence of which she stumbled. The proximate cause of the acci- 
 dent would thus seem to be the long dress of the passenger which 
 covered the space alleged to be dangerous, M-hich the plaintiff' 
 knew to be there, and which she knew she must step over to board 
 the train in safety, and which she did not do, because it was 
 covered by the long dress of the preceding passenger. 
 
 If a person walking along a sidewalk, which he ordinarily has
 
 386 Oi'MKllJLToKV 2iE(>LI(.,ENCK. 
 
 the riglit to assume is tit for ti-a\e]iii^. l)iif in whicji, in this 
 instance, he knowb that there is a hole into which, if lie falls, he 
 may break his leg, and he Avalks rigjit on and attempts to step 
 over it without looking whether he is pnl ting his foot over the 
 hole or into it, and he puts his foot into it. he can not he said to 
 use ordinary care or any care at all. This seems to have been the 
 degree of care used by the plaintiff in this case referred to. She 
 knew this space existed between the car and the platform of tlie 
 station. She also knew that she must step over this space, and 
 upon the car jjlatform, and yet it does not appear that she looked 
 ^v'here she was stepping, or took any precautions whatever to avoid 
 the evident results of stepping between the car and tlie station. 
 The court in applying this rule to the case said the im])erativt' 
 duty seems to have been cast upon the plaintilf to look Avhere she 
 was stepping, as she knew that there M'as a space to be cleared, 
 and if she failed to do so that she ran the risk of injnry. Bui 
 she went straight ahead, without lookinu-. or. if she did look 
 could not see, Itecause a [)receding pas>engei- had a long dress.' 
 .\.n illustrati(Mi of this principle is shown in a case -where the 
 plaintiff was held to be guilty of negligence in stuml)ling upon a 
 stepping stone iip<»n the sidewalk, because, being well acquainted 
 with the locality, had he been careful in exercising his faculties he 
 could have avoided the accident.^ LTpon this state of the facts 
 the ]>laiiitifT can not. it is decided. 1»e said to have shown that 
 she used oi-dinary care in boarding the car, as it distinctly appears 
 that in so doing she used, if the expression may be permitted, 
 ordinary negligence. 
 
 In Brady v. Kitiy-stoii, dccitled in coninion pleas general 
 term. JS. Y., .lune, 1889, there seems to have been no proof of 
 previous knowledge by the plaintiH' of the space between the car 
 and platfoi-m and the railroad ('om[)any seems to have permitted 
 the plaintiff" to be so pressed and crowded that she was unable to 
 examine the ]»athway. The court in sustainhig the finding of the 
 jury says tliat the weight of testimony did not conclusively show 
 that (h'feiulant was not guilty of negligence. The negligence was 
 vei-y satisfactorily proved by a numl»er of facts. There is first of 
 
 ^Ihinrahan v. Manhattan R. ('». ^\\ Hun, 4'20. 
 •^DnlxriH V. KiiKjxion, 102 N. Y. 219.
 
 IN KNTKKJMU TKAIN IN M(»iH». Il^'J 
 
 ;ill, flic fact that plaiiitifl' stopped into the space between the car 
 aixl the }>latt'i»rm. She t'ollowed cldselv tlie j)ers(>ii in tVoiit of 
 her. and was in Tniii cluselv picssed In- the person behind. UiKk^r 
 tliese (•ii-cunistan('e> the jnrv coidd infer she (b'd not intentionally 
 turn her foot so as to insert it into a small space, but that the 
 space was wi<le enonuh tor hei- to set her toot into it in the ordi- 
 nary manner of sti']»pinii' from a crowded train. Fni'thermore, 
 there was evidence as to tin' dilfeivnt widths of the platforms of 
 different kinds of cars, and also of the existence at some of the 
 stations of sjidinii' Ijridii'cs o])ei'ated l»y a ci'ank, to be used m clos- 
 iui; uj) the space l)etween platforms of the nari'ower cars and tlie 
 station platforms. There was abnn(hint evidence fi-oin which the 
 jury could have inferred that plaintiff stepped, without fault of 
 hei' own. into an open space which it was the defeniiaiit's duty to 
 have closed. 
 
 Where a ferryboat had come up closr to the bridge on the 
 New .Jersey side and lia<l hecn fastened bv the chains to tlie 
 bridii-e, and rlu' front cliMin> on the boat lia<l l>eeii let down and 
 tlie plaintiff' was in rhe act of steppiiiii' fi-oiii rhi' Ixtat to the shore, 
 in the imiii'e(li;ite rear of the other |)ass«Mii»'ers. and his foot was 
 caiiiiht i)crwecii the boat and the bridii't' and badly crushed, it was 
 held that under tlu' circunistaiice> he was not i>'niltv' of contribu- 
 tory iieiilii;«'Mce. tlie court sayiiiu' that it oiild not ignore the fact 
 of the pas.viiiii' crowiU continually night and day over the ferries, 
 and that after the guard chains are down the passengers rush from 
 the boat to the bi-idiic without i»iving a thought as of the condi- 
 tion of the bridge and boat, and if any cautious ])assenger should 
 wish to stoj> to exaiiiine he prol»abl\ would not be able to see his 
 feet from the [H'cssurt' of the crowd.' ' 
 
 § I li). In En tri'i II i> Trdiii in .Molion. 
 
 A car >liould be entered only fr.nn the platform,' and a pinident 
 exit should lie made.' A person who goes in the night-time, in •• 
 the midst of a caryar<l. and at a place where the railroad company 
 is not accustomed to recei\e passengers, and. witln»ut the knowl- 
 
 '.V«//,' Jersei/ R. (■<>. v. Ftdiaer. :i;{ N. J. 1.. 90. Sec SlotU v. Cxmheiiand Va(- 
 
 leu I''- Co. 1 Pa. Adv. Rep. 859. 
 ■VcDonald v. Chicar/o tfc .V. W. R. C. 36 Iowa, VU. 
 •Pennxylvania li. L'o. v. Zeba, 33 Pa. 31U.
 
 390 CONTRIBUTORY NEGLIGKNCE. 
 
 edge of those in charge of a freight train standing there, attempts 
 to enter tlie caboose attached to such freight train and is injured, 
 is guilty of contributory neghgence and cannot recover for such in- 
 jury.' A railroad company is not liable for injuries from the sudden 
 starting of its train, not at a station, but upon a side track where 
 it is awaiting the passage of another train, to one without a ticket 
 who alights from the latter and hastily attempts to get aboard the 
 former by the rear platform while no train employe is in sight." 
 One who unlawfully flagged a train at a point where the railroad 
 employes had no reason to expect a passenger, and ^\'ho was injured 
 by the sudden starting of the train while he was attempting to 
 get on without the employes knowledge, cannot recover against 
 the company, although the conductor collected from him the fare 
 due for a passenger after the train left the next station.' 
 
 Where a railway' passenger is directed by a uniformed servant 
 of the company to board the train at a particular place, his failure 
 to hear warnings of other parties that such place is not safe does 
 not constitute contributory negligence barring recovery for injur- 
 ies received by attempting to board at that place.* But if a 
 passenger elects to alight from a car at a place where there is no 
 platform, when, by passing through the car in front of him, he 
 could alight with safety on the platform, and he is injured by so 
 alighthig, he is guilty of negligence and camiot recover of the 
 railroad company.^ 
 
 AVhile it is the duty of a railroad company to stop its train at 
 a station to which it lias contracted to carry a passenger, and to 
 land him safely and C(»nveni(Mitly, yet the fact that the company 
 neglects its duty and the train passes the station without stopping- 
 does not justify a passenger in jnnij)ing from the moving train, 
 unless expressly or impliedly invited to do so by the employes of 
 the company." The failure of a railroad train to stop does not 
 justify a hazardous attempt by a passenger to alight, nor is it an 
 
 ^JlaoM V. Orcffon. R. & Nav. Co. 19 Or. 334. 
 
 ^Phih'iii V. Northern li. Co. of New .leraey, 63 Hun, 333. See Chaffee v. Old 
 
 Colony U. Co. (li. I.) Feb. 37, 1893. 
 ^Geonjia Pac. R. Co. v. Rohlnnoit, (58 Miss. (543. 
 *BnUimore & O. R. Co. v. Kane (Md.) June 13, 1889. 
 ■KcI.erd v. Chicaf/o & N. W. R. Co. 70 Iowa. 353. 
 "Walkn- V. VMsburf/, S. d- P. R. Co. 7 L. K. A. Ill, 41 La. Ann. 795, 41 
 
 Am. «fc Kug. I{. Cas. 172; Reihel v. Cincinnati, I. St. L. d; C. R. Co. 14 
 
 West. Itep. 331, 114 Ind. 47(5.
 
 IN ENTKKING TRAIN IX MOTION. 391 
 
 element to be considered in determining in any given case whether 
 such attempt was prudent or hazardous.' 
 
 It is negligence for a stranger to attempt to enter a car in a 
 running train, especially at a point not in near proximity to a sta- 
 tion or depot, and when all the surroundings are plainly seen, and 
 are forbidding in their character,'' So it is contributory negli- 
 gence to attempt to get upon a moving train, no matter what the 
 speed, in a place where a false step or misstep would possibly, if 
 not certainly, be serious.' The age, sex, and physical condition 
 of a passenger injured while attempting to alight from a moving 
 train are circumstances necessarily affecting her safety, and should 
 be considered by the jury in connection with all other circum- 
 stances in proof, in determining whether she acted prudently or 
 recklessly." 
 
 It has been held that it is negligence for a woman to alight from 
 a train in motion, however carefully she may attempt it.* But a 
 passenger on a railroad train has the right to assume that he will 
 be given reasonable opportunity to get oft" the train before it 
 starts, and his omission to retain hold upon the railing at the mo- 
 ment he is about to step from the car on to the platform of the 
 station is not a ground for imputing negligence to hira.° So pas- 
 sengers upon a street car have the right to assume that the car 
 will not be started after it has stopped to let ofE passengers, with- 
 out the driver's first using reasonable care and diligence to ascer- 
 tain whether any passenger is in the act of alighting, and« also 
 that the car will not be started in a .sudden and violent manner." 
 Ordinary care is required of a passenger in alighting from a 
 train and leaving the platform; and in the absence of such care no 
 recovery can be had for injuries sustained by falling over a raised 
 portion of the platform.^ A passenger who unnecessarily ste23.s 
 off a moving train in the dark without an invitation or assurance 
 by the railroad company that it is safe so to do, is negligent jper se. 
 
 ^Little Rock & Ft. S. R. Co. v. Tankersley, 54 Ark. 25. 
 ^Blair v. Grand Rapids &1. R. Co. 60 Mich. 124. 
 ^Hunter v. Cooperstown & S. V. R. Co. 12 L. R. A. 420, 126 N. Y. 18. 
 *Little Rock tfe Ft. S. R. Co. v. Tankersiey, 54 Ark. 25. 
 ^Cincinnati, 1. St. L. & C. R. Co. v. Dufrain, 36 111. App. 852. 
 ^McDonald v. Loitfj Island R. Co. 116 N. Y. 546. 
 ''Britton v. Grand Rapids St. R. Co. (Mich.) Feb. 5, 1892. 
 ^Graham v. Pennsylvania Co. 12 L. R. A. 293, 1.39 Pa. 149.
 
 Tlie act of a railroad brakoiiiaii in calliiii;, the name of a station 
 aud fastening open a car door is not an invitation to a passenger 
 to alight while the train is in nu»tion. iind the failure to give warn- 
 ing against alighting is not an excuse for doing so.' But an. 
 invitation to board a train while it is moving at a low rate of 
 speed implies an assurance that the speed will not be iiccelerated 
 until all persons ai'e aboard, and imposes the duty on the trainmen 
 not to increase the speed without knowing that no [tcrson is so 
 situated as to be imperiled therein.'' 
 
 A passenger on a street car is n<»t guilty of negligence contrib- 
 uting to injuries from the sudden staj'ting of the car while getting 
 olf, in failing to alight at once upon tlic cai- stop]«ng, or in wait- 
 ing to give precedence to a lady or others more infirm than him- 
 self.' A street car company is Jiabh' for injuries oc<tasioned by 
 the sudden and unexpccTcd starring of its car to a passenger who 
 in a careful and ))i'n(U'nt m.iiiner Mas attempting to cnrci- the car 
 upon the invitation of the conductoi", while it lia<l stoi)ped or wa> 
 moving very slowly in the act of stopinng in response to his sig- 
 nal for it to stop for him.* It is not excnscd from liability to a 
 passenger for injuries frctm the sndden stai-ting (»f its car while he 
 was alighting therefrom. l)y the fact that it was the ordinary and 
 usual way of the driver's conducting lii> business, to start his 
 horses suddenly and \io|(iirly with a \\lii[).' A passenger at- 
 tempting to l>oai"d a strei't car while it is in motion and while the 
 conductor is inside attending to his duties is bound to exercise a 
 reasonable degree of care; an<i the comj)any is not chargeable with 
 negligence because the car does not conu' to a full stop until such 
 jiassenger is seated.'' 
 
 A railroad company whose >ri'vants move a train before a pas- 
 seuiTcr thereon, who is entitled to leave at the stoi)ping place has 
 had a reasonable time to alight, and while he is in the act of leav- 
 ing the train, thereby gives him an implied imitation to alight 
 while it is mo\ing. aud a com])liance by him tliercwith is not^>-/* 
 
 ^England v. Jiostou <fe M. II. Co. 153 Mass. 490. 
 ' MonU/oniery d: E. R. Co. v. sieiourt, 91 Ala. 421. 
 •'Britton v. Grand Jlapidi S(. R Co. (Mich.) Feb. 5, 1892. 
 *Sahlgaard v. St. Paul City JL Co. (Minn.) Jan. 19, 1892. 
 ■Jiriitonv. (Inmd Rapids St. R. Co. (Mich.) Feb. 5. 1892. 
 *Picard V. Rilfie Ane. P.t.'ts. R Co. (Pa ) Jan, 25, 1892.
 
 IN KNTKKINir TKAIN IN MOTION. o93 
 
 .v«? iieiiliuence. unlesis speed or sonic other circmnstance makes it 
 iiianit'estly daui>erons.' A j>asseiiji;er told by the conductor that 
 lie would let hiiu off at a certain station to take a train in the 
 other direction, when hurriedly told l)y the conductor. "Be quick 
 and get off," without any warniuii; that he is not at the station 
 mentioned, it has been ruled, is not guilty of contributory negli- 
 gence in attempting to i-eacli a moving train only 7 or 8 feet 
 distant, although it is on a dai'k night and lit' has no liglit except 
 a dim lantern, and falls into an uncoxcrt-d waterway between the 
 ti'acks." 
 
 A railroad company is iial)le. whei'c one. ha\ ing the care of 
 stock in a freight eai-, attem[)ts to enter the eai- with the assurance 
 of the conductor that it is safe and that lie will have amj)le time 
 to do so. and is injured by the sudden niuxenieiit of the trsiin 
 while in the act of entering the car." 
 
 It is not contril»ntory negligence to obey directions of tlu' con- 
 ductor, unless obe<iience to sui-li directions exposes the passengei* 
 to an ol)vious risk which a jirudent man would not iiuMir.' But 
 the words ".luiiii> otf (piick, if you nvv. going to." ust-d l)v a con- 
 ductor to a ])assenger who had I'esolved to get off a train after it 
 had ))ulled out of a station, are not such an autlioritati\ e command 
 as would justify an action against the i-ailroad com[)any tor injur- 
 ies received by the passenger in jumping off the ti-ain mIiiIc in 
 motion." AVheii a |)ersoii is asked to alight, and is proceeding to 
 do so, he may rcjtsonalily assume it to be safe, unless liis senses 
 tell him plainly to tlie contrary." (V'l-tainly a passenger attempt- 
 ing to alight from a Jimving train after he has been wariu'd of the 
 danger of doing so, whether the warning pi-oceeds from an em- 
 ploye or from other imssengers, is guilty of such neiiligence as 
 wnll ])revent a recovery foi- injury receiveil in the attempt, hi.- 
 disregai'd of the wai-ning being at his own peril." An injurv 
 
 ^ /.ouixvUle & N. R. Co. v. f^ldcker, 86 T«iin. .'.4::}. 
 
 'Griffith V. Missouri Pac. R. Co. 98 Mo. 168. 
 
 'Ohon V. Si. Paul <t- D. C. B. Co. 4.5 Minn, r/dti. 
 
 ''Cincinnati, Id. <t 1. R. Co. v. Carper, 11 West. Itep. 321, 8S(> 112 Tnd 26 
 
 39; St. Louis, I. M. d; S. R. Co. v. Pcr-son, 49 Ark. 182. 
 ' Vimont v. Chicago d- JS'. W. R. G". 69 Iowa, 296. 
 '^Strand v. Chicaf/o tC W. .U. R. Co. 7 West. Rep. 470, 64 Mich. 216. Shutl 
 
 V. Cumberland Vallei/ /,'. Co. (Pa.) May 2'd, 1892. 
 ''Kilpatriek v. Pennsylmi<i,i, R. C". 140 Pa. r)02. See Cdderwood v Xorlh 
 
 Birminf/h'i/ii St. J!. Co. f.\la.) May 4. 1892.
 
 394 CONTUIBUTUKY NEGLIGENCE. 
 
 resultiDg from an attempt to ali<i;ht from a rapidly moving rail- 
 way train will in general afford no cause of action.' But it is 
 said that boarding a train moving slowly or at a place other than 
 the platform is not negligence ^>6/* «e, in the absence of prohibi- 
 tion against the same.* It is not negligence jjer se for a passen- 
 ger to attempt to get on a slowly moving train.' A passenger's 
 attempt to enter a moving street car is not negligence as matter 
 of law, irrespective of the rate of speed and other circumstances, 
 though it is presumptively negligent so to do where the car is 
 moving at ordinary or accelerated speed, — especially if the attempt 
 is made between cars or at the front end of a car.* But jumping 
 from a rapidly moving train, known to be so moving, where such 
 jumping is not invited or ordered by tlie agents of the railroad 
 company, or is not done to avoid some reasonably apparent threat- 
 ened pei-il, is such negligence on the part of the plaintiff as will 
 bar his recovery.^ Unless a train is moving very slowly and the 
 circumstances are especially favorable, it is prima facie negligence 
 for a passenger to attempt to alight or jump from a moving train, 
 A passenger in attempting to alight or jump from a moving train, 
 may be justified in a particular case in relying upon the superior 
 knowledge of the conductor as to the speed or movements of the 
 train and other circumstances, in following his directions particu- 
 larly wlien notified to act promptly to prevent being carried beyond 
 the station.^ 
 
 Where a person is killed or injured by attempting to jump 
 from a railroad train while it is crossing a public street, the neg- 
 
 hVcLaren v. Atlanta t6 W. P. R. Co. 85 Ga. 504. 
 
 ^Baltirnore & 0. 11. Co. v. Kane, 12 Cent. liep. 95, 69 Md. 11. 
 
 ^Murphy v. St. Louis, I. M. & S. B. Co. 43 Mo. App. 342. 
 
 *aahl(jaarcl v. St. Paxil City B. Co. (Minn.) Jan. 19, 1892. 
 
 ^Birmin(/ham, St. B. Co. (Ala.) May 4. 1892; Watson v. Georf/ia Pac. 
 R. Co. 81 Ga. 476: Savannah, F. d- W. R. Co. v. Watts, 82 Ga. 229; 
 Garrett V. Atlanta & W. P. B. Co. 83 Ga. 347; Galena <£• C. U. B. Co. v. 
 Tarwood, 15 111. 468; Morrison v. Erie R. Co. 56 N. Y. 302; Vickers v. 
 Atlanta <fe W. P. R. Co. 64 Ga. 306; Jefersonville B. Co. v. Hendricks, 26 
 Ind. 328; Cumberland Vallei/ B. Co. v." Mangans, 61 Md. 53; Lake Shore 
 & M. S. B. Co. V. Bangs, 47 Midi. 470; Terre Haute & L B. Co. v. Buck, 
 96 Ind. 346; Clotworthy v. Hannibal & St. J. R. Co. 80 Mo. 220; Gavett 
 V. Manchester <& L. B. Co. 16 Gray. 501 ; Galveston, H. & S. A. R. Co. v. 
 S7nith, 59 Tex. 406; Dougherty v. Chicago, B. & Q. R. Co. 86 III. 467. 
 
 *Jones V. Chicago, M. <fe St. P. B. Co. 42 Minn. 183, 41 Am. & Eng. R. Cas. 
 169.
 
 IN KNTKKING TKAIX IN MuTlON. 31^5 
 
 ligence of the railroad company in failing- to ring its locomotive 
 bell wliile crossing the street, as required by law, while it is clearly 
 negligence, does not contribute to the injury; and of such failure 
 plaintiff cannot complain; and such failure is therefore no cause 
 for a recovery by one so injured.' An attempt by a passenger 
 to alight at a street crossing while the train is in motion is such 
 negligence as will prevent a recovery, although the accident was 
 partly caused by a sudden jerk of the train in putting on steam." 
 No recovery can be had for the death of a passenger killed 
 while endeavoring to get aboard a moving train, though there was 
 a, hole in the platform from which he endeavored to board the 
 train." 
 
 A passenger who at night, upon finding that his train has passed 
 his station without stopping and is increasing its speed, voluntari- 
 ly jumps off while it is running 18 miles an hour, is guilty of neg- 
 ligence which will preclude a recovery from the railroad company 
 for his death, although it was guilty of negligence.* 
 
 A railroad company is not liable for an injury to a passenger 
 caused by his voluntarily attempting to alight from a moving- 
 train to avoid being carried beyond his destination, where the con- 
 ductor had agreed to stop, although it was not a regular station, 
 or from his own carelessness in getting off.^ A passenger who, 
 without looking or listening for approaching trains, leaves his 
 train voluntarily while it is in motion and before it is time to stop, 
 gets off and is run against by an engine following his train on a 
 parallel track, contributes directly to the injuries received by 
 him." 
 
 One who boards an elevated steam railway car in motion, by 
 getting on the sheet-iron covering of the steps of the last platform 
 of the train, and maintains himself in that position by holding to 
 the iron gate barring entrance until struck by a structure near the 
 track and knocked into the street below, is negligent as matter of 
 
 Wentral R. Co. v. Han-is, 76 Ga. 501. 
 '^PatersoH v. Central B. & B. Co. 85 Ga. 658. 
 ^Bacon v. Delaware, L. & W. B. Co. 143 Pa. 14. 
 ""Brown v. Chicago, M. & St. P. R. Co. 80 Wis. 162. 
 ^Barnett v. East Tennessee, V. <& G. B. Co. 87 Ga. 766. 
 *Dewald v. Kanms City, F. S. <& Q. R. Co. 44 Kan. 586.
 
 •'i^tJ coxiinm T(u:v m:(;li<7K,\c'K. 
 
 law.' A pfix'ii arr('n)]»tiiii>- t(» l>iinr(l a moxiii^- ti-aiii, wliicli had 
 stu])])e(l :ir rlu' stariou a iX'asf.naldc Iciio-rli of time, cannot i-ecovcj- 
 for iiijurit's rt'ceived. altlioiii^li lie held a ticket." A ]>asseiiuer can- 
 not recover for iiijurie.s received in aliuhtinu- fi-nni a train hecaiiseit 
 starti'd too ,>oon. if it liad stopjied a >uHicient leni>tli of time to 
 enable liim to aliii-Jit in safety and lie liad faile*! to use reasonable 
 diliijence to leaw tlie train. ° 
 
 Evidence tliat >ntlicient time Avas allowed the |)assen«ier to o-et 
 <tlf the fi-ain in safety; that he did not to do so, ])nt remained on 
 the train niitii it started upon its ciuirse, and then jum])ed nml 
 was injui'ed. — [>re>ents a cleai" casi^ of injury ai'isino- from his own 
 neglio-eiKH'. which will [)i*e\ent a i'ecover\-.* 
 
 A man >i\ry-H\e years of a<>-e who. on a cold, dark nii^ht, aftei' 
 waitini^ in the snow at a Ha*:; station and becoming- benumbed, 
 attempts, with a valise in oiu' hand, to board a moving train by 
 seizing the railiiig with the other. an<l upon missing hi.s foothold 
 is dragged 15(» yai-ds. during which time he holds on to the valise. 
 — is guilty of such conti'ibutory negligence as will prevent a recov- 
 ery against the cojnpany." Hut like all otlu-r rules declaring that 
 certain acts are prima facie negligent, the rule that it is negligence 
 in a passenger to jnmji from a m<»\ing ti-ain is sul>ject to excep- 
 tions, — as. when the passengei' is placed in ])eril by the default oi- 
 negligence of the company, or when he leaves the train while it 
 is in motion, by the diiH-ction of the company's agents." 
 
 One voluntarily and not to avoid sudden danger, jum|)ing from 
 a train of cais while in i-a)>id motion is negligent: but it is a ques- 
 tion for the jury whether the stepping from a moving car to th<' 
 >tation is negligence.' The fact that the plaintitl" had knoAvledge 
 at one time of a detect in a platform tlii-ouii'h which he afterwards 
 
 'V'trroUv. Interstate K'ljud Tranxit (Jo. (]M(j.) Dec. 7, 1S!»I. 
 
 '■' •Spannfif/k V. Chiciifjo d- A. Ji. <'<>. 31 111. App. 4()0. 
 
 •■■Texcui iSb P. H. Co. v. Miller, 11 L. H. A. :!{»5, ■;!) Tex. 78; Tdttle Rock <(• Ft. 
 
 S. li. Co. V. Tanlardey, 54 Ark. 25. 
 *Peiinnylrania It. Co. v. Lynix, 129 Pa. IK!; Little Rnrl- A- Ft. S. H. Co, v. 
 
 Tanker dey, 54 Ark. 25. 
 ' MrMurtray v. IjaimrHle, N. 0. «f- T. R. Co. 67 Miss. 601. 
 *l*eiirii<ylriiniii R. Co. v. lA/anx, 129 Pa. 118; Jackmn v. «sY. Ijouvf^ 1. M. &• S. 
 
 li. Co. 29 .Mo. App 495: JoroH v. Cliicm/o, M. & St. P. R. Co. 42 Minn. 
 
 1h;^, 41 Am. A Kng. H. ('as. 169. 
 '• 'J aider v. Uaniubal it- SI. .]. R. Co. 11 West. Hep. 458. 9:! Mo. 79, and 
 
 aiilhoritief? «'ile(J.
 
 IN KNTKKING TU'AIN IN Mn'llo.N. t>:.h 
 
 siiiiVrc'd iiijiii'v l»iit had foriiotfeii it at tlic time of iiijiirv docs not 
 estop liiiii.' In an action foi- nei>lii;-cnce on tlicj^rouiid tliat tlicdepot 
 platfonns were not pro|»ci-ly constructed, lii^lited or i^uarded, and 
 that th(! defendant was uuilty of neji'ligence in liackin*;- (h>wn the 
 engine without proper Jiglits or signals, where contrihutory negli- 
 gence on the j)art of the plaintift" is alleged, it is appropriately the 
 province of tlie jury to settle the issues." Evideiu-e that a boy 
 injui'ed I>y a ti-aiTi on account of a defect in the platform was in 
 the Jiahit of e\|»o>iMg himself to dangei- is iiicompetent, where the 
 proof is that on tiie occasion in ([uestion lie had accompanied a 
 passeuger to the train, and had the riglit to be on the platform at 
 the time lie was injured.' 
 
 An attempt by a pregnant woman to enter a car at a regular 
 stopping place, where the distance from the lower step to the 
 ground was from iJo to ;!t. inches, is not such eontributoi-y negli- 
 gence as will defeat a i-i-covery for injuries thereby sustained, 
 where no other facilities wei'e furnished at that stopping j)lace for 
 getting upon the cars.' Where one whose physical ctindition 
 exposes her peculiarly to >|)ecial injury, suffeiw such injury by reason 
 of the failuT'e of a i-aili-oad eonipany to pi'ovide a ))roper |»lacefrom 
 M-hich she could alight from the cai-s. she haiving attempted t(.) do 
 .>o at the place designated by the conductor, the (pu'stidn is for 
 the jury whether she exercist'd |)roper pi-udence; as is also the 
 <^piestion whether it was prudent to attempt a furthei- journey to 
 ivach her home rather than to i-eniain at the station and secure 
 proper attendance." It is not [jir xe negligent for a womati in a 
 delicate condition to travel on the cars." Where a woman .5 or <> 
 months in pregnancy, was told to jump from a car step by a con- 
 ductor who had m)t stopped at the j»latform, and with a young 
 child in her arms she jumped three feet to the track, the ground 
 
 ^ Henry iJouuty Twp. v. Jackxou, y(j Ind. Ill; MurpJiy v. India ruipoUs, ^'A 
 
 Ind. 76; Huniimjton v. Jinen, 77 Ind. 29: White v. Fiafier, 77 Ind. 65. 
 
 But see Uuddlexton v. Lmoell Machine Shop, 106 .Mass. 28'2; Priestly v. 
 
 Folder, 3 Mees. »fc W. 1. 
 ^Oaynor v. Old Colony d; N. B. Co. 100 Mass. 215; Patten v. Chicago d- JS'. 
 
 W. P. Go. 32 Wis. 524; Staffoi-^ v. Hannibal tfc St. J. P. Co. 4 West. 
 
 Rep. 790, 22 Mo. App. 338. 
 ^Louisville cfc- A. P. Co. v. Berry, lU Ky. L. Rep. 7{tl. 
 *Mmouti Pac. P. Co. v. Watson, 72 Tex. 631. 
 ■Gem'gia P. tfe Bky. Co. v. Usry, 82 Ga. 54. 
 ^Reading City Pans. P. Co. v. Eckert (Pa.) 2 Cent. Hep. 791.
 
 398 . CONTRIBUTORY NEGLIGENCE. 
 
 being more than a foot lower, and she was injured, the carrier 
 was held liable.' 
 
 The question of the contributory negligence of a passenger in 
 getting off a train which has gone some distance past the depot 
 before stopping, where the place is a bad one to alight, is for the 
 jury." Where a person having business in a railroad depot passed 
 out in the usual way, and was struck between the walls of the 
 depot and the passenger platform on the other side of the tracks, 
 by a train which was shut from his view by a cart on the side- 
 walk, and which he did not hear although he listened for it, and 
 there was evidence that the noise was heard about the place of 
 exit, while there is other testimony to show that he ran from the 
 depot carelessly, — the question of his contributory negligence is 
 for the jury.' 
 
 § 120. Passing hetiveen Cars in Motion. 
 
 Passengers going from one car to another of a rapidly moving 
 train, take the risk of all accidents not arising from the negligence 
 of the company. In Massachusetts it was said that "In going 
 from one car to another of a rapidly moving train merely for his 
 own convenience, the plaintiff took upon himself the risk of all 
 accidents not arising from any negligence of the defendant.* 
 
 It is not an act of negligence for a passenger to pass from one 
 car to another of a railroad train while it is in motion, but he 
 assumes the risk incident to such undertaking from ordinary 
 causes, yet it cannot be held that he takes the risks of a collision 
 with a locomotive engine or another train. He could not foresee 
 that such a collision was likely to happen, and his going upon the 
 platform of a car would not tend in any degree to bring about 
 .such a collision; and if a collision were to occur, it is difficult to 
 ^ay that a position on the platform would be more dangerous than 
 one inside the car. 
 
 A railroad company is liable for the death of a passenger killed 
 by tiie breaking of a coupling wiiile he was passing from one car 
 
 'Baltimore <fc 0. R. Go. v. Leapley, 4 Cent. Rep. 2.'53, 65 Md. 571. See East 
 
 Line & It. li. It. Co. V. Itmhing, 69 Tex. 306. 
 ^Foss V. BoHlon c£ .F. R. Go. (N. H.) 11 L. R. A. 367. 
 ^fones V. EitHt Tennessee, V. & O. R. Go. 128 U. S. 443, 32 L. ed. 478. 
 *Sh:r„rt V. Boston <fe P. R. Gorp. 6 New Eng. Rep. 273, 146 Mass. 605.
 
 POSITION OF PASSENGER IN CAR. 399 
 
 to another of its train, as lie had a riglit to assume tliat the coup- 
 lings and appliances were in a safe and proper condition.' 
 
 Passengers have the right to assume, in the absence of any 
 warning or evidence to the contrary, that oue passenger car is a& 
 safe as another; and if there is no regulation of the company for- 
 bidding it, it must be that passengers have the right to go from 
 one car to another M'hile the train is in motion when their con- 
 venience requires it, and subject to the risks which arc incident 
 to such a proceeding. A passenger on a railroad' train, who, in 
 passing from one car to another without necessity, and without 
 looking to see where he is stepping, places his foot on the buffers 
 between the cars and is injured, is guilty of such negligence 
 as will prevent his recovery/ When his conduct does not con- 
 tribute itself to an injury from such collision, he may recover for 
 any injury sustained by the negligence of the railroad company.* 
 A remark by a conductor to a passenger on the wrong train, that 
 by taking the rear car he could get off at the station beyond and 
 then return to his destination, is not such a direction to pass from 
 one ear to another as justifies the passenger in so doing at the 
 risk of the carrier." 
 
 % 121. Position of Passenger in Car. 
 The fact that a passenger took an exposed position in a railroad 
 car or coach which would be more dangerous in case of collision, 
 is not contributory negligence on his part. The position of the 
 passenger on the car has nothing whatever to do with the ques- 
 tion of the carrier's liability for neglect of duty to liim,^ even if he 
 was in that particular place intended for passengers, in the car, 
 against the regulations of the carrier which were known to him.'^ 
 But a passenger who, without the carrier's consent, selects a place 
 
 ^CostiTcvo/n V. Rome,W. & 0. R. Co. 58 Hun, 590. See Shxitt v. Cumberland 
 
 Vally R. Co. (Pa.) May 28, 1892. 
 '^Snowden v. Boston tfe M. R. Co. 151 Mass. 220, citing Ghafee v. Boston dk L. 
 
 R. Corp. 104 Mass. 108; Wlteehcnrjht v. Boi^tou & A. R. Co. 135 Mass. 225; 
 
 Bewire v. Boston & M. R. Co. 2 L. R. A. 166. and note, 148 Mass. 348. 
 ^Bewire v. Boston c6 M. R. Co. 2 L. R. A. 166, 148 Mass. 343. 
 ^Stewart v. Boston & A. R. Corp. 6 New Eng. Rep. 273, 146 Mass. 605. 
 '■Creeds. Pennsylvania R. Co. 86 Pa. 139; Wdlis v. Long Island R. Co. 32 
 
 Barb. 398, 34 N. Y. 670; Rounds v. Belaicare, L. & W. R. Co. 64 N. 
 
 Y. 129. 
 ''Jacobus V. St. Paul <& G. R. Co. 20 Minn. 125; Williams v. New York & H. 
 
 R. Co. referred to in Colegrove v. Harlem & N. H. R. Co. 6 Duer. 434.
 
 400 CONTlilULTUKV JVHXil.IOKNCK. 
 
 TO ride in which is obvioiish- not intended f<»r that purpose, and 
 receives injuries directly traceable to hazards peculiar to that 
 position, cannot recover." If the place a passenger occupies is 
 provided for passengers, the travc'ler may recover, even if lie knew 
 that his position was inure dangerous in case of a sinasli-up, than 
 a seat on another part of the car.* The passenger owes no duty 
 to the railroad company to select for himself the safer seat, for it 
 is the duty of the company to make all seats safe," and the essential 
 element, of negligence in such a case is a disregard of some risk 
 which the deceased ought to anticipate.'' A cabin passenger on 
 board a passenger vessel is entitled to access to any part of the 
 sliip suitable for passengers, and it cannot be said as a matter of 
 law that lie is supjjosed or required to know or observe any 
 danger on account of a hawser un the hurricane deck, nsed to 
 warp the vessel around to a dock.^ 
 
 The relative safet}' of cars of a train must depend, not alone 
 upon the places they occupy Avitli respect to the engine, but in 
 part npon the dangers to be encountered. In case of a front end 
 collision with a broken bridge, the safest cai- might be the one 
 furthest from the engine; ^vhile in case of a defective rf»adbed 
 which is made more dangerous by each passing car, the safest car 
 might be the one next the engine. It is therefore a question for 
 the jury to determine from all the evidence submitted in a given 
 case, whether or not the plain titf contributed to his injury by the 
 position he assumed npon a wrecking train. ° It is not negligence 
 for a passenger in an elevated railway car to go towards a door held 
 open by a trainman on approaching the station." 
 
 AVhere a passenger is in his proper place in the car, and makes 
 no exposure of his person to danger, there can be no question of 
 contriI)ut<»rv lU'gligence in the case of an injury by the fall of a 
 
 ^CairoU V. Tnierxfale Bapid Traiml Co. (Mo.) Dec. 7, IS'Jl. 
 
 ■ Carroll V. New York it N. H. N. Co. 1 Duer, 571. Aftinned in Court of 
 
 Appeals, 6 Duer, 415. 
 ■■ Willhs V. Lony Mand 1{. Co. M N. Y. 670. 
 'Terry v. Jewett, 17 Hun. 400, pn J. C. Smith, ./.; attirrued 78 N. Y. 345; 
 
 Oray v. Bell, 3 IJicb. L. 67. 
 Milkr V. Ocean HS. Co. 118 N. Y. IJHt. 
 
 • Meloy V. Chirago & N. W. U. Co. 4 L. !{. A. 287, 77 Iowa, 74:i. 
 ^ColweUy. Manhattan li. Cn. 57 Hun. 452.
 
 POSITION OF PASSENGER IN CAR. 401 
 
 railroad bridge.' For a postal clerk to ride in a mail car while off 
 •duty, in the absence of any rule of the railroad company forbidding 
 him to do so, is not contributory negligence which will prevent re- 
 covery for injury by a collision of trains." A passenger does not 
 forfeit his right to care on the part of the carrier by unnecessarily 
 assuming a position which he knows to be unsafe, but merely as- 
 sumes the risks ordinarily incident to such position.' A woman is 
 not, as matter of law, guilty of negligence in standing in the aisle of 
 a street car, where other passengers are permitted by the company 
 to stand in the usual manner of occupying the car after the seats 
 •are filled.* But the conditions not being the same, it has been 
 held that a passenger who, after getting on an elevated railway 
 train, instead of sitting down, remains on her feet leisurely look- 
 ing around until the train suddenly starts and throws her down, is 
 guilty of such contributory negligence as will prevent a recovery. 
 Merely starting an elevated railway train with a jerk will not ren- 
 der the company liable to a passenger thrown down and injured 
 thereby under such circumstances, where it was inevitable in start- 
 ing the train and did not disturb any other passenger.* Whether 
 a street car company was guilty of negligence in carrying so many, 
 passengers upon its car that they could not all stand therein, and 
 both platforms and steps were filled without any attempt of the 
 •driver or conductor to prevent the car being overloaded, and 
 whether such negligence caused injuries to one standing within 
 the car who was hurt when the car left the track by other pas- 
 sengers falling against her, — are questions for the jury.' So it is 
 said it was negligence in a passenger to leave his seat while the 
 train was slowing up after a station had been called, but before 
 reaching it, if by remaining in his seat until the car stopped he 
 would have escaped injury.'' A street railway company is not 
 bound to so construct its track that it wiU be impossible for a pas- 
 
 ^LouisvUle, N. A. <fc G. B. Co. v. Snider, 3 L. R. A. 434, 117 Ind. 435. 
 ^Baltimore & 0. B. Go. v. State, 6 L. R. A. 706, 72 Md. 36, 41 Am. & Eng. 
 
 R. Cas. 126; GarroU v. New York & N. H. B. Go. 1 Duer, 571. 
 ^WiUrmtv. Corrigan Gonsol. St. B. Go. 106 Mo. 535. 
 ^Griffith V. Utica & M. B. Go. 43 N. Y. 8. R. 835. 
 '^DeSoucey v. Manhattan B. Go. (C. P.) 39 N. Y. S. R. 79. 
 ^Griffith V. Utica <& M. B. Go. 43 K Y. S. R. 835. 
 ^Dunn V, Pennsylvania B. Go. (Pa. C. P.) 47 Phila. Leg. lat. 524 
 26
 
 402 CONTRIBUTORY NEGLIGEiS'CE. 
 
 senger standing on the outside of an open car to reach or be struck 
 by a car on a parallel track.' One injured by coming in contact 
 with a post near the track, while he was hanging on the platform 
 of a dummy car, when he knew of the post and might have gone 
 inside the car, is guilty of such contributory negligence as will 
 prevent a recovery.* 
 
 § 122. Exposing the Person Without the Car. 
 
 It is for the public interest that travelers shall be enabled to 
 pass safely over a road o]3erated for public use and without dan- 
 ger from accident resulting from the close proximity of passing- 
 trains. And where a railroad company permits its tracks to sa 
 closely run by the side of another road or of another track of its 
 own road, as to endanger the safety of passengers by swinging 
 doors on passing cars or the like, it will be answerable for negli- 
 gence, if the passengers keep themselves within the line of the 
 car. In many cases there must be reasonable evidence of negli- 
 gence on the part of the railroad company; but when the thing- 
 causing the accident is shown to be under the control of the com- 
 pany, and the accident is such as in the ordinary course of busi- 
 ness does not happen, if reasonable care is used by the company, 
 it will, in the absence of explanation by the latter, afford sufficient 
 evidence that the accident arose from want of care on its part. 
 
 Where passengers arms or elbows project beyond the line of the 
 car, the question whether they are guilty of negligence contribut- 
 ing to the injury will usually be one for a jury under all the cir- 
 cumstances of the case, and it has been said the court should not 
 instruct that it is jDriraa facie negligence." In a case where 
 contril)utory negligence was urged as a defense and the plaintiff 
 Nvas at the time of the injury sitting by a window, his arm 
 i-esting upon its sill ; and whether it protruded beyond the sill 
 and beyond the car was a question upon the trial, and was given 
 to the jury with instructions to find a verdict for the defendant, 
 if that question was answered by them in the affirmative, their 
 ^ erdict in favor of the plaintiff shows that in their opinion the 
 
 ^Graighead v. Brooklyn City B. Oo. 123 N. Y. 391. 
 ^Aikiri, V. Frankjord d; S. P. G. P. B. Go. 142 Pa. 47. 
 *Quinn v. South Carolina B. Co. 1 L. R. A. 682, 29 S. C. 881.
 
 EXPOSING THE PERSON WITHOUT THE CAR. 403 
 
 plaintiff's arm was wholly witliia the car. There was evidence to 
 that effect. The plaintiff says in one hand he had a paper, in the 
 other a ci^^ar. His arm rested on the window sill; the window 
 was raised, but " could have fallen down without touching my 
 arm. At that moment a freight train was passing by and some- 
 thing on the freight train struck my arm and smashed it." The 
 conductor came in and said : " He was on the next car and he 
 thought there was some accident, when the lever to stop the train 
 was pulled by the brakeman." A witness who sat by plaintiff" 
 said, " I think if the window had come down it would not have 
 iiit his arm." " Just the end of the arm rested on the sill." Just 
 before hitting the passenger train it was shown that " there was a 
 door swinging from a car just as quick as a i^igeon, up and down." 
 This was on the side of the freight car, opposite the side of the 
 car at which plaintiff" sat. The evidence tended to prove that 
 this swinging door caused the injury. There was evidence that 
 the door or some other hard substance from the freight car was 
 doing harm, as the car in which the plaintiff sat was scratched 
 and bruised upon the outside; it was indented inside on the win- 
 dow casing, by which he sat, and other cars in the train showed 
 the result of the collision by glass broken from the window and 
 manifest abrasions and bruises upon the sides. It was held that 
 as the freight car was in a bad condition from the failure of the 
 defendant to keep it in repair, it was but just that it should be 
 held accountable for a negligence which has been followed by 
 such an accident.' 
 
 The unsettled question whether or not riding with the arm out- 
 side the car window was such contributory negligence as to pre- 
 vent recovery was decided in the negative in a case not involving 
 the duty of the carrier and passenger, by the 'New York Court of 
 Appeals.* The court held that whether or not it is negligence in 
 a passenger in a street car to allow his arm to extend outside of 
 the window of a car, is a question to be determined from the facts 
 in each case; there is no general rule which declares that it is or 
 is not negligence. The court said : "We are satisfied that a 
 
 ^Breene v. Mw York Cent. & H. E. B. Co. 11 Cent. Rep. 891, 109 N. Y. 
 
 297. See Fa) low v. Kelh/, 11 Am. & Eng. R. Cas. 104. 
 ''Francis v. A'ew York Steam Co. 114 N. Y. 380.
 
 4Udt CONTEIBUTOfiY NEGLIGENCE. 
 
 ojeneral rule, applicable to all cases, can not be laid down, and that 
 whether the question is one of law, or fact, must be determined 
 by the circumstances of each case. Street railroads are operated 
 under circumstances w'idely different, some in the crowded thor- 
 oughfares of large cities, others in streets little used in suburban 
 districts and in villages. Conduct which would be declared neg- 
 ligent, as a matter of law, in one case, might not be so in another. 
 This conclusion led to the consideration of the question as to 
 whether the evidence in the case pending was such as to require 
 the court to rule, as a matter of law, that if the plaintiff's arm 
 was partly out of the window when injured he negligently con- 
 tributed to the accident and could not recover. The accident 
 occurred in the summer when the windows of street cars are usu- 
 ally open, as the windows of this car were on this occasion. 
 There were but nine or ten passengers in the car. The plaintiff 
 sat in a seat with his right arm lying on the window sill, wholly 
 within the car, he testified, but partly without, as the conductor 
 and driver testified, but they do not attempt to say how far his 
 arm extended beyond the outside of the car. The evidence does 
 not disclose that there was anything in the condition of the street 
 or that there were any circumstances which should have caused the 
 plaintiff to have anticipated danger. Two of the defendant's wit- 
 nesses, the conductor and the driver of this car, gave the plaintiff 
 no warning; and the conductor testified that though he saw the 
 plaintiff's arm was out of the window, he did not know that he 
 was in danger. This was not an action by a passenger against his 
 carrier, between whom contractual relations exist, and out of 
 which reciprocal duties arise; but it was an action against a de- 
 fendant having a right to a hmited use of the street, and required 
 to exercise its right so as not to unnecessarily endanger travelers. 
 The court was of opinion that the evidence contained in the rec- 
 ord would not have justified the court in charging, as a matter of 
 law, that if the plaintiff's arm projected through the window and 
 beyond the outer edge of the car, he could not recover." In one 
 case it was held that it was a question for the jury to determine 
 whether tlic plaintiff's elbow was inside or outside the window.' 
 If outside, it was a circumstance from which they might infer 
 negligence, and if the jury found for tlie plaintiff it would not be 
 ^Ilolbrook V. Utica & S. R. Co. 16 Barb. 113, 12 N. Y. 244.
 
 TKAVELING ON OTHER THAN PASSENGER CARS. 405 
 
 set aside. But in another case,' the instruction to the jury that 
 if the plaintiff put his arm outside of the window he could not 
 recover, otherwise if while resting on the sill it was forced out by a 
 sudden lurch of the car, was not questioned. ' 
 
 But if a passenger on a railroad train ride with his elbow on the 
 sill of an open window he is not guilty of contributory negligence 
 such as will destroy his right to recover damages when, by a col- 
 lision, his arm is jarred outside of the car and broken.^ 
 
 A passenger riding with his elbow slightly projecting out of a 
 car window if not thereby precluded from recovering for an injury 
 to his hand and wrist, which were inside the car, from a stick of 
 wood coming in through the open window, unless the fact that 
 his elbow was out of the window contributed to the injury/ 
 
 In the best considered cases in Missouri, Alabama, Indiana, 
 Kentucky, Maryland, Massachusetts, Pennsylvania and West Yir- 
 ginia it is held that it is negligence as a matter of law to ride 
 with the arm extending out of the window.* 
 
 In some other states it has been held that whether such conduct 
 is contributory negligence is a question of fact." 
 
 A distinction of questionable soundness between steam and 
 street cars has been made, and it was held that as to street cars 
 such question was one of fact for the jury in view of all the cir. 
 cumstances.* 
 
 § 128. Ti'aveling on Other than Passenger Cars. 
 
 Regardless of the rules of a railroad company, the baggage car 
 of a passenger train is an improper place for a passenger to ride, 
 
 ^Dale V. Delaware, L. & W. R. Co. 73 N. T. 468. 
 
 ^The same ruline: substantially is found in Hallahan v. New York, L. E. & 
 W. R. Co. 102 N. Y. 194. 
 
 ^Farlow v. Kelly, 108 U. S. 288, 27 L. ed. 726. 
 
 *Moakler v. Portland & W. V. R. Co. 6 L. R. A. 656, 18 Or. 189. 
 
 ^Todd V. Old Colony & F. R. R. Co. 3 Allen, 18, 7 Allen, 207: Plttshiirg & C. 
 R. Co. V. McClurg, 56 Pa. 294; Favre v. Louisville & N. R. Co. (Ky.) 13 
 Ky. L. Rep. 116; Georgia Pac. R. Co. v. Underwood. 90 Ala. A^; Pittsburg 
 & C. R. Co. V. Andrews, 39 Md. 329; TndianajJoUs & C. R. Co. v. Ruther- 
 ford, 29 Ind. 82; Morel v. Mississippi Valley L. Ins. Co. 4 Biisli, 535; Louis- 
 ville & N. R. Go. V. Sickings, 5 Bush, 1; Carrico v. West Virginia C. & P. 
 R. Co. 35 W. Va. 389. 
 
 •2 Wood, Ry. Law, § 1103. Spenar v. R. Co. 17 Wis. 487; R. Co. v. Pon- 
 drom, 51 111. 333. 
 
 ''Dahlberg v. Minnesota St. R. Co. 32 Minn. 404 and Summers v. Crescent City 
 R. Co. 34 La. Ann. 139.
 
 406 CONTBIBUTOKY NEGLIGENCE. 
 
 unless under the circumstances it appears that he is riding there 
 by the permission of the conductor for the benefit of the com- 
 pany.' In violation of rules it is negligence.' And tiiis is so as 
 to freight trains.' But the fact that a passenger on a railroad is, 
 when injured, in a baggage car, in which by the rules of the com- 
 pany, passengers are not permitted to be, is not negligence on his 
 part that will defeat his recovery, unless it contributed to or 
 aggravated the injury. A rule prohibiting passengers being in 
 its baggage cars does not absolve the carrier from the duty of care 
 towards passengers who are in a baggage car, if it habitually dis- 
 regards the rule and permits passengers to ride in such cars.* 
 
 A person getting on a switch engine engaged in switching cars 
 in a railroad yard, on the invitation of the brakeman, who had no 
 authority to invite or otherwise receive him on the engine, is not 
 entitled to recover for injuries received in consequence of the 
 engine's jumping the track.* 
 
 To entitle a boy injured while riding on the footboard of an 
 engine to recover against the company the engineer must liav.e 
 been guilty of gross negligence and the boy free from contribu- 
 tory negligence.* A messenger ordering freight cars, who for 
 his own convenience, and upon invitation of the conductor, gets 
 on board a freight locomotive, takes upon himself the risks, 
 although he had previously ridden in the same way, and has seen 
 the local freight agent and conductor ride on the locomotive.'' 
 
 Taking an improvised seat made by a plank across empty kegs 
 on a flat car next to the engine upon a special train, and remain- 
 ing there after a request by the conductor to go into the box car. 
 to Avhich the passenger replies that he wants to ride on the flat 
 car and see the country, on which the conductor says nothing- 
 more, is not such negligence as a matter of law as will prevent 
 recovery for the death of the passenger in consequence of the 
 derailment of the train caused by negligence in its management, 
 
 ^Leldgh Valley E. Go. v. Qrciner, 4 Cent. Rep. 901. 113 Pa. 600. 
 
 "^Creed v. Pennsylvania E. Co. 86 Pa. 139; Pennsylvania R. Co. v. Lanr/don, 
 
 'dZ Pa. 21. 
 ^Murch V. Concord E. Corp. 29 N. H. 9. 
 *JoneH V. Chicwjo, St. P. M. tfe 0. E. Co. 43 Minn. 279. 
 ''Slrinfjer v. Mixaouri Pac. E. Co. 96 Mo. 299. 
 "l/iighesv. Detroit, O. II. & M. E. Co. 78 Mich. 399. 
 ^ Files V. liMon d; A. R. Co. 149 Mass. 204.
 
 TKAVKLING ON OTHKK THAN PASSENGER CARS. 40T 
 
 filtliougli if the passenger had been inside tlie box car he might 
 not have been killed. But it is a question for the jury whether 
 an ordinarily prudent man could have reasonably anticipated that 
 by taking that position he was exposing himself to the injury 
 received, and also whether the conductor consented to his remain- 
 ing there; and if so, whether the train was managed with the care 
 and caution commensurate with the passenger's risk in that situa- 
 tion, and whether his injury was or was not the direct and imme- 
 diate result of the company's failure to discharge that duty.' A 
 railroad company is not liable for the death of a passenger on an 
 excursion train who seats himself upon a board not exceeding 2^ 
 inches in thickness, and constituting the rear end of an open box 
 car, in a position from which he must be thrown in case of a sud- 
 den jolt or jar, when he could have stood up in the car or found 
 -room in another car.* A passenger on a freight train who sits 
 upon an unguarded projection upon the toj) of the caboose, with 
 his face turned in an opj)Osite direction from where he knows cars 
 are liable to be attached with concussion and jar, is guilty of such 
 -contributory negligence as to defeat his recovery for injuries 
 caused by such jar.' In an action by the personal representative 
 of an employe of a theatrical company, killed while riding in a 
 scenery car over defendant's road, proof that it was the duty of 
 the deceased to look after the scenery, together with proof that 
 he had a regular passenger's ticket, and that he was told by the 
 conductor that he must not ride in the car as it was against the 
 rules, but that he replied that he would not go into the passenger 
 •car as he had to get up at 2.30 a. m., and that he remained in the 
 scenery car, where he was killed, without other proof of the con- 
 tract for his carriage, — is not sufficient to show his right to ride 
 in the scenery car, either by contract with the company or by the 
 conductor's consent; and hence the presumption of contributory 
 negligence arising from his riding in that car contrary to the rule 
 prevails and will prevent a recovery." 
 
 Where a shipper of stock on a freight train voluntarily went on. 
 
 ' Wagner v. Missouri Pac. R. Co. 3 L. R. A. 156, 97 Mo. 512. 
 ^Jackfon v. CriUy, 16 Colo. 103. 
 ^Tuley V. Chicago, B. & Q. R. Co. 41 Mo. App. 433. 
 ''Blake V. Burlington, C. R. & N. R. Co. 78 Iowa, 57.
 
 408 CONTKIBUTOBY NEGLIGENCE. 
 
 top of the train in obedience to an order or direction of the con- 
 ductor to help signal, and, while watching a brakeman trying to- 
 make a coupling, was severely injured by a sudden forward motion 
 or jerk of the train, no recovery can be had against the railroad 
 company for his injuries, as he voluntarily placed himself in a 
 position of known danger.* A shipper of cattle, who, having 
 previously passed over the road, knows how and what to do on 
 arriving at a station, but, instead of adopting the course which 
 his previous experience and judgment would indicate as the cor- 
 rect one, on a dark, rainy night, when the cars are wet and 
 sHppery and in motion, attempts to mount upon the top of a car,, 
 with his overcoat on and a clumsy satchel in one hand, — is guilty 
 of such contributory negligence as will debar a recovery for an- 
 injury caused by his falling.' 
 
 A person traveling on a train which has with it a stock car car- 
 rying horses for him, his duty under his contract being "to feed,, 
 water, and take care of the horses," is not guilty of contributory 
 negligence because he was on said car when he was injured, if he 
 was on the car while stopped at a station, in the jDerformance of 
 this duty, and had not finished when the train started off, after a 
 stoppage of fifteen or twenty minutes, instead of forty -five, — the 
 usual time, — and if it is not shown that he had opportunity, be- 
 fore the accident, to go to any other car.' 
 
 "Where a shipper of stock on going into stockyards with five or 
 six other persons rides on the front of the engine, all of whom, 
 except him, seeing a backing train on the same track, jump off^ 
 and thus escape injury but he does not and is killed by a collision 
 of the trains, the question of negligence arising on his failure to- 
 jump off and save himself, is a question of fact which should be 
 submitted to the jury under proper instructions.* 
 
 § 124. On Platform of Car, 
 
 It is the duty of a passenger to go inside the car when request- 
 ed to do 80 by the conductor, although there may be no unoccu- 
 
 ^Atchison, T. & 8. F. R. Co. v. Lindley, 6 L. R. A. 646, 42 Kan. 714. 
 ^Richmond & D. R. Co. v. Pickleseimer (Va.) 13 Va. L. J. 640. 
 *Fion(la R. & Nut. Co. v. Webster, 25 Fla. 394. 
 *Wabaiih, St. L. & P. R. Co. v. Shacklet, 105 111. 304.
 
 ON I'LATFOKM OF OAK. 4Ul) 
 
 pied seats,' But when no such request is made and the notice 
 required by statute in many of the states is not given, it is not 
 ne^fifligence per se for a passenger to ride on the front platform of 
 a moving car." Especially where the car is crowded.' But a pas- 
 senger on a railroad train who goes on the platform of a car in 
 violation of a posted regulation warning passengers not to do so, 
 and is thrown off by the starting of the train while he is standing 
 without holding to the railing, cannot recover against the companj-/ 
 
 A passenger jarred from a caboose platform by concussion in 
 switching, when there was no necessity of his leaving his seat 
 within to stand upon the platform, is guilty of contributory neg- 
 ligence,' 
 
 A passenger on a railroad train who stands upon the platform 
 while the car is in motion, in violation of a regulation known to 
 him, does so at his own peril,' 
 
 Where mider reasonable apprehension of collision the pas- 
 senger is injured while on the platform, in an effort to escape, the 
 carrier can not take advantage of the fact, if its own negligence 
 contributed to the danger,'' A passenger under certain circum- 
 stances may regard a platform as a safe place for him; and one 
 rightfully standing on the platform having just arrived in the 
 depot from another train, may recover for injuries caused by 
 being struck by a car projecting over the platform,* 
 
 A passenger is not guilty of negligence in riding upon the step 
 
 ^Oraville v. Manhattan B. Co. 7 Cent. Rep. 772, 105 K Y. 525; Hibbard v. 
 Mw York & Erie R. Co. 15 N. Y. 463; Alabama G. 8. R. Co. v. Hawk, 
 72 Ala. 112; Clark v. EiqMh Am. R. Co. 3(5 N. Y. 135; Putnam v. Broad- 
 way & 8. Ave. R. Co. 55 N. Y. 108; Wills v. Lynn & B. R. Co. 129 Mass. 
 351. 
 
 *CoUgrove v. Neio York <6 K H. R. Co. 6 Duer, 382, 20 N. Y, 492; Nolan v. 
 Brooklyn City & N. R. Co. 87 N. Y. 63; Covington Transfer Co. v. Kelley, 
 36 Ohio St. 86. 
 
 ^Werle v. Long Island R. Co. 98 N. Y. 650; Germantown Pass. R. Co. v. Wal- 
 ling, 97 Pa. 55; Thirteenth & F. St. Pass. R. Co. v. Boudrou, 92 Pa. 475. 
 
 *Mahom v. Ric7im/)nd & D. R. Co. 106 N. C. 63; Louismlle & N. R. Co. v. 
 Bisch. 120 Ind. 549, 41 Am. & Eng. R. Cas. 89. 
 
 *8motherman v. St. Louis, 1. M. & 8. R. Co. 29 Mo. App. 265. 
 
 *McCauley v. Tennessee Coal & I. R. Co. 93 Ala. 356. 
 
 ''Buel V. New York Cent. R. Co. 31 N. Y, 313; Wilson v. Northern Pac. R. Co- 
 26 Minn. 278; South Western R. Co. v. Paulk, 24 Ga. 356; Oliver v. La 
 Valle. 36 Wis. 592. 
 
 'Arclier v. New York, N. H. & H. R. Co. 9 Cent. Rep. 233, 106 N. Y. 589.
 
 410 CONTRIBUTOKY NEGLIGENCE. 
 
 of a street car while it is in motion; while waiting for it to come 
 to a stop after he has signaled the driver so to do.' 
 
 A railroad company is liable to a passenger who, on being told 
 to alight at her station, went npon the platform in the dark, with 
 a child in her arms, and was there told to remain, and was injured 
 by the violent closing of the car door upon her hand, caused by 
 the violent motion or jerk given to the train by the negligence of 
 its employes.'^ 
 
 It is said of passengers, "If they voluntarily take exposed posi- 
 tions with no occasion therefor nor inducement thereto caused 
 by the managers of the road, except a bare license by non-interf er- 
 ■ence, or without express permission of the conductor, they take 
 the special risk of that position upon themselves." ' But in 
 another case it has been said that a railroad company cannot 
 attribute negligence to a passenger in standing oft the platform 
 of its car, in an action for personal injuries received by him in 
 l)eing thrown therefrom by a sudden start, when its conductor saw 
 him in that position and collected his fare without objection. 
 Still a passenger riding upon the platform of a railroad car with the 
 permission of the company must exercise care and caution in 
 accordance with the danger of his position; but the company is 
 bound to guard him from danger incident to the position and 
 arising from its own acts.^ A passenger who is unnecessarily and 
 improperly upon the platform of a railroad car, knowing that the 
 train is about to start, and who is thrown down and injured by the 
 starting of the engine with no unusual or unnecessary jerk, can- 
 not recover therefor.* As a general rule voluntarily and unnec- 
 
 ^Medler v. Atlantic Ave. B. Co. 36 N. Y. S. R. 89, aff'd in 126 N. Y. 669, 
 mem. 
 
 ^Kentucky & 1. Bridge Co. v. Quinkert, 2 Ind. App. 244. 
 
 ^3weeny v. Old Colony & N. B. Co. 10 Allen, 368. See also Eickey v. Bos- 
 ton & L. B. Co. 14 Allen, 433; Abend v. Terre Haute & I. B. Co. Ill 111. 
 202. 
 
 * Olivier v. Louisville & If. B. Co. 43 La. Ann. 804. 
 
 *Torrey v. Boston & A. B. Co. 147 Mass. 412; Hukey v. Boston & L. B. Go. 
 14 Allen, 429; Oavettv. Manchester & L. B. Co. 16 Gray, 501; Todd v. 
 Old Colony & F. B. B. Co. 3 Allen. 18, 7 Allen. 207; Lucas v. New Bed- 
 ford & T. B. Co. 6 Gray, 64; Oahagan v. Boston & L. B. Co. 1 Allen, 187; 
 Mayo V. Boston & M. B. Co. 104 Mass. 137; Bates v. Old Colony B. Co. 6 
 New Eng. Rep. C83, 147 Mass. 255. See notes to Erickson v. St. Paid & 
 D. B. Co. (Minn.) 5 L. R. A. 786; Emns v. Adar.is Exp. Co. (Ind.) 7 L. 
 R. A. 678; Philadelphia, W. & B. B. Co. v. Anderson (Md.) 8 L. R. A. 673; 
 Bccke V. Missouri Pac. B. Co. (Mo.) 9 L. R. A. 157; Gordon v. Cummings 
 (Mass.) 9 1;. U. A. 640.
 
 INJUKY ABOUT PASSENGER ELEVATOK. 411 
 
 ■essarily to stand or ride on the platform of a car is such negli- 
 <^ence as will prevent a recovery for injuries received while there.' 
 Yet it has been held not negligence if there are no vacant seats 
 inside the car." But the true rule is that it is the duty of a pas- 
 senger to go inside the car when requested to do so by the con- 
 ductor, although there may be no unoccupied seats." If there is 
 only standing room in the car it has been held in some states to 
 be negligence to occupy the platform.* 
 
 If the passenger rides where he has no right to ride, by the 
 rules of the company, or in a place of great danger, the mere 
 knowledge or consent of the conductor or trainmen to his riding 
 there will not entitle the plaintiff to any greater rights against the 
 company, on account of any injury received by him while so 
 riding, than if the conductor and trainmen liad been wholly ignor- 
 ant that he was so riding.' 
 
 Failure of a railroad comj)any to have a brakeman upon a plat- 
 form of a car, where its rules do not require a brakeman to be, is 
 not negligence which renders it liable for the death of a passenger 
 who unnecessarily goes upon the platform while the train is mov- 
 ing rapidly, and is thrown therefrom by the motion of the train. 
 A passenger on a railroad train who leaves a place of safety in 
 the car, and voluntarily goes upon the unguarded end platform 
 Mhile the train is running rapidly, and who knows that the train 
 will stop at his station and has not yet arrived there, is guilty of 
 negligence jj^r se Mdiich will prevent recovery for his death from 
 being thrown from the platform by the motion of the car, although 
 his station was called before he started for the platform.' 
 
 § l^S. Injury about Passenger Elevator. 
 One who is chargeable with contributory negligence in not 
 
 'Beach, Contrib. Neg. 159, citing Alabama G. S. R. Co. v. Hawk. 73 Ala. 
 
 112; Quinn v. Illinois Cent. B. Co. 51 III. 495; McAunich v. Minsissippi 
 
 & M. E Co. 20 Iowa. 338; Higgins v. NewYork & H. R. Co. 2 Bosw. 132; 
 
 Buel V. Neio York Cent. R. Co. 31 N. Y. 314; Camden & A. R. Co. v. 
 
 Hoosei/, 99 Pa. 492. 
 ^Highland Ave. <& B. R.y. Co. Donovan (Ala.)Nov.5, 1891 ; Willis v. Long Island R. 
 
 Co. 34 N. Y. 670. Consult also Zemp v. Wilmington dc M. R. Co. 9 Rich. L. 84. 
 ^Graville v. Manhattan R. Co. 7 Cent. Rep. 773, 105 N. Y. 525. 
 *Quinn v. Illinois Cent. R. Co. 51 111. 495, and Camden & A. R. Co. v. Hoo- 
 
 sey, 99 Pa. 492. 
 * Downey v. Chesapeake & 0. R. Co. 28 W. Va. 782. 
 ^Revdman v. New York, L. E. tb W. R. Co. 42 N. Y. S. R. 293.
 
 412 CONTKLBDTOEY NEGLIGENCE. 
 
 liaving adjusted the machine properly for running an elevator of 
 which he has charge, cannot recover for his injury.' 
 
 A person who took an elevator which he knew was not intended 
 for passengers, and, on leaving it, closed the door leading from 
 the elevator well, then, as he returned in a great hurry, hearing 
 some one speak to him, turned quickly around without looking, 
 stepped out into the well and fell, is guilty of negligence which 
 will prevent any recovery for damages, even if he was entitled to- 
 ride upon the elevator.* 
 
 Whether a person is guilty of contributory negligence, or not, 
 in stepping into an elevator well, in the daytime, where, from the 
 outer edge of the first step in front of the door to it, to the shaft, 
 was less than 3 feet, and the door, which was of solid wood, was 
 partially open as he approached, disclosing sufficient flooring to 
 create the impression that it was continuous, — is a question for 
 the jury." 
 
 A tenant approaching an elevator shaft kept in the building for 
 the use of tenants, and operated by the landlord or his servants, 
 is not, as matter of law, guilty, of contributory negligence in step- 
 ping through the door of the shaft without looking or listeniug^ 
 for the elevator, where it is opened on the outside by a boy who 
 has often had charge of the elevator, and whom defendant sup- 
 poses to be on the elevator, the elevator shaft not being lighted . 
 
 In an action against the landlord of plaintiff's husband, for 
 injuries sustained by falling down the shaft of an elevator kept 
 for the use of the tenants, and operated by the landlord or his 
 servants, proof that plaintiff went to the door of the shaft,, 
 intending to go up, when it was opened from the outside by a boy 
 who often had the elevator in charge, and the plaintiff thereupon 
 stepped through the door supposing the elevator to be there, when 
 it was in fact above, and that she fell to the bottom of the shaft 
 and was injured, the shaft not being lighted, warrants the submis- 
 sion of the case to the jury upon a question cf fact as to defend- 
 ant's negligence.* 
 
 ^Ilammergren v. ScJmrmeter, 2 McCrary, 520, 7 Fed. Rep. 766. 
 "^PaUevHon v. Uemenway , 148 Mass. 94. 
 ^Mc Richard v. Flint, 114 N. Y. 222. 
 *Toamj V. lioherls, 114 N. Y. 312.
 
 CHAPTER XXI. 
 
 PERIL THROUGH NEGLIGENCE OF CARRIER. 
 
 § 136. Instinctive Effort to Escape Peril not Contributory Negligence. 
 
 § 127. Carrier's Negligence will Excuse Otherwise Rash Act. 
 
 § 128. Negligence of Another Carrier Causing Injury. 
 
 § 129. Fault of the Carrier must Occasion the Danger 
 
 § 126. Instinctive Effort to Escape Peril not Con- 
 tributory JSTegligence. 
 
 An instinctive effort to escape peril, caused bj carrier's default 
 is not contributory negligence. A man is not necessarily to be 
 regarded as having caused or contributed to his own injury by 
 acting in a manner prima facie dangerous and imprudent, if there 
 is evidence of acts or omissions by which he might have been put 
 off his guard,' or overcome by sudden terror. 
 
 In a well known case* while the coach was proceeding at a 
 moderate rate, and without coming in contact with any obstacle, 
 or meeting any special obstruction, the hind axle of the coach 
 broke, one of the wheels came off and the stage settled down on 
 one side, without being overset. The plaintiff and some other 
 outside passengers, being alarmed, jumj)ed from the top of the 
 coach upon the pavement, and the plaintiff's left arm was broken. 
 It being shown that great care had been taken in the manu- 
 facture of the stage to secure one that was strong, sound and 
 sufficient for the journey, and that the proprietors had uniformly 
 exercised the utmost vigilance and care to preserve and keep the 
 same in a safe and roadworthy condition, the judge directed the 
 jury to inquire whether the plaintiff's act in jumping off was, 
 under the existing circumstances, an act of reasonable precaution; 
 
 ^Dublin, W. & W. B. Go. v. Slattery, 39 L. T. N. S. 365. And see North 
 Eastern E. Co. v. Wanless, L. R. 7 H. L. 13; Flint & P. M. R. Co. v. 
 Stark, 38 Mich. 714; Price v. St. Louis, K. C. & N. R. Co. 72 Mo. 414; 
 Texas & P. R. Co. v. Garcia, 62 Tex. 285; Straus v. Kansas City, St. J. & 
 C. B. B. Go. 75 Mo. 185; Glotwoithy v. Hannibal <& St. J. R Co 80 Mo. 
 223; Ernst v. Hudson River R. Co. 35 N. Y. 28; Purcell v, St. Paul City 
 R. Co. (Minn.) 16 L. R. A. 202. 
 
 *lngalls v. Bills, 9 Met. 1. 
 
 413
 
 414 PERIL THROUGH NEGLIGENCE OF CAKRIEB. 
 
 and instructed them that if the plaintiff was placed in such a ]>or- 
 ilous situation, in consequence of the defendant's failure to fulfill 
 their obligations as a common carrier, that, as a prudent precau- 
 tion, for the purpose of self preservation, he was induced to leap 
 from the coach, the owners were answerable for any injury he 
 might have sustained thereby, although it might appear that 
 he might, without injury, have retained his seat. In that case the 
 court erroneously assumed that the breaking of the axle was con- 
 clusive proof of negligence. Indeed some of the earliest cases 
 seem to have inclined to the same view. The first reported case,' 
 tried before Loi'd Kenyon in 1791, where the coach was over- 
 turned, states as the law, that "when these coaches carried passen- 
 gers, the proprietors of them were bound to carry them safely and 
 properly." But in the next case, in 1797^ Eyre, CTi. ./., stated the 
 question as one alone of negligence. There are expressions in later 
 cases implying a warranty as to the soundness of the carriage." But 
 the doctrine has always been clearly stated in this country as one 
 of negligence, and a plain distinction drawn between carriers of 
 passengers, only liable for neglect, and carriers of goods, liable as- 
 insurers.* When the attempt was made to apply the common law 
 liability of carriers of goods, to the carriage of slaves, Marshall, 
 Gh. J. said : "Though to the extent to which it has been carried, 
 and in cases to which it has been applied, we admit its necessity 
 and policy, we do not think it ought to be carried further, or 
 applied to new cases. "We think it has not been applied to living 
 men, and that it ought not to be applied to them." ' 
 
 Well considered cases exonerate a passenger from blartie who 
 being suddenly put into a condition of nervous excitement and 
 alarm by the fault of the carrier, under the impulse of the mo- 
 ment jumps from a moving train before it has attained much 
 
 1 White V. Boulton, Peake, 81. 
 '"Anton V. Heaven, 2 Esp. 533. 
 ^Israel y. Clark, 4 Esp. 259; Christie v. Griggs, 2 Campb. 79; Bremver v. 
 
 Williams, 1 Car. & P. 414; Crofts v. Wateihouse, 3 Bing. 321; JInrris v. 
 
 CoHtar, 1 Car. & P. 636; Sharp v. Qrcy, 9 Bing. 457; Bretherton v. Wood, 
 
 3 Brod. & B. 54, 6 Moore, 141; Ansell v. Waterhouse, 6 Maule & S. 385, 3 
 
 Chit. 1. 
 *Oamden & A. B. & Transp. Co. v. Burke, 13 Wend. 626; HoUister v. Now- 
 
 len, 19 Wend. 230; Boyce v. Anderson, 27 U. S. 2 Pet. 150, 7L. ed. 379. 
 ''Stokes V. SaltonsiuU, 88 U. S. 13 Pet. 181, 10 L. ed. 115.
 
 INSTINCrrVK KFFOKT TO E.SCAPK I'KlilL 41.> 
 
 speed, altlioncjh the passenger's motive in doing so is merely to- 
 save himself from serious inconvenience. Whether a justification 
 exists or not must depend upon the speed of the train and other 
 circumstances. One test, among others, would be whether tlie 
 passenger did what careful and experienced persons would be 
 likely to do under similar circumstances.* 
 
 But even when in peril of injury a passenger is only justified 
 in jumping if an ordinarily prudent person, under the same cir- 
 cumstances of real or a]3parent peril, would have done so.^ 
 
 Where the deceased, having left his seat as a passenger in a 
 caboose on a freight train, was standing by the open door, and 
 alarmed by the falling of lumber against the caboose and along 
 the track from a loaded freight car in front, sprang from the car 
 while it was moving fourteen or fifteen miles an hour and was 
 killed, no passenger in the car being injured, and the jury found 
 in a suit by the administrator, a general verdict for the company, 
 and^specially that the lumber was not loaded and fastened in the 
 ordinary and secure way^ but that there was not suflScient cause 
 for alarm to induce a prudent man similarly situated to make such 
 a jump, the judgment cannot be reversed on the special finding.. 
 A passenger on a freight train assumes the risks necessarily inci- 
 dent, despite the duty of the corporation to exercise the highest 
 care for the safety of its passengers consistent with the usual and 
 practical operation of such a train and its responsibilities for any 
 injury caused by negligence.* 
 
 ^Hob-son V. Noi'theastern R. Go. L. R. 10 Q. B. 271; Adams v. Lancashire dr 
 Y. R. Go. L. R. 4 C. P. 744; Filer v. New York Cent. R. Go. 49 N. Y. 47;. 
 59 N. Y. 351, and 68 N. Y. 124; Jofmson v. West Chester & P. R. Go. 70 
 Pd. 365; Delamalyr v. Milwaukee & P. du C. R. Co. 24 Wis. 586; Shan- 
 non V, Boston <& A. R. Go. 1 New Eng. Rep. 681, 78 Me. 52. 
 
 ^Mitchell V. Southern Pac. R. Go. 11 L. R. A. 130. 87 Cal. 62; Gulf, C. & S. 
 F. Co. V. Wallen, 65 Tex. 568; Chicago, R. I. <& P. R. Co. v. Felton, 125- 
 111. 458; Western Maryland R. Co. v. Stanley, 61 Md. 266; Strand v. Chi- 
 cago & W. M. R. Go. 7 West, Rep. 470, 64 Micb. 216; Oeev. Metropolitan 
 R. Go. L. R. 8 Q. B. 181; Iron R. Co. v. Mowery, 36 Ohio St. 418. 
 
 ^Woolery v. Louisville, N. A. & G. R. Go. 5 West. Rep. 667, 107 Ind. 381; 
 JeffersonviUe R. Co. v. Swift, 26 Ind. 459-476; Penyisylvania R. Co. v. 
 Aspell, 23 Pa. 147; Indianapolis & St. L. R. Go. v. Stout, 53 Ind. 143; 
 Pittsburgh v. Orier, 22 Pa. 54; Buel v. New York Cent. R. Co. 31 N. Y. 
 814; Sears v. Dennis, 105 Mas.s. 310; Wilson v. Northern Pac. R. Co. 2iy 
 Minn. 278; Card v. Ellsworth, 65 Me. 547; Stokes v. Saltonstall, 38 U. S. 
 13 Pet. 181, 10 L. ed. 115; McDonald v. Chicago & M. W. R. Co. 26 lowa» 
 124.
 
 416 PEKIL THKOUGH NEGLIGENCE OF CAERIEK. 
 
 § 127. Cai^riers J\''egligence will Excuse Otherwise 
 
 Rash Act. 
 
 A carrier cannot claim that a passenger's conduct was negligent 
 when it was induced bj its own negligent or wrongful acts or 
 omissions,' There can be no rule of law which imposes it as a 
 duty upon one over whom danger impends by the negligence of 
 another, to incur greater danger by delaying his effort to avoid it 
 until its exact nature and measure are ascertained. An instinctive 
 effort on the part of the person imperiled to avoid the danger, 
 though it result in producing the injury complained of, will not 
 relieve the defendant from responsibility.'' 
 
 An act done by the passenger in the fact of impending danger 
 from the carrier's negligence in order to escape therefrom, will 
 not, unless unreasonably rash under the circumstances constitute 
 contributory negligence, although the act may have helped to 
 produce the injury in its final result.' 
 
 Where one in the face of great danger and obliged to choose 
 between two hazards, makes such choice as a person of ordinary 
 prudence and care placed in the same situation might make, and 
 is thereby injured, the fact that if he had chosen the other hazard 
 he would have escaped injury, will not relieve the one by reason 
 
 ^Schulize v. MissouH Pac. R. Co. 32 Mo. App. 438. 
 
 ^Coulter V. American Merchants Union Exp. Go. 56 N. Y. 585; Jones v. 
 Boyce, 1 Stark. 493; Stokes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 
 115; Hayes v. Michigan Cent. B. Co. Ill U. S. 228, 28 L. ed. 410; Lund 
 V. Tyngsboro, 11 Cush. 563, 59 Am. Dec. 159; (Sears v. Dennis, 105 Mass. 
 312; Voak v. Northern Cent. B. Co. 75 N. Y. 320; Com. v. Boston & M. 
 B. Co. 129 Mass. 500, 37 Am. Rep. 382, note; Pennsylvania B. Co. v. 
 Werner, 89 Pa. 59; Pennsylvania Co. v. Boney, 89 Ind. 453, 46 Am. Rep. 
 173; Gothardv. Alabama O. S. B. Co. 69 Ala. 114; Linnehan v. Samp- 
 son, 126 Mass. 506, 30 Am. Rep. 693; Dublin, W. & W.B. Co. v. Slattery, 
 L. R. 3 App. Cas. 1155; Wheelock v. Boston & A. B. Co. 105 Mass. 203; 
 PiUsbuigh S. B. Co. v. Taylor, 104 Pa. 306, 49 Am. Rep. 580; BoU v. 
 Northern Cent. B. Co. 15 Hun, 496; Karr v. Parks, 40 Cal. 188; Twomley 
 V. Central Park, N. & E. B. Co. 69 N. Y. 158. 25 Am. Rep. 162; Wesley City 
 Coal Co. V. neder, 84 111. 126; Snow v. Housatonic Co. 8 Allen. 441; Bex- 
 ierv. Starin, 73 N. Y. 601; Collins v. Davidson, 19 Fed. Rep. 83; Card 
 V. Ellsworth, 65 Me. 547, 20 Am. Rep. 722; Stevenson v. Chicago <& A. B. 
 Co. 18 Fed. Rep. 493, 5 McCrary, 684; Smith v. St. Paul, M. <fe M. B. 
 Co. 30 Minn. 169; Wright v. Great Northern B. Co. 8 Ir. L. R. 257; Eaff 
 V. Minneapolis & St. L. B. Co. 4 McCrary, 622; Wilson v. Northern Pac. 
 B. Co. 26 Minn. 278; Woolky v. Scovell, 3 Mann. & R. 105; Indianapolis, 
 B. <fe W. R. Co. V. Carr, 35 Ind. 510. 
 
 *Ladd V. Foster, 31 Fed. Rep. 827; Mitchell v. Southern Pac. B. Co. 11 L. R. 
 A. 139. 87 Cal. 03.
 
 CARRIKRS ^'EGL1UENCE WILL EXCUSE OTHEKWISE KASH ACT. 417 
 
 of whose negligence he was put in jeopardy.' Contributory neg- 
 ligence will not be charged against one who in sudden danger 
 does not display the care which would be required of one having 
 time to reflect and consider the situation," If the exigency is one 
 calculated to affect the judgment of him who is to meet it, a 
 mistake in his movements is not contributory negligence.* 
 
 A carrier is liable for nervous convulsions and illness induced 
 in a passenger by a position of apparent imminent peril in which 
 the passenger was placed by the carrier s negligence.* 
 
 One who is injured while about to alight from a train is not 
 guilty of contributory negligence when she makes no conscious 
 effort to alight after discovering that the train is moving, or when 
 she acts upon her best judgment in an emergency, with danger 
 threatening whether she remains upon or leaves the car.' 
 
 "When one is placed in a situation of peril by the negligence of 
 another, his attempt to escape danger, even by doing an act which 
 is also dangerous, and from which injury results, will not prevent 
 a recovery, if the attempt was one such as an ordinarily prudent 
 person might make under the like circumstances. A street railwav 
 company is liable for personal injuries sustained by a passenger 
 knocked off" the rear platform of a car to which he had gone on 
 seeing the driver jump from the car and the conductor run towards 
 the rear of the car exclaiming that he was not going to be killed.* 
 The foregoing is tlie rule, even though the person would not 
 have been injured at all had he not made the attempt to escape 
 
 ^Haffy. Minneapolis tfc St. L. R. Co. 14 Fed. Rep. 558; T/ie Ella B. 19 Fed. 
 Kep. 792. 
 
 '^Barton v. Springfield, 110 Mass. 131; Biicher v. jVeic York Cent. & H. R R 
 Co. 98 N. Y. 128; Mark v. .sY. Paxil, M. & M. R. Co. 30 Minn. 493. 
 
 ■'Stevenson v. Cliicarjo & A. R. Co. 18 Fed. Rep. 404, 5 McCrary, 634; Collins 
 V. Davidson, 19 Fed. Rep. 86; Walter v. Chicago, D. tfc M. R. Co. 39 
 Iowa, 33. 
 
 ^Purcell V. St. Paul City R. Co. (Minn.) 16 L. R. A. 203; Hill v. Kimbell, 7 
 L. R. A. 618. 76 Tex. 210. But see Eicing v. Pittsburg, C. & C. St L R 
 Co. (Pa.) 14 L. R. A. 666. and note. 
 
 ^Leggctt v. Western N. T. & P. R. Co. (Pa.) 28 W. N. C. 236. 
 
 *Kreuzen v. Forty-Second Street M. & St. If. Ave. R. Co. 38 N. Y. S. R. 461 : 
 Mlson V. Atlantic & P. R. Co. 68 Mo. 593; Twomley v. Central Park iV" 
 & E. R. Co. 69 N. Y. 158, 25 Am. Rep. 162; Bud v. New York Cent. R. 
 Co. 31 N. Y. 314, 88 Am. Dec. 271 ; Wilson v. Northern Pac. R. Co. 26 
 Minn. 278; Stokes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; Wes- 
 ley City Coal Co. v. Healer, 84 111. 126; FVink v. Potter, 17 111. 406; Karr 
 V. Parks, 40 Cal. 188; Lund v. Tyngsboiv, 11 Cush. 563, 59 Am. Dec. 
 159; Cook v. Parham, 24 Ala. 21. 
 27
 
 418 PERIL THROUGH NEGLIGENCE OF CARRIER. 
 
 the threatened danger. A passenger who, through the negUgeut 
 and anskillful operation of trains by a railroad company, is 
 placed in a situation apparently so perilous as*to render it prudent 
 for him to leap from the train, whereby he is injured, is entitled 
 to recover damages, although he would not have been hurt if he 
 remained on the train.' 
 
 A statute providing that a railroad company shall not be liable 
 for injuries received by any passenger on the platform of a car 
 will not prevent a recovery for any injury received in such place 
 by a passenger who went there for the purpose of escaping dan- 
 ger, and whose act in doing so was such as a person of ordinary 
 care and prudence might do under the circumstances.' 
 
 A passenger is not barred against recovering for injuries in 
 jumping off a car which had left the rails and was bouncing over 
 the ties at the rate of 8 or 10 miles an hour, by the fact that he 
 was unnecessarily alarmed and that ordinary prudence, as shown 
 by the result, required him to stay on the car.* 
 
 The question in such case is not what a prudent person under 
 ordinary circumstances would have done, for the shock, the sud- 
 denness of the emergency, the excitement and the influence of 
 fear and terror should all be taken into account; cool presence of 
 mind cannot be expected. Contributory negligence is not a 
 defense when the act charged was the result of tremor and excite- 
 ment produced by the defendant's misconduct.* 
 
 One who, through the negligence or fault of another, is put in 
 a position of immediate danger, is not bound to exercise all the 
 prudence and care that ordinarily characterize the conduct of a 
 prudent man.* 
 
 'iSZ. Louis & 8. F. R. Co. v. Murray (Ark.) Dec. 19, 1891; Dyer v. Ei-ie E, 
 Go. 71 N. Y. 228; Boll -v. Northern Cent. R. Co. 15 Hun, 496. 
 
 ^Mitchell V. Soutliern Pac. R. Co. 11 L. R. A. 130, 87 Cal. 63. 
 
 *Diinmitt v. Hannibal & St. J. B. Go. 40 Mo. App. 654; Tuoomley v. Central 
 Park N. <£• E. R. Co. 69 N. Y. 158, 25 Am. Rep. 162, and 'Buel v. New- 
 York Gent. R. Co. 31 N. Y. 314, 88 Am. Dec. 271; Iron R. Co. v. Mowery, 
 80 Ohio St. 418. 38 Am. Rep. 597; Wilson v. Northern Pae. R. Co. 26 
 Minn. 278; Smith v. St. Paul. M. & M. R. Co. 30 Minn. 109; Schullz v. 
 Chicago & N. W. R. Co. 44 Wis. 638; Qumz v. Chicago, St. P. & M. R. 
 Go. 52 Wis. 672; Georgia R. & Bkg. Co. v. Rhodes, 56 Ga. 645. 
 
 *Ilohab V. New Orleans & C. R. Go. 38 La, Ann. 185.r 
 
 ''South Covington & G. St. R. Co. v. Ware, 84 Ky. 267; Siegrist v. Arnot, Sft 
 Mo. 200, 06 Am. Rep. 424; Adains v. Hannibal & St. J. R. Co. 74 Mo. 
 653, 41 Am. Hep. 333.
 
 NEGLIGENCE OF ANOTilER CAKKIKR CAUSING INJLIir. 410 
 
 Therefore, what other j^ersons did, or wliat they said hy way of 
 exclamation, may be given in evidence to show wliat may have 
 been reasonably prudent under the circumstances.' Tins evi- 
 dence is admissible as descriptive of the occurrence, and as part 
 of the res gestae, and also as evidence that plaintiff was actuated 
 by reasonable apprehension of danger, and not by rashness and 
 imprudence.''' But while an attempt by a passenger to escape 
 from danger l)y going out on the car platform cannot be consid- 
 ered contributory negligence, when he acts as a man of ordinary 
 prudence would under the circumstances; yet the fact that he was 
 injured in such attempt, while others exposed to the same danger 
 Avho remained quiet were not injured, should be considered by 
 the jury in determining whether he acted with ordinary prudence.^ 
 
 § 128. JS^egUgence of Another Carrier Causing 
 
 Injury. 
 
 K plaintiff jumped from a moving street car to avoid the appar- 
 ent danger of a train of cars running on an intersecting railroad. 
 She fell, and was injured, but the car passed over the railroad 
 track without a collision. The suit was against the street car 
 company for negligence in crossing the railroad track in such near 
 proximity to an approaching train. In delivering the opinion the 
 court says : "The peril of remaining in the car was properly 
 judged by the circumstances as they there appeared to the passen- 
 gers and not by tlie result. The fact that the car did pass over 
 safely cannot reflect upon the action of plaintiff, and does not 
 prove that she was imprudent or negligent in jumping from the 
 car. She was compelled to act, and chose the hazard which 
 appeared to be the least, — that is, to act upon the probabilities as 
 they r.ppeared to her." A traveler, to avoid impending danger 
 from a defective street, leaped from his carriage and ^v^as thereby 
 injured. In a suit for damages against the to^\■n the court says : 
 
 ^Twomley v. Central Park N. & E. R. Co. 69 N. Y. 158, 25 Am. Rep. 162; 
 
 Galena & C. U. R. Co. v. Fay, 16 111. 558, 63 Am. Dec. 323; Jilolnle & M. 
 
 R. Co. V. Ashcrafl, 48 Ala. 15. 
 ^Tmmley v. Central Park N. <& E. R. Co. 69 N. Y. 158, 25 Am. Rep. 162; 
 
 Mobile & M. R. Co. v. Ashcraft, 48 Ala. 15; Galena & C. U. R. Co. v. Fay, 
 
 16 111. 558, 63 Am. Dec. 323; KMber v. Peoples R. Co. (Mo.) 14 L. R. 
 
 A. 613. 
 
 *Mi(chellv. Southern Pac. R. Co. 11 L. R. A. 130, 87 Cal. 62.
 
 420 PEKIL THKOLGH ISKGLIGENCE OF CAKKIKK, 
 
 "Plaintiff not having come in actual contact Avitli the defect in 
 the higliway, it is said that the liability has not attached to the 
 town. But this M'e think is too limited a construction of the 
 statute. The injury to be compensated for by the town is one 
 that has been occasioned by reason of any defect or want of 
 repair in any highway. Such injury to the person may be occa- 
 sioned by reason of defect of the highway, when the traveler, 
 being brought suddenly into imminent peril by his near approacli 
 to it, in the exercise of ordinary care and prudence, voluntarily 
 leaps from his carriage and suffers injury thereby. The circum- 
 stances must be such as to justify his conduct, and the defect in 
 the highway must have been the cause of his voluntary act of 
 throwing himself from the carriage."^ In another case, plaintiff 
 sued a coal company for negligently causing the death of her 
 husband. Defendant was operating certain coal mines, in which 
 it had neglected to provide more than one shaft, as required by 
 the statute. Plaintiff's husband M-as a laborer in the mine. A 
 lire occurred in the shaft. Smoke was filling the mine, and a cry 
 of "Fire !" was given. Plaintiff and the other operatives rushed 
 to the shaft, Avhich was the only means of escape. In the rush 
 deceased fell through a shaft into a second mine, and was killed. 
 The lire was extinguished, and the alarm was unnecessary. The 
 negligence charged was the failure to provide additional shafts 
 for the safety of the operatives. In his opinion, Dickey, «/., said: 
 "Had there been a second mode of escape, no such cause of alarm 
 would have existed. Men of ordinary prudence would have felt 
 safe, and been left to exercise their caution in avoiding accidents 
 on the w^ay to a sure ]node of escape. It has long been settled 
 that a party having given another reasonable cause for alarm can- 
 not complain that the person so alarmed has not exercised cool 
 presence of mind, and thereby found protection from dangers 
 resulting from the alarm.'^^ From the decisions tlie following 
 rules essential to liability may be deduced : jirst, the peril of 
 alarm must have been caused by the negligence of the one against 
 whom indemnity is sought; second, the apprehension of peril, 
 
 ' Tinnmhn V. Ccnlml Park. N. & E. It. Go. 69 N. Y. 160, 25 Am. Rep. 162. 
 bee also Lund v. TijiKjxhoro, 11 Gush. 506, 69 Am. Dec. 159. 
 
 ^WeaUy City Goal Co. v. Ilealer, 84 III. 129.
 
 NEGLIGKNCE OF ANOTilEK (jAKKlKlt CAUSING INJUliV. 421 
 
 from tlie standpoint of the injured person, must liave been rea- 
 sonable; and, third, the ;i[)pearance of danger must have been 
 immhient, leaving no time for deliberation. On the other hand, 
 the danger must be judged by the circumstances as they appear, 
 and not by the result.' Wliere an injury is occasioned by the 
 concurring negligence of two ])orsons, the negligence of the one 
 will be no defense to the other. The injured party may hold 
 cither, or botli, lial)le.* 
 
 In a case before the Supreme C(mrt of Missouri,' the following 
 facts were undisputed : The railroad track — itself a place of 
 danger — passed along a very narrow street. Where the street car 
 line crossed the railroad the view of the track of the railroad to 
 the west was wholly obstructed by buildings mitil the street car 
 i-eaclied Poplar street, within iifteen feet of the track. Gates or 
 l)arriers were maintained on each side of Poplar street, to be 
 lowered in order to prevent persons on foot or in vehicles from 
 crossing the railroad track when dangerous to do so on account of 
 passing engines and trains. A watchman was in charge of the 
 gates, whose duty it was to close the crossing on the approach of 
 a train, and to direct and warn persons crossing the railroad. 
 The position of the watchman was on the north side of Poplar 
 street, and from his position he could 0})erate both gates. Pop- 
 lar street was twenty-one feet in widtli from curb to cui'b, and 
 about twenty -flA'e feet between the gates. The street car, with 
 the team in front, Avas about twenty-tive feet in length, hav- 
 ing barely room for them to stand between the gates. The evi- 
 dence then tends to pro\e (which satisties the inquiry) that the 
 street car was driven slowl}' and carefully down to Poplai- street 
 Mdthout warning or signal from the watchman. When the front 
 of the car had reached a point about opposite the gate, the horses 
 being probably on the railroad track, the watchman "■yelled" to 
 the driver to stop, and commenced lowering the gates. The car 
 came nearly or cpiite to a stop. The gate on the opposite side of 
 the street in front of the car was half way down. At this junc- 
 ture, when there was clearly apparent danger of a collision with 
 
 ^Kkiber v. People's R. Co. (Mo.) 14 L. R. A. 613. 
 
 ^ Whittaker's Smith, Neg. p. 31, and cases there cited. 
 
 -Kkiher v. PeopWa H. Co. (Mo.) 14 L. R. A. 613.
 
 422 PERIL THKOUGH NEULIGEXCK OF CARKIK14. 
 
 the horses, and when signals of danger had been given, in the 
 most emphatic manner, the watchman called out, or "yelled" as 
 one or more witnesses expressed it, "Go on !" "Go on I" It ap- 
 peared then that the horse and car would be enclosed between the 
 gates and across the railroad. The excited language of tlie guard 
 and the confusion of his orders, taken with the lowering of the 
 gates and the position of the car, would have created in the mind 
 of the most self possessed apprehensions and alarm. At this mo- 
 ment someone screamed, "My God, we will all be killed?" and 
 plaintiif turned her eyes to the west, and saw an engine approach- 
 ing on a down grade, and within 100 feet of the car. Immedi- 
 ately cries arose from persons on the street, and from passenger> 
 on the car, such as, "Look out ! "Look out !" "Drive on quick !"* 
 "Stop; locomotive is coming !" All became confusion, excitement, 
 and terror, and plaintiif, with many other passengers, jumped from 
 the car. In fact the engine was barely moving, and was under 
 complete control of the engineer, and no actual danger of a col- 
 lision existed. This state of facts, from the standpoint of the pas- 
 sengers, certainly tended to prove reasonable cause to apprehend 
 imminent danger of a collision, and that no time or opportunity 
 was afforded plaintiff to deliberate. In adopting the dangerous 
 alternative, plaintiff' could not, the court said, as a matter of law, 
 be declared guilty of contributory negligence.' It is true plaintiff" 
 testified that the gateman commenced raising the gate, and the 
 car had started forward, before she juni])ed, and that her attention 
 was first called to the enghie by the outcrj^ of one of the passen- 
 gers. Yet she does not testify at all in reference to additional 
 facts, which were detailed by other witnesses, and which should 
 properly be considered. In view of the fact that the whole occur- 
 ence transpired in a few seconds, and in \ lew of her serious injury, 
 her memory would necessaril}'^ be confused and indistinct. But, 
 takiiiir hei- own testimonv as conclusive auainst her in determinins: 
 the cause of her alarm, it cannot be declared as a matter of la\\' 
 that the fact of lowering the gates, at the time and in the manner 
 shown by her evidence alone, — itself a most em|)liatie declaration 
 of dangei-, made by one charged with tlie duty of watching, and 
 
 KSu-^rix/. V. Ariiot, 8(5 Mo. 200, TjG Am. Ui'p- -i'^i; Adaim v. Uaimibal d- St. J. 
 It. (Jo. 74 Mo. r)r)4, 41 Am. Hep. :}:5;i
 
 NEGLIGENCE OF ANOTIIKU CAKUIER CAUSING INJUR V. 423 
 
 to whom plaintiff had the right to look for warning, — did not 
 create m her mind reasonable gronnd for apprehending a collis- 
 ion, which apprehension cnlminated in terror oil seeing the 
 approaching engine. Such ground of apprehension may have 
 existed, however, without the fault of the defendants or either of 
 them. The inquiry then arises, By whose negligence was plaintiff 
 caused to apprehend danger ? While it is true that the street car 
 company was a carrier of passengers, and owed to plaintiff as a 
 passenger the highest degree of care practicable in the circum- 
 stances, it was not an insurer of her safety, and unless guilty of 
 some negligence would not be liable for her injury. After a 
 careful examination of tbe testimony, the court was unable to die- 
 cover any evidence tending to prove the driver of the street car 
 in any respect Avanting in the high degree of care imposed upon 
 him as a carrier of passengers. He drove, as all the evidence 
 shows, slowly and carefully down to Poplar street, checked his 
 speed almost entirely to a stop at a signal from the guard, and. 
 no real danger appearing to him, and none in fact existing, he 
 drove across the track. He manifested no excitement or loss of 
 self possession which could have been communicated to the pas- 
 sengers. It is true, one or possibly more witnesses testified that 
 he stopped the ear on the railroad track. The weight of the evi- 
 dence, it is said, was to the contrary, but the evidence of one wit- 
 ness to this fact would have required the submission of the issue 
 to the jury, but for the fact tliat it appeared also from all the evi- 
 dence that plaintiff had jumped, and her injuries had been received 
 before the car stopped; and the act of stopping the car on the 
 track, if it was done, could not therefore have controlled oi' 
 induced her action. To properly measure the duty of the street 
 car driver, the fact must also be kept in view that there was no 
 real danger, nor, from this standpoint, appearance of danger. If 
 there had been in fact real danger of a collision, the case might 
 have been different. The negligence of the watchman would not, 
 in that case, probably have excused the driver from the high 
 degree of care exacted of carriers of passengers to know and 
 avoid the danger of crossing.' Besides this, it is held that the 
 gateman was the agent of the railroad company, placed there for 
 the express purpose of warning and directing those using the 
 
 ^Philadelphia &R. II Co. v. Boyer, 97 Pa. !tl.
 
 424 TERIL THROUGH NEGLIGENCK OF CARRIER. 
 
 street, and of preventing collisions with passing trains, and the 
 driver of the oar, seeing him at his post of duty, had the right to 
 rely and act upon his warnings, signals, and directioiis in the 
 absence of opportunity, as in this case, to know for himself the 
 situation.' 
 
 On the other hand, while tlie railroad company only owed to 
 plaintiff the duty of ordinary care in the circumstances, the court 
 think it very clear that there was evidence tending to prove a 
 want of such care. It must be kept in mind that thore was no 
 collision, and that the injury was caused by a voluntary leap by 
 plaintiff from the car to avoid the supposed danger. The inquiry 
 is whether the evidence tended to prove that the negligence of 
 the gateman caused the condition of terror under which plaintiff 
 was induced to adopt the dangerous alternative. As has been 
 said, the view of the railroad was wholly obstructed until the car 
 came Mdthin the limits of the narrow street upon which the track 
 was laid. The driver and passengers on the car had no means of 
 knowing that the crossing was clear and safe before getting in 
 very close proximity so the track, except from the warnings of 
 the watchman. Much reliance must have been placed upon his 
 watchfulness, judgment, and discretion. Not until the horses 
 drawing the car were almost, if not entirely upon the railroad 
 track, was a word or sign of warning given. At that moment a 
 cry came from him, "Stop ! Stop !" and the gates commenced 
 lowering, apparently enclosing tlie car and horses on the track. 
 Almost immediately he yelled, ''Go on ! Go on !" implying that a 
 desperate alternative of trying to cross the track should be made. 
 Now, when we consider the dangerous locality, we can but say 
 that the manifest excitement and confusion of the watchman in 
 manao-ing the barriers, and the contradictory warnings implied by 
 lowering and raising them wlien apparently too late for protec- 
 tion were matters well calculated to excite consternation among 
 the passengers, and to create the panic whicli resulted. The judg- 
 ment afi-ainst the street car coni])any was reversed, but affirmed as 
 to the railroad company.' 
 
 UlayicoodY. New York Cent. & H. R. R. Go. 35 N. Y. S. R. 748; Whelan v. 
 h'eto York, L. E. <& W. li. Co. 38 Fed. Rep. 15; Penusi/lmnia Co. v. Stege- 
 meter 118 Ind. 305; Chicago, li. I. & P. R.Co. v. Claugh, 134111.586; Central 
 Trmi Co. v. Wahmh, St. L. <fe P. R. Co. 27 Fed. Hep. 159. 
 
 ^KlHber V. ^or>k'H R. Co. (Mo.) 14 L. li. A. 613.
 
 FAUl/r i)V CAHKlKlt M I 8T OCCASION DANGER. 425 
 
 Wliere separate and iiulepcMidt^nt acts of noo-lio-ciice of two par- 
 lies are the direct causes of a single injury to a third person and 
 it is impossible to determine in what proportion each contributed 
 to the hijnrj, either is res[)oiisihle for the whole injury, and this, 
 tiiough his act alone uiight not have caused the entire injury and 
 although without fault on his part, the same damage would have 
 resulted from the a(;t of the other,' An action for injuries sus- 
 tained through the negligence of an employe of a firm may be 
 brought against one or more or all of its members.' A passenger 
 injured by a collision resulting from the concurrent negligence of 
 two railroad companies may maintain a joint action against both.* 
 But two railroad companies operating parallel roads are not joint- 
 ly liable for an injur}'^ occurring on one of them, merely on the 
 ground that their flagmen watched and were guided by the move- 
 ments of each other.* 
 
 Where a personal injury is occasioned by the negligence of sev- 
 eral persons, such persons are jointly and severally liable.^ 
 
 Where the want of negligence on the part of one killed in a 
 collision of two railroad trains is averred and put in issue, it is 
 error for the court, in instruction, to ignore this issue where 
 none others are given on the other side to cure such omission. Al- 
 though a shipper of stock on a railway train may be rightfully 
 upon any part of such train as regards the company which is car- 
 rying his stock to a stockyard, still such right will not relieve him 
 from the duty of using due care to protect himself from injury 
 from another company's train, where such company is sought to 
 be held liable for his deatli occasioned by such collision.' 
 
 § 1^9. Fault of Carrier must Occasion Danger. 
 
 It must be borne in mind that, in order to justify such incur- 
 ring of a new peril in the endeavor to avoid a former one there 
 
 ^Slater v. Mersereau, 64 N. Y. 138. 
 
 ^Roberts v. Johtuon, 58 N. Y. 613. 
 
 ^Colegrove v. New Yark <fc N. II. II Co. 30 K Y. 492, 6 Duer, 382. 
 
 ^Chicago & E. I. R. Co. v. Coiiners, 30 111. App. oOT. 
 
 ''Lake v. Milliketi, 63 Me. 340; Ricker v. Freeman, 50 N. H. 420; Davenpoi't 
 
 V. Ruckman, 37 N. Y. 568; Irvine v. Wood, 51 N. Y. 224; Jenningn v. 
 
 Van Schaick, 13 Daly, 438; Wrif/ht v. Wilcox, 19 Wend. 343; Pheips v. 
 
 Wait, 30 N. Y. 78; Saydam v. Moore, 8 Barb. 358; Greed v. Earimann, 
 
 29 N. Y. 591. But see Trowbridge v. Forepaugh, 14 Minn. 133; Jofmnon 
 
 V. Chicago, M. & St. P. R. Co. 31 Minn. 57. 
 * Wabash, St. L. & P. R. Co. v. Shacklet, 105 111. 364.
 
 -126 PERIL THKOLGH NEGLIGE^'CE OF CAKKIER. 
 
 are two essentials to a recovery: (1) The position from which 
 escape is sought must be one of imminent or apparently imminent 
 danger, such as admits of no delay in taking action, and such as 
 would, in like circumstances, naturally arouse the fears of a per- 
 son of ordinary prudence and self-possession; (2) the fault of 
 placing the party injured in such perilous position must rest with 
 the defendant, and be directly occasioned by his negligence. 
 
 Where a passenger, in an attempt to escape from apparent dan- 
 ger, leaves a car and is injured, it is not sufficient, merely, that he 
 became alarmed by reason of appearances produced wholly or in 
 part by the defendant. It must appear that that wliich produced 
 the alarm, and, through it. the injuiy, was the negligence of the 
 defendant. The burden is upon the plaintiff to prove this negli- 
 gence, and that it is not done by proof alone that a peculiar sig- 
 nal was given by an engine of tlie defendant, and that it caused 
 or aggravated the alarm of the passenger. If the signal given 
 was, under the circumstances, a proper one, it can not have been 
 negligence to give it. 
 
 Where a train, during the night, in a snow storm, was. as the 
 result of an inevitable casualty, stopped by a drift of snow across 
 the track, and some of the passengers, alarjued by the approach, 
 from the rear, of a snow plow, around a curve, upon an adjoining 
 track, apprehending it to be upon the main track, upon a whistle 
 being sounded from the locomotive on their ti-ain, attempted to 
 escape from the car across the adjoining track (escape being barred 
 by the snow on the other side), and in the effort the passenger 
 for whose death the action is brought was fatally injured by the 
 snow plow; and the only evidence in regard to tlie blowing of 
 the whistle is that an alarm whistle was blown, or, as one witness 
 phrases it, "a danger signal was given;" and there is an entire 
 absence of evidence of the purpose of giN'ing the signals by the 
 whistle, for whom they were intended, and tlie result they were 
 expected to produce, or tliat the signal was unnecessarily given, — 
 it was error, in an insti-ut-tion to assume that there was evidence 
 before the jury tending to prove tliat the defendant's servants 
 negligently gave an alarm signal by blowing the engine whistle.' 
 
 The mere fact of a passengers jumping from a train through 
 
 ^Chicago, R. I. J: R II Co. v. Felton. 135 III. 458,
 
 FAULT OF CAKIUKK MUST OCCASION DAN(^KK. 427 
 
 fear and apprelionsioti of danger caused by tlie approacli, from the 
 rear, of another train on the same track, will not antliorize a 
 recovery for an injury sustained by him, unless the company was 
 guilty of some act of negligence sufficient to create in the mind 
 of a reasonable and prudent person such fear and apprehension.' 
 A street car company is not liable for an injury to a passenger 
 in jumping from tlie car under a reasonable apprehension of dan- 
 ger, where there was no real danger and the apparent danger was 
 caused by the negligence of the gateman at the railway crossing 
 and his confusion and contradictory Avarnings and signals, without 
 any negligence of the driver of the street car.* 
 
 The plaintiff, in a late Texas case, and his wife were passen- 
 gers on a train of defendant's road, which stopped between two 
 stations, and remained standing for about an hour. While the 
 train was so standing another passenger called out, "Here comes 
 a train right on us!" Other passengers jumped to their feet, and 
 scrambled to get out of the car door. Plaintiff looked through 
 the rear dour, and saw a freight train coining towards the passen- 
 ger train, and about 300 or 400 yards off. He called to his wife, 
 and both ran to the car platform and jumped to the ground, when 
 he saw the freight train 100 yards in the rear, having stopped. 
 There was evidence to show that nearly all the passengers were 
 frightened. Thei-e seemed to be a general panic, and many of 
 the passengers jumped to the ground. The conductors of the 
 two trains testified that there was no danger whatever of a col- 
 lision, as the freight train had been properly signaled as soon as 
 it came in sight. Three of the passengers testified that they saw 
 the freight train coming, and apprehended no danger; that it 
 seemed to be under control, and was running slowly. In an action 
 l>y the plaintiff to recover damages for the injuries received by 
 liis wife in jumping oft" the train it was held that the evidence 
 would not sustain a verdict for the plaintiff, and the defendant 
 could not be held guilty of any act of negligence contributing to 
 the injury of plaintiff's wife. liobinson, e/., in delivering the 
 opinion of the court says: "The defendant neither caused nor 
 contributed to the injury of plaintiff's wife unless it allowed the 
 
 ^St. Louis dk S. F. B. Co. v. Murray (Ark.) Dec. 19, 1891. 
 ''KleUier v. People's R. Co. (Mo.) 14 L. R. A. 613.
 
 428 PERIL THKOUGH NKttLIGENCE OF CARRIEE. 
 
 freiglit train to come so near to or so rapidly towards the passen- 
 ger coach as to frighten the passengers. It does not appear from 
 the testimony that a single one of those who leaped from the train, 
 except the plaintiff, saw the freight train coining. When the 
 plaintiff saw it, it was 300 or 400 3^ards distant, and, he says, 
 appeared to be moving rapidly. He does not state that he sup- 
 posed from what he saw there would be a collision. No one left 
 the train upon his own perception of danger. On the contrary, 
 those who used their senses felt no alarm, and remained in the 
 car. Whatever may have been the speed of the train when 300 
 or 400 yards distant, it was slowed to a full stop at least fifty 
 yards from the passenger coach. There was no actual danger." ' 
 The rule is inflexible that where a passenger is injured by leav- 
 ing a car in attempting to escape from apparent danger, it must 
 appear that that which produced the alarm was the carrier's neg- 
 ligence, or there can be no claim against him." This is very well 
 illustrated by an early case on the subject, where Lord Ellen- 
 borough, in charging the jury, said: "To enal)le the plaintiff" t<> 
 sustain the action it is not necessary that he should have been 
 thrown off the coach; it is sufficient if he was placed by the mis- 
 conduct of the defendant in such a situation as obliged him to 
 adopt the alternative of a dangerous leap or to remain at certain 
 peril. If that position was occasioned by the default of the de- 
 fendant, the action may be supported. On the other hand, if the 
 plaintiff's act resulted from a rash apprehension of danger, which 
 did not exist, and the injury wliich he sustained is to be attributed 
 to rashness and imprudence, he is not entitled to recover. . . , 
 A coach proprietor certainly is not to be responsible for the rash- 
 ness and imprudence of a passenger. It nmst appear that there 
 existed a reasonal)le cause for alarm." ° 
 
 Where a stage coach is upset by the act of the plaintiff' or his 
 wife in raslily or improperly springing from it, and there is no 
 want of proper skill, care or caution on the part of the driver, the 
 owner will not be liable; but if the M'ant of proper skill or care of 
 
 '(??///, C. & 8. F. R. Co. V. Wallen, 65 Tex, 568. See also Chimgo, II I. tt- 
 
 V. It. Co. V. Felton, 125 III. 458. 
 '> Chicago, R. I. cfc R. R. Co. v. Felton, 125 III. 458. 
 '■'JoncH V. Boyce, 1 Stark. 4y:{. Tliat c^ase was approvingly followed in Stokei* 
 
 V. Saltoiistal', ;58 U. S. i:} I'et. 181. 10 L. ed. 115, which presented similar 
 
 features of fact for adjudication.
 
 FAULT OF CAKKIKK MUST OCCASION DANGEK. 'i29 
 
 the driver places the pas.senoer in a state of peril, and they have 
 at that time reasonable ground for supposing the stage will upset 
 or that the driver is incapable of managing his horses, the plain- 
 tiff is entitled to recover, altliough the jury may believe from the 
 position in which the coach was placed by tlie negligence of the 
 driver, that the attempt of the plaintiff on his wife to escape may 
 have increased the peril or even caused the stage to upset, and 
 althougli they may also find that the plaintiff and his wife would 
 have sustained little or no injury, if they had remained in the stage.' 
 Jones V. Boye<\ 1 Stark. 493, was followed in IngaUs v. Bills, 
 9 Met. 1, 43 Am. Dec. 346, and the point ruled the same way. 
 There the words " reasonable precaution " and " prudent precau- 
 tion " were applied to the act of leaping from a stage coach, where 
 an axle-tree had broken and the hind wheel came off, causing the 
 coach to settle down on one side, as if about to be overset. 
 
 These earlv cases in Eno-land and this country are generallv 
 followed, and the substance of the rulings in them is given in the 
 formula above stated. Oecasionally, perhaps, there may be found 
 departures from that formula; but the great current of authority 
 flows in the direction heretofore indicated. Thus, in Coulter v. 
 American M. U. Exp. Co. 56 ]N. Y. 585, the plaintiff' was walk- 
 ing upon the sidewalk when an express wagon of the defendant 
 company, driven rapidly upon the sidewalk, came so quickly up 
 behind her that she had no time to look around, but instinctively 
 sprang aside to escape the impending danger, and in so doing 
 struck her head against a wall, receiving injuries; and it was ruled 
 in affirmance of the judgment that if she had time to look around 
 before jum})ing in order to discover the cause of her sudden alarm 
 it was her duty to do so; otherwise her instinctive effort to avoid 
 the danger would not defeat her right to a recovery, nor diminish 
 the defendant's previously incurred responsibility arising from his 
 negligent act. 
 
 The plaintiff' in another case was a passenger on a street car, the 
 route of which crossed a railroad track. Just as the street car 
 approached that track, upon which an express train was approach- 
 ing with the speed customary to such trains, the driver stopped 
 to allow a passenger to alight. Had he remained stationary, the 
 
 ^Stoke^ V. SaKonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115.
 
 430 PERIL THROUGH NEGLIGENCE OF CARRIER. 
 
 train could have passed; but he recklessly whipped up his horses^ 
 and drove on the railroad track in front of a fast moving train. 
 All of the passenajers in the car, with one exception, perceiving- 
 the danger, rushed out, and jumped from the car. The plaintiff, 
 in doing so, fell, and was injured, and the car passed over the 
 track just in time to escape the engine, the engineer, by promptly 
 reversing and by putting on brakes, Laving barely succeeded in 
 preventing a collision with the car ; and the plaintiff was held 
 entitled to recover, — the propriety of which decision cannot be 
 doubted, since all the elements of a great and impending peril 
 were present ; a peril produced by the recklessly negligent act of 
 the street car driver ; a peril, too, well calculated to disconcert the 
 highest self-possession, and appall the stoutest heart.* 
 
 In a New York case a passenger on a train, which was proceed- 
 ing west, saw another train coming on the same track towards the 
 one on which he was, at an unusual rate of speed, — i. e., about 2.j 
 miles an hour. Strenuous efforts were made, by reversing the 
 engine attached to the plaintiff's train, to avert a collision, but 
 without avail, for the collision occurred, driving the cars of one 
 of the trains from 40 to 60 rods over the ties, killing one man on 
 the eastward bound train, jamming up the westward bound train, 
 and breaking off some of the platforms of the cars. Upon seeing 
 the approaching train, the men jumping from other cars to avoid 
 the impending danger, the plaintiff left his seat, rushed to the 
 forward door of the car, and stepped one foot upon the platform 
 at the same instant of the collision and of his injury. And it was 
 held that the railway company was guilty of the grossest negli- 
 gence in allowino; the collision to occur in the circumstances there 
 stated, and of the plaintiff it was aptly said : " His act ^vas not 
 the result of a rash apprehension of danger that did not exist." "^ 
 The inquiry in such a case is. Did the negligence of the carrier 
 put the injured party to the choice of adopting the alternative of 
 an attempt to escape, or to remain under the apparently well 
 grounded apprehension of serious personal injury ? ' 
 
 ^Twomley v. Ce7itral Park N. & E. R. Co. 69 N". Y. 158, 25 Am. Rep. 1G2. 
 ■ ^Bvel V. Mw York Cent. B. Co. 31 N. Y. 314, 87 Am. Dec. 271. 
 
 ''Woolery v. Louutilk, N. A. & G. R. Co. 5 West. Rep. 667, 107 Ind. 381; 
 Jefftnomdle U. Go. v. Swift, 26 Iml. 459; Perinsylvanm R. Co. v. Aspell, 
 23 V&. 147; JoneH v. Doyce., 1 Stark. 492; Stokea v. Saltomtall, 38 U. S. IS
 
 FAULT OF CAKRIKU MUST OCCASION DANGEK. 431 
 
 One wlio acts unreasonably, rashly, or becomes frightened at a 
 trivia] occurrence not calculated to alarm a reasonably prudent 
 man, and thereby brings injury upon himself, cannot recover 
 damages therefor.' 
 
 Pet. 181, 10 L. ed. 115; Cardv. Ellsworth, 65 Me. 547; Sears v. Dennis, 
 105 Mass. 310; Wilson v. Noi-thern Fac. R. Co. 26 Minn. 278; Buel v. 
 New York Cent. R. Co. 31 N. Y. 314; Pittsburgh v. QrUr, 22 Pa. 54; 
 Indianapolis & St. L. R. Co. v. Stout, 53 Ind. 143. 
 ^ South Covington & C. St. R. Co. v. Wure, 84 Ky. 267.
 
 CHAPTER XXII. 
 
 STATE CONTROL OVER CARRIERS. 
 
 § 130. Not Entirely Surrendered by Grant of Charter. 
 § 131. How far the State may Regulate Subjects of Commerce. 
 § 132. National Control over Charges by Carrier. 
 § 133. State and National Control over Agencies of Commerce. 
 § 134. Common Carriers and Persons Controlling Grain Elevators 
 Occupy Analogous Positions. 
 
 § 130. Kot Entirely Surrendered by Grant of 
 
 Charter. 
 
 Tlie grant of power by a charter, to the directors of a raih'oad 
 company, to make needful rules and regulations touching the 
 rates of toll and the manner of collecting the same, does not 
 deprive the state of its general authority itself to regulate the 
 rates of toll to be collected by the company. 
 
 A charter of a railroad company giving power to the directors 
 of that company to make rules as to rates of toll does not consti- 
 tute an irrepealable contract with that company that it shall have 
 the right for all future time to prescribe its rates of toll, free from 
 control by the legislature of the state. A railrtjad corporation 
 takes its charter, containing such a provision, suljject to the gen- 
 eral law of the state, and to such changes as may be made in such 
 general law, and subject to future constitutional provisions and 
 future general legislation, in the absence of any prior contract 
 ^vith it exempting it from liabilitj^ to snch future general legisla- 
 tion. Exemption from future general legislation, either by a con- 
 stitutional provision or by an act of the legislature, does not 
 exist unless it is given expressly or unless it follows by an impli- 
 cation equally clear with express words.' 
 
 A railroad company is chartered solely for the purpose of per- 
 forming the duties of a common carrier. The grant in its char- 
 ter is nothing more than a right to be exercised within the same 
 
 ^Chicago, M. & St. P. It. Co. v. Minnesota, 134 U. S. 418, 3^ L. ed. 970. 
 
 432
 
 NOT ENTIKELY SURKEXDERED BY GRANT OF CHARTER. 433 
 
 limitations that the coinirion law, in behalf of justice and public 
 policy, imposes upon the natural man;' and in the exercise of its 
 authority the legislature may require railroad corporations and 
 persons operating railroads in the state to observe precautionary 
 measures against accident, forbid unjust discrimination and extor- 
 tionate charges; and, where there is no valid contract to the con- 
 trary, prescribe a reasonable maximum of charges for the service 
 to be performed by thom, and enforce the same by appropriate 
 pains and penalties. But the legislature cannot, under the pre- 
 tense of regulation, deprive a corporation of any of its essential 
 rights and privileges. In other words, the rules prescribed and 
 the power exercised, must be within the police power in effect, 
 and not covert amendments to their charters nor a curtailment of 
 their corporate franchises. Nor can the legislature in the exer- 
 cise of this power, make any regulation in contravention of the 
 state or national constitution.'' But it does not appear that there 
 has been any such confiscation as amounts to a taking of prop- 
 erty without due process of law, because the income of a railroad 
 at the rate of fare fixed by the statute will pay only 1-| per cent 
 on the original cost of the road. 
 
 In the absence of any legislative regulation upon the subject, 
 the courts must decide for the company, as they do for private 
 persons, when controversies arise, what rates are reasonable.^ Yet 
 state legislation which deprives owners of a railroad line within 
 the state of all compensation from their business, cannot be upheld 
 on the ground that the company is a foreign corporation. Nor 
 can it be upheld on the ground that the railroad affected therel)y 
 is an interstate road, and its deficiency of revenue may be made 
 up by receipts from interstate commerce or by traflic in other 
 states; or on the ground that a future increase of business may 
 render the prescribed rates remunerative." 
 
 The legislature of a state has the power to prescribe the charges 
 of a railroad company for the carriage of persons and mercliandise 
 within its limits, in the absence of any provision in the charter of 
 
 ^Chicago & A. R. Co. v. People, 67 111. 11. 
 ^Sharp V. Whiteside, 19 Fed. Rep. 156. 
 
 ^-Dow V. Beiddrnan, 2 Inters. Com. Rep. 56, 125 U. S. 680, 31 L. ed. 840. 
 *Chicftgo d- N. W. R. Co. v. Dey, 1 L. R. A. 744, 2 Inters. Com. Rep. 335, 35 
 Fed. Rep. 866. 
 
 28
 
 434: STATE C!0>'TKOL OVKR CAKKIKK8. 
 
 the company eonstitiitiiii;^ a contract vesting in it authority over 
 these matters, subject to the limitation tliat the carriage is not 
 required without reward or upon conditions amounting to the 
 taking of property for public use without just compensation, and 
 that what is done does not amount to a regulation of foreign or 
 interstate commerce.' 
 
 The control of commerce, being in the Federal government, is 
 not to be restricted by state authority.^ A state statute cannot 
 regulate rates for interstate commerce." The power of a state to 
 limit railroad charges for transportation can only be bargained 
 away, if at all, by words of positive grant or their equivalent. 
 Railroad companies are subject to legislative control as to their 
 rates of fare and freight, unless protected by their charters, or 
 unless what is done amounts to a regulation of foreign or inter- 
 state commerce.* The Legislature, in the exercise of its power 
 of regulating freights and fares, may classify the railroads accord- 
 ing to the length of their lines, if the same rule is applied to all 
 roads of the same class. If the classification operates uniformly, 
 the court cannot decide whether it was the best that could have 
 been made.* 
 
 The power to regulate a carrier's rates is not a power to destroy, 
 and limitation is not the equivalent of confiscation.' General 
 statutes fixing maximum rates of charges for transportation, when 
 not forbidden by charter contracts, do not deny to the railroad 
 companies the equal protection of the laws, or deprive them of 
 their property M'ithout due process of law, within the meaning of 
 the 14tli Amendment.'' A power of government which actually 
 
 ^Georgia B. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377; Dow v. Bei 
 delman, 3 Inters. Com. Rep. 56, 125 U. S. 680, 31 L. ed. 841. 
 
 *Pembina Consol. S. Min. & Mill. Co. v. Penmylmnia, 2 Inters. Com. Rep. 
 24, 125 U. S. 181, 31 L. ed. 650. 
 
 •WabasJt., St. L. & P. B. Co. v. People, 1 Inters. Com. Rep. 31, 118 U. S. 557, 
 30 L. ed. 244. 
 
 *Stone V. Farmers L. & T. Co. {"B. B. Commission Cases") 116 U. S.307, 29 
 L. ed. 636. See also Chicago, B. tfe Q. B. Co. v. Cutis, 94 U. S. 155, 24 
 L. ed. 94; Chicago, M. & St. P. B. Co. v. Ackley, 94 U. S. 179, 24 L. ed. 
 99; Winona & St. P. B. Co. v. Blake, 94 U. S. 180, 24 L. ed. 99; Buggies 
 V. Illinois, 108 U. S. 526, 27 L. ed. 812; Illinois Cent. B. Co. v. Illinois, 
 108 U. S. 541, 27 L. ed. 818. 
 
 ^Dow V. Beidelman, 2 Inters. Cora. Rep. 56, 125 U. S. 680, 31 L. ed. 841. 
 
 ^Chicago, M. & St. P. B. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970. 
 
 ''Stone V. Farmers L. & T. Co. 116 U. S. 307, 29 L. ed. 636.
 
 NOT ENTIRELY SUKKENDERED BY GRANT OF CHARTER. 435 
 
 exists is not lost by non-user.* The police power may protect 
 business interests by prohibiting discriminations, by regulating 
 tariffs, by enforcing facilities for the public. The Interstate Com- 
 merce Act of Congress illustrates this proposition.* 
 
 Because individuals may serve for hire, or may, without com- 
 pensation, donate their services, it does not follow that common 
 carriers by rail may do the same thing. Although the company 
 owns the property, it is also in the enjoyment of a public fran- 
 chise; and in the control of the property it has not the same meas- 
 ure of power that persons have and exercise over property that is 
 affected by no public use, and operated without the exercise of 
 any public franchise.^ 
 
 The Supreme Court of the United States has upheld statutes 
 which have been enacted in mau}^ states to regulate the compen- 
 sation of railroad companies Avithin their jurisdiction for the car- 
 riage of persons and goods. In the construction of the general 
 corporation law of the state of IoA\'a, Chief JuHtice Waite says : 
 ''Railroad companies are carriers for hire. They are incorporated 
 as such and given extraordinary powers, in order that they may 
 the better serve the public in that capacity. They are therefore 
 engaged in a public employment, affecting the public interest; 
 and subject to legislative control as to their rates of fare and 
 freight, unless protected by their charters." . . . But when 
 the legislature steps in and prescribes a maximum of charge, it 
 operates upon this corporation the same as it does upon individu- 
 als engaged in a similar business. . . . I^either does it affect 
 the case that before the power was exercised the company had 
 pledged its income as security for the payment of debts incurred, 
 and had leased its road to a tenant that relied upon the earnings 
 for the means of paying the agreed rent." ' 
 
 A railroad company brought an action to recover a reasonable 
 compensation for its services in the transportation of goods, which 
 exceeded the maximum prescribed by the legislature of the state 
 
 ^Chicago, B. & Q. R. Co. v. Cutts, 04 U. S. 155, 24 L. ed. 94; Leisy v, Har- 
 din, 135 U. B. 100, 34 L. ed. 128. 
 
 ^Boston & M. R. Co. v. York County Comrs. 4 New Eng. Rep. 657, 79 Me. 
 386. 
 
 ^Samuels v. Louismlle & N. R. Co. 31 Fed. Rep. 57. 
 
 * Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155, 34 L. ed. 94. 
 
 *Munn V. Illinois, 94 U. S. 113, 24 L. ed.77.
 
 436 STATK CONTROL OVKR CARKIKUS. 
 
 of Wisconsin, and Chief Justice Waite said, in the o])ini()ii: "As 
 between tlie company and a freig-liter, there is a statntf>rj h'mitu- 
 tion of tlie charge for transportation actnally perfornicd: . . 
 but for goods actually carried, tlie limit of the recovery is that 
 prescribed by the statute.'" 
 
 In referring to the Union Pacific Raili'oad Company, Chief 
 Justice Waite says: "This corpoi-ation is a ci-eatnre of the United 
 States. It is a private corporation created for public purposes; 
 and its property is to a large extent devoted to public uses. It is 
 therefore subject to legislative control so far as its business affects 
 t he public interests.'' " 
 
 Chief Justice Waite reaffirms this principle, and observes : "It 
 is now settled in this court that a state has the power to limit the 
 amount of charges by railroad companies for the transportation of 
 persons and property within its own jurisdiction, unless restrained 
 by some contract in the charter, or unless what is done amounts 
 to a regulation of foreign or interstate commerce." ^ The dissent 
 upon the question of state legislation iixing rates by carriers among 
 the members of the Supreme Court of the United States has not 
 been upon the question of original power, but whether the state 
 had not resigned the power in granting a charter. 
 
 Mr. Justice Field said : "The incorporation of the company, 
 by which numerous parties are permitted to act as a single body 
 for the purpose of its creation, or, as CJt'uf Justice Marshall 
 expresses it, by which 'the character and properties of individu- 
 ality' are bestowed 'on a collective and changing body of men,'* 
 the grant to it of special y)rivileges to carry out the object of its 
 incorporation, particularly the authority to exercise the state's 
 right of eminent domain that it may appropriate needed property, 
 — a right which can be exercised only for public purposes; and 
 the obligation assumed by the acceptance of its charter, to trans- 
 
 ^GMcafjo, M. & St. P. B. Co. v. Ackley, 94 U. S. 179, 24 L. ed. 99. 
 
 ^Sinking Fund Cases, 99 U. S. 700, 25 L. ed. 496. 
 
 *jStone V. Farmers L. & T. Co. [R. E. Comnmision Casei*), 116 U. S. 807, 29 L, 
 
 ed. 686. See also Leisy v. Hardin, l:}5 U. S. 100. 34 L. ed. 128;if«?i/iv. 
 
 lUinoU, 94 U. S. 113, 24 L. ed. 77; Peik v. Chicago & JSf. W. P. Co. 94 U. 
 
 S. 164, 24 L. ed. 97; Winona &St. P. P. Co. v. Plake, 94 V. S. 180. 24 L. 
 
 ed. 9!»; Slone v. Wisconsin, 94 U. S. 181, 24 L. ed. 102; liui/f/U'x v. Phnois, 
 
 108 U. S. 526, 27 L. ed. 812; Dow v. Dciddman, 2 Inters. Cora. Rep. 56,125 
 
 U. S. 680, 31 L. ed. 841. 
 *Provulence Bank v. Billings, 29 U. S. 4 Pet. 514, 562, 7 L. ed. 939, 956.
 
 MOT ENTIKKI.Y SLKKE^iDEKED BY GRANT OF CHAKTEB. 437 
 
 port all persons and merohaiKlise, upon like'conditions and upon 
 reasonable rates, — affect the property and employment with a 
 public use; and where property is thus affected, the business in 
 whicli it is used is subject to les^islative control. So long as the 
 use continues, the power of regulation remains; and the regulation 
 may extend not merely to provisions for the security of passengers 
 and freight against accidents, and for the convenience of the pub- 
 lic, but also to prevent extortion by unreasonable charges, and 
 favoritism by unjust diseriniiiuitions. This is not a new, but old 
 doctrine, always asserted \vhencver property or l)usiness is, by 
 ]-eason of special piivileges received from the government, the 
 better to secure the purposes to which the property is dedicated 
 or devoted, affected with a pul)lic use. There have been differ- 
 ences of opinion among the .judges of this court in some cases as 
 to the circumstances or conditions under which some kinds of prop- 
 erty or business may be properly held to be thus affected,' but 
 none as to the doctrine that, when such use exists, the business 
 becomes subject to legislative control in all respects necessary to 
 protect the public against damage, injustice and oppression. In 
 almost every case which has been before this court, where the 
 power of the state to regulate the rates and charges of railroad 
 companies for the transportation of persons and freight within its 
 jurisdiction has been under consideration, the question discussed 
 has not been the original power of the state over the subject, but 
 whether that poAver had not been, by stipulations of the charter, 
 or other legislation, amounting to a contract, surrendered to the 
 company, or been in some manner qualilied. It is only upon the 
 latter point that there have been differences of opinion." * 
 
 The local statutes regulating carriers are founded upon the 
 police power of the states. No court has attempted to define this 
 power with precision, although the general principles applicable 
 thereto have been established firmly in jurisprudence. Chief 
 Justice Shaw uses this language : ''We think it is a settled 
 principle, growing out of the nature of well ordered civil society, 
 that every holder of property, howe-ver absolute, and unqualified 
 may be his title, holds it under the implied liability that his use 
 
 ^Munn V. Illinois, 94 U. S. 113, 126, 139, 146. 24 L. ed. 77, 84, 89, 91. 
 ^'Oemgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377.
 
 438 STATE CONTKOI, OVEK CAKKIER3. 
 
 of it mav be so reg-nlated tliat it shall not be injurious to the equal 
 enjoyment of others having an equal right to the enjoyment of 
 their property, nor injurious to the rights of the community. . 
 . . Eights of property, like all other social and conventional 
 rights are subject to such reasonable limitations in their enjoy- 
 ment as shall prevent them from being injurious, and to such 
 reasonable restraints and regulations establislied by law as the 
 legislature, under the governing and controlling power vested in 
 them by the constitution, may think necessary and expedient, 
 . . . The power we allude to is rather the police power, the 
 power vested in the legislature by the constitution to make, 
 ordain and establish all manner of wholesome and reasonable laws, 
 statutes and ordinances, either with penalties or without, not 
 repugnant to the constitution, as they shall judge to be for the 
 good and welfare of the common weal tli, and of the subjects of the 
 same.'" 
 
 Chief Jtistice Hedfield said, in an opinion : "We tliink the 
 power of the legislature to control existing railways in this respect 
 may be found in the general control over the police of the country, 
 which resides in the law making power in all free states. . . . 
 The police power of the state extends to the protection of the 
 lives, limbs, health, comfV>rt and quiet of all persons, and the pro- 
 tection of all property within the state. According to the maxim, 
 sic 'utere tuo nt aVienviii non Iwdas, which being of universal 
 application, it mnst of course be within the range of legislative 
 action to define the mode and manner in which everyone may so 
 use his own as not to injure others. So far as raih-oads are con- 
 cerned, this police power, wliich resides primarily and ultimately 
 in the legislature, is twofold.''^ 
 
 In discussing this legislation. Pierce on Kaih-oads, 460, says: 
 "Such laws may incidentally impair the vahie of franchises, or of 
 
 ^Cont V. Alger, 7('us)i. "»:}. 
 
 ^Thorpe v. lluU<nid A: II R. Co. 27 \'t. 140. See State v. Winona cfc St. P. 
 It. Co. lit Minn. 4:54 (Gil. ;{77). nffinned, 94 U. S. 180, 24 L. ed. 244; ]Va- 
 tirtoicn V. Mai^o, lO'J Mhhs. 815; Com. v. Certain 1 ntoxicating Liquors, 115 
 Mass. l.W, afliinicd, 97 U. S. 2"), 24 L. ed. 989; Xorthwcstern. Fertilizing 
 Co. V. Ifi/ile Park, 97 U. S. <).")9, 24 L. ed. 10:3(i; Xcw Orleans Gas Light Go. 
 V. Louisiana J.. & //. P. d- Mfg. Co. 115 I'. S (J50, 'I'd \j. ed. 51G; Mngler 
 V. Kansas, 123 U. S. (i23, •!! L. ed. 205; liinhmacher v. Mihcaxikce <£ St. 
 P. It. Co. 41 Iowa, 297.
 
 HOW i-AR THE STATK MAV KEUUi.ATK yLlJ.IKClS OF C«JMMKKOE. 439 
 
 riglits held uiuloi- (Contracts, Imt tlicy are enacted divei'80 intuitu^ 
 and are not Avithin tlu' constitutional inhihition." 
 
 Mr. Judiee Endieott, as the organ of the Massachusetts Su- 
 preme Court, said: ''Eveiy snch law limits, restrains, impairs, 
 and in some cases destroys the nsi's which M'ere previously enjoyed 
 of the property so made the suUject of legislation, hut the extent 
 to which it may do so does not atfect the validity of such laws, or 
 their equal application to all owners of such property. They are 
 presnmed to be passed for tlic common good, and to be necessary 
 for the protection of the public, and cannot be said to impair any 
 right, or the obligation of any contract, or to do any injury, in the 
 proper and legal sense of these terms.'" 
 
