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by prudent and careful men - no more and no less. And it is immaterial whether the company carries more or less passengers in its freight trains, and whether or not the passenger travels on a special permit or a regular ticket. Hazard v. Chicago, etc., R. Co., * 1 Biss., 503.

$ 254. Duty to keep depot platform free from snow and ice.— In suit against a railroad company for damages for injuries to the plaintiff caused by reason of the icy condition of the defendant's platform, it is not necessary to charge the defendant with liability that it be guilty of gross negligence. It is enough if the accident was caused solely by any negligence on its part, however slight, if, by the exercise of the strictest care and precaution reasonably within its power, the injuries would not have been sustained. On the other hand, if the injury arose from the want of ordinary or proper care on the part of the plaintiff at the time of its commission, there is no liability on the part of the defendant although guilty of negligence. Seymour v. Chicago, B. & Q. R. Co.,* 4 Am. L. T., 134; 3 Biss., 43.

§ 255. Defective platform and stairs.— Plaintiff was rightfully at defendant's depot in the evening for the purpose of taking defendant's cars. There was a platform extending from the east side of the depot to the railroad track, over which passengers passed to and from the

Stairs led through the center of the depot to the street on the opposite side, which was several feet lower than the track, and there were also stairs at either 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. The stairs and a platform 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 defendant's premises, of which defendant had control. Plaintiff, in attempting to pass down these stairs in the dark from the upper platform to the street, without fault on her part, fell from the lower platform to the ground, striking beyond the limit of defendant's premises, and was injured. Held, defendant was liable. Beard v. Connecticut, etc., R. Co.,* 2 Rep'r, 555.

$ 256. Liability for negligence of legee in use of its depot.— A railway company that allows another company to use its depot is liable for injuries caused by the latter's negligence. Seymour v. Chicago, B. & Q. R. Co.,* 3 Biss., 43; 4 Am. L. T., 154.

$ 257. Injury prima facie proof of liability.— An injury to a passenger acting with reasonable prudence is prima facie proof of carrier's liability. Railroad Company v. Pollard, 22 Wall., 341.

8 258. Plaintiff, while a passenger upon defendant's cars, was injured by the explosion of the boiler of defendant's locomotive, which was being used to push the train out of the yard, and brought action on the ground of negligence to recover for his injuries. Held: 1. That railroad companies, as carriers of passengers, must apply to the boiler of a locomotive used by them in hauling passenger trains every test known to experts; but they are not liable for defects which cann be discovered by such tests. 2. An explosion proved warrants a presumption of negligence. Robinson v. New York Cent., etc., R. Co.,* 9 Fed. R., 877.

8 259. Through tickets - Injury at the end of one line - Liability of the two carriers.The plaintiff held a through ticket from New York to St. Louis, one of the coupons of which called for a passage over the Indianapolis & St. Louis Railroad. The coupon ticket was taken up while he was on said road by the conductor or some other officer, and in lieu thereof he received a bridge and tunnel ticket to St. Louis. At East St. Louis, after the engine of the I. & St. L. R. R. Co, had been detached from the train, and before the engine of the Union R. & T. Co. had been attached for the purpose of taking the train across the bridge and into St. Louis, a train on a cross-road collided with the passenger train, upset the sleeping-car, and plaintiff was seriously injured. He brought suit against both of the aforesaid companies in separate actions, which were tried together. Held, that where a continuous through route is established by two or more roads, and an injury happened near the end of the route through negligence of the defendant, either acting directly through its immediate employees or acting by other agents with whom it had contracted for intermediate service, then said railroad is liable. Keep v. Indianapolis, etc., R. Co.,* 3 McC., 208.

$ 26). The duties of the Indianapolis & St. Louis Railroad Company to the plaintiff as a common carrier did not cease until the arrival of the train at St. Louis, although it may have entered into a contract with others to furnish the motive power for hauling the train over the bridge and tunnel. It was not one of the connecting roads for a through route; its liability ended at the termination of its route. Ibid.

$ 261. Liability of one road for negligence of another using its tracks.— A railway company is liable for the killing of one of its passengers by the negligence of another company to whom it had leased and permitted the use of its road. Railroad Co. v. Brown,* 5 Wall., 96.

