12 In The Pencher Company v. The City Mutual Fire Insurance Company, 18 Ont. App. Rep. 446 (1891), it was held that, where the business of a partnership is taken over by a limited liability company formed for that purpose there is such a change of interest as to invalidate insurances held by the firm in the absence of notification of the change to, and assent by the insurance company, though the members of the partnership hold nearly all the stock in the limited liability company.

STREET RAILROADS-INJURY TO PASSENGER FROM MISSILE THROWN BY MEMBER OF MOB.

FEWINGS v. MENDENHALL.

Supreme Court of Minnesota, January 23, 1903. Defendant was engaged in operating a street car system, and his employees had inaugurated a general strike, which was bitterly contested, and resulted in much violence on the part of of the lawless element among the strikers and their sympathizers. Defendant continued to operate his cars, and plaintiff was injured, when a passenger on one of them, by being struck upon the head by a stone thrown from the street into the car by a strike sympathizer, a person in no way under the control or direction of defendant. In this action to recover damages for such injury, it is held: (1) That defendant was not guilty of negligence in attempting to operate his cars during the strike; and (2) that the evidence is insufficient to justify a finding of actionable negligence against defendant as respects the act resulting in plaintiff's injury.

BROWN, J.: Action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant. Plaintiff had a verdict in the court below, and defendant appealed from an order denying his motion for judgment notwithstanding the verdict or for a new trial. The case was here on a former appeal. 83 Minn. 237, 86 N. W. Rep. 96. The facts are there fully stated, but for an understanding of the questions presented at this time a restatement is necessary; but in doing so we follow substantially the statement there made. Defendant, as receiver of the Duluth Street Railway Company, has operated its street car system since July, 1898. On May 2, 1899, a general strike was inaugurated by

the employees of the company, which was maintained until after the plaintiff was injured as hereinafter stated. Defendant procured other men to take the place of the strikers, and continued to operate the street car lines. On Sunday evening, May 7th, plaintiff took passage in a car operated by defendant, at Superior, in the state of Wisconsin, for Duluth. While the car was going northerly along Garfield avenue in Duluth, and as it approached Michigan street, a young man, not in any way connected with the company as an employee or otherwise, not a passenger, nor in any way under the control or direction of defendant, threw a stone at the car in which plaintiff was so riding, which passed through the window thereof, and struck plaintiff on the head, whereby he was seriously injured. He brought this action to recover damages because of such injury, basing his claim to a right of recovery on the alleged negligence of defendant in failing to take proper precautions to prevent injuries from acts of this kind. The complaint alleges, among other things, that plaintiff, as a passenger, was exposed to imminent danger by reason of the violent and unlawful acts of the strikers, and their sympathizers; and that defendant, in the exercise of due care and prudence, could have prevented the same and protected plaintiff and the other passengers in the car from injury; but, notwithstanding this, that he carelessly failed and omitted to warn the plaintiff of any danger, or to make any effort or take any precautions to prevent injury to him, or to provide or make use of any barriers or other means to avert injury resulting from acts of the kind complained of. It was held on the former appeal that defendant was not guilty of negligence in attempting to operate the cars during the strike, and that the trial court erred in submitting that question to the jury. The cause was remanded, and again tried, resulting in a finding by the jury that defendant was guilty of negligence in failing to take proper precautions to avert and prevent accidents of the kind complained of, and returned a verdict for plaintiff for the sum of $10,383.33.

The principal question presented for consideration at this time is whether the evidence is sufficient to sustain a finding of actionable negligence against defendant. Other questions are discussed in the briefs of counsel, but the evidence upon this question appears to be substantially the same as on the former trial, and it is due to the parties that the question be now met and determined, that the litigation may be brought to an end, and further expense obviated. In the consideration of this question it is proper to inquire first the degree of care required of defendant under circumstances like those shown, for in determining whether he was guilty of negligence which was the proximate cause of plaintiff's injury we must be guided by the rules of duty and care necessary to be exercised in such cases. Though no exceptions were taken to the charge of the trial court, wherein the jury was instructed that defendant