 The Supreme ('ourt of the United States saj^s: "The consti- 
 tutional prohibition upon state laws, impairing the obligation of 
 contracts, does not restrict the power of the state to protect the 
 public health, the public morals or the pul)lic safety, as the one or 
 the other may be involved in the execution of such contracts."* 
 
 § 131. How Far the State Diet ij Regulate Siilrjeets 
 of Coininerce. 
 
 The states may regulate subjects of commerce which are local 
 and limited in their nature or spliere of (jpcration until Congress 
 intervenes. Laws passed by the individual states, under their 
 general authority over internal concerns, may incidentally affect 
 foreign and interstate commerce Mithout conflicting with the Con- 
 stitution of the United States, pro\ided they do not discriminate 
 against such commerce and are not inconsistent with the acts of 
 Congress.^ There is a commei-ce wholly within the state, which 
 
 ^Com. V. Certain Into-vkali/if/ Liquorx, 115 Mass. 153. 
 
 '^New Orieana Gas Light Co. v. Louisiana L. & 11. P. tt- Mf(]. Co. 115 U. S. 
 660, 29 L. ed. 516. 
 
 *8tate V. JS'ewton, 2 Inters. Com. Rep. 63, 50 N. J. L. 534; Qloiicester Ferry 
 Co. V. Pcnnsylmnia, 114 U. S. 196, 29 L. ed. 158; Welton, v. Mixsouri, 91 
 U. S. 275, 278, 23 L. ed. 347, 349; Brown v. Houston, 114 U. S. 623, 29 L. 
 ed 257; Cooley v. Port Wardens of Philadelphia, ~i'd U. S. 12 How. 299, 13 
 L. ed. 996; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Oilman v. Phil- 
 adelpJiia, 70 U. S. 3 Wall. 713, 18 L. ed. 96; Wilson v. Black Bird Creek 
 Marsh Co. 27 U. S. 2 Pet. 245, 7 L. ed. 412; Kseanuba & L. M. Transp. 
 Co. V. Chicago, 107 U. S. 679, 27 L. ed. 443; Miller v. New York, 109 U. 
 S. 385, 27 L. ed. 971; CardweU v. American Piver Bridge Co. 113 U. S. 
 305. 28 L. ed. 959.
 
 440 STATE CONTROL OVER CAHKIKKS. 
 
 is not subject to the constitutional proVit^ion, and a distinction 
 between commerce among states and between citizens of a single 
 state, conducted within its limits.' Thus tlie power of Congress 
 to regulate navigation does not interfere with the power of the 
 states to protect and regulate the fisheries within their limits.' 
 
 The power of Congress does not usually interfere with the 
 police powers of the states.' Legislation of a state relating to 
 the rights, duties and liabilities of citizens, and only indirectly and 
 remotely affecting the operations of commerce, is of obligatory 
 force upon citizens within its territorial jurisdiction, whether on 
 land or water, or engaged in commerce, foreign or interstate, or 
 in anj^ other pursuit.* Under the police power, it is as competent 
 and as necessary for a state to provide precautionary measures 
 against the moral pestilence of paupers, vagabonds, and possibly 
 convicts, as it is to guard against a physical pestilence, which may 
 arise from unsound and infectious articles imported, or from a 
 ship, the crew of which may be laboring under an infectious dis- 
 ease.^ Undoubtedly, a state may remove from among its terri- 
 tory any person guilty of, or charged with crime, and may arrest 
 and imprison them in order to effect this object. This is a part 
 of the ordinary police power of the states, wliich is necessary to 
 their very existence, and wliich they have never surrendered to 
 tlie general government. They may, if they think proper, in 
 order to deter offenders in other countries from cominp- among- 
 them, make crimes committed elsewhere punishable in their 
 courts, if the guilty party shall be found Avitliin tlieir juris- 
 diction.' 
 
 But the states cannot so exercise the police power as to work a 
 practical assumption of the power vested in Congress.' The in- 
 ternal conmierce of a state is not within the poAver of Con- 
 
 ^ Louisville, N. 0. & T. R. Co. v. Mimssippi,2 Inters. Com. Rep. 801, 133 U. 
 
 S. 587. 33 L. ed. 784. 
 ^McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248: Smith v. Maryland, 59- 
 
 U. S. i« How. 71, 15 L. ed. 269; Green v. T/ie Helen, 1 Fed. Rep. 916. 
 'Hannibal <f- St. J. H. Co. v. Hv.sen, 95 U. S. 465, 24 L. ed. 527; Webber v. 
 
 Virginia, 103 U. S. 344, 26 L. ed. 565. 
 *S/ierlock v. Allinf/, 93 U. S. 99. 104, 23 L. ed. 819, 820; Nashoilk, C. tD 8t, 
 
 L. li. Co. V. Alabama, 128 U. S. 96, 32 L. ed. 352. 
 ^New Yorkv, Miln, 11 Pet. 102. 
 * Holmes v. Jenniwn, 14 Pet. 540, 568. 
 ■'Hannibal & St. J. R. Co. v. Htiaen, 95 U. S. 465. 24 L. ed. 527.
 
 HOW I'AK THE STATE MAY REGULATE SUBJECTS OF COMMEUOE. 441 
 
 ^•ress.' Taxation of a eliattel used in interstate oonimerce is not 
 necessarily a reiiulatioii of such comnierco witliin the nieanino: of 
 the Constitution." State legislation may in a v^ariety of waysaifect 
 (tomniorce and persoTis onijaged in it, witiioiit constituting a regu- 
 lation of coninuMve witliin tlie meaning of the Constitution.* 
 Thus a municipal ordinance levying a tax of $50 upon every 
 I'ailroad running throtigli the (•or[)orate Hinits, whether it be called 
 a privik'ge tax or ]>y some othei* name, being a tax im])osed upon 
 business in the town, if authorized by the state law, it has been 
 held is not void as a tax on interstate coinmeree nor as a violation 
 of the principle of uniformity of taxation." 
 
 But a state tax upon earnings of sleei)iiig car company engaged 
 in transporting passengers from one state to another is void.* A 
 state tax upon a carrier upon gross i-eceij)ts from transportation 
 between different states, and to and fi-om foreign countries, is un- 
 constitutional." The capital stock of a foreign ferry company 
 engaged in interstate traffic is not ta\al)le by a state.' A state can- 
 not regulate interstate commerce." A state tax upon interstate 
 commerce is void.* A state law im})osing such tax is not cured by 
 
 ^The Daniel Ball v. United States, 77 U. S. 10 Wall. 557, 19 L. ed. 999; 
 United States v. Be Witt, 76 U. S. 9 Wall. 41, 19 L. ed. 593; Venzie v. 
 Moor, 55 U. S. 14 How. 568, 14 L. ed. 54."). 
 
 •'Wiggins Ferry Co. v. East Si. Louis, 107 U. S. 365, 27 L. ed. 419; Wheeling, 
 P. <& 0. Transp. Co. v. Wheeling, 99 U. S. 373, 25 L. ed. 412. 
 
 ^Eidd V. Fear.son, 128 U.-S. 1. 32 L. ed. 346: HaU v. DeCuir, 95 U. S. 485. 
 
 24 L. ed. 547; Sherlock v. Allinq, 93 U. S. 103, 23 L. ed. 820; Munn v. 
 
 lUinovi, 94 U. S. 113, 24 L. ed. 77; Pound v. Turck, 95 U. S. 459. 24 L. 
 
 ed. 525. 
 '^Richmond tfe D. B. Co. v. lieidwil/e, 2 Inters. Com. Rep. 416, 2 L. R. A. 
 
 284. 101 N. C. 404. 
 
 'Indiana v. Wfjodruff Sleeping & P. C. Co. 1 Inters. Com. Rep. 798, 114 Ind. 
 155; Wabash, St. L. & P. B. Co. v. Illinois, 1 Inters. Com. Rep. 37, 118 
 U. 8. 557, 30 L. ed. 244. 
 
 ^Philadelphia & S. M. SS. Go. v. Pennsylvania, 1 Inters. Com. Rep. 308, 
 122 U. S. 326, 30 L. ed. 1200; Fargo v. Stevens, 1 Inters. Com. Rep. 51, 
 121 U. S. 230, 30 L. ed. 888. 
 
 "> Gloucester Ferry Co. v. Penn.'<ylvania, 1 Inters. Com. Rep. 382, 114 U. S. 
 196, 29 L. ed. 158. 
 
 ^Wabash, St. L. & P. B. Co. v. Illinois, 1 Inters. Com. Rep. 31, 118 U. S. 
 557, 30 L. ed. 244; Western U. Teleg. Co. v. Pendleton, 1 Inters. Com. 
 Rep. 306, 112 U. S. 547, 30 L. ed. 1187. 
 
 *Se Hennick, 1 Inters. Com. Rep. 66, 5 Mackey, 489; Bowman v. Chicago 
 & N. W. B. Go. 1 Inters. Com. Rep. 830, 125 U. S. 465, 31 L. ed. 700.
 
 442 STATK C<:>NTROL OVKi: GAKKIKUS. 
 
 including in its provisions subjects within the jurisdiction of a state/ 
 Xo state can impose a tax upon that portion of interstate com- 
 merce which is involved in the transportation of persons and 
 property, whatever be the instrumentality by which it is carried 
 on." The only state interference with the landing and receiving 
 •of passengers and freight which is permissible is confined to such 
 measures as will prevent confusion among vessels and collision 
 l)etween them, and insure their safety and convenience and facili- 
 tate the discharge and receipt of passengers and freight/ But a 
 license tax on persons engaged in interstate commerce or mer- 
 chandise, not the growth, produce, or manufacture of the state, 
 conflicts with the power of Congress.* I^o state can, consistently 
 with the Federal Constitution, impose upon the products of other 
 states brought therein for sale or use, or upon citizens because 
 •engaged in the sale therein, or the transportation thereto of the 
 products of other states, more onerous public burdens or taxes 
 than it imposes upon the like jiroducts of its own territory.* 
 
 An agent in San Francisco, California, of a railroad corporation 
 having its principal place of business in Chicago and operating a 
 continuous line of road between Chicago and Kew York, whose 
 duty it was to solicit passenger traffic over such road, cannot be 
 •convicted of a misdemeanor for not paying the license tax required 
 by Order 1589 of the city and county of San Francisco, imposing 
 municipal licenses. Such order, so far as it affects such agent, 
 imposes a tax on interstate commerce and is therefore repugnant 
 to clause 3, § 8, art. I., known as the " commerce clause," of the 
 United States Constitution. The business of such agent, being to 
 solicit passenger traffic out of California into and througli other 
 
 ^Philadelphia & 8. M. SS. Co. v. Penmylvfinia, 1 Inters. Com. Kep. 308, 
 
 122 U. S. 326, 30 L. ed. 1200; Re Hennick, 1 Inters. Com. Rep. 70. 5 
 
 Mackey, 489; Bowman v. Chicago & N. M\ R. Co. 1 Inters. Com. Rep. 834, 
 
 125 U. S. 465, 31 L. ed. 700. 
 ^Jiowvian V. CMrago & N. W. R. Co. 1 Inters. Com. Rep. 829. 125 U. S. 465, 
 
 31 L. ed. 700; (Uouceder Ferni Co. v. Fennsz/frania, 1 Inters. Com. Rep. 
 
 382. 114 U. S. 196, 29 L. ed. 158. 
 *(llouccHter Ferry Co. v. Peaiuylcaida, 1 Inters. Com. Rep. 382, 114 U. S. 
 
 196, 29 L. ed. 158. 
 *Tiernan v. Rinker, 102 U. S. 123, 26 L. ed. 103; Cook v. Pennsylvania, 97 
 
 U. S. 566, 24 L. ed. 1015; O'ly v. naltimore, 100 U. S. 434,25 L. ed. 743. 
 
 and authorities cited and reviewed. 
 ^Gny V. Baltimore, 100 U. 8. 434, 25 L. ed. 743. See also Moran v. New 
 
 Orleann, 112 U. S. 69, 28 L. ed. 653, and authorities cited.
 
 HOW lAK THK STATii MAY KKULLAIE SIBJKCTS OK C<.)M>[KKOK. 443 
 
 states to New York City, is a part of interstate coiiiTnerce. 
 Such commercial clause not only prohibits a state from taxing 
 interstate commerce when it passes through its own teriitory but 
 also when it passes through other states. The essentiality 
 of the business of such agent to the commerce of the road lie 
 represents is not the test as to whether that business was a part of 
 interstate commerce,' and a state law re(piiring the master of a 
 vessel, engaged in foreign commerce, to pay a certain sum to a 
 state ofHcer on account of each passenger brought from a foreign 
 country, is also void." 
 
 Statute disqualifying persons who are color blind fi-om certain 
 service on railroads, and providing for their examination, and 
 providing a tine upon any company employing any j)erson for 
 such service without a certificate from examiners, is not invalid as 
 a regulation of commerce or as depriving any person of property 
 without due process of law. Requiring a railroad company to pay 
 fees for examining persons for certain raih'oad service does not 
 deprive them of property without due process of law.' But this 
 ruling is disputed aiul it is said the question was not before the 
 Supreme Court of the United States in the case in which this 
 ruling was announced.* 
 
 Reasonable charges for the use of pro2)erty or for additional 
 facilities, whether imposed as a tax or otliervvise. do not interfere 
 with the power of Congress.* 
 
 ^McCall V. California, 3 Inters. Com. Eep. 181, 136 U. S. 104, 34 L. ed. 391. 
 
 "•Paisenger Cases, 48 U. S. 7 How. 283, 12 L. ed. 702. 
 
 ^Nashville, C. & 8t. L. R. Co. v. Alabama, 2 Inters Com. Rep. 238, 128 U. 
 S. 96, 99, 32 L. ed. 352, 3r)3: Smith v. Alabama, 1 Inters. Com. Rep. 804, 
 124 U. S. 465, 31 L. ed. 508. 
 
 *Louisville & N. R. Co. v. Baldwin, 85 Ala. 619. 
 
 ^Oloiicester Ferry Co. v. Pennsylvania, 1 Inters. Com. Rep. 383, 114 U. S. 
 196, 29 L. ed. 158, and the authorities cited in the opinion of the court. 
 See, generally. Gibbons v. Oyden, 22 U. S. 9 Wheat. 1, 6 L. ed. 23, note; 
 Brown v. Maryland, 25 U. S. 12 Wheat. 419, 6 L. ed. 678, note. On the 
 general subject of the rights and disabilities of the states in relation to 
 corporations or individuals engaged in interstate commerce, see also Cor- 
 mn V. Maryland, 1 Inters. Com. Rep. 50. 120 U. S. 502, 30 L. ed. 699; 
 Fargo v. Stevens, 1 Inters. Com. Rep. 51, 121 U. S. 230, 30 L. ed. 888; Re 
 Sennick, 1 Inters. Com. Rep. 66, 5 Mackey, 489; Barron v. Burnside, 1 
 Inters. Com. Rep. 295, 121 U. S. 186, 30 L. ed. 915; State v. Pratt, 1 
 Inters. Com. Rep. 299, 59 Vt. 590; Ouachita & M. R. Packet Co. v. 
 Aiken, 1 Inters. Com. Rep. 379, 121 U. S. 444, 30 L. ed. 976; Stockton v. 
 Baltimore & N. Y. R. Co. 1 Inters. Com. Rep, 411, 32 Fed. Rep. 9; 
 Becker v. Baltimore & N. T. R. Co. 1 Inters. Com. Rep. 434. 30 Fed. 
 Rep. 723; TJttl^ Rock & Ft. 8. R. Co. v. Hanniford, 1 Inters. Cora. Rep.
 
 444 STATE CUMTKUL OVER CARRIKKS. 
 
 § 132. J\ational Control over Charges hy Carriers. 
 
 While, by virtue of its jurisdiction over persons and property 
 within its limits, a state may provide for the security of the lives, 
 limbs, health and comfort of pei'sons and the protection of prop- 
 erty, so sitnated, yet a subject-matter which has been confined 
 exclusively to Congress by the Constitution is not within the juris- 
 diction of the police power of the state, unless placed there by 
 congressional action/ The power to regulate commerce among 
 the states is a unit and transportation of persons is as much com- 
 merce as transportation of property,'' and the power of Congress 
 is supreme over interstate commerce, unembarrassed by state 
 laAVS.^ This power vested in Congress is the power to prescribe 
 the rules by which it shall be governed,* but if particular subjects 
 A\ithin its operation do not require the application of a general or 
 uniform system, the states may legislate in regard to them with a 
 view to local needs and circumstances, until Congress otherwise 
 directs. 
 
 The paramount authority to regulate bridges, and other struc- 
 tures that affect the navigation of the navigable waters of the 
 United States, is in Congress.* But in the absence of legislation 
 
 580 ; JVew Orleans & M. Packet Co. v. James, 1 Inters. Com. Rep. 599, 32 
 
 Fed. Rep. 21; Slate v. Fitzpafrick, 1 Inters. Com. Rep. 713, 16 R. I. 54; 
 
 Listv. Pennsylvania, 1 Inters. Com. Rep. 785, 118 Pa. 322; Indiana v. 
 
 Woodruff Sleepi?ir/ & P. 0. Co. 1 Inters. Com. Rep. 798, 114 Ind. 155; 
 
 Smith V. Alabama, 1 Inters. Com. Rep. 804, 124 U. S. 465, 31 L. ed. 508; 
 
 Boicman v. Chicago & N. W. E. Co. 1 Inters. Com. Rep. 823, 123 U. 8. 
 
 465, 31 L. ed. 700; Alabama v. Agee, 2 Inters. Com. Rep. 21; Pembina 
 
 Connol S. ^fin. & Mill. Co. v. Pennsylvania, 2 Inters. Com. Rep. 24, 125 
 
 U. S. 181, 31 L. ed. 650; State v. JSewton, 2 Inters. Com. Rep. 63, 50 N. 
 
 J. L. 534. 
 ^Henderson v. Neio York City, 92 TI, S. 259, 23 L. ed. 543; Hannibal & St. 
 
 J. R. Go. V. Husen, 95 U. S. 465, 24 L. ed. 527; Walling v. Michigan, 116 
 
 U. 8. 446, 29 L. ed. 691; Bobbins v. Shelby County Tax. Dist. 120 U. S. 
 
 489, 30 L. ed. 694. 
 ^Louisville. M. 0. & T. R. Co. v. State, 2 Inters. Com. Rep. 615, 5 L. R. A. 
 
 132, 66 Miss. 662. 
 ■'Stockton V. Baltimore & N. 7. R. Co. 1 Inters. Com. Rep. 411, 33 Fed. 
 
 Rep. 9; Bowman v. Chicaqo & N. W. R. Co. 1 Inters. Com. Rep. 833, 25 
 
 U. S. 465, 31 L. ed. 700. 
 *(}lovcester Ferry Co. v. Pennsylvania, 1 Inters. Com. Rep. 382, 114 U. 8. 
 
 196, 29 L. ed. 158. 
 ■Newport <t C. Bridge Co. v. United States, 105 U. S. 470, 26 L. ed. 1143, and 
 
 authorities cited.
 
 NATIOXAL CO-NTliUh U\ Kli CUAKUKsi BV (JAiaUKKs. 445 
 
 by Congress, the states may antlioiize and regulate bridges and 
 other obstructions to navitfution within their limits.' Congress 
 may improve harbors and rivers.'' Tlie states may also improve 
 the navigable watin-s within their limits, subject to tlie control of 
 Congress/ but the power thus exercised by the state is not 
 identical in its extent with the power to regulate commerce among 
 the states. The power to pass laws in respect to internal com- 
 jnerce, inspection laws, quarantine laws, health laws and laws in 
 relation to bridges, ferries and highways, belongs to the class of 
 powers pei'taining to locality, essential to local intercommunica- 
 tion, to the progress and de\'elopnient of local prosperity and to 
 the protection, the safety and welfare of society, originally neces- 
 sarily belonging to, and upon the adoption of the Constitution 
 reserved by, the states, except so far as falling within the scope 
 of a power confided to the general government. 
 
 A late well known case in the United States Supreme Court * 
 was instituted upon the theory of repugnancy between the state 
 law and the interstate commerce clause of the Constitution, and 
 involves a distinction between the commercial power and tlie 
 police power, which, though quite distinguishable when they do 
 not approach each other, are sometimes, like the colors, so nearly 
 allied as to perplex the understanding, as the colors do the vision. 
 The Iowa laws, held to be unconstitutional,* were enacted in the 
 exercise of the state's police power and not at all as regulations of 
 interstate commerce; but as it amounted in effect to a regulation 
 of such commerce it was held that so long as Congress did not 
 pass any law to regulate specifically the traffic between the states 
 in intoxicating liquors, or act in such way as to allow state laws 
 to operate uj^on it, Congress thereby indicated its will that such 
 commerce should be free and untrammeledj and therefore that 
 rhe laws of loMa were inoperative in so far as they amounted to 
 legulations of foreign or interstate commerce in inhibiting the 
 reception of such articles within the state or their sale upon arri- 
 val in the form in which imported. It followed as corollary that 
 
 ^Gardwdl v. American River Bridge Co. 113 U. S. 205, 38 L. ed. 959, and 
 
 authorities cited. 
 •^South Carolina v. Georgia, 93 U. S. 4, 33 L. ed. 782. 
 -'Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238. 
 *WUkersonv. liahrer, 140 U. S. 545, 34 L. ed. 572. 
 ^Leisi/ V. Harilin, 135 U. S. 100, 35 L. ed. 128.
 
 446 STATK CONTKOL OVEK CAKRIERS- 
 
 when Congress acted at all, the result of its action must be to 
 operate as a restraint upon that perfect freedom which its silence 
 insured. Congress has now spoken and declared that imported 
 liquors shall upon arrival in a state fall within the category of 
 domestic articles of a similar nature. By the Constitution, section 
 10, article 1, certain powers are enumei'ated M-hich the states are 
 forbidden to exercise in any event, and also certain powers which 
 mav be exercised with the consent of Cono-ress. It is earnestly 
 contended that the Original Package Act, as a regulation of com- 
 merce, falls within the powers which the states are forbidden to 
 exercise, and that the Constitution guarantees freedom of com- 
 merce among the states in all things, and that not only may 
 intoxicating liquors be imported from one state into another mth- 
 out being subject to regulation under the laws of the latter, but 
 that Congress is powerless to obviate that result. Thus the grant 
 to the general government of a power designed to prevent em- 
 barrassing restrictions upon interstate commerce by any state 
 would be made to forbid any restraint whatever. 
 
 The Supreme Court declined to concur in this view, holding that 
 in surrendering their own power over external commerce the states 
 did not secure absolute freedom in such commerce, but only the 
 protection from encroachment ali'orded by confiding its regulation 
 exclusively to Congress. By the adoption of the Constitution the 
 abiHty of the several states to act upon the matter solely in accord- 
 ance with their own will was extinguished and the legislative will 
 of the general government substituted. No affirmative guaranty 
 was thereby given to any state of the right to demand as between 
 it and tlie others what it could not have obtained before, while 
 the ol)ject was undoubtedly sought to be attained of preventing 
 commercial regulations partial in their character or contrary to 
 the common interests. And the magnificent growth and pros- 
 ]XM-ity of the country attest the success which has attended the 
 accomplishment of that object. 
 
 But tliis it is said furnishes no support to the position that Con- 
 gress could not, in the exercise of the discretion reposed in it, 
 concluding tliat the common interests did not require entire free- 
 dom in the traffic in ardent spirits, enact the law in question. In 
 so doing Congress has not attempted to delegate the power to 
 rcguliitc coniiiicrcc, or to exercise any power reserved to the
 
 NATIONAL CONTROL OVEK CHARGES BY CARRIERS. 447 
 
 states, or to grant a power not possessed bv the states, or to adopt 
 state laws. Its Las taken its own course and made its own regu- 
 lations, applying to these subjects of interstate commerce one 
 common rule, whose uniformity is not affected by variations in 
 state laws in dealing M'ith such property. The power to regulate 
 is solely in the general government, and it is an essential part of 
 that regulation to prescribe the regular means for accomplishing 
 the introduction and incorporation of articles into and with the 
 mass of property in the country or state. 
 
 The court could see no reason why if Congress chooses to pro- 
 vide tliat certain designated subjects of interstate commerce shall 
 be governed by a rule which divests them of that character at an 
 earlier period of time than would otherwise be the case it is not 
 within its competency to do so. 
 
 The differences of opinion which have arisen in the court upon 
 this subject have been not from a denial of the power of Con- 
 gress, when exercised, but upon the question whether the inaction 
 of Congress was in itself equivalent to the affirmative interposi- 
 tion of a bar to the operation of an undisputed power possessed 
 by the states. Where the subject-matter requires a uniform system 
 as between the states, the power controlling it is vested exclusively 
 in Congress, and cannot be encroached upon by the states.' 
 
 The power to regulate conunerce among the several states com- 
 prehends the power to regulate the navigable waters of the United 
 States on which such commerce may be or is carried; and to this 
 end Congress may make any regulation concerning such naviga- 
 tion, including the vessels engaged therein, as may be necessary 
 and proper to secure and maintain the safety and convenience of 
 the waterM''ay; which regulations are so far applicable to vessels 
 engaged only in intrastate commerce thereon as to those engaged 
 in interstate commerce. Thus the regulation contained in § 4465 of 
 U. S. Rev. Stat., forbidding a steamboat to carrj^ more passengers 
 than allowed in her certificate of inspection, has been held to 
 apply to such boats engaged in carrying passengers on a navigable 
 
 ^Gloucester Ferry Go. v, Pennsylvania, 1 Inters. Com. Rep. 383, 114 U. S. 196, 
 29 L. ed. 158; Welton v. Missouri, 91 U. 8. 275, 278, 23 L. ed. 347, 349; 
 Gilman v. Philadelphia, 70 U, S. 3 Wall. 713, 18 L. ed. 96; Henderson v. 
 JSfew York, 92 U. S. 259, 23 L. ed. 543; Mobile County v. Kimball, 102 U. 
 S. 691, 26 L. ed. 238; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257.
 
 418 STATE CONTROL OVER CARRIERS. 
 
 ■water of the United States between ports of the same state only.' 
 But where, in relation to the subject-matter, different rules may 
 be suitable for different localities, the states may exercise powers 
 which, though they may be said to partake of the nature of the 
 power granted to the general government, are strictly not such, 
 but are simply local powers, which have full operation until or 
 unless circumscribed by the action of Congress in effectuation of 
 the general power." 
 
 It was stated in the 32d number of The Federalist that the 
 states might exercise concurrent and independent power in all 
 cases but three: first, where the power was lodged exclusively in 
 the Federal Constitution; second, where it was given to the United 
 States and prohibited to the states; third, where, from the nature 
 and subjects of the power, it must necessarily be exercised by the 
 national government exclusively. But it is easy to see that Con- 
 gress may assert an authority under one of the granted powers, 
 which would exclude the exercise by the states upon the same 
 subject of a different but similar power, between which and that pos- 
 sessed by the general government no inherent repugnancy existed. 
 Whenever, however, a particular power of the general govern- 
 ment is one which must necessarily be exercised by it, and Con- 
 gress remains silent, this is not only not a concession that the pow- 
 ers reserved by the states may be exerted as if the specific power 
 had not been elsewhere reposed, but, on the contrar}-, the only 
 legitimate conclusion is that the general government intended that 
 power should not be aflirmatively exercised, and the action of the 
 states cannot be permitted to eft'ect that whicli would be incom- 
 patible with such intention.' 
 
 Transportation is essential to commerce, and every obstacle to 
 it or burden laid upon it by legislative authority is regulation.* 
 Hence, inasmuch as interstate commerce, consisting in the trans- 
 portation, purchase, sale and exchange of commodities, is national 
 
 ^The City of Salem, 2 Inters. Com. Rep. 418, 2 L. R. A. 380, 13 Sawy. 607. 
 
 ^Cooley V. Port Wardens of Philadelphia, 53 U. S. 12 IIow. 299, 13 L. ed. 996. 
 
 'Glovcester Ferry Co. v. Pennsylvania, 1 Inters. Com. Rep. 382, 114 U. S. 196, 
 29 L. ed. 158; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Escanaba 
 <fe L. M. Transp. Co. v. Chicacjo, 107 U. S. 679, 27 L. ed. 442; Henderson 
 V. Mw York, 92 U. S. 259, 23 L. ed. 543; Brown v. Houston, 114 U. 8. 
 622, 29 L. ed. 257. 
 
 *HanT,ibal & St. J. li. Co, v. Husen, 95 U. S. 465, 24 L. ed. 527, and author- 
 ities cited.
 
 NATIONAL OkXTKUL OVKR CHAIWKS BY CARRIERS. 449 
 
 in its character, and must be governed by a uniform system, so 
 long as Congress does not pass any law to regulate it, or allowing 
 the states so to do, it thereby indicates its will that such commerce 
 shall be free and nntrammeled.' 
 
 The power of the state to impose restraints and burdens upon 
 persons and pro})erty in promotion of the public health, good 
 order, and prosperity is a power always belonging to the states, 
 not surrendered by them to the general government nor directly 
 restrained by the Constitution of the United States, and essentially 
 exclusive. The power of Congress to regulate commerce among 
 the several states, when the subjects are national in their nature, 
 is also exclusive. The Constitution does not provide that interstate 
 commerce shall be free, but by the grant of this exclusive power to 
 regulate it, it was left free except as Congress might undertake to 
 regulate it. Therefore, it has been determined.' that the failure 
 of Congress to exercise this exclusive j)ower in any case is an 
 expression of its will that tlie subject shall be free from restric- 
 tions or impositions upon it by the several states. And if a state 
 law comes in conflict with the will of Congress, the state and Con- 
 gress cannot occupy the position of equal opposing sovereignties, 
 because the Constitution declares its supremacy and that of the 
 Jaws passed in pursuance thereof. That which is not supreme 
 jnust yield to that which is supreme. 
 
 Intoxicating liquors are undou])tedly subjects of commerce like 
 any other commodity, and are so recognized, but nevertheless it 
 has been often held that laws prohi])iting the manufacture and 
 sale of liquor within state limits does not necessarily infringe any 
 constitutional privilege or immunity, this right being rested, as in 
 JIugler v. Kansas, upon the acknowledged right of the states to 
 control their purely internal affairs, and in so doing to j^rotect the 
 health, morals, and safety of their people by regulations that do 
 not interfere with the powers of the general government.' 
 
 ^Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; Brawn, v. Houston, 
 114 U. S. 623, 631, 29 L. ed. 257, 260; WabanJi, St. L. & P. R. Co. v. 11 
 linois, 118 U. S. 557, 30 L. ed. 244; Bobbins v. Shelby County Tax. Bist. 
 120 U. S. 489, 493, 30 L. ed. 694, 696; Louisville, N. 0. & T. R. Co. v. 
 State, 2 Inters. Com. Rep. 615. 5 L. R. A. 132, 66 Miss. 662; Leisy v. Har 
 din, 135 U. S. 100, 34 L. ed. 128. 
 
 ■Robbins v. Shelby Tax Bist. 120 U. S. 489, 493, 30 L. ed. 694, 696. 
 
 ^ Wilkeraon v. Rahrer, 140 U. S. 545, 34L. ed. 572. 
 29
 
 450 STATE COKTROL OVER CARRIERS. 
 
 Possessing such sovereign and exclusive power over the subject 
 of commerce among the states, it is difficult to understand why 
 Congress may not legislate, in respect thereto, to the same extent^ 
 both as to rates, and all other matters of regulation, as the states- 
 may do in respect to purely local, or internal commerce; what 
 would or would not come within this regulating power is not how- 
 ever a material question under the interstate commerce law, for 
 the existing law does not undertake to prescribe anything more 
 upon the subject of rates, than that they shall be reasonable and 
 just; and it does not undertake to require a common carrier sub- 
 ject to its provisions to establish through routes and through rates 
 with all connecting hues merely because it may have done so with 
 one of them.* 
 
 § 133. State and JVational Control over Agencies 
 of Commerce. 
 
 It can make no difference in the matter of state or national con- 
 trol whether commerce is carried on by individuals or by corpora- 
 tions.' The grant of power is general in its terms, making no 
 reference to the agencies by which commerce may be carried on. 
 It includes commerce by whomsoever conducted, whether by indiv- 
 iduals or by corporations. At the present day nearly all enterprises 
 of a commercial character requiring for their successful manage- 
 ment large expenditures of money are conducted by corporations. 
 The usual means of transportation on the public waters where expe- 
 dition is desired are vessels propelled by steam; and the ownership 
 of a line of such vessels generally requires an expenditure exceeding-^ 
 the resources of single individuals. Except in rare instances it is 
 only by associated capital, furnished by persons united in corpora- 
 tions, that the requisite means are provided for such expenditures.' 
 
 Several interesting cases involving the question of the constitu- 
 tionality of statutes regulating the fees for elevating and discharg- 
 
 ^ Kentucky & I. Bridge Co. v. Louisville & N. R. Go. 2 Inters. Com. Rep. 351, 
 
 37 Fed. Kep. 567'. 
 '' Writoa V. Mixsouri, 91 U. S. 275,23 L. ed. 347; Mobile County v. Kimball, 102 
 
 U. S. 691, 20 L. ed. 23«. 
 *Ol<juceiiter Ferry Co. v. Pennsylvania, 1 Inters. Com. Rep, 382, 114 U. S. 90^ 
 
 29 L, ed. 158.
 
 STATE AND NATIONAL CONTROL OVER AGENCIES OF COMALEKCE. 451 
 
 it)g grain by elevators, acting in the capacity of coiiimon carriers^ 
 liave been decided in tlie state courts, and taken by appeals to the 
 liighest state courts, and again by writs of error, to the Supreme 
 Court of the United States. 
 
 On the 9th of June, 1S88, the governor of the state of New 
 York approved an act, chapter 581 of the laws of New York of 
 1888, wliich had been passed by the two houses of the legislature 
 three tifths being present, entitled "An Act to Rognlate the Fees 
 and Chai-ges for Elevating, Trinnning, Receiving, Weighing and 
 Discharging Grain by Means of Floating and Stationary Elevators 
 and Warehouses in this State." The Act was in these words : 
 ''§ 1. The maximum charge for elevating, receiving, weigh- 
 ing and discharging grain by means of floating and stationary 
 elevators and warehouses in this state shall not exceed the follow- 
 ing rates, namely : For elevating, receiving, weighing and dis- 
 charging grain, five eighths of one cent a bushel. In the process 
 of handling grain by means of floating and stationary elevators. 
 t]ie lake vessels or propellers, the ocean vessels or steamships, and 
 canal boats, shall only be required to pay the actual cost of trim- 
 ming or shoveling to the leg of the elevator when unloading, and 
 trimming cargo when loading. § 2. Any person or persons vio- 
 lating the provisions of this Act shall, upon conviction thereof, be 
 adjudged guilty of a raisdemeanoi-, and be punished by a fine of 
 not less than two hundred and fifty dollars and costs thereof. 
 § 3. Any person injured by the violation of the provisions of this 
 Act may sue for and recover any damages he may sustain against 
 any person or persons violating said provisions. § 4. This Act 
 shall not apply to any village, town or city having less than one 
 hundred and thirty thousand population. § 5. This Act shall 
 take effect immediately." 
 
 On the 26th of November, 1888, an indictment, which had 
 been found by the grand jury of Erie county, New York, in the 
 court of sessions of that county, against J. Tallman Budd, for 
 charging and receiving fees for elevating, receiving, weighing, 
 and discharging grain into and from a stationary elevator and 
 warehouse, contrary to the provisions of said statute, came on for 
 trial before a criminal term of the superior court of Buffalo, Erie 
 county. The charge in the indictment was, that Budd, at Buffalo,
 
 452 STATK COXTKor, OVEK OAKKIKKS. 
 
 on the llHliof September, 1888, being manager of the Wells eleva- 
 tor, which was an elevator and warehouse for receiving and dis- 
 charging grain in the city of Buffalo, that city being a municipal 
 corporation duly organized in pursuance of th(^ laws of the state of 
 Xew York and having a population of upwai'ds of 1^0,000 peo- 
 ple, did receive, elevate and weigh from the ])ropeller called The 
 Oceanica, the property of the Lehigh Valley Transportation Com- 
 pany, a body corporate, 51,000 bushels of grain and corn, the prop- 
 erty of said company, into the said Wells elevattu", and unlawfully 
 exacted from said company, for elevating, receiving, weighing 
 and discharging said grain and corn, the snm of one cent per 
 bushel, and also exacted fr(»in said company, for shoveling to the 
 leg of the elevator, in the uidoading of said 51,000 bushels of 
 grain and corn, $1.T5 for every 1,000 bushels thereof, o\er and 
 above the actual cost of such shoveling. 
 
 The facts set forth in the indictment were proved, and the 
 defendant's counsel requested the court to instruct the jury to 
 render a verdict of acquittal, on the ground that the prosecution 
 was founded on a statute which was in contiict both with the Con- 
 stitution of the L^nited States and with that of the state of I^evv 
 York; that the services rendered by Budd, for which the statute 
 assumed to fix a price, were not public in their nature; that nei- 
 ther the pei'sons rendering them, nor the elevator in question had 
 received any privilege from the legislature; and that such eleva- 
 tor was not a public warehonsc and received no license. The 
 court declined to direct a verdict of acquittal, and the defendant 
 excepti'd. The court charged the jury that it was claimed by the 
 pi'osecution that the defendant had \iolated the statute in charging 
 more than five eighths of one cent a bushel for elevating, receiv- 
 inir, wei<rhin<>' and dischurii'ino: the <;rain and in cliar<'-ini'" more 
 than the actual cost of trimming or shoveling to the leg of the 
 elevator, in unloading the propellei" that the statute M'as constitu- 
 tional; and that the jury should find the defendant guilty as 
 charged in the indictment, if they believed the facts which had 
 been adduced. Tlic defendant excepted to that part of the charge 
 which instructed the jury that they might find the defendant 
 guilty of exacting an excessive rate for shoveling to the leg of the 
 elevator, and also to that pai-t which instructed the jury that they
 
 STATK AM) NATIONAL CONIlJof; ()\ KK AciKNCIKS OF COMMERCE. 453 
 
 miglit convict the dcfciuljint for liaviiii;- exacted an excessive rate 
 for elexatiiii^-, reccivinii;, M'eigliiii«>; and dischargin<)j the grain and 
 <H)rii. The jury hroiight in a verdict of guilty as charged in the in- 
 (Hctnieiit, antl tlie court .seutencuMl the defendant to pay a tine of 
 $'2r>0, and, in default thereof, to stand conunitted to the common 
 jail of Erie county for a period not exceeding one day for each 
 <loIlar of said tine. Tiie defencUint a|)i»eale(l from tliat judgment 
 to thegi'nei'al ti'rm of the su|)erior court of IJutfalo, wliicli atfirmed 
 the judgment. lie then appeali'dto the (Jourt of .\j>peals of 
 Xew Y'oi'k, which atHi-med the judgment of the superior court of 
 Ijutfalo; and tlu' latter court afterwards entered a judgment mak- 
 ing the judgment of the Court of A])|)eal.s its judgment. The 
 defendant then sued out from the lSu])reme Court of tlie United 
 Stutes a writ of error directed to the supei'ior court of liulfalo.' 
 
 On the '2'2i\ id' .June, iSScS, a complaint on oath was made before 
 .Vndrew ^\'alsh, a |)olice justice (d" the city of Brooklyn, JSTew 
 York, that on the preceding day one Edward Annan, a resident 
 of that city, had violated the provisions of cha])ter 6^1 of the laws 
 of Xew York of 1888, by exacting from the complainant more 
 than five eights of one cent per bu.shel for elevating, M'eighing, 
 recei\ing and diM-harging a boatload of grain from a canal boat 
 to an ocean steamer, and by exacting from the canal boat and its 
 owner more than the actual cost of triimning or sho\eling to the 
 k'g of the ele\ator. and by charging against the ocean steamer 
 njore than the actual cost of trimming the cargo, the services 
 being rendered by a floating elc\ator of which Anium was part 
 <jw]ier and one of the agents. ( )n this com])laint, Annan was 
 arrested an<l brought before the [>olice justice, who took testimony 
 in the case and committed Annan to the custo(ly of the sheritf of 
 the county of Kings, to answer the charge before a court of spe- 
 cial sessions in the city of Brooklyn. Thereupon. Avrits(,)f habeas 
 corpus and certiorari were gi'anted i>y the supi-eme court of tlie 
 state of New Y ork. on the application of Annan, I'eturnable be- 
 fore the general term of that court in the iirst instajice; but on a 
 
 'The opinion of tlie Court of Appeals in Peojde v. Bndd, is reported in 5 L. R. 
 A. 559, 117 N. Y. 1. It was delivered Ity Ju(i(jc Andrews, with whom 
 Chief Judge linger and ,/ii(l(/es Earl, Danforih, and Finch concurred. 
 Judges Ptc'khani and Gray disseiUed, Judge Gray giving a dissenting 
 opinion, and Judge Peclihani adiiering to the dissenting opinion which he 
 gave in the case of I'ttupU- v. Wnhlt, 117 N. Y. ;54, nute.
 
 454: STATE COATUul, 0\ KK CAKKIEKS. 
 
 heariiif;; thereon, the writs were dismissed and Annan was re- 
 manded to the custody of the sheriff. The 0]>inion of the general 
 term is reported in 50 Hun, 413. Annan appealed to the Court 
 of Appeals, which affirmed the order of the general term (117 N. 
 Y. 621), for tlie reasons set forth in the opinion in the case of 
 Budd, 5 L. R A. 550, 117 N". Y. 1, and the judgment of the 
 Court of Ap^jeals was afterwards made the judgment of the 
 supreme court. Annan sued out a writ of error from the Supreme 
 Court of the United States directed to the supreme court of the 
 state of New York. 
 
 Like proceedings to the foregoing were had in the case of one 
 Francis E. Pinto, the charge against him being that he had ex- 
 acted from the complainant more than five eighths of one cent 
 per bushel for receiving and weighing a cargo of grain from a 
 boat into the Pinto stores, of w'hich he was lessee and manager, 
 the same being a stationary grain elevator on land in the city of 
 Brooklyn, Xew York, and had exacted more than the actual cost 
 of trimming or shoveling to the leg of the elevator. Pinto sued 
 out from the Supreme Court of the United States a writ of error 
 to the supreme court of the state of New York. 
 
 The )nain (juestion involved in these cases was whether the 
 Supreme Court of tlie United States would adhere to the conclu- 
 sions announced in its previous decision.' 
 
 The Court of Apjieals of New York," held that chapter 581 of 
 the laws of 1888 did n<^)t violate the constitutional guarantee pro- 
 tecting pi"i\'ate prdperty, but was a legitimate exercise of the 
 police power of the state over a business affected with a pubUc 
 interest. In rt^gard to the indictment against Budd, it held that 
 the charge of exacting more tlian the statute rate for elevating 
 was proved, and that as to tlie alleged overchai-ge for shoveling, 
 it ajjpcai-ed that the carrier was compelled to pay $4 for each 
 l.oito bushels of gi-ain, which was the charge of the shovelers' 
 iiiiioii, by which the \\<trk was performed, and that the union 
 paid the elevatoi-. foi- rlie use of the latter's steam shovel, |ll.75 
 for each 1,000 bushels. The court held that there was no error 
 in submitting to the jury the question as to the overcharge for 
 
 'Mvnn V. lUinoix, 94 U. S. US, 24 L. ed. 77. 
 
 ■' PcopI,'. V. Ihidd. 5 L, ]{. A. nT)*.), 117 N. V. 1.
 
 STATK XSD NATIONAL CONTKUL OVEK AGKNOIES OJ<' COMMKKCK. 455 
 
 slioveliiio-; tliiit tlie iiit(Mitiou of tlie statute was to coiitine tlie 
 (charge to tlie "actual cost'' of the outside labor required; and 
 that a violation of the act in that particulai- was proved; but that, 
 as the verdict and sentence were justified by proof of the over- 
 <dmro:e for elevatino;, even if the allefj^ed overcharge for shovelin«: 
 was not made out, the rulinii' of the superior ccAirt of Buffalo 
 <^ould not have prejudieed Budd. Of course on the writ of error 
 the Supreme Court of the United States consider oidy the Federal 
 questions involved. 
 
 It is claimed, on behalf of Budd. that the statute of the state of 
 Xew York is unconstitutional, because contrary to the provisions 
 of section 1 of the 14th Amendment to the Constitution of the 
 United States, in depriviuiT the citizen of his property without 
 due process of law; that it is unconstitutional in fixing the maxi- 
 mum charge for elevating, receiving, weighing and discharging 
 grain by means of floating and stationary elevators and ware- 
 houses at five eighths of one cent a bushel, and in forbidding the 
 <'itizen to make any profit upon the use of liis property or labor; 
 and that the i)olice power of the state extends only to property or 
 business which is devoted by its owner to the public, by a grant 
 to the public of the right to demand its use. It is claimed on 
 behalf of Annan and Pinto that floating and stationary elevators 
 in the port of Xew York are private ])rf>))erty. not afl'ected with 
 iu\y public interest, and not subject to the regulation of i-ates. 
 
 " Trinmiing'' in the canal l)oat, spoken of in the statute, is 
 shoveling the grain from one place to another, and is done by 
 longshoremen with scoops or shovels; and "trimming" the ship's 
 cargo when loading is stowing it and securing it for the voyage. 
 Floating elevators are })riniarily boats. Some are scows, and have 
 to be towed from place to place by steam tugs; but the majority 
 are propellers. When the floating elevator arrives at the ship 
 and makes fast alongside of her, the canal boat carrying the grain 
 is made fast on the other side of the elevator. A long wooden 
 tube, called " the leg of the elevator." and spoken of in the statute, 
 is lowered from the tower of the elevator so that its lower end 
 enters the hold of the canal boat in the midst of the grain. The 
 ""spout" of the elevator is lowered into the ship's hold. The 
 machinerv of the elevator is then set in motion, the lirain is
 
 456 8TATP: COXTKOL OVEK CAKKIERS. 
 
 elevated out of the canal boat, received and weighed in the 
 elevator, and discharged into the sliip. The grain is lifted in 
 "buckets'' fastened to an endless belt which moves up and down 
 in the leg of the elevator. The lower end of the leg is buried in 
 the grain so that the buckets are submerged in it. As the belt 
 moves, each bucket goes up full of grain, and at the upper end 
 of the leg, in the elevator tower, empties its contents into the 
 hopper which receives the grain. The operation would cease 
 unless the grain was trimmed or shoveled to the leg as fast as it 
 is carried up by the buckets. There is a gang of longshoremen 
 who shovel the grain from all parts of the hold of the canal-boat 
 to "the leg of the elevator," so that the buckets maj be always 
 covered with grain at the lower end of the leg. This " trimming 
 or shoveling to the leg of the elevator," when the canal boat is 
 unloading, is that part of the work which the elevator owner is 
 required to do at the '' actual cost." 
 
 In the Budd and Pinto cases, the elevator was a stationary one 
 on land; and in the Annan case, it was a floating elevator. In 
 the Budd case, the Court of Appeals held that the words ^ actual 
 cost," used in the statute, were intended to exclude any charge by 
 the elevator beyond the sum specified, for the use of its machinery 
 in shoveling, and the ordinary expenses of operating it, and to 
 confine the charge to the actual cost of the outside labor required 
 for ti'iinming and bringing the grain to the leg of the elevator; 
 and that the purpose of the statute could be easily evaded and 
 defeated if the elevator owner were jiermitted to separate the ser- 
 vices and charge for the use of the steam shovel any sum whicli 
 )night be agreed upon l)et\veen hinj and the shovelers' union, and 
 tiiereby, under cohjr of charging for the use of his steam shovel, 
 exact from the carrier a sum for ehnatiiig beyond tlie rate fixe<l 
 therefor by the .statute. 
 
 The (x)urt of A])peals, in its opinion in the Budd case, consid- 
 ered fully the questi(;n as to whethei' the legislature had power, 
 under tlie constitution (»f the state of New York, to ])resci"ibe a 
 inrixiuiuiii charge for elevating gi-ain by stationaiy elevators, 
 owned Itv individuals or corpoi'ations who had a])pi-opriated their 
 propcrtv to that use aiul were engaged in that l)usiness; and it 
 aii^wci-cd the iiKjiiiry in the atHi-niati\ c. Jt also reviewed the
 
 8TATK AND NATIONAL (JONTlioL OVKK AOKXCIKS OK COMMKKC?:. 457 
 
 former decision of the Ignited States Supreme Court/ and arrived 
 at the conehision that that court tJiere held, that the legislation in 
 that case was a lawful exercise of legislative power, and did not 
 infi-inge that clause of the 14th Amendn)ent to the Constitution 
 of tlie United States wliich provides tliat no state shall "deprive 
 any person of life, liberty, or pi-opeity without due process of 
 law;" and that the legislation in (juestiou in that case was similar 
 to, and not distiuguishal)le in ])rin('iplc from, t]u3 act of the state 
 of New York. 
 
 The Court f»f Apj)eals said that the question in that case was 
 raised by an individual owning an elevatoi- and warehouse in 
 Chicago, erected for, and in c(»nnectii>n with which he had carried 
 on, the business of elevating and storing grain, many years prior 
 to the ])assage of the act in question, and ]>rior also to the adop- 
 tion of the aniendnuMit to the ( 'unstitntion of Illinois, in 1870, 
 declaring all elevators and warehouses A»Jiere grain or other prop- 
 erty is stored for a compensation, to l>e public warehouses. The 
 Court of Appeals then cited several deinsions as cases in which 
 M>in.)i V. lUlnols had been referred to by it, and said that it 
 could not overrule and disregard Mxnti v. Illinois without sub- 
 verting the principle of its own decision in People v. King, and 
 certainly not without disregarding many of its deliberate expres- 
 sions in approval of the principle of Mann v. Illinois.'^ 
 
 The Court of A])peals further examined the question whether 
 the power of the legislature to regulate the charge for elevating- 
 grain, where the business was. carried on by individuals upon 
 their own premises, fell Avithin the scope of the police power, and 
 whether the statute in question was necessary for the public wel- 
 fare. It affinned that, while no general power resided in the 
 legislature to regulate private business, prescribe the conditions 
 under which it should be conducted, lix the price of connnodities 
 or services, or interfere Avith freedom of contract, and while the 
 merchant, manufacturer, artisan, and labo)-er, under our system 
 of government, are left to pursue and provide for their own inter- 
 ests in their own way, untrammelled by burdensome and restrictive 
 
 ^Munn V. Illinois, 94 U. S. 113, 24 L. ed. 77. 
 
 ^People V. Bof<ton d- A. B. Co. 70 N. Y. 569; Bertholf v. O'lieiUy, 74 N. Y. 
 
 509; Buffalo E. S. R. (Jo. v. Bvffalo St. B. Co. 2 L. R A. 384, 111 N. Y. 
 
 132, and People v. King, 1 L. R. A. 293, 110 N. Y. 418.
 
 458 STATE COXTKOL OVKK CAKKIEKS. 
 
 regulations, -which, liowever common in rude and irregular times, 
 are inconsistent with constitutional liberty, yet tliere might be 
 special conditions and circumstances which brought the business 
 of elevating grain within ])rinciples whicli, by the common law 
 and the practice of free governments, justified legislative control 
 and regulation in the particular case, so that the statute would be 
 constitutional; that the control which, by common law and by 
 statute, was exercised over common carriers, was conclusive upon 
 the point that the right of the legislature to regulate the charges 
 for services in connection with the use of property did not depend 
 in every case upon the question Avhether there was a legal mon- 
 opoly, or whether special governmental privileges or protection 
 had been bestowed; that there were elements of publicity in the 
 business of elevating grain which peculiarly affected it with a 
 public interest; that those elements were found in the nature and 
 extent of the business, its relation to the commerce of the state 
 and country, and the practical monop<jly enjoyed by those engaged 
 in it; that about 120,000,000 bushels of grain come annually to 
 Buffalo from the West; that the business of elevating grain at 
 Buffalo is connected mainly with lake and canal transportation; 
 that the grain received in Xew York in 1S8T by ^\■ay of the Erie 
 canal and Hudson river, during the season of canal navigation, 
 exceeded 46,000,000 l)ushels, an amount very largely in excess of 
 the grain received during the same period by rail and by river 
 and coastwise vessels; that the elevation of that grain from 
 fake vessels to canal boats takes place at Buffalo, where there 
 are thirty or forty elevators, stationary and floating; that a large 
 proportion of the surplus cereals of the country passes through 
 the elevators at Buffalo and finds its way through the Erie canal 
 and Hudson river to the seaboan-d at IS^ew York, whence it is dis- 
 tributed to the markets of the world; that the business of elevat- 
 ing grain is an incident to the business of transportation, the ele- 
 vators being indispensable instrumentalities in the business of the 
 <-omm<)7i carriei", and in a broad sense performing the work of 
 <'arriers, being located u])on or adjacent to the waters of the state, 
 and transferring tlie cargoes of grain fi'om the lake vessels to the 
 <'ana1 boats, or fi-om the canal boats to the ocean vessels, and 
 tlicrchy ])crforniiiiii- an (••«>cnrial service in rratisportation; tiiat by
 
 STATE AND XATlONAI, (JoNTKoL UVKJ: AirK.NC'lK:? OF CUMMKiXK. 45^ 
 
 tlieir nieaiivS the tniiisportatiou of gi-ain l)y water from the upper 
 lakes to the seaboard is rendered possil)le; that the business of 
 elevating grain thns has a VMtal i-elation to eomnieree in one of its 
 most important aspects; that every excessive charge made in the 
 course of the transportation of grain is a tax upon commerce; 
 that the public has a deep interest that no exorbitant charges shall 
 be exacted at any point, upon the business of ti'ansportation; and 
 that M'hatever impaired the usefulness of the Erie canal as a high- 
 way of commerce involved the public interest. 
 
 The Court of Appeals said that, in view of the foregoing ex- 
 ceptioiuU circumstances, the business of elevating gi-ain was affected 
 with a public interest, within the language of Lord Chh^f Justice 
 Hale, in his treatise De PoHibus MarU (Ilarg. Law Tracts, 78); 
 that the case fell within the principle Avliich permitted the legis. 
 lature to regulate the business of common carriers, ferrymen and 
 hackmeu, and interest on the use of money; that the underlying 
 principle was, that busiiu'ss of certain kinds holds such a peculiar 
 relation to the public interest that there is superinduced upon it 
 the right of public regidation; and that the coui-t ivsted the power 
 of the legislature to control and regulate elevator charges upon 
 the nature and extent of the busiiu^ss. the existence of a virtual 
 monopoly, the benefit derived from the Ei-ie canal's ci-earing the 
 business and making it possil)le, the intei-est to trade and com- 
 merce, the relation of the business to the propei-ty and welfare of 
 the state, and the practice of legislation in analogous cases, collect- 
 ively creating an exceptional case and justifying legislative regu- 
 lation. 
 
 The opinion further said that the criticism to which the case of 
 Munn V. Illinois had been sul)jected proceeded mainly upon a 
 limited and strict construction and detinition of the police power; 
 that there was little reason, under our system of government, of 
 placing a close and narrow interpretation on the police power, or 
 restricting its scope so as to hamper the legislative power in deal- 
 ing with the varying necessities of society and the new circum- 
 stances as they aiise calling for legislative intervention in the 
 public interest; and that no serious invasion of constitutional 
 guarantees by the legislature could withstand for a long time the 
 searching influence of public opinion, which was sure to come
 
 460 STATE CC>>TKoI, u\ KK CAKliiKKS. 
 
 sooner or later to tlie side of law, order, and justice, however it 
 may have been swayed for a time by passion or pi-ejudice, or 
 whatever aberations might have marked its coni-se. 
 
 These views, as announced by the Court of Ap]>eals of Xew York, 
 so far as they support the validity of tlie statute in question, are in 
 harmony M'ith tlie earlier expressed opinions of the Supreme Court 
 of the United States. In 3/u/m v. IlJ'niois, the constitution of Illi- 
 nois, adopted in 1870, provided in article 13, section 1, as follows : 
 "All elevators or storehouses, where grain or other property is stored 
 for a compensation, whether the property stored be kept separated 
 < )r not, are declared to be public warehouses;" and the act of the legis- 
 lature of Illinois approved April 25, 1871/ divided public ware- 
 houses into three classes, prescribed the taking of a license and 
 the giving of a bond, and fixed a maximum charge, for warehouses 
 belonging to class A, for storing and handling grain, including 
 the cost of receiving and delivering, and imposed a fine on convic- 
 tic n for not taking the license or not giving the l)ond. Munn and 
 Scott were indicted, convicted, and fined for not taking out the 
 license and not giving the bond, and for charging rates for stor- 
 ing and handling grain higher than those established by the act. 
 Section of the act provided that it sh(»uld be the duty of every 
 warehouseman of class .\ to receive for storage any grain that 
 might be tendered to liim. Munn and Scott were the managers 
 and lessees of a public warehouse, such as was named in the stat- 
 ute. The Sujirenu' ( 'onrt of Illinois having affirmed the judgment 
 of conviction against them, on the ground that the statute of Illi- 
 nois was a valid and constitutional enactment,'^ they sued out a 
 writ <»f error fi-om tlie Su[)renie ("tturt of the United States, and 
 (•ontcnd»'<l that the provisions of the sections of the statute of 
 Illinois which they were ctharged with having violated were repug- 
 nant to the third clause of § 8 of article f. and the sixth clause of 
 ^ 9 of article 1, of the Constitution (»f the rnited States, and to 
 the 5th and ]4th .\mendnients of that Coustitution. 
 
 That court, in Munn v. / llhio'iK^ihki opinion being delivered by 
 Chief JiiMice Waite, and there being a i)ul)lished dissent by only 
 two justices, considered carefully the (piesrion of the J'epugnancy 
 
 'Public I.rtwsof Illinois, of l«71-72, p. liVi. 
 HI II I, It V. Pe<>ii'<\ «!!> III. 80.
 
 STATE AxNL) XATlo.NAL OO^TKOL 0\ KK A(iKN0IE5J OF CUMMKKCK. 461 
 
 of the Illinois statute to the l-ith Aiueiidment. It said, that 
 under the powers of government inherent in every sovereignty, 
 ■'the government regulates the conduct of its citizens, one towards 
 another, and the manner in wliich each shall use his own pro])- 
 erty, when such regulation becomes necessary for the pubhc 
 good ;" and that, "in their exercise it has been customary in Eng- 
 land from time immemorial, and in this country from its first col- 
 onization, to regulate ferries, connnon carriers, hackmen, bakers, 
 millers, wharfingers, inn-keepers, etc., and in so doing to fix a 
 maximum charge to be made for services rendered, accommoda- 
 tions furnished, and articles sold." It was added : "To this day, 
 statutes are to be found in many of the states upon some or all of 
 these subjects; and we think it has never yet been successfully 
 contended that such legislation came within any of the constitu- 
 tional prohibitions against interference with private property." 
 It announced as its conclusions that, down to the time of the 
 adoption of the 14th Amendment, it was not supposed that stat- 
 utes regulating the use, or even the price of the use, of prixate 
 ])roperty necessarily deprived an owner of his property without 
 due process of law; that, when private property was devoted to a 
 public use, it was subject to pubhc regulation; that Mumi and 
 Scott, in conducting the business of their warehouse, pursued a 
 public employment and exercised a sort of public office, in the 
 same sense as did a common carrier, miller, ferryman, inn-keeper, 
 wharfinger, baker, cartman, or hackney coachman; that they stood 
 in the very gateway of commerce and took toll from all who 
 passed; that their business tended "to a common charge," and had 
 become a thing of pul)lic interest and use; that the toll on the 
 grain was a common charge; and that, according to Lord Chief 
 Justice Hale, every such warehouseman, "ought to be under a 
 public regulation, viz :" that he "take but reasonable toll." 
 
 That court further held, in Munn v. Illinois, that the business 
 in question was one in which the whole public had a direct and 
 positive interest, that the statute of Illinois simply extended the 
 law so as to meet a new development of commercial progress; 
 that there was no attempt to compel the owners of the warehouses 
 to grant the public an interest in their property, but to declare 
 their obligations if they used it in that particular manner; that it
 
 462 STATE CONTKOL OVKli CARRIKKS. 
 
 ixiattered not that ]Mniin and Scott liad hnilt their wai-chouses and 
 established their business before tlie regulations complained of 
 were adopted; that the property being clothed with a public in 
 terest, what was a reasonable compensation for its use was not a 
 judicial, but a legislative question; that, in countries where the 
 common law prevailed, it had been customary from time imiue- 
 morial for the legislature to declare what should l)e a reasonable 
 compensation under such circumstances, or to Hx a maximum 
 beyond which any charge made would be unreasonable; that the 
 warehouses of Munn and Scott were situated iu Illinois, and their 
 business was carried on exclusiveh' in that state; that the ware- 
 houses were no more necessarily a part of commerce itself than 
 the dray or the cart by whicli, but for them, gi-ain would be trans- 
 ferred from one railroad station to another; that their regulation 
 was a thing of domestic concern; that, until Congress acted in 
 reference to their interstate relations, the state might exercise all 
 the powers of government over them, even though in so doing it 
 might operate indirectly upon commerce outside its immediate ju- 
 risdiction; and that the provision of § 9 of article 1 of the Consti- 
 tution of the United States operated only as a limitation of the 
 powers of Congress, and did not affect the state in the regulation 
 of their domestic affairs. The linal conclusion of the court was, 
 that the act of Illinois was not repugnant to the Constitution of 
 the United States, and the judgment was affirmed. 
 
 Mr. Justice Bradley, who was one of the justices who concurred 
 in the opinion of the court iu Jfunn v. Illinois, speaking of that 
 case said: '"The hiquiry there was as to the extent of the police 
 power iu cases where the public interest is affected; and we held 
 that when an employment or business becomes a matter of such 
 pul)lic interest and importance as to create a common charge or 
 bui-'lcn upon the citizen; in other words, when it becomes a prac- 
 tical mon(Ji)oly, to which the citizen is compelled to resort, and by 
 means of which a triluite can be exacted from the community, it 
 is subject to regulation by the legislative power.'" Although this 
 was said in a dissenting opinion in Sinking Fund Cases, it shows 
 what Mr. Justiee P>radley regarded as the principle of the decision 
 in Munn v. lU'imns. 
 
 ^^inkiu'i h'nnd Cntx, 119 U. S. 700. 747, 25 L. ed. 496, 511.
 
 STATE AND NATIONAL CONTROL OVEK AOliNClES OK COMMERCE. 463 
 
 The court said in a later case: ''That it is within the power of 
 the government to regulate the prices at which water shall be sold 
 b}^ one who enjoys a virtual monopoly of the sale, we do not doubt. 
 Tliat question is settled by what was decided on full consideration 
 in Mtinn v. Illinois, 94 U. S. 113, 24 L. ed. 77. As the Supreme 
 Court of the United States said in that case, such regulations do 
 not deprive a person of his property without due process of law.'" 
 
 Mr. Justice Miller, who had concurred in the judgment in 
 M'unn V. Illinois, afterwards referred, in delivering the opinion 
 of the court, to that case, and said: "That case jjresented the 
 question of a private citizen, or unincorporated partnership, 
 engaged in the warehousing business in Chicago, free from any 
 claim of right or contract under an act of incorporation of any 
 state whatever, and free from the question of continuous trans- 
 ])ortation through several states. And in that case the court was 
 presented with the question, which it decided, whether any one 
 engaged in a public business, in which all the public had a right 
 to require his service, could be regulated by acts of the legislature 
 in the exercise of this public function and public duty, so far as to 
 limit the amount of charges that should be made for such ser- 
 \ ices," ' 
 
 It was said by Mr. Justice Gray' in delivering the opmion of 
 the court, that in Munn v. Illinois the court, after affirming the 
 doctrine that by the common law carriers or other persons exer- 
 cising a public empLjyment could not charge more than a reason- 
 able compensation for their services, and that it is within the 
 [»ower of the Legislature ''to declare what shall be a reasonable 
 compensation for such services, or, perhaps more properly speak- 
 ing, to tix a maximum beyond which any charge made would be 
 unreasonable," that to limit the rate of charges for services ren- 
 dered in the public employment, or for the use of property in 
 which the public has an interest, was only changing a regula- 
 tion which existed before, and established no new principle in the 
 law, but only gave a new effect to an old one. 
 
 It was said by Mr. Justice Bradley, in his dissenting opinion* 
 
 ^SpringValley Waterworks v. Schottler, 110 U. S. 347, 354, 28 L. ed. 173, 176. 
 « Wabash, St. L. & P. R. Co. v. Ulinois, 118 U. S. 557, 5G9, 30 L. ed. 244, 248. 
 ^Dow V. BeideUiian, 125 U. S. 680, 686, 31 L. ed. 841, 843. 
 *Chicago, M. d- St. P. R.Co.v. Mtnnesota,13i U. S. 4 18, 461, 33 L. ed. 970, 983.
 
 464 STATE CONTKOL 0VP:K CAKKIKK.S. 
 
 in which Mr. Justice Gray aiul Mr. Juxtiee Lamar concurred, 
 that the decision of the court in tliat case ])ractically overruled 
 Munn V. Illinois; hut the o])ini(»n of the <'<)urt did not say so, 
 nor did it refer to Munn v. Illinois; and the court itself ex- 
 pressed tlie opinion, that the decision in the case in 1.34 U. S. is 
 quite distinguishable from the elevator cases on writ of error 
 from the state of Xew York. 
 
 It is thus apparent that the Supi'eme Court of the T'nited 
 States has adhered to the decision in Munn v. Illinois and to the 
 doctrines announced in the opinion of the court in that case; and 
 those doctrines have since been repeatedly enforced in the decis- 
 ions of the coui-ts of the states. In 1877, it was said,' citing 
 Munn V. Illinois: "When the owner of property de\'otes it to 
 a public use. he, in effect, grants to the pnblic an interest in such 
 use, and must, to the extent of the use, siiltmit to be controlled 
 by tlie pn])lic, for the common good, as long as he maintains the 
 use." That was a decision by tlie Supreme Court Comndssion of 
 Ohio. 
 
 In 1S7S,'' Munn v. Illinois Avas cited with approval, as hold- 
 ing that where the owner of property devotes it to a use in which 
 the public have an interest, he in effect grants to the public an 
 interest in such use. and must, to the extent of that interest, sub- 
 mit to be controlled by the public, for the common good, so long 
 as he maintains the use; and the court added that in Munn v. 
 Illinois the ])riii('iple was applied to warehousemen engaged in 
 receiving and st<n'iiig grain; that it was held that their rates of 
 charges were snl)ject to legislative regulation; and that the prin- 
 ciple applied wirli greater force to c(»rporatioiis wiu-n they were in- 
 vested with francliises to be exercised to subserve tlie public inter- 
 est. Th(! Supreme Court of Illinois.^ as holding that it was compe- 
 tent for the general assembly to fix the maximuiii charges by indi- 
 viduals kee])iug |)u])lic warehouses for storing, handling, and ship- 
 ping grain, and that, too, wdien such persons had derived no 
 .special privileges fiom the state, but were, as citizens of the state, 
 
 ' Lake Sltore cfe M. >S'. R. Co. v. Cladtmati S. & C. R. Co. 30 Ohio St. 604, 616. 
 
 ''Slate V. Columhm Gm Lif/ht rf- G. Co. 34 Ohio St. 572, 582. 
 
 HiufiukH V. Peoiile, 91 111. 2r)(i, 262. in 1878, cited Munn v. People, 69 111. 80, 
 wiiicli was anirnied in Munn v. llUnoia.
 
 STATE AND NATIONAL CONTROL OVER AGENCIES OF COMMERCE. 405 
 
 •exercising tlie business of storing and liandling grain for individ- 
 uals. 
 
 The Supreme Court of Alabama,' in 1880, held that a statute 
 declaring it unlawful, within certain counties, to transport or 
 move, after sunset and before sunrise of the succeeding day, any 
 cotton in the seed, but permitting the owner or purchaser to 
 remove it from the field to a place of storage, was not unconstitu- 
 tional. Against the argument that the statute was such a despotic 
 interference with the rights of private property as to be tanta- 
 mount, in its practical effect, to a deprivation of ownership "with- 
 out due process of law," the court said that the statute sought 
 only to regulate and control the transportation of cotton in one 
 particular condition of it, and was a mere police regulation, to 
 which there was no constitutional objection, citing Munn v. 
 Illinois. It added, that the object of the statute was to regulate 
 traffic in the staple agricultural product of the state, so as to pre- 
 vent a prevalent evil, which, in the opinion of the law making 
 power, might do much to demoralize agricultural labor and to 
 •destroy the legitimate profits of agricultural pursuits, to the pub- 
 lic detriment, at least within the specified territory. 
 
 In Baker v. State, 54 Wis. 368, 373, in 1882, Munn v. Illinois 
 was cited with approval by the Supreme Court of Wisconsin, as 
 liolding that the legislature of Illinois had power to regulate 
 public warehouses, and the warehousing and inspection of grain 
 within that state, and to enforce its regulations by penalties, and 
 that such legislation was not in conflict with any provision of the 
 Federal Constitution. The Court of Appeals of Kentucky, in 
 1882," cited Mimn v. Illinois, as applicable to the case of the 
 proprietors of tobacco warehouses in the city of Louisville, and 
 iield that the character of the business of the tobacco warehouse- 
 man was that of a public employment, such as made them subject, 
 in their charges and their mode of conducting business, to legis- 
 lative regulation and control, as having a practical monopoly of 
 the sales of tobacco at auction. 
 
 In 1884, the Supreme Court of Pennsylvania/ cited Munn v. 
 
 ^BaDia v. BtaU, 68 Ala. 58. 
 ''Nash V. Page, 80 Ky. 539, 545. 
 
 ^CHrard Pt. Storage Co. v. Souihwark Foundry Co. 105 Pa. 248, 252. 
 30
 
 ■i:Q6 STATE CONTROL OVKR CAKKIEKS. 
 
 Illinois as involving the rights of a private person, and said that 
 the principle involved in the ruling of the court was, that where 
 the owner of such property as a warehouse devoted it to a use in 
 which the public had an interest, he in effect granted to the pub- 
 lic an interest in such use, and must, therefore, to the extent there- 
 of, submit to be controlled by the public for the common good, as 
 long as he maintained that use. In 1884, the Supreme Judicial 
 Court of Massachusetts' said that nothing is better established 
 than the power of the legislature to make what are called police 
 regulations, declaring in what manner property shall be used and 
 enjoyed and business carried on, with a view to the good order 
 and benefit of the community, even though they may interfere 
 to some extent with the full enjoyment of private property, and 
 although no compensation is given to a person so inconvenienced; 
 and Munn v. Illinois was cited as holding that the rules of the 
 common law which had from time to time been established, de- 
 claring or limiting the right to use or enjoy property, might 
 themselves be changed as occasion might require. 
 
 The Supreme Court of Indiana, in 1885,^ held that a statute 
 was valid which required persons selling patent rights to file with 
 the clerk of the county a copy of the patent, with an affidavit of 
 genuineness and authority to sell, on the ground that the state had 
 power to make police regulations for the protection of its citizens 
 against fraud and imposition; and the court cited Munn v. Illinois 
 as authority. The Supreme Court of JSTebraska, in 1885,^ held that 
 when a corporation or person assumed and undertook to supply a 
 public demand, made necessary by the requirements of the com- 
 merce of the country, such as a public telephone, such demand must 
 be supplied to aU alike, without discrimination; and Munn v. Illi- 
 nois was cited by the prevailing party and by the court. The de- 
 fendant was a corporation, and had assumed to act in a capacity 
 which was to a great extent public, and had undertaken to satisfy a 
 public want or necessity, although it did not possess any special 
 privileges by statute or any monopoly of business in a given terri- 
 tory; yet it was held that, from the very nature and character of 
 
 ^Sawyer v. Davis, 136 Mass. 239. 
 
 *Br('chfnU v. Randall, 2 West. liep. 731, 102 Ind. 528. 
 
 ^Webtter Telephone Case, 17 Neb. 126.
 
 STA.TE AND NATIONAL CONTROL OVEK AGENCIES OF COMMBKCE. 467 
 
 its business, it had a monopoly of the business wliicli it transacted. 
 The court said that no statute had been deemed necessary to aid 
 the courts in holding that where a person or company undertook 
 to supply a public demand, which was " affected with a public 
 interest," it must supply all alike who occupied a like situation, 
 and not discriminate in favor of or against any. 
 
 The Supreme Court of Mississippi, in 1885,' cited Munn v. 
 Illinois as deciding that the regulation of warehouses for the 
 storage of grain, owned by private individuals, and situated in 
 Illinois, was a thing of domestic concern and pertained to the 
 state, and as affirming the right of the state to regulate the busi- 
 ness of one engaged in a public employment therein, although 
 that business consisted in storing and transferring immense quan- 
 tities of grain in its transit from the fields of production to the 
 markets of the world. 
 
 In 1885, the Supreme Court of Indiana," held that a statute of 
 the state which prescribed the maximum price which a telephone 
 company should charge for the use of its telephones was constitu- 
 tional, and that in legal contemplation all the instruments and 
 appliances used by a telephone company in the transaction of 
 its business were devoted to a public use, and the property thus 
 devoted became a legitimate subject of legislative regulation. It 
 cited Munn v. Illinois as a leading case in support of that propo- 
 sition, and said that although that case had been the subject of 
 comment and criticism, its authority as a precedent remained un- 
 shaken.' 
 
 In 1886, it was held that the telegraph and the telephone were 
 public vehicles of intelligence, and those who owned or controlled 
 them could no more refuse to perform impartially the functions 
 which they had assumed to discharge than a railway company, as 
 a common carrier, could rightfully refuse to perform its duty to 
 the public; and that the legislature of the state had full power to 
 regulate the services of telephone companies, as to the j^arties to 
 
 'Stonr V. Tazou & M. V. R. Co. 63 Miss. 607, 639. 
 
 *Hockett V. State, 2 West. Rep. 764, 105 Ind. 250, 258. 
 
 ^This doctrine was confirmed in Central U. Teleph. Co. v. State, 2 West. 
 
 Rep. 773, 106 Ind. 1, in the same jear. and in Central U. Teleph. Co. v. 
 
 Stale, 118 Ind. 194, 207, in 1888, in which latter case Munn v. Illinois 
 
 was cited by the court.
 
 4:68 STATE CONTKOL OVER CARRIE US. 
 
 whom facilities sliould be furnished.' The court cited 3fnnn v. 
 Illinois, and said that it could no longer be controverted that the 
 legislature of a state had full j)ower to regulate and control, at 
 least within reasonable limits, public employments and property 
 used in connection therewith; that the operation of the telegraph 
 and the telephone in doing a general business was a public em- 
 ployment, and the instruments and appliances used were property 
 devoted to a public use and in which the public had an interest; 
 and that, such being the case, the owner of the property thus 
 devoted to public use must submit to have that use and employ- 
 ment regulated by public authority for the common good. 
 
 In the Court of Chancery of New Jersey, in 1889,^ it was held 
 that the legislature had power to declare what services warehouse- 
 men should render to the public, and to fix the compensation that 
 might be demanded for such services; and the court cited Muiin 
 V. Illinois as properly holding that warehouses for the storage of 
 grain must be regarded as so far public in their nature as to be 
 subject to legislative control, and that when a citizen devoted his 
 property to a use in which the public had an interest, he in effect 
 granted to the public an interest in that use, and rendered him- 
 self subject to control, in that use, by the body politic. 
 
 In 1889, it was said by the Supreme Court of Ohio,* that the 
 principle was well established, that where the owner of property 
 devotes it to a use in which the public have an interest, he in 
 effect grants to the public an interest in such use, and must to the 
 extent of that interest submit to be controlled by the public for 
 the common good, as long as he maintains the use; and that such 
 was the point of the decision in Muiin v. lUuiois. 
 
 % ISJf- Common Carriers and Persons Controlling 
 Grain Elevators occupy Analogous Fositions. 
 
 In the cases already referred to as taken by writ of error to the 
 courts of New York to the Supreme Court of the United States, 
 it is said that the principle maintained in Munn v. Illinois must 
 
 Whcmperike tfe P. Teleph. Co. v. B.illlmore & 0. Telcfj. Co. 66 Md. 899, 414. 
 '^Delaware, L. tfc W. 11. Co. v. Ventral iStockyard tfi 2\ Co. 45 2^. J, Eq. 
 
 50, 60. f 
 
 'Zaiunville v. Zanesville Gas Light. Co. 47 Obio St. 1.
 
 GKAIN El.EVATOKS. 469 
 
 be regarded as firmly established and that principle covers the cases 
 then in hearing iu resi:)ect to the charge for elevating, receiving, 
 weighing and discharging the grain, as well as in respect to the 
 chare:6 for trimming and shovelinji; to the leo; of the elevator when 
 loading, and trimming the cargo when loaded. If the shovelers or 
 scoopers chose, they might do the shoveling by hand, or might use 
 a steam shovel. A steam shovel is owned by the elevator owner, 
 and the power for operating it is furnished by the engine of the 
 elevator; and if the scooper uses the steam shovel, he pays tlie 
 elevator owner for the use of it. 
 
 The answer to the suggestion that by the statute the elevator 
 owner is forbidden to make any protit from the business of shovel- 
 ing to the leg of the elevator is that made by tlie Court of Appeals 
 of New York in the case of Budd, that the words " actual cost," 
 used in the statute, Avere intended to exclude any charge by the 
 elevator owner, beyond the sum specified for the use of his ma- 
 chinery in shoveling and the ordinary expenses of operating it, 
 and to confine the charge to the actual cost of the outside labor 
 required for trimming and bringing the grain to the leg of the 
 elevator; and that the purpose of the statute could be easily 
 evaded and defeated if the elevator owner was permitted to sep- 
 arate the services, and to charge for the use of his steam shovel 
 any sum which might be agreed upon between himself and the 
 shovelers' union, and thereby under color of charging for the use 
 of his steam shovel, to exact of the carrier a sum for elevating 
 beyond the rate fixed by tlie statute. 
 
 The Supreme Court of the United States expresses the opinion 
 that the act of the legislature of New York is not contrary to 
 the 14th Amendment to the Constitution of the United States, 
 and does not deprive the citizen of his property without due pro- 
 cess of law; that the act, in fixing the maximum charges which 
 it specifies, is not unconstitutional, nor is it so in limiting the 
 charge for shoveling to the actual cost thereof; and that it is a 
 proper exercise of the police power of the state. 
 
 On the testimony in the cases before that court the business of 
 elevating grain is declared to be a business charged with a public 
 interest, and those who carry it on occupy a relation to the com- 
 munity analogous to that of common carriers. The elevator
 
 470 STATE COiS'TKOL OVEK CAKKIKKS. 
 
 owner, in fact, retains the grain in his custody for an appreciable 
 period of time, because he received it into his custody, weighs it, 
 and then discharges it, and his employment is thus analogous to 
 that of a warehouseman. In the actual state of the business the 
 passage of the grain to the city of New York and other places on 
 the seaboard would, without the use of elevators, be practically 
 impossible. The elevator at Buffalo is a link in the chain of 
 transportation to the seaboard, and the elevator in the harbor of 
 New York is a like link in the transportation abroad by sea. The 
 charges made by the elevator influence the price of grain at the 
 point of destination on the seaboard, and that influence extends to 
 the prices of grain at the places abroad to which it goes. The 
 elevator is devoted by its owner, who engages in the business, to 
 a use in which the public has an interest, and he must submit to 
 be controlled by public legislation for the common good. 
 
 It is contended in the briefs for the plaintiffs in error in the 
 Annan and Pinto case, that the business of the relators in hand- 
 ling grain was wholly private, and not subject to regulation by 
 law; and that they had received from the state no charter, no 
 privileges and no immunity, and stood before the law on a footing 
 with the laborers they employed to shovel grain, and were no 
 more subject to regulation than any other individual in the com- 
 munity. But it is answered by the court that these same facts 
 existed in Munn v. Illinois. In that case, the parties offending 
 were private individuals, doing a private business, without any 
 privilege or monopoly granted to them by the state. Not only is 
 the business of elevating grain affected with a public interest, but 
 tlie records show that it is an actual monopoly, besides being in- 
 cident to the business of transportation and to that of a common 
 carrier, and thus of a quasi public character. The act is also 
 declared to be constitutional as an exercise of the police power 
 of the state. 
 
 So far as the statute in question is a regulation of commerce, the 
 court says that it is a regulation of commerce only on the waters of 
 the state of New York. It operates only within the limits of 
 that state, and is no more o1)noxious as a regulation of interstate 
 commerce tlian was the statute of Illinois in respect to ware- 
 liouses, in Munn v. llUnois. It is of the same character with
 
 GKAIN ELEVATOKS. 471 
 
 iiavio-ation laws in respect to navigation M'itliin the state, and 
 laws regulating wharfage rates within the state and other kindred 
 laws. 
 
 It is further contended that under the decision of the Supreme 
 Court of the United States* the fixing of elevator charges is a ju- 
 dicial question, as to whether the3^ are reasonable or not; that the 
 statute must permit and provide for a judicial settlement of the 
 •charges; and that, by the statute under consideration, an arbitrary 
 rate is fixed, and all inquiry is precluded as to whetlier that rate 
 is reasonable or not. But this it is said is a misapprehension of the 
 decision in the case referred to. In that case, the legislature of 
 Minnesota had passed an act which established a railroad and ware- 
 house commission, and the Supreme Court of that state had inter- 
 preted the act as providing that the rates of charges for the transpor- 
 tation of property by railroads, recommended and published by the 
 commission, should be final and conclusive as to what were equal 
 and reasonable charges, and that there could be no judicial inquiry 
 as to the reasonableness of such rates. A railroad company,' in 
 answer to an application for a mandamus, contended that such rates 
 in regard to it were unreasonable, and, as it was not allowed by the 
 estate court to put in testimony in support of its answer, on the ques- 
 tion of the reasonableness of such rates, the Supreme Court of the 
 •United States held that the statute was in conflict with the Constitu- 
 tion of the United States, as depriving the company of its property 
 without due process of law, and depriving it of the equal protection 
 •of the laws. That was regarded as a very different case from one 
 under the statute of JSTew York in which the rate of charges is fixed 
 directly by the legislature. What was said in the opinion of the 
 court in 134 U. S. had reference only to the case then before the 
 court, and the charges fixed by a commission appointed under an act 
 of the legislature, under a constitution of the state which provided 
 that all corporations, being common carriers, should be bound to 
 carry "on equal and reasonable terms," and under a statute which 
 provided that all charges made by a common carrier for the trans- 
 portation of passengers or property should be "equal aiid reason- 
 .able." What was said in the opinion in 134 U. S., as to the question 
 
 ^Chicago, M. & St. P. R. Go. v. Minnesota, 134 U. S. 418, 33 L. ed. 970. 
 ^See Spencer v. Merchant, 125 U. S. 345, 356, 31 L. ed. 763, 767.
 
 472 STATE CONTKOJ. OVEK UAliiilEKS. 
 
 of the reasonableness of the rate of charc^e being one for judieial" 
 investigation, had no reference, it is said, to a case where tlie 
 rates are prescribed directly b}' tlie legislature. Not only was- 
 that the case in the statute of Illinois in Munn v. Illinois, but 
 the doctrine was laid down by the United States Supreme Court' 
 that it was the right of a state to establish limitations upon 
 the power of railroad companies to fix the price at which they 
 would carry passengers and freight, and that the question 
 was of the same character as that involved in fixing the 
 charges to be made by persons engaged in the warehousing busi- 
 ness. So too, it was said,* that it was within the power of the 
 legislature to declare what should be a reasonable compensation 
 for the services of persons exercising a public employment, or tO' 
 fix a maximum beyond which any charge made would be unrea- 
 sonable. 
 
 But after citing several well known cases from the Supreme 
 Court of the United States,' as recognizing the doctrine that the 
 legislature may itself fix a maximum beyond which any charge 
 would be unreasonable, in respect to services rendered in a public 
 employment, or for the use of property in which the public has 
 an interest, subject to the proviso that such power of limitation 
 or regulation is not without limit, and is not a power to destroy, 
 or a power to compel the doing of the services without reward, or 
 to take private property for public use without just compensation 
 or without due process of law, the court said that it had no means, 
 "if it would under any circumstances have the power," of deter- 
 mining that the rate fixed by the legislature in that case was 
 unreasonable, and that it did not appear that there had been any 
 such confiscation of property as amounted to a taking of it with- 
 
 1 WahaHh, St. L. <& P. R. Co. v. Illinois, 118 U. S. 557, 568, 30 L. ed. 244, 248. 
 
 •-Bow V. Bddelman, 2 Inters. Com. Rep. 56, 125 U. S. 680, 086, 31 L. ed. 841, 
 842. 
 
 *Munn V. Illinoi», 94 U. S. 113, 24 L. ed. 77; Ghicngo, B. & Q. E. Co. v. Jowa, 
 94 U. S. 155, 101, W2, 24 L. ed. 94, 95; Peik v. Clncngo & N. W. R. Co. 94 
 U S 164. 178. 24 L.ed. 97, 99; Chicago, M. & St.. P.R. Co. v. Arkley. 94 
 U S. 179, 24 L. ed. 99; Winona & St. P. R. Co. v. Blake. 94 U. S. 1890. 
 24 L. ed. 99; Stone v. Wisconsin, 94 U. 8. 181, 24 L. ed. 102; Rngg'es v. 
 Jllinois, 108 U. S. 526, 27 L. ed. ^\2; Illinois Cent. R. Go. v. Illinois, 108 
 U. S. 541, 27 L. ed. 818; Stone v. Farmers L. <fc T. Co. 116 U. S. 307, 29 
 L. ed. 636; Stone v. Il'inois Cent. R. Co. 116 U. S 347, 29 L. ed. 650, and 
 Slone V. New Orleans & JV. E. R. Co. 116 U. S. 352, 29 L. ed. 651.
 
 GKAIN ELEVATOKS. 47$ 
 
 out due process of law, or that there had beeu any denial of the 
 equal protection of the laws. 
 
 In the cases on writ of error to the courts of New York, the 
 records do not shov\^ that the charges iixed by the statute are 
 unreasonable, or that property lias been taken without due process 
 of law, or that there has been any denial of the equal protection 
 of the laws; even if under any circumstances the court could 
 determine that the maximum rate iixed by the legislature was. 
 unreasonable. 
 
 In the opinion of the court, delivered by Mr. Justice Field,' 
 it was said that the Supreme Court of the United States had 
 adjudged in numerous instances that the legislature of a state had 
 the power to prescribe the charges of a railroad company for the 
 carriage of persons and merchandise within its limits, in the ab- 
 sence of any contract to the contrary, subject to the limitation 
 that the carriage is not required without reward, or upon condi- 
 tions amounting to the taking of property for public use without 
 just compensation, and that what is done does not amount to :i 
 regulation of foreign or interstate commerce. 
 
 It is further contended for the plaintiffs in the cases from the 
 courts of New York that the statute in question violates the 14th 
 Amendment, because it takes from the elevator owners the 
 equal protection of the laws, in that it applies only to places which 
 have 130,000 population or more, and does not apply to places 
 which have less than 130,000 population, and thus operates against 
 elevator owners in the larger cities of the state. But it is an- 
 swered that the law operates equally on all elevator owners in 
 places having 130,000 population or more; and they are not 
 deprived of the equal protection of the laws, within the meaning 
 of the 14th Amendment. 
 
 The ground on which the doctrine thus forcibly restated, is 
 controverted, is clearly set forth in a dissenting opinion by 
 Brewer, J., in the cases on error to the New York courts, in 
 which he is supported by Field and Brown, JJ, The dissenting 
 opinion declares that the main proposition is radically unsound. 
 It is the doctrine of Munn v. Illinois, 94 U, S. 113, 24 L. ed. 77 
 reathrmed. That is, as declared in the syllabus and stated in the 
 
 ^Georgia R. & Bkg. Co. v. Smith, 133 U. S. 174, 179, 32 L. ed. 377, 380.
 
 474 STATE CONTROL OVER CARRIERS. 
 
 opinion in that case : "When, therefore, one devotes his property 
 to a use in which the pnblic has an interest, he, in effect, grants 
 to the pubhc an interest in tliat use, and must submit to be con- 
 trolled by the public for the common good, to the extent of the 
 interest he has thus created." The elaborate discussions of the 
 question in the dissenting opinions in that case, and the present 
 cases when under consideration in the Court of Appeals of the 
 state of New York, it is said, seem to forbid anything more than 
 a general declaration of dissent. The vice of the doctrine in the 
 view of the dissenting judges is, that it places a public interest in 
 the use of property upon the same basis as a public use of prop- 
 erty. Property, they say, is devoted to a public use when, and only 
 when the use is one which the public in its organized capacity, to wit, 
 the state, has a right to create and maintain, and, therefore, one 
 which all of the public have a right to demand and share in. The 
 use is pubhc, because the public may create it, and the individual 
 creating it is doing thereby and jpro tanto the work of the state. 
 The creation of all highways is a public duty. Railroads are 
 highways. The state may build them. If an individual does that 
 work, he is pro tanto doing the work of the state. He devotes 
 his property to a public use. Tlie state doing the work fixes the 
 price for the use. It does not lose the right to fix the price, be- 
 cause an individual voluntarily undertakes to do the work. But 
 this public use is very different, it is contended, from a public 
 interest in tlie use. There is scarcely any property in whose use 
 the public has no interest. ' No man liveth unto himself alone, 
 and no man's property is beyond the touch of another's welfare. 
 Everything, the manner and extent of whose use affects the well- 
 being of others, is property in whose use the public has an inter- 
 est. Take, for instance, tlie only store in a little village. All 
 the public of that village are interested in it; interested in the 
 <Hi;iiitity and quality of the goods on its shelves, and their prices, 
 iu the time at which it opens and closes, and generally, in the way 
 in which it is managed; in short, interested in the use. Does it 
 follow, it is asked, that that village public has a right to control 
 tlicHO matters ? That which is true of the single small store in the 
 village, it is asserted, is also true of the largest mercantile estab- 
 iisiiiiu^iit in the great city. The magnitude of the business does
 
 GKAIN ELEVATORS. 475 
 
 not chaiif^e the principle. There may be more individuals inter- 
 •ested, a larger public, but still the public. The country merchant 
 who has a small warehouse in which the neighboring farmers are 
 wont to store their potatoes and grain preparatory to shipment, it 
 is claimed, occupies the same position as the proprietor of the 
 largest elevator in l!^ew York. The public has in each case an 
 interest in the use, and the same interest, no more and no less. It 
 is denied that when the owner of property has by his industry, 
 skill, and money made a certain piece of his property of large 
 value to many, he has thereby deprived himself of the full domin- 
 ion over it whicli he had when it was of comparatively little 
 value, or that the control of the public over one's property or 
 business is at all dependent upon the extent to which the public 
 is benefited by it. 
 
 It is insisted that the matters in which the public has the most 
 interest, are the supplies of food and clothing; yet it is denied 
 that by reason of this interest the state may fix the price at which 
 the butcher must sell his meat, or the vendor of boots and shoes 
 his goods. Resting upon the primary truth that men are endowed 
 by their Creator with certain unalienable rights, "life, liberty, and 
 the pursuit of happiness;" and to "secure," not grant or create, 
 these rights governments are instituted, it is asserted that proper- 
 ty which a man has honestly acquired he retains full control of, 
 subject to these limitations: First, that he shall not use it to his 
 neighbor's injury, and that does not mean tliat he must use it for 
 his neighbor's benefit; second, that if he devotes it to a public 
 use, he gives to the public a right to control that use; and, third, 
 that whenever the public needs require, the public may take it 
 upon payment of due compensation. 
 
 The dissenting opinion refers to the suggestion that there is a 
 monopoly, and that that justifies legislative interference. But it 
 is said there are two kinds of monopoly; one of law, the other of 
 fact. The one exists when exclusive privileges are granted. Such 
 a monopoly, the law which creates alone can break; and being the 
 creation of law, justifies legislative control. A monopoly of fact 
 any one can break, and there is no necessity for legislative inter- 
 ference. It exists where any one by his money and labor fur- 
 nishes facilities for business whicli no one else has. A man puts
 
 i7(i STATE CONTROL OVEK CARRIERS. 
 
 up in a city the only bnilding suitable for offices. He has there- 
 fore a monopoly of that business; but it is a monojioly of fact^ 
 which any one can break who, with like business courage puts his^ 
 means into a similar building. Because of the monopoly feature, 
 subject thus easily to be broken, it is asked, may the Legislature 
 regulate the price at which he will lease his offices ? So, it is 
 insisted, there are no exclusive privileges given to these elevators. 
 They are not upon public ground. If the business is profitable, 
 any one can build another; the field is oj^en for all the elevators, 
 and all the competition that may be desired. If there be a monop- 
 oly it is one of fact and not of law, and one which any individual 
 can break. 
 
 The paternal theory of government is condemned and the 
 utmost possible liberty to the individual, and the fullest possible 
 protection to him and his property, is claimed as both the limita- 
 tion and duty of government. If it may regulate the price of one 
 service, which is not a public service, or the compensation for the 
 use of one kind of property which is not devoted to a public 
 use, why, it is questioned, may it not with equal reason regulate 
 the price of all service, and the compensation to be paid for the 
 use of all property ? 
 
 The dissent is emphasized in these cases, because the statute, it 
 is insisted, in effect compels service without any compensation. It 
 provides that the parties seeking the service of the elevator "shall 
 only be required to pay the actual cost of trimming or shoveling 
 to the leg of the elevator when unloading, and trimming cargo 
 when loading." This work of trhnming or shoveling, is fully 
 explained in the briefs of counsel. It is work performed by long- 
 shoremen with hand-scoops or shovels, on the vessel unloading or 
 receiving the grain. They are not in the regular employ of the 
 elevator; but engaged in an independent service, and yet one 
 whose careful and skillful performance is essential to the success- 
 ful transfer of grain into and tlirough the elevator. The full ser- 
 vice required of the elevator compels its proprietor to employ and 
 superintend the work of these longshoremen. For this work of 
 ein])loyment, and superintendence, and for the responsibility for 
 the ]n-oper performance of their work, the act says that the pro- 
 ])ri('t(;r of the el(!vatur shall receive no coiupi'iisation; he can
 
 GKAIN ELEVATOKS. 477 
 
 charge only that wlilch ho pays out, the actual cost. It is denied 
 that a man can be required to render any service to another indi- 
 vidual without some compensation. 
 
 Again it is said that in the Pinto case, it appears that Mr. Pinto 
 is tlie owner of a stationary elevator, built on pi-ivate grounds. It 
 is not on grounds devoted to a public use, like the right of way of 
 a railroad company. There is nothing to indicate on his part a 
 purpose to dedicate his property to public uses. So far as it is 
 ])ossible to make the business of an elevator a purely private busi- 
 ness, he has done so. It is denied that the transferring of grain 
 through an elevator is one step in the process of transportation; 
 and that, therefore, they are quasi common carriers, discharging 
 a public duty, and subject to public control. It is insisted that 
 they are not carriers in any proper sense of the term. They may 
 facilitate carriage; so does the boxing and packing of goods for 
 transportation. The engineers, firemen, brakemen, and all the 
 thousands of employes of a railroad company are helping the busi- 
 ness of transportation; but are they all common carriers, it is asked, 
 simply cause their work tends to facilitate the business of trans- 
 portation, and may the legislature regulate their wages ? 
 
 In concluding the dissent the conviction is expressed that the time 
 is not distant when the evils resulting from this assumption of a 
 ])Ower on the part of government to determine the compensation a 
 man may receive for the use of his property, or the performance of 
 liLs personal services, will become so apparent that the courts Avill 
 hasten to declare that government can prescribe compensation only 
 when it grants a special privilege, as in the creation of a corporation, 
 or when the service which is rendered is a public service, or the 
 property is in fact devoted to a public use. 
 
 It has been often ruled that corporations, as such, have no legal 
 existence outside of the state by whose laws they are created, and 
 cannot transact business in another state except by the comity of its 
 laws. This doctrine is subject to much qualification. The habits of 
 business have so changed since the decision in the earlier cases,' 
 and corporate organizations have been found so convenient, espe- 
 cially as avoiding a dissolution at every change of membership, 
 that a large part of the business of the country has come to be 
 
 ^BankofAngusta v. EarU, 38 U. S. 13 Pet. 519, 10 L. ed. 274.
 
 478 STATE CONTROL OVER CARRIERS. 
 
 transacted by their instrumentality, while their most objectionable 
 feature — the nonliability of corporators — has in most instances 
 been abrogated in whole or in part; and to deny their admission 
 from one state to another in ordinary cases, at the present da}', 
 would go far to neutralize that provision in the fourth article of 
 the Constitution which secures to the citizens of one state all the 
 privileges and immunities of citizens in another, and that provision 
 of the 14th Amendment, which secures to all persons the equal 
 protection of the laws. So strongly is this felt that in a recent 
 case* the doctrine that corporations are not citizens or persons 
 within the protective language of the Constitution, was unani- 
 mously disapproved, and the court expressly held that they are 
 entitled, as well as individuals, to the equal protection of the laws- 
 under the 14th Amendment of the Constitution. 
 
 It is undoubtedly just and proper that foreign corporations 
 should be subject to the legitimate police regulations of the state 
 and should have, if required, an agent in the state to accept ser- 
 vice of process when sued for acts done or contracts made there- 
 in. In reference to some branches of business, like those of bank- 
 ing and insurance, which affect the people at large, they may also 
 be subject to more stringent regulations for the security of the 
 pubhc, and may be even prohibited from pursuing them except 
 on such terms and conditions, not unlawful in themselves, as the 
 state chooses to impose. A state legislature may prescribe con- 
 ditions upon which foreign corporations may do business unless 
 engaged in interstate commerce.' Corporations are not citizens 
 within the meaning of clause 1, § 2, of article four of the Consti- 
 tution of the United States, declaring that " the citizens of each 
 state shall be entitled to all privileges and immunities of citizens in 
 the several states." Section 1 of the 14th Amendment to the Con- 
 stitution, declaring that no state shall "deny to any person within 
 its jurisdiction the equal protection of the laws," does not prohibit 
 a state froin imposing such conditions upon foreign corporations as 
 it may choose, as a condition of their admission within its limits. 
 
 K'^anta Clara County v. Southern Pac. B. Co. 118 U. S. 394-396, 30 L. ed. 118. 
 
 'Lint V. Pennmjlnnnia, 1 Inters. Cf»m. Itep. 784, 118 Pa. 332, Indiana v. Wood- 
 ruff iHleepiuq & R G. Co. 1 Inters. Com. Rep. 708, 114 Ind. 155; Stockton 
 T. nallivuj're & N. Y. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. Rep. 9; 
 Burron v. Jiurmide, 1 Inters. Com. Rep. 295, 121 U. S. 180, 30 L, ed. 915.
 
 GRAIN ELEVATOllS. 479 
 
 But a state cannot, under tlie guise of a license tax, exclude from its 
 jurisdiction a foreign corporation engaged in intei^tate commerce, 
 nor impose any burdens upon such commerce within its limits. 
 Where the business of a through line of railroads consists, in 
 part, of carrying passengers and freight into Pennsylvania from 
 other states and out of that state into other states, and a railroad 
 company which is a corporation of Virginia is a link in that line, 
 such company is engaged in interstate commerce in Pennsylvania. 
 A license tax assessed under the Pennsylvania act of June 7, 
 1879 (Pub. Laws, 112, 120), by the auditor-general of that state 
 against such company for keeping an office in Philadelphia for 
 the use of its officers, stockholders, agents and employes, is a ttix 
 upon the company's business of interstate commerce, and is a vio- 
 lation of the commercial clause of the Constitution of the United 
 States.* 
 
 Nor can the jurisdiction of Federal courts be affected by 
 state legislation. An act of a state seeking to make the right of 
 foreign corporations to transact business in that state dependent 
 upon surrender of right to remove causes to Federal courts, is in- 
 valid. A corporation is a citizen of the state by which created, 
 so far as its right to sue and be sued in the Federal courts is con- 
 cerned.^ Under the Act of Congress of March 3, 1887, a civil action 
 in a Federal court for violations of the Interstate Commerce Act can 
 be brought only in the district whereof defendant is an " inhabi- 
 tant," as jurisdiction is not dependent on citizenship. A corpor- 
 ation created and existing solely under the laws of a state in 
 which it has its principal office and place of business cannot be 
 said to be an inhabitant of another state so that it can be sued 
 there in the Federal court, although it does business there through 
 agents.^ 
 
 In the pursuit of business authorized by the government of 
 the United States, and under its protection, the corporations 
 of other states cannot be prohibited or obstructed by any state. 
 A foreign corporation has the same right as an individual to 
 
 Norfolk & W. R. Co. v. Penmylmnia, 136 U. S. 114, 34 L. ed. 394. 
 
 ^Barron v. Burnside, 1 Inters. Com. Rep. 295. 121 U. S. 186, 30 L. ed. 915. 
 
 ^Connor v. Vickshurg & M. R. Co. 2 Inters. Com. Rep. 177, 1 L. R. A 331, 
 36 Fed. Rep. 273.
 
 480 STATE CONTliOL OVER CARRIERS. 
 
 conduct evervwliere the business of interstate transportation.' 
 A constitutional requirement that a foreign corporation sliall 
 have a place of business and an agent upon whom service may 
 be made within the state, is void as a restriction on navigation." 
 When a state carrier engages in interstate commerce it becomes 
 a national instrumentality for the purposes of such commerce, 
 and is subject to regulations prescribed by the national authority.^ 
 If Congress should employ a corporation of shipbuilders to con- 
 struct a man-of-war, they would have the right to purchase the 
 necessary timber and iron in any state of the Union; and in carry- 
 ing on foreign and interstate commerce, corporations, equally with 
 individuals, are within the protection of the commercial power of 
 ■Congress, and cannot be molested in another state by state bur- 
 dens or impediments. 
 
 This was decided in the case of Gloucester Ferry Co. v. 
 Pennsylvania, 1 Inters. Com. Eep. 382, 114 U. S. 204, 29 L. ed. 
 162, and affirmed in the recent case of Philadelphia <& /S. M. 
 SS. Go. V. Pennsylvania, 1 Inters. Com. Eep. 308, 122 U. S. 
 326, 30 L. ed. 1200; and although the decision in Paul v. Vir- 
 ginia, 75 U. S. 8 Wall. 168, 19 L. ed. 357, conformed to the doc- 
 trine of Bank of Augusta v. Earle, the following striking lan- 
 guage was used by the court to wit : " At the time of the forma- 
 tion of the Constitution, a large part of the commerce of the 
 world was carried on by corporations. The East India Company, 
 the Hudson's Bay Company, the Hamburgh Company, the Levant 
 Company, and the Virginia ComjDany, may be named among the 
 many corporations then in existence, which acquired, from the 
 extent of their operations, celebrity throughout the commercial 
 world. This state of facts forbids the supposition that it was 
 intended in the grant of power to Congress, to exclude from its 
 control the commerce of corporations. The language of the grant 
 makes no reference to the instrumentalities by which commerce 
 jnay be carried on; it is general and includes alike commerce by 
 
 ^raul V. Virginia, 75 U. S. 8 Wall. 168, 19 L. ed. 357; Penmcola Teleg. Co. 
 
 V. Wfxtern U. Teleg. Co. 96 U. S. 12, 24 L. ed. 711; Doyle v. Continental 
 
 Ins. Co. 94 U. S. 544, 24 L. ed. 152; Weatern U. Teleg. Co. v. Texas, 105 
 
 U. 8. 460. 26 L. ed. 1067. 
 *New Orleans it M. Packet Co. v. James, 1 Inters. Com. Rep. 589, 33 Fed. 
 
 Il< p. 21. 
 'Mattingly v. Pennsylrtinia Co. 2 Inters. Com. Rep. 806.
 
 GKAJN KLEVATOKS. 481. 
 
 individuals, partnerships, associations and corporations." This 
 language may be fairly supplemented by adding that when the 
 Constitution was adopted, it could not have been supposed that 
 the regulations of commerce to be made by Congress, might be of 
 no avail to commercial corporations, or at least might be rendered 
 nugatory with regard to them, in consequence of state restrictions 
 upon their power to act as corporations in any other state than 
 that of their origin. 
 
 Congress can confer upon a state corporation powers not con- 
 tained in its original charter.' If Congress, in the execution of its 
 powers, chooses to em])loy the intei'vention of a proper corpora- 
 tion, whether of tlie state or out of the state, no reason suggests 
 itself why it should not do so. There is nothing in the Constitu- 
 tion to prevent it from making conti-acts with, or conferring powers 
 upon, state corporations forcarrying out its own legitimate pur- 
 poses. Congress may, in the exercise of its power to regulate inter- 
 state conuTierce, construct f»r authorize individuals or corporations 
 to construct railroads across the states and territories of the United 
 States.' It may authorize a private cor])(>ration to occupy the 
 navigable waters within a state and appropriate soil under them, 
 for pui'poses of interstate commerce, without consent of the state.* 
 
 If it be argued that Congress cannot confer powers on a state 
 corporation the position is untenable. It has used their agency 
 for carrying on its own purposes from an early period. It adopted 
 as post roads the turnpikes belonging to the various turnpike cor- 
 porations of the country as far back as such corporations were 
 known, and subjected them to burdens and accorded to them 
 privileges arising out of that relation. It continued the same 
 system with regard to canals and railroads when these modes of 
 transportation came into existence. Nearly half a century ago, 
 it constituted every railroad built or to be built in the United 
 States, a post route. This, of course, involved duties and con- 
 
 ^ Stockton V. Baltimore & N. Y. U. Co. 1 Inters. Com. Eep. 411, 32 Fed. 
 
 Kep. 9. 
 ^California v. Central Pac. R. Co. 1 Inters. Com. Rep. loiJ. 127 U. S. 1, 32 
 
 L. ed. 150. 
 ^Stockton V. Baltimore & X. F. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. Rep. 
 
 9; Decker v. Baltimore & N. Y. R. Co. 1 Inters. Com. Rep. 434, 30 Fed. 
 
 Rep. 733. 
 
 31
 
 482 STATK COJ\TKOL (J\EK lAKKIERS. 
 
 ferred privileges and powers not contained in their original char- 
 ter. In 1866, Congress authorized every steam railroad company 
 in the United States to carry passengers and goods on their way 
 from one state to another, and to receive compensation therefor, 
 and to connect with roads of other states, so as to form continuou& 
 lines for the transportation of the same to the place of destination. 
 The powers thus conferred were independent of the powers con- 
 ferred by the charter of any railroad company. Surely these acts 
 of Cono-ress cannot at this late day be condemned as unconstitu- 
 tional exertions of power.' 
 
 ^Stockton V. Baltimo/e d JS\ T. li. Co. 1 Inters. Com. Kep. 411, 33 Fed. 
 Rep. 9.
 
 CHAPTER XXIIl. 
 
 COMMERCE. STATE AND INTERSTATE. 
 
 § 135. Slate Coin missions to Jiegulale Cliaryes. 
 
 § 136, Interstate Commerce Commission. 
 
 § 137. Interstate Commerce Act Construed. 
 
 § 138. Ticket Brokerage. 
 
 § 139. Rates mnst be Reasonable. 
 
 § 135. State Cojmnissioiis to Regulate Charges. 
 
 The charter of a company is not a contract, the ol>hi;ation of 
 which is impaired by a state statute creating a commission to pro- 
 vide for the regulation of freight and passenger rates, prevent 
 unjust discrimination and enforce certain police regulations affect- 
 ing raih'oad companies doing business in that state.' Giving rail- 
 road commissioners power to lix rates is not an imlawful delegation 
 of legislative power.'' 
 
 An act prescribing different maximum i-atcs to be charged for 
 the carriage of passengers by railroads within the state, the roads 
 being classified according to their length, is not in violation of the 
 constitutional provision against special legislation, as its provisions 
 apply to each class uniformly,' A statute concerning railroad 
 classification and charges covering the entire subject will repeal 
 the common law, and the only remedy for an overcharge by a 
 carrier Is that given by the statute,^ Such acts usually give to 
 the state board of railroad connnissioners power to make a full 
 schedule of maximum rates of transportation charges of railroad 
 companies, after the investigation of any complaint; which sched- 
 
 ^Stone V. Fanners L. & T. Co. ('R. R. Commission Cases") 116 U. S. 'Wl, 29 
 
 L. ed. 636. 
 ^Chicago &K W. R. Co. v. Dey, 2 Inters. Com. Rep. a->5, 1 L. R. A. 744. 
 
 35 Fed. Rep. 866. 
 ^Dow V. Beidelman, 49 Ark. 325. 
 * Young V. Kansas City, St. ,J. & C. B. R. Co. 33 ilo. App. 509: McWhorter 
 
 V. Pensacola <fc A. R. Co. 2 L. R. A. 504, 24 Pla. 417, 12 Am. St. Rep. 
 
 220. 
 
 483
 
 484 COMMKKCE, STAl'E AXJJ INTKKSTATK. 
 
 ule is to apply to all points within the state, and is not to be lim- 
 ited to the matter set out in the complaint.' 
 
 It is no defense to an action against a railroad C(jmpany for the 
 statntory penalty for an ov'ei'eharge, that a charge of TO cents for 
 a passage of 11 miles included a charge of 40 cents for passage 
 over a bridge, where the Act of Congress under which the bridge 
 Mas built provided that no higher charge sliall be made for the 
 transportation of passengers over it than is paid for similar trans- 
 portation over the railroad leading to the bridge, and the regular 
 rate of fare on such road is 3 cents per mile." 
 
 The provision for a railroad commission, whose control ex- 
 tends to '• transportation companies," should be construed to in- 
 clude in the supervision of the commission all persons engaged 
 in the business of transportation, whether as corporations, joint 
 stock companies, partnerships or individuals/ 
 
 Such a state commission has no authority to prescribe rates for 
 transportation by common carriers in another state. It cannot lix 
 the rates for carriage between two points within the state over a 
 route extending across a neighboring state. Such power is vested 
 exclusively in Congress.^ The South Carolina Railroad Commis- 
 sion has no jurisdiction of a complaint for charges unlawfully 
 made by a railroad partly in ]S"ortli Carolina for transportation 
 which was partly in the latter state, although it was for part of 
 the original transportation by connecting lines between points 
 both in South Carolina, such transportation being interstate com- 
 merce." 
 
 State officers in appropriating and assessing the expenses of the 
 board of railroad commissioners act in a quasi judicial character; 
 and their action is reviewable on certiorari, or in some appropriate 
 form, by a comj^any aggrieved thereby." 
 
 An act rerpiiring railroads to pay the expenses of a railroad 
 commission is part of subsequent charters; and successive assess- 
 
 ^ Chicago, B. & Q. R. Co. v. Dey, 38 Fed. Rep. 656. 
 
 'Moran v. lloxs, 79 Cal. 549. 
 
 'St. LouiH db S. F. It, Co. V. Stevemon, 54 Ark. 116. 
 
 *Staie V. Chicago, St. P. M. & 0. B. Co. 2 Inters. Com. Rep. 519. 3 L. R. A. 
 
 2:58, 40 Minn. 267. 
 '-Sternhergcr v. Cape. Fear & Y. V. It. Co. 2 Inters. Com. Rep. 426, 2 L. R.A. 
 
 105, 29 8. C. 510. 
 *reoide V. Cfiapin. 42 Hun, 239.
 
 bTATK C()MMI8!SIONS TO REGULATE CHAKc.ES. 485 
 
 iiieiitK for tliis purpose, in aiimial tax acts, are only a provision 
 to carry out tliis existing law.' 
 
 Railroad switching charges may be regulated by a commission 
 appointed under a state act by virtue of its police powers; and 
 this does not make an mdawful interference with commerce, 
 although the cars switched cimtaiu freight for transportation 
 between states." But where tlie actual cost for switching cars in 
 a city exceeds the compensation fixed therefor by a schedule of 
 rates prepared by stat(! railroad comiiiissioners, tlie schedule can- 
 not be enforced." 
 
 An act making a railroad connnissioners' scliedule prima facie 
 evidence that the rates lixed thei"eby are reasonable is not an in- 
 fringement of tlie constitutional guaranties of the right to trial 
 ]>y jury and agjunst depri\atioii of property without due process 
 of law.'' 
 
 Where a tarilf of freight and passenger rates has been estab- 
 lished by the railroad commissioners, and the railroad company 
 and the commissioni'rs differ as to whether such rates, considered 
 as a whole, will prove I'l'iniuierative to the company, and there is 
 room for a difference of intelligent opinion on the (piestion, the 
 courts camiot interfere or substitute their judgment for that of 
 the commist-ioiicrs, tint the tariffs, as fixed Itv the conmiissioners, 
 must, in so far as the courts are concerned, be left to the test of 
 expei'iment. The courts will not interfere or grant any relief to a 
 raili'oad com[)any against rates tixed l)y commissiono's, upon a 
 complaint made as to one of several rates only, or where the 
 freight and passenger rates esta])lished by the commissioners are 
 not assailed as an entirety. 'JMie coui'ts liaAe no power to make 
 freight or passenger tariffs. The enforcement of a tai'iff of freight 
 and passenger i-ates which w ill not pay the expenses of operating 
 a railroad was held, u})on the pleadings, to show an abuse of the 
 discretion given to railroad commissioners by the statute author- 
 izing them to prescribe reasonaltle and just rates of freight and 
 
 ' Columbia tfc G. 11. Co. v. Gibbex, 24 S. C. 60. 
 
 '^Cldcaijo, M. <kSl: P. It Co. v. Becker, 32 Fed. Rep. 849. 
 
 HJhicago, St. P. M. rf- O. R. Co. v. Becker, 35 Fed. Kep. 883. 
 
 ^Chicago cfc ^\ W. li. Co. v. JJey, 2 Inters. Com. Rep. 325, 1 L. H. A. 744,35 
 Fed. Rep. 866.
 
 4:86 CONt.NCKKCK, STATK AND IXTEKSTATE. 
 
 passenger transportation, and to amount to a taking of the railroad 
 company's property without just compensation.' 
 
 Where a scliechile of rates for railroad charges, fixed by legis- 
 lative autliority, will not pay the cost of necessary service, appli- 
 ances and the repair thereof, interest on bonds, and then leave 
 something for dividends, its enforcement will be enjoined. In a 
 suit to restrain the enforcement of unreasonable rates, it is no 
 defense that phiiiitiif is a foreign corporation and may retire when 
 the business ceases to l>e profitable, or that it operates through 
 other states, where no rates are fixed which will enable it to make 
 profit. Xor that the reduced rates may increase the volume of 
 business and make it the more remunerative in the future. 
 The Federal courts liave jurisdiction of a suit against state 
 railroad commissioners, to restrain the enforcement of their 
 rates, under an unconstitutional statute; such suit not being 
 in effect against the state and hence not within the 11th Amend- 
 ment of the Federal Constitution.^ That the state board of 
 I'ailroad commissioners have advertised in papers that a schedule 
 of rates prepared by them will be put in force on a named day 
 gives equity jurisdiction to restrain the enforcement of the^ sched- 
 ule, Itefore the expiration of the time to prevent a multiplicity of 
 suits. Where the proi)able effect of putting in force a schedule 
 of rates prepared by the state board of railroad commissioners, 
 under a legislative act would be to destroy all dividends from 
 the operation of the roads, and the act provddes for treble dam- 
 ages to any shipper injured \)\ an overcharge, tlie preliminary 
 injunction should he grunted.'' 
 
 There is no comnioii law of tiie Llnited States, in the sense of 
 a national eouiUKiii law. di>tiiict troui tlie connnon law of Eng- 
 
 ^J't'untiro'd it A. 11 Co. V. Sttitc, 2 Inters. Coin. Kep. o22, 8 L. K A. 6G1. 25 
 Fla. 310. 
 
 ^Chimyo <t ^'. W. n. do. V. Bey, 2 Inters. Com. Kep. 825, 1 L. K. A. 744, ;55 
 Fed. Hep. y(!6, reviewing 0.sb<)rn v. Bank of llnited States, 22 IT. S. 9 
 Wheat. 859, 6 I., ed. 2;i2: DnvLn v. Gniy, ,s;{ LT. S. IfJ Wail. 2();i 21 L. ed. 
 447: Re Ai/r.rn, 123 U. S. 443, 31 L. ed. 21G; Loumana v. .hmtel, 107 U. 
 S. 711, 27 L. ed. 448; Ant,nUv. Ureenhoio. 107 U. S. 7(;!>, 27 L. ed. 408; 
 * !lit<l,i,„l V. Southern, 117 U. S. 52, 20 L. ed. 805. As to jurisdiction of 
 •Stale conuaissioners, see Sterribiryer v. (JujH' h'euiti- T. V. II. Ci/. Sinters. 
 Com. Uep. 426. 3 L. R. A. 105, -'9 S. C. 510. 
 
 ^Vhiaifiu tfc y. M'. R. Co. v. Ihi/. 2 Inters. Com. Rep. 325, 1 I. It A. 744, 
 35 Fed. Rep. 800.
 
 STAIK COMMISSIONS TO KKULLA.T10 CiIAK( + KS, 487 
 
 laud as adupted by the several states each for itself, applied as its 
 local law, and subject to such alteration as may be provided by its 
 own statutes.' A determination in a given case of what that law 
 is may be different in a court of the United States from that 
 which prevails in affecting the judicial tribunals of a particular 
 state. This arises from the circumstance that tlie courts of the 
 United States, in cases within their jurisdiction, where tliey are 
 -called upon to administer the law of the state in which they sit or 
 by which the transaction is governed, exercise an independent 
 though concurrent jurisdiction, and are required to ascertain and 
 declare the law according to their own ju<lgment. Tliis is illus- 
 trated by the case of New York Cent. R. Co. v. Lock wood, 84 U. 
 S. 17 Wall. 357, 21 L. ed. (527, where the common law prevailing 
 in the state of I^ew York, in reference to the liability of conmion 
 carriers for negligence, received a different interpretation from 
 that jjlaced upon it by the judicial tribunals of the state; but the 
 law as applied was none the less the law of that state. In cases, 
 also, arising under the lex mercatorla., or law nu^rchant, by reason 
 of its international character, that court has lield itself less bound 
 by the decisions of the state courts than in other cases.'' 
 
 There is, however, one clear exception to the statenuiut that 
 there is no national common law. The interpretation of the 
 Constitution of the United States is necessarily intluenced by the 
 .fact that its provisions are framed in the language of the English 
 common law, and are to be read in the light of its history. The 
 code of constitutional and statutory construction which, therefore 
 is gradually formed by the judgments of the United States Su- 
 preme Court, in the application of the Constitution and the laws 
 and treaties made in pursuance thereof, has for its basis so nnicli 
 of the common law as ma}' be implied in the subject, and consti- 
 tutes a common law resting on national authority.^ 
 
 The construction put u])on a state statute by the supreme court 
 of such state must l»e accepted by the Supreme Court of the 
 
 ' Wheaion v. Piitts, 33 L)..S. 8 Pet. o91, 8 L. ed. 1055. 
 
 '■Sicift V. Ti^son, 41 U. S. 16 Pet. 1. 10 L. ed. 8(55; Carpenter v. Providence 
 Was/niiffton Ins. Co. U U.S. 16 Pet. 495, 10 L. ed. 1044; Oafes v. First 
 Nat. Bank of .Wovifi'm'irj/, 100 IT. S. 239, 35 L. ed. 580; Brooklyn G. dk JV. 
 Ji. Co. V. National Jlink of the Uepuldi>\ 102 U. S. 14, 26 L ed. 61. 
 
 ^Moore v. Umt><J States. 9 ('. S. -270. 2:! L. ed. 346.
 
 488 COMMERCE STATE, AND INTKRSTATK. 
 
 United States. A law which, as construed by the supreme court 
 of the state, allows a railroad commission to establish rates for 
 I'ailroads which are final, without issue made, or inquiry had, as to 
 their reasonableness, and forbids the courts to stay the hands of 
 the commission if the rates established by it are unequal and 
 unreasonable, contiiets with the Constitution of the United States. 
 For thus construed, it deprives the conjpany of its rig-ht to a judi- 
 cial investigation by due process of law, and substitutes therefor, 
 as an absolute tinality, the action of a railroad commission 
 which is not clothed with judicial functions and does not pos- 
 sess the machinery of a court of justice. \Vhere no hearing- 
 is provided for, no summons or notice to the company, before 
 the commission has found what it is to tind and declared what it 
 is to declare, and no opportunity provided for the company to 
 introduce witnesses before the commission, there is not the sem- 
 blance of due process of law. The question of tlie reasonableness 
 of a rate of charge for transportation by a railroad company is 
 eminentl}' a question for judicial investigation, requiring due 
 process of law for its determination. * 
 
 This power to regulate is not a power to destroy, and limitation 
 js not the equivalent of confiscation. If the carrier is deprived of 
 the power of charging reasonable rates for the use of its property, 
 and such deprivation takes j)lace in the absence of a judicial inves- 
 tigation, it is deprived of the use of its property, and, in effect, of 
 the property itself, without due process of law and in violation of 
 the Constitution of the United States.' 
 
 Where a state board of railroad commissioners publish, for the 
 length of time required by law, a notice that a schedule of rates 
 will go into effect on a certain day, and the secretary of the com- 
 mission, on receipt of a telegram from certain railroads asking an 
 extension of time, grants the extension and publishes the follow- 
 ng week notice of such change, the commission, on the a])plica- 
 tion of the railroads to restrain the further publication of tthe 
 notice, cannot urge that the publication is complete, and that the 
 extension of time was unauthorized. 
 
 ^Chicago & N. W. R. Co. v. Dey, 2 Inters. Com. Rep. 825, 1 L. R. A. 744. 35 
 
 F«;(l. Rep. 8G6. 
 *Ohicago, M. tfe Ht. P. 11 (Jo. v. Minnetiota, 3 Inters. Com. Rep. 209, 134 U. S. 
 
 418, 33 L. ed. 917.
 
 INTERSTATE COMMERCK COMMISSON. 489 
 
 § 136. Interstate Coimnerce^ Commission. 
 
 Congress, under its sovereign and exclusive power to regulate 
 (•(^)nimerce among the several states, has the power to ereate a com- 
 Tuission for the purpose of sui)ervising, investigating, and report, 
 ing upon matters or coniplaiiits coiinccted with or growing out of 
 interstate commerce.' 
 
 The railroads in the United States transport each year a close 
 approximation to r>(i0,O()0,0()0 persons, and employ in this service, 
 directly and incidentally, not far from one million individuals, or 
 one in twelve of the entire male population of the United States. 
 The vast extent of territory over ^\ hit'h this work is carried on, 
 the difliercut existing conditions, and the various circumstances 
 which affect the carriage render it no easy task to enforce the 
 statute passed by Congress, ha\iiig for its main purpose the equal- 
 ization and uniformity of rates, by al)olishing unjust disci'imina- 
 tions. It cannot be denied that the history of the railn^ad busi- 
 ness in this country has been one of favoi'itism; the strong, by 
 reason of their very strength, being enabled to avoid the payment 
 exacted from the weak, from whom undue tariif was collected to 
 reimburse the loss from those propitiated by the railroad interest. 
 Enormous sums were expended to corrupt legislation, often even 
 to secure just rights; and it was deemed possible and proper to 
 win the favorable consideration of officials, to wliom money could 
 not be offered, by complimentary passes. In the same manner 
 inrtuential members of every local community through which the 
 road might be built, M'ere conn)liinented into quiet acquiescence 
 in the corporate usurpation of the rights of the public or of pri- 
 vate citizens. To reiml>urse tliese illegitimate expenditures, ille- 
 gal charges were made for services rendered to those who could 
 not enforce their rights, and watered stoc^k was issued to represent 
 the outlay for corruption and extravagance. 
 
 The Act to Regulate Commerce doubtless intends that there 
 shall be such reasonable compensation and fair return, whenever 
 in the conditions into which the carrier service has become 
 involved it is practicable. Jt is proper to assume that the same 
 
 ^Kentucky <fe /. Bridge Co. v. LouinriUe d: N. li. Co. 2 Inters. Com. Rep. 351, 
 2 L. R. A. 289, 87 Fed. Rep. 5GT.
 
 490 COMMKRCE, STAT?: AND I.N TKiJSTATK. 
 
 intent exists in the state legislation on tlie subject of internal car- 
 riag-e. State commissions have in many cases reduced rates, and 
 reductions have been ordered in special instances by the Interstate 
 Connnission, because cliarges were found higiier than the traffic 
 would bear, but more frequently to make tliem proportional and 
 relati\ely just. But in the main the rates noAV charged by railroa<l 
 managements are such as have been fixed by the roads themselves 
 under the stress of severe competition. A comparison of the rate 
 sheets, published under the Act, with those in force before the 
 Act passed, shows a tendency to tlie decrease year by year in the 
 tariff. The tendency has been marked towards an equalization of 
 rates and towards the removal of anomalies which made the rates 
 op})rcs>i\-e wherever the competition was but slight or nominal. 
 
 § 137. Interstate Coniniei'ce Act Construed. 
 
 The purpose of the Interstate Commerce Act re(piire8 that 
 when circumstances will fairly admit of it, charges to all points 
 for like service should be made n^latively equal. Discrimination 
 must consist in the doing for or allowing to one party or place 
 wliat is denied to anotlier; it cannot be predicated of action which 
 in itself is impartial.' Less desirable traffic must be accepted 
 upon reasonable terms, as well as that which is more desirable." 
 .'•Goods of like description," and "goods of same description." 
 j-efer not to the contents of the parcels, but to the ])arcels them- 
 selves — that is, like or ditt'ercnt for the purpose of carriage.'' To 
 rendt'r a preference of one over another unlawful, under the Act 
 to Jieii'ulate Commerce, it is not necessary that it should be accom- 
 j)lishe(l by any "device;" and it is equally true that the in- 
 genuity of man cannot invent a '"device" t'oi- the perpetration 
 of an unlawful preference on tlie part of a carrier engiiged in 
 interstate commerce, without incurring the penalties prescribed 
 by the statute.' The offense under the second section of the Act 
 cjmsists in charging, demanding, collecting or receiving by a com- 
 
 ' OrewH V. liichmond tf; D. li. Co. 1 Inters. Com. Ucp. 70i}. 
 -Riddle v. JS'eic Yark, L. K. (fi W. li. Co. 1 Inters. Com. Rep. 787. 
 ■OrealWestern li. Co. v. SuWph, L. R. 4 11. L. 226; JVHshiU etc. Coal Co. v. 
 
 Caledonian 11. Co. 2 Nev. & McN. R. & Canal Cas. 39; Mertn/ v. Glaxgo^a 
 
 11. Co. 4 R.\t Can. Traf. Cas. 383. 
 *Scolif.ld V. Lah- Shore & M. S. /.'. Co. 2 Inters. Com. Rep. HT.
 
 INTEKtJTAl'E (JUMMKKCK AOT CUNSTKL'KD, 491 
 
 mon carrier to which the Act applies, from any person or persons, 
 a greater or less compensation for service rendei'ed or to be ren- 
 dered, in tlie ti-ansportation of persons or property snhject to the 
 x\ct.' So, a discount allowed by a railroad company whci-e con- 
 signments of coal in one year shall amount to 30,000 tons or 
 upwards is an unjust discrimination." A common carrier by rail, 
 to which property is offered for trans])ortation, cannot in any indi- 
 rect manner and by refusal to perform obligations imposed by law 
 upon it, enforce its contracts, but must for that purpose resort to 
 the customary remedies. Xor can a common carrier, as a reason 
 for refusal to afford to another common carrier the customary, 
 reasonable and equal facilities for the interchange of traffic, assign 
 the fact that such other connnon carrier supplies no ])ul)lic neces- 
 sity, the public having been fully acconnnodated without it.' 
 The provisions of section 1, requiring charges to be reasonable 
 and just, and of section 2. forbidding unjust discrimination, apply 
 when exceptional charges are made under section 4, as they do iu 
 other cases.* 
 
 § ISS- Ticket Brokerage. 
 
 Rates obtained from ticket brokers lower than those offered at 
 the regular offices of the company effect unjust discrimination.* 
 
 The subject of brokerage in railroad tickets, or "scalping," as 
 it is usually termed, has to some extent been referred to in annual 
 reports of the Interstate Commerce Connnission, and has also 
 been conmientied on more at large in sj^ecial reports made upon 
 investigations. The report for 1889 recommended specific legis- 
 lation by Congress to restrain as far as possible this illegitimate 
 and reprehensible business, now very generally regarded as one 
 of the worst incidental evils connected with transportation. A 
 bill was introduced in both houses of Congress at an early 
 period in the next session, embodying the essential features recom- 
 mended by the commission. It failed to pass, and in fact is believed 
 
 ^Griffee v. Burlington d: M. R. R. Go. 3 Inters. Cora. Rep. 194. 
 '^Providence Coal Co. v. Pi-ovidence & W. R. Co. 1 luters. Cora. Kep. 368. 
 ^Kentucliy & 1. Bridge Co. v. Loniiiville d- N. R. Co. 2 Inters. Com. Kep. lOo. 
 'Re Southern R. & SS. Asso. 1 Inters. Com. Rep. 378. 
 ^Re Passenger Titriffx and Rate Wars. 2 Inters. Com. Rep. .340.
 
 492 CUMMKKCE, STATE AND I^■TK1{!^TATK. 
 
 not to liave l)ce)i reported by the committees of eitliei* house. 
 It is understood that strenuous opposition was made to the pas- 
 sage of the bill bv the ticket scalpers of the country. It is believed 
 upon trustworthy information in possession of the commission 
 that railroad managers generally are in favor of efficient legisla- 
 tion for the overthrow of this evil, and that a strong public senti- 
 ment exists against its toleration. 
 
 With the great increase of railroads and the (competition exist- 
 ing among them for patronage, ticket brokerage has become a 
 large business and very proiitable to those engaged in it. It is 
 carried on M'ith the greatest amount of bcjldnessand success in the 
 larger cities of the country where the most eager competition 
 exists between railroads. A few illustrations will serve to show 
 the extent to which the business has been carried. 
 
 From vaiious reports received by the commission it appears 
 that in New York City there exists thirteen scalping offices, in 
 which, including proprietors and clerks, about thirty persons are 
 employed, at an estimated expense for office rent and clerk hire of 
 •§20,000 to $25,000 a year, and with an estimated annual profit 
 from the business of $90,0(»0 to ^100,000; that at Chicago there 
 are fifteen scalping offices, whose combined amiual expense for 
 rent and clerk hire amounts to about $7<»,(.K)0; that in Cincinnati 
 there are nine scalping offices, with an annual expense for rent 
 and clerk hii-e of about $20,000, and that at Kansas City there 
 are seven scalping offices, with an estimated annual expense for 
 rent and clerk hire of about $18,000. When it is considered that 
 this business is carried on in neai'ly all the principal cities of the 
 country, and that the net profits probably amount to four times 
 the expenditure for carrying it on, it is evident that the pi-ofits 
 from this illegitimate business exceeds the sum of a million dol- 
 lars aimually. 
 
 The ticket broker has no necessary, useful or legitimate func- 
 tion, lie is a self constituted middleman between the railroad 
 and the passenger. All railroads Jiave accessible and convenient 
 otKccs and agents for the sale of tickets. The public can be fully 
 accommodated l»y the regular ageiu-ies of the roads without the 
 intervention of su])ertluous and obtrusive jniddlemen. 
 
 As there could b(' no field of o|)('i-ation f'oi- this class of persons
 
 TICKET liKUKKKA(.K. 493 
 
 if the railroad cotiipanit's ohfainod fn1l cptahlislicd rates for all 
 transportation furnislu'd by tliciii. the expenses of tlie bii.siueKS 
 and tiie profits made by tliose wlio coiiduct it niiist iiccessarily in 
 the first instance eonie out of the carriers, and rej)rcsent simply 
 the discount suffered by them from their establislied fares and the 
 resulting diminution of revenue. Ihit indirectly this diminution 
 of revenne is made up by the public, for while the business con- 
 tinues the carriers have it in mind in making their rates, and 
 charge higher rates than would be necessary for fairly renmner- 
 ative revenue if there were no such di-ain upon them to support 
 the auxiliary force of scalpers. 
 
 The business is theretoiv hurtful both to the roads and to the 
 public in a financial sense, and the extent of the injury it is 
 scarcely possible to measure. The harm done by an army of un- 
 scrupulous depredators upon a legitimate business cannot l)e com- 
 puted by any known standard. Lawless greed recognizes no 
 limits, and weak compliance bv its victims only stops at exhaus- 
 tion. But the moral injury both to railroad officials and to the 
 public is even greater. To railroad officials the business serves as 
 an invitation and an excuse for dishonest practices. It is used as 
 a cover, deceitful and transparent, it is true, for evasions of law 
 and for dishonorable \iolations of compacts among competing 
 roads to maintain agreed schedules of rates. The public morals 
 are affected by the natural inference that railroad officials are 
 deficient in sense of honor and integrity, and that if the railroad 
 code of ethics permits one road to cheat another it is equally per- 
 jnissible for the public to cheat the railroads. The inevitable ten- 
 dency of the practice, therefore, is to eliminate the moral element 
 and the rule of action that element inculcates — business honor— 
 from the practical field of transportation. 
 
 In whatever aspect ticket scalping may be viewed, it is fraudu- 
 lent alike in its conception and in its operations. The competi- 
 tion of roads affords the opportunity for the work of the scalper. 
 Without rival roads competing for business he could have no 
 field. The prospect of selling more transportation at a discount 
 than at the established rate, and so diverting business dishonestly 
 from a competitor, is the temptation to a road to let a scalper do 
 for it secretly what it does not dare do openly. The weak excuse
 
 494 COMMEKOE, telATK AMJ iMTEKS'l ATE. 
 
 of eYerj road that transgresses in this manner is that some com- 
 petitor does it. Fraud, therefore, is the incentive to the business. 
 And in its conduct every step is one of actual fraud. The scalper's 
 vocation, the necessity for his occupation, is to sell transportation 
 at less than published and established rates; in other words, below 
 lawful charges. Every such sale is a fraud upon the law, a fraud 
 u]>on competing roads, and a fraud upon the stockholders and the 
 creditors of the road for which the sale is made. 
 
 jBut bad as these transactions are. they are not the worst. There 
 are other branches of the business which we are told by railroad 
 officials are practiced, to their actual knowledge, which are even 
 more culpable. These are said to embrace such acts as dealing in 
 tickets and passes that have been stolen, and tickets that have 
 already been used but not defaced or canceled by conductors, as 
 also in tickets fraudulently altered in respect to dates or extent of 
 journey, and spurious tickets to which the use of some artful 
 device gives the appearance of genuineness. In such cases an 
 imposition is practiced either on a railroad or upon a passenger, 
 certainly upon the latter if the fraud be detected. Whether all 
 or only some brokers engaged in these fraudulent practices, or 
 whether the frauds by which stolen, defunct or altered tickets are 
 palmed off on the public and on the railroads as well, are perpe- 
 trated by brokers themselves, or by others acting in collusion with 
 them, are not material. The acts are incidents of the business, and 
 arguments of great potency for legislative action to eradicate the 
 evil. One might suppose that a practice of this character could no 
 more be defended than larceny or forgery, but strange as it may 
 appear it is defended before legislative bodies and elsewhere, and 
 the right to carry it on unmolested is demanded. It is urged by 
 way of defense that through the ticket scalper a portion of the 
 public get lower rates and therefore his operations are in the 
 iiitei-ests of the public. The circumstance that lower rates so 
 ♦obtained are forbidden by the fundamental principle of the law, 
 tliat equality of charges for equality of service shall be made, and 
 that such ]-ates ai'e unjust discrimination, is wholly disregarded by 
 this defense. 
 