$ 262. A passenger on an Illinois Central train was killed by the happening of a collision of that train with a Michigan Central train which used the Illinois Central tracks under contract with that road. In an action by his personal representative against the Illinois Central Rail

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road to recover damages for his death, under the Illinois statute, it was held that, although the jury may believe that the Michigan Central train may have been chiefly in fault, and that without its agency the accident would not have happened, yet if they also believe that the negligence of those in charge of the Illinois Central train contributed to the disaster, then the defendant was in fault, and the plaintiff could recover. Nor would the fact that the Michigan Central train was running on the road of the defendant by virtue of a contract with it, and that the train was under the sole management of the agents of the Michigan Central Road, and that the death was caused entirely by their fault, relieve the defendant from responsibility. If the defendant allowed the trains of the Michigan Central to run over its road under the management of the agents of the Michigan Central, it should be done in such a manner as not to interfere with the safety of the passengers of the defendant, and, as to such passengers, the fault of the Michigan Central Road in running their trains is the fault of the defendant. Barron v. Illinois Central R. Co.,* 1 Biss., 453.

$ 263. Contractor's liability for injury to passenger on construction train.- Railway contractors who run a construction train upon which they take passengers are, as to such passengers, private, not public, carriers, and are bound only to use reasonable care and skill in the management and operation of the train. They are not insurers of such passengers. Hence it is not essential to prove in defense that the agents and servants of such contractors in charge of the train were possessed of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which they were engaged. It is enough if they acted with reasonable skill, prudence and caution. Shoemaker v. Kingsbury,* 12 Wall., 369.

$ 264. Safety of means of going upon vessel. – A passenger has a right to have provided for him a safe and convenient gangway or other means of going upon a vessel, and it is the duty of the carrier in charge of the vessel to provide it. Should the gangway provided contain any secret defects, such as rottenness or insecure fastenings, one injured in its use can recover of the vessel. But it is not the duty of the vessel to provide a gangway thus suitable for passengers to enter upon, when it is lying at an old wharf in an out of the way place, difficult of access, for the receiving of cargo merely, it being the custom, also, of passengers to come on board in a tug or small boat. And if a visitor or person intending to become a passenger clambers upon the old wharf and is injured while undertaking to go aboard with his wife over a manifestly narrow and insecure gang plank, he is guilty of contributory neg. ligence and cannot recover for the injury. The Ship Anglo Norman,* 4 Saw., 185.

$ 265. Damages for exposure of passenger on boat. - The plaintiff purchased a ticket entitling him to first cabin passage on defendant's steamer and was furnished with only second cabin fare; he sued the company. Held, that if the jury found from the evidence that the plaintiff's sickness was caused by exposure, by reason of not being furnished with sufficient accommodations on the steamer, they were to estimate the damages to the plaintiff caused by such exposure and include such damages in their verdict. Roberts v. Graham, * 6 Wall., 578.

$ 266. Waiver of rights of party injured.- Where a woman has been severely injured in getting aboard a steamer, by reason of the boatmen putting out an unsafe gang plank, the fact that she is unwilling to pay fare, and that the captain makes no demand of fare from her, is no release of her right of action against the owners of the boat, unless she at the time understands that it shall be so, and gives her consent thereto. Packet Co. v. Clough, 20 Wall., 538.

$ 267. Daty of stage carrier - Accident - Competency of driver — Contract - Custom.Plaintiff was in jured by the upsetting of a coach, caused by the alleged negligence of the driver. In an action for damages for his injuries, held, that a carrier of passengers for hire is bound to provide careful and skilful agents. The driver of a passenger coach must not only be skilful; the least degree of momentary imprudence on his part fixes the liability upon his employers. The upsetting of a coach is prima facie evidence of negligence. McKinney v. Neil,* 1 McL., 540.

§ 268. Plaintiff had been injured by the upsetting of a stage in which he was a passenger. In an action for damages he offered to show that a special contract was made with defendant's agent by the passengers on starting that not more than six passengers should be permitted inside the stage and one on the outside, and that the violating of this contract in carrying more than that number caused plaintiff's injuries. Plaintiff was not a party to this contract, having taken passage at an intermediate stopping place. Held, that one who is not a party to a contract nor induced by it can claim no benefit under it. Maury v. Talmadge,* 2 McL., 157.