was charged with the highest degree of care and foresight for the protection of plaintiff while a passenger, the question is properly presented by the errors assigned on the motion for a new trial and by the assignments of error in this court. The strike which the employees of the street railway company inaugurated was bitterly and stubbornly contested, and resulted in much lawlessness and acts of violence on the part of the strikers and their sympathizers towards the property of the company, with the purpose in view of preventing the operation of the cars and forcing a submission to their terms. The act which resulted in plaintiff's injury was not committed by an employee, a fellow passenger, or by one having any connection or relation whatever with the company, but by a boy who was in no way under the control of the company or any of its agents. He was a sympathizer with the strikers, and by his act of lawlessness no doubt thought he was aiding their cause. The question as to the extent of responsibility of a carrier of passengers and the degree of care essential to be exercised for their protection as to acts committed by strangers to the carrier has never, prior to this case, been presented to this court for its decision. The general rule that such carrier is required to exercise the highest degree of care and foresight consistent with the orderly conduct of its business is one that has very uniformly been applied by all the courts in cases where the act or omission complained of as negligence was in respect to a matter under the control of the carrier. A carrier of passengers is required to exercise the highest care in respect to the equipment of its road and transportation facilities, in providing suitable machinery for the operation of its ears, in the employment of competent and faithful servants and agents, and generally, as to all acts pertaining in any way to the conduct of its affairs in furtherance of its undertaking as a carrier; and in respect to such matters the rule has always been very strict. It is insisted by plaintiff that the rule applies to this case, and that it was the duty of defendant, in view of the condition surrounding the strike, to exercise the utmost care and vigilance to guard and protect plaintiff, while a passenger, from acts of violence at the hands of persons, whether under the control of defendant or not, and from dangers from whatever source arising. It is insisted that the act of the boy who threw the stone in question was such as the defendant might, from the circumstances and conditions of the strike, reasonably have anticipated, and could have been guarded against and prevented. We have been cited to no case where the high degree of care essential as to matters within the control of the carrier has been extended and applied with all its force and strictness to acts of persons beyond its control, and for which it was in no way responsible, directly or indirectly. Some cases cited and relied upon by plaintiff do not sustain his position. Exton v. Railroad Co. (N. J. Sup.), 42 Atl. Rep. 486, 56 L. R. A. 508, was a

case where the company had permitted hackmen to occupy its premises in soliciting trade, and a passenger was injured by their misconduct. The company was held liable; but the decision is placed upon the ground that the company had the right to control its depot grounds and buildings, and, as it permitted hackmen to occupy the same, was responsible to passengers for injuries resulting from their misconduct, if it failed to exercise proper care to protect them. Wright v. Railroad Co. (Colo. App.), 35 Pac. Rep. 196, was a case where the company permitted disorderly persons to become and remain passengers, and is not in point. It was the clear duty of the company in that case to exercise the highest care to prevent injury to passengers from the acts of disorderly passengers, and the strict rule was clearly applicable to the facts there shown. It is well settled that a carrier of passengers is bound to exercise the utmost care to maintain order and guard and protect passengers from violence and insult at the hands of fellow passengers, from such injury and insult as might reasonably have been anticipated or naturally expected to occur, in view of all the circumstances and the number and character of passengers on board. Lucy v. Railway Co., 64 Minn. 7, 65 N. W. Rep. 944, 31 L. R. A. 551; Mullan v. Railway Co., 46 Minn. 474, 49 N. W. Rep. 249. The rule is founded upon the fact that the company has control of its cars and premises, a police supervision to prevent violations of the law, and may lawfully eject and remove disorderly persons therefrom, or arrest or otherwise suppress and control them. In Railway Co. v. Boyle (Ga.), 43 S. E. Rep. 242, the employees of the company had taken two tramps, who were concealed about the train, and trespassers thereon, and placed them in the express car, tieing them there with a rope about their wrists. During their struggle to escape one of them shot the express agent in charge of the car. The general principal of law was applied, and it was held that it was the duty of the railway company to protect its passengers from insult or injury at the hands of a fellow passenger, or third person, when the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see and apprehend that the passenger was in danger of injury. It was accordingly held that, as the company had placed the tramps in the car, and assumed charge and control of them, the strict rule of care essential in such cases applied, and protected the express agent to the same extent as a passenger. Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 23 C. C. A. 564, 77 Fed. Rep. 919,35 L. R. A. 623, and Haas v. Railroad Co. (Ga.), 7 S. E. Rep. 629, were cases involving the liability of carriers of freight, and are not in point, for a different rule of responsibility exists as to such carriers. In respect to goods a carrier is an insurer for the safe transportation and delivery of the property intrusted to it for carriage, and is relieved from liability only by