 It is alsf» said that railroad tickets are merchandise, and may be 
 l>oiiglif at wholesale at any price for wliich fhey can be pro-
 
 TICKET liliCJKEKAGK. 495 
 
 cured, and may be sold at retail for any ])rice the purchaser will 
 ]>ay. This, again, ignores the plain re(j[uii'eiaents of tlie law, that 
 a railroad as a public agency must establisli and publish its fare& 
 and charges, and sell its transportation only at its established 
 rates, and that it is declared a criminal oll:"en^^e to do otherwise. 
 The merchandise theory is an entire perversion of the nature and 
 <»bjects of railroad tickets. A railroad ticket, instead of being- 
 merchandise, is in law only a receipt or voucher for the payment 
 oi the cost of a journey, and evidence of a contract on the part of 
 the railroad to carry the passenger. It imports that the lawful 
 price of carriage lias been i)aid, and that the holder is entitled to 
 the extent and kind of transportation indicated by the instrument. 
 If it were practicable, fares might be paid on the train, but the 
 use of tickets has been found a great convenience both to railroads 
 and to passengers, especially to railroads in the economy of the 
 time of train agents and as a protection against negligence or dis- 
 lionesty on the part of such agents. If, in spite of the strong 
 reasons from the railroad standpoint for the use of tickets, they 
 are to be used clandestinely by the consent of railroads to violate 
 the law and diminish earnings, it is questionable whether it is im- 
 portant, from the standpoint of the public, whether the scalping 
 is done by professional scalpers or by the direct agents of the 
 road. 
 
 Another defense of the business is put on the benevolent 
 ground that passengers holding tickets for a considerable journey 
 often change their minds, or are obliged by some happening to 
 stop short of their destination, or to return without making the 
 whole journey, and that by the charitable interposition of a brokei- 
 the tickets are taken off their hands at no great loss, whereas 
 otherwise the loss might be considerable. This overlooks the 
 obvious fact that it is quite as convenient for a passenger to have 
 his unused ticket redeemed at the office of a railroad upon which 
 he is traveling as to the office of a broker, and that at a railroad 
 office he can receive the fnW pro rata value of the unused part of 
 his ticket without losing the broker's profit. 
 
 These are, in brief, the grounds iipon which ticket brokerage is 
 publicly defended, and which are ui'ged to prevent legislation for 
 the suppression of an acknowledged abuse of large and growing
 
 496 COMMEKCK, STATE AND IXTKKSTATE. 
 
 dimensions, seriously injurious in its cliai-acter, bad in its influence, 
 and owing its existence to the vices of human nature. 
 
 With the view of procuring a general and authentic expression 
 from railway officials and others upon the subject of ticket broker- 
 ao-e, the Interstate Commerce Commission, earlv in June, 1890, 
 issued a circular calling pointed attention to the practice and re- 
 questing answers to the following questions: 
 
 "First. Whether the existence of this business is not a serious 
 public evil. 
 
 "Second. Whether the profits of the business and the cost ot 
 transacting it do not necessarily either come from the revenues of 
 the railroad companies, or tend to increase the charges which they 
 impose upon passenger trafiic, with a view to a sufficient revenue. 
 "Third. What are the chief causes which afford a field for the 
 business and which are responsible for its existence ? 
 
 "Fourth. If in your opinion the business should be brought to 
 an end what remedy or remedies should you suggest for that pur- 
 pose ?" 
 
 This circular was sent to the railroad commissioners of all the 
 states in which such officers exist, and to sixty-five officials of 
 leading roads, and to some others connected with transportation, 
 many so addressed being men of national reputation and of high 
 character and standing. Eeplies have been received from forty 
 officials of railroads, from ten state commissions and from some 
 other sources. The answers received furnish a body of testimony 
 of the most convincing character. They are unanimous and em- 
 phatic in representing ticket scalping as a serious public evil. 
 They declare it to be an uiimixed evil in all its phases, detrimental 
 alike to tlie public and to the railroads, and they agree that the 
 evil is tM'o-fold — in its effect upon the morals of the people and 
 its effect upon the business interests of the roads. 
 
 The third inquiry in the circular, relating to the chief causes 
 which afford a field for tlie business, and which are responsible 
 for its existence, was fully answered b\' the communications 
 received. Both the public and the railroads, it is said, have a 
 sliare in the responsibility. The too general desire on the part of 
 the public, to get goods or service at less than established prices, 
 and the avidity of nearly every railroad to do a greater amount
 
 TICKET BUOKEKAGE. 4:97 
 
 of passene;er business than any competitor, are said to be anion<^- 
 the primary causes. Other and immediate causes, however, are 
 ■specifically set forth. These are as follows: 
 
 First. The business is largely sustained by the direct encourage- 
 ment and co-operation of railroad companies themselves, in the 
 payment of commissions to scalpers, in placing with them blocks 
 of tickets in times of rate wars, and in frequently turning over to 
 them the return portion of round-trip tickets. The absence of 
 ;good faith between rival companies opens the door for the 
 employment of the broker. At the outbreak of a cut in rates 
 agreements to maintain schedule rates are ignored, the services of 
 the broker are invoked, and he is supplied with tickets at greatly 
 reduced rates, or is j)aid heavy commissions which may be, and 
 .are expected to be, divided with the passenger. 
 
 Second. Excursion, tourist and milage tickets are all factors, 
 .and important ones, in the maintenance of the scalping business. 
 The first two are often purchased by a class of travelers who do 
 not contemplate their use except for one way. After being so 
 used the return portion of the ticket is sold to a broker, who in 
 turn sells to some traveler, and the difference in rate between a 
 round trip ticket and one good in only a single direction is divided 
 between the broker and the passenger, the former getting the 
 .larger share. The milage ticket, w'hich many roads do not attempt 
 to confine to the original purchaser, is also largely utilized by 
 brokei's, and rented out by piece-meal to travelers. 
 
 Third. Dishonest employes of railroads contribute in no small 
 degree to keeping up the business of furnishing the scalpers with 
 ■tickets which have been used but not canceled; and stolen and 
 -counterfeit tickets also furnish their contribution to the stock of 
 the broker. 
 
 Fourth. Tickets given by railroad companies for advertising in 
 newspapers, and to men in business, such as hotel keepers and 
 others, as well as passes, are made merchandise of and converted 
 into money, the broker being the medium through which they 
 get into the possession of persons who have no right to tlieir use 
 and who often find it necessary to make misrepresentations to 
 .avoid the consequences of detection. 
 
 The final inquiry, whether the business should be brought to an 
 32
 
 498 COMMERCE, STATE AND INTEKSTATE. 
 
 end, and the means to be employed for the purpose, receives art 
 emphatic answer. The leading railroad officials of this country 
 are a unit in the recommendation of a national law for the sup- 
 pression of the business, embodying the general features of the 
 Canadian statute. Several of the state legislatures have enacted 
 laws of a similar character, but in the absence of a national statute 
 they cannot be made as eftective as they would be with a national 
 statute on the subject. 
 
 It is stated by a Canadian railroad official that there is not a 
 ticket scalping office in Canada. This tends to show the effective- 
 ness of a general law, and renders it probable that like results 
 might follow from such a law in the United States. The Cana- 
 dian statute, in substance, forbids the sale of tickets by anyone 
 except a railway station agent or the regularly appointed agent of 
 a legitimate transportation company, and fixes full responsibility 
 upon the company whose ticket he sells for his acts, and puts it 
 in the power of any person to make complain l and prosecute for 
 violation of the law. The law also provides that all unused tick- 
 ets or portions of tickets shall be redeemed by the issuing com- 
 pany. This takes away any excuse on the part of the public for 
 dealing with outsiders. 
 
 These features are embodied in the Act now pending before 
 Congress, together with penal provisions for the punishment of 
 offenders. The two safeguards that are deemed essential, and that 
 it is believed will work a substantial cure of the evil, are, first, the 
 limitation of the sale of tickets exclusively to duly authorized 
 agents of the company, who shall publicly display their license or 
 certificate; and, second, the redemption on a fair basis, by the 
 issuing company, of all tickets not used in their entii*ety.' / 
 
 § 139. Rates -must he Reasonable. 
 
 Prior to the enactment of the Act of February 4, 1887, to regulate 
 commerce, commonly known as the Interstate Commerce Act, 24 
 Stat, at L. 379, chap. 104, railway traffic in this country was regu- 
 lated by the principles of the common law applicable to common 
 carj'iers, which demanded little more than that they should carry 
 
 ^lieport of Intemtate Commerce Commission, Nov. 29, ISSO, 3 Inters. Com. 
 Kcp. 337.
 
 BATES MUST BE REASONABLE. 499 
 
 for all persons who applied, in the order in which the goods were 
 received at the particular station, and that their charges for trans- 
 portation should be reasonable. It was even doubted whether they 
 were bound to make the same charge to all persons for the same 
 service ; ' though the weight of authority in this country is in favor 
 of an equality of charge to all persons for similar services. In 
 several of the states acts had been passed with the design of se- 
 curing the public against nnreasonable and unjust discriminations; 
 but, the inefficacy of these laws beyond the lines of the state, the 
 impossibility of securing concerted action between the legislatures 
 toward the regulation of traffic between the several states, and 
 the evils which grew up under a policy of unrestricted competi- 
 tion, suggested the necessity of legislation by Congress under its 
 constitutional power to regulate commerce among the several 
 states. These evils ordinarily took the shape of inequality (Ji 
 charges made, or of facilities furnished, and were dictated by or 
 tolerated for the promotion of the interests of the officers of the 
 corporation or of the corporation itself, or for the benefit of some 
 favored persons at the exjjense of others, or of some particular 
 locality or community, or of some local trade or commercial con- 
 nection, or for the destruction or crippling of some rival or hos- 
 tile line. 
 
 The principal objects of the Interstate Commerce Act were, to 
 secure just and reasonable charges for transportation ; to prohibit 
 unjust discriminations in the rendition of like services under sim- 
 ilar circumstances and conditions; to prevent undue and unrea- 
 sonable preferences to persons, corporations or localities ; to inhibit 
 further compensation for a shorter than for a longer distance over 
 the same line ; and to abolish combinations for the pooling of 
 freights. It was not designed however, to prevent competition be- 
 tween different roads, or to interfere with the customary arrange- 
 ments made by railway companies for reduced fares in considera- 
 tion of increased mileage, where such reduction did not operate ag 
 an unjust discrimination against other persons who travel over the 
 
 ^Fitchburg R. Co. v. Gage, 12 Gray, 393; Baa'endale v. Eastern Counties R. 
 Co. 4 C. B. N. S. 63; Great We.'<tern R. Co. v. Sutton, L. R. 4 H. L. 226, 
 237; Ex parte Benson, 18 S. C. 38; Johnson v. Pensacoln <fc P. R. Co. 16 
 Fla. 623.
 
 500 COM.MKRCE, STATE AND INTERSTATE. 
 
 road. In other words, it was not intended to ignore tlie princi- 
 ple, that one can sell at wholesale cheaper than at retail. It is 
 not all discriminations or preferences which fall within the inhi- 
 bition of the statute ; onl}^ such as are unjust or unreasonable. 
 For instance, it would be obviously unjust to charge A a greater 
 sum than B, for a single trip from Washington to Pittsburg ; but, 
 if A agrees not only to go, but to return by the same route, it is 
 no injustice to B to permit him to do so for a reduced fare, since 
 the services are not alike, nor the circumstances and conditions 
 substantially similar, as required by section 2 to make an unjust 
 discrimination. Indeed, the possibility of such discriminations 
 and reasonable preferences is recognized by these sections, in de- 
 claring what shall be deemed unjust. A charge may be perfectly 
 reasonable under section 1, and yet may create an unjust discrim- 
 ination or an unreasonable preference under sections 2 and 3. Jus- 
 tice Blackburn ' said : "When it is sought to show that the charge 
 is extortionate as being contrarj'- to the statutable obligation to 
 charge equally, it is immaterial whether the charge is reasonable 
 or not ; it is enough to show that the company carried for some 
 other person or class of persons at a lower charge, during the j^eriod 
 throughout which the j)arty complaining was charged more under 
 the like circumstances."" 
 
 The statute as to interstate carriers, which is simply an enact- 
 ment of the common law as to all carriers, requires a reasonable 
 rate. This is one that will make just and fair return to the car. 
 i-ier when it is charged to all who are served without unjust dis- 
 crimination against any, and when the revenue it yields is sub- 
 ject to no improper reductions. If a railroad stood alone, it 
 would be entitled to such a result from its rate. But railroads do 
 not stand singly. What one does or has done for it, may deter- 
 mine what another is to do or receive. That a railroad favorably 
 situated receives this reasonable return from a certain tariff, does 
 not establish that another road, perhaps unnecessarily constructed, 
 at vast expense, can secure returns from such a rate. The latter 
 road must regulate its charges by the rate that is a reasonable one 
 
 ^Oreat Western R. Co. v. Sutton, L. R. 4 H. L. 226, 239. 
 
 ^Interstate Commerce ComminHion v. Baltimore & 0. It Co. 145 U. S. 263, 36 
 L. ed. 61)9, 4 Inters. Com. Rep. 93.
 
 KATES JMUST UK ltEASO^ALiLK. 50l 
 
 to its rival or lose the transportation. In fact the railroad inter- 
 est is not made up of units, in the sense that each unit, constitut- 
 ing one road, can be considered independently of another, and its 
 peculiar situation and circumstances regarded as the only elements 
 to determine the reasonableness of its rates. Eut the entire rail- 
 road interest must be considered in fixing rates and determining 
 their reasonableness. Eates will not under the first section of the 
 Interstate Commerce Act be declared unlawful or unreasonable 
 simply upon the evidence afforded by comparison.* When the 
 reasonableness of rates is in question, the ticket rate on long- 
 through lines does not furnish a just basis for comparison with 
 local rates for relatively shorter distances.' 
 
 The question of the reasonableness of a rate of charge for trans- 
 portation by a railroad company is eminently a question for judi- 
 cial investigation, requiring due process of law for its determina- 
 tion. But the power to regulate a carrier's rates is not a power 
 to destroy, and limitation is not the equivalent of confiscation.'' 
 The railway company may classify freights and passengers and 
 charge different rates for the dift'erent classes, if there are reason- 
 able grounds for such discrimination in the difference of the cost 
 of service, risk of carriage or in the accommodations furnished, oi' 
 the like; but the rates must be the same for all persons and goods 
 oi the same class.* Under the Interstate Commerce Act, the 
 charges made for any service for the transportation of passeno-ers 
 or property or receiving, delivering, loading, or unloading of prop- 
 erty, must be reasonable and no discrimination can be made in 
 rates, charges or facilities.* 
 
 At common law the rule is that carriers shall not exercise any 
 unjust discrimination in rates of toll. They are held to do exact 
 and even handed justice to everybody doing business with them." 
 
 ^Raymond v. Chicago, M. & St. P. R. Go. 1 Inters. Com. Rep. 627. 
 
 ^Crews V. Richmond & D. R. Co. 1 Inters. Com. Rep. 703; La Crosnc Mfg. 
 
 6 J. Union v. Chicago. M. & St. P. R. Co. 2 Inters. Com. Rep. 9. 
 'Chicago, M. & St. P. R. Co. v. Minnewta, 3 Inters. Com. Rep. 209, 134 U. 
 
 S. 418, 33 L. ed. 970, 42 Am. & Eng. R. Cas. 285. 
 *Chicago, B. & Q. R. Co. v. Parks, 18 111. 460; Ilays v. Penmylmnia Co. 12 
 Fed. Rep. 310; Herah v. jVorlJiern Cent. R. Co. 74 Pa. 181; Co?n. v. Power, 
 
 7 Met. 596, 41 Am. Dec. 465. 
 
 ^Gutting V. Florida R. & i\a«. Co. 30 Fed. Rep. 663. 
 
 ^ScojUld V. Lake Shore & M. S. R. Co. 1 West. Rep. 825, 43 Ohio St. 571 ; 
 Indianapolis, D. & S. R. Co. v. Ervin, 6 West. Rep. 103, 118 111. 250.
 
 .>02 COMMKKCE, STATE AKD INTEKSTATE. 
 
 Discriiniiiatioii must consist in allowing one party what is denied 
 another,' The rule controlling passenger transportation exacts 
 absolute equality of rates to all enjoying equal accommodations.* 
 Common carriers cannot make unreasonable discriminations or 
 give undue preferences between persons applying to them for 
 carriage eitlier of passengers or goods, either in granting carriage 
 to some and not to others, or in carrying for some for less rates 
 than for others.* A passenger rate war in which rates are 
 repeatedly reduced by several competing lines to an exceedingly 
 low basis to particular j)laces without any filing of tariffs, is 
 contrary to the requirements of law, as well as against the true 
 interest of each party thereto.* 
 
 Charges for freights and passengers must be uniform.* Trans- 
 portation by a common carrier is open to the public upon equal 
 and reasonable terms. An exclusive right granted to a common 
 carrier only is inconsistent with the rights of all others.' If by 
 reason of bribes or other improper motives, railway employes give 
 preference to one person over another, the company may be held 
 liable for damages thereby sustained.^ 
 
 A charter provision of a railroad, granting the power to take 
 "tolls from all pei'sons, property, merchandise and other commod- 
 ities transported on their road, provided only the net profits 
 of the road shall never exceed 25 per cent per annum," 
 does not relieve the company from the obligation imposed 
 upon a common carrier under the common law, as applied 
 to common carriers by rail. The charter does not give the car- 
 rier an option to discriminate at will, provided only the net profits 
 of the road do not exceed a certain limit.* Discrimination in 
 rates charged passengers who enjoy like accommodations, cannot 
 
 ^ Crews V. Richmond & D. I. R. Co. 1 Inters. Com. Rep. 703. 
 
 ^SmiUi V. Northern Pac. B. Co. 1 Inters. Com. Rep. 611. 
 
 ^Cook V. Chicaqo, E. I. & P. R. Co. (Inwa), 9 L. R. A. 7G4; McDuffeev. Poit- 
 
 laml &R. R. Co. 52 N. II. 4H0; Chicago. B. & Q. R. Co. v. Purlat, 18 III. 
 
 460; Indianapolis. P. <6 C. R. Co. v. R/nard, 46 Ind. 298; Messenger v. 
 
 Pennsyivania R. Co 36 N. J. L. 407: Jlm/s v. Pennnylvania Co. la Fed. 
 
 Rep. 311; Com. v. Power, 7 Met. 596, 41' Am. Dec. 484. 
 *Re PtKsenger Tariffn & Rite Wars, 2 Inters. Com. Rep. 340. 
 "•Chicago, B. cf; Q,. R. Co. v. Parks, 18 III. 460. 
 ^Andenried v. Philadelphia & R. R. Co. 68 Pa. 370. 
 "" Galena & C. U. R. Co. v. Rae, 18 111. 488. 
 ^Samuclx V. Louinville fSk N. R. Co. 31 Fed. Rep. 57.
 
 KATES MUST BE KEASONABLE. 503 
 
 'be sustained upon the theory tliat the present or future business 
 of the carrier will be thereby increased, or the settlement of the 
 country advanced, or that those favored are persons of limited 
 means and are thus enabled to locate permanently in localities 
 where their presence is of special advantage to the business of the 
 carrier.' 
 
 The Interstate Commerce Commission has no power to make 
 rates generally, but only to determine whether rates imposed by 
 railroads are in conflict with the statute." But the commission has 
 power to regulate fares and freights for transportation between 
 diiierent states.' It has no authoritj'' to interfere with the 
 regulations of a state board of commissioners of immigra- 
 tion whose control of immigrant transportation has been sanc- 
 tioned by the Federal government, and having no authority 
 to control commissioners of immigration it cannot do so indirectly 
 by inhibiting railroad companies from carrying out arrangements 
 made by them with the conmiissioners.* 
 
 While the Act authorizes the Commission to permit exceptions 
 it does not authorize it to require exceptions.^ A railroad com- 
 pany may make a special rate for immigrants as a class, and decline 
 to give the same rate to others for whom diiferent accommoda- 
 tions are furnished.^ A carrier may make special rates with 
 individuals, to enable the latter to make proposals to the Interior 
 Department for transportation of Indian supplies, such transport- 
 ation being for the United States.^ Land explorers and settlers 
 are not entitled to lower rates than the general public* Rates 
 may be reduced for religious teachers and as an act of charity." 
 So also for destitute and homeless persons transported free of 
 charge by charitable societies ; indigent persons transported at the 
 
 ^ Smith V. Northern Pac. R. Co. 1 Inters. Com. Rep. 611. 
 
 ^Thatcher v. Fitchburg R Co. 1 Inters. Com. Rep. 356; Re Theatrical Rates, 
 
 1 Inters. Com. Rep. 18. 
 ^Phil-adeJphia d- S. M. 88. Co. v. Pennsylvania, 1 Inters. Com. Rep. 308, 
 
 122 U. S. 32G, 30 L. ed. 1200. 
 ^Savery v. New Fork, G. & H. R. R. Go. 2 Inters. Com. Rep. 210. 
 ^Thatcher v. Fitchburg R. Co. 1 Inters. Com. Rep. 356. 
 '^Savery v. Neio York, C. cfc H. R. R. Co. 2 Inters. Com. Rep. 210. 
 ''Ri Indian Supplies, 1 Inters. Com. Rep. 22. 
 ^Snith V. Northern Pac. R. Co. 1 Inters. Com. Rep. 611. 
 ^Re Religious Teachers, 1 Inters. Com. Rep .21.
 
 504 COMMEKCE, STATE AND INTERSTATE. 
 
 expense of iimiiicipal governments ; inmates of soldier's homes,, 
 etc' A misapprehension under which a party has paid for one 
 jonrney in two sections, whereby the cost of the transportation 
 has been made more than it would have been had a through 
 ticket been purchased, may lawfully be corrected by return of 
 the excess, though the carriers were without fault and only- 
 charged for each portion of the journey the regular rates.'' 
 
 ^Inicrs^iate Commerce Commission v. Baltimore & 0. B. Co. 145 U. S. 263,, 
 
 36 L. ed. 699, 4 Inters. Com. Rep. 92. 
 ^San(]ei v. i:outhern Fac. B. Co. 2 luters. Com. Rep. 548.
 
 CHAPTETl XXiy. 
 
 TICKETS. 
 
 § 140. Free Tichcts. 
 
 § 141. Party Rates. 
 
 § 142. Commutation Rates and Tidcls. 
 
 § 143. Mileage Tickets. 
 
 § 144. Excursion Tickets. 
 
 § 140. Fi^ee Tickets, 
 
 Unreasonable and unlawful preference may be given by a com_ 
 nion carrier by granting free transportation over its lines from one- 
 state into another to one passenger while denying it to others. 
 Such carrier is guilty of misdemeanor under the Interstate Com- 
 merce Act, and for such an offense an indictment will lie against 
 any officer, director, agent or employe who aids and abets in such 
 violation of the law, as well as against the carrier, such officers- 
 and employes having knowledge that they were engaged in an 
 illegal act. This does not apply to transportation of officers and 
 employes of the carrier.' 
 
 Section 2 of the Act prohibits giving of passes to particular 
 persons; and the exception allowed in section 22 in favor of offi- 
 cers and employes of road does not include the families of such 
 persons.' Where passes issued to a company's ex-employe, good 
 for twenty days, were not used, and no one was ever transported 
 upon them, a charge of unjust discrimination cannot be sustained." 
 
 Free transportation by an interstate carrier, issued in the form- 
 of an annual pass to a person not in the regular and stated service 
 of the carrier nor receiving any wages or salary under a contract 
 of employment, but requested by him as compensation for throw- 
 ing in its way what business he conveniently could, — is illegal." 
 The action of a railroad company in granting to members of 
 
 • Untied States v. Cleveland, 0. & S. R. Co. 3 Inters. Com. Rep. 290. 
 ^Ex parte Koehler, 1 Inters, Com. Rep. 317, 31 Fed. Rep. 315. 
 ^Oriffee v. Burliiujiun & M. R. R. Co. 2 Inters. Com. Rep. 194. 
 *Slater v. NortJiern Pac. R. Co. 2 Inters. Com. Rep. 243. 
 
 505
 
 500 TICKETS. 
 
 the city council of Xew Orleans and the clerk of tliat hody, o i 
 accouut of tlieir official positions, free transportation as i^assengers 
 over all or some portion of its interstate lines, violates the Ajt to 
 Regulate Commerce, and is unlawful.* A carrier is bound to 
 charge equally to all persons regardless of their relative individual 
 standing in 4:he community. The words "under substantially sim- 
 ilar cii'cumstances and conditions" relate to the nature and char- 
 acter of tlie service rendered by the carrier, and not to the official, 
 social or business position of the passenger. Section 22 of the 
 Act is exceptive in character and only applies to the persons and 
 subjects expressly specified therein. A carrier issued passes 
 entitling the holders to free transportation over the lines of its 
 system, extending into the states of Maine, New Hampshire, Yer- 
 mont and Massachusetts; there were several classes of the persons 
 who received the passes, among them, gentlemen long eminent in 
 the public service, higher officers of the states, prominent officials 
 of the United States, members of the legislative railroad commit- 
 tees of the above named states, and persons whose good will was 
 claimed to be important to the defendant; but it was adjudged 
 that the giving of free transportation to such persons was a vio- 
 latiou of the Act to Reorulate Commerce.* 
 
 § IJfl. Party Rates. 
 
 The English decisions are numerous.' As our Act to Regulate 
 Commerce has adopted substantially sections 2 and 90 of the 
 English Railway Traffic acts of 1845 and 1854, the settled con- 
 struction which the English courts had given to their terms and 
 provisions must be received and incorporated into our statutes.* 
 The English cases referred to, and also others that might be cited, 
 
 ^Harvey v. Louisville & N. B. Co. 3 Inters. Com. Rep. 793. 
 
 *7?(? Boston cfc Maine R. R. Co. 3 Inters. Com. Rep. 717. 
 
 'Blackburn, J., in Great Western R. Co. v. Sutton, L. U. 4 H. L. 288: Hozier 
 
 V. Caledonian R. Co. 1 Nev. & M. H. Cas. 30; Jones v. Ea4ern Co. R. Co. 
 
 1 Nev. & M. R. Cas. 45, 3 C. B. N. S. 718; Fainter v. London B. & S. C. 
 
 R. Co. 2 C. B. N. S. 702; Palmer v. London tfc S. W. R. Co. L. R. 1 C. P. 
 
 588; Ransome v. Eastern Counties R Co. 1 C. B. N. S. 437; Oxiade v. 
 
 North Eastern R. Co. 1 C. B. N. S. 454; Nicholson v. Oreat Western R. Co. 
 
 5 C. B. N. 8. 3G6; liilMyke Coal Co. v. North BiitishR. Co. 2 Nev.& M. 
 
 R. Cas. 105-110; Baxendule v. Great Western R. Co. 5 C. B. N. S. 336. 
 *McD>jnald v. IIovci/, 110 U. S. 619, 28 L. ed. 2G9.
 
 I'AKTY KATES. 507 
 
 I'stablish the rule that in passing upon tlie question of undue 
 preference or disadvantage it is not only legitimate but proper to 
 take into consideration, besides the mere difference in charges, 
 \arious elements, such as the convenience of the public, the fair 
 interests of the carrier, the relative quantities or volume of the 
 traffic involved, the relative cost of the services and profit to the 
 company, and the situation and circumstances of the respective cus- 
 tomers with reference to each other as competitive or otherwise. 
 And the case of Denahy Main Colliery Co. v. Manchester^ S. 
 (& L. R. Co., L. E. 11 App. Cas. 97, established that the burden of 
 proving the undue preference or the undue prejudice rests upon 
 the complaining party. In this case the Earl of Selborne, after 
 referring to the objection that it was not shown by the car- 
 rier that the reduced rates corresponded with the reduced cost to 
 the company, said: "I do not find in the Act that when there is 
 ;i real difference of circumstances, and nothing to show any want 
 i»f good faith, the l)urden of justifying the exact difference of 
 charge (or what is the same thing, the deducticn or allowance) by 
 showing a numerical or necessary relation between it and the 
 actual saving in cost, rests upon the company." Section 27 of the 
 Act of August 10th, 188S,' for the better regulation of railway 
 and canal traffic, changed this rule by providing that where ine- 
 (jualities in rates exist, "the burden of proving that such lower 
 charge or difference in treatment does not amount to an undue 
 ]>reference shall lie on the railway company." As no such pro- 
 vision is found in our Act, the burden of showing that the differ 
 ence in a railroad's party and single passenger rates constitutes 
 imdue preference in favor of the former, or undue prejudice or 
 disadvantage against the latter, devolves upon the complainant, 
 and must be established as the reasonable and legitimate result of 
 the various elements or considerations above mentioned. Where 
 there is no positive proof or suggestion that there is any want of 
 good faith in defendant's action, or that the difference in rates 
 complained of was made or is continued with a view to any 
 actual disadvantage of the single passengers or to subject the 
 public to any inconvenience or injury, it is not to be infeiTed. 
 The inquiry ^vill be whether subjecting a raih-oad's rates for 
 
 '61 & 52 Vict. chap. 25.
 
 508 TICKETS. 
 
 single passengers and for parties of ten or more traveling together 
 on the single ticket to the test of the various considerations, indi- 
 cated above by the English decisions as elements in the question, 
 does it clearly appear that such rates are so adjusted as to give an 
 undue or unreasonable prejudice or disadvantage upon the other 
 class? Where it is not claimed or not shown that the single 
 passenger rates are unjust or unreasonable; that the party rates 
 are just and reasonable; that there is no competition or competi- 
 tive relation between the two classes; that the party rates, open ta 
 all who choose to avail themselves of the same, are a convenience 
 and benefit to a considerable portion of the traveling public; that 
 the interests of the carrier are reasonably promoted by their use; 
 that the cost of service is relatively or proportionally less for the 
 party of ten or more than for the single passenger, and that the 
 difference in charges does not appear to be improperly adjusted 
 with reference to or unjustified by the actual saving or profit ta 
 the company, — it cannot properly be said that the traflic is of like 
 kind and that the service is identical or under "substantially the 
 same circumstances and conditions.'" The decisions of the state 
 courts on the subject of unjust discriminations, and the consider- 
 ations that may properly be referred to in passing upon the ques- 
 tion, are in harmony with these views.' 
 
 § 142. Comwiutobtion Rates and Tickets. 
 Where a railroad company has established couinmtation rates 
 for a particular locality, and sold commutation tickets thereat to 
 the public, the refusal of such a ticket to a particular individual,, 
 under the same circumstances and upon the same conditions as 
 such tickets are sold to the rest of the public, is an unjust dis- 
 crimination against him, and a violation of the principles of 
 equality which the company is bound to observe in the conduct 
 of its business.' 
 
 ^Iiiterxtate Commerce Commission v. Baltimore & 0. R. Co. 145 U. S. 263, 3(> 
 L. ed. 699, 4 Inters. Com. Kep. 92. 
 
 *See Rifjnii v. Aiken, 9 Lea, 609; tycofleld v. Lake Shore & M. S. R. Oo. 43 
 Ohio'st. 571; Johnson v. Ptnsacola & P. R. Co. 16 Fla. 623; McDuffeex. 
 Portland & R. R. Co. 52 N. II. 430; Ktllmer v. New York Vent, d; //. R. 
 R. Co. 100 N. Y. 395; Shipper v. Peanxylmnia R. Co. 47 Pa,. 338; Chris- 
 tie V. Missouri Pac. R. Co. 94 Mo. 453; Bayles v. Kansas Pae R. Co. 5 
 L. II. A. 4«0, 2 Inters. Com. Rep. 643, 13 Colo. 181; Root v. Long Island 
 R. Co. 4 L. K. A. 331, 114 N. Y. 300. 
 
 'State V. Delaware, L. & W. R Co. 2 Cent. Rep. 726, 48 N. J. L. 55.
 
 COMMUTATION KATES AND TICKETS. 509 
 
 To the claim tliat the carrier may run the risk of overcrowding 
 its cars, by the nnliniitecl sale of commutation tickets, it may be 
 answered that it may doubtless make a reasonable limitation in 
 the time within which it may be used, and exclude the holder, 
 even if the number of miles stipulated for within the time limit, 
 have not been traveled.' So even negli.i^ently permitting another 
 to use such a ticket, where it is non-assignable will forfeit it." But 
 not so if no limit is stated to the person.' 
 
 But it is not unlawful discrimination to refuse to refund money 
 paid by a person who had forgotten his commutation ticket, after 
 the carrier had discontinued a former practice of refunding in 
 such cases, and had given proper notice to that effect, although 
 the passenger supposed the custom was in vogue when he pur- 
 chased his ticket. One who purchased a quarterly commutation 
 ticket thii'teen days after the quarter began is not entitled to 
 recover any portion of the purchase price on account of the fact 
 that a portion of the term had expired." One who holds such 
 ticket may be required to exhibit it and may be removed on 
 refusal to show it, or to pay the fare, although the conductor has 
 knowledge that he has been accustomed to travel upon it, and is 
 informed that it has been accidently forgotten.' But he can sub- 
 sequently require the sale to him of another ticket.' And the 
 right to examine is true as to commutation tickets.' But a rea- 
 sonable time must be given the commutor to search for his 
 ticket, and the removal should be at a regular station.* 
 
 ^Barker v. CoHin, 31 Barb. 556; Wentz v. Erie B. Go. 3 Hun. 241; Hill v. 
 Swnmse, B. & N. Y. R. Co. 63 N. Y. 101; Li'lis v. St. Lords, K. G. <& 
 iV: E. Co. 64 Mo. 464; State v. Campbell. 32 N. J. L. 309; Rawitzky v. 
 Louisville (fe N. E. Go. 40 La. Ann. 47; Powell v. Pittsburgh, C. (& St. L. 
 B. Co. 25 Ohio St. 70; HaM v. Memplm & G. E. Co. 9 Fed. Hep. 585; 
 Sherman v. Chicago & N. W. R. Co. 40 Iowa, 45. 
 
 ^Fieidenrich v. Baltimore & 0. R. Co. 53 Md. 201. 
 
 ^Hudson V. Kansas Pac. R. Co. 3 McCrary, 249. 
 
 *Sidman v. Richmond & D. B. Go. 2 Inters. Com. Rep. 766. 
 
 ^Cresson v. Philadelphia <& R. R. Go. 11 Pbila. 597; Cooper v. London, B. & 
 S. G. R. Go. L. R. 4 Exch. Div. 88. 
 
 *Aticat.er v. Delaware, L. & W. R. Go. 48 N. J. L. 55. 
 
 '^Ripley V. New Jersey R. & Tramp. Co. 31 N. J. L. 388; Dozens v. JVew York 
 <& W. H. R. Co. 36 Conn. 287; dlajjles v. Mic York & N. U. R. Co. 38 
 Conn. 557. 
 
 * Maples V. New York & N. H. R. Co. 38 Conn. 557.
 
 510 
 
 TICKETS. 
 
 § 143. Milea46 Ticket. 
 
 If a railroad offers mileage tickets for sale, they must be equally 
 available to all the public who apply for them. They cannot be 
 sold to a particular class at lower rates than are charejed to others. 
 A sale of raileao^e tickets to commercial travelers at a rate lower 
 than to other passengers is an unjust discrimination. A release 
 of liability by commercial travelers is not a good consideration for 
 such discrimination. It has been held that twenty-five dollars per 
 1,000 miles is not unreasonable rate for mileage ticket. And the 
 rate at which excursion or commutation tickets are sold does not 
 entitle mileage ticket purchaser to complain of unjust discrimina- 
 tion if charged a higher rate.* 
 
 § 144' Excursion Tickets. 
 
 Excursion, mileage, or commutation passenger tickets must be 
 offered impartially to all who accept the conditions on which they 
 are issued, and the rates at which they are sold must be j)ublished. 
 The general requirements of the Act to Regulate Commerce as 
 amended are as applicable to these classes of tickets as to any 
 others. Passenger excursion rates are required to be published 
 according to the provisions of the Act to Regulate Commerce, 
 §6." 
 
 An excursion ticket marked " good going on any train " on a 
 certain day, has reference only to trains used to carry passengers, 
 and gives no right to ride upon a through freight train on which 
 by rule of the company passengers are not allowed to ride with- 
 (jut a special permit.' 
 
 Where the plaintiff purchased an excursion ticket with the 
 in-intcd condition, " Good this day only on all trains, except the 
 Boston express trains," and was expelled from the Boston express 
 train for nonpayment of fare, if was held that he had no cause of 
 
 ^Associated Wholesale Orocers v. Mmouri Pac. R. Go. 1 laters. Com. Rep. 
 
 321, SO.*]; and see Larruon v. Chicago & Q. T. R. Co. 1 Inters. Com. 
 
 Ilep. 'Am. 
 ^ PilMmryh, 0. & St. L. R. Co. v. Bnltimm-e & 0. R. Co. 1 Inters. Com. 
 
 Ikp. 729. 
 
 'nvmas T. Chicago dc O. T. R. Co. 72 IMicli. JiHS.
 
 EXCLUSION TICKETS. 511 
 
 action.' But a rule of a railway company, restricting to special 
 trains the holders of a class of tickets which nevertheless purport 
 to entitle them to passage on any regular train, mnst be brouglit 
 to the notice of the holder.'"' The words "good on passenger 
 trains onl}^," contained on a ticket, do not auionnt to a contract that 
 all of its passenger trains will stop at the stations designated on 
 the ticket.' A railroad company whose regular ticket agent sells 
 a special or limited return ticket, good, only on a special excursion 
 train in charge of one by whom it is chartered, is bound by the 
 contract to transport the purchaser over the round trip, although 
 the ticket was signed by the charterer, of whose contract with the 
 company the purchaser has no knowledge.* A round trip excur- 
 sion ticket used by the purchaser in going to the station named 
 therein, and then sold and transferred, no restrictions appearing,, 
 is valid in the hands of the holder, and entitles him to a return 
 passage, subject to the prescribed limitations as to time, etc. 
 
 Where a conductor of a train refuses to recognize an excursion 
 ticket in the hands of the holder, who is thereby entitled to ride 
 thereon, and demands of him the regular fare, and attempts to 
 eject him by force for nonpayment tliereof, the railway company 
 is liable in damages for the assault, and the jury in assessing the 
 damages may consider in connection therewith the annoyance, 
 vexation, and indignity suffered by him.' If an excursion pas- 
 senger desires to return on regular train and provides himself with 
 a proper ticket his exclusion will subject the carrier to damages.* 
 
 A condition on a return excursion ticket sold at a reduced rate, 
 that it shall not be good for the return trip unless stamped by the 
 ticket agent at the other end of the route, and again signed by 
 the purchaser as the original purchaser, is both reasonable and 
 material; and a purchaser failing to comply therewith cannot 
 recover against the company on account of being ejected by the 
 
 Wolan V. New York, N. H. tfc H. R. Co. 9 Jones & S. 511 ; Terry v. Flush- 
 ing, N. S. & C. B. Co. 13 iJun, 359. 
 
 ^Maroi.cy v. Old Colony & N. B. Co. 106 Mass. 153. 
 
 ^Ohio & M. B. Co. V. Swarthout, 67 Ind. 567. 
 
 *Eddy V. Harris, 78 Tex. 661; Eddy v. Searcy (Tex.) Nov. 25, 1890. 
 
 ^Carsten v. Northern Pac. B. Co. 9 L. R. A. 688, 44 Minn. 454; SGeHoffnum 
 V. Northern Pac. B. Co. 45 Minn. 53. 
 
 ^Brasxfield v. Hannibal & St. J. B. Co. 19 Mo. App. 651. See St. Louis, A. 
 & T. B. Co. Y.^Mackie, 1 L. R. A. 667, 71 Tex. 491.
 
 ^)12 TicKprrs. 
 
 -conductor, althougli he could, and offered to, otherwise identify 
 himself as the original purchaser, or the conductor had certain 
 knowledcre of that fact.* 
 
 Where, by tlie express conditions of the plaintiff's contract, he 
 had no right to a return passage under his ticket, unless it bore 
 the signature and stamp of the company's agent at the end of the 
 route, no agent or employe of the company was authorized to 
 alter or waive any condition of the contract, and therefore the 
 action of the baggagemaster in punching the ticket and checking 
 plaintiff's baggage, and that of the gateman in admitting him to 
 the return train, could not bind the company to carry him, or 
 estop it to deny his right to be carried." 
 
 A stipulation in a railroad ticket at reduced rates, that it shall 
 not be good for a return trip unless it is stamped by the agent at 
 the terminus after the holder identities himself to the satisfac- 
 tion of such agent, is not unreasonable or contrary to the policy 
 of the law. The agent's refusal to stamp the ticket, on the 
 ground that he is not satisfied of the identity of its holder, is 
 conclusive. A cause of action for failure to carry a passenger on 
 his ticket does not arise if he does not offer to surrender his 
 ticket, but voluntarily pays his fare.' A railway company which 
 issues a return ticket which is required to be countersigned and 
 stamped at the other end of the route is liable in damages where, 
 owing to its agent's wrongful refusal to countersign and stamp 
 the ticket, the conductor refuses to accept it, and is harsh and 
 abusive towards the passenger, threatening to eject her unless she 
 pays or gives security." Where a passenger accepts an excursion 
 ticket containing a condition that it cannot be used on a return 
 passage unless the manner of identification specified therein has 
 been complied with, and has opportunity to know its conditions, 
 -and uses it, and the carrier has resorted to no unfair means of 
 deception, the passenger's assent to the condition will be conclu- 
 sively presumed, it not being indispensable to bind him that it 
 .should be signed by him." Where the conductor, when the ticket 
 
 ^Edwards v. Lake Shore & M. S. R. Co. 81 Miss. 364. 
 
 ^Boylan v. Hot Sprinffs R. Oo. 132 U. S. 146, 33 L. ed. 290. 
 
 'Ikthea V. Northeastern R. Co. 26 S. C. 91; Abram v. Gtilf, C. & S. F. B. 
 
 Co. (Tex.) 11 Ry. & Corp. L. J. 158. 
 *Al.ram v. Oiiff, C. & S. F. R. Co. (Tex.) 11 Ry. & Corp. L. J. 158. 
 *MiHHonri Pac. U. Co. v. Martino (Tex.) 11 Ry. & Corp. L. J. 270.
 
 EXCUIiSION TICKETS. 513 
 
 was presented, saw no stamp upon it, and the plaintiff had not been 
 identified, the rules of the company, bindin<; u])on him as a con- 
 'ductor, required him to remove the party unless he paid his fare.' 
 But a contract requiring a passenger to identify himself and have 
 the ticket stamped by an agent at a particular place may be waived 
 by parol.' The failure to provide for the return of an excursion 
 party according to contract will of course render the carrier liable, 
 and if the action be in case and the breach be willful exemplary 
 damages may be recovered, but if the action be on the contract only 
 ^actual damages are recoverable.' 
 
 ^Mosher v. Si. Louis, 1. M. &S.R. Co. 23 Fed. Rep. 326. 
 ^Taylor v. Seaboard & R. R. Co. 99 N. C. 185, 6 Am. Rep. 509. 
 ^ WaUth V. Chicago & O. R. Co. 42 Wis. 23. See Missisnippi Cent. B. Co. v. 
 Kennedy, 41 Miss. 671. 
 
 33
 
 CHAPTER XXV. 
 
 CONDITIONAL TICKETS. 
 
 § 145. CovdUinn and Limitation on Ticket. 
 
 § 146. Limit of Time in Ticket. 
 
 § 147. Bound Trip Ticket. 
 
 § 148. Tlirough Tickets over Connecting Roads. 
 
 § 14s. Condition and Limitation on Tichet. 
 
 A regulation of a railway company by wliicli one who has paid 
 his fare between two points on the road, who desires to stop over- 
 at an intermediate point, is required to procure a stop-over ticket 
 from the conductor and present it to the conductor of the train on 
 which he seeks to complete his journey, as evidence of his right 
 to do so without further payment, is a reasonable regulation.' 
 The plaintiff purchased a ticket for a passage from Dunham to 
 Boston. It was a rule of the defendant that a passenger should 
 go through in the same train of cars. The plaintiff, after taking 
 his seat, was so informed, and remonstrated. He stopped at an 
 intermediate place, and went aboard of the next train and was 
 required to pay fare again. The action was for money had and 
 received and for breach of contract. The court held that the 
 plaintiff could not recover." 
 
 AVhei-e a passenger purchases a ticket for one continuous trip, 
 the contract is indivisible; and it is his duty to ascertain the train 
 upon wliich he could take passage according to its tenns; but if 
 lie takes the wrong train and the conductor suffers him to proceed 
 thereon, get off at an intermediate station and wait for his proper 
 train, his expulsion from the latter train is wrongful.' 
 
 Whether conditions on the back of a ticket, or on the face in 
 small type, will conclude the passenger upon his mere acceptance 
 of the ticket, has been a matter of some question. But the pre- 
 
 ^Gorton v. Milwaukee, L. 8. & W. R. Co. 54 Wis. 239. 
 ■* Cheney v. BoHton & M. R. Co. 11 Met. 121. 
 
 ^Kelka V. CUcAujo & A. R. Co. 4 West. llep. 828, 22 Mo. App. 858. 
 
 514
 
 CONDITION AND LIMITATION ON TICKET. 515 
 
 sumption is against such effect.' Where such conditions are 
 printed distinctly upon tlie face of the ticket or there referred to 
 as part of the proposed contract, the law is even less clearly set- 
 tled. One might be required to take notice of the usual reasonal)le 
 regulations of the coinpan}' so printed," and it has been held 
 that a notice printed on the general ticket and the coupon, tliat a 
 coupon if detached from the book, is destroyed, will bind the 
 traveler." But a notice of a limitation in time within which ticket 
 is to be used, has been held to be insulHcient unless stated at the 
 time of the purchase of the ticket.* 
 
 Where one purchases a ticket of a railroad company- s agent at 
 its office, he has a right to rely upon tlie agent to give him a ticket 
 expressive of the contract to be carried within the tinie contracted 
 for/ and for the class for which he pays." But unreasonable re- 
 tention of a wrong ticket may amount to a waiver of the wrong.' 
 But the decided weight of authority is that there must be some 
 proof of consent by the passenger to the conditions inserted on 
 what is intended, not as a contract, but as a simple admission by 
 the carrier that the passage has been paid,* 
 
 A ticket for the transportation of a passenger is not a contract 
 of itself. It is simply evidence of a contract, and it has been held 
 
 ^Brown v. Eastern R. Co. 11 Cush. 97; Blossom v. JDodd, 43 N. Y. 264; Lim- 
 burger v. Westcott, 49 Barb. 383; Bvittan v. Barnnbi/, 62 U. S. 21 How. 
 527, 16 L. ed. 177; Camden d; A. R Co. v. Baldauf, 16 Pa. 67; McMillnn 
 V. Michigan 8. & N. 1. R. Co. 16 Mich. 79; Malone v. Boston & W. R. 
 Corp. 12 Gray, 388. 
 
 *Kelsey v. Michigan Cent. R. Co. 28 Hun, 460. But see Macklin v. Mew Jer- 
 sey 8. B. Co. 7 Abb. Pr. N. S. 229. 
 
 ^Boston & M. R. Co. v. Chipman, 146 Mass. 107. 
 
 *Pennsylvania R Go. v. 8picker, 105 Pa. 142. 
 
 'McGinnis v. Missouri Pac. R. Co. 4 West. Rep. 797, 21 Mo. App. 399. 
 
 C5«. Louis, A. & T. R. Co. v. Mackie, 1 L. R. A. 667, 71 Tex. 491. 
 
 ■^Godfrey v. Ohio <& M. R. Co. 116 Ind. 30. 
 
 ^BaUlimre & 0. R. Co. v. Harris, 79 U. S. 12 Wall. 65, 20 L. ed. 35i;Hen- 
 der^on v. Stevenson, 2 H. L. Sc. App. Cas. 470; Qaimby v. Vanderbilt, 17 
 N. Y. 306; Rnoxonv. Pennsylvania R. Co. 48 N. Y. 212; VanBuskirk v. 
 Roberts, 31 N. Y. 661; Pennington v. Philadelphia, W. & B. R. Co. 62 
 Md. 95; Nevinsy. Bay 8tate 8. B. Co. 4 Bosw. 225; Moloney. Boston iSk 
 W. R Corp. 12 Gray, 388; Brown v. Eastern R. Co. 11 Cush. 97; Mobile 
 & 0. R. Co. V. Weiner, 49 Miss. 725; Wilson v. Chesapeake & 0. R. Co. 21 
 Grntt. 654; Burnham v. Grand Trunk R. Co 63 Me. 298; Adam'i Exp. Go. 
 V. 8tettaners. 61 111. 184; BoscowUz v. Adatns E.vp. Co. 93 111. 523; Balti- 
 more & 0. R. Co. V. Brady. 32 Md. 333; Derwort v. Loomer, 21 Conn. 245; 
 Biumentlud v. Brainard, 38 Yt. 4)2; McMillan v. Michigan 8. & N. 1. R. 
 Co. 16 Mich. 79; Elmore v. 8ands, 54 N. Y. 512.
 
 51G CONDITIONAL TICKETS. 
 
 that before a passenger can be bound by a declaration on the ticket 
 for transportation on a passenger train, the restrictions or limita- 
 tions sought to be made must be known to him, and he must have 
 accepted the ticket with full knowledge of the restrictions of the 
 company thereon.' The purchaser of a railroad ticket does not, by 
 mere acceptance, acquiesce in and bind himself to all of the terms 
 and conditions printed thereon in the absence of actual knowledge 
 uf them.^ 
 
 The burden of proof of knowledge by a passenger, of a mem- 
 orandum on his ticket limiting the liability of the railroad com- 
 pany and of his assent to it rests upon the company. If the 
 earlier desires to avail itself of the haste in which tickets are usu- 
 ally sold, to conclude a special contract with the passenger, it 
 should offer some evidence that the latter was advised of the wish 
 of the carrier and intentionally accepted the proposed contract, 
 imderstanding its terms."* Of course custom, well established and 
 known to the passenger, would be an element to be considered, 
 as any other sj)ecial matter of evidence. Thus as an ocean pas- 
 sage usually involves more care and consideration in perfecting its 
 details, than a short railroad trip, one who contemplates the 
 former may be chargeable with more accurate knowledge of the 
 conditions usual or likely to be imposed than in the latter case/ 
 But the simple acceptance of what is usually treated as a receipt 
 for money paid for the right of passage, under the common law 
 conditions, should not be sufficient proof of a contract imposing 
 any special limitation on the usual obligation of the carrier." 
 
 ^Kansas City, St. J. & G. B. R. Co. v. Rodebauqh, 38 Kan. 45. See Malone 
 V. Boaton & W. R. Corp. 13 Gray, 388; United States Exp. Co. v. Bach- 
 man, 2 Cin. Sup. Ct. Rep. 251; Blumenihal v. Brainurd, 38 Yt. 402; 
 Farmers & M. Bank v. Ghamplain Transp. Co. 23 Vt. 186; Anchor Line 
 V. Dater, 68 111. 369; Adams Exp. Oo. v. Haynes, 42 111. 89; New Jersey 
 Steam Nav. Co. v. Merchants Bank of Boston, 47 U. S. 6 How. 344. 12 L. 
 ed. 465; Davidson v. G~raham, 2 Ohio St. 135; Jones v. Voorliees, 10 
 Ohio, 145. 
 
 *Kent V. Baltimore <fe 0. R. Oo. 10 West. Rep. 459, 45 Ohio St. 284; Balti- 
 more & 0. R. Co. V. Campbell, 36 Ohio St. 648; Quimby v. Vanderbilt, 17 
 N. Y. -.'M; HoUister v. Niywlen, 19 Wend. 234; Madan v. Sherard, 73 N. 
 Y. 329. King v. Woodt)ridfie, 34 Vt. 565; Erie & W. Transp. Co. y.Dater, 
 91 111. 195; Cole v. Goodwin, 19 Wend. 251. 
 
 'Indianapolis tfe St. L. R. Co. v. Borst, 93 U. S. 291, 23 L. ed. 898. 
 
 ^i^eers v. Liverpool, N T. & P. SS. Co. 57 N. T. 1; Fonaeea v. Canard 88. 
 Co. 12 L. R. A. 340, 153 Mass. 553. 
 
 ^Edler v. Equitable F. Ins. Co. 28 Ind. 170; Baltimore & 0. R. Co. v. Bar 
 ris, 79 U. 8. 12 Wall. 65, 20 L. ed. 354; Wilson v. Chesapeake & 0. R. Co. 
 21Gratt. 654; FVankv.Tnr/alls, 41 Ohio St.560; P/^- v.^Ync/t,24Barb. 514.
 
 CONDITION AND LIMITATION ON TICKET. 517 
 
 Any attempt at fraud or to conceal or render obscure conditions 
 incorporated in a ticket, or the fact that they are uncertain will 
 require proof of more than mere acceptance of the ticket.' 
 
 Where the signature of the passenger is required to the condi- 
 tions inserted in the contract stated in the ticket, such signature 
 may well be held to be evidence of such assent." Where the 
 contract to carry a passenger by a railroad company is an 
 express one, signed by him and the company's agent, and 
 is contained in a ticket for a passage to tlie place of des- 
 tination and back, having assented to the contract by accept- 
 ing and signing it, heis bound by the conditions expressed in it, 
 whether he did or did not read them or know what they were." 
 A passenger who signs a special contract on the back of his 
 ticket is bound by it though it is written in small type and the 
 purchase is necessarily somewhat hurried.* And this is more 
 conclusive in case of a free pass, and indeed, the use of the latter 
 has been held sufficient evidence of assent.^ Unquestionably the 
 ticket may be used as evidence with other facts, to prove the 
 actual making of a contract.' Indeed, the circumstances under 
 which a ticket is purchased a'hd the irregularity attending it, may 
 create a presumption that the traveler informed himself of tlie 
 special conditions attending the unusual issue. Thus a ticket 
 issued for a known reduced rate, may require the purchaser to 
 inquii'e as to the special limitations and restrictions, which cause 
 
 ^Brown v. Eastern E. Go. 11 Gush. 97: Blosmn v. Dodd, 43 N. Y. 264; Mc 
 Miilan v. Michigan 8. & N. I. B. Co. 16 Mich. 79; Vemer v. Suoeitzer, 
 32 Pa. 208; Blumenthal v. Brainard, 38 Vt. 402; Perry v. Tliompson, 98 
 Mass. 249; Simomv. Great Wentern R. Go. 2 C. B. N. S. 630; Strolm v. 
 Detroit & M. B. Go. 21 Wis. 554; BeUjer v. Diusmore, 51 N. Y. 166; The 
 Wisconsin v. Toung, 3 G. Greene, 268; Adams Exp. Go. v. Guthrie, 9 
 Bush, 78. 
 
 *Bovlan v. Hot Springs B. Go. 133 U. S. 146, 33 L. ed. 290. 40 Am. & 
 Eng. R. Gas. 666; Beihea v. Northeastern R. Go. 26 S. G. 91; Blame n - 
 thai V. Brainard, 38 Vt. 402. 
 
 'Boylan v. Hot Spnngs R. Co. 132 U. S. 146, 33 L. ed. 290, 40 Am. & Eng. 
 R. Gas. 666. 
 
 *Bethea v. Northeastern R. Go. 26 S. G. 91. 
 
 ^Oulf, G. & 8. F. R. Go. V. McGown, 65 T«x. 640; Wells v. Neio York Cent. 
 R. Co. 24 N. Y. 181; Perkins w. New York Gent. R Go. 24 N. Y. 196; 
 Quimby v. Bo>itoa & .¥. R. Go. 5 L. R. A. 846. 150 Mass. 365. 
 
 *Milnor V. New York '& N. H. R. Go. 53 N. Y. 363.
 
 518 CONDITIONAL TICKETS. 
 
 the reductioii in price, whether there be limitations as to time, 
 transfer, or identification.* 
 
 Tickets sold for a reduced rate on condition that they shall not 
 be transferred, and that full fare may be collected from any per- 
 son presenting them, other than the original holder, are valid, and 
 carriers are authorized to enforce them. The fact that a ticket on 
 its face non-transferable was sold without requiring the purchaser 
 to sign it does not relieve him from the terms of the contract." 
 But conditions in consideration of reduced fare, to be indicated 
 by the signature of the passenger and by punching it, are not 
 binding on a passenger who paid full fare and did not sign the 
 conditions in the ticket, which is not punched.' A condition as 
 to identification may be waived,' or it may be insisted upon and 
 all evidence or identification to any one but the particular agent 
 designated may be rejected and his special assent to the identifi- 
 cation insisted upon." 
 
 Where a 1000 mile ticket is sold and delivered to a purchaser 
 by the company's conductor without requiring him to sign the 
 conditions stamped thereon, the company waives such requirement, 
 and its conductor is not justified in ejecting the passenger from 
 the car for refusing to sign the ticket, or pay the usual fare in 
 money for his passage.* Where a passenger ticket contains limi- 
 tations of the carrier's liability printed thereon, with blank space 
 therein for the passenger's signature, but the passenger is not re- 
 quested to sign his name thereto, and does not sign it, and the 
 conditions therein are not made known to him, they are equivalent 
 to neither a restriction or limitation of the liability of the carrier.' 
 The purchaser of a railroad ticket does not by its mere accept- 
 ance acquiesce and bind himself to all terms and conditions 
 printed thereon in the absence of actual knowledge of them. 
 
 ^Edwards v. Lake Shore & M. S R. Co. 81 Mich. B64; Boylan v. BofSprinf/s 
 11 Co. 132 U. S. 146, 33 L. ed. f9i>, 40 Am. & Eug. li. Cas. G6G; Bethea 
 V. Northeadern R. Co. 26 S. C. 91. 
 
 Wmmmond v. Southern Pac. Co. (Utah.) 9 Ky. & Corp. L. J. 371. 
 
 ^Andemon v. Canadian Pac. R. Co. 17 Oat. Kep. 747, 40 Am. & Eng. R. 
 Cas. 624. 
 
 *Taylor v. Seaboard & R. R. Co. 99 N. C. 185, 6 Am. St. Rep. 509. 
 
 '^KdioardH v. Lake Shore & M. S. R. Co. yi Mich. 304. 
 
 *Keiit V. Paltimore & 0. R. Co. 10 West. Rep. 457, 45 Ohio St. 284. 
 
 "'Kanms City, St. J. tfc C. B. R. Co. v. Rodibnugh, 38 Kan. 45.
 
 CONDITION AND LIMITATION ON TICKET. 519 
 
 Where a tliousand-laile ticket was sold and deliv'cred to a pur- 
 ■c'l laser and several times honored without requiring the holder to 
 sign the conditions, such requirements are waived.' 
 
 In the states where the contract of release is held binding upon 
 the traveler using a free pass, or using a ticket, with such exemp- 
 tions as are permissible, it is said that the object of the provision 
 as to signing the ticket is to furnish complete evidence that the 
 person to whom the pass is issued assents thereto; but one who 
 actually avails himself of such a ticket and of the privileges it 
 confers, to secure a passage, cannot be allowed to deny that he 
 made the agreement expressed therein, because he did not and 
 was not required to sign it." The fact that a passenger does not 
 sign a ticket which constitutes a contract and has a blank space 
 for his signature does not relieve him from the effects of its stipu- 
 lations.* The failure of a passenger to sign an agreement on the 
 back of a free railroad pass, which expressly declares that it is 
 given to him " provided he signs the agreement," is immaterial 
 where lie accepts and uses the pass," Having accej^ted the pass 
 he must have done so on the conditions fully expressed therein 
 whether he actually read them or not.* 
 
 Conditions in a coupon ticket book that the coupons are to be 
 detached by or in the presence of the conductor and will be 
 accepted for passage only when accompanied by the ticket, are 
 not waived by sometimes allowing passengers to pay their fares 
 with coupons without showing their tickets.' A condition in a 
 book of railroad tickets, that coupons therefrom are not good if 
 detached, is a reasonable condition.'' But if separ ted by inad- 
 vertence and each part is presented to the conductor, the ticket 
 must be accepted.* And the return part of a ticket must be ac- 
 
 ^Kent V. Baltimore <& 0. R. Co. 10 West. Rep. 459, 45 Ohio St. 284. 
 
 ^Gulf, G. & 8. F. B. Co. V. McGown, 65 Tex. 640: Illinois Cent. B. Co. v. 
 
 Rend. 87 III. 484; Wells v. New York Gent. R. Co. 34 N. Y. 181; Perkim 
 
 V. New York Cent. R. Co. 24 N. Y. 196. 
 "•Fomeca v. Gtmard SS. Co. 12 L. R. A 340, 153 Mass. 553. 
 *Qinmby v. Boston & M. B. Co. 5 L. R. A. 846, 150 Mass. 365. 
 ^Squire v. New York Gent. B. Co. 98 Mass. 239; Hill v. Boston, E. T. & W. 
 
 R. Co. 144 Mass. 284; Boston & M. R. Co. v. Chipman, 146 Mass. 107. 
 ^Boston & M. R. Go. v. Chipman, 146 Mas^. 107. 
 '^Norfolk & W. R. Co. v. Wysor, 82 Va. 250. 
 ^Wightman v. Chicago & N. W. R. Co. 2 L. R. A. 185, 73 Wis. 169; Penii- 
 
 sylvania Co. Y.Bray, 125 lad. 229,
 
 520 CONDITIONAL TICKETS. 
 
 cepted by a conductor when the ticket is detached in his pres- 
 ence, although the passenger refuses to give up the first coupon.' 
 If while detaching the coupons the passenger's attention is- 
 called by the conductor to the fact that it is his duty to detach 
 them, the passenger should at once desist and liand the ticket 
 and coupons to the conductor, whose duty it would be, if he saw 
 the coupons detached or could readily ascertain by inspection that 
 they had been detached from the ticket, to accept them. But he- 
 is not bound ' to receive the detached coupons without seeing the- 
 ticket.' 
 
 Where the passenger was entitled to one first class passage only 
 upon presentation of tickets with checks attached, one from^ 
 Buffalo to Albany, the other from Albany to New York, and con- 
 taining upon the checks : " This check forfeited if detached," — 
 he was entitled to one continuous passage without stopping at an 
 intermediate station.' A passenger having used a through ticket 
 to an intermediate station has no right on such ticket to resume 
 his journey.* 
 
 A iTile of a city railroad company requiring passengers riding 
 over two sections to keep and show, undetached by him, a coupon 
 ticket, is reasonable.^ 
 
 A provision in the going coupon of a round trip ticket, that it 
 shall be void if detached, is waived where it is detached by acci- 
 dent or through no fault of the passenger, who presented both 
 coupons to the conductor on his going trip, with an explanation 
 as to the severance, and the conductor accepted the ticket, taking 
 one of the coupons. Where the coupons of a round trip ticket 
 were detached on the going trip by the conductor, who retained 
 the returning coupon, and gave the going coupon to the passen- 
 ger, who did not discover the mistake until he presented it to the 
 conductor on the return trip, and then made explanation, he is 
 entitled to be carried on the going coupon.* 
 
 ^Chicago, St. L. & P. R. Co. v. Holdridge, 118 Ind. 281. See Pennsylvania 
 
 Co. V. Bray, ViTi Ind. 229. 
 ^T^juiKville, N. & G. S. R. Co. v. Harris, 9 Lea, 180. 
 Ulamilton v. Ncio York Cent. R. Co. 51 N. Y. 101. 
 *Wn!/man v. Northern Pac. R. Co. 34 Minn. 210. 
 »/>c Lucas V. New Orleans & C. R. Co. 38 La. Ann. 930. 
 * Pennsylvania Co. v. Biay, 125 lud. 229.
 
 LIMIT OF TIML IX TICKET. 521 
 
 Where a passenger in good faith presents a non-transferable 
 ticket, issued to anotlier person, without attempt to conceal hi& 
 identity, and his claim is recognized, he is entitled to safe carriage 
 and a place to alight.' But the carrier may refuse to recognize 
 such assignment of a ticket on its face not transferable, for the 
 contract is then a personal one, to transport only the individual 
 to whom the ticket is sold to the final place of destination, and 
 not to carry him to one point on the road, and permit liim to 
 substitute another person as passenger to another point, and so 
 continuously until the end is reached, thus securing through rates 
 for actual local travel.* 
 
 § 14-6. Limit of Time in Ticket. 
 In addition to what has been said in sections 60, 6, 142 and 144,^ 
 it may be added that where a lawful limit of time has been stated 
 on the ticket, it cannot be used afterwards.' But "Good this trip 
 only," applies to the trip and not to the date.* The sale of a lim- 
 ited ticket at a reduced rate would in itself be sufficient to sustain 
 the limitation.* If the passenger enter upon the journey on the 
 last day limited, he is entitled to complete the trip altliough it 
 extend beyond the date named in the ticket.* And this is true 
 although he pass over connecting roads after the date limited.' 
 But he must apply for passage before the last train of the day has 
 
 ^BobodelK v. New YovTc, N. H. & H. R. Co. 33 Fed. Kep. 796. 
 
 ''Cody V. Central Pac. R. Co. 4 Sawy. 114; Post v. Chicago i& N. W. R. Co. 
 
 14 Neb. 110, 45 Am. Rep. 100; Toledo, W. & TF. R. Co. v. Beggs, 85 111. 
 
 80; Way v. Chicago, R. I. & P. R. Co. 64 Iowa, 48. 
 'Cody V. Central Pac. R. Co. 4 Sawy. 114; Gale v. Delaware, L. & W. R. Co^ 
 
 7 Hun, 670; Hill v. Syracuse, B. & N. T. R. Co. 63 N. Y. 101; Elmore v. 
 
 Sands, 54 N. Y. 512; Powell ^r. Pittsburg, C. &St. L. R. Co. 25 Ohio St. 
 
 70; Boston & L. R. Co. v. Proctor, 1 Allen. 267; Billiard v. Goold, 34 N. 
 
 H. 230; Rawitzky v. Louisville <fe N. R. Co. 40 La. Ann. 47; Dietrich v. 
 
 Pennsylvania R. Co. 71 Pa. 432; Chicago, B. & Q. R. Co. v. Parks, 18111. 
 
 460; McClure v. Philadelphia, W. & B. R. Co. 34 Md. 532; State v. Camp- 
 bell, 32 N. J. L. 309; Briggs v. Grand Trunk R. Co. 29 U. C. Q. B. 510^ 
 
 Wentz V. Ei-ie R. Co. 5 Tliomp. & C. 556. 
 *Pier V. Finch, 24 Barb. 514. 
 ^S7iedd V. Troy & B. R. Co. 40 Vt. 88; Hall v. Memphv* & G. R. Co. 9 Fed. 
 
 Rep. 585; Sherman v. Chicago & N. W. R. Co. 40 Iowa, 45; LiUis v. St. 
 
 Louis, K. 0. & N. R. Co. 64 Mo. 464. 
 *Evans v. St. Louis, I. M. & S. R. Co. 11 Mo. App. 463; Auerbach v. Neio- 
 
 Ywk Cent. <& H. R. R. Co. 89 N. Y. 281 ; Georgia S. R. Co. v. Bigdoic, 
 
 68 Ga. 219. 
 •'Lundy v. Central Pac. R. Co. 66 Cal. 191; Houston & T. G. R. Co. v. HilL 
 
 70 Tex. ^UAuerhach v. Neto York Cent. & H. R. R. Co. 89 N. Y. 281.
 
 522 CONDITIONAL TICKETS. 
 
 left, even if it be detained by the carrier or by accident.' But 
 Sunday will not be counted if the carrier run no train on that day 
 and the next day is therefore held to be within the limit.' 
 
 A passenger holding a ticket, the limitation of which has ex- 
 pired, cannot insist that the conductoj' shall take it in violation of 
 s, regulation of the company requiring the conductor to demand 
 train fare of persons without tickets, although he may have an 
 understanding or contract with the station agent of whom the 
 ticket was purchased that it would be received after the time lim- 
 ited on the face of it, and on the refusal to pay the fare, ejection 
 from the train would not be wrongful. The measme of damages 
 in a suit for a l)reach of the alleged contract is, in the absence of 
 proof of any special damage by delay, only the price of the extra fare 
 demanded and paid for transportation to the place of destination.' 
 
 A, state statute providing that passengers shall be allowed to 
 stop over at will, so far as it is embodied in the contract with the 
 carrier on purchasing a ticket, is effective, but such a statute is 
 intended to apply only to the right to stop over within that state.* 
 And the Legislature may extend the limitation upon the use of 
 tickets, even as to a foreign corporation while acting as a carrier 
 within the state." A raih-oad may require that a passenger make 
 a continuous trip and that one who stops off perhaps even at a 
 division of a railroad line, shall have his ticket certified by the 
 signature of the conductor, before it can be used to complete the 
 journey.' A cheap trip will not be a substitute for such indorse- 
 
 ^Pemmjlmnia Go. v, Hine, 41 Ohio St. 276; Arnold v. Pennsylvania R. Co. 
 
 115 Pa. 135. 
 ^Little Bock & Ft. S. B. Co. v. Dean, 43 Ark. 529. 
 
 ^Hall V. Memphis & C. R. Co. 15 Fed. Rep. 57, 9 Am. & Eng. R. Cas. 848. 
 *Boston <& M. B. Co. v. Traflon, 151 Mass. 229; Carpenter v. Grand Trunk 
 
 B Go. 72 Me. 388. 
 ^Dryden v. Grand Trunk B. Co. 60 Me. 512. 
 *Liltle Bock & Ft. 8. B. Co. v. Dean, 43 Ark. 529; Dunphy v. Erie R. Co. 
 
 10 Jones & S. 128; Gorton v. Milwaukee, L. S. & W. R. Co. 54 Wis. 234; 
 
 Beebe v. Ayres, 28 Barb. 275; Denny v. New York Cent. & H. R. R. Co. 
 
 5 Daly. 50; Hamilton v. New York Cent. R. Co. 51 N. Y. 100; State v. 
 
 Overton, 24 N. J. L. 435; Dreto v. Central Pnc. R. Co. 51 Cal. 425; Breen 
 
 V. Texas & P R. Co. 50 Tex. 43; Briggs v. Grand Trunk R. Co. 24 U. C. 
 
 Q B. 510; Oil Creek dc A. B. B. Co. v. Clark, 72 Pa. 2Sl ; Johnson v. Con- 
 cord B. C/rp. 46 N. H. 213; Vankirk v. PenuKylvania R. Co. 76 Pa. 66; 
 
 O'leney v. Boston & M. B. Co. 11 Met. 121; Gale v. Delaware, L. & W. 
 
 R Co. 7 ilun, 670; McClure v. Philadelphia, W. & B. B. Co. 34 Md. 532; 
 
 Cknrchill v. Chicago & A. B. Co. 67 111. 390; Wentz v. Erie B. Co. 5 Tliomp. 
 
 61, C. 556.
 
 KOUND TRIP TICKET. 523 
 
 merit.' But a ticket composed of coupons over connecting roads 
 unless otherwise exj)ressly limited, entitles the passenger to stop 
 at the end of a road where he surrenders his coupon, and resume 
 his journey at any reasonable time afterward/ 
 
 § 147 . Round Trip Ticket. 
 
 By purchasing a round trij) ticket the passenger acquires the 
 right to ride on the proper train subject to the reasonable regula- 
 tions of the company.* Where the contract to carry the plaintiff 
 as a passenger by a railroad company is an express one, signed by 
 the passenger and the company's agent, and is contained in a ticket 
 for a passage to the place of destination and back, the passenger 
 having assented to the contract by accepting and signing it, is 
 bound by the conditions expressed in it, whether he did or did not 
 read them or know what they were.'' 
 
 A railroad company selling a ticket to a point on its road in- 
 cluding the return trip is bound to stop at the station and bring 
 the passenger back, upon the usual signal which had been recog- 
 nized by the company being given. And some of the state stat- 
 utes render a railroad company liable for failure to stop its train 
 for a passenger having a ticket upon his road, where proper sig- 
 nals had been given, unless there was some lawful excuse for the 
 neglect; but if the conditions are such that the railroad employes 
 npoii the train cannot, on account of a storm, in the exercise of 
 due diligence and care, see the signal, there can be no recovery.^ 
 
 Carriers of passengers are legally bound to reasonable conduct 
 on the facts brought to their knowledge or to the knowledge of 
 
 ^Gorton v. Milwaukee, L. S. & W. R. Go. 54 Wis. 234; State v. Overton, 24 
 N. J. L. 435; McClure v. PhUddetphia, W. & B. R. Co. 34 Md. 532; Che- 
 ney V. Boston & M. R. Go. 11 Met. 121. See contra. Palmer v. Charlotte, 
 G. & A. R. Go. 3 S. C. 580, and as to the insufficiency of declarations of 
 agent at way station, see McClure v. Philadelphia, W. & B R. Go. 34 Md. 
 532; or conductor, Denny v. New York Cent. & U. R. R. Co. 5 Daly, 50; 
 Vaukirk v. Pennsylmnia R. Co. 76 Pa. 66; Burnham v. Grand lYunk R. 
 Go. 63 Me. 298; Boiee v. Ilud.'^on River R. Go. 61 Barb. 611. 
 
 ^Wilson V. Chesapeake & 0. R. Co. 21 Gratt. 654; Brooke v. Grand Trunk R. 
 Go. 15 Mich. 332. 
 
 ^Clnyhrook v. Hannibal & St. J. R. Go. 2 West. Rep. 175, 19 Mo. App. 432; 
 Logan v. Hannibal & St. J. R. Co. 77 Mo. 669. 
 
 *Boylan v. Hot Springs R. Co. 132 U S. 146, 33 L. ed. 290. 
 
 ^Freeman v. Detroit, M. & M. R. Co. 9 West. Rep. 117, 65 Mich. 577.
 
 524 CONDITIONAL TICKETS. 
 
 their agents and employes.' For refusing to acce|)t the remain- 
 ing part of a return ticket on the return trip, where the re- 
 turn part has been taken through mistake b}'' the conductor on 
 the first trip, and ejecting the passenger for refusal to furnish 
 any other ticket or fare, the carrier has been compelled to pay 
 damages." A passenger whose return ticket has been taken 
 up on the first passage and a mere conductoi-'s hat clieck given in 
 place of it, is not guilty of negligence because before entering the 
 cars for return passage, he has not provided himself with a new 
 ticket, nor is he obliged to pay fare on the train, and damages 
 sustained have been recovered for being put oif the train in conse- 
 quence of such refusal.^ Where an error of the ticket agent in 
 issuing a ticket caused a round trip ticket to be rejected on the 
 return trip, actual and punative damages were allowed for indig- 
 nity and rudeness accompanying an unlawful ejection of the pas- 
 enger.* Where a conductor rejects a ticket, he is not authorized 
 to take possession of it.' 
 
 Where, by the express conditions of the plaintiff's contract, he- 
 has no right to a return passage under his ticket, unless it ha> 
 the signature and stamp of the company's agent at the end of the 
 route, no agent or employe of the company is authorized to alter 
 or waive any condition of the contract, and therefore the action of 
 a baggage-master in punching the ticket and checking plaintifiV 
 baggage, and that of the gateman in admitting him to the return 
 train, cannot bind the company to carry him or estop it to deny 
 J lis right to be carried.* 
 
 § IJfS. Through Tickets over Connecting Roads. 
 
 Companies may forbid their agents to receive commissions for 
 sale of tickets over other company's roads. The practice of pay- 
 ing commission for such sales is not proper. An agreement 
 by a railroad company to deliver all passengers over its line to a 
 particular road, upon the stipulation that that road would pre- 
 vent the construction of a rival road, which would be a compe- 
 
 'Buck V. Webb, 58 Hun, 185. 
 
 "•Kansas (Jity, M. & B. R. Co. v. Riley, 13 L. R. A. 38, 68 Miss. 765. 
 
 ^Baltimore & 0. R. Co. v. Bambrey (Pa.) Nov. 5, 1888. 
 
 *nend V. Georgia Pac. R. Co. 79 Ga. 358. 
 
 » ViLnkirk v. PeniiHylvania R. Go. 76 Pa. 66. 
 
 *Boylan v. Hot Springs R. Co. 132 U. S. 140, 33 L. ed. 290.
 
 THROUGH TICKETS OVER CONNECTING KOADS. 525 
 
 titor witli the first named road, is against public policy.' The In- 
 terstate Commerce Act does not require one company to sell through 
 tickets over road of another. In absence of statutory authority, 
 one raih'oad company can sell tickets over road of another com- 
 pany only by agreement.' But a passenger on the train of one 
 company who in good faith offers a ticket sold him by another 
 company cannot be treated as a trespasser, where he tenders full 
 fare upon the conductor's refusing to receive the ticket.' No 
 authority to issue through tickets or through bills of lading 
 for property, at through rates, over connecting lines, is conferred 
 by the Act to Regulate Commerce upon common carriers of inter- 
 state commerce, in the absence of arrangements between the com- 
 panies.* When there is no joint rate in effect from a station on the 
 line of one carrier to a station on another carrier's line to which a 
 ticket is applied for, it is competent to name a through rate made 
 up of the sums of rates prevailing on the several roads or parts of 
 roads made use of in the journey; using for such through rate 
 local rates where there are no joint rates in combination with 
 locals, where they are in effect for any part of the distance. 
 When no joint rates are announced, it is understood that the local 
 rates are employed in arriving at the through rate.* 
 
 A through ticket on three several distinct lines of passenger 
 transportation, on one piece of paper, is to be regarded as a dis- 
 tinct ticket for each line.* A company selling a through tickei 
 over other roads is liable for the mistake of its agent in omitting 
 to stamp the place of destination.' 
 
 A railroad company contracting to carry an excursion party by 
 .a special train to a point beyond its own road, usually becomes 
 
 ^State V. Hartford & K H. R. Co. 29 Conn. 538; Hariford & N. H. R. Co. v. 
 
 New York & N. H. R. Co. 3 Robt. 411; Doolin v. Ward. 6 Johns. 194; 
 
 Hooker v. Vandewater, 4 Denio, 349; Hood v. Hew York & N. H. R. Co. 
 
 22 Conn. 502. 
 ^Chicago & A. R. Co. v. Pennsylmnia, 1 Inters. Com. Rep. 357. 
 Warn V. Delaware & H. Canal Co. 142 Pa. 617. 
 ^Kentucky d; I. Bridge Co. v. LouimUe & JV. R. Co. 2 Inters. Com. Rep. 351, 
 
 37 Fed. Rep. 567; LiUle Rock & M. R. Co. v. East Tennessee, V. & G. R. 
 
 Co. 2 Inters. Com. Rep. 454. 
 ^Re Passenger Tariffs, 2 Inters. Com. Rep. 445. 
 ^Knight v. Portland, S. <& P. R. Co. 56 Me. 234; Milnoi- v. Mw York & N. 
 
 H. R. Co. 4 Daly, 355. 
 ^Gnffin V. Utica <& B. R. Co. 41 Hun, 443.
 
 526 CONDITIONAL TICKETS. 
 
 liable for the entire transportation, and another company over 
 whose road it passes becomes pro hac vice its agent in such trans- 
 portation, and it is liable to a member of the excursion who with- 
 out fault suffers an injury through the negligence of such com- 
 pany.* Such contracting carrier may render itself liable for all the 
 lines." The liability must depend upon the particular circum- 
 stances of each case.* 
 
 A railroad company which sells a ticket to a point beyond its line 
 may be liable for injuries to the passenger caused by the negligence 
 of those in charge of the train and car at a point beyond its own 
 line to which the passenger was carried without change of cars.* 
 Pamphlets and maps for public cii'culation by a railroad com- 
 pany, treating the road of another company as part of its line, and 
 proof that its freight department issues orders to agents on such 
 road, and that the rolling stock of the two lines is used indiscrim- 
 inately, and that the employes of the other road are paid from the 
 pay car of the first named road, — are sufficient to show that it is 
 operating the other road and is liable for the negligence of employes 
 thereon.* 
 
 A common carrier may contract to carry passengers to points 
 on connecting lines beyond the terminus of its lines; and when it 
 so contracts or undertakes, it is liable to a passenger for injuries 
 received at points so beyond its terminus, in like manner as if 
 the injury had occurred at a point upon its own line.* The 
 sale to a passenger of a "local" ticket, that is, a ticket sold 
 for a single fare and for continuous passage, and which does not 
 contemplate a pro rata division of such fare between several car- 
 riers, as in the sale of so called "coupon" tickets, is evidence tend- 
 ing to establish a contract and undertaking on the part of the car- 
 
 > Washington v. Baleigh & G. R. Co. 1 L. R. A. 830, 101 N. C. 339. 
 
 *Najac V. Boston & L. R. Co. 7 Allen, 329. 
 
 *Carter v. Peck, 4 Sneed, 203; Baltimore & 0. R. Co. v. Harrin, 79 U. 8. 12 
 
 Wall. 65. 20 L. ed. 354; Illinois Cent. R. Co. v. Copeland, 24 111. 382; 
 
 JSoithern Cent. R. Co. v. SchoU, 16 Md. 331; Sprague v. Smith, 29 Vt. 
 
 421. 
 *ChoUette v. Omaha & R. V. R. Co. 4 L. R. A. 135, 26 Neb. 159. 
 ^reansylvaida R. Co. v. Sellers, 127 Pa. 406. 
 *Oreat\VeHtem R. Co. v. Blake. 7 Hiirlst. & N. 987; Birkett v. Whitehaven 
 
 Junction R. Co. 4 Hurlst. & N. 730; Murch v. Concord R. Corp. 29 N, H. 
 
 9; Qaimhy v. Vanderbill, 17 N. Y. 306; Bwxtun v. North Eastern R. Co. 
 
 L.li. 3 Q. B. 549: Thomas v. Rliymney R. Co. L. R. 6 Q. ^. 2H6; Stetler 
 
 V. Chicar/o & N. W. R. Co. 49 Wis. 609; Wabash, St. L. & P. R. Co. v. P^ 
 
 ton, 108 111. 534; Bissell v. Michigan S. t{- N. 1. R Co. 22 N. Y. 258.
 
 THEOUGH TICKETS OVEK CONNECTING ROADS. 527 
 
 rier selling it to carry the purchaser or passenger to the destination 
 named in the ticket, notwithstanding such destination is beyond 
 the terminus of the selling carrier's line of road.' 
 
 In Great Western li. Co. v. Blahe, 7 Ilurlst. & 'N. 987, Chief 
 Jufitice Oockburn, in delivering the opinion of the court, says: 
 "If a i-ailroad company chooses to contract to carry passengers, 
 not only over their own line, but also over the line of another 
 company, either in whole or in part, the company so contract- 
 ing incurs all the liability which would attach to them if they 
 contracted solely to carry over their own lines." In that 
 case it was held that the defendant company was liable to 
 the plaintiff for damage resulting from a personal injury caused 
 by an accident on the line of the South Wales Railway Company^ 
 and over which the plaintiff w^as being transported in the same 
 carriage which he entered at Paddington station on the Great 
 Western Hailway Company's line, and for M-liich he had paid one 
 fare for his conveyance to Milford, on the line of the South AVak-s 
 Railway Company.'^ 
 
 In Hood V. New Yorh & N. II. B. Co. 22 Conn. 1, the plain- 
 tiff purchased a ticket from the defendant railway company, to 
 Collinsvilie. The defendant had no road to Collinsville and pas- 
 sengers were conveyed from a point on its road to Collinsville by 
 stage. A single ticket was sold which was exchanged for a ticket 
 given to plaintiff by the conductor on defendant's ti'ain which is 
 as follows : 
 
 New Haven and JS^orthampton 
 
 Company 
 
 Conductor's Ticket. 
 
 JSTew Haven to Collinsville by stage from 
 
 Farmington, 
 
 O. D. Goodrich, 
 
 Conductor. 
 
 »3 Reif. Railways, 139, *122, § 10; 316, 317, *369, *370, §g 6, 7, 8; Quimby 
 V. Vanderbilt, 17 N. Y. 306; GreatWestern R. Co. v. Blake, 7 Hurlst. &N. 
 987; Thoman v. Rhymney R. Co. L. R. 6 Q. B. 266; Buxton v. North 
 Eastern R. Co. L. R. 3 Q. B. 549; Louisnile & N. R. Co. v. Weaver, S 
 Lea, 38; Carter y. Peck, 4 Sneed, 203. 
 
 *The same was held in Birkett v. WhiieJiaven Junction R. Co. 4 Hurlst. & N. 
 730. See also Buxton v. North Eastern R. Co. L. R 3 Q. B. 549; Thomas 
 V. Rhymney R. Co. L. R. 6 Q. B. 266; Stetler v. Chicago & N. W. R. Co. 
 49 Wis. 609; Wabash, St. L. & P. R. Co. v. Peyton, 106 III. 534; Bisxell 
 V. Michigan S. & N. I. R. Co. 22 N. Y. 258; Peters v. Rylands, 20 Pa. 
 497.
 
 528 CONDITIONAL TICKETS. 
 
 Judge Ellsworth, in his opinion, referring to the two companies, 
 the railroad and stage companies, says : " One company receives 
 uothing for the services or expenditures or risks of the other. 
 Xor is there a participation in profits; nor a partnership; nor joint 
 obligation; nor joint control. Each attends exclusively to his 
 owii appropriate business; the railroad company to the railroad 
 and the stage company to the stages." * 
 
 Plaintiff applied to an agent in the ticket office on defendant's 
 road for a ticket to E, a station on the Union Pacific Railroad, a 
 number of miles east of the eastern terminus of defendant's road, 
 which was on the line of the Union Pacific Railroad, and by such 
 agent was furnished a single local ticket to Elkhorn, called a local 
 book ticket, which was used as a substitute for card tickets common- 
 ly used on railway lines for local travel. The reason why a ticket 
 of that form was used, was that card tickets M-erc used only 
 between points where there was considerable travel; that between 
 points where there was but little demand for tickets a local book 
 ticket was used in its stead. While the ticket contained the 
 words "Union Pacific Railway," there was nothing which neces- 
 «;arily showed it to be the contract of that company, or that the 
 contract for carriage was made with it, and defendant placed 
 plaintiff in a car which transported her to her destination without 
 change. It was held that the contract, having been to convey 
 plaintiff to Elkhorn from Wagoo, and a single ticket having been 
 given, plaintiff had the right to look to defendant for the fulfil- 
 ment of such contract. That while it is true that where coupon 
 tickets are sold over long fines of connecting road by the first 
 company acting alone as the agent of those over whose roads the 
 passenger is to travel, the company selling the ticket is liable only 
 for the safe passage over its line," such connections do not exist 
 here. For the purpose of the liability of the defendant, the whole 
 line over which the plaintiff passed was that of the defendant.* 
 
 Where two connecting railroad companies use a station jointly, 
 or hire one person to discharge the duties of ticket agent for both, 
 
 'See Cobb v. Abbot, 14 Pick. 289, where the independent companies employed 
 a c(jimnou driver and where each was held liable lor loss of money which 
 \v;ia entrusted to hmi. 
 
 ^Uood V. Nbio York & N. H. R. Co. 23 Conn. 1. 
 
 ^ClioUeUe v. (Jiaaha d; li. V. R. Co. 4 L. R. A. 135, 26 Neb. 159.
 
 THROUGH TICKETS OVKK CONNECTING KOADS. 529 
 
 and such person sells a ticket over one of the roads, the other 
 company is not responsible for the negligence of the connecting 
 road.* The appointment of a common agent to sell tickets over 
 connecting roads, does not constitute the latter partners in the 
 transportation." A railroad ticket which, together with attached 
 coupons for passage over connecting lines, provides that the com- 
 pany selling it shall not be liable for injuries occurring beyond its 
 own route, limits the liability of such company to its own line.* 
 
 Tlircjugh passenger railway tickets in the form of coupons, 
 entitling the holder to pass over successive roads, are regarded as 
 distinct tickets for each road, sold by the first company as agent 
 for the others, as far as the passenger is concerned.'* The riglits 
 and liabilities of the parties are the same as if the tickets had been 
 purchased of each company separately at its own depot or station. 
 The liability of each company in turn continues, in regard to such 
 passenger, from the place and time of receiving the ticket, until 
 they reach the point where the liability of the next one of the 
 connecting lines commences.* It is the duty of each company to 
 see its passengers safely over the whole route to the next con- 
 necting line, as far as the utmost care will effect the same.* 
 A ticket good for a continuous passage over several lines is good 
 for a continuous passage over each line, and not merely over 
 the entire connecting lines.'' But one of sevei'al lines for the 
 transportation of passengers, running in connection over different 
 portions of a route of travel, may contract as principal for the 
 conveyance of a passenger over the whole route; and such contract 
 may be established by the circumstances, notwithstanding the 
 passenger receives tickets for the different lines, signed by their 
 
 KMchison. T. dk S. F. R. Co. v. Cochran, 7 L. R. A. 414, 43 Kan. 225, 41 
 
 Am. & Eng. 11. Cas. 48. 
 ^Hartan v. Eastern R. Co. 114 Mass. 44; Sprague v. Smith, 29 Vt. 421; 
 
 Straiton v. New York & N. H. R. Co. 2 E. D. Smith, 184. 
 -Kerrigan v. Southern Pac. R. Co. 81 Cal. 248, 41 Am. & Ene:. R. Cas. 28; 
 
 Harris v. Howe. 5 L. R. A. 777. 74 Tex. 5;i4, 89 Am. & Euir. R. Cas. 
 
 498: Bethea v. Northeastern R. Co. 26 S. C. 91; Peterson v. Chicago, R. I. 
 
 & P. R. Co. 80 Iowa, 92. 
 *roungv. Pennsylvania R. Co. 5 Cent. Rep. 851, 115 Pa. 112; 2 Redf. RaU- 
 
 ways (4th ed.), 276; Knight v. Portland, S. & P. R. Co. 56 Me. 234. 
 ^Knight v. Portland, S. d- P. R. Go. 56 Me. 234. 
 ^Townsend v. New York Cent. & H.R. R. Co. 56 N. Y. 295. 
 ■'Auerbach v. New York' Cent. & H. R. R. Co. 89 N. Y. 281. 
 
 34:
 
 530 CONDITIONAL TICKETS. 
 
 separate agents. Passage tickets are generally to be regarded a& 
 tokens rather than contracts, and are not within the rule exclud- 
 ing parol evidence to vary a written agreement.' In the ab- 
 sence of an express contract for through transportation, or circum- 
 stances from which it will be implied, the holder of coupon 
 tickets is not bound to pursue his journey without intermission 
 when it has been once begun, as in the case of a passenger whose 
 trip is confined to the route of a single carrier, but may, at the 
 end of each of its stages represented by such tickets, temporarily 
 discontinue his passage without losing his right to resume it 
 within a reasonable time." 
 
 ^Qwimby v. VanderUlt, 17 N. Y. 306. See also Williams v. Vanderbilt, 28 
 
 N. Y. 217. 
 •Brooke v. Grand Trunk R. Co. 15 Mich. 333.
 
 CHArTER XXYL 
 
 * SUNDAY TRAFFIC AND TRAFFIC OVER OTHER ROADS. 
 
 § 149. Traveling on Siriithn/. 
 
 § 150. Oparatimj Over Line of Aiinllicr Carrier. 
 
 § 151. Li nhility of Lessee of Bail road. 
 
 § 15:^. Joint Use of Boad bi/ Carriers. 
 
 % 149. Traveling 011 Sunday. 
 
 Wliilc tlie courts of last rescrt in the United States which have 
 had the subject under consideration, except in tlie one or two wliere 
 the doctrine of comparative nei;iigence is still occasionally applied 
 to meet ''hard cases," agree in the legal proposition that any cul- 
 pable negligence or any illegal act on the part of the plaintiff 
 which essentially contributes to his in jury will prevent a recovery, 
 yet there is a marked difference in opinion as to what constitutes 
 a contributory cause oi injury. Tliis difference, however, is mostly 
 coniined to cases in which the defense is interposed of the ])lain- 
 tiff's violation of the Sunday law. For instance, the courts of 
 Massachusetts, Maine and A^erinont have held in numerous cases, 
 that a '^"rson traveling on Sunday, not from necessity or charity, 
 cannot recover of a town or cit}' for injmues caused by a(h^fective 
 highway or even by the carelessness of another traveler.' J]ut in 
 reaching such a result, the courts of JMassachusutts have uniformly 
 assumed that the plaintiff's unlawful act contributed to his injury; 
 while on tlie other hand the Supreme Court of the United States 
 and the courts of Xew York, Connecticut, Pennsylvania, Indiana, 
 Ohio, Wisconsin, Kentucky, llhode Island, Arkansas, Minnesota, 
 and of some other states following the same rule, have reached 
 the opposite result, and have held that the plaintiff* in such cases 
 
 "^Stanton v. Metropolitan R. Co. 14 Allen, 485; JJofiworih v. Swcuisey, 10 Met. 
 363; Jonex v. Amlover, 10 Allen, 18; Feital v. Mitl^^ewx R. Co. 109 Mass. 
 398; Smith v. Boston & M. R. Co. 120 Mass. 490; C ratty v. Bangor, 57 Me. 
 A2%; Lyons v. Besotelle, 124 Mass. 387; Bucher v. Fitchburg R. Co. 131 
 Mass. 156; Read v. Boston d- A. R. Co. 140 Mass. 199; Johnson v. Iraa- 
 . burgh, 47 Vt. 28, 19 Am. Rep. Ill; Parker v. Latner, 60 Me. 528. 
 
 . 531
 
 532 SUNDAY TKAFFIC AND TKAFFIC OVEK OTHEK KOAD.S. 
 
 may recover, always f»ivintj as ainoii*;' tlie controlling reasons that 
 the illegal act did not contribute to tiie injury.' 
 
 There must of course be a fallacy somewhere in the reasoning 
 that can reach opposite results while proceed i' <x upon the same 
 premises. The fallacy in the reasoning of those who support the 
 Massachusetts rule, recognized as a local law to be enforced in the 
 United States courts.' but since changed by statute, consists in 
 assuming (unconsciously no doubt), that a mere concurrence of the 
 illegal act with the accident in point of time is to be treated as a 
 concurring cause of the injury, which it is not, but rather a con- 
 dition or incident merely. In all other cases than these affected 
 by the Sunday law tlie courts of Massachusetts have discriminated 
 and applied the principle of contributory fault in strict accordance 
 with the distinction suggested; for instance, in Welch v. Wesson, 
 6 Gray, 505, where two persons were racing contrary to law, and 
 one of them negligently injured the other, it was held the injured 
 party could recover, because his own illegal act did not contribute 
 to his injury. So where the plaintifFs team was standing in a 
 street in a inauiier prohibited by statute, and was carelessly run 
 into by the defendant, a recovery was sustained upon the same 
 ground.^ And in Gregg v. Wt//nan. 4 Cush. 322, it was decided 
 there was error in holding a plaintiff's illegal conduct to be an 
 essential element of his case, when in fact it was merely incidental 
 to it. 
 
 The fallacy of the reasoning in support of the Massachusetts 
 rule in cases affected by the Sunday law has been most ably ex- 
 posed by the courts of Connecticut, AVisconsin, Maine, Rhode 
 Island, Vermont and Xew York while at the same time, they 
 strongly support the proposition of law that an illegal act, if it 
 
 ^Plutz V. Cohoes, 89 N. Y. 219; Bro>^ch<trt. v. Ttittle, 11 L. K. A. 38, 59 Conn. 1 ; 
 TAJUuviUe, N. A. & fl R. Co. v. Buck, 2 L \\. A. 520, IIC Ind. m^; Pow- 
 hatan 8. B. Co. V. Appomattox R Co. 65 U. tS. 24 How. 247, 16 L. ed. 
 m2\ Baldwin v. Barnci,, 12 R. I. 392; Harrimn v. MarshnU, 4.^. T). 
 Smith, 271; Bertholfv. O'Ueilly, 8 Hun. 16, aff^d 74 N. Y. 509, 30 Am. 
 Rep. 323; Nodine v. Dohertu, 46 Barb. 59; Carroll v. Siaien, Mand R. Co. 
 58 N. Y. 126: Stewart v. Davis, 31 Ark. 518,25 Am. Rep. 576; Mohneyw. 
 Cvok, 26 Pa. 342: Com. v. Louixnlle d- N. R. Co. 80 Ivy. 2dl; Kerwfi acker 
 V. Cleveland, C. & C. R. Co. 3 Oliio St. 172; Opxahl v. Judd, 30 Minn. 
 126; Jacobus v. tSt. Paul tt- G. R. Co. 20 Minn. 130; Sharp v. Evergreen 
 Twp. 11 West. Rei). 549. 67 Mich. 443; ^'orrix v. Litchfield, 35 N. H. 271. 
 *Bucher v. Chenhire R. Co. 125 U. S. 555, 31 L. ed. 795. 
 , . *Steelc V. Burkliardt, 104 Ma.9s. 59.
 
 TKA\ KLING OS SLMJAV. 533 
 
 directl}' contributed to the injury, is a bar to a recovery as matter of 
 law. In Sutton v. Wamcatosa, 2'J Wis. 21, the plaintili" was driving 
 his cattle to market on Sunday in violation of the statute, when 
 they were injured by the breaking down of a defective bridge, 
 which the defendant town was bound to maintain. The defense 
 was the plaintiff's own illegal act. Dixon, C%. ./!, in delivi'ring 
 the opinion of the court, said: ''To make good the defense it 
 must api)ear that a relation existed between the act or violation 
 of law on the part of the plaiutilf, and the injury or accident of 
 which he ct»m))lains, and that relation must ha\ >; been such as to 
 luive caused, or helped to cause, the injury or accident, not in any 
 remote or speculative sense, but in the natural and ordinary course 
 of events, as one event is kixiwii to precede or follow another/' 
 It is then shown that a violation of the Sunday law is not of itself 
 an aet, omi.-^-ion or fault of tliis kind with refei'ence to a defective 
 bridge, over which a tra\eler may be })assing, unlawfully though 
 it may be, because the violation of such a law has no ti'udency to 
 cause it. All other conditions remaining the same, the same acci- 
 dent would have ha])i)ened on any other day, or if the ti-aveler 
 Mas at the time on an errand of necessity or mercy. 
 
 The case of Balder v. Portland^ 58 Me, 199, did not arise under 
 the Sunday law, but the plaintiif was injured by a defect in the 
 highway while driving at a rate of speed ])rohibited by the village 
 ordinance, and the judgment in favor of the plaintiff Mas sus- 
 tained expressly upon the ground that the jury liad found that the 
 fast driving did not contribute to the injury. BarroM's, ,/!, in 
 delivering the opinion of the coui-t said: '"The defendant has 
 cited a strong line of cases showing that M-hen the plaintiff was 
 violating a city ordinance he could not recover. But in all the 
 latter class of cases it M'ill be seen upon examhuition that the 
 wrongful act of the plaintiffs either M-as, or M'as assumed to be, in 
 some manner or degi-ee conti'ibutory to the producing of the 
 injury complained of. . . . Uiuloubtedly there are numy 
 cases Mdiere the contem|>orancous violation of the law by the 
 plaintiff is so connected Mith his claim for damages as to [)reclude 
 his i-ecovery. . . . But the fact that a party plaintitf was at 
 the time of the injury passing anotlier M-ayfarer on the M^rong 
 fcide of the sti'eet. or without giving him luilf the road, or that he
 
 534 SUNDAY TK.VIKIC! AND TKAKFIC U\'KK OTIIKK lUJADs. 
 
 was traveliu<i: on runners without hells, in contravention of the 
 statute, or that he was smoking a cigar in the street in violation 
 of the municipal ordinance, while it might subject the offender to 
 a penalty, will not excuse the town for a neglect to make its ways 
 safe and convenient for travelers, if the commission of the plain- 
 tiff's offense did not in any degree contribute to produce the in- 
 jury of which he complains." 
 
 In Baldwin v. Barney, 12 R. I. 392, where it was held that a 
 person illegally traveling on Sunday along a highway could re- 
 cover against one who recklessly caused a collision and consequent 
 injury to the ])laintiff, Dui-fee, Ch. J., referring to the Massachu- 
 setts cases, said: "'The logic of these cases is that a person who 
 receives an injury while traveling contrilmtes to that injury by 
 the act of traveling and that he is therefore bound to show his 
 right to travel in order to show that his own fault did not concur 
 in causing the injury."' The chief justice then proceeds to dem- 
 onstrate the fallacy of this position by many arguments and per- 
 tinent illustrations, and shows that in that case the injury must be 
 regarded as a mere incident or concomitant of the travelins: and 
 not its effect, and that it would have happened just the same if 
 the plaintiff, instead of being engaged in violating the law, had 
 been going to or from church. 
 
 In Johnson v. Initihurgh, 47 Vt. 28, the court, while holding 
 with the courts of Massachusetts that a person traveling on Sun- 
 day in violation of the statute could not recover of a town for an 
 injury sustained by reason of a defect in the highway, yet places 
 its decision upon i-adically different ground, namely, that the town 
 was under no legal duty to furnish a safe highway to travel upon 
 when at that precise time lie was forbidden by law to travel over 
 the liighway, and owing no duty to him they could not be liable 
 for Miiy neglect. 
 
 The opinion (»f the court, as given by Ross, <-/., not only shows 
 that the n^asoning that supports the JNlassaciiusetts rule in this 
 class of cases is wrong, but establishes the true ju'inciple and dis- 
 tincti(»n in regard to illegal acts of a plaintiff" that will prevent him 
 from I'ccovering for in jui'ies i-ecei\e(l. The court says in j'cgard 
 U) the cases then in li;tn<l: "It i> <litli(Milt to maintain that the 
 fr;i\el(>i''s iMegal net contrihiited to the hapju-ning of the accident.
 
 TKA\ KLINli Obi SL^'DAV. 5i{5 
 
 Tlie insufficiency of the highway remaining the same, and the 
 traveler being at the place of the insufticiency under the same 
 circumstances on any other day of tlie week, the same accident or 
 injury would have befallen him. A contributory cause is one 
 which, under the same circumstances, would always be an elemeut 
 aiding in the production of the accident. The fact that the trav- 
 eler is unlaw-fully at the place of the accident does not contribute 
 to the overturn of Ins carriage or the production of the accident. 
 The same forces and causes would have overturned tlie carriage 
 and caused the accident as well on a week day as on the Sabbath; 
 as well wluMi the traveler was lawfully at the place of the accident 
 as when unlawfully there. . . . JN'either can the fact that the 
 party receiving the injury was at the time engaged in an unlawful 
 act deprive him of the right of recovery. If the plaintiff at the 
 time of the injury had been profaning the name of the Deity he 
 would have been engaged in an unlawful act." 
 
 The case of Plats v. Co/ioes, 89 N. Y. 219, is one falling into 
 the same line with the other cases referred to and in perfect har- 
 mony with them so far as the point under discussion is concerned. 
 It recognizes and adopts principles — conti-ary to the Massachusetts 
 rule — holding that where, through tlie culpal)le omission of duty on 
 the part of a city, a street had become so obstructed that a trav- 
 eler was thereby injured, it was no defense that the accident hap- 
 pened on Sunday and that tlie plaintiff" at the time was traveling 
 <;ontrary to the Sunday law. The reasoning by which this posi- 
 tion was supported was essentially the same as in the other cases 
 referred to. xVs in those cases, so in this, the court makes an ex- 
 haustive argument to show that the illegal act of the plaintiff did 
 not contribute to his injury, showing by necessary implication that 
 the court regarded that fact as a controlling one. Danforth, J., 
 in giving the opinion, after citing Baldwin v. Harney, 12 R. I. 
 o92, and other similar cases, said: "It may be said that if the 
 plaintiff had obeyed the law and remained at home and not trav- 
 •eled, the accident would not have happened. That is not enough 
 The same obedience to the law would have saved the ]ilaintift\s in 
 the cases just cited. It must appear that the disobedience con- 
 tributed to the accident, or that the statute created a right in the 
 defendant which it could enforce. I>ut the object of the statute
 
 536 SL^iDAY TKAFFIC AND TEAFFIC OVEK OXHEK ROADS. 
 
 is the promotion of public order and not the advantage of indi- 
 viduals. Tlie traveler is not declared to be a trespasser upon tlie 
 streets, nor was the defendant appointed to close it against her. 
 In such an action the fault which prevents a recovery is one 
 which directly contributes to the accident. ... It may 
 doubtless be said that if the plaintiff had not traveled she would 
 not have been injured; and this will apply to nearly every case of 
 collision or personal injury from the negligence or willful act of 
 another. Had the injured party not been present he would not 
 have been hurt. But the act of travel is not one which usually 
 results in injury. It therefore cannot be regarded as the imme- 
 diate cause of the accident, and of such only the law takes notice.'^ 
 
 But there is still another reason given by the court in support 
 of its conclusion, which is, that tlie Sunday law exhausts itself in 
 the penalty prescribed, and that to give it further effect by for- 
 feiting the plaintiff's right of action would be in effect adding to 
 that penalty. This reason is given also in the Wisconsin case. 
 Xo fault can be found with it if applied as the court intended. 
 It is very important at the outset to look at the principle precisely 
 as stated by the Kew York court: "The courts may not add to 
 the penalty imposed by that statute a forfeiture of tlie right of 
 indemnity for an injury resulting from the defendant's negligence 
 and the violation of the statute cannot be regarded as the imme- 
 diate cause of the injury." 
 
 The entire force of the principle consists in its connection with 
 the fact last stated, which manifestly is the only foundation that 
 can support it as a rule of law. It is only upon the assumption 
 that the plaintitt''8 illegal act does not contribute to his injury that 
 you can add to the penalty by denying a right of action for the 
 injury. Surely one must first have a right of action before he can 
 forfeit it. lie cannot lose what he never had in fact or in right. 
 Where the plaintiff's illegal act does contribute to his injury he 
 lias no right of action whatever, and by so holding nothing is 
 added to the prescribed penalty. It is plain that the J^ew York 
 court never intended to apply the principle to any case except to> 
 the one expressly stated, or one like it, that is, where the plain- 
 tiff's act had not contributed to his injury. To make any other 
 tluiii such a restricted application of the jniiicij)le would produce
 
 TKAVELING ON SLXDAV. 537 
 
 most flaorrant injustice and lead to most absurd results. It would 
 enable a party to enforce a contract made u])ou Sunday or to 
 come into court and demand jude;ment in liis favor in an action 
 founded upon any illegal ti'ansaction, provided it was subject to a 
 penalty. Instead, then, of accepting the proposition that denial 
 of recovery to a law breaker in such cases is equivalent to an 
 addition to tiie penalty prescribed, it should be said, on the other 
 hand, that the allowing of a recovery, where the illegal act was a 
 cause of his injury, would be equi\ alent to an exemption from 
 the penalty to that extent in favor of one confessedly guilty and 
 the imposition of it upon one confessedly innocent. Considering 
 the consequences to the plaintiff alone it Avould l>e true in a sense 
 that his violation of law may reacli beyond the ])enalty prescribed 
 and defeat his right of action, or rather ]>i-cveiit him from having 
 such right. 
 
 But it is proper to consider the relation of the illegal 
 act in question to third persons and to the cause which the 
 plaiutifl: seeks to enforce agaijist others. It is no more un- 
 just in principle to allow an injured ]>ers(>n to recover com- 
 pensation in damages from an entirely innocent third party,, 
 than it is to allow him to recover for a self-inflicted injury. 
 The real principle is the same (although tlie degree of injustice 
 may not be), whether the plaintitl" M^as the sole author of his in- 
 juries or whether his illegal act or fault combined with that of 
 the defendant to produce them, foi-, in such case, it is impossible 
 to apportion the damages or to determine the relative responsi- 
 bility of the parties, or whether the plaintiff would have been 
 injured at all except for his own contiihution to the result. 
 
 The principle that negligence on the part of the plaintiff con- 
 tributing to his injury will prevent a recovery is uni\ersally ac- 
 cepted. There can be no good .ground for distinction in this^ 
 n^spcct between negligence and any illegal act which is a contrili- 
 utiiig cause of the injury. It may be easier to determine the 
 effect of negligence in a given case than to determine the effect of 
 an illegal act, and owing to the great number of prohibited acts,, 
 especially under city ordinances, cases have frequently arisen 
 where courts have determined that certain illegal acts could not 
 be considered contributory faults, yet the rule applicable to neg- 
 ligence and to illegal acts on the part of the plaintiff is precisely
 
 538 SUNDAY TRAFFIC AND TKAFFIC OVKK OTHKR ROADS. 
 
 the same. To prevent recovery the iieo^lif^eiice in the one ease, 
 or the illegal act in the other, must have the relation to the injury 
 of cause to the effect produced. 
 
 In every well considered case where it appeared that disobedi- 
 •ence to the law directly contributed to the injury, it has been 
 -accepted as a perfect defense. 
 
 It will be noticed that in some of the cases cited the court dis- 
 cussed and decided, as matter of law, the question whether the 
 fault of the plaintiff relied upon in those cases was one which 
 •could be considered as contributing at all to the injury. Ordi- 
 narily these matters are within the province of the jury. If, 
 howevei", the fact relied upon as a contributory fault should be 
 manifestly independent of the injury and not standing in the rela- 
 tion to it of cause and eff'ect, the exidence to prove it could prop- 
 erly be ruled out by the couit. or where the fact has been allowed 
 to come into the case without objection to the evidence offered to 
 prove it. the couit may then determine its legal significance. 
 
 In Bixm-hart v, Tuttle, 11 L. II. A. 33, 59 Conn. 1, there can 
 be no doul»t that the rate of speed at which it was claimed the 
 plaintiff" was at the time going migiit have coutriluited directly to 
 the injury. The court could not properly have ruled out the evi- 
 dence, but it was the exclusive province of the jury to determine 
 at what s])eed the plaintiff was going, and whether it was within 
 the })rohibitory ordinance, and if so. whether the illegal act con- 
 tributed to the collision. The court did not allow the question to 
 ^o to the jury in this light, but only a.> mere evidence of negli- 
 gence; and therein the court was (h-clared on appeal to have 
 erred. The difference between the iiih- of law as laid down by the 
 court and that insisted on by the defendant as the true rule, is 
 cleai-ly shown in a recent well considered case.' The plaintiff" 
 brought his action to recover for injuries, received while sitting 
 uj)on his cab. from the negligent driving of a wagon against it by 
 ;^i sei'vant of the defendant coi-poration. There was evidence 
 tending to show that at the time of the accident he was violating 
 an ordinance by waiting in a street witliout ])hi('ing his vehicle 
 and horse lengthwise with tiie slri'ct, as neai" as ])ossible to the 
 
 *j\t'irro7/ili V. JJox/im I'lotedire Dtjuirtineut, New Eng. I{ep. 282, 146 Mhsh. 
 «0().
 
 TRAVKLING ON SUNDAV. 539 
 
 sidewalk, aii«l that tliis illeo^al eoiKlnot (^i>!itril)nto<l to the injury. 
 The question for review, as in the case aI»ove, rehited to tlie cor- 
 rectness of the instructions given to tiie jury hy the presiding 
 judge as to the effect of the plaintiff''s unlawful act upon bis 
 right to recover for the injury received. In discussing the ques- 
 tion tlie court says: ''As a general rule, in deciding a question 
 in relation to negligence, each element which enters as a factor 
 into one's act to give it character is to be considered in connection 
 with every other, and the result is reached by considering all 
 together. But, for reasons which will j)resently appear, illegal 
 conduct of a plaintiff directly contributing to the occurrence on 
 which liis action is founded is an exception to this rule. Such 
 illegality ma}- be viewed in either of two aspects. Looking at the 
 transaction to which it pertains as a whole, it may be considered 
 as a circumstance bearing upon the question whether there was 
 actual negligence; or looking at it simply in reference to the vio- 
 lated law, the act may be tried solely by the test of that law. In 
 the latter aspect it wears a hostile garb, and an inquiiy is at once 
 suggested whether the plaintiff, as a transgressor of the law, is in 
 a position to obtain relief at the hand of the law. In the iirst 
 view, the illegal coiulnet comes within the general rule just stated; 
 in the second it does not. This disthiction has not always been 
 observed." The court then refers to decisions in different states,' 
 and continuing: savs: "No case has been brouo-ht to our atten- 
 tion, and upon cai-eful investigation we have found none, in which 
 a plaintiff" whose violation of law contributed directly and proxi- 
 mately to cause him an injury, has been permitted to recover for 
 it; and the decisions are numerous to the contrary." " The court, 
 after cithig some of the cases which plaintiffs illegal conduct has 
 been declared to be only incidental to the case, aiul not an 
 essential of it,' concludes as follows: '* But whatever criti- 
 •cisms may have been made upon the decisions or the assump- 
 
 Ulosworth V. Swansey, 10 Met. 363; Jones v. Andoeer, 10 Allen, 18; Steele v. 
 BurklMvdt, 104 Mass. 59: .UcOrathv. Merwin, 112 Mass. 467; Davi-i v. 
 Guarnieri, 13 West. Kep. 438, 45 Ohio St. 470. 
 
 ^nall V. Ripley, 119 Mass. 135; Banks v. UigUand St. R. Co. 136 Mass. 485; 
 Tattle V. Lawrence, 119 Mass. 278; Lyons v. Dexotelk, 124 Mass. 387; 
 Deland v. Lowell, 3 Allen, 407; Steele v. Burkhardt, 104 Ma<5S. 59; Damon 
 V. Scituate, 119 Mass. 66; Marble v. Ross, 124 ]\[ass. 44; Smith v. B<>st^)n dfc 
 M. R. Co. 120 Mass. 490; Hall v. Corcoran, 107 Mass. 251. 
 
 ^Qregg v. Wymaa, 4 Cash. 322: Hall v. Corcoran, 107 Mass. 251.
 
 540 feUND-VY TKAFFiC AND TKAKFIC OVKK OTHKK KOADS. 
 
 tions in certain cai^es, that illegal action of a plaintiff con- 
 tributed to the result or was to be treated as a concurring cause, 
 or upon language in disregard of the distinction between a cause 
 and a condition, there has been none upon the doctrine that when 
 the plaintiff's illegal conduct does directlj' contribute to his injury 
 it is fatal to his recovery of damages." ' 
 
 But a railroad company cannot defend against an action for 
 negligently causing the death of a brakeman by failure to furnish 
 safe appliances, on th§ ground that he was killed on Sunday while 
 workino; in violation of the Sundav huv." That a horse was hired 
 on Sunday will not constitute a defense to an action for negligence 
 resulting in his injury.^ Where, under a regular business arrange- 
 ment of connecting earners, certain goods were deposited on Sunday 
 on its regular trip in the warehouse of a railroad company, where they 
 were burned the same day, the)-e is no authority in any court to de- 
 clare the goods forfeited, even admitting that the acts of landing 
 and depositing the goods, and of opening and closing the warehouse 
 on Sunday were within the pn^liibition of the statute, against 
 labor on the Sabbath. Having elected to receive the goods, sub- 
 sequent custody at least was not unlawful, but the ordinary liabil- 
 it}' was attached to the custody.* Wiiere transportation of goods 
 is not forbidden on Sunday, if the currier announces itself as- 
 
 ^Louisville, N. A. & C. 11. Co. v. Buck, 2 L. K. A. 520, 116 Ind. 566. 
 
 ^Harrison v. Marshall, 4 E. D. Smith, 271. 
 
 ^Poxchaian S. B. Co. v. Appomattct R. Co. 65 U. S. 24 How. 247, 16 L. ed. 682^ 
 
 *Merchant.i Wharf Boat Axko. v. Wood, 64 Miss. 661. AVrongdoers though 
 responsible to tlie parties injured or to the authorities whose laws are 
 violated, are still to be protected against the negligent or wrongful acts 
 of others. Thev are not out laws. Carroll v. Statcn Island B, Co. 58 N. 
 Y. 126; Philadelphia, II'. & B. R. Co. v. Lehimin, 56 Md. 209; Louisville^ 
 JV. A. & C. R. Co. V. Frawl(u,'7 West. Rep. 44, 110 Ind. 18. That trans- 
 porting cattle on Sunday may have been a violation of law, is no de- 
 fense to the carrier for his negligently injuring them. PhiUuMphia, W. 
 & B. R. Co. V. Philadelphia A- U. Be G. S. T. B. Co. 64 U. S. 209, 16 L. 
 ed. 4:};3; Mohna/ v. ('<K>k, 26 Pa. 342; Sutton v. Waturatosa, 29 Wis. 21; 
 Bird V. llulhrook, 4 Biug. 62H. A statute forbidiug work on the Lord's 
 day and rendeiing the nuistei and marineis of a ship liable to a penalty 
 for commencing a voyage on Sunday, will not protect the ship from 
 paying damages for a coflision tliiougli its fault. Philadelphia, W. & B. 
 R. Co. V. Philadelphia t<; H. Be G. S. T. B. Co. supra. Carriers of pas- 
 sengers having their boate used on Sunday, and receiving persons on 
 board, are liable for personal injuries suffered I)}- them from the negli- 
 gence of the carriers' .servants, notwithstanding the statute respecting 
 travel on Sunday. Ijanders v. Staten Island R. Co. I'S Abb. Pr. N. S. 
 338; Carroll v. Staten Island R. Co. 58 N. Y. 126.
 
 TRAVELIXG O^' SUNDAY. 541 
 
 doing such work on that day, it will be liable for negligent fail- 
 ure.' 
 
 The fact that a j)erson was traveling on Sunday, in violation of 
 an Act concerning vice and inunorality, does not preclude hitn 
 from maintaining an action for damages for personal injuries re- 
 sulting from negligence of the carrier.'' 
 
 While a state has jurisdiction to try and ^lunish offenses against 
 its Sunday laws, connnitted by persons engaged in carrying passen- 
 gers over navigable waters of the United States lying along its 
 boilers, between different points within its territory, and a steam- 
 boat pilot who is employed upon a boat engaged in carrying pas- 
 sengers to and from pleasure parties on Sunday is within the pro- 
 visions of a statute providing for the punishment of persons who 
 are found on that day at common labor or engaged in their usual 
 avocations, works of necessity and charity alone excepted,' yet 
 a state statute which prohibits the running of through passen- 
 ger trains on Sunday, is in conflict with article I, section 8, of the 
 Constitution of the United States, vesting in Congress the power 
 to regulate commerce among the several states, for the police 
 power of the state cannot be exercised over the interstate trans- 
 portation of subjects of commerce.* 
 
 Whenever the subjects over which a power to regulate com- 
 merce is asserted are in their nature national, or admit of one 
 uniform system or place of regulation, they may justly be said to 
 be of such a nature as to require exclusive legislation by Congress.' 
 
 In State FreigJd Tax Case, 82 U. S. 15 Wall. 232, 21 L. ed. 
 146, it is held that transportation of passengers or merchandise 
 through a state or from one state to another was in its nature 
 national, so that it should be subject to one uniform system or 
 plan of regulation, under the control of one regulating power. If 
 a state has no power to tax freight or passengers passing through it, 
 
 ' Virginia v. Chesapeake & 0. R. Co. 3 Inters. Com. Rep. 398. 
 
 Welatcare, L. & W. R. Co. v. Tmutwein, 7 L. R. A. 435, 52 N. J. L. 169. 
 
 See 7iote to Louisville, N. A. & C. R. Go. v. Buck (lad.) 3 L. R. A. 520. 
 ^Dugan v. State (Ind.) 9 L. R. A. 321. 
 *Boioman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, citing 
 
 Cooley V. Port Wardens of Philadelphia, 53 U. S. 12 How. 299, 13 L. ed. 
 
 996; Crandall v. Kemda, 73 U. S. 6 Wall. 42, 18 L. ed. 746. See also 
 
 Ball V. DeCuir, 95 U. S. 485. 24 L. ed. 547. 
 
 »Rev. Stat. §§ 5258, 4278, 4279.
 
 542 SU^'DAY TKAFFIC AND TRAFFIC OVER OTHER ROADS. 
 
 or to or from or into aiiother state, much less would it have the 
 power directly to regulate such transportation, or to forbid it 
 altogether. Congress has legislated on this subject,' and the 
 Supreme Court of the United States has held that, so far as these 
 regulations extend, they certainly indicate the intention that the 
 transportation of commodities between the states shall be free, 
 except where it is positively restricted by Congress, or by the 
 states in particular cases by the express permission of Congress. 
 Hon-action by Congress in regulating transportation between the 
 states is equivalent to a declaration that it shall remain free and 
 untrammeled. The police powers of a state cannot be exercised 
 over a subject confided exclusively to Congress by the Federal 
 Constitution.'^ 
 
 Commerce betAveen the states has been confined exclusively to 
 Congress. Transportation of goods between states is commerce 
 between states, and a law which stops, even for a limited time, 
 transportation between the states is a regulation of interstate 
 commerce and unconstitutional. Where the regulation in any 
 way aflt'ects the freedom of traflic among states, as by interfering 
 with the business of an express company in the transmission of 
 express in transit through a state, it is bad.'* 
 
 ^*Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238. This authority 
 answers the doubt expressed in State v. Baltimore d> 0. M. Co. 24 W. Va. 
 783. 
 
 ^'-Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 471, 24 L. ed. 527, 530; 
 
 Walling v. Michigan, 110 U. S. 446, 29 L. ed. 691. 
 ^ Adams Exp. Co. v. Board of Police, 65 How. Pr. 72; Wabash, St. L. & P. R. 
 Co. V. Illinois, 118 U. S. 557, 80 L. ed. 244. See also Bobbins v. Shelby 
 County Tux. Dist. 120 U. S. 489, 30 L. ed. 694. See also, as persuasive 
 in this nialter, Leloup v. Poi-t of Mobile, 127 U. S. 640, 32 L. ed. 311; 
 Western U. Teleg. Co. v. Alabama State Board of Assessment, 132 U. S. 
 472, 33 L. ed. 409; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128; Minne- 
 sota V. Barber, 136 U. S. 313, 34 L. ed. 455; Norfolk & W. R. Co. v. 
 Pennsylvania, 136 U. S. 114, 34 L. ed. 394; McCall v. California, 136 U. 
 S. 104, 34 L. ed. 391. 
 
 ♦Note. — Mr. A. H. Wintersteen discusses the subject, in 26 W. N. C. 290, as 
 follows: 
 
 " Where the exercise of the police power directly affects, by way of imped- 
 ing, restricting or prohibiting foreign or interstate commerce, the United States 
 Supreme Court, not only lately, but almost uniformly for many years, has in- 
 sisted that the state law should fall. In Henderson v. Wirkham, 92 U. S. 
 259. 23 L. ed. 543; Chy Lung v. Freeman, 92 U. S. 275, 23 L. ed. 550; and New 
 York V. Compogiiie Generate Transatlantigve, 107 U. S. S^, 27 L. ed. 383, it was
 
 ort.KATi>G o\ j;k line ok ANOTiiEii cAKiaiac 540 
 
 I 150. OpevaMn^ over Line of Another Carrier. 
 
 It is practically a nniversal rule, in this country, that an or- 
 iginal incorporated company cannot, in tlie absence of special 
 
 held that obstructions to the admission info a state of passengers — subjects of 
 foreign commerce — were not to be justified as regulations of internal police. 
 And the principle of these cases was applied to interstate commerce in Ilannihal 
 & St. J. R. Co. V. Eusen, 95 U. S. 4G5, 24 L. ed. 537, where the prohibition of 
 the admission into Missouri of Texas cattle, during a certain portion of the year, 
 was held an unauthorized police measure because of its antagonizing the com- 
 merce clause. It was decided in Hall v. De Cuir, 95 U. S. 485, 24 L. ed. 547, 
 in considering the effect of a statute of Louisiana upon the transportation and 
 intercourse of persons between the states, that the state could not, by police 
 regulations, give equal rights in conveyances passing between states to persons 
 of color and white persons. In ^Yahash, St. L. & P. R. Co. v. Illinois, 118 U. 
 S. 557, 30 L. ed. 244, a statute of Illinois which imposed a penalty upon the 
 carrier, for charging more for a shorter than for a longer distance, was held 
 void as applied to cases of shipment from points in the state to points without, 
 even as to that portion of the transit which lay whollj' within the state. In Rob- 
 bins V. Shelby County Tax. Bist. 130 U. S. 489, 30 L. ed. 694, and Anlier v. Terns, 
 128 U. S. 129, 32 L. ed. 368, it was held that the state could not impose a license 
 tax upon drummers engaged in selling goods for persons residing in other 
 states, although the same tax was imposed on all drummers, whether employed 
 by residents or nonresidents. The theory upon which the tax in these cases was 
 stricken down, in the absence of discrimination against nonresidents, was that 
 the tax upon occupation or sale, being a burden on the occupation or sale, 
 directly touched, by way of regulation, interstate commerce. In the course of a 
 very accurate summary of the decided law of the commerce clause in the Rob- 
 bins case, the court observed that the state's broad taxing power could not be 
 exercised upon property imported into a state from abroad or from another 
 state, and which had not yet become part of the common mass of property 
 therein. The decision in Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, the 
 •' Original Package Case," asserts a similar doctrine as to the police power. 
 The case is the direct and logical outcome of Bowman v. CJdcago <& N. W. R. 
 Co. 125 U. S. 465, 31 L. ed. 700, decided in March, 1888. It was there ruled 
 that a state could not prohibit the introduction into its borders of intoxicating 
 liquors, which were generally recognized as articles of commerce. It was 
 forcibly pointed out that a state could not be permitted to declare for itself 
 what should be articles of commerce proper for admission into its borders. The 
 necessity for this declaration appears when we consider the advanced position 
 the court had previously taken as to the police power in Powell v. Pennsylvania , 
 127 U. 8. 678, 32 L. ed. 253. This case decided that that power, exercised over 
 subjects wholly within the jurisdiction of the state, was broad enough to legalize 
 the destruction of property deemed by the legislature deleterious to the public 
 welfare, though not generally conceded to be so. The " Oleomargarine Case" 
 is strong authority for the position that a state legislature may say what shall 
 and what shall not be property entitled to the countenance and protection of its
 
 544 SUNDAY TR.VFFIC AND TRAFFIC OVKK OTHER ROADS. 
 
 statute authorizing an exemption, devest itself of responsibility 
 for the torts of persons operating its road, by transferring its cor- 
 porate powers or leasing the road to them. Unless specially 
 authorized by statute to lease its road, a railroad caimot, by so 
 doing, defeat its obligations to the public, or escape the liability 
 which the law imposes for torts, although committed by its lessee.' 
 A contract between a railroad and a construction company, 
 allowing the latter company to operate* the road and receive its 
 earnings for a certain time, does not relieve the railroad company 
 from liability for the negligence of the construction company in 
 carrying passengers.* 
 
 A railroad company cannot, without statutory authority, devest 
 itself of any duty imposed by its chartei- or the general laws of 
 the state, by leasing its road to another.' The corporation cannot 
 escape the performance of any duty or obligation imposed by its 
 charter or the general laws of the state, by a volnntary surrender 
 of its road into the hands of lessees.* It cannot transfer or lease 
 the right to operate its road, so as to absolve itself from its duties 
 to the public, without legislative authority; nor will a lease duly 
 authorized by law release the company from a failure to discharge 
 its charter obligations, unless the law giving the power contains a 
 provision to that effect.* It cannot by its own act absolve itself 
 from its proper obligations without the consent of the legislature. 
 It is liable for injuries to its jiassengers, caused by the negligence 
 of another comj^any which it allows to use its road.' 
 
 laws. If the decision in Bowman v. Chicago <fc X. W. R. Co. had been the other 
 way, any state, if the conditions governing as to its local policy should warrant, 
 <iould practically keep without its borders almost any recognized commercial 
 article manufactured in other states. This, it was observed, would defeat the 
 very purpose of the commerce clause that state restrictions on commerce should 
 not exist." See Virginia v. Chesax)eakc & 0. B. Co, 3 Inters. Com. Rep. 398. 
 
 ^Lakin v. Willamette Valley t6 C. R. Co. 13 Or. 436; BaMey v. St. Louis, A. 
 & T. II. R. Co. G West. Rep. 469, 119 111. 68. 
 
 ''Chattanooga, R. & C. R. Co. v. Liddell, 85 Ga. 482. 
 
 ^Nugent v. Boston, C. & M. R. Co. 5 New Eng. Rep. 870, 80 Me. 62. 
 
 * Washington. A. & G. R. Co. v. Broicn, 84 U. S. 17 Wall. 445, 21 L. ed. 675. 
 
 ^Central & M. R. Co. v. Morris, 68 Tex. 49. 
 
 *BaMey v. 8t. Louis, A. <& T. II. R. Co. 6 West. Rep. 469, 119 111. 68; Single- 
 ton V, Southv.cHtern II. Co. 70 Ga. 464; Washington, A. & O. R. v. Broton, 
 84 U. 8. 17 Wall. 445, 21 L. ed. 675; Macon tfc A. R. v. Maijes, 49 Ga. 355; 
 Nelson v. Vermont & C. R. Co. 26 Vt. 717; Ohio & M. R. Co.y. Dunbar, 
 20 111. 623.
 
 Ol'KKATlXCi OVKU LINE OF ANOTHER CAKKIER. 545 
 
 It follows that wliilo a ticket might l>c ihsuoj in the name of 
 the operatino- (Mimpany, yet a liahiiity would exist as a^^ainst tlie 
 ^corporation constructing and owiiini>- the road, even though the 
 operating company might also be liable.' 
 
 A statute authorizing a railroad company to lease its rail- 
 way, and providing that the lessee company shall he liable to the 
 same extent as the lessor company was, does not discharge the 
 lessor coin])any from any of its corporate liabilities." Yet the 
 lessee of a railroad is subject to all tiie statutory duties, obliga- 
 tions and restrictions imposed upon the leasing company.* 
 
 In Nehon v. Yerinoxt dc C. Ii. Co. 2<i \'t. TIT, Judge Red- 
 tield, in -writing the opinion of the court, says : " The lessors 
 must, at all e\ents, be held responsible for just what they expected 
 the lessees to do, and possibly for all which they do do, as their 
 general agents; for the public can only look to that corporation, 
 to whom they have delegated this portion of public service. Cer- 
 tainly they are not bound to look beyond them, although they 
 may doubtless do so."* 
 
 A covenant in a lease binding the lessee to keep a pier in good 
 -order and repair does not remove or affect the liability of the les- 
 sor to a third person. In the absence of any covenant frofti the 
 lessors of the occupants of a pier to keep the same in repair, as to 
 all defects arising after their tenancy had begun, there could be 
 Tio liability resting upon the lessors; but there might be a state of 
 facts which would cast liability upon the lessors also. The neg- 
 lect of this duty and the suffering of a pier to fall into a state of 
 decay, so as to become dangerous to those lawfully coming upon it, 
 is the creation of a nuisance.' A corporation will not be heard to 
 deny its liability to the ])ublic, sim})ly because it permits another 
 corporation to ctperate its line of road. It is liable to the same 
 extent and in precisely the same manner, under the circumstances 
 as if it were operating its own road." 
 
 Whollette V. Omaha & Ii. V. Ii. Co. 4 L. K. A. 135, 26 Neb. 159. 
 
 ^Chicago <fc N. W. Ii. Co. v. Crane, 113 U. S. 424, 28 L. ed. 1064. 
 
 ^Com. V. Pennsylvania R. Co. 10 Cent. Rep. 632, 117 Pa. 637. 
 
 •'See East Line & R. R. Co. v. Lee, 71 Tex. 538. 
 
 ^Swords V. Edgar, 59 N. Y. 34. See Ray, Negligence of Imposed Duties, 
 Personal, chapter 5. p. 112. 
 
 *Balsley v. St. Louis, A. & T. H. R. Co. 6 West. Rep. 469, 119 111. 68; Single- 
 ton V. Southwestern R. Co. 70 Ga. 464; Washington, A. db 6. R. Co. v. 
 35
 
 i>it) SU-NJJAY TKAFFIG AXD TKAKFIC OVER OTUEK RUADS. 
 
 A railroad companj which maintains a switch and employs the 
 persons who look after it is liable to a passenger injured in conse- 
 quence of the defective condition of such switcli, wliile riding 
 upon the train of another company which by j^ermission runs its 
 trains over the former's tracks.* Wliere injury results from the 
 negligence or unlawful operation of a railroad, whether by the 
 corporation to which the franchise is granted, oi- by another cor- 
 poration, or by individuals whom the owner of the railroad author- 
 izes or permits to use its tracks, the company owning the railway 
 and franchise will be liable." 
 
 A railroad company does not a^■oid responsibility for an injury 
 caused by the negligence of the agents or servants of another 
 compaii}'. or of a natural person, by leasing or voluntarily sur- 
 rendering its property and franchises without competent author- 
 ity.^- A railroad company whose road is operated by a lessee in 
 the name of the lessor is liable to third persons for the lesseeV 
 negligence, unless absolved therefrom by legislative authority.* 
 
 It was held in a Texas case that a railroad company is not ex- 
 cused from liability to a passenger Avho is put off from a train 
 on its road by the fact tliat the train was being operated by 
 another company to whicli the road was leased." And in 
 Minnesota where a railroad company's train by arrangement 
 witli another company, regularly entered and departed from 
 the depot of the latter, and it entrusts to the latter the business 
 of liandling and checking the baggage of its passengers, and 
 
 Brown, 84 U. S. 17 Wall. 450, 31 L. ed. 677; Macon d- A. B. Co. v. Mai(e 
 
 49 Ga. 355: JVelsoav. Vermont tfe G. R. Co. 20 Vt. 717; Ohio cfc M. R. Lo 
 
 V. Dunbar, 20 111. 623; Pierce, Am. Railroad Law, 244; Pierce, Railroads, 
 
 283; lUinoiH Cent. R. Co. v. Barron, 72 U. S. 5 Wall. 104, 18 L. ed. 594; 
 
 Redf. Railways, 590. 
 \Stodder v. Mw York, L. E. & TF. R. Co. 50 Hun, 221, aff'd in 121 N. Y. 
 
 655, mem. 
 ^FennHyhania Co. v. Kllett, 132 111. 654, citing Leslier v. Wabash Nav. Co. 14 
 
 111. 85; Chicago, St. P. & F. D. L. R. Co. v. McCarthy, 20 111. 385; Ohio & 
 
 M. R. Co. V. Dunbar, 20111. 623; Illinois Cent. R. Co. v. Firmigan, 21111. 
 
 646; niinois Cent. R. Co. v. Kanouse, 39 111. 272; Toledo, P. & W. R. Co. 
 
 V. Ritmbold, 40 111. 143; Pittubunj, C. & ISt. L. R. Co. v. Campbell, 86 111. 
 
 443; Wabanh, St. L. cfc P. R. Co. v. Shucfclet, 105 111. 364; Baldey v. St. 
 
 Louis. A. <fc T. II. R. Co. 119 111. 68. 
 'Rome dt D. R. Co. v. Chanteen, 88 Ala. 591; Ricketts v. Birmingham St. IL 
 
 Co. 85 Ala. 601. 
 *BrufCoe v. Southern Kanm.H R. Co. 40 Fed. Rep. 273. 
 *Ea8t Line <fe R. R. Co. v. Lee, 71 Tex. 538.
 
 nl'KKATlNG OVKK i.liSK OK ANolllKK CAKKlKi:. 547 
 
 funiisliing; its own checks tliercfor, the latter company must he 
 deemed -tlie agent of the tirst named company in r('s[)cct to such 
 business.* 
 
 But wheiv a railway, under due authority of law. has leased its 
 line to another railway, the lessor railway is ixjt liable for torts 
 committed by the lessee railway in the opei'ation of the line.* A 
 railroad company which, under authoi'ity of an express statute, 
 has made an agreement with another company whereby the other 
 company is to have full control of the manag-ement, operation, 
 and control of trains over its road, and be resi)onsible for the neg- 
 ligence of the employes thereon, the gross receipts l)eing shared 
 between them, — is not liable to a passenger for injuries from the 
 negligence of employes in charge of a ti-ain.^ 
 
 In the Act of Congress of July 4, 18S4, giving tlie Southern 
 Kansas llailroad C^ompany the right to build its road through 
 Indian country, the clause declaring that it sliall accept the right 
 npon a condition '^jinding upon itself, its successors, and assigns," 
 does not impliedly confer the power to lease the road.'' 
 
