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III. CARRIERS.

[See CARRIERS.)

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SUMMARY - Liabilities in carrying goods and passengers, $ 168.— What necessary to over

come a prima facie case, $ 169. Liability of carriers of passengers, $ 170. — Must protect passengers from violence, $ 171. — Master of vessel personally responsible, S 172.- Soldier whose term of service has expired, § 173. Injury on sleeping-car, § 174.— Injury on bridge at St. Louis, S 175. Road leased or in hands of a receiver, $ 176. — Rights of colored persons, SS 177, 181.- Discrimination on account of character or reputation of passengers, $ 178.— Resisting attempt to expel from car, $ 179.-Carrier's regulations; question for jury, $ 180.— Riding on a free pass, $ä 182, 183. — Riding on cattle train, $ 184.– Freight trains, § 185.— Steerage passengers, S$ 186, 187.- Refusal to carry an exile back to his home; excessive damages, & 188.

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$ 168. A contract to carry passengers differs from one to carry goods, in that for goods the carrier is liable at all events except the act of God and the public enemy, while as to passengers the carrier undertakes that he or his agent shall possess competent skill and will carry safely so far as human care and foresight can go. Stokes v. Saltonstall, SS 189–191.

$ 169. To overcome a prima facie case against it, a carrier must prove competent skill, good habits, and sufficient qualifications in every respect possessed by its agents. Ibid.

$ 170. Carriers of passengers, although not insurers of the safety and lives of those they carry, nevertheless are bound to exercise the utmost knowledge, skill and vigilance to carry their passengers in safety. Dunlap v. Steamboat Reliance, SS 192, 193.

$ 171. A carrier bound to use the utmost care and vigilance in maintaining order and guarding his passengers against violence. And the rule is not relaxed by the fact that a body of soldiers, whose riotous and turbulent conduct cause the injury complained of, are carried under compulsion. Flint r. Norwich & N. Y. Transp. Co., SS 194, 195.

$ 172. A master of a vessel is a common carrier, personally responsible as such for his conduct. White v. McDonough, SS 196, 197. • $ 173. Where the government contracts for the transportation by boat of soldiers, and the term of one of them expires en voyage, he does not ipso facto become a passenger on the boat so as to render the master liable for allowing him to be subjected to military discipline after his term expired. Ibid.

$ 174. Where a railway company is sued for an injury to a passenger in a sleeping-car, it is not error to refuse to allow it to show in defense that the sleeping-car was owned by another company, and in immediate charge of its servants, and that such other company alone issued tickets entitling passengers to ride in the sleeping-car. Pennsylvania Co. v. Roy, SS 198–201.

$ 175. A railway company sold a ticket to St. Louis. Held, that it thereby contracted to deliver the passenger at St. Louis, and that it was liable to him, if he was injured in transit over the St. Louis bridge or through the tunnel, even though the train had been taken in charge by the bridge company, through the negligence of whose servants the injury was done. Keep v. Indianapolis, etc., R. Co., SS 202, 203,

$ 176. A railway company cannot relieve itself of liability for a tort to passengers upon its road by leasing the same, or putting it in the hands of a receiver. And this is true even if the receiver is appointed in invitum. Railroad Co. v. Brown, SS 204–207.

$ 177. Where the charter of a railway company provides that no one shall be excluded from the cars on account of color, a negro has a right to ride in any car provided for passengers by the company. Ibid.

$ 178. The plaintiff, who had purchased a first-class ticket over the defendant road, was not permitted to occupy a seat in the car known as the “ladies' car” on account of her alleged bad character and reputation for unchastity. The evidence showed that her manner, dress and conduct at the time were not offensive, and her demeanor chaste and modest. In an action against the company to recover damages for such exclusion, held, the plaintiff was entitled to recover; that while a carrier may rightfully exclude from the ladies' car a passenger whose condition or reputation is such as to render it reasonably certain that her conduct will be offensive to other passengers, yet for unchastity not affecting her general deportment she cannot be excluded. Brown v. Memphis, etc., R. Co., SS 208–213.