the act of God or the public enemy. A carrier of passengers is not an insurer of their safety, and is liable to them for such injuries as result from its failure to exercise proper care for their protection. A number of other cases are cited and relied upon by counsel, wherein the general rule is stated substantially as contended for by him, namely, that a carrier of passengers is required to exercise the utmost vigilance to protect passengers from insult and injury from whatever cause arising; but an examination of them shows that they are all cases where the carrier had permitted third persons to enter upon its premises or cars, and thereafter failed to exercise a proper degreeof care to restrain them from acts of lawlessness; and there can be no question as to their soundness. The question before us is whether this strict rule applies to the act of a stranger, such as here shown. That it does not is sustained by some very respectable authorities. Tall v. Packet Co. (Md.), 44 Atl. Rep. 1007, 47 L. R. A. 120; Railroad Co. v. MacKinney, 124 Pa. 462, 17 Atl. Rep. 14, 2 L. R. A. 820, 10 Am. St. Rep. 601; Thomas v. Railroad Co., 148 Pa. 180, 23 Atl. Rep. 989, 15 L. R. A. 416; Railroad Co. v. Pillsbury, 123 Ill. 21, 14 N. E. Rep. 22, 5 Am. St. Rep. 483. In our our opinion, it would be unjust to require a carrier of passengers, either a steam or a street railway company, to exercise the utmost care and vigilance to guard and protect passengers from criminal acts of strangers, persons not under its control or subject to its orders, and for whose acts it is in no way responsible. And we hold, without further discussion, as respects the acts of such strangers, that carriers of passengers are liable to the exercise of ordinary care and prudence only. Such carrier is liable for all injuries resulting from the acts of strangers which are reasonably to be anticipated under the particular circumstances, and which ordinary care and prudence, had it been exercised, would have prevented.

It remains to consider whether, within this rule, the evidence is sufficient to sustain the charge against defendant of actionable negligence, the burden to show which was upon the plaintiff. The familiar rule that evidence of an accident is prima facie proof of negligence against the carrier, can have no application to this case, because the act resulting in the injury did not arise from any act or omission of defendant. The presumption of negligence in such cases arises only where the thing causing the injury complained of was under the exclusive control of the carrier or its servants or employees. The act complained of here being that of a stranger, it was incumbent upon plaintiff affirmatively to prove that defendant failed to exercise proper care to prevent it. The question arises whether the evidence was sufficient to charge defendant with negligence in this respect. What, if anything, should he have done, which he did not do, to protect plaintiff and other passengers from acts of this kind? It is claimed that he should have pulled down the blinds of the car in which