$ 269. Plaintiff's wife was injured by the upsetting of a stage in which she and her husband were riding. In an action against the owners of the stage, held: (1) That the defendants are not liable unless the injury of which plaintiff complained was caused by the negligence


or want of proper care and skill in the driver of the stage in which she was a passenger, But the fact that the stage was upset and plaintiff's wife injured is prima facie evidence that there was carelessness or want of skill on the part of the driver, and throws upon the defendants the burden of proving that the accident was not occasioned by his fault. (2) It being admitted that the carriage was upset and plaintiff's wife injured, the defendants must prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and that he acted on this occasion with reasonable skill, and the utmost caution and prudence; and if the disaster in question was occasioned by the least negligence or want of skill and prudence on his part then the defendants are liable. (3) If there was no want of skill, or care, or caution on the part of the driver, and the coach was upset by the act of the plaintiff or his wife, in rashly or imprudently springing from it, then the defendants are not liable. But if the want of skill of the driver placed the passengers in a state of peril, and they at that time had reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, then the plaintiff can recover, although it appears that, from the position in which the negligence of the driver had placed the carriage, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the carriage to upset, and although the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage. (4) If the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and the accident was occasioned by no fault or want of skill or care on his part or that of the defendants, but by physical disability in the driver, produced by exposure to extreme and unusual cold, which rendered him for the time incapable of doing his duty, then the defendants are not liable. Saltonstall v. Stockton,* Taney, 11.

$ 270. There were two stage lines on the route between Marietta and Zanesville. One carried the mail. Neil's line was run in opposition to the mail line. The plaintiffs took Neil's line for Marietta. The stages left Zanesville at about the same hour. The horses in both lines were driven rapidly, often at their full speed, against the remonstrances of the passengers in Neil's line. The driver of the mail line whipped his horses and tried to drive around the other stage. A race followed. The wheel of the mail coach locked in the fore wheel of the other stage, broke its doubletree and threw the stage and horses over a precipice, which seriously injured one of the plaintiffs. Held, in an action to recover damages, that if the driver of the defendant's stage did not say or do anything to provoke a reckless competition with the driver of the mail stage, and if, on the contrary, he evidently sought to avoid such competition, and if, when the driver of the mail stage attempted to pass him, he did all that could be reasonably expected from a skilful and prudent driver to prevent the upsetting of the stage, the defendant was not liable. Peck v. Neil,* 3 McL., 22.

§ 271. Every person who establishes a line of stages for the conveyance of passengers, and who holds out inducements to persons to travel in his stages, for which a compensation is charged, is bound to have skilful and prudent drivers, good coaches and harness and wellbroken horses, and the utmost skill and prudence of the driver under the circumstances must be exercised to avoid accidents. Ibid.

$ 272. In an action for damages for injuries to a passenger by the upsetting of a stage, which was alleged to have been negligently overloaded, defendant offered to prove that it had always been the custom on that route to carry as great a number of passengers as were in and on the stage. Held, that a party cannot prove a custom established by himself; only a general custom may be proved. Maury v. Talmadge, * 2 McL., 157.

$ 273. Plaintiff was severely injured by the upsetting of a stage-coach on which he was a passenger. In an action to recover damages for his injuries he attempted to show a want of skill in the driver by proving that at one time his lines were not properly fastened on his horses, and that at another time he handled them unskilfully and nearly upset the stage. Held, that plaintiff could not be allowed to show the driver's incompetency by proving particular facts; that the inquiry must be limited to his general character as a driver. McKinney v. Neil,* 1 McL., 540.

$ 274. Miscellaneous. The act of congress of March 30, 1852, does not exempt vesselowners from liability for injuries to passengers through the negligence of the employees on the vessel.

It does not abrogate the relation of master and servant between the owners and such employees. Sherlock v. Alling, 3 Otto, 99.