 Where a railroad company chartered by on(^ stat e pei-mits a 
 foreign railroad company to operate a ]jart of its road in that 
 state, nnder a verbal ari-angement, and the two railroads form 
 a continuous line through and beyond the limits of tliat >tate. the 
 domestic company will be liable for injuries sustained on that 
 portion of its road so operated by the foreign company. A 
 railroad company chartered by a state cannot, without dis- 
 tinct legislative authoiity, by lease or any other contract or 
 arrangement, turn over to another company its j'oad and the use 
 of its franchises, and thereby exempt itself from responsil)ility foi' 
 the conduct and management of the road.^ 
 
 ^Ahlbeck v. St. Paul, M. <& 31. R. Co. 39 Minn. 424. 
 
 ^Virginia M. R. Co. v. WashiiK/ton, 7 L. K. A. :]44, 86 Va. 629; Mnhoney v. 
 
 Atlantic & St. L. R Co 63 .Me. ()8; Ditchett v. Spin/ten D'tyiHl & P. M.R. 
 
 Co. 67 N. Y. 425; Singleton v. Soutlure^teni R. Co. 70 Ga. 464, 21 Am. A: 
 
 Eng. R. Cas. 226; Langley v. Boston & M. R. Co. 10 Gray, 103. 
 'PMlips V. Northern R. R. of New Jersey, 62 Ilun, 233. 
 ^Briscoe v. Southern Kansas R. Go. 40 Fed. Rep. 272, 40 Am. & Eng. R. 
 
 Cas. 599. 
 *Bicketts V. Chesapeake d- 0. R. Co. 7 L. R. A. 354, 33 W. Va. 433, 41 Am. 
 
 & Eng. R. Cas. 42. See also Rome cC B. R. Co. v. Chasteen, 88 Ala. 591 , 
 
 40 Am. & Eng. R. Cas. 559; Briscoe v. Soutliern Kansas R. Co. 40 Fed. 
 
 Rep. 273. 40 Am. & Eng. R. Cas. 599; Bromi v. Hannibal & St. J. R. Co. 
 
 27 Mo. App. 394: McCoy v. Kansas City, St. J. dt C. B. R. Co. 36 Mo. 
 
 App. 445.
 
 548 SUNDAY TRAFFIC AND TRAFFIC OVER 0THP;K KOAD8. 
 
 The appointment of a nominal receiver who takes no part what- 
 ever in the management of a raih-oad, except to receive the net 
 income belonging to the company, does not relieve the coin])any 
 or other companies jointly liable with it, from liability for dam- 
 ages caused by the operation of the road. A railroad company 
 does not escape liability for damages occasioned by the conduct 
 of the road, on account of the appointment of trustees under a 
 deed of trust, unless they conducted the road to the entire exclu- 
 sion of the company, and this is done so notoriously that it may 
 well be presumed to be known to the public, and the trustees 
 were not appointed by the procuration or assent of the company.' 
 
 Even exemplary damages may be imposed on the lessor of a rail- 
 road, because of the reckless C( induct of servants of the lessee in 
 the management of a train by reason of which a person received 
 personal injuries." The liability of a railway company for exem- 
 plary damages does not depend on the ability of the company to 
 keep its road in such condition that it can be operated with safety 
 to passengers.^ 
 
 § lol. LiaMUty of Lessee of Railroad. 
 
 It is well settled in pi'actice and Ijy well known decisions, that 
 the lessees of railroads are liable to the same extent as the lessors 
 would have been while tliey continued to operate the road." One 
 who superintends, although gratuitously, and not under any con- 
 tract, work done on laud of another, and through whose negli- 
 gence, as well as that of such other, damage is done to a third 
 ])er6on by the work, is liable therefor in an action by such third 
 person against him, and such other jointly.^ There can be no 
 question that a mere intruder into the franchises of a railroad cor- 
 poration who should continue to use it for his own benefit, wouhl 
 be lial>le to passengers and to the owners of freight who employ 
 
 ^ Jones V. Pennsylvania R. Go. S Mackey, 178. 
 
 Ulart V. Charlotte, G. cfc A. It. Go. 10 L. R. A. 794, :« S. C. 427. 
 
 ■Texan Trunk R. Go. v. Johmon, 75 Tex. LIS. 
 
 *Gom,. V. PennHylmnia R. Go. 117 Pa. 637. 
 
 >> nawksworth v. T/ioinpgon. 98 Mass. 77.
 
 JOINT LSK OF 1«>AI) i;V ( AliKJKKS. 5-4-9 
 
 Mill to the same extent precisely as the company itself, while con- 
 tinuing the same business. Any other view of tlie lial)ility of such 
 intruder wouki be to allow liim to all(;ge his (jwn wi'ong in defense. 
 It would be per])le\ing in the extreme to require strangers 
 suffering injury through the negligenee of operatives under 
 a carriers control, to look l)eyon(l the pai-ty exercising such con- 
 trol. The party having this independent control is, in general, liable 
 for the acts of those under such control,whether of contract or not. ' 
 
 Wliere a i-ailroad comj)any runs over the line of another road, 
 it has the same duty and is under the saine obligations relating to 
 its passengers, as bind it over its owji line." Where the beneilcial 
 ownership and management of a railroad is with a new company 
 that has purchased it, although the foi-mtM- owners remain in nom- 
 inal ])ossession, both or eithei" can he made liable; for injuries 
 caused by negligence in its management.' 
 
 A railway comjmny 0})erating its trains over another's road at 
 the time of an accident is liable at common law as a conmion car- 
 rier,* If a ]>ilot has actual conti'ol of a train going over a railroad. 
 butbcl(»nging to another road, his em])loyers are liahle for an acci- 
 dent due to his m-gligencc. even if the com])any owning the train is 
 also lial)le.'' 
 
 If a railroad ci>mpany is using tracks belonging to a third party, 
 and the dangei'ous character of such tracks might have been dis- 
 covered by the exei'cisL* of due care, it will be liable for an acci- 
 dent occasioned thereby and I'esulting in the death of a passenger. 
 M'hether the defect was in the oi'iginal construction of the road, or 
 was due to the failure of tiic owner to make repaii's, oi" however 
 otherwise it may ha\e been caused.* 
 
 § lo J. Joint rse of iloiul hij Cai'i-i crs. 
 
 Wliei'e the le.vsor resiM'ves a I'iglit to occupy a poi-ti(.»n of a pier, 
 
 ^Spi'ague v. Stnith, 2J> Vl. 4:^1. 
 
 •'Self V. London, B. a- .S'. V. It. Co. 12 L. T N. S. 179; WIdU' v. Fitchbury 
 
 R. Co. 186 Mass. H24: ,)fcElroi/ v. ]Vo.t/iy>i <(• L. R. Corp. 4 Cush. 400; Ea- 
 
 tan V. Bostin, tt- L. H. i.h. 11 Allen, 505; Uichanhon v. Great K(i.\tern R. 
 
 Co. L. R. 10 C. P. 48(5; Steiler v. C/timgo d- X. W. R. Co. 46 Wis. 502; 
 
 Wab,i.'<h, Si. L <(• P. R. Co. v. Peyloa, 1U6 111. 534. 
 ■'Lockhart v. LitUe Rock tfc .)/. R. Co. 40 Fed. Kep. (531. 
 * Eureka Springs R. Co. v. TiminoriH, 51 Ark. 459. 
 *Joni» V. Pennsylcdnia R. Co. 8 Mackey, 178. 
 ^T/ittlt'johu V. Eitchburg R. C*. 2 L. R. A. 502, 14S Mass. 478.
 
 55U ^^L^1>AV TKAFKIC AND TKAl' KJC OVKK OTHKR KOADS. 
 
 wliicli lie lias leased, there renmins a joint and several lia1)ility for 
 injuries caused from nou-repair of the pier on both the lessor and 
 lessee. A party in actual possession of a city i)ier is responsible in 
 damaores for injuries received on account of its bad condition, irre- 
 spective of the question of ownership and in suits for such dam- 
 ages, the defendant's possession bein^^ shown, the question of title 
 does not arise. An agreement between A aiid'B, joint possessors 
 of a pier, that B shall keep it in good repair is no defense to an 
 action against A by a third pai-ty to recover damages arising 
 from its defective condition. AVhere the owners of a pier 
 in Kew York City leased it to a third party who agreed to keep 
 it in as good repair as it then was, reserving to themselves a right 
 to use and occupy as much of the pier as their business might 
 require, and under this agreement continued to use the dock, it 
 was held that this was a joint possession, rendering them jointly 
 liable with their lessee, for the death of a horse caused by the de- 
 fective condition of the pier.' 
 
 TJie negligence of the cari'ier may be of duties as owner of the 
 line, or it may be negligence in respect to cars; or it may consist in 
 neifliiience as to both, or in its user of them as a carrier. It is 
 only wliere the injury arises fr(»m neglect of their duty as carriers 
 using the lines or the cars of another company, and they have 
 undertaken a duty towards the plaintili" to see that he is carried 
 carefully as regards the other company, as wvW as tlieinselves, that 
 special diflfteulty arises. They can iiardly be expected to be 
 answeraljle for the negligence of another coni])any over whose 
 railway line, cars and employes they have no control: when they 
 have discharged their duty with care with regard to both them- 
 selves and to the (»ther company, they cannot perhaps be held for 
 negligence of the other company against which they could not 
 guard." 
 
 ^f'dHiKivcn V. Conklin, 1 Daly, 509. 
 
 "T/tomrut v. Rhymncy H. Co. L. \\. «j Q. B. 266, 40 L. .J. Q. B. 89; Birkett v. 
 WhUehaven Jvnclioa It Co. 4 Hurlst. & N. 730, 28 L. J. Excli. 348; Great 
 \\'(Kter7i li. Co. V. Blake. 7 Hurlst. & N. 987, 31 L. J. Exch. 346; Wrighi 
 V. MkWirul It. Co. 42 L. J. Exch. 89, L. It. 8 Exch. 137; Bmton v. North 
 Eastern It Co. L. li. 3 Q. H. 549, 37 L. .1. Q. B. 258; Foulkes v. Metro 
 polittin JHst. li. Co. \j. R. 4 C. P. Div. 267, 48 L. J. C. P. 555, 5 C. P. 
 DIv. 157.
 
 CHAPTER XXVir. 
 
 CARRIER'S IlESPONSIBILITY FOR BAGGAGE. 
 
 f 153. Carrier's LiahlUitii fur Loss of 1><((i()a(ie. 
 
 § 154. Act of God as ReleasiHy Carrier. 
 
 § 155, There must be a Delicerij of Bayyaqe to the Carrier. 
 
 a. Wliat Comes within the Term *' Passem/er's Baggayef* 
 § 150. lieiialafious Jies/rir/inr/ Lial/iliti/ for Barjyaye. 
 § 157. Termination of Lial)HHii. 
 § 158. Liability of Connectiny Carriers. 
 § 159. IJen on Bayyaqe for ('ha ryes; 
 § 160. Action for Loss of Bayyaye. 
 
 § ISS. Carriers LiaMlity for Loss of Ba^^age. 
 
 A carrier is liable, for the loss of the 1 »aii-iiaii;e of a passenger,' 
 even though fare was paid by another." The fare paid by a pass- 
 enger to a carrier includes transportation of his baggage; and the 
 carrier has a lien thereon for the fare, and may detain the same 
 until payment thereof.^ The term " luggage " as used in the civil 
 codes of tlie states, has the same meaning as the word "baggage."* 
 A railroad ticket entitling the ])urchaser to trans])(>i'rati<)n in the 
 the first class passenger coaches gives him a right to have his lug- 
 gage transported at the same time free of charge, l»ut does not 
 give the right to transportation of any meichandix' oi- pi'operty 
 not included in the tei'in " luggage." * 
 
 Uh'xon V. Richelieu Nav. Co. l.j Ont. A pp. Rep. (547, 39 Am. it Eiig. R. Cas. 
 425; Logan v. Pontc/i(ir(nnn 11. Co. 11 Rob. (La.) 24; Ikurl.infiv . Ilojffman. 
 6 Hill, ")86; Beunelt v. DuKon, 10 N. H. 481; Hopkiu.s v. Wmtrott. 6 
 Blatchf. 69: Central Trust Co. of JSeic York v. Wabanli, tit. L. tt- /'. R. Co. 
 39 Fed. Rep. 417. 
 
 ^Nvgmt V. Boxtoii, C. d: M. R. Co. .5 New Eng. Rep. 869, 80 Me. 62. 
 
 ^Jioberts v. Koehler, 30 Fed. Rep. 94. 
 
 *Pji»ter V. Central Pac. R. Co. 70 Cal. 169. 
 
 *Rome R. Co. v. Wiinljedy, 75 Ga. 316; WHsoii v. Grand Trunk R. Co. 56 
 Me. 60. 
 
 551
 
 552 cakkjkk's hkspoasiuimtv ><>k kaooaoe. 
 
 The responsibility of coaeli j)r(»pj-it!t(trs cun-yiiii^ passoTigerR 
 with their ba2:gag-e stands, as to the l)a|>;gai»-e, upon the (ji-dinary 
 footing of common carriers.* Tlie carrier's hability for the safe 
 delivery of baggage applies to omnibus proprietors;' and a street 
 car company will be equally liable for baggage delivered to it.* 
 
 In Clark v. Burns^ 118 Mass. 275, the court says: •• The de- 
 fendants, as owners of steamboats, carrying passengers and goods 
 for hire, were not innkeepers." But the law is Avell settled thar 
 carriers are the insurers of baggage in the same manner and to 
 the same extent as of goods or freight.* Their responsibility is- 
 that of insurers against all l(jss from whatever cause, except the 
 act of God, the public enemy, or the coJitiibutory negligence of 
 the passenger.* 
 
 A passenger purchased a round trij) ticket to Niagara Falls, 
 over the Mobile route, and there purchased over the New York 
 Central a round trip ticket to New York City and return, having 
 his baggage checked in New York to New Orleans, exhibiting 
 his ticket, but, througii mistake of the baggage master of the New- 
 York Central road, he received checks on a dilfereiit route — with- 
 out examining them. In an action it was ruled the passenger 
 can not maintain a claim against the New York Central road 
 for injury sustained l)y his baggage while being transported over 
 a route over which he held no checks.* A receipt by a carrier 
 between two points, of the baggage of a ]iassenger on another line 
 between the same points, who has paid no fare to the iii'st cari-ier, 
 is held not to constitute a special contract with the tirst carrier 
 rendering it liable for the loss of the baggage;^ but, on appeal, 
 this ruling was reversed, and the defendant was held, at least, 
 liable as a warehouseman under the facts of the case.* Where a 
 
 ^ChrMie v. Grigyn, 2 Campb. 8(i; Allen v. tSeimli, 2 Wend. 327. 841, 6 Wend. 
 335, 341; Clarke v. Gray, (5 East, 564; Orange County Bank v. Brown, t> 
 Wend. 85. 114, 119; Cole v. Goodwin, 19 Wend. 254. 
 
 ^Dibble V. Brown, 12 Ga. 317; Parmelee v. McAnlfy, 19 111. 55G. 
 
 ''Leviv. Lynn tt B. R. Co. 11 Allen, 300. 
 
 *Oakes v. Northern Pac. R. Co. 12 L. K. A. 318, 20 Or. 392. 
 
 ^Oakea V. Northern Pac. R.Co. 12 L. R. A. 318, 20 Or. 392; Butcher v. Lon- 
 don dk 8. W. R. Co. 16 C. B. 13; Great Wextern R. Co. v. Goodmaji, 12 
 C. B. 313; Macrow v. Great We.stern R. Co. L. li. G Q. B. 612. 
 
 *haacson v. New York Cent. c£ H. R. U. Co. 25 Ilun, 350. 
 
 -< Fairfax v. New York Cent. & II. R. R. Co. 5 Jones & S. 516; 8 Jones & S. 
 128. 
 
 * Fairfax v. Nrw York Cent. ,f // /,'. /,'. C„. 67 N. Y. 11. "
 
 CARRIER S I.IAIUMJ \' IXiK i.Obb Vk HAGCAOK. Oi)6 
 
 ticket was purchased h\ one route ami rlie ba^-^a^e — l)y mistake 
 of the railroad agent — delivei*ed to a)i<>ther railroad and trans- 
 ported to New Yoi'k and placed in its 1 )aoi.ajire room, and three 
 days later, mIumi the passengei- had learned that his baggage had 
 been carried by thc^ defendant's railway, he demanded it, and a 
 ])ortmantean conld not be found ; it was lu'ld in an action to recover 
 from the (k'fi'udant, that the delivi'ry of the baggage to the defend- 
 ant was tlie wrongful act of the railroad agent, who was not the 
 passeiigei'*s agent in any sense that would enal)le him to bind the 
 passenger l)y ]\\> act ; but that defendant, at least, incurred the lia- 
 bility of a ware]iou.>emaii and was bound to account for the baggage 
 in some way, when demand wa.-> made, and show that it had dis- 
 apjK'ared witJiout its fault.' 
 
 Where the tra\t'ler tenders liis trunks for ch(;cking, and is 
 ]-efused until ticki'ts art' procured, and duj-ing his absence to obtain 
 such tickets, the bai-yaiie is weiulu'd and i^laced in the l)ay:ii;a"re 
 car. and on his return the delivery of the checks is I'efused unless 
 extra compensati(»n is paid, ami t!u' passenger thereupon demands 
 the retui'ii of his baggage and this is also i-t^fused because incon- 
 venient, the c,';rrier is liable for con\ej'siou. Ihit, where the trav- 
 eler takes a train the same evening, under an arrangement with 
 the carrier by which he is to obtain his baggage without the checks, 
 this will be held as a resumption of control, leaving the carrier 
 liable only for nominal damages.'^ 
 
 The assurance to a passenger heaving the car for refreshments, 
 that his i)ei-sonal luggage will be safe, and its subsequent removal 
 during his absence into another car, the passenger upon his return, 
 noticing a pi»rtion of the baggage missing, will wari'ant a tinding 
 that it was lost tlir(»ugh the negligence of the carrier.' 
 
 Although a passenger has forfeited his right, by stopping over 
 in violation of the conditions of his ticket, if he is, nevertheless, 
 carried without objection, the carrier is bound for reasonable care 
 of his baggage." 
 
 Where bagiiage is delivered in one state to be transported to 
 anothei-, the ct»nti'act is iu>t controlled by statute of the state where 
 
 ^Fairfax v. New York Vent, tfc H. R. R. Co. 73 N. Y. 167. 
 ^McConnick v. Pennsylvania ('ent. R. Co. 80 N. Y. '60S. 
 ^Kinsley v. Lake SJwre <f- M. S. R. Co. 125 Mass. 54. 
 *SmitM V. Grand Tnmk R. Co. 35 U. C. Q B. 547.
 
 554 CAKKlKli's KK81'ONSIBlLH V K«»K l!A<i(iA(;K. 
 
 the carriag'C is initiated limitiiio; jvtkI dt'tiniiig the liahilitv of rail- 
 way companies for liaijg'age ; but the rig'hts of the parties are to 
 be determined by the laws of the state wlu're the deliveries are to 
 be made.' 
 
 § 154- -^ct of God as liel casing Carrier. 
 
 While a sudden or extraordinary Hood in a stream must be 
 regarded as an "aet of God," yet the carrier — in order to avail 
 itself of this exception to its liability — must use all reasonable 
 means to present the consequences of a sudden rise in the stream. 
 It M'ill be a question for the jury to detei'mine whether, after the 
 baggage had been received by the carrier, all reasonable and proper 
 means were used by the carrier, to avoid the consequences of such 
 tiood aud remove the baggage beyond danger. And. if any neg- 
 ligence is found chargeable to the carrier in this regard, it will be 
 answerable for all damages sntt'ered." The Johnstown iiood of 
 18S9. which was of such extraordinary character that a carrier 
 was not bound to anticipate or provide against it, and which came 
 with such suddeimess and power that ('sca])e from it was im[)()s- 
 sible, was an inevitalde accident i»r act of (iod in respect to the 
 loss of baggage on a railroad train. whciT the utmost care was exer- 
 cised by the agents and em]>loyes of tlu' cai-rici- to escape the dan- 
 gers of which they had knowledge or which tliey had reasonable 
 ground to apprehend," 
 
 § loo. There mast he a hrii rcrij of Baggage to 
 
 the Ca rricr. 
 
 It will )-elieve the carrier fi'oni its liability wheiv the passenger 
 <lisplays want of reasonable care over the pro])erty retained for 
 personal use under his immediate charge. Thus where a passeu- 
 g(!i' on a y)arlor car got oft" at a station foi* i-efreshments, leaving 
 propei-ty on her >ear wiiicli she did not put under the charge of 
 defendant or it> agents, and the article Mas stolen dni'ing her 
 
 HUirtix V. DeUtir.ire, /,. A- \V. /,'. Co. 74 N. Y. ] 1«. 
 hStrouMs v.Wabasfi. S/. I.. A /'. /.'. Co. 17 Fed. Kep. 209. 
 ''Longv. Pennx;/lr,ir,iu /{. Co. 14 L. I{. A 741. 1 Pa. Adv. 14<J.
 
 THERE MUST UK A DKI.I VKKY OF B\(Ui\GK TO THE CAKKIKR. 555 
 
 al»sence, such inattention was contributory negligence which would 
 defeat a recovery.* Where a connnon carrier undertakes to cai-ry 
 baggage without reward it is liable only as a gratuitous bailee iV»r 
 bad faith or gross JU'i2:li<>ence.' Where the carria^re is also o\ er 
 connecting lines, the liability for lost baggage must be dctcriMiniMl 
 as in case of through tickets over connecting roads. See section 
 158. 
 
 Leaving out of view any statute, railway companies ai-c, to be 
 regarded as responsil>le for the passengers' luggage whidi they 
 have taken under their control.* 
 
 The courts have held that, inasmuch as railroad com|)ani(-« have 
 voluntarily made tiieir baggage checks evidence in regard to the 
 delivery of baggage to them, the courts will hold sucii checks — 
 when in possession of the traveler — as evidence against the com- 
 pany of the receipt of the baggage." And, the delivery of a bag- 
 gage check by the carrier to the passenger will be treated as prima 
 facie evidence of the receipt of the baggage, and the burden of 
 proof is upon the carrier to show its non-receipt." Where, on the 
 production of a nickel plated check, the baggage master has testi- 
 fied that a check of that kind was never used on through baggage, 
 to his knowledge, it was propsr to inquire whether his positi( n 
 was such that he would have known if they had been so used." 
 
 Where articles of wearing apparel, wrapped in a shawl fastened 
 in a strap, and properly addressed, were handed to a porter with 
 the request that they be labeled and ])laced in the luggage \'au, 
 and this was refused, the porter insisting upon placing it in the 
 carriage with the plaintiif, notwithstanding the statement by tiie 
 passenger that such deposit would be at the risk of the carrier, 
 the package having been left by mistake in the carriage, the car- 
 rier was held answerable.'' 
 
 While the carrier will not be responsible for merchandise co- 
 
 » Whitney v. Pullman Palace Oar Co. 3 New Eng. Rep. 358, 143 Mass. 343. 
 •Jiice V. Illinoiit Cent. R. Co. 22 111. App. 643. See Gray v. Missouri Rimr 
 
 Packet C'. 64 Mo. 47; Flint & P. M. R. Co. v. Weir, 37 Mich. 111. 
 ^MacroiO v. Great Western R Co. L. R. 6 Q. B. 612; Co/ten v. Southeastern R. 
 
 Co. L. R. 1 Exch. Div. 217; L. R. 2 Excb. Div. 253; 40 L. J. Exch. 418. 
 ^Denver, iS. P. d- P. R. Co. v. Roberts, 6 Colo. 333. 
 ^Chicago, R. I. tt- P. R. Co. v. Clayton, 78 III. 616. 
 '^Lake Shore <fc Af. S. R. Co. v. Lassen. 12 111. App. 659. 
 ''Munster v. Sontheast^rn R. Co. 4 C. B. N. S. 676.
 
 miiiglod -svirli tlie jicrsoiial hiognge of tlie passenger, without 
 notice, yet, if the iiiercliaudise be carried openly and so packed 
 that its nature is obvious, and the carrier does not ol)ject to it, it 
 will, under t,onie of the authorities, be liable. The rule in England 
 as to delivery seems to be, that the luggage; of a passenger by railway, 
 Tliough never actually delivered to any servant of the company, 
 but kept by the passen -er during the journey, is nevertheless, in 
 the eust<jdy of the carrier so as to render it responsible for the 
 loss.' 
 
 Under tlie ordinary conti-act of carriay-e, articles of y-reat value 
 forming no part (»f the passenger's ordinary baggage or personal 
 ecpiipnient, carried about the person of the traveler, violenth" 
 taken from the ]>assenger by robbers, without gross negligence 
 or fraud on the })art of the carrier, will not render the latter 
 hable, although negligent in the exercise of the duty of jn-otect- 
 ing its passengers from violence." 
 
 The passenger retaining luggage in tlie car with him does so 
 under the implied condition that he will take ordinary care of it. 
 and where he leaves the car — not removing his baggage — -and 
 completes his journey in a dJlferent car, the carrier will not be 
 responsil)le for his l)aggage,- 
 
 But, if articles of personal luggage are retained by the passen- 
 ger exclusively within his own coiitnd, and are lost from the 
 negligence of the carrier or its sei'vants. and without fault of the 
 ])asse}iger, the carrier will be liable.* J\[any authorities hold that 
 under the law of carriei's, the baggage for which a carrier, as such, 
 is respoiisilile must be of the class that can with propriety be placed 
 in the baggage room of a steamer or must be delivered to the clerk 
 t)i the Ixjat or soim> otlicer authorized to receive it, and it does not 
 consist of such articles as the passenger necessarily keeps in his 
 possession, such as a hand-bag, wearing apparel about in's person, 
 a "comi)anion case,'''' for toilet articles, jewelry and the like, kept 
 
 Wreat Xorlhern 11. Co. v. Shepherd, 8 Excb. 30. 
 
 ■' WeH-H V. New York, X. H. d- H. B. Co. 73 N. Y. 50. 
 
 "Talley v. iJreat WeKtern H. Co. \j. H. 6 C. P. 44; Bcn/hehn v. Great Eastern 
 
 R' Co. L. K. 3C. P. Div. 221. 
 *Kuii<l('y V. Lake Shore tf- M. S. R. Co 125 Miss. 54: f,eCoiitenr v. London 
 
 <t- ,S'. W. R. Co. 6 rjesl & S. 961; Gamou v. Great Wevtern R. Co. 3 Grant, 
 
 Er iV App. U. C. \m.
 
 THEKE MUST BE A DKI.lVEJiV OK HACH.ACK To TIIK CA i;UI KU. OO i 
 
 in a state room, which is irnhx-kcd.' l>iit if has hvvw lichl that 
 ordinary bai^'i'-age may be taken to the state rooin, wlicii it can Ix; 
 locked, exce])t as aji-aiiist the pass(Miii;i'r carrier, and the lialtility 
 remain.' Perhaps the trne rnle is, that nnless tlie carrier indicatr 
 to the contrary, his provision of h>cks for the state rooms, will 
 authorize the passenger to keep tliereiii such articles of necessary 
 use, includiiii^ wearin^j apparel that niay be reqnired on the trip, 
 without release of the carrier's lial)ility. The duplicate key is a 
 possession of tlie room by the carrier and unh»ss the carrier be 
 guilty of contributor}' ueijliijence. as in leavini>' articles in an un- 
 locked room, this [)ossession is surticient to cluirge the carrier.' If 
 the carritu- omit any dutv of care, and this rcsnlt in loss of bag- 
 gao-e or what the passenger may pi'operly take on his joui-ney for 
 his necessities or convenience, tlie carrier will be lialdc 
 
 Where a passenger occn[)ying a berth in a, sleeping car Avas 
 roltbed of his pocketbook dni-ing the night while asleep, the fact 
 that the porter was fonnd asleej* in the early morm'ng. and that lie 
 was re(piired to be on duty for thirty-six honrs coiitiMn(>u>lv. and 
 that another larceny was conmiitted al)ont the same time, are e\i- 
 dence of negligence properly submitted to the jnry. Altliongh 
 the car company may not be liable as iii>iirer or bailcu'. yet the 
 law raises the dnty on the part of the company tu affor<l to tlie 
 ticket holder protection to himself and his property from danger 
 from thieves and otherwise.* 
 
 The measure of damages for negligence in snch cases extends 
 only to a passenger's clc^thing and personal ornanuMits, small 
 articles carried in the hand and a reasonable sum of mone\^ for 
 traveling expenses, considering his circumstances in life." Car- 
 riers, it has been said, do not undertake to carry and safely deliver 
 
 ^The R. E. Lee, 2 Abb. U. S. 49; Aian-ican SS. Co. v. nn^an, 83 Pa. 44(>; 
 
 Abbott V. Bnidstreet, 55 Me. 530; The Gryntdl Palace v. Vanderpool, 16 B. 
 
 Mon. 303: Clnrk v. Biirn.x, 118 Mass. 375. 
 ■Oore V. Norwich & N. T. Trannp. Go. 2 Daly, 354; Mudi/ett v. Bay State S. 
 
 B. Co. 1 Daly, 151; Mackiin v. New Jerney S. B. Co. 7 Abb. Pr. N. S. 
 
 329; Fan Horn. v. Kermit, 4 E. D. Smitb, 453. 
 
 "Oleason v. Ooodrich Transp. Co. 32 Wis. 85. 
 
 *Lewis V. Xeic York Sleeping- Car Co. 3 New Eng. Kep. 358, 143 Mass. 267; 
 
 See also Pullman Car Co. v. Oarduer, SPennyp. 78. 
 *Blum V. Southern Pulbnan Pidace Car Co. 1 Flipp. 500; Root v. New York 
 
 Cent. S. C. Co. 28 Mo. App. 200; Wilson v. Baltimore tt- U. li. Co. 33 lsh\ 
 
 App. 682.
 
 .558 CARRIKK S KESPOM?IJilJ.Hy FUK BAGOACtE. 
 
 the eit'eets of travelers not transferred into tlieir custody, and it 
 cannot be held tliat money in a passenger's clothing, worn daring 
 the day and placed under his pillow at night, is in the custody of 
 the cor]3oration which carries and furnishes travelers with berths 
 in sleeping coaches.' But a sleeping car company is bound to 
 have an einploye charged with the duty of carefully and continu- 
 ally watching the interior of the car while berths are occupied by 
 sleepers.* 
 
 A sleeping car company is not lial)le for money stolen by one of 
 its employes from a passenger on its car, except to the extent of a 
 sum reasonably sutficient for the expenses of the journey which 
 such a passenger is undertaking.' The extent of a carrier's lia- 
 bility concerning a passenger's baggage has been discussed by an 
 equally divided court in Michigan. A steamboat owner was sued 
 for property claimed to have- been stolen from a state room while 
 the passenger Avas asleep. The court below gave judgment for 
 defendant. Tlie opinion of two judges for reversal placed the 
 liability on the ground that the defendant was, as to the loss in 
 question, in the position of an innkeeper. The opinion in favor 
 of affirmance held he was not an innkeeper in fact, and that as 
 passenger carrier he was not so broadly liable as an innkeeper, and 
 only liable for articles placed in his custody. The case, therefore, 
 decided nothing beyond the fact that the liability for baggage i^ 
 not larger than tliat of an innkeeper, although in some respects 
 analogous.* It was subsequently held by that court that an inn- 
 keeper is not liable for loss by accidental fire.* 
 
 The carrier is not liable as insurer for the personal baggage of 
 passengers retained under the latter's independent control.* This 
 liability for loss of baggage extends only, according to some of the 
 cases, to such as is delivered to the care of the carrier or his 
 
 ^Garpenter v. New York, N. H. & H. R. Co. 11 L. R. A. 759, 134 N. Y. 53; 
 Leim V. New York 8. C. Co. 3 New Eng. Kep. 858, 143 Mass. 264. 
 
 ^Pullman Car Co. v. Gardner, 3 Pennyp. 78; Blnvi v. Southern Pullman 
 Palare (Jar (Jo. 1 Flipp. 500; (Jarpenter v. New York, N. U. d- H. B. Co 
 11 L. R. A. 75!), 124 N. Y. 53. 
 
 *JUinoi» Cent. B. Co. v. Handy, 63 Miss. 609. 
 
 *McKee v. Owen, 15 Mich. 115. 
 
 *Cutler V. Bonney, 30 Mich. 259. 
 
 *Talley v. (Jrtat Western li. 'o. \.. R H C. P 44, 40 L. .7. C. P. 9.
 
 THKKE MUST UK A DKI.IVKKV OF BAGGACjE TO TlIK CAPailER. 509 
 
 agents.* One who carries money upon a railmad train without 
 giving notice thereof to the coinj>any carries it at his own risk so- 
 far as the acts of thii-d persons, or even ordinary negligence on 
 the part of the company or its employes is concerned." Although 
 a carrier is not responsible for pei'sonal baggage kept by a passen- 
 ger in his exclusive control, yet it may render itself liable l)y 
 removing such baggage from one car to another without notice tt> 
 him, or for other negligence.* 
 
 Where a passenger in a raih'oad car in attempting to close an 
 open windi3w next her seat, dropped out through the window 
 upon the railroad a bag which she had in her hand and custody, 
 of the value of which she had not informed the company, and she 
 immediately told the conductor of the train of the loss and re- 
 quested him to stop the train in order that she might get the bag, 
 which he refused to do, and she despatched a messenger from the 
 next station about three miles distant, to recover the bag but 
 found that it had been stolen, and it and its contents were lost, 
 an action would not lie against tlie railroad company for the loss.* 
 A watch worn by a passenger on his person by day and kept 
 by him in his state room within reach for use at night, whether 
 retained upon his person or placed beneath his pillow, or in a 
 pocket of his clothing, hanging near him, it has been said, is not s« » 
 entrusted to the carriers' cnstody and control as to make them lia- 
 ble for it as common carriers." 
 
 A common carrier is liable, as such, for the personal baggage of 
 a passenger delivered to and received by it solely for transporta- 
 tion, and not for storage, although, for the convenience of the 
 
 ^Blanchard v. Isaacs, .3 Barb. 388; Fachird v. Oetman, 6 Cow. 757; The B. 
 E. Lee, 2 Abb. U. S. 51; Tower v. Uttca & S. R. Co. 7 Hill, 47; and see 
 Epps V. Hinds, 27 Miss. 657; Maclin v. Neic Jersey S. B. Co. 9 Am. Law 
 Reg. N. S. 239. 
 
 ^Rillis V. Chicago, R. 1. & P. R. Co. 72 Iowa, 228; First Nat. Bank of Green- 
 field V. Marrietta <£ C. R. Co. 20 Ohio St. 259; Weeks v. New Yoik, N. H. 
 & H. R. Co. 72 N. Y. 56. 
 
 ^Kinsley v. LaJce Slwre & M. S. R. Co. 128 Mass. 54. See Carpenter v. Nem 
 York, N. H. & H. R. Co. 11 L. R. A. 759, 124 N. Y. 53. 
 
 *Henderson v. Louisville <& N. R. Co. 123 U. S. 61-65, 31 L. ed. 92-94. 
 
 ^The Crystal Palace v. Vanderpool, 16 B. Men. 302; Tower v. Utica & S. R. 
 Co. 7 Hill, 47; Abbott v. Bradstreet, 55 Me. 530; Pullman Palace Car Cc 
 V. Smith. 73 111. 360; Weeks v. New York, N. H. <& H. R. Co. 72 N. Y. 
 56; Clark v. Burns, 118 Mass. 275. But see Del Valle v. The Richmond^ 
 27 La. Ann. 90.
 
 O60 CAKRIER's BESPONSIBII.ITY F<tK BAGGAGE. 
 
 carrier, the passenger consents to some delay in the transportation.* 
 If a party knowing the regulation of the railroad company, that 
 bao-wao-e should he received only for immediate carriage, agrees 
 with the earner's agents to take charge of his haggage as a matter 
 of his accommodation, without any direction as to slii]>ment, the 
 carrier is not res])oiisible for its loss. Where baggage is delivered 
 to a carrier to be shipped on the evening of the next day unless 
 directions are given to the contrary, after that time has passed 
 without receiving directions to the contraiy the baggage is held 
 for immediate shipment, and the liability of the carrier attaches.' 
 Although the relation of passenger and carrier nmst exist to render 
 the carrier resj^onsible for the loss of baggage, as a carrier,' yet the 
 passenger need net be upon the identical train with the baggage, 
 if he be prepared to receive it at its destination at the proper time.* 
 
 Where the passenger with the consent of the carrier, stops over 
 during the progress of his journey, and, with the knowledge and 
 consent of the carrier, permits his baggage to proceed, the respon- 
 sibility of the carrier continues for a reasonable time after the 
 arrival of the baggage at the point of destination." 
 
 A carrier is liable for the loss of baggage of an intending pas- 
 senger, delivered to it before purchasing a ticket on the night 
 before the train is to leave.' Carriers are liable for the loss of 
 baggage by theft, even when shipped as freight.^ A carrier deliv- 
 ering to and taking from a union depot company all its baggage, 
 makes such company its agent, and is liable for its negligence in 
 caring for and delivering such baggage for a reasonable time after 
 it comes into such company's possession.' , 
 
 hShaw V. Northern Pdc. R. Co. 40 Minn. 144. 
 
 ^Illinois Cent. R. Co. v. Tronsiine, 64 Miss. 834. 
 
 ^The Elvin Harheck, 2 Blatchf. 836; Fairfa.v v. Hew YorkCfnt. <t II. R. R. 
 
 Co. 8 Jones & S. 128, 67 N. Y. 11: CollinH v. Boston d- M. R. Co. 10 
 
 Cush. 506; Wilxon v. Grand Trunk R. Co. 57 Me. VS8;Graffa)nv. Boston 
 
 & M. R. Co. 67 Me. 234. 
 *Loffan V. Ponlrhartrain R. Co. 11 Rob. (La.) 24; Chicago, R. I. & P. R. Co. 
 
 V. FavrcU)ugh, 52 111. 106; Warner v. Burlington & M. R. Co. 22 Iowa, 
 
 166. 
 ''Chicago, R. I. <f- P. R. Co. v. Fairclough, 52 111. 106; TjO(/anv. Pontchartrain 
 
 R. Co. 11 Rob. (La.) 24. 
 •fMke Shore dt M. S. R. Co. v.-Fo.<<ter, 2 West. Rep. 299, 104 Ind. 293. 
 ■'The State of New York, 7 Beu. 450; Walsh v. The IL M. Wright, Newb. Adm. 
 
 494. 
 '^Jacobs V. lutt. 33 Fed. Rep. 412.
 
 THEEE MUST BE A DELIVERY OF BAGGAGE TO THE CARRIER. 561 
 
 a. What Comes within Term ^^ Passenger'' s BaggageP 
 
 What is included in baggage for wliicli carriers are responsible? 
 Wliatever the passenger takes with him for his personal use or 
 convenience, either with reference to immediate necessities or the 
 ultimate purpose of the journey, must be considered personal lug- 
 gage. This would include not only all articles of personal ap- 
 parel for use or ornament, but also the gun case, or fishing 
 apparatus of the sportsman, the easel of the artist on a sketching 
 tour, or the books of the student, and other articles, the use of 
 wliich is pereonal to the traveler, and the taking of which has 
 arisen from the fact of his journey.' 
 
 Under the term "baggage," the following articles packed in a 
 box, to wit : A rifle, revolver, two gold chains, two gold rings and 
 a silver pencil case, were held within that designation.* 
 
 A passenger from Liverpool to London, carrying with him in 
 his trunk as his personal baggage, six pair of sheets, six pair of 
 blankets and six quilts, intended for the use of his household when 
 he should provide himself with a home in London, — his residence 
 in Canada having been abandoned, — could not sustain an action 
 for the loss of the articles as " personal " or " ordinary " passen- 
 ger's luggage.* 
 
 Where the passenger delivers to the carrier, without comment, 
 what appears to be personal baggage, the carrier is not put on 
 inquiry as to the nature of the property; but may assume that it 
 consists only of personal baggage and is not answerable for articles 
 not coming within that description.* 
 
 The ordinary luggage for which a railway company is respon- 
 sible has been held not to include title deeds belonging to a client 
 which the attorney is carrying with him in a traveling-bag for 
 the purpose of producing on a legal trial in a court. JNor will 
 money to a considerable amount, carried by the attorney for the 
 purpose of meeting the contingencies of the suit, be included 
 -within the term.* But neghgent delay in the delivery of baggage 
 
 ^Macrow v. Great Western B. Go. L. R. 6 Q. B. 613; Van Horn v. Kermit, 
 
 4 E. D. iSuiith,45y. 
 ^Bmty V. Grand Trunk R. Co. 32 U. C. Q, 5. 66. 
 ^Macrow v. Great Western R. Co. L. R. 6 Q. 13. 613. 
 *IIainesy. Chicago, St. P. M. & 0. R Co. 29 Minn. 160. 
 •^Phelps V. London & N. W. R. Co. 19 C. B. N. S. a21. 
 36
 
 562 CAHEIER S KESPONSIBILITY FOR BAGGAGE. 
 
 in which is contained deeds, leases, etc., is a good cause of action^ 
 and if the carrier relies upon a statutory release, it must be specially 
 pleaded.' 
 
 Carriers of passengers are responsible for the carriage and safe- 
 delivery of such baggage as by custom and usage is ordinarily car- 
 ried by travelers, and the payment of the usual fare includes, in 
 leg9,l contemplation, a compensation for the conveyance of such 
 baggage.' The question of whether money, under the special 
 facts proved, can or cannot be treated as luggage, has been fre- 
 quently determined by the courts, and usually to the effect that, 
 except as to such limited amount as may be necessary for personal 
 use to defray expenses of the passenger it is not luggage.' Some 
 of the cases cited hold that neither money nor merchandise are 
 included in the term " baggage." 
 
 In an action to recover thirty-nine English sovereigns contained 
 in a lost portmanteau, the jury were directed that if they find for 
 the plaintiff, they should allow for the value of the sovereigns if, 
 taking into consideration the circumstances of the traveler, the 
 leno'th and character of his iournev, and the fact that he was in a 
 foreign country, they considered them a proper and reasonable 
 amount for him to carry with him. This charge was held to be,, 
 at least, as favorable as the carrier could demand.* 
 
 Where money was properly carried as necessary for the journey 
 and as baggage, the company is not relieved from liability by the 
 fact that the passenger was negligent in furnishing the temptation 
 and opportunity for such taking.' That it was negligent for a 
 passenger to have the amount of money in his berth that was 
 stolen therefrom with other property cannot affect his right to- 
 
 ^nearn v. London & 8. W. R. Co. 10 Exch. 793. 
 
 Wakes v. Northern Pac. R. Co. 12 L. R. A. 318, 20 Or. 393. 
 
 ^Cwpenter v. New York. N. H. & II. R. Co. 11 L. R. A. 759, 124 N. Y. 153; 
 
 Pll-^terv. Cintral Pac. R. Co. 70 Cal. 169; lllinoiH Cent. R. Co v. Handy. 
 
 63 Mi>is. 60'J; Wkiimore v. The Caroline, 20 Mo. 513; Orange Counly Bank 
 
 V. Blown, 9 Wend. b5, 24 Am. Dec. 129; Pardee v. Drew, 25 Weud. 459; 
 
 Mi.sKt.s.-'ippi Cent. R. Co. v. Kennedy. 41 Miss. 671; Smith v. Boston & M. 
 
 R. Co. 44 N.II. 325; Cincinnati & C. A. L. R. Co. v Marcus, b8 III. 219; 
 
 Michigan 8. <fe iV'. 1. R. Co. v. Oehm, 66 111. 293; Jordan v. Fall River R. 
 
 CW. 5Ciisb. 69, 51 Am. Dec. 44; Hawkins v . Iloffmaa,^ Hill, 586, 41 Am. 
 
 Dec 7t)7- Hickox v. Naufjatuck R. Co. 31 Coaa. 281; Hatchings w. Wtitern. 
 
 dc A. R. Co. 25 Ga. 61, 71 Am. Dec. 156. 
 *Fairf(tx v. New York Cent. & H. R. R. Co. 73 N. Y. 167. 
 ^Bonner v. Be Mendoza (Tex. App.) May 21, 1891.
 
 THERE MUST BE A DELIVEKY UF BAGGAGE TO TilK CAKIilKK. 503 
 
 recover tlie value of the other property.' But tlie (general rule is 
 that money to a reasonable amount may be carried on a voyage.^ 
 Money not exceeding a reasonable amount, and a watch, are Jield 
 part of the bag^gage, and the trunk the i)roper place to keep them/ 
 
 Under the Civil Code, money belonging to a jmssenger on a 
 railroad and intended for trade, business, investment, or transpm-- 
 tation, and not for the use of the passenger while traveling, is not 
 luggage.* Baggage includes articles of necessity or convenience 
 for personal nse, and such as it is usual for persons traveling to 
 take with thcm,^ Wearing apparel is baggage, and even cat ]iat- 
 terns of wearing apparel are held to be such.* 
 
 An agreement to carry ordinary baggage may be implied, but 
 cannot be extended bej^ond such things as the traveler usually has 
 with him as a part of his baggage, and includes wearing apparel 
 and l)ed and bedding.' 
 
 What will constitute proper baggage will often depend upon 
 the length of the trip and the social and personal circumstances 
 and condition of the passenger.* His tastes, habits, conveniences, 
 necessities and circumstances, must all be considered in detennin- 
 ing what articles may properly be carried by him as personal 
 baggage.' To the extent that articles taken by him for his per- 
 sonal use when traveling exceed, in quantity and value, such as 
 are usually or ordinarily taken by passengers of his station in pur- 
 suing like journeys, they are not baggage for which the carriers 
 
 ^Dunn V. New Haven 8. B. Co. 58 Hun, 461. 
 
 *JDu7ifop V, International S. B. Co. 98 Mass. 371; ]lUnou Cent. R. Co. v. 
 
 Cope/and. 24 111. 3:53; Merrill v. Grinnell, 30 N. Y. 594; Fairfax v Neir 
 
 Yoik Cent. & II. R. R. Co. 78 N. Y. 167; Carpenter v. New York, N U 
 
 <& H. R. Co. 11 L. R. A. 759, 124 N. Y. 153. 
 *McGregor v. Eilgore, 6 Oliio. 358; American Contract Co. v. Crofiit, 8 Busb, 
 
 472; Wahh v. The K M. Wright. iSewb. Adm. 496; Orange County Bank 
 
 V. Brown, 9 Wend. 85; Merrill v. Grinnell, 30 N. Y. 594; Fairfax v. 
 
 New York Cent, tfi H. R. R. Co. 73 N Y. 167; Carpenter v. New York N 
 
 H. & H. R. Co. 11 L. R. A. 759, 124 N. Y. 153. 
 *R-me R. Co. v. Wimberly, 75 Ga. 316. 
 ''Jordan v. Fall River R. Co. 5 Cusli. 69. 
 •I>'/j?> V. Thompson, 4 E. D. Smith, 178. 
 "'Hopkins V. WeHtcoti, 6 Blatchf. 69; Hnckim v. Hoffman, 6 Hill, 586; United 
 
 States V. The Anna, 2 Am. Law Reg. 421; Desly, Shipping & Adm. 258. 
 ^McGregor v. Kilgore, 6 Ohio, 358. 
 ^Fraloffv. New York Cent. & H. R. R. Co. 12 Blalchf. 48S; Raic^on v. Penn- 
 
 sylmuia R. Co. 2 Abb. Pr. N. S. 220; McGill v. Rowland, 3 Pa. 451.
 
 6Q4: carrier's responsibility for baggage. 
 
 tire, by general law, responsible as insurers.' But baggage, with- 
 in the rule of a carrier's liabilitj, is confined to articles usually 
 carried as such for the personal use of the passenger, or for his 
 convenience, instruction, or amusement on the journey, and does 
 not include, as a general rule, that which is carried for the pur- 
 pose of business, — such as merchandise or the like." Everything 
 destined for use, personal convenience, or even instruction or 
 amusement of a passenger is baggage.' It is a question for the 
 jury to determine what articles of property as to quantity, quality 
 and value in a passenger's trunk may be deemed baggage, subject 
 to the power of the court to correct any abuse.* 
 
 What constitutes baggage is for the jury to determine, both as 
 to character and value, depending on the tastes, habits and cir- 
 cumstances of the traveler and his convenience and necessi- 
 ties.^ Yaluable laces and jewelry worn as part of personal 
 apparel are baggage.' A carrier receiving and checking a 
 trunk containing jewelry, knowing or having reason to believe 
 that such is its contents, is liable if the property is destroyed 
 by the carriers negligence, the same as though it contained 
 nothing but wearing apparel.' Articles which are not prop- 
 erly personal baggage, but which are taken by the passenger 
 as such with the carriers knowledge, either with or without pay- 
 ment of an extra charge, will be regarded as such in respect to 
 the carrier's liability/ 
 
 The fact that a passenger has with her a trunk which she checks 
 through to her destination, and places in a vahse articles of cloth- 
 ing which she expects to need, during a stop which she intends to 
 make e?i route, but not while on the train, will not relieve a sleep- 
 
 ^New York Cent. & II. R. R. Co. v. Frahff, 100 U. S. 24, 25 L. ed. 531. 
 
 ^Oakcs V. Norlhern Pac. R. Co. 12 L. R. A. 318, 20 Or. 392. 
 
 Ulacklin v. Neic Jersey S. B. Co. 7 Abb. Pr. N. S. 238. 
 
 *Brock V. Oale, 14 Fla. 523, 14 Am. Rep. 356; Neio York Cent. <& H. R. R. 
 
 Co. V. Fralojr, 100 U. S. 24, 25 L. ed. 531. 
 ^Fraloff V. New York Cent. & II. R. R. Go. 12 Blatchf. 488; Raionon v. Penn- 
 
 Hylrania R. Co. 2 Abb. Pr. N. S. 220; McGill v. Rnrand. 3 Pa. 451. 
 ^Fralojifw. New York Cent. & U. R. R. Co. 10 Blalchf. 16; T/ie R. E. Lee, 2 
 
 Abb. U. S. 51. 
 ■'Central Trmt Co. v. Wabanh, St. L. & P. R. Co. 39 Fed. Rep. 417. 40 Am. 
 
 & Eng. R. Cas. 630. 
 ^Oakes v. Northern Par. R. Co. 12 I.. R. A. 318, 20 Or. 392.
 
 therp: must be a delivery of baggage to the carrier. 565 
 
 ing car company from liability for tlie value of such articles which 
 are lost wliile she is a passenger on its car.' 
 
 But ladies' jewelry is not a proper article of baggage to be car- 
 ried in the trunk of a man traveling alone, so as to render the 
 carrier liable for its value in case of its loss; at least when it is 
 placed in the trunk simply for the purpose of having it trans- 
 ported.' Surgical instruments in the case of surgeon in the army, 
 are baggage.* Manuscripts carried hj a student, author or pro- 
 fessional man in his trunk for study or for business are baggage.* 
 A catalogue prepared by a traveling salesman at his own expense, 
 and which was his own individual property, and carried with him 
 as an article convenient and necessary for use in his business 
 while traveling, is an ai'ticle of personal baggage for which he may 
 recover ^vhen lost, with other articles in a valise, by a baggage 
 transfer carrier.^ 
 
 Goods and samples constituting a commercial traveler's baggage 
 are to be considered personal baggage where the carrier and pas- 
 senger contracted with a full understanding of the nature of the 
 baggage, and that it did not consist of ordinary wearing apparel 
 or things carried for use on a journey.' 
 
 But an agreement to carry a passenger's merchandise as baggage 
 cannot be proved, or the responsibility of a common carrier there- 
 of created, by mere evidence of custom of passengers to take pack- 
 ages with them, or by evidence that the package was of such form 
 that the baggage man might infer that it contained merchandise 
 and not personal baggage.'' 
 
 It was held that the fact that a package bore the semblance of 
 a package of merchandise and was marked "glass" was not suffi- 
 
 ^Eampton v. Pullman Palace Car Co. 42 Mo. App. 134. 
 
 ^Metz V. California S. R. Co. 9 L. R. A. 431, 85 Cal. 329. 
 
 *NeiD York Cent. & H. B. R. Go. v. Fraloff, 100 U. S. 24, 25 L. ed. 531; 
 
 Hanmhal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 
 *Oieason v. Goodrich Transp. Co. 32 Wis. 85; Ilopkinn v. Westcolt, 6 Blntchf. 
 
 64; contra, Hannibal &■ St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 
 
 L. ed. 423. 
 ^Stanb V. Kendrick, 6 L. K. A. 619, 121 Ind. 226, 40 Am. & Eng. R. Cas. 
 
 633. 
 *IHxon V. Richelieu Nav. Co. 15 Ont. App. Rep. 647, 39 Am. & Eng. R. Cas. 
 
 425. 
 Wiumantle v. Fitchburg R. Co. 127 Mass. 322, 34 Am. Rep. 376; AUintj v. 
 
 Boston & A. R. Co. 126 Mass. 121, 30 Am. Rep. 607; Smith v. Boston & 
 
 M. R. Co. 44 N. li. 325.
 
 566 carrier's responsibilit\' for baggage. 
 
 cient notice to charge the carrier with having undertaken to carry 
 such merchandise as personal luggage.' 
 
 A railroad company is not liable to the owner for the loss of 
 samples of merchandise carried in the trunk of a traveling sales- 
 man who was a passenger on its train, in the absence of knowledge 
 by it that it was transporting such property." And stage proper- 
 ties, costumes, paraphernalia, advertising matter, etc., are not 
 •'baggage" within the rule of a carrier's liability, unless accepted 
 as such.* 
 
 Where a railroad company receives, on a passenger train, prop- . 
 erty of a passenger other than his baggage, it is liable as a com- 
 mon carrier, unless there be fraud or concealment.* 
 
 The fact that the passenger has been advised that the carrier 
 has forbidden its agent to accept certain articles for transporta- 
 tion, will not preclude a recovery for tlieir loss, where they have 
 been in fact accepted." In a late case a judgment against a 
 railroad company for the value of a trunk and the jewelry 
 contained therein, checked to a traveling agent or drummer, but 
 belonging to his principal, and destroyed by lire through the 
 company's negligence, was affirmed by a divided court, the judg- 
 ment being in favor of an insurer of the property to whom the 
 claim for the loss was assigned.^ "Where a carrier receives a 
 trunk containing samples or merchandise belonging to a third 
 person, whc>se agent tlie traveler is, to be carried to a place for 
 which the traveler produces a ticket, tlie only contract entered 
 into is for the transportation of the personal baggage of the agent, 
 and the owner can not recover in contract nor in tort, except for 
 o-ross negligence ; and evidence, that a large part of the carrier's 
 business consists in carrying passengers known as "commercial 
 travelers" witli trunks like the one lost containing merchandise; 
 that such truiiks are of special construction which indicate their 
 character as sample trunks, and that such travelers purchase tickets 
 
 UJahUl V. London tfc N.W. It. Co. 10 C. B. N. S. 154, affirmed in 13 C. B. 
 
 N. S. 818. ' 
 
 ^Gurney v. Grand Trnnlr R. Co. (Sup. Ct.) 37 N. Y. S. R. 155. 
 ^Oakeit V. Northern Pac. 11. Co. 12 L. It. A. 318, 20 Or. 393. 
 HIannibal & St. J. R Co. v. Smft, 79 U. S. 12 Wall. 2G2, 20 L. ed. 423. 
 ^Bennett v. American E.vpres.'< Co. 83 Me. 236. 
 HjOuiHKilte. C. & L. R. Co. v. HirilzerUnd M. Ins. Co. 131 U. S. 440. 33 L. 
 
 «'(!, 204.
 
 THKRK MUST BE A DELIVERY OF BAGGAGE TO THE CAKRIER. 507 
 
 for the ordinary passenger ti-aius, and receive checks for their 
 trunks and are transported for the price of their ticket, — is not 
 material to the issue.' 
 
 While it has been held that the implied undertaking of a ear- 
 lier for the safety of baggage, does not extend to samples of mer- 
 •chandise which a traveling salesman carries to facilitate his bus- 
 iness in making sales, yet, the carrier, by taking it into its charge 
 and putting it into its warehouse for safe-keeping, assumes the 
 i-esponsibility of an ordinary bailee, binding itself to take such 
 
 • care of the property as a man of ordinary prudence would of his 
 
 • own, under like circumstances.* 
 
 Articles carried for sale are not ordinarily baggage, no matter 
 what the articles may be." Where merchandise to be used in trade 
 is packed in a trunk and shipped as personal baggage, without 
 notice of the contents to the carrier, the liability of the latter as 
 ■common carrier does not attach." But where an agent who checked 
 a trunk of a jewelry salesman, containing his stock in trade, knew 
 the contents, which the salesman made no effort to conceal, and 
 the trunk was stolen, the carrier was held liable as for loss of ordi- 
 nary baggage.* 
 
 What constitutes reasonable personal baggage, is properly a 
 ijuestion to be determined by the jury under the evidence of the 
 circumstances of the passenger, and a finding by them under the 
 evidence, that laces of $10,000 in value were reasonable personal 
 baggage, has been held conclusive.* But the checking of a trunk 
 ■ containing jewelry to the value of $30,000, deposited as ordinary 
 l^aggage, without anything to indicate its contents, will not render 
 the carrier liable for its loss by fire. It is the duty of the passen- 
 ger having valuable merchandise in his trunk- or valise, to disclose 
 to the carrier the nature and value of the contents, and it is only 
 upon such knowledge being communicated to the carrier and. its 
 \oluntary assumption of the liability for its carriage, that it can 
 -be held responsible.' 
 
 'AlUurj V. rosion & A. R. Co. 126 ]\ras9. 121. 
 ^I'cuusylvdnia Co. v. Miller, 35 Ohio St. 541. 
 ^Sp.,o)i^r V. IIa)mibal& St. J. R. Co. 23 Mo. App. 403. 
 *l[ii)ibarg American Packet Go. v. Giittman, 127 111. 598. 
 Klacohs V. Tutt, 3:i Fed. Rep. 412. 
 
 ^Fraloff V. New York Cent, cf- //. R. R. Co. 12 Blatchf. 484. 
 -^Miehirjan Cent. R. Co. v. Carrow, 73 111. 348.
 
 568 cakriek's kesponsibility for baggage. 
 
 Under an act of Parliament and the published notice of a rail-- 
 way company, it was bound to allow each passenger a certain 
 weight of ordinary personal baggage under its ticket charge. A 
 passenger having no knowledge of the act of Parliament or notice, 
 brought with him as luggage a box containing only merchandise 
 within the limited weight, marked "glass." No information was 
 asked or given as to the contents of the box. It was held that, 
 under the circumstances, there could be no recovery, there be- 
 ing no contract on the part of the company to carry it.' Clearly, 
 where the passenger has knowledge that the railroad company 
 requires all merchandise carried to be paid for, nevertheless car- 
 ries, as if his personal luggage, a case of merchandise, he will be 
 unable to maintain an action for its loss.' In a case of the carriage 
 by a passenger, without payment and without concealment, of 
 merchandise, in a package manifestly not intended to carry per- 
 sonal luggage, the same being placed in charge of the company's 
 servants, the company was held liable for its loss, and, on appeal, 
 the court was equally divided on the question.' 
 
 Agreement to take merchandise as baggage cannot be proved 
 by custom nor from appearance of baggage being such as to raise 
 suspicion or inference that it contained merchandise.* If the car- 
 rier accepts as baggage goods, knowing their character, or it is so 
 packed that it is obvious, it has been held responsible for them." 
 But with reference to merchandise carried as baggage, it has been 
 said that a common carrier is not responsible for it, if its being 
 included in the passenger's baggage is not disclosed.* Nor for- 
 
 ^CaMll V, London & N.W. B. Co. 10 C. B. N. S. 154, 13 C. B. N. S. 818. 
 
 ^BelfuHi & B B. Co. v. Kt-ys, 9 H. L. Cas. 556. 
 
 ^Belfad & B. B. Co. v. Keys, 2 Ir. C. L. Rep. 145. 
 
 *Alllng V. Boston & A. B. Co. 126 Mass. 121, 30 Am. Rep. 667; Michigan 
 Cent. R Co. V. Can-oio. 73 111. 348, 24 Am. Rep. 248; Ca/iiU v. Loudon & 
 N. W. B. Co. 10 C. B. N. S. 154, 13 C. B. N. S. 818. 
 
 ^Uellman v. IJolladtnj, 1 Woolw. 365; Minter v. Pacifc B. Co. 41 Mo. 503; 
 Great Northern R. Co. v. Shepherd, 8 Exch. 30; Sioiieman v. Erie B. Co. 
 52 N. Y. 429. 
 
 *Bloomerithol v. Maine Cent. B. Co. 79 Me. 550; BlumantJe v. Fitchburg B. 
 Co. 127 Mass. 322. 34 Am. Rep. 376; CoUina v. Boston c6 M. R. Co. 10 
 Cu«ih. 506; Stimson v. Connecticut liioer R. Co. 98 Mass. 83; Connolly v. 
 Warren, 106 iMa^s, 146, 8 Am. Rep. 300; Macrow v. Great Western R. Co. 
 L, 11. Q. li. 612; Davis v. Cayaua & S. R. Co. 10 How. Pr. 332; Cham- 
 berlain V. Weatern Tramp. Co. 45 Barb. 223; Pardee v. Brew, 2o Wend. 
 459.
 
 THEKE MUST BE A DELIVEKY OP EAGGAUE TO THE CABKIEK. 5G1> 
 
 samples of riierchaiidise carried in a trunk, for the purpose of 
 carrying on traffic as a merchant.' 
 
 The mere payment of extra compensation on account of the 
 overweight of baggage does not convert it into freight." Extra 
 baggage received with the understanding that it is to be paid for 
 must be duly carried and delivered/ But where an emigrant 
 who carries with her trunks and other ordinary baggage, and also 
 turns over to the carrier a number of boxes of goods for transpor- 
 tation, and pays freight for their weight in excess of her baggage 
 allowance, and the general character of the shipment is known to 
 such carrier, it cannot be conclusively presumed that the entire 
 shipment was as baggage." AVhere a railway company receives 
 a trunk of a passenger knowing that it contains articles of mer- 
 chandise beyond the ordinary baggage, and accepts additional 
 compensation therefor, it renders itself liable in the case of loss, 
 for the merchandise as well as the baggage.* 
 
 A carrier, under U. S. Rev. Stat. § 4281, is not liable for pic- 
 tures shipped by a passenger as baggage, without receiving written 
 notice of the true character and value thereof." An emigrant 
 carrying as part of his ordinary baggage jewelry and silverware is 
 not a shipper thereof, within United States Revised Statutes. 
 § 4281, which prohibits any shipper of jewelry, etc., from loading 
 it as baggage without notifying the master of the vessel.' 
 
 A passenger who, without notice to the carrier, has a trunk 
 containing valuable merchandise checked, about which there is 
 nothing to indicate that it contains other than ordinary baggage, 
 can, in case of its loss, hold the carrier to no greater liability than 
 that of a gratuitous bailee, — that is for gross neglect.* 
 
 ^Hmckins v. Hoffman, 6 Hill, 586; Scovill v. Griffith, 12 N. Y. 515. 
 
 '^Hamburg Americaa Packet Go. v, Gattman, 137 111. 598. 
 
 ^Strums V. Wabanh, St. L. & P. B. Co. 17 Fed. Rep. 209. 
 
 ^Hamburg American Packet Co. v. Gattman, 127 111. 598. 
 
 ^Perley v. New York Cent. & H. R. B. Co. 6"> N. Y. 374; Strorm v. Wabash. 
 
 St. L. & P. R Co. 17 Fed. Rep. 209; Sloman v. Great Western B. Co. 67 
 
 N. Y. 208; reveisins 6 Hun, 546. 
 ^ Wheeler v. Oceanic Steam Nav. Go. 53 Hun, 75. 
 Warlson v. Oceanic Steam JVao. Go. 12 Cent. R«p. 30S, 109 N. Y. 359. 
 ^Michigan Cent. R. Co. v. Carrow, 73 111. 348, 24 Am. Rep. 248; AlUnq v. 
 
 Bu,^ton & A. B. Co. VIQ Mass. 121, 30 Am. Rep. 667; Haines v. Chioigo. 
 
 St. P. M. & 0. B. Co. 29 Minn. 160. 43 Am. Rep. 199; lennsulc^niia Co. 
 
 V. Miller, 35 Ohio tot. 541, 35 Am. Rep. 620; Smith v. Boston <& M. B. Co. 
 
 44 N. H. 325.
 
 570 CARKIEK's BE8P0NSIBILITV FOR BAGGAGE. 
 
 It was held that the carrier need not carry free for a passenger 
 a spring rocking horse, although weighing less than the limit of 
 " ordinary higgage " allowed, and intended for nse in passenger's 
 family.' The loss of a dog by negligence of a baggage master 
 will render the cari-ier liable, although the rule of the company 
 provided that it would not be responsible for dogs, where the 
 owner was not notified of such rule or of the company's refusal to 
 be responsible, bnt put the dog in the baggage car under instruc- 
 tions of the conductor.' 
 
 A carrier receiving for transportation a trunk of a passenger 
 after he has started, is chargeable with the duties and liabilities of 
 a common carrier, with the right to charge a reasonable compen- 
 sation therefor." 
 
 The following articles have been held to be baggage : A gold 
 watch deposited in a trunk by traveler on a railroad ; * a watch 
 and jewelry, such as are usnally worn ; ^ articles for party's family, 
 nnd cloth for dresses; * a carpet taken with knowledge of its char- 
 acter; "" money for traveling expenses; ^ clothing, traveling ex- 
 penses, a few books, and ladies' jewelry, for traveling, an opera 
 glass; * a price book used by a commercial traveler in his daily 
 l)usiness."* 
 
 The following articles have been held not to be baggage : A 
 feather bed not intended for use on the voyage; " a box contain- 
 ing only merchandise, the contents of wliich were unknown to the 
 
 ^Hwhton V. Midland R. Co. L. R. 4 Q. B. 366. 
 
 »Art/<««.v City, M. & B. B. Co. v. Uigdon (Ala.) 14 L. R A. 515. 
 
 ^Graffan v. Boston & M. R. Co. 67 Me. 234; Wihon v. Grand Trunk R. Co. 
 
 56 Me. GO, 96 Am. Dec. 485. 
 *JovcH V. Vooi'hees, 10 OLio, 145; American Contract Co. v. Cw.'i.?, 8 Bush, 
 
 473, 8 Am. liep. 471; contra, Miasimppi Cent. R. Co. v. Kennedy, 41 
 
 Miss. 671. 
 ^McCormick v. Ilvdson River R. Co. 4 E. D. Smith, 181. 
 «Dcxter v. Si/racme, B. <& iV. Y. R. Co. 42 N. Y. 336, 1 Am. Rep. 527. 
 ■'Minter v. Pacific R. Co. 41 Mo. 503. 
 *^McrriU v. Gi-innell, 30 N. Y. 594; Jones v. Voorheex, 10 Ohio, 145; Mad 
 
 River iic L. E. U. Co. v. Fvlton, 20 Ohio. 318; Weed v. Saratoga & 8. R. 
 
 Co. 19 \V<;nrl. 534; Doyle v. Kiser, 6 Ind. 243; Bomar v. Maxwell, 9 
 
 lliiin|)li. 631; DariA v. 'Michigan, 8. & N. 1. R. Co. 22 111. 278; Dunlap 
 
 V. Inteniatiiinal 8. B. Co. 98 Mass. 371. 
 *To!edo, W. iS: W. R. Co. v. JIammond. 33 Ind. 379, 5 Am. Rep. 221. 
 ^oatmHon V. Goodrich Tramp. Co. 32 Wis. 85. 14 Am. Rep. 716. 
 "Counody V, Wari-en, 106 Mass. 146, 8 Am. Rep. 300.
 
 KEGUJ-ATIONS KKiSTKICTING LIABILITY FOR BAGGAGE. 571 
 
 <-arner; ' watclies of large value contained in a traveling case;' a 
 gold and two silver watclies, plaintiff also wearing one;^ asacque, 
 a mulf, a napkin ring, carried by a gentleman;* money carried in 
 })assenger\s trunk for transportation merely and not for traveling 
 expenses/ 
 
 § 1S6. Regitlations Restricting LiaMlity for 
 
 Baggage. 
 
 As a baggage check is usually considered a mere method of 
 identifying the baggage, it is not supposed that it will contain 
 stipulations limiting the liability of the carrier, and therefore no 
 presumption is indulged, where such use is made of the check, 
 that the passenger is advised of the limitation.* 
 
 All persons are bound to know that freight trains are for the 
 carriage of freight, and passenger trains for passengers, and to 
 take notice of the rules of the company as to freight sent on pas- 
 senger trains.' If a party knowing the regulation of a railroad 
 company that baggage should be received only for immediate car- 
 riage, agrees with the carrier's agent to take charge of his baggage 
 as a matter of accommodation, without any directions as to ship- 
 ment, the carrier is not responsible for its loss.* 
 
 But where baggage is delivered to be shipped on the evening 
 of the next day, unless contrary orders are given, the carrier will 
 be liable after that time has elapsed. 
 
 A ticket containing a release of liability for luggage and per- 
 mission to land passengers from an ocean steamer, if taken with 
 infectious disease, releases carrier, upon landing a sick passenger 
 while insensible, and puttfng his luggage ashore with him, from 
 liability for its loss." 
 
 ^Gopcleyy. London & N. W. R. Co. 13 Q. B. N. S. 818; Great Northern R. 
 
 Co. V. Shepherd, 8 Exch. 30. 
 ^Belfast & B. li. Co. v. Keys, 9 H. L. 556. 
 ^MisHtsHippi Gent. R. Co. v. Kennedy, 41 Miss. 671. 
 *Chicngo, R. I. & P. R. Co. v. Boyce, T6 111. 510, 24 Am. Rep. 268. 
 ^Orange County Bank v. Brotcn, 9 Wend. 85, 24 Am. Dec. 129; Merrill v. 
 
 Grinntll, SON. Y. 621. 
 ^Mauritz v. mw York, L. E. & W. R. Co. 23 Fed. Rep. 765; Baltimore & 
 
 0. R. Co. V. Campbell, 36 Ohio St. 647. 
 ''Lake Shore & M. S. R. Co. v. Foster, 2 West. Rep. 299, 104 Ind. 393. 
 ^Illinois Cent. R. Co. v. Trojistine, 64 Miss. 834. 
 "* Thompson v. Royal Mail S. P. Co. 5 Asp. M. C. 190, note.
 
 572 carrier's responsibility for baggage. 
 
 The reasonableness of a regulation by which a railroad compan}^ 
 refuses to check baggage to a regular stopping place of a passen- 
 ger train is in the province of the court to determine as a matter of 
 law. A regulation of a railroad company by which, although a pas- 
 senger may himself get off at a regular station or stopping place 
 of a passenger train, which is just across the street from the sta- 
 tion of another railroad, he will not be sold a ticket to that place 
 or his baggage checked to or delivered at that station, but will be 
 compelled to pay for a ticket to another station a mile distant, 
 and go there for his baggage, is unreasonable and invalid.* It 
 has been held that a condition in a railway passenger ticket 
 sold at a reduced rate, that baggage carried by the passenger must 
 be at the " owner's risk against all casualties " must be construed 
 as extending to all contingencies, including negligence, except 
 willful misconduct of the company or its servants.'^ But this 
 rule would only be recognized in courts where contract against 
 the carrier's ordinary negligence is given effect. 
 
 Where the passenger arrives at his destination in the afternoon 
 and fails to call for his baggage between nine and ten o'clock the 
 next morning, he does not make his claim within a reasonable time. 
 He should demand it on the evening of his arrival under such 
 circumstances. But where it was shown that the business of a 
 union depot company receiving and delivering baggage to a rail- 
 road company generally required as much as two hours before the 
 baggage could be delivered, and a trunk was stolen during that 
 period, the railroad company was liable, even though plaintiff did 
 not call for the trunk till the next day.' 
 
 Carriers of passengers may, by specific regulations, brought to 
 the knowledge of the passenger, which are reasonable, protect 
 themselves against liability as insurers of his baggage, which ex. 
 ceeds a fixed amount in value.* But the passenger must have 
 notice of the restriction. Where the agent of a special delivery 
 company gave to a passenger in a car a i-eceipt for his baggsige— 
 marked upon the margin " Domestic Bill of Lading," containing 
 
 ^Pittubvrgh, C. & Si. L. R. Co. v. Lyo?i, 2 L. R. A. 489, 123 Pa. 140. 
 ^Urnrn V. Richelieu j\at>. Co. 15 Out. Apj). Ittp. 647, 89 Am. & Eng. R. 
 
 Cas. 425. 
 MarobH V. TvU, 33 Fed. Rep. 412. 
 *New York Cent. <Sc U. R. R. Co. v. Fraloff, 100 U. S. 24, 26 L. ed. 581.
 
 REGULATIONS KESTKICTING LIAUIHTY FOK BAGGAGE. 573 
 
 a limitation of liability for value to $100, but there was not suffi- 
 cient li^ht in the car to read the conditions, and the passenger 
 placed the receipt in his pocket unread ; it was ruled that the car- 
 rier, in order to relieve itself of full liability, was bound to 
 establish a contract upon the special terms contained in the receipt 
 and that no such contract arose as matter of law from the accept- 
 ance of the receipt under the circumstances.* 
 
 Where the carrier of troops accepted baggage, under the con- 
 tract that it was to remain in charge of a guard provided by the 
 troop, — " the company accepting no responsibility " — this stipula- 
 tion was not sufficient to exempt the carrier from liability from 
 the loss arising wholly from its own negligence." 
 
 The authority to make by-laws for the government of its affairs 
 and for the management of the undertaking and its officers, not 
 inconsistent with the laws of England or the charter of the com- 
 pany, will not authorize a by-law declaring the carrier would not 
 be responsible for a passenger's luggage unless booked and the 
 carriage paid.* 
 
 Mere notice, not brought home to and assented to by a depositor 
 of articles at a cloak room in a railway station, is not 
 enough to relieve the company from liability under the limita- 
 tion as to the value.* In the above case, the ticket given the 
 depositor contained on its face the words "See back," and on the 
 back there was a limitation of liability. The judge submitted to 
 the jury the questions whether the plaintiff read or was aware of 
 the special conditions upon which the article was deposited, and 
 whether the plaintiff, undei" the circumstances, was under any 
 obligation in the exercise of reasonable and proper caution to read 
 and make himself aware of the conditions. The jury answered 
 both questions in the negative, and a verdict was entered for the 
 plaintiff. But, where the person depositing the luggage knew 
 that there were conditions on the back of the ticket, but did not 
 know what the conditions were, the court having power to draw 
 
 ^mdan V. Slierard, 73 N. Y. 329. 
 
 * Martin v. Great Indian P. Ji. Co. L. R. 3 Exch. 9. 
 
 ^Williams v. Great Western B. Co. 28 Eng. L. & Eq. 439: Great Western B. 
 
 Co. V. Goodman, 11 Eng. L. & Eq. 546. 
 *Parker v. South Eastern B. Co. L. R. 3 C. P. Div. 416, reversing L. R 1 C- 
 
 P. Div. 618.
 
 57-± carkier's responsibility for baggage. 
 
 inferences, ruled tliat tlie luggage must be taken to have been 
 deposited subject to the conditions on the back of the ticket.' 
 
 Under the English liailway & Canal Traffic Act of 1854, § 7.. 
 an English railway company is liable for luggage carried by the 
 passenger, without extra charge, and cannot limit its liability by 
 a statement on the ticket that " the company is in no case respon- 
 sible for luggage of a passenger traveling by this through ticket, 
 of greater value than six pounds." Under such a ticket, where 
 plaintiff had a box, which M^as given in charge of the railroad's 
 servants, and in transferring it from the boat to the train it fell 
 into the sea owing to the negligence of the defendant's servants, 
 and the contents were damaged to the amount of £73, the carrier 
 was liable for the loss, on the ground that a condition made by a 
 railway company, limiting its liability in respect to passenger's 
 luggage is not binding, unless the condition is reasonable and is 
 contained in a contract signed by the passenger.' 
 
 A railway company gave a ticket from London to Paris, limiting 
 its liability to its own road by a memorandum, which the passen- 
 ger did not sign. His baggage was lost between Calais and Paris 
 on a French railway. Inasmuch as the Railway and Canal Traffic 
 Act only extends to the traffic on a company's own hne, and sec- 
 tion 7 does not apply to a contract exempting the company from 
 liability from the loss on a railway not belonging to, or worked by 
 the company, the condition was held to release any liability.* 
 
 A carrier may limit amount of liability on baggage, except 
 upon additional compensation, proportioned to the risk. If the 
 passenger evades inquiry as to value by any artifice, the carrier 
 will only be liable for the amount assumed for ordinary fare.* 
 
 Baggage left by the passenger to be deposited in the cloak-room, 
 but left outside by the negligence of the earner, will render it 
 liable, notwithstanding the limitation of value contained in the 
 deposit ticket.* 
 
 ^Uarris v. Great Wef<tern R. Co. L. R. 1 Q. B. Div. 515. 
 
 ''Colien V. South Eastern E. Go. L. li. 2 Exch. Div. ^53. 
 
 ■■Zunz V. South Efistern R. Co. L. R. 4 Q. B. .SHO. 
 
 *Ncw York Cent. & U. li. li. Co. v. Frulvff, 100 U. S. 24, 2.') L. ed. 531. 
 
 '^Jlandon v. Caledonia E. Co. 7 iScotcli ISess. Cas. (4tlj Sciics), 1)66.
 
 REGULATIONS EESTKICTING LIABILITY FOK BAGGAGE. 575 
 
 On an excursion train at reduced rates, baggage may be limited 
 in value, or at the pas>cngors' risk.' 
 
 A carrier may adopt the rule that an intending passenger shall 
 pay his fare before it becomes responsible for his baggage; but if 
 it fails to adopt such a rule, it is liable for loss of baggage received 
 by its agent." It may require information from him as to its value, 
 and demand extra compensation for any excess beyond that which 
 may reasonably be transported as baggage. Eut in the absence of 
 legislation or regulations by the carrier, or of misleading conduct 
 on the part of the passenger, his failure to disclose such value when 
 no inquiry is made of him is not, in itself, a fraud upon it.^ A 
 limitation upon a railroad ticket, of the liability of the company 
 for wearing apparel to $100, is invalid under Iowa Code, §§1308, 
 2184.* Where merchandise to be used in trade is packed in a trunk 
 and shipped as personal baggage, without notice of the contents to 
 the carrier, the liability of the latter as common carrier does not 
 attach.* A regulation of a carrier requiring a passenger, whom it 
 suspects of carrying articles of merchandise in his trunk against its 
 regulations, to sign a certificate that the trunk contains nothing 
 but wearing apparel, is a reasonable regulation. The carrier may 
 require satisfactory proof of its contents and decline to check the 
 trunk on refusal of the passenger to furnish such proof." 
 
 A notice, not known to plaintiff, posted on each end of the car, 
 over the washstands, that the company would not be liable for any 
 losses of passengers does not relieve the company from liabil- 
 ity.* A baggage master is held out to the world as the agent of 
 the company, with general authority to receive baggage; and his 
 acts, within scope of his authority, are binding on the company 
 unless a passenger has notice of limitation of his authority," A 
 rule of which the passenger has no notice cannot have effect. 
 
 ^Stc'rrtrt v. LoiifJon <& iV. W. R. Co. 3 Ilurlst. & C. 135; Ruimey v. Mrtlieast- 
 
 ern R. Co. 14 C. B. N. S. 641. 
 ^Lake Shore & M. S. R. Co. v. Foster, 2 West. Rpp. 299, 104 Tnd. 293. 
 *N(W York Cent. & II. R. R. Co. v. Fraloff, 100 U. S. 24, 25 L. ed. 531. 
 *D<ivis V. Chicago, R. L cfi P. R. Co. (Tovva), June 1, 1891. 
 ^Hamburg- American Packet Co. v. Gattman, 127 111. o'J8. 
 ^Norfolk & W. R. Co. v. Irvine, 1 L. R. A. 110, 85 Va. 217. 
 ''Lewis V. Neio York 8. C. Co. 3 New Eng R«p. 358, 143 M'lss. 267. 
 'Lake Shore & M. 8. R. Co. v. Foster, 2 West. Rep. 299, i04 Ind. 29a
 
 576 cakkier's kespoksibiliti' for baggage. 
 
 to relieve the railroad company of responsibility for an article 
 accepted for carriage by an employe who is intrusted with the 
 duty of receiving and taking charge of goods for transportation, 
 and who accepts the article in question apparently in the course 
 of his emplojanent and on behalf of the principal. The conductor 
 and the baggage master can be treated b}'- a person having deal- 
 ings with the carrier as having all the ordinary powers incident to 
 their respective positions except so far as restrictions are imposed 
 upon their authority which are known or ought to be known, to 
 the person dealing with them. In transacting the business in- 
 trusted to them, within the usual and ordinary scope of such 
 business, they act withm the extent of their authority; and the 
 principal is bound, provided the party dealing with them acts in 
 good faith, and without notice of any restrictions or limitations 
 upon their authority,* and the jDrincipal is responsible for the act 
 of the agent when done within the apparent scope of his author- 
 ity, thougli in violation of a rule or instruction of the principal, 
 which was unknown to the person dealing with the agent.' 
 
 As in any other matter of evidence, reasonable inferences of 
 knowledge on the part of the baggage master of the character of 
 the article offered will be indulged. The appearance of the pack- 
 age if it differ from the usual manner in which baggage is offered 
 for shipment may charge the carrier with notice that it is not 
 ordinary baggage and render it liable if it accej)t it without in- 
 quiry. But of course any attempt to deceive the carrier and en- 
 trap it into a liability not belonging to its undertaking as carrier, 
 will fail. 
 
 The principle to be extracted from the cases very clearly ex- 
 cludes merchandise, as such, in the idea of baggage for which the 
 carrier is responsible, and therefore, unless it is paid for otherwise 
 tlian in the price of the passenger's ticket, the carrier is not liable 
 for its loss unless caused by his negligence." 
 
 In a New York case in which the question was not, however, 
 squarely before the court, Peckham, «/., says : "I think it safe to 
 
 ' Wliefler v. McGvire, 2 L. R. A. 808, 86 Ala. 398; Louisville Coffin Co. v. 
 
 /^t'keii, 78 Ala. 873. 
 Williinn V. S»vfh & Nm-th Ala. R. Co. 70 Ala. 2C8; Kansas City, M, & B. 
 
 H. Co. V. llirjdoih (Ala.) 14 L. K. A. 515. 
 »3milk V. Boston d M. It. Co. 44 N. U. 325.
 
 KKGL'J-ATIONS KESTKICTINU J.lAKIhlTV FOK JfcJAUGAOK. 577 
 
 say, that if the carrier knew or liad notice of the character of the 
 goods taken as ba^jgage, and still undertook to transport them, he 
 is liable for tlieir lo.ss, although thov are not traveler's baggage."' 
 Parke, B., in an English case savs: "If the plaintiff had carried 
 these articles exposed, or had packed them in the shape of mer- 
 chandise, so the company might have known what they were, and 
 they had chosen to treat them as personal luggage, and carried them 
 without demanding any extra remuneration, they would have 
 been responsible for the loss." " 
 
 A baggageman having accepted for transportation, along with 
 a passenger's baggage, a box obviously containing merchandise, 
 the carrier is responsible for the transportation and delivery at the 
 passenger's destination.^ Where tlie agent of a carrier, knowing 
 that a trunk contained a traveling merchant's stock of jewelry, 
 checked it as ordinary baggage, without any concealment by the 
 passenger as to its contents or value, the cari-ier is liable in case of 
 its loss, as though it were personal baggage.'' 
 
 A carrier receiving and checking a trunk containing a stock of 
 jewelry, knowing or having reason to believe that such is its con-, 
 tents, is liable, if- the property is destroyed by the carrier's negli- 
 gence, the same as though the trunk contained wearing apparel.'" 
 If propert}^ offered by the passengers is not represented to be 
 baggage, and is not packed so as to assume that appearance, and 
 it is received foi" transportation on the passenger train, the carrier 
 .assumes the same responsibility for its safe carriage as though it 
 were shipped on a freight train." In a Kansas case it was held that 
 the carrier's baggageman having accepted for transportation certain 
 poles, ropes and canvas, constituting a tent, belonging to an intend- 
 ing passenger, the carrier must account for them as if they were 
 personal baggage.' The plaintiff delivered to the baggageman a 
 
 ^Stoneman v. Erie R. Co. 52 N. Y. 439. 
 
 ^Great Northern R. Co. \ . Shepherd, 8 Exch. 30. 
 
 "Waldron v. Chicago <fc N. W. R. Co. 1 Dak. 336; Butler v. Hudson River 
 
 R. Co. 3 E. D. Smith, 571. 
 *Jacobs V. Tuti, 33 Fed. Rep. 412. 
 
 ^Central Trust Co. v. Wabash, St. L. & P. R. Co. 39 Fed. Rep. 417, 40 Am. 
 & Eng. R. Cas. 636. 
 
 * Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 263, 20 L. ed. 423, 
 ^Chicago, R. I. ct P. R. Co. v. Conklin, 32 Kan. 55. 
 
 on 
 o i
 
 576 CAKKIKk's KKSI'ONSIHILITY FOK BAGGAGE. 
 
 piece of carpet along with his trunk, wliich tlie baggageman in- 
 formed liim would go safely witliont checking; it was held that tlie 
 carrier was liable for loss of the carpet, notwithstanding a rule, of 
 which the plaintiff had no knowledge, prohibited the baggageman 
 from forwarding any article of merchandise on a passenger train.' 
 
 In a recent case the evidence was that the appellee was a pas- 
 senger on the appellant's train from Birmingham to Elliott, a sta- 
 tion on the appellant's line of road. When he boarded the train 
 he went into a second class car, carrying I lis dog along with him. 
 When the conductor passed through the train collecting tickets 
 he saw the dog, and then told the appellee that it was against the 
 rules of the company to carry dogs on its passenger coaches and 
 that he would have to put the dog in the baggage car. There- 
 upon the appellee and a brakeman took the dog into the baggage 
 car, and delivered it to the baggage master. The appellee testified, 
 without contradiction, that he told the baggage master to put the 
 dog off at Elliott, and also that he told liim that lie would not pay 
 him any money for the dog. When the train arrived at Elliott, 
 the baggage master refused to deliver the dog, unless the appellee 
 would pay him a fee of twenty-live cents. The appellee declining 
 to make this payment, the dog was carried to Memphis, and was 
 lost. The appellee afterwards offered to pay what was due on 
 the dog, but did not renew such offer after he was informed that 
 tlie dog was lost. 
 
 Defendant by special pleas set up a rule of defendant regulat- 
 ing the carriage of dogs, which was alleged to relieve it from lia- 
 bility for their loss; averred that defendant was not, and did not 
 hold itself out to be, a carrier of dogs on its passenger trains; that 
 the only compensation provided for their carriage would be per- 
 sonal perquisites to the baggage master. 
 
 There is no evidence to show that w^heu the appellee delivered 
 tlie dog to the baggage master he had knowledge or notice of the 
 rule under which the appellant seeks to relieve itself of responsi- 
 bility. The conductor was acting within the apparent scope (»f 
 liiB autliority when he gave directions as to the disposition to be 
 made of the dog. When the baggage master received the dog, 
 there was nothing to indicate that he was acting in liis own behalf,. 
 
 ^MinUr v. Pacific li. Co. 41 Mo. 503.
 
 REGULATIONS UESTKICTING LIAIULITV FOK BAUUAGK, 57t> 
 
 rather than as an employe of the appellant and for it. It doe.-- 
 not appear that the appellee was in any way made to understand 
 that in reference to the carriage and custody of the dog he was tec 
 look to the baggage master individually, and not to the railroad 
 company. He was not informed that the company was unwilling 
 to transport the dog or to become responsible for it. lie wa> 
 simply told to leave the dog in another part of the train, and with 
 the person in charge of the baggage. The court declared that ht- 
 was not presumed to know the rules of the company as to the 
 kinds of projjerty it would i-eceive for transportation. It does 
 not even appear that the rule relied on was posted in the depot or 
 in any other public place at the station where the appellee was 
 received as a passenger. It is said the rule itself shows that it 
 was the duty of the defendant's employes to give notice to the 
 owners of dogs of the conditions upon whicdi they would be car- 
 ried by the railroad company, and, if the owners were unwilling 
 to accept such conditions, to refer them to the express company. 
 In the present case the conductor permitted the dog to remain on 
 the train, and had it put in the baggage car, and neither he nor 
 the baggage master intimated to the appellee that the company 
 Avas unwilling to carry the dog or to become responsible thei-efor. 
 From the evidence it affirmatively appears that the appellee did 
 not know of the rule in question. He w^as entitled therefore to 
 rely upon and to follow the instructions given by the conductor.' 
 It is declared that the baggage master, when he received the 
 dog, was engaged in the particular business with which he was 
 intrusted by the defendant. The plaintiff was entitled to suppose 
 that he was dealing with the defendant through its regularly 
 accredited agent in that department of its business. If the 
 defendant was unwilling to receive or to become responsible for 
 the dog, the plaintiff should have been informed to this effect by 
 the agent. No such information having been given, and the rule 
 now set up being unknown to the plaintiff when liis dog was 
 received without objection, he was entitled to look to the defend- 
 ant for its carriage and proper delivery; and as the dog was lost 
 and was not accounted for, the defendant was liable on the undis- 
 
 ^ South & North Ala. R. Co. v. Huffman, 76 Ala. 493, 52 Am. Rep. 349; Jones* 
 V. Cincinnati, 8. & M. R. Co. 89 Ala. 376; Lake Shore <fe M. S. R. Go. v. 
 Rosenzweig, 4 Cent. Rep. 712, 113 Pa. 519.
 
 580 CAKKIER's KKSPONSliJlLITV FOK BAGGAGE. 
 
 piited facts shown by the evidence. The plain conchision from 
 the evidence is that the dog was lost in consequence of the negli- 
 o-ence of the baggage master; and, in the circumstances developed 
 by thef proof, the defendant could not shift the liability from itself 
 to the baggage master individually.' 
 
 In Cantling v. Hannihal & St. J. R. Co., 54 Mo. 385, 14 Am. 
 Rep. 4:76, a passenger took a dog with him into the coach, but was 
 required by the brakeinan to put the dog in the baggage car, the 
 plaintiff paying the baggageman for its transportation. A rule 
 of the carrier, of which the plaintiff had no notice, provided: 
 •'Live animals are allowed as baggageman's perquisites." The dog 
 was lost, by being delivered by the baggageman to the wrong per- 
 son; it was held that the plaintiff could recover from the carrier 
 the value of the dog. But where, after the carrier's ticket agent 
 had refused to sell a passenger tickets for the transportation of 
 his doo-s, the baggageman on the train, as a matter of accommo- 
 dation and for a fee, agreed to take charge of them after telling 
 the passenger, "You know the rules about dogs," the carrier is 
 not liable as a common carrier for the loss of one of the dogs.* 
 
 If a carrier knowingly receives from a passenger articles as 
 bao-o-ao-e, which are not properly classed as such, either with or 
 without extra charge therefor, it will be liable for their loss, 
 althousch M'ithout its fault.* 
 
 The same rule is applied where, from the payment for extra 
 weii>-ht and other circumstances, the agent had reason to know 
 that the trunk contained valuable merchandise, and yet checked it 
 as ordinary baggage.* 
 
 The same liability attaches to the transportation of merchandise 
 of a passenger along with his baggage, for which he pays extra, 
 as though it were properly personal baggage.' 
 
 If the carrier, at the time of checking a trunk, has notice that 
 it contains merchandise other than personal baggage, and charges 
 
 * Cantling v. Hannihal & St. J. R. Co. 54 Mo. 385, 14 Am. Rep. 476; Minter 
 V. Padfic R. Co. 41 Mo. 503; Kansas City, M. & B. R. Co. v. Higdon 
 (Ala.) 14 L. R. A. 515. 
 
 *noneyman v. Oregon & C. R. Co. 13 Or. 352, 57 Am. Rep. 30. 
 
 "^Oakeft V. Northern Pac. R. Co. 12 L. R. A. 318, 20 Or. 392; Rosg v. Missouri, 
 K. <fe T. R. Co. 4 Mo. App. 583. 
 
 *Central Trmt Co. v. Wabash, St. L. & P. R. Co. 39 Fed. Rep. 417. 
 
 *0laHCO V. New York Cent. R. Co. 30 Barb. 556.
 
 REGULATIONS KESTKICTIKG tIAUII.ITY FOK BAUGAGK. 581 
 
 the passeii_^er extra therefor, the can-ier is liable as a eai'rier of 
 freight.* 
 
 In tlie Afillard ease it was held that separate actions eould be 
 maintained for the personal bagg-age of the passenger, and for the 
 merchandise, for wliieh he paid extra. If the carrier knows that 
 the parcel oflered as baggage by a passenger contains valuable mer- 
 chandise, and accepts the same upon payment for extra baggage, 
 the carrier is liable for its loss due to negligence of an employe.' 
 A passenger, contrary to the rules of (carrier, and, in order to avoid 
 tlie payment of extra toll, took merchandise with him into the 
 carriage, which was afterwards removed by the guard to the lug- 
 gage van, and being lost, there could be no recovery against the 
 carrier.' 
 
 When a cai-rier receives a parcel for transportation as baggage, 
 knowing at the time that its contents are not properly classed as 
 baggage, it will be responsible for its transportation as a common 
 carrier, at least to the extent that its agent had notice of the char- 
 acter of the articles. I>ut where such a parcel is received by the 
 agent of the carrier, at its destination, and by agreement with the 
 baggageman there, mIio had no knowledge of its contents, is 
 allowed to remain in the carrier's baggage room nntil the passen- 
 gers shall re-embark on the cari'ler's road, the liability, while thus 
 in the possession of the carrier, is only that of a warehouseman.* 
 
 A passenger carrier having engaged to transport trunks for a 
 passenger as his baggage, although knowing their contents to be 
 merchandise, is liable therefor, as an insurer, only, for a reasonable 
 time after their arrival at their destination. After such time has 
 elapsed, the liability is only that of a warehouseman.'* 
 
 A passenger, who, with regular baggage, turns over to the car- 
 rier boxes of merchandise, and pays for the excess of weight over 
 the regular baggage allowance, the general character of the ship- 
 ment being known to the carrier, can recover for the boxes of 
 merchandise in case of l<»ss, although they did not contain strictly 
 
 ^Sloman v. Great Western R. Co. 67 N. Y. 208; Perley v. Neio York Gent. & 
 H. R. R. Go. (55 N. Y. 374; Millard v. Mmouri, K. & T. R. Go. 86 N. Y. 
 441. 
 
 ^Hellman v. IL/Uaday, 1 Woolw. 3()5. 
 
 ^Belfast & B. R. Co. v. Keys,, 9 H. L. 556. 
 
 *Texas <fe F. R. Co. v. Gappx (Tex.) 16 Am. & Eng. R. Cas. 118. 
 
 '■Hoeger v. Chicago, M. & S. P. R. Co. 63 Wis. 100, 53 Am. Rep. 271.
 
 582 CAKKIKu's RESI'UNSIBILITY FOR BAGGAUK, 
 
 '•neeessarv bao-gage." ' If the shipper or passenger is not informed 
 of the limitation on tlie vahie of his goods, nor any special contract 
 made, the recoverv cannot be limited for failure of the shipper 
 or passenger to disclose unasked such value." 
 
 K purchased a railroad ticket, and also a Pulhuan car ticket, 
 over the Louisville & ISTashville Raih-oad, from Cincinnati to 
 Memphis. The Pullman car ticket liad printed upon its face: 
 ''Wearing apparel or baggage placed in the car will be entirely at 
 the risk of the owners." It was held that no contract witli the 
 Pullman Car Company could relieve the raih-oad company from 
 >uch liabiHty.* 
 
 A through ticket providing. ''This com]>any acts as agent and 
 is not liable beyond its own line," and that liability for loss of 
 baggage should not exceed $100 for wearing apparel, — it was held 
 that the first jH'ovision should be restricted to personal injuries, 
 the provision limiting liability for amount against neghgence was 
 void and a watcli and diamond are wearing apparel.* 
 
 Where the proof was that the passenger inquired of tlie carri- 
 er's agent at a certain point, the price of through tickets, and 
 whether passengers went through without chaiige of cars, and was 
 answered in the aifirmatise, although he did not read the written 
 and printed stipulation on the face of the tickets, that the carrier 
 would not be responsible beyond its own line, yet such stipulation, 
 although not to l)e regarded as the sole evidence of contract, may 
 be considered in connection witli what transpired when the tick- 
 ets were purchased, in determining what lial>ility was intended to 
 be assumed, and whether the carrier will be answerable for bag- 
 gage injured beyond its own hne.^ See § 158. 
 
 § Itj'/. TcriniiKifioii of Liahilifif. 
 
 Tliero is some variance in tlu' authorities concerniuir the cir- 
 ••umhtances which terminate a passenger carrier's liability, and 
 ^Flamhuvf/ American Packet Co. v. Uattman, 137 111. 598. 
 *New York Vent, tfc //. R It. Co. v. Vraloff, 100 U. S. 24, 25 L. ed. 5 31; 
 
 Mangin v. Dinnmore, 62 N. Y. 35; Hart v. Penmulrania R. Co. 112 U. S. 
 
 331,28L. ed. 717. 
 *J.'/iiMDille, A". <fe O. A'. R. Co. v. Katzriihcrt/er, 16 fjca, 380. Consult /.eir,'^ 
 
 V. j\ew York H. C. Co. 3 New Eng. Rep.' 358, 143 Mas.s. 267. 
 *Couiiird V. Kant Tenneit»ee, V. & O. R. Co. 16 Lea, 225. 
 ^Central. Trmt Co. v. Wit/mn/i, .St. L. <(• /'. li. C". 31 Fed. Rep. 247.
 
 TKUMIXATION OF I.IAKIMTV. 583 
 
 they are not entirely liarmonious in priiicij^le, and they are not 
 nnifonn on different lines of carriage. 
 
 The doctrine whicli Iiolds passcnf^er cai-riers hahle for V>agga<^e 
 lias not always existed, and lias grown np ont of changes in 
 methods of carriage. It has always ditfei-ed somewhat, in regard 
 to conditions of deliverv, from the liability attaching to handling- 
 freight; and while it is vciw generally and properly spoken of as 
 a dnty arising from the relation of common cai-riage, it is also 
 treated hy varions writers as in many respects analogous to the 
 duties of innkeepers. It is certainly (piitc similar to the duty of 
 innkeepers in tlie ease of passenger steamers on long trips, the 
 main business (»f which is boarding and lodging passengers, the 
 ■carriage of whose baggage is purely incidental.' 
 
 The iial)ility of the cai-rier, as acai-i-ier, does not cease on reach- 
 ing the destination. There nmst first be a deliverv or its equiva- 
 lent." Where a railroad company has several stations where pass- 
 engers may alight in a city, it is its duty to deliver the baggage at 
 the station where the passenger alights, and it will be liable for 
 damages for refusal to do this on demand and carrying it to a 
 union station in the city.^ 
 
 The transportation of the ])assenger being the main purpose, 
 and the carrying of the bagaage being a mere incident, its delivery 
 must be controlled by the contract under which the passenger 
 accepts transportation. If the contract with the passenger requires 
 his transportation over connecting lines, the same responsibility 
 Avill attach as to his baggage.* 
 
 Although the jiassenger may retain the luggage in liis personal 
 control, yet the carrier is bound to deliver it to him at the end of 
 the journey, and if the usual course of delivery is at a particular 
 spot, that is the place of delivery.^ The cai-rier by railway should 
 Jiave the luggage of the passenger on the platform at the usual 
 
 •But see Clurk v. Burns. 118 Mass. 275. 
 
 ^Michigan Cent. R. (h. v. Ward, 2 Mich. 53.S; liacklei/ v. Oreat Western R. 
 
 Go. 18 Mich. 121; Fei(/e v. Michigan Vent. E. Co. 63 Mich. 1. 
 'Pittsburgh, C. cfc St. L. li. Co. v. Lyon, 2 L. R. A. 489, 123 Pa. 140. 
 * Wilson V. Chesapeake d- 0. R. Co. 21 Gratt. 654: Illinois Cent. R. Co. v. 
 
 Copeland, 24 111. 3;«; Hart v. Rens-vhier d- S. R. Co. 8 N. Y. 37, WeedY. 
 
 Saratoga d S. R. Co. 19 Weiul. 534; Mythn v. Midland R. Co. 4 Hurlst. 
 
 & N. 615. See ^ 158. 
 ^Itichards v. London d 8. C, JR. Co. 6 Railway Cas. 49.
 
 584 cakrip:k's kespoxsibii^ity vor baggage. 
 
 place of delivery, on the arrival of the train, until the owner, with 
 due diligence, is ready to receive it ; and until sucli reasonable 
 time expires the liability of the carrier continues.' 
 
 Where the carrier by rail furnishes porters at its stations whostv 
 duty it is to carry the passenger's lug-gage from the cars to the 
 hired carriage of the passengers, the liability of the coin})any as 
 carrier continues until the porters liave discharged their duty."^ 
 Where the passenger delivered a carpet-bag containing a large 
 sum of money on alighting from the car to the porter of the car- 
 rier, for the purpose of having him secure a cab, and the porter 
 placed the carpet-bag on the foot-board of the cab while he returned 
 for the other baggage, and the carpet-bag was stolen, the carrier 
 was held liable for the negligent act of the porter/ Where, on 
 the arrival at its destination, the passenger's baggage is delivered 
 to a porter to be transfei-red to another earlier, which is done, its 
 subsequent loss will not justify an action against the first carrier.* 
 
 A railroad company is liable for property inadvertently left by 
 a passenger in a car as he left the train and taken by its servants 
 in charge of the car.* 
 
 Where baggage which has l^een checked does not arrive at the 
 same time that the passenger does he is entitled to notice.* 
 
 Just what a reasonable time is, after arri\al, must dejiend upon 
 the circumstances in each particular case; and where the facts are 
 Jindisputed it is a question of law for the courf But .the fact of 
 giving a stop-over ticket to a sick passenger who does not reach his 
 destination at the time his baggage does and is ready for delivery, 
 will not extend the lia])ility of the carrier and cover a loss by firo- 
 without fault of the carrier." 
 
 ^ Patscheidcr v. (jveat ^Vedern R. Co. L. R. 3 E\ch. Div. 153. 
 
 ^Ricluirds v. London & 8. G. R. Co. 7 C. B. 8^9. 
 
 'Butcher v. London & S. W. R. Co. 16 C. B, 13. 
 
 *Midland R. Co. v. Bromley, 17 C. B. 372. 
 
 '■Bonner v. Be Mendoza (Tex. App.) May 21, 1891. 
 
 ^Wilson V. Grand Trunk R. Co. 57 Me. 138; Wilmn v. Chesapeake tt- 0. R^ 
 
 Co. 21 Gralt. 654; Chicago <fe A. R. Co. v. Addizoat, 17 III. App. 632. 
 ''Dininny v. IS'ew York & JS. IT. R. Go. 49 N. Y. 546; Nevins v. Bay State 
 
 S. B. Co. 4 Bosw. 225; Curtis v. Avon, O. & Ml. M. R. Co. 49 Barb. 
 
 148; Roth V. Bnffalo <fe S. L. R. Go. 34 N. Y. 548; Powell v. Myers, 26 
 
 Wend. 591; IloUister v. JVowfen, 19 Wend. 234; Cole v. Goodmn, 19- 
 
 Wend. 251. 
 ^Chicago, H. 1. d l\ R. Go. v. Bopce, 73 111. 510.
 
 TERMINATION OF LIABII.ITY. 585 
 
 A carrier having inisdelivored the baggage, contrary to the 
 agreement, to another carrier, it remains Hable as insurer for any 
 injury or loss occurring on the route upon which the baggage was 
 diverted.' And if tlie delay be due to the fault of the carrier, he 
 will be held liable as carrier/ 
 
 The carrier should deliver the baggage promptly from the car, 
 vessel or other vehicle, and keep the same at hand in a public place, 
 without storing, so that the owner may conveniently and without 
 delay claim and take possession thereof. Baggage left in the 
 baggage room (jf a railroad company, in its own depot, remains in 
 its possession, although it was taken from the baggage car by em- 
 ployes of an express company.^ A railroad company is liable only 
 as a warehouseman for a trunk left in its charge by the owner 
 after ample opportunity to remove it, solely for the purpose of 
 saving drayage thereon.* The passenger should claim and take 
 possession of his baggage witliin the time which the carrier could 
 be reasonably expected to hold the baggage for him in the place 
 and manner above described." A passenger who arrives in the 
 forenoon should demand his baggage on the evening of the day 
 of his arrival.* Baggage arriving at 12 o'clock in the morning 
 and not called for until the next morning — when it was destroyed 
 by iire^will not furnish a cause of action against the railway as 
 carrier.' 
 
 Usaacson v. ]^ew York (Jeut. d- II. B. li. Go. 94 N. Y. 283; Johnson v. New 
 
 York Cent, d- H. R. R. Co. 33 N. Y. 610; Condict v. Grand Trunk R. Co. 
 
 54 N. Y. 500. 
 ^Jacobs V. T^tit, 33 Fed. Rep. 413; Biirnell v. New York Cent. R. Co. 45 N. 
 
 Y. 184; Dininny v. New York tfc N. U. R. Co. 49 N. Y. 546; Mattison v. 
 
 New York Gent. R. Co. 57 N. Y. 552; Gary v. Cleveland <fc T. R. Co. 2& 
 
 Barb. 35. 
 ^Aikin v. Wentcoit, 123 N. Y. 363. 
 *Galveston, H. & 8. A. R. Co. v. Smith, 81 Tex. 479. 
 
 * Jacobs V. Tutt, 33 Fed. Rep. 412; Roth v. Buffalo <t- 8. L. R. Co. 34 N. Y. 
 
 548; Jones v. Norwich dt N. Y. Transp. Co. 50 Barb. 193; Klein v. Ham- 
 burg American Packet Go. 3 Daly, 390; Chicago, R. I. tfe P. R. Co. v. Fair- 
 clough, 52 111. 106; Louiscille, C. tfe L. R. Co. v. Mahan, 8 Bush. 184; 
 Hoeger v. Chicago, M. & St. P. R. Co. 63 Wis. 100; Chicago & A. R. Go\ 
 V. Addizoat, 17 111. App. 632; Ouimit v. IlensJiSw, 35 Yt. 605; Bansemer 
 V. Toledo tfe W. R. Go. 25 Ind. 435; Hogan v. Grand Trunk B. Co. 2 
 Quebec, L. R. 142; Matteson v. New York Gent. & H. B. R. Co. 76 N 
 Y. 381. 
 
 * Jacobs V. Tutt, 33 Fed. Rep. 412; Ouimit v. Henshaw, 35 Vt. 605; Hold- 
 
 ridge V. Utica tfe B. R. li. Co. 56 Barb. 191; Roth v. Buffalo <& S L R 
 Co. 34 N. Y. 548. 
 ^Hogan v. Grand Trunk R. Co. 2 Q. L. R. 142.
 
 586 CAKKIEKS KESPONSIKILITI' FOR BAGGAGE. 
 
 But the storat^e of a trunk for one niG:lit was not for an unrea- 
 sonable length of time; and if it was removed the next morning 
 from the room to the platform for the purpose of being sent for- 
 ward with the passenger on anotlier road, and the comi)any'8 
 agent undertook to perform the duty, but neglected it, the com- 
 pany would be liable, if not as a common carrier, for want of 
 extraordinary care, at least as a liailee for liire, for want of ordinary 
 •care.' Allowing a trunk to remain at the express office for the con- 
 venience solely of the owner relieves the company from lialjility 
 as a eonnnon carrier, but not from liability as a warehouseman or 
 otherwise, for delivery of the truidc to another than the owner.' 
 
 A delivery of ])assenger's baggage in conformity to well estal)- 
 lished and notorious usage known to the passenger, will be suffi- 
 cient, but a passenger is not required to expose his person or 
 endanger his safety in an attempt to designate or claim his prop- 
 ■erty.^ A carrier cannot confiscate propert}^ shipped as baggage, 
 because carried in violation of its rules, or in attempting to avoid 
 legal freight, or in disregard of the laws of the government of the 
 United States.* 
 
 Where a passenger on a railroad train, having arrived at tlie 
 point of destination, enters into a contract with a transfer com- 
 pany, for an agreed compensation, to procure his baggage from 
 the raih-oad coi)ij)any's depot, and haul it to his residence, and for 
 that purpose surrenders his baggage checks, the transfer company 
 is responsible to him for the safe keeping and delivery of his 
 baggage.' 
 
 After the lajise of a reasonable time the carrier will only be 
 liable as warehouseman for reasonable care." 
 
 A clause in a railway act limiting an action against railways for 
 damages for injury to a certain pei'iud does not apply to suits for 
 loss of baggage.' 
 
 Uiome R. Go. v. Wimbeiiy, 75 Ga. 316. 
 
 "Oderkirk v. Fargo, ^ Hun, 347. 
 
 ■Cole V. Goodwin, 19 Wend. 251. 
 
 *Tanco v. Booth (N.Y.) 39 N. Y. S. K. 82. 
 
 "Da Ponte v. Nem Orltans TrauHfer (Jo. 42 Lh. Ann. (596. 
 
 ■'Fairfax v. New York Cent, d- U. R. R. Co. 67 N. Y. 11. Chicago, R. L dk 
 
 I'. R. Co. V. Faircloiirjh, 52 111. 106; Whitney v. Chicuqo tfe N. W. R. Co. 
 
 27 Wis. 327. 
 "^AnderHOH v. Canadian Pac. R. Co. 17 Onl. Kep. 747, 40 Am. & Eog. It. 
 
 CttH. 624.
 
 TKRMl^ATl«)^ oi« LiAiui.nv. 587 
 
 A railroad company can not excuse itself foi- the loss of 1 »ai:;<>;aofe 
 which, under its re<^ulations or by statute it is i-ecjuiri^l to carry, 
 by a clause in its regulations declaring- that it will not be respon- 
 sible for the delivering of the same, unless booked or checked and 
 paid for accordingly, where such package has been delivei-ed to one 
 of its servants and no proof is intr(»duced showing pi'ojxT ])i-ovi- 
 sion made for booking ;ind checking luggage.' 
 
 The carrier was held liable for the damage occasioned a traveler, 
 where, his baggage having been left at the station on a deposit 
 ticket, the oflice was closed on a Sunday evening and (le[)artnre 
 from the city delayed." 
 
 A passenger on a steamboat who takes a stop-ovei- check at an 
 intermediate point, permitting her baggage to remain on board, 
 upon the porter's assurance that it would be all i-iuht. and who 
 follows it on another steanun- si-vcral days after, cainiot recover 
 for its loss in the meantime, l)y the bui-ning. witliout fault, of a 
 warehouse belonging to the local agents of the carrier in which 
 the baggage was placed at the point of destination, subject to 
 delivery on presentation of the check. The acts of Oongress do 
 not hold a carrier by watei* lial)le for such a tire,^ 
 
 In order U) hold defendant, it must be held that his liability 
 exceeds that of an innkeeper. It must also be held that a liability 
 that did not exist M'liile the baggage was in transit on board the 
 steamer was created when the transit ceased, and the baggage M'as 
 put into warehouse. "JMiis seems to be unreasonable. When the 
 passenger arranged to have her baggage f(»rwarde(l. she had a 
 right to expect it would not be neglected, and Avould l)e properly 
 cared for; but she was also bound to expect that it would be dealt 
 with in the usual way, and be left at its destination, and not ke])t 
 on board the steamer, which had a further destination. She 
 held the check for it, which prevented delivery to anyone else, and 
 she was to come down on another boat some days later. The 
 baggage would necessarily be landed and cared for in a warehouse, 
 which in this instance was not the warehouse of defendant, but 
 was owned by othei- i)arties, who acted as local agents, as is usual 
 
 Wreat Wt'Diern Jl Co. v. Ooodman, 12 C. B. 318. 
 ^Stallard v. Great Western li. Co. 2 Best & S. 419. 
 . ^American TraiiKp. Co. v. Moore, 5 Micli. 368, aftiimed by the Supreme 
 Court of the United States in 65 U. S. 24 How. 1, 16 L. ed. 674.
 
 bbb CAKKIHk's EESPO^blJULITV KOK BAGGAGE. 
 
 for steamboats, Tlie bago-a<^e was subject to delivery on call and 
 presentation of the check; but plaintiff expected delay, and that it 
 must be some days, at least, before it would be called for, and must 
 be stored meanwhile in some way. The reasonable view seems to 
 be that the warehousing at the termination of the transit was within 
 the contemplation of both parties; and it would be irrational to 
 create a constructive relation of carriage, after the real carriage 
 terminated, which should involve a larger responsibility than the 
 actual carriage and to hold defendant for a loss by fire in a warehouse 
 which is not chargeable to a warehouseman as such, and would 
 not have been chargeable to defendant if it had happened on 
 board.* 
 
 Baggage checks constitute prima facie evidence that the car- 
 rier has not delivered the baggage." But this may be disproved." 
 
 § 158. Liahility of Connecting CcLvriers. 
 
 The primary liability of the initial carrier may be somewhat 
 determined by the baggage check given over connecting roads.* 
 
 Where the passenger purchases from one railroad a coupon 
 ticket over several connecting lines, receiving a check for baggage 
 Mitli the names of all the roads stamped on it, the ticket and the 
 cheek furnish no evidence that the connecting roads are jointly 
 engaged in the business of carrying passengers ; but the facts are 
 consistent with two theories: — either that the first road made an 
 entire through contract, it employing the other companies, or, 
 what is more prol)abk', that each company is the agent for the 
 others to sell tickets and check baggage for them ; and, in either 
 view, the other roads will not be responsible for a loss of baggage, 
 witliout proof that it actually came into possession of the road 
 sought to \)(i chari'cd.'' But. whore it is shown that the basfo-afire 
 
 ^Laffrey v. Qrummond, 3 L. li. A. 287, 74 Mich. 186. See also Both v! 
 
 Bufalo <{■ S. L. U. (Jo. 34 N. Y. .'548; .Junes v. Nortrich <& N. Y. Transp. 
 
 Co. r,o Barb. 193; Louixville <£- X. R. Co. v. Mahan, 8 Bush, 184. 
 ^DaviH V. Michigan, S. <fe N. I. E. (Jo. 22 III. 278. 
 ■'Chicago, It. I. & P. R. Co. v. Clayton, 78 III. 616. 
 HllinoiH (J, Id. R. (Jo. V. (Jopel.i.nd, 24 III. ;};j2; MUnor v. New York db N. U. 
 
 n. (Jo. .■):{ N. V. 363; WcL-oph v. Ch('.s<ij)eti/.e tfc 0. R. Co. 21 Gratt. 654; 
 
 Dili V. South Carolina A'. Co. 7 liich. L. 108. 
 ^KcMler V. Neio York Cent, tfe H. R. R. Co. 61 N. Y. 538.
 
 LIAIUI.ITV Ol' C'O.NNKCTIMU CAKKIKlib. 589 
 
 <;ame into tlie possession of tlio connoctino" road, this evidence will 
 be sufficient to render it responsible for its safe delivery.' 
 
 It is competent for either of several connecting lines to coiiti-ju-t 
 with a passenger over its line, for the transportation of liimseli 
 and baggage over the whole distance; or that its liattility should 
 be confined to loss or damage occurring on its own road ; but the 
 collection by one of the contracting carriers, of fare in advance foi* 
 the entire journey, without limitation as to risk, renders it liable 
 on receipt of the baggage, to transport it safely to the end of the 
 route and then deliver it, on demand, to the passenger,'' In case of 
 the receipt by a railway company of a passenger's check for bag- 
 o-asre, which has not arrived bv another road, a'ivina' its own check in 
 exchange therefor, its act in subse({uently surrendering the pass- 
 enger's first check will presumptively charge it with tlie receipt 
 of the baggage from the company to which it surrenders the 
 check/ "Where baggage has been delivered to be transferred over 
 connecting lines, its delivery to one of such lines must be shown. 
 The tracing of the property into the possession of one carrier is 
 sufficient to render it liable in the absence of proof on its part of 
 delivery to the next carrier.* Where the last of several connecting 
 roads, while denying its liability for lost baggage, makes a deduc- 
 tion upon the travelers' return fare over its roads in consideration 
 of a release of all claims against it for the alleged loss, — ^neither 
 the payment nor tin; release can aftV'ct the liability of the initial 
 road to answer to the traveler.^ 
 
 Where a suit was instituted against the terminal road of three 
 uniting roads for baggage lost at some unknown point, the lia- 
 bility M^as sustained on the grouiul that the check delivered by 
 the first road was the check of the terminal road, as well as the 
 other companies'.' A passenger traveling over connecting lines, 
 who, upon arriving at his destination, finds that his trunk has been 
 broken open and robbed, may sue either the company issuing the 
 
 ^Atchison, T. & S. F. B. Co. v. Breioer, 20 Kan. (369. 
 
 "Baltimore & 0. B. Co. v. Campbell, 36 Ohio St. 647; Louisville & JS'. R. Co. 
 
 V. Weaver, 9 Lea, 38; Croft v. Baltimore & 0. B. Co. 1 Mc Arthur, 492. 
 ^Chicago, B. I. & P. B. Co. v. Clayton, 78 111. 616. 
 *Kent V. Midland B. Co. L. R. 10 Q. B. 1. 
 ^Louisville t6 N. R. Co. v. Weaver, 9 Lea, 38. 
 "Texas & P. B. Co. v. Fort (Te.\'.) 9 Am. & Eng. R. Cas. 302.
 
 590 CAKKJKk's liESlMiNsllill.lTV Ii>U HAGUAGK. 
 
 check, or the one delivering!; the ba<igai»;e in that condition/ 
 Where troods are found broken, in tlie possesision of a connecting 
 carrier, the neghgence is prima faeie chargeable to it, and it it. 
 under the burden of proving that the loss happened Ijefore the 
 goods reached it.' 
 
 A recovery was permitted from the first of connecting roacK 
 for loss of baggage, although there were three connecting road> 
 between the point of eml)arkatiou and destination, and althougli 
 the first company had safely delivered the baggage to the con- 
 necting road.' The Georgia Code, section 2084, declaring the last 
 t»f a connecting line over which goods are shipped, which receive^ 
 them in good order, is liable to the consignee, does not apply to 
 the baggage <jf a passenger, checked and accompanying him on 
 liis passage.* 
 
 Under the English decisions, where, by arrangements between 
 three companies, tickets are issued for the entire distance and the 
 fares are divided between them according to the mileage traveled 
 on each line, the purchase of a through ticket renders the first 
 company liable for the loss of baggage, and an action can not be 
 maintained against either of the other carriers.^ 
 
 § lo9. Lien on Baggage for Charges. 
 
 The carrier has a lien up(jn the baggage of the passenger which 
 is in its possession for the fare legally chargeable. But inasmuch 
 as the fare due from the passenger to the carrier is a mere debt, 
 wliich the carrier has no means of enforcing, outside of legal pro- 
 cess, except by his lien upon the baggage, it will be liable if the 
 conductor in seizing or attem])ting to seize articles of personal 
 apparel belonging to a passenger for the payment of fare, com- 
 mits an assault upon the passenger." 
 
 A carrier holding a passengers baggage under its lien for fare. 
 will be answerable for any articles taken from the baggage.^ 
 
 ' Wolff V. (•enlml R. Co. 68 Ga. 65a. 
 
 ' Liii V. Terre Haute cC; /. 11. (-o. 10 Mo. App. 125. 
 
 ^Havhij V. tier even, 63 Ga. 847. 
 
 ♦ Wolff V. Centml R. Co. 68 Ga. 658. 
 
 "Mylton V. Midland R. Co. 4 Ilurlst. & N. 615. 
 
 */{amsdt'u V. Boaton ifc A. R. Co. 104 Mass. 117, 
 
 \Sonth WcHtirn R. ('o. v. lieHthi, 51 Ga. 311.
 
 ACTION KOR LOSS OF BAGGAGE. 591 
 
 Where a passenger surrendering his ticket at a point short of 
 his destination, permits liis baggage to be carried to a point for 
 which he originally took passage, the baggage may be held under 
 the lien of the carrier for an additional charge, upon the passenger 
 resuming his journey and refusing to pay his fare.' Where the 
 carrier receives the baggage of one who does not go by the same 
 train, it is entitled to demand compensation for the transportation 
 of freight, and no higher liability is then assumed than for this 
 character of goods.^ 
 
 Although trunks carried by an express company and retained 
 in their office for a reasonable time, were sold, under order of the 
 court, to pay charges, this will not relieve the carrier from liability 
 for making such sale with the trunks locked and unopened, and 
 the contents not exposed.^ 
 
 § 160. Action for Loss of Baggage. 
 
 Contract is not the form of action for loss of baggage, but the 
 foundation of the right is the carrier's breach of the legal duty." 
 An action must be in tort if the baggage was carried free, and the 
 obligation of the carrier is to no greater diligence than any other 
 gratuitous service." 
 
 The husband is the proper plaintiff in an action for loss of the 
 personal effects of the wife, in the absence of an express gift 
 thereof to the wife. The husband may recover for baggage con- 
 sisting of articles which had been previously used by him, his wife 
 and child, although he was not personally present on the trip.* 
 
 Owing to the difficulty of obtaining proof of the value of the 
 contents of trunks lost by the negligence of the carrier, it has long- 
 been recognized under the common law rule, excluding: the testi- 
 mony of parties interested, that an exception existed in favor of 
 the passenger.' This rule, however, is only applied in cases of 
 
 ^Eoberts v. Eoeliler, 30 Fed. Rep. 94. 
 ^Oraffam v. Boston & M. R. Co. 67 Me. 234. 
 ^ Adams Exp. Go. v. Schlessimjer, 75 Pa. 246. 
 *Catlm V. Adirondack Co. 20 Hun, 19. 
 ^Flint i& P. M. B. Co. v. Weir, 37 Mich. 111. 
 * Curtis V. Delaware, L. & W. R. Co. 74 N. Y. 116. 
 
 ''Parmelee v. McNulty, 19 111. 556; Davis v. Michigan 8. & N. 1. R. Co. 22 
 111. 278.
 
 592 cakrikr's responsibility for baggage. 
 
 necessity and wliere other evidence is not obtainable; and in Penn- 
 sylvania the rule is, that the liability of tlie carrier must first be 
 established for the loss. This exception hasi been carried so far as 
 to permit the wife, who had packed the trunks of herself and 
 husband, to testify as to their contents and value.' Indeed, in 
 extreme cases, the affidavit of the party has been admitted as proof 
 of the value.^ But in Maine and Michigan, under the common 
 law rule, the testimony of the passenger is not admitted as to the 
 contents and value of a trunk.' 
 
 ^McOill V. Rowand, 3 Pa. 451. 
 
 '^Herman v. DHnkwater, 1 Me. 27. 
 
 ^Snow V. Eastern B. Co. 12 Met. 44; Wright v. Caldwell, 3 Mich. 51.
 
 CHAPTER XXYIIL 
 
 RECEIVERS ACTING AS CARRIERS. 
 
 ;§ 161. Lialility of Receivers — Distinction between Statutory Actions 
 
 for Death, and Common Law Actions for Negligence. 
 § 162. Liability of Receiver for Personal Injuries or Death. 
 § 163. Apparent Conflict of Authorities as to Liability of Receivers. 
 § 164. Personal lAability of Receivers. 
 § 165. Permission to Sue Receiver — Liability under Foreign Statute. 
 
 § 161. LiaMlity of Receivers— Distinction hetween 
 
 Actions. 
 
 The action for causing death being statutory, the distinction 
 Jl)etween that and a common law action is of course apparent. In 
 most of the states the language used in the statute is such as to 
 ])ermit a recovery, where the road is in the hands of a receiver at 
 the date of the injury. An action was brought by an adminis- 
 trator against receivers to recover damages for an injury resulting 
 in the death of his intestate, which, it was alleged, occurred through 
 the negligence of the agents of the receivers, and they were held 
 •officially liable. The action was brought under a statute of the 
 state of Ohio, which gave right of action in such cases against 
 iiny person or corporation through whose wrongful act, neglect or 
 fault death resulted, if the injury would have given cause of ac- 
 tion to deceased had he lived. The receivers were persons who, 
 under the Act, might be made officially to pay damages, for their 
 liability was not made to depend upon their relation to property. 
 Under such a statute they were liable, as receivers are liable, for 
 injuries not resulting in death when caused by negligence in the 
 business confided to their care.' 
 
 In another case the action was brought against a receiver of a 
 i-ailway company's property for an injury resulting in death, based 
 
 ^Murphy v. Holbrook. 20 Ohio St. 137. 
 38 598
 
 594 RECEIVERS ACTING AS CARRIERS. 
 
 on a statute which provided that "in every such case the person 
 who, or tlie corporation which, would have been liable if deatVi 
 had not ensued, shall be liable to an action for damages," etc. 
 This is in effect substantially the same as the Ohio statute, 
 and it was held that under it a receiver was liable officially to such 
 an action, and there can be no doubt of the correctness of the de- 
 cision, even in the absence of another statute, quoted in the opin- 
 ion, which provided, when the property of a railroad company 
 was placed in the hands of a receiver by order of the chancellor, 
 that "all expenses incident to the operation of said railroad shall 
 be a first lien on the receipts.'" Another instance was an action 
 l)rouo-ht against trustees in possession of a railroad, and operating 
 it for the benefit of mortgage bondholders, to recover damages 
 for an injury resulting in death. The statute then in force in 
 that state provided that, in case the life of any passenger on a 
 railroad, who was in the exercise of reasonable care, should be lost 
 by the negligence of the railroad, the company should be liable to 
 pay damages, not exceeding $5,000; and it was contended that by 
 the express terms of the statute the right of action was limited to 
 injuries received at the hands of railroad companies, but, on 
 account of another statute, the court said : "The original eighth 
 section of the Act of 1853 authorized the action against the rail- 
 road company only; but we are of opinion that the Act of 1858, 
 which authorized and regulated the surrender of the road and 
 franchises to trustees for the benefit of creditors, subjected the 
 property in the hands of such trustees to liability, and them to 
 suit under this statute.'" 
 
 An action for an injury resulting in death was brought against 
 a railroad company that was acting as receiver of two other rail- 
 ways, which it was operating in connection with a railroad it liad 
 leased, and the injury occurred on the leased road. In the opin- 
 ion the court said : "If the court of chancery consented that its 
 receiver might step outside his proper functions as receiver of the 
 Vernumt & Canada and Vermont Central railroads, and engage 
 as a lessee in business foreign to the administration of the prop- 
 <'rty in the hands of the court, he stands, as to such business, and 
 
 ^Little V. Dnsenberry, 46 N. J. L. 614, 50 Am. Rep. 445. 
 '^Lampliear v. Buckingham, 33 Conn. 238.
 
 LIA.BILI'J\r OF RECEIVEKS DISTINCTION BETWEEN ACTIONS. 595 
 
 as to all persons employed by him or having business relations 
 with him in the conduct of such foreign business, not as a receiver 
 in the sense that he is then an officer of the court, l)ut as a party 
 sui jur'in, acting as his own principal, and upon his own respon- 
 sibility. The order of the court, if any, sanctioning his engage- 
 ment in such business, is available to him in the settlement of his 
 accounts as receiver of the roads in the hands of the court, but 
 not as the gauge of his responsibility to third pei'suns dealing with 
 him." The court, however, does say that he would have been 
 liable had he been in fact a receiver, and not a lessee; and there 
 seems no reason to doubt the correctness of this conclusion under 
 the Vermont statute, which gives the right of action for the 
 "'wrongful act, neglect, or default of any person, eitlier natural or 
 artificial.'" 
 
 In an action against a receiver to recover damages for an injury 
 resulting in death, it was held that the receiver, under the aver- 
 ments of the petition, would be personally liable for his own mis- 
 feasance.* AVliere there is no claim of personal liability against 
 receivers for injuries causing death, there can be no recovery 
 where the only statute on which the liability can be grounded 
 provides that an action for actual damages on account of injuries 
 causing the death of any person may be brouglit in the following 
 cases : " When the death of any person is caused by the negli- 
 gence or carelessness of the proprietor, owner, charterer or hirer 
 of any railroad, steamboat, stage coach, or other vehicle for the 
 conveyance of goods or passengers, or by the unfitness, negligence 
 or carelessness of their servants or agents.'" Under this statute it 
 was held the receiver of a railroad is not a "proprietor, owner, 
 charterer, or hirer" of the road, within the meaning of the statute 
 making persons of the class described liable for the death of 
 any person by their own negligence or that of their servants or 
 agents." 
 
 ^Lyman v. Central Vermont R. Co. 59 Vt. 167. 
 
 *Eiwin V. Davenport, 9 Heisk. 45. 
 
 3Tex. Rev. Stat. art. 2899. 
 
 ^Turner v. Cross (Tex.) 15 L. R. A. 263.
 
 596 RECEIVERS ACTIXG AS CARRIERS. 
 
 § 162. Liahility of Receiver for Personal Injuries 
 
 or Death. 
 
 The liability of a receiver as such for personal injuries caused 
 by negligence in the operation of a railroad has been sustained in 
 numerous cases.' 
 
 It was said:'" ''Both upon principle and authority, I think it must 
 be held that a receiver operating a railroad under the order of a 
 court of equity stands, in respect to duty and liability, just where 
 the corporation would were it operating the road." That was a 
 case of injury to passengers, who while attempting to reach their 
 train were struck by a freight train at a depot. A receiver was 
 held liable for injury to a passenger to the same extent as the com- 
 pany would have been.^ 
 
 In an action against a railroad company and its receiver jointly 
 for the death of a servant, caused by the negligence of the receiver, 
 a recovery caimot be had against the company, where the receiver 
 was not primarily liable.* A receiver of a railroad company was 
 held liable for the death of a passenger resulting from negligence 
 of agents in operating the road.^ But in another case it is said an 
 action cannot be maintained against the receiver of a railroad for 
 injuries resulting in death, caused by negligence of employes of 
 the receiver.* 
 
 § 163. Apparent Conflict of Authorities as to Lia- 
 hility of Receivers. 
 
 Tlie cases of Henderson v. Walkei', 55 Ga. 481, and Thurman 
 v, Cherokee R. Co. 56 Ga. 376, which have been cited in text- 
 
 WurJcin v. SJiai-p, 88 N. T. 225; Fvller v. Jewett, 80 N. Y. 46, 36 Am. Rep. 
 
 575; Graham v. Chapman, 33 N. Y. S. R. 349; Sloan v. Central Iowa B. 
 
 Co. 62 Iowa, 728; Winboiirn's C<tse, 30 Fed. Rep. 167; Pope's Cane, 30 
 
 Fed. R' p. 169; Camp v. i?a?'H<??/, 4 Hun, 378: Murphy v. Jlolbrook, 20 
 
 Ohio St. 137; h'x parte Brown. 15 S. C. 518; Ex parte Johnxoa, 19 S. C. 
 
 492; Kinney v. Crocker, 18 Wis. Ti; Davenport y. Beceivers of Alabama 
 
 & C. B. Co. 2 Woods, 519. 
 ^Klein v. Jewett, 26 N. J. Eq. 474. 
 'STJ'ugue v. Smith, 29 Vt. 421, 70 Am. Dec. 424. 
 ^Tejcaif Pac. B. Co. v. Collins (Tex.) March 22, 1892. 
 ^Little V. Dusenberry, 46 N. J. L. 614, 50 Am. Rep. 445. 
 ^Houston tfc T. C. B. Co. v. Boberts (Tex.) April 15, 1892. Texas Pac. B. Co. 
 
 V. Collins (Tex.) March 22, 1892. In tliese cases a statute is construed.
 
 APPARENT CONFLICT OF AUTUOKITIES AS TO LIABILITY. OUT 
 
 books as in conflict with the general rule, are not so, but the 
 earlier case decides niercly that a statute giving employe's of a 
 railroad company the right, as an exception to the general rule, 
 to maintain actions for negligence of co-employes, does not apply 
 to employes of a receiver of a railroad as they are not within the 
 terms of the statute; and in the latter case the decision, without 
 showing the facts, is based on the earlier one. 
 
 Atrain, in a New York case it was held that a receiver could 
 not be held liable for the acts of his employes resulting in the 
 death of a passenger where he employed them in good faith and 
 diligence as the representative of the court under its orders and 
 had not held himself out as a carrier of passengers save as an offi- 
 cer of the court. The court said : "If this were otherwise the 
 law only allows a recovery for the death of a person when caused 
 by some wrongful act, neglect, or default; and a party can only be 
 made answerable when the act or neglect is in law his act or neg- 
 lect.'" 
 
 The case cited has been a source of some confusion. It has 
 l)een regarded as at variance with most of the other decisions on 
 the subject including those of the same state. The supreme 
 court of Kew York in a recent case held a receiver of a rail- 
 road liable for the negligent killing of a locomotive fireman 
 due to the defective condition of the track, and adopted the 
 rule that a receiver would be liable in such a case whenever 
 the railroad company would be under similar circumstances." 
 So the Court of Appeals held a receiver of a railroad liable for 
 the death of an engineer caused by derailment of a train,^ and a 
 receiver of a railroad was held lial)le fur the death of an engineer 
 by exjjlosion of a boiler.* IN o reference was made in any of these 
 cases to Cardot v. Barney, 63 K Y. 281, 20 Am. Kep. 533. 
 It is expressly found in Fxdler v. Jewett that there was no 
 negligence except on the part of mechanics to whom the duty of 
 inspection and examuiation of the boiler had been committed. 
 
 ^Cardot v. Barney. 63 N. Y. 281, 20 Am. Rep. 533. See Uovston & T. C. 
 
 R. Co. V. Roberts (Tex.) April 15, 1892; Texas Pac. R. Co. v. Collins (Tex.) 
 
 March 22, 1«92. 
 ^Graham v. Chapman, 33 N. Y. S. R. 349. 
 ■Wurkiii V. Sharp, 88 N. Y. 225. 
 ^Fuller V. Jeicett, 80 N. Y. 4G, 36 Am. Rep. 575.
 
 598 KECEIVERS ACTING AS CARRIERS. 
 
 So that the case seems to be ahiiost exactly in conflict with Car- 
 dot V. Barney, 63 ]S'. Y. 251, 20 Am. Eep. 533, as that is re- 
 ported. 
 
 In High on Receivers, § 3955, it is said : "Notwithstanding 
 the general doctrine holdinoj receivers of railwavs to the same lia- 
 bilities as common carriers as the companies themselves, has the 
 clear weight both of principle and authority in its support, it has 
 not been uniformly followed in JS^ew York and some inconsistency 
 and much uncertainty are observable in the decisions in that state 
 upon the question under consideration." He then cites Cardot 
 V, Barney as holding that a receiver of a railroad is not liable to 
 passengers for injuries sustained by the negligence of his em- 
 ployes when no personal neglect is imputed to the receiver in 
 their selection. Cardot v. Barney has also been referred to by 
 courts of other states as being contrary to the general doctrine. 
 But while the case as reported, and some of the reasoning of the 
 opinions, seem to be in conflict with other authorities, an exami- 
 nation of the summons and pleadings in the case shows that in 
 point of fact this decision is perfectly consistent with the other 
 Xew York cases on the subject. In Cardot \. Barney the de- 
 fendant was sued as an individual and charged as "owner" of a 
 railroad operating it as a common carrier, and relief was sought 
 against him without any reference to his receivership, while in the 
 other jNew York cases, as well as in most at least of the cases in 
 other states in which actions against receivers have been sustained 
 the defendant was sued "as receiver" and relief claimed against 
 "him as such. 
 