$ 179. An attempt was made to wrongfully expel a female passenger from the ladies' car, The passenger made an unsuccessful resistance, and this fact was set up as a defense to an action by the passenger for her wrongful exclusion. Held, that such resistance is no defense to an action; but where personal injuries are received unnecessary resistance may be considered as mitigating the damages, where, but for the resistance, no injury would have been inflicted. Ibid.

$ 180. The jury are not the sole judges of the reasonableness of a carrier's regulation. They are, as in all questions of law and fact, to apply the facts of the particular case to the principles of law laid down by the court. Ibid.

$181. The plaintiff was a colored woman, who had purchased a first-class railroad ticket from Lexington, Kentucky, to Cincinnati, Ohio, and return. On her return she proposed to enter the “ladies' car," but was not permitted to do so. She brought suit in consequence. Held, that the company was bound to provide for a colored woman precisely such accommodations in every respect as were provided upon their train for white women, If they refused to give her such accommodations she had a right to say that she would not travel in the smoking-car. If she was deprived of the right which the law gave her, then the company is responsible to her in damages. Gray v. Cincinnati Southern R. Co., SS 214, 215.

s 182. A person who, in order to exhibit an invention to one of its officers, was furnished by a railway company with a pass allowing him to ride to the place where such officer was, is not a gratuitous passenger over the road. Not being such, he is not bound by stipulations upon the pass exempting the company from liability for negligence. Railway Co. v. Stevens, SS 216–218.

$ 183. Plaintiff, while riding free of charge upon a railway, by invitation of the president of the company, in which he was bimself a stockholder, was injured. The injury resulted from a collision with a locomotive which was upon the track contrary to orders. The driver of the colliding engine had acted in disobedience and disregard of these orders and thus caused the collision. Held, (1) that a railway company is responsible for injuries resulting from the negligence of its servants, even when they are acting in direct disobedience to official orders. (2) When carriers undertake to convey persons by the powerful but dangerous agency of steam, they should be held to the greatest possible care and diligence, and any negligence in the management of a railway, because of the grave responsibility of the trust, may be considered "gross” negligence. (3) The fact that plaintiff was a stockholder and riding in other than a regular passenger train is immaterial. (4) The duty of carriers to convey a passenger safely does not result alone from the consideration paid for the service; hence the fact of plaintiff's riding free is immaterial. Philadelphia & Reading R. Co. v. Derby, Ss 219, 220.

$ 184. A person traveling on a cattle train is entitled to the highest possible degree of care and diligence. Indianapolis, etc., R. Co, v. Horst, SS 221-227.

$ 185. In an action for an injury while riding on a railway freight train, plaintiff, to show the peril with which the train was managed, may show the manner of changing cabooses, Ibid.

$ 186. Steerage passengers are entitled to the use of the steerage free from the risk or inconvenience of freight stored therein. And the storage of a pile of tin in the steerage, where the roll of the ship may cause it to fall upon passengers, is negligence, and one who is injured thereby may recover. The Oriflamme, SS 228-232.

$ 187. Unless otherwise stipulated a steerage passenger is entitled to a berth. Ibid.

$ 188. Where a vigilance committee expelled a man from San Francisco, warning him on penalty of death not to return, held, that the fact that his return might provoke violence might justify a common carrier by vessel in refusing to accept him as a passenger to San Francisco; but that if such carrier accepted him and took him on board, he offering to pay his fare and conducting himself properly, then the carrier would have no right to travsfer him from its boat to another in order to send him back to the starting point and prevent him from going to San Francisco. But while such transfer is technically a tort, the damages for it, $4,000, were held excessive, considering the humane motive which prompted the carrier to refuse to allow the man to go to San Francisco, and it was ordered that they be remitted to $50, each party to pay his own costs. Pearson v. Duane, SS 233, 234.