$ 275. The plaintiff brought suit against defendant, a common carrier, in assumpsit for injuries to his wife. The plea was a former recovery in a like suit by husband and wife. Held, on demurrer to the plea, that a judgment in assumpsit, brought by a husband and wife on a contract by a carrier of passengers to carry her safely, for injuries to her while being carried, was a bar to another action of assumpsit on the same contract by the husband alone to recover for the same injuries. A different rule prevails when the action is in tort against the

carrier for a breach of his public duty, except, perhaps, in states like New Jersey, where by statute the husband may in such an action add claims in his own right to those of his wife. Pollard v. Railroad Co., * 11 Otto, 223.

$ 276. Plaintiff was wounded in the head by a blow from a piece of iron which was thrown against him in a collision caused by the alleged mismanagement of defendant's servants. In an action to recover damages for his injuries, evidence was offered in his behalf to prove that he had been unable to pursue his business consequence of the injury to his mental faculties. This was objected to on the ground that the declaration only alleged generally a loss by detention from business. On reference of the question to the supreme court by the judges of the circuit court, who had not agreed upon the point of the admissibility of such evidence, held, that the evidence was competent as assisting a jury to determine the extent of plaintiff's loss. Wade v. Leroy, * 20 How., 34.

& 277. Delivery of ticket.- If a purchaser of a railway ticket is called away a moment after he has paid for it, it is no delivery thereof to him to lay it down on the counter. It is the duty of the ticket agent to see that it is delivered properly to the purchaser. Quigley v. Cent. Pac, R. Co., 5 Saw., 107 (SS 844-46).



SUMMARY – Crossings; rights and duties of travelers, ES 278–281.– Fire, SS 282–290.- Child

injured on turn-table, $ 291.– Negligence of child, $ 292.— Measure of responsibility, $ 293. — Contributory negligence in permitting stock to enter through cattle-guards, S 294, 295, 298. — Fences and cattle-guards, &$ 296, 297.— Excavation in right of way, $ 299.- Injury by open hatchway on depot grounds, S 300.

$ 278. The obligations, rights and duties of railroad companies and travelers upon intersecting highways (railway and ordinary) are mutual and reciprocal. No greater degree of care is required of one than of the other; and while travelers in wagons should exercise all the care of intelligent, prudent persons in avoiding collisions with the cars, which have precedence in crossing by reason of their great weight and momentum, yet the duty of avoiding collision cannot be imposed exclusively on travelers by foot or team. Continental Imp. Co. v. Stead, S$ 301, 302.

$ 279. While railway companies may run fast trains and store empty cars on side tracks near highways, but must exercise reasonable care at highway crossings, high speed, failure to ring bells, etc., may all be considered in determining the existence of negligence while crossing highways. Thomas v. Delaware. L. & W. R. Co., 58 303–305.

$ 280. Before attempting to cross a track a person must use all his faculties to see if it is safe to cross, and exercise all the care that may be expected of an intelligent, careful man. Ibid.

$281. Plaintiff was injured by a train while crossing defendant's track. The depot interfered with the view down the track whence came the train, but plaintiff, when thirty-three frit from the track, could have seen over twenty rods of the track beyond the depot, which was a distance of seventy rods from the crossing. The train in question was not a regular train and was moving at an unusual and dangerous rate of speed. It did not stop at the depot as trains usually do, and no warning was given of its approach by blowing the whistle or ring. ing the bell after the depot was passed. Held, that the neglect of an engineer of a passing train to blow the whistle or sound the bell on nearing a crossing does not relieve passers on the highway from the necessity of a sharp lookout for a coming train before attempting to cross; that plaintiff had been guilty of contributory negligence; and, such being the case, was not entitled to recover, however greatly at fault defendant might have been. Schofield v. Chicago, etc., R’y Co., SS 306, 307.

$ 282. Property destroyed by fire from a railway, which spread beyond its original starting place, is proximately within the railway company's negligence, especially where a statute authorizes a recovery for damages by negligent fires caused by a railway company " along its route.” Grand Trunk R. Co. v. Richardson, SS 308–313.

$ 283. Location of property near a railway track is not contributory negligence in case a subsequent fire destroys it. Ibid.