 Careful examination of the cases on the subject has failed to 
 reveal any case in which a receiver sued as such has been held 
 exempt from lialnlity in a common law action for negligence of 
 his employes where a railroad company in the same circumstances 
 would have been held liable. 
 
 § 164' Personal Liability of Receivers. 
 
 A receiver is personally liable for an injury occasioned by his 
 running a train with materially defective machinery, Mdiere he 
 lias knowledge of the defect.' But a receiver camiot be made 
 
 ^Erwin v. Davenport, 9 Ileisk. 44.
 
 PKKMISSION TO SUE RECKIVEE FOREIGN STATUTE. 599 
 
 personally liable for injuries resulting from the negligence of his 
 cni[)loy('!8 ill the absence of any negligence on his own part. 
 
 A receiver appointed in another state in possession of a road in 
 New York state under a lease was held liable in an action against 
 liiiii individually for injuries to an employe from defective appa- 
 ratus, and he could not shield himself by virtue of his being a 
 a receiver/ So it is decided that a receiver cannot claim any 
 exemption from lial)ility for acts of his employi's in respect to a 
 road which he is operating merely under a lease in connection 
 w itli the receivership property/ 
 
 § 16r^. Perfnission to Sue Receiver — Liahility 
 under Foreign Statute. 
 
 Actions against the receiver are in law actions against the 
 i-eceivership, or the funds in the hands of the receiver, and his 
 •contracts, misfeasances, negligences, and lialjilities are ofhcial and 
 not personal, &nd judgments against him as receiver are payable 
 only from the funds in his hands.* Hence it has been often de- 
 cided that the jurisdiction of the court appointing a receiver is 
 necessarily exclusive, and that actions at law cannot be pi'osecuted 
 against him except by leave of that court.* 
 
 This was the general rule in the absence of statute, but it is 
 now provided by Act of Congress that " every receiver or manager 
 ■of any proj^erty appointed l)y any court of the United States may 
 be sued in respect of any act or transaction of his in carrying on 
 rhe business connected with such property, without the previous 
 leave of the court in which such receiver or manager was appointed; 
 Init such suit shall be subject to the general equity jurisdiction of 
 the court in which such receiver or manager w^as appointed so far 
 .as the same shall be necessary to the ends of justice." * 
 
 ^Gixmp V. Barmy, 4 Hun, 373; Cardot v. Barney, 63 N. Y. 281, 20 Am. Rep. 
 
 5;J3. 
 ^Kane v. Smith, 80 N. Y. 458. 
 '■Lyman v. Central Vermorit R. Co. 59 Vt. 167. 
 *McNuUa V. Lochridge, 141 U. S. 327, 331, 35 L. ed. 796. 799. 
 '^Barton v. Barbour, 104 U. S. 126, 26 L. ed. 672; Davis v. Gray, 88 U. S. 16 
 
 Wall. 203, 21 L. ed. 447; Thompson v. Scott, 4 Dill. 508, 512. 
 •Act of March 3. 1887, 24 Stat, at L. 552, chap. 373. ^ 3, as corrected by the 
 
 Act of August 13, 1888, 25 Slat, at L. 433, 436, cliap. b66.
 
 OOU BECEIVERS ACTIIsU AS CAKEIEKS. 
 
 An action was brought in a state court July 13, 1887, against the- 
 receiver of a railway, to recover for tlie death of certain persons, 
 alleoed to have been caused by his negligence in the operation of 
 the road, on January 15, 18S7. Xo leave to sue had been grant- 
 ed by the court of the appointment of the receiver, but it was- 
 held that section 3 applied and there was no foundation for the 
 position that the receiver was not liable to suit without such per- 
 mission.' 
 
 Section 6 of the Act is as follows: 
 
 "That the last paragraph of section five of the Act of Congress 
 approved March third, eighteen hundred and seventy-five, enti- 
 tled, 'An Act to Determine the Jurisdiction of Circuit Courts of 
 the United States and to Regulate the Removal of Causes from 
 State Courts, and for Other Purposes,' and section six hundred 
 and forty of the Revised Statutes, and all laws and parts of laws 
 in conflict with the provisions of this Act, be, and the same are 
 hereby repealed: Provided^ That this Act shall not affect the- 
 jurisdiction over or disposition of any suit removed from the 
 court of any state, or suit commenced in any court of the United 
 States, before the passage hereof except as otherwise expressly 
 provided in this Act." 
 
 In a late case it is argued that under this proviso, the receiver- 
 ship suit having been commenced before aud being pending at 
 the time of the passage of the Act, was excepted from its provis- 
 ions, and that leave to sue was still required. It was ruled how- 
 ever that the proviso was intended to prevent the loss of jurisdic- 
 tion by reason of the repeal of prior acts and parts of acts, Lut it 
 does not limit the operation of the express provisions of section 
 three; that as jurisdiction without leave is maintainable through the 
 Act of Congress, and as the receivers became such by reason of, 
 and derived their autliority from, and operated the road in obedi- 
 ence to, the orders of the circuit court in the exercise of its judi- 
 cial powers, tliat jurisdiction existed because the suit was one 
 arising under the Constitution and laws of the United States; and 
 this is in harmony with previous decisions.* The objections raised 
 
 ^McNuUa V. Lochridge, 141 U. S. 327. 331, 35 L. ed. 796, 799. 
 
 "^Buck V. (Jolbath. 70 U. S. 3 Wiill. 344 18 L. ed. 261; Ftibdmnn v. Packard, 
 
 \m U. tt. 421, 27 L. ed. 984; Bock v. Ferkius, 139 U. b. C^8, 35 L. ed.. 
 
 314.
 
 PERMISSION TO SUK KECEIVKK FOREIGN STATUTE. 001 
 
 in respect of the matter of diverse citizenship cannot, therefore be- 
 sustained. 
 
 It is said further that jurisdiction over the receivers, pci-sonally, 
 was lackiuii;, because one defendant resided in the northern dis- 
 trict of Texas and another defendant was an inhai)itant of Louisi- 
 ana; and that under the Act of 1887 the action could not be 
 instituted in a district whereof neither of the defendants was an 
 inhabitant. It was answered, if the suit be regarded as merely 
 ancillary to the receivership the objection is without force, but 
 irrespective of that, this immunity is a personal privile2;c which 
 may be waived. The defendants not only demurred but answered, 
 and the second ground of denmrrer was that the petition did not 
 set out a cause of action. Under such circumstances they could 
 not thereafter challenge the jurisdiction of the court on the ground 
 that the suit had been brought in the wrong district.* 
 
 The statutory limitation in Louisiana and in Texas, upon the 
 right of action asserted in this case, was one year, and that defense 
 was interposed to the amended petition, which was not filed until 
 that period had elapsed. It is jDut, in argument, upon two grounds: 
 (1) that jurisdiction did not appear by the original petition; (2) 
 that the amended petition set up a new cause of action. But the 
 court says that assuming that the first ground is open to consider- 
 ation, it is sufficient to say that, in the light of the observations 
 already made, the fact that jurisdiction existed was sufficiently 
 apparent on the first pleading. As to the second gi-ound, it is 
 true that if the amended petition, which may perhaps be treated 
 as equivalent to a second count in the declaration, had brought 
 forward a new and independent cause of action, the bar might 
 apply to it," yet, as the transaction set forth in both counts was 
 the same, and the negligence charged in both related to defective 
 conditions in respect of coupling cars in safety, we are not disposed 
 by technical construction to hold that the second count alleged 
 another and different negligence from the first. 
 
 It was further urged that the cause of action founded upon 
 the statute of Louisiana conferring the right to recover damage 
 
 ^Bt. Lonu & 8. F. B. Co. v. McBride, 141 U. S. 137, 35 L. ed fi.59; Filsgerald 
 & M. Const. Co. V. Fitzgerald. 137 U. S. <J8 34 L. ed. 608; Firiit Nat. 
 Bank of Charlotte v. Morgan, 132 U. S. 141, 33 L. ed. 2»2. 
 
 *Sicard v. Davis, 31 U. S. 6 Pet. 124, 8 L. ed. 342.
 
 •G02 RECEIVERS ACTING AS CARKIETJS. 
 
 foi- an injury resulting in death, was not enforceable in Texas. 
 Tlie action, being in its nature transitory, might be maintained 
 if the act complained of constituted a tort at common law, but as 
 a statutor}^ delict, it is contended tliat it must be justiceable not 
 only where the act was done, but where redress is sought. If a 
 tort at common law where suit was brought, it would be presumed 
 that the common law prevailed where the occurrence complained 
 of transpired, but if the cause of action was created by statute, 
 then the law of the forum and of the wrong must substantially 
 concur in order to render legal redress demandable. 
 
 Mr. (7//?V/'J?^s■/'//^^ Marshall stated the international rule, with 
 customary force, that: "The courts of no country execute the 
 penal laM's of anothei'," but we have held that that rule cannot be 
 invoked as applica1)le to a statute of this kind, which merely 
 authorizes " a civil action to recover damages for a civil injury.'" 
 This was a case instituted in iSIew York to recover damages for 
 injuries received and resulting in death in Xew Jersey, and it was 
 decided that a right arising under or a liability imposed by either 
 the common law or the statute of a state may, where the action is 
 transitory, be a? sorted and enforced in any court having jurisdic- 
 tion of such matters and of the parties. And notwithstanding 
 some contrariety of decision upon the point, the rule thus stated 
 is, in the decisions of the courts, generally recognized and applied 
 wliere the statute of the state in which the cause of action arose 
 is not in substance inconsistent with the statutes or public policy 
 of the state in which the right of action is sought to be enforced. 
 The statutes of these two states on this subject are not essen- 
 tially dissimilar, and it cannot be successfully asserted that the 
 maintenance of jurisdiction is opposed to a settled public jiolicy of 
 the state of Texas. 
 
 It was licld by the Supreme Court of Texas that suit could 
 not be brought in that state for injuries resulting in death inflicted 
 in the Indian Territory, where no law existed creating such a right 
 of action.' The opinion goes somewhat further than this in 
 expression, but in that regard has not been subsequently adopted. 
 
 >r/w' Aidchm, 23 U. S. 10 Wheat. G«, 123. 6 L. ed. 268, 282. St-e also Ben- 
 jiick V. Central R. Co. of Mew Jemiy, 103 U. S. 11. 26 L. ed. 439; Wii^con- 
 Kin. V. Pdican Im. Co. of IW-w OrUaiiH, 127 U. S. 265, 32 L.ed. 239; Eun- 
 ti/if/>on V. AffriU (181)2), 8 Times, L. R. 341. 
 
 *WiUin V. MiHHo^iri Pac. It. Co. Gl Tex. 432.
 
 PEKMISSIO>f TO sup: KICCEIVKR FOREIGN STATUTE. 603 
 
 It was said that M'liile there was some conflict of decision, it 
 seemed to be pjenorally held tliat a riglit given by the statutes of 
 one state would be recognized and enforced in the courts of 
 another state whose laws gave a like right under tlie same facts.' 
 
 The Supreme Court declined to sustain a suit in Texas by a 
 widow for damages for the negligent killing of her husband in 
 Arkansas, for the reason that the statutes of Arkansas were so 
 different from those of Texas in that regard that jurisdiction ought 
 not to be taken, but the court indicated that it would be a duty to 
 do so in transitory actions ^\•llere the laws of both jurisdictions 
 were similar. Tlie question, liowever, is one of general law, and 
 is now, notwithstanding some dissenting cases,* settled." 
 
 But it was insisted that the general rule ought not to be followed 
 iu one case because the statute of Texas giving a right of action 
 for the infliction, through negligence, of injuries resulting in death 
 does not apply to persons engaged as receivers in the operation of 
 railroads, and reference was made to a case^ in which the Supreme 
 Court of Texas so held, upon the ground that a receiver is not a 
 •• proprietor, owner, charterer, or hirer" of the railroad he has in 
 charge, and so not within the terms of the Texas statute. Without 
 ((uestioning the correctness of this view, still it would be going 
 much too far, the court says, to attribute to these decisions the 
 effect of a determination that an action could not be maintained 
 against receivers in the enforcement of a cause of action arising 
 in Louisiana, whose statute is not ojDen to such a construction.* 
 
 ^ Texas & P. R. Co. v. Fuehards, 68 Tex. 375. 
 
 ^Woorlward v. Mlchiqan S. & N. I. R. Co. 10 Ohio St. 121; Richardson v. 
 
 Nen York Cent. R. Co. 98 Mass. 85; McCarthy v. Chicago, R. I. & P. R. 
 
 Co. 18 Kan. 46. 
 ^St. Lovis, 1. M. d 8. R. Co. v. McCormick, 71 Tex. 660: Dennick v. Central 
 
 R. Co. of Netn Jersey, 103 U. S. 11, 26 L. ed. 489; Leonard v. Columbia 
 
 8team Nav. Co. 84 N. Y. 48. 
 *Turner v. Cross (Tex.) 15 L. R. A. 262, followed by another decision, Texas 
 
 Pic R. Co. V. Collins, decided March 22, 1892. 
 
 ^Texm & P. R. Co. V. Cox, 145 U. S. 593, 36 L. ed, 829.
 
 CHAPTEE XXIX. 
 
 ACTIONS AGAINST CARRIERS. 
 
 § 166, Right of and Form of Action and Recovery. 
 
 § 167. Abatement of Suit hy Death of Party Injured — Federal and 
 Stale Courts. 
 
 § 168. Action for Death Caused by Defendant's Negligence. 
 
 § 109. Criinitial Action for Negligence Causing Death. 
 
 § 170. State Statutes Regarding Actions for Death Caused by An- 
 other's Negligence. 
 
 § 166. Right of and Form of Action and 
 Recoverij. 
 
 The riglit to recover for injury by negligence of the carrier 
 during the life of the person injured was recognized at common 
 law. But the right of action ceased with the death of the injured 
 party before judgment.* A person injured by the negligence of 
 a carrier is entitled to receive one compensation for all damages^ 
 past and prospective, including expenses incurred, loss of time, 
 and for actual suffering of body and mind.'' 
 
 A passenger wrongfully ejected from the train is not confined, 
 as to his damages, to the additional amount of fare he was com- 
 pelled to pay, but is entitled to recover for the humiliation suf- 
 fered and the indignity done him,^ 
 
 Expenses for medical attention are proper damages in an action 
 for personal injuries.* Nursing, as well as pain, loss of time and 
 medical expense, may properly be considered in fixing the amount 
 of recovery for personal injury.^ Where medical eervices are 
 proved in an action for personal injuries, nominal damages at 
 
 ^Baker v. Bolton, 1 Campb. 493; Holland v. Lynn & B R. Go. 144 Mass. 
 425: Soiile V. Neio York & N. H R. Co. 24 Conn. 575; W/dfford v. Pan- 
 ama R. Co. 23 N. Y. 4(15; Lyons v. Woodward, 49 Me. 29; Oliio c& M. R. 
 Co V. TindaU. 13 Ind. 3««; Hyatt v. Adarm, 16 Mich. 180; Chicnyo & W. 
 1 R. Co. V. Schroeder, 18 III. App. 828; Edgai- v. Costello. 14 ». U. 20. 
 
 « Wallace v. Wilmingtpn <fe N. R. Co. (Del.) Dec. 13, 1889. 
 
 ^PennxyLvania Co. v. Bray, 125 Ind. 229. 
 
 *nnlekan v. Green Bay, W. & St. P. R. Co. 68 Wis. 520. 
 
 ^Chicago & E. L It. Co. v. Holland, 11 West. Rep. 51. 122 111. 461. 
 
 604
 
 EIGHT OF AXD FoiiM OF ACTION AND KECOVERY. 605 
 
 least should be awarded for professional treatment.' In an action 
 l)y a marj'ied woman for personal injuries, the damages should 
 not include the expenses of medical attendance, and the loss of 
 service and society sustained by the husband, for which he might 
 bring a separate action." Evidence of expenses incurred in seek- 
 ing a cure from personal injuries received through another's neg- 
 ligence is admissible in an action brought to recover damages for 
 such injuries, but the question should be submitted to the jury 
 whether or not they were necessary, reasonable and judicious 
 expenditures within the rule that such expenditures are a proper 
 ingredient in the damages to be awarded.' Damages impairing 
 physical ability, and for pain and suffering unavoidably incurred, 
 are recoverable in an action for negligence, even though the injury 
 was increased by want of proper care and medical attention." 
 
 The sura of $5,000 was awarded to a person for an injury 
 •occasioned by an accident by which he was thrown from a seat in 
 a car, cutting a deep wound on his face, which would have been 
 fatal by reason of lost blood except for prompt assistance, and 
 which caused tem^^orary, if not permanent, impairment of his eye- 
 sight and hearing, and much loss of time from his business, as 
 well as a considerable expense for medical aid and the prosecution 
 of the suit.* 
 
 The fact that a person suffering injuries from the negligence of 
 a railroad company over whose road he is travehng is afflicted 
 with a disease of Avhich he must ultimately die will not relieve 
 the railroad comj^any of responsibility for injuries which hasten 
 his death, or by which it is proximately caused.* 
 
 There is also a right in a husband or parent or master to recover 
 for loss of service of the wife or child or servant, even if the 
 injury caused death, up to the time of the death, caused by the 
 
 ^Feeney v. Long Island R. Co. 5 L. R. A. 544, 116 N. Y. 375, and cases re- 
 
 tVned to in note. 
 *Ohio & M. R. Co. V. Crosby, 4 West. Rep. 464, 107 Ind. 32, citinsr Tj^nr; v. 
 
 M'Trison. 14 Ind. 595; FuUcr v. Navgatuck R. Co. 21 Conn. 557; Rulii- 
 
 mrive City Pass. R Co. v. Kemp, 61 Md. 74; Cregin v. Brooklyn C. R. Co. 
 
 75 N. Y. 192; 2 Wood, Railway Law, 1245. 
 ^HaH V. Charlotte, G. db A. R. Co. 10 L. R. A. 794, 33 S. C. 427. 
 *Camei'on v. Vandergriff, 53 Ark. 381. 
 » Newman v. Alabama O. 8. R. Co. 38 Fed. Rep. 819. 
 * Louisville & N. R. Co. v. Jones, 83 Ala. 376.
 
 COG ACTIONS AGAINST CAKKJKKS. 
 
 earner's ne^lio-euce in inflicting injury. ' Included in tliis recov- 
 eiy in the United States has been the expense occasioned by the 
 ilhiess of the wife, caused by the distress produced by the injury 
 to the child/ and expenses of illness ^ and burial and mental 
 anguish. * The prospective loss, deducting the cost of sup])ort of 
 the child, is to be recovered. * 
 
 A parent suing for the loss of services of a child from a car- 
 rier's negligence can recover, as expenses for medical attendance, 
 only those actually incurred or immediately necessary.' In an 
 action for injuries to a child, future and contingent expenses for 
 medical attendance are recoverable only by the child, and not by 
 a parent.^ 
 
 The fact that one with whom an orphan is living has volun- 
 tarily assumed a parental relation toward him, but without adopt- 
 ing him, will not include, in a recovery by the infant for personal 
 injuries, damages for diminution of his earning capacity during 
 minority.* In an action by a father for the death of his child, 
 which fell into an exposed excavation, evidence that the father 
 was unable to employ any one but his housekeeper to take care of his 
 children is inadmissible on the question of contributory negligence.* 
 
 There is a distinction between a suit by a parent for injuries 
 resulting in the death of a minor child and that of an adult son. 
 The law gives the right to his services and the proceeds of his 
 labor in the former; and the probability that the minor would 
 
 » Fordv. Monroe, 20 Wend. 210; Kennard v. Barton, 25 Me. 39; Hall v. 
 Ilollander, 4 Barn. & C. 660; Hyatt v. Adams, 16 Mich. 180; Long v. 
 Alorrifion, 14 Ind. 595. 
 
 » Ford V. Monroe, 20 Wend. 210; Baltimore & 0. B. Co. v. Noell, 32 Gratt. 394. 
 a Bloan v. Neio York Cent. & II. II E. Co. 1 Hun, 510; Filer v. Hew York 
 Cent. R. Co. 49 N. Y. 47; Brooks v. Schwerin, 54 N. Y. 343. 
 
 • Si/kes V. Laiolor, 49 Oal. 236; Owen v. Brockschmidt, 54 Mo. 285; Pennsyl- 
 
 vania B. Co. V. Kelly, 31 Pa. 372; Sawyer v. Sauer, 10 Kan. 519. 
 t Drew V. Suth Ave. B. Co. 26 N. Y. 49; Ttlfer v. Northern B. Co. 30 N. J. 
 L. 188. 
 
 • Cuming v. Brooklyn City B. Co. 12 Cent. Rep. 219, 109 N. Y. 95, oiling 
 
 Co-wden v. Wright. 24 Wend. 429; Brew v. Sixth Ave. B. Co. 26 N. Y. 49; 
 Dixon V. Bell, 1 Si ark. 287. 
 
 1 Cuming v. Brook'yn City B. Co. 12 Cent. Rep. 219, 109 N. Y. 95. As to re- 
 covery see Fordiicev. McCant.^,4:L. K A. 290, 51 Ark. ^09;S)ttirkH v. Kan- 
 ms City, 8. & M. B. Co. 31 Mo. App. IW; R>ckf or d, B. I. & St. L. B.Co. 
 V. IManey, 82 III. 19H; Myhan v. Louisiana Electric L. (& P.Co.l L. R. A. 
 172, 41 La. Ann. 964. 
 
 « Ft. Forth Slreet B. Co. w .Wlntten, 74 Tex. 202. 
 
 • Maytiew v. Burns, 103 Ind. 328.
 
 KIGHT OF AND FOKM OF ACTION AND KEOOVERY. 607 
 
 remain in the service of tlie parent during minority, or would 
 have permitted the parent to have the proceeds ol" liis labor, is 
 said to be unimportant. But tliis rule does not apply in the case 
 of the suit for injuries resulting in the death of the son over 
 twenty one years of age, the legal right to the services not existing in 
 the latter case. In sucli a suit should be shown the reasonable 
 expectation of benefit the parent would have received had the 
 adult child not been killed, and in the absence of legal right to liis 
 services, this would depend upon the ability and will of such child 
 to confer the benefit on the parent.' 
 
 For gross negligence indicating malice, punitive damages liave 
 been allowed. * Upon the same principle the master could recover 
 for loss of service by negligent injury to an employe.^ 
 
 It is said by Willis, t/.,* that the law does not treat this cause 
 of action as founded simply on the wrong, but it gives a person 
 injured an election of proceeding by a form of action, either on 
 contract or in tort.* And the recovery will be governed by the 
 rules peculiar to the form of action. * Thus in tort all the parties 
 liable need not be sued.' And where the action was in contract, 
 where a special train had been chartered to convey a certain num- 
 ber of passengers to a particular place and bring them back the 
 same day, no recovery was permitted, on a willful and malicious 
 refusal to return the company, except for actual damage, and 
 nothing allowed for disappointment, anxiety, or sense of injury.^ 
 So in tort exemplary damages may be recovered. ^ 
 
 The same rule as to exemplary damages for willful misconduct or 
 gross negligence in the carrier or his employes, resulting in injury 
 
 ^DaVas & W. R Co. v. Spicker, 61 Tex. 429. See also Internationnl tfe Q. 
 iV. R. Co V. Kindred, 57 Tex. 498; Wiant v. International <£> 0. iV. R. 
 Co. 5 L. R. A. 172, 74 Tex. 83. 
 
 ^Klingman v. Uolmes, 54 Mo. 304; Magee v. Holland, 27 N. J. L. 88. 
 
 ^HuU V. llollander, 4 Barn. & C. 660. 
 
 *AUon V. Midland R. Co. 34 L. J. C. F. 293. 
 
 ^Brotheiton v. Wood. 6 Moore, 141; Cregin v. Brooklyn C. R. Co. 75 N. Y. 
 VSZ; brink v. Votler, 17 111. 40(j, 411. 
 
 ^Pennsi/lcania R. Co. v. People, 31 Ohio St. 537. 
 
 "^SUjckion V. Frey. 4 Gill, 406; Ansell v. Wateihouse, 2 Chitty, 1, 6 Maule & S. 
 385; Orange County Bank v. Bioion, 3 Wend. 158. 
 
 ^Walsh\. Chicago, M. & Si. P. R. Co. 43 Wis. 23; Hamlin v. Oreat North- 
 ern R. Co 1 Uurlst. & N. 408; New Orleans, J. dt Q. N. R. Co. v. Hurst, 
 36 Miss. 660. 
 
 *Eeirn v. McCaughan, 32 Miss, 17.
 
 -608 ACTION'S AGAINST CAKKIER8. 
 
 to a passenger, is applied as in actions for assault and battery, 
 false imprisonment and the like, where the award is made not 
 only by way of compensation to the sufferer, but also by way of 
 punishment of the negligent wrong doer and protection to the 
 public' 
 
 The rules of pleading are the same as prevail in all courts in 
 ordinary actions, and the same particularity and certainty are 
 required in averment. Thus a count in an action for damages 
 occasioned by a railroad accident, merely setting forth the facts 
 giving rise to the relation of carrier and passenger, averring the 
 •duty to carry safely, and the violation thereof by suffering plain- 
 tiff's wife to be killed and plaintiff to be injured, but not setting 
 forth any of the facts constituting the violation of duty, — is fa- 
 tally defective in that it merely states a conclusion of law." 
 
 Where there is a special contract varying the liability of a car- 
 rier, an action against it is properl}^ brought thereon, instead of on 
 its general liability.^ But an allegation that the plaintiff was sub- 
 ject to great inconvenience and injury is sufhcient to let in proof 
 of illness caused by exposure by reason of not being furnished 
 with sufficient bed clothing on the steamer.* 
 
 > Hnrt V. CJiarlotie, G. & A. H. Co. 10 L. R. A. 794. 33 S. C. 427, 3 Suth. 
 D.im. 2<0 et seq ; Quiiin v. Sout?i Carolina R. Co. 29 S. C. b86; Vvltz v. 
 Blickinun. 64 JS. Y. 440; Harmon v. Columbia & G. R Co. 28 S. C. 405; 
 S:onn v. Greea, 51 Miss. 103; Memphis & C. R. Go. v. Whitfield, 44 Miss. 
 4H6; Smailey v. Smalley, 81 111. 70; Bradley v. Morris, 44 N. C. 395: Mo- 
 bile <& M. R. Co. V. Ashcrnft, 48 Ala. 15; Ri/binson v. Burton, 5 Hair. 
 (Del.) a:}5; Fhet v. Holleiikcmp, 13 B Mon. 219; Riynor v. Nims, 37 
 Mich. 34; Wade v. Thayer, 40 Cal. 578; Shaw v. Brown, 41 Tex. 446; 
 K'lh V. Bankhead, 18 Tex. 228; McWilliams v. Bragg. 3 Wis. 424; Titus 
 V. CorkiuH, 21 Kan. 722; Mc Bride v. McLavghlin, 5 Watts, 375; Fox v. 
 8feren-<, 13 Minn. 272; Baltimore tfi F. Tump. Co. v, Booue, 45 Md. 
 844; JS'atvmal Bank of Che.-^ter v. Atlantic & G. A. L. R. Go. 25 S. C. 222; 
 2\liol8on V. CheeAham, 3 Johns. 56; King v. Root, 4 Wend. 113; Tifft v. 
 Culoer, 3 Hill, 180; Cook v. Ellis, 6 Hill. 466; Burr v. Burr, 7 Hill, 207; 
 T'lylor V. Church. 8 N. Y. 460; Hunt v. Bennett. 19 N. Y. 174; Millard 
 V. Bioinn, 35 N. Y. 297; Allabnck v. Utt, 51 N. Y. 651; Dibble v. Moi-ris, 
 26 Conn. 416: Goodspeed v. East Haddam Ba7ik. 22 Conn. 5^0; Palmer v. 
 Churhlte, G. tfi A. R. Co. 3 S. C. 580; Ellsworth v. Potter, 41 Vt. 685; 
 HoadUv V. Walloon, 45 Vt. 289; Taylor v. Grand Trunk R. Co 48 N. H. 
 320; Magee v. HMind, 27 N. J. L. 86; Elbin v. Wdson. 33 Md. 135; 
 Young V. Mertens, 27 iMd. 114; McWd.liamn v. Hohan, 42 Md. 56; Miller 
 V. Krrby, 74 III. 242; StiUwell v. BarneU, 60 III. 2l0; Kiingman v. Holmes, 
 54 Mo. 3U4; Kennedy v. North Misxouri R. Go. 36 Mo. 301. 
 
 *Dtiino V. Central Vennont R. Qo. 63 Vt. 98. 
 
 *Boaz V. Central R. Co. 87 Ga. 463. 
 
 *Slockton V, Bishop, 46 U. S. 4 How. 155. 11 L. ed. 918.
 
 ABATKMKNT OF SUIT BY DKATH OF PAKTV INJUKKD. 609- 
 
 § 167. Ahateinent of Suit hy Deatli of Pcu'ty In- 
 jured—Federal and State Courts. 
 
 The survivability of a right of action is a property right in re- 
 spect to which the Federal courts are governed by local law.' By 
 numerous decisions it is established as part of the common law of 
 this country that where a state makes conditions upon which for- 
 ■eign corporations may do business, and provides a method where- 
 by the courts of the state may acquire jurisdiction over them by 
 service of process upon designated agents within the state, a for- 
 eign corporation, subsequently doing business in the state, is 
 deemed to consent to the conditions and to be bound by the ser- 
 vice of process in the manner specified by the statute." In har- 
 mony with these princijiles, a railroad company, by constructing 
 and acquiring the ownership of its lines of railway in a state, and 
 transacting its business there, consents to become subject to the 
 laws of the state governing the commencement and prosecutions 
 of suits in the courts of the state, and to be bound by the service 
 of process upon its agents in all cases in which it should be a 
 party. Where its franchise has not been transferred with the con- 
 sent of the state, whoever, with its knowledge and consent, has 
 the actual control and superintendence of its railway, must be 
 regarded as its authorized agent and representative, and it will be 
 bound by the service of process upon such an agent.' 
 
 Without such authority and consent, a lease is binding only 
 upon the parties to it. As between themselves, it may limit their 
 rights and fix their responsibilities; but a plaintiff, as a member of 
 
 > Warren v. Furstenheim, 1 L. R. A. 40, 35 Fed. Rep. 691; Hatfield v. Bush- 
 nell, 1 Blatchf. 393; Barker v. Ladd, 3 Sawy. 44; Hodge v. North Minsouri 
 R. Co. 1 Dill. 104; Green v. Watkins, 19 U. S. 6 Wheat. 260, 5 L. ed. 256; 
 Clarke v. Mathewson, 37 U. S. 12 Pet. 164, 9 L. ed. 1041; Trigg v. Co7i- 
 way. Hemp. 711; Jones v. Van Zandt, 4 McLean, 604; Melius v. Thomp- 
 mn,\ Cliff. 125; Witters v. Foster, 23 Blatchf. 457, 26 Fed. Rep. 737; 
 Peakey. Baltimoi'e & 0. R. Co. 26 Fed. Rep. 495; Schreiber v. Sharpless, 
 110 U. S. 76, 28 L. ed. 65, 17 Fed. Rep. 589. 
 
 '*Gibbs V. Queen Ins. Co. 63 N. Y. 114; McNichol v. United States M. R. 
 Agency, 74 Mo. 457; Ehrman v. Teutonia Ins. Co. 1 McCrary, 123, 1 Fed. 
 Rep. 471; National Bank of Commerce v. Huntington, 129 Mass. 444; La- 
 fayette Ins. Co. V. French, 59 U. S. 18 How. 404. 15 L. g6..A^\; Baltimore 
 & 0. R. Co. V. Harris, 79 U. S. 12 Wall. 81, 20 L. ed. 358; Ex parte 
 SchoUenberger, 96 U. S. 369, 24 L. ed. 853; St. Clair v. Cox, 106 U. S. 350, 
 27 L. ed. 322; Pembina Con. S. Min. & Mill. Go. v. Pennsylvania, 125 U. 
 S. 181, 31 L. ed. 650. 
 
 '* Thomas v. Placer rille Gold Quartz Min. Co. 65 Cal. 600, 
 89
 
 610 ACTIONS AGAINST CAKKIKKS. 
 
 the piil)lic, is in no way affected by it. His riglits are tlie same 
 as if no such contract liad been made or attempted.' 
 
 The laws of the state providing for the service of the process of 
 the state courts in actions at law furnish the rules for procedure 
 in such cases in the United States courts so that whatever would be 
 lawful service of process to bring a party into court, if the action 
 were in a court of competent jurisdiction under the state govern- 
 ment, is lawful and sufficient for the purpose in actions com- 
 menced in the United States courts,'' An action for damages for 
 a death caused by negligence, where the local law authorizes such 
 action, may be brought in the Federal court by the administrator, 
 against a citizen of another state, although deceased was a citizen 
 of the same state with defendant, where his widow and children 
 still reside.' If the action be in contract against a ship it may 
 proceed in revx and survive to the administrator.* 
 
 The suitor may have a remedy in such a case in a state court, 
 and even the admiralty courts have jurisdiction where the right 
 of action was created by state statute, enacted subsequent to the 
 passage of the judicial act. * But the admiralty courts of the 
 United States cannot take cognizance of a suit to recover damages 
 for the death of a human being on the high seas, or in waters 
 navigable from the sea caused by negligence, in the absence of an 
 Act of Congress, or the statute of a state giving a right of action 
 therefor.* 
 
 State courts may exercise jurisdiction and give a remedy for 
 consequential injury growing out of a maritime tort, for instance, 
 an act causing death, where no remedy for such injury exists in 
 
 ^Lakin v. Willamette, V. & C. E. Co. 13 Or. 436; Braslin v. Somerville IT. R. 
 Co. 145 Mass. 64; Fnlmer v. Utah d: N. R. Co. (Idaho), Feb. 8. 1888: 
 Washington, A. & G. R. Co. v. Brown, 84 U. S. 17 Wall. 445. 21 L. ed. 
 675; Chicago d- N. W. R. Co. v. Crane, 113 U. S. 433, 434, 28 L. ed. 1067: 
 Oregon R. tfe JVav. Go. v. Oregonian R. Co. 130 U. S. 1, 32 L. ed.837. 
 
 ^Ex parte ScholUmberger, 96 U. S. 369, 24 L. ed. 853; Neic England Mut. L. 
 Ins. Co. V. Woodworth. Ill U. S. 146, 28 L. ed. 381; Re Loiminlle Under- 
 writern, 134 U. S. 493, 33 L. ed. 994; 2 JVIorawetz. Priv. Corp. § 983; Van- 
 Bremr v. Oregon R. & Nav. Co. 48 Fed. Rep. 202. 
 
 'llnipzr V. Norfolk & W. R. Co. 36 Fed. Rep. 102. 
 
 *The City of Brussels, 6 Ben. 370. 
 
 'The Columbia, 27 Fed. Rep. 704, American S. B. Co. v. Chace, 83 U. S 16 
 Wall. 522. 21 L. ed. 369. 
 
 *T/ic Ilarrisburg, 119 U. S. 199, 30 L. ed. 358; Metcafe v. The Aaska, 130 
 U. S. 201, 32 L. ed. 923.
 
 ABATKMENT Or SUJT BY DKAl'H UF I'AKTV INJLKED. Oil 
 
 the admiralty courts. * Tlie acts of assenil)ly of Pennsylvania 
 approved April 15, 1851, and April 20, 1885," do notby thoir terms 
 create a lien for death by nciiligence upon tlie high seas; and, as 
 there is no jurisdiction outside of statutory provision, none can be 
 sustained.' Any defense that will bar recovery in the state 
 courts in an action for nealiifcnce causing the ck^atli of a person 
 must be held equally good in admiralty. * And , while the right 
 to revive an action in the Federal court is made by U. S. Rev, 
 Stat. § 955, to depend upon the survivability of the cause of action, 
 these courts are bound by a local law.^ 
 
 The survivability of a local action is governed by the local law, " 
 such as that of Tennessee, ' which saves an action already com- 
 menced, although the right of action would not have survived 
 except for the previous commencement of the suit. Under this 
 Act the survival)ility of a cause of action in all cases except for an 
 injury resulting in death, remains as at connnon law unless an 
 action has already been brought before death, which would oth- 
 erwise abate the cause of sietion. A personal action under the 
 Tennessee code is not ai)ated by the death of a party except when 
 it affects the character of the plaintiff only. The decisions in 
 other states depend upon the particular statutes which have been 
 enacted in most of them. 
 
 In Pennsj'lvania it is held that under the statute the liability 
 for negligently causing death does not survive against the admin- 
 istrator; but that under the Constitution the right of action for 
 injuries resulting in death shall survive; saving the cause of action 
 but not the liability." But, it is said, till a right exists, there can 
 be no remedy; but when the right is given whether by the com- 
 mon law or statute, there must be some remedy. The right of the 
 next of kin to compensation for a pecuniary injury, is given by 
 
 ^American S. B. Co. v. CJiace, 83 U. S. 16 Wall. 523, 21 L. ed. 369. 
 
 »Pub. Laws, 674, 309. 
 
 ^ Welsh V. The North Cambria, 40 Fed. Rep. 6o.j. 
 
 ^TIieA. W. Thompsoji, 39 Fed. Rep. 115. 
 
 ^Fawlkesv. Nashville & D. R.Co.9 Heisk. 829; Collins v. East Tennessee cfe 
 
 V. R. Co. 9 Heisk. 841; M'itters v. Foater, 26 Fed. Rep. 737. 
 «See Warrens. Farstenheim, 1 L. R. A. 40, note, 35 Fed. Rep. 691. 
 'Carr. & N. Tenn. Stat. 68; Thompson & S. Code, i^§ 2845, 2846; Mill. & 
 
 V. Code, §§ 3559, et seq. 
 *Moe V. Smilei/, 3 L. R. A. 341, 125 Pa. 136.
 
 612 ACTIONS AGAINST CAKKIKKS. 
 
 statute, and to enforce it a connnon law action is given to the 
 personal re2)re>entatives. It is this common law remedy that is 
 saved. The supreme court of jS^ew York, it was ruled, had juris- 
 diction of an action against the owners of a steamboat navigating 
 Lake Champlain for causing death of plaintiff's intestate by negli- 
 gence while a passenger on their boat within said state. ' 
 
 Under X. Y. Code Civ. Proc. § 764, an action for damages for 
 a personal injury abates on the death of plaintilf before verdict, 
 report, or decision upon the issues; and the v.ord "decision" refers 
 to a decision by the court upon a trial without a jury. Hence 
 neither a nonsuit nor an order of re\'ersal thereof by the general 
 term "is a decision," within the meaning of that section. The 
 Missouri statute in respect to the abatement of an action for per- 
 sonal injuries by the death of a party being only declai-atory of 
 the common law, such an action abates by the death of the defend- 
 ant pending appeal, and cannot be revived in the name of his 
 administrator. 
 
 The abatement of an action for personal injuries on the death 
 of the plaintiff before verdict, report, or decision, as prescribed by 
 the Xew York statute, is not affected by the stipulation required 
 by the code for judgment absolute in case of affirmance upon 
 appeal from an order granting a new trial." 
 
 In Maryland an action by a husband to recover damages for 
 the negligent killing of his wife, abates on the death of the 
 husband; but the statute mIucIi provides for the survival of per- 
 sonal actions, expressly exempts from its operation actions for 
 personal injuries." Although the action is brought in the name of 
 the state, yet it is founded entirely on the statute which provides 
 that every such action shall be for the benefit of the wife, hus- 
 band, parent and child, or the ])erson whose death shall have been 
 caused, " and shall be brought in the name of the state of Mary- 
 land for the use of the person entitled to damages." * There 
 is no contractual relation in such cases between the state, the 
 
 ^Donrjan v. Champlain Tramp. Co. oG N. Y. 1. See Byall v. Kennedy, 8 
 .Jones & S. 347; The City of Bvmach, 6 Ben. 370; Plummer v. Webb, 1 
 Ware, 75; Smith v. Bnxrn, L. R. Q. B. 729; Sherlock v. Ailing, 93 U. 
 8. 99, 23 L. ed. 819; Boutiller v. The Milwaukee, 8 Minn. 97. 
 
 ''Gorbett v. Twenty -third St. R. Co. 24 N. Y. S. R. 538. 
 
 3Rev. Code, Maryland, 1878, p. 092, ^ 32. 
 
 *Rev. Code, ^ 78, p. 724.
 
 AKATEMENT OF SUIT BY DEATH OF I'ARTV INJURED. 613 
 
 legal plaintiff, and the defendant. The state in fact is merely 
 a formal party, and not liable in any manner, for the .costs ; and 
 in such circn instances, it cannot be successfnll^' contended that 
 upon the death of the equitable plaintiff, the suit could have been 
 cHrried on in the name of the state against the defendant.* 
 
 Revised Statutes of Wisconsin, § 1339, very clearly contem- 
 plates that the party who shall give the notice required by that 
 section is the party iiijured through the negligence of the de- 
 fendant; in fact no one can maintain an action under that sec- 
 tion other tlian the party injured. If the party entitled to bring 
 the action di(^ before judgment rendered in his favor, all the right 
 under that section is lost." 
 
 In Connecticut, by tlie conuuoii law an acti<.>n for p»M'sonal inju- 
 ries does not survive to the administrator of the person injured; 
 and there is no statute in that state by virtue of which a common 
 law action for personal injuries is revived, or made to survive to 
 an administrator of the person injured. The fact that defendant 
 railroad was incorporated in both states, and that deceased was a 
 citi^ien of Massachusetts, cannot affect liability for an accident 
 occurring in Connecticut.' 
 
 In some of the states the maxim ae;t/)o lyeri^onalis moritur cum 
 persona lias been reformed by statutory enactment from time to 
 time enlarging the class of causes of action which survive, until 
 its effect as to personal claims dying with the person applies only 
 to claims for naked deceits, and for injuries to the person or char- 
 acter.* 
 
 Care is required not to be misled by the decisions, as it is doubt- 
 ful how far our com-ts may follow the modern English rulings 
 expounding the operation of the ancient Act of Parliament, 4 
 Edward, III., chap. 7. 
 
 Tiie distinction is between the aluitenuMit of a suit by death of 
 one or both of the parties to it, and the almtenicnt of a cause of 
 
 ^ State V. Baltimore & 0. R. Co. 69 Md. :539. 
 
 ^McKeigue v. Janesville, 68 Wis. 50; Randall v. North M'cxtem Teleg. Go. 54 
 
 Wis. 140; Meene v. Fond du Lac, 48 Wis. :fiS. 
 *Murphy v. JSfew York cfc ^V. //. R. Co. 30 Conn. 184. 
 *naight V, Hayt, 19 N. Y. 464; McKee v. Jiukl 12 N. Y. 622; Yertore v. Wis 
 
 wall, 16 How. Pr. 8; Smitli v. New Yoi-k <£• iV. //. R. Co. 16 How. Pr. 277; 
 
 Plied V. Neic York Cent. R. Co. 25 How. Pr. 280; Elder v. Bogardus, 
 
 Hill & Denio, Supp. 116; IHnlnny v. Fay, 38 Barb. 18.
 
 614 ACTIONS A(iAIN8T OAKKIKKS, 
 
 action by force of the maxim actio personalis moritur cum per- 
 so-na^ Broom's Legal Maxims, 904. Tlie first is a matter of proced- 
 ure, purely so, and Congress lias made its own rule, as it may, 
 and by the Practice Conformity Act likcAvise adopted the state 
 practice where its own legislation does not control. At common 
 law every suit whether founded on contract or tort, abated by the 
 death of either party, and could proceed no further. It absolute- 
 ly perished. 
 
 The maxim that personal actions fomuled on torts do not sur- 
 vive the death of the wrong doer applies to all personal wrongs, 
 whether they arise ex contractu or ex delicto, as tlie administrator 
 i-epresents the personal estate, and not the personal wrongs of the 
 intestate. ' Whether tlie action survives does not depend on its 
 form, nor upon what it is fouTided on unless there was injury to 
 the pei'sonal estate. " If an action of tort grows out of a contract 
 it takes the urtture of the action of contract and vice versa and 
 does not survive. ' 
 
 One class of English statutes having tlie force of common law 
 with us abrogated this rule and allowinl the executor or admin- 
 istratoi- to come in voluntarily (»r l)e brought in by scire facian. * 
 It was a condition of these statutes that the revival could take 
 place only "if such action might be originally prosecuted or main- 
 tained by or against tlie executors or administrators of the part}' 
 dying;'" that is to say. provided the "cause of action" should be 
 unaffected by the deadly force of the above cited maxim. iS'ow 
 where or when it was so unaffected was and is one of the most 
 perplexing subjects, because another class of English statutes 
 modihed the maxim and it was, under their influence, still more 
 restricted bv judicial decision or opinion,* being, perhaps, the 
 basis of most of the modern decisions and legislation upon the 
 subject. The decisions U]>on which depend the survivability of 
 
 ' CftiiiiiherUuii V. Williumxou. 2 Maule & S. 415; Hamhly v. Trntt, Cowp. 872. 
 
 ^ Kiriqdon v. NoKte, 1 Maule & S. 855; Tm<'}i v. Levington., 2 Lev. 26, 1 Vent. 
 
 176. 
 " /Jud'lle V. Willx"ii, 6 T. K. :5f>'.t: Powe/l v. T.,i)i(»>t, 2 Bos. & P. N. R. 365. 
 ♦ 17 Car. II. chap. 8; H A; 9 VVm. 111. cliap. 11; Fost. Sd. Fa. 174, 186-200. 
 » Fost . Sfi. Fa. 1H7. 
 « Hnmbly v. Troti, Cowp, :!7I.
 
 ABATKNrKiVT OK SUIT BY DKATH OK I'AKTV IN.IUKKD. t>15 
 
 causics of action and tlie law upon the subject arc neither clear nor 
 iixed at the present day in England.' 
 
 Under the American decisions it is ditticult to find a standard 
 by wliich to test wliether any given cause of action is personal 
 onl^', which should die witli the wrong-doer or with the physical 
 sufferer from it.^ Congress cannot say what causes of action shall 
 or shall not survive to <;»r against executors and administrators. It 
 cannot create rights of property, whether of the survivability of 
 causes of action or what not, except as to ])atent rights, copy- 
 rights, and the like sul)jects within its exclusive jurisdiction. As 
 to other causes it has no power to determine their survivability 
 although it has the power to regulate the abatement of suits in 
 its own courts. The Act of Congress does not attach to the right 
 of revival conditions affecting the survivability of causes of action 
 but adopts the local law of the state in that behalf. The right of 
 action is given by local statute, the right of revival of the suit is 
 <'onferred by an Act of Congress commencing M'ith § 31 of the 
 original Judiciary Act of 17S9.' It is held that the original 
 Act of 1789 applied only to personal actions and that real actions 
 still abate as at common law in the Federal courts.* 
 
 The Code of Tennessee of 1858, $J 2845, enacts that "Actions 
 do not abate by the death, marriage or otiier disability of either 
 party or by transfer of any interest therein, if the cause of action 
 survive or continue." This section does not provide for the sur- 
 vivability of any causes of action, but the section does not declare 
 the whole law of the subject as it then existed. It enacts from 
 the Act of 1836 the declaration that actions (suits) shall not abate 
 by the death, as they did not mider former acts, and from other 
 acts the same declaration as to the affect of marriage, etc., if they 
 survive; but it did not undertake to enact — as did the Act of 1836 
 and only that Act — that the commencement of a suit should, with 
 certain exceptions, endow the cause of action embodied in the suit 
 with the quality of survivability. Section 281:6 declares that " Ko 
 
 ^Twi/cross V. Grant, L. R. 4 C. P. Div. 40; Phillips v. Homfray. L. R. 34 
 
 Ch. Div. 439; Fialay v. Chirney, 20 Q. B. Div. 494. 
 «22 Am. Law Reg. 353, 425; 2 Alb. L. J. 187; 33 Alb. L. J. 184, 204; 
 
 1 Chilty, Pr. 137. 
 H Stat, at L. 90. chap. 20: Rev. Stat. § 955. 
 ""Marker v. Thomas, 20 U. S. 7 Wheat. 530. 5 L. ed. 515.
 
 616 ACTlOJvS AGAINST CAKKIKR8. 
 
 civil actions commenced, wlietlier founded on wrongs or contracts, 
 except actions affecting the character of tlie plaintiff sliall abate by 
 death of either party, but may be revived." This section declares 
 the survivability of certain actions, those upon which suit is 
 brought when death occurs, but it does not provide for surviv- 
 ability as to any causes of action wdiatever upon wliich suit has 
 not been brought. As far back as 1831, chap. 17, the statutes 
 provide for the survivability of the "' right of action " for injury 
 to the person where death was caused by injury and not to any 
 other " cause of action whatever." ' Mill & V. Code established 
 as an exception to the general rule actions for injuries resulting 
 in the death of the victim of the wrong, and such suits may be 
 brought after the death." 
 
 § 168. Action for Death Cai:sed hy Defendant's 
 
 JS^egligence. 
 
 It is for the state to prescribe when and under what circum- 
 stances a cause of action shall arise against a person or corpora- 
 tion, operating within its limits by reason of an act done by it. It 
 may provide that for an injury done by the carelessness of such 
 person or corporation there shall be no cause of action on behalf 
 of the injured party, but punishment by indictment only; or it 
 may give such injured party the cause of action and for the same 
 injury make the corporation responsible by indictment or other 
 proceedings for a fine or damages which shall go to the state, to 
 the representatives of the injured party, or to any other person 
 named.' 
 
 By the ancient common law, as it existed before the statute of 
 Edward III., in whicli no action ex delicto survived to the per- 
 sonal representative, the maxim actio personalis inoritur cum 
 persona is of uni\ersal application." Subsequent to the statute 
 
 '^i^ SB91. 2294, Thompson & S. Code, §§ 8130-3135. 
 
 *FotolkeH V. Nashville d D. R. Co. 9 Heisk. 829; Collins v. EaM Tenneafiee dt 
 
 V. R. Co. 9 Ileisk. 841; Bream v. Brown, 5 Coldw. 173; Cherry v. 
 
 JIurdin, 4 Heisk. 199; Baker v. Dambee, 7 Heisk. 239; Bolin v. Stewart. 
 
 7 Haxt. 298; Trajf'ord v. Adams Exp. Co. 8 Lea, 96; Akers v. Akers, 10 
 
 Lea, 7;;Tliompson & S. Code, §§ 2845, 2846; Mill. & V. Code, 3559, 3560. 
 ^DaciH V. Niup York tt- N. E. It. Co. 3 New Eng. Kep. 408. 143 Mass. 301; 
 
 (Jorn. V. Metropolitan R. Co. 107 Mass. 236. 
 < Wilbur V. Qibnore, 21 I'ick. 250; Eden v. Le.nii<fton. dr F. R. Co. 14 B. 
 
 Mf)n. 204.
 
 ACTION FOK DKAllI CAISKI) IJY DEFKNDANt's NK(.I.IGKNCE. 617 
 
 of Kdward III., wliicli was lihorally construed, an acTii^ni for a tort, 
 by which tlie personal property of one is injured or destroyed, 
 survives to his administrator, such tort being an injury to the 
 property which otherwise would have descended to him. J^ut the 
 theory tiiat a personal injury to an individual was limited to him 
 only, that no one else suffered thereby, and that tlierefore by his 
 decease the cause of action itself ceased to exist, continued.' 
 
 At common law it was considered inconsistent with the settled 
 policy of the law, to permit the value of human life to be sub- 
 mitted to the jury on a question of damages.' The only cases in 
 which there seems to be recognition of the right to bring such an 
 action was where damages wei"e reco\ered for the killing of a slave 
 in wliicli tlic absolute right of property in the sla\e was involved, * 
 and an action in which the father was permitted to recover for the 
 loss of service, where his son was killed by the defendant. * The 
 last case was an exceptional ruling, no question, a])parently having 
 been presented to the court involving the right of action. The 
 authorities, with these exce])tions, are uniform in recognition of 
 the common law rule against the right of action, the right being 
 always denied except by aid of a statute. " 
 
 The authorities are so numerous and uniform to the proposition 
 that by the connnon law no civil action lies for an injury which 
 results in death, that it is impossible to speak of it as a proposi- 
 tion open to question. It has been decided in manj' cases in the 
 
 ^Kearney v. Boston & W. B. Corp. 9 Gush. 108; Hollenbeck v. Berksliire S. 
 Co. 9 Gush. 480; Cummings y. Bird, 115 Mass. 346; Stebbins v. Palmei; 
 1 Pick. 71, 78, 79; Wilbi/r v. Gilmore, 21 Pick. 250; Smith v. Sherman, 
 4 (^ush. 40H. 412; Davis v. New York & N. E. R. Co. 3 New Eng. Rep. 
 408, 143 Mass. 301; Soule v. New York & N. H. B. Co. 24 Conn. 575; 
 Murphy v. New York & N. H. R. Co. 30 Gonn. 188. 
 
 ^ Hyatt V. Adams, 16 IVIich. 180; Connecticut Mut. L. Ins. Co, v. Neir York 
 '<& N. K B. Co. 25 Gonn. 265. 
 
 ^ Smith V. Wearer, Taylor, 58. 
 
 * I'^d V. Monroe, 20 Wend. 210; Lynch v. Bams, 12 How. Pr. 323. 
 
 * Indianapolis, P. & C. B. Co. v. Ke^ly, 23 Ind. 133; Skinner v. Ilousaionic 
 
 B. Co. 1 Gush. 475; Connecticut Mut. L. Ins. Co. v. New York & N. H. 
 M. Co. 25 Gonn. 272; Qreen v. Hudson Biver B. Co. 2 Keyes, 294; Kramer 
 V. San Francisco St. B. Co. 25 Gal. 434; Selma B. & D. B. Co. v. Lacey, 
 49 Ga. 106; Eden v. Lexington <fe F. B. Co. 14 B. Mon. 204; Pennsylvania 
 R. Co. V. Adams, 55 Pa. 499; Mobile L. Ins. Co. v. Brame, 95 U. S. 754, 
 24 L. ed. 580.
 
 618 ACTIONS AGAINST CAKKIKKS. 
 
 Enojlish courts and in many of tlio state courts and no deliberate, 
 well considered decision to tlie contrary has heen found.' 
 
 Where plaintiff alleged the loss of the wife's comfort, benefit 
 a,nd assistance in domestic affairs which he mii>;ht and otherwise 
 would liave had. to his damage, a demurrer to the com])laint has 
 been made upoji the i^round that the facts alleged constituted no 
 -cause of action, and the Court of Appeals has sustained it.' 
 
 Where an injury i-eceived through the negligence of another 
 person results in the di-ath of the party injured, no remedy can be 
 had therefor at the common law. because personal actions under 
 that law died with the person; and even though the ])erson died 
 during its pendency, it could not be revived by his personal rej)- 
 resentatives.'' In the absence of a statute m-v provision therefor, an 
 admiralty libel cannot be enforced for damages resulting from 
 personal injury and death while unloading the cargo of a vessel.* 
 
 The connnon law remained unchanged until the passage of Lord 
 Oampbeirs Act." which gave an action in fa\or of husband and par- 
 ent, as well as of a wife and child for an injury occasioned by death 
 through the act of anothei-.'' By this Act it is provided that: "When- 
 ever the death of a person shall be caused by wrongful act, neglect 
 or default, and the act, neglect or default is such as would, if death 
 had not ensued, have entitled the party injured to maintain the 
 
 'See Baker v. Bolton. 1 Canujl). 493: Conntrtictii Mut. L. Inx Co. v. New 
 
 York & N. H. R. Co. 25 Conn. ','65; Kromrr v. San, BVanci«coSt. R. Go. 35 
 
 Cal. 434; IndianapoU.-t, P. d- C. R. Co. v. Keely, 23 Ind. 133; Hi/att v. 
 
 Adam.---, l(j Mich. 180; Sfiiekh v. Toin/e, 15 Ga. 349; Peorio,. M. & F. In». 
 
 Co. V. Front, 37 111. 333. 
 '^Oreen v. Hudmn Rircr H. Co. 2 Keyes, 294: Hnljtjh v. New Orleann t(; C. R. 
 
 Co. 6 La. Ana. 495. See also Hemian, v. Ncto OrleauK d- C. R. Co. 11 
 
 lia. Ann. 5; Mobile L. Im. Co. v. Brame, 95 U. S. 754, 24 L. ed. 580. 
 ^Hi'jfjrus V. Butcher, Yelv. 89; Baker v. Bolton, 1 Campb. 493; Connecticut 
 
 .ifut. L. Ins. Co. V. Neic York & N. II R. Co. 25 Conn. 275; Long v. 
 
 Morrixon, 14 Ind. 595; Stewart v. Ti'rrc Ilanti d I. R. C<>. 1 West. Rep. 
 
 152. 103 Ind. 44; Kdeu v. Le.ri.nr/lon d F. II. Co. 14 B. Mon. 204; Statev. 
 
 Griind Trunk R. Co. 58 Me. 170 ; Careji v. BerkMr,: R. Co. 1 Cush. 475; 
 
 Kearney \. Boxton d W. R. Corp. 9 C'lish. 108; Hyatt v. Adams, 16 Mich. 
 
 180; Miasouri Pac. R. (Jo. v. Lewi.t. 2 L. 11. A. 68, 24 Neb. 848; Wyatt v. 
 
 Williams, 43 N. H. 102; Slate v. Mauchexfer d L. R. Co. 52 N. H. 528; 
 
 Lncas V. Neir York Cent. R. Co. 21 B^rb. 245: Campbell v. Rogers, 2 
 
 Handy, 110; Worley v. Cincinnati, II. & I). R. Co. 1 Handy, 481; Books 
 
 V. Dantille, 95 Pa. 158; Mobile L. Ins. Co. v. Brame, 95 U. S. 754. 24 T. 
 
 ed. 580. 
 -• Welsh V. The North Cambria, 39 Frd. Hep. 615. 
 9 & 10 Vict. chap. 93. 
 ^■OrosH,, V. Delaware, L. d W. II. Co. .50 N. J. I. 317. '
 
 CRIMIXAf, A<^TIOX KOIi N Kcil.Ki KNCK CAUSIN<r DEA IK. tjl9 
 
 action and recover dainao:;es in respect thereof, then and in every 
 sncli case the person who would have been liable if death had not 
 ensued, shall be liable to an action for daniag-es, notwithstanding 
 the death of the person injured, and although the death shall have 
 been caused under such circumstances as amount in law to a fel- 
 ony;" and it is also provided that, "every such action shall be for 
 the benefit of the wife, husband, parent and child of the person 
 whose death shall have been so caused, and shall be brought by 
 and in the name of the executor or administrator of the jjerson 
 deceased; that in every such action the jury may give such dam- 
 ages as they may think proportionate to the injury residting from 
 such death to the parties, respectively, for whose benefit such ac- 
 tion shall be brought, and that the amount so recovered, after de- 
 <lucting the cost not recovered from the defendant, shall be 
 divided amongst the before mentioned parties, in such shares as 
 the jury by their verdict shall find and direct.'" 
 
 Closely following this act, most of the states have modeled 
 statutes thereon; not, however, as a rule, permitting the jury to 
 determine the question of distribution, but directing that the 
 recovery should be distributed in accordance -with the general 
 statutes controlling the disposition of estates among the heirs. 
 
 J^Jaturally carriers, more frequently than others, except possibly 
 manufacturers employing dangerous machinery, are amenable to 
 the provisions referred to. Some of the provisions extend the 
 benefits of the act to ]>arties not coming within the provisions of 
 the English statute. 
 
 .§ 169. Criniinal Action for J\^egligence Causing 
 
 Death. 
 
 Tlu^ first statute passed in Massachusetts making it an indictable 
 offense for a coimnon carrier negligently to cause the deatli of a 
 passenger, was the Statute of 1840, chap. 80, which provided that 
 "If the life of any person being a passenger shall be lost by reason 
 of the negligence or carelessness of the proprietor or proprietors 
 of any railroad, steand)oat, stage coach, or of connnou carriers of 
 passengers, or by the unfitness or gross negligence or carelessness 
 of their servants or agents in this commonwealth, such proprietor 
 or proprietors and common carriers shall be liable to a fine .
 
 620 ACTIONS AGAINST CAKKIKKS. 
 
 to be recovered bv indictineiit, to the use of tlie executor or ad- 
 ministrator of tlie dtjceased person," etc. Statute of 1833, chap. 
 414, subjected a railroad corporation to the same liability as the 
 statute of 1840, if from the same causes, " the life of any person 
 not bein^ a passenojer or employe of sncJi corporation shall be lost, 
 such person being in the exercise of due care and diligence," etc. 
 In the general statutes, provisions of the statute of 1840, § 80. 
 were re-enacted and so far as they relate to i-ailroad coi-porations 
 are contained in chapter t>3, § 97. Provisions of the Statute of 
 1853, chap. 414, were re-enacted in chap. 63 and 88. So far as 
 the provisions of the statutes of 184<>. chap. 80, relate to persons 
 or corporations other than raih'oads. they are re-enacted in Gen- 
 eral Statutes, cliap. 100, § 34. Relative to offenses against the 
 person in revision of the consolidation of 1874 of all general acts 
 relating to railroads, the provisions of the General Statutes, chap. 
 63, §§ 97, 9s, are as follows : "If by reason of negligence or care- 
 lessness of a railroad corporation, or of the unfitness or gross negT 
 ligence or carelessness of its servants or agents, while engaged in 
 the business, the life of any person being a passenger is lost, or 
 the life of any person being in the exercise of due diligence and 
 not being a ])assenger, or in the employment of such corporation, 
 is lost, in either case the corporation shall be punished," etc' The 
 conclusion from a ct^uipai'ison of these statutes is that the legis- 
 lature designed to subject the corporation to ihe penalty for caus- 
 ing the death of a passenger, though such passenger might have 
 been wanting in the exercise of due care. It would not be rea- 
 sonable to suppose that in all these statutes and revisions, the omis- 
 sion to requii'e due care from a passenger and the express require- 
 ment of it from other persons is unmeaning, and the due care is 
 required alike in both cases. The statute was designed in part to 
 impose a punishment for the carelessness of defendant or its ser- 
 \ants; anti, as has l)een said, the penalty "is doubtless to be greater 
 or smaller, within the prescribed maximum and minimum, accord- 
 ing to tlie flegre(! of blame which attaches to the dcifendants, and 
 not accorrliiig to the loss sustained by the widow and heirs of the 
 deceased."* Section 164 «»f the same chajiter, which provided 
 
 •Statvites 1874. chap. 272. ^ 1G3. 
 
 ^(Jarey v. Berkuhm It. <'<>. 1 Cusb. 475. See also Com. v. Eastern R. Co. 5 
 fJray, 478; Com. v. /i'»ito/i ,(• A. li. Co. 121 Mii.s8. 86.
 
 OKIMINAr AOTIOX J-OK iSiKUI.lGKNOK CALSINO J>KATH. 621 
 
 that in certain circninstauces a railroad company sliall be subject 
 to a tine recoverable bv indictment as provided in § 103, for an 
 injury to a person not a passen<^er '' unless it is shown that in addi- 
 tion to a mere want of ordinary care the person injured . . . 
 was at the time of the collision ji,uilty of gross or willful negli- 
 i^ence or was actiuii" in violation of the law, and that such <^ross or 
 willful neijligence or unlawful act contributed to the injury" is a 
 further indication that one purpose of the legislature was to punish 
 the defendant for his negligence. 
 
 By the Statute of 1881, chap. 199, §2, the burden is imposed on 
 the defendant of showing in the case of one not a passenger injured 
 at a crossing, in addition to the mere want of ordinary care, gross 
 or willful negligence; and under this section it was held that where 
 the jury might have found that no signal was given until the 
 engine Avas within from three to six rods of the crossing or even less, 
 at twilight, and the deceased, a young girl of sixteen, was within 
 three or four feet of the track when two sharp danger whistles 
 were then given and that she started to run across the track, 
 it could not be said as mattei- of law that the burden imposed by 
 the statute was maintained by this proof; that she attempted to 
 cross the track under these circumstances, although the track was 
 exposed for a mile and the headhght of the locomotive was burn- 
 ing; as she had a right to rely to some extent upon the signals of 
 warning which the law required to be given.' The want of such 
 signals may have led to her being in that situation. This is a 
 matter of inference. 
 
 Maine and Xew Hampshire are other states, in which the pro- 
 ceedings in similar cases are by indictment. The statute of 
 Maine expressly requires that the deceased, though a passenger, 
 should be in the exercise of due care. The statute of ISTew 
 Hampshire makes no distinction between passengers and other 
 persons not in the employment of the railroad company, and 
 makes no allusion to any question of due care on the part of the 
 person killed. The provisions for the fine and its disposition are 
 similar to those contained in the Massachusetts statute; and in 
 State V. Manchester <& L. R. Co. 52 JST. Y. 358, the proceedings 
 
 ^Copley v. New Haven & N. R. Co. 136 Mass. 6. See also Gai/nor v. Old 
 Colony & N. B. Co. 100 Mass. 208; Chaffee v. Boston & L. R. Corp. 104 
 Mass. 108.
 
 622 ACTIONS AGAINST CARRIERS. 
 
 though in the name of the state are held to be substantially a 
 civil proceeding to recover damages and to be governed by the 
 same rules as far as practicable as gdvern civil actions. 
 
 § 170. State Statutes Begarding Actions for 
 Death Caused hy Another's Negligence. 
 
 In most of the states in this country statutes have been passed 
 similar to Lord Campbell's Act.' It is not attempted here to pn- 
 sent more than the general features of state legislation, authorizing 
 the action, by those who either in legal contemplation, from their 
 relation to the deceased, or from proof of dependence on him, 
 liave suffered loss by his death. 
 
 In England and in most of the states of the Union, a remedy 
 in similar cases is given by statute to the personal representatives 
 of the deceased to recover by civil action, damages for the benelit 
 of the widow, children, next of kin or those dependent upon 
 deceased, and tliese statutes generally provide that the action may 
 be maintained when the circumstances are such that the deceased, 
 if he had survived, might have maintained an action for the inju- 
 ries received.* As the action for damages for injuries causing 
 death by defendant's negligence was unknown to the common 
 laM^, and it is of statutory origin, and, as such legislation is in de- 
 rogation of common law, it must be strictly construed.' 
 
 Wliile the action for personal injury is spoken of as surviving, 
 as there previously was no responsibility to the estate, these stat- 
 utes authorizing action for a death caused by the negligence of 
 another are by many of the courts lield to create a new cause of 
 
 ^Johnnton v. Ulfmlaiid & T. B. Co. 7 Ohio St. 336; Kansas Fdc. R. Co. v. 
 Maier. 2 Colo. 443: Tilley v. Hudson Hirer R. Co. 24 N. Y. 471 ; 2 Tbomp. 
 Neg. 1294-1809. See Louisville, N. A. & C. R. Co. v. Buck, 2 L. R. A. 
 520, 116 Ind. 566; Cleveland R. M. Co. v. Corrigan, 3 L. R. A. 385, notes. 
 46 Ohio St. 283. 
 
 *Quincy Coal Co. v. Hood, 77 111. 68; McKeigue v. Janesville, 68 Wis. 50. 
 
 ■^Stewart v. Terre Ilaute & I. R. Co. 1 West. Rep. 152, 103 Ind. 44; Grosso v. 
 Delaware. L. & W. R. Co. 50 N. J. L. 317; Turberville v. Stamp, 1 
 Comyns, 32. 2 Salk. 647; Filliter v. Phippard, 11 Q. B. 347. See Louis- 
 ville, N. A. & C R. Co. V. Buck, 2 L. R. A. 520. 116 Ind. 566; Miisouri 
 Pac. R. Co. V. lA^wvi, 2 L. R. A. 67, 24 Neb. 848; Cleveland R. M. Co. v. 
 Corrigan, 3 L. R. A. 385, 46 Ohio St. 283.
 
 STATK SJATUIKS KKGAKDING ACTl(.)Ms FoK JJKATH. 023 
 
 action unknown to the conmuMi law. Tliey are said to impose a 
 new liability and not to merely remove a bar to a remedy, such ; s 
 is interposed by the Statute of Limitations, which if withdrawn 
 by the repeal of the statute would allow an acti(»n to be maintained 
 for the orii>inaI cause. What the new liability shall be and 
 whether the orijjjinal lial)ility shall be destroyed or under what 
 conditions the new liability was created, or the oriiiinal liability 
 continued, shall Ite controlled, must be detei'niined by tlie law of 
 the state where the in juiy occurs.' 
 
 The Code of Alabama, § 2641, which i^ives an action for dani- 
 aujes to the personal representative of a deceased person whose 
 death was "caused by the wrongful act or omission of another," is 
 limited to cases in which the deceased person himself, if death 
 had not ensued, might have maintained an action for the same act 
 or omission; and since contributory negligence on the part of the 
 deceased would have been a complete defense to an action by him 
 it is equally a defense to an action by his personal representative.' 
 The rule is the same in Indiana.* 
 
 Under the Georgia Code, § 3033, a railroad company is liable 
 in damages for the wrongful homicide^ by its depot agent, in his 
 office, of one lawfully there for the purpose of transacting busi- 
 ness with him, and insanity of such agent is not available in its 
 defense, where the company employed him with knowledge of his 
 insane condition or of his being subject to sudden fits of insanity.* 
 
 The statute of Illinois,^ does not, as does the Act of February 
 1, 1863, give a new right of action to the administrator upon the 
 death of his intestate, because of the negligence of the defendant. 
 It simi)ly continues an existing action, or right of action, and pre- 
 vents its abating by the death of the plaintiff oi- party having the 
 right of action.* Plaintiff must allege and prove that deceased 
 left a widow and <'liildren, or next of kin, a failure to show which 
 
 ^Whitfard V. Panama B. Co. 23 N. Y. 470; Blake v. Mid/and E. Co. 10 Eng. 
 L. & Eq. 443; Richardson v. New York Cent. R. Co. 98 Mass. 85; Datis^ 
 V. New York <& N. E. R. Co. 3 New Eng. Rep. 408, 143 Mass. 301. 
 
 ^King v. Henkie, 80 Ala. 505. 
 
 ^Indianapolis, P. d C. R. Co. v. Keely, 23 Ind. 133. 
 
 *Chn8tian v. Columbus & R. R. Co. 79 Ga. 460. 
 
 •Rev. Stat. 1874, chap. 3, § 123. 
 
 ^Chicago & E. I. R. Co. v. O'Connor, 6 West. Rep. 773, 119 111. 586.
 
 621 ACTIU>'S AGAINST CAKKIKKS. 
 
 defeats the action. ' Wliere deceased leaves a widow, she may 
 sue, and if no widow, the children may sue, and if neither are left 
 surviving, then the other person dependent may sue." 
 
 In Illinois and Indiana, under the statute, an action for personal 
 injury caused by negligence, resulting in death, survives, and must 
 be prosecuted by the personal representatives of the deceased for 
 the beneiit of the widow and next of kin. ^ Where the statute, as 
 does Indiana Eev. Stat. 1881, p. 49, gives the right of action to be 
 brought by the personal representatives, the damages to inure to 
 the exclusive benefit of the widow, children or next of kin, if 
 decedent leave neither wife, child, nor next of kin, the action is 
 not maintainable.* 
 
 In an action by an administrator against a railroad company for 
 the death of his intestate caused by the negligence of the defend- 
 ant, the widow of such decedent is a competent witness. Neither 
 section 498 nor section 499 of the Indiana Code has any applica- 
 tion to the case.* In Iowa, the Code" providing that tlie right of 
 action for an injury causing death " shall be deemed a continuing 
 one, and to have accrued to such representative or successor at the 
 same time it did to the deceased if he had survived," gives only 
 one right of action for such injuries.^ An administrator may main- 
 tain an action for injury to his intestate resulting in immediate 
 death.* Where the injured person survives the injury for but a 
 moment, a cause of action (which survives to his rej)resentatives) 
 accrues to him as certainly as if he had lived for a month or a year 
 thereafter, the test being whether he lived after the injury, and 
 not how long he lived.' In Kansas a personal representative 
 bringing an action to recover damages for the death of the in- 
 
 ' Chicago d- R. 1. R. Co. v. Morris, 26 111. 400. 
 
 » Beard v. Sheldon, 113 111. 584. 
 
 ^ Chicago & E. I. R. Co. v. O'Cotmor, West. Rep. 773, 119 111. 586; Mayheio 
 V. Burns, 1 West. Rep. 577, 103 Ind. 328. 
 
 * St^mrt V, Terre Haute £ 1. R. Co. 1 West. Rep. 153, 103 lad. 44. 
 
 '■' Louisvilie, N. A. t£ C R. Co. v. Tlwmpson, 6 West. Rep. 555, 107 Ind. 443. 
 
 "Iowa Code, § 2525. 
 
 'FAwell V. Chicago & N. W. R. Co. 29 Fed. Rep. 57. 
 
 ^Worden v. Humeston & S. R. Co. 72 Iowa, 201; Conaern v. Burlington, G. 
 R. dk N. 21 Co. 71 Iowa, 490. 
 
 ^Kelloio V. Central Iowa R. Co. 68 Iowa, 470.
 
 STATE STATUTES KEGAKDING ACTIONS FOR DEATH. 625 
 
 testate brings such action, not for himself or in the right of the 
 estate, but as trustee for the distributees, the next of kin. * 
 
 In Kentucky^ the right is given to the personal representatives 
 or widow or heir. The administrator of a person who has been 
 willfully and maliciously killed cannot maintain an action for 
 damages against the person killing him, or the person causing it 
 to be done.' Under Kentucky Gen. Stat. chap. 57, § 1, a railroad 
 comj)any is liable for the death of any person not in its employ- 
 ment, caused by ordinary negligence." 
 
 Sections 3391 and 3392 of Howell's Annotated Statutes of 
 Michigan, provide as follows : 
 
 " § 3391. Whenever the death of a person shall be caused by 
 wrongful act, neglect, or default of any railroad company, or its 
 agents, and the act, neglect, or default is such as would (if death 
 had not ensued) entitle the party injured to maintain an action 
 and recover damages in respect thereof, then, and in every such 
 case, the railroad corporation which would have been liable if 
 death had not ensued shall be liable to an action on the case for 
 damages, notwithstanding the death of the person so injured, and 
 although the death shall have been caused under such circum- 
 stances as amount in law to felony. 
 
 " § 3392. Every such action shall be brought by and in the 
 names of the personal representatives of such deceased person, 
 and the amount recovered in any such action shall be distributed 
 to the persons, and in the proportion provided by law in relation 
 to the distribution of personal property left by persons dying in- 
 testate; and in every such action the jury may give such amount 
 of damages as they shall deem fair and just, to the persons who 
 may be entitled to such damages when recovered: Provided, 
 nothing herein contained shall affect any suit or proceedings here- 
 tofore commenced and now pending in any of the courts of this 
 state." 
 
 According to the decisions of the Supreme Court of Michigan 
 bearing upon the construction of these sections, a right of action 
 
 ' Union Pac. R. Co. v. Dunden, 37 Kan. 1. 
 «Ky. Gen. Stat. chap. 57, i^ 1. 
 '^Morgan v. Thompson, 82 Ky. 383. 
 ■* Louisville & N. B. Co. v. Smith, 87 Ky. 501. 
 40
 
 (526 ACTIONS AGAINST CAKRIEKS. 
 
 will not arise for the negligent killing of a j^erson by a railroad 
 company, unless the deceased left some one dependent upon him 
 for support or some one who had a reasonable expectation of re- 
 ceiving some benefit from him during his lifetime.' Under this 
 statute, pecuniary loss must be pleaded and proved. " Included 
 within such a statute, pecuniary future loss may be proved.' 
 
 Under the Code of Mississippi,! 880, § 1510, a mother, though sole 
 parent, has no right of action for the wrongful killmg of her minor 
 child. It is held there that the use of the word "parent" in the stat- 
 ute has reference to a "father" "left" by " such deceased person." * 
 But where a minor, in the discharge of his duty as an employe 
 of a railroad company, receives injui-ies through the negligence of 
 the company, from which he dies three days afterward, his mother, 
 being his only surviving parent, is entitled, by the common law — 
 her son not having been emancipated — to recover for the loss of 
 his services from the time the injuries were received by him till 
 his death, and for any incidental expenses incurred by her during 
 that time for medical attention to, and care and nursing of him. ' 
 
 In Missouri the right of action accrues to a father or mother for 
 the death of a child by negligence only when the child is a minor. * 
 It is held under a statute of that state giving the parent of a minor 
 a cause of action for damages for death caused by neghgence,when 
 the minor is unmarried; that the fact that the minor was unmar- 
 ried is jurisdictional and must be alleged in the petition and proved. ' 
 Under this statute authorizing a suit by the parents against a 
 defendant who has negligently caused the death of their child, 
 the plaintiffs are competent witnesses. * • 
 
 Wrand Trunk R. Co. v. Ivc.% 144 U. S. 408, 36 L. ed. 487; C/nMffo rf; X 
 W. B. Co. V. Bniifield, 37 Mich. 20"); Van Brunt v. Ci"cihii<tti, J. tfi M. R. 
 Co. 78 Mich. 080; Cooper v. Lake Shore & M. S. R. Co. 66 Mich. 261. 
 
 « Ilur^it V. Detroit City R. Co. 84 Mich. 539. 
 
 3 Staal V. Crand St. & N. R. Co. 107 N. Y. 625. 
 
 * Amos V. 3foljile <& 0. R. Co. 63 Miss. 509. 
 
 B Natchez, J. & C. R. Co. v. Cook, 63 Miss. &8. 
 
 • Parsons v. Minmuvi Pac. R. Co. 12 AVest. Rep. 615, 94 Mo. 286; Jamff^ v. 
 
 Chrialy, 18 Mo. 162. 
 1 Barker v. Hannibal. & St. J. R. Co. 91 Mo. 86. 
 « Belt. V. Uaruubal & St. J. R. Co. 4 West. Rep. 391. 86 T>ro. 599.
 
 CIIAPTEH XXX. 
 
 ACTIONS AGAINST CARRIERS, -Continued. 
 
 § 171. Sfaf/Uon/ Provisions on Negligence Causing Death. 
 
 § 172. Li/nifalions of Actions for Death by Negligence. 
 
 § 173, Venue of Action. 
 
 § 174. W?ien Eejjeal does not Affect Fending Actions. 
 
 § 175. Form of Action Determines Measure of Relief. 
 
 § 176. Evidence of Authority to Bring the Statutory Action. 
 
 S 171. Statutory Provisions on .JVegligence Caus- 
 ing Death. ' 
 
 In JSTew York Code, 1883, chap, 15, §§ 1902, etc., a cause 
 of action for the death of decedent leaving a husband, wife, 
 or next of kin is given to his executor or administrator.^ The 
 statute of New York on the subject of actions for death by negh- 
 gence, does not apply to a case where the death did not occur 
 within the state of New York, nor in waters subject to its juris- 
 diction, ° In a case often referred to, the point really decided was 
 that where the person injured brought suit and recovered in his 
 lifetime, liis personal representatives could not maintain an action 
 after his death under the statute. Since the injured party had re- 
 covered his damages, the defendant would not thereafter "have 
 been liable had death ensued;" nor would the neglect of it, there- 
 after "entitle the party injured to maintain an action," if the death 
 had not ensued. The decision would seem to rest upon the fact 
 that at the time of death the injured party had no right of action 
 and the defendant was under no liability.'' 
 
 Under the South Carolina Gen, Stat. § 2184, giving au action 
 for the death of a person to the wife, husband, parent and child- 
 
 iNorth Carolina, by 1 Code, 1883, § 1498; Ohio, in 3 Rev. Stat. 1884, § 6134; 
 
 3 Rev. Slat. ^ (iloo; Oregon, by General Laws, § 367; South Carolina, by 
 
 Siat. 1882, § 2183. 
 ^Splitto)fv. State, 10 Cent. Rep. 699, 108 N. Y. 205; Brown v. Buffalo & S. 
 
 L. It. Co. 22 N. Y. 191. 
 ^Metcalfe v. The Alaska, 130 U, S. 201, 23 L. ed. 923, 
 *Litllewood v. New York, 89 N. Y. 24. 
 
 627
 
 628 ACTIONS AGAINST CAEKIKRS CONTINUED. 
 
 ren, it was not necessary that the beneficiaries should have had 
 any legal claim for support upon the person killed. 
 
 In Pennsylvania/ the action is given to the husband, widow, 
 children or parents in succession and to no other relatives; the 
 administrator cannot sue/ and when a minor leaves a widow, the 
 right to sue vests solely in her.^ An objection to defective parties 
 — as joinder of the widow and children in an action for neghgence 
 in causing the death of the husband and father — will be disre- 
 garded on error where it appears that the plaintiff in error went 
 to trial below without objecting and the joinder did not affect the 
 trial below or its results,* 
 
 In Rhode Island,^ the action is given to the husband, widow and 
 next of kin of deceased and any person having pecuniary interest 
 in his life. In Tennessee, by Code, § 3130, to the personal repre- 
 sentatives or widow or children. The statute provides for the 
 recovery of damages for the death of a person, caused by negli- 
 gence, and for the benefit of the surviving widow and children.' 
 The widow may dismiss the suit even against the wishes of the 
 child. ' 
 
 Under the statutes of Tennessee, which confer a right of action 
 upon the personal representative of the decedent, whose death is 
 caused by the wrongful act or omission of another, for the wrong 
 sustained by the deceased, and a right of action upon his next of 
 kin, for the injury resulting to them from his death, when the 
 next of kin of such decedent is the sole distributee of his estate 
 and the administrator thereof, he may recover damages on both 
 of the grounds named in the statute. * 
 
 And in Texas, ' the action is authorized by all the parties enti- 
 tled to the proceeds or by any one or more of them, for the bene- 
 fit of all. The husband, wife, children and parents being named. 
 
 '2 Bright. Purd. Dig. Stat. 1873, p. 1093. 
 ^Books V. Danville, 95 Pa. 158. 
 ^Lehigh Iron Co. v. Bupp, 100 Pa. 95. 
 
 *Philadelp?da & W. B. E. Co.y. Conway, 3 Cent. Rep. 244, 112 Pa. 5ir 
 'Gen. Stat. R. I. 1882, § 15, etc, p. 533. 
 
 ^JVashvMe & 0. R. Co. v. Pnnce,-2 Heisk. 580; Fowlkes v. Nashville & D. R. 
 Co. 9 Heisk. 829; but see Louuville & N. R. Co. v. Burke, 6 Coldw. 45. 
 ■^ Stephens v. Nashville, G. db St. L. R. Co. 10 Lea, 448. 
 
 * Illinois Cent. R. Co. v. Crudup, 63 Miss. 291. 
 
 • Rev. Stat. 1879, Title lii. art. 2904.
 
 STATUTORY PROVISIONS ON NEGLIGENCE CAUSING DEATH. 629 
 
 An action is given by statute ' If the mother of the deceased is 
 living, his widow cannot recover for her sole benefit. ' The jury 
 divides the amount recovered among all the beneficiaries. ' 
 
 Under Texas Eev. Stat. Article 2899, (which has been since 
 changed by the Act of March 5, 1887), gross negligence must be 
 shown in order to charge a railroad company with damages for 
 the negligence of its servants.* 
 
 Section 26 of Article 16 of the Constitution of Texas is as fol- 
 lows : "Every person, corporation, or company that may commit 
 a homicide through the willful act or omission or gross negligence 
 shall be responsible in exemplary damages to the surviving hus- 
 band, widow, heirs of his or her body, or such of them as there 
 may be, without regard to any criminal proceeding that may or 
 may not be had in relation to such homicide." This constitutional 
 provision has been the subject of discussion in several cases, in 
 which it was examined and compared with articles 2899-2903 of 
 the Revised Statutes bearing upon the subject of "actions for inju- 
 ries resulting in death,'' etc. ^ The rule laid down in th ese cases 
 is that the right to maintain an action for the recovery of exem- 
 plary damages for the death of a person caused by the willful act, 
 omission, or gross neglect of a corporation or comj^any, etc., is 
 confined to the class of persons who, by the terms of the con- 
 stitution, are designated as entitled to maintain such action; 
 namely: the surviving husband or wife, or heirs of the body, of the 
 deceased, and not to the parent.* 
 
 Allegations of willful acts or omissions, or gross neglect, upon 
 the part of the corporation, or one representing it in its corporate 
 capacity, as a corporate oflicer, resulting in the death of the de- 
 ceased, are necessary. Negligence of its ordinary servants or 
 employes, without proof of ratification, is insuflicient, under such 
 constitution. ' Prior to the Texas Act of March 25, 1887, a rail- 
 
 > International & G. iV. B. Co. v. Kindred, 57 Tex. 491. 
 
 » Dallas & W. R. Co. v. Spiker, 59 Tex. 435. 
 
 « Galveston, H. & S. A. R. Co. v. LeGierse, 51 Tex. 189. 
 
 * Missouri Pac. R. Co. v. Hill, 71 Tex. 451. 
 
 « Houston cfe T. C. R. Co. v. Cowser, 57 Tex. 305; International & G. y. R. 
 
 Co. V. Kindred, 57 Tex. 496. 
 « Winnt V. International & G. N. R. Co. 5 L. R. A. 172, 74 Tex. 32. See also 
 
 Houston & T. C. R. Co. v. Baker, 57 Tex. 424. 
 ' Hays V. Houston & G. N. R. Co. 46 Tex. 284; Winnt v. International & G. 
 
 iV'. R. Co. 5 L. R. A. 172, 74 Tex. 32.
 
 630 ACTIONS A(iAINST CAEKIEKS — CONTINUED. 
 
 road company was not liable for injuries resulting in death caused 
 by the negligence of its servants, unless the negligence was gross. ' 
 
 A diminution in a minor's capacity to earn money, between the 
 time when the accident occurs and his majority, gives the cause 
 of action to his parents but not to him, unless it be shown that he 
 has been emancipated by his parents under the Texas statute. 
 But if the minor has improj)erly recovered damages for his reduced 
 capacity to earn money, such judgment cannot affect the parent's 
 I'ight of action therefor. ' 
 
 In an action under Kevised Statute of "Wisconsin, § 4255, which 
 provides "that wherever the death of a person shall be caused by 
 a wrongful act, neglect or default, and the act, neglect, or default 
 is such as would, if death had not ensued, have entitled the party 
 injured to maintain an action and recover damages in respect 
 thereof, then and in every such case the person or the corporation 
 which would have been liable if death had not ensued, shall be 
 liable to an action in damages," evidence, in an action by an 
 administrator, that two of the younger children of the deceased 
 were in poor health was held competent as tending to show that 
 the loss of their mother was a pecuniary loss to them and because 
 incidentally under the statute, tlie other children might be bene- 
 fited by this evidence, furnishes no good reason for excluding it.^ 
 
 i 172. Limitations of Action for Death hy J\''egli- 
 
 gence. 
 
 The various statutory limitation to suits for the recovery of 
 damages for a death through the negligence of defendant is fixed 
 in Louisiana, Maine, Massachusetts, MississiiDpi, Kew Jersey, North 
 Carolina, Pennsylvania and Virginia at one year. In Connecticut 
 at 18 months; in Alabama, Arkansas, Colorado, Florida, Illinois, 
 Indiana, Minnesota, Nebraska, Ohio, Oregon, South Carolina, 
 Vermont and West A^irginia two years is fixed as a limit. In 
 California the limitation is as in other actions for personal injuries. 
 
 Where an action for damages is given by the state statute for 
 persons who have lost support through death of a husband, father, 
 
 ' Sabine <& E. T. R. Co. v. nankx. 73 Tex. 323. 
 
 *■ Texas d> P. It. Co. V. Monii, 66 Tex. 225. 
 
 *Mi:Kcirjue v. Janesrillc, 68 Wid. 50. See further on State Statutes, § 173.
 
 LIMITATIONS OF ACTION KOU DEATH BY NEGLIGENCE. 631 
 
 ■etc., caused by a collision, if a suit in rem can be maintained in 
 admiralty against the oft'endino- vessel where the wrong was done 
 or where the vessel belonged, it must be commenced within the 
 pei'iod prescribed by the state statute for the beginning of process 
 there, the time within wliich the suit should be commenced operat- 
 ing as a limitation of the lialnlity created by the statute and not 
 of the remedy only,' 
 
 The defense of the Statute of Limitations is a personal privilege 
 and must be specially ])leaded in liar." The statute of the forum 
 is alone available.' Where torts are committed in foreign coun- 
 tries, or beyond the territorial jurisdiction of the sovereignty in 
 which the actifni is brought, the lex fori governs, no matter 
 whether the right of action depends upon the common law Or a 
 local statute, unless the statute which creates or confers the right 
 limits the duration of such right to a prescribed time.* 
 
 The defense may be speciall}'' pleaded, or availed of by spe- 
 cial exception when the bar of the statute is disclosed by the 
 petition.' It must be pleaded either by alleging the facts, or by 
 a general statement referring to the particular section of the code 
 relied on.* The statute of the forum is alone available unless 
 otherwise specially provided by statute.' Where a right of action 
 for a tort is given by a statute of another state, and no period of 
 limitation is prescribed otherwise than by the general law of limi- 
 tation prevailing in that state, the lex fori, not the lex loci, applies 
 on the subject of limitation. *■ 
 
 niie Harrisburg, 119 U. S. 199, 30 L. ed. 358. 
 
 '^Bank of Uartford County v. Waterman, 26 Conn. 324; Re Young's Estate, 3 
 Md. Ch. 4K1; Spea?- v. Griffin, 23 Md. 418; Partridge v. Mitchell, 3 Edw. 
 Ch. 180. 6 L. ed. 617. 
 
 ^Medhury v. Hopkins. 3 Conn. 472; Blackburn v. Morton, 18 Ark. 384; Thomp- 
 son V. Tioga B. Co. 36 Barb. 79; Urton v. Huiiter, 2 W. Va. 83; Seborn 
 V. Beckwith, 30 W. Va. 774. 
 
 *Nonce v. Richmond <f- D. R. Co. 33 Fed. Rep. 429; The Hai-risburg, 119 U. 
 S. 199, 30 L. ed. 358; Boyd v. Clark, 8 Fed. Rep. 849; EaMwood v. Ken- 
 nedy. 44 Md. 563; Pittsburg, C. & St. L. R. Co. v. Bine, 25 Ohio St. 629. 
 
 ^Gathright v. Wheat, 70 Tex. 740. 
 
 ^Manning v. Dallas, 73 Cal. 420; Stewart v. Budd, 7 Mont. 573. 
 
 '' Worth V. Wilson, "Wright (Ohio), 162: Horton v. Horner, 14 Ohio, 437; Car- 
 gile V. Harrison, 9 B. Mon. 518; Halsty v. Mclean, 12 Allen, 439; Bryan 
 V. Bouton, 10 Tex. 62; Thompson v. Berry, 26 Tex. 263. 
 
 « O'Shields v. Georgia Pac. R. Co. 6 L. R. A. 152, 83 Ga. 631.
 
 632 ACTIONS AGAINST CARRIERS — CONTINUED. 
 
 § 17 S. Venue of Action, 
 
 A railway company usually may be sued in any county inwhick 
 the road passes, or in whicli the corporate powers of the company 
 are exercised; ' in any county where it has an office or an agent 
 upon whom process may be served. * Such action is transitory, and 
 the venue may be laid in the county in which the defendant was- 
 served with process. ^ In some states an action against a railway 
 company can be laid only in some county wherein the track of its 
 road, or some part thereof, is situated; actions brought otherwise 
 are to be dismissed. ' Under Ky. Code, § 73, relating to the 
 venue of actions against common carriers for injuries to passen- 
 gers or other persons, the circuit court of a county which is not 
 the residence of any of the parties, or the county where the injury 
 was done, has no jurisdiction,^ 
 
 § 1 74- When Repeal does not Affect Pending 
 
 Actions. 
 
 When the section of a statute under which an action for dam- 
 ages for injuries caused by negligence is repealed by an Act passed 
 subsequently to the bringing of the action, but the later Act is- 
 substantially a re-enactment of the former, such re]3eal does not 
 affect a suit commenced under the former Act. * 
 
 "Where the general scope of the later Act is to reconstruct the 
 former Act, it will be construed as a continuation thereof although 
 it directly repeals the former Act, and not as avoiding any pro- 
 ceedings begun thereunder. ' This is so where the later Act 
 simply gives application and direction to the prior law.* 
 
 ' Baldwin v. Mmmippi & M. R. Co. 5 Iowa, 518. 
 
 2 New Albany & 8. R. Go. v. Haakell, 11 Ind. 301. 
 
 3 Ackerson v. Erie R. Co. 31 N. J. L. 309. 
 
 * Graham v. Charlotte & S. C. R. Co. 64 N. C. 631. 
 
 " Sherrill v. Chesapeake, 0. & S. W. R. Co. (Ky.) 11 Ky. L. Rep. 502. 
 
 6 Moi>re V. Kenockee Twp. 4 L. 11. A. 557, 75 Mich. 332; Merkle v. Beniiing-- 
 
 ton, 12 West. liep. 510, 68 Mich. 133; Alexander v. Big Rapid.i, 14 West. 
 
 Rep. 466, 70 Mich. 224. 
 » Smith V. Peo])le, 47 N. Y. 330. 
 
 * Slate V. Vernon County Ct. 53 Mo. 128.
 
 FOliM OF ACTION DETERMINES MEA8UJSE OF RELIEF. 033^ 
 
 § 1 75. Form of Action Determines Measure of 
 
 Relief, 
 
 The action for injury may be in assumpsit for the violation of 
 the contract to carry securely or an action on the case.' Of course 
 if vindictive or exemplary damages are sought the action must be 
 in case.' Where distinctions between actions are no longer re- 
 cognized as they existed at common law, but the cause of action is a 
 simple statement of the facts from which the right to damages 
 arises, the breach of duty constitutes the gravamen of the action, 
 unless a special contract is set out' 
 
 An action to recover damages for causing death by negligence 
 is held in New Jersey not to be within the Supreme Court Rule 
 16, requiring certain actions to be styled in the process and plead- 
 ings, actions of tort.* 
 
 Special damages must be set out if it is sought, as a general alle- 
 gation of damages only authorizes a recovery of such as might 
 naturally and probably result from the injury.* 
 
 § 176. Evidence of Authority to Bring Statutory 
 
 Action. 
 
 The letters of administration granted by the surrogate are con- 
 clusive of his authority to bring the action." An examined copy 
 of the record of the appointment of the plaintiff as administratrix 
 found by oral testimony to be a true copy, in an action for the 
 death of the intestate caused by the negligence of the defendant, 
 is admissible and sufficient to establish the title of the plaintiff if 
 such proof were required; but no proof is necessary unless the 
 right of the plaintiff to sue as administratrix is put in issue by the 
 plea. Where the right is to be enforced by a common law action 
 
 ^Pennsyl'eania B. Co. v. People, 31 Ohio St. 537; Knights v. Quarks, 2 Brod. 
 
 & B. 102. 
 ^Knights v. Quarks, 2 Brod. & B. 103; Zabriskie v. Smith, 13 N. Y. 323; 
 
 Chamberlain v. Williamson, 2 Maule & S. 408. 
 ^New Orleans, J. <fe G. N. R. Co. v. Hurst, 36 Miss. 660. 
 *'Van Blarcom v. Delaware, L. & W. M. Co. 4 Cent. Rep. 565, 49 N. J. L. 
 
 179. 
 *CaldiceUy. Murpliy, 11 N. Y. 416; Laing v. Colder, 8 Pa. 479; Kinney v. 
 
 Crocker, 18 Wis. 74; Hunter v. Steicart, 47 Me. 419; Baldwin v. Western 
 
 B. Corp. 4 Gray, 333. 
 *Boderigas v. East Biver Sav. Inst. 63 N. Y. 460; Kelly v. West, 80 N. Y. 139.
 
 634 ACTIONS AGAINST CARKIEKS CONTINUED, 
 
 it is wholly inconsequential whether the right has been conferred 
 bj statute or by common law, so far as tlie procedure in coni-t is 
 concerned.' 
 
 Under a statute " that upon the decease of any inhabitant of 
 this state, letters testamentary or letters of administration on his 
 estate shall be granted by the probate court of the county in 
 which the deceased was an inhabitant or resident at the time of 
 his death," " in an action brought by the personal representatives 
 of a deceased minor against a railway company to recover damages 
 for the death of the intestate an issue of fact was presented by 
 the pleadings as to whether the letters of administration were 
 properly granted upon the estate of the minor; it being claimed 
 by the company that there was no estate to be administered.' 
 The records and finding of the probate court introduced in evi- 
 dence showing that the minor died leaving among other things 
 *' an estate of personal articles," made a prima facie case. The 
 evidence of the father of the minor was introduced which tended 
 to prove that his child died without leaving any estate; but this 
 evidence of the father as against the general finding of the jury 
 was not conclusive and it cannot be said as a matter of law upon 
 the record against the general finding of the jury that the letters 
 of administration were granted without'jurisdiction. * 
 
 Where the record shows that one of the plaintiffs testified that 
 they were the parents of the child and had also shown that the 
 defendants admitted that the child alluded to by the witness was 
 the one run over and killed by the car mentioned in the petition 
 mid at the time mentioned, there was sufiicient evidence that 
 plaintiffs were tlie parents of the deceased. ^ 
 
 ^ Union R. & Transit Co. v. Shacklet, 8 West. Rep. 08. 119 111. 232. 
 
 ''Compiled Laws of Kansas, 1885, chap. 37, § 1. 
 
 H'erry v. Si. Joseph & W. R. Co. 29 Ivan. 420. 
 
 ■* Union Pac. R. Co. v. Dunden, 37 Kan. 1. 
 
 * Mutldkausen v. St. Louis R. Co. West. Hep. 857, 91 Mo. :i;53.
 
 CHAPTER XXXI. 
 ACTIONS AGAINST CARRIERS. Continued. 
 
 5^ 177. Proper Plaintiff in Action for Damages for Death. 
 § 178. Action out of Jurisdiction where Injury Occurred. 
 § 179. Who may Bring the Action in Foreign Jurisdiction. 
 § 180. Rule of Damages in Actions for Death from Negligence. 
 § 181. Statutes Regulating Damages for Death from Negligence. 
 § 182. Statutory Provisions for Distribution of Recovery for Death 
 from Negligence. 
 
 § 177. Proper Flaintiff in Action for Damages 
 
 for Death. 
 
 Soine of the statutes provide that the action shall be brought in 
 the name of the personal representatives, and this has been con- 
 j^trued to mean the executor or administrator, and not the next of 
 kin.' But a foreign administrator cannot sue under the statute.'^ 
 
 In England and Pennsylvania the action is given for the bene- 
 fit of the immediate family of the deceased, to the exclusion of 
 the next of kin, and includes only husband and wife, parents and 
 children.' As the remedy exists, and is created only by statute, 
 it follows that it can only be jDursued in the mode and under the 
 conditions specified therein.'' If the statute provides that the 
 action shall be brought by the executor or administrator of the 
 deceased, no other person can maintain a.i action.^ And if the 
 damages recovered are for the benefit of the husband, widow, 
 parent, or next of kin, the declaration must allege the fact, and 
 
 ^Kramer v. San Francisco Market St. R. Co. 25 Cal. 434: Indianapolis & St. 
 L. B. Co. V. Stout, 53 lud. 143; Netdham v. Orand Trunk R. Co. 38 Vt. 
 294; Whiton v. Chicago & N. W. R. Co. 21 Wis. 805; Smitli, Neg. Whit, 
 ed. 433. 
 
 ^nUnois Cent. R. Co. v. Cragin, 71 111. 177; Limekiller v. Hannibal & St. R. 
 Co. 33 Kan. 83. See Ualbert v. Topeka, 34 Fed. Rep. 510; Richardson v. 
 Netn York Cent. R. Co. 98 Mass. 85; Cooley, Torts, 311; Books v. Dan- 
 mile, 95 Pa. 158. 
 
 'Pennsylvania R. Co. v. Keller, 67 Pa. 300, 
 
 -•S Wood, Railway Law, 1531. 
 
 ^Wilson V. Bumstead, 12 Neb. 1; Nash v. Tousley, 28 Minn. 5. 
 
 G35
 
 636 ACTIONS AGAINST CAKKIEIiS CONTINUED. 
 
 the existence of such beneficiary, as, if no beneficiary survives the 
 deceased, no recovery can be had.' Where the statute is for the 
 benefit of the husband, widow, parents, and the children of the 
 pa);ents killed, only one action can be maintained." In Arkansas 
 tiie personal representative, or if none, the heir at law may bring 
 the suit.^ In Alabama the same rule exists.* In Colorado the 
 action is given to the husband or wife, or if none, to the heirs or 
 to the father or mother. * So in California, (Amendment, March 
 24, 1874, §§ 376, 377). It is given by the General Statutes in 
 Connecticut (Kev. Stat. 1883), to the personal representative. Un- 
 der the Code of Delaware, p. 644, the widow, or if none, the per- 
 sonal representative, may sue. ' Under the laws of Florida, 1883? 
 p. 59, the widow or husband, or if none, the minor children, or 
 persons dependent or personal representatives may sue in this order. 
 In Georgia, § 2971 of the Code, the action is given first to the 
 widow and then to the child. The husband cannot sue for the death 
 of his wife under the Code, § 2971; and whatever would defeat his 
 action will defeat an action by the widow of a decedent, ' but a child 
 may sue for the death of its mother. * In an action by a mother 
 for the death of her minor son, a declaration counting apparently 
 on the homicide, and not the loss of service, and there being no 
 claim of risrht in the mother to the son's service or to recover hire 
 for the same, does not state a cause of action. * Under the 
 Georgia Statute, where the minor son supports his mother, separ- 
 ated from her husband, she may recover for his death." Children 
 are entitled, where they have been dependent upon then- par- 
 
 ^Schwarz v. Judd, 28 Minn. 371; Stewart v. Terre Haute R. Co. 1 West. Rep. 
 
 152, 103 Ind. 44; Indianapolis, P. & C. II Co. v. Keely, 23 Ind. 133; 
 
 Jeffersonville R. Co. v. Swayne, 26 Ind. 477; Jeffemonville, M. <£ I R. Co. 
 
 V. Hendricks, 41 Ind. 48; Thompson v. Young, 51 Ind. 599; Galvin v. 
 
 Crouch, 65 Ind. 56; Chicago & R. I. R. Co. v. Morris, 26 111. 400. 
 ^Houston & T. C. R. Co. v. Mooore, 49 Tex. 31 ; Galveston, H. & S. A. B. 
 
 Co. y. LeGierse, 51 Tex. 189. 
 3 § 5225', Digest 1884. 
 *King v. Henkie, 80 Ala. 505. 
 'Gen. Stat. t^§ 877, 1030, of the laws of 1877. 
 ^Parvis v. Philadelphia W. & B. R. Co. (Del.) May 21, 1889. 
 ■< Georgia R. & Bkg. Co. v. Wynn, 42 Ga. 331; AHanta & W. P. R. Co. v. 
 
 Webb, 61 Ga. 586; Berry v. Northeastern R. Co. 72 Ga. 137. 
 ^Atlanta & W. P. R. Co. v. Vena^le, 65 Ga. 55. 
 KSinith V. East & W. R. Co. 84 Ga. 183. 
 ^"East Tennessee, V. & Q. R. Co. v. Maloy, 77 Ga. 237.
 
 PKOPEK PLAINTIFF IN ACTION FOR DAMAGES FOK DEATH. 637 
 
 ent to maintain an action in case of the death of that parent. ' 
 Where the right of action is given to one depending upon a per- 
 son killed, there must be proof of the fact of support.* The 
 right of an adult child to recover has been decided by the courts. ' 
 In Illinois and Indiana the action is prosecuted by the jDcrsonal 
 representative of the deceased. * In Illinois the widow may sue, 
 or if there be none surviving, the children, and if there be no 
 children, the person who was rightfully dependent on the de- 
 ceased. ' In Indiana if there be neither widow, child or next of 
 kin, no action can be brought. * Indiana Revised Statutes, 1881, 
 § 266, providing that in certain cases a guardian may sue for in- 
 jury or death of his ward and that in a suit for injury the dam- 
 ages shall be for the benefit of the ward, gives a guardian no right 
 of action for the death of a minor instantly killed, who has a 
 mother living, where the guardian has paid no expenditures from 
 the property of the ward, as a result of the accident.'' 
 
 In Indiana the statute gives to the parent on the death of his 
 child during minority, caused by the negligence of another, a 
 remedy for such injury in his own right, and if the relation of 
 parent and child continues after majority, the parent receiving 
 supi^ort or services may maintain the action. Where paternal 
 relation does not exist the action is brought by the personal rep- 
 resentatives, regardless of age, and when the father sues it is not 
 necessary to state who are next of kin or that there are any.' 
 Under this statute the guardian may maintain an action.' 
 
 In Iowa the administrator may maintain action.'" If he sur- 
 vives a moment, the personal representative sues. " 
 
 ^ Scott V. Central R. Co. Ill Ga. 450. 
 
 ^Clay V. Central R. & Bkg. Co. 84 Ga. 345. 
 
 ^Central R. Co. v. Roach, 70 Ga. 434. 
 
 ^Chicago & E. I. R. Co. v. a Connor, 6 West. Rep. 773, 119 111. 586; Mayhew 
 V. Burns, 1 West. Rep. 577, 103 lud. 328. 
 
 ^Beard v. Sheldon, 113 111. 584. 
 
 ^Stetoart v. Terre Haute & I. R. Co. 103 Ind. 44. 
 
 ''Louisville N. A. & C. R. Co. v. Ooodykoontz, 119 Ind. 111. 
 
 ^Mayhew v. Burns, 1 West. Rep. 577, 103 Ind. 338. 
 
 ^Louisville, N. A. & C. R. Co. v. Ooodykoontz, 119 Ind. 111. 
 
 '» Worden v. Humeston & 8. R. Go. 72 Iowa, 201. 
 
 ^^Kellow V. Cent/ral Iowa B. Co. 68 Iowa, 470.
 
 638 ACTIONS AGAINST CAKKJLKS — CONTINUED. 
 
 A jiersonal representative is entitled to bring the action in Kan- 
 sas and Micliigan/ and Nebraska." 
 
 In Kentucky personal representatives cannot maintain an ac- 
 tion wiiere tlie intestate left neitlier widow uor children, under a 
 statute providing that, if a person is killed through the willful 
 neglect of another, the widow, heir, or personal representative 
 shall have the right to sue therefor.* No action under this statute 
 can bo maintained, where injury is willful." ISTor can the representa- 
 tive of an employe recover, under the statute giving the right of ac- 
 tion to others.^ Under Ky. Gen. Stat. chap. 57, § 3, providing that 
 the widow, heir, or personal representative of one killed by anoth- 
 er's negligence may sue for damages, the word "heir" means "child," 
 and does not include parents or collateral relatives.* In an action 
 for the death of a person by the negligence of tlie employes of a 
 railroad company, the degree of the negligence alleged determines 
 whether the action is brought under Ky. Gen. Stat. chap. 57, § 1^ 
 giving to the personal representative the right to recover in the 
 same manner that the person might have done for an injury whei-e 
 death did not ensue, or under § 3, giving the widow, heir, or pei-- 
 sonal representative a right of action for punitive damages.' Tik' 
 right of the widow and clrldren to bring the action have been 
 determined under the statute, ' as has also the right of repre- 
 sentatives. ' 
 
 In Louisiana, under the civil code, the minor children or vvidow^ 
 or if none, the parent may sue.'" 
 
 'How. Stat. §i5 3391, 3392, 8313 and 8314. 
 
 ■Union P'lC. JR. Co. v. Dunden, 37 Kaa. 1; Hulbert v. Topeha, 34 Fed. Rej). 
 
 510; Wilsunv. Bumstead, 12 Neb. 1. 
 »Ky. Gen. Slat. chap. 57, § 3; Kocning v. Coviiujton (Ky.) 11 Ky. L. Rep. 
 
 251; Ketttvcki/ Cent. li. Co. v. Wdi/acright (Ky.) March 20, 1890. 
 * Mo If/an V. Thompnon, 82 Ky. 383; Winnegar v. Central Pass. R. Co. 85 Ky. 
 
 547. 
 »Cinciniiati, N. 0. & T. P. R. Co. v. Adams (Ky.) 11 Ky. L. Rep. 833. 
 ^Jordan v. Cincinnati, N. 0. & T. P. R. Co. (Ky.) 11 Ky. L. Rep. 204. 
 ''Oivens V. KentvcJcy Cent R. Co. (Ky.) 11 Ky. L. Rep. 452; Hennings v. 
 
 LoniHviUe Ixnther Co. (Kv ) 11 Ky. L. Rep. 544; Louisville <£ N. li. Co, v. 
 
 Coj/fjage (Ky.) 12 Ky. L.liep. 2ub. 
 »nendeison v. Kentucky Cent. B. Co. 80 Ky. 389. 
 ^Morris v. LouisniUe & N. B. Co. (Ky.) 11 Ky. L. Rep. fi08. 
 '"Laws 1884, p. 94. Rev. Code, p. 427; Mobile L. Ins. Co. v. Brame, 95 U. S. 
 
 754. 24 L. ed. 580.
 
 PROPER PLAINTIFF IN ACTION FOR DAMAGES FOR DEATH. C3i> 
 
 In Maine, the action is in the iianic of the state. ' 
 In Maryland the action is for the benefit of tlie wife, husband, 
 parent and child, and is brought in the name of the state for the 
 use of the person entitled to damages. ' 
 
 Massachusetts provides by Public Stat. 1S82, p. 421, § (53; chap. 
 112, §§ 212, 213. It has been held that the action would not lie 
 where the death was instantaneous. ' But if one survives a brief 
 time, more than nominal danuiges may be recovered. " The 
 same rule as to instantaneous death obtains in some other states. " 
 In Michigan, by 1 How. Stat. 1882, §§ 3301,* 3392; 2 How. 
 Stat. § 8313; Minnesota, by Stat. 1878, p. 225, § 2. In Minnesota 
 the administrator may sue for damages for death of decedent, 
 caused by negligence. " In Mississippi, the widow or husband or 
 parent or child. ' An administrator may sue by virtue of § 2078 
 of the Code, and his right is distinguished from and independent 
 of the right given by § 1510 of the Code. ^ Under the Missis- 
 sippi statute, the administrator may sue, but the mother cannot 
 sustain an action. ^ The widow may maintain the action under 
 the Missouri statute; but, the suit by parent can only be main- 
 tained when the child is a minor.'" A non-resident has a standing 
 in the court. " 
 
 In Missouri, husband or wife, children, natural born or adopted, 
 natural parents or those who have legally assumed the relation 
 
 'Rev. Stat. ^ 68, p. 482. 
 
 -xMd. Rev. Code 1878, p. 724, art. 67^ § 2. - • -. 
 
 '■^Kearney v. Bot'm & W. B. Corp. 9 Cusb. 108: Kennedy v. Standard Suf/ar 
 
 Hefia-ry, 1^5 Mass. 90; Dietrich v. Northampton, 138 Mass. 14; Mulehey 
 
 M.'W'iMrurn Gar Whed Co. 5 New Eng. Rep. 287, 145 Mass. 281; Tuity 
 
 V. Fitchburcj H. Co. 134 Mass. 499. 
 *N'nirse v. PacJcnrd, 138 Mass. S07. 
 Womack v. Central B. & Bkg. Co. 80 Ga. 132 ; Edgar v. Castelio, 14 S. 
 
 C. 20. 
 KSchfflor V. Minneapolis & St. L. B. Co. 32 Mian. 125. 
 ^Code of 1880. g 1510. 
 
 8 VicMmrg & M. B. Co. v. Phillips, 64 Miss. 698. 
 » Vicksbnrg & M. B. Co. v. PhilUiis, 64 Miss. 693; Amos v. Mohile & B. Co. 
 
 63 Miss. 509. 
 ^« Parker v. Hannibal & St. J. B. Co. 91 Mo. 86; Parsons v. Missouri, Pac. B. 
 
 Co. 94 Mo. 286. 
 ^^PhclpM V. Missouri Pac. B. Co. 85 Mo. 164.
 
 •640 ACTIONS AGAINST CARKIEES — CONTINUED. 
 
 towards the deceased may sue. ' If tlie widow fails to sue witliin 
 six months the children may sue; but if her suit be brought within 
 six months and is dismissed by her, it defeats the right of the 
 children to sue. " 
 
 Nebraska, by Stat. 18S5, p. 284. In Nebraska the adminis- 
 trator of decedent may sue for his death caused by negligence. ' 
 
 Nevada, under Comp. Laws, 1873, pp. 39, etc., §§ 115, 116; in 
 New Hampshire, Act 1879, chap. 35, § 1; Laws 1885, p. 233, an 
 action for negligence resulting in death survives to the adminis- 
 trator. * 
 
 The modification of the rule in the New Jersey Act of March 
 S, 1848, Kev. Stat. 1877, p. 294, does not extend to injuries suf- 
 fered by a husband as the result of the immediate killing of his 
 wife.^ 
 
 When deceased leaves a surviving widow but no children, and 
 also parents, the right to recover damages is in Pennsylvania by the 
 Act of April 26, 1885, vested solely in the widow, and the par- 
 ents are not entitled to any part of the damages which she may 
 recover.' 
 
 An administrator of a deceased person in Tennessee is not de- 
 barred from suing for damages on account of the death of the 
 mtestate,' merely because the widow is living. She has the pref- 
 erence, but may waive it.* Under the statute a nonresident widow 
 may recover for injuries inflicted within the state, though the 
 husband was a nonresident and contracted his employment out- 
 side of the state.* 
 
 Under the Texas statute, the wife may sue though living 
 separate and apart from her husband,'" and the posthumous child 
 is entitled to recover as one of the children." The parent cannot 
 
 'Stat. 1879, §§ 2121, 2122,2123, Laws 1885, pp. 153, 154. 
 
 "^McNamara v. Slawns, 76 Mo. 329. 
 
 ^Wilson V. Bumstead, 12 Neb. 1. 
 
 *Corlm V. Worcester, N. & R. R. (7o. INew Eng. Rep. 163, 68 N. H. 404. 
 
 ''Gromo V. Delaware, L. & W. R. Co. 50 N. J. L. 317, 
 
 ^LehUjh Iron Co. v. Rupp, 100 Pa. 95. 
 
 ^Mill. «& V. (Tenn.) Code, §§ 3130-3132. 
 
 ' Wehh V. Emt lennessee, V. & G. R. Co. 88 Tenn. 119. 
 
 ''Chesapeake 0. <& S. R. Co. v. Ilifjyim, 85 Tenn. 620. 
 
 ^"Dallas & W. R. Co. v. Spicker, 61 Tex. 427. 
 
 ^^ Nelson v. Galveston. U. d S. A. R. Co. 11 L. II. A. 391, 78 Tex. 621.
 
 PKOl'ER PLAINTIKF IIS AOTIOK FOK DAMACrES FuK DKATH. 041 
 
 sue under the statute. Under tlie Texas constitutional })rovision 
 for the lu'ingino- of an action for exeniplary dania<^es by " tiie sur- 
 vivinpj husband, widow, or the heirs of his or her body," of one 
 who has been killed by ii;ross neglij^ence, no one else can bring 
 such action. Hence such an action l)y a parent cannot be main- 
 tained.' Where the deceased had begun the action in his lifetime, 
 the wife or children may prosecute, after his death, pending 
 proceedings. " As to the right of the administrator to prosecute 
 the action, there have been various decisions explanatory of the 
 statute. ' The surviving children in an action against a railroad 
 company for the death of their mother caused by the alleged 
 negligence of the defendant, are not concluded in a judgment 
 rendered in a suit upon the same cause of action brought by their 
 father in his own right, to which they were not made parties. * 
 AVliere the action was brought by one as next friend of a minor, 
 a demurrer on the ground that the injured person was not the 
 plaintiff in the action, was overruled, and it was held to be imma- 
 terial that the action was not brought in the name of the minor 
 but her next friend. The essential facts are that the action must 
 be prosecuted for the use and benefit of the minor by some proper 
 representative. Any person who is permitted by the court to 
 prosecute such an action is to be deemed a suitable person and 
 where it apj)ears with certainty that the action is based on the 
 right of the minor, that the relief sought is such as the minor 
 alone would be entitled to on the facts pleaded, and that this is 
 sought for the use and benefit of the minor— then the minor is 
 the real plaintiff whatever may be the formula used. " 
 
 In Vermont '' a right to support from the person killed is not 
 necessary to give a right of action under the statute ])roviding for 
 an action in the name of the personal representative of a person 
 
 » Wirmt V. International tfc G. N. R. Go. 5 L. R. A. 172, 74 Tex. 32. 
 
 '^International & G. N. R. Co. v. Kuehn, 70 Tex. 582. 
 
 ^Houston cf- T. (J. R. Co. v. Simpson, 60 Tex. 103; Missouri Pac. R. Co. v. 
 Henry, 75 Tex. 320. 
 
 *Gahe»ton, H. & S. A. R. Vu. v. Kutac, 72 Tex. 643. 
 
 "Gulf, C. & S. F. R. Co. V. Stpron, 66 Tex. 431. See also Cannon v. Hemp- 
 Jail, 7 Tex. 199; Moarc v. Minerva, 17 Tex. 23; Martin v. Weyman, 36 
 Tex. 468; Houston & T. C. R. Co. v. Bradley, 45 Tex. 175; Abrahams v. 
 Vollbavm, 54 Tex. 327. 
 
 «Rev. Law.s 1880, ^5 2138. 
 41
 
 642 ACTlOAtJ AGAliS'ST CAKKIEKS CONTIJS'UED. 
 
 wrongfully or negligently killed, for the benefit of his wife or 
 next of kin. ' 
 
 In Virginia the action is authorized by Amendment of March 
 12, 1878 of § 7 of the Code of 1873. In an action by an admin- 
 istrator for death caused by negligence, the real beneficiaries need 
 not be made parties. ' 
 
 In "West Virginia the action is under the Code 1884, p. 534, § 5. 
 The husband, as administrator, may sue for the death of his wife.^ 
 Under the statute a recovery for the death of one caused by the neg- 
 ligence of another, it is not necessary that the plaintiff should aver 
 in his declaration that the decedent left a wife or child or other 
 next of kin.* 
 
 In Wisconsin ^ the widow is the person entitled to all damages 
 recovered by the personal representative of deceased for wrong- 
 fully causing his death. ' In an action by an adiiiinistrator under 
 Revised Statutes, § 4255, to recover for the death of a widow 
 through the negligence of the defendant, an allegation that the 
 younger children were dependent upon her for support and nur- 
 ture and education, should be considered to mean that she, while 
 living, furnished them with their support, nurture, and the means 
 of education, which were, a loss to them by her death, and the 
 complaint is sufiicient. ' 
 
 The personal representatives, or, if deceased is a minor, the par- 
 ents, are authorized to sue, in Alabama Code, §§ 2641 et seq., and 
 p. 684, § 2891. The requirement of the statute that damage to per- 
 son or property for which the railroad is liable should result from 
 its failure to comply with the statutory requirements or other 
 negligence does not mean that this negligence should be neces- 
 sarily the sole or immediate cause of the injury, but only that the 
 injury must be the natural or proximate consequence of the neg- 
 ligence. It is sufficient if it is one of two or more concurring 
 
 ^Howard v. Delaware & H. Canal Co. 6 L. R. A. 75, 40 Fed. Rep. 195. 
 
 ^Harper v. Norfolk <& W. B. Co. 36 Fed. Rep. 102. 
 
 ^Dimmey v. Wheeling & E. G. R Co. 27 W. Va. 32. 
 
 *MaMen v. Chesapealce & 0. R. Co. 28 W. Va. 610. 
 
 »Stat. 1878, § 4255. 
 
 ^Schmidt v. Deegnn, 69 Wis. 300; ScJiadeicald v. Milwaiikee, L. S. & W. R, 
 
 Co. 55 Wis. 509. 
 ''McKeigue v. Janeiville, 68 Wis. 50; Kelley v. Chicago, M. & St. P. B. Co. 
 
 50 Wis. 381.
 
 ACTION OUT OF JURISDICTION WIIKKK INJURY OCCUlvKIiD. 043 
 
 efficient caii.ses other than plaiiitifif's fault. If tlie failure to ring 
 a bell or blow a whistle on a train, as required by statute, reason- 
 ably contributed to an injury, the company is liable, unless there 
 was contributury negligence. Except Avhen made so by statute, 
 no particular rate of speed, however rapid, c?inj)e?' se, or as matter 
 of law, be evidence of negligcTice in running a railroad train. ' 
 
 § 178. Acfioji out of Jjd'isd let ion. where Injury 
 
 Occurred. 
 
 It is a general ])rinciple that in order to maintain an action of 
 tort founded upon an injury to person and property, the act which 
 is the cause of the injury and the foundation of the action must 
 at least be actionable by the law of the ])lace where it is done, if 
 not also by that of tlie place in which redress is sought.^ An 
 action in Pennsylvania for the death of a person in New Jersey 
 must be governed by the laws of the latter state.' 
 
 Statutes are enacted in the several states for the local public 
 good; and as of themselves they have no extraterritorial effect, it 
 is not a legal presumption that the force to be given them Ly 
 neighboring states has any influence in inducing their enactment. 
 They are not enacted to be enforced, e^en in comity, outside of 
 the state. It is not strict right, but cdniity, which enables a j^orson 
 who has been tortiously injured in one state to sue for damages for 
 the injury in another; and of course after the cause of action has 
 become extinct where it accrued, it cannot, as a mere matter of 
 comity, survive elsewhere. Statutes giving the right of action 
 for injuries are held by many of the courts to be local in their 
 natuie, and can have no extraterritorial effect, and rights based 
 upon them give no absolute right of action beyond the jurisdic- 
 tion of their enactment. * 
 
 ^Western B. Co. of Alabama v. Sidrunk, 85 Ala. 352. 
 
 ^Davis V. Neio York & N. E. B. Co. 8 New Eng. Rep. 408, 143 Mass. 301 ; 
 Burns v. Grand Bapids ifc 1. B. Co. 13 West. Rep. 688, 113 Ind. 169; Le 
 Forest v. Toltnan, 117 Mass. 109; Phillips v. Eyre, L. R. 6 Q. B. 1, 28-30; 
 Whitford V. Panama B. Co. 23 N. Y. 473, 473; State v. Pittsburg & C. 
 B. Co. 45 Md. 41, 46; Croidey v. Panama B. Co. 30 Barb. 99, 107. 
 
 *llsher V. West Jersey B. Co. 4 L. R. A. 261, 126 Pa. 206. 
 
 * Willis V. Missouri Pac. B. Co. 61 Tex. 434; Cooley, Torts, 266, 470-472; 
 Bichardson v. Neic York Cent. B. Co. 98 Mass. 85; Davis v. Neio York & 
 N. E. B. Co. 143 Mass. 301; McCarthy v. Chicago, B. I. & P. B. Co. 18 
 Kan. 49; Woodard v. Michigan S. & JSl. I. B. Co. 10 Ohio St. 121; Ewing 
 V. Toledo 8av. Bank <& T. Co. 1 West. Rep. 83, 43 Ohio St. 31; Pation v.
 
 t>44: ACTIU^'S AGAINST CAKKIEKS CONTINLKD. 
 
 The n^lits and liahilities of parties under local laws do not of 
 necessity follow them into other jiiiisdietiijns.' Where the right of 
 action is given hj the statutes of one, where an injury occurred in 
 another state, where at common law the action abated on the death 
 of the person injured, while by the law of the state where the 
 suit is brought such an action survives, the law of the latter state 
 can have no such extraterritorial effect as to give a right of action 
 there," 
 
 Where the laws are not similar or sul)stantially the same as the 
 local statutes, and especially where they confer rights antagonistic 
 to the policy of the forum in which their enforcement is sought, 
 state comity can never require that an action under them be enter- 
 tained." 
 
 The fact that a railroad corporation is operated in the several 
 states through which it runs, as a continuous lin'^, and that it is a 
 coi'poration by the law of the different states, cannot make its lia- 
 bility different or greater in one state on account of transactions 
 occurring entirely in another state than they are by the laws of 
 
 Pittsburgh, C. & St. L. R. Co. 96 Pa. 169; Andermi v. Milwaukee & St. 
 P. R. Co. 37 Wis. 321; Whitford v. Panama R. Co. 23 N. Y. 465; ra^nter 
 V. Missouri Pac. R. Co. 84 Mo. 679, 19 Am. & Eug. R. Cas. 176; Mackay 
 V. Central R. Co. 4 Fed. Rep. 617, 14 Blatchf. 65; Beach v. Bay State S. 
 B. Co. 30 Barb. 433; Crowley v. Panama R. Co. 30 Barb. 99-106; Arm 
 strong v. Beadle, 5 Sawy. 484; Needham v. Orand Trunk R. Co. 38 Vt. 
 294; State v. Pittsburgh & C. R. Co. 45 Md. 41; Taylor v. Pennsylvania 
 Co. 78 Ky. 348; Le Forest v. Tolman, 117 Mass. 109; Nashville d: C. R 
 Co. V. Eakin, 6 Coldw. 582; Selma, R. & D. R. Co. v. Lacy, 43 Ga. 461; 
 Dei-riekson v. Smith, 27 N. J. L. 166. 
 
 ^Pierce v. Equitable L. Assur. Soc. 4 New Eng. Rep. 882, 145 Mass. 56. 
 
 •^Davis V. New Yoi-k & N. E. R. Co. 3 New Eng. Rep. 408, 43 Mass. 301; 
 Needham v. Orand Trunk R. Co. 38 Vt. 294; State v. Pittsburg & C. B. 
 Co. 45 Md. 41. 
 
 ^ Texas & P. R. Co. v. Richards, 68 Tex. 375; Pickenjig v. Fisk, 6 Vt. 107; 
 Limekiller v. Hannibal d- -S7. J. R. Co. 33 Kan. 83. 52 Am. Rep. 524, 19 
 Am. &, Eng. R. Cas. 184 and Twte; Davis v. New York, L. E. <fc W. R. Co. 
 110 N. y. 646; Knight v. West Jersey R. Co. 108 Pa. 250; Plymouth First 
 Nat. Bank v. Price, 33 Md. 487; xMorris v. Chicago, R. I. & P. R. Co. 
 65 Iowa. 727, 54 Am. Rep. 39, 19 Am. & Eng. R. Cas. 180; Hunt v. Paw 
 nal, 9 Vt. 417; Judge of Probate v. Hibbard, 44 Vt. 597; Bettys v. Milwau- 
 kee <& St. P. R. Co. 37 Wis. 323; Debecoite v. New York, L. E. &W. R. Co. 
 98 N. Y. 377, 25 Am. & Eng. R. Cas. 335 and note; Brigham v. Claflin, 
 31 Wis. 607; Carpenter v. Orand Trunk R. Co. 72 Me. 388; United States 
 V. Lathrop, 17 Johns. 4; Abraham v. Plestoro, 3 Wend. 538; Buckles v. 
 Filers, 72 Ind. 220; .McFee v. South Carolina Ins. Co. 2 IMcCord L. 503; 
 Indiana v. John, 5 Ohio, 217; Illinois Cent. R. Co. v. Cragin, 71 111. 177; 
 Halsey v. McLean, 12 Allen, 438; Drinkicater v. Portland M. R. Co. 18 
 Me. 37; Oorman v. I'acijic R. Co. 26 Mo. 441; Rorer. Interstate Law, 155 
 et self.; 2 Rorer, Raiiroutls, chap. 54, ^ 3, p. 1149; Wharton, Confl. Laws, 
 g^ 477-480.
 
 ACJION OUT OK JUKISDICTIO.N WIIKIU-; J.N.llKV OCCl KKED. G-i5 
 
 the state in wliicli they occiii-, nor will the riglits of the plaintiff 
 be greater because lie was a citizen of the state in which he was 
 Injured and in which he brings his suit for injuries sustained in 
 another state through the nei!-lii!:ence of the defendant.' 
 
 The older states of the Union wei-e settled by English colonists 
 who brought witli then) theii' heritage of English common law, 
 us it had been modiiied and impi'oved by English statutes, and 
 therefore it is that the courts of any one of these states, in cases 
 wliicli call for the ap})licati()n of the law of any otlier of them, 
 )nay reasonably ))i\'sume, and do presume, that the common law, 
 as it prevails in such other state, is the same as it is in their own, 
 and als«» extend the presumption to the newer states which are 
 (»lf.shoots from them. But in i-egurd to the statute law of the 
 states thei'e is no basis for any such presumption; for, as is well 
 known, the statutes of the several'states are enacted by the legis- 
 latures of the several states to suit themselves, each coiisulting 
 only its own policy, interest or necessities, and must therefore 
 from the nature of things be different in the different states, 
 except when occasionally one state cojnes from another, how'ever 
 much similar cii-cum stances may lead to similar legislation. The 
 distinction thus pobited out, though it has been sometimes over- 
 looked, is recognized in the better considered cases, which hold 
 that the presunjption above stated, in respect to the common law^, 
 does not extend to the statute law of the states.* 
 
 In an action outside of the jurisdiction in which the injury oc- 
 curred, a law must l)e shown to exist authorizing the action.' The 
 statutes of anoTher state must be })lea(led and proved in an action 
 to ]-ecover damages for death caused by negligence. A party 
 relying upon the law' of another state must plead it, and then 
 
 ^ Davis V. New York & N. E. R. Co. 3 New Eujj. Rep. 408. 143 Mass. 301: 
 Whitford V. Panama Ji. Co. 33 N. Y. 472, 473; liichardson v. New York 
 (\'nt. It Co. 98 Mass. 85: Needham v. Orand Trunk Ji. Co. 38 Vt. 294, 
 307. 
 
 Wlteilly V. New York (£• X. E. It. Co. 5 L. R. A. 364, 16 R. I. 388; Davis v. 
 New York & N. E. R. Co. 143 Mass. 301: Armstrong v. Beadle, 5 Sawy. 
 484; Deberoi.se v. New York. L. E. & \V. R. Co. 98 N. Y. 377, 50 Am. 
 Rep. 683: McDoiut'd v. Afallory, 77 N. Y. 546, 33 Am. Rep. 664; Cutler 
 V. Wrig/it, 22 N. Y. 472; Stole v. Pittuburgh if- C. R. Co. 45 Md. 41; Afur- 
 phy V. CoUiun, 121 Mass. 6; Morrissey v. \Vi(j(jins Fern/ Co. 47 .Mo. 521, 
 525; Palfrey v. Portland, S. tt- P. R'. Co. 4 Allen. 55. 
 
 ^Bea,ck V. Bay Slate .S". B. C>. 30 Baib. 433: Dehemixe v. New York & L. 
 E. d: W. R. Co. 98 N. Y. 877.
 
 646 ACTIONS AGAINST CAKKIKKcJ COXTINL'ED. 
 
 allege such facts as bring the case within tlie law.' It is fatally 
 defective unless those laws, and also tlie facts, are set forth 
 specifically.'' The declaration, in an action, the cause of which 
 accrued in a foreign state, to recover damages for personal inju- 
 ries caused by defendant's negligence and ^vhicil have resulted in 
 death, must allege the existence of some statute in such state per- 
 mitting the cause of action to survive the death of tlie injured 
 party.* 
 
 In several states it is held that the remedy is purely local and 
 can only be brought in the state whose statutes give it. and where 
 the killing takes place,* and that they are not maintainal)le out of 
 the state in which the injury occurred.* 
 
 "Where the subject-matter of the suit is strictly local, jurisdic- 
 tion dej3ends upon such locality, and can only be exercised in the 
 state where the subject-matter is located." The courts of Isew 
 York will not, unless special reasons are shown which make it 
 necessary and proper to do so, retain jurisdiction over actions be- 
 tween foreigners where the acts comj^lained of were done in other 
 states. ' 
 
 Plaintiff's intestate, a citizen of Massachusetts, received an 
 injury while traveling in Connecticut as a passenger on the de- 
 fendant's railroad, from which she subsecpieiitlv died, the charge 
 
 ^Balfour v, Davis, 14 Or. 47. 
 
 '■McLeod V. Connecticut <£• P. R. R. Co. 2 New Eng. Hep. 797, 58 Yt. 727. 
 See, on this suhiect, the cases cited in note to Olive v. State, 4 L. E. A. 
 33, 86 Ala. 88. 
 
 WReilly v. Xetn York <t N. E. R. Co. 5 I,. R. A. 364. 16 R. I. 388. 
 
 *AndeyHon v. Milwaukee & St. P. R. Co. 37 Wis. 321; Woodard v. Michigan 
 S. & 3'. / R. Co. 10 Ohio St. 121; Needham v. Grand Trunk R. Co. 38 
 Vt. 294: McCarthii v. Chira<io, R. I. d. P. R. Co. 18 Kan. 46; State v. 
 Pitt.sburf/Ji d- C. R. Ok 45 Mci. 41; Pickering v. Fisk, 6 Yt. 102; Probate 
 Judge V. Hilihard, 44 Yt. r)!)7; ArinMro>,g v. Jiendle, 4 Sawy. 484; Chicago 
 rf- M'. /. R. Co. V. Scliroedcr, 18 III. App. 328. See Hamilton v. HanniOal 
 tfc SI. ,}. R. Co. 39 Kan. 56, and the early casi; of Whitford v. Panama R. 
 Co. 23 N. Y. 465. 
 '-Taylor v. Pennm/lvania Co. 78 Ky. 348, 39 Am. Rep. 244; Le Forent v. Tol- 
 'man, 117 Mass. 109; McCartg v. Chinign. R. L d P. R. Co. 18 Kan. 46; 
 lUinotH Cent. R. Co. v. Cragin, 71 111. 177; Xeedham \. Grand Trunk R. 
 Co. 38 Yt. 294; Richardson v. Netn York Cent. Li. Co. 98 Mass. 85; Camp- 
 bell V. Rogers, 2 Handy, 110; Woodard v. Michigan S. rf- ^''. I. R. Co. 10 
 Ohio Si, 121; Ifoirr v. J'enn.si/lrania Co. 25 Ohio 8l. 667; Willi-'i v. Mit- 
 itfAiri Pac. R. Co. 61 Tex. -132; A((s?iville dk C. R. Co. v. Ealdn, 6 Coldw. 
 582. 
 
 <-PittHburgh tt- St. L. R. Co. v. RoiUchUd (I'a.) 4 Cent, Hep. 107, 
 
 "^Jiurdirk v. Freeviart, 46 lluii, 138.
 
 ACT[<»X OUT OF JLlilSDICTlO.S: WUKUK IJS'JUliV OCCL'KKED. 64:7 
 
 1>Ring tliat tlic injury resulted from tlie defeiulaut's negligence. 
 Tliere was no statute in Connecticut under which the common 
 law aetioii for such an injury survived. The plaintiff sued, as 
 -achniuistrator of the deceased, in Massachusetts, in a common law 
 action, claiming that the cause of action might be held to have 
 survived under the Massachusetts statute of survivorship, notwith- 
 standing it had ceased to exist in Connecticut; hut the court 
 lu'ld that it was for the state where the injury was received to 
 saj what sliould be the liability for it, and that, consequently, as 
 tiie liability at common law had come to an end in Connecticut 
 by the death of the injured party, it could not survive in Massa- 
 chusetts, the Massachusetts statute having no force beyond its own 
 boundaries. It appeared as a proved or admitted fact that thei'e 
 was no survivorship of the cause of action in the state where the 
 injury occurred.' 
 