[NOTES. — See SS 235–277.]

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Opinion by Mr. JUSTICE BARBOUR.

STATEMENT OF Facts. — This is a writ of error to a judgment of the circuit court of the United States for the fourth circuit, and district of Maryland.

It was an action on the case brought by the defendant in error against the plaintiff in error and Richard C. Stockton, to recover damages for an injury

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sustained by his wife by the upsetting of a stage-coach in which she was a passenger, and of which said Stockton and Stokes were the proprietors. The suit was brought in the name of Saltonstall alone; but there is in the record an agreement signed by the counsel of the parties, stipulating, amongst other things, that the plaintiff might recover in it any damages which might be recovered in an action by himself and wife or by himself alone.

The declaration alleges that the injury complained of was caused by the negligence and want of skill of the driver then in the employment of the said Stockton and Stokes, and engaged in driving their coach, in which the plaintiff's wife was a passenger at the time she received the injury. In the progress of the case, Stockton, one of the defendants, died, and, his death having been suggested upon the record, the case proceeded against Stokes. He pleaded the general issue of “not guilty," on which issue was joined.

At the trial the defendant took a bill of exceptions to the ruling of the court; from which it appears that he asked the court to give to the jury sixteen several instructions, and the plaintiff asked of the court two instructions; all of which, as well those asked by the defendant as by the plaintiff, the court refused. But the court did give the jury the four following instructions, to wit:

1. That the defendant is not liable in this action unless the jury find that the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage in which he and his wife were passengers; and the facts that the carriage was upset and the plaintiff's wife injured are prima facie evidence that there was carelessness or negligence or want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver's fault.

2. It being admitted that the carriage was upset and the plaintiff's wife injured, it is incumbent on the defendant to 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 with the utmost prudence and caution; and if the disaster in question was occasioned by the least negligence or want of skill or prudence on his part, then the defendant is liable in this action.

3. If the jury find there was no want of proper skill or care or caution on the part of the driver, and that the stage was upset by the act of the plaintiff or his wife in rashly or improperly springing from it, then the defendant is not liable to this action; but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at the time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe from the position in which the stage was placed from the negligence of the driver, the attempt of the .plaintiff or his wife to escape may have increased the peril or even caused the stage to upset; and although they may also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage.

4. If the jury shall find that the driver was a person of competent skill and in every respect qualified and suitably prepared for the business in which he was engaged, and that the accident was occasioned by no fault or want of skill or care on his part or that of the defendant or his agents, but by physical disability arising from extreme and unusual cold, which rendered him incapable for the time to do his duty, then the defendant is not liable in this action.

VOL. XXVIII – 7

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Under these instructions the plaintiff obtained a verdict for $7,130, for which the court rendered a judgment in his favor; and from that judgment this writ of error is taken.

We consider it altogether unnecessary to notice any of the instructions asked for by the defendant, and which the court refused to give, because those which they did give cover the whole ground; and therefore it depends upon their correctness whether the judgment is to be affirmed or not.

$ 189. Contracts for carriage of passengers and goods.

We think that the court laid down the law correctly in each and all of these instructions. It is certainly a sound principle that a contract to carry passengers differs from a contract to carry goods. For the goods the carrier is answerable at all events, except the act of God and the public enemy. But although he does not warrant the safety of the passengers at all events, yet his undertaking and liability as to them go to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that, as far as human care and foresight can go, he will transport them safely. The principle is in substance thus laid down in the case of Christie v. Griggs, 2 Campb., 79.

So it is also in the case of Aston v. Heaven, 2 Espinasse, 533, where it is said that coach-owners are not liable for injuries happening to passengers from accident or misfortune, where there has been no negligence or default in the driver; that the action stands on the ground of negligence, but that a driver is answerable for the smallest negligence.