plaintiff was riding. It appears that the material of the blinds inside the windows was leather, and the contention is that, had they been pulled down, the stone thrown by the boy would not have passed into the car, or in any way injured the plaintiff. It is also contended that the defendant might have protected plaintiff from this injury by stretching a heavy canvas over the windows outside the car; and, lastly, that he should have informed plaintiff of the conditions existing during the strike, the fact that violent and lawless acts were being committed by the strikers and their sympathizers. As to the first two theories of plaintiff,-pulling down the inside blinds and stretching a heavy canvas outside the car over the windows, we are of the opinion that the failure to do this is not sufficient on which to base a recovery. It would be unreasonable to require of defendant so to act, and though, perhaps, the suggested precaution would have prevented such an injury as that here complained of, and conceding that defendant was bound to anticipate an unlawful act of this kind, the rule of ordinary care and prudence is not so exacting as to require one charged with its exercise to take doubtful or unreasonable precautions to guard against the lawless acts of strangers. And, besides, it is reasonably clear that, had defendant pulled down the blinds of the car in question, or covered the outside of the windows with a heavy canvas, it would have provoked the strikers and their sympathizers to acts of greater violence. They would naturally have assumed, on seeing a car pass in that condition, that either the officials of the road or nonunion or scab employees were aboard, and it would have incited the lawless element to greater efforts to prevent the operation of the cars. As to the third proposition, that defendant was in duty bound to notify plaintiff of the violent conduct of some of the strikers and their sympathizers, able to concur with plaintiff, for these reasons: He was a resident of Duluth, and had occasion daily to use the cars of defendant in passing to and from his home to his place of business. He knew that a strike had been inaugurated by the street car employees, and the conditions surrounding it were so notorious and generally known as to preclude the possibility, even, that he was not fully aware of the lawlessness of the strikers. He was in as good a position as was defendant to anticipate dangers of this kind. Whatever defendant knew concerning the acts of the strikers was obvious and apparent to all persons of ordinary intelligence. Defendant exercised the precaution of inducing the city authorities to swear in a large force of extra policemen to prevent criminal acts of the strikers and their sympathizers. If they were unable to control the mob and prevent acts of this kind, we are at a loss to know what defendant could have done to prevent them, short of armoring his cars, and this, of course, would be so unreasonable a requirement as not to be thought of for a moment. It is not reasonable to

we are un

suppose that, had defendant given this warning to plaintiff. it would have had the effect claimed for it.-protected him.

Our conclusions upon the whole record are that the evidence relied upon is insufficient to charge defendant with actionable negligence. The questions on which we have disposed of the case at this time were not intended to be covered by the former decision. Some expressions in that opinion may be construed as announcing the law on certain phases of the case, but they were not so intended. But one question was there decided. and any expressions therein which may be inconsistent with the conclusions now arrived at must be regarded as obiter. Some members of the court, when the case was here before, were in some doubt upon the principal question now decided, but those doubts have been overcome fully by the further argument and consideration of the case, and we are all agreed upon the conclusions now reached.

The action has been tried several times. The facts are practically undisputed. The only claims of negligence relied upon by plaintiff in support of the verdict are those just pointed out, and for the reason that the failure of defendant in these respects is not sufficient to charge him with negligence within the rule of ordinary care and prudence, the case should be brought to an end, and further litigation and expense obviated by a final judgment. It is therefore ordered that the order appealed from be reversed, and the cause remanded to the court below, with directions to enter judgment for defendant.

NOTE.-Liability of Railroad for Injuries to Passengers Caused by the Wrongful Acts of Third Persons. It must be carefully be borne in mind in considering the subject before us that a fellow passenger is not a third person or stranger. Therefore cases having to do with the subject of a carrier's duty to protect a passenger from the acts of a fellow passenger are not in point with the subject of this annotation.

The principal case deals with the question of the carrier's duty to protect the passenger from mob violence. A very interesting case on this subject is that of Chicago & A. R. Co. v. Pillsbury (Ill.), 8 N. E. Rep. 803. In this case, defendant, a railroad company, stopped at a place not a usual stopping place and took aboard laborers who had taken the place of strikers. The police guarded the laborers until they entered the train. When the train stopped at a railroad crossing, a mile and one-half beyond, it was boarded by a mob, who attacked the laborers as scabs and shot the plaintiff, a passenger. Recovery in the lower court was reversed by the supreme court and the case remanded. The trial court instructed the jury that, if the circumstances were such as to lead a prudent man to believe that the presence of the non-union men upon the train would provoke an attack by the strikers, and the appellant knew of such circumstances, then the admission of the non-union men into the cars was a violation of appellant's duty to its passengers and the appellee was entitled to a recovery. In criticising this instruction, the supreme court speaking by Magruder, J., says: "Instructions must be based upon the evidence. If it is left to the jury