 In another case' the action was case for negligence resulting in 
 injury and subsequent death to the plaintiff's intestate. The neg- 
 ligence and injury happened in Xew Hampshire and the action 
 was brought in Vermont. One (piestion was whether the action 
 for the suffering endured by the intestate prior to his death would 
 survive in Vermont under the statute of survivorship of that 
 state, tliere being no stattite under which it Avould survive in New 
 Hampshire. The court held that it would not. "It is conceded," 
 says the court, "that the injury was received in the state of ]^ew 
 [[ampshire, consequently the cause of action accrued in that state, 
 liy the coimnon law, the cause of action which accrued to the 
 intestate in that state is extinguished by his death. By the law 
 ■of that state no right exists in tlie personal representatives to 
 recover for such injury, and if this action can be maintained under 
 the provisions of the act of 1847 or 18-19, it must be upon the 
 ground that our statutes have an extraterritorial force. The fact 
 that the intestate was a citizen of this state at the time of the 
 injury is entirely immaterial in the decision of this question. A 
 general or public act is a universal i-ule that regards the whole 
 
 WariH V. Neio York <£• N. E. R. Co. 3 New Eng. Rep. 408, 143 Mass. 301, 58 
 Am. Rep. 138. See also Le Forest v. Toimmt, 117 Mass. 109, 19 Am. 
 Kep. 400; W hit ford v. Panavia R. Co. 23 N. Y. 465, 3 Bosw. 67: Crowley 
 V. Panama R. Co. 30 Barb. 99; McCarthy v. Chicago, R. 1. d: P. R. Co. 
 18 Kan. 46. 
 
 *Needham v. Orand Trunk R. Co. 38 Vt. 294.
 
 648 ACTIONS AGAJ.WST OAKIMKKS^ — COXTIJSUKD. 
 
 comiiiniiity, but its operation is limited to the state 1)V M'liicli it 
 was enacted. ... A cause of action which by the rules of 
 the common law is extingnished by the death of the party, is by 
 such death fully discharged, ujdess it survives by force of some 
 statute law of the state where it accrued." 
 
 In a Rhode Island case' the action was to subject the defend- 
 ant corporation to liability under a statute of Massachusetts. ' 
 The liability is imposed by section 2V'>. That section provides 
 that if a pers(jn is injured by collision with the engines or cars of 
 a railroad corporation at a crossing, sucli as is described in section 
 163, and it appears that it neglected to gi\e the signals required 
 by section 103, and that such neglect contributed to the injur}^, 
 the corpo]-ation shall be lialtle in case the life of the person so 
 injured is lost, to damages recoverable hy the executor or admin- 
 istrator of the deceased, in an action of tort, as provided in section 
 212, unless it is shown that in addition to a mere want of ordinary 
 care, the person injured was at tlie time of the collision guiltj- of 
 gross and willful negligence, or was acting in violation of law. 
 and that such gross and willful negligence or uidawful act con- 
 tributed to the injury. Section 212 sul»jects railroad corporations 
 to liability where, 1)y reason of their carelessness, the life of a 
 passenger or of a ])erson being in the exercise of due diligence, and 
 nota ])assenger or in their eniplovinent, is lost. 'Fhe [)ro vision for 
 such case is that the t)lfending corporation may be punished by 
 fine or indictment, or sued for damages in an action of tort, the 
 fine imposed or the damages recovered, according as one or the 
 other remedy is |)ursucd. to be not less than $500 nor moi'e tlian 
 $5,000, the damages, in case the cor})oration is civilly |)i-osecuted, 
 '•to be assessed with reference to the degree of cul])a1)ility of the 
 corporation or (»f its si'i"\ants oi- agent>,*' Phe fine is to be paid 
 "to the e.\ecut(jr or administrator toi- the use of the widow and 
 children of the deceased in e(|ual moieties; or. if there are no 
 cliildi'i'ii. to the u>c of the widow, or if no widow, to the use of the 
 next of kin;"' and in ca>e of a civil action, which is to be brought 
 by the executor or administi'atoi". the damages recovered are to go 
 in the same manner. Tin-- I'cmedy. whether criminal or civil, is 
 to be prosecuted w itliiii a year aftei- the injury. 
 
 WJUlli/ V. ye<r York .(• .V. E. R. Co. 5 L. li. A. MA. 16 1? 1. :}88. 
 '^MftHP. Pub. Stat. clKi). n-.» ijt- 1«58. 212, 218.
 
 A«T1.»X (II:t of JLK1&1UCT10X Will KK IN.IlliY OCCUKKKD. 041> 
 
 The requiiviiH'iit of sfcetion \('u> is, that every locomotive shall 
 be furnished ^itli a Itcll and steam whistle, and that the hell shall 
 be rung or the whistle sounded at the distance of at least eighty 
 rods from every grade crossing, and be kept ringing or sounding, 
 continuously or alternately, until the engine has passed. The 
 claim is that the injury to the intestate resulted from an omission 
 to ring the bell or sound the whistle as required. It will be seen 
 that the statute creates an entirely new cause of action, giving 
 the executor or administrator of the deceased power to prosecute 
 it; not however in his representative capacity, since he is empow- 
 ered to prosecute, not for the benefit of the estate, but for the use 
 of certain designated persons. The <[uestion is whether an exe- 
 cutor or administrator, appointed in Rhode Island, shall be taken 
 to have the right to prosecute the action in the courts of Rhode 
 Island. Similar questions, arising under somewhat similar stat- 
 utes, have been differently decided by dilferent trilumals. 
 
 There is in Khode Island a statute sul)jecting railroad corpora- 
 tions to liability for ne^gligence resulting in death, ' but it differs 
 materially from the Massachusetts statute especially in that it has 
 none of the penal features of that statute. For this reason the 
 court did not think it necessary to decide whi<-h of the two sets of 
 cases above cited lays down the true doctrine; for it seems to be 
 well settled tlxat each of the states will be left by the others solely 
 to itself to give effect to its penal legislation.'^ 
 
 That the liability imposed by the Massachusetts statute is penal 
 is very clear. The damages are directed "to be assessed with 
 reference to the tlegree of culpability of the corporation or of its 
 servants or agents,'- and to the amount of at least $500. These 
 directions clearly show a positive purpose. So likewise, confirm- 
 atorily at least, does the dii-eetion that the recovery shall not be 
 prevented by contributory negligence unless it be gross or willful. 
 One of the remedies given Ijy section 212 is an indictment, the 
 fine prescribed in case of conviction being not less than $500 nor 
 more than $5,000. The same i-emedy is given by section 213 if 
 
 'Pub. Stat. R. I. chap. 204, i^g 15-18. 
 
 U:'<m. V. Greex, 17 Mass. 515, 540; ll'/nt v. Powiud, 9 Vt. 411, 417; ScoviUe 
 
 V. Canfield, 14 Johns. 838; Brigham v. (Hanin, 31 Wis. 607,616, 11 Am. 
 
 Kpp. Q2n: First ^^at. Bank of Plymouth v." l^-ke, 33 Md. 488: Ilalsey v. 
 
 McLm/,. 12 Allen, 438; Derncknon v. SmM, 27 N. J. L. 166; Bird v. 
 
 Hat/dfn. 2 Abb. Pr. N, S. 61.
 
 650 AOTIOKS AGAINST CWKRIKRS CONTINUED. 
 
 the injury be mortal. It \\oiild seem that where death ensues 
 there is provision only for a civil action, hut the provision is part 
 and parcel of legislation which has its penal purpose thus clearly 
 stamped upon it. 
 
 The conclusion is that an action founded on tlie provision is not 
 maintainable in Rhode Island. A remedy given by a statute of 
 another state cannot be enforced in a state whose laws deny or do 
 not give such right of action, whether the laws of the latter state 
 affect the right or only the remedy.' 
 
 Other courts hold that such actions are .-Aaintainable when the 
 statutes of the state where the injury occun-ed, and where suit is 
 brought, are similar and give the right of actic/u.^ A cause of 
 action given by the statute of one state may be enforced by the 
 courts of another state, where the statutes of the latter give a like 
 right under the same facts.^ Itights which have accrued under 
 the laws of a foreign state are treated as valid rights everywhere, 
 whether they are of common law or statutory origin.* The ground 
 of decision in the two last cited cases is, tiiat the cause of action 
 accrued imder a statute which, notwithstanding some minor dif- 
 erences was substantially the same as a statute of the state in wliich 
 the action was brought. A recent JSTew Jersey decision^ rests on 
 that and more general grounds of comity. The liabiUty in ques- 
 tion in each of said three cases, however, was remedial, not penal, 
 the rule of liability being no more exacting than it would have 
 been in favor of the deceased if he had survived, and the damages 
 recoverable being recoverable as compensation. 
 
 ' Texas & P. R. Co. v. Richards, 68 Tex. 37"). 
 
 ''Dehevoise v. New York, L. E. & W. R. Co. 98 N. Y. oTT; Wextern. dt A. R. 
 
 Co. V. Strong, 52 Ga. 461; liruee v. Cincinnati R. Co. 83 Kv. 174; Hyde v. 
 
 Wabash, «. L. <b R R. Co.Qi Iowa, U\; Morris v. Chicago, R. I. & P. 
 
 R Co. 65 Iowa, 727; Chicago, St. L. d- N. 0. R. Co. v. Doyk, 60 Miss. 
 
 977. 
 "Tems cfc P. R. Co. v. Richards, 68 Tex. 375. 
 *Jiurnsv. Grand Rapids d- /. R. Co. 12 West. Rep. 688. 113 Ind. 169: Jef- 
 
 fersonviUe R. Co. v. Hendricks, 26 Ind. 228; Jrffrrsontine, M. & I. R. Co. 
 
 V. Hendricks, 41 Ind. 48; Burns v. Grand liaj)ids cfc 1. R. Co. 12 West. 
 
 Jlep. 688, li;'. Ind. 169; Knight v. West Jersey R. Co. 108 Pa. 250: lUinoi:* 
 
 Cent. R. Co. v. Cruduit_ (53 Miss. 291; Willis v. Missouri Pac. R. Co. 61 
 
 Tex. 432; McDonald v. Mallory, 77 N. Y. 546; IJennick v. Centred R. Co. 
 
 of Nein Jersey. 103 I'. S. 11, 26 L. ed. 439; Leonard v. Columbia Steam 
 
 JVav. Co. 84 'N. Y. 48. 38 Am. Hei>. 491; St"cckman v. Terre llaAitc d- I. 
 
 R. Co. 15 Mo. App. 503. 
 * Demi let: V. Central R. Co. if New Jerseg, 103 U. S. 11, 26 L. ed. 439.
 
 ACTION OUT OK J L'KISi »ICTU).N SVHKUK IN.JUKY OCCUKKKD. 651 
 
 In Missouri,' J//'. Just ice Tiiujiij^son, delivering the opinion, 
 ^vitl^out referonce to that of Vaivter v. J\[if<80uri Pao. M. Co. 84 
 Mo. GT9, supposed heretofore to decide the contrary, says : ''The 
 • question is now, we believe, presented for the first time in this 
 state. The decisions presented, in other states are shown to be 
 conflicting. TJiese statutes are of recent origin. The question of 
 tlieir extraterritorial force has presented itself to various courts of 
 the Union as a question of first impression; and, reasoning on var- 
 ious grounds, for the most part of a technical nature, they have 
 arrived at difi'erent conclusions. In this conflict of authority, we 
 are quite at liberty to adopt the view which seems best to consist 
 with the policy of our legislation, and with that S2)irit of comity 
 which ought to subsist between difl'ereut states of the Union. 
 We accordingly hold that this action Avas well brought." 
 
 When the courts are asked to enforce a rio-ht oiven under a 
 local statute, and it is made to appear that the act complained of 
 was connnitted out of the state, and it is shown that the laws of 
 that state are similar to the local statutes giving the remedy, the 
 duty of taking jurisdiction wt)uld be indicated, if the local courts 
 will recognize the action as ti-ansitory.'-' Courts of admii-alty in 
 the United States have iurisdiction of toi'ts connnitted on thehisrh 
 seas without reference to the iiationality of the vessel on which 
 they are committed, or tliat of the parties to them. Such juris- 
 "diction will, in the discretion of the court, be declined in suits 
 between foreigners, where it appears that justice will be as well 
 done by remitting the parties to their home forum. But the 
 jurisdiction will not be declined where the suit is between for- 
 eigners who are subjects of ditferent governments, and therefore 
 have 710 common forum. ^ 
 
 The rule seems to be that where there is a right of action either 
 at common law or given by statute, and a legal liability has been 
 incurred, it may be enforced, and the right of action may be pur- 
 
 ^Stoeckman v. I'e.rre Haute & 1. R. Co. 15 Mo. App. 503. 
 
 ^Cincinnati, II. tfc D. R. Co. v. McMnllen, 117 Ind. 489; St. Louis, I. M. & S. 
 
 E. Co.Y. McCormick, 1 L. R. A. 804, 71 Tex. 660; Siallknecht v. Penn- 
 
 sylvaniaR. Co. 53 How. Pr. 305; Selma R. d B. R. Co. v. Lnci/, 43 Ga. 
 
 461, 49 Ga. 106; Western & A. It. Co. v. Strong, 53 Ga. 461; Stoeckman v. 
 
 Terre Haute d- 1. R. Co. 15 Mo. App. 503. 
 'Bernhard v. Creene, 3 Sawy. 330; The Noddlehurn, 12 Sawv. 133; The Bel- 
 
 genland, 114 U. S. 355, 29 L. ed. 152; Ben. Adm. § 383."'
 
 0o2 ACTIONS AGAINST CAKHIKKS CO.NTIM" KI), 
 
 sued in any court Avliicli luis jni'isdictiou of the subject-matter and 
 can obtain juri.-;diction ot tlie parties.' (!!oui"ts will entertain ju- 
 risdictidn of actions for personal injuries connnitted abroad, when 
 both oi" cither of the ])arties are citizens (»f tlie United States.* 
 
 As to torts connnitted in foi-eig-n countries the jurisdiction of 
 state courts is undoubted, l)ut its exei'cise is only a matter of com- 
 ity; and wliere it appears that our courts are resorted to for the 
 purpose of adjudicating upon mere personal torts, committed 
 aliroad, tlie court may properly decline to pro(*eed further. ^ 
 
 An action may be brouo-lit, with process in the usual way, by a 
 citizen of (-Jeorgia against the Montgomery & West Point R. Co. 
 even though tlie cause of action originated in Alabama.* It has 
 been held that where a suit Avas brought in Georgia for the killing 
 of the plaintiffs husl^and in Alabama, it conld not be maintained 
 because by the statute of Alabama the right of action is given to 
 the personal rejjresentative. " Uut if the company doing the in- 
 jury in Alabama is a Georgia coi'poration and the suit is brought 
 by a Georgia administrator, the action will lie. * The plaintiff 
 was injured by carelessness of defendant while riding in the cars 
 of the defendant, situate in Xew York. It was held that the 
 action was properly brouglit in ^^c\v Jersey.' 
 
 >j I t'i). Mlio may Bring ,'iction in Foreign JitriS' 
 
 (iictioTb. 
 
 'riiej'c are cases whei"i> the question of the party who may sue 
 is simply a (piestion of remedy, and therefore determined by the 
 laM' of th(! forum. Whether an infant shall sue by guardian or 
 next fi'ieiid, and Mhether an assignee shall sue in his owimameor 
 
 ^ Alley V. ('<ix]i(iri, 6 New. Eng. Hep. 429, 80 Me. 234: Dennick v. New Jer- 
 
 xn'i Cent. K. Co. 10:J U. S. 11. 26 ]j. ed. 4:59; Shcddv. Moran. 10 111. App. 
 
 6i8. 
 '^Glin V. lliKli/eH, 9 .lohns. 67; Sniith v. Bull, 17 Wend. o2i{; y^/.vte?' v. Wright^ 
 
 2 Hill, 320; Johmoii v. Daltoii, 1 Cow. r»48. Contra, Mohny v. Bows, 8 
 
 Abb. Pr. 316; Wells, Jurisdiclion of Courts, 110. 
 ■Great WcHtern R. Co. v. Miller, 19 Mich. 30r,. 
 * Berry \. Monlmnnery ifc M'. P. Ji. ('<>. 39 Ga. .'5.")4, 
 ■'Selma, II. li- JJ. /.*. Ct. v. Lmri/, 49 Ca. 100. 
 "Central R. Co. v. Suoiut, 73 Ga. 651; Cooley, Toils, 312. 
 ■>Acl:erHon v. Hric /.'. Co. 31 N. .1. L. 309.
 
 WHO .M.vv iJiiixif AurroK is ioimoh.x ,11 icisinciniN. ij'yA 
 
 tliat of his ussi^Mior and the like, iiiv clcarlv (|iu'sti(»iis of proced- 
 ure only, Imt where the inattei' is not of form siiriply. ])iit of ri^-lit, 
 the remedy must follow tlic law of the ri<>;lit. Where one section 
 of a foreii;n statnte merely imposes a liahiHty hnt confcis no 
 right, and another section confers the i-i<ilit. and w ithont it the 
 other would l)e utterly nn»>'atory ;ind inell!ectivc. and tojojether 
 they give the i-iglit to the party who is to enforce the i-ight and 
 name the party entitled to the benefit, and they give all these to- 
 gether, the [)lain words constitute one ground, to wit, an action 
 to be enforced as given, and not ca]>able of being split up ii\to 
 different rights with varying remedies accoi-ding to the trilmnals 
 in which they may chance to be asserted; there the (juestion of the 
 party Avho may sue is not of form merely, but of right: and un- 
 doubtedly the action could be; mai:it;iined in the foreign state bv 
 a personal representative, and an action brought by another ])artv 
 in another jurisdiction would not oust the right of tiie legal partv 
 in tiu' place where the cause of action arose. ' 
 
 An action mav be maintained in one state by the personal repre- 
 sentatives of one killed by the negligent act of a common carriei- in 
 another state, to recover from the caia-ier damages resultiui; from 
 such negligence, where the cause of action survives to "the personal 
 representatives by the statute of the state where the suit is brought." 
 When a state statute gives a remedy for a death caused bv neo-- 
 ligence and provides that the action shall be brought bv the rep- 
 resentatives of deceased, the personal representative appointed i)i 
 another state may bring the action in the state where he was ap- 
 pointed.' An action Mnll lie in New York upon the Now Jersey 
 statute for a death occurring in ISTew Jersey through the negli- 
 gence of a New Jersey cor])oration at the suit of a l^ew York 
 administrator; the fund i-ecovered to be distributed according to 
 the jS'ew Jersey law.* Where like statutes exist, most states re- 
 
 ' Usher v. WestJermj li. Co. 4 L. R. A. 261, 126 Pa. 206. 
 
 WRciley v. New York & JS' E. R. Co. 6 L. R. A. 719. 16 R. I. 388. 
 
 ■'■Leonard V. Columbia Steam Nav. Co. 84 N. Y. 48; ASmi(h v. Bulf, 17 Wend 
 323; Whitford v. Panama R. Co. 23 N. Y. 465; Storv, Confl. L. §:< .-)38 
 553; Bissell v. MicMgan S. & N. I. R. Co. 22 N. Y.' 258; MeCorniick v.' 
 Penymjlmnia Cent. R. Co. 49 N. Y. 303; Home Im. Co. v. Peniifa/lvania 
 R. Co. 11 Hun, 182. 
 
 *Dennick v. Neio Jersey Cent. R. Co. 103 U. S. 11, 26 I. ed 4o9- Coolev 
 Torts, 313. ' '
 
 654 ACTIONS AGAINST CAKKIKKS — CONTINLKD. 
 
 cognize the right to take out auxiliary letters of adiiiiiustration to 
 the letters granted in the jurisdiction where the injury occurred.' 
 
 L. died in Kansas, from injuries there, iov wliich it is claimed 
 that, if death had not ensued, the Missouri Pacilic Eailway Com- 
 pany, the party inflicting them, would have heen lial)le to an ac- 
 tion for damages. The statute of that state provides that an action 
 may be brought against the party by the personal representative 
 of the deceased. The widow, ai)pointed under tlie laws of 
 Nebraska admmistratrLx of L., brought in the circuit court of that 
 state a suit against the railway conipaii}^, and the suit was main- 
 tained, the right of action not l)eing limited by the statute to a 
 personal representative of the deceased appointed in Kansas, and 
 amenable to her jurisdiction. It was held that the distribution of 
 money, if recovered by the widow from the railway company, 
 might be enforced by the courts of oS'ebraska in the manner pre- 
 scribed by the statute of Kansas." 
 
 ]^o court in the state of j^ew York has jurisdiction of an action 
 by a nonresident against a foreign corporation on a cause of action 
 which did not arise within the state. The appointment of a non- 
 resident as an administrator in the state of ]^ew York does not 
 authorize him to sue as a resident of the state, under 'New York 
 Code of Civil Procedure, § 1T80. ' 
 
 An action by a widow for the death of her husband, occasioned 
 in Arkansas, in whicli state, in the absence of administration, she 
 can sue as the sole heir of the husband, and where exemplary 
 damages are not allowed, cannot be maintained in Texas, where 
 such damages are allowed, and where the widow of a man killed 
 is the dii-ect and immediate beneficiary, under the statute, suing 
 in her own right, and where the period of limitation is different; 
 especially when an administrator has been appointed in Arkansas 
 pending the action, but was discharged and the administration 
 closed to avoid a plea in abatement on that ground. Although a 
 cause of action is given by the statutes of both states for wrong- 
 fully causing death, they are not sufficiently similar to warrant the 
 courts of one state in enforcing the statute of the other.* 
 
 ^Jeffersonri/le, if. & 1. 11. Co. v. Hendricks, 41 Ind. ■i^\ Hartford & N. H. IL 
 
 Co. V. Andrews, 30 Conn. 2VS. 
 •'Mmoun Pac. R. Co. v. Lexois, 2 L. R. A. 67, 24 Neb. 848. 
 ^Robinson v. Ocean Sleam Nav. Co. 2 L. R. A. 636, 112 N. Y. 315. 
 *Sl. Lords, T. M. & S. R. Co. v. McOormick, 1 L. R. A. 804, 71 Te.\. 660.
 
 KULE OF DA.MaGKS IN .U IKiNS FOK DEATH FROM NliGLIGENOE. 655 
 
 A widow cannot maintain an action in lier own name to recover 
 (lamages for tlie deatli of lier Imsband in anotlier state under the 
 statute of the foreign state which expressly directs the action to 
 be bruuglit l)y the administrator, although it is for the ultimate 
 benefit <jf the widow and next of kin, and although a closely sim- 
 ilar statute in the state where the action is brought gives a right 
 to sue in such case expressly and exclusively to the widow if there 
 be one, for the benefit of herself and children. The statute of 
 the state where the action is brought has no exterritorial force 
 wliich can produce rights from the occurrence in the foreign 
 state.* Where the statute of the foreign state expressly directs 
 the action to be brouglit in the name of the personal representa- 
 tive of the deceased, the established rule is that statutory remedies 
 are to l)e strictly pursued ; and when the legislature has com- 
 manded one form, the court cannot say that another would serve 
 the purpose ec^ually well. This is peculiarly true w^here, in a state 
 giving a right of action, the administration of law and equity is 
 not only in separate forms but by separate tribunals. "Where no 
 peison but the adnjinistrator has been clothed with the right no 
 other person can sustain the action. * 
 
 § 180. Rule of Damages in Actions for Death 
 from J\^egligenc6. 
 
 As the English statute did not give a new right of action, but 
 simply continued the same right in the personal representative, 
 that the deceased would have had for the injury, had he survived, 
 the release of the action or a recovery during his life would end 
 tlie right to claim damages, for the statute provides a new prin- 
 ciple only as to the assessment of damages. ^ This question, how- 
 ever is variously decided under the special statutes of the states, 
 as in Iowa it is decided that a new right is given in the event 
 
 ^mJier V. Wed Jersey R. Co. 4 L. R. A. 261, 126 Pa. 206; Whitford v. Pan- 
 ama R. Co. 23 N. Y. 484; Woodard v. Michigan S. & N. 1. R. Co. 10 
 Ohio St. 121; Richardson V. JS'eic York Cent. R. Go. 98 Mass. 85; State v. 
 Pittsburgh & G. R. Co. 45 Md. 41; Selma, R. & D. R. Co. v. Lacy, 43 Ga. 
 461; Anderson v. Milwaukee & St. P. R. Co. 37 Wis. 321; McCarthy v. 
 Chicago, R. I. & P. R. Co. 18 Kan. 46. 
 
 * Books V. Danville, 95 Pa. 166. 
 
 ^Read v. Great Eastern R. Co. L. R. 3 Q. B. 555, explaining Blake v. Mid- 
 land R. Co. 18 Q. B. 93.
 
 656 ACTIONS AOAINST CAKUIEKS — CONTINUED. 
 
 death is instantaneous. * It is held to he a new right of action in 
 New York, and compensatory only for pe(niniarv lo^s. * 
 
 In an action by an administrator to rec«jver damages for the 
 death of his intestate alleged to have been caused by defendant's 
 negligence, evidence that deceased was taken care of between the 
 injury and his death bv the defendants was held to have been 
 properly excluded. The injured party during his lifetime, it was 
 said, could recover for the bodily suffering. His personal repre- 
 sentatives after his death cannot. If tlie defendants therefore 
 could show in an action by the administrator, in mitigation, the 
 payment of money, it will be but just that the personal represen- 
 tatives should be permitted to show the bodily suffering of the 
 deceased, because the money might have been paid in considera- 
 tion of these sufferings. The result would be to bring into an 
 action of this kind an element of damages entirely improper.' In 
 Littlewood v. Neio York, 89 X. Y. 24, the language of the court 
 simply indicated that proving a settlement by the deceased might 
 be in bar. 
 
 In Tennessee the old right survives, including the right to a 
 recovery for pain and sutfering, and also a new right for pecuni- 
 ary loss to the next of kin.* Contributory negligence either of 
 the deceased or of the beneliciary under the statute is a cause of 
 defense.* 
 
 Pecuniary loss is the foundation for the recovery." And the gen- 
 
 ^Connersv. Burlington, C. d- M. R. Go. 71 Iowa. 490, 
 
 "Quin V. Moore, 15 N. Y. 435. 
 
 'Murray v. Usiier, 46 Hun, 404, 
 
 .^Nashville & C. B. Co. v. Prince, 2 Heisk. 580. 
 
 ^Kdly y.Hendric, 26 Mich. 255; Michigan Cent. R. Co. v. Compau, 35 Mich. 
 468; Pittsburgh, Ft. W. & C. R. Co. v. Vining, 37 Ind. 518; Htirst v. De- 
 troit City R. Co. 84 Mich. 539; BeUcfontaine R. Co. v. Snyder, 24 Ohio 
 St. 670; Williams v. Texas & P. R. Co. 60 Tex. 205; Wright v. Maiden & 
 M. R. Co. 4 Allen, 289; Baltimore & 0. R. Co. v. Fryer, 30 Md. 47. 
 
 *Union Pac. R. Co. v. Dunden, 37 Kan. 1; Houston & T. C. R. Co. v. Cow- 
 ser, 57 Tex. 293; Rockford, R. I. & St. L. R. Co. v. Delaney, 82 111. 198; 
 Pennsylvania R. Co. v. Zebe, 33 Pa. 318; Ewen v. Chicago & N. W. R. Co- 
 38 Wis. 614; Donaldson v. Missimppi d; M. R. Co. 18 Iowa, 280; Hutch- 
 ins V. St. Paul, M. & M. R. Co. 44 Minn. 5; Van Brunt v. Cincinnati, J. 
 & M. R. Co. 78 Mich. 530; Kelly v. Central R. Co. 5 McCrary, 653; Mis- 
 souri Pac. R. Co. v. Henry, 75 Tex. 220; Gilligan v. New Yo7-k- dt H. R. Co. 
 1 E. D. Smilii, 453; TomlinHon v. Derby, 43 Conn. 562; Matthews v. Mis- 
 souri Pac. II. Co. 26 Mo. App. 84.
 
 STATUTES KEGULATING DAMAGKS FOR DEATH FROM NEGLIGENCE. 057 
 
 eral rule is, that these statutes only authorize recovery in cases of 
 pecuniary loss.' 
 
 Where the direct evidence, as in the. case of a child, cannot be 
 given of pecuniary loss, it is within the province of the jury to 
 consider the occupation of the father, the age and sex of the child, 
 the position in life of the family, to form an estimate of the dam- 
 ages with reference to the pecuniary injury — present or prospect- 
 ive — resulting to the next of kin." Under such a statute, where 
 deceased left a parent entitled to his services, the law implies 
 pecuniary loss, for wl)ioh compensation may be given.' The loss 
 is reckoned, not from the date of the injury, but from the time 
 of the death." In many of the courts, while ruling that pecuniary 
 loss must be established, it is not necessary to show that an actual 
 claim existed upon the deceased for support, amounting to a legal 
 right.^ The amount of damages to which a widow is entitled 
 from a railroad company for the death of her husband, should not 
 be reduced by any insurance on his life received by her. * 
 
 § 181. Statutes Regulating Damages for Death 
 fro7n'[JVegligenc6. 
 
 In New York it was held no error in a court to refuse to charge 
 tliat the damages in an action based on the statute should be 
 restricted to the loss of services during the minority of a child, as 
 the measure of damages would be the whole pecuniary loss occa- 
 sioned by her death.'' Under the Civil Damage Act, chap. 646, of 
 the Laws of 1873, and under the acts allowing the next of kin of 
 
 ^Holton V. Daly. 106 111. 131; Van Brunt v. Cincinnati, J. & M. R. Go. 78 
 Mich. 530; Pennsylvania R. Co. v. Henderson, 51 Pa. 315; Telfer v. North- 
 ern R. Co. 30 N. J. L. 188; Pennsylvania Co. v. Lilly, 73 Ind. 254; Perry 
 V. Georgia R. &Bky. Co. 85 Ga. 193; Baldwin v. Western R. Corp. 4 Gray, 
 333; Louisville & N. R. Co. v. Orr, 91 Ala. 548; Staal v. Grand St. & N. 
 R. Co. 107 N. Y. 625. 
 
 Uhl V. Forty-second St. & G. St. F. R. Co. 47 N. Y. 317: Mclntyre v. Neio 
 York Cent. R. Co. 37 N. Y. 287; Illinois Cent. R. Co. y.Weldon, 52 111. 
 290. 
 
 'Stafford v. Rubens, 1 West. Rep. 640, 115 111. 196. 
 
 ^Atlanta & W. P. R. Co. v. Venable, 67 Ga. 697. 
 
 Illinois Cent. R. Co. v. Barron, 72 U. S. 5 Wall. 90, IS L. eti. 591; Groten- 
 kemjier v. Harris, 25 Ohio St. 510. 
 
 ^Western & A. R. Co. v. Meigs, 74 Ga. 857. 
 
 "^Birketi v. Knickerbocker Ice Co. 41 Hun, 404. 
 42
 
 668 ACTION'S AGAINST CAKKI KKt:— CONTINUED. 
 
 one whose death has been caused by the wrong or carelessness of 
 another to recover damages for such death, the amount of dam- 
 ages are exceedingly uncertain, problematical and contingent, and 
 yet they must be left to the determination of the jury upon such 
 facts as can be proved. * 
 
 The statute which gives a right in Alal)ama of action to the 
 personal representatives of a person whose death was caused by 
 the "wrongful acts or omission of another" and declares that he 
 may "recover such sum as the jury may deem just," * only applie& 
 to cases in which death resulted from the wrongful act or omis- 
 sion, leaving other actions for personal injuries to be governed as 
 to the measure of damages by other statutory provisions, ^ or by 
 principles of common law. * 
 
 The Illinois Revised Statutes, ' limit the amount of damages to 
 the pecuniary loss sustained by the widow and next of kin in an 
 action for damages for death caused by the negligence of defend- 
 ant ; the language being " And in every such action the jury 
 may give such damages as they shall deem a fair and just com- 
 pensation with reference to the pecuniary injuries resulting from 
 such death to the wife and next of kin of such deceased person, 
 not exceeding the sum of $5,000." An averment in the complaint 
 under this statute that by the death of the deceased, his widow 
 and minor children named were deprived of their support, and 
 said minors of their means of education, to the damage of plaintiff 
 as administratrix the sum of $5,000; is sufficient to admit evidence 
 to show that the beneficiaries designated by the statute have sus- 
 tained pecuniary injury by the death of deceased. ' 
 
 It is entirely proper under the Illinois statute to show the 
 amount of decedent's usual earnings, and that plaintiff was his 
 widow, and that they had minor children whom he was bound by 
 law to support, and who usually shared his income. But it is 
 wholly immaterial whether such next of kin had or had not other 
 
 ^Etherington v. Proxpect Park & G. 1. R Co. 88 N. Y, 641; Houghkirkv.. 
 
 Delaware & U. Canal Co. 92 N. Y, 219. 
 »Code Ala. §2641. 
 «Code Ala. §§ 1699, 1700. 
 
 *EaHt Tenimsee, V. & O. B. Co. v. Eing, 81 Ala. 177. 
 »Chap. 70, §§ 1 and 2. 
 ^Chicago & A. R. Co. v. Carey, 2 West. Rep. 73. 115 111. 115.
 
 STATUTES KKOULATING DAMAGES FOR DEATH 1- KOM XEoLR-ENCK. 659 
 
 pcciiiii'ai'y sources after liis deatli.' If the next of kin were in no 
 way dependent upon tlie deceased for supi)ort, or if they had no 
 reasonable expectation of ])e(uiniaiy henetit from liini, nominal 
 damages only can be recovered.* It is held under the Illinois stat- 
 ute, that wliile there can be no recovery for the bodily ])ain and 
 sufferinj^, yet where death results from a cause other than the 
 injuries for which the suit is brouj^ht, there may be a recovery, 
 notwithstandiiiii; the death, for precisely the same injuries that the 
 party himself could have recovered for had he lived until after 
 final trial.' 
 
 In Iowa it is r.nly compensation for the actual loss that can be 
 recovered under the statute, and in estimatins^ the injury to the 
 children of the decedent the time beyond their inajc»rity cannot 
 be taken into account.* 
 
 In an action under (ieneral Statutes of Kentucky, chap. 57. 
 § 3, for wit)ngful neglect, punitive damages may or ma}' not be 
 given in the discretion of the jury; and it would be error to in- 
 struct the jury that they should givo punitive damages if they 
 found willful neglect. The inquiry should be limited to the p<jwer 
 of deceased to earn money had he not been killed, in fixing the 
 measure of coni])ensat()ry damages.* 
 
 Under liev. Stat, of Missouri, 1879, § 2121, tlie amount of 
 damages is iixed by the statutes as expressly conferred upon bene- 
 ficiaries named therein, and the defense claiming that insurance 
 money received by ]ilaintitf upon the death of her husband, caused 
 by the wrongful act of defendant inures to defendant and is a 
 defense jj/-o fanto, is irrelevant and immaterial, and is properly 
 stricken out.* Under Rev, Stat. 1879, § 2123, the measure of dam- 
 ages in an action by a father for the death of his minor son caused 
 by negligence is such an amount of money, not exceeding $2,000, 
 as the jury may deem fair and just with reference to the necessary 
 injury resulting from death to the party surviving who may be 
 
 Whicago d- K W. Jl Co. v. .Vomnda, 93 111. 304. 
 
 ^Chicago cf; N. W. R. Co. v. Sicett, 45 III. 197; Chicago & A. R Co v Shan- 
 non, 43 111. 338. 
 ^Chicago tfc E. 1. R. Co. v. O'Connor, 6 West. Rep. 773, 119 111. 586. 
 
 * Walters v. Chicago, R. I. <£• P. R. Co. 36 Iowa, 
 ^Louisville, K A. & C. R. Co. v. Brooks, 83 Ky. 129. 
 
 * Carroll y. Missouri Pac. B. Co. 3 West. Rep. 839, 88 Mo. 239.
 
 660 ACTIONS AGAINST CARRIERS — CONTINLKD, 
 
 \ 
 
 entitled to sue; and also Laving regard to tlie mitigating or aggra- 
 vating circumstances attending the wrongful act. The ])ecuniHi-y 
 loss for tlie death consists of the expenses attending the injury 
 and burial of deceased, also the full value of services of the son 
 during the son's minority less the expense of supporting him.' 
 
 Under tlie Tennessee statute which provides that the admiin's- 
 trator of the estate of the decedent wrongfully killed by another, 
 or the next of kin. by the use of liis name, may, in the right of 
 the deceased recover damages for mental and physical suffering, 
 loss of time, and necessary expenses, exemplary damages cannot 
 be recovered; and it is error for the court to instruct the jury 
 that total disablement for the decedent's period of expectancy of 
 life before the injury may be taken as a standard of measurement 
 of damages recoverable,' 
 
 In an action by the personal representative of a deceased minor 
 to recover damages for the death of the intestate it is within the 
 province of the jury to form an estimate of the damages with 
 reference to the pecuniary injury, pi-esent or prospective, result- 
 ing to the next of kin. In such a case the jury may estimate the 
 pecuniary damages from the facts proved in connection with their 
 own knowledge and experience which they are supposed to pos- 
 sess in common with the generality of mankind and it is not neces- 
 sary that any witness should express an opinion of the amount of 
 such pecuniary loss. Where the jury had presented to them evi- 
 dence of the parents of the deceased, their position in life, the 
 occupation of the father, the condition of his health, the age of 
 his son for whose death the action is brought, his intelligence, his 
 ability to earn money, etc., it was their province from this evidence 
 and their general knowledge, to form an estimate of the damages 
 with refei'ence to the pecuniai-y injui-ies. present and prospective, 
 resulting to the next of kin. It is impracticable to furnish direct 
 evidence of the specific loss occasioned by the death of a child, 
 and to hold that without such positive proof a plaintiff could not 
 succeed, would in effect defeat any substantial recovery.* 
 ^Hickman v. Mmouri Pac. R. Co. 4 West. Rep. 754,' 23 Mo. App. 844. 
 '^Illinois Cent. R. Co. v. Crudup, 63 Miss. 291. 
 ! 'Union Pac. R. Co. v. Dunden, 37 Kan. 1; Ihl v. Forly second St. (fe O. St. 
 
 F. R. Co. 47 N. Y. 317; Chicago v. Scholtm, 75 111. 469; Little Rock d- Ft. 
 
 S. R. Co. V. Barker, 39 Ark. 491; Kaf/el v. Msnouri Pac. R. Co. 75 Mo. 
 
 653; Chimqo v. lltMWf, 83 III. 204; Mimmri River R. Co. v. Richards, 8 
 
 Kan. 101; ' Mayhew v' Ihirm, 1 West. Rep. 577. 103 Ind. 328.
 
 PKOVISION l<OK DlSTKllJU HON OF KKCoVKRV 1"0K DEATH. 661 
 
 The statu toiy ineasiire of damages in case of death caused by 
 the iieglio-eiice of another are iixed at such sum as tlie jury may 
 deem just, in Alabama, Arkansas, California, Maryland, Michi- 
 gan. ]\rissippi, Nevada, Xew Jersey, New Yoi-k, North Carolina, 
 South Carolina, Texas and A^ermont. In Colorado, the amount 
 is iixed between ^;5,()00 and $5,000. In Connecticut, between 
 $500 and $5,000. In Illinois, A[innesota, Neljraska, Oregon and 
 Wisconsin the liniitation is $5,000. In Indiana, Ohio, A^'irginia 
 and AVest A'irginia the damages are limited to $10,000. In Geor- 
 gia, the full viihie of the life of the deceased is fixed as the meas- 
 ure of damages. Jn Kentucky, the damages are to be the same 
 as in case of personal injuries, lu^t (-ausing death, but where death 
 is willfully caused, exemplary damages may be given. Louisiana 
 fixes the reco\ery at the damages sustained. In ]\Iissouri, the 
 damages are limited to $5,000, as the jury may deem fair and 
 just, with reference to the necessary iujury to the party entitled 
 to sue, having regard to the mitigating or aggravating circum- 
 stances. The pecuniary loss in l^eimsylvania fixes the amount to 
 be recovered. In Tennessee, the physical and mental suffering, 
 necessary expenses, loss of time and damages to the beneficiary 
 are to be the incasure of i-ecovery. 
 
 § 182. Statu tor I J P/'outsio/fS for Distrlhutioii of 
 Recovery for Death froin Xegligence. 
 
 In Alaine, in rase of the death by negligence of the defendant, 
 the widow; second, the children; third, the heirs, may recover 
 damages under an indictment in the name of the state. In Texas, 
 the jury determine the proportionate amount of the recovery to 
 which each of the parties for wiiose benefit the action is brought 
 — husband, Avife, children or parents, are entitled. 
 
 In A'irginia, the jury may direct the distril)ution between the 
 husband, \vife, parent or children. If they do not the distribu- 
 tion is to be as in case of intestacy. In AN'^isconsin, tiie recovery 
 is for the benefit, first, of the M'ife or husband; second, the lineal 
 descendants; and third, lineal ancestors. In South Carolina, the 
 recovery is for the benefit of the wife, husband, parent and child- 
 ren. In Ehode Island, where either pareui or children survive,
 
 662 ACTIONS AGAINST CAKRIKKS— CONTINLKn, 
 
 the distribution is to be one half to the parent and one half to the 
 children. In Mississippi, the recovery is for the use of the person 
 suing, except wliere a widow with children is the plaintiff, wlien 
 the distribution is to be as personal assets of the deceased father 
 and husband. In Massachusetts a moiety is given to tlio widow 
 and children, or to the widow solely, or to the next of kin. 
 There is a proceeding authorized by indictment as in Maine. In 
 Connecticut, one moiety to husband or widow, and one to lineal 
 descendants. If no lineal descendants, the whole t<j husbaiul or 
 widow, and if no husband or widow, to the hcnrs. Although in 
 Maryland the proceeding is in the name of the state, it is civil. 
 In T^evada, the recovery is for the benefit of theliusband or M'ife; 
 next, children; next, grandchildren ; next, brothers and sisters; and 
 last, next of kin. In New IIain])shire. the damages arc first, for 
 the widow; second, the children; third, next of kin. In JS^ew 
 Jersey it is for the benetit of M'idow and next of kin. In Xew 
 York, for the benetit of husband, wife or next of kin, and to be 
 distributed as assets of decedent's estate, after payment of debts. 
 In Oregon administration upon the recovery is to be as upon per- 
 sonal property of the deceased. In Pennsylvania the recovery is 
 to be distributed as in case of intestacy. In Vermont the wife 
 and next of kin are entitled. Except as otherwise mentioned the 
 recovery is, under these statutes, free from the lien of creditors 
 and is distributed as in cases of intestacv.
 
 ('IIAI'TKII XXX IT. 
 
 NEGLIGENCE-CONTUmUTOKY AS PROXIMATE CAUSK 
 
 :§ 183. Degrees of Negligence. 
 
 H-. Negligence Defined — Slight Negligence. 
 
 b. Ordinary Negligence. 
 
 e. Gros!< Negligence. 
 ^ 184. Conlribuiory Negligence as Proximate Cause. 
 § 185. Rule of Contrihutory Negligence in Admiralty Jurisdiction. 
 
 § 183. Degrees of Megligcuee, 
 
 As tlio liability of the carrier of pas^eiiijers tV)r i«jiiries suffered 
 bv them, depends uj^on proof of the jieolio-euce of the carrier, 
 and as the degree of negligence which will render the carrier liable 
 varies under different circnnistances, — a high degree of care being 
 exacted as to u})erative inachinerj and the roadljed, and a slight 
 degree al)Out its station houses, where the peril is slight, although 
 even there, if there be danger, more than ordinary care is required, 
 as, a railway company, although not bound to have its depot plat- 
 form absolutely safe, is bound to use more than ordinary care and 
 precaution in making it reasonably safe ' — a dehnition of what 
 constitutes negligence and its different degrees is necessary, in 
 order to determine the value of evidence introduced to render the 
 ■carrier liable on the ground of negligence. 
 
 a. Negligence Defined — Slight Negligenee. 
 
 Negligence in a legal sense is a failure to observe for the pro- 
 tection of the interests of aiKjther tiiat degree of care, precaution 
 and vigilance which the circumstances demand, whereby such 
 
 'Ray, Neg. Imp. Duties. Personal, 361; Gulf, (J. tfe S. V. R. Co. v. Butcher 
 (Tex.) 11 Ry. & Corp. L. J. 173. 
 
 f>(;:3
 
 664 NEULKjEiSCK, COXTKIBLTOKV AS rKtiXlMATE CAUSE. 
 
 other person siiflfers injury.' It is the omission to do something 
 which a reasonable 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.' 
 
 The basis of liability in negligence cases is the violation of some 
 legal duty to exercise care.^ Although an admission of liability 
 is evidence of the fact of negligence, it does not in itself create a 
 liability apart from the facts.* One who does an act involving 
 the least possible danger to others is only required to use a slight 
 degree of care in its performance, and tliat degree of caution con- 
 stitutes what is called "slight care;"' and the want of it "slight 
 negligence." It is that degree of diligence which a person of 
 common sense, not a skilled workman or expert in any particular 
 business or employment, would exercise in such employment; 
 such care of himself or of his property, as one habitually careless 
 would take.* The absence of this degree of attention is called 
 slight negligence. 
 
 b. Ordinary Negligence. 
 
 "Where circumstances clearly demand precautionary measures,, 
 and injury arises from an omission of them, this is want of ordi- 
 nary caution and skill.* Ordinary care is that degree of watch- 
 fulness which is exercised by ordinarily prudent persons under 
 similar circumstances.' It is what, in the particular case involved,, 
 would be the conduct of a majority of men in like circumstances. 
 It is such a degree of caution as will be in due proportion to the 
 
 ^Diamond State Iron Works v. Oilen (Pa.) 9]Ceut. Rep. 577; Pen,7isylvania 
 R. Co. V. Peters, 8 Cent. Rep. 405, 116 Pa. 306; Lehigh & W. B. Coal Co. 
 V. Lear (Pa.) 8 Cent. Rep. 107. 
 
 '^Blytlie V. Birnnnr)ham Waterworks Co. 11 Exch. 783. 
 
 "Cusick V. Adams, 115 N. Y. 55. ' 
 
 *Swift Electric Lir/ht Co. v. Gra7it (Mich.) March 4, 1892. 
 
 '■LouM-nlle & N. R. Co. v. McCoy, 81 Ky. 403; Mark v. Hudson Riwr Bridge 
 Co. 4 Cent. Rep. 203, 103 N. Y. 38. 
 
 *McGrew v. Slfme, 53 Pa. 436; Thomas v. WincJiester, 6 N. Y. 397; Jackson- 
 ville St. R. Co. V. Chappell, 21 Fla. 175. 
 
 ^Needhnm v. Louisville & N. R. Co. 85 Ky. 423; Austin & X. R. Co. v. Beatty, 
 73 Tex. 592; Chicago & A. R. Co. v. Adler, 129 111. 335; Richmond & D. 
 R. Co. V. Jlowa/rd, 79 Ga. 44; Toledo & W. R. Co. v. Goddard, 25 Tnd. 
 185.
 
 DIU.UKKS OF >;ei>ligknce. 665 
 
 iiijurv or danger to be avoided.' The measure of ordinary care 
 is such care as must, by common prudence, be nsually exercised 
 in positions of like exposure and danger.'' Ordinary negligence 
 is the want of this degree of care. 
 
 e. G)'0ss Xerjl'tgence. 
 
 "Wliere it is said that great care was demanded, it is intended 
 to indicate tliat degree of practical attention which persons of the 
 greatest pruch'iu'c and skill usualfy i'xercise in similar cases. It 
 answers to a degree of responsibility above that exacted from an 
 an ordinarily pnidont man, and l)elow that exercised by an insurer. 
 It is the exercise of the greatest uniform pi'actical diHgeiice and 
 care, and M'luit this is, in any given case, is tested by that which 
 men of the greatest prudence exhibit under like circumstances. 
 In a particular business it is the skill and cai-e usually exercised 
 by an ex])ert. ' Such care is rcijuired of carriers and others who 
 employ dangerous agencies for their own profit. * 
 
 So far as it is possil)]e to define gross negligence it may be said 
 to be such absence of care — when the cojiseqnences of such want 
 of care would a])]iear probable, if the slightest thought were given, 
 but where it is not given — as would charge tlie person so negli- 
 gent not necessarily with an intention to inflict the injury result- 
 ing from his negligence, bnt M'ith the same responsibility as 
 though he had actually intended it. Inasmuch as his entire want 
 of care resnlts to others in as much injm*y as though he had 
 intended the harm and damage, it is just that he shall snffer tlie 
 same pecuniary consequences as though guilty in intent. He is 
 punished civilly, and those who suffer are reimbursed for the 
 consequences of his entire want of care, when he should have 
 
 ^Ermt V. Hudsvii lliver It. Co. 24 How. Pr. 97. 
 
 « Gaynor v. Old Colony d- X. R. Co. 100 Mass. :iOS; Bill v. Smith, 39 Conn. 
 
 310; Reynolds v. Burlinijton, 52 Vt. 800. 
 « Houston & T. C. R. Co. v. Gorbett, 49 Tex. 573; Carroll v. Staten Island R. 
 
 Co. 58 N. Y. 126; Louisville City R. Co. v. Weams. 80 Ky. 420; Coddington 
 
 V. Brooklyn C. R. Co. 2 Cent. Rep. 913, 102 N. Y. 66; Moreland v. Bos 
 
 ton & P. R. Corp. 1 New Eng. Rep. 909, 141 Mass. 31; The NewWorld v. 
 
 King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Sharp v. Grey, 9 Bing. 457; 
 
 Cald'well v. New Jersey S. B. Co. 47 N. Y. 282. 
 * Biggins v. Dewey, 107 Mass. 494; Palmer v. Delaware cf; //. Canal Co. 120 
 
 N. Y. 170.
 
 600 NEULICip:NCK, COJfTRIBUTOKV AS I'KOXIM.VIK (JAl SK. 
 
 anticipated tlie result tlieieof, but for liis inexcusable thoughtless- 
 ness. 
 
 § 18 4. Conti-UnitoTij .N'egli^enre as Proximate 
 
 Cduse. 
 
 Although the carrier may l»e "uilty of uegliuence, yet if the 
 person injured has contributed ])r()xiniHtely by his om'u act to 
 bring the injury upon himself, he cannot recover. The rule 
 which prevails at connnon law, is that one cannot recover for an 
 injury caused l»y his own negligence, or where his own negligence 
 contributed to the result, — even though tlic defendant Avas in 
 fault. 
 
 It becomes important in considei'ing the law of negligence, as 
 applied to carriers, to ascertain what constitutes contributory neg- 
 ligence in such legal sense as the detinition is applied in common 
 law courts and also within admiralty jurisdiction, for if the 
 transportation be within admiralty jui-i>di('tion the rule whicii 
 prevails at common law. that one cannot recover for an injury 
 (caused by his own negligen<'e or where his own negligence con- 
 tributed to the result, even though the defendant was in fault,' 
 -does not, in its full forci' a|)])ly. 
 
 At Common law one who suffers iin iiijni'y for want of that 
 ordinary care which a ])i-udent man avouM have exercised under 
 the circumstances, may be >aid to havr can>ed tlu^ injury by his 
 <'ontribut(»i-y negligence. A street railway com[>any is not liable 
 for a personal injury sustaiiu'd by a passenger while attempting 
 to get oif a car at a street ci'ossing while it was in motion, in vio- 
 lation of the company's rules and without anything having been 
 said or done by the company's employes to induce hei- to get off. '' 
 
 A rule of a railroad company I'lMpiii-ing ap[)roachiiig trains to 
 
 ^ Allen V. Maine Vent. 11 (,'0. 82 Me. Ill ; Jodwu, v. liolnmon, 1 L. R. A. 178. 
 72 Wis. 199; Jik'hnwnd cfc D. R. Co. v. PirkleKeiiuer. S~)Yii. 798; Dmisvtlle 
 & N. R. Co. V. Hall, 91 Ala. 112: JVo'i.sdair v. IWific Cooxt SS. Co. 80 
 Cal. 521: Phillips v. Ritchie Coiintu (U. 31 W. Ya. 477: Atkynv. Wabash 
 R. Co. 41 Fed. Kep. 19:;: Ryne w.Wibniituton d- N. R. Co. (Del.) May 
 81, 1888; Geri/y v. Ilal.y, 29 W. Vii. 98 ; Schoenfdd v. MiUravkce Citij 
 R. Co. 74 Wis. 43;{: Moor, v. tjentral 11. Co. 24 N. J. L. 208; Pennny'l- 
 rania R. C». v. Maitheir*, 8(i N. J. L. 5:31; Dehmare, L. tfc W R. Co. v. 
 Toffetj, :{8 N. J, L. 52"); East Tennexm , V. it- G. R. Co. v. Hull, 88 
 Term. 88. 
 
 ^Calilerwood v. North RimniKjhaio S. R. Co. (AIh.) May 4, 1892.
 
 coNTuiuunjKV ^M<;(fI-Ic;K^c'E as i'uoxim.vtk uausk. Ot>7 
 
 stop until a train standing at a station lias cleared the station does 
 not absolve a passenger, even though he knew of the rule and 
 relied upon its observance by the company's employes, from the 
 duty of exercising ordinary care for his own protection. The neg- 
 ligence of one M'lio, after boarding a train, returns to the station 
 M'ithout notifying the traimnen, and then, as the train is starting, 
 runs to catcii'it without looking or heeding the warnings of pei"- 
 sons on tlie platfoi-ni, and is killed while crossing a track in front 
 of an approacln'ng ti-ain, will preclude a recovery of damages by 
 his widow. ' 
 
 An intending passenger who leaves a position of safety and 
 takes one of manifest danger between two tracks, upon one of 
 which his train is expected, and stands so near an approaching 
 train that he is struck bv a car, is o-uiltv of neij-lio-ence which will 
 ])revent his recovery for injuries thereby sustained. " 
 
 The fact that a passengei- in a horse car was intoxicated when 
 he received an injui-y, altliough not alone sufficient to prevent his 
 maintaining an action, will prevent his recovery if his intoxication 
 <3ontributed to the injury in any degree.' 
 
 A railroad company is not lial»le for the death of a passenger 
 who, on arriving at his home station in a somewhat intoxicated 
 •condition at 12 o'clock at night, got otf the car on the wrong side, 
 where there was no platform, and fell oif the ])ridge on which the 
 car stopped, and was killed.* Perhaps the rule may be stated 
 thus : One who suffers an injury, to which the mere negligent act 
 •of another has contributed, cannot recover therefor, if his own want 
 of such care as a prudent man w< >uld. under the circumstances have 
 •exercised, or the want of the exercise of such care on the part of 
 some one for whose negligence he is responsible, has proximately 
 contributed also to the result. But if another person, aware of his 
 negligence, is guilty of such conduct contributing to the injury, as 
 implies an indifference to the consequences to him, he may recover. 
 
 The test of contributory negligence or want of due care is not 
 found in the failure to exercise the best judgment or to use the 
 
 ^Chaffee v. Old Colony R Co. (H. I.) Feb. 37. 1892. 
 
 *MeGeehan v. Lehigh Valley R. Co. 1 Pa. Adv. Rep. 704, 30 W. N. C. 140. 
 
 ^Holland v. West End St. R. Co. (Mass.) Jan. 9, 1892. 
 
 *Pastoris v. Baltimare cfc 0. R. Co. (Pa.) May 23. 1892.
 
 668 >,'i:GLlUENCK, tONriUIiLlC>KY AS I'KOXIMAIK CALSK. 
 
 wisest precaution, but allo^Yallct' may be made for the influences 
 ordinarily governing human action, as what would under some 
 circumstances be want of reasonable care may not be such under 
 others.' 
 
 The contributory negligence which prevents recovery for an 
 injury must be such as co-operates in causing the injury, and 
 without which the injury could not have happened.* But it need 
 not be the sole cause of the injury; it is sufticient, if it be one of 
 two or more concurring eflicient causes, to bar recovery.^ A pas- 
 senger who is carried by liis station Avithout knowledge of the 
 employes on the train, and is injured while attempting, without 
 their knowledge, to alight at the next station on the opposite side 
 of the train from tlie station, cannot recover from the railroad 
 company if struck by a passing train.* 
 
 It is gross negligence in a ])assenger on a street railway to jum]> 
 from the car when it is going twenty miles an hour, whether or 
 not he knows that the car is going so fast, and although the city 
 ordinance restricts the speed to seven miles an hour, and the con- 
 ductor is silent while he hears another tell such passenger that 
 the car is not going to stop and that he had l>etter get off." But 
 any negligence of the plaintiff, however slight, that contributed 
 to the injury, precludes, at common law, his recovery." 
 
 Lord Fitzgerald defines contributory negligence' as "the 
 absence of that ordinary care which a sentient being ought rea- 
 sonably to have taken for his own safety, and which, had it been 
 exercised would have enabled him to avoid the injury of which 
 he complained; or the doing of some act which he ought not to 
 have done, and but for which the calamity would not have oc- 
 curred." Contributory negligence which will defeat a recovery 
 consists in such acts or omissions on the part of the plaintiff, 
 amounting to a want of ordinary care, as, concurring or co-oper- 
 
 U:eHt V. yeic York Ceni. d- H. I!. R. Co. 120 N. Y. 467. 
 
 ''Lehu/h Valley Ji. Co. v. Greiher. 4 Ceut. Rep. 898, 113 Pa. 600; Feinandez 
 
 V. Siicramento (Jity Ji. Co. 52 (."al. 45. 
 ^Ik'orth Biriinnf/h(im ISl. It. Co. v. Caldenrood, 89 Ala. 247. 
 *\ichols V. C/tirii!/o tfc M'. M. li. Co. (Mich.) Feb. 5, 1892. 
 "■MasterHon v. .Macon City <& S. St. R. Co. (Ga.) Feb. 15, 1893. 
 "■Hclweufckl V. Milwaukee City J{. Co. 74 Wis. 43:!. 
 ''Wakelin v. I.ondon <f- S. W. R. Co. [j. li. 12 App. Cas. 51.
 
 COXTKIBLTOKV XEGLIGEXCE AS l'K<.>XIM ATE CAL'SK. G*>9 
 
 ating with the neghgeiit acts of the defendant are a proximate 
 cause or occasion of the injury, ' 
 
 Mr. Justice Agnew says : ''Many cases ilhistrate, but none 
 define, what is a proximate and what a remote, cause. A great 
 array of cases state the .rule cpiite satisfactorily as follows : It 
 must appear, in order to defeat the right of action, that but for 
 the plaintiffs negligence operating as an efficient cause of the 
 injury, in connection with the fault of the defendant, the injur\ 
 would not have happened." Where the cause, concurring witli 
 the negligence of the defendant, — as where there is a defect in 
 the highway — to produce in jui-y was a natural cause, or a pure 
 accident, for which no person was responsil)le, the one guilty of 
 the negligence will be lia])le.^ But where the concurring cause is 
 the independent, wrongful act of a responsible person,* such act 
 arrests causation, being regarded as the proximate of the injury, 
 the original negligence being considered merely as its remote 
 cause. As, in the law it is the proximate and not the remote 
 cause which is regarded, he who is guilty of the original negli- 
 gence is not chargeable, but redress must be sought from him who 
 directly caused the injury. 
 
 It may be stated as the true and guiding rule, that unless the 
 injury or damage are known to be usually in consequence of the 
 wrong — according to the ordinary course of events, following from 
 the particular wrong, they will not support an action/ But the 
 negligence of a responsible agent intervening between the defend- 
 
 ' Michmond & D. B. Co. v. Pickleseimer, 85 Va. 798: Butterfield v. Forrester, 
 11 East, 60; Tuff v. Warman, 5 C. B. N. S. 573; Pennsylmnia R. Co. v. 
 Aspell, 23 Pa. 147: Peterly v. Boston, 136 Mass. 366; Terre Haute & I. B. 
 Co. V. Graham. 95 Ind. 286. 
 
 ^Fairbanks v. Kerr, 70 Pa. 89. See Paducah & M. B. Co. v. Hoehl, 12 Bush, 
 41; Kentucky Cent. B. Co. v. Thomas, 79 Ky. 160; Houston & T. C. B. 
 Co. V. Clemmons, 55 Tex. 88; Hickey v. Boston & L. B. Co. 14 Allen, 429; 
 Colorado Cent. B. Co. v. Holmes, 5 Colo. 197. 
 
 »Hampson v. Taylor, 1 New Eng. Rep. 117, 3 New Eng. Rep. 640, 15 R. I. 
 
 83, 85. 
 
 *Kidder v. Dunstable, 7 Gray, 104; Shepherd v. Chelsea, 4 Allen, 113: Empo- 
 ria V. ScJimidling, 33 Kan. 485; Mahogany v. Ward, 16 R. I. 479. 
 
 ^Mack V. Lombard & S. St. P. R. Co. (Pa.) 18 Wash. L. Rep. 84; Sdleck v. 
 Langdon, 55 Hun, 19; Wright v. Chicago & N. W. B. Co. 27 111. App. 
 200; Adkins v. Atlanta & C. A. L. B. Co. 27 S. C. 71; Hudson v. Wabaxh 
 & W. B. Co. 32 Mo. App. 667.
 
 670 liEGLIGENCE, CONTRIBUTORY AS PROXIMATE CAl SE. 
 
 ant's negligence and the injury suffered, i. 'e., the damage, breaks 
 the causal connection. ' 
 
 In civil cases a defendant is not responsible for results, except 
 such as are natural, proximate and direct, if such consequences are 
 caused by the aets of others, so operating on his act as to produce 
 the injurious consequences then he is not lialjle.' Unusual and 
 improbable results are not to be anticipated, but usual and proba- 
 ble ones must be. * 
 
 The delivery of cotton at sheds by the insured is not the proxi- 
 mate cause of a loss occasioned by the failure of a carrier to trans- 
 port it promptly and its negligence in allowing the cotton to 
 accumulate in large cpiantities/ Where plaintiff's building was 
 consumed by fire uriginating in a M'ooden building adjacent to 
 that of the plaintiff, the act of negligence in building the wooden 
 or frame structure with all its sides closed, in violation of the city 
 ordinance, was not the proximate and immediate cause of the in- 
 jury complained of/ But under a marine policy upon a canal 
 boat, with the privilege of carrying lime barrels, insuring against 
 perils on inland waters and tires, wliere, upon discovery of a fire, 
 the cargo on deck was removed and the heat was so intense that 
 tlie barrels in the hold could not be unloaded, and the boat was 
 scuttled, the fire was the direct cause of the loss.* 
 
 Where a stringer of a bridge breaks while a person is hauling a 
 steam boiler filled with hot water and a steam engine over the 
 bridge, and his horses are injured by the steam escaping from the 
 boiler, the breaking of the bridge is the proximate cause of the es- 
 cape of the steam and water and the township is liable for the 
 
 ^Mahogany v. Ward, 16 R. I. 479; Kidder v. Dunstable, 7 Gray, 104; Shepherd 
 
 V. Chelsea, 4 Allen, 113; E'mx)oria v. Schmidling, 33 Kan. 485. 
 ''See State v. Rankin, 3 S. C. 438; Whatley v. Morrell, 1 Strobh. L. 389; 
 
 Harrisons. Berkley, 1 Strobh. L. 548; Carey y. Brooks, 1 Hill, L. 365; 
 
 Hill V. Port Boyal & W. C. li. Co. 5 L. R. A. 349, 31 S. C. 393. 
 ^Billman v. Indianapolis, C. tir L. R. Co. 76 Ind. 166; Dunlap v. Wagner, 85 
 
 Ind. 529, 44 Am. Rep. 42; WabasJi, St. L. tfc P. R. Co. v. Locke, 11 West. 
 
 Hep. 877, 112 Ind. 404; Louisnlle, N. A. & C. R. Co. v. Wood, 12 West. 
 
 Hep. 303, 113 Ind. 544-556, and cases cited; Clore v. Mclntire, 120 Ind. 
 
 262-265; Cincinnati, 1. St. L. & C. R. Co. v. Cooper, 6 L. R. A. 241, 120 
 
 Ind. 469-472; Terre Ilnvte & I. R. Co. v. Clem, 7 L. R. A. 588, 123 Ind. 
 
 16; Lane v. Atlantic Works, 111 Mass. 136; Hill v. Winsoi', 118 Mass. 251. 
 *Marine Ins. Co. v, St. Louis, I. N. & S. R. Co. 41 Fed. Rep. 643. 
 ''Mathiason v. Mayer, 7 West. Rep. 739, 90 Mo. 585. 
 ^Singleton v. Phcenixins. Co. 32 N. Y. S. R. 594.
 
 CONTBIliLToKV NKG I.K.. K.NOK AS riMXlMATK CALSK. 67 L 
 
 damage if it lias been negligent in i-cspect to the bridge.' Where- 
 one started a tire to remove combustible material from his gj-ound. 
 on a bed of tnrf or peat, at a season of great drought, the fact that 
 the fire crossed the land of two other persons before reaching the 
 plaintiff's ground, will in.t relieve the person starting the fire from 
 liability to the latter. ' The act of setting out a fire at such a 
 season and on an infiamma1)le and continuous bed of peat was a 
 positive wrong and not a mere passive negligence, so that the case 
 falls within tne rule declared in the famous Squib ease, which 
 courts have so often and so strongly approved. ^ 
 
 Extraordinary winds may be justly regarded as independent in- 
 tervening agencies, but not so, winds which are usual and prevail 
 without disturbing the normal condition of nature. One who is 
 himself without fault has, in justice and common fairness, a right 
 to recover from one who has caused him loss by a tortious act, 
 although an ordinary natural occurrence entered into the chain of 
 events which culminated in the loss. It is, in truth, impossible to 
 conceive a case wherein loss from fire can happen wholly inde- 
 pendent from natural causes. Fire will not burn without air, and 
 yet no one will assert that, because this natural agency enters into 
 every confiagration, therefore the wrong-doer is absolved from 
 responsibility. It is very seldom that any case arises in which 
 some break between cause and affect is not discernible upon rigid 
 scrutiny, and by captious* refinement, but the law is a practical 
 science and repudiates subtile refinements and speculative in- 
 quiries. It will not sacrifice substantial rights to such impractible 
 processes, but will reject them to make way for practical justice. 
 Recondite discussion of etficient cause, plurality of causes and kin- 
 dred topics is not for the practical lawyer or judge." In an ably 
 
 ^McKeller v. Monitor Twp. 78 Mich. 48.'). 
 
 •^Louisville, K A. S C. R. Co. v. Nitsche, 9 L. R. A. 750, 126 Ind. 229. 
 
 ^Scolt V. Shepherd, 2 W. Bl. 892; Billman v. Indianapolis, (J. & L. R. Co. 76 
 Ind. 166; Dunlap v. Warjner, 85 Ind. 529, 44 Am. Rep. 42; Terre Haute 
 &L E. Co. V. Buck, 96 Ind. 346, 49 Am. Rep. 168; Louisville, JSf. A. & 
 C. It. Co. V. Falvey, 1 West. Rep. 868, 104 Ind. 409; Indianapolis, P. tt 
 C. It. Co. V. Pitzer, 7 West. Rep. 396, 109 Ind. 178-188; Ohio & M. R.Co. 
 V. Hecht, 115 Ind. 443, and cases cited; Louisville, N. A. d: C. B. Co. v. 
 Snider, 3 L. R. A. 434, 117 Ind. 435; Denver cfc R. O. R. Co. v. Harris. 
 122 U. S. 597, 30 L. ed. 1146; Lake Shore & M. S. R. Co. v. Rosenziceifj, 4 
 Cent. Rep. 712, 113 Pa. 519. 
 
 ^Louisville, JSf. A. & C. R. Co. v. NitscJie, 9 L. R. A. 750, 126 Ind. 229.
 
 672 NEGLIGENCE. COM'KIBDTORY AS PKOXIMATE CAUSE. 
 
 reasoned opinion,' the Supreme Court of the United States unan- 
 iinouslv declared that "in asucession of dependent events an inter- 
 val raav alwaj's be seen by an acute mind between a (;au8e and an 
 effect, though it may be so imperceptible as to be overlooked by a 
 common mind. Thus, if a buildino; be set on fire by negligence, and 
 an adjoining building be destroyed without any negligence of the 
 occupants, no one will doubt that the destruction of the second was 
 due to the negligence that cansed the burning of the first; yet, in 
 truth, in a very legitimate sense, the immediate cause of the burning 
 of the second was the burning of the first. Such refinements are 
 too minute for rules of social conduct. In the nature of things there 
 is in every transaction a succession of events more or less depend- 
 ent upon those preceding it; and it is the province of a jury to 
 look at this succession of events and ascertain whether they are 
 naturally and probably connected with each other by a continuous 
 sequence, or are dissevered by new and independent agencies, and 
 this must be determined in view of the circumstances existing at 
 the time." Discussing the same general principle in another case, 
 that tribunal said: "In the sense of an efficient cause, causa 
 causans, this is no doubt strictly true ; but that is not the sense in 
 which the law uses the term in this connection. The question is, 
 was it causa sine (jua non^ a cause which, if it had not existed, the 
 injury would not have taken place, and this is a question of fact, 
 unless the causal connection is not proximate." ' In the case of 
 u£ina Ins. Co. v. Boon. 95 U. 8. 117, S-t L. ed. 395, the court 
 said: "The question is not. What cause was nearest in time or 
 place to the catastrophy % That is not the meaning of the maxim 
 causa proxima, non reinota spectaturr In the same case the 
 court quoted with approval the following statement of the law : 
 " That which is the actual cause of the loss, whether operating 
 directly or by putting intervening agencies, the operation of which 
 could not be reasonably avoided, in motion, by which the loss is 
 produced, is, the cause to which the loss must be attributed." * 
 In almost ever}' branch of the law may be found cases, ancient 
 
 ^Milicankee & St. P. 11 Co. v. Kellorjfj, 94 U. S. 469, 24 L. ed. 356. 
 UlayeHV. Michirjan Cent. E. Co. Ml U. S. 228, 28 L. ed. 410. 
 'Brady v. Northwestern Inn. Co. 11 Mich. 425. '
 
 BULK OF COJS'TKIBUTOKY NEGLIGENCE. 673 
 
 and modern, asserting the general doctrine outlined in these de- 
 cisions.' 
 
 An interesting case, inv^olving the question whether damages 
 can be recovered for ilhie.ss and suffering brought on by fright 
 -caused by the negligence of a railroad company, has recently been 
 decided by the Supreme Court of Minnesota.' 
 
 The plaintiff was a passenger on one of the cars of the St. Paul 
 Oity Railroad Company. When the car reached the intersection 
 of the street on which it was running with another street on which 
 the company had a cable line, the persons in charge of it negli- 
 gently crossed just as a cable train was rapidly approaching. A 
 collision seemed so imminent, and was so nearly caused, that the 
 incident and attendant confusion of ringing alarm bells and of 
 passengers rushing out of the car caused to the plaintiff sudden 
 fright and reasonal:>le fear of immediate death or great bodily in- 
 jury. The shock thus caused threw her into violent convulsions, 
 which were followed by very serious illness. The court held 
 that the only cause that could be suggested as intervening be- 
 tween the negligence of the railway company and the injury 
 to the plaintiff was her fright. If the fright was the natural 
 consequence of, was brought about or caused by the circum- 
 stances of peril and alarm in which the defendant's negligence 
 placed the plaintiff, and the fright caused the ner\'0us shock and 
 convulsions and consequent illness, the negligence was the proxi- 
 mate cause of these injuries. That a mental condition or opera- 
 tion on the part of the one injured comes between the negligence 
 and injury does not necessarily break the required sequence of in- 
 termediate causes. When the act or omission is nefrHo-ence as to 
 
 c5 a 
 
 Wmslaer v. Philadelphia Co. 31 Fed. Rep. 854; Lund v. Tyngsboro, 11 Cush. 
 563; Louisiana Mut. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44, 19 L. ed. 65; 
 Butler V. Wildman, 3 Barn. & Aid. 898; Bay-ton v. Home Ins. Co. 42 Mo. 
 156; Marcy v. Merchants Mut. Ins. Co. 19 La. Ann. 388; Ring v. Cohoes, 
 77 N. Y. 83; Ehrgott v. Neic York, 96 N. Y. 264. 
 
 ^Purcell V. St. Paul C. B. Co. (Minn.) 16 L. R. A. 203. See Bill v. Kim- 
 bell, 76 Tex. 210. 7 L. R. A. 618; Illinois Central B. Co. v. Latimer, 28 
 111. App. 552. aff'd in 128 111. 163; Olimr v. La Valle, 36 Wis. 596; Fitz- 
 Patrick v. Great Western B. Co. 12 U. C. Q. B. 645. But see contra, Vic- 
 toriajiB. Comrs. v. Coultas, L. R. 13 App. Cas. 222; Atchison, T. & S. F. 
 B. Co. V. McOinnis (Kan.) April 11, 1891; The Queen, 40 Fed. Rep, 694; 
 Canning v. Williamsto^cn, 1 Cush. 451; Wyman v. Learitt, 71 Me. 227; 
 Bockv. Dennis, 4 Mont. L. Rep. 356; Lehman v. Brooklyn C. B. Co. 47 
 Hun, 355. 
 
 43
 
 674 NEGLIGENCE, CONTKIBUTORV AS PROXIMATE: CAUSE. 
 
 any and all passengers, well or ill, any one injured by tlie negli- 
 gence must be entitled to recover to the full extent of the injury 
 60 caused, without regard to whether, owing to previous condition 
 of health, he or she is more or less liable to injury. The negli- 
 gence was the proximate cause of the injur^^ and plaintiff's cause 
 of action was sustained. 
 
 § 185. Rule of Contrihutory J\^egligence in Ad- 
 miralty Jurisdiction. 
 
 But though the negligence of the plaintiff has been such as to 
 have contributed, to some extent, as a proximate cause of the in- 
 jury, and would defeat the action of common law, yet if the case 
 is one of admii-alty jurisdiction, it will not wholly bar a partial 
 recovery, provided the fault, though evident, is neither willful, 
 nor gross, nor inexcusable, and where there are circumstances pre- 
 senting a strong case for relief. This rule of admiralty is appli- 
 cable to all cases of marine tort founded upon negligence and 
 prosecuted in admiralty as in harmony vdth the rule for the 
 division. The mere fact of the negligence of the libelant as partly 
 occasioning the injuries to him, when they have occurred partly 
 throuo-h the nes'lio-ence of the officers of the vessel within admir- 
 alty jurisdiction, does not bar him entirely from a recovery, 
 but whether the recovery should be for exactly one half of the 
 damages sustained, or may, in the discretion of the court, be for 
 a greater or less proportion of such damages, is still, perhaps to 
 some extent an open question. A longshoreman, employed to 
 load coal on board a steamship, and injured while being so em- 
 ployed by falling from the steamer's bridge to the deck, partly 
 through his own negligence and partly through the negligence of 
 the steamer's officer is entitled in a suit in admiralty against the 
 vessel for such injury, to a decree for some portion of the vessel.' 
 
 The rule recognizing in admiralty an equal division of the loss 
 has been applied in numerous cases.' Some of the cases show 
 
 ^The Max Morrin v. Curry, 137 U. S. 1, 34 L. ed. 586. See The Mariamm 
 
 Flora 24 U. S. 11 Wheat. 1, 54, G L. ed. 405. 417; The Palmyra, 25 U. 
 
 S. 13 Wheat. 1, 17, 6 L. ed. 531, 536. 
 ^nooem V T/ic St. C/iarlfs, 16 U. S. 19 How. 108, 15 L. ed.563; Chnmherlain 
 
 V Ward 02 U. S. 21 IIow. 518, 16 L. ed. 211; The Washington, 76 U. S. 
 
 'J Wall :a\\ 19 L. ed. 787; The Sapphire, 78 U. S. 11 Wall. 164, 20 L. ed.
 
 BULK UF CONTKIBUTOKY XEGLIGENCK. ^J75 
 
 tliat this rule has been extciKk-d to the division of damages in 
 claims other than those for damages to the vessels wliicli were in 
 fault in collision. ' 
 
 In the United States district court for the district of Massa- 
 chusetts, damage to goods carried by a vessel as freight was- 
 attributable partly to the fault of the carrier, and partly to the 
 fault of the shipper, and, it being impossible to ascertain for what 
 proportion each was responsil)lo, the loss was divided equally be- 
 tween them;" for this rule is, "a rustic sort of determination and 
 such as arbiters and amicable compromisers of disputes conunonly 
 follow, where they cannot discover tlie motives of the parties, or 
 when they see fault on both sides.'" 
 
 Prior to the recent ruling in The Max Movris v. Cumj, 137 
 U. S. 1, 34 L. ed. 580, decided ^"ov, 17, 1890, the application of 
 the admiralty rule of a division of loss had been sometimes denied 
 in cases of personal injury to which the libellant contributed.* 
 The rule was applied to tliis class of injuries in (jther courts. ' 
 
 127; The Ariadne, 80 U. S. 13 Wall. 475, 20 L. ed. 542; The Continental. 
 81 U. S. 14 Wall. 345. 30 L. ed. 801; Atke v. North Western U. Packet 
 Co. 88 U. S. 21 Wall. 389, 22 L. ed. 619; The Teutonia, 19 U. 8. 23 Wall. 
 77, 28 L. ed. 44; The Suuni/side, 91 U. 8. 208, 23 L. ed. 302; The Ameri 
 ra, 92 U. S. 432, 23 L. ed. 724; The Alabama, 92 U. S. 695, 23 L. ed. 763; 
 The Atlas, 93 U. 8. 302, 23 L. ed. 863; The Jnniata, 93 U. 8. 337. 23 I., 
 ed. 930; The Stephen Morgan, 94 U. 8. 599, 24 L. ed. 266; The Virginiif 
 Ehrman, 97 U. 8. 309, 24 L. ed. 890; The Oiti/ of Hartford, 97 U. 8. 323, 
 24 L. ed. 930; The CiviHta, 103 U. 8. 699, 26 L. ed. 599; The Connecticut, 
 103 U. 8. 710, 26 L. ed. 467; The North Star, 106 U. 8. 17, 27 L. ed. 91 ; 
 The Sterling, 106 U. 8. 647, 27 L. ed. 98; The Manitoba, 122 U. 8. 97, 30 
 L. ed. 1095. 
 
 'The Juniata, 93 U. 8. 337. 23 L. ed. 930; The Washington, 76 U. 8. 9 Wall. 
 513, 19 L. ed. 787; The Alabama, 92 U. 8. 695, 23 L. ed. 763. See also, 
 in the United States District and Circuit Courts, Mason v. TJie William 
 Murtaugh, 3 Fed. Rep. 404; The William Murtagh, 17 Fed. Rep. 260; 
 Williams v. The William Cox, 3 Fed. Rep. 645, affirmed by the Circuit 
 Court in 9 Fed. Rep. 672 ; Connolly v. Boss, 11 Fed. Rep. 342 : 
 The BoixUntoir n , 16 Fed. Rep. 270. Also in cases where the vessel 
 towed was held to be in fault for not being in proper condition, Phila- 
 delphia & R. R. Co. V. New England Transp. Co. 24 Fed. Rep. 505; and 
 where a boat was injured by striking the bottom of a slip in unloading 
 at the respondent'.s elevator, the boat herself being also in fault, Chns 
 tian V. Van Tassel, 12 Fed. Rep. 884; and where the vessel towed was 
 old and unseaworthy. The Syracuse, 18 Fed. Rep. 828; The ReOa, 22 
 Fed. Rep. 546. 
 
 ^Snow V. Carruth, 1 Sprague, 324. 
 
 •^Cleriac, Us. et Coutumes de la Mer, p. 68. 
 
 ■> Peterson v. The Chandos, 4 Fed. Rep. 649; Holmes v. Oregon tfc G. R. Co. 5 
 Fed. Rep. 523, 538; The Manhasset. 19 Fed. Rep. 430. 
 
 * The Explorer, 20 Fed. Rep. 135; The Wanderer, 20 Fed. Rep. 140; The 
 Truro, 31 Fed. Rep. 158; The Eddystone, 33 Fed. Rep. 925.
 
 676 NEGLIGENCE, CONTErBUTORY AS PROXIMATE CAUSE. 
 
 The rule of admiralty for apportioning damages in collision is 
 now extended to ordinary actions for personal injuries sustained 
 on board vessels by reason of the concurring negligence of the 
 party injured, and those for whose conduct the ship is responfii- 
 ble. • 
 
 'Ray, Neg. of Imposed Duties, Personal, p. 368; Tlie Max Morrvt, 28 Fed. 
 Rep. 881; The Explorer, 20 Fed. Rep. 135; The Wanderer, 20 Fed. Rep. 
 140. See also The Mabel Comeaux, 24 Fed. Rep. 490; The Daylesford, 30 
 Fed. Rep. 633. These cases have simply gone a little further than the 
 cases cited in The Chandos, 6 Sawy. 549, 550, and others of a similar 
 character. The cases, or at least the leading ones, are — Harden v. 
 Gordon, 3 Mason, 541; Tlie Atlantic, Abb. Adm. 451; The Ben Flint, 1 
 Abb. (U. S.) 126; Brown v. The D. S. Cage, 1 Woods. 401; The City of 
 Alexandria, 17 Fed. Rep. 390; The W. L. White, 25 Fed. Rep. 503; The 
 Lizzie Frank, 31 Fed. Rep. 477.
 
 CHAPTEK XXXIII. 
 
 EVIDENCE IN ACTIOX FOR DEATH BY NEGLIGENCE OF 
 
 ANOTHER. 
 
 § 186. Prfis:umpiion of Due Care by One Found Killed by Alleged 
 Negligence of Auollier. 
 
 a. PresunqMon of Care. 
 
 b. Application of Premimption token Admitted by Court. 
 
 c. Weight of Presumption in some Courts. 
 
 d. Overcoming sucJi a Presumption. 
 
 e. Presumption of Negligence in other Tribunals. 
 
 f. Where no Presumption is Allowed. 
 § 187. When, Burden is on Plaintiff. 
 
 .1. .Vefhod of Sustaining Burden, 
 h. Failure of Suit under this Pule. 
 
 c. Application of Rule. 
 
 d. How far a Jury may Draw Inferences of Due Care. 
 
 e. Special Circumstances whirli TMieve from Care, 
 i. Circumstances Showing Negligence. 
 
 § 186. FrcsuDipHoti of Due Care hy One Found 
 Kilied b(j Alleged J\''egUgence of Another. 
 
 a. Presumption of Care. 
 
 The connict as to the burden of ] roof of conti-ibutory negli- 
 gence assumes its most serious aspect ^\•hen the injured person 
 was killed outriglit and there wej-e no eye witnesses of the acci- 
 dent. As a rule under tliose circumstances the party who has the 
 burden of proof will lose his case. In addition to the placing of 
 the burden of proof, some courts exhibit a tendency to raise a 
 presumption of law either of care or of negligence, and now there 
 are three well marked divisions into which such cases fall : (1) 
 those in which it is held that tlie laAv raises a presumption of due 
 care; (2) those which hold that the law raises a presumption of 
 contributory negligence; (3) those which admit no presumption 
 
 677
 
 678 EVIDENCE IX ACTIOX FOR DEATH BY NEGLIGENCE OF ANOTHER. 
 
 wliatever. The su})divisioiis of tliese three main divisions are 
 almost as minierons avS the cases on the subject. The statements 
 of principles are almost infinite but tlie application of them to 
 facts makes the disposition of these eases quite uniform and for 
 the most part just. AYhere there are witnesses to the accident 
 there is no room for presumption either way.' 
 
 Where there is absolutely no evidence as to how the accident 
 occurred it is presumed tliat the deceased was in the exercise of 
 of due care." The presumption is indulged as one of law that 
 the person killed at a crossing did stop and look, aud listen, and will 
 prevail in the absence of direct testimony on the subject.' The 
 court will not assume that deceased came to his deatli through his 
 own contributory negligence.* 
 
 The plaintiff is not held obliged to repel any presumption 
 arising from the mere fact of a collision between a person rid- 
 ing across a railroad track and a train of cars, that lie did not look 
 or listen, or. if he did. rode heedlessly and purposely to his death. ^ 
 Where a person driving along a highway was killed by being 
 thrown from his wagon in consequence of becoming entangled 
 with a telephone wire which had become loose and sagged over 
 the street, the presumption is that he did his duty by endeavor- 
 ing to stop and loosen the wire as soon as he discovered that he 
 was caught by it." 
 
 Where one was killed while walking upon a public sidewalk by 
 a car running upon him, there is a presumption that he phiced 
 himself upon the walk without any want of ordinary care.' In 
 the absence of evidence of inattention or recklessness of the de- 
 ceased, who was killed by falling from a gutter on M'hich he was 
 at work, the presumption is that he was in the exercise of ordi- 
 nary care.* If the plaintiff's own case shows he brought the in- 
 
 h'^tate V. Maine Cent. R. (Jo. 1 New Eng. Rep. 386, 77 ]\Ie. 538; Mynning v. 
 
 Detroit, L. & IS'. U. Co. 12 West. Rep. 427, (57 Mich. 677. 
 ^Schum V. Peniifi/lr/iiiia R. Co. 107 Pa. 8. 
 ^Mynning v. Detroit, L. & K. R. Co. 7 West. Rep. o24. 64 Mich. 9^; Me 
 
 'Bride v. portlier u Pac. 11. Co. 10 Or. 64. 
 <Lchi(ih Valley R. Co. v. Hall, 61 Pa. 866. 
 
 ^Gii;ienheim v. Lake Shore & M. S. R. Co. 5) West. Rep. 903, 66 Mich. 150. 
 '■PfiniKylvania Telejth. Co. v. Vnrnan (Pa.) Oct. 1, 1888. 
 '■PhiuipH V. Milmiukee tfc N. It. Co. \) L. I{. A. ■121, 77 Wis. 349. 
 ''Fiilf/er V. Bolhe, 43 Mo. App. 55.
 
 PKEsLMfTION OF DUK CAKE BY ONE FOLM) KILLKD. 675:^ 
 
 jury on hirnsself by his own carelessness he may be nonsuited, but 
 if he does not, tlie case would be submitted to the jury, a certain 
 degree of presumption that a person of orch'nary intelligence will 
 not purposely expose himself to danger ' being indulged.' 
 
 b. A.p2)Ucation of Presaiupiion lohen Adni'itied Ijij CourU. 
 
 As applied in practice it seems that the only effect of this pre- 
 sumption is to send cases to the jury in wliich in other jurisdic- 
 tions there would be a nonsuit and in permitting the jury to find 
 for plaintiff unless contril)utory negligence appears, which is 
 merely placing the burden of proof on defendant. In many cases 
 decided where this presumption obtains it is little more than per- 
 mission to the jury to infer due care from other facts proved, 
 which is just wliat the jury is permitted to do in jurisdictions 
 where the presumption is denied.'' 
 
 So where a person was killed at a railroad crossing while at- 
 tempting to drive over in a wagon tlie presuinption in his favor 
 ■entirely disappeared in the disposition of the case, and the court 
 said there is a pn'snmptiou of negligence on neither side, but the 
 right of recovery is a (juestiou of fact for the jury.^ 
 
 Where there is nothing to show contributory negligence the 
 presumption is against it and the burden is on defendant. If it 
 conclusiveh' appears a nonsuit m^II be granted; if the evidence 
 merely tends to show such negligence the question will be for the 
 
 If the undoubted evidence clearly shows contributory negli- 
 gence the court should say there can be no recovery, but if the fact 
 relied on to establish negligence is doubtful the case must be sub- 
 mitted to the jury." lu courts where this rule of evidence prevails, 
 where one is found killed on a railroad crossing, in the absence 
 of evidence the presumption is that he exercised all the precau- 
 tions that due regard for his own safety and that of others required. 
 In such cases the circnmstances in evidence are sometimes suffi- 
 
 ^Cassidy v. Anf/ell, 12 R. I. 447, 34 Am. Hep. 690. 
 ^Sclinltz V. Moon, 33 Mo. App. 333. 
 '^Rickey v. Mismuri Pac. R. Co. 7 Mo. App. lo7. 
 ^Hoyt V. Hudson, 41 Wis. 105, 22 Am. Rep. 714. 
 ^Pennsylvania R. Co. v. Fortney, 90 Pa. 320.
 
 080 EVIDKACK IX ACTIOX FOR DEATH BY >;tGLIGENCE OF ANOTHER. 
 
 cient to wai-rant the inference of negligence, bnt such inferences 
 are always for the jiUT and not for the court.* 
 
 Where plaintiff has given evidence of negligence on the part of 
 defendant and no contributory negligence appears there is a case 
 for the jury. The presumption of law that deceased has done 
 all that a prudent man would do under the circumstances to pre- 
 serve his own life,' is that recognized in such courts. Although 
 from the uncontradicted evidence it might have been inferred that if 
 the traveler had stopped and looked and listened he would have seen 
 the approaching train, it was for the jury to determine the facts.* 
 
 In a Pennsylvania case, deceased lost his life by falling into an 
 unguarded excavation by tlie side of the highway. There was no 
 witness of the accident. The court, to the circumstances of the 
 ease as they appeared when he was found, added the natural in- 
 stinct which leads men in tlieir sober senses to avoid injury and 
 preserve life, and held that they could not say that the evidence 
 was insufficient to go the jury as proof of actual negligence on 
 the part of the defendant.* 
 
 In a Wisconsin case^ \sljere it appeared that a bo}' fell through 
 a bridffe and was drowjied. the court said that the circumstances 
 raised such a presumption of negligence against him that plaintiff 
 was bound by proper proof to negative the presumption and to 
 show that deceased was guilty of no Avant of care, before the 
 cause could have been submitted to the jury; but in a subsequent 
 case" the judge who wrote the opinion in the Achtenhagen case 
 said that he feared the court was wrong in saying, as matter of 
 law, that the fact that the boy fell through the hole raised an in- 
 ference of negligence which the plaintiff' was required to repel in 
 order to establish a cause of action. He further said that negli- 
 gence was not to be presumed but must be proved, or, at least^ 
 there must be some facts upon MJiich it could be based, and that 
 it BceuK'd to him that it was an inference of fact and not of law,. 
 and so one to be drawn by the jury and not by the court. 
 
 ^Lonacnecker V. Penntiylvimia R. Co. 105 Pa. iiiiS. 
 
 ''Wem v. Pennsylvania P. Co. 79 Pa. 390. 
 
 ^Penmi/hania P. Co. v. }yeber, 76 Pa. 157, 18 Am. Kep. 407. 
 
 *Anea V. Waiard, 57 Pa. 380. 
 
 ^Arhienhagen v. WaUrlown, 18 Wis. 331, 86 Am. Dec. 769. 
 
 *Par*tr>w V. Perlin, 34 Wis. 362.
 
 PBESUMrriON OF DUE CAKE BY OHK EOLND KILLED. 681 
 
 c. Weujht of Presii7ii/ptio7i in Some Covrts. 
 
 Although proof of due care is essential to plaintiff's case, it 
 may, in the absence of evidence to the contrary, in these jurisdic- 
 tions be supplied by presumption that persons of mature years in 
 the possession of their senses are ordinarily prudent and will exer- 
 cise ordinary dili^^ence to avoid danger,' 
 
 The love of life and instinct of preservation there stand for proof 
 of care until the contrary appears." Contril)utory negligence is 
 there matter of defense to be pleaded and proved in order to 
 escape liability/ Unless the jury are satislied by affirmative proof 
 that the deceased did not use ordinary care defendant is liable.* 
 
 d. Overcoming Such a Preaumpfion, 
 
 The presumption is not there overthrown by the fact of in- 
 jury but it is on defendant to rebut it.' There is a presumption 
 of due care which inferences from circumstances, in the absence 
 of direct proof, may overcome." Where there is no direct testi- 
 mony on the subject the presumption will prevail, but where 
 there is affirmative, direct, and credible testimony of contributory 
 negligence the presumption is rebutted and displaced.' 
 
 That the plaintiff has the onus of showing affirmatively that 
 the deceased was guilty of no negligence at the time of the injury, 
 is not then the rule; it is true that negligence on his part 
 would defeat the right of recovery, but to call Avitnesses to declare 
 the absence of such negligence before defendant is bound to 
 answer, is not required. But if negligence appears in plaintiff's 
 testimony the defendant may rest on it as securely as if proved 
 by himself.* 
 
 The absence of any fault upon the part of deceased may be in- 
 
 ^Lynian v. Boston & M. It. Co. (N. H.) 11 L. R. A. 364. 
 
 ^Cleveland tfc- P. R. Co. v. Rowan, 66 Pa. 399. 
 
 ^Schlereth v. Missouri Pac. R. Co. 96 Mo. 514 ; Huckshold v. St. Louis, I. if. 
 
 & S. R. Co. 7 West. Rep. 764, 90 Mo. 548. 
 *PhiladelpMa tfe T. R. Co. v. Hiigan, 47 Pa. 244. 
 ^'Flynn v. Kansas City, St. J. & C. B. R. Co. 78 ^Mo. 311. 
 *Buesching v. St. Louis Gas LiyJd Co. 73 Mo. 233, 39 Am. Rep. 503. 
 ''Reading tfc G. R. Co. v. Ritchie, 103 Pa. 433. 
 ^Cleveland & P. R. Co. v. Roican, 60 Pa. 399.
 
 682 EVIDENCE IX ACTIOX TOR DEATH Bl' >'EGLIGENCE OF ANOTHER- 
 
 ferred from the circumstances in connection with the ordinary 
 habits and conduct and motives of men. Tlie natural instinct of 
 self-preservation in the case of a sober and prudent man stands in 
 the place of positive evidence in such tribunals.* 
 
 e. PresiDnpt'um of JS'egllgence in Other Tribunals. 
 
 The fact that a person ti-aveUng- on a highway comes in collision 
 with a train on a railway crossiug i^ in other courts found to suggest 
 A presumption of contributory negligence against him. In a suit 
 for such injuries the facts and circumstances illustrating the con- 
 duct of the injured person ut the time of the accident must be 
 made to appear. If. from tliose, tlie interference can be drawn 
 that proper caution was exercised it may be said that the presump- 
 tion of contributory negligence has been affirmatively removed.'' 
 
 Wliere deceased fell into a culvert and was killed, and the evi- 
 dence showed that he kncM' of the culvert and its surroundings 
 and that a man using due care might easily have passed it in 
 safety, it was held there was nothing that would justify a re- 
 •covery." 
 
 It will be seen that these cases differ little in results reached 
 from those where there is no presumption and the burden is placed 
 on plaintiff to prove due care. 
 
 f. Where no Presumption is Allowed. 
 
 In case a person is found killed, the rules of law governing the 
 right of recovery are the same as in other cases, although slighter 
 evidence of compliance with the duty cast upon plaintiff may be 
 •deemed sufficient than where the injured person is alive and com- 
 petent to testify.'' Negligence cannot be ])resumed.^ Under this 
 rule there are two general subdivisions, 1st, where the burden is on 
 plaintiff; 2d, M'here it is on defendant. 
 
 ^T/ioinuH V. iJdamire, L. & W. II Co. 8 Fed. Rep. 729. 
 
 "Indiana, li. & W. R. Co. v. Oreeae, 3 We.«t. Hep. 883, 106 Ind. 279. 
 
 ^Toledo, W. & W. R. Co. v. Brannar/an, 75 Ind. 494. 
 
 *Rr,dnan v. New York, N. II. <& H. R. (Jo. 125 N. Y. 526. 
 
 ••Palme)- v.Neio York Vent, db U. It. R. (Jo. 112 N. Y. 245.
 
 WIIKN I5LKOEN IS ON PLAFNl IKK. 68»{ 
 
 § 184. Mlieii Burden is on Plaintiff. 
 
 a. Method of Sustaining Burden. 
 
 Denio, ./., has said: " It is not a rule of imiversal application 
 that the plaintill" must prove attirmatively that his own <;onduct 
 on the occasion of the injury was cautious and prudent. The 
 judge is to determine whether a case is fit for the deliheration of 
 the jury, not by the apidication of any artificial rule respectinu 
 the onus prohancli, but by considering the facts and circumstances 
 in evidence in connection with the ordinary habits, conduct, and 
 motives of men. The jury must eventually be satisfied that plain- 
 tiff did not by any negligence of his own contribute to the in- 
 jury. The evidenc^e to establish this may consist in that offered 
 to show the nature or cause of the accident or in any otiier com- 
 petent proof. To carr}^ the case to the jury the evidence on the 
 part of plaintiff must be such as, if believed, wc^ild authorize 
 them to find that the injury was occasioned solely by the negli- 
 gence of defendant. It is not absolutely essential tliat plaintiff 
 should give any affirmative proof touching his own conduct on 
 the occasion of the accident. The character of defendant's delin- 
 quency may be such as to prove prima facie the whole issue or 
 the case may be such as to make it necessary for the plaintiff to 
 show by independent evidence that he did not bring the misfor- 
 tune upon himself." ' 
 
 In the ISew York Court of Appeals," Finch, -/., said: "The 
 burden of establishing affirmatively freedom from contributory 
 negligence may be successfully borne though there was no eye- 
 witnesses at the accident, and even although its precise cause and 
 manner of occurrence are unknown. If, in such case the sur- 
 rounding facts and circumstances reasonably indicate or tend to 
 establish that the accident might have occurred without negli- 
 gence of the deceased, that inference becomes possible in addition 
 to that which involves a careless or willful disregard of personal 
 safety, and so a question of fact may arise to be solved by a jury 
 iind require a choice between possible but divergent inferences. 
 
 ^Johnson v. Hudson Eiver It. Co. 20 N. Y. 65, 75 Am. Dec. 375. 
 *Ti>lman v. Syracuse, B. <& JY. Y. li. Co. 98 N. Y. 203, 50 Am. Rep. 649.
 
 684 EVIDENCE IX ACTION FOR DKATH BY NEGLIGENCE OF ANOTHER. 
 
 If, on the otber hand, those facts and ch'cumstances, coupled with 
 the occurrence of the accident, do not indicate or tend to estab- 
 lish the existence of some cause or occasion of the latter which is 
 consistent with the exercise of proper prudence and care, then 
 the inference of negligence is the only one left to be drawn and 
 nonsuit becomes inevitable." 
 
 Although there are manv expressions in the New Yoi'k de- 
 cisions whicli do not fully accord with what is said above, those 
 two cases state with a fair degree of accuracy, the rules which 
 have governed the disposition of the cases. Many claims have 
 been made that the Johnson case has been overruled. It has 
 never been done directly, and although the right of the court 
 to consider the habits, conduct, and motives of men does not 
 appear in the later cases that statement seems not far different 
 from the one in the Tolman case which permits the case to go to 
 the jury if the surrounding circumstances reasonabh' indicate that 
 the accident might have occurred without negligence of the 
 deceased. 
 
 The editor of the Albany Law Journal after a careful examina- 
 tion of all the cases decided at that time [Yol. 20, p. 360], states 
 his understanding of the New York rule as follows: "If on the 
 })laintifl;'s atHrniative evidence it clearly appears that he himself 
 was materially negligent he may be nonsuited; otherwise the de- 
 fendant, if negligence on his part has been shown, must give 
 proofs. If on the wliole case, it clearly does not appear that the^ 
 plaintiff was free from negligence he may be nonsuited; but if 
 the evidence is contiicting the case must go to the jury." 
 
 Direct evidences to disprove negligence is not required in the 
 first instance.* E\idence of due care may be given by showing^ 
 circumstances from vvhii-h the inference is fairly to be drawn that 
 such fact existed." The burden may be sustained by direct testi- 
 mony or by presumptions arising from facts and circumstances 
 already proved hi the case." The burden is on plaintiff of show- 
 ing that the injui-y occurred without fault on the part of the per- 
 son injured or of giving evidence from which the jury may infer 
 
 ^Biittou. V. Ihuhon Elver R. Co. 18 N. Y. 248. 
 '■'//«?•/ V. Jludmn River Bridf/e Co. 80 N. Y. 622. 
 
 'Donnlihou v. Afismsippi tfc- M. li Go. 1« Iowa, 289, 87 Am. Dec. 391; 
 (jreenteaf V. lllinais Cent. R. Co. 2J» Iowa, 47, 4 Am. Rep. 181.
 
 WUKN IJLUDKX IS UN I'l.AINTIKl''. 6>>5 
 
 that lie M'as without fault aud tliat liis act did not contrihute to 
 the casualty,' In such cases the fact of due oare inav, and in 
 most instances can, only be established by reasonable inference 
 from the attending circumstances proved in the case, which infer- 
 ences are to be drawn by the jury," 
 
 In Mayo v. Boston db 3f. R. Co. 104 Mass. 140. in which the 
 injured person was not killed, the court said that the burden of 
 showing due care need not necessarily be borne by affirmative 
 testimony. If the evidence to show defendant's negligence ex- 
 cluded fault on the part of plaintiff the proposition of due care 
 was established. 
 
 b. Failure of Suit unrfer this Rale. 
 
 In the absence of evidence of due care the action carmot be 
 maintained,* In the absence of proof of due care a nonsuit should 
 be granted." There can be no recovery where the circumstances 
 of the accident are not sufficiently disclosed to warrant any infer- 
 ence upon the question of care or negligence,'* An action cannot 
 be maintained for the death of a brakeman by falling from a 
 moving ti'ain, if the evidence wholly fails to show how he fell and 
 what he was doing at the time.° When a person has been killed 
 at a railroad crossing and there are no witnesses of the accident, 
 the circumstances must be such as to show that the deceased exer- 
 cised proper care for his own safety. When the circumstances 
 point just as much to the negligence of the deceased as to its 
 absence, or point in neither direction, the plaintiii should be non- 
 suited; the presumption that every person will take care of him- 
 self from regard to his own life and safety cannot take the place 
 of proof.^ 
 
 When plaintiff offers no evidence that he was in the exercise of 
 
 ^Eodrian v. iVcfi/J Toi-k, N. H. & H. R. Co. 135 N. Y. 539. 
 
 ^Mulligan v. New York Cent. <fc H. E. R Co. 33 N. Y. S. R. 534. 
 
 ^Barstoto v. Old Colony R. Co. 3 New Eng. Rep. 746, 143 Mass. 535; Wake- 
 
 Un V. London & S. W. R. Co. L. R. 13 App. Cas. 41. 
 *Becht V. Corbin, 92 N. Y. 658. 
 ''Crafts V. Boston, 109 Mass. 519. 
 ^Corcoran v. Boston & A. R. Co. 133 Mass. 507; Rile'i v. Connecticut River 
 
 R. Co. 135 Mass. 393. 
 iCordell v. Xew York Cent, ct- U. R. R. Go. 75 N. Y. 333.
 
 686 EYIDKJSCK IX ACTION FOE DEATH BY XEGMGEKCE OK ANOTHER. 
 
 care, but on the contrary tlie wliole evidence on ■whicli the case 
 rests shows that lie was carelt^ss, the conrt may rightfully instruct 
 the jury as a matter of law that the action cannot be maintained.' 
 The case will not be taken from the jury if the facts proved fall 
 short of refjuiring as the sole inference from them that a want of 
 ordinary care on the part of the intestate contributed to the 
 injury." 
 
 c. AjqiVications of the Rule. 
 
 Where a person attempting to deliver coal at a court-house was 
 killed by the iron grating covering the area falling upon him, and 
 there was nothing to show how he happened to be so situated as 
 to be caught l)y it, the jury were permitted to draw the inference 
 that the proper discharge of his duties called him there.* 
 
 ^Vliere a woman was killed at a crossing while riding wdth her 
 husband who was guilty of negligence, and the evidence did not 
 disclose what her actions were previous to and at the time of the 
 injury, the jury w^ere left to infer her probable course of action 
 and whether or not it was negligent/ 
 
 Where a laborer on a railroad was ene-ao-ed in cleaning snow 
 . from a street crossing and an engine backed down upon and killed 
 him, the court ruled that it was for the jury to determine what 
 inferences should be di-awn from the facts and circumstances dis- 
 closed by the evidence/ 
 
 Where a night watchman was found dead at the bottom of an 
 area, tlie court said that plaintiff had furnished the jury with 
 nothing from which they could infer the freedom of the intestate 
 f)-(»in fault. They were simply furnished with food for specula- 
 tion and that M-ould not do for the basis of a verdict.' 
 
 Where a person g<niig to a railroad station was killed by a car 
 niiming in on a switch, and the circumstances under which he was 
 struck were not developed, and there was nothing in i\\e evidence 
 
 'Gnhnfian v. BoHion <& L. Ji. Co. 1 Allen, 187, 79 Am. Dec. 724. 
 
 Wolmer v. NeiD York Vent, tfc H. M. H. Co. 113 N. Y. 245. 
 
 '>a,i(rin V. A'ew York; 112 N. Y. 223. 
 
 Uloay V. Snn York Cnif. d- U. It. R. Co. Ill N. Y. 202. 
 
 ^ Willi V. Ihhiwnre, L. & W. It. Co. T)A Hiiii, 454. 
 
 ^ll.Kil V. SniiUi, li:5 N. Y. 385.
 
 WHEN BUKDEN IS ON PLAINTIFF. 687 
 
 which tended to show due care or tlie want of it on his part, the 
 court said that it was impossible to infer from tlic evidence offered 
 that he exercised tlie care and circumspection properly to be 
 demanded from one in his situation and that the action could not 
 be maintained.* 
 
 d. Hoic far Jury may Draw Inference of Due Ca/re. 
 
 The Maine Supreme Court said that the fact of a natural instinct 
 of men to preserve themselves from injury was not evidence and 
 was no more than an accompaniment or appurtenance of evidence. 
 It may have some influence on the interpretation of facts affirma- 
 tively proved. It pertains to those natural laws in connection 
 with which all evidence may be M^eighed. Taken singly, it does 
 not constitute proof or shift the burden. It may give character 
 or force to facts already proved. It is a mode of reasoning upon 
 the evidence.* 
 
 In weighing the circumstances it may be assumed that all crea- 
 tures are desirous of preserving their lives and keeping their 
 bodies from harm.' In connection with the facts and circum- 
 stances of the case it is competent for the jury to infer the absence 
 of fault on the part of the deceased from the general and well 
 known disposition of men to take care of themselves and to keep 
 out of the way of difficulty and danger.* 
 
 The inference of care is only warranted when circumstances are 
 shown which fairly indicate care or exclude the idea of negli- 
 gence.* The jury cannot be permitted to assume that the deceased 
 had not omitted the precautions which a prudent man would take 
 in the presence of known danger." 
 
 While want of contributory negligence may be established by 
 inference drawn from the circumstances, such an inference may 
 not be drawn simply from a presumption that a person exposed to 
 
 ^Einclcley v. Gape Cod R. Co. 120 Mass. 263. 
 
 ^Chase v. Maine Cent. R. Co. 77 Me. 63, 52 Am. Rep. 746. 
 
 ^Morrison v. New York Cent. <fc H. R. R. Co. 63 N. Y. 643. 
 
 *Nort1iern Cent. R. Co. v. Stat^, 29 Md. 420, 96 Am. Dec. 545, 31 Md. 357» 
 
 100 Am. Dec. 70. 
 ^Binckley v. Cape Cod R. Co. 120 Mass. 262. 
 *Riordan v. Ocean 8S. Co. 124 N. Y. 655.
 
 688 EYIDENCK IN AOTlUX FOK DEATH BY NEGLIGENCE OF ANOTHEK. 
 
 darii^er will exercise care and prudence in regard to his own safe- 
 ty.* Where a person was seen going toward a railroad track, and 
 shortly afterward his body was found in a cattle-guard after hav- 
 ing been struck by a train, the court said that there was nothing 
 to show absence of negligence on his part. Doubtless the jury 
 might infer that the deceased was governed by the natural instinct 
 of self-preservation and would not put himself recklessly and con- 
 sciously in peril of death; but that no presumption exists in the 
 absence of proof that he was exercising due care at the time.* 
 
 e. Special CirGumstances which Relieve from Care. 
 
 It seems that the evidence of due care may be less strong in 
 cases where the defendant has by his conduct justified the dece- 
 dent in taking the course which resulted in his death.* It is not 
 necessary to show that a passenger was free from negligence.* 
 
 Evidence of due care on the part of a passenger may be less 
 strong wlien the injury is caused by the carrier than though there 
 was no relation between them.* Where a person in attempting to 
 cross a railroad track after dark was struck and killed by a train 
 running down grade without steam and with no lights or signals as 
 it approached the crossing, defendant insisted that since there was 
 no mtness to testify that deceased looked or listened when he 
 approached the crossing it must be assumed that he did not, and 
 that such omission was negligence on his part; but the court ruled 
 that it was only where it appeared from the evidence that he 
 might have seen had he looked, or might have heard had he lis- 
 tened, that the jury was authorized to find that he did not look 
 and did not listen.* 
 
 f. Circumstances Showing Negligence. 
 
 Tlie very happening of the accident may negative the existence 
 
 ' Wiwirowski v. Lake Shore & M. S. B. Co. 124 N. Y. 430. 
 Uteynolds v. New York Cent. & II R. R. Co. 58 N. Y. 253. 
 ^Newell V, Ryan, 40 Hun, 280; Palmer v. Heto York Cent. & H. R. B. Co. 
 
 112N. Y. 245. 
 *McKimhle v. Boston & M. R. Co. 139 Mass. 543. 
 
 •'rorsons V. Mro York Cent, db If. R. R. Co. 3 L. R. A. 683, 113 N. Y. 363. 
 *lSin€dis V. Brooklyn & R. B. B. Co. 88 N. Y. 1«J.
 
 "WHEN BURDEN IS ON PLAINTIFF. 689 
 
 of due care.' "When the only theory upon which the deceased 
 could have been on the track was that either he did not see the 
 train, or did not stop when he should have done so, either of 
 which would have been negligence, a nonsuit should have been 
 granted.' It will be presumed that deceased did not look, if by 
 looking he could Jiave seen the approach of the train and escaped.' 
 "Where the only reasonable way of accounting for the collision is, 
 that deceased did not look or listen for the approaching train, it 
 will be presumed that he did not do so and he cannot recover." 
 
 "Where the rule is that the burden is on plaintiff to make a case 
 which will leave him blameless, he need not in all cases prove 
 affirmatively that he exercised ordinary care and diligence. In 
 the absence of any direct proof tlie jury are at liberty to infer 
 ordinary care from all the circumstances of the case. To hold 
 otherwise would be to presume negligence on the part of one in 
 excuse of negligence on the part of another. If the plaintiff 
 makes a case which does not charge him with negligence, it was 
 said in a California decision, the case must go to the jury.* Later 
 California cases have placed the burden of showing contributory 
 ne£clio;ence on defendant.* 
 
 ^Riceman v. Havemeyer, 84 N. Y. 647. 
 
 * Connelly v. New York Cent. & H. B. R. Go. 88 N. Y. 346. 
 
 *Wilcox V. Uome, W. & 0. R. Co. 39 N. Y. 358, 100 Am. Dec. 440; Havens 
 V. Erie R. Co. 41 N. Y. 296 ; Nicholson v. Erie R. Co. 41 N. Y. 525- Hariy v 
 Central R. Co. of N. /. 42 N. Y. 468; Madden v. New York Cent. & H. R 
 R. Co. 47 N". Y. 665; Mitchell v. New York Cent. R. Co. 64 N. Y. 655. 
 
 *Brown v, Milwaukee & St. P. R. Go. 23 Minn. 165; State v. Maine Gent R 
 Co. 76 Me. 337, 49 Am. Rep. 622. 
 
 *Gay V. Winter, 34 Cal. 164. 
 
 *McQuilken v. Central Pac. R. Co. 50 Cal. 7; MacDougall v. Central R Go 
 63 Ual. 434. 
 
 44
 
 CHAPTEK XXXIY. 
 
 EVIDENCE IN ACTION FOE INJURY BY CARRIER. 
 
 § 188. Presumjjtion of Carrier's Negligence from Injury. ' 
 
 a. Injuries Arising from 3Iovemeni of Carriage. 
 
 b. Collision icitli Objects on Side of Carriage. 
 
 c. JS:q)Iosion. 
 
 d. Fcdling Objects. 
 
 e. At Stations — Embarking and Aligliting. 
 
 § 188. PresunipUojt of Carrier's JVegUgence from 
 
 Injury. 
 
 The same rules of evidence prevail v,'liere the injury causes 
 death, that would if the action was brought by the deceased him- 
 self, and the negligence of the carrier must be established as fully 
 in the one case as in the other/ The rule which seems to be 
 supported by the weight of authority, is that the happening of 
 an accident to a passenger during the course of transportation, 
 raises a presumption that the carrier has been negligent, and 
 the burden of rebutting this presumption rests upon the carrier.'' 
 
 ^State V. Grand Trunk R. Co. 58 Me. 176; Hendricks v. Western & A. R. Go. 
 52 Ga. 467; LouixuUe & N. R. Co. v. Conner, 2 Baxt. 382; Baltimore & 
 R Co. V. WMtHiigton, 80 Gratt. 805; Safford v. Drexc, 3 Duer, 627; 
 Woodicard v. Chicago & N. W. R. Co 23 Wis. 400; State v. Consolidated 
 European & N. A. R Co. 67 Me. 479; Com. v. Eastern R. Co. 5 Gray, 
 473; Terry v. Jewett, 17 Hun, 395; Creed v. Pennsylvania R. Co. 86 Pa. 
 139.' 
 
 ^Qleeson v. Virginia M. R. Co. 140 U. S. 435, 35 L, ed. 458; Georgia Pac. R. 
 Co. V, Lore, 91 Ala. 4-52; Wynn v. Central Park, JV^. cfe E. R. Co. 38 N. 
 Y. S. R. 181; New Orleans, J. & G. N. R. Co. v.Allbritton, 38 Miss. 242; 
 Galena & C. U. R. Co. v. Yarwood, 17 111. 509; Hegeman v. Western R. 
 Corp. 16 Barb. 353, affirmed 13 N. Y. 9; Paducah & M. R. Co. v. HoeM, 
 12 IJusb, 43; Iron R. Co. v, Mowery, 36 Ohio St. 418, 38 Am. Rep. 597; 
 Stivens V. European & N. A. R. Co. 66 Me. 74; Tennery v. Pippinger, 1 
 Phila. 543; PiUsburg & C. R. Co. v. Pillow, 76 Pa. 510; Baltimore <fc 0. 
 R. Co. V. Wiqhtman. 2!) Gratt. 431; McLean v. Burbank, U Minn. 277; 
 Ware v. Gay, 11 Pick. 106; Wall v. Livezay, 6 Colo. 465. 
 
 690
 
 PKESUMPTION OF CAKRIEli's NEGLIUENUE FKOM IXJLKV. 601 
 
 And the authorities hold in 2: that the mere fact of an accident to 
 a passenger, does not in itself create a prima facie case of negli- 
 gence,* unite with the authorities denying this position, in recog- 
 nizing the rule, that if the accident be caused by a defect in the 
 roadbed or operative machinery, or in the carriages, or by collision, 
 or wreck, a presumption of negligence on the part of the carrier, 
 will arise.'' 
 
 The rule is that the mere fact of an injury occurring by the act 
 of another, does not presume negligence on the part of either, 
 unless a special obligation of care rests upon the one charged with 
 the injury, toward the sufferer. ' 
 
 But, where a thing happens which would not ordinarily have 
 occurred if due care had been used, the fact of such happening 
 raises a presumption of negligence in someone. For instance, if 
 the wall of a building falls down, and injures a person w^alking 
 along the street or standing beside the building, the clear pre- 
 sumption is that the building was either negligently built, or that 
 it M'as not kept in a reasonably safe condition after it was erected, 
 since buildings properly constructed do not ordinarily fall of their 
 own weight. 
 
 The fall of a roof, Avhicli slipped or tipped to one side and fell 
 while being raised by jack screws, creates a presumption of neg- 
 
 ^Georgia B. & Bhg. Co. v. Anderson, 33 Ga. 110; Mitclidl v. Western & A. B. 
 Co. 30 Ga. 22; Deyo v. JSew York Cent. B. Co. 34 N. Y. 9; Holbrook v. 
 Vtica & S. B. Co. 12 N. Y. 236; lUinois Cent. B. Co. v. Cragm, 71 111. 
 177; 2 Rice, Ev. 1098. 
 
 'Louisville, i\r. A. & C. B. Co. v. Faylor, 126 Ind. 126; Dimmitt v. Hannibal 
 & St. J. B. Co. 40 Mo. App. 654; Curtis v. Boehester & S. B. Co. 18 N. 
 Y. 534; Daicson v. Manchester, S. & L. B Co. 7 Hurlst. & N. 1037; Nor- 
 ton V. St. Louis & H. B. Co. 40 Mo. App. 642; Montgomery & E. B. Co. v. 
 Mallette, 92 Ala. 209; Skinner v. London, B. & 8. C. B. Co. 5 Exch. 787; 
 Southern Kansas B. Co. v. WalsJi, 45 Kan. 653; Feital v. Middlese.c B. Co. 
 109 Mass. 398; Orote v, Chester & il. B. Co. 2 Exch. 251; Mitchell v. 
 Southern Pac. B. Co. 11 L. R. A. 130, 87 Cal. 62; F'lrish v. Beigle, 11 
 Gratt. 697; Cavpue v. London & B. B. Co. 5 Q. B. 747; Chicago City B. 
 Co. V. Engel, 35 111. App. 490; Magoffin v. Missouri Pac. B. Co. 102 Mo. 
 540; Ware v. Gay, 11 Pick. 106; Louisville, N. A. & C. B. Co. y. Hen- 
 dricks, 128 Ind. 462; Murphy v. St. Louis, I. M. & 8. B. Co. 43 Mo. App. 
 342. 
 
 *Turnier v. Leathers, 36 N. Y. S. R. 821; Allen v. Willard, 57 Pa. 374; Brown 
 V. Congress & B. St. B. Co. 49 Mich. 153; Bichmond cC- H. B. Co. y.Yeo 
 mans, 86 Va. 860; Jacksonville, T. & K. W. B. Co. v. Peninsular Land 
 Tiansp. & Mfg Co. 27 Fla. 1; Allen v. Union Pac. B. Co. (Utah), April 2, 
 1891; De Soucey v. Manhattan B. Co. 39 N. Y. S. R. 79; Bahr v. Lom- 
 bard, 53 N. J. L. 233; Brinckhard v. Western U. Tcleg. Co. 35 N. Y. S. R. 
 589.
 
 692 EVIDENCE IN ACTION FOK INJURY BY CARRIER. 
 
 Hgence in failing to brace or stay it sufficiently, and in the absence ' 
 of explanatory proof will sustain a recovery for the resulting 
 death of an employe against the onewhose duty it was to see that 
 the roof was properly braced.* 
 
 The general rule in the law of carriers is that the passenger is 
 only required to establish the fact of the carrier's negligence and 
 resulting injury, without establishing his own freedom from neg- 
 ligence, unless the proof introduced by him, indicates that such 
 want of care contributed to the accident/ 
 
 In some of the cases, where suit is brought, it is required 
 that the plaintiff should show, in addition to negligence of the 
 defendant, that he himself was free from any want of care, con- 
 tributing to his injury.' Especially is this true where the injury 
 is in attempting to cross the line of a railroad." But this re- 
 quirement does not extend to actions by a passenger against the 
 carrier for unsafe management or appliances. * * 
 
 ^BarnoiDskiv. Helson (Mich.) 15 L. R. A. 33. 
 
 ^Gill V. Eomrighavsen, 79 Wis. 634; Georgia Pac. R. Co. v. Barn's, 92 Ala. 
 300; Leggett v. Western Neic York & P. R. Co. 143 Pa. 39; Griffith v. Bal- 
 iimore dc 0. R. Co. 44 Fed. Rep. 574; Inland & 8. Coasting Co. v. Tolson, 
 l:i9 U. S. 551, 35 L. ed. 270; Mackey v. Baltimore & P. R. Co. (D. C.) 18 
 Wash. L. Rep. 767; Central R. Co. v. Smith, 74 Md. 212; Comer v. Con- 
 solidated Coal & Min. Co. 34 W. Va. 533; Grant v. Baker, 12 Or. 329; 
 Hobson V. New Mexico & A. R. Co. (Ariz.) Aug. 1, 1886; Paterson v. Cen- 
 tral R. & Bkg. Co. 85 Ga. 653; Northern Pac. R. Co. v. Hess, 2 Wash. 383; 
 North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247; Hough v. 
 Te.xas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Bradwell v. Pittsburg 
 & W. E. R. Co. 139 Pa. 404; Randall v. North Western Teleg. Co. 54 Wis. 
 147; Crouch v. Charleston & S. R. Co. 21 S. C. 495; Fowler v. Baltimore 
 & 0. R. Co. 18 W. Va. 579; Dallas & W. R. Co. v. Spicker, 61 Tex. 427; 
 S'lnderi'on v. Frazier, 8 Colo. 79; MacDougall v. Central R. Go. 63 Cal. 
 431; Baltimore & 0. R. Co. Y.Whitacre, 35 Ohio St. 627; Thompson v. 
 Central R. & Bkg. Co. 54 Ga. 509; Walker v.Westfield, 39 Vt. 246; St. 
 Louis &S. F. R. Co. v. Weaver, 35 Kan. 412; Houston & T. G. R. Co. v. 
 Corner, 57 Tex. 293; Delaware, L. & W. R. Co. v. Toffey, 38 N. J. L. 
 627; Louisnille, C. & L. R. Co. v. Goetz, 79 Ky. 442; Smith v. Eastern R. 
 Co. 35 N. H. 366; Hocum v. Weitherick, 22 Minn. 152; Durrell v. John- 
 alon, 31 Neb. 796; Prince George County Comrs. v. Burgess, 61 Md. 29; 
 Murray v. Missouri Pac. R. Co. 101 Mo. 236; Pennsylvania R. Co. v. 
 Raiordon, 119 Pa. 577; Laing v. Colder, 8 Pa. 479, 
 
 ^Button V, Frink, 51 Conn. 342; Owens v. Richmond & D. R. Co. 88 N. C. 
 502; Tolman v. Syracuse, B. & N. T. R. Co. 98 N. Y. 198; Mississippi 
 Cent. R. Co. V. Mason, 51 Miss. 234; Missouri Furnace Co. v. Abend, 107 
 . III. 44; Guggenheim v. Ijuke Shore & M. S. R. Co. 66 Mich. 150; Bonce v. 
 Dubuque St. R. Co. 53 Iowa, 278; Stock v. Wood, 136 Mass. 353; CJiase v. 
 Maine Cent. R. Co. 77 Me. 62; Moore v. Shreveport, 3 La. Ann. 645. 
 
 *Rodrian v. New York, N. //.'rf- //. R. Co. 125 N. Y. 526; Mulligan v. New 
 York Cent. & H. R. R. Co. 33 N. Y. S. R. 534. 
 
 *Thomas v. Philadelphia & R. R. C'(?. (Pa.) 15 L. R. A. 410.
 
 PRESUMPTION OF CARRIER'S NEGLIGENCE FROM INJURY. ii^O 
 
 In a case of injury to a street car passenger by being thrown 
 from the car by the negligence of the driver, the court said that 
 this presumption, that where the plaintiff has shown that he was a 
 passenger, and was hurt or damaged by the running of the rail- 
 road company's trains or machinery, the company was negligent, 
 is a common law presumption, and has been the law of England 
 and of this country all the time. This proposition, with no limi- 
 tation as to the manner in which the injury is received, is too broad.' 
 
 But by statute in some of the states, where one is injured by 
 the running of the ears and the engines of a railroad company, the 
 law presumes that such injury was the result of the negligence of 
 the railroad company ; and it need not appear whether the plaintiff, 
 who was injured by the train running off the track, was a passen- 
 ger or not.^ 
 
 a. Injuries Arising froQn Movement of Carriage. 
 
 Where an injury to a passenger is caused by apparatus wholly 
 under the control of the carrier and furnished and applied by it, 
 a presumption of negligence on its part is raised.^ 
 
 Where a passenger is injured by an accident to a train the pre- 
 sumption of negligence arises only as to those acts or omissions 
 which might have caused the accident.* The presumption of the 
 carrier's negligence arising from an injury to a passenger from an 
 accident to the train does not arise where the accident is shown to 
 have been caused by the act ©f God.^ ISTor where the cause of 
 the accident by which a passenger was injured is known as well 
 to the passenger as to the carrier." Proof of injury to a passenger 
 
 ^Avgusia & S. R. Co. v. Randall, 79 Ga. 304. 
 
 ^Central R. Co. v. Sanders, 73 Ga. 513. 
 
 ^Miller v. Ocean S8. Co. 118 N. Y. 199. The injury in this case was caused 
 by a toggle, which held the ship's hawser, giving way. See Qreat West- 
 ern R. Co. V. Braid, 1 Moore, P. C. N. S. 101; Skinner v. London, B. & 
 S. C. R. Co. 5 Exch. 787; Zemp v. Wilmington & M. R. Co. 9 Rich. L. 
 84, 64 Am. Dec. 763; Baltimore & 0. R. Co. v. Wightman, 29 Gratt. 431, 
 26 Am. Rep. 384; Baltimore & 0. R. Co. v. Mell, 32 Gratt. 394. 
 
 *PersM7igv. Chicago, B. & Q. R. Co. 71 Iowa, 561. 
 
 ^Oleeson v. Virginia M. R. Co. 5 Cent. Rep. 440, 5 Mackey, 356. 
 
 ^Fearn v. West Jersey Ferry Co. 13 L. R. A. 366, 143 Pa. 123. la this case 
 it was held that negligence would not be presumed from the mere exist- 
 ence of snow, during the storm causing it, on the deck of a ferry-boat.
 
 tJyJ: EVIDENCE IN ACTIOISr FOIi INJUKV BY CAKlUEii, 
 
 bj the overturning of a stage-coacli makes a prima facie case of 
 negligence against tlie carrier/ So, too, the breaking of the axle.'' 
 And the coming oft' of a wheeL' Where a passenger in defend- 
 ant's stage-coach was drowned by the coach being precipitated 
 into the water, because of the uncoupling of the fore wheels while 
 it was being driven onto a ferryboat, the negligence of the defend- 
 ant is j^resumed/ JSTegligence of the carrier is presumed from an 
 injury to a passenger b}' the breaking of the paddle-wheel of a 
 steamboat.' Or by the falling of a gangway." Or by the col- 
 lision of a vessel in which he is being carried with another. ' 
 So, too, where injury results from the breaking of the running 
 gear of a railway car. * Or from defective tracks. " Or a trestle." 
 Or a bridge.'* Or an embankment." Or from derailment of a 
 
 ^Stokes V. SaltonMall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; Wall v. Liveeay, 6 
 • Colo. 465; Boyce v. California Stage Co. 25 Cal . 460; Larcrenee v. Green, 
 70 Cal. 417, 59 Am. Rep. 428; Anderson v. Scholey, 14 West. Rep. 517, 
 114 Ind. 553; Stockton v. Frey, 4 Gill, 406, 45 Am. Dec. 138; Farish v. 
 Beigle, 11 Gratt. 697, 62 Am. Dec. 666; McKinney v. Neil, 1 McLean, 
 540. 
 
 ■Christie v. Griggs, 2 Campb. 79. 
 
 3 Fare V. Gay, 11 Pick. 106. 
 
 ^McLean v. Burbank, 11 Minn. 277. 
 
 » Yerkes v. Keokuk N. L. Packet Co. 7 Mo. App. 265. 
 
 ^Eagle Packet Co. v. Defries, 94 111. 598, 34 Am. Rep. 245. 
 
 ''Sherlock v. Ailing, 44 Ind. 184. 
 
 ^Dawson v. Manchester, 8. & L. E. Co. 7 Hurlst. & N. 1037; Hegeman v. 
 Western R. Corp. 16 Barb. 353. 13 IST. Y. 9, 64 Am. Dec. 517; Edgertonv. 
 New York & H. R. Co. 35 Barb. 193, 389, 39 N. Y. 227; Toledo, W. <& 
 W. R. Co. V. Begqs, 85 111. 80, 28 Am. Rep. 613; Wilson v. Northern Pac. 
 R. Co. 26 Minn. 278, 37 Am. Rep. 410; Meier v. Pennsylvania R. Co. 64 
 Pa. 230, 3 Am. Rep. 581; Lemon v. Chamlor, 68 Mo. 340, 30 Am. Rep. 
 799; Baltimore & 0. R. Co. v Worthington, 21 Md. 275, 83 Am. Dec. 
 578. 
 
 ^George v. St. Louis, I. M. & 8. R. Go. 34 Ark. 613; Brignoli v. Chicago & 
 G. E. B. Co. 4 Dalv, 182; Curtis v. Rochester & 8. R. Co. 18 N. Y. 534, 
 75 Am. Dec. 258; PittHhurqh, C. & St. L.R. Co. v. Williams, 74 Ind. 462; 
 Cleveland, C. C. & L B. Co. v, Newell, 1 West. Rep. 890, 104 Ind. 264, 
 54 Am. Rep. 312. 
 
 ^''Kansas Pac. B. Co. v. Miller, 2 Colo. 442. 
 
 ^^Bedford, S. 0. & B. B. Co. v. Bainbolt, 99 Ind. 551; Louisville, N. A. cfi C. 
 R. Co. V. Snider, 3 L. R. A. 434, 117 Ind. 435; SoAcyer v. Uannibal & St. 
 J. R. Co. 37 Mo. 240, 90 Am. Dec. 382. 
 
 "Philadelphia tt- R. R. Go. v. Anderson, 94 Pa. 351, 39 Am. Rep. 787; Brehm 
 V. Great Western B. Co. 34 Barb. 256.
 
 PKESUMPTION OF CAKKIEK'S NKGLIGENX'E FROM INJUKY. 695 
 
 car or train.' Or from collisions of cars or trains,' This rule 
 applies to a collision of the engine with an animal on the track/ 
 That a postal car ran oif the track, and that a postal clerk therein, 
 in charge of the United States mails, was killed without fault of 
 his own, makes a prima facie case of negligence against the car- 
 rier/ Where a passenger on a street raih'oad is injured by the 
 car falling down an embankment, negligence of the carrier is pre- 
 sumed to have been the cause/ 
 
 Evidence that the rebound of a ferry boat upon striking the 
 wharf, so as to throw a passenger down stairs and injure her, was 
 unusual, casts on the ferry company the burden of meeting the 
 presumption of negligence thus presented.* The plaintiff, being 
 a passenger in defendant's street car, was injured by the lurching 
 
 ^Dawson v. MnncJiester, S. & L. R. Co. 5 L. T. N. S. 683; Montgomery & E. 
 B. Co. V. Mallette, 92 Ala. 209; Louuville & N. R. Co. v. Jones, 83 Ala. 
 376; Alabama O. 8. R. Co. v. Hill, 93 Ala. 514; Eureka Springs R. Co. v. 
 Timmons. 51 Ark. 459; Mitchell v. Southern Pac. R. Co. U L. R. A. 130, 
 87 Cal. 62; Kansas Pac. R. Co. v. Mtller, 2 Colo. 442; Denver, S. P. & 
 P. R. Co. V. Woodward, 4 Colo. 1; Tonge v. Kinney, 28 Ga. Ill; Central 
 R. Co. V. Freeman, 75 Ga. 331; Peoria, P. & J. R. Co. v. Reynolds, 88 
 111. 418; Oalena & C. U. R. Co. v. Yarwood, 15 111. 468, 17 111. 509. 65 
 Am. Dec. 682; Pittsburgh, C. & St. L. R. Co. v. Thompson, 56 111. 138; 
 Lovimlle, N. A. & C. R. Co. v. Jone^, 7 West. Rep. 33. 108 Ind. 551; 
 Moore v. Des Moines & Ft.. D. R. Co. 69 Iowa, 491; Southern Kansas R. 
 Co. V. Walsh, 45 Kan. 653; Stevens v. European & N.A. R. Co. 66 Me. 
 74; Hipsley v. Kansas City, St. J. & C. B. R. Co. 4 West. Rep. 45, 88 Mo. 
 348; Farnii<h v. Missouri Pac. R. Co. 102 Mo. 438; Magoffin v. Missouri 
 P. R. Co. 102 Mo. 540; Dinimitt v. Uannibal & St. J. R. Co. 40 Mo. App. 
 654; Norton v. St. Louis & H. R. Co. 40 Mo. App. 642; Carpuev. London 
 & B. R. Co. 5 Q. B. 747; Farve v. Louisville & N. R. Co. 42 Fed. Rep. 
 441; Wynn v. Central Park, N. & E. R. Co. 38 N. Y. S. R. 181; Sulli- 
 van V. Philadelphia & R. R. Co. 30 Pa. 234. 72 Am. Dec. 698. Contra, 
 San Antonio & A. P. R. Co. v. Robinson, 73 Tex. 277. 
 
 *Ayles V. Southeastern R. Co. L. R. 3 Exch. 146; Georgia Pac. R. Co. v. Love, 
 91 Ala. 432; Chicago City R. Co. v. Engel, 35 111. App. 490; Louisville, N. 
 A. & C. R. Co. V. Faylor, 126 Ind. 126; Graham v. Burlington, C. R. & 
 N. R. Co. 39 Minn. 81; Smith v. St. Paul C. R. Co. 32 Minn. 1, 50 Am. 
 Rep. 550 (street cars); New Orleans, J. & G. N. R. Co. v. Allbritton, 38 
 Miss. 242, 274, 75 Am. Dec. 98; Carter v. Kansas City C. R. Co. 42 Fed. 
 Rep. 37 (street car); WiUcersony. Corrigan Consol. St. R. Co. 26 Mo. App. 
 144 (street car); Seybolt v. New York, L. E. & W. R. Co. 95 N. Y. 562, 47 
 Am. Rep. 75; Iron R. Co. v. Mowerv, 36 Ohio St. 418, 38 Am. Rep. 597; 
 New Jersey R. & Transp. Co. v. Pollard, 89 U. S. 22 Wall. 341, 22 L. ed, 
 877. 
 
 ^Louisville. N. A. d: C. R. Co. v. Hendricks. 28 Ind. 462; Louisville <& N. R. 
 Co. V. Ritter, 85 Ky. 368. 
 
 *Ohio cfc M. R. Co. V. Voight, 122 Ind. 288. 
 
 ''Louisville cfc P. R. Co. v. Smith, 2 Duv. 556. 
 
 ^Bartlett v. NeAO York, & S. B. F. & 8. Transp. Co. 25 Jones & S. 348
 
 696 EVIDENCE IN ACTION FOR INJUKY BY CARRIICR. 
 
 of tlie car. It was held that the jury could infer nec^lij^ence. * 
 The burden is on the carrier to show that a sudden jerk of tlie- 
 trahi, injuring a passenger attempting to get aboard, was caused 
 by agencies beyond its control. " Where a passenger in a street 
 car was injured by being thrown down by the starting of the car 
 before he was seated, negligence on the part of the company wili 
 not be presumed.^ 
 
 b. Collision with Objects on Side of Carriage. 
 
 An injury to a passenger by being struck by a bridge on the 
 carrier's road while he is in a position where he has a right to be 
 raises a presumption of negligence against the carrier." In a case 
 in which a passenger's arm, which was protruding from a window 
 of the car, was broken by striking a bridge, the court said : "The 
 mere happening of an injurious accident raises prima facie a pre- 
 sumption of neglect, and throws upon the carrier the onus of 
 showing it did not exist."^ Plaintilf was a passenger upon de- 
 fendant's road. Upon leaning against the door of the carriage for 
 the purpose of looking out of the window, the door gave way and 
 he fell out and was injured. It was held that upon proof of these 
 facts he was entitled to go to the jury.* "Wliere a passenger sit- 
 ting with her arm resting on the sill of an open window of a rail- 
 road car is injured by some object scraping along the side of the 
 car there is a presumption of negligence on the part of the rail- 
 road company.' So, too, where a passenger on a railway car is- 
 injured by being struck by a swinging door on a passing freight 
 car.* Or by a bar of iron projecting from a passing construction 
 train." The plaintiff was injured while a passenger in defendant's- 
 
 ^Murphy v. Coney Mand & B. R. Co. 36 Hun, 199. 
 