The principle is thus laid down in 2 Kent's Commentaries (7th ed.), 769: “ The proprietors of a stage-coach do not warrant the safety of passengers in the character of common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care." What the author understood to be due care will appear from this consideration, that in support of his proposition he refers to the two cases which we have just cited.

In Story on Bailments many cases are collected together upon this subject, in pages 376, 377, as illustrative of the principle, which is by that author laid down in these words: “If he (that is, the driver) is guilty of any rashness, negligence or misconduct, or is unskilful, or deviates from the acknowledged custom of the road, the proprietors will be responsible for any injuries resulting from his acts. Thus, if the driver drives with reins so loose that he cannot govern his horses, the proprietors of the coach will be answerable. So if there is danger in a part of the road, or in a particular passage, and he omits to give due warning to the passengers. So if he takes the wrong side of the road, and an accident happens from want of proper room. So if, by any incaution, he comes in collision with another carriage." To which we will add the further example: wherever there is rapid driving, wbich, under the circumstances of the case, amounts to rashness. In short, says the author, he must in all cases exercise a sound and reasonable discretion in traveling on the road to avoid dangers and difficulties, and if he omits it his principals are liable.

The only case which is recollected to have come before this court on this subject is that of Boyce v. Anderson, 2 Pet., 150. That was an action brought by the owner of slaves against the proprietor of a steamboat on the Mississippi to recover damages for the loss of the slaves, alleged to have been caused by the negligence or mismanagement of the captain and commandant of the boat. The court distinguished slaves, being human beings, from goods,

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and held that the doctrine as to the liability of common carriers for mere goods did not apply to them, but that in respect of them the carrier was liable only for ordinary neglect. The court seem to have considered that case as being a sort of intermediate one between goods and passengers. We think, therefore, that anything said in that case, in the reasoning of the court, must be confined in its application to that case, and does not affect the principle which we have before laid down. That principle, in our opinion, fully justifies the first and second instructions given by the court, except that part of those instructions which relates to the onus probandi; and although we think this portion of the instructions as well founded in justice and law as the other, yet it rests upon a different ground. The first part bas relation to the liability of the defendant; the second to the question on whom devolves the burden of proof. If the question were one of the first impression, we should, upon the reason and justice of the case, adopt the principle laid down by the circuit court.

$ 190. Proof of going on the coach, accident and damage, makes a prima facie case against the carrier.

But although there is no case which could have the weight of authority in this court, we are not without a decision in relation to it. The very point was decided in 2 Camp., 80, where it is said by Mansfield, chief justice, that he thought the plaintiff had made a prima facie case by proving his going on the coach, the accident and the damage he had suffered.

It is objected, however, in the printed argument which has been laid before us, that although the facts of the overturning of the coach, and the injury sustained, are prima facie evidence of negligence, they did not throw upon the defendant the burden of proving that such overturning and injury were not occasioned by the driver's default, but only that the coachman was a person of competent skill in his business; that the coach was properly made, the horses steady, etc.

Now, taking that portion of the first and second instructions which relates to the burden of proof together, we understand them as substantially amounting to what the objection itself seems to concede to be a proper ruling, and what we consider to be the law. For although in the first it is said that these facts threw upon the defendant the burden of proving that the accident was not occasioned by the driver's fault, yet, in the second, it is declared that it was incumbent on the defendant, in order to meet the plaintiff's prima facie case, to 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 the occasion with reasonable skill and with the utmost prudence and caution.

This affirmative evidence, then, was pointed out by the court as the means of proving what was in terms stated in the form of a negative proposition belore, that is, that the accident was not occasioned by the driver's fault. The third instruction also announces a principle which we think stands supported by the soundest reason; and we should therefore adopt it as being correct if it were altogether a new question.

$ 191. Where the carrier places the passenger so he must make a dangerous leap or remain in certain peril, and the passenger leups and is injured, the carrier is liable.

But this, too, is in accordance with the doctrine of Lord Ellenborough in 1 Starkie's Cases, 403, in which he says that, to enable the plaintiff to sustain

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