to determine whether or not a prudent man would draw certain conclusions from certain circumstances, it must at least appear that there was some reasonable and natural relation between the circumstances existing and the conclusions to be drawn from them. No prudent man, even in the exercise of that high degree of care which the law imposes upon the carrier of passengers, could be expected to foresee or anticipate that the animosity of union towards non-union laborers would lead to such a wanton and fiendish attack as is shown by this record to have been made in a civilized city, upon a train full of peaceable and orderly passengers." This case was tried again and the trial court changed its objectionable instruction and gave another in its stead on which the jury again rendered a verdict for plaintiff. The court instructed the jury that it was the duty of defendant, as a common carrier of passengers to exercise the utmost care, skill and vigilance to carry plaintiff safely, and to protect him against any and all danger, from whatever source arising, so far as the same could, by the exercise of such a degree of care and vigilance, have been reasonably foreseen and prevented. On appeal the appellant contended that the instruction required a higher degree of care to be observed by defendant for the safe carrying of passengers than the law imposes. In sustaining the verdict in this case the supreme court, speaking by Scott, J., says: "With regard to danger and hazard to travel arising otherwise than on the train, and not incidents 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 upon the attendant circumNo doubt in many cases, if the carrier observes ordinary care and diligence to discover and prevent injury to passengers, 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 carrier 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, skill and diligence, could have been reasonably and practically foreseen and anticipated in time to prevent injury. * * * Prior to the time the plaintiff was injured, the box cars containing these laborers had been assailed, and it might reasonably have been inferred that danger to passenger cars on the same account was imminent, and common prudence should have induced the taking of extraordinary precautionary measures. * Under the circumstances, the

stances.

law would charge the defendant with negligence in stopping a train filled with passengers, in the midst of a howling, revengful, lawless mob, to take on persons whom the mob were seeking an opportunity to maltreat. * Defendant ought reasonably to have anticipated the mob might attack its train to reach the object of their vengence, so soon as it had passed from the protection of the police, and precautionary measures should have been taken to prevent the injury to passengers. The verdict is a sufficient warrant for the conclusion that reasonable precautions were not observed." Magruder and Sheldon, JJ., dissent.

The solution of this whole question on principle should not be a difficult undertaking. The difficulty comes, as in nearly all questions of law, in the application of the principle to a certain state of facts. There is of course a distinction between the duty of a carrier toward freight and passenger traffic on its lines. Toward the former it assumes the attitude of an insurer, being relieved from liability only by act of God

or the public enemy. Toward passengers, however, a carrier is not an insurer, but it is held to a very high degree of care. As to matters over which the carrier has perfect and exclusive control, as for instance the selection of equipment, the fitness and construction of the road, and the employment of competent servants, the carrier is obligated to "the highest reasonable and practicable skill and diligence.” In regard, however, to the acts of third persons or to dangers and perils not incident to the ordinary mode of travel, the carrier is not held to such a strict accountability. It must, however, be diligent to observe every reasonable precaution to prevent injury to passengers from any outside source whatever which it has any reason to anticipate and any power to control. Further than this the law does not go. If a carrier could not reasonably have anticipated the danger or was possessed of no power to control or prevent it, no liability for the resulting injury can possibly attach to it. The principle care falls within this rule. So also does the case of Keeley v. Railway Co., 47 How. Pr. (N. Y.) 256, where the accident was occasioned by the misplacement of a switch in the darkness of midnight by some evil disposed person not connected with the railway company, and only a short time before the train arrived. The railroad in such case was of course exonerated from liability because it could not have reasonably anticipated the cause of the accident nor have prevented or remedied it, under the circumstances almost exactly the same facts were involved in the case of Fredericks v. Railroad Co., 157 Pa. St. 103, 27 Atl. Rep. 689, 22 L. R. A. 306, where the injury resulted from the criminal act of a stranger in turning a switch under such circumstances as made it not negligence on the part of the railroad company in failing to discover the mischief or prevent its effect. The railroad company in such case was of course not liable. Other authorities have completely settled the law that railroad companies are not liable for the torts of third persons tampering with the rails or switches where the company had no reason to anticipate the occurrence nor any knowledge of it in time to avoid the injury. Worth v. R. R., 51 Fed. Rep. 191; Latch v. R. R., 3 Hurlst v. N. 930, 27 L. J. Exch. 155; Deyo v. Railroad, 34 N. Y. 9; Miller v. Railroad, 20 Oreg. 285; East Tennessee R. R. v. Kane Ga.