 *Murphy v. St. Louis, I. M. & 8. R. Co. 43 Mo. App. 343. 
 
 ^Jacknonmlle St. R. Co.vJ ChappeU, 21 Fla. 175. Sec 2 Rice, Ev. 1098 et seq. 
 
 *Yoiktown Tump. Co. v. Leonhardt, 3 Cent. Rep, 713, 66 Md. 70. 
 
 ^Laing v. Colder, 8 Pa. 479, 49 Am. Dec. 533. 
 
 ^Oee V. Metropolitan R. Co. L. R. 8 Q. B. 161, 
 
 iRo'broo/cv. Uiica&S. R. Co. 12 K Y. 236, 64 Am. Dec. 502, afflrmincc 10 
 
 Barb. 113. 
 '^Dreen v. New York Cent. & 11. R. R. Co. 11 Cent. Rep. 891, 109 N. Y, 297; 
 
 Alljertiv. New York, L. E. <£• W. R. Co. 43 IIuu, 421. 
 • Walker v. Erie R. Co. 63 Barb, 260.
 
 PRESUMPTION OF CARKIEe's NEGLIGENCE FKOM INJURY. 697 
 
 car by an iron girder which was being raised over its road falling 
 on the car. Willes, J.^ said: "I agree entirely with the counsel 
 for the defendants that it is not enough for the j)laintiff to show 
 that there has been an accident upon their line, and thence to 
 argue that therefore the company are liable, even prima facie. It 
 is necessary for the plaintiff to establish by evidence circumstance? 
 from M'hich it may be fairly inferred that there is reasonable 
 probability that the accident resulted from the want of 'some pre- 
 caution which the defendants might and ought to have resorted 
 to; and I go further to say that the plaintiff should also show 
 with reasonable certainty, what particular precaution should have 
 been taken." The plaintiff was allowed to recover in this case, 
 however, having afforded the necessary evidence.* The mere fact 
 that a passenger seated in a ear at an open window was struck on 
 the arm by a missle which he did not see and which could not be 
 found, with sufficient force to fracture the arm, without evidence 
 that anybody was near the train on the outside, who could have 
 inflicted the injury, does not raise a presumption of the carrier's 
 negligence. To throw upon a carrier the bui*den of disproving-^ 
 negligence in case of injury to a passenger, it must first be shown 
 that the injury complained of resulted from the breaking of ma- 
 chinery, collision, derailment of cars or something improper or 
 unsafe in the conduct of the business or in the appliances of 
 transportation. ' 
 
 Negligence of the street railway company will not be presumed 
 from an injury to a passenger by the collision of the car with a 
 wagon on the street.^ The plaintiff was a passenger in defendant's 
 street car. A runaway team of the defendant ran into the rear of 
 the car, and in the collision the plaintiff was injured. The court 
 said : "To maintain her action, it was not only necessary for the 
 plaintiff to show that she received the injury, but she was bound 
 to assume the onus of proving affirmatively that the same was 
 caused by reason of the carelessness or negligence of the defend- 
 
 ^Danielv. Metropolitan R. Co. L. R. 3 C. P. 216. 
 
 ''Thomas v. Philadelphia & R. R. Co. (Pa.) 15 L. R. A. 416. 
 
 ^ Potts V. Chicago CUy R. Co. 33 Fed. Rep. 610; Federal til reet d: P. V. R. Co. 
 V. Oibson, 96 Pa. 83.
 
 698 EVIDENCE IN ACTION FOE INJURY BY CAKUIER. 
 
 ant or its servants."* So, too, where a locomotive ran Into a 
 street car crossing the raih'oad tracks. " 
 
 c. JExplosions. 
 
 J^egligence on the part of a railway company is presumed from 
 an injury to a passenger by tlie explosion of the locomotive push- 
 ing the train. ^ And from injury to a passenger by the explosion 
 of the boiler of the carrier's boat. * And where a passenger is 
 killed by an unexplained explosion on a steamboat. " 
 
 In Fay v. Davidson, 13 Minn. 523, a case arising out of the 
 same exj)losion as McMahon v. Davidson, 12 Minn. 357, plaintiff 
 was a passenger upon another boat of the same defendant and was 
 injured by the explosion. The court held that the statute re- 
 ferred to in the McMahon case applied, and that negligence of 
 the defendant was to be presumed from the fact of the explosion 
 and injury; and Berry, J., who wrote the opinion, said : "But 
 irrespective of the Act of Congress, and speaking for myself 
 alone, I am inclined to the opinion that under the undisputed 
 facts in this case the explosion is prima facie evidence of neg- 
 ligence, within the principle enunciated in McLean v. Burbanh, 
 11 Minn. 287, and authorities there cited." 
 
 Where a passenger in an omnibus was injured by the explosion 
 of a lamp therein, the injury is presumed to be the result of neg- 
 ligence of the carrier. * 
 
 d. Falling Objects. 
 
 Negligence of the carrier is presumed from the falling of a 
 berth in a ship whereby a passenger is injured. ' So as to 
 the falling of a berth in a sleeping-car on the head of a pas- 
 
 '■Quinlan v. SixtJi Ave. B. Go. 4 Daly, 488. 
 ^Central Pass. R. Co. v. Kuhn, 86 Ky. 578. 
 ^Robinson v. New York Cent. & H. R. R. Co. 20 Blatchf. 338; Yeomam v. 
 
 Contra Costa Steam Nav. Co. 44 Cal. 71. 
 ^The Reliance, 4 Woods, 420; Dunlap v. The Reliance, 2 Fed. Rep. 249. 
 "■.Spmr V. Philadelphia, W. & B. R. Co. 11 Cent. Rep. 643, 119 Pa. 61. 
 * Willde V. BoUter, 3 E. D. Smith, 327. 
 \Sim(h V. Britu<h & N. A. R. M. 8. Packet Co. 14 Jones & S. 86, affirmed in 
 
 86 N. Y. 408, without mculion of this point.
 
 rKKSUMPTION OF CARKIEK's NEGLIGEKCE FllOAI liS'JUKV. (J'J'J 
 
 SGiiger. ' And of tlie falling of a shade from a car lamp. ' 
 And where a passenger on a steamboat is injured with- 
 out his fault by a bale of merchandise falling upon him. ' 
 But negligence will not be presumed from an injury to a passen- 
 ger by a clothes wringer falling out of the luggage rack, which 
 another passenger had placed therein. * Nor where a passenger 
 is injured by stumbling over an obstruction in the car. ' An in- 
 jury to a ])assenger sitting next to an open window on a raih'oad 
 train, by a blow on his eye by some hard substance — probably a 
 piece of coal — hurled with considerable force, while the engine of 
 another train was directly opposite the window passing in another 
 direction, where there is nothing to explain the cause of the acci- 
 dent, does not create a presumption of negligence against the car- 
 rier. • 
 
 e. At Stations/ Embarking and Alighting, 
 
 Upon proof that plaintiff went to defendant's station for the 
 purpose of traveling, and while looking at the time-table ^vas 
 injured by a plank and roll of zinc which fell through the roof 
 where a man was carrying them, it was held that plaintijff had 
 not made out a case of negligence. '' The plaintiff, having pur- 
 chased a ticket, was proceeding to get aboard the train when the 
 swinging door leading out of defendant's station-house swung 
 back after the passenger preceding the plaintiff, and, the latter 
 putting out his hand to stop it, broke the glass in it, and injured 
 his hand. It was held that negligence on the part of the com- 
 pany would not be presumed from the fact of the injury. * A 
 passenger attempting to mount a railroad train from a platform 
 or station provided by a railroad company has the right to pre- 
 sume that the provision made is reasonably safe, and is not re- 
 quired to exercise so high a degree of vigilance as in attempting 
 
 ' Cleveland, C. G. & I. R. Co. v. Walrath, 38 Ohio St. 4G1. 
 
 2 White V. Boston <& A. B. Co, 4 New Eng. Rep. 267, 144 Mass. 401. 
 
 » Memphis & 0. R. Packet Co. v. McCool, 83 Ind. 302. 
 
 * Morris v. New York Cent. & H. R. R. Co. 9 Cent. Rep. 288, 100 N. Y. 678. 
 ^ Farley v. Philadelphia Traction Co. 132 Pa. 58. 
 
 * Pennsylvania R. Co. v. MacKinney, 2 L. R. A. 820, 124 Pa. 462. 
 ' Welfare v. London, B. & 8. C. R. Co. L. R. 4 Q. B. 693. 
 
 * Hay man v. Pennsylvania R. Co. 10 Cent. Rep. 835, 118 Pa. 508.
 
 700 EVIDENCE IN ACTION FOR IXJLJii' BY CAUIUEK. 
 
 to cross the tracks at a highway. ' Proof that a woman had 
 bought a ticket and was crossing the track under the direction 
 of the agent of the railroad company, and while in the act of 
 crossing was, without negligence on her part run over and killed, 
 makes a prima facie case of negligence against the railroad com. 
 pany. ' It is prima facie negligence for a railroad company hav- 
 ing run its train past the station, to require a passenger to alight 
 at an unusual and what proves to be an unsafe spot. ' 
 
 From the mere fact that a passenger was run over while alight- 
 ing from the train, no presumption of the liability of the carrier 
 arises. * l^or in the case of the killing of a trespasser on trains. ' 
 l^or from the fact that a passenger in stepping from the train 
 fractured her knee-pan. * Kor from an injury received by a pas- 
 senger while alighting from a moving train upon a defective plat- 
 form. ' Nor from the fact that a passenger was injured by falling 
 from the station platform while proceeding to get aboard a train. ' 
 Where a negro slave was being transported as a passenger by his 
 master and was injured at an intermediate station while outside 
 the car, negligence of the carrier must be proved to make it lia- 
 ble. * A carrier is not liable to a passenger injured while alighting 
 by her clothing catching in a broken spring-hook used to fasten a 
 curtain on an open railway car, where it is not shown when it was 
 broken. " 
 
 Where a pa^;senger is injured while alighting from a railway train,, 
 negligence of the carrier will not always be presumed." In this 
 case it is said: "It has been held, in some states, that in cases of 
 injury on railroads, there is always a presumption of negligence 
 against the defendant. That, however, is not the common law, 
 and is not the law of this state. According to the doctrine which 
 
 > Shutt V. Cumberland V. R. Go. May 23, 1892. 
 
 2 Baltimore & 0. B. Co. v. State, 63 Md. 135. 
 
 3 Memphis & G. R. Co. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699. 
 
 * EuHt Tennessee, V. & O. R. Go. v. Mitchell, 11 Heisk. 400. 
 
 * Sommers v. Mississippi & T. R. Co. 7'Lea, 201. 
 
 « Delaware, L. & W. R. Co. v. Napheys, 90 Pa. 135. 
 
 ' Pennsi/ioania Co. v. Marion, 2 West. Rep. 236, 104 Ind. 239. 
 
 8 Chicago, St. L. & N. 0. R. Co. v. Trotter, 60 Miss. 442. 
 
 » Mitchell V. Western & A. R. Co. 30 Ga. 22. 
 
 ^^ Kelly V. Neto York (& S. B. R. Co. 11 Cent. Rep. 874, 109 N. Y. 44. 
 
 "Mitchell V. Chicago dc Q. T. R. Co. 51 Micb. 236, 38 Am. Rep. 566.
 
 PRESUMPTION OF CARRIER'S NEGLIGENCE FROM INJURY. 701 
 
 wc follow, neglif^ence must be shown in all sncli cases, and it must 
 appear to have been the efficient cause of the injury without con- 
 tributory fault in the plaintiff." So, too, where a passenger 
 alighting from the front platform of a street car for the purpose 
 of passing, by direction of the driver, to the rear platform to 
 smoke, was injured by the sudden starting of the car.* 
 
 Where in driving off a ferry-boat the plaintiff was injured by 
 his sleigh being suddenly stopped by striking against the drop of 
 the slip, which was higher than the deck of the ferry-boat, negli- 
 gence will not be presumed against the ferry company from the 
 -occurrence of the accident.^ 
 
 f. Proximate Cause. 
 
 A late decision of the Supreme Court of Pennsylvania illustrates 
 the proximate cause of injury, which will cast the presumption of 
 negligence upon the carrier in the event of injury to a passenger. 
 It affirms the general rule that the burden of proof to show itself 
 free from negligence is not thrown on a carrier by the mere 
 fact that a passenger was injured, where the cause of the accident 
 clearly appears to be one for which it is not liable,^ but that to 
 throw upon a carrier the burden of disproving negligence in case 
 of injury to a passenger, it must first be shown that the injury 
 complained of resulted from the breaking of machinery, collision, 
 derailment of cars, or something improper or unsafe in the con- 
 duct of the business or in the appliances of transportation. 
 
 In the case reinforcing this rule the appellant was a passenger 
 on the cars of defendant comj)any. He was seated at an open 
 window, and, in the vicinity of Pottstown, was struck on the arm 
 by a missile with sufficient force to cause a fracture thereof. It 
 was not shown what caused the injury. The appellant did not 
 see the missile, nor was it found in the car. There was no evi- 
 dence that anyone was near the train, on the outside, who could 
 iiave inflicted the injury. The suit was brought to recover dam- 
 
 ^Brown v. Congress & B. St. B. Co. 49 Mich. 153, which is the only case cited 
 in support of the rule as stated in Mitchell v. Chicago & O. T. B. Co. 51 
 Mich. 236, 38 Am. Rep. 566. 
 
 *Le Barron v. East Boston Ferry Co. 11 Allen, 312, 87 Am. Dec. 717. 
 
 '^Keller v. Hestonville, M. & F. Pass. B. Co. 1 Pa. Dist. Rep. 197.
 
 702 EVIDENCE IN ACTION FOK INJURY JiV CAKKIKR. 
 
 ages for the injury referred to. The theory of the appelknt wa& 
 that it was caused by a loose nut, thrown from one of the switches 
 of the defendant's roadbed, over which the train was passing at 
 the time. Tliis was a mere theory, however, without any evidence 
 to sustain it. The appellant contended that, under such circum- 
 stances, the question of the defendant's negligence should have 
 been submitted to the jury. The court trying the case took a 
 contrary view of the case, and directed a verdict for the defend- 
 ant. This is the error assigned on appeal. The appellant relied 
 upon Pennsylvania R. Co. v. MaoKinney, 2 L. K. A. 820, 124r 
 Pa. 462, but the court concludes that case differs widely from this 
 in its facts. There the plaintiff received a violent blow on his 
 left eye, causing the injury of which he complained. The 
 nature of the injury indicated that he had been struck by some 
 hard substance, hurled with considerable force. A surgical exam- 
 ination of the eye, made on his arrival at Philadelphia, showed 
 that it was probably a piece of coal. Small particles of some hard 
 substance resembling coal were found and removed from the 
 injured organ. It also appeared that, at the time he was struck, 
 he saw through the open window at which he was sitting one of 
 the company's trains, passing in the opposite direction, immedi- 
 ately on the left of the train on which he was being carried; that 
 simultaneously with receiving the blow the engine of that train 
 was directly opposite the window, and was thus interposed between 
 him and that side of the railroad and land adjacent thereto. That 
 fact, it was claimed by him, negatived any inference that the 
 injury resulted from the act of a stranger, or anyone not connected 
 with the operation of the road. Under such circumstances the 
 court held that the lower court erred in directing the jury to 
 beo-in their consideration of the case "with the fact established 
 that the injuries were the result of negligence of the defendant,'^ 
 and that tlu^ rule of Laing v. Colder, 8 Pa. 481, 49 Am. Dec. 533; 
 and other like cases, that a presumption of negligence on the part 
 of the carrier ai-ises when a passenger is injured in the course of 
 transportation, cannot be invoked without evidence tending to 
 connect the carrier, or its employes or some of the appliances of 
 transportation, with the happening of the injury. The rule 
 appears to be that where a passenger is injured either by anything
 
 PRESUMPTION OF CARRIER'S NEGLIGENCE FROM INJURY. 703 
 
 done or omitted by the carrier, its employes, or anything connect- 
 ed with the appliances of transportation, the burden of proof is 
 upon the carrier to show that such injury was in no way the 
 result of its neghgence. But to throw tliis burden upon tlie car- 
 rier, it must first be shown that the injury eonij)lained of resulted 
 from the breaking of machinery, collision, derailment of cars, or 
 something improper or unsafe in the conduct of the business, or 
 in the appliances of transportation. In Pennsylvania R. Co. v. 
 MacKinney, 2 L. R. A. 820, 12'1: Pa. 402, there Avas evidence 
 from which a jury might infer that the injury was the result of 
 some negligence on the part of one or more of tlie employes of 
 the company, and which excluded, to some extent, the inference 
 that it could have occurred at the hand of a stranger, or someone 
 not connected with the company. There is an absence of such 
 proof in the case in hand. There was no passing train. The mis- 
 sile, whatever its character, evidently came from without, and wa.< 
 not recognized. As before observed, there was no evidence that 
 it was a nut, and it is at least extremely improbable that such a 
 thing could have been hurled into the car windo^s'^ by the move- 
 ment of the train. There was nothing in the evidence to connect 
 the accident with any defect in the cars or machinery, the move- 
 ment of the train, or in any of the appliances of transportation. 
 There was nothing, therefore, in the opinion of the court, to sub- 
 mit to a jury. It would be as reasonable to hold that a bullet 
 fired into the car from without, by means of which a passenger is 
 killed, is evidence of negligence on the part of the company.' 
 •r/wmas V. FJiiladelphia & B. B. Co. (Pa.) 15 L. R. A. 416.
 
 CHAPTER XXXV. 
 
 EXPERIMENTAL AND OPINION EVIDENCE-OTHER TIMES AND 
 
 PLACES. 
 
 I 189. Experimental Evidence. 
 
 a. Experiments Outside the Court Boom. 
 
 b. Experiments in the Court Room. 
 
 ^ 190. Authoritij of the Court to Order Physical Examination. 
 
 a. Power to Order Examination Before Trial. 
 
 b. Poioer to Order Examination at the Trial. 
 
 c. Application of the Rule of Physical Examination. 
 
 d. Manner of Enforcing the Poiver. 
 § 191. Opinion Evidence. 
 
 § 192. Evidence of Defect at Other Places or Times. 
 '^ 193. Changes Made hy Carrier after Accident. 
 
 § 189. Experimental Evidence. 
 
 In an action for an injury to the plaintiffs house, the question 
 in controversy and upon which the parties had introduced the testi- 
 mony of experts, was whether the injuries were caused by fumes 
 and gases from the defendant's copperas works, or by emanations 
 from a sewer near the premises. The plaintiffs' experts were 
 allowed to give the grounds and reasons of their opinions, includ- 
 ing the details of experiments made by them elsewhere than on 
 the premises in question, under conditions and circumstances 
 which, as they testified, were as nearly as possible like those sur- 
 rounding the plaintiff's house in the absence of the sewer; and it 
 was held that the defendant had no ground of exception. In 
 Brooke v. Chicago, R. I. <& P. E. Co. 81 Iowa, 504, it was held 
 that evidence as to experiments of a witness in placing his foot 
 between the rails to show where it would be caught is admissible 
 when the witness who made the experiment, used the shoe worn 
 by the deceased.' 
 
 In a late case the defendant claimed that the accident was due 
 
 ^Eidt V. Cutter, 127 Mass. 022. 
 
 704
 
 EXi'EKIMENTAL EVIDENCE. ,705 
 
 to the disijlacement of a rail wrongfully loosened from the track, 
 and thrown diagonally acro.ss the track by some evil-disposed per- 
 son; and in support of that contention introduced the rail in court, 
 which showed upon the outside of its bottom flange a sear which 
 defendant claimed apj>eared to have been made by collision of the 
 pony truck wheel in front of the engine coming in contact with 
 the flange of the rail as it lay diagonally across the track. The 
 plaintiff, in rebuttal, produced in court a wheel made to run on 
 rails and an iron rail, and requested the witness to show to the 
 jury the manner in wdiicli the wheel would come in contact with 
 the rail under the circumstances claimed by the defendant. The 
 section of rail introduced by the plaintiff was the same in size, 
 dimension, measurement, and weight as the rail introduced by 
 the defendant, and the court personally measured the wheel, and 
 ordered that the record be made to show that it was a wheel with 
 flange and thread, made to run on rails like a locomotive engine 
 wheel, and that it Avas twenty-six inches in diameter, including 
 the flange. The only difference between the wheels was that the 
 pony truck wheel was 33 inches in diameter, including the flange- 
 but both were used for similar purposes and rolled upon similar 
 tracks. The bill of exceptions shows that the witnesses placed the 
 section of rail across defendant's rail (as claimed by its theory, 
 the rail was placed by the alleged evil-disposed person), and then 
 rolled the flanged w^heel towards and against it on the defendant's 
 rail and claimed to demonstrate in the presence of the jury that a 
 wheel thus approaching a crossed rail could only strike it on the 
 ball or upper part and not on the flange or bottom part, where the 
 scar appeared. He also testified that the larger the diameter of 
 the approaching wheel, the further it would be from striking the 
 flange of the cross-rail, and that there were no marks or scars on 
 the ball of defendant's riil. In disposing of the question on ap- 
 peal, the rule was recognized that experiments, to be admissible, 
 must be based on conditions similar to those existing in the case 
 on trial. It was said that there seems to be some hesitation in 
 receiving evidence of experiments or demonstrations, and from 
 the liability to misconception and error there can be no doubt 
 that it is essential that the experiments or demonstrations should 
 be made under similar conditions and like circumstances. In all 
 45
 
 706 EXPERIMENTAL AND OPINION EVIDENCE. 
 
 cases of this sort very mucli must necessarily be left to the dis- 
 cretion of the trial court, but when it appears that the experiment 
 or demonstration has been made under conditions similar to those 
 existing in the case in issue, its discretion ought not to be inter- 
 fered with. In the present case, the things used for the purpose 
 of the demonstration were similai- in size, material, and position, 
 and were operated under conditions similar to the thing sought 
 to be demonstrated. It seems that a flanged wheel, standing per- 
 pendicular with the rail upon which it is placed and rolled for- 
 ward, will strike another rail crossing this one upon which it is 
 rolling in precisely the same manner that it would were it attached 
 to the end of an axle. The action of the court below in admitthig 
 the evidence was affirmed.' 
 
 a. Experiments Outside the Court Room. 
 
 It is not error for the court to refuse an application to allow the 
 jury to witness experiments with cars upon a railroad track out- 
 side of the court-room as bearing on the question of the practica- 
 bility of an alleged collision.* 
 
 In a suit to recover damages for personal injuries caused by the 
 alleged defective construction of machinery the jury were per- 
 mitted to inspect the premises, but the court refused to permit 
 defendant to run the machinery in their presence for the purpose 
 of showing that the injury could not have occurred as alleged, 
 and the appellate court held that this was not an abuse of discre- 
 tion, since there was evidence to show that the machine had been 
 considerably altered since the accident happened.' 
 
 In an action to recover for the alleged burning of plaintiiF& 
 lumber vard by sparks from defendant's engine, defendant claimed 
 that the train which was alleged to have caused the lire ran by the 
 lumber yard on a down grade without the use of steam, and that 
 it was therefore impossible to have emitted sparks. The jury in- 
 Hpected the premises and while there defendant's servant ran a 
 train down the grade past where the yard was located for the 
 purpose of showing that it could be done without using steam. 
 
 "^Uoruird v. Southern Pac. R. Co. 15 L. R. A. 221, 21 Or. 555. 
 
 "Smith V. St. Paul City It. Co. 32 Miun. 1. 
 
 *Kinney v. Folkerts, 84 Mich. 610.
 
 EXrEKIMENTAL EVIDENCE. 707 
 
 The trial court set aside the verdict because of the experiment 
 but tlie supreme court reversed the decision holdinf^ tliat the ex- 
 periment was not so erroneous as to call for such action. * 
 
 b. Experiments in the Court Hooni. 
 
 The decisions may perhaps all be harmonized by the rule tliat 
 experiments as to matters within the range of ordinary knowledge 
 or experience will be admitted while others will be excluded. 
 Within tlie classihcation of simple experiments may be placed the 
 following : 
 
 In Hatfield v. St. Paul tfe D. E. Co. 33 Minn. 130, .53 Am. 
 Rep. 14-, the court said : "There was no doubt of the power of 
 the court in a proper case to require a party to perform a physi- 
 cal act before the jury that would illustrate or demonstrate the 
 extent and character of liis injuries," and held that there was no 
 occasion for it in that case, there being abundant evidence of the 
 extent of the injuries without resorting to such means. 
 
 Where plaintiff in an action to recover damages for personal 
 injuries claimed to have been paralyzed by the accident, her med- 
 ical attendant, although he has not been sworn, may properly 
 demonstrate to the jury her loss of feeling by tlu'usting a pin into 
 the portions of her body claimed to have been paralyzed. ' 
 
 § 190. Authority of Coui-t to Order Physical Ex- 
 amination. 
 
 The question whether the court has power, in advance of the 
 trial of an action for a personal and a physical injury, to compel 
 the plaintiff, on an application made in behalf of the defendant, 
 to submit to a surgical examination of his person by surgeons ap- 
 pointed by the court, with a view of enabling them to testify on 
 the trial as to the existence and extent of the alleged injury, is 
 not new in the courts, although first presented in 1868, before a 
 judge of the New York Superior Court at special term, in the 
 case of Walsh v. Sayre^ 52 How. Pr. 334, who affirmed the ex- 
 istence of the power.* In 1877 the Supreme Court of Iowa sus- 
 
 'Stockwell V. Chicago, C. & D. R. Co. 43 Iowa, 470. 
 
 ^Osborne v. Detroit, 32 Fed. Rep. 36. 
 
 "The contrary was held by the general term of the third department in 
 
 Roberts v. Ogdensburg & L. C. R. Co. 29 Hun. 154. See also Neuman v. 
 
 Third Ave. R. Co. 18 Jones & S. 412.
 
 708 EXPKKIME^^TAJ. AND Ol'lNIO^* KVIDKXCK. 
 
 tained the doctrine tliat the court had an inlierent jurisdiction to 
 grant a compulsory order that the plaintiff submit to such examin- 
 ation,' and this decision has been followed by the courts of several 
 of the western and southern states,* and in others the power has 
 been denied.' In Indiana the decisions are conflicting and inde- 
 cisive/ The only statute authorizes a view of real or personal 
 property on the place where a material fact occurred.'' 
 
 Blackstone states that upon an appeal of mayhem where the 
 issue joined is whether it is meyhem or no mayhem this shall be 
 decided by the court upon inspection, for which purpose they 
 may call in the assistance of surgeons.' This seems to be the 
 closest analogy to be found in the common law to a compulsory 
 physical examination of plaintiff, as practiced by some of the 
 courts of to-day. The apjjeal of mayhem was abolished b}' 
 Stat. 69 Geo. III., chap. 40, and there is not a sufficient descrip- 
 tion of its object and procedure in the books at our command 
 to demonstrate the closeness or remoteness of the analogy. 
 Upon the question of the right of defendant to demand and the 
 power of the courts to enforce a surgical examination of plaintiffs 
 person either before or during the trial the decisions are in hope- 
 less conflict. Doubtless a majority of the courts which have ex- 
 pressed an opinion upon the question are in favor of recognizing 
 the existence of such right and power, but that the weight of 
 authority is in favor of it may be questioned. 
 
 This question was considered in the United States Supreme 
 Court in May, 1891, and the court (two judges dissenting) decided 
 adversely to the claim that the court had power to compel such 
 
 ^Schroeder v. Chicago, K I. & P. B. Co. 47 Iowa, 375. 
 
 •'Miami <& M. Tump. Co. v. Baily, 37 Ohio St. 104; Atchison, T. & S. F. B. 
 
 Co. V. Thul, 29 Kan. 460; WJiite v. Mihoaukee City B. Co. 61 Wis. 536; 
 
 Hatfield v. St. Paul & D. B. Co. 33 Mhm. 130; Stuart v. Havens, 17 Neb. 
 
 211; Owens v. Raiuas City, St. J. & C. B. B. Co. 95 Mo. 169; Sibley v. 
 
 Smith, 46 Ark. 275; Missouri Pac. B. Co. v. Johnson, 72 Tex. 93; Bich- 
 
 mond & D. B. Co. v. Childress, 82 Ga. 719; Alabama G. S. B. Co. v. 
 
 Hill, 9 L. R. A. 442, 90 Ala. 71; Sioux City tt- P. B. Co. v. Finlayson, 16 
 
 Neb. 578; International & O. N. B. Co. v. Underwood, 64 Tex. 463. 
 » McSwyny v. Broadway & S. Ave. B. Co. 27 N.Y. S. K. 363; Parker v. Ens- 
 
 loto, 102 111. 272; Lloyd v. Hannibal dSl. J. B. Co. 53 Mo. 509. 
 
 * Kern v. Bridwcll, 119 Ind. 226, 229; Hess v. Lowrey, 7 L. R. A. 90, 122 Ind. 
 
 225, 233; Terre Haute & 1. B. Co. v. Brunker, 128 lud. 542. 
 ' Ind. Rev. Stat. 1881, chap. 2, § 538. See McGvffy. State, 88 Ala. 147. 
 
 • 8 lil. Com. 332, The decisions upon this subject are collected in 2 Rolle, 
 
 Abr. 578.
 
 AUTIIORIIV OK COL'KT TO OKDKU TJIVSICAL EXAMINATION. 709 
 
 examination.' The opinions of the several courts wlneli have 
 passed upon the qiiesti(.m present very fully the considerations 
 bearino; upon it. Tiie powei-s of courts are eitlier statutory or 
 those whieii appertain to them by force of the common law, or 
 tliey arc |)ai'tly statutory and ])artly derived from immemorial 
 U8a<:;c, which latter constitutes tlicir iidierent jurisdiction. They 
 are orp^anized for the protection of public and private rights and 
 tlie enforcement of remedies. Presumptively, therefore, what- 
 ever judicial pnK^odure is essential to enable courts to exercise 
 their function is authorized. The )uaxim that there is no right 
 Avithout a remedy justili(Hl the courts in the earlier periods of the 
 common law, in inventing wi'its and modes of procedure adapted 
 to present for adjudication in ]>roper form every question of 
 judicial cognizance. The powers and jurisdiction of the courts of 
 common law and chancery in England are to be found in the 
 English statutes, and in the rules, precedents, decisions, and pro- 
 cedure of the courts. The power which the courts actually exer- 
 cised, supplemented by statutory powers, constitute, in a general 
 sense, tlieir jurisdiction. Upon the organization here of the Fed- 
 ei'al and state governments, c(jurts were constituted, and in the 
 states they succeed to the powers theretofore exercised by the 
 courts of law and chancery in England, so far as they were appli- 
 cable to our situation. It is a significant fact that not a trace can 
 lie found in the decisions of the common law courts of England, 
 either before or since the Revolution, of the exercise of a power 
 to compel a party to a personal action to submit his person to 
 examination at the instance of the other party. If the power 
 existed, it is difficult to suppose that it would not have been fre- 
 quently invoked. Actions for assault and battery, for injuries 
 arising from negligence, and general l}^ for personal torts, were 
 among the most connnon known to the law, aiul yet in no case 
 was it supposed or claimed that the court was armed with this 
 jurisdiction. The non-exercise of a power is not conclusive 
 against its existence, but it is inconceivable that, if the power in 
 question existed, it should have been unused for centuries, and 
 never have been called into activity. 
 
 Ko right is held more sacred, or is more carefully guarded by 
 ^ Union I'ac /.'. Co. v. BoIhJohI, 141 U. S. -'SO, 35 L. ed. 734.
 
 710 EXPERIMENTAL AND OPINION EVIDENCE. 
 
 tlie common law, than the right of every individual to the posses- 
 sion and control of his own person, free from all restraint or inter- 
 ference of others, unless bv clear and unquestionable authority of 
 law. As well said by Judge Cooley, " The right to one's person 
 may be said to be a right of complete immunity — to be let alone." ' 
 For instance, not only wearing apparel, but a watch or a jewel, 
 worn on the person, is, for the time being, privileged from being 
 taken under distress for rent, or attachment on mesne process, or 
 execution for debt, or writ of replevin.'' 
 
 The inviolability of the person is as much invaded by a com- 
 pulsory stripping and exposure, as by a blow. To compel anyone, 
 and especially a woman, to lay bare the body, or to submit it to 
 the touch of a stranger, without lawful authority, is an indignity, 
 an assault and a trespass; and no order or process, commanding 
 such an exposure or submission, was ever known to the common 
 law in the administration of justice between individuals, except in 
 a very small number of cases, based upon special reasons, and 
 upon ancient practice, coming down from rudei" ages, now mostly 
 obsolete in England, and never, so far as we are aware, introduced 
 into this country. In former times, the English courts of com- 
 mon law might, if they saw tit, try by inspection or examination 
 without the aid of a jury, the question of the infancy, or of the 
 identity of a party; or, on an appeal of mayhem, the issue of may- 
 hem or no mayhem; and in an action of trespass for mayhem, or 
 for an atrocious battery, might, after a verdict for the plaintiif, 
 and on his motion, and upon their own inspection of the wound, 
 super visum vulnerts^ increase the damages at their discretion. 
 In each of those exceptional cases, as Blackstone tells us, " it is 
 not thought necessary to summon a jury to decide it," because 
 " the fact, from its nature, must be evident to the court, either 
 from ocular demonstration or other irrefi'agable proof;" and, 
 therefore, " the law departs from its usual resort, the verdict of 
 twelve men, and relies on the judgment of the court alone." The 
 inspection was not had for the purpose of submitting the result to 
 the jury, but the question was thought too easy of decision to 
 need submission to a jury at all.'' 
 
 'Cooley, Torus, 29. 
 
 »3 Bl. Com. 8; Hunholf v. Alford, '6 Mcch. & W. 248*, 353, *2o4; M<ick v. 
 1'iirk.H, 8 Gra}', 517; Maxhdm v. JJny, 16 Gray, 213. 
 
 *o 151. Cum. ;j:5i-;!;5;'.
 
 AUTUORITY OF COLiM To OliDKIi 1M1V8I<;AK KXAMINATION. 711 
 
 In two oases cited by Justice Gniy in liis opinion,' the court of 
 <'ommon bench in England refused an order for the inspection of 
 41 building-, on the application of the plaintiff in an action for 
 work and labor performed by him thereon, on tlie ground of want 
 of power.' These cases tend to negative the existence of the 
 ])ower in the English courts, claimed for our courts. The only 
 authority in the English common law courts in any degree analo- 
 gous is found in the power which the courts of England have oc- 
 <'asionally, though rarely, exercised — to issue, on the application 
 of apparent heirs, the wi-it de venire inspielendo, to compel a 
 Avidow claiming to be witii child by her deceased husband to sub- 
 mit her person to examination. ° The practice in England is sui 
 ^/er^eris, and has never been adopted here. It may have originated 
 in the peculiar favor shown to heirs by the law of England, but, 
 whatevei- its origin, it seems rej)ugiiant \o common right, and the 
 fact that in this instance only have the courts of England exer- 
 cised the power to compel the examination of the person in a 
 civil ])roceeding tends to show that the power is not there 
 regarded as general, but special and peculiar, and limited to the 
 particular case. The doctrine of the cases in chancery,* that in an 
 action to procure a decree of nullity of marriage on the ground of 
 impotence or sexual incapacity the chancellor may compel the de- 
 fendant to submit to a surgical examination, is a graft from the 
 <-ivil and common law, and, as has been said, rests upon the inter- 
 est which the public, as well as the ]>arties, have in the question 
 <»f upholding or dissolving tlie man-iage state, and upon the neces- 
 sity of such evidence to enable the court to exercise its jurisdic- 
 tion. * 
 
 In a suit for the annulment of a marriage on the gntund of 
 impotence a court of chancery has ])ower to compel the parties 
 to submit to a surgical examination M'henever it is ne(;essary 
 to ascertain facts which are essential to the ])roper decision 
 
 ' Union Pac. R. Co. v. Botuford, 141 U. S. 250, 35 L. ed. 734. 
 
 ■Newham v. Taite, 1 Arn. 244; Turquand v. Strand Union, 8 Dow, P. C. 201. 
 
 ^ReBlakem&re, 14 L. J. N. S. Ch. 33G; 1 Bl. Com. 356; Bacon, Abr. Bastard 
 
 A. 
 *Brififjs V. Morgan, 2 Hagg. Consist. Rep. 324; J)eca/,bat//i v. Devanhaqh, 5 
 
 Piiige, 554, 3 L. ed. 827; NeweU v. Newell. 9 Paige, :^5, 4 L. ed. 596! 
 ''Union Pac. li Co. v. Hoiafovd, 141 U. S. 250. 35 L. ed. 734.
 
 71^ EXPERIMENTAL AND OPINION EVIDENCE. 
 
 of the causes. * So in a suit for the annuhnent of a marriage on 
 the ground of malformation or abnormal physical proportions 
 amounting to physical inability on the part of the male, the court 
 may order a personal examination by physicians or matrons of the 
 plaintiff. '' So where plaintiff sued to be restored to conjugal 
 riglits and his wife alleged his impotence, the court appointed 
 examiners to ascertain the truth of her allegations.' It seems that 
 in a suit by a woman for annulment of marriage on the ground 
 of impotence there must be a report by sworn medical inspectors 
 as to her state. * So in a case for divorce on the ground of the 
 impotence of tlie husl)and, examiners were appointed for both 
 parties. ' But in a suit for annulment of marriage because of 
 malformation of the wife, the court made an order for her inspec- 
 tion without ordering the husband to submit to inspection. * 
 
 When we examine tlie history of the power of common law 
 courts to compel the production and inspection of books and 
 papers in possession of the opposite party in a civil action, we find 
 that orisjinally the courts disclaimed any power in the matter, and 
 the remedy by bill of discovery was the only resource of the party 
 desiring such discovery. Finally the conmion law courts assumed 
 a limited equitable jurisdiction over the subject, and, in addition 
 to the rule that a party pleading a deed should make profert of 
 the instrument, which enabled the other party to demand oyer,, 
 the courts by order compelled a party who in his pleading relied 
 upon a M'ritten instrument, not a deed, to give inspection to the 
 othei' ])ai-tv if required, and so in other special cases. The courts- 
 in tlie states prior to any statute, exercised a limited equitable 
 jurisdiction of the same character.' But this limited jurisdiction 
 was exercised sparingly and with hesitation, and it was not until 
 statutes were enacted in England and in some of the states con- 
 ferring upon common law courts the same power to compel the 
 
 ' Devanbagh v. Devanbagh, 5 Paige, 554, 3 L. ed. 827. 
 ' Amnymous 7 L. R. A. 425, 89 Ala. 291. 
 » ('. V. V. 32 L. J. Mat. 12. 
 
 * Stnyg v. luh/ecombe, 32 L. .1. Mat. 153. 
 
 * B. V. C. 32 L. J. Mai. 135. 
 
 « B. V. L. 16 Week. Hep. 943. 
 
 "'Laicrenre v. Ocean Im. Co. 11 .Johns. 245: Doulow v. Fowkr, 2 Cow. 592, 
 noU.
 
 AL TIIOUITV OK OOLliT TO OKDKK TUVSICAL KX AMI^'ATIO^^ 71S 
 
 discovery and inspef-tirni of ])Ooks and papers wliicli was exercised 
 by courts of chancery on bills of discovery, that courts of com- 
 mon law claimed or exercised full power over the subject,' The 
 limited jurisdiction exercised by these courts before the statute 
 was in the nature of a usurpation, and, it was never considered 
 that they possessed an inherent power in aid of justice to grant 
 relief in cases outside of the narrow limit mentioned. The power 
 to compel an insjiection of books and papers relevant to the con- 
 troversy, in possession of eitiier party, is of a similar nature to 
 that of an examination of the pei'son, ami, if the inherent power 
 of the court did not extend to the one case, it is ditKcult to sup- 
 pose that it embi-accd tlio othei-. The power to compel a party 
 to submit to an examiuati<jn of his persoii has never been cou- 
 i'erred by any statute. The statutes eontain specitic provisions 
 for the examination of a party on oath befoi'e trial, at the instance 
 of the other j)arty. The omission in these statutes of any refer- 
 ence to the power now under consideration is quite significant. 
 It cannot be said that the exercise of the power claimed might 
 not in some cases promote the cause of justice, and prevent the 
 consummation of fraud. On the other hand, unless carefully 
 guarded, it would be subject to grave objections. But we have 
 to deal oidy with the (juestion of the power of the courts in the 
 absence of any legislation. It is very clear that the power is not 
 a part of the recognized and customary jurisdiction of courts of 
 law or equity. The doctrine that courts have an inherent juris- 
 diction to mould the proceedings to meet new conditions and exi- 
 gencies is true, but in a limited sense. They cannot, under cover 
 of procedure or to accomplish justice in a particular case, invade 
 recognized rights of })erson or pi'operty, Xo court can abrogates 
 an established rule of evidence, as, for example, the rule that 
 hearsay evidence is inadmissible, or the rule of the conunon law 
 that parties shall not be witnesses, or that interest disqualities. 
 They may apply existing rules to new circumstances, xSor is it 
 within the power of the court to create I'emedies unknown to the 
 common law, or institute a j^rocedure not according to the course 
 of the common law. It is most important that courts shoidd pro- 
 
 'Stat. 14 & 15 Vict. chap. 9!»; Stat. 17 & 18 Vict. chap. 12"); N. Y. Rev. Stat. 
 § 21, p 199.
 
 714 EXPERIMENTAL AND OPINION EVIDENCE. 
 
 ceed under the sanction of an orderly and regulated jurifidiction, 
 and that as little as possible should be left to the discretion of a 
 judge. The exercise by the court of the power now invoked, as 
 has been shown, is not sanctioned by any usage in the courts of 
 England or of the states. Its existence is not indispensable to the 
 due administration of justice. Its exercise, depending upon the 
 discretion of the judge, would be subject to great abuse. The 
 assumption by the court of this jurisdiction, in the absence of 
 statute authority, would be an arbitrary extension of its powers. 
 It is a just inference that an alleged power which has lain dormant 
 during the whole period of the English jurisprudence, and never 
 attempted to be exercised in America until within a very recent 
 period, never in fact had any existence.' 
 
 The views and authorities upon this question set forth in the- 
 opinions in Holxrts v. Ofjdensburgli dc L. C. R. Co. 29 Hun, 154, 
 and in TJnion Pac. R. Co. v. BoUford^ l-ll U. S. 250, 35 L. ed. 
 734, are intentionally omitted as they are universally accessible, 
 and it is only necessary here to refer to the cases and opinions for 
 a fuller discussion of the grounds upon which the denial of the 
 power claimed proceeds. 
 
 a. Power to Order K.camination Before Trial. 
 
 The earliest expression on the question appears to have been in 
 1865, when there is a dictum of the Xew York supreme court 
 that in an action to recover damages for personal injuries arising 
 from negligence it is not erroneous for the judge to charge the 
 jury that the defendant had it in his power to examine the actual 
 condition of the plaintiff before trial, and that if he refused to 
 permit an examination the defendant might pi-ove it on the trial.' 
 
 In 1S68 it was decided that in an action for malpractice against 
 a surgeon to recover damages for alleged unskillful operation ujjon 
 the body of plaintiff the court has ])Ower on the application of 
 defcTidant to order plaintiff to submit to a pln-sical exannnation 
 by skillful and comi)etent physicians named by defendant under 
 direction of a referee u[)[)(>iiite(l by the court for that purpose.' 
 
 ^Mcquif/an v. IM,tw<ire, L. ifc M'. Ji. Co. 14 L. K. A. 406, 129 N. Y. SO. 
 ^Beckwith v. Neio YoH- Cent. H. Co. 64 Barl). 291). 
 ■■W<iMt V. Siiyri-, r)2 How. Pr. :«4
 
 AUTHOKITV OK COURT TO ORUKK PHYSICAL EXAMINATION. 715- 
 
 The special iovm of the New York court of common pleas held 
 that after issue joined defendant may examine plaintiff as to the 
 extent of Ids injuries and may obtain from the court the aid of 
 physicians to fliseover by an inspection of tlie plaintiff's person 
 what marks of a permanent character were left by the accident 
 upon plaintiff's body.' That court afterwards i^rantcd such an 
 order." 
 
 Plaintiff has been required bj' the court) upon proper application 
 therefor made by defendant, to submit his person to an examina' 
 tioii for the purpose of ascertaining tlie character and extent of 
 his injuries.' Where plaintiff claims damages by reason of an 
 alleged spinal injury rec^eived through defendant's negligence, 
 such injuries being latent in their nature, the court has, on defend- 
 ant's application, ordered plaintiff" to submit to exairiination by 
 inspection by medical experts produced on the part of defendant. * 
 
 It has been declared within the discretion of the trial court to 
 require plaintiff, suing for a physical injury alleged to be perman- 
 ent,to submit to an examination by competent physicians at the in- 
 stance and at the expense of the defendant in the action, to ascertain 
 the nature, extent, and probable dnration of the injury, so as to 
 afford means of proving the same at the trial.' On the other hand, 
 in 1SS3, the Kew York snpreme court after a careful consideration 
 of the question and review of the cases, reached the conclusion that 
 the court has no power to order plaintiff to submit, before trial, to a 
 physical examination at the instance of the defendant to ascertain 
 the extent of tlie damages received.* That decision has since 
 been followed in that state. ' 
 
 In an action for slander, the alleged publication being that 
 plaintiff, an unmarried female, was unchaste and that she had 
 become pregnant and had procured an abortion, an order requir- 
 ing her to submit her person to a medical examination for the 
 
 KShaw V. Van Rensselaer, 60 How. Pr. 143. 
 
 •Osborn v. Manhattan R. Co. 5 Week. L. Bull. 8. But see McQuigan Y. 
 
 DeUnmre, L. & W. R. Co. 14 L. R. A. 466. 129 N. Y. 50. 
 '^Schroeder v. Chicago, R. I. & P. R. Co. 47 Iowa, 375. 
 
 * Uess V. Lake Shore & M. S. R. Co. 7 Pa. Co. Ct. Rep. 565. 
 
 « Richmond & D. R. Co. v. Childress, 3 L. R. A. 808. 82 Ga. 719. 
 
 • Roberts v. Ogdensburgh <£• L. C. R. Co. 29 Hun, 154. 
 
 "* Neumaii v. I'hird Are. R. Co. 18 Jone.« & S. 412; Savage v. Murray, March 
 Spec. Term, Brooklyn City Ct. 1889.
 
 716 EXPEBIMENTAL AMD OPIKION EVIDENCE. 
 
 purpose of furnishing evidence under defendant's plea of justifi- 
 cation, was decided to have been properly refused. ' 
 
 The Supreme Court of the United States went into the question 
 very fully, and, after considering most of the cases then reported 
 on the subject, decided that in civil actions for an injury to the 
 person the court on application of defendant and in advance of the 
 trial has no legal right or power to order the plaintiff without hi& 
 or her consent to submit to a surgical examination as to the extent 
 of the injury sued for." 
 
 b. Power to Order Examination at the Trial, 
 
 In an action for personal injuries, it is said, the court may, in a 
 proper case, at the trial, direct the plaintiff to submit to a personal 
 examination by physicians on behalf of defendant.' Where plain- 
 tiff in an action for damages for personal injuries alleges that they 
 are of a permanent nature defendant has been held entitled as a 
 matter of right to have the ophiion of a surgeon upon his condition, 
 based upon personal examination; and the court may, upon demand 
 of defendant, compel plaintiff to submit to it. Where the evidence 
 of experts is already abundant the court must exercise a discretion 
 in compelling or refusing the examination, which is subject to re_ 
 view in case of abuse.' In an action for damages for a personal 
 iniurv to the eyes, the plaintiff" having testified, and no medical 
 expert having testified, the court ordered the plaintiff to submit 
 to an examination by a competent expert.* 
 
 In contrast with the above are the following : 
 
 In a suit to recover damages for injuries to plaintift"s eyes the 
 court disclaimed the power to compel the plaintiff to submit his eyes 
 to the examination of a physician in the presence of the jury.* The 
 proposal in a damage suit to have two surgeons called in during 
 proo-ress of the trial to examine plaintiff as to the extent of his in- 
 
 1 Kern v. Bridwell, 119 Ind. 226. 
 
 ■^ Union Pac. E. Co. v. Botxford, 141 U. 8. 250, 35 L. ed. 734. 
 
 'White V Milwaukee City R. Co. 61 Wis. 536, 50 Am. Kep. 154; Atchison, T. 
 
 & 8. F. n. Co. V. Thul, 29 Kan. 466, 44 Am. Rep. 659. 
 *Silden V. t^nith, 46 Ark. 275, 55 Am. Kep. 584. 
 KMrJiiHon, T. tfc S. F. R. Co. v. Thul, 29 Kiin. 466, 44 Am. Kep. 659. 
 ^Paihr V. Endow, 102 HI. 272, 40 Am. Kep. 588.
 
 AUTIlOlU'lvr OF COLIKT TO ORDER IMIVSIOAL EXAMINATION. 717 
 
 juries was declared unknown to the law and the court without 
 power to enforce such order.' 
 
 An application made during the trial may be denied ; if desired 
 it should be made before the trial begins." Where the application 
 was not made until after the close of plaintiff's evidence in chief 
 and the commencement of the introduction of defendant's evi- 
 dence, and no reason is shown for the delay, the motion is prop- 
 erly refused."* Where the application is not made until after the 
 close of plaintiffs evidence, and no reason is shown for the delay 
 in makini>- the application, it will not be error to refuse to order it, 
 especially where the plaintiff offers to submit to a private exani- 
 ination as soon as the attendance of medical experts on his behalf 
 can be secured.* It is proper for plaintift"s counsel to refuse to 
 permit her to be subjected to examination by physicians.* 
 
 In analogy to those cases, it has been held that on a prosecution 
 for the carnal knowledge or abuse of a female child under ten 
 years of age the defendant cannot insist as matter of right that she 
 shall submit to an examination of her person by medical experts, 
 and if such examination can be compelled in any case it is a mat- 
 ter of judicial discretion and not revisable ; the court stating that 
 it may be well doubted in cases of rape and cognate offenses 
 whether the court has the power to make an order compelling the 
 inspection of the private person of a prosecutrix in the event of 
 her refusal to submit to such examination. ' 
 
 c. AjjpUcation of the Rules of Physical Examination. 
 
 It will be noted that although many courts are strenuous in as- 
 serting the existence of the power, the instances where its exercise 
 has been held to be necessary' are rare. The defendants' absolute 
 right to insist on an examination of plaintiff is denied.' It is not 
 an abuse of discretion to overrule a motion for an examination of 
 2)laintiff's person when the application was made only one day be- 
 
 ^Layd v. Hannibal & St. J. B. Co. 53 Mo. 509. 
 
 ■Sttiart V. Havens, 17 Neb. 211, 
 
 "-Miami & M. Tump. Co. v. Baily, 37 Ohio St. 104. 
 
 *Hess V. Lowrey, 7 L. R. A. 00, 133 Ind. 335. 
 
 ^McSwtjny v. Broadway & 8. Ave. B. Co. 27 N. Y. S. R. 363. 
 
 ^McOvff V. State, 88 Ala. 147. 
 
 ■'Norton v. Si. Louis & H. B. Co. 40 Mo. App. 643.
 
 718 experimp:ntal and opinion evidence. 
 
 fore the cause was called for trial and two days after the day for 
 which it was docketed. ' Where a motion to compel plaintiff to 
 submit to an examination is filed on the day before tlie trial and 
 denied at that time, with the statement that if during the progress 
 of the trial it appeared necessary to ascertain the real condition of 
 the plaintiff, such examination would be granted, the faikire of 
 defendant to renew the motion after tlie plaintiff's testimony was 
 in will be an abandonment of it. * 
 
 In a case in Missouri the trial court overruled a motion to re- 
 quire plaintiff to submit her person to an examination by inedical 
 experts in advance of the trial, and the Supreme Court held that 
 there was no abuse of discretion since the evidence in the case- 
 showed a history of plaintiff's health for a large part of her life 
 and also her physical condition since the accident, and what acts 
 she could and what she could not do, and it did not appear that a 
 medical examination could add information which would be of 
 value in the case. ' On the trial of an action for damages for per- 
 sonal injury the court may refuse to order the plaintiff" to submit 
 to a physical examination by the defendant's medical witnesses in 
 private, it not appearing to be necessary and the plaintiff" having 
 alread}^ submitted to an examination by such witnesses in tlie pres- 
 ence of the jury. * 
 
 In Shepard v. Missouri Pac. R. Co. 85 Mo. 629, 55 Am. Rep. 
 890, where the trial court had overruled a motion for the exami- 
 nation of the plaintiff before trial, it was stated that it was in- 
 clined to hold that the court had power to order the examination, 
 but that there was no absolute right on the part of defendant to 
 have it ; and the court held that in that case w4iere a woman had 
 already once submitted to an examination which she stated to have 
 been very painful, and that she feared the result of another one, she 
 would not be compelled to submit to an examination by three phy- 
 sicians, especially where she named one to whose examination she 
 would submit. It is not error to refuse to compel plaintiff to be ex- 
 amined by a physician to whom he expressed an objection, although 
 
 ' Kinney v. Springfidd, 35 JMo. App. 97. 
 
 » Sidekum v. Wabash, St. L. d; P. R. Go. 10 West. Rep. 277, 93 Mo. 400. 
 
 » Owens V. KansaH City, St. J. &. 0. B. M. Co. 95 Mo. 169. 
 
 * Sioux City tfc- R It. Co. v. Finlayson, IG Neb. 578, 49 Am. Rep. 724.
 
 ALTIIORITY OF COUKT TO OKDKK I'llVblCAL EXAMINATION. 719 
 
 tliis objection did not go to the competency or integrity of the phy- 
 sician proposed. ' There was no abuse of discretion in refusing to 
 appoint physicians to visit and examine plaintiff at liis residence 
 upon a motion nuide wliile the case was on trial and plaintiff had 
 introduced all his evidence, where there was nothing in the evi- 
 dence or circumstances which justified it and no affidavit showing 
 that plaintiff had been feigning an injury he had not received. ^ 
 
 The refusal of the trial court to grant an order to compel plain- 
 tiff" to submit before trial to a physical examination at the instance 
 of defendant is not ground for reversal where plaintiff subsequent- 
 ly submitted to an examination by three physicians selected by 
 defendant, where it does not appear that damage resulted from 
 the delay in making the examination. ' A cause will not be 
 reversed for refusal to order an examination, in the absence of a 
 showing that it was necessary to the presentation of all the facts, 
 and where it was not shown that plaintiff was miwilling to submit 
 to an examination by any competent person.* 
 
 Where the application w' as made after the jury was impaneled, 
 the court, without deciding wdiether or not the defendant could 
 in any case demand an examination of plaintiff's person, held that 
 an application should in no case be granted unless the ends of jus- 
 tice imperatively demand it, and never when the party is willing 
 to be examined by competent and disinterested men without such 
 order." 
 
 An expert surgical examination of plaintiff's person was held 
 necessary to the attainment of justice in an action to recover for 
 personal injuries where her physician, after an examination of her 
 person,testiiied to a certain condition of disability as resulting from 
 the facts which he found in the case, and his conclusion was dis- 
 puted by several other reputable surgeons and physicians who had 
 been examined as to their conclusions from facts stated by him ; 
 and it was ordered where it did not involve any ill consequences 
 to plaintiff". jS^either nervous temperament on the part of plain- 
 
 ^Missonn Pac. B. Co. v. Johnson, 73 Tex. 95. 
 
 *Oalesburg v. Benedict, 32 111. App. 114. 
 
 ^Chicago & E. I. B. Co. v. Holland, 11 West. Rep. 51, 122 111. 461. 
 
 ^International & G. Jff. B. Co. v. Undericood, 64 Tex. 463. 
 
 ''Qulf, C. (& S. F. B. Co. V. Norfleet, 78 Tex. 321.
 
 720 EXPKKIMKNTAL A^'D 01*liS'lON EVIDENCE. 
 
 tiff nor delicacy and refinement of feeling was considered a ground 
 for refusing the motion. ' 
 
 In Hatfield v. St. Paul db JJ. R. Co. 32 Minn. 130, the court 
 used the cases permitting a physical examination of plaintiff as an 
 analogy for recpiiring the plaintiff to perform a physical act before 
 the jury. 
 
 d. Manner of EnfovGing tJie Power, and Effect of Disohedienee. 
 
 The court has enforced such order by refusing to try the cause 
 until a compliance is had with the order. * On the refusal of the 
 plaintiff to comply with the order when properly made the court 
 may dismiss the action or refuse j)laintiff the riglit to give evidence 
 to establish the injury. ^ If the court makes an order for the phy- 
 sical examination of plaintiff, and plaintiff' refuses to permit an 
 examination, if the court permits him to further prosecute his suit 
 the fact of plaintiff's refusal is held competent and very potent 
 evidence against him. * If plaintiff unreasonably refuses to show 
 his injuries when asked to do so that fact has been held proper to 
 be considered by the jury as bearing on his good faith. ° 
 
 § 191. Opinion Evidence. 
 
 One engaged in a particular act or business ma\' be accepted 
 as an expert therein if qualified by experience to give an opinion 
 on matters coming within his business observation.' Thus one 
 contracting for the erection of bridges, and an expert in their 
 construction, may express an opinion as to the length of time the 
 material used in their construction will last; and thisoj^inion may 
 be used to test the question of care in the examination and repair 
 of a bridge used by a carrier.' So persons engaged about the 
 
 ^Alabama G. 8. R. Go. v. Hill, 9 L. R. A. 442, 90 Ala. 71. 
 
 »//m V. Lake Shore & M. S. B. Co. 7 Pa. Co. Ct. Rep. 565. 
 
 •^ Miami & M. Tump. Go. v. Baily, 37 Oliio St. 104. 
 
 ■^Kinney v. Sprinfj field, 35 Mo. App. 97. 
 
 <• Union Pac. B. Go. v. BoLford, 141 U. S. 250, 35 L. ed. 734. 
 
 "Chicago & A. B. Go. v. bpnngfield & N. W. B. Co. 67 111. 142; Brown v. 
 
 Providence <fc 8. B. Co. 12 R. I. 238; Kansas Central B. Co. v. Allen, 24 
 
 Kan. 35; Beckwith v. 8ydebotham, 1 Campb. 116, 117; Rice, Ev. 327, 
 
 328, 344, 351, 359. 
 ''Blank v. Livonia Twp. 79 Mich. 1. But such evidence was refused as to 
 
 whether the defective condition of a bridge caused an accident, in Toledo, 
 
 P. & W. B. Go. V. Conroy, G8 111. 560.
 
 OPIXKJN EVIDENiDE. 721 
 
 business of transportation and experienced in railroad matters, 
 may express opinions in matters involved within their line of ex- 
 perience.' The master of a vessel, engaged and experienced in 
 sailing, may testify as to his belief in the capacity of an officer 
 <;mployed by him,* and as to pinidence and good seamanship.* 
 So, one accnstomed to observe moving objects and form an esti- 
 mate of their rate of speed, is competent to give his own opinion 
 Hs to the rate of speed at which a particular train was moving at 
 the time of an accident/ But opinions on certain speed, without 
 some standard of rapidity, are of no value by themselves." 
 
 In all cases, the question of the qualification of the one asked 
 to express an opinion as an expert, is one for the court, and the 
 decision thereon is final, unless error of law appears.' Practical 
 knowledge must be shown to permit introduction of the witness' 
 opinion.' 
 
 While the case may be hypothetically stated to one qualified to 
 give an opinion, or the case, as established by the facts, may be 
 submitted for an opinion; yet, the witness may not determine 
 from tlie evidence, w^iat the facts are — expressing an opinion upon 
 them. ' It is not proper that the expert should state that he had 
 heard the testimony of the witness, as a basis for his opinion with- 
 out stating the particular points upon which he rests his conclu- 
 sion.' 
 
 A medical witness may give his opinion as to the permanence 
 of a personal injury from his own personal knowledge, derived 
 
 'A7. Wortli cfeZ>. C. R. Co. v. Thompson, 75 Tex. 501. 
 
 ^Hutchins v. Fo^'d, 82 Me. 363. 
 
 ^Unionlns. Go. v. Smith, 124 U. S. 405, 31 L. ed. 497; Van Pelt v. The 
 
 Alaxka, 33 Fed. Rep. 107; Fenwick v. Bell, 1 Car. & K. 312; Price v Pow- 
 
 ell,--iN. Y. 332. 
 ^Detroit & M. R. Co. v. Van Sieinburg, 17 Mich. 99; Pence v. Chicaqo R 
 
 I. &P. R. Co. 79 Iowa, 389. 
 ''Chief Justice Campbell, in Grand Rapids & 1. R. Co. v. Hvntley 38 Mich 
 
 540. 
 ^Perkins v. Stickney, 132 Mass. 218 ; Mines v. Perry, 113 Mass. 374 276 ; 
 
 Com. V. Sturtivant, 117 Mass. 122. " ' 
 
 ''St. Louis d:S. F. R. Co. v. Edwards, 26 Kan. 72; Manhattan, A. d; B. R. 
 
 Co. V. Stewart, 30 Kan. 226; Shattuck v. Train, 116 Mass. 296; Dole v. 
 
 Johnson, 50 N. H. 452; Brownell v. People, 38 Mich. 732; Slate y. Secrest 
 
 80 N. C. 450; Castner v. Sliker, 33 N. J. L. 95. 
 « Dexter v. Hall. 82 U. S. 15 Wall. 9, 36, 21 L. ed. 73, 79. 
 « Keyser v. Chicago & 6. T. R. Co. 66 Mich. 390. 
 46
 
 722 EXPERIMENTAL AND OPINION EVIDENCE. 
 
 from liis attendance on and observation of the person injured, and 
 it is not necessary that he should give his opinion, in such case,. 
 on a hypothetical state of facts. Where it appears in an action 
 for personal injuries, that a physician was called to attend plain- 
 ti£E on the day of her injury, and continued to attend her to the 
 time of trial, the physician is competent to testify that, in his 
 opinion, plaintiff's injuries are permanent. ^ But the opinion of a 
 physician, who has made an examination of a person claiming to 
 have been injured, as to whether the absence of external appear- 
 ances of injury is consistent with his medical books, is improper, 
 inasmuch as the books themselves are the best evidence of their 
 contents. ' 
 
 %192. Evidence of Defects at Other Places or 
 
 Times. 
 
 Evidence as to the defective condition of a railroad track or 
 bridge, by reason of which, it is claimed, an injury was inflicted 
 upon the passenger, must be confined to the condition of the track 
 at the time and place of the accident, and evidence of the state of 
 the track elsewhere or of previous accidents, is ordinarily inad- 
 missible. But peculiar circumstances from which fair inferences 
 may be drawn, as to the existing condition at the locality of the 
 accident at the time thereof, may authorize an extension of the 
 inquiry to other points and times. ^ 
 
 In an action appealed to the Supreme Court of Kentucky, the 
 evidence showed that the road was divided into sections of sev- 
 eral miles in extent, and the immediate supervision of the track 
 in each committed to a section boss. The accident occurred on a 
 section under control of one Howard, a section boss, and the 
 plaintiff was permitted to prove against the objections of the de- 
 fendant that other portions of Howard's section were in a bad 
 condition. The court says : ''The portions of the track to which 
 that evidence related were so remote from the scene of tlie acci- 
 dent that they could not have contributed to it in any degree 
 
 > Coyne v. Manhattan R. Co. 42 N. Y. S. R. 617. 
 
 » Blair v. Madison County, 81 Iowa, 313. 
 
 " Little liock & Ft. S. R. Co. v. Eubanks, 48 Ark. 400; Misnouri Pac. R. Co. 
 
 V. Mitchell, 75 Tex. 78; TetJwrow v. St. Joseph d- B. M. R. Co. 98 Mo. 74; 
 
 Clapp V. Minneapolis dc St. L. R. Co. 30 Minu. 6.
 
 EVIDENCE OF DJCFECIS AT OTlUni J'LACES OK TIMES. 723 
 
 whatever. The general eoiiditiuu of tlie road was not involved 
 in the issue to be tried. The t|uestioii was whether the train had 
 been thrown from the track in consequence of the negligence of 
 the company or its agents or servants, and evidcn. .^ of negligence 
 or carelessness which could not have contributed to that result 
 was clearly incompetent." In Grand Rapids & I. li. Co. v. 
 Huntley^ 38 Mich. 540, 31 Am. ilep. 3-21, tiie injury was caused 
 by a passenger car being thi-own fi-om the track and upset. The 
 testimony showxxl that the mischief was caused by the breaking 
 of an axle containing a large Haw within the wheel, or near its 
 edge. Testimony was intro(lu(;ed bearing uj^on the condition of 
 the cars and track, and the speed of the train, etc. The court 
 says : "We are also of o[)inion that no defects in the track could 
 be relied on to show negligence contributing to the accident, ex- 
 cept those existing where tlie track was injured or displaced; and 
 that testimony as to the condition of the road away from the scene 
 of the injury was improper to ]nake out a cause of action and 
 could only tend to raise false issues. The testimony should be 
 confined to the time as M-ell as the place of the accident." ' In 
 these cases it will be observed that the general condition of the 
 track was not involved in the issue to be tried, and that the other 
 portions of it to whicli the objectionable evidence related were too 
 remote to have contributed in any way to the accident. In 
 Leonard v. Southern Pac. R. Co. 15 L. R. A. 221, 21 Or. 555, 
 the bridge is one continuous structure, made of bents and string- 
 ers and no part of it wholly independent of the other. The com- 
 plaint charges that the lake across which the bridge was built was 
 a low, wet, marshy place, well suited to cause the decay of bridge 
 timbers and that the character of its soil was such as to prevent 
 adequate foundation or stability of structure for a railroad bridge; 
 that the defendant knew this, but permitted the bridge to stand, 
 and used it to pass over trains when the timbers and materials 
 were worthless and decayed; and that it was by reason of such 
 unstable foundation, its improper construction, and the failure to 
 make proper repairs, etc., that the bridge gave way underneath 
 the train and caused the injury. 
 
 ^Mbrse v. Minneapolis & St. L. R. Co. 30 Minn. 465; Heed v. New York Gent. 
 R. Co. 45 N. Y. 574j Jones v. Portland {Wich.) 16 L. R. A. 437.
 
 72:1: EXPERIMENTAL AND OPINION EVIDENCE. 
 
 It is thus seen that the general condition of the bridge as one 
 structure is involved in the issue to be tried, and all evidence as 
 to its construction, the instability of its foundation and condition, 
 tending to show that it was unfit and unsafe, and liable to cause 
 the injuries complained of, was clearly relevant and admissible. 
 In such case, the principle invoked by the autliorities cited, to the 
 effect that defects in other portions of a railroad track, not in- 
 volved in the issue to be tried, nor connected with the place of 
 injury, but so remote therefrom that they could not in any way 
 have caused the injury, can have no application. ' 
 
 Undoubtedly evidence of a defective hand-hold of a car, after an 
 accident caused by it, is admissible." Evidence of the existence of 
 a defect in a street car, prior to an accident to a passenger suing 
 for injuries, is competent to show the negligence of the company 
 in not taking effectual steps to remedy it.^ But, upon the issue of 
 whether a certam platform was suitable and safe, evidence that 
 platforms and scaffolds of the same width, but erected under dif- 
 ferent conditions, were commonly used is inadmissible.* In the 
 matter of time, testimony by the station agent that he does not 
 know of any change in a switch between the time of an accident 
 and of measurement taken nearly fourteen months afterwards, is 
 sufficient foundation for the introduction of such measurements.* 
 But e%ddence that a side track on which plaintiff was injured by 
 collision with posts set thereon, had been originally part of the 
 way as travelled by vehicles, is irrelevant; the question in issue 
 being, the condition of the way at the time of the injury." 
 
 Evidence of the condition of the defects in a raih-oad track some 
 months after an accident — alleged to be due to such defects — is 
 admissible in connection with other evidence, showing that the 
 condition of the track remained substantially the same.' Measure- 
 ments of the rails of a street car track, made from one to five 
 months afterwards, may be admitted to show the condition at the 
 
 »See Louisville & N. R. Co. v. Fox, 11 Bush, 505. 
 
 ^Gutridge v. Missouri Pae. It. Co. 105 Mo. 520. 
 
 aC'/irtse V. Jamestown St. II. Co. 38 N. V. S. K. 954 
 
 *Fugler v. Bothe, 43 Mo. App. 44. 
 
 '-Brooke v. Cldcngo, 11. I. &. P. R. Co. 81 Iowa, 504. 
 
 ^Uebert v. JSorthnmpton, 152 Mass. 266. 
 
 "'Jacksonville & 8. E. R. Co. v. Southxeorth, 135 111. 250.
 
 CHANGES MADE BY CARRIKK AFTER ACCIDENT. 725 
 
 time of !in accidiMit. wIktc tliere is evidence tliat the condition 
 coitiniud the same. ' 
 
 Evidence of tlie condition of tlie I'oad-bed, immediately before 
 -iiid at the time a wreck occurred, at a place other than that of the 
 wreck, is inadmissible in an action for in jnry cansed by a wreck.* 
 Evidence of the condition of tlie railroad track at a place other than 
 that at which the accident in question liappened, is inadmissible 
 upon the condition of the track at the latter place.' 
 
 It is Competent to show in an action against a railroad company 
 for damages for personal injuries, alleged to have been caused by 
 the rapid rnnniiig of a train, the condition of the track over which 
 the ti-aiii had to i)ass before reaching the place of accident." Tes- 
 timony as to the management and sj^eed of an engine at a crossing 
 three tpiarters of a mile fi'om a placp where an accident has hap- 
 pened, is properly admitted as tending to show its inanagement 
 and speed at the latter Avithin a minute or so thereafter. " 
 
 In action to recover damages for a faulty switch, the person 
 may testify at what place his foot had become fastened between 
 the rails, where the shoe worn by deceased was before the jury 
 and could be comjiared >vith that of the witness." 
 
 § 19o. Chari'ies Made bij Carrier after Accident. 
 
 Upon the (pje>tion whether, in an action for injuries eansed by 
 nuu'hincry alleg«Mi to be negligently constructed, a subsequent 
 alt(M-ation or i'ej)air of the machine 1)y the defendant is competent 
 evidence of negligence in its original construction, there has been 
 some ditferenee of opinion in the courts of several states. It is 
 now settled, u]K)n much consideratioii, by the decision of the 
 Supreme Court of the United States, ' and by decisions of the 
 higliest courts of most of the states in which the question has 
 arisen, that the evidence is incompetent, because the taking of 
 such precautions against the future is not to be construed as an 
 
 ^Birvdngham Union li. Co. v. Alexander, 93 Ahi. 1:33. 
 
 * Taylor, B. & H. R. Co. v. Taylor, 79 Tex. 104. 
 
 ^Qrant v. Raleigh d- O. R. Co. 108 N. C. 462. 
 
 *Jacksomille & 8. E. li. Co. v. Smithicorth, lo5 111. 3")0. 
 
 "Lyman v. Boston & M. R. Co. (N. II.) 11 L. K. A. :364. 
 
 *Brooke v. Chicago, R. 1. &. P. R. Co. 81 lowii, o04. 
 
 "^Columbia & P. S. R. Co. v. IIa>cthortie, 144 U. S. 202, 3G L. ed. 105.
 
 726 expekimejSital axd opinion evidknce. 
 
 admission of responsibility for the past, has no legitimate tendency 
 to prove that the defendant had been negligent before the acci- 
 dent happened, and is calculated to distract the minds of the jury 
 from the real issue, and to create a prejudice against the defend- 
 ant. ' 
 
 As was pointed out by the court in the last case, the decision in 
 Readman v. Conway, 126 Mass. 374, 377, has no bearing upon 
 this question, but simply held that in an action for injuries from 
 a defect in a platform, brought against the owners of the land, 
 who defended on the ground that the duty of keeping the plat- 
 form in repair belonged to their tenants and not to themselves, 
 the defendants' acts in making general repairs of the platform 
 after the accident " were in the nature of admissions that it was 
 their duty to keep the platform in repair, and were therefore 
 competent." 
 
 The only states, in which subsequent changes are held to be 
 evidence of prior negligence, are Pennsylvania and Kansas, the 
 decisions in which are supported by no satisfactory reasons. " 
 
 The true rule and the reasons for it were well expressed in 
 Morse v. Minneapolis & St. L. R. Co. al>ove cited, in which Mr. 
 Justice Mitchell, delivering the unanimous opinion of the Supreme 
 Court of Minnesota, after referring to earlier opinions of the same 
 court the other way, said: "But, on mature reflection, we have 
 concluded that evidence of this kind ought not to be admitted 
 under any circumstances, and that the rule heretofore adopted by 
 this court is on principle wrong; not for the i-eason given by some 
 courts, that the acts of the employes in making such repairs are 
 not admissible against their principals, but upon the broader 
 irround that such acts atford no legitimate basis for construinir 
 such an act as an admission of previous neglect of duty. A per- 
 son may have exeivi.sed all the care wliich the law required, and 
 yet, in the light of his new experience, after an unex|)ected acci- 
 
 ^Morne V. MiuKCipolis & St: L. R. Co. :50 Minu. 465; Corcoran v. PcekiskiU, 10 
 Cent. Hep. 493. 108 N. Y. 151: NuUi'ii v. IlartfonI Carpet Co. 51 Conn. 
 524; Elyv. St. Jj/uix, K. <■. & N. U. Co. 77 Mo. 'di\ Mhmtiri Pac. 11. Co. v. 
 llcmunney, 75 Tex. 155; Terre Ilante tt 1. li. Co. v. Cktn, 7 L. R. A. 58y, 
 V^'.i Ind. 15; Jlodnex v. Perdial. 1^2 III. 53; Loiahar v. Eaat Tainax, 80 
 Mich. 14; Sfdniierit v. Projniefors of Lock.i tt Cunalx, 12 L. R. A. 554, 154 
 Ma.s8. 168. 
 
 KMcKee v. Bidicell, 74 Ph. 218, 225, and cases ciled; 67. Louis d- S. F. R. Co. 
 V. \Vmr>'r, :55 Kan. 412.
 
 CHARGES MADE BV CARKIEU AKTKK AUCIDENT. 727 
 
 dent has occurred, and as a measure of extreme caution, he maj 
 adopt additional safeg-uards. The more careful a person is, the 
 more regard he has for the lives of others, the more likely he 
 would be to do so, and it would seem unjust that he could not do 
 so without being liable to have such acts construed as an admis- 
 sion of prior negligence. We think such a rule puts an unfair 
 interpretation upon human conduct, and virtually holds out an 
 inducement for continued negligence." ' 
 
 It is said: "To declare such evidence competent is to offer an 
 inducement to omit the use of such care as new information may 
 suggest, and to deter persons from doing what the new experience 
 informs them may be done to prevent the possibility of future 
 accidents." ' Other cases determine that such evidence is open 
 to the objection that it raises distinct and independent issues for 
 the consideration of tlie jury. ' 
 
 The same rule appears to be well settled in England. In a case 
 in which it was affirmed by the Court of Exchequer, Baron Bram- 
 well said : " Peoj^le do not furnish evidence against themselves 
 simply by adopting a new plan in order to prevent a recurrence 
 of an accident. I think tliat a proposition to the contrary would 
 be barbarous. It would be, as I have often had occasion to tell 
 juries, to hold that, because the world gets wiser as its gets older, 
 therefore it was foolish before."* 
 
 ' Mone V. Minneapolis & St. L. E. Co. 30 Minn. 365, 468. 
 
 » Terre Haute <& I. R. Co. v. Clem, 7 L. E. A. 588, 123 Ind. 15. 
 
 • Nalley v. Hartford Carpet Co. 51 Conn. 524, 50 Am. Rep. 47; Payne v. 
 
 Troy & B. B. Co. 9 Hun. 526; Ely v. St. Lords, E. G. & N. B. Co. 77 Mo. 
 34; Reed v. New York Cent. B. Co. 45 N. Y. 574; Standard Oil Co. v. 
 Tierney (Ky. ) 14 L. R. A. 677; Lang v. Sanger, 76 Wis. 71. 
 
 * Hart T. Lancashire <£• T. R. Co. 21 L. T. N. S. 261, 263.
 
 CHAPTER XXXVI. 
 
 NEGLIGENCE TOWARD CHILDREN— IMPUTED NEGLIGENCE. 
 
 § 194. Evidence of Carriers Negligence toioards Cliildreoi. 
 § 195. When Negligence of A?iother will he Imputed to the Passenger, 
 a. Eecovery Denied in an Action for the Benefit of the 
 Child. 
 § 196. By Parent or Master for his Own Benefit. 
 ij 197. Wliere the Action is for the Benefit of the Child. 
 § 198. What is Negligence of the Parent or Guardian. 
 § 199. Recovery hy Wife in Case of Husband's Negligence. 
 § 200. Recovery where Wife Sues. 
 § 201. Action by Husband and Children. 
 § 202. Negligence of Driver not Imputed to Guest or Passenger, 
 % 203. Where Each of Two Carriers is Negligent, or Wiere One only is. 
 
 § 194' Evidence of Carrier's A^egligence towards 
 
 Children. 
 
 Evidence t-liat tlie carrier, having accepted as a passenger a cliild 
 I »t" tender years, lias failed to warn him of danger, either in enter- 
 ing the conveyance, or in occupying an unsafe position, or in ex- 
 posing himself to danger in leaving the carriage, — will charge the 
 <-arrier with responsibility.' The unquestioned rule is, that neg- 
 ligence cannot be charged to a child of tender years.* Negligence 
 cannot be imputed to one who has not sufficient capacity or dis- 
 cretion to understand danger and use proper means to guard 
 against it.^ 
 
 ^Ridenhour v. Kamaa City Cahlv R. Co. 103 Mo. 283; Wilton v. Middlesex R. 
 
 Co. 107 Mass. 108; Crisxey v. JJcsfonviile, M. & F. Pass. B. Co. 75 Pa. 83; 
 
 Maker v. Central- Park, N. tfc K. R. Co. 67 N. Y. 52; Hemingway v. Chi- 
 
 mqo, M. tf- -SV. P. R. Co. 72 Wis. 42; Metropolitan R. Co. v. Moore, 83 Ga. 
 
 453; Eaht S-if/inaw City R. Co. v. Bohn, 27 Mich. 503. 
 •■.SUjne V. Dry Dock, K. B. d- B. R. Co. 115 N. Y. 104; Bradford v. Downs, 
 
 126 Pa. 022; Dealey v. Mtdler, 149 Mass. 433; Westbrook v. Mobile dt 0. R. 
 
 Co. 06 Miss. 500. 
 
 *Ridtn/iour v. Kansas Citij Cable R. Co. 102 Mo. 270. But see Casey v. 
 8mith, 9 L. li. A. 259 and note, 152 Mass. 204. 
 
 728
 
 EVIDKNOK OF CAKKlKu's .N KGI.iGKNCt TUWAKI>S CllllJjJitN. T2i) 
 
 'J'lie 1-igid rule in dotennining what M'ould be a har to an action 
 on tiie i!i-ound of conti-ibntory negligence is not applied to an in- 
 fant. All that is recpiired is care and prudence according to its 
 capacity.* A child of such- tender years as to be incapable of ex- 
 ercising any judgment or discretion is not chargealtle with con- 
 tributor}' negligence; but where he has attained such an age as to 
 be capable of exercising judgment and discretion, he is held to 
 such a degree of care as might be reasonably expected of one of 
 his age and mental capacity." 
 
 The question of when the responsibility of personal judgment 
 is cast upon the child, is usually one of fact for the jury.^ The 
 <piestion of care and diligence to be exercised by an infant, and 
 of contributory negligence on his part, is for the jur^^* The law 
 does not require from a child that degree of care and caution 
 which it demands from an adult; the jury must in such cases 
 decide as to the question of contributory negligence; and the ques- 
 tion as to age and responsiliility is to be tried by the jury." 
 Where evidencie as to contributory negligence is conflicting, it is 
 for tbe jury to say Avhether the plaintitt', a girl of six years and 
 seven months, used such care as is reasonably expected of one of 
 her years/ But there have been expressions in some of the de- 
 cisions, in which the court has apparently assumed to determine 
 that the child of a particular age is not to be presumed to be inca- 
 pable of self protection. ^ It has b(!en suggested that the criminal 
 law, fixing the ages between seven and tVmrteen as a limit Mithin 
 
 ^Dxiffy V. Missouri Pac. R. Co. 2 West. Rep. 200, 301. 19 Mo. App. aSO; In- 
 dianapolis, P. tfe a. B. Co. V. Piizer. 4 West. Rep. 2.56, 109 Ind. 191; Col- 
 linn V. Sovth Boston Horse B. Co. 3 New Eng. Rep. 649, 142 Mass. 301; 
 Mliff V. Wahmh, St. L. cfc P. R. Go. 7 West. Rep. 463, 64 Mich. 196; 
 Finklestein v. Neic York Cent. & H. B. B. Co. 41 Hun. 34; Taylor v. Del 
 aware it U. Canal Co. 4 Cent. Rep. 638, 113 Pa. 163. 
 
 ^Cleveland Boll. Mill Co. v. Corrigan. 3 L. R. A. 385, 46 Ohio St. 283; Horn 
 ton <fe T. C. B. Co. V. Boozer, 70 Tex. 530, 8 Am. St. Rep. 615; Praft C. 
 & I. Co. V. BrawU'y, 83 Ala. 371, 3 Am. St. Rep. 751; Kansas Pac. R. Co. 
 V. Whipple, 39 Kan. 531. 
 
 ^Ktcnz V. Troy, 104 N. Y. 344; Stone v. Dry Dock, E. B. & B. B. Co. 115 N. 
 Y. 104; Bridyer v. AshvUle tD <S'. B. Co. 35 S. C. 34: Mangam v. Brooklyn. 
 B. Co. 38 N. Y. 455. 
 
 *Saare v. Union B. Co. 3 West. Rep. 538, 30 Mo. App. 211, ciWn^ Duffy v. 
 Missouri Pac. B. Co. 3 West. Rep. 198, 19 Mo. App. 380. 
 
 *Duffy V. Missouri Pac. B. Co. 2 West. Rep. 198, 19 ]Mo. App. 380. 
 
 ''Mattey v. Whittier Mack. Co. 1 New Eng. Rep. 483, 140 .Mass. 337. 
 
 "> McMa/ion v. Netc Yvrk, 33 N. Y. 643; Cosgrote v. Ogdeu, 49 N. Y. 255.
 
 ioU NEGLIGENCE TOWAKU CHILDREN IMPDTED NEGLIGENCE. 
 
 -whicli capacity for coinmiting a crime might be attributed to the 
 ^hild, should be taken into consideration in determining responsi- 
 bihty in civil cases; and tliat natural capacity, physical condition, 
 training, habit of life and surroundings, — with other circumstan- 
 •ces, may be fairly considered by the jury in determining the ques- 
 tion of responsibility.' 
 
 In a late case the judge charged the jury that "the laAv declares 
 that an infant under the age of ten years ])rinia facie does not 
 Jiave sufhcient capacity and discretion and knowledge of right and 
 wrong to make her responsible for her conduct and acts, unless it 
 is clearly shown that she had such capacity and discretion. The 
 presumption is that she did not have sufficient capacity to be sen- 
 sible of danger, and to have the power to avoid it, and this pre- 
 sumption continues nntil overcome by proof showing the contrary." 
 This charge Mas excepted to by the defendant, and assigned as 
 error in its motion for a new trial. In commenting upon the 
 charge the court says that where a child under fourteen years of 
 age is injured, and brings his action for the injury and there is a 
 demurrer tt* the declaration on the ground that the allegations 
 therein show that tlie child did not observe due care, or could have 
 avoided the injury by the observance of such care, the court may 
 overrule the demurrer on the ground that prima facie the child 
 -did not have sufficient knowledge or capacity to know what was 
 due care, or sufficient capacity to have avoided the injury by its 
 ■observance, and may invoke the analogy of the criminal law, and 
 hold that the presumption is that the child did not know or did not 
 have sufficient capacity, as was held in another case. * But where 
 there is j)o demunvr, and the case is submitted to the jury, there is 
 no presumption one waj' or the other, and the jury must find from 
 the evidence whether the child had sufficient cai)acity at the time of 
 the accident to know the danger, and to observe due care for its 
 -own protection. If it has such capacity, and voluntarily goes 
 into danger or to a dangei'ous place, it cannot recover; otherwise 
 it can. ^ It was said that it depends altogether upon the capac- 
 ity of the child at the time of the injury. The better rule would 
 
 'Kunzy. Troy, 104 N. Y. ;M4. 
 
 •'Rhodeii V. Geori/ia It. A Bkg. Co. 84 Ga. 320. 
 
 » Western d- .1. R. Co. v. Yuung, 81 Ga. 31>7, »8 Ga. 512.
 
 WHKX NKGl.IGKNCE OF A^■OTHEK WILL BK IMl'L TKD. 131 
 
 he for the jury to deal with each case upon its own facts, unham- 
 pered by presumptions of law either for or against the competency 
 of the child. ' 
 
 § 19^. WJien J\''egligence of Another will he Im- 
 puted to the Fassenger. 
 
 Sonie of the courts declare the law to be, that where the pas- 
 senger, a child — or one wanting in mental capacity to properly 
 care for himself — and is injured, the parent or guardian will be 
 responsible for any neglect to take such reasonable care of the 
 child or ward, as would have made up for the immature judg- 
 ment, or the deficient mental capacity of the passenger ; and that 
 such negligence, on the i>art of the parent or guardian, may be 
 imputed to the child or imbecile, and relieve the carrier from the 
 charge of negligence causing the injury, where the want of such 
 care has contributed to the accident. ' 
 
 The leading case establishing the doctrine of imputed negli- 
 gence, is Hartfield v. RojKr, 21 Wend. 615, and the leading case 
 denying the doctrine is Robinson v. Cone, 22 Yt. 213, where a 
 boy three years and nine months old was run over and injured by 
 a sleigh while sliding down a hill on a highway, lying on his 
 breast on a sled.* 
 
 a. Recovery Denied in an Action for the Benefit of the Child. 
 
 It is ruled, by courts taking the extreme ground in imputing 
 negligence, that an infant of tender years (here about nine years 
 of age), receiving an injury while being driven in a carriage by its 
 father, and while in its fathers actual control, is affected by neg- 
 ligence of the father contributing to the injury.* An infant 3 
 years old was injured on board the steamship Burgundia by the 
 rudder chain, which ran into an open box on the main deck. He 
 
 ^Gentral R. c6 Bkg. Go. v. Rylee, 13 L. R. A. 634, 87 Ga. 491. 
 
 'Gibbons v. WiUiams, 135 Mass. 335; Mfxnenger v. Dennie, 137 3Ias8. 197; 
 Leslie V. Leiciston, 62 Me. 468; Morrison v. Erie R. Co. 56 N. Y. 302; 
 Toledo, W. & F. R. Co. v. Grable, 88 111. 442;*S(!t%o/i v. Hannibal & St. J. 
 B. Co. 67 Mo. 674; Hathaimiy v. Toledo, W. & W. R. Co. 46 Ind. 25; At- 
 chison, T. & S. F. R. Go. V. Smith, 28 Kan. 542; Meeks v. Southern Pac. 
 B. Co. 52 Cal. 603; Louisville & P. Canal Co. v. Murphy, 9 Bush, 522. 
 
 *See Boss v. Litton, 5 Car. & P. 407. 
 
 ■*Kyne v. Wilmington & N. R. Go. (Del.) 13 Cent. Rep. 391.
 
 had been left l>y his nurse alone, and when hurt he was in a part 
 of the ship where lie had no right to he. It was ruled that the 
 fault rested with those who had charge of the child, and that the 
 vessel was not liable for the in jurv.' 
 
 The negligence of the custodian of a child too young to be 
 capable of caring for itself, in permitting it to go improperly 
 attended upon a public street, will be imputed to the child in a 
 suit by it to recover damages for injuries inflicted upon it while 
 there, through the negligence of a third person. Permitting a 
 child three years old to go u])on a public street crowded with 
 vehicles to await the coming home of its father, who is n(jt expected 
 for at least liftj minutes, accompanied only by its brother between 
 seven and eight years old and its sister about five years old, is such 
 negligence as will preclude a recovers- of damages by the child in 
 case it is run o\er and injured by a third ])ers(>n, the circumstances 
 being such that an adult in its ])lace would ha\ e escaped unhurt. 
 Where the accident Avas caused wholly or in part 1>y failure of 
 the child to exercise such care as an adult person of ordinary pru- 
 dence would have exercised under like circumstances, that fact 
 would not prevent his recovery if he was of su(;li age and iTitelli- 
 gence that he could properly be alone on the strt^et, and if he used 
 the ordinary care of boys of his age; but if he was too young to 
 take care of himself, and was negligently jiermitted to be on the 
 street, and if he was hurt when an adult in his place would not 
 have been, the negligence whereby he came there would be held 
 to have contributed to the accident. In such a case his presence 
 there would be a cause, and not merely a condition, of the acci- 
 dent. If a child is too young to be capable of caring for himself, 
 it is the duty of his proi:)er custodian to care for him, and in a suit 
 to recover for an injury caused 1)y the negligence of another, if 
 his custodian Avas guilty of negligence, that negligence is imputed, 
 to him in coin-ts holding the extreme doctrine.' 
 
 § I0(). Bij Parent or Master for His oivii Benefit. 
 
 AVhere the recovery is sought — for his own benefit — by the 
 
 parent or ma.»ter who has been guilty of negligence, the action 
 
 >7V/« Burf)undia, 29 Fed. Rep. 464. 
 
 '(Janey v. Smith, 9 L. H. A. 25Ji, 152 Mass. 294. See also OoUim v. South 
 
 Boxton 11. It. Co. 2 New Kiig. Kei). 649, 142 Mass. ;J14; (Hbbom v. Willr 
 
 iuinx, Vi^U Mass. 335; Li/rich v. Smith, 104 Mass. 57.
 
 WIIKKi; ACTION' IS I'UU JJKNKKIT OK CHILD. 73^^ 
 
 may be defeated by his fault.' A recoveiy cannot be had for the 
 death of an infiint, caused bv a collision of tiie Itno^fjy in which he 
 was ridiuij,-. at a raih'oad crossino-, where the statutory siijuals were 
 <^iven, and the father of the infant, who was driving, was guilty 
 of negligence in attempting to cross after he had seen or could, 
 by the exercise of ri'Jisoiiable diligence, have seen the train and 
 heard the signals.' 
 
 A pai'ent is chargeable with tlie negligent and wrongful acts of 
 the person to whom he intrusts the custody and care of his nunor 
 child. Hence the negligence of a grandmother permitting her 
 grandchild to trespass on a raih'oad track where trains are con- 
 stantly passing is a liar to a recovery for injuries to the child, in an 
 action brought by the father, M-ho had placed the child in the care 
 and custody of the gi-andniother.' 
 
 § 197. WheT6 Action is for Benefit of Child. 
 
 The doctrine of imputed negligence has been somewhat modi- 
 fied in some of the jurisdictions in which it has obtained. Thus, 
 in Maryland it was held that a child 7ion sui juris might recover.* 
 Where the action is brought for the benefit of the child, the 
 rule perhaps best supported by authority, if not by piinciple. 
 is, that the negligence of the parent can not defeat the 
 action. * Negligence of parents, or others standing in loco 
 ^Mi'entis^ cannot be imputed to a child of tender years, so as to 
 support the defense of contributory negligence in his suit for 
 
 ^Sh-ie City Push. E. Co. v. Srhmter, 113 Pa. 412; Bellefoniaine <& I. R. Co. v. 
 Snyder, M Ohio St. G70; Wyvwre v. MaJiaska County, 6 L. R. A. 545, 78 
 Iowa, 398; Hufv. .\mes, 16 Neb. 139; Winter v. Kanms City Cable B. 
 Co. 6 L. R. A. 536, 99 Mo. 509; Pratt C. & I. Co. v. BratcUy, 83 Ala. 
 375, 3 Am. St. Rep. 751 ; WiUiaim v. South & North Ala. R. Co. 91 Ala. 
 635; Albertson. v. Keokuk & I). M. R. Co. 48 Iowa, 293; Burst v. Detroit 
 City R. Co. 84 Mich. 539. 
 
 ''Apsey V. Detroit, L. & N. R. Co. 83 Mich. 432. 
 
 •'■Pratt C. & I. Co. V. Brawley, 83 Ala. 371, 3 Am. St. Rep. 751. 
 
 ■^Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 535; McMahon v. North- 
 ern Cent. R. Co. 39. Md. 439. 
 
 ^Boland v. Missouri R. Co. 36 Mo. 484; Winter v. Kansas City Cable R. Co. 
 6 L. R. A. 536, 99 Mo. 509; Bromon v. Southbury, 37 Conn. 199; Crissey 
 V. Uestonville, M. & F. Pass. R. Co. 75 Pa. 83; San Andrisso & A. Pass. 
 B. Co. V. Moore, 79 Tex. 643; Norfolk & P. R. Co. v. Ormsby, 27 Gratt. 
 455; Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534; BelkJ'ontainr 
 iSb 1. R. Co. V. Snyder, 18 Ohio St. 399, 24 Ohio St. 670; Walters v. Chi- 
 cago, R. I. & P. R. Co. 41 Iowa, 71; Erie City Pass. R. Co. v. Schuster, 113 
 Pa. 412; Whirley v. Whiteman, 1 Head, 620.
 
 734 NEGLIGENCE TOWARD CHILDREN IMPUTED NEGLIGENCE. 
 
 damages. * A child of tender years is not precluded from recov- 
 ering damages for an injury which might have been avoided by 
 the exercise of ordinary care by defendant, from the fact that hie 
 parent or guardian allowed him to place himself in a position of 
 danger without a custodian under this rule." 
 
 An infant of tender years is not to be charged with the neg- 
 ligence of the person having it in charge. ^ The negligence of a 
 larger sister cannot be imputed to a child who is injured while in 
 her care. * A parent's negligence, while it may bar an action for 
 his own benefit for injuries to the child, cannot be imputed to the 
 child when the latter sues, or when suit is brought for his benefit. ' 
 
 § 198. What is Xegligence in the Parent or 
 Guardian. 
 
 It will generally be a question of fact, as to the exercise by the 
 parent or guardian, under the special circumstances, of proper 
 care of the child. It has been said that the parents of a child 
 seven years old on shipboard are not bound to such care as shall 
 make it impossible for the infant to stray into danger; and if they 
 have exercised reasonable care, he wiU not be precluded from 
 recovering for injuries received, while following his father on the 
 deck, by putting his foot on a rudder chain negligently left 
 exposed, by which his leg was drawn into a sheave or block and 
 crushed. * But it is negligence to permit young children aboard 
 a tugboat, without taking adequate precautions to avoid all acci- 
 dents. * 
 
 It is said by one court that parents are not guilty of contribu- 
 tory negligence per se in permitting a boy of ten years, bright and 
 healthy, to go upon an errand two miles away and return by a train 
 
 ^Chicago City B. Co. v. Wilcox (111.) 44 Alb, L. J. 70. 
 
 *Bi8aillon v. Blood, 6 New Eng. Rep. 908, 64 N. H. 565. 
 
 ^Newman v. PhiUipsburgh H. G. R. Co. 8 L. R. A. 84'2, 52 N. J. L. 446. 
 
 *Gulf, C. & S. F. li. Co. V. McWhirier, 77 Tex. 356. 
 
 ^WeUbrook v. Mobile & 0. R. Co. 66 Mi.ss. 500, 39 Am. & Eng. R. Cas. 374; 
 
 CIdcago City R. Co. v. Wilcox (111.) 8 L. U. A. 494; Wymore v. Mahaska 
 
 County, 6 L. R. A. 545, 78 Iowa, 396; Winter v. Eansas City Cable R. Co. 
 
 6 L. R. A. 536, 99 Mo. 509, 40 Am. & Eiig. R. Cas. 261. Contra, Weil v. 
 
 Dry Dock, E. B. & B. R. Co. 119 N. Y. 147. 
 '■Oaroni v. Campagnie Nationale JDe Navigation, 39 N. Y. S. R. 63. 
 ^Cook V. Uomton Direct Nav. Co. 76 Tex. 353.
 
 BECOVERV BV WIFE IX CASE OF HLSUANd's XEGLIUEN'OK. 735^ 
 
 which lie knew would Ijc .sii^naled to stop near his home, and would 
 stop when signaled, Avhicli will prevent a recovery by them for 
 Mijnries sustained by the boy in jumping off the train upon the 
 conductor's refusal to stop. ' And by another that it is negligence 
 on the part of the parents of a child non Hid juris to permit it 
 to go into a city street unattended, or to fail to exercise ordinary 
 care to prevent it from so going, which will prevent recovery for 
 injuries there sustained by it through another's negligence. ' Of 
 course in an action for an injury to a child while getting off from 
 a street car, the question whether the child's mother was exercis- 
 ing due care for the safety of the child is immaterial where the 
 child himself was using all the care wliich the occasion required.*" 
 
 % 199. Recovery hy Wife in Case of Husband' s 
 
 JVegligence. 
 
 Where the husband and wife sue for their joint benefit, and 
 where the wife was under the care of 1. jj husband, he is respon- 
 sible for her safety, and his negligence, by some of the authori- 
 ties, is a bar to her recovery. * 
 
 In a Wisconsin case which held that a wife injured because of 
 a defective street while riding with her husband is chargeable 
 Avith his contributory negligence, no distinction was made between 
 a wife and other persons riding with the driver.' In a similar 
 case in Yermont the decision was the same, and the court says i 
 " She was under the care of her husband, who had the custody 
 of her person and was responsible for her safety ; and any want 
 of ordinary care on li:s part is attributable to her in the same 
 degree as if she were wholly acting for herself." But the court 
 also says: "There is nothing in the marital relation which 
 will change the situation of the wife in respect to her husband's 
 negligence under such circumstances," and de(;lares that the same 
 consequences would have followed if the relation had been that 
 of parent and child, master and servant, or if she had been an 
 
 ^Avey V. Galveston, H. & S. A. B. Go. (Tex.) June 16, 1891. 
 
 ^Dudley v. Westcott, 44 N. Y. S. R. 883. Rev'g 40 N. Y. S. R. 506. 
 
 ^Ghicago Gity B. Go. v. Bobinson, 4 L. R. A. 126, 127 111. 9. 
 
 *GarUsl6 v. Sheldon, 38 Vt. 440; Peck v. New York, JV. H. & H. R. Go. 50 
 
 Conn. 379. 
 *Pi'ideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558.
 
 736 NEGLIGENCE TOWARD ClIILDRE>f — IMPUTED NEGLIGENCE. 
 
 entire stranger carried as a passenger gratuitously.' A hus- 
 band's knowledge of the vicious character of a h(jrse driven bj 
 him, and which became frightened and ran away, is the knowl- 
 edge of his wife, who is injured thereby while riding with him. 
 This declaration was made without any discussion of the point 
 in a charge to a jury, and Avould seem to be about the same as an 
 imputation to her of the husband's negligence ; but the relation- 
 ship was not mentioned as an element in the case; and the court 
 also said that the viciousness of the horse, whether kno^vn to either 
 of them or not. if it actually contributed to the runaway, would 
 defeat any liability for lea^'ing machinery in the street by which 
 the horse was frightened.'' 
 
 Another case decides that where the right to damages for injury 
 to the wife while riding with her husband is community property, 
 and she cannot sue alone for such injuries, the contributory neg- 
 ligence of the husband will bar their joint right of action for 
 negligence of a third person.* 
 
 § 200. Recovery ivhere Wife Sues. 
 
 In other courts it has been ruled that where the wife sues in 
 her own right, by virtue of the statute, the husband's negligence 
 cannot defeat her action." 
 
 There are cases where the negligence of one person will be im- 
 puted to another; but the extreme doctrine has never been sanc- 
 tioned in a number of the courts.^ The extent to which the doc- 
 trine of imputable negligence is recognized, in most of the well 
 considered cases is thus stated by Mitchell, J. : ' " Before the con- 
 current negligence of a third person can be interposed to shield 
 another, whose neglect of duty has occasioned an injury to one who 
 Avas without personal fault, it must appear that the person injured 
 and the one whose negligence contributed to the injury sustained 
 such a relation to each other, in respect to the matter then in pro- 
 
 ' Carlisle v. Sheldon, 38 Vt. 440. 
 
 "Iluntoon V. Trumbull, 2 McCrary, 314. 
 
 »McFad<le7i v. Satita Anna, 0. & T. St. R. Co. 11 L. K. A. 252, 87 Cal. 464. 
 
 *Platz V. Colioes, 24 Hun, 101; Hedges v, Kansas City, 18 Mo. App. 62; Flori 
 
 V. St. Louis, 3 Mo. App. 232. 
 ^Michigan City v. BoecJding, 122 Ind. 3'J, and authorities cited in "C." 
 ^Knightstown v. Musgrove, 116 Ind. 121, 124.
 
 RECOVERY VVUEKE WIFE SUES. T37 
 
 .gress, as that in contemplation of law the negligent act of the third 
 person was, upon the principles of agency or co-0])eration in a 
 common or joint enterprise, the act of the person injured. Until 
 such agency or identity of interest or purpose appears, there is no 
 sound principle upon which it can be held that one w'ho is himself 
 blameless, and is yet injured by the concurrent wrong of two per- 
 sons, shall not have his remedy against one who neglected a posi- 
 tive duty which the law imposed upon him." The court in the 
 same case further says : " When one accepts the invitation of 
 another to ride in his carriage, thereby becoming in effect his com- 
 paratively passive guest, without any authority to direct or control 
 the conduct or movements of the driver, or without reason to sus- 
 pect his prudence or competency to drive in a careful and skillful 
 manner, there is no reason why the want of care of the latter 
 should oe imputed to the former, so as to deprive him of the right 
 to compensation from one whose neglect of duty has resulted in 
 his injury." 
 
 There is no good reason why this rule does not apply to a wife 
 riding with her husband, with as much reason as to a stranger 
 riding with him; nor why she may not be in such case a mere 
 passive guest, without authority to direct or control his move- 
 ments, and without reason to suspect his prudence or his skill. A 
 husband and wife may undoubtedly sustain such relations to each 
 other in a given case that the negligence of one will be imputed 
 to the other. The mere existence of the marital relation, how- 
 ever, will not have that effect. It has been in fact expressly 
 j-epudiated.' 
 
 In a New York decision to the effect that the negligence of the 
 driver of a carriage is not imputable to his wife, who is injured 
 by the overthrow of the carriage while riding with him, caused 
 by a heap of dirt in the street, the court, after quoting from an- 
 other case in which one person has been riding with another on 
 invitation, said the same reasoning applied and made no attempt 
 to distinguish between a wife and any other person injured in 
 such circumstances. ' So a decision of the circuit court of the 
 
 i Miller v. Louisville, iV. A. & G. R. Co. 128 Ind. 97; Louisville, N. A. & C. 
 
 R. Co. V. Cre^k (lud.) 14 L. R. A. 733. 
 '>Platzv. Cohoes, 24 Hun, 101. 
 
 47
 
 738 NEGLIGENCE TOWARD CHILDREN IMPUTED NEGLIGENCE. 
 
 United States in Ohio denied that contribntory negligence of a. 
 husband can be imputed to iiis wife while riding with him, who 
 is injured by the upsetting of their buggy caused by dogs chasing- 
 their horse/ The same was held where she was injured by the 
 carriage running against a pole located in the highway, while 
 riding with her husband.^ 
 
 A Texas case decides that, although the negligence of a 
 driver in attempting to cross a railway track is not imputable to his 
 wife while riding with him, she will be held to the duty of exer- 
 cising ordinary care. ' No reference is made in this case to a 
 prior decision, that a wife is chargeable with the negligence of 
 her husband, with whom she is riding behind an ox team approacli- 
 ing a railroad crossing. * In this earlier case the court did not 
 discuss the relation of the parties, or base the decision upon it. 
 But in an action for the death of a person at a railroad crossing, 
 alleged to have resulted from the negligence of the company and 
 its servants, a charge that if the husband of deceased, who wa& 
 driving, could, by the use of ordinary care, have prevented the 
 accident, and if his failure to do so contributed proximately to- 
 the death, deceased would be charged with his negligence if liv- 
 ing, and plaintiffs are not entitled to recover, was declared to have- 
 been properly refused. * 
 
 § ^01. Action dij Hushmtd and Children. 
 
 But, where the action is by the husband, his contributory negli- 
 gence or that of his wife, may be used by the carrier as a defence. 
 But an action for the death of a woman, caused by defendant's 
 negligence, by her administrator for the benefit of her husband 
 and children, is not defeated, under the statute conferring the 
 right of action, by the fact that her husband's negligence contri- 
 buted to the injury which caused her death. ® 
 
 The rule is that whenever the plaintiff derives his cause of ac- 
 tion from an injury to a third person, the contributory negligence 
 
 ^Shaw V. Craft, 37 Fed. Rep. 317. 
 ^Sheffield v. Central U. Teleph. Co. 36 Fed. Rep. 164. 
 ^Galoeston, H. & 8. A. R. Co. v. Kutac, 72 Tc.x. 643. 
 '^Guif, C. & S. F. R. Co. V. Greenlee, 62 Tex. 344. 
 HJalvexton, 11. i& S. A. R. Co. v. Kutac, 76 Tex. 473. 
 «6'AoM> V. Crajt, 37 Fed. Rep. 317.
 
 NEGLIGENCE OF DRIVER NOT IMPUTED TO GUEST OR PASSENUEK. 73'J 
 
 of such third person is imputable to him, so as to charge him witli 
 the consequences/ "Where a husband drove out with liis wife in a 
 phaeton on a street that crossed a raih'oad track, and m endeavoi'ing 
 to go through the gate which protected that track tlie wheel of 
 the phaeton was momentarily caught in the gate as it swung to be 
 closed, just as the husband attempted to drive througli, but the 
 wife, becoming alarmed at the sight of the engine and tlie 
 attempted closing of the gates sprang out and was injured, l)ut 
 the husband drove safely across the track, it was held that the act 
 of the wife in jumping out was needless. Culver, e/., remarking : 
 "If Mrs. Peck had remained in the carriage, she would have 
 passed safely across, as did her husband. She misjudged. She 
 was in no real danger, and there was no more reason for lior 
 jumping out of the carriage than there was for her husband. She 
 could see the locomotive, and might have known as well as her 
 husband that the engineer would not start his train so long as the 
 team was in danger of being struck by it." ' 
 
 This is the rule where the action is brought by the parent 
 for injury to the child, where the latter was of an age which ren- 
 ders it responsible for negligence, 'having been guilty of want of 
 care contributing to the injury.' 
 
 § 202. JVegligence of Driver not Imputed to Guest 
 or Passenger. 
 
 If a person driving his own carriage takes in another person as 
 a passenger, such peison cannot be subject to an action in case of 
 any ndsconduct in the driving by the proprietor of the carriage, as 
 he had no care or concern with the carriage. But if two persons 
 were jointly concerned in the carriage, as if both had Mred it to- 
 gether, both must be answerable for any accident arising from the 
 misconduct of either in driving the carriage while so in their 
 joint care. * 
 
 ^Pi-att G. ik T. Go. v. Brawley, 83 Ala. 371. 
 
 ^Peclc V. New York, N. H. i H. R. Co. 50 Conn. 379. 
 
 ^Caxey v. Smith, 9 L. R. A. 259, 152 Mass. 294; Chicago & Q. E. R. Co. v. 
 ILirney, 28 lad. 28; Collins v. South Boston, H. R. Co. 2 New Eng. Rep. 
 649, 142 Mass. 314; QiiUgan v. New York & U. R Co. 1 E. D. Smith, 
 4o3; Gibbons v. Williams, 135 Mass. 335; Burke v. Broadway & S. Ave. 
 ,R. Co. 34 How. Pr. 239; lA/nch v. Smith, 104 Mass. 57; Kennard v. Bur- 
 ton, 25 Me. 39. 
 
 *Davey v. Chamberlain, 4 Esp. 329.
 
 740 NEGLIGENCE TOWARD CHILDREN IMPUTED NEGLIGENCE. 
 
 The negligence of the driver of a private vehicle cannot be im- 
 puted to one who is riding witli him merely by invitation, so as to 
 prevent the latter from recovering against a third party through 
 whose negligence, concurring with that of the driver, he receives 
 injuries.' But a passenger cannot blindly trust to the driver with- 
 out the exercise of proper prudence on his own part, where he is 
 fully aware of the danger. ' 
 
 Where a passenger rides, without pay, with another who is 
 driver of a team, exercising entire control over it, and who is in 
 no sense the passenger's agent or servant, the negligence of the 
 driver or his knowledge of the defective condition of the road 
 cannot be imputed to the passenger so as to bar an action by him 
 against a negligent third party. The passenger is answerable for 
 his own negligence only. * 
 
 Negligence on the part of the driver of a vehicle cannot be im- 
 puted to one who rode with him at his invitation, in the absence 
 of evidence that she knew him to be incompetent and unreliable, 
 or that she controlled and directed the movement of the vehicle.* 
 
 This exemption from responsibility has been qualified and limit- 
 ed to the case of a passive guest or passenger, who is not in any 
 degree chargeable with active negligence or want of due care, and 
 the rule that the negligence of the driver of a wagon is not im- 
 putable to one riding with him when an accident occurs at a rail- 
 road crossing is applicable only to cases where the relation of 
 master and servant, or principal and agent, does not exist, or where 
 the passenger is seated away f j-om the driver, or is separated from 
 him by an inclosure, and is without opportunity to discover dan- 
 ger and to inform the driver of it. ' 
 
 The negligence of a driver of a wagon is not imputable to a 
 person riding with him as a mere guest, and who uses ordinary 
 
 Wean v. Pennnylmnia R. Co. 6 L. R. A. 143, 129 Pa. 514, 39 Am. «fc Eng. 
 K. Cas. 697; Michigan (Jity v. Boeckling, 122 lud. 39. 
 
 ^Dean v. Pennsylvania R. Co. 6 L. R. A. 143, 129 Pa. 514. 39 Am. & Eng. 
 R. Cas. 697; Crescent Twp. v. Anderson, 6 Cent. Rep. 616, 114 Pa. 643. 
 
 ^Carlinle v. Brisbane, 4 Cent. Rep. 508, 113 Pa. 544; Elyton Land Co. v. 
 Miuf/ea, 89 Ala. 521. 
 
 *CahtU V. Cincinnati, N. 0. <& T. P. R. Co. (Ky.) 13 Ky. L. Rep. 714. 
 
 ^Brickell v. New York Cent. & H. R. R. Co. 120 N. Y. 290, 42 Am. & Eng. 
 R. Caa. 107.
 
 NEGLIGENCE OF DKIVER NOT IMPUTED TO GUEST OR PASSENGER. 741 
 
 care to avoid the injiuy.' And the same law applies to passenj^ers 
 in public carriages, stage coaches and hacks. Contributory negli- 
 gence of the diiver of a hack or stage coach will not be imputed to 
 the passengers so as to defeat their riglit to recover for injuries 
 sustained by the negligence of others.^ The negligence of the 
 driver of a public carriage is not to be imputed to a passenger 
 who, in the management of the conveyance, exercises no control 
 over the movements of the vehicle, and who is injured by a col- 
 lision,^ and has not been guilty of any want of care in his selection 
 of the driver. * 
 
 Where there is no evidence that a passenger in a public hack 
 knew of danger from an approaching train on a public crossing, 
 the judge may so state to tlie jury, and may say that there is no 
 evidence of any failure in duty on the part of such passenger to 
 avoid the injury. In the case of a female passenger in a pul>li<' 
 iiack, a chai'ge to the jury as follows was correct : '' I do cluirge 
 you that the negligence of the driver, if he was negligent, is not 
 imputable in law to her. A person who hires a public hack, and 
 gives the driver directions as to the place where he wishes to be 
 conveyed, but exercises no other control over the conduct of the 
 driver, is not responsible for his acts of negligence, or prevented 
 from recovering against the railroad company for injuries suffered 
 from a collision of its train with the hack, if the same was caused 
 by the concurring negligence of both the manager of the train and 
 the driver of the hack. The only negligence on the part of the 
 driver which will defeat or otherwise affect the right to recover is 
 embodied in the following proposition : If the negligence of the 
 driver was the sole cause and the real origin of the collision, she 
 cannot recover. If the driver and the manager of the train were 
 guilty of negligence, both concurring to bring the collision about, 
 such negligence on the part of the driver cannot have the effect 
 
 ^Mxbei V. Oarner, 1 L. R. A. 152, 75 Iowa, 314; State y. Boxtou <fc M. B. Go. 
 
 t) New Eng. Rep. 777, 80 Me. 430; Knigktsiown v. Musgrooe, 116 Ind. 
 
 121; Shtffleldv. Central U. Teleg. Co. 36 Fed. Rep. 164. 
 ^Becke v. Missouri Pac. R. Co. 9 L. R. A. 157, 103 Mo. 544. 
 'Missouri Pac. R. Co. v. Texas Pac. R. Go. 41 Fed, Rep. 316; East Tennessee, 
 
 V. & Q. R. Go. V. Markens (Ga.) 14 L. R. A. 281; Elyton Land Go. v. 
 
 Mingea, 89 Ala. 521. 
 ^Missouri Pac. R. Co. v. Texas Pac. R. Co. 41 Fed. Rep. 316. Becke v. Mis- 
 
 souH Pac. R. Go. 9 L. R. A. 157, 102 Mo. 544.
 
 742 NEGLIGENCE TOWARD CHILDREN IMPLTED NEGLIGENCE. 
 
 either to defeat or diiuinish the plaintiff's right to recover." A 
 female passenger in a public hack is under no duty to supervise 
 the driver at a public crossing, nor to look or listen for approach- 
 ing trains, unless she has some reason to distrust the diligence of 
 the driver himself in respect to these matters.' 
 
 § 203. Where Each of Two Carriers is JYegligent 
 or Wliere only One is. 
 
 ■ In regard to the question whether a passenger on one train, can 
 maintain an action against the owner of another train on account 
 of injuries received in a collision between the two, caused by the 
 mutual negligence of the servants in charge of both trains, where 
 it affirmatively appears that such passenger acted with due care 
 and in no way contributed to the result, the courts of England 
 and Pennsylvania at one time answered this question in the nega- 
 tive," while other courts affirmed the liability.' 
 
 The English rule was, that where each, of two carriers have con- 
 tributed to an accident, the passenger of either is chargeable with 
 the negligence of his carrier and can not maintain an action against 
 the other carrier. * This rule, however, has been set aside in Eng- 
 land.^ And the rule is .now in accord with the American cases,° 
 
 A distinction is recognized even where the rule imputing neg- 
 ligence to a guest is not directly questioned, and it is said the rule 
 by which one who rides in a private conveyance is presumed to 
 control or be identified wi.tJi the driver and to have no right of 
 action for any injury done him by a collision caused by the driver's 
 niegligence, cannot apply to passengers in public conveyances such 
 
 ^East Tennessee, V. & G. R. Go. v. Markens (Ga.) 14 L. R. A. 281. 
 
 "^Thorogood v. Bryan, 8 C. B. 115; Lockhart v. Litchenthaler , 46 Pa. 151. 
 
 ^Dyer v. Erie R. Co. 71 N. Y. 228; Chapman v. Nein Haven R. Co. 19 N. Y. 
 341; Dennett v. New Jersey R. & Trnnsp. Co. 36 N. J. L. 225; Danville, 
 L. & N. Tump. Co. v. Stewart, 2 Met. (Ky.) 119; Louisville, C. & L. R. 
 Co. V. Case, 9 Bush, 728. And authorities cited hereafter in this section. 
 
 *Tlu)rogood v. Bryan, 8 C. B. 115. 
 
 ''The Bernina, 12 Prob. Div. 58; Affirmed in Mills v. Armstrong, L. R. 13 
 App. Cas. 1. 
 
 *Mangan v. Atterton, L. R. 1 Exch. 239; Singleton y. Eastern Counties R. 
 Co. 7 C. B. N. S. 287; Waite v. North- Eastern R. Co. El. Bl. & El. 719.
 
 WHERE EACH OF TWO CARRIER'S IS NEGLIGENT. 743 
 
 •as railway cars or steamboats, even though they have chartered 
 the conveyance. ' 
 
 When a colHsion of two street cars is occasioned by the negli- 
 gent management of both vehicles, a passenger upon either car 
 who is injured by the collision may recover damages against the 
 proprietor of either, and if it turn out at the trial that one pro- 
 prietor was not guilty of negligence he may, on sufficient evidence, 
 take a verdict against the other. ^ The contributory negligence 
 of a carrier is no bar to the right of a passenger to recover from 
 another party for injuries received in consequence of the latter's 
 negligence. ' The negligence of a carrier in whose train a passen- 
 ger is riding is not imputable to him. * If a passenger upon any 
 vessel is injured by its collision with another in consequence of 
 the negligence of the officers of both, he has a right of action 
 against them jointly, and it is for the jury to fix the liability where 
 it belongs. ^ 
 
 Where a passenger on a railway train is injured by the mutual 
 negligence of the servants of the company on whose train he is 
 rightfully traveling and of the servants of another company with 
 whom he has no contract, there being no fault or negligence on 
 his part, he or his personal representative may maintain an action 
 against either company in default and will not be restricted to an 
 action against the carrier company on whose train he was travel- 
 ing. If he is injured by a collision of his train with another 
 through the mutual negligence of both companies, he exercising 
 due care, he cannot maintain an action ex contractu against the 
 company owning the rival train, but this furnishes no reason why 
 he may not maintain on action ex delicto against it. " 
 
 If a passenger in one of two trains owned and run by different 
 comj^anies, is injured by their coming in collision and such collision 
 would not have occurred if both companies had exercised that or- 
 •dinary care which they owed to all persons traveling on the road, 
 
 ' Cuddy V. Horn, 46 Mich. 596. 
 
 ■^Tompkins v. Glay St. B. Co. 66 Cal. 163. 
 
 ^JHew York, P. & K B. Go. v. Cooper, 85 Va. 939; Whelan v. New York, L. 
 
 E. & W. B. Co. 38 Fed. Rep. 15. 
 ^Flaherty v. Nortliern Pac. B. Co. 1 L. R. A. 680, 39 Minn. 328. 
 '= Cuddy V. Horn, 46 Mich. 596. 
 ■^Wabash, St. L. & P. B. Co. v. Shacklet, 105 111. 364.
 
 744 NEGLIGENCE TOWARD CHILDREN IMPUTED NEGLIGENCE. 
 
 and if the plaintiff, as between himself and both companies, was^ 
 lawfully where he was, and if he was guilty of no negligence in 
 not anticipating such a collision, and in not seeking a seat with a 
 view of its possible occurrence, the fact that he was on the plat- 
 form of the car when injured by such collision is no bar to hi^- 
 rio-ht of action against either of the companies. ' 
 
 & *— ' 
 
 1 Colegrove v. New York & II. R. Co. 6 Duer, 383.
 
 CHAPTER XXXVII. 
 
 DAMAGES, EXCESSIVE— AGGRAVATION OF HURT OR DISEASE. 
 
 § 204. Damage for Loss of Baggage. 
 
 § 205. Negligence of Carrier Aggravating Hurt or Disease. 
 
 § 206. Verdicts in Suits for Damages for Personal In/juries. 
 
 § 207. Verdicts Held Excessive. 
 
 § 204- Doumcbge for Loss of Baggage. 
 
 Under the general rule determining what are proper damages- 
 recoverable, a railway company is not liable for detention caused 
 to the owner of baggage lost or delayed on the railway, or for 
 expenses incurred by him in looking after the baggage, the meas- 
 ure of damages being the value of goods lost. Where baggage 
 has been found after suit has been entered, and has been accepted 
 by the owner, the railway company is only responsible for the 
 taxable costs incurred up to the date of delivery.' But where the 
 property is lawfully carried as baggage and has a special value to 
 the passenger, this value to him is the test and not the market 
 value." Baggage checks are prima facie evidence of receipt by 
 carrier and non-delivery to passenger.^ The check and ticket may 
 be examined as evidence whether first carrier is liable for loss of 
 baggage by later carrier.* Evidence that w^hen the last carrier 
 delivered the trunk it was broken open and part of contents gone,, 
 places loss prima facie on last carrier.* 
 
 ^Pi'ovencher v. Canadian Pac. R. Co. 5 Mont. L. Rep. 5 Super. Ct. 9; Mis- 
 
 sissippi Cent. R. Co. v. Kennedy, 41 Miss. 671. 
 '^International & G. iV. R. Co. v. Nicholson, 61 Tex. 550; Oreen v. Boston tt 
 
 L. R. Co. 1^8 Mass. 221 ; Denver, 8. P. & P. R. Co. v. Frame, 6 Colo. 
 
 385. 
 ^Davi>i V. Michigan 8. & N. I. R. Co. 22 111. 278; CIdcacjo, R. I. & P. R. Co. 
 
 V. Clayton. 78 111. 616. 
 4 Wilson V. Chesapeake & 0. R. Co. 21 Gratt. 654. 
 ^Lin V. Terre Haute & I. R. Co. 10 Mo. App. 125. 
 
 745
 
 ~4G DAMAGES — AGGRAVATION OF HURT OR DISEASE. 
 
 § 205. J\^egligence of Carrier Aggravating Hurt 
 
 or Disease. 
 
 A carrier is liable to a passenger for damages for an aggrava- 
 tion of an injury by its negligence.' Tiie measure of damages 
 for personal injuries caused by negligence is the injury done al- 
 though it might not have resulted except for a disease or peculiar 
 physical condition of the person injured or may have been aggra- 
 vated thereby." The same rule has been applied in many cases to 
 a miscarriage caused by personal injuries to a pregnant woman or 
 by frightening her.^ By application of the same principle proof 
 of the pregnancy of a woman was allowed to show aggravation of 
 the wrong of a steamboat carrier in failing to stop at a landing 
 for passengers where the woman was waiting to take passage and 
 .suffered from exposure." 
 
 The principle above stated is illustrated also in the following 
 c-ases : 
 
 The fact that a person was suffering from Brights' disease at 
 the time he was injured does not impair his right of recovery 
 against the party in fault for the injury although the injury was 
 acrgravated by the disease. ^ 
 
 The fact that a person injured had a tendency or predisposi- 
 tion to cancer will not defeat the liabiUty of the party causing the 
 injury for a cancer which develops as a result of it. " 
 
 The aggravation of damages from an injury to a person's arm 
 
 ^MonUjomery & E. R. Co. v. Mallette, 92 Ala. 209. 
 
 ^Lapleine v. Morgans' L. & T. R. & S. B. Co. 1 L. R. A. 378, 40 La. Ann. 
 661; Ohio (fe if. R. Co. v. Ilecht, 115 Ind. 443; Louisville, N. A. & G. R. 
 Co. V. Jone.% 7 West. Rep. 33, 108 Ind. 551 ; Louisville, 2f. A. & C. R. Co. 
 V. Wood, 12 West. Rep. 303, 113 Ind. 544; Louisville, N. A. & C. R. Co. 
 V. Falcei/, 1 West. Rep. 868, 104 Ind. 409; Louiwille, iY. A. & C. R. Co. 
 V. SniiUr, 3 L. R. A. 434. 117 Ind. 435; Baltimore City Pass. R. Co. v. 
 Kemp, 01 Md. 74; Stewart v. Ripon, 38 Wis. 584; Mobile <& 0. R. Co. v. 
 McArihur, 43 Miss. 180; Driess v. Frederick, 73 Tex. 460; Allison v. Chi- 
 cago & N. W. R. Co. 42 Iowa, 274. 
 
 ^Hill V. Kimbell, 7 L. R. A. 618, 76 Tex. 210; Barbee v. Reese, 60 Miss. 906; 
 Oliver v. La Valle, 36 Wis. 596; Brown v. Chicago, M. & St. P. R. Co. 54 
 Wis. 342, 41 Am. Rep. 41; Shartle v. Minnrapolis, 17 Minn. 308; Fitz- 
 putrick V. Great Western R. Co. 12 U. C. Q. B. 645; Poicell v. Augusta <& 
 S. R. Co. 77 Ga. 179; Campbell v. Pullman Palace Car Co. 42 Fed. Rep. 
 484; Purcell v. St. Paul City R. Go. (Minn.) 16 L. R. A. 203. 
 
 *Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588. But see Pullman Pal- 
 ace Car Co. V. Barlcer, 4 Colo. 344, 34 Am. Rep. 89. 
 
 '-Louisville, N. A. & C. R. Co. v. Snider, 3 L. R. A. 434, 117 Ind. 435. 
 
 ^Baltimore City Pass. R. Co, v. Eemp, 61 Md. 74.
 
 NEGLIGKNCE OF CAKUIKK AOGUAVATING HUKT OK DISKASIJ. 7i7 
 
 by an organic scrofulous tendency is within the damages for 
 which recovery may be had from the person liable for the in- 
 jury. ' So a person predisposed to malarial, scrofulous, or rheu- 
 matic tendencies, but otlierwise in good health, may recover dam- 
 ages for the development of such tendencies in an action for 
 wrougful injuries." 
 
 A passenger subject to chronic rheumatism may recover for 
 injuries occasioned by a carrier's fault in taking him be^'ond his 
 destination and compelling him to walk back through the rain. ' 
 
 The prior fracture of a leg does not affect tha measure of dam- 
 ages recoverable for another fracture caused by negligence. * 
 
 A previous fracture of a person's arm will not prevent his re- 
 covering from a defendant who is in fault for an injury by 
 which his arm is again broken and his shoulder and collar bone 
 permanently injured, even if the latter injury Vv'ould not have 
 been received if the arm had been well and sound. ^ 
 
 Where an injury to a child was aggravated l)y a latent, heredi- 
 tary, hysterical diathesis which had never exhibited itself before 
 the accident and might never have developed but for it, the en- 
 tire damages were recoverable from the party whose negligence 
 •caused the accident.' 
 
 In other cases similar to these a party causing an injury has 
 been held liable for a disease developing as a result of the injury 
 but without anything to show a previous diseased condition or 
 tendency to disease; as for instance in a case where erysipelas 
 <levelops in a wound or in consequence of an injury; ' so where 
 pneumonia supervened, causing the death of a boy who had been 
 seriously injured by a blow on the head. * 
 
 The same rule was applied to the development of catarrh as a 
 
 h^tewart v. Ripon, 38 Wis. 584. 
 
 ^Louisville, N. A. & C. R. Co. v. Falvey, 1 West. Kep. 8G8, 104 Ind. 109. 
 
 hMobile & 0. R. Co. v. McArtfnir, 43 Miss, 180. 
 
 *Driess v. Frederick, 73 Tex. 460. 
 
 ^Allison V. Chicago <fc iV^. W. R. Co. 42 Iowa, 274. 
 
 ^Lapleine v. Morgans' L. & T. R. & S. B. Co. 1 L. R. A. 378, 40 La. Ann. 
 
 661. 
 Wickson v. Hollister, 123 Pa. 421; Houston tt- T. C. R. Co. v. Leslie, 57 
 
 Tex. 83. 
 ^Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. Rep. 30.
 
 748 DAMAGES AGGRAVATION OF HURT OR DISEASE. 
 
 result of an injiiiy to the nose of a person who never liad catarrh 
 before.'' 
 
 Of course there is no question that a disease which supervenes 
 as the direct result of an injury is to be regarded as part of it, if 
 there was not in fact any prior diseased condition or tendency. 
 
 In a recent case before the court in Tennessee," though the 
 plaintiff's intestate died about a month after the injury, and there 
 was other evidence to sustain the theory that his death was the 
 direct result thereof, there was some evidence tending to show 
 that he died of galloping consumption, of which he was probably 
 though not very visibly affected when injured. In this condition 
 of the evidence the court was asked to charg-e as follows : " If 
 you find that the company was negligent, and the deceased was 
 injured by such negligence, then did the injury cause his death, 
 or did he die of some disease ? If he died of the injury, — and by 
 that is meant the injury produced the death, or produced a dis- 
 ease which resulted in death, or so weakened the powers of de- 
 ceased as to render him unable to resist a disease of which he 
 might otherwise have recovered, or with which he might have 
 lived an indefinite time, — the plaintiff should recover. But, if 
 deceased already had a fatal disease from which there was no hope 
 of recovery, and his death was inevitable from that disease in a 
 short time, and the injury was slight and of such a character as 
 to simply aggravate the disease, and he died of the disease, and 
 not of the injury, then plaintiff" cannot recover at all, for this is a 
 suit for the death of deceased." The court gav^e this instruc- 
 tion to the jury, with this addition : "This is the law, but, if the- 
 death was hastened or occurred sooner by reason of the injury 
 than it otherwise would, then the injury was the cause of the 
 death." It is objected that the addition of the court to the re- 
 quest submitted is not the law, and a case to the contrary in terms,, 
 if not in effect, as to "hastening" the death, is cited in 25 Am. & 
 Eng. R. Cas. 327. ' There the evidence showed that a mortally 
 wounded man had been suffered to be placed ujjon a train, and 
 removed from the place where he was injured, under circumstan- 
 ces of, at least, slight negligence on the part of the conductor. 
 ^Quackenbush v. Chicarjo (Sc N. W. R. Co. 73 Iowa, 458. 
 
 U^uisville & N. li. Ce. v. Noithincjton (Tenn.) 16 L. R. A. 268. 
 *Tlio CiiHc is from Missouri, and is that of Jackson v. St. Louis, I. M. & 8, 
 R. Co. 'i ^Vc8t. Kep. 236, 87 Mo. 422.
 
 NEGLIGENCE OF CARRIER AGGRAVATING HURT OR DISEASE. 740 
 
 Tlie court charged that "if the conductor was informed of the 
 condition of the wounded man, and knew he was he'u\<^ taken 
 against his will and consent of plaintiff (his wife), and that he was 
 so taken and transported from Dexter to Claj county, thereby 
 causing or hastening his death, the jury should find for plaintiff." 
 He furtlier refnsed, on request of defendant, to charge "that if 
 the wrongful act only hastened the death of Jackson, and was not 
 the cause of same, you must find for defendant." The Supreme 
 Court of jyiissouri on appeal held that the giving of the first and re- 
 fusal of second instruction quoted was error. 
 
 In referring to that decision the Supreme Court of Tennessee 
 says that under the facts of that case, with the brief and summary 
 propositions standing as they do, the case may be right, but the 
 charge in the case before them was not the same. It presents in 
 the proposition submitted by the circuit judge all the qualification 
 which makes the use of the term "hastened" objectionable in the 
 Missouri case. He had already said that, "if the injury was slight 
 and of such a character as to simply aggravate the disease, and he 
 died of the disease, and not of the injury, then plaintiff cannot 
 recover." He now adds, "but if the death was hastened or occurred 
 sooner by reason of the injury," in other words, if the death was has- 
 tened or occurred by reason of the injury, and sooner than deceased 
 would have died of the disease, — then the injury was the cause of 
 the death, — that is, of the death when it occurred at another and 
 different time than death would have occurred from the disease. 
 This must be true, or there could be no cause of an earlier death 
 than that, which, nothing else intervening, would have produced 
 a later one. A man might be suffering from an incurable disease 
 or a mortal wound, with only two days to live, when a negligent 
 wrongdoer inflicted upon him an injury which in his condition of 
 debility took his life, or developed agencies which destroyed him 
 ill one day, and yet the latter wrong be in a legal sense the cause 
 of his death, though it only hastened that which on the next day 
 would have inevitably happened. The Supreme Court of Ten- 
 nessee thinks the proposition submitted by counsel, and qualified 
 by what it regards as the wise and judicious view of the court, an 
 admirable statement of tlie true rule on this very delicate ques- 
 tion. The Supreme Court of Missouri said it found no precedent
 
 750 DAMAGES AGGRAVATION OF HUKT OR DISEASE. 
 
 for the decision rendered in the Jackson case, and there are con- 
 fessedly few reported cases that tonch npon the question. ' But 
 the Snpi-eme Court of Tennessee said that, treatino^ it from the 
 standpoint of an original proposition, it was entirely content 
 with the view of it embodied in the instruction submitted as 
 qualihed by the court upon the facts of the case. That qualifi- 
 cation upon the proposition put, removed then in fact, and will 
 remove hereafter, in precedent, all danger that the case will be 
 authority, or treated as authority, for holding that any slight ag- 
 gravation of a disease is a cause of death, within the meaning of 
 the statute. 
 
 The distinction taken in this case between a slight hastening of 
 death merely by aggravation of the disease itself consequent upon 
 an injury, and a material hastening as a result of the injury to a 
 diseased person does not appear to have been made in any prior 
 case. 
 
 A statute giving an action for causing death Avas held in a Mis- 
 souri case not to extend to a case where the death of a person 
 already mortally wounded was merely hastened but "not caused'^ 
 by taking him as a passenger on a railroad train. The court said 
 that the statute was in derogation of the common law and must 
 be construed strictly. " But this case, unless limited strictly to its 
 peculiar facts and so harmonized with the Tennessee case, is not in 
 harmony either with other cases as to death or with the principle 
 of the great bulk of the cases concerning lesser injuries as shown 
 above. 
 
 In line with that case is the decision that liability for wrong- 
 fully causing the death of a person is not defeated by the fact 
 that he had a tendency to insanity or disease and that the injui-y 
 would not have caused the death of a well person. ^ Also that 
 death from a disease may be legally attributable to negligence 
 which causes an injury that renders a person more susceptible to 
 disease and less able to resist it. It is not necessary that the in- 
 
 ' Those supposed to present an antagonistic view are embodied and cited in 
 1 Si;(lgw. Damages (8tli ed.) p. 100; Baltbnore City Pass. E. Co. v. Kemj), 
 61 Aid. 74; JJeauchdinj) v. Sagi/imc Min. d?. 50 Mich. 163, 45 Am. Rep. 30. 
 
 •'Jackson v. St. Louis. I. M. & S. li. Co. 3 West. Rep. 236, 87 Mo. 422, 25 
 Am. & Eng. R. Cas. 237. 
 
 ^Jeffersonville, M. & I. It Co. v. Riley, 39 Ind. 568.
 
 NEGLIGENCE OF CARRIER AGGRAVATING HURT OR DISEASE. 751 
 
 jury should be the sole or direct cause of the death if it concurs 
 in producing death. ' This accords also with the recognized doc- 
 trine in criminal cases.' 
 
 The fact that a person who is injured was at that time an inva- 
 lid may be taken into account in determining how much of the 
 subsequent sulfering and ill health is to be attributed to the in- 
 jury. " This is manifestly just on any theory, as suffering and ill 
 health which would have existed independent of the injury can- 
 not constitute an element of damages for causing it. So it is a 
 question of fact for the jury to determine whether a cancer which 
 developed on a person at a place where she was injured and shortly 
 after the injury was a result of the injury. * 
 
 If a person injured was already suffering under permanent dis- 
 ability, his recovery for the injury is only for the additional dis- 
 ability resulting therefrom. '" 
 
 The decisions just cited are plainly in harmony with the line of 
 decisions given and merely show the true application of the rule. 
 Evidently the same should be said in regard to the following lan- 
 guage of the court in a Georgia case, where it is said : "A tort 
 to health already impaired cannot be redressed except by giving 
 damages for any further impairment and for any obstruction 
 occasioned by the tort, to recovery from existing maladies." Also 
 "Where the subject of a tort is already diseased the question 
 should be how much if any the tort contributed to aggravate or 
 protract the disorder. This was said in condemnation of an in- 
 struction to the jury denying a right to damages so far as prior 
 sickness or disorder contributed to plaintiff's unsound condition 
 after the tort. * But in conflict with the above current of decis- 
 ions it is ruled in a Colorado case that the increased risk of 
 injury resulting from the fact that she is "unwell" must be taken 
 by a woman who is a passenger on a railroad train and the carrier 
 is not liable for a long sickness which results from her exposure 
 when compelled to leave a burning car only half clad, if the sick- 
 
 ^Terre Haute & I. B. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168. 
 