$ 281. Where a railway company licenses the erection of buildings upon its right of way, and they are negligently burned by sparks from its locomotive, in an action therefor the license may be introduced to show that the owner of the buildings was not a trespasser. Ibid.

did so.

$ 285. In an action for the negligent destruction of property by fire from a locomotive, evidence that it was not the custom of railways to employ a watchman is not admissible the issue being as to the existence of negligence. Ibid.

$ 286. Evidence that at different times previous to the fire other locomotives of defendant scattered sparks, etc., is admissible without showing that the particular engine in question

Ibid. $ 287. The fact that property burned was wrongfully on railway is immaterial, it being the duty of a railway to avoid injury even to a trespasser. Ibid.

$ 288. In Iowa, where under the statute the occupant of land under color of title is con. sidered as owner of improvements bona fide placed thereon by him, it is immaterial, in action for their negligent destruction by fire, whether he is in law the owner or not; and evidence impeaching his title will not be admitted. Milwaukee, etc., R. Co. v. Kellogg, SS 314-317.

$ 289. Insurance men may testify as to the nature of an exposure of an elevator towards a lumber-yard. Ibid.

$ 290. It is error to name a specific pumber of feet of distance, and instruct the jury that if they believe one of the buildings was that far from the other property burned, then the injury was too remote from the place of origin to warrant a recovery. Proximity or remoteness is not a matter of mathematical distance, but something to be inferred by the jury from a consideration of all the circumstances surrounding the origin and spread of the fire. Ibid.

$ 291. The defendant operated a line of road running through the town of Blair. A turntable was located near a depot, which was left unlocked and unguarded. While some children were playing about it a boy six years of age was injured. Held, that a railroad company may be liable on the ground of negligence. Railroad Company v. Stout, SS 318–320.

$ 292. Held, also, that while it is the general rule in regard to an adult, that, to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case. Ibid.

293. A railway company is responsible for damages if it fails to take such care as prudent and careful men usually bestow upon dangerous articles. Ibid.

$ 294. The plaintiff was the owner of a field and granted a right of way to a railroad company. The company in constructing its road built cattle-guards at the points of entrance and exit into the field. The plaintiff joined her fences to the cattle-guards. These cattleguards were allowed to fill up, and by this means stock entered the field and destroyed the crops. The cattle and hogs doing the damage mostly belonged to the plaintiff. She knew that stock were passing the cattle-guards, but made no efforts to keep them out of the field. Held, that she was guilty of contributory negligence and could not recover for entire damages. Ward v. P. & M. R. Co., SS 321-325.

$ 295. The plaintiff might, in consideration of her grant of the right of way, have imposed an obligation upon the company to maintain a fence between it and the land of the plaintiff, or she might have demanded, as a consideration, money enough to cover the costs of the necessary fences in the changed condition of her fields; but, not having used this precaution, she cannot supply the want of it by an implication of a contract imposing the obligation, Ibid.

$ 296. A railroad company, in the absence of any charter obligation or statutory duty to fence its tracks, is not bound to keep and maintain fences and cattle-guards, either as partition fences or otherwise. Ibid.

$ 297. No common-law or statutory regulation of Tennessee imposes upon railroad companies the obligation of constructing and maintaining cattle-guards for the protection of crops through which the roads pass. The act of 1875, chapter 64, does not apply to railroad companies, although their lands come within “one general inclosure" made by abutting landowners joining their fences to the cattle-guards of the railroad. Ibid.

$ 298. Where growing crops have been destroyed by stock that passed over a cattle-guard, damages cannot be recovered from the railroad company unless the plaintiff has exercised every diligence in trying to keep the stock out of the field. Ibid.

$ 299. Where a person goes upon the right of way of a railway company and falls into an excavation between its tracks, the company is not liable therefor. The fact that the plaintiff and other persons had crossed there before would not show an invitation to cross the tracks there, but at most a mere license so to do, and would not authorize a recovery. Morgan v. Pennsylvania R. Co., $ 326.

$ 300. A man going over the depot platforms and grounds of a railway company in the night fell through an open hatchway, which was unguarded and unlighted. Held, that the company was liable in damages. Bennett v. Railroad Co., SS 327, 328. [NOTES. - See SS 329–354.]

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