22 L. R. A. 315. In the last case it was held that the mere fact that a r.ilroad company fails to recover from a discharged employee a key which controls the turning of a switch is not of itself sufficient to make the company liable for the criminal act of such employee in maliciously misplacing a switch for the purpose of working a train.

Nor is it any part of the contract between a passenger and a railroad company that the latter will furnish a police force sufficient to quell mobs by the wayside. Pittsburgh A. & C. R. R. v. Hinds, 53 Pa. St. 512. In this case a crowd of drunken men rushed into the train overpowering the conductor and commenced a free for all fight resulting in severe injury to the plaintiff. The railroad company nor the conductor did not nor could not have anticipated the occurrence. But the court was very particular in limiting the rule in this case to the facts. For instance, the court held that even if the company or the conductor did not know of the drunken mob about to board the train, still if such persons were allowed to board the train without resistance on the part of the conductor the company would be liable for the injury resulting to fellow passengers. But on the other

hand it is held that it is not the duty of railroad companies to furnish their trains with a police force adequate to meet such emergencies, so that if the conductor is overpowered the accident is one which the company had no power to prevent, and therefore one which could impose upon them no liability. However, the court extends the rule against the company still further, and holds the defendant liable because the conductor did not attempt to quell the disturbance inside the car. The court said: "If the conductor did not do all he could to stop the fighting, there was negligence. Whilst a conductor is not provided with a force sufficient to resist such a raid as was made upon the train in this instance, he has, nevertheless, large powers at his disposal. He may stop the train and call to his assistance the engineer, the firemen, all the brakesmen, and such passengers as are willing to lend a helping hand, and it must be a very formidable mob indeed, that can resist such a force. Until, at least, he has put forth the forces at his disposal, no conductor has a right to abandon the conflict. He should have stopped the train, and hewed a passage through the intrusive mass until he had expelled the rioters, or have demonstrated, by an earnest experiment, that the undertaking was impossible."

As to liability of carrier for injuries caused by missiles thrown by strangers, the authorities are in accord with the principal case, that in such cases the company is not liable. Pennsylvania R. R. v. MacKinney, 124 Pa. St. 462; Thomas v. Railroad, 148 Pa. St. 180, 15 L. R. A. 416. Nor is a railroad company bound to screen its car windows effectually against stones or other missiles that may be thrown from the out side by persons over whom the company has no control. Missimer v. Railroad Co., 17 Phila. 172.

Other instances of violence by third persons substantiate the general rule that under ordinary circumstances the company is not liable for injuries resulting from such acts. Jones v. Railroad Co., 45 U. C. Q. B. 193 (Explosion of fog signal placed on track by stranger); Mars v. Canal Co., 54 Hun (N. Y.), 625 (engine on side track started by stranger); Western, etc., R. R. v. Herold, 74 Md. 510 (stranger unloosening brakes on car standing alone on a grade); Harris v. Railroad Co., 13 Fed. Rep. 591 (hand car placed on track by stranger); Batton v. Railroad Co., 77 Ala. 591, 54 Am. Rep. 80 (disorderly conduct by strangers to lady passenger in depot). In the following cases, however, the company has been held liable. Dean v. Depot Co., 41 Minn. 360, 43 N. W. Rep. 54, 16 Am. St. Rep. 703, 5 L. R. A. 442 (where a depot company was held liable for injury caused by brutal man who was employed by one of the tenants of its building); Wright v. Railroad Co., 4 Colo. App. 102, 35 Pac. Rep. 196; Connell v. Railway Co., 93 Va. 44, 24 N. E. Rep. 467 (where a passenger was struck and robbed by an intruder); Railway Co. v. Boyle (Ga.), 42 S. E. Rep. 242 (where a passenger was injured by scuffle of conductor with two tramps which he allowed to board the train).

JETSAM AND FLOTSAM.

LIABILITY OF SURGEON FOR NEGLIGENCE IN PERFORM ANCE OF OPERATION IN CHARITY HOSPITAL.

The decision of the Supreme Court of Georgia in in Akridge v. Noble, March 1902, 41 S. E. Rep. 78, has aroused considerable comment and some adverse criticism. The action was by a charity patient