 ^Gom. V. Fox, 7 Gray, 585; State v. Morea, 2 Ala, 275. 
 
 ^Bobinson v. Waupaca, 111 Wis. 544. 
 
 ^Baltimore City Pans. E. Co. v. Kemp, 61 Md. 74. 
 
 5 Whelan v. New York, L. E. & W. B. Go. 38 Fed. Rep. 15. 
 
 ^B.ay V. Latham, 81 Ga. 640.
 
 752 DAMAGES — AGGRAVATION OF HDET OK DISEASE. 
 
 ness would not have resulted except for her condition at the time 
 of the exposure. ' 
 
 So an English decision which has been frequently disapproved 
 in this coimtrv holds that illness caused by a cold which is caught 
 by a paFsenger in a drizzling wet night during a walk to her 
 home, which was rendered necessary by the carrier's fault, is not 
 within the damages for which she can recover, although recovery 
 is allowed for the inconvenience caused. The court said the action 
 must be regarded as one upon contract and the damages limited 
 to what could have been reasonably within the contemplation of 
 the parties. " 
 
 The rule is that where a disease caused by an injury received 
 through defendant's negligence supervenes, as well as where the 
 disease exists at the time of the injury, and is aggravated by it, 
 the plaintiff is entitled to full compensatory damages.' Where 
 the defendant is informed by the pleadings that damages are 
 sought for sickness and disorder, and their attendant expenses, as 
 well as for wounds and bruises, he is bound to expect evidence of 
 any sickness the origin or aggravation of which may be traced to 
 the act complained of. * 
 
 § 206. Verdicts in Suits for Damages for Per- 
 sonal Injuries. 
 "While there is no fixed rule in the absence of statute, by which 
 the maximum amount of damages to be allowed in a suit to 
 recover for personal injuries can be determined, it may be inter- 
 esting and helpful to collect the cases in which the courts have 
 sustained or refused to sustain verdicts for amounts as large or 
 larger than the limit of $10,000, fixed as the limit in some states. 
 Thirty thousand dollars is not excessive for injuries to a strong 
 and well man forty years old resulting in concussion of the spine 
 
 ^Pullman Palace Gar Go. v. Barker, 4 Colo. 344, 34 Am. Rep. 89. 
 
 UJobhs V. London & S. W. B. Go. L. R. 10 Q. B. 111. 
 
 ^Ohio & M. R. Go. V. TIecht, 115 Ind. 443; QuackenbusJi v. Ghieago & N. W. 
 
 R. Go. 73 Iowa, 458; Knjser v. Chicago & O. T. R. Go. 56 Mich. 559; 
 
 Lounville, N. A. & G. R. Go. v. Wood, 113 Ind. 544, 567; Indianapolis, 
 
 P. & G. R. Go. V. Pitzer, 109 Ind. 179, 188; Jeffersonville, M. & 1. R. Go. 
 
 V. Riky, 39 Ind. 568; Ehrgott v. Neic York. 96 N. Y. 264. 
 *Johuson V. McKee, 27 Mich. 471; Ehrgott v. Neto York. 96 N. Y. 264; Delie 
 
 V. Ghicago & N. W. R. Go. 51 Wis. 400: Schmidt v. I^eil, 24 Wis. 452- 
 
 Ohio&M. R. Go. V. Uecht, 115 Ind. 443.
 
 VEKDICT3 IN SUITS FOR DAMA.GES FOR PERSONAL IN.J CRIES. 753 
 
 -causing cliroiiif infliunmation and an impairment of the faculties 
 with a probability of paralysis and premature death. ' 
 
 Twenty-five thousand dollars for injuries to an engineer young 
 and earning good wages is not excessive where the injuries render 
 him an ajmost helpless cripple and invalid for life. * Twenty-five 
 thousand dollars is not excessive where plaintiff, formerly a healthy 
 man, became almost a total wreck both physically and mentally. ' 
 Twenty-five thousand dollars was not excessive for injuries to a 
 person thirty years old in good health, well educated, married, and 
 whose family depended upon him for support, where after his 
 injury he could do nothing and though he might live for some 
 years in suffering he would never improve physically. * Twenty - 
 five thousand dollars for the loss of a leg by a child three years 
 .and six months of age is not excessive. * 
 
 Twenty-two thousand two hundred and fifty dollars is not so 
 •excessive as to cause the court to set aside the verdict in an action 
 for damages by a woman who was struck by a locomotive engine 
 which resulted in her losing one arm and in bruising and injuring 
 the other one so as to greatly impair her health and memory. * 
 
 Twenty thousand dollars is not excessive where the injuries 
 were exceedingly painful, serious, and of a permanent nature, and 
 the plaintiff was in his early manhood and engaged in an exten- 
 sive and lucrative business, his share of the profits of which were 
 $18,500 a year, which was impaired by his inability to give it 
 requisite attention, and he was afflicted with bodily derangements 
 which might measurably unfit him for the duties of his profession. ' 
 Twenty thousand dollars is not excessive wdiere there was evi- 
 dence that the injured person, who before the accident was an in- 
 dustrious and able-bodied mechanic, is a wreck both in body and 
 mind, subject to epileptic fits, and his physical and mental condi- 
 tion render him unfit to labor, while it is probable that his suffer- 
 ings will be permanent. * 
 
 Ularroldv. New YorkElev. R. Co. 24 Hun. 184. 
 ^Ilall V. Chicago, B. tfc N. R. Co. 46 Minn. 439. 
 ■'Chicago & E. I. R. Co. v. Holland, 18 111. App. 418. 
 *Albertiv. Neio York, L. E. & W. R. Co. 43 Hun. 431. 
 =Ehrman v. Brooklyn City R. Co. 38 N. Y. S. R. 990. 
 •=.s7ia«o V. Boston & W. R. Corp. 8 Gray, 45. 
 ■ Walker v. Erie R. Co. 63 Barb. 260. 
 >^ Inter national dc G. N. R. Co. v. Brazzil, 78 Tex. 314. 
 48
 
 754 DAMAGES — AGGRAVATION OF HUIiT OK Dlt^KASB. 
 
 l^ineteen thousand dollars is not excessive wliere a married 
 woman of twenty-eight was injured by falling into an excavation 
 negligently left unguarded thereby inflicting great sulfering, and 
 in all probability materially shortening her life. * 
 
 Eighteen thousand five hundred dollars is not excessi\'« for in- 
 juries to a boy seven years old by which both legs were so badly 
 crushed that amputation was necessary and he required a constant 
 attendant and was left in a state, both physically and mentally^ 
 such as to render his life a burden hard to bear. '" 
 
 Sixteen thousand six hundred and sixty-six dollars will not be 
 set aside where the injured man was disabled for life and suffered 
 in an hospital 145 days, and twenty months after the accident 
 dead bone was still working out of the wound which was still 
 open, and his leg was partially stiffened and somewhat shorter 
 than the other. ' 
 
 Fifteen thousand six hundred and ninety-five dollars and sixteen 
 cents is not excessive for severe injuries followed by pain, deform- 
 ity and inability to work. * 
 
 Fifteen thousand dollars is not excessive for injuries to a miner 
 thirty-four years old who had no means of support except his 
 occupation in a mine, where by the accident his right shoulder 
 and some ribs were broken, his right arm disabled, a leg had to be 
 amputated, and he was confined to his bed six weeks. " 
 
 Fifteen thousand dollars is not excessive for injuries to a phy- 
 sician which compelled him to abandon his practice, which had 
 amounted to $2,500 a year and the injuries to his leg, back, and 
 nervous system were of a permanent charactei*. * 
 
 Fifteen thousand dollars is not excessive where a person is 
 caught between railroad cars and has his pelvic bone crushed and 
 his thigh broken in two places, his leg broken so that it is two 
 inches shorter on recovery, and is otherwise seriously and perma- 
 nently injured. ' 
 
 ^Oroves v. JRocheater, 39 Hun, 5. 
 
 •'Jleddles v. Chicago & N. W. B. Co. 77 Wis. 228. 
 
 ■GalveHton, U. & S. A. It. Co. v. Porfert, 72 Tex. 344. 
 
 \Schul(z V. Third Ave. li. Co. 14 Jones & S. 211. 
 
 'Solen V. Virginia & T. R. Co. 13 Nev. 106. 
 
 « Woodbury v. Dinlrict of Columbia, 3 Cent. Rep. 788, 5 Mackey, 127. 
 
 '•Louibviile, N. 0. & T. It. Co. v. Thompson, (34 Miss. 584.
 
 VEKDICTS IN SUITS FUK DAMACiES FOR PEKSONAL IKJL'KIES. 755 
 
 Fifteen tlionsand dollars is not excessive for injuries to a man 
 tliirty-six years of age who had always been well and healthy, 
 wliere the injury was to the nerves of the back and to the spinal 
 column and was permanent and had continued to be very painful 
 and necessitated constant care and attendance and his lower limbs 
 were so paralyzed that he had little use of them, * 
 
 Fifteen thousand dollars is not excessive in favor of a person of 
 good health and vigorous constitution earning from $165 to $195- 
 per month, who, by the injuries, was incapacitated to perform 
 any useful or profitable labor and had become a pliysical wreck. " 
 
 Fifteen thousand dollai's is not excessive for injuries totally dis- 
 abling for work a robust young man twenty-seven years of age/ 
 
 Fifteen thousand dollars is not excessive for hijuries to a 
 physician whose expectation of life was twenty-three years, and 
 whose income was from $1,200 to $1,500 per year, and who, by 
 his injuries, was almost totally disabled, incurring nnich expense 
 and suffering great pain leaving him unable to earn more than 
 $200 or $300 per year. ■" 
 
 Fifteen thousand dollars for the loss of a leg by a boy sixteen 
 years old is not excessive. ^ 
 
 Fifteen thousand dollars is not excessive where the injuries 
 prevent the person from standing erect, creating a physical de- 
 formity for life and incapacitating him for labor, besides causing 
 more or less pain. * 
 
 Fourteen thousand dollars is not excessive where the injured 
 person before the injury was full of life and vigor and has been 
 made a physical wreck and will spend the remainder of his life in 
 suffering and without comfort, and has expended a large sum for 
 medical aid.' 
 
 Fourteen thousand dollars is not excessive in favor of a con- 
 ductor and acting brakeman earning $100 a month, who was 
 
 ^Beddon v. Union Pac. B. Co. 5 Utah, 344. 
 
 ^ Texas Pac. R. Go. v. Johnson, 76 Tex. 421; Texas Pac. R. Co. v. Ourheiser, 
 
 76 Tex. 437. 
 ^Chicago, B. & Q. B. Co. v. Sullivan, 21 111. App. 580. 
 *Pence v. Chicago, B. I. & P. R. Co. 79 Iowa, 389. 
 ^Chicago City R. Co. v. Wilcox, 33 111. App. 450. 
 ^Schneider v. Second Am. R. Co. 39 N. Y. S. R. 370. 
 ' Wallace v. Vacuum Oil Co. 35 N. Y. S. R. 697.
 
 756 DA.MAGES — AGGKAVATION OF HUKT OR DISEASE. 
 
 injured so seriously that the flesh on one leg was shoved up so 
 that the bone stuck out and the foot was crushed, while he was 
 also crushed in the chest and his ribs were torn loose from the 
 breast bone and he suffered amputation four different times caus- 
 ing him great pain and making him a perfect wreck, permanently 
 incapacitated for any labor.' 
 
 Thirteen thousand dollars is not excessive in the case of a 
 healthy man of thirty -nine able to earn $100 or more per month, 
 resulting in the loss of both legs in such a manner that artificial 
 limbs cannot be adjusted and he must drag himself along upon 
 his knees.* 
 
 Twelve thousand dollars is not excessive for personal injuries 
 which made a man a cripple for life and compelled him to suffer 
 great mental and physical pain.* 
 
 Twelve thousand dollars is not excessive for injuries to a tele- 
 graph operator which caused suffering and expenses amounting 
 to $2,000 when his compensation had been about $200 a month 
 and his arm was amputated below the elbow impairing his useful- 
 ness as an operator to the extent of one half, although he suffered 
 no loss of income while undergoing treatment and the nature of 
 the case allowed only compensatory damages. * 
 
 Twelve thousand dollars is not excessive for the loss of a leg by 
 a boy of five years. " 
 
 Eleven thousand five hundred dollars is not excessive in case of a 
 person eighty years old where he was thrown down by the negli- 
 gence of a street car driver and injured so that he could not 
 attend to business and suffered great pain having to undergo ex- 
 pensive surgical treatment and have a large portion of one of his 
 feet amputated.' Eleven thousand dollars is not excessive for in- 
 juries which permanently disabled a young man thirty years old 
 engaged in an employment having a regular system of promotions 
 and earning $540 a year.' Eleven thousand dollars is not exces- 
 
 'Joliet, A. & N. R. Co. v. Velie, 36 111. App. 450. 
 ^Colorado M. R. Co. v. O'Brien, 10 Colo. 319. 
 ^TexoH M. R. Co. v. Douglas, 73 Tex. 325. 
 *Dougherty v. Mmouri R. Co. 97 Mo. 047. 
 '•Akeraloot v. Second Aw. R. Co. 40 N. Y. S. R. 231. 
 *Jordon v. New York & II. R. Co. 30 N. Y. y. R. 670. 
 ■>Belair v. Chicago & N. W. li. Co. 43 Iowa. 662.
 
 VKHniOTS IK SLITS FOR DAMAGKS FOK I'EKHJ.NAL IXJLKIES. 757 
 
 sive in case of injuries to a strong, healthy laboring man having a 
 wife and four children which necessitated the amputation of one 
 leg above the knee, and who a year after the accident was unable 
 to work, and testified that if he walked, stood, sat or kept his leg 
 down for any length of time he became dizzy.* 
 
 Ten thousand one liundred and seventy-live dollars to a phy- 
 sician sixty years of age hav hig an annual income of $2,500 from 
 liis profession for injuries which made him a physical wreck is 
 not excessive, * Ten thousand dollars is not excessive for severe 
 injuries followed by pain, deformity, and inability to work. ' Ten 
 thousand dollars is not excessive for loss of a leg by an accident 
 which caused very severe pain and suffering. * Ten thousand 
 dollars is not excessive for injuries to a physician earning $2,000 
 a year which was by the accident cut off. ° Ten thousand dollars 
 is not excessive where a woman was injured m a collision by which 
 both legs were broken, one in several places and the lower 2)art of 
 tlie bone criislied and slie w^as otherwise severely bruised and the 
 injuries were permanent* Ten thousand dollars is not excessive 
 where a person was struck down in the noon of life and made a 
 paralytic with little or no hope, according to medical testimony, of 
 amendment in the future. '' Ten thousand dollars is not excessive 
 for the loss of an arm by a boy belonging to a laboring family. * 
 Ten thousand dollars is not excessive for personal injuries causing 
 permanent loss of health and ability to labor. ' Ten thousand 
 dollars is not excessive where the injured person is a young man 
 and the mjur}^ unfits him for pursuing his calling, and his wages 
 about equaled the interest on that sum.'" Ten thousand dollars 
 is not excessive where the m jured person was lamed and deformed 
 in one leg for life, his shoulder disabled, and he was rendered 
 
 ^Berg v. Glncago, M. & St. P. R. Co. 50 Vis. 419. 
 
 ^Qratiot v. Missouri Pac. B. Co. (Mo.) May 19, 1891. 
 
 ^Porter v. Hanmhal & St. J. R. Co. 71 Mo. 66, 86 Am. Rep. 454. 
 
 "Atchinson, T. t6 S. P. R. Co. v. Moore, ?A Kan. 197. 
 
 ''Carthage Tump. Co. v. Andrews, 102 Ind. 138, 53 Am. Rep. 653. 
 
 «7V/e Oeovge Washington v. Cavan, 76 U. S. 9 Wall. 513, 19 L. ed. 787. 
 
 ' United States v. Juniata, 93 U. S. 337, 23 L. ed. 930. 
 
 ^Ketchum v. Texas & Pac. R. Co. 38 La. Ann. 777. 
 
 ^Columbia & P. S. R. Co. v. Hawtftorne, 3 Wash. Ter. 353; Gulf, C & S. 
 
 F. R. Co. V. Silliphant, 70 Tex. 623. 
 ^^Bowers v. Vnion Pac. R. Co. 4 Utah, 215.
 
 758 1)AMA.CtKS AGGKAVATION OF HURT OR DISEASE. 
 
 wholly unable to perform manual labor. ' Ten thousand dollars 
 is not excessive for incurable injuries which deprive a person of 
 power to earn a liveliliood and which have necessitated medical 
 treatment for several years. " Ten thousand dollars is not exces- 
 sive in favor of a boy of seven years for the loss of one leg and 
 the permanent weakening of the other.* 
 
 § 207. Verdicts held Excessive. 
 
 In contrast with the above cases are the following, in which 
 the court has either set aside or reduced a verdict for excessive- 
 ness. In this list have been placed verdicts less than $10,000 in 
 amount for the obvious reason that if the smaller amount is re- 
 garded as excessive, the fate of a larger verdict in similar cases is 
 clearly indicated. 
 
 Thirty thousand dollars for injuries resulting in the amputation 
 of a boy's legs, one at the ankle and the other at the knee, is ex- 
 cessive. * Twenty-five thousand dollars as actual damages and 
 $16,927.40 exemplary damages, was lield excessive, although a 
 remittitur was entered for exemplary damages. * Twenty-five 
 thousand dollars was reduced to $5,000 where the injury resulted 
 in inflammation of the liip joint which caused great pain and sub- 
 jected the injured person to loss of time and business and required 
 large expenses for medical assistance, but left him able to go about 
 without crutches fully able to earn his livelihood and well disposed 
 to enjoy life, needing only proper treatment for a complete cure. ° 
 
 Twenty thousand seven hundred and fifty dollars is excessive 
 for injuries to the ankle joint of a man fifty-four years old which 
 required amputation of the foot and resulted in inabiHty to walk 
 witlioutcrutclies attended by much 2)ain and inconvenience, where 
 lie was able to attend to his lousiness as a merchant except where 
 manual lalxu- was re<piired, and there was no proof of injury to 
 iiis business; the court, however, consented to let the verdict 
 stand for $1»>,750.' 
 
 >JJ(tinel.'< V. Union Par. It. (h. (5 Utah, 357. 
 
 '^Kocller V. Manhattan Kiev. 11. Co. 8(5 N. Y. S. R. 611. 
 
 ^Ft. Worth & D. V. M. Co. v. IMcrtnon (Tex.) .Ivine 1»), 1891. 
 
 *UeddUH V. Chicacio & N. W. R. Co. 74 Wis. 239. 
 
 "Qulf, C. iSb 8. F. R. Co. v. (Inrdon, 70 Tex. 80. 
 
 ^VeytoTt. V. Texan Pac. R. Co. 41 La. Ann. 861. ' 
 
 ''Kenunn v. Gilmer, ft Mont. 257, 51 Am. Hop. 45.
 
 Eigliteen thousand dollars is excessive for injurv to abrakernan 
 which almost wliolly unfits liini for l)iisiiies8 where interest thereon 
 iit the le<i:;al rate would auit)niit to $1,SOO, whicli i^^ tliree times as 
 much as he would have earned in liis l>nsiness.' 
 
 Fifteen thonsaud dolhirs was reduced to $2,000 where tlie in- 
 jury was to the hand of a person earniuo- $00 a month and about 
 the a^e of forty-three, and the usefuhiess of the hand was not 
 entirely destroyed."^ 
 
 Fifteen thousand dollars was reduced to $5,000 where the injury 
 was to a woman fifty-three years old and probably ciippled her 
 for life owintr to injury to the spinal cord, causing intermittent 
 .suffering and an inability to walk. ^ A verdict of $15,000 was set 
 aside wliere the evidence of actual damage did not justify it.* 
 
 Fourteen thousand eight linndred and thirty-three dollars for 
 injuries to a man twenty-one yeai's old, thus depriving him of the 
 <imployment fr<,»ni which he realized over $50 per month, was 
 I'xcessive.' 
 
 Ten thousand dollars for injui-ies to a nian seventy years old, 
 by which he was confined to his house for several months, and 
 which caused a shortening of the leg two inehes, was excessive.* 
 
 Ten thousand dollars is excessive for a componud fracture of a 
 
 Ten thousand dollars in favor of a married woman for pain and 
 *«uffering resulting from injuries causing nei-vous prostration and 
 the reappearance of a certain internal inclination from which she 
 had been free foi- about three years is excessive.' 
 
 Ten thousand dollars for injuries to a stout healthy woman by 
 which her leg was liroken. her arm dislocated, her back, shoulder 
 and side injui-ed so tiiat she iiad not recoveivd and was able to do 
 little work at the end of two years, and was uuable to walk for 
 four months after the accident, was reduced to $5,000/ 
 
 ^Chicago & N. W. R. Go. v. Jackson, 55 111. 497. 
 
 *fiomar v. Lomsiana, i\'. tfc 6'. Ti*. Co. 42 La. Aun. 983. 
 
 'Furnitth v. Mmovri Puc. R. Co. 102 Mo. 438. 
 
 •^International & G. i\'. R. Go. v. Uin/ej'icood, 64 Tex. 465. 
 
 ^Soutktcesfern R. Co. v. Singleton, 66 Ga. 252. 
 
 •^Chicago Wed. Din. R. Go. v. Uomland, 12 111. App. 561. 
 
 'Union Pae. R. Co. v. Hause, 1 Wyo. Ter. 27. 
 
 ^Lockwood V. Twenty -Third St. R. Co. 15 Daly, 374. 
 
 * Missouri Pac. R. Co. v. Te.v(ts I'ac. R. Co. 41 Fed. Hep. 311.
 
 760 DAMAGES AGGKAVATION OF HURT OK DISEASE. 
 
 Ten thousand dollars is excessive where the proof shows that 
 defendant's negligence was but slight and plaintiff's was greater.' 
 
 Ten, thousand dollars is excessive for injuries to a brakeinaii, 
 which resulted in the amputation of his leg about ten inches below 
 the knee, where there was no evidence as to what he was eaniing 
 at the time of the injury or what he had paid or had contracted 
 to pay out by reason of the injury, or that he lost any time, or 
 that his ability to earn money was impaired.* 
 
 Ten thousand dollars for compensatory and punitive damages is*- 
 excessive although the injuries were caused by gross negligence 
 and are serious causing several months' confinement, a severe 
 nervous shock, and partial paralysis of one leg, where it is not 
 clearly shown that the injuries are permanent.^ 
 
 Eight thousand dollars was held excessive and reduced to 
 $6,000 for loss of a hand by a cooper who was at the time of the 
 accident employed as a teamster where his own negligence con- 
 tributed to the injury and there was little evidence of his former 
 or present capacity for labor, and none as to the amount of his 
 ordinary earnings.^ Kine thousand two hundred and fifty dollars 
 was held excessive for injuries to an engineer which resulted in 
 concussion of the spinal cord producing a diseased condition of 
 the nervous system where he was most of the time free from pain 
 and able to engage in business, though not as an engineer.' Seven 
 thousand five hundred dollars was reduced to $4,500 where tlu^ 
 injuries resulted in the loss of a leg by a negro who would 
 probably earn $200 a year and was twenty-four years of age.* 
 
 Six thousand six hundred dollars was reduced to $3,000 for the 
 fracture of the arm of a cliild five years old which remained per- 
 manently disfigured.' Six thousand five hundred dollars for the 
 loss of a thumb and forefinger is excessive.* Six thousand dollars 
 for injuries so a woman not permanent in their nature, which de- 
 
 ^ Central R. Co. v. Smith, 70 Ga. 209. 
 
 ^Mmuitri Pac, U. Co. v. Dwijer, 36 Kan. 58. 
 
 ■LonimHe S. li. Co. v. Minogue (Ky.) 12 Ky. L. Kep. 378. 
 
 *Murriiy v. Uudtion Jliver It. Co. 47 Barb. 190. 
 
 "■Siviix City & P. It. Co. v. Mnlayson, IG Neb. 578, 49 Am. Rep. 724. 
 
 '■Lamjilcim v. VidcHhurg, S. & P. 11. Co. 42 La. Ann. 997. 
 
 -'Ryder v. New York, 18 Jones & S. 220. 
 
 ''Kannas Par. R. Co. v. l'rnv(y, 34 Kan. 472.
 
 YKKDIOTS HKLD EXCi:f>SiV K. 761 
 
 prived her temporarily of the oppc»rtnnity of earning $9 a week, 
 is excessive wliere no reasonable estimate of the pain and suffering 
 could justify it. ' Six thousand dollars for injuries to a common 
 laborer employed in digging clay, which permitted him to resume 
 lighter work in a short time and to continue it at intervals, although 
 suffering irom the hurt, is excessive. * Six thousand dollars was 
 held excessive and reduced to $4,000 where a passenger on a rail- 
 road had his leg broken and received some flesh wounds in the 
 head and was restored to sound health after ten months, the only 
 permanent result being that one leg was somewhat shorter than 
 the other. * 
 
 Five thousand dollars is excessive where the injury was a tem- 
 porar}' loss of the sight of one eye. * Five thousand dollars was 
 reduced to $3,000 where the injury was caused by falling into an 
 excavation and consisted of a laceration of the right arm whereby 
 the hand became somewhat smaller and flexed the wrist joint, the 
 circulation being impaired and a slight use of the hand being pos- 
 sible, and the evidence showed that the hand and arm might be 
 restored to a great extent. '^ Four thousand five hundred dollars 
 is excessive for injuries i-esulting in the fracture of an arm where 
 the only evidence of permanence of the injury is the testimony 
 of plaintiff and a fellow laborer tliat he could not do the work of 
 an able-bodied man in his occupation as grain stower in an elevator. * 
 Four thousand dollars is excessive for a mere broken leg Avherethe 
 fracture had perfectly united and would never again cause trouble. ^ 
 Three thousand six hundred and thirty-eight dollars in favor of 
 a seaman who fell through an open hatchway was reduced to 
 $1,200, where although seriously wounded he was discharged 
 from the hospital in three months mth his wounds healed; 
 although four years later he swore that he still felt the effects of 
 his fall but was uncorroborated by his own medical experts, and 
 
 ^Langley v. Sixth Ave. R. Go. 16 Jones & S. 542. 
 
 ^Chicago Anderson P. B. Co. v. S»bkoiriak, 34 111. App. 313. 
 
 ^Glapp V. Hudson River R. Co. 19 Barb. 461. 
 
 *Tinney v. New Jersey S. B. Co. 5 Lans. 507. 
 
 ''Orleans v. Perry, 34 Neb. 831. i 
 
 ^Chicago West. Div. R. Co. v. Hughes, 87 111. 94. 
 
 'South Covington cfi C. St. R. Co. v. Ware, 84 Ky. 207.
 
 762 DAMACiES AGGRA.VATION OK HURT OJK DISEASE. 
 
 it wag shown that he exhibited no signs of existing or permanent 
 injnr3^ ' 
 
 A verdict for $25,000 is excessive in an action for personal 
 injuries by which a raih'oad conductor thirty years old was badly 
 burned about the face so as to disfigure him for life and also lost 
 the use of his left arm besides receiving some injury to his right 
 hand and both feet. " 
 
 ^The Grecian Monarch, 32 Fed. Rep. 635. 
 ^Standard Oil Co. v. Tierney (Ky.) 14 L. R. A. 677.
 
 APPENDIX. 
 
 A. 
 
 The following opinion by the Solicitoi- Goncnil of the United 
 States, and approved by the Attoriiey (reneral, is published as 
 a supplement to § 89. 
 
 "Dkpartment of Jdstick, Washington, ) 
 
 Sept. K), 1892. )" 
 "TA(3 President: 
 
 "Sir — By your teleo-ram of yesterday, you ask for an opinion 
 as to the extent of the Marine Hospital service, and of the power 
 of the Secretary of the Treasury, with your approval, to make 
 quarantine regulations with rot'erence to innnigration from in- 
 fected ports. 
 
 "In answer I have to say that every government is under «>bli- 
 gation to take necessary measures to preserve the life and prop- 
 erty of its citizens, not only from foreign invasion, but to adopt 
 such sanitary measures as are calculated to protect the people 
 from those pestilences which have been found nearly, if not quite, 
 as destructive as war. 
 
 "This is but another application of the maxim that self-pi'eser- 
 vation is the first law of nature, ai\d it may be added of nations. 
 
 "The right of the state to enact sanitary measures to protect its 
 citizens is conceded. The right of the United States to do the 
 same must be admitted. 
 
 "The maxim Salus jxjjjuh' suprema eat lex. is as a])])li<'al)le to 
 the one government as to the otluu'. The powers granted Con. 
 gress in Art, I. ^ 8 of the Constitution, 'to regulate commerce 
 with foreign nations and among the sev(M-al states and Avith the 
 Indian tribes, and to make all laws wliich shall be necessary and 
 proper for carrying into execution the foregoing powers, and all 
 other powers vested by this Constitution in the Government of 
 the United States or any department or officer thereof, otfered 
 ample warrant for legislation by Congress upon this subject.' 
 
 763
 
 764 APPENDIX. 
 
 "This is but one of a large number related to and affecting in dif- 
 ferent degrees the subject of commerce, upon which the states, in 
 the exercise of the police power, are free to act and have acted 
 from the foundation of the government. Pilotage, wharfage, 
 quarantine and inspection laws are perhaps the most common ex- 
 amples of this class of legislation. 
 
 ''There are other instances of concurrent legislation not all 
 related to commerce. For example : The state in the exercise 
 of its police powers for the regulation of the liquor traffic requires 
 the payment by a manufacturer or dealer in intoxicants of a license 
 without at all interfering with that state requirement. It is en- 
 tu'ely competent and the common practice for the Federal gov- 
 ernment to require the payment of an additional license. 
 
 "So the Federal government forbids, under a severe penalty, 
 the circulating of counterfeit coins and securities. Without at all 
 conflicting with the Federal statutes the state may, and does, im- 
 pose penalties for the same acts. 
 
 "So, coming more closely to the subject-matter, it is held com- 
 petent for the state authorities to impose a tax upon ships for the 
 purpose of paying the expenses of administering her inspection or 
 quarantine laws, and at the same time the general government 
 may and does impose a head tax on immigrants for a like purpose 
 and this is not understood to involve any necessary conflict of 
 jurisdiction.' 
 
 "These are subjects largely local in their character, and hence, 
 doubtless, it has been supposed that they could be more effectu- 
 ally and satisfactorily managed through local law. It cannot be 
 doubted, however, that with reference to those subjects confided 
 to the nation that 'Congress has the power to go beyond the gen- 
 eral regulations which it is accustomed to establish and to descend 
 to the most minute directions, if it shall be deemed advisable; and 
 tliat to whatever extent ground shall be covered b^^ these direc- 
 tions, the exercise of state poM'cr is excluded. Congress may 
 e8tal)lish ])olice regulations as well as the states, confining their 
 operation to the subjects over wliich it is given conti-ol by the 
 Constitution.'" 
 
 Wfon/aiiH L d: T. R. tf: SS. Co. v. Uuiniutui, lib L'. .S. 455, ;{0 L. ed. 
 
 2:J7. 
 
 'Coolfv, (;<'iiHl. T.iin jip 7'i'2. 12'^.
 
 APPENDIX. 765 
 
 "To tlio extent that Congress does act upon the subjects within 
 tlie Constitution its authority is paramount. In some cases it is 
 said to be exclusive. The distinction establislied by the authori- 
 ties is that it is only exchisive wliere the intention of Congress is 
 shown that it shall be so, or when it is necessary to be so, to carry 
 out the Tiational will or preserve the functions and powers of the 
 national government; in all other cases there may exist and be 
 enforced at the same time and upon the same subjects both state 
 and national laws. In so far as there is any conflict the latter 
 prevails. 
 
 "Quarantine laws are authorized as a part of the powers derived 
 under the commerce clause of the Constitution, which is held to 
 consist in intercourse and traffic, and includes navigation, trans- 
 portation and transit of persons and property, as well as the pur- 
 chase, sale and exchange of commodities.' 
 
 "The undoubted right of both the state and national govern- 
 ments to legislate upon this subject being established, as well as 
 the supremacy of the Federal authority in case of conflict, it re- 
 mains to examine the existing legislation upon the subject. 
 
 "From an early period'^ Congress has adopted the state laws 
 upon the subject of quarantine. Section 4,792 is as follows : 
 
 " 'The quarantines and other restraints established by the health 
 laws of any state, respecting any vessels arriving in, or bound to, 
 any port or district thereof, shall be duly observed by the officers 
 of the customs revenue of the United States, by the masters and 
 crews of the several revenue cutters, and by the military officers 
 commanding in any fort or station upon the sea coast, and all such 
 officers of the United States shall faithfully aid in the execution 
 of such quarantines and health laws, according to their respective 
 powers and within their respective precincts, and as they shall be 
 directed, from time to time, by the Secretary of the Treasury, 
 But nothing in this title shall enable any state to collect a duty of 
 tonnage or impost without the consent of Congress.' 
 
 " Section 4,793 provides for the discharge of the cargo of a 
 Nessel in quarantine ' whenever by the health laws of the state, or 
 
 * Morgan's L. & T. R. & 88. Co. v. Louisiana, 118 U. S. 455, 30 L. ed. 
 237; Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; The Passenger 
 Cases, 7 How. 283, 12 L. ed. 703; Gibbons v. Ogden, 22 U. S. 9 Wheat. 1, 
 6 L. ed. 23. 
 
 «1799. Rev. Stat. § 4792, et seq.
 
 766 AITKNDIX. 
 
 by regulations made pursuant thereto, any vesBel arriving within 
 a collection district of sucli state is prohibited from coming to the 
 port of entry or delivery by law established for such district and 
 such health laws require or permit the cargo to be unladen at 
 some other place within or near to such district,' etc. 
 
 " Section 4794 provides for the purchase or erection of quaran- 
 tine warehouses. 
 
 "Section 4795 provides for tlie deposit of goods in such ware- 
 houses. 
 
 Section 4796 is as follows : 
 
 *"The Secretary of the Treasury is authorized, whenever a con- 
 formity to such quarantines and health laws requires it, and in re- 
 spect to vessels subject thei-eto, to prolong the terms limited for 
 the entry of the same and the rejjort or entry of tlie cargoes, and 
 to vary or dispense with any other regulations applicable to such' 
 reports, j^o part of the cargo of any vessel shall in any case be 
 taken out or unladen therefrom, otherwise than is allowed by law. 
 or according to the regulations hereinafter established.' 
 
 "This law was supplemented by the Act of April 29, 1S7S (20 
 Stat, at L. 37), which is yet in force. I quote entire Act: 'Be ir 
 enacted by the Senate and House of Representatives of the United 
 States in Congress assembled, that no vessel or vehicle coming 
 from any foreign port or country wliere any contagious or infec' 
 tious disease may exist, and no vessel or A^ehicle containing any 
 person, merchandise or animals affected with any contagious or 
 infectious diseases, shall enter any port of the United States or 
 pass the boundary line between the United States and any foreign 
 country contrary to the quarantine laws of any one of said states, 
 into or through the jurisdiction of which said vessel or vehicles 
 may pass, or to which it is destined, or except in the manner and 
 subject to the regulations to be prescribed as hereinafter provided. 
 
 " 'Section 2. — That whenever any infectious or contagious disease 
 shall apj)ear in any foreign port or country, and whenever any 
 vessel shall leave any infected foreign port, or having on board 
 •roods or passengers coming from any place or district infected 
 with choh-ra or yellow fever, shall leave any foreign port, bound 
 for any port in the United States, the consular officer, or other 
 representatives of the United States, at or nearest such foreign
 
 Al'l'ENDIX. 767 
 
 port, shall immediately give information thereof to the Supervis- 
 ing Surgeon General of the Marine Hospital, and shall report the 
 number, the date of departure and the port of destination of such 
 vessel; and shall make the same report to the health officer of the 
 port of destination in the United States, and the consular officers 
 of the United States shall make weekly reports to him of the sani- 
 tary condition of the ports at which they are stationed, and the 
 said Surgeon General of the Marine Hospital Service shall, under 
 the direction of the Secretary of the Treasury, be charged with 
 the execution of the provisions of this Act, and shall frame all 
 needful rules and regulations for the purpose, which rules and 
 regulations shall be subject to the approval of the President, but 
 such rules and regulations shall not conflict with or impair any 
 sanitary or quarantine laws or regulations of any state or munic- 
 ipal authorities now existing, or which may hereafter be enacted. 
 
 '* 'Section 3, — That it shall be the duty of the medical officers of 
 the Marine Hospital Service and of custom officers to aid in the 
 enforcement of the national quarantine rules and regulations 
 established under the preceding sections; but no additional com- 
 pensation shall be allowed said officers by reason of such services 
 as they may be required to perform under this Act, except actual 
 and necessary traveling expenses. 
 
 " 'Section 4. — That the Surgeon General of the Marine Hospital 
 Service shall, upon receipt of information of the departure of any 
 vessel, goods or passengers from infected places to any port in the 
 United States, immediately notify the proper state or munic- 
 ipal and United States officer or officers at the threatened port of 
 destination of the vessel, and shall prepare and transmit to the 
 medical officer of the Marine Hospital Service, to collectors of 
 customs, and to the state and municipal health authorities in the 
 United States, weekly abstracts of the consular sanitary exports 
 and other information received by him. 
 
 " 'Section 5. — That wherever, at any port of the United States, 
 any state or municipal quarantine system may now, or may here- 
 after exist, the officers or agents of such system shall, upon the 
 application of the respective state or municipal authorities, be 
 authorized and empowered to act as officers or agents of the 
 national quarantine system, and shall be clothed with all the pow-
 
 T68 APPENDIX. 
 
 ers of United States officers for quarantine purposes, but shall 
 receive no pay or emoluments from the United States. At all 
 other ports where, in the opinion of the Secretary of the Treasury, 
 it shall be deemed necessary to establish quarantine, the medical 
 officers or other agents of the Marine Hospital Service shall per- 
 form such duties in the enforcement of the quarantine rules and 
 regulations as may be assigned them by the Surgeon General of 
 that service, under this Act: Provided, that there shall be no 
 interference in any manner with any quarantine laws or regula- 
 tions as they now exist or may hereafter be adopted under state 
 laws. 
 
 " 'Section 6. — ^Tliat all acts or parts of acts inconsistent with this 
 Act be and the same are hereby repealed. 
 
 " 'Approved April 29, 1878." 
 
 " In my opinion there is nothing in the Act of 1879 inconsist- 
 ent with this Act except that dititerent persons are charged with 
 its enforcement, and therefore both, with the modification noted, 
 in force and constitute, with such regulations as are or may 
 be prescribed thereunder, the national law upon that subject. 
 
 " The intent to aid in the enforcement of the state laws upon 
 the subject is manifest, or in the language of the Act, 'there shall 
 be no interference in any manner witli any quarantine laws or 
 regulations as they now exist or may hereafter be adopted under 
 state laM^s.' 
 
 " Both shall work to the same end, the keeping away from our 
 homes and people contagion and pestilence; and in the same spirit 
 the state officers may become clothed with the national j)ower and 
 authorized and empowered to act as officers and agents of the 
 national quarantine system, etc. 
 
 "While this is true, does it follow that nothing can be done 
 except what is authorized by the state law? 1 think not. The 
 only limitation is that the Federal regulations must not interfere 
 with the state laws. For instance, the quarantine laws for the 
 liarbors and port of New York, as established by the state, do not 
 prescribe any quarantine period. That is left to the health offi- 
 cer. Suppose the period named by him is deemed too short. It 
 is in my opinion clearly competent, under the acts of Congress above 
 quoted, to prescribe a longer period both for persons and cargo,
 
 APPENDIX. 769 
 
 the I'egulations caivfiilly prdvidiuij tliat the Federal jurisdiction 
 should attach upon the expiration of state action. 
 
 "The contrary of this ])ro])osition is not to he supposed. A 
 state niiglit l)e witliout the madn'nery to I'liforcti a safe cpiaraiitine; 
 its officer niii>'ht throuiili uiistjikcn opinions or (Mtrrnpt motives 
 fail in his duty. 
 
 ''It is uot to he tolorat(.'(l tliat an entire |>t'ople possessiuiJ- a ijov- 
 enuuent en(h>\ved with the powers I luive enuniei'nted, should he 
 exposed to the scourge of eonta_iiion and pestilence throu^'li such 
 causes. 
 
 ""Paraph rasinii' the lan<iiiaij;e of the court.' it uuiy he safely 
 asserted that any ohHi;'ation faii'ly and properly infei-alde from 
 the Constitution or any duty of any otHcer to he (kn-ivenl from the 
 general scope of liis duties uiuh'r the hnvs (»f tlic United States, is 
 a law of the United Stares, and it W(»ukl he a great reproach 
 to the system of government of the Ignited States, declared to be 
 within its sphere sov^ereigii and supriMoe. if there is to he found 
 within the domain of its powei's no means of protecting the peo- 
 ple from contagion and pestilence brought from foreign shores. 
 JNor can Congress be said to have failed t(» exei'cise its rights to 
 so provide for the protection of our people. 
 
 "In establishing the national quarantine system, as it is denom 
 inated in the Act of 1878, aiul conferring upon certain officers 
 power 'to frame all needful rules and regulations U>y that piir 
 pose,' which rules, when a[)proved by you, have all the force of 
 law, an intention is shown to vest here wide discretion. 
 
 •'The only limitation is that such i-egulations sluill ]U)t conflict 
 with or impair any sanitai-y or (jnai-antine I'egulations of the state 
 or municipal authoritie.-. 
 
 "In mastering the effect of rhi> liniiration it must iu»t Ih' ft^rgot 
 ten that the state laws and regulati(»ns are in the nature of restric- 
 tion, and iK^t in the nature of grants of authority to either 
 immigrants or trans])oi'tation companii^s. 
 
 "The authority of inmngi-ants t<» come, and of transportation 
 companies to hriug sucii inmiigrants, is iu»t derived from the state 
 statutes or regulations. The state bv its statutes and regulations, 
 in the exercise of its police powers, simply provides that immi- 
 
 'AV Neagle, 135 U. S. 59, 34 L. ed. 69. 
 49
 
 770 APPENDIX. 
 
 grants shall not come in except after compliance Mith such laws 
 and regulations. 
 
 "The state does not provide, and has no power to provide, as 
 against Federal laws and regulations, that upon such compliance 
 such ships and immigrants shall come in. 
 
 "Hence, consistently with the state laws and regulations, it is 
 entirely competent for Federal regulations to impose additional 
 restrictions; and hence, also, the imposition of an additional period 
 of quarantine, or the total exclusion of all 'vessels or vehicles 
 coming from any foreign port or country where any contagious 
 disease may exist,' or 'vessels or vehicles containing any person 
 or persons, merchandise or animals affected with any infectious or 
 contagious disease' from 'any port of the United States,' is within 
 the powers conferred upon the officers named in your inquiry act- 
 ing with your approval. 
 
 Yery respectfully, 
 Charles H. Aldeich, Solicitor General. 
 Approved: 
 
 W. H. H. MiLLEKj Attorney GeneraV
 
 IIS^DEX. 
 
 A. 
 
 PAGE. 
 
 ABATEMENT. 
 
 of suit by death of parly injured, 609 
 
 ACCIDENTS. 
 
 (iefiued {note), ' 74 
 
 ■what are properl}' so called, 75 
 
 Dangers. Accidents and Precatttions (Chap, v.), 67 
 
 duty to investigate and determine cause of, 76 
 
 arising from fracture of car wheel owing to latent tlaw, 75 
 
 carrier not insurer nor responsible for, 26, 48, 71 
 
 no action lies for injury resulting from casualty purely accidental, 76 
 
 instances of, from human fallibility, 77 
 
 theory as to law of prioi- observation, 79 
 railroad company not bound to construct track to meet extraordinary 
 
 floods, 68 
 
 precautions against human fallibility, automatic signals, block system. 80 
 continued wet weather not unforseen contingency to release railroad 
 
 company from consecjuence thereof, 71 
 
 liability of railroad conjpany for neglect to examine road, 71 
 
 traveler assumes risk of (note), 74 
 
 ACTION. 
 
 by busband and children, 738 
 for benefit of child, 733 
 for loss of baggage, 591 
 Actions Against Caukiehs (Chap, xxix.), 604 
 right of, and form of action and recovery, 604 
 for injury to wife, child or servant, 605 
 rules of pleading, 608 
 abatement of suit l)y death of party injured — Federal and state courts, 609 
 in admiralty, 610 
 action for death caused by defendant's negligence, 616 
 criminal action for negligence causing death, 619 
 state statutes regarding actions for death caused by another's negli- 
 gence, 622 
 statutory provisions on negligence causing death, 627 
 limitation of actions for death by negligence, 630 
 
 771
 
 772i INDKX. 
 
 ACTION— contiuued. page. 
 venue of action, 632 
 wheu repealed does not effect pending actions, 632 
 form of action determines measure of relief, 633 
 evidence of authority to bring statutory action, 633 
 proper plaintiff in action for damages for deatli, 635 
 action out of jurisdiction where injury occurred, 643 
 who may bring action in foreign jurisdiction, 652 
 rule of damages in action for death from negligence, 655 
 statutes regulating damages for death from negligence, 657 
 statutory provisions for distribution of recovery for death from negli- 
 gence, 661 
 liability of receivers, distinction between statutory and common law 
 
 actions, 593 
 
 ACT OF GOD. 
 
 defined, ~ 68 
 
 no presumption of negligence where accident caused by, 693 
 
 landslide not, 68 
 
 storm need not be unprecedented to constitute, 71 
 
 as releasing liability of carrier for baggage, o54 
 
 ADMIRALTY. 
 
 rule of contributory negligence in admiralty jurisdiction, 674 
 
 right of action in, for death, 610 
 
 jurisdiction of, as to torts, 651 
 
 AGENCIES OF COMMERCE. See Ixtekstatk Commerce. 
 
 state and national control over, 450 
 
 ANNOUNCEMENT. See Station. 
 
 of station. 138 
 as to purchase of ticket before slarting to ride on caboose is sufficient, 257 
 
 APPROACHES. See Station. 
 
 care over, 101 
 
 testation, provided upon the premises of )lliers, 121 
 
 to station, liability for injury from use of usual one, 385 
 
 ASSAULT. 
 
 liability of sleeping car company, for negligence or, 3 
 
 for assault by porter. 348 
 
 if passenger provokes, carrier is not liable,. 371 
 
 conductor guilty of, for forcibly ejecting passenger when, 214 
 
 by employe's, intoxication of passenger does not e.vcuse, 224 
 conductor seizing passenger's property to enforce payment of fare is 
 
 guilly of, 340
 
 JNDKX. 77''> 
 
 VAOK. 
 
 remedy for, is against company, 341 
 
 carrier cannot accept passenger whose pieseuce would expose train 
 
 to assault from mob, 161 
 
 AXLE. 
 
 breaking of, prima facie negligence, 414, 694 
 
 B. 
 
 BADGE. 
 
 that as<ailant wore badge and lettered cap not sufficient evidence to 
 
 create liability of carrier, 349 
 
 BAGGAGE. 
 
 what comes witbin the. term passenger's baggage, 561 
 
 checks, as evidence of receipt of, 555 
 
 there must be delivery of, to carrier, 554 
 
 action for loss of, 591 
 
 damages for loss of, '•'45 
 
 lieu of carrier on, for charges, 590 
 
 Carriek's REsroNsiBri>iTY for B\(;ua(4E (Chap, xxvii.), 551 
 
 carrier's liability for loss of, 551 
 
 regulations restricting liability for, 571 
 
 lermination of liability for, 582 
 
 liability for, in charge of different railroad, 546 
 
 liability of connecting carriers for, 588 
 
 loss of hand bag through window, refusal to stop train, 559 
 
 delivered before purchase of ticket, liability for loss of, 560 
 
 liability for, when left in car on assurance of safety, 553 
 
 interstate transportation of, statute of state of delivery governs, 553 
 
 merchandise carried as, 555 
 
 BAGGAGE CAR. 
 
 passenger riding in. when not negligence, 254 
 
 with knowledge of conductor, 252 
 
 contrary to rules, liability for injury, 405 
 
 BAGGAGE MASTER. 
 
 general authority as agent to receive baggage, 575 
 
 BARKEEPER. 
 
 in steamer is passenger, 6
 
 77i INDEX. 
 
 BEAMS. r\riK. 
 
 dutj- of elevator proprietor to inspect, 316 
 
 BERTHS. See Sleeping Car. 
 
 sale of, in sleeping car, and regulations thereof, 237 
 
 responsibility of carrier for falling of, 237 
 
 BILL OF LADING. 
 
 stipulations in, no protection against liability for negligence, 263 
 
 BLOCK SYSTEM. 
 
 automatic signals, 80 
 
 BOARD OF HEALTH. See Quarantine. 
 
 state, power of in maltt-r? of quarantine, 293 
 
 appendix, 763 
 
 BOILER. 
 
 liability for explosion of, upon ferry boat, 65 
 
 explosion of, is prima facie evidence of negligence, 298 
 
 BRAKE. 
 
 injury caused by projecting, 99 
 
 BRAKEMAN. 
 
 has no authority to bind company, 253 
 
 has no authority to eject passenger in absence of express orders, 340 
 
 railroad company liable for damages for ejection by, 175 
 
 carrier's liability for acts of, 327 
 
 carrier liable for kicking passenger, 341 
 
 selling ticket to as justification for getting on wrong train, 197 
 
 company liable for assault of, on gentleman attempting to enter a 
 
 lady's car, 364 
 
 killed while working in violation of Sunday law, action against rail- 
 road company, 540 
 
 BRIBE. 
 
 use of, to ride contrary to rule will relieve company from liability, 255 
 
 BRIDGE. 
 
 responsibility of carrier for conslnictioii of, 55 
 
 liability of carrier for use of unsafe bridge, 50 
 carrier not relieved from consequences of an accident arising from 
 
 deficiencies from having engaged incompetent engineers, 67 
 
 presumption of carrier's negligence from injury to passenger by, 696 
 
 over navig;ible waters, national control of, 444 
 
 evidftnce as to defective condiiion of cuiitincd to time and place of 
 
 accident, 722
 
 INDEX. 775 
 
 PACE. 
 
 truss replaced by girders, 84 
 
 liability for defects in, leading to station grounds, 102 
 
 evidence of expert as to length of lime material in, will last, 720 
 
 BROKERAGE. 
 
 ticket brokerage, 491 
 
 BURDEN OF PROOF. See also Presumption, Evidence. 
 
 of negligence when on plaintiff, 683 
 
 of negligence at railroad crossing, 621 
 
 upon carrier to show that injuries were without his fault, 24 
 
 to show exemption from liability under special contract, 266 
 
 of preference or prejudice is on complainant, 507 
 
 CABLE. 
 
 presumption of insuflieiency in case of breaking of, 322 
 
 where broken and much worn, negligence question for jury, 316 
 
 CABLE CAR. 
 
 vigilance required by gripman, 37 
 
 CABOOSE. See Fheight Train. 
 
 person riding in, when not passenger, 255 
 
 injury to passenger riding in, 407 
 announcement as to purchase of tickets upon before starting is 
 
 sutficient notice, 257 
 
 box car used as, degree of care required, 249 
 lumber falling against passenger jumping from, through fright, not 
 
 negligence, 415 
 rule requiring jierson holding drover's pass to remain in, reasonable, 269 
 
 CAPITAL STOCK. 
 
 of interstate ferry company not taxable by stale, 441 
 
 CARRIERS. See Vessels Carrying PASsEN(iERS. 
 
 common carriers, who are, 2 
 
 liability of, not part of ancient common law, 72 
 
 relation between owner of passenger elevator and those carried, 2 
 
 public carriers of passengers, who are. 1 
 
 ilRi.ATioN OF Passenger and C.usrtku, how Created (Chap. r.\ 1 
 
 duty to accept passengers, 4
 
 770 '^ JNDKX. 
 
 CARRIERS— continued. page. 
 
 railroad company switching cars for all railroads is, 2 
 
 contractor in charge of construction train, not, 2 
 
 providing hand car renders corporation liable as, 2 
 
 origin of railway car, 21 
 
 elevator proprietor as, 2, 308 
 distinction between contract for conve3'auce of passengers and of 
 
 goods, 215 
 distinction as to liability of carriers of goods and passengers, 23, 72 
 duty of, not necessarily in contract, but collateral, 19 
 bound to receive whom, as passengers, 160 
 train of standing cars as invitation to accept the terms for transpor- 
 tation, 3 
 may constitute itself public carrier, how, 3 
 by steam, held to greatest care and diligence, 48 
 owner liable for negligence, 48 
 of passengers not an insurer nor responsible for accidents, 28, 48. 71 
 dulj'^ of, to investigate and determine cause of accident, 76 
 latent defect, 28 
 proprietor of coach not liable for accident resulting from, 28 
 duty of, to exercise ordinarj' care and diligence, 218 
 utmost care and diligence defined, 218 
 Acceptance axb Recusal of Passengers (Chap, ix.), 159 
 exclusion of passengers, on account of color, etc., 159 
 care and selection of operative employes, 77 
 liability of, as master — what must appear, 348 
 Liability fok Neoi,i(;ence or Vioi,ence of Servants (Chap. 
 xviii.), 327 
 modern rule of liability for wanton violence of employes, 335 
 right and duty to remove passenger, 163 
 liability for unnecessary force in ejecting passenger, 175 
 of passengers only liable for negligence (note), 74 
 responsibility for negligence, 216 
 distinction as to trespassers, 216 
 must answer in damages for injury from negligence or timidily in 
 
 failing to remove passenger, 168 
 contract exempting from liabilil}' for negligence, 262 
 free transportation as condition of exemption from liability for negli- 
 gence, • 273 
 will not sustain contract excu.sing negligence, 278 
 negligence of, will excu.se otherwise rash act, 416 
 I'kuil Thkouoh thk Nkoi.mjence ok (Ciiai-. xxt.), 413 
 care over personal safely of pa.ssengers, ordinary perils, 217 
 perils not inci«lent to ordinary modes of travel, 219 
 assault from fellow passenger, 219 
 nui«t protect passengers from insult, 360 
 not liable for as.sault of one having lun<li privilege of trains, 349
 
 1NJ)EX. ( ( i 
 
 duty of, in regard to depots, stations and platforms, 90, 96 
 
 liability to stranger for defective station platform, 109 
 
 statutes to secure safety of passengers must be complied with, 230 
 Vessel Cakhying Passkngers— Limited Liahility (Chap, xv.;, 283 
 
 fault of, must occasion danger, 425 
 
 liable to mere spectator only for gross negligence, 109 
 
 State Contkol over Cakrieus (C'liAr. xxir.), 432 
 
 national control over charges by, 444 
 Rule of Dimc^ence Apvlied to Carkieus of Passengers by 
 
 Steam (Chap, iv.), 47 
 Sunday Traffic and Traffic over other Ho.m)s (Chap, xxvi.), 531 
 
 carrying package without revFard, liable as gratuitous bailee, 555 
 
 connecting, through tickets over, 524 
 
 liability for baggage, 588 
 
 operating over line of another carrier, 543 
 
 joint use of road by, 549 
 
 danger from hauling cars from other roud.«, 85 
 
 grain elevators as, 451 
 of goods and persons controlling grain elevators occupy analogous 
 
 positions, 468 
 
 CARS. 
 
 C^AKS (Chap, xii.), 
 
 duty to provide, responsibility, 227 
 
 must provide, and run on schedule lime, 227 
 
 carrier bound to light, when, 230 
 
 emigrants must not be transported in unfit, 232 
 
 slate may regulate numbering of, 230 
 
 carrier may acquire, in any way, 231 
 
 CAR STEP. 
 
 company liable for injury to pa.ssenger jumping from, when too high, 148 
 
 CATTLE. See Stock. 
 
 CATTLE GUARD. 
 
 liability for injuries received by passenger falling into, 103, 122, 261 
 
 CATTLE TRAIN. 
 
 degree of care required for passengers on, 250 
 
 CERTIFICATE OF INSPECTION. 
 
 penalty for taking greater number of passengers than allowed by, 300 
 
 CHANGES. 
 
 made by carrier after accident, 725
 
 778 INDEX. 
 
 CHARGES. V VGK. 
 
 national control over, by carriers, 444 
 
 state commissions to regulate, 483 
 
 CHARTER. 
 
 of railroad company as contract, 483 
 
 state control over carrier not surrendered b}' grant of, 482 
 
 not an irrepealable contract of state, 432 
 
 CHECKS. 
 
 as receipt for baggage, 555 
 
 CHILDREN. 
 
 Negligence towards Childrex, Imputed Nkgltgence (Chap. . 
 
 XXXVI.), "yss 
 
 evidence of carrier's negligence towards children, 728 
 recovery denied in action for benefit of child, 731 
 negligence of custodian of child imputed to child, 732 
 contra, 733 
 action by parent or master for his own benefit, 732 
 where action is for benefit of child, 733 
 railroad liable for injuries to, when passenger, • 2 
 when are passengers, 17 
 young, on car intending to pay fare or not, passengers. 36 
 failure to pay fare of, under care of passenger will authorize expul- 
 sion of passenger, 187 
 forcing child to jump off moving train, 214 
 in estimating number on board of vcssei no deduction for, 300 
 wrongful refusal to pass on half fare ticlcet entitles parent to damages, 198 
 
 CIVIL RIGHTS. See Xkgroes. 
 
 separate cars for white and colored i)a.ssengers must be equal in all 
 
 respects, 234 
 
 exclusion of passenger on account of color, 159 
 
 separate tables and food for white and colored passengers must be 
 
 equal in all respects, 234 
 
 CLOAK ROOM. 
 
 liabilily tor articles left in, 573 
 
 COLLISION. 
 
 liability for injury through negligence of two carriers. 425 
 negligence not im{)Uted to one killed by collision while passing be 
 
 Iwecn cars in motion, 398 
 
 I assengcr on pliitform does not assume risk of, 233 
 
 COLOR. Civil, Km i!T.-, 9ee jSeguoeb. 
 
 cxcliisioM ot pa.ssenger on account of color, 159
 
 INDEX. 779 
 
 COLOR BLINDNESS. page. 
 
 statute disqualifying person ou account of, not invalid as regulation 
 
 of commerce, 443 
 
 COMITY. 
 
 as to right of action for injury out of jurisdiction, 643 
 
 COMMERCE. See Interstate Commerce. 
 
 State and Interstate (Chap, xxiir.), 483 
 
 state and national control over agencies of, 450 
 
 COMMON CARRIERS. See Cakkieks. 
 
 COMMON LAW. 
 
 carrier's liability not part of ancient, 72 
 
 presumption as to existence of in another state, 645 
 
 COMMUTATION. 
 
 rales and tickets. 508 
 
 holders of, required to show, 184 
 
 CONDUCTOR. 
 
 power of, 173 
 
 only train hand who can bind company, ' 16 
 
 general agent of the company, when, 130, 329 
 
 carrier's liabilit}' for acts of, 327 
 
 carrier's liability for assault of, on freight train, 341 
 
 carrier's responsibility for unlawful ejection of passenger by, 338 
 
 as conservator of the peace, statutes, 356 
 
 invested by common law and statute with police power, 220 
 
 plenary authority must be exercised whenever necessary, 166 
 
 carrier's liability for false arrest of, although conservator of peace, 357 
 seizing property of passenger to enforce payment of fare is assault 
 
 and battery, 340 
 
 guilty of assault and battery for forcibly ejecting passenger, when, 214 
 
 duty of, in expelling man from train, question for jury, 187 
 
 lack of curtesy not cause for damages, 186 
 
 negligent mistake by, no excuse for expulsion of passenger, 173 
 company not liable where conductor collects f^re over connecting 
 
 road, for passenger's ejection on it, 198 
 
 traveling on freight train or baggage car with knowledge of, 252 
 permission of, to ride on freight train renders company liable for 
 
 injury, 252 
 of accommodation train, duty to keep informed as to passing of ex- 
 press train, 134 
 not negligence not to warn passenger standing on platform, 37 
 notice to, is notice to carrier, 222 
 of street car not driver of carriage within statute, 333
 
 TSO INDEX. 
 
 CONFLICT OF LAWS. page. 
 
 as to limitation of actions, 631 
 
 action out of jurisdiction where injury occurred, 643 
 
 as to right of action for death in other jurisdiction, 601 
 
 CONNECTING ROADS. 
 
 through tickets over, 524 
 
 company not liable where conductor collects fare over for passenger's 
 
 ejection on, 198 
 
 CONSERVATOR. 
 
 of the peace, conductor as, 356 
 
 CONSIDERATION. 
 
 for passage other than payment of fare constitutes person passenger, 272 
 
 CONSTRUCTION COMPANY. 
 
 contract of railroad allowing to operate road, liability, 248 
 
 CONSTRUCTION TRAIN. 
 
 contractor in charge of, is not liable as carrier, 2 
 
 carrjing passengers upon, 247 
 
 degree of care required for passengers, 250 
 
 CONTAGEOUS DISEASE. 
 
 contraction of, from ticket agent, carrier's liability, 330 
 
 CONTRACTOR. 
 
 in charge of construction train not carrier, 2 
 
 CONTRACT. 
 
 charter of railroad conapany as, 483 
 
 cliarter of railroad company re[)ealable by the state, 432 
 
 Kk1,KASING lilAlilLITY, FhKE TkANSI'OHTATION, REDUCED FaKK 
 
 (Chav. XIV.), 262 
 
 releasing liability, l-^nglish decisir>ns, 278 
 
 free transportation will not sustam, excusing negligence, 278 
 
 limiting liability strictly construed, 265 
 
 special, liniitation of liability for negligence by, 262, 265, 280 
 
 l)y one hoiiiing drover's pass to be regarded as carrier's employe does 
 
 not change relations of parties, 271 
 
 not necessary to support action for negligently carrying passenger, 19 
 
 ticket as evidence of, 199, 510, 516 
 
 indivisible for continuous trip, 514 
 
 of carriage conlimies how long, broken by passenger how, 362 
 
 passenger may recover on failure of conductor to .stop at flag station 
 
 according to, 144 
 
 acce|)tations of fan; to Hag station does not constitute special, when, 144 
 implied, to |)rolect passenger from insult, 360 
 
 •I
 
 INIlKX. 7b i 
 
 CONTRIBUTORY NEGLIGENCE. See NKOLiGiiNCK. pagk. 
 
 CONTUIHU'lOKY NEtil.KiEMCK (('IIAI'. XX.), 375 
 
 when will preclude recovery, 380 
 
 in alighting from a car, 45 
 
 about station platforms and steamer landing^:, 386 
 
 at stations or approaching or leaving them, 383 
 
 in exposing the person without the car. 402 
 
 entering train in motion, 389 
 company liable for injuries to child not of sutticient age to be respon 
 
 siblefor, 142 
 
 position of passenger in car as, 399 
 
 passing between cars in motion, 398 
 
 riding on platform of car, 408 
 
 of passenger on street car, 39 
 
 traveling on other than passenger oar«!, 405 
 
 instinctive eilort to escape peril, not, 413 
 
 as defense in action for death, 656 
 
 CORPORATIONS. 
 
 state and national control over agencies of commerce or, 450 
 
 COUPLING CARS. 
 
 passenger injured b}' a jar, caused by 141 
 
 on freight train, damages not recoverable for injur}' caused by, 251 
 
 passenger may assume car in safe and proper condition, 233 
 
 COUPON TICKET. 
 
 liability of connecting carriers for baggage, 588 
 
 COURTS. See Federal Coukts. 
 
 jurisdiction of suit by foreigners, 651 
 
 CRIMINAL ACTION. 
 
 for negligence causing death, G19 
 
 CRIPPLE. See Inkikm Persons, 
 
 duty of carrier towards, 34 
 
 CROSSING. 
 
 negligence of husband at, presumption, 686 
 
 street car driver seeing gate open may suppose the track is clear. 37 
 
 presumption that person killed at, stopped, looked and listened, 678 
 
 CULVERT. 
 
 carrier liable for passenger injured when train stopped over, 140 
 
 CURTESY. 
 
 lack of, in coruluctor not cause for damages, 186
 
 I 
 
 782 INDEX. 
 
 D. 
 
 DAMAGES. See Exemplary Damages. page. 
 
 measure of, for personal injuries, 604 608, 746, 752 
 
 admiralty rule for apportioning extended to actions for personal in- 
 juries, 676 
 recoverable for impairment of health by fright, 96 
 rule of in actions for death, 6.55 
 statutes regulating in actions for death, 657 
 compensation for pain and suffering is a question for the jury, 36 
 verdict for $300 is excessive when passenger carried less than 800 
 
 yards past station, 143 
 
 Damages Excessive — Aggravation of Hurt or Disease (Chap. 
 
 xxxvji.), 745 
 
 measure of, for loss of money or jewelry in sleeping car, 557 
 
 what will sustain judgment for illegal ejection from train, 186 
 
 passenger riding on excursion ticket wrongfully ejected by conductor 
 
 entitled to, 174 
 
 person carried past destination, recovery, 143 
 
 Ipck of curtesy of conductor not cause for, 186 
 
 passenger expelled from train cannot recover for walking when was 
 
 unnecessary, 177 
 
 no recovery for wounded feelings of pas.senger expecting and desiring 
 
 10 be put off, 178 
 
 measure of, for disappointment and delay, 229 
 
 punitive, when allowed, 229 
 
 allowed woman carried beyond her station where employ'-s, refus 
 
 ing to put her off, were insulting, 148 
 
 when allowed for gross carelessness of carrier's employe, 332 
 
 rule as to vindictive, for wanton violence of employes, 340 
 
 exemplary, what will justify, for expulsion from train, 187 
 
 when may be imposed on lessor of railroad, 548 
 
 may be given for carrying out unreasonable regulation, 173 
 
 for loss of baggage, 745 
 
 DEATH. 
 
 caused by negligence, action for, 616 
 
 criminal aclion fo.r, 619 
 
 proper plaintiff in action for, 635 
 Evidence in Action for Dkath by Negligence of Another 
 
 (Chap, xxxiii.), 677 
 
 slate statutes regarding actions for, 622, 627 
 
 right of action for in other jurisdiction, 601 
 
 who may bring action lor in foreign jurisdiction, 652 
 
 liability of receiver for personal injuries or, 596 
 
 right of action for in admiralty, 610
 
 INDEX. 
 
 DICATION. 
 
 
 PAGE 
 
 rigbt to go on premises implied from, 
 
 
 94 
 
 FINITION. 
 
 accident, 
 
 
 75 
 
 "accident" {note). 
 
 
 74 
 
 "act of God." 
 
 
 68 
 
 "all possible skill and care," 
 
 
 32 
 
 "all possible foresight," 
 
 
 32 
 
 "car," 
 
 
 21 
 
 "common carriers," 
 
 
 2 
 
 "luggage" and " baggage" identical 
 
 in meaning, 
 
 551 
 
 " ordinary care and diligence," 
 
 
 74 
 
 " passengers," 
 
 
 4 
 
 "passenger's baggage," 
 
 
 561 
 
 "proximate cause,"' 
 
 
 669 
 
 "public carriers of passengers," 
 
 
 1 
 
 "regular station," 
 
 
 212 
 
 "rule," 
 
 
 169 
 
 "skill" and "care," 
 
 
 52 
 
 " stage coach," 
 
 
 21 
 
 " utmost care and diligence," 
 
 
 218 
 
 " utmost care " and " diligence" and 
 
 " most exact care," 
 
 60 
 
 DEPOTS. See Stations. 
 
 DILIGENCE. 
 
 rule of, applied to carriers of passengers by steam, 
 degree of, required of railroad, 
 " reasonable care and skill " relative terms, 
 . security of road-bed, machinery and cars, 
 
 47 
 
 59 
 
 52 
 
 47, 48 
 
 DISAPPOINTMENT. 
 
 measure of damages for, 
 
 229 
 
 DISCRIMINATION. 
 
 only unjust, prohibited by Interstate Commerce Act, 
 when exclusion of other carriers is. 
 
 500 
 118 
 
 DISEASE. 
 
 Excessive DAMAciKs; Aggravation of Hukt op Disease (Chap. 
 
 XXXVII.), 745 
 
 contraction of, from ticket agent, carrier's liability, 330 
 
 effect of on right of action for subsequent personal injury, 605 
 
 DISTRESS. 
 
 as element of damages. 
 
 606
 
 78-1- INDEX. 
 
 DISTRIBUTION. r^<'E- 
 
 of recovery for death, ®®1 
 
 DOG. 
 
 carried by direction of conductor in baggage car, liability for loss of, 
 
 570, 578 
 
 DRESS. 
 
 carrier has no right to prescribe, of any passenger, 173 
 
 DRIVER. 
 
 of street car, carriers liability for negligence of, 331 
 
 negligence of, not imputed to guest or passenger, 739 
 
 DROVER'S PASS. See Pass. 
 DRUNKENNESS. See Intoxication. 
 
 E. 
 
 EATING STATION. 
 
 carrier must provide safe and clear passage for trains to. 156 
 
 must allow a reasonable time at, 156 
 
 must give proper notice before arrival at and departure from, 156 
 
 passenger does not loose his character as such by alighting at, 157 
 
 passenger on steamboat can go ashore to. 
 
 157 
 
 EJECTION FROM TRAIN. See Frkight Thains. 
 
 what will justify, 186 
 
 right and duty of carrier in regard to, 163 
 
 point where a passenger may be removed from train, 177, 211 
 
 what is " regular station," 212 
 
 when passenger may be ejected between stations, 212 
 
 when drunken condition of a passenger will not excuse, 213 
 
 while cars are in motion, 213 
 
 destined for station where cars do not stop, 178 
 
 failure to produce ticitct immediately not justification for, 184 
 fiassenger must be given time to consider or to borrow money to pay 
 
 extra fare, 192 
 
 providing for, for failure to pay fare or produce ticket, 207 
 ftompaiiy may not eject passenger when wrong ticket given b}^ agent, 207 
 
 when train stopijcd for, right of passenger, 190 
 
 use of \innecessary force in. 184
 
 l.NDEX. ^Oi) 
 
 PAGE. 
 
 right to continuous passage on another train, after, 195 
 
 liability for, by employes on train of another company, 546 
 
 removal of passenger from freight train, 256 
 
 trespasser on freight train may be ejected anywhere, 258 
 
 ELECTRIC RAILROAD. See Street Cars. 
 
 that street car is propelled by electricity does not change rule as to 
 
 boarding moving car, 41 
 
 ELEVATED RAILROAD. 
 
 position in car, as negligence, 401 
 
 starting train with a jerk, not negligence, 401 
 liable for reckless act of engineer starling while track was crowded, 153 
 not negligence for passenger to go towards open door approaching 
 
 the station, 400 
 
 injury to one getting on after gates are closed, 395 
 
 negligence of guard on, company's liability, 328 
 liability of company for false imprisonment procured by platform 
 
 man, 352 
 
 bound to keep steps free from ice, 95 
 
 defect in stair in station, not negligence, 95 
 
 ELEVATORS. See Grain Elevators. 
 
 proprietor of, as carrier of passengers and his responsibilit}', 2, 308 
 
 relation between owner of passenger elevator and those carried, 2 
 
 presumption of negligence in case of injury from, 322 
 
 statutes regulating the use of, 324 
 
 injury about passenger elevator, 411 
 
 contributory negligenc? — comparative negligence, 323 
 
 Passenger Elevators (Chap, xvii.), 308 
 
 responsibility for manufacturer's negligence, 312 
 
 duly of proprietor to inspect its condition, 316 
 
 duty of owner to exercise highest degree of care in defective ma 
 
 chinery, 309 
 
 proprietor's responsibility for defects in construction, 310 
 proprietor liable only for neglect of imposed duty to person injured, 317 
 
 companj'^ not liable for trespasser upon, 256 
 
 EMBANKMENT. 
 
 carrier responsible for consequences of washing away of, 67 
 
 EMIGRANTS. 
 
 duly of carrier as to, 221 
 
 EMPLOYES. 
 
 liability for injury through negligence of, 425 
 50
 
 786 IKDKX. 
 
 EMPLOYES— continued. page. 
 
 Liability for Negligence or Violknce of Servants (Ch.xi'. 
 
 XVIII.), 327 
 liability of carrier for violence of, former rule, 331 
 modern rule, 335 
 carrier not responsible for assault by, after removal from carriage, 362 
 sleeping car company liable for assault by, 3 
 liability of carrier for false arrest by, 350 
 Protection op Passenger from Employes and Fellow Passen- 
 gers. (Chap. XIX.) 350 
 carrier liable only to passenger for act of, 362 
 assault by, after passenger leaves street car, liability, 362 
 if passenger provokes assault by, carrier not liable, 371 
 care and selection of, 77 
 negligence of, in failing to warn against danger, 99 
 when conservator of the peace, false arrest, 355 
 receiver not personally liable for negligence of, 598 
 of passenger, carrier cannot exclude, 115 
 employe being transported to place of service, is passenger, 7 
 
 ENGINEERS. 
 
 license of. 303 
 
 duty of, as to signals, 329 
 
 carrier's liability for acts of, 327 
 passenger seated in cab by direction of, not guilty of contributory 
 
 negligence, 253 
 
 EVIDENCE. See Burden of Proof; Presumptions. 
 
 presumption is that person on train is passenger, 5 
 
 weight of presumption in some courts, 681 
 
 overcoming such a presumption, 681 
 
 presumption of negligence in other tribunals, 682 
 
 where no presumption is allowed, 682 
 
 application of presumption when admitted by courts, 679 
 
 presumption as to operation of railroad, 3 
 
 presumption of negligence from injury to passenger, 24 
 
 rebutting presumption of neglect of duty, 25 
 
 instances where negligence of carrier is presumed, 694 
 
 instances where where no presumption of negligence, 700 
 
 presumption of carrier's negligence, for injury, 690 
 
 injuries arising from movement of carriage, 693 
 
 collision with object on side of carriage, 696 
 
 explosions, 698 
 
 falling objects, 698 
 
 at station, embarking and alighting, 699 
 
 presumption of due care by one found killed by alleged negligence of 
 
 another, 677
 
 INDKX. 787 
 
 PAGE. 
 
 presumption of negligence in case of injury from elevator, 322 
 
 when burden on plaintiff, 683 
 
 method of sustaining burden, 683 
 
 failure of suit under this rule, 685 
 
 application of the rule, 686 
 
 burden of proof of negligence at railroad crossing, 621 
 
 of preference or prejudice on complainant, 507 
 
 to show exemption from liability under special contract, 266 
 
 Evidence in Action koh Injury by Carkier (Chap, xxxiv.), 690 
 
 sufficient to prove negligence, 56 
 
 how far jury may draw inference of due care, , 687 
 
 special circumstances which relieve from care, 688 
 
 circumstances showing negligence, 688 
 
 of changes made by carrier after accident, 725 
 
 failure to perform duty imposed by statute as evidence of negligence, 325 
 that tracks were nearer together than at other places and inclined, 
 
 siifflcient to establish negligence, 30 
 
 running street cars at rapid speed by a car discharging passengers, 
 
 evidence of negligence, 34 
 
 of reputation of street car horse, admissible to show negligence in 
 
 using it, 33 
 
 baggage found broken open, as evidence of negligence, 589 
 
 due care question for jury where passenger injured, when, 139 
 
 that others had fallen at same place, admissible, 98 
 
 baggage checks prima facie, of receipt by carrier and non delivery, 
 
 555, 588, 745 
 explosion of steamboat boiler, prima facie, of negligence, 298 
 
 act making commissioner's schedule prima facie, that rates fixed are 
 
 reasonable, ' 485 
 
 that carriage was upset is prima facie evidence of negligence, 25 
 
 Evidence in Action for D^ath by Negligence of Another 
 
 (Chap, xxxiii.), 677 
 
 Experimental and Opinion Evidence (Chap, xxxv.), 704 
 
 experiments outside the coiut room, 706 
 
 experiments in the court room, 707 
 
 opinion evidence, 720 
 
 of defects at other places or times, 722 
 
 authority of the court to order physical examination, 707 
 
 power to order examination before trial, 714 
 
 power to order examination at trial, 716 
 
 application of the rules of physical examination, 717 
 
 manner of enforcing the power and effect of disobedience, 720 
 
 ticket as, against contradictory statement of a passenger, 199 
 
 ticket evidence of, not contract, 510, 516 
 
 testimony to show usage of road, 93 
 
 train of cars standing upon railroad track presents invitation to ac- 
 cept the terms for transportation, 3
 
 788 INDEX. 
 
 EVIDENCE— continued. tage. 
 
 reasonable time, question for jury, 187 
 
 to justify damages for illegal ejection, 186 
 
 duty of conductor in expelling a man from train, question for the 
 
 jury, 187 
 
 competency of conductor and engineer to testify as to special order, 144 
 that assailants carried a lettered lantern and wore badge and lettered 
 
 cap not sufficient to create liability of carrier, 349 
 
 sufficient to justify finding thai train master has authority to use 
 
 hand car for transporting passengers, 254 
 
 of carrier's negligence towards children, 728 
 
 of inability to employ persons to care for children, 606 
 
 that conductor was informed that plaintiff was feeble is material, 221 
 of authority to bring statutorj' action, 633 
 
 EXCESS OF PASSENGERS. 
 
 remedy by action for penalty f(jr carrj'ing, 305 
 
 proceedings in rem for penalty for, 306 
 
 EXCESSIVE VERDICT. See Damages, 
 
 $800 is, when passenger carried less than 300 yards past station, 143 
 
 instances of 745 
 
 EXCLUSION OF PASSENGERS. See Negkop^s, Civil Rights. 
 
 on account of color, etc., 159 
 
 EXCURSION TICKET AND LIMITED TICKET. See Tickets. 
 
 EXCURSIONS. 
 
 duty of carrier as to, 221 
 
 EXCURSION TRAIN. 
 
 reduced rates on, limitations in value of baggage, 575 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 right of action by, for deatli, 610-615, 623-625 
 
 evidence of authority to sue, 633 
 
 as plaintiff in action for death, 635, et neq. 
 
 EXEMPLARY DAMAGES. See Damages. 
 
 may be given for carrying out unreasonable regulations, 173 
 
 EXHIBITION OF TICKET. 
 
 condition requiring, of beasou ticket reasonable, 170 
 
 EXITS. 
 
 care over, 101
 
 INDKX. 789 
 
 EXPENSE. PAGE, 
 
 as element of damages for peisoual injuries, 604 
 
 EXPERIMENTS. 
 
 outside of the court room, 706 
 
 in the court room, 707 
 
 EXPERT. 
 
 evidence of, as to length of time material and bridge will last, 720 
 
 EXPLOSION. 
 
 of steam boat boiler prima facie evidence of negligence, 298 
 
 liability for, of ferryboat boiler, 65 
 
 negligence of railroad company presumed from, 698 
 
 negligence of omnibus proprietor inferred from explosion of lamp, 698 
 
 EXPOSING. 
 
 the person without the car contributory negligence, 402 
 
 EXPRESS COMPANY. 
 
 agreement of, releasing carrier from liability, 266 
 
 EXPRESSMAN. 
 
 right of, to use of station, depots and grounds, 117 
 
 EXPRESS MESSENGER. 
 
 contract exposing to same risk as baggageman not unreasonable, 277 
 
 entitled to protection as passenger, 9 
 
 EXTRA FARE. 
 
 rule requiring passengers without tickets to pay, reasonable, 170 
 
 EXPULSION FROM TRAIN. See Ejection fkom Thain. 
 
 F. 
 
 FAILURE TO STOP TRAIN, 
 
 railroad lial)le for, when proper signal given, 142 
 
 FALSE ARREST. 
 
 when employe is conservator of the peace, 355
 
 790 INDEX. 
 
 FALSE IMPRISONMENT. tagk. 
 
 carrier liable for, wbeu, 350 
 
 carrier liable to action for, through act of ticket agent, 346 
 
 liabilit}^ of elevated railroad company for act of platform man in 
 
 causing, 352 
 
 FARE. 
 
 refusal to pay, or exhibit ticket, 183, 188 
 
 price may be regulated bj' law, 231 
 
 railroads subject to legislative control as to, 434 
 
 in regulating, legislature may classify roads according to iength, 434 
 
 conductor seizing passengers property to enforce payment of, is guilty 
 
 of assault and battery, 340 
 
 putting too much in street car box, passenger rectifying mistake, 340 
 
 excess fare not collectible when ticket office not open, 182 
 
 includes transportation of baggage, 551 
 
 FEDERAL COURTS. 
 
 rules in as to abatement of suits, 609 
 
 FEEBLE PASSENGER. See Infxkm Passengeu. 
 FELLOW PASSENGERS. 
 
 PllOTKCTION OF PASSENGER FROM EMPLOYES AND FeLT.OW PASSEN- 
 GERS (Chap, xix.), 350 
 passenger entitled to protection against rudeness of, 344 
 
 FERRY BOATS. 
 
 regulations concerning use of, by United States inspectors, 296 
 
 one transporting passengers for hire on, is public carrier, 2 
 
 liability for explosion of boiler upon, 65 
 
 liability of company for injuries from slippery deck. 108 
 
 injury lo old woman on, because unable to obtain seat, 232 
 
 contributory negligence in leaving by gangway for teams, 386 
 
 injury to foot caught between boat and bridge, 389 
 
 rebound of, upon striking wharf, presumption of negligence, 695 
 
 FLAGMAN. 
 
 stale may regulate stationing of, at crossing, 230 
 
 recovery for damages from parallel roads through negligence of joint 
 
 flagmun, 425 
 
 FLAG STATION. 
 
 pahsciiger may recover on failure of conductor to stop at, according 
 
 to contract, 144 
 
 dutv of those controlling train to watch for and obey signals from, 229
 
 INDEX. 7yi 
 
 FLOODS. I.A.GE. 
 
 railroad company not bound to construct track to meet extraordinary 
 
 floods, 68 
 
 as releasing carrier from liubility for baggage, 554 
 
 FOREIGN CORPORATIONS. 
 
 state cannot deprive, of compensation for doing business, 433 
 
 FOREIGNERS. 
 
 juiisdii'lion of suits by, 651 
 
 FOREIGN JURISDICTION. 
 
 who may bring action in, 652 
 
 FOREIGN RAILROAD COMPANY. 
 
 service of process on. 609 
 
 FREIGHT. 
 
 payment of extra compensation for overweight does not convert bag- 
 gage into, 569 
 
 FREIGHT CAR. 
 
 injury to passenger from door on swinging against passenger train, 403 
 
 FREIGHT TRAINS. See Caboose. 
 
 carrying passengers upon, 247 
 
 when passengers may be carried upon, 247 
 
 formation of mixed trains, 247 
 
 railroad not bound to carry passengers on, 248 
 
 company's liability for injury to passengers riding on, 254 
 
 permission of conductor to ride on, contrary to rules renders com 
 
 pany liable for injury, 252 
 
 traveling on, with knowledge of conductor, 252 
 
 riding on, when negligence, 406 
 
 removal of passenger from, 256 
 
 carrier not liable to one riding on, knowing regulations forbidding, 253 
 
 trespasser upon, may be ejected anywhere, 258 
 
 carrier's liability for assault by conductor of, 341 
 
 rate of speed, rule as to, • 250 
 
 presumption of negligence from injury to passenger by swinging 
 
 door on, 696 
 
 FRIGHT. 
 
 damages recoverable for impairment of health by, 96, 673 
 
 FUMIGATION. See Quakantine. 
 
 of ship, accidental poisoning from, at quarantine, 330
 
 792 INDEX. 
 
 G. 
 
 GAMBLERS. page. 
 
 may be removed from train, 161, 165 
 
 GANG PLANK. 
 
 steamship company's liability for failing to provide proper, 107 
 
 GATE. 
 
 rule requiring passengers passing through, to show ticket, reasonable, 170 
 
 GATEMAN. 
 
 street railway company not liable for Injury at crossing caused by 
 
 negligence of, 427 
 
 GRAIN ELEVATORS. 
 
 constitutionality of statutes regulating fees for elevating and dis- 
 charging grain by, 450 
 common carriers and persons controlling, occupy analogous positions, 468 
 
 GRIPMAN. 
 
 vigilance required of, on cable car, 37 
 
 H. 
 
 HACKMAN. 
 
 may be assigned to stand at depot grounds, 1 14 
 
 procuring baggage of passenger must not be ejected, 116 
 
 liability of carrier for injuries from defective platform, 116 
 
 HALF FARE TICKET. See Tickets. 
 
 wrongful refusal to pass child on, damages to mother for, 198 
 
 HAND CAR. 
 
 providing hand car renders corporation liable as carrier, 2 
 
 responsibility of company for invitation of servant to ride on, 254 
 
 HATCH. 
 
 injury by falling through, unguarded, 299 
 
 HEALTH OFFICERS. See Qi akantike. 
 
 HEATING. 
 
 Hlatutes providing for, of steam passenger cars, 230
 
 INDKX. 793 
 
 HEIRS. PAGE. 
 
 interest of, in recovery for death, 661 
 
 HOLE. 
 
 uncovered in depot, liability for injuries caused by, 102 
 
 HOMICIDE. 
 
 by depot Hgent; civil liability for, 623 
 
 HORSE CAR. See Stkket Cak. 
 
 HORSE. 
 
 hiring on Sunday as defense for injury resulting from negligence. 540 
 
 HORSES. See S'looK. 
 
 HUMILIATION. 
 
 as element of damages, 604 
 
 HUSBAND AND WIFE. 
 
 recovery by wife in case of husband's negligence, 735 
 
 as plaintiil in action for death, 635, ct seq. 
 
 right of recovery for injury to wife, 605 
 
 interest of in recovery for death, 661 
 
 right of action for death of wife, 627, et seq. 
 
 I. 
 
 ICE. 
 
 rule as to removal of, on platforms, 97, 104 
 
 elevated railroad bound to keep steps leading to station free from, 95 
 suffering ice to remain on car step from a previous day is negligence, 38 
 
 IMMIGRANTS. 
 
 special rates for, 503 
 
 must not be transported in unfit cars, 232 
 
 IMPROVEMENTS. 
 
 carrier not required to adopt every new invention, 59 
 
 rule as to adoption of, for safety of passengers, 58
 
 794 iM)Kx. 
 
 IMPUTED NEGLIGENCE. page. 
 Negligence towards Children. Imputed Negligence (Chap. 
 
 XXXVI.), 728 
 
 when negligence will be imputed to carrier when passenger loses 
 
 his life from perilous act required by carrier, 233 
 
 INFIRM PERSON. 
 
 duty of carrier towards, 34 
 evidence that conductor was informed that plaintiff was feeble is 
 
 material, 221 
 
 failure to put off feeble passenger at usual platform is negligence, 148 
 
 INJURIES. 
 
 verdicts in suit for personal injuries, instances of not excessive, 752 
 
 instances of verdicts held excessive, 758 
 
 negligence of carrier aggravating hurt or disease, 746 
 
 INN. 
 
 right of stage driver to go into, with travelers, 117 
 
 INSANITY. 
 
 of depot agent as defense for homicide committed by him, 623 
 
 INSPECTION. 
 
 power of court to order examination before trial, 714 
 
 power to order examination at trial, 716 
 
 application of the rule of physical examination, 717 
 
 authority of the court to order physical examination, 707 
 
 manner of enforcing power and effect of disobedience, 720 
 
 of operative machinery, appliances and track, • 62 
 
 INSULT. 
 
 carrier must protect passenger from, 360 
 
 of driver, street car company liable for, 345 
 
 INSURER. 
 
 railroad company not as to passengers, note, 74 
 
 carrier of passengers not liable as, 28, 66, 71, 215 
 
 limitation of carrier's liability as, not from neglect or fraud, 267 
 
 INTERSTATE COMMERCE. 
 
 Act of Congress construed, 490 
 
 Interstate Commerce Commission, 489, 503 
 
 CoM.MEKCE, State and Interstate (Chap, xxiir.), 483 
 
 l)Ower of Congress over interstate carriers, 434 
 Federal power to regulate comprehends control of all navigable 
 
 waters, 297 
 
 Act of Congress, regulation of rates by, 498
 
 INDEX. 7't)5 
 
 r.\GE. 
 
 as rftgulating tariff of rates, 231 
 
 rcgulaliijn by state, incidentally affecting', 439 
 
 quarantine, as regulation of, 292 
 
 quarantine (Appendix), 763 
 
 state cannot prohibit interstate traffic on Sunday, 541 
 
 INTOXICATION. 
 
 when drunken condition of passenger will not excuse ejection from 
 
 train, 213 
 
 will prevent recovery for injury when it contributed, 667 
 
 of passenger does not excuse violence of employes, 346 
 
 right of carrier to remove intoxicated passenger, 163 
 
 will not justify exclusion when, 161 
 
 drunk and disorderly passenger, duty of carrier towards, 223 
 
 assault by employe not excused b}', 224 
 carrier not liable where intoxicated passenger, properly put off the 
 
 train, is run over by another train, 372 
 
 INTRUDER. 
 
 passenger entering car by permission or as intruder, 14 
 
 INVITATION, 
 
 train of cars standing upon railroad track presents invitation to ac 
 
 cept terms for transporiation, 3 
 
 opening car door not, to alight, 139 
 
 J. 
 
 JEWELRY. 
 
 when carrier liable for, as baggage, 564 
 
 JURISDICTION. 
 
 action for injury out of. 643 
 
 foreign, who may bring action in, 653 
 
 L. 
 
 LANDING. 
 
 of steamer, contributory negligence about, 386
 
 796 IIsDEX. 
 
 LANDSLIDE. page. 
 
 duty of companj' as to, in railroad cut, 51 
 
 caused by continued rain, not act of God, 67 
 
 LANGUAGE. 
 
 vulgar and indecent, will not justify putting off passenger, when, 161 
 
 LATENT DEFECT, 
 
 what will relieve carrier from responsibility for, 51 
 
 tests required, 311 
 
 liability if test would have discovered defect, 57 
 
 in car wheel, 62 
 
 LAW OF PLACE. See Conflict of Laws, Lex Locr. 
 
 LEASE. 
 
 liability of lessee of railroad, 548 
 
 railroad cannot escape liability for torts of lessee, 544 
 
 authorized by statute does not discharge lessor from corporate liabil- 
 ities, 545 
 duties of lessee, 545 
 
 LEX FORI. 
 
 as to limitation of actions, 631 
 
 LEX LOCI. 
 
 as to limitation of actions, 631 
 
 LIABILITY. 
 
 limitation of, by contract, 265 
 
 LICENSE. 
 
 examination of applicants for, as ship oflBcer, 303 
 
 LIEN. 
 
 of carrier on baggage f(jr fare, 551 
 
 on baggage for charges, 590 
 
 LIGHTS. 
 
 carrier must furnish sufficient, at station and platforms, 126 
 
 LIMITATION. 
 
 u( liiiliilily, by contract, 265 
 
 responKibilily of carrier for invitation of servant to ride on hand car, 254 
 
 LIMITATION OF ACTIONS. 
 
 for d< atli (;auscd by iicgligfiice, 630
 
 li^DEx. 797 
 
 lilMITED TICKET. taok. 
 
 rights under, with regard to continuous passage, 193, 197 
 
 LIMITED TRAIN. 
 
 passenger not holding ticket to, may be ejected, 235 
 
 refusal of ticket on, as notice, 375 
 
 M. 
 
 MACHINERY. 
 
 duty of carrier as to, 220 
 
 liability for injury from exposed, 299 
 
 defective, receiver personally liable for injury occasioned by, 598 
 
 7 
 
 MAIL AGENT. 
 
 is passenger, 
 
 not negligence to ride in mail car. off duty, 401 
 
 carrier cannot contract with, for exemption from liability, 277 
 
 MANDAMUS. 
 
 when will not lie to compel company to establish stations, 89 
 
 MANUFACTURERS. 
 
 responsibility of carrier for negligence of, in making appliances, 54, 312 
 
 reputation of, no defense to carrier, 57 
 
 responsible only to those with whom he contracts, 54 
 
 MARRIED WOMEN. 
 
 recovery for personal injuries to, 605 
 
 MASTER. 
 
 right to recover for loss of service of servant, 605 
 
 MASTER OF VESSEL. 
 
 evidence of belief in ability of officer, 721 
 
 license of, 303 
 
 MATES. 
 
 license of, 203 
 
 MAXIM. 
 
 actio personalis moritur cum persona, 613, 614, 616 
 
 MAXIMUM RATES. 
 
 railroad commission may prescribe. 483
 
 T98 iNi^KX. 
 
 MENTAL ANGUISH. PA(;e. 
 
 as element of damages, 606 
 
 MERCHANDISE. 
 
 carried as baggage, necessity of notice, 576 
 
 by traveling salesman, 566 
 
 METAL. 
 
 tests applied to, 83 
 
 MILEAGE TICKET. 
 
 express agreement on, 253 
 
 MOB. 
 
 carrier cannot accept passenger whose presence will expose train to 
 
 assault from, 161 
 
 MONEY. 
 
 necessity of notice to carrier by one carrying, 559 
 
 MUNICIPAL TAX. 
 
 upon railroad running tlirough corporate limits, when valid, 441 
 
 K 
 
 NATIONAL CONTROL. 
 
 over charges by carriers, «. 444 
 
 NAVIGABLE WATERS. 
 
 national control over, 444 
 control of, by congress applies to vessels engaged in interstate com- 
 merce, 447 
 
 NEGLIGENCE. 
 
 (iciiiicd, 663 
 
 degrees of, 663 
 
 slight negligence, C63 
 
 ordinary negligence, 664 
 
 gross negligence, 665 
 
 NkGI.IOKNCK, CONTIIIBUTOKY AS T^KOX I^T \TK CaL'SK, (CuAP. XXXTT.), 
 
 663. 666 
 
 C;<)NTniiu;Tf)itv NkgIjIGknck (CiiAi*. XX.), 375 
 
 conlril)iitory negligence, test of, 667 
 
 rule of contributory, in admiralty jurisdiction, 674
 
 INDEX. 799 
 
 PAGE, 
 when contributory, of husband will bar joint right of action for negli- 
 gence of third person, 736 
 Evidence in Action for Dkath by Negligence of Anotiieh 
 
 (Chap, xxxiii.), 677 
 
 Liability for Negligence or Violence of Servants (Chap. 
 
 xviiL), 327 
 
 carrier's liability for violence of employe, former rule, 331 
 
 of driver not imputed to guest or passenger, 739 
 
 owner of coach liable for accident happening from defect, 28 
 
 smallest, will render proprietors of stage ooach liable, 27 
 
 that carriage was upset prima facie evidence of, 25 
 
 rebutting presumption of neglect of duty, 25 
 
 proprietor liable only for, of imposed duty to person injured, 317 
 
 contract exempting from liability for, 262 
 
 free transportation as condition of exemption from liability f c-, 273 
 
 free transportation will not sustain contract excusing, 278 
 
 where each of two passengers is negligent or where only one is, 742 
 
 of carrier aggravating hurt or disease, 746 
 
 of another carrier causing injury, 419 
 
 of carrier will excuse otherwise rash act, 416 
 
 rule as to adoption of improvements for safety of passenger, 58 
 
 of manufacturer of appliances, responsibility of carrier for, 54 
 
 in respect to thing purchased, 56 
 
 manufacturers', carrier responsible to passenger for, 55 
 
 of passenger leaving money in sleeping car berth does not release 
 
 carrier from liability, 242 
 
 around elevator, contributory, when comparative, 323 
 
 crowding person off steamboat, when not {note), 74 
 
 passenger need not anticipate culpable, on carrier's part, 151 
 
 failure to put off feeble passenger at usual platform, is, 148 
 
 failure of passenger to exercise best judgment in case of apparent 
 
 danger will not relieve carrier from liability, 46 
 
 liability for bad track, 61 
 
 company running cars over defective track, guilty of, 31 
 
 Peril through Negligence of Carrier (Chap, xxi.), 413 
 
 arising from fracture of car wheel owing to latent flaw, not, 75 
 
 evidence that tracks were nearer together than at other places and 
 
 inclined, sufficient to establish, 30 
 
 carrier's liability to stranger for defective station platform, 109 
 
 suffering ice to remain on car step from a previous day, is 38 
 
 not to stop street car for young and aclive men, is not. 34 
 
 whether running street car at rapid speed by a car discharging pas- 
 sengers is, is a question for the jury, 34 
 street railway company liable for injuries resulting from projection 
 
 through the floor, 31 
 
 street car company neglecting usual precautions guilty of, 31
 
 800 l.\DEX. 
 
 NEGLIGENCE— continued. pagk. 
 running street cars at high rate of speed across railroad, is, 38 
 evidence of reputation of street car liorse admissible to show negli- 
 gence in using if, 33 
 in starting street car, 33 
 for a driver to needlessly withdraw from platform, is, 36 
 carrying people in excess of capacity of car is gross negligence, 44 
 responsibility for running trains at great speed through station, 60 
 Negligence towauds Children, Imputed Negligence (Chap. 
 
 XXXVI.), 728 
 what is, in parent or guardian, 734 
 will be imputed to carrier when passenger loses his life from peril- 
 ous act required by carrier, ' 233 
 of another, when will be imputed to jms-'jenger, 731 
 cannot be presumed, when, 682 
 presumption of, from injury to passenger, 24 
 of carrier, instances where it is presumed, 694 
 not inferable when, instances, 700 
 of husband cannot defeat recovery where wife sues, 736 
 
 NEGROES. See Civil liiGins. 
 
 exclusion of passenger on account of color, 159 
 
 separate cars for white and colored passengers must be equal in all 
 
 respects, 234 
 
 separate table and food for white and colored passengers must be 
 
 equal in all respects, 234 
 
 NEWSBOY. 
 
 permitted to enter street car is not passenger, 6 
 
 on street car may recover for negligence of carrier, 381 
 
 NOTICE. 
 
 made b}- carriers must be just and; reasonable, 263 
 
 refusal of ticket as, 375 
 
 NURSING. 
 
 as uk'iuenl of damages for personal injuries, 604 
 
 o. 
 
 OBSTRUCTIONS ON TRACK. 
 
 duly of cairier to use utmost care and diligence to guard against, 49 
 
 OMNIBUS. 
 
 negligence of proprietors inferred from ex|)l<).si<)n of lamp, 698 
 
 right of proprietors to use station grounds, 117
 
 INDEX. 801 
 
 ORIGINAL PACKAGE. page. 
 
 Act of Congress as granting UDConstitutional powers to state, 446 
 
 OVERCHARGE. 
 
 by carrier, remedy given by statute, 483 
 
 P. 
 
 PARALLEL ROAD. 
 
 recovery for damages through negligence of joint flagman, 425 
 
 PARENT. 
 
 right of recovery for injury to child, 605 
 
 for death of child, 606, 626, 627 et seq. 
 
 interest of in recovery for death, 661 
 
 as plaintiff in action for death, 635 et aeq. 
 
 PARLOR CAR. See Sleeping Cau. 
 
 sale of seats in, and regulations therein, 237 
 lost ticket to seat in, a ticket agent's card of explanation, liability of 
 
 company, 241 
 
 carrier may lawfully demand extra compensation, 238 
 
 passenger declining to pay extra fare may be ejected, 235 
 
 carrier's liability for loss of property in, 240 
 
 responsibility of carrier for conduct of servants, 240 
 
 and sleeping car, security of, 236 
 
 PASS. 
 
 effect of failure to sign agreement on, 519 
 
 regulation of, by Interstate Commerce Act, 505 
 passenger refusing to comply with conditions on, or pay fare may be 
 
 ejected, ^ 366 
 free transportation as condition of exemption from liability for neg- 
 ligence, 273, 278 
 contract to transport telegraph company employes upon exhibiting, 265 
 effect of stipulation in, exempting from liability, 281 
 one traveling on another's pass fraudulently, not passenger, 1 6 
 drover's, liability to one holding, 269 
 drover traveling on, passenger for hire when, 263 
 invalidity of stipulation on drover's, to release liability, 270 
 personal property on drover's, is passenger for hire, 270 
 passenger riding on stock pass can recover damages for expulsion 
 
 from car, 366 
 
 drover's wife, fraudulently traveling on, not passenger, 15 
 51
 
 802 INDEX. 
 
 PASSENGERS. See also Vessels CARRViNG Passengers. page. 
 
 Relation of Passenger and Carrier, How Created (Chat, i.), 1 
 
 who are, 4 
 
 acceptance and refusal of passengers (Chap, ix.) 159 
 
 shipper of stock not paying passage, is, 6 
 
 one riding by invitation of one in authority is, 6 
 
 one furnishing ice water and lunches, is, 6 
 
 bar keeper in steamer, is 6 
 
 passenger entering wrong train, is, 6 
 
 express messenger is entitled to protection, as, 9 
 
 employe being transported to place of service, is, 7 
 
 mail agent is passenger, 7 
 
 children, when are, 17 
 
 child on street car intending to pay fare or not, is, 18 
 
 child nine years of age on car intending to pay fare or not, is, 36 
 
 lady accompanying intended passenger, is, 6 
 
 newsboy permitted to enter street car, is not, 6 
 
 term includes everyone not an employe in carrier's charge, 5 
 
 purchase of ticket is not necessary to constitute, 5 
 
 one going into station with intention of becoming, is, 5 
 
 person waiting at station is, although no fare paid, 5 
 
 duty of carrier to accept, 4 
 carrier cannot accept, whose presence will expose train to assault 
 
 from mob, 161 
 
 no discrimination must be shown, 834 
 
 circumstances constituting and suspending relation of, 9 
 
 carrier must provide seat for, 232 
 
 statutes to secure safety of passengers must be complied with, 230 
 
 not hound to anticipate culpable negligence, 377 
 
 Protectjon of and Care over (Chap, xi.), 215 
 
 care over personal .safety of, ordinary perils, 217 
 
 carrier must protect from insult, 360 
 
 duty of carrier to, when sick, 223 
 
 drunk and disorderly, 223 
 
 duty of carrier to, suffering from physical disability, 221 
 
 on steamship, protection of, by limiting their number, 299 
 
 entitled to protection against rudeness of fellow passengers, 344 
 
 entitled to protection leaving vehicle and returning to it, 11 
 
 hotmd to exercise reasonable care and caution to avoid injury, 12 
 
 what contract of contemplated, 12 
 
 permits liim to leave car to send message, 13 
 
 permits recovery for injury on gangway plank, 13 
 
 permits going on sliore for meal, 14 
 
 entering car by permission or as intruder, 14 
 
 carrier of, not insurer, see Insurer, 215 
 
 presumption of negligence from injury to, 24 
 on train contrary to regulations not entitled to damages for injury, 145
 
 IKDEX. NOS 
 
 PAGK. 
 
 protection between station and cars, 129 
 
 opening car door not an invitation to alight, 139 
 
 injured by sudden starting of train, 142 
 
 duty to inform liimself concerning time table, 178 
 
 when trespasser on train not destined for his station, 179 
 
 termination of relation of by act of, or carrier, 365 
 
 duty of carrier to protect from fellow passenger, 164 
 
 not bound to wait until some overt act committed, 165 
 
 duty of, , 173 
 
 removal of, 173 
 
 right and duly of carrier to remove, 163 
 vulgar and indecent language will not justif}^ putting oft" passenger, 
 
 when, 161 
 
 offer to pay during lawful expulsion, 177 
 
 need not require force to be exerted to secure his rights, 177 
 
 duty of passenger to pay his fare and resort to appropriate remed}', 177 
 
 ejection of, from street car, 35 
 
 on steamboat can go ashore for meal, 157 
 
 on railroad train, does not lose character as such by alighting, 157 
 
 duty of, to use diligence and care in getting off, 152 
 Transportation upon othek than Passengek Tkatn (('hai'. 
 
 XIII.), 247 
 
 no presumption of rules and regulations, 145 
 
 Vessel Carrying Passengers— Limited Liap.ii^ity (Chap. xv.). 283 
 street car conductor not held to close observation of capacitj' or 
 
 intelligence of passenger, 37 
 liability of street car company for injury to, attempting to alight 
 
 while car in motion, 660 
 
 when person ceases to be, on street car, 362 
 
 having not yet paid, not trespasser on horse car, 376 
 
 negligence of driver not imputed to guest or, 739 
 
 PASSENGER AGENT. 
 
 of foreign corporation, license tax of, 442 
 
 PASSENGER ELEVATORS. See Elevators. 
 
 PASSENGER RATES. 
 
 courts will not interfere in difference of opinion as to tariff of, be- 
 tween state commissioner and carrier, 485 
 
 where schedule of rates will not pay cost of service courts will enjoin 
 
 enforcement of, 486 
 
 PENAL ACTION. 
 
 conflict of laws as to, 649
 
 804 IJNIDKX. 
 
 PENALTY. PAGE, 
 for taking greater number of passengers ou, than allowed by certifi- 
 cate of inspection, 300 
 remedy by action for, for carrying excess of passengers, 305 
 
 PERIL. 
 
 Through Negligence of Carkiek (Chap, xxi.), 413 
 
 instinctive effort to escape not contributor}^ negligence, 413 
 
 PHYSICAL DISABILITY. See Infirm Persons, 
 
 duty of carrier to passenger suffering from, 221 
 
 PHYSICAL EXAMINATION. 
 
 authority of court to order, 707 
 
 power to order examination before trial, 714 
 
 should be made before trial begins, 717 
 
 power to order examination at the trial, 716 
 
 application of the rule of physical examination, 717 
 
 manner of enforcing the power, and effect of disobedience, 720 
 
 defendant's absolute right to insist on, denied, 717 
 
 PHYSICIAN. See Vefskl Carrying Passengers. 
 
 evidence of as to permance of injury, 721 
 
 of ship, responsibility for errors of, 284 
 
 PIER. 
 
 joint and several liability of lessor and lessee, 550 
 covenont in lease binding lessee to keep in good repair, liability of 
 
 lessor, 545 
 
 PILOTS. 
 
 license of, 303 
 employers of, liable for negligence of, 331, 549 
 
 PLATFORM. See Ice. 
 Of SiATioN. 
 
 liability of company for negligence in failing to provide, 141 
 
 duty of railroad company to keep in safe condition, pnssenger, 91 
 
 reasonable length of, required, 99 
 
 duty of carrier with regard to, 96 
 
 rule as to removal of ice and snow from, 104 
 
 suffering ice to remain on, from previous day is negligence, 38 
 
 carrier's liability to stranger for defective, 109 
 
 degree of care over stations and, 94 
 
 liability of railroad company foi- i)ijuries caused by defect of, 97 
 defect in, 395, 396 
 
 passenger not retjuired to remember defects in, 378 
 
 use of by two or more carriers, liability for defects in, 122 
 
 liability of carriiT for injuries lo iiackman, from defective, 116
 
 IMDKX. 805 
 
 PAGE. 
 
 defects in, to make carrier liable, 129 
 
 stepping into open space between car and station, 387 
 injury caused by weighing Dmchines, 98, 383 
 
 article falling from rack, 98 
 
 length of railway platform, 99 
 person injured on, by mail bag thrown from train, company liable, 365 
 
 who are entitled to protection in use of, 124 
 
 OF CAK; 
 
 contributory negligence about, 386 
 passenger on, does not assume risk of collision, 233 
 of street car not a place of danger per se, 43 
 iujuiy by brake, failure to warn against, 99 
 not negligence in conductor not to warn passengers standing on, 37 
 passenger voluntarily taking place on, cannot hold company negli- 
 gent in failing to provide cars, 227 
 negligence for driver to needlessly withdraw from, 36 
 
 PLEADING. 
 
 averment by passenger wrongfully ejected, 180 
 
 as to denial of negligence, 56 
 
 POISONING. 
 
 accidental, from fumigation of ship at quarantine, 330 
 
 POLICE OFFICER. 
 
 for violence incident to arrest by, carrier not liable, 359 
 liable for unnecessary force in ejecting passenger on invitation of 
 
 carrier, 175 
 
 POLICE POWER. 
 
 nf conductor, 220 
 
 of states affecting interstate commerce (note), 542 
 
 POSTAL CLERK. See Mail Agent. 
 
 PORTER. See Slkeping C'ak. 
 
 delivery of baggage to, on alighting from car, 584 
 
 PRECAUTIONS. 
 
 what necessary to be taken by elevator proprietor, 311 
 
 against human fallibility, automatic signals, block system, 80 
 
 PRESUMPTION. See Evide.nck. 
 
 of carrier's negligence from injury, 690 
 
 injuries arising from movement of carriage, 693 
 
 collision with objects on side of carriage, 696 
 
 explosions, 698
 
 806 IXDKX. 
 
 PRESUMPTION— continued. tage. 
 
 falling objects, 698 
 
 at stations, embarking and alighting, 699 
 
 none where accident caused by act of God, 693 
 
 injur}- from rebound ot ferryboat on striking wharf, presumption of 
 
 negligence, 695 
 
 of carrier's negligence from injury to passengers by a bridge, 696 
 
 of negligence of proprietors of omnibus from explosion of lamp, 698 
 
 of sleeping car company from falling of berth, 698 
 
 that person on train is a passenger, 5 
 
 of negligence from injury to passenger, 24 
 
 as to operation of railroad, 3 
 
 that person killed at crossing stopped, looked and listened, 678 
 
 application of, when admitted by court, 679 
 
 weight of, in some courts, overcoming of, 681 
 
 of negligence and other tribunals, 682 
 
 where none is allowed, 682 
 
 of negligence of person killed by car running in on switch, 686 
 
 of due care by one found killed by alleged negligence of another, 677 
 
 passenger not presumed to know secret instructions to conductor, 328 
 
 of negligence in case of injury from elevator, 322 
 
 e.xplosion of steamboat boiler as prima facie evidence of negligence, 298 
 
 as to common law in another state, ' 645 
 
 PROCESS. 
 
 service on foreign railroad company, 609 
 
 PROSTITUTE. 
 
 social penalties cannot be imported into law carriers, 162 
 
 PROTECTION. 
 
 right of pas-senger to, from mole,>itation and insult, 166 
 
 PROXIMATE CAUSE. 
 
 Nkgmgknck, Contkiiu tohy as Pj{oxiiM.\Th: Cause (CiiAP. xxxn). 663 
 
 defined and illustrated, 669 
 
 contributory negligence as, 666 
 
 PUBLIC POLICY. 
 
 tiial carrier siiali be exonerated from full le.^ponsibility contrary to, 275 
 
 agreement for location of station, when against, 89 
 enntract exposing express messenger to same risks as baggageman 
 
 not against, 277 
 
 PUNITIVE DAMAGES. See Dam..\(;ks. 
 
 allowed woman carried beyond her station where employees refus- 
 ing to i)Ut lier off were insulting, 148 
 for personal injuries, 607, 659
 
 INDKX. tiOT 
 
 Q. 
 
 QUARANTINE. page. 
 
 Appendix. Opinion of solicitor general as to power of Secretary 
 
 of Treasury with regard to quarantine regulations, 763 
 
 accidental poisoning from fumigation of ship, 330 
 
 state systems of, i 292 
 
 QUESTION FOR JURY. 
 
 where passenger injured, when due care is, 139 
 
 proper use of holding straps by passengers on street oar, 43 
 
 QUESTION OF LAW AND FACT. 
 
 reasonableness of rules and regulations, question for court, 169 
 
 R 
 
 RACK. 
 
 injury caused by article falling from, 98 
 
 RAILROAD CROSSING. See Crossing. 
 
 RAILROAD CUT. 
 
 duty of company as to landslides in, 5 1 
 
 RATES. 
 
 maximum, railroad commission may prescribe, 483 
 
 must be reasonable, 498 
 
 in the absence of legislative regulation, court must decide what are 
 
 reasonable, 433 
 
 national control of interstate commerce, 444 
 
 REASONABLENESS. 
 
 of rules and regulations, question of law for the court, 169 
 
 of rates, in the absence of legislative regulation the courts must de- 
 cide as to, 433 
 of time for stopping at station, what is, question for jury, 150, 187 
 
 RECEIVERS. 
 
 Rkckiver Acting as Carkieh (Chap, xxviii.), 593 
 
 liability of, distinction between actions, 593 
 
 liability of, for personal injuries or death, 596 
 
 apparent conflict of authority as to liability of, 596
 
 808 l^iDKX. 
 
 RECEIVERS— continued. TAoe. 
 
 personal liability of, 598 
 
 permission to sue, liability under foreign statutes, 599 
 
 REMOVAL OF PASSENGERS. See Ejection from Tuatx. 
 
 RECOVERY. 
 
 passengers struck by car projecting over platform may recover, 96 
 
 REGULATIONS. See Rules and Rbgulations. 
 
 RELIEF. 
 
 as affected by form of action, 633 
 
 REPUTATION. 
 
 of manufacturer, no defense to carrier, 57 
 
 ROAD.BED. See Track. 
 
 rule as to liability for defects in, 53 
 
 duty of carrier as to, 220 
 
 carrier held to same degree of care maintaining side track switches, 
 
 etc., 53 
 
 duty of carrier to use utmost care and diligence guarding against 
 
 obstruction on track, 49, 50 
 
 ROBBERS. 
 
 liability of carrier for loss caused by, 556 
 
 ROUND TRIP. See Tickets. 
 
 RULES. 
 
 carrier may adopt and enforce reasonable rules for safety of pas- 
 sengers, 43 
 
 RULES AND REGULATIONS. 
 
 <]»tinition of rule, 169 
 
 regarding transportation of passengers, 168 
 
 that passenger shall pay by command of conductor, reasonable, 189 
 that passenger desiring to stop over must present stop-over ticket to 
 
 second conductor, reasonai)le, 514 
 
 passenger bound to comply with, going from the cars, 377 
 
 that ticket shall be subject to inspection by conductor, reasonable, 184 
 
 as to connecting carrier must be reasonable, 119 
 
 requiring passenger without tickets to pay extra fare, reasonable, 170 
 
 condition requiring passenger lo exhibit season ticket, reasonable, 170 
 
 conductor supposed to know, 204 
 providing for expulsion from train for failure to pay fare or produ; n 
 
 ticket. 207 
 
 as to admission and exclusion from depot grounds, 113
 
 INUEX. , 800 
 
 PAGE. 
 
 requiring persons passing through gate to show ticket, reasonable, 170 
 where custom and agreement of conductor with regard to stop-over 
 checks are contrary, former constitute the contract between pas- 
 senger and carrier, 366 
 passenger not presumed to know, 145 
 passenger not presumed to know secret instructions to the conductor, 328 
 rules requiring train to stop before passing train standing at station 
 
 does not absolve passenger from exercising ordinary care, 666 
 
 power of railroad to make, does not deprive state of authority to 
 
 reguhite rates of toll, 432 
 
 restricting liability for baggage, 571 
 
 refusal to check baggage to stopping place, 572 
 
 carrier has no right to prescribe the dress of nuy passenger, 172 
 
 disobeying regulations, 375 
 
 reasonable, as to passengers on freight train, 256 
 
 requiring person riding on drover's pass to remain in caboose, 
 
 reasonable, 269 
 
 passenger not presumed to have knowledge of, concerning freight 
 
 train, 252 
 
 s. 
 
 SAFETY APPLIANCES. 
 
 omission of, on freiglit elevator not negligence, 309 
 
 SCALPING. See Tickets. 
 
 SCENERY CAR. 
 
 death of employe riding in, 407 
 
 SEASON TICKET. 
 
 rule requiring passenger to exhibit, 170 
 
 SEATS. 
 
 carrier must provide, for passenger, 232. 
 
 passenger not bound to pay fare unless provided with, 232 
 
 SECOND HAND CLOTHING. 
 
 town ordinance proliibiting importation of unreasonable when, 295 
 
 SEPARATE CARS AND TABLES. See Civii. Rights, Negroes. 
 for white and colored passengers must be e(|ual in all respects and 
 
 quality, 234
 
 810 INDEX. 
 
 SHIP. See Vessel Carrying Passengbiis. page. 
 
 survival of action against, 610 
 
 SHIP'S OFFICER. 
 
 examination of applicants for license as, 303 
 
 SHIP'S PHYSICIAN. See Vessel Cahuying Passengers, 
 
 responsibility for errors of, 284 
 
 SHIPPER. 
 
 of .stock, not paying- passage is passenger, 6 
 
 SHIPPING. See Vessels Carrying Passkngkrs. 
 
 SICKNESS. 
 
 negligence of carrier aggravating hurt or disease, 746 
 
 SIDE TRACK. 
 
 degree of care required of carrier in maintaining, 53 
 
 SIGNALS. 
 
 precaution against human fallibility, block system, 80 
 
 SIGNAL STATION. 
 
 building or platform not necessary at, 91 
 
 SLEEPING CAR. See Parlor Car. 
 
 liability of company not that of comnnju carrier, 3 
 
 for negligence or assault, 3 
 
 for defects in car, S 
 
 sale of berth in, and regulations therein, 237 
 
 contract with carrier as to, involves awakening and notifying pas 
 
 senger in time, 241 
 
 responsibility of carrier for conduct of servants, 240 
 
 limitation of liability by statute, 243 
 
 drawing room and, security of, 236 
 lialtility of company for loss of monej' or property, negligence, 240. 557 
 
 {Kjrter, servant of carrier, 240 
 
 liability for assaidt by porter, 348 
 
 presumption of negligence from falling of berth, 237, 698 
 
 SMALLPOX. 
 
 carrier's riglit (o remove passenger supposed to have, 348 
 
 SNOW ON TRACK. 
 
 injury to passenger by jumping in front of snow plow on next track, 426 
 
 SNOW PLOW. 
 
 injiiiy U> passcnircr by jumping in front of, on next track, 426
 
 INDEX, bll 
 
 SPECIAL RATES. pagk. 
 
 for immiejrsmts at sea, 503 
 
 SPECIAL TRAIN. 
 
 no obligation to receive passengers upon, 249 
 
 SPECTATOR. 
 
 liability of carrier to, only for gross negligence, 109 
 
 SPEED. 
 
 state may regulate rate of, 230 
 
 responsibility for running trains at great speed through station, 60 
 
 danger from, 85 
 
 of street car, regulation of, 3 1 
 running street cars at high rate of speed across railroad is negligence, 38 
 
 STAGE COACH. 
 
 one transporting passengers for hire in, is public carrier, 2 
 
 Law of the Stage Coach (Chap, ii.), 2 1 
 
 duty of stage coach proprietor, 2 1 
 
 car, coach, stage, or stage coach, defined, 21 
 
 responsibility for safe coach, horses and driver, 22 
 
 duty to provide safe coach not absolute, 27 
 imposed duty to make frequent and careful examination of coach and 
 
 equipment, 22 
 
 must be provided with lights, 26 
 disability of driver from extreme and unusual cold will relieve owner, 26 
 
 liability of company using ferry for defects in boat, 108 
 
 proprietors of, bound to receive whom, 160 
 
 must not overload, 24 
 
 overturning of, prima facie negligence, 694 
 jumping off, on alarm at breaking of axle not contributory negligence, 413 
 
 jumping of frightened passenger from, liability for injury, 428 
 
 STAGE DRIVER. 
 
 right to go to inn with travellers, 117 
 
 STAIRS. 
 
 slipperyness of, at station, 97 
 
 STATE. 
 
 State Contkoi. over Carriers (Chap, xxir), 432 
 
 how far the state may regulate subjects of commerce, 439 
 
 regulation by, incidentally aflfecting interstate commerce, 439 
 
 STATE COMMISSION. 
 
 to regulate charges, 483
 
 812 JNDKX. 
 
 STATE STATUTES. page. 
 
 constitutionality of, regulating fees for elevating and discharging 
 
 grain by elevators, 451 
 
 STATE TAX. 
 
 upon earnings of sleeping car company, void, 441 
 
 STATIONS. 
 
 duty of carrier with regard to, 96 
 carrier not bound to make accidents impossible, 97 
 defective platform, 97 
 slipperyness of stairs, 97 
 obligation of care extends to those coming upon premises on busi- 
 ness, 97 
 approaches to, injur}' from use of unusual ones, 385 
 duty of carrier to provide suitable and safe accommodations, 90 
 degree of care over, 94 
 state may regulate safety of, 230 
 Control axd Cake of Depots and Grounds (Chap, vu.), 101, 113 
 regulation for admission and exclusion from depot grounds, 113 
 must be lighted and warmed and proper facilities furnished, 125 
 Duty of Cauiuek at Station (Chap, viit.), 138 
 announcement of, 138 
 failure to notify conductor of wish to get off, recovery, 138 
 statute requiring waiting room at railroad crossing, legitimate exer- 
 cise (if police power, 88 
 maintenance of two stations half mile distant, not compliance with, 88 
 ticket if procured to enter unlawfully will not protect holder, 115 
 Depots, Stations and Whakves (Chap, vi.), 8& 
 passengers justified in getting off when station is announced and 
 
 train stops, 139- 
 
 notice or warning should be given, 139 
 
 train must stop at, reasonable time, 150 
 
 reasonable time, what is, 150 
 
 running b}', not negligence when, 143 
 
 rule requiring approaching trains to stop before passing train stand 
 
 ing at, 666 
 
 exposing passengers to danger from passing train, 133; 
 
 rule as to removal of ice and snow from platform, 104 
 
 right to hire carriages on depot grounds, 1 15 
 
 carrier cannot exclude employe of passenger, 115 
 
 STATUTE. 
 
 to secure safety of passengers must be complied with, 230 
 
 regarding action for death caused by negligence, strict construction of, 622 
 
 Ktatulory provisions on negligence causing death, 627 
 
 regulating damages for death from negligence, 657 
 
 f 
 
 I
 
 iNDKx. avs 
 
 PAGE. 
 
 liability of receiver under foreign stalule, 599 
 
 effect of repeal on pending actions, 632 
 
 regulating the use of elevators, 324 
 
 STEAM VESSELS. See Vessels ('AititviNG PASSENGERg. 
 
 Statttokv RK(;ui>ATroNS ok — P>;;sAi/nE.s (Chap, xvi.), 296 
 
 one transporting passengers for hire on, is public carrier, 2 
 
 owners of, not liable as innkeepers, 552 
 
 crowding person overboard, when not negligence (note), 74 
 
 engaged in interstate commerce subject to Federal control, 447 
 
 liability of company for failure to provide proper gang plank, 107 
 
 contributory negligence about landing, 386 
 
 STICKING ARM OUT OF WINDOW. 
 
 question whether i)assenger is guilty of negligence, one of fact for 
 
 a jury, 45 
 
 STOCK. See Pass. 
 
 liability of carrier to one traveling with, on pass, S69 
 
 STOCKHOLDERS. 
 
 injury in collision, paying no fare,liabililj'of carrier to, for negligence, 279 
 
 STOP OVER TICKET. 
 
 where uniform custom as to, not according to rules and regulations, 366 
 
 right of passenger when train check given instead of, 201 
 
 rule that passenger must present, reasonable, 514 
 
 loss of baggage of passenger traveling on, 584 
 
 STOPPING TRAIN. 
 
 loss of baggage through window, conductor justified in not, 559 
 
 STORMS. 
 
 carrier mu.st anticipate stoim and its consequences, 67 
 
 need not be unprecedented to constitute act of God, 71 
 
 STRANGER. 
 
 carrier's liability to, for defective station platform, 109 
 
 STREET CAR. 
 
 one transporting passengers for hire on, is public carrier, 2 
 
 Street Caks (Ch.'VP. hi.), 30 
 
 care and condition of tra(:k and car, 30 
 
 operation and management, 31 
 
 duty to keep exit and entrance to car clear and secure, 38 
 
 passenger having not yet paid, not trespasser, 376 
 defect in, conipetency of evidence to show negligence of company, 724
 
 814 INDEX. 
 
 STREET CAR— contiuued. page. 
 
 negligence inferred from injur}' bj- lurching of, 695 
 
 newsboy permitted by conductor to enter, is not passenger, 7 
 
 slackening speed of, an implied invilation to board car, 42 
 
 duty of carrier towards infirm, cripple, or very young passengers, 34 
 driver must use reasonable care when passengers are getting on and 
 
 off, 391 
 
 not negligence to board slowly moving car, 41 
 
 liability of company for injury of passenger attempting to alight 
 
 while car in motion, 666 
 
 dutj- to stop car sufficient length of time, 152 
 
 rules applicable to persons getting on and off steam cars not to be 
 
 applied to, 40 
 
 jumping from, while running 20 miles an hour is gross negligence, 668 
 liability for injuries to passenger jumping off in the face of immi- 
 nent peril, 417 
 jumping from, at railroad crossing on seeing approaching train, as 
 
 negligence, 419 
 
 contributory negligence of passenger on, 39 
 
 position on car, 43 
 
 position in, as negligence, 401 
 
 riding on step while in motion, 410 
 
 front platform not a place of danger 'pev se, 43 
 
 injury to passenger with arm extending out of window, 403 
 
 intoxication of passenger in will prevent recovery when, 667 
 
 ejection of passengers from, 35 
 
 vulgar and indecent language will not justify putting off passenger, 
 
 when, 161 
 
 ejection from, justified where ticket is transfer ticket of another line, 198 
 too much fare in box, rectifying mistake, 340 
 
 as to duty of conductor of, see Condictor. 
 
 imposed duties of driver and conductor, 32 
 
 assault by conductor of after passenger leaves car, 362 
 
 conductor of, not driver of carriage within the statute, 333 
 
 company liable for insult of driver, 345 
 
 carrier's liability for carelessness and negligence of the driver, 331 
 
 gross carelessness of employe, rule as to punitive damages, 332 
 
 company liable for mistal\e of driver, 35 
 
 lialiility for negligence of driver of street car, 18 
 
 company liable for false arrest procured by driver of, 352 
 
 liability of carrier for unjustifiable assault l)y driver, 338 
 
 passenger thrown from car by negligence of driver, presumption, 693 
 whipping up horses in front of approaching train, 429 
 
 collision of two cars, negigence of both, recovery, 743 
 
 company not liable for injury at crossing caused by negligence of 
 
 L'ateman, 427 
 
 vigilance n(]ulr(il in proportion to danger, 36
 
 SUNDAY TRAFFIC. page. 
 Sunday TuAFFic and Traffic ovku otiiek T^oads (Ciiai*. nwi), 531 
 
 traveling on Sunday, S31 
 
 SWITCH. 
 
 degree of care required of carrier in maintaining, 53 
 
 railroad companj'^ switching cars for all railroads is carrier, 2 
 
 carrier's liability for throwing of, causing accident, in presence of 
 
 brakeman, 328 
 
 presumption of negligence of person killed by car running in on, 686 
 
 railroad company maintaining, liable for injury from defects in, 546 
 
 SWITCHING CHARGES. 
 
 state commission may regulate, Interstate Commerce Act, 485 
 
 SWITCH ENGINE. 
 
 riding on, contrary to orders, negligence, 506 
 
 T. 
 
 TARIFF. 
 
 state may regulate posting of, 230 
 
 of passenger rates, courts will not interfere in diti'ereuce of opinion 
 
 as to, between state commission and carrier, 485 
 
 TAX. 
 
 municipal, upon railroad running through corporate limits, validity of, 441 
 
 TESTS. 
 
 rule for, 63 
 
 liability if test would have discovered defect, 57 
 
 applied to metals, 83 
 
 company responsible for defects discoverable by, 62 
 
 THEATRICAL EMPLOYE. 
 
 negligence of, riding in scenery car, 407 
 
 TICKET. See Commutation Tickets, Stopover Tickets, Train 
 Check, Transfer Ticket. 
 Sale and Production of, Conclusiveness, Removal op Pas- 
 senger (Chap, x.), 181 
 opportunity must be given for purchase of, 181 
 company required to keep open oflice, reasonable time before de- 
 parture of train, 181
 
 816 l.NDKX. 
 
 TICKET— continued. pagk. 
 
 no excess fare can be collected where ticket office not open, 182 
 to put ticket on counter in bis absence no delivery to purchaser, 182 
 
 Tickets (Chap, xxiy.), 505 
 
 sale of, to station implies contract to stop there, 145 
 
 rule requiring purchase of, before entering car, 252 
 
 regulation requiring person to exhibit, before entering cars, 113 
 
 if procured to enter station unlawfully will not protect holder, 115 
 
 as evidence of contract, 198, 199 
 
 party rates, 506 
 
 mileage ticlcet, 510 
 
 excursion ticket, 510 
 
 C03SrDITIONAL TiCKET (ChAP. XXV.), 514 
 
 condition and limitation on, 614 
 
 limit of time on, 521 
 
 round trip tickets, 523 
 
 through, over connecting road, 524 
 
 commutation rates and, 508 
 
 local book ticket, use of, 528 
 
 liolder of commutation, required to show, 184 
 
 effect of failure to sign, agreement on special, 519 
 
 excursion ticket, refusal by conductor to rec(«gnize; damages when 
 
 passenger entitled to ride on, 174 
 
 rights under, with regard to continuous passage* 193 
 
 refusal of, on limited train as notice, 375 
 
 passenger may be detained reasonable time to investigate loss of, 351 
 
 company may not eject passenger when wrong ticket given by agent, 207 
 damages recoverable for ejection of passenger when wrong ticket is 
 
 accompanied by a proper telegram from head ofhce, 207 
 
 canceled by mistake, 206 
 
 company must accept, when defect in is due to carelessness of agent, 206 
 refusal to pay fare or exhibit, 183, 188 
 
 lack of, when will justify expulsion from train, 186 
 
 conclusiveness of as to rights of passenger, 198 
 
 right of passenger on train when ticket agent not at his place, 190 
 
 conclusiveness of, denial of, in case of carrier's negligence, 203 
 
 containing restrictions releasing liability for baggage, 571 
 
 stipulation on face of, as to baggage, 582 
 
 ticket brokerage, 491 
 
 on freight train, rule re(iuiriug purchase before taking passage, 
 
 reasonable, 256 
 
 TICKET AGENT. 
 
 cannot bind company to .stop train at an unusual place, 179 
 
 causing arrest of passenger, New York rule as to scope of authority, 352 
 when carrier is liable to action for false imprisonment for slander 
 
 through act of, 346
 
 ixuEX. • 817 
 
 PAOE. 
 
 contraction of contagious disease from, 330 
 
 passengers have right to rely on statements by conductor of train, 328 
 
 TIMBER TRAIN. 
 
 railway company owes no duty to intruder upon, 255 
 
 TIME. 
 
 limit of, in ticket, 521 
 
 TIME TABLE. 
 
 for accommodation and express train to meet at station, is gross 
 
 negligence, 133 
 
 carrier failing to comply with, liable for actual damages, 228 
 
 liability for publishing in, a discontinued connecting train, 230 
 
 TONNAGE TAX. 
 
 to defray expenses of quarantine, illegal, 295 
 
 TRACK. See Road Bed. 
 
 liability for bad track, 61 
 company running cars over defective track, guilty of negligence, 31 
 railroad company not bound to construct to meet extraordinary floods, 88 
 duty of carrier to use utmost care and diligence to guard against ob- 
 structions on, 49 
 company not liable for break brought about by cold weather, 64 
 
 RAILROAD TRACK. See Tkack. 
 
 evidence of defect in at another time admissible when, 724 
 
 evidence as to defective condition of, confined to time and place of 
 
 accident, 722 
 
 TRAIN. 
 
 must be stopped at proper and safe place, 147 
 
 contributory negligence in entering, in motion, 389 
 
 jumping from moving, 390 
 
 opinion evidence as to speed of, 72 1 
 
 TRAIN CHECK. 
 
 right of passenger when given instead of stop over ticket, 201 
 
 TRAINMAN. 
 
 shutting door on hand of passenger, guilty of negligence, 132 
 
 TRAIN MASTER. 
 
 authority to use hand car for transporting passengers, evidence ^f , 254 
 
 52
 
 bis INDEX. 
 
 TRANSFER TICKET. page. 
 
 ejection from street car justified where ticket is transfer ticket of 
 
 another line, 198 
 
 TRANSITORY ACTIONS. 
 
 jurisdiction of, 651 
 
 TRAVELER. 
 
 assumes risk of accident (noic), 74 
 
 traveling on Sunday, 531 
 
 TRESPASSER. 
 
 on freight train may be ejected anywhere, 258 
 
 one riding on railroad by permission of conductor not paying fare not, 252 
 
 TRIAL. 
 
 proper use of holding straps by passengers on a street car, question 
 
 for a jurj"^, 43 
 
 TUG BOAT. 
 
 negligence in permitting young children to go aboard of, 734 
 
 IT. 
 
 UNCHASTE WOMEN. 
 
 social penalties cannot be imported into law of carriers, 162 
 
 I 
 
 VENUE. 
 
 of action airainst railroad, 632 
 
 VERDICT. 
 
 in Buit for damages for personal injuries, 752 
 
 VESSEL CARRYING PASSENGERS. 
 
 requirement to kcop ccrtilicatos of license in conspicious place, 304 
 
 remedy by action for penalty for carrying excess of passengers, 305 
 
 protection of passengers by limiting their number, 299
 
 i:s'DKX. 819 
 
 PAGE. 
 
 in estimating number on board no deduction for ohildven or persons 
 
 not paying-, 300 
 
 proceedings iii, rem for penally for excess of passengers, 306 
 
 prohibition of dangerous articles upon, 307 
 
 regulation of steam vessels, 296 
 
 responsibility for errors of ship's physician, 284 
 
 statutory duty to provide qualified physician, 287 
 
 when ship owner has emploj'ed competent physician and furnished 
 
 medicines, his duty ends, 289 
 
 owner is not liable for want of care of surgeon, 349 
 
 separate table and food for white and colored passengers must be 
 
 equal in all respects, 234 
 
 duty of master to accept and care for passenger, 283 
 
 contract includes food and w^ater, 284 
 
 liability for loss of articles from state room, 556 
 
 steamboat owner, liability as innkeeper, 558 
 
 navigating between ports of same state subject to power of Congress, 302 
 examination of applicants for license as ship officer, 303 
 
 seaworthiness of vessel and competency of officers — statute limiting 
 
 liability, 291 
 
 rule of contributory negligence in admiralty jurisdiction, 674 
 
 admiralty rule for apportioning damages extended to action for per- 
 sonal injuries, 676 
 passenger not required to know danger on account of hawser, 400 
 ■what is proper care of infant of 7 years by parents on, 734 
 
 VIGILANCE COMMITTEE. 
 
 right to send back passenger whose life is threatened by, 163 
 
 VESTIBULE TRAIN. 84 
 
 w. 
 
 WAITING ROOM. 
 
 duly of carrier to provide, 90 
 
 who are entitled to protection in use of, 124 
 
 WAREHOUSE. 
 
 liability of burning of goods deposited in, on Sunday, 540 
 
 WAREHOUSEMAN. 
 
 liability of connecting carrier as, 552
 
 820 IXDEX. 
 
 WASH-OUT. PAtiE. 
 
 carrier's liabilitj' for injuries caused b}% 50 
 
 WATERS. 
 
 national control over navigable, 444 
 
 WEATHER. 
 
 company not liable for break in track brought about by cold, 64 
 
 WHARVES. See Stations. 
 
 care over, 107 
 
 WEIGHING MACHINE. 
 
 on platform injury to passenger by, recovery, 98, 383 
 
 WIDOW. 
 
 as plaintiff in action for death, 635 ei seq 
 
 interest of in recovery for "death, 661 
 
 WINDOW. 
 
 question whether a passenger is guilty of negligence in sticking arm 
 
 out of window one of fact for a jury, 45 
 
 WOUNDED FEELINGS. 
 
 no recovery for, when passenger expected and desired to be put off, ITS
 
